# dafyomi

lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A KOHEN MAY OFFER HIS OWN KORBANOS (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> How old or sick is he?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he can serve, he himself should offer them and
               get the meat and skin!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he cannot serve, why can he choose a Kohen to
               be his Shali'ach? (He should need to give them to
               Kohanim of the division!)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> He can serve (and eat) with
          difficulty. Since such service is valid, he can make a
          Shali'ach;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Eating with difficulty is like gorging oneself.
               Such eating is invalid, therefore, Kohanim of the
               division get the meat and skin.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Sheshes):</font></b> If a Tamei Kohen (of the serving
          division) has a Korban of the Tzibur to offer, he gives
          it to any Kohen he wants. Kohanim of the division get the
          meat and skin.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If there are Tahor Kohanim (in the division),
               Tamei Kohanim may not serve! (Why can he give it to
               any Kohen he wants?)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If there are no Tahor Kohanim, why do Kohanim of
               the division get the meat? They cannot eat it!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The only Tahor Kohanim in the division
          have blemishes. (They may not offer, but they may eat.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> If the Kohen Gadol was an Onen (i.e. one of
          his close relatives died today), he gives his Korban to
          any Kohen he wants. Kohanim of the division get the meat
          and skin.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> (Why did Rav Ashi need to teach this?) A
          Mishnah teaches this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> A Kohen Gadol may serve when he is an
               Onen, but he may not eat Kodshim, nor does he
               receive a portion to eat at night (when he is
               permitted to eat).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that the Torah was
          merciful to allow a Kohen Gadol to serve when he is an
          Onen, but not to appoint a Kohen to offer on his behalf.
          Rav Ashi teaches that this is not so.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE ASHAM FOR THEFT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven stole from a convert and swore
          falsely to him, and the convert died, Reuven pays
          principal and Chomesh to the Kohanim, and brings an Asham
          - 'if the man has no redeemer... the theft that is
          returned to Hash-m, to the Kohanim, aside from the ram of
          atonement...'
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven was bringing the money and Asham to the
          Mikdash and died, his heirs inherit the money. The Korban
          grazes until it gets a blemish. It is sold, the money is
          used for a Olah of the Tzibur.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If he gave the money to Kohanim of the division and
          then died, his heirs cannot take it back - 'a man who
          will give to the Kohen, it will be to him (the Kohen).'
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If he gave the money to Yehoyariv (a particular
          division of Kohanim), and the Asham to Yadayah (the
          division that serves after Yehoyariv), he was Yotzei;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he gave the Asham to Yehoyariv, and the money
               to the Yadayah, if the animal is still around,
               Yadayah offers it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If not, he must bring another Asham. If one gave
               the money before bringing the Asham, he was Yotzei.
               If one brought the Asham before giving the money, he
               was not Yotzei (he was not Yotzei).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he gave the principal but not the Chomesh, he
               may bring the Asham.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara - Beraisa #1):</font></b> 'Asham' is the principal. 'That
          is returned' is the Chomesh.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Perhaps 'Asham' is the Korban Asham!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What difference would it make?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> This would teach us that the Halachah
               does not follow Rava.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rava):</font></b> If one gave the theft to the Kohanim at
                    night, or in two payments, he was not Yotzei.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Question:</font></b> What is the reason?
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Answer:</font></b> The Torah calls it 'Asham' (which
                    cannot be offered at night or in two
                    installments).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> 'Aside from the ram of atonement' refers to
          the Asham, so 'Asham' must refer to the principal.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa #2):</font></b> 'Asham' is the principal. 'That is
          returned' is the Chomesh.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Perhaps 'Asham' is the Chomesh!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What difference would it make?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It would teach unlike our Mishnah, which
               says that if he gave the principal but not the
               Chomesh, he may bring the Asham. Rather, we would
               learn that he may not bring the Asham until he pays
               the Chomesh!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection:</font></b> 'He will return his Asham b'Rosho and its
          fifth' teaches that 'Asham' (cannot mean Chomesh, so it)
          is principal.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Beraisa #3):</font></b> 'Asham' is the principal. 'That is
          returned' is the Chomesh. The verse discusses one who
          stole from (and swore falsely to) a convert who later
          died.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Perhaps 'that is returned' is Kefel, and it
          discusses one who covertly stole from a convert!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Rejection:</font></b> 'He will return his Asham b'Rosho, and its
          fifth' refers to money that is paid b'Rosho (only one
          principal).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CONDITIONS OF THE PAYMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven gave the theft to the Kohanim at
          night, or in two payments, he was not Yotzei.
<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> The Torah calls it 'Asham' (which cannot be
          brought at night or in two installments).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rava):</font></b> If every Kohen (in the division) does not get a
          Perutah, the thief did not fulfill his obligation.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The Torah calls it 'Asham that is returned
          (...to the Kohen)' - it must be returned to every Kohen
          (less than a Perutah is not considered money).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If it is not enough for every Kohen in
          Yehoyariv to get a Perutah, but it is enough for every
          Kohen in Yadayah, what is the law?
<br>
<br>

sjt:
<font><b>1) A KORBAN OFFERED BY AN OLD OR SICK KOHEN</b></font><b>
<br>QUESTION:</b> The Gemara (109b) cites a Beraisa which says, 'How do we know that a Kohen may come and offer his Korbanos at any time he desires? This is derived from the verse, 'And he may come whenever he desires... and serve in the name of Hashem' (Devarim 18:6-7).' <b>RASHI</b> (DH she'Bo) explains that if the Kohen vowed to bring a Korban or if he was obligated to bring a Chatas or Asham, he may come and offer his Korban even during a Mishmar of which he is not a member (that is, even at a time when it is not his turn to serve in the Beis ha'Mikdash). (See also <b>MINCHAS CHINUCH</b> 509:5, DH Hayah ha'Kohen Zaken.)
</p><p>
The Beraisa continues (110a) and says that if the Kohen is old or sick he may choose any Kohen to offer his Korban on his behalf. Rashi (DH v'Im) explains that the Beraisa refers to an old Kohen who is capable of performing the Avodah, as the Gemara later explains, but who is not capable to eat the meat of the Korban. Since he is fit to perform the Avodah himself, he is entitled to appoint a Shali'ach to perform the Avodah for him. However, as the Beraisa states, the meat and skin of the Korban must be given to the Kohanim of the present Mishmar. The Gemara explains that since he is not capable of eating the Korban himself (and any attempt to force himself to eat it would not be an act of eating but an act of 'Achilah Gasah'), he may not appoint a Shali'ach to eat it on his behalf.
</p><p>
The Gemara implies that if a Kohen is unable to perform the Avodah himself, he may not designate an agent to perform the Avodah for him. Why, then, is any Yisrael (non-Kohen) able to appoint a Kohen as his Shali'ach to offer his Korban? The Gemara in Kidushin (23b) uses this logic to prove that the Kohanim are the agents of Hash-m and not the agents of Yisrael, and thus the Kohanim may offer the Korbanos on behalf of non-Kohanim. If, however, the Kohanim are the agents of Hash-m and not the agents of the ones offering the Korbanos, why should an old or sick Kohen who cannot perform the Avodah himself not be able to appoint a Shali'ach to bring his Korban on his behalf? Even though he is not capable of doing the Avodah, he still should be able to send his Korban with another Kohen, just as a Yisrael is able to have a Kohen offer his Korban on his behalf!
</p><p>
<b>ANSWER:</b> The <b>NODA B'YEHUDAH</b> (EH 2:9, DH u'Mah) answers that the Gemara does not mean that when one cannot do a certain act, he cannot appoint an agent to do that act. Rather, the Gemara discusses the specific question of whether a sick Kohen may have his Korban offered by a Kohen from a Mishmar other than the present Mishmar that is serving in the Beis ha'Mikdash.
</p><p>
The Noda b'Yehudah explains that the right to offer Korbanos normally belongs to the Kohanim of the Mishmar presently serving in the Beis ha'Mikdash. Nevertheless, the Torah gives to each Kohen the right to offer his own Korban even during the week of a Mishmar of which he is not a member. However, one may have thought that this right is non-transferable, and that the Kohen may not choose another Kohen (from a different Mishmar than the one presently serving in the Beis ha'Mikdash) to offer his Korban for him. Perhaps the Kohanim of the officiating Mishmar have the right to refuse to let him take away their privilege to offer the Korbanos by choosing an 'outside' Kohen to offer his Korban for him.
</p><p>
The Gemara therefore teaches that a Kohen may appoint another Kohen who is not from the present Mishmar to bring his Korban. The reason why he is permitted to do this is that he may say to the Kohanim of the present Mishmar that they lose nothing from the fact that a Kohen from a different Mishmar is offering his Korban, since he could offer his Korban himself if he wanted to do so. This logic applies, however, only when he indeed is capable of offering his own Korban. If the Kohen is so old or sick that he is unable to do the Avodah himself, he cannot use this argument to justify his appointment of an 'outside' Kohen, and he must give his Korban to the Kohanim of the present Mishmar. This is the intent of the Gemara's statement that if he cannot do the Avodah himself, he cannot appoint a Shali'ach to do it for him.
</p><p>
(The <b>KOVETZ HE'OROS</b> in Yevamos (72:2) seems to understand the Gemara like the Noda b'Yehudah. However, the <b>MAHARATZ CHAYOS</b> presents a different way to understand the Gemara.) (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A SHALI'ACH FOR WHAT ONE CANNOT DO</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'> 109b:</font></b> If a Kohen is old or sick, he gives his
               Korbanos to any Kohen he wants. Kohanim of the
               division get the meat and skin.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> If he cannot serve, why can he choose a
               Kohen to be his Shali'ach? (He should need to give
               them to Kohanim of the division!)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav Papa):</font></b> He can serve (and eat) with
               difficulty. Since such service is valid, he can make
               a Shali'ach. Eating with difficulty is like gorging
               oneself. Such eating is invalid, so Kohanim of the
               division get the meat and skin.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Nazir 12a (R. Yochanan):</font></b> If Reuven made David a
               Shali'ach to be Mekadesh an unspecified woman and
               David died, Reuven may not marry any woman. (Perhaps
               David was Mekadesh her relative to Reuven!)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rava):</font></b> R. Yochanan agrees that Reuven may marry
               Leah if she has no (single) daughter, granddaughter,
               mother, grandmother or sister. Leah is permitted
               even if she has a sister who was divorced (or
               widowed) after David was appointed. There is no
               concern lest David was Mekadesh her sister to
               Reuven, for one authorizes a Shali'ach only for
               something that he could do now.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 12b Question (Beraisa - R. Yoshiyah):</font></b> If Reuven told
               Ploni 'annul any vows my wife makes until I return,
               Ploni's annulment is invalid - 'her husband will
               affirm her vows, her husband will annul them';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yonason says, a man's Shali'ach is like
                    himself.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If not for the verse, R. Yoshiyah would agree
                    that Ploni can annul, even though the husband
                    could not do this now!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> He holds that the husband himself could
               annul now.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Kidushin 23b - Question (Rabah):</font></b> According to R.
               Shimon ben Elazar (who says that an Eved Kena'ani
               cannot receive his own Get Shichrur (of freedom),
               can a slave make a Shali'ach to receive his Get?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Does the Gezeirah Shavah from a married woman
                    teach that a slave can also make a Shali'ach?
                    Or, perhaps she can make a Shali'ach for she
                    can receive her own Get. A slave cannot receive
                    his own Get!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer (Rabah):</font></b> The slave can make a Shali'ach.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question:</font></b> Rav Huna brei d'Rav Yehoshua taught that
               Kohanim who serve in the Mikdash are Hashem's
               Sheluchim. They could not be Sheluchim of Yisrael,
               for one cannot make a Shali'ach for something that
               he himself cannot do!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  According to Rabah, a slave cannot receive his
                    own Get, but he can make a Shali'ach to receive
                    it!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer:</font></b> A Yisrael cannot do Avodah at all, so he
               cannot make a Shali'ach for this. A slave can
               receive a Get, so he can make a Shali'ach for this;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> A slave can receive a Get of freedom
                    for another slave of a different master, but
                    not for another slave of his own master.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rosh (Nedarim 10:7):</font></b> If one cannot do something, he
               cannot make a Shali'ach for it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Tosfos (Nazir 12a DH Mai):</font></b> We conclude that even if
               one intends to make a Shali'ach for something he
               cannot do now, Shlichus takes effect only for what
               he could do now. How can one make a Shali'ach to
               knead flour and separate Chalah on the dough? Now,
               one cannot separate! R.Tam answered that one could
               bring a kneaded dough and separate now for the dough
               after it will be kneaded. Since it is in his power,
               it is considered like something he could do now.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Ishus 9:6):</font></b> One makes a Shali'ach to
               be Mekadesh only a woman that he himself could have
               been Mekadesh at the time.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Maharit (CM 23):</font></b> The Rambam's opinion is not clear.
               Perhaps he holds that with intent, one can make a
               Shali'ach for what he cannot do now. Therefore, one
               can make a Shali'ach to separate Chalah! Tosfos had
               the Rosh's text, which concludes that one <i>cannot</i>
               make a Shali'ach for what he cannot do now. The Tur
               and Ramban had our text (one <i>does</i> not make a
               Shali'ach).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> R. Yerucham (22:3):</font></b> He made a Shali'ach only for
               women that he himself could have been Mekadesh at
               the time.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question (Mishneh l'Melech):</font></b> (Hagahah: R. Yerucham
               connotes like the Maharit.) The Gemara applies this
               limitation to Shlichus to annul vows that will be
               made later, i.e. even though he explicitly intends
               for it! Can one make a Shali'ach to be Mekadesh a
               woman who is Safek Mekudeshes, after divorced? Now,
               one could be Mekadesh her mi'Safek, but not totally.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim and Acharonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Maharatz Chayos Bava Kama 110a):</font></b> The
               Mitzvah to eat Kodshim is for all the Kohanim who
               serve that day, not only the one who offered the
               Korban! Also, there is no Shlichus for Mitzvos
               dependent on one's body!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Beis Meir EH 119:6):</font></b> Some require
               Shelichus to write a Get. If a man does not know how
               to write, why can a Shali'ach write for him?
               According to everyone, if a sick man cannot walk to
               his wife who is far away, how can he make a
               Shali'ach to give a Get to her? The Kelal 'what one
               cannot do, he cannot make a Shali'ach to do it' is
               not only when Halachah dictates that he cannot do
               it. An old Kohen can make a Shali'ach only if he
               could serve with difficulty! Rather, one who makes a
               Shali'ach cannot give him more Ko'ach (Halachic
               strength) than he himself has. If the Meshale'ach
               gets more strength later, this does not help. A
               slave has Ko'ach, just he lacks (his own) Reshus.
               Therefore, a Shali'ach who has Reshus can be his
               Shali'ach. A Shali'ach need not receive physical
               Ko'ach from the Meshale'ach to transport a Get, so
               we are not concerned if the husband cannot walk.
               However, one who cannot write a Get cannot make a
               Shali'ach. This is difficult for those who require
               Shlichus to write a Get. Shlichus to divorce a wife
               who is now insane is valid. Even though he cannot
               divorce her until she becomes sane, the husband had
               all his Ko'ach now.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Yehudah Ya'aleh 2 EH 172):</font></b> This question is
               not difficult if the husband can write in our
               script, for a Get is Kosher in any language or way
               of writing the letters (EH 126:1). Even one who does
               not know how to write at all could write if they
               would tear the forms of the letters or write them
               with spit, and he would put ink in those places,
               like we do for illiterate Edei Chasimah (Gitin 19a,
               EH 130:16). An amputee can write a Get by sitting on
               a printing press. This is l'Chatchilah (Taz EH 125:4
               and many others). Some say that one cannot make a
               Shali'ach only if no one could do the act now, e.g.
               to be Mekadesh a woman who is currently married, or
               separate Chalah from flour. However, if one is
               merely too far away, he can make a Shali'ach. Bava
               Kama 110a refutes this. The Rambam (Hilchos Avodah
               Zarah 12:3) says that Shechitas Korban Pesach is a
               Mitzvas Aseh she'Lo ha'Zeman Gerama, and women are
               obligated. If so, why must a Mishnah teach that
               women can slaughter? If they could not, a Shali'ach
               could not slaughter for them! Kedushas Yisrael (Sof
               Kesuvos) exempts women from writing a Sefer Torah
               for this reason, i.e because they cannot write one.
               I say that Mitzvos are different. The Mitzvah is to
               do so through a Shali'ach, even though she herself
               cannot. Beis Efrayim (CM 17) says that if one cannot
               circumcize his son, Shlichus does not apply.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (Orach Mishur Nazir Reish 12b):</font></b> We say that
               a slave can make a Shali'ach because he is in the
               Parshah of Gitin, even if he cannot receive this
               Get. If so, Shlichus for Kidushin should apply to be
               Mekadesh a woman who was married at the time, for
               she is in the Parshah!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Noda b'Yehudah (2 EH 69):</font></b> We require that the
               <i>Shali'ach</i> could do the act. The Meshale'ach need
               not be able to do it, as long as he is in the
               Parshah. A minor cannot make a Shali'ach to receive
               her Get only because we do not testify about a
               minor. Kohanim offer Korbanos even for a weak
               Yisrael! The Gemara taught that a Kohen can decide
               which Kohen will offer his Korban only if he himself
               could offer it.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Matzpas Eisan (Kidushin 23b DH Rashi):</font></b> One cannot
               make a Shali'ach for something he cannot do, i.e.
               when another matter is Me'akev, but he himself is
               qualified. E.g. a man can be Mekadesh, but he cannot
               be Mekadesh a married woman. A slave cannot receive
               his own Get (according to R. Shimon ben Elazar) due
               to himself (it never left his master's hand).
               Therefore, he can make a Shali'ach, for he himself
               could receive his Get if not for his problem. Now,
               the slave could receive a Get for another master's
               slave. He is unlike a sick Kohen, who cannot do any
               Avodah now.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kovetz Ha'aros (72:2):</font></b> Even though the Gemara
                    in Bava Kama mentions Shlichus, it is not true
                    Shlichus. It discusses also 'Shlichus' for
                    eating, and surely this is not Shlichus!
                    Rather, it is giving permission. One may give
                    Reshus only if he could do the act himself.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Machaneh Efrayim (Shluchim 25):</font></b> R.Tam holds
                    that since one cannot circumcize Levi's son
                    without Levi's consent, if Levi told David to
                    circumcize him, David becomes his Shali'ach.
                    This is like a sick Kohen who gives the Avodah
                    to another Kohen; he is his Shali'ach. Even
                    though Kohanim are Hashem's Shluchim, since the
                    Torah gave this Mitzvah to a Kohen, he can make
                    a Shali'ach in place of himself. However,
                    perhaps David does not become his Shali'ach,
                    even if Levi himself could circumcize.
<br>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he gave it to Yadayah when Yadayah is serving,
                    surely this is good!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, he gave to Yadayah when Yehoyariv
               is serving.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since Yadayah is not serving, this is invalid;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Or, since the theft is not fitting for
                    Yehoyariv (it is too small), it is destined to
                    be given to Yadayah, so it is valid!
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	This question is unsettled.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> May Kohanim trade portions that they
          received of Gezel ha'Ger?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since the Torah called it Asham, just like they
               may not trade one Korban for another, also Gezel
               ha'Ger;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since it is mere money, they may trade it.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Since the Torah called it Asham, they
          may not trade it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Acha brei d'Rava cited this teaching in his
               father's name.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Is a Kohen who received Gezel ha'Ger
          like an heir, or like one who received a gift?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What difference does it make?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Reuven stole Chametz from a Ger, and
               Pesach passed;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he is like an heir, he inherits the worthless
                    Chametz;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If he is like one who received a gift,
                    Reuven must give him something of value.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Ze'ira):</font></b> Even if he is like one who
          received a gift, the Torah told Reuven to return what he
          stole (even if it is worthless)!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Rav Ze'ira):</font></b> If a Kohen received 10 animals
          for Gezel ha'Ger, must he tithe them?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he is like an heir, we learned that if orphans
               bought animals with money of the estate, they must
               tithe them;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he like one who received a gift, he is exempt;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> One who buys or receives a gift of
                    animals is exempt from tithing them.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> Twenty-four gifts were given to the
          Kohanim. They are all included in a Klal u'Frat u'Chlal, 
          and a covenant of salt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one fulfills them, it is as if he fulfilled
               (the whole Torah, which is expounded using) Klal
               u'Frat u'Chlal, and (all the Korbanos, for which
               there is) a covenant of salt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If one does not fulfill them, it is as if he
               transgressed the whole Torah and all the Korbanos.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Ten of the gifts may only be eaten in the Mikdash
               - Korban Chatas of animals and birds, Asham brought
               for a definite or Safek Aveirah, Korban Shelamim of
               the Tzibur (on Shavuos), (the remains of) the Log
               (about a half liter) of oil that a Metzora brings,
               the remains of the Omer offering (on Pesach, after
               offering a handful on the Mizbe'ach), the Lechem
               ha'Panim (the bread that is on the Shulchan the
               entire week), the two loaves brought on Shavuos,
               and the remains of Menachos (flour-offerings).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Four of the gifts are (eaten or received) in
               Yerushalayim - Bechor (a firstborn male, of Tahor)
               animals, Bikurim, the chest and foreleg of Shelamim
               and of the ram that a Nazir offers, and the hides of
               Korbanos.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Ten of the gifts apply even outside Yerushalayim:
               Terumah, Terumas Ma'aser, Chalah, first shearings
               (of sheep), the foreleg, jaw and stomach of Chulin
               Behemos, redemption of firstborn sons, redemption of
               Bechor donkeys, Sdei Achuzah (a field from one's
               ancestral inheritance that he made Hekdesh and did
               not redeem before Yovel), a field declared Cherem,
               and Gezel ha'Ger.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The Beraisa calls Gezel ha'Ger a gift.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>UNEXPECTED RESULTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven gave the money to Kohanim of the
          division (and then died, the Kohanim keep it).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Abaye):</font></b> We learn from this that the money partially
          atones. If it did not, we should say that it reverts to
          Reuven's heirs!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Reuven gave it only to get atonement.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If so, if the owner of a Korban Chatas died,
          we should say that it reverts to Chulin, for he made it
          Hekdesh only in order to offer it!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> A tradition from Moshe from Sinai teaches that
          if the owner of a sin-offering dies, the animal is left
          to die.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> If so, if the owner of an Asham died, we
          should say that it reverts to Chulin, for he made it
          Hekdesh only in order to offer it!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> A tradition from Sinai teaches that in any
          situation in which a Chatas must die, an Asham grazes
          (until it gets a blemish. We buy and offer an Olah of the
          Tzibur with the money).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> A woman who falls to Yibum to a leper should
          be exempt without Chalitzah. She did not accept Kidushin
          with intent that she would fall to such a Yavam!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Surely, she accepts Kidushin in spite of this
          possibility, due to Reish Lakish's teaching.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Reish Lakish):</font></b> A woman prefers being married
               (even to an undesirable man) than to remain single.
<br>

sjt:
</p><p>
<font><b>2) ONE WHO STIPULATES AT THE TIME OF HIS MARRIAGE THAT HIS WIFE WILL NOT NEED TO PERFORM YIBUM WITH A REPULSIVE BROTHER-IN-LAW</b></font><b>
<br>QUESTION:</b> The Mishnah (110a) discusses the case of a person who stole from a convert (who had no heirs) and swore falsely that he did not steal. Afterwards, he admitted his transgression, but the convert died before he had a chance to return the money to him. The Mishnah says that he must give the principle and the extra fifth to the Kohanim, and offer an Asham Gezeilos. The Mishnah continues and says that if the thief gave the money to the Kohanim of the Mishmar of that week but he died before they offered his Korban, the thief's heirs cannot receive the money back from the Kohanim.
</p><p>
Abaye infers from the Mishnah that the giving of the money to the Kohanim achieves half of the atonement for the thief, even if the Korban was not brought. If the giving of the money would not achieve any atonement at all, the Kohanim would be obligated to return the money to the thief's heirs. The thief certainly would not have given the money to the Kohanim if he would have known that no atonement would be gained from doing so, and thus his act of giving would be considered to have been done in error, and the Kohanim would have no right to keep the money. The fact that the Kohanim are not required to return the money shows that the giving of the money to the Kohanim achieves half of the atonement.
</p><p>
The Gemara questions Abaye's reasoning. According to Abaye, if a woman's husband dies without children and her brother-in-law is a Mukeh Shechin (a man afflicted with boils or leprosy), she should not be required to perform Yibum or even Chalitzah. She should be able to claim that 'a'Da'ata d'Hachi Lo Kidshah' -- she did not marry her husband with the intent that if he dies she should have to marry the repulsive brother-in-law.
</p><p>
The Gemara answers that the case of the wife is different. In the case, it is clear that it is worthwhile for her to marry the first brother even with the risk that later she may have to do Yibum or Chalitzah with her repulsive brother-in-law. This is because a woman prefers to be married rather than to live alone.
</p><p>
The Gemara here seems to contradict the Yerushalmi. The Yerushalmi (Bava Metzia 7:7) states that when a man marries a woman and stipulates, 'You are hereby married to me on condition that you will not do Yibum with my brother if I die childless,' he is considered 'Masneh Al Mah she'Kasuv ba'Torah' (making a condition against what is written in the Torah), and the marriage takes effect but the stipulation is null and void. How can the Yerushalmi be reconciled with the Gemara here, which assumes that if a woman marries with intent that she will not have to do Yibum with her repulsive brother-in-law, her condition is valid?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TERUMAS HA'DESHEN</b> (end of 1:233) answers that the Yerushalmi and Bavli indeed disagree about this issue. According to the Bavli, one indeed may make a condition at the time of the marriage that Yibum will not be done with a certain brother.
</p><p>
The Terumas ha'Deshen writes in the name of '<b>MORAM</b>' that the Gemara here provides proof for the words of the <b>GE'ONIM</b> who ruled in a responsum that if the husband's brother was a Mumar (apostate) at the time of the wedding and the husband later dies, the widow does not have to do Yibum with the Mumar and may remarry even without Chalitzah. This is because it is clear that the bride married the man only on condition that she would not have to do Yibum with his brother who is a Mumar.
</p><p>
(b) The <b>NODA B'YEHUDAH</b> (EH 1:56, DH v'Al Devar) explains that the Yerushalmi and Bavli do not disagree. Rather, there is a distinction between stipulating that she will not fall to Yibum, and stipulating that if the need to do Yibum arises the original Kidushin will lose its validity. The former condition contradicts the Torah law that requires a woman to fall to Yibum. The latter condition, however, does not contradict the Torah. Rather, it is a condition in the original Kidushin which states that the Kidushin will not be valid in the event that the woman's husband dies childless.
</p><p>
(The <b>REMA</b> (EH 157:4) writes that when the husband has a brother who is a Mumar, he may make a double condition at the time of the marriage and say that if his wife later will have to do Yibum with the Mumar, his original Kidushin should be invalidated retroactively. The <b>BI'UR HA'GRA</b> (EH 157:13) writes that the source of this law is the Gemara here. The Noda b'Yehudah also writes that if he makes such a condition, it is possible that it takes effect.) (D. Bloom)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>IF ONE GAVE THE MONEY AND ASHAM TO DIFFERENT DIVISIONS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven gave the money to division
          Yehoyariv...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa - R. Yehudah):</font></b> If he gave the Asham to
          division Yehoyariv, and the money to Yadayah (the next
          division to serve), the money reverts to the division
          that received the Asham;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Chachamim say, the Asham reverts to the division that
          received the money.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If each division was serving when it received the
               offering or money, each merits to keep what it got!
               (Even if Chachamim would fine Yehoyariv for taking
               the Asham before the money, R. Yehudah would not
               fine Yadayah, they did nothing wrong!)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The case is, both were given when
          Yehoyariv was serving.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah fines Yadayah for taking the money
               during the week of Yehoyariv (so they must give it
               to Yehoyariv);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim fine Yehoyariv for taking the Asham
               before the money.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa - Rebbi):</font></b> According to R. Yehudah, if
          Yehoyariv offered the Asham, Reuven must bring another
          Asham, which Yadayah offer; Yehoyariv do not lose what
          they have.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> They have an invalid offering, it is useless!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> They can keep the skin.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Beraisa #1 - Rebbi):</font></b> According to R. Yehudah, if the
          Asham is still around, the division that has the money
          offers it.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> R. Yehudah holds that the money goes to the
          division with the Asham!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, Yehoyariv did not claim the money
          during its week, and thereby waived its privilege.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Beraisa #2 - Rebbi):</font></b> According to R. Yehudah, if the
          Asham is still around, the money reverts to the division
          with the Asham.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious (this is what R. Yehudah
          taught)!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> Rebbi teaches about when neither division
          claimed from the other during its week;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that each waived its
               privileges and allows the other to keep what it has.
               Rebbi teaches that this is not so;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rather, Yehoyariv demands the money and brings
               the Asham the next time it serves.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE MONEY MUST BE GIVEN FIRST</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one gave the money before offering the
          Asham (he was Yotzei, but if he offered the Asham first,
          he was not Yotzei).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> 'The Asham that is returned to Hash-m,
          to the Kohen, aside from the ram of atonement, with which
          he will atone' implies that the money must be returned
          first.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If so, you should also expound 'aside from
          the morning Olah (Tamid offering)' to teach that the
          Musaf offering precedes the Tamid (but this is not so)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> No Korban may be brought before the
               morning Tamid - 'he will arrange on (the woodpile)
               the Olah'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rava):</font></b> 'The Olah' connotes the first Olah.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> I learn from 'with which he will atone'
          - when he gives the money, the Asham has not yet been
          offered.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he gave the principal...
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Beraisa) Question:</font></b> (If one transgressed Me'ilah,) what
          is the source that if he brought only the payment or
          Asham (but not both), he was not Yotzei?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> 'With the ram of the Asham, he will be
          forgiven.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source that if he brought the
          Asham before the payment, he was not Yotzei?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> 'With the ram of the Asham (principal)'
          (implies that the principal was already brought).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Perhaps just like if he omitted the ram or
          principal, he was not Yotzei, also if he did not pay the
          Chomesh!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection:</font></b> 'With the ram of the Asham, he will be
          forgiven' - the ram and principal are needed for
          atonement, but the Chomesh is not.
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	We learn about (one who stole from) Hekdesh from (one
          who stole from) a commoner (i.e. convert), and vice-
          versa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like regarding Gezel ha'Ger, 'Asham' refers
               to principal, also regarding Me'ilah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Just like regarding Me'ilah, the Chomesh is not
               needed for atonement, also regarding Gezel ha'Ger.
<br>
<br>

sjt:
<font><b>1) THE 'CHOMESH' IS NOT 'ME'AKEV'</b></font><b>
<br>QUESTION:</b> The Mishnah (110a) discusses the case of a person who stole from a convert (who had no heirs) and swore falsely that he did not steal. Afterwards, he admitted his transgression, but the convert died before he had a chance to return the money to him. The Mishnah says that he must give the principle (Keren) and the extra fifth (Chomesh) to the Kohanim, and offer an Asham Gezeilos. The Mishnah adds that if he gave the Keren to the Kohanim but not the Chomesh, the lack of the Chomesh does not prevent him ('Me'akev') from bringing the Asham.
</p><p>
The Gemara (111a) quotes a Beraisa that states that if one paid the Keren but did not bring the Asham, or he brought the Asham but did not pay the Keren, he did <i>not</i> fulfill his obligation. This is derived from the verse, 'The Kohen will then atone for him with the ram of the guilt offering, and it shall be forgiven to him' (Vayikra 5:16). (See <b>RASHI</b> (DH b'Ayil) who explains how this law is derived from the verse.)
</p><p>
The Beraisa adds that although the payment of the Keren and the offering of the Asham are necessary for atonement, the Chomesh is not. This is also derived from the verse, 'The Kohen will then atone for him with the ram of the guilt offering, and it shall be forgiven to him,' which implies that only the Keren and the Asham are Me'akev the atonement, and not the Chomesh.
</p><p>
It is apparent that the Beraisa maintains that only the Keren and Asham are required for atonement, but the payment of the Chomesh -- although it is obligatory -- is not required for atonement. However, this seems to contradict the Gemara in Zevachim (52a). In the Gemara there, Rav Ada bar Ahavah states that according to Rebbi Yishmael, the sprinkling of the Sheyarei ha'Dam (the leftover blood from a Korban after the Zerikas ha'Dam has been performed) is Me'akev the atonement of the Korban from taking effect. <b>RASHI</b> (DH Shirayim) explains that according to Rebbi Yishmael, although the sprinkling of the leftover blood does not attain atonement, the failure to sprinkle the leftover blood prevents atonement from taking effect. Rav Papa states that according to Rebbi Yishmael, the Mitzuy (squeezing out) of the blood of the Chatas ha'Of (the bird sin-offering) is Me'akev the atonement until it is performed. The <b>RAMBAM</b> (Hilchos Ma'aseh ha'Korbanos 7:7) rules that this is the Halachah.
</p><p>
According to the Gemara in Zevachim, it is possible that even something that does not provide atonement itself nevertheless may prevent atonement from taking effect. If this is true, why does the Gemara here assume that the Chomesh cannot prevent atonement? Although the verse says, 'The Kohen will then atone for him with the ram of the guilt offering, and it shall be forgiven to him,' the Gemara can derive from here only that the atonement is achieved through the payment of the Keren (also alluded to by the word 'Asham,' as the Gemara explains) and through the offering of the ram as a Korban Asham. How does the Gemara know that the Chomesh, although it is not the atonement itself, does not prevent the atonement from taking effect when it is not paid?
</p><p>
<b>ANSWER:</b> The <b>AVNEI NEZER</b> (CM 84:10) answers that Rashi addresses this question when he writes in his commentary on the Mishnah (110a, DH Nasan ha'Keren) that the giving of the Chomesh is not Me'akev the offering of the Asham and 'in the end he will give it.' The Avnei Nezer explains that Rashi adds the words 'in the end he will give it' based on the statement of Rava earlier (104a). Rava says that since the thief knew from whom he stole and admitted his theft, his admission is equivalent to saying to the owner that the money will remain in his hands temporarily. In other words, it is considered as though the thief is holding a Pikadon (deposit) for the owner.
</p><p>
Moreover, there is no requirement to travel to a distant land in order to give the Chomesh to the owner. (There is such a requirement for the return of the Keren.) It follows that this is also because the Chomesh which the thief is holding is considered a Pikadon which he is watching for the owner. Accordingly, while the verse states that the one must give the Keren and offer the Asham in order to achieve atonement since the actual giving of the Keren and offering of the Korban is the atonement, the Chomesh essentially is considered to have been given upon admission. As long as the thief indeed intends to give the Chomesh to the owner eventually (as Rashi writes, 'in the end he will give it'), it is as if he has already returned the Chomesh. This is because the Chomesh is not what causes the atonement; it merely would prevent the atonement if it would not be 'given' in some way to the victim. The fact that the Chomesh is already a Pikadon ensures that there is no prevention of the atonement from taking effect.
</p><p>
(See also the <b>MAHARSHA</b> to 110a, and the <b>TOSFOS YOM TOV</b> on Rashi's words, 'in the end he will give it.') (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO TOOK FROM A THIEF</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> If one stole and fed the theft to his
               children, or left it in front of them, they are
               exempt. If it was something was Achrayus, they are
               liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>(Rav Chisda):</font></b> If Shimon stole from Reuven, and Reuven
               did not despair, and Levi ate it, Reuven may collect
               from either one, whomever he wants.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This is because as long as Reuven did not despair,
               it belongs to him. (Also Levi stole from Reuven.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If he left it intact in front of them,
               they are exempt.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rami bar Chama):</font></b> This teaches that heirs are like
               buyers. (They acquire through Shinuy Reshus (change
               of ownership) after despair.)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rava):</font></b> Heirs are unlike buyers. The case is, they
               ate the theft.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question (Seifa):</font></b> If it was something with Acharayus
               they are liable.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This implies that in the Reisha, the theft is
                    still around!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer (Rava):</font></b> I explain the Mishnah like R.
               Oshaya's Beraisa;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Oshaya - Beraisa):</font></b> If Reuven stole and fed
                    the theft to his children, they are exempt. If
                    he left it intact in front of them, they are
                    liable. If not, they are exempt. If he left
                    them property with Acharayus, they are liable.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question (middle clause):</font></b> If the stolen object is
               not intact, they are exempt. This refutes Rav
               Chisda!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer (Rav Chisda):</font></b> The Beraisa discusses after
               despair.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question (middle clause):</font></b> If the stolen object is
               intact, they are liable.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This refutes Rami bar Chama!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer (Rami bar Chama):</font></b> This is before the owner
               despaired.
<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 (10:1):</font></b> The Mishnah discusses after
               despair, and the theft is not intact. If the theft
               is intact, even after despair, they must return it,
               like R. Oshaya's Beraisa. Nowadays that creditors
               collect from Metaltelim (of orphans), they must pay
               from Metaltelim that their father left, whether
               before or after despair, whether or not they ate it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> The Ri says that after despair,
                    even though Reuven can collect from Levi due to
                    R. Noson's law (since Levi's creditor owes
                    Reuven), he does not collect due to the law of
                    theft. Some say that if Shimon pardoned Levi or
                    Levi paid Shimon, Levi has no liability to
                    Reuven.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> They are exempt when the theft is not intact,
               even though there was no Shinuy Reshus. An heir is
               unlike a buyer. The same applies when another ate
               it, since the thief did not sell or give it to him.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 5:4):</font></b> If one transgressed
               and ate theft after despair, he is exempt. If he ate
               before despair and the owner wants to collect from
               him, he may, for it is still in the owner's Reshus.
               If he wants, he may collect from the thief.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> Some say that even if the thief
                    fed it to someone, the owner can collect from
                    whom he wants. The Rambam did not distinguish.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (5):</font></b> If one stole and died, whether he fed
               the theft to his children after despair, or did not
               feed them, rather, sold or lost it, if he left land
               they must pay. They need not pay from Metaltelim,
               for the value of the theft is a debt against the
               thief, and there is no lien on Metaltelim to collect
               a debt.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (6):</font></b> Ge'onim enacted that a creditor collects
               from Metaltelim, even a Milveh Al Peh. Therefore,
               they must pay whether or not they ate, whether or
               not the owner despaired, from land or Metaltelim
               that the thief left.
<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 361:5):</font></b> Shinuy Reshus is only if
               the thief sold or gave it to another.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source:</font></b> Beis Yosef DH v'Lo, citing the Ra'avad.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Gra 2):</font></b> We say that one who saves
                    from troops or bandits, after despair, acquires
                    (114a). Sukah 30b says that if one cuts myrtle
                    from the Nochri's land, he does not acquire,
                    because land cannot be stolen. This shows that
                    Shinuy Reshus applies against the thief's will!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Amudei Esh (in Sedei Eliyahu):</font></b> The Gra means
                    that if Shinuy Reshus applies against the
                    thief's will, we understand why it matters that
                    land cannot be stolen, and the myrtle belongs
                    to the original owner until it is cut. But if
                    Shinuy Reshus requires the thief's will, even
                    if land could be stolen, it would not help to
                    cut the myrtle from the land of the Nochri (who
                    stole the land, without the Nochri's
                    permission)!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> SMA (5):</font></b> If the thief sold or gave it, it is
                    Shinuy Reshus even if the recipient knew that
                    it was stolen. This is unlike the Beis Yosef
                    (369:7).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that if he sold it with Achrayus, or
               gave it by mistake or Bal Korcho (against his will),
               it is not Shinuy Reshus.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (3):</font></b> The Rashba says that through a
                    mistake it is not Shinuy Reshus; the Ba'al
                    ha'Ma'or and Ramban disagree. The Rashba says
                    that Bal Korcho is not Shinuy Reshus; the
                    Rambam and Mechaber disagree.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> R. Akiva Eiger:</font></b> This is when the Achrayus is
                    explicit.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (37:29):</font></b> The Nimukei Yosef says that if
                    the thief sold it with Achrayus, it is as if it
                    is still in his Reshus, so it is not Shinuy
                    Reshus. I disagree. Achrayus does not affect
                    Shinuy Reshus. The Poskim say that despair and
                    Shinuy Reshus acquire. They did not distinguish
                    whether there was Achrayus.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If Shimon stole from Reuven,
               and Levi took it from Shimon's house against his
               will, it is as if he took it from Reuven's house.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (6):</font></b> This is unlike Tosfos (111b DH Gazal),
                    who says that this is Shinuy Reshus.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Reuven may collect from
               either one he wants, or half from each. If Levi paid
               Shimon, or Shimon pardoned Levi, this does not
               exempt Levi, for his liability is only to Reuven. It
               does not matter whether or not Levi knew that Shimon
               stole it. Even if Levi ate it, he pays Reuven.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (6):</font></b> This is when Reuven did not
               despair. If he despaired and then Levi ate it, he is
               exempt. Even though if it were intact, Levi would
               need to return it, now that he ate it, he is exempt.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Shulchan Aruch (7):</font></b> If the thief died and bequeathed
               the theft to his children, it is as if he is alive.
               If the theft is intact and unchanged, they must
               return it even if the owner despaired. If it changed
               and it is intact, they pay its value. If they ate it
               before or after the father died, they are liable if
               it was before despair.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Omar):</font></b> The Poskim rule
                    like Rava, that an heir is unlike a buyer.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (8):</font></b> An heir is the leg (continuation of)
                    his father. He is unlike a buyer.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (9,11):</font></b> This Sa'if is like the Tosefta and
                    Tosfos, who obligate Levi even if Shimon fed
                    him. Sa'if 5 connotes like the Ba'al ha'Ma'or,
                    who obligates only Shimon in this case.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If they ate after despair
               they are exempt, unless their father left property.
               If he left property, even if they ate it after
               despair they must pay. Likewise, if the father sold
               or gave it, if he left property his sons must pay.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (10):</font></b> The father's property was Meshubad
                    from when he stole. The Shulchan Aruch does not
                    distinguish land from Metaltelim, for nowadays
                    even Metaltelim are Meshubad.
<br>

<p>


lvr: 41
dfh: b
trd:
<p>
<b>PEREK HA'GOZEL U'MA'ACHIL</b>
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>TO WHOM DOES THE THEFT BELONG</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven stole and fed the theft to his
          children or left it intact in front of them, and died,
          they are exempt from paying;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it was something with Achrayus (a lender can
               collect it from one who bought from the borrower,
               e.g. land), they are liable (this will be
               explained).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Rav Chisda):</font></b> If Shimon stole from Yehudah,
          and Yehudah did not despair of getting it back, and Levi
          came and ate it, Yehudah may collect from either one,
          whomever he wants.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> As long as Yehudah did not despair, it belongs
          to him. (Also Levi stole from Yehudah.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If Reuven stole and fed the theft
          to his children or left it intact in front of them, and
          died, they are exempt from paying.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This refutes Rav Chisda. (He says that it still
               belongs to the owner!)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> The Mishnah discusses after the
          owner despaired.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #1 (Mishnah):</font></b> If he left it intact in front of
          them, they are exempt.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rami bar Chama):</font></b> This teaches that heirs are like
          buyers. (Inheritance is considered a change of Reshus
          (after there was despair), so they acquire, but their
          father did not acquire.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rava):</font></b> Heirs are unlike buyers. The case is, they ate
          the theft.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Seifa):</font></b> If it was something with Achrayus
          they are liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This implies that in the Reisha, the theft is still
               around!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The Seifa means that if their father
          left to them other property with Achrayus (i.e. land),
          they are liable.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Rebbi taught to his son R. Shimon that the
          Mishnah does not really mean land, rather, an animal that
          he works with;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They must return for the sake of their father's
               honor (lest people see the animal and recall the
               theft).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Rava:</font></b> I explain the Mishnah like R. Oshiya's Beraisa;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Oshaya - Beraisa):</font></b> If Reuven stole and fed
               the theft to his children, they are exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he left it intact in front of them, they are
               liable. If not, they are exempt;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he left them property with Achrayus, they are
               liable.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(R. Oshiya's Beraisa):</font></b> If the stolen object is not
          intact, they are exempt.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> This refutes Rav Chisda!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> This is after the owner despaired.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(R. Oshiya's Beraisa):</font></b> If the stolen object is intact,
          they are liable.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Suggestion:</font></b> This refutes Rami bar Chama!
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer (Rami bar Chama):</font></b> This is before the owner
          despaired.
<br>

<p>

sjt:
</p><p>
<font><b>2) THE OWNER MAY COLLECT FROM THE SECOND THIEF EVEN IF HE DESPAIRED OF RECOVERING WHAT WAS STOLEN</b></font><b>
<br>QUESTION:</b> Rav Chisda discusses a case in which the owner of a stolen object had not yet despaired (Meya'esh) of retrieving his stolen property, when a second thief stole the object from the first thief and consumed the object. Both thieves were caught. Rav Chisda rules that the owner may choose to collect the value of the stolen object from either thief. As long as the owner had no Ye'ush, the stolen object is considered in his domain. <b>RASHI</b> (DH b'Reshusei) explains that the second thief who consumed the stolen property is considered as though he stole it directly from the original owner.
</p><p>
Why does Rav Chisda say specifically that the owner did not have Ye'ush? Even if the owner <i>did</i> have Ye'ush, there is another reason for why he should be able to collect from the second thief. The Gemara earlier quotes the law of Rebbi Nasan (40b) that when one person owes money to a second person., and the second person owes money to a third, the third person may collect his money directly from the first. Similarly, in Rav Chisda's case, even after Ye'ush the owner should be able to collect from the second thief. Since the first thief owes the stolen object to the owner, and the second thief owes the object to the first, the owner should be able to collect directly from the second thief. Why does Rav Chisda make his law contingent on the fact that the owners had not yet been Meya'esh?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>NIMUKEI YOSEF</b> answers that while Rebbi Nasan's law indeed implies that the owner may collect from either thief even when he had Ye'ush, Rav Chisda's point is that when the owner collects from the second thief, he has the right to do so before Ye'ush because of the law of theft, and not merely because of the law of Rebbi Nasan.
</p><p>
Why is it significant to know the mechanism of how the money is collected by the owner? The Nimukei Yosef explains that there is a practical difference to how the money is collected. This difference exists in a case in which the second thief returned the object to the first thief, or if the first thief waived the debt that the second thief owed to him as a result of what he stole from him. In these cases, the owner may not collect from the second thief using Rebbi Nasan's law, since the second thief no longer owes anything to the first thief. However, if the owner may collect because of the law of theft, he still is able to collect from either thief despite the fact that the second thief already settled his 'obligation' towards the first thief. However, the law of theft applies only before the Ye'ush of the owner. Rav Chisda therefore teaches that the owner has more rights to collect from the second thief before Ye'ush because he collects due to repayment of theft, and not just due to the law of Rebbi Nasan.
</p><p>
(b) The <b>BACH</b> explains at length that this answer is not consistent with the opinion of the <b>TUR</b> (CM 361), and he gives a different answer. He proposes that the law of Rebbi Nasan applies only when the object is still intact. However, if it was consumed, the owner may not claim it from the second thief. Rav Chisda discusses a case in which the second thief ate the object. In such a case, if the owner has Ye'ush, he no longer may claim the object due to the law of Rebbi Nasan.
</p><p>
(See the <b>MACHANEH EFRAIM</b> (Hilchos Gezeilah 8) who disagrees with the Bach and maintains that if the object is still intact, the second thief would be obligated to return it to the owner even <i>without</i> the law of Rebbi Nasan. This is because the Gemara (112a) says that if the object is in the same form now as it was in when it was stolen, the thief must return it.) (D. Bloom)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>MUST CHILDREN PAY FOR THEIR FATHER'S TRANSGRESSION?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #2 - Rav Ada bar Ahavah - (Beraisa):</font></b> If Reuven
          collected Ribis, and he died, even if his children know
          that the money was from Ribis, they need not return it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rami bar Chama):</font></b> This teaches that heirs are like
          buyers.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> Really, heirs are not like buyers;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Ribis is different, because it says 'do not take
               from him interest and Ribis (and your brother will
               live with you' - return it to him in order that he
               will live with you;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Torah commanded only the lender, but not his
               son.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Rav Ada bar Ahavah says that Rami bar Chama derived
          from the Beraisa of Ribis that heirs are like buyers. All
          the more so, he may derive this from our Mishnah (the
          heirs may keep the money, even though no verse teaches
          this);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Version #1 says that Rami bar Chama derived from
               our Mishnah that heirs are as buyers. He would not
               derive this from the Beraisa, like Rava's objection.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa #1):</font></b> If one stole and fed his children (what
          he stole), they are exempt;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	If he left the theft in front of them, if they are
          adults, they are liable. If they are minors, they are
          exempt.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	If his adult children say 'we do not know our father's
          dealings with you', they are exempt.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection:</font></b> Why do they exempt themselves by saying
          this?!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Correction (Rava):</font></b> Rather, if they say 'we know our
          father's dealings with you. He did not owe you anything',
          they are exempt.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Beraisa #2):</font></b> If one stole and fed his children, they
          are exempt;
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	If he left the theft in front of them and they ate,
          whether they are adults or minors, they are liable.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Objection:</font></b> Why are minors liable? This is no worse than
          damage, for which they are exempt!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Correction (Rav Papa):</font></b> Rather, if he left the theft in
          front of them and they did not yet eat it, whether they
          are adults or minors, they are liable.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN DOES LIABILITY COME?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven borrowed a cow and died, leaving it
          to his children, they may use it as long as Reuven
          borrowed it for. If it dies through Ones, they are
          exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If they thought it was their father's and slaughtered
          and ate it, they pay a discounted price for the meat (two
          thirds of the standard price).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If Reuven left them property with Achrayus, they are
          liable.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #1:</font></b> This refers to the first law (if it dies
          through Ones, they are exempt).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #2:</font></b> This refers to the second law (if they ate
          it, they pay a discounted price for the meat).
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Version #1 surely agrees to (the law of) Version #2,
          and argues with Rav Papa (below);
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Version #2 argues with Version #1, like Rav Papa;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> If Reuven stole a cow and slaughtered
               it on Shabbos, he pays (five cows), because he was
               liable even before he transgressed Shabbos;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he borrowed a cow and slaughtered it on
               Shabbos, he is exempt, because the theft and
               transgression of Shabbos come simultaneously.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DO WE ACCEPT WITNESSES IN THE DEFENDANT'S ABSENCE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'He will returned the stolen object that he
          stole' it must be like he stole. From here, Chachamim
          learned that if one stole and fed his children, they are
          exempt;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he left the theft in front of them, whether they are
          adults or minors, they are liable;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Sumchus says, adults are liable and minors are exempt.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	The son of R. Yirmiyah's father-in-law (was a minor;
          he) locked the door to prevent R. Yirmiyah from making a
          Chazakah on his father's house (after his father died).
          R. Yirmiyah came before R. Avin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Avin:</font></b> The son is justified. It is his house!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Yirmiyah:</font></b> I have witnesses that I made a
               Chazakah on the house in his father's lifetime (it
               was a gift or sale)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Avin:</font></b> We do not accept witnesses in the
               defendant's absence. A minor is not considered to be
               present!
<br>
<br>

sjt:
<font><b>1) BEIS DIN MAY NOT PROPOSE AN UNUSUAL ARGUMENT ON BEHALF OF ORPHANS</b></font><b>
<br>QUESTION:</b> The Gemara cites a Beraisa that states that if a person stole an object and fed it to his sons, the sons are exempt from paying after their father (the thief) dies. If they did not consume the object and it is still intact, adult children are obligated to return the object to its owner, while minors are exempt. However, if the adult children say to the original owner, 'We do not know what calculations our father made with you,' they are exempt. <b>RASHI</b> (DH v'Ein) explains that the orphans are exempt because they claim that their father may have calculated the value of the stolen object already and paid the owner before he died.
</p><p>
The Gemara asks, why should this claim of the adult orphans exempt them from paying? Rashi (DH Mishum) explains the Gemara's question. Since the orphans admit that their father acquired the object by theft and that they are <i>doubtful</i> about whether their father paid back its value to the owner, their claim should be considered a Shema (uncertain) claim against the owner's Bari (certain) claim, and the rule is that a Bari claim prevails over a Shema claim. Why, then, does the Beraisa say that the orphans' claim exempts them?
</p><p>
Rava answers that the Beraisa should actually read as follows: If the adult sons say, 'We <i>know</i> the calculations our father made with you, and he does not owe you anything,' they are exempt (i.e. they make a Bari claim).
</p><p>
The Gemara here implies that the orphans are not believed with a Shema claim that their father could have made. However, the Gemara in Bava Basra (70b) states otherwise. The Gemara there states that in such a case, Beis Din may present on behalf of the orphans any claim that their father could have made if he was still alive.
</p><p>
The Gemara there states that if a 'Shtar Kis' is presented against orphans, Beis Din argues on behalf of the orphans. This refers to a document which records that a person had deposited his item with the father when he was alive. The owner of the deposit demands the deposit back from the orphans. Beis Din counters on behalf of the orphans that the father may have returned it to before he died. Beis Din makes this claim because the father would have been believed -- with the logic of a 'Migu' -- to claim that he returned the deposit. Since the father would have been believed to say that an Ones (unavoidable loss) happened to the deposit, he is believed to say that he returned it (when there are no witnesses who saw him steal it).
</p><p>
In the case of the Gemara here as well, Beis Din should be able to claim for the orphans what the father could have claimed had he been alive -- that he bought it from the owner after the theft. Why does the Gemara not recognize this as a valid claim which Beis Din can make for the orphans?
</p><p>
<b>ANSWER:</b> The <b>ROSH</b> answers that there is a difference between the case of the deposit in Bava Basra and the case of theft in the Gemara here. It is routine practice for a Shomer to return a deposit, while it is unusual for a thief to buy the object from the owner after he stole it. It is true that had the father himself claimed that he bought the object from the owner after he stole it, he would have been believed because of the 'Migu' that he could have said that he never stole the object. However, since this is an unusual argument -- since a thief does not usually buy the object he stole from the former owner -- it is accepted only when the thief himself makes the claim. Beis Din will does not make such an unusual claim on its own initiative on behalf of the orphans.
</p><p>
(See the <b>BA'AL HA'ME'OR</b> (36b of the pages of the Rif), who also writes that Beis Din makes only probable claims for the orphans, not ones that are farfetched. See also the <b>RAMBAN</b> in Milchamos (as cited by the <b>NIMUKEI YOSEF</b>) who disagrees with the answer of the Rosh and Ba'al ha'Me'or.) (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>PRECEDENCE TO COLLECT LAND</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'> (Rava):</font></b> In the absence of the borrower (Reuven), we
               write an Adrachta to collect land, but not for
               Metaltelim. We are concerned lest Shimon (the
               lender) consume them, and later Reuven will bring
               witnesses discrediting the document, and Shimon will
               not have anything to return to him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Shimon has land, we may write an Adrachta on
                    Reuven's Metaltelim. We are not concerned lest
                    Shimon not have anything to return to him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> Even if he has land, we do not write an
               Adrachta on Metaltelim, lest Shimon cause the land
               to decrease in value.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Pesachim 30b (Abaye):</font></b> When a creditor collects
               (Meshubad property, i.e. he had a lien on it), this
               is retroactive (as if he collected from the time of
               the loan);
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rava):</font></b> He collects from now (not retroactively).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Kesuvos 93b (Mishnah):</font></b> If a man married four women
               and he died, the widows receive their Kesuvos in
               order. The first woman must swear to the second
               (that she did not already receive her Kesuvah), the
               second to the third, and the third to the fourth.
               The fourth receives her Kesuvah without swearing;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> Ben Nanas says, does she profit because she is
               last?! Rather, also she does not collect without
               swearing.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 94a (Shmuel):</font></b> The case is, (after three women
               collected they found out that) one of the husband's
               fields was not really his. The first Tana holds that
               collection out of order is invalid (so there is no
               harm if the fourth woman collects without an oath).
               Ben Nanas holds that it is valid collection.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> All invalidate collection out of
               order. They argue about whether or not we are
               concerned lest the fourth woman decrease the field's
               value.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Abaye):</font></b> (The case is, adult orphans want the fourth
               woman to swear.) They argue about Abaye Kashisha's
               law (that one must swear to orphans to collect from
               them, even if they are adults).
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Ben Nanas holds like Abaye Kashisha. The first
                    Tana does not.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Erchin 7b (Rav Ada bar Ahavah):</font></b> If Reuven had five
               Shekalim, and he said 'Erki Alai', and again said
               'Erki Alai', if he gave four Shekalim for the latter
               Erech and one for the former, he was Yotzei for
               both.
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> All his money is Meshubad to the first Erech. It is
               as if he had no money for the latter. B'Di'eved, the
               money he gave for the latter Erech is valid, just
               like a creditor who collected before earlier
               creditors of the same borrower.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Kesuvos 53a):</font></b> We hold that collection out of
               order is invalid. In Erchin, we say that it is
               valid. Rav Shrirah Gaon says that this is only
               regarding Hekdesh, for Hekdesh does not take from
               Hekdesh. A commoner takes from a commoner. This
               refers to land. Collection of Metaltelim (out of
               order) is valid, for it has no Kol.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Kesuvos 10:11):</font></b> Rav Hai Gaon, R. Chananel and
               the Rif invalidate collection out of order, for the
               Halachah follows Rav Nachman in monetary laws. Also,
               according to Shmuel, Chachamim invalidate it. The
               Halachah follows Chachamim against an individual.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 20:1):</font></b> If Reuven owed many
               people, the earliest debt collects first, from
               Reuven himself or from people who bought his land.
               If a later creditor collected first, we take the
               property from him. This refers to land that Reuven
               had when he borrowed. If he bought land after
               borrowing from many people, even though he wrote to
               all 'what I will acquire is Meshubad to you', there
               is no precedence. Whoever collected it, even the
               last creditor, keeps it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> Some Ge'onim say that collection
                    out of order is valid. The primary opinion
                    holds that it is invalid. In any case if a
                    later creditor collected Beinonis and left
                    Ziburis with the borrower, the collection was
                    valid.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (Tosfos Kesuvos 90a DH Shema):</font></b> Why do we
               say that if a later creditor collected, he keeps it?
               He should be no better than a buyer. An (earlier)
               creditor can take from a buyer!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #1 (Tosfos):</font></b> Indeed, Chachamim made a later
               creditor better than a buyer. This is an enactment,
               lest people be dissuaded from lending. Even though
               the earlier creditor loses, people will not be
               dissuaded, for one can collect first. In Erchin,
               what he paid for the latter Erech is valid, just
               like a later creditor who collected, even though
               there is no reason to enact lest lenders be
               dissuaded. There, since both creditors are Hekdesh,
               we are not concerned. Alternatively, that refers to
               Metaltelim. If a later creditor collected land, he
               does not keep it.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2 (Ramban Kesuvos 90a):</font></b> Each Erech is a
               Milveh Al Peh. Whoever cannot be Toref Meshubadim
               cannot be Toref from one who collected a debt.
<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 104:1):</font></b> If Reuven owed many
               people, the one whose document has the earliest
               Kinyan collects first, from land or Metaltelim. This
               is even if the loan with the later Kinyan was due to
               be paid before the earlier loan. This applies to
               collecting from Reuven or from people who bought his
               land. If a later creditor collected land first, even
               if it was in front of the earlier creditor (Levi)
               and Levi was quiet, we take the property from him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Kosav ha'Rashba):</font></b> The Rashba
                    (929) says that nowadays people are Meshabed
                    Metaltelim Agav land, so if a creditor
                    collected and left Metaltelim (for earlier
                    creditors to collect), he keeps it. Collection
                    is invalid only when an earlier creditor will
                    lose his debt, but not if he can collect, even
                    from Ziburis. If he left a loan document with
                    the borrower, it seems that we do not collect
                    from it, for it has no intrinsic value, but
                    great Poskim collect from it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Beis Yosef (DH u'Mah she'Chosav Rabeinu Afilu):
                    The Rashba (1111) and Sefer ha'Terumos say that
                    the Halachah follows Rava, who says that a
                    creditor collects from now and onwards. This
                    refers to a lender who sold the borrower's
                    properly before the collection date came. All
                    agree that the lien is from when the Kinyan was
                    made, or from when he received the document,
                    even if no Kinyan was made. R. Yerucham says
                    that a stipulation to a later creditor 'you may
                    collect whenever you want' does not help.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH u'Mah she'Chosav v'Im):</font></b> If a
                    later creditor collected and sold the property
                    to one from whom it cannot be collected, e.g. a
                    Nochri or someone unknown, he is liable to pay
                    due to Garmi, for damaging property Meshubad to
                    someone else.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If a later creditor comes to collect land, we
               help him collect. When an earlier creditor comes, he
               can take what the later creditor collected.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz:</font></b> We are concerned lest a creditor ruin the
                    land only when (the borrower is away and)
                    perhaps he will show that the document was
                    forged or paid.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DOES A LOAN DOCUMENT COLLECT BEFORE A MILVEH AL PEH? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (Beraisa):</font></b> (If he left the theft in
               front of them) whether they are adults or minors,
               they are liable. (This shows that we accept
               testimony about minors!)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (R. Avin):</font></b> Sumchus argues, and exempts
               minors (because we do not accept testimony against
               them).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> R. Yirmiyah:</font></b> Do you hold like Sumchus, to deprive
               me of my house?
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	The case came to R. Avahu.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Avahu:</font></b> R. Oshiya ruled that if a child took
               someone's slaves and claimed them, we do not wait
               until he matures. Rather, we return the slaves
               immediately. When the child matures, he can bring
               witnesses.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> There is different, for the child had no
          Chazakah on the slaves. Here, the child is in place of
          his father, who had a Chazakah on the house!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> We accept witnesses in the defendant's
          absence.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection (R. Yochanan):</font></b> We do not accept witnesses in
          the defendant's absence!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (R. Yosi bar Chanina):</font></b> If the claiming party is
          sick, or if the witnesses must leave town, and the
          defendant was summonsed and did not come, we accept
          witnesses in his absence.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rav Yehudah citing Shmuel):</font></b> We accept witnesses in the
          defendant's absence.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Mar Ukva):</font></b> Shmuel said this only when they opened the
          case (the litigants made their claims in front of Beis
          Din), one side later brought witnesses, and the other
          side did not come;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they did not open the case, he can say that he
               wants to go to the great Beis Din (in Eretz
               Yisrael).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Even if the case was opened, the defendant
          can say that he wants to go to the great Beis Din!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> The case is, the great Beis Din sent a
          letter saying that the local Beis Din should judge the
          case.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Rav):</font></b> We validate documents in the absence of a party
          to the document;
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> We do not validate documents in the
          absence of a party to the document.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Rav Sheshes):</font></b> R. Yochanan learns from '(if) testimony
          was given (that an ox gored) in front of the owner, and
          he will not guard it' - the owner must be there.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>COLLECTION FROM ONE WHO DOES NOT PAY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> The Halachah is, we validate documents in the
          absence of a party to the document (Reuven), and even if
          he protests;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he requests time to find witnesses that can
          discredit the document, we grant him time.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If he does not come (with witnesses nor to pay), we
          warn him three times, Monday, Thursday, and Monday;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he still does not come, we write a Pesichah
               (document of excommunication).
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	For 90 days, we do not confiscate his property (to pay
          his debt).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first 30 days, we assume that he is trying to
               borrow the money.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The next 30 days, we suppose that perhaps he is
               trying to sell things to raise the money.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The last 30 days, we suppose that perhaps he
               found a buyer, but the buyer has not yet raised the
               money.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	If he does not come within 90 days, we write an
          Adrachta (a document authorizing the lender (Shimon) to
          take Reuven's property for payment).
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	All this applies only if Reuven said that he would
          come. If he said that he would not come, we write an
          Adrachta immediately.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	All this applies only regarding a loan. Regarding a
          deposit, we write an Adrachta immediately.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	We write an Adrachta only against land, but not on
          Metaltelim. We are concerned lest Shimon consume them,
          and Reuven will later bring witnesses discrediting the
          document, and Shimon will not have anything to return to
          him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon has land, we may write an Adrachta on
               Reuven's Metaltelim. We are not concerned lest
               Shimon not have anything to return to him.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> Even if he has land, we do not write an
          Adrachta on Metaltelim, lest Shimon cause the land to
          decrease in value.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	We do not write an Adrachta on Reuven's Metaltelim
          before informing him, but only if he is nearby;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even if he is far away, but we can inform him
               through relatives or caravans that will go to where
               he is and return, we wait up to 12 months to inform
               him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Ravina made Acha wait 12 months before writing an
               Adrachta for him, until a caravan went to and
               returned from Bei Chuzai.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rejection:</font></b> Acha was an exception. He was powerful. When
          he receives an Adrachta, it is impossible to retrieve
          property from him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Normally, we wait (on Monday) only if a Shali'ach
               can reach Reuven on Tuesday and return on Wednesday,
               so Beis Din can finish the case on Thursday.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Ravina):</font></b> A Shali'ach of Beis Din is believed like two
          witnesses.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only regarding excommunication (if he
               says that Reuven refuses to come), but not to write
               a Pesichah, for this will cost Reuven money. He must
               pay the scribe when he wants to end the
               excommunication.
<br>

<p>

sjt:
</p><p>
<font><b>2) WHEN WITNESSES ARE ACCEPTED EVEN IN THE ABSENCE OF THE DEFENDANT</b></font><b>
<br>QUESTION:</b> Rav Ashi says in the name of Rebbi Shabsai that Beis Din may accept witnesses even in the absence of the defendant. Rebbi Yosi bar Chanina says that Rebbi Shabsai refers to a case in which the defendant or witnesses are ill. <b>RASHI</b> (DH Cholim) explains that the witnesses are dangerously ill, and if the case would not be judged now it might never be judged. Alternatively, the case involves witnesses who planned to travel overseas. The Beis Din summoned the defendant to Beis Din but he did not appear. In extenuating circumstances such as these, Beis Din may accept the testimony of witnesses even though the defendant is absent.
</p><p>
The Gemara quotes Rav who says that witnesses may perform Kiyum for a Shtar even when the defendant is absent. Rebbi Yochanan disagrees and says that one may not perform Kiyum in the absence of the defendant. Rav Sheshes explains the source of Rebbi Yochanan's ruling. The Torah says discusses the law of an ox which has gored on three occasions (Mu'ad) and says, '... if its owner was warned (by witnesses) but did not watch it properly' (Shemos 21:29). This implies that the owner of the ox must come and stand next to his ox at the time Beis Din pronounces the ox to be a Shor Mu'ad.
</p><p>
If the law that Beis Din may not accept witnesses in the absence of the defendant is a Torah law derived from a verse, how can it be pushed aside simply because the defendant or witnesses are ill or the witnesses wish to travel abroad?
</p><p>
<b>ANSWER:</b> The <b>RASHBA</b> answers that the subject of the verse which discusses the law of the goring ox is in the category of Dinei Nefashos, laws of capital punishment, because the ox will be stoned to death if it killed a person. Only in cases of Dinei Nefashos does the Torah not permit Beis Din to accept witnesses when the defendant is absent. In contrast, in cases of Dinei Mamonos, monetary law, the requirement that the defendant be presents is only mid'Rabanan. Accordingly, when the Gemara quotes this verse as the source, it is not the actual source for this law in monetary cases but the source for the law in cases of life and death. Therefore, in extenuating circumstances such as illness, the Rabanan suspended their requirement that the defendant be present.
</p><p>
A similar explanation is given by the <b>NETZIV</b> in <b>MEROMEI SADEH</b>. He explains that the Torah's requirement that the owner be present when the witnesses testify that his ox is a Shor Mu'ad is a special law based on the verse, 'if its owner was warned (by witnesses)....' This means that unlike an ordinary monetary case in which the owner's admission would suffice to obligate him, the ox becomes a Mu'ad only when witnesses testify in front of the owner. In all other monetary cases, witnesses do not fulfill any special role other than establishing the verity of the facts. Accordingly, the defendant would not need to be present if not for the enactment of the Rabanan that testimony be accepted only in the presence of the defendant even in monetary cases. (D. Bloom)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HOW AND WHEN WE ISSUE A SUMMONS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Ravina):</font></b> We rely on a woman or neighbors to inform
          Reuven that he must come to Beis Din. If he does not come
          in time, we excommunicate him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if Reuven is not in the city. If he
               is, we do not rely on them, lest they not bother to
               tell him, for they assume that a Shali'ach of Beis
               Din will tell him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is only if Reuven does not regularly pass by
               Beis Din. If he does, a woman or neighbor might
               assume that Beis Din told him.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This is only if Reuven normally returns home each
               day. If not, we are concerned lest they forget to
               tell him.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> If a Pesichah was written against Reuven for
          not coming to Beis Din, we do not tear it until he comes
          to Beis Din;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it was written for not complying with the
               verdict, we do not tear it until he complies with
               the verdict.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> This is wrong. Once he agrees to comply with
          the verdict, we tear it up.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Chisda):</font></b> We summons someone to come to Beis Din on
          Monday. If he does not come, we summons him on Thursday,
          then again on Monday;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We do not write the Pesichah until Tuesday
               (perhaps he will come at the end of the day on
               Monday).
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Rav Kahana summonsed a woman in the evening. The next
          morning, he wrote a Pesichah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Asi:</font></b> Rav Chisda said that we write only after
               summonsing on Monday, Thursday, and Monday!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Kahana:</font></b> He refers to a man, who is often
               away. Women are in town, so failure to come
               immediately is rebellion.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> We do not summons people to come in
          Nisan, Tishrei, Erev Yom Tov or Erev Shabbos (for people
          are busy then);
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	We may summons in Nisan or Tishrei to come after Nisan
          or Tishrei;
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	We do not summons people on Erev Shabbos to come after
          Shabbos.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Since he is busy preparing for Shabbos, he will
          forget.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> We do not summons people when they come
          to hear the Chacham on Shabbos or in the month before the
          festivals.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Nowadays, people pretend that they came to hear
               the Chacham (to avoid being summonsed). If Beis Din
               believes that this is the case, they give no
               exemption.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN CHILDREN MUST RETURN THEIR FATHER'S THEFT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven stole something with Achrayus
          (e.g. land) and died (leaving it to his children), they
          must return it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rebbi:</font></b> This refers not only to land. Even if he stole
          an animal to work with it, they must return it, due to
          their father's honor (lest it remind people of the
          theft).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Kahana):</font></b> What is the law regarding a bed
          or table to recline or eat on?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav):</font></b> This is like an animal to work with it.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE LAW OF THE KINGDOM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One may not change coins with or take
          Tzedakah from a tax collector (we assume that his money
          was stolen), but one may take from (the collector's own
          money from) his house or in the market.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> One may take change from a tax
          collector when paying the tax.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #1 (Mishnah):</font></b> From a tax collector...
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Shmuel taught that the law of the kingdom is
          binding! (What he takes is not theft!)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Rav Chanina bar Kahana):</font></b> The Mishnah
          discusses a tax collector who takes as much as he wants.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Tana d'Vei R. Yishmael):</font></b> The Mishnah
          discusses a self-appointed tax collector.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #2 (Mishnah):</font></b> One may not wear Shatnez, even on
          top of 10 layers of clothing, to evade the tax.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	The Mishnah is not like R. Akiva.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> It is forbidden to evade the tax;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon says, R. Akiva permits (wearing
               Shatnez) to evade the tax.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> We understand the argument about Shatnez. The
          first Tana forbids Davar she'Eino Miskaven (he does not
          intend to benefit from wearing Shatnez), and R. Akiva
          permits;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, all should forbid to evade the tax!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Shmuel):</font></b> The law of the kingdom is binding.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1 (Rav Chanina bar Kahana):</font></b> The Beraisa
          discusses a tax collector who takes as much as he wants.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2 (Tana d'Vei R. Yishmael):</font></b> It discusses a
          self-appointed tax collector.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Version #3 (Mishnah):</font></b> We may falsely vow to murderers,
          extortionists and tax collectors, and say that something
          is Terumah or belongs to the king.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Why may we lie to tax collectors? Shmuel
          taught that the law of the kingdom is binding!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #1 (Rav Chanina bar Kahana):</font></b> The Mishnah
          discusses a tax collector who takes as much as he wants.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #2 (Tana d'Vei R. Yishmael):</font></b> The Mishnah
          discusses a self-appointed tax collector.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #3 (Rav Ashi):</font></b> The Mishnah discusses a Nochri
          tax collector.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yishmael):</font></b> If a Yisrael and a
               Nochri (extortionist - some texts deletes this) came
               for judgment:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Torah law favors the Yisrael, we rule
                    according to Torah law. If Nochri law favors
                    the Yisrael, we rule according to Nochri law.
                    If neither favors the Yisrael, we seek a ruse
                    to exempt the Yisrael;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Akiva says, we may not seek a ruse. This is
               not Kidush Hash-m (sanctification of His name)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference:</font></b> If not for Kidush Hash-m, we could use
               a ruse! (end of Version #3)
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>STEALING FROM NOCHRIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> One may not steal from Nochrim!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Shimon citing R. Akiva):</font></b> The law of
               a Yisrael slave sold to a Nochri teaches that one
               may not steal from Nochrim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'After he is sold, he will have redemption' - we
               may not forcibly take him without paying.
<br>
<br>

sjt:
<font><b>1) WEARING SHA'ATNEZ ON TOP OF OTHER CLOTHING</b></font><b>
<br>QUESTION:</b> The Gemara cites the Mishnah in Kil'ayim (9:2) which teaches that one may not wear clothing of Kil'ayim (Sha'atnez), even over ten other items of clothing, in order to smuggle the clothing through customs. <b>RASHI</b> (DH Kedai) explains that wearing such clothing is forbidden even though he does not intend to derive benefit from it, but wears it only in order to avoid customs.
</p><p>
The Gemara asserts that the Mishnah there does not follow the view of Rebbi Akiva in the Beraisa. In the Beraisa, the Tana Kama states that one is forbidden from smuggling Kil'ayim through customs in this manner, while Rebbi Shimon in the name of Rebbi Akiva permits it.
</p><p>
(See the <b>RAV BETZALEL RENSBURG</b> (in Hagahos) who proves that the Beraisa clearly refers to a case of Kil'ayim, even though the Beraisa does not explicitly say so. Also, the Gemara explains that one certainly must observe the law of the land. Accordingly, it must be that the case in the Beraisa involves a customs officer who charges an unlimited amount of taxes, according to his whim, or to a customs officer who was not appointed by the king, even if he takes only a set percentage, for otherwise one would not be allowed to avoid paying the customs tax.)
</p><p>
The Gemara explains the dispute between the Tana Kama and Rebbi Akiva. Rebbi Akiva maintains that a 'Davar she'Eino Miskaven' is permitted. Therefore, one is permitted to wear clothing of Sha'atnez when he has not intention to derive benefit from the clothing but wears them only to avoid customs. The Tana Kama maintains that a 'Davar she'Eino Miskaven' is forbidden, and therefore one may not wear clothing of Sha'atnez even when he has no intention to benefit from them.
</p><p>
<b>TOSFOS</b> (DH u'Mar) explains that Rebbi Akiva understands that in such a case one is permitted to wear clothing of Sha'atnez in a normal fashion. He is not required to carry the Sha'atnez on his shoulders.
</p><p>
Rebbi Akiva's position here seems to contradict a common principle (see Shabbos 75a) -- that even according to the opinion that maintains that a 'Davar she'Eino Miskaven' is permitted, it is permitted only when the actual transgression might not occur. If, however, it is inevitable that the transgression will occur, it is a 'Pesik Reishei' and is forbidden, even if he has no intention to do the act. Why, then, does Rebbi Akiva permit one to wear clothing of Sha'atnez through customs because it is a 'Davar she'Eino Miskaven'? Since he clearly transgresses the prohibition of Sha'atnez, his intentions should not matter.
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> in Pesachim (25b, DH Lo) and in Shabbos (29b, DH u'Vilvad) explains that when Rebbi Akiva permits one to wear a garment of Sha'atnez when he does not intend to benefit from it, he refers specifically to a case in which one wears the garment in a way that he <i>avoids</i> benefiting from the garment (for example, he wears it only on part of his body, or he wears other clothing which provides him with protection from the elements). Since there is no certainty that he will benefit from the garment of Sha'atnez, his act is not a Pesik Reishei. If, however, there would be no way to avoid benefiting from the garment of Sha'atnez, one would not be permitted to wear it even with no intent to benefit from it, because the benefit would be a Pesik Reishei.
</p><p>
(b) The <b>RAN</b> in Chulin (32a of the pages of the Rif) explains that the case of the garment of Sha'atnez indeed are cases in which one certainly will benefit from the forbidden item, as the benefit is unavoidable. However, one is permitted to benefit from the item even though it is a Pesik Reishei, because the Pesik Reishei involves only <i>Hana'ah</i>, intangible pleasure, and the person has no intention to derive the benefit. In any other case of a forbidden item, the benefit that is a Pesik Reishei is prohibited.
</p><p>
The Ran does not mean that when one has no intention to benefit from the item, it is not considered Hana'ah (and that one is considered as though he benefits only when he so intends). If that would be the Ran's logic, then even the Tana Kama should agree that one may derive benefit from Sha'atnez without intent, and the matter would be unrelated to the topic of 'Davar she'Eino Miskaven.' Rather, the Ran means that although he appears as though he definitely derives pleasure from the item, as long as he does not have intent to derive that pleasure it remains <i>uncertain</i> that he will have pleasure. Why is it uncertain? Since he does not intend to have pleasure, it is <i>possible</i> that he indeed will not experience pleasure. Acts that involve only an Isur Hana'ah can never be considered a Pesik Reishei, because one may avoid deriving pleasure altogether. The act is therefore a normal case of a 'Davar she'Eino Miskaven.'
</p><p>
(c) <b>RABEINU CHAIM HA'LEVI SOLOVEITCHIK</b> (Hilchos Shabbos 10:17) explains the Ran differently. He suggests that even if one definitely will experience pleasure from the forbidden item, it still may be permitted because of the laws of 'Davar she'Eino Miskaven.' The fact that one will definitely benefit from the item does not always make that act forbidden. For example, the <b>ARUCH</b> (Erech 'Pesak,' see Tosfos to Shabbos 103a, DH Lo Tzerichah, and Kesuvos 6a, DH Hai) rules that a forbidden act which is a Pesik Reishei 'd'Lo Nicha Lei,' which a person does not want, is permitted, even though it will definitely occur as a result of the person's action. It is permitted because he has no intention to do the forbidden act, <i>and</i> he has absolutely no desire for it to occur. Similarly, the Ran means that a Pesik Reishei of an Isur Hana'ah is judged as a normal 'Davar she'Eino Miskaven' and is permitted (according to the view that a Davar she'Eino Miskaven is permitted).
</p><p>
This approach may be understood as follows. The reason why a Pesik Reishei is normally prohibited is that the person, to some degree, <i>wants</i> the forbidden act to occur. Since he has an interest in the by-product of the forbidden act, and the forbidden act will definitely occur as a result of the permitted act, the person is considered as though he intends for the forbidden act to occur. In the case of an Isur Hana'ah, however, this logic does not apply. The person's interest in the by-product (the Hana'ah) that comes from the forbidden act is not concrete enough to assume that he intends to perform the forbidden act in order to obtain that by-product. Therefore, his act remains a 'Davar she'Eino Miskaven' under all circumstances. (M. Kornfeld)
</p><p>
(See also <b>PISCHEI TESHUVAH</b> (YD 301:5) in the name of the <b>MIRKEVES HA'MISHNAH</b>, and <b>KOVETZ SHI'URIM</b> 2:23. See also Insights to Pesachim 26:1.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MAY ONE SWINDLE A NOCHRI?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One may not send a thigh to a Nochri (without
               removing the Gid), lest another Yisrael see and buy
               it from the Nochri (assuming that it is permitted).
               Alternatively, it is Geneivas Da'as (deception. The
               Nochri thinks that Reuven gave him something Reuven
               himself would eat.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Shmuel):</font></b> It is forbidden to deceive people, even
               Nochrim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Bava Kama 113a (Mishnah):</font></b> We may falsely vow to tax
               collectors.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Shmuel taught that the law of the kingdom
               is binding!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #1 (Rav Chanina bar Kahana):</font></b> The Mishnah
               discusses a tax collector who takes as much as he
               wants.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2 (Tana d'Vei R. Yishmael):</font></b> It discusses a
               self-appointed tax collector.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #3 (Rav Ashi):</font></b> It discusses a Nochri tax
               collector.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beraisa - R. Yishmael):</font></b> If a Yisrael and a
                    Nochri [extortionist] came for judgment, If
                    Torah law favors the Yisrael, we rule like
                    Torah law. If Nochri law favors the Yisrael, we
                    rule like Nochri law. If neither favors the
                    Yisrael, we seek a ruse;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Akiva forbids. A ruse is not Kidush Hash-m!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> If not for Kidush Hash-m, R. Akiva would
               permit a ruse. One may not steal from Nochrim!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Shimon citing R. Akiva):</font></b> We learn
                    that Gezel Nochri is forbidden from 'he (a
                    Yisrael slave sold to a Nochri) will have
                    redemption' - we may not forcibly take him
                    without paying.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps he may trick him!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rejection:</font></b> 'V'Chishev Im Konehu' - he will
                    calculate with the buyer, i.e. precisely.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer (Rava):</font></b> One may not steal from a Nochri, but
               one may use a ruse to evade paying a debt to a
               Nochri.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question (Abaye):</font></b> One must pay the proper redemption
               to a Nochri, even though this is like a debt!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer:</font></b> Rava holds that a Yisrael slave is bodily
               owned by his master (for the period of service, so
               to forcibly take him is outright theft).
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Shmuel):</font></b> If the Nochri erred, it is permitted (to
               keep it).
<br>        <b>  <b><font color='darkgreen'>13. </font></b></b> A Kusi (thought that he) sold a copper bucket to
               Shmuel for four Zuz. Really, it was gold. Shmuel
               covered up a Zuz. The Kusi did not notice.
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b> Rav Kahana bought 120 Kelim from a Kusi for 100. He
               paid only 99, and said him 'I rely on you.' (Some
               explain that the Kusi said this to Rav Kahana.)
<br>        <b>  <b><font color='darkgreen'>15. </font></b></b> Ravina bought a date tree in partnership with a
               Kusi. Each would take half the wood. He told his
               servant to take from the trunk (before the Kusi
               takes), because the Kusi only looks at the number of
               logs, not the thickness.
<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 (10:12):</font></b> The Halachah follows Rav Ashi.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> One may uproot a Nochri's loan. Evading the
               tax is like uprooting his loan.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 1:2):</font></b> Mid'Oraisa, one may
               not steal any amount, or be Oshek even a Nochri
               idolator. If one did, he must return it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Kesef Mishneh):</font></b> It says 'Lo Sa'asok
                    <i>Re'echa</i>', to exclude a Nochri! Also, the
                    Rambam explains that Oshek is uprooting a loan
                    or wages that he owes. The Gemara permits this!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Kesef Mishneh):</font></b> The Rambam holds like
                    Rashi, that uprooting a loan that is not total
                    theft is permitted when there is no Chilul
                    Hash-m, e.g. he tells the Nochri's heir 'I paid
                    your father.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (11:4):</font></b> A mistake of a Nochri is permitted,
               if he himself erred. One may not trick him.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (5):</font></b> It is permitted if a Nochri erred in the
               calculation. The Yisrael must say 'I rely on your
               calculation. I don't know; I give what you tell me.'
               If he does not say this it is forbidden, lest the
               Nochri intends to check him, and it will be Chilul
               Hash-m.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Maimoniyos (2):</font></b> R. Chananel and Avi
                    ha'Ezri rule similarly. One may not even
                    deceive a Nochri (Chulin 94a)!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rambam (Hilchos Geneivah 7:8):</font></b> One may not deceive a 
               Nochri about a calculation - 'he will calculate
               (precisely) with the master', even if the Nochri is
               under your rule.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Yam Shel Shlomo (Bava Kama 10:20):</font></b>  Rashi explains
               that Shmuel bought a gold bucket in lieu of a copper
               bucket, and also withheld one Zuz from the price.
               Also Tosfos and the Tur permit tricking a Nochri if
               he will not notice. I disagree. We permit only when
               he himself erred! One may uproot a loan, i.e. a tax
               or debt. To pay less than the price is like theft,
               like taking by force. Also, it is forbidden due to
               Chilul Hash-m. Perhaps the Nochri intends to check,
               like the Rambam says! Rather, the Aruch and Ran
               explain that Shmuel gave an <i>extra</i> coin to the
               Nochri, so he would rejoice and go quickly (and not
               realize that he sold a gold bucket). It was
               permitted, for the Nochri erred by himself. Rashi
               must explain that since he acquired the bucket
               through Meshichah, the price was like a debt, which
               one may uproot. He agrees that one may not trick the
               Nochri into giving more Kelim or money than he
               should, even without Chilul Hash-m. In Hilchos
               Geneivah, the Rambam forbids tricking a Nochri about
               a calculation. He learns from 'v'Chishev Im Konehu',
               and does not mention Chilul Hash-m. In Hilchos
               Gezeilah, he forbids lest the Nochri check and there
               will be Chilul Hash-m. He does not bring the verse.
               This is like I explained. We learn from the verse
               Gezel Nochri, for a master bodily acquires an Eved
               Ivri. The Gemara is difficult for Tosfos. We
               inferred that R. Akiva would permit a ruse if not
               for Kidush Hash-m, and asked from Eved Ivri.
               According to Tosfos, there is concern for Chilul
               Hash-m also regarding Eved Ivri (the Nochri is
               aware)! Rather, the verse forbids deceiving a Nochri
               even if he will not know. Ravina told his servant to
               take the thick branches, i.e. before the Kusi made a
               proper Kinyan. After this, one may not take a bigger
               share, for it is Gezel, and one may not trick him.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rema (CM 348:2):</font></b> A mistake of a Nochri is permitted,
               e.g. to deceive him about a calculation or to uproot
               his loan, as long as he will not find out, and there
               is no Chilul Hash-m. Some forbid deceiving him, but
               if he himself erred, it is permitted.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Bach (2 DH Kosvu):</font></b> Tosfos (113b DH Yachol) says
                    in the name of the Ri and Aruch says that even
                    though a Nochri's mistake is permitted, one may
                    not deceive a Nochri who merely pretends not to
                    realize.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (6):</font></b> The latter opinion learns from the
                    fact that even Geneivas Da'as of a Nochri is
                    forbidden.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (CM 13):</font></b> The Rambam learns from Rav Kahana
                    that the Yisrael must say 'I rely on you.' The
                    Rema omitted this. He learns from Shmuel and
                    Ravina, and explains that Rav Kahana was Midas
                    Chasidus.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Yam Shel Shlomo (10:18):</font></b> Rashi explained that
                    we seek a ruse to exempt the Yisrael, i.e. when
                    the Nochri claimed from him. This is uprooting
                    a debt. We do not seek a ruse to allow a
                    Yisrael to collect from a Nochri. That is
                    theft!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Pischei Teshuvah (4):</font></b> Sha'ar Mishpat (2) says
                    that if a Nochri gave money to Levi to buy
                    merchandise and Levi profitted with it, even
                    though l'Chatchilah it is no less than Geneivas
                    Da'as and it is forbidden, he need not return
                    it. Since Shlichus does not apply to Nochrim
                    (Rema OC 450:6), it is as if Levi bought for
                    himself and profitted from his own money.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>GEZEL NOCHRI </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps the Nochri can demand more
               than he is entitled to! (Rashi; Tosfos - perhaps one
               may trick the Nochri and underpay!)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> 'He will calculate with the master' -
               he will make a precise calculation with the master.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yosef):</font></b> This Beraisa refers to a Ger
          Toshav, but one may steal from a Nochri.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> The same verse discusses both a 
          Nochri and a Ger Toshav!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> '(A Eved Ivri will be sold) to a Ger'
               does not refer to a convert, for it says 'to a Ger
               Toshav';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'The family of a Ger' refers to a Nochri;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> 'L'Eker' is one sold to service the image itself!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> It is forbidden to steal from a
          Nochri, but one may use a ruse to evade paying a debt to
          a Nochri.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> But one must pay the proper
          redemption to a Nochri, even though this is like a debt!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> We know that Rava holds that a Yisrael slave is
          bodily owned by his master (for the period of service -
          therefore, to forcibly take him without paying the proper
          amount is outright theft).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Bivi bar Gidal):</font></b> It is forbidden to steal from a
          Nochri, but one may keep an Aveidah of a Nochri.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> One may not steal from a Nochri. We learn
          from 'you will consume all those that Hash-m gives to
          you';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> You are permitted (to steal from them) only when
               you conquer them in war.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Chama bar Gurya):</font></b> One may keep an Aveidah of a
          Nochri. We learn from 'for any Aveidah of your brother';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> You return an Aveidah of your brother, but not an
               Aveidah of a Nochri.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps that only exempts one from taking the
          object to return it. What is the source that one who took
          it may keep it?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> 'And you found it' connotes that he
          already picked it up (and still, you must return only to
          your brother).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Beraisa - R. Pinchas ben Ya'ir):</font></b> If desecration of
          Hashem's name will result, even keeping a Nochri's
          Aveidah is forbidden.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> If the Nochri erred, one may take advantage
          of this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Kusi (thought that he) sold a copper Kli to
               Shmuel. Really, it was gold;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Further, Shmuel only paid three, in place of
               four. The Kusi did not notice.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	Rav Kahana bought 120 Kelim from a Kusi for 100. He
          paid only 99, and told him 'I rely on you (to verify that
          I paid correctly.' Some explain that the Kusi told Rav
          Kahana 'I rely on you.')
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	Ravina bought a date tree in partnership with a Kusi,
          each would take half the wood. He told his servant to
          take from the trunk (before the Kusi takes), because the
          Kusi only looks at the number of logs, not the thickness.
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	Rav Ashi was walking; he saw some grape clusters
          hanging on vines in an orchard. He told his servant 'see
          who owns them. If it is a Kusi, bring them to me. If it
          is a Yisrael, do not.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The owner, a Kusi, heard this. He angrily asked
               'may you steal from Kusim?!'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Ashi:</font></b> (I did not want to take for free.) A
               Kusi would accept money for them, but a Yisrael
               would not.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>THE LAW OF THE KINGDOM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> The law of the kingdom is binding.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Support (Rava):</font></b> Surely this is true. The kingdom cuts
          trees to make bridges, and we use them! (If the kingdom's
          law were not valid, the bridges would be stolen property,
          and we could not use them!)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> Perhaps we may use them because the
          owners despaired from getting back their wood!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> If the kingdom's law were not valid, the
          despair would not take effect (since the logs are in
          front of us)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> (Even if the kingdom's law is valid, why may
          we use them?) The trees are not cut like the king says!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The king says to cut some from every valley. The
               cutters take them all from one valley!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Sheluchim of the king are like the king. They
          need not exert themselves to take from each valley;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Members of the valley they take from are entitled
               to demand compensation from the other valleys. If
               they did not do so, they inflicted the loss upon
               themselves!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rava):</font></b> If there were partners in grain, and the tax
          collector found one of them with his grain and took the
          taxes, this was on behalf of all the partners, and they
          must compensate him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This refers only to a partner. The tax collector
               has no right to take taxes on the owner's grain from
               the sharecropper's portion (if he does, it is
               theft).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rava):</font></b> A (Yisrael) tax collector may (forcibly) take a
          security from someone for the tax owed by someone of the
          same city.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This applies only to this year's land and head
               taxes, but not from a previous year (for which the
               king has already received the tax. What is collected
               from now on (for last year) belongs to the tax
               collector. He may not forcibly take a security from
               Ploni for what Almoni owes.
<br><b>
<br></b><b><b><font color='blue'>6) </font></b><font color='blue'>DEALINGS WITH NOCHRIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> One may not buy animals from Nochrim who are
          paid to fertilize fields with their animals, inside the
          Techum (outskirts) of the city.
<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> Animals of Yisraelim get mixed with their
          animals.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rava):</font></b> One may buy animals from Nochrim who fertilize
          fields outside the Techum.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Ravina):</font></b> If the owners are chasing after them, even
          outside the Techum is forbidden.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rava):</font></b> If a Yisrael testifies for a Kusi (without the
          Kusi requesting him to - the Gra deletes this from the
          text) in a Kusi court against a Yisrael, we excommunicate
          him.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Their courts make someone pay according to one
          witness.
<br>

<p>

sjt:
</p><p>
<font><b>2) STOLEN ANIMALS AND STOLEN FERTILIZER</b></font><b>
<br>OPINIONS:</b> Rava rules that 'one may not buy' from Nochrim who use their animals to fertilize fields for pay inside the Techum (boundary) of a city. What exactly may one not buy from these Nochrim?
</p><p>
(a) <b>RASHI</b> (DH Asur) explains that Rava rules that one may not buy <i>animals</i> from the Nochrim because the Nochrim are suspected of stealing animals from Jews while making their rounds within the city. However, if they work with the animals and the dung outside of the Techum, one may buy animals from them.
</p><p>
The <b>RAMAH</b> agrees with Rashi. He adds that the Nochri's theft of the animals usually occurs on Shabbos. Since the Jewish animals are not watched so well on Shabbos, the Nochrim are easily able to absorb the animals into their flock on Shabbos.
</p><p>
The <b>RASHBA</b> questions Rashi's explanation. Since most of the animals presumably belong to the Nochrim, one should follow the Rov (majority) of the animals and not be concerned about the minority of animals that might belong to a Jew inside the town. Even if one knows that the Nochri who is selling the animal is a thief, one nevertheless is permitted to buy from him. Rav later (119a) explicitly says that when one knows that most of the property in a person's possession belongs to him, he is permitted to purchase things from him (even though he might have stolen an item or two).
</p><p>
Moreover, Shmuel there says that even if only the minority of his possessions actually belongs to him, one still may purchase from him. <b>RASHI</b> there (DH Afilu) explains that one may assume that what the thief sells is in fact his. The Gemara concludes there that the Halachah follows Shmuel. The Rashba therefore does not understand why Rashi says that one is not allowed to purchase animals from the Nochrim.
</p><p>
(b) The <b>RASHBA</b> quotes the <b>RA'AVAD</b> who explains that the Gemara does not refer to buying animals but to buying dung. Since a Nochri steals animals from Jews, when one buys the dung from the Nochri's animals to fertilize his fields, he buys dung made by all of the animals, including the ones stolen from Jews. Rava therefore rules that one may not buy the dung. This is also the explanation of the <b>ME'IRI</b>. (D. Bloom, Y. Montrose)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DEALINGS WITH NOCHRIM (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	This applies only to one witness, but not to two
          witnesses.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even regarding witness, this is only in village
               courts. Government courts do not make someone pay
               according to one witness. They only require him to
               swear, like we do.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rav Huna):</font></b> If people rely on a great man like
          two witnesses, do we say that since they make someone pay
          according to his testimony, he may not testify?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Or, since he is a great man, he cannot evade
               them, so he may testify?
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	This question is unsettled.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> If a Yisrael sold land, bordering on a
          Yisrael's land, to a Nochri, we excommunicate him.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is due to the law of a neighbor
               (his neighbor should have first option to buy the
               land).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> This law does not apply to one who
               buys from or sells to a Nochri.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, it is because he brings damage to the
          Yisrael;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He is excommunicated until he accepts to pay for
               any damage that will result.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>RECOVERING LOST PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If tax collectors or Listim (thieves) took
          Reuven's donkey or garment and gave him a different one,
          Reuven may keep it, because the owner despairs.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If one saved property from a river, troop (some texts -
          Nochrim) or robbers, if the owner despaired, he may keep
          it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Similarly, if the owner of a swarm of bees despaired,
          the finder may keep it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Yochanan ben Berokah says, a woman or child is
          believed to say that a swarm of bees passed this way; the
          owner may enter his neighbor's field to save them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he damaged, he pays for the damage.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	He may not cut off the branch on which they made their
          hive with intent to pay for it;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	R. Yishmael, son of R. Yochanan ben Berokah permits
          this.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Gemara) Version #1 (Beraisa):</font></b> If a tax collector or
          thief took Reuven's donkey or garment and gave him a
          different one, Reuven must return it to the original
          owner.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	The Tana holds that one does not acquire through
          despair alone.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Version #2:</font></b> If Reuven wants to return it, he returns it
          to the original owner.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The Tana holds that one acquires through
          despair alone, but one who does not want others'
          property, he returns it to the original owner.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Version #1 (Mishnah):</font></b> He may keep it because the owner
          despairs.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Rav Asi):</font></b> This applies only to Nochri thieves, but not
          to Yisrael thieves.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When Yisraelim took it, he does not despair. He
               intends to recover his loss in Beis Din.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Objection (Rav Yosef):</font></b> To the contrary! Nochri courts
          use physical force to carry out their rulings, so the
          victim of a Nochri thief does not despair;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beis Din merely tells people whom they must pay.
               The victim of a Yisrael thief despairs.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Version #2 (Mishnah):</font></b> If one who saves from Nochrim
          (some texts - a troop) or thieves, if (we know that) the
          owner despaired, he may keep it.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Inference:</font></b> Normally, we assume that the owner did not
          despair.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Rav Asi):</font></b> This applies only to Nochri thieves, but not
          to Yisrael thieves.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Nochri courts use physical force to carry out
               their rulings, so the victim does not despair;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Beis Din merely tells people whom they must pay,
               so the victim despairs.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHICH THIEVES ACQUIRE THROUGH DESPAIR?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Hides of a Ganav (he stole them covertly)
          can receive Tum'ah through his intent (to use them
          without further improvement. He is considered the owner.)
          Hides of a Gazlan (open robber) are not Mekabel Tum'ah
          through intent.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Shimon says, hides of a Gazlan are Mekabel Tum'ah
          through his intent. Those of a Gazlan are not, because
          the owner did not despair.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Ula):</font></b> They argue about when we did not hear whether or
          not the owner despaired. If we know that he despaired,
          all agree that one acquires through despair alone.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rabah):</font></b> They argue even about when we know that he
          despaired.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (against Rabah - Abaye - Mishnah):</font></b> (They are
          not Mekabel Tum'ah) because the owner did not despair.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Had the owner despaired, it would
               belong to the thief!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> The Mishnah means 'because despair of
          the owner has no effect.'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If tax collectors or Listim (...returned a
          different donkey, he may keep it, because the owner
          despaired).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Who is the Tana of the Mishnah?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is Chachamim, why do we assume that the
               owner despaired regarding (a tax collector, who is)
               a Gazlan?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it is R. Shimon, why do we assume that the
               owner despaired regarding Listim (Ganavim)?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1:</font></b> According to Ula, we can explain as both
          Tana'im. The case is, we heard that the owner despaired.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, Rabah holds that they argue even when we
               heard (each Tana holds that despair does not help in
               one case). How could he answer?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2:</font></b> It is like R. Shimon. The Mishnah discusses
          Listim Mezuyan (armed robbers).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> It already discusses (a tax collector, who
          is) a Gazlan!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> It lists two kinds of Gazlanim.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a Ganav, Gazlan, or extortionist made
          what he stole Hekdesh, Terumah or Ma'aser, it takes
          effect.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> Who is the Tana of the Beraisa?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is Chachamim, why does Hekdesh (or
               Terumah...) of a Gazlan take effect? (We do not
               assume that the owner despaired!)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it is R. Shimon, why does Hekdesh of a Ganav
               take effect?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #1:</font></b> According to Ula, we can explain like both
          Tana'im. The case is, we heard that the owner despaired.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, Rabah holds that they argue even when we
               heard. How could he answer?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #2:</font></b> It is like R. Shimon. The Ganav of the
          Beraisa is an armed robber. (He is called a Ganav because
          he hides from people.)
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> It already discusses a Gazlan!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer:</font></b> It lists two kinds of Gazlanim.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer #3:</font></b> The Mishnah is like Rebbi;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Rebbi):</font></b> A Ganav is like a Gazlan.
<br>
<br>

sjt:
<font><b>1) 'MINHAG GARU'A' OR 'LIFNIM MI'SHURAS HA'DIN?'</b></font><b>
<br>QUESTION:</b> The Mishnah states that if customs officers took one's donkey and replaced it with a different donkey, or if thieves took one's clothing and replaced it with different clothing, the replacements now belong to him. This is because the original owner is assumed to have had Ye'ush; he despaired from ever receiving his property back, and thus someone else can acquire it.
</p><p>
The Gemara (in its second version) states that although the Mishnah says that the replacements belong to him, nevertheless if he wants to return them he should return them to the original owner. Even though Ye'ush alone enabled the second owner to acquire it, if he feels that 'I cannot keep property which is not mine,' he should return it to the original owner. <b>RASHI</b> (DH Im) explains that one who returns such objects is a pious person.
</p><p>
What is the purpose of returning such objects? Not only has the owner already had Ye'ush, but there was also Shinuy Reshus (the object moved from the domain of the first owner into someone else's domain, a factor which enables a second owner to acquire it). These two factors, Ye'ush and Shinuy Reshus, fully enable the new owner to acquire the object. Why is there any reason, even if he is a pious person, to return it?
</p><p>
<b>OPINIONS:</b>
<br>(a) The <b>REMA</b> (CM 356:7) implies that the custom now is to return every stolen object, even after Ye'ush and Shinuy Reshus, because of Dina d'Malchusa (the law of the land). However, the <b>SHACH</b> writes that the Rema does not mean that this is the main reason to follow this practice. Rather, the Rema means 'this is now the custom' among the Jewish people to return such objects, and this is why it is the law. Although one does not normally follow a 'Minhag Garu'a' (inappropriate custom) which contradicts Torah law, nevertheless one should follow this custom because it was instituted by the people (i.e. scholars) of the generation. Moreover, it happens to be consistent with the law of the land as well. (It is not clear whether the Shach actually maintains that this is the true explanation of the Rema, or that the Rema's words merely are correct when interpreted in this fashion, although this might not have been the Rema's intent.)
</p><p>
 (b) The <b>KETZOS HA'CHOSHEN</b> (CM 259:3) proves from the Gemara here that giving back an object, even after Ye'ush and Shinuy Reshus, is a praiseworthy act and certainly is not a 'Minhag Garu'a.' Such an act is similar to the conduct of the father of Shmuel, as related in Bava Metzia (24b). The father of Shmuel found donkeys in the desert, and he returned them to their owner twelve months after they had been lost, even though the owner had given up hope of ever finding them. He acted 'Lifnim mi'Shuras ha'Din' (beyond the letter of the law), a form of conduct derived from the verse, 'You should do what is upright and good in the eyes of Hash-m' (Devarim 6:18; see Tosfos to Bava Metzia 24b, DH Lifnim). The act of giving back stolen objects after Ye'ush and Shinuy Reshus certainly is included in 'Lifnim mi'Shuras ha'Din.' (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES DESPAIR ACQUIRE?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 66a (Rabah):</font></b> If the owner despairs, the thief
               acquires. We do not know if this is mid'Oraisa or
               mid'Rabanan.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Perhaps it is like an Aveidah. If the owner
                    despaired before it was found, the finder
                    acquires it mid'Oraisa. The same applies to a
                    thief;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Or, perhaps an Aveidah is different, for the
                    finder was allowed to pick it up. A thief
                    acquires only mid'Rabanan. This is an enactment
                    to help people repent.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Yosef):</font></b> A thief does not acquire through
               despair, even mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 66b - Question (Abaye - 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'>i. </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'> 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'>5.  </font></b><font color='darkgreen'> 67a (Ula):</font></b> 'You offer (an animal that is) stolen,
               lame or sick' equates a stolen animal to a lame one.
               Just like a lame animal cannot become acceptable,
               also a stolen animal, even after the owner despairs!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rava):</font></b> We learn from 'his Korban' - not a stolen
               one. Obviously, he cannot bring a Korban before
               despair! Rather, it is after despair, for despair
               does not acquire.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 68a (Rav Nachman):</font></b> If a thief sold before despair,
               he is liable (four and five).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> He learns from 'and will sell it' - whether before
               or after despair.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Rav Sheshes):</font></b> He is exempt. (He pays only Kefel).
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> Rav Sheshes holds that he is liable only when the
               sale is valid, i.e. after despair, like liability
               for slaughter, in which his action accomplished
               something.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (R. Elazar):</font></b> A Ganav who sells pays four or five.
               This implies that we assume that people despair when
               something is covertly stolen.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (R. Yochanan):</font></b> We can learn from kidnapping. One is
               liable without despair (the victim does not despair
               from escaping)!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Inference:</font></b> R. Yochanan holds that one is liable
               (four and five) before despair.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> R. Yochanan:</font></b> One is liable also after despair.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> (Reish Lakish):</font></b> He is exempt. The thief acquired; he
               slaughters or sells his own animal.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> 114a (Mishnah):</font></b> If tax collectors or thieves took
               Reuven's donkey or garment and gave him a different
               one, Reuven may keep it, because the owner despairs.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (27a):</font></b> Rav Sheshes holds that one is liable for
               selling only when the sale is valid, i.e. after
               despair. Rav Nachman and R. Yochanan obligate for
               selling before or after despair. The Halachah
               follows them, for the Halachah follows Rav Nachman
               in monetary laws, and R. Yochanan holds like him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 2:1):</font></b> If the stolen object
               did not change, rather, it is like it was, even if
               the owner despaired, and even if the thief died and
               his children have it, it returns to the owner.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Maimoniyos (1):</font></b> Rav Hai Gaon permits to
                    buy from a Gazlan, because despair acquires.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Yam Shel Shlomo (7:7):</font></b> The Gemara (119b)
                    forbids buying from a Ganav or Gazlan! We must
                    say that this is when there is no despair, i.e.
                    before the owner found out that it was stolen.
                    One with Yir'as Shamayim should refrain from
                    repulsive things, for the thief must fulfill
                    his Mitzvah to return it. There is no enactment
                    to help penitents as long as he has the object
                    intact. One who buys from a thief supports his
                    Aveirah and encourages the thief to steal
                    again.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (7:2):</font></b> Rabah and Rav Yosef argue about whether
               or not despair acquires. Rabah holds that it
               acquires, but he is unsure if this is mid'Oraisa or
               mid'Rabanan. Rav Yosef holds that it does not
               acquire, even mid'Rabanan. We hold like Rabah. We
               are stringent to say that despair acquires regarding
               Tum'ah of stolen hides and Kidushin, i.e.
               mid'Rabanan. Mid'Oraisa it does not acquire, like
               Ula, Rav Nachman, Rav Sheshes and R. Yochanan.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 353:2):</font></b> If the owner despaired,
               the thief does not acquire. He must return the
               theft.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Yam Shel Shlomo (7:7):</font></b> The Rosh brought a proof
                    from hides, for this was Rabah's primary proof.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mordechai (68,69):</font></b> We conclude that despair
                    does not acquire. This refers to theft. If one
                    finds an Aveidah after the owner despaired and
                    said 'woe, for my monetary loss', since it came
                    to his hand b'Heter, he acquires through
                    despair. However, Rav Hai Gaon says that a
                    thief acquires through despair, and one may buy
                    from him what he stole. He relies on the
                    Mishnah (114a) that says that if tax collectors
                    or thieves took Reuven's donkey and gave him a
                    different one, he may keep it, for the owner
                    despairs.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>Question (Pnei Yehoshua 66b Tosfos DH d'Gazal):
                    Regarding Tum'ah of hides, the Tana'im argue
                    about whether there is despair with a Stam
                    Ganav or a Stam Gazlan, but all agree that
                    despair acquires mid'Oraisa!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer (Tosfos 67a DH Ha):</font></b> There, he acquires
                    due to Shinuy ha'Shem, not due to despair. The
                    despair merely enables his intent to make
                    Shinuy ha'Shem.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Pnei Yehoshua:</font></b> Reasoning says that Tum'as
                    Mishkav should not depend on who owns it. We
                    limit the Chidush to exclude a case where the
                    owner intends to get it back from the thief in
                    Beis Din, but not if he despaired.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>ARE WE STRINGENT TO SAY THAT DESPAIR ACQUIRES? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We hold that Rebbi means 'like a Gazlan according
               to R. Shimon' (he acquires through the owner's
               despair).
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHICH THIEVES ACQUIRE THROUGH DESPAIR?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - Rebbi):</font></b> A Ganav is like a Gazlan.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Does he mean 'like a Gazlan according to
          Chachamim (who does not acquire)', or 'like a Gazlan
          according to R. Shimon (who acquires)?'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Mishnah):</font></b> If tax collectors or Listim
          (...returned a different donkey, he may keep it).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Who is the Tana of the Mishnah?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it is Chachamim, why do we assume that the
                    owner despaired regarding (a tax collector, who
                    is) a Gazlan?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If it is R. Shimon, why do we assume that
                    the owner despaired regarding Listim (Ganavim)?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> If Rebbi means 'like a Gazlan
               according to R. Shimon' we can say that it is Rebbi;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  But if Rebbi means 'like a Gazlan according to
                    Chachamim', like whom is the Mishnah?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection (and Answer #2 to Question (1)):</font></b> It is like
          R. Shimon. The Mishnah discusses Listim Mezuyan.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> It already discusses (a tax collector, who
          is) a Gazlan!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> It lists two kinds of Gazlanim.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Beraisa):</font></b> If a Ganav, Gazlan, or
          extortionist made what he stole Hekdesh, Terumah or
          Ma'aser, it takes effect.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Who is the Tana of the Beraisa?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it is Chachamim, why does Hekdesh (or
                    Terumah...) of a Gazlan take effect?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If it is like R. Shimon, why does Hekdesh
                    of a Ganav take effect?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> If Rebbi means 'like a Gazlan
               according to R. Shimon' we can say that it is Rebbi;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  But if Rebbi means 'like a Gazlan according to
                    Chachamim', like whom is the Beraisa?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection (and Answer #2 to Question 1):</font></b> It is like R.
          Shimon. The Ganav of the Beraisa is an armed robber. (He
          is called a Ganav because he hides from people.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> It already discusses a Gazlan!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> It lists two kinds of Gazlanim.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #3 (Rav Ashi):</font></b> Rebbi taught that the Mishnah
          refers not only to land. Even if he stole an animal to
          work with it, they must return it, due to their father's
          honor (lest it remind people of the theft).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> If not for the honor of their father,
               they would be exempt!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Conclusion:</font></b> Rebbi means 'like a Gazlan according
               to R. Shimon.'
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>OWNERSHIP OF BEES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Similarly, if a swarm of bees...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why does it say 'similarly'?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> This teaches even about bees, which one owns
          only mid'Rabanan (he may keep them only if (we know that)
          the owner despaired).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that since he only owns
               them mid'Rabanan, we may assume that the owner
               despaired. The Mishnah teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mishnah - R. Yochanan ben Berokah):</font></b> A woman or child
          is believed...
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Women and children are invalid witnesses!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> The case is, the owner was
          chasing after them. The woman or child said Lefi Tumo
          (i.e. unaware of the consequences) that the swarm passed
          this way.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> Lefi Tumo is valid only in testimony that a
          man died (to permit his wife to remarry).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> It is believed about a swarm of
          bees!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> That is different, since ownership
          of bees is only mid'Rabanan.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> It is believed also for mid'Oraisa matters!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> A man innocently recounted how his
               father undressed him and immersed him in order to
               eat Terumah at night;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Chanina):</font></b> He also mentioned that his friends
               avoided touching him, and they called him 'Yochanan,
               who eats Chalah (what one separates from the dough
               and gives to Kohanim, like Terumah)';
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Based on this, Rebbi established him to be a
               Kohen!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> He authorized him to eat only Terumah
          mid'Rabanan.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> We do rely on Lefi Tumo for mid'Oraisa
          matters!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Dimi):</font></b> A case occurred in which a child
               recounted Lefi Tumo how he was captured with his
               mother, and was constantly with her. Based on this,
               Rebbi permitted her to a Kohen.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> Chachamim were lenient about a captured woman
          (because mid'Oraisa, Chazakah permits her to a Kohen).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> He may not cut the branch...
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Beraisa - R. Yishmael, son of R. Yochanan ben
          Berokah):</font></b> The following are enactments of Beis Din:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven's bees settled on a branch in Shimon's
               field, Reuven may cut off the branch to retrieve his
               bees and pay for the branch;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> (Reuven was carrying a barrel of honey and it
               broke; Shimon was carrying a barrel of wine, which
               is cheaper than honey.) Shimon should spill out his
               wine to save the honey; Reuven pays him the value of
               his wine.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> (Reuven's donkey, which was carrying flax, died;
               Shimon's donkey was carrying wood, which is cheaper
               than flax.) Shimon should dump his wood and load the
               flax on his donkey; Reuven pays him the value of his
               wood.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Yehoshua made the inheritance of Eretz Yisrael
                    conditional on these enactments.
<br><b>
<br></b><b><b><font color='blue'>6) </font></b><font color='blue'>GETTING BACK WHAT WAS STOLEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven recognized his Kelim and Sefarim
          with Shimon, and there were rumors that Reuven was
          robbed, Shimon swears how much he paid, and Reuven pays
          this and takes them back from Shimon.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If not for the rumors, Reuven cannot force Shimon
               to sell them. Perhaps he sold them to the one who
               sold them to Shimon!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why should we rely on the rumors?
          Perhaps Reuven sold them, and he started the rumors!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah citing Rav):</font></b> The case is, people
          were in Reuven's house at night; Reuven shouted that his
          Kelim were stolen.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection:</font></b> Perhaps this was just a pretext to buy them
          back!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rav Kahana citing Rav):</font></b> A tunnel was dug
          going out from the house. People who had spent the night
          by Reuven left with bundles of Kelim on their shoulders,
          and people were saying 'Reuven's Kelim were stolen!'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps they stole only Kelim, but not
          Sefarim!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (R. Chiya bar Aba):</font></b> People were saying 'Reuven's
          Kelim and Sefarim were stolen!'
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps they stole only small Sefarim, but
          Reuven claims big Sefarim!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (R. Yosi bar Chanina):</font></b> They were saying which
          Sefarim were stolen.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps they stole old Kelim, but Reuven
          claims new ones!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rav):</font></b> The case is, people were saying 'these
          are Reuven's Kelim and Sefarim!' (they recognized that
          they are new).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Rav cannot establish the Mishnah to be when 
          thieves left through a tunnel!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> If a thief tunneled into a house and took
               Kelim, he may keep them.
<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'>3.  </font></b><font color='darkgreen'> Answer:</font></b> When he was in the tunnel, he forfeited
               his life (anyone may kill him, for we assume that he
               is ready to kill the owner of the house. One need
               not pay for anything he does at a time that he is
               liable to die).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> That applies only to a thief who tunnels into a
          house, for he is prepared to confront and kill the owner
          (therefore, he forfeits his life). Here, the thieves only
          left through the tunnel.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Rava):</font></b> The above answers refer to a man who sometimes
          sells his Kelim. If he does not, people need not see so
          precisely what was stolen.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps he needed money and sold his Kelim
          (even though he normally does not)!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> There are rumors that he was robbed
          (so we are not concerned lest he sold them).
<br>

<p>

sjt:
</p><p>
<font><b>2) WHEN AN INNOCENT STATEMENT OF A WOMAN OR MINOR IS ACCEPTABLE TESTIMONY</b></font><b>
<br>QUESTION:</b> The Mishnah (114a) discusses the law of a 'Nechil,' a swarm of bees, which became lost. If the original owner of the swarm had Ye'ush, the swarm belongs to the person whose domain the swarm entered. Rebbi Yochanan ben Berokah states that a woman or minor is believed to say that 'this Nechil went out from here.' He means that when the owner did not have Ye'ush, such testimony establishes that the swarm belongs to the original owner.
</p><p>
The Gemara (114b) questions Rebbi Yochanan ben Berokah's ruling. How can a woman or minor be believed if they are not valid witnesses? Rav Yehudah answers in the name of Shmuel that the Mishnah discusses a case in which the original owners are chasing the swarm of bees, and the woman or minor is 'Mesi'ach Lefi Tumo' (they randomly mention in casual conversation what happened, and not as testimony in court).
</p><p>
<b>RASHI</b> (DH Meradfin) explains that the fact that the owner was chasing after the bees before the minor spoke is 'Raglayim l'Davar' (acceptable circumstantial evidence) that the bees in fact belong to the person chasing them.
</p><p>
The Gemara quotes Rav Ashi who ruled that 'Mesi'ach Lefi Tumo' is acceptable testimony only in cases of Edus Ishah, for the purpose of establishing that a woman's husband has died so that she may remarry. Ravina asks that the Mishnah here (according to the explanation of Rav Yehudah in the name of Shmuel) seems to contradict Rav Ashi, because it applies the concept of 'Mesi'ach Lefi Tumo' to another case -- the case of the swarm of bees. The Gemara answers that the case of the swarm of bees is different, because the bees belong to their owner only mid'Rabanan.
</p><p>
<b>RASHI</b> (DH Kinyan) explains that mid'Oraisa the bees are ownerless. They belong to the person holding them only because of the Rabanan's enactment that they belong to the person in possession of them, an enactment made in order to prevent disputes about who owns the bees. (See <b>TOSFOS YOM TOV</b>, DH Nechil, and <b>TIFERES YISROEL</b> #13, who explains further why mid'Oraisa the bees do not belong to the person holding them.) Therefore, the Rabanan accept the 'Mesi'ach Lefi Tumo' testimony of a minor in this case. The only matter of Torah law for which 'Mesi'ach Lefi Tumo' testimony is acceptable is Edus Ishah, as Rav Ashi says.
</p><p>
Ravina's question on Rav Ashi is difficult to understand. Testimony which is 'Mesi'ach Lefi Tumo' is accepted in cases of Edus Ishah unconditionally, without any accompanying qualifications. In contrast, the Gemara here states that 'Mesi'ach Lefi Tumo' is sufficient testimony only when there is another factor which provides evidence about who owns the bees; the fact that the claimant is chasing after the swarm provides grounds to believe that the bees belong to him. What is Ravina's question on Rav Ashi? Rav Ashi ruled that only for Edus Ishah is 'Mesi'ach Lefi Tumo' <i>alone</i> acceptable testimony, with no other supporting factors.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>YAM SHEL SHLOMO</b> (9:28, DH v'Yesh) answers that the additional condition -- that the owner is chasing after the swarm -- is necessary only when one does not know whether there was Ye'ush or not. The fact that the owner is chasing the swarm helps prove that there was no Ye'ush. However, if it was known that the owner did not have Ye'ush, the 'Mesi'ach Lefi Tumo' testimony of the woman or minor is acceptable even if the owner is not chasing the swarm.
</p><p>
The <b>MAHARSHAL</b> writes that this answer seems to conflict with Rashi's explanation that the fact that the owner is chasing the swarm creates a situation of 'Raglayim l'Davar' that the bees belong to him. However, the Maharshal suggests a way to reconcile the Yam Shel Shlomo's answer with the words of Rashi. Perhaps Rashi intends to explain merely how we know that there is no Ye'ush on the part of the owner. If the owner is presumed to have had Ye'ush, establishing that he was the previous owner would make no difference; the person in possession of the bees now may keep them. Rashi therefore explains that because he is chasing the swarm there is 'Raglayim l'Davar' that it belongs to him and that he did not have Ye'ush. Therefore, the bees are not ownerless.
</p><p>
(b) The <b>SHEV SHEMAITSA</b> (7:10, DH u'Mevu'ar) answers that in fact Edus Ishah also contains a factor of 'Raglayim l'Davar' no less powerful than the 'Raglayim l'Davar' in the case of the owner chasing the bees. This is apparent from the Gemara in Yevamos (93b) which says that a woman is careful to verify that the testimony given that her husband has died is true before she remarries. This is because she knows that if she remarries on the basis of the testimony and afterwards her husband shows up alive, she will have to leave both men, and any children she bore from the second will be Mamzerim. Therefore, there is 'Raglayim l'Davar' that if the wife is prepared to remarry on the basis of the testimony, the testimony must be true. Accordingly, it is only because of this 'Raglayim l'Davar' that the 'Mesi'ach Lefi Tumo' testimony of the woman or minor is accepted. This is the reason why Ravina asks a question on Rav Ashi based on the comparison between the testimony in the case of the swarm of bees and the testimony in the case of Edus Ishah. (D. Bloom)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO BUYS FROM A THIEF</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> If Reuven stole something from Shimon, and sold
          it to Levi, and it became known that Reuven stole it, the
          claim is against the first one. (Shimon can demand
          payment only from Reuven. Levi need not return the stolen
          object for free.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> The claim is against the second one
          (Shimon can demand the stolen object from Levi for free).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> They do not argue. If Levi bought it
          before Shimon despaired, Shimon can demand the stolen
          object from Levi for free. If Levi bought it after Shimon
          despaired, Levi need not return it for free;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Both of them hold like Rav Chisda;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> If Shimon stole from Yehudah,
               Yehudah did not despair of getting it back, and Levi
               came and ate it, also Levi stole from Yehudah,
               Yehudah may collect from either one he wants.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> They argue about gifts to a Kohen,
          and this is like before despair!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If David told Moshe 'sell to me your
               cow's innards (which includes the stomach, one of
               the Matanos (gifts given to a Kohen when a Chulin
               animal is slaughtered))', David must give the
               stomach to a Kohen, and he pays Moshe the full price
               of the innards;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he paid by weight, David must give the stomach
               to a Kohen, and he demands compensation from Moshe.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav):</font></b> This is only if David weighed the meat
               himself. If Moshe weighed it, (David need not give
               the Kohen for free;) the Kohen's (only) claim is
               from Moshe.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> No, Rav means that the Kohen may demand the
          stomach from David for free, or he may even claim from
          Moshe.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that Matanos cannot be
               stolen (wherever they are, they belong to the Kohen,
               the only claim is against David). Rav teaches that
               this is not so.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> According to Abaye, what do Rav and R.
          Yochanan argue about?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> They argue about Rav Chisda's law.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Zvid):</font></b> Rav and R. Yochanan argue when Shimon
          despaired after Levi bought it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan holds that one (e.g. a buyer)
               acquires through Shinuy Reshus (change of ownership)
               after the owner despaired, but not through despair
               after Shinuy Reshus;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav holds that in either case, he acquires.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> All agree that Shimon gets the stolen
          object back for free (if he never despaired). They argue
          about whether or not an enactment was made for buyers;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav said 'the claim is against the first one',
               i.e. Levi (the buyer) can demand payment only from
               Reuven (the thief).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yochanan said 'the claim is against the second
               one' - an enactment was made that if Levi prefers,
               he may demand payment from Shimon (who may then
               claim from Reuven).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Does Rav really hold that no enactment was
          made for buyers?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chanan Bisha stole a garment and sold it. Rav
               Huna (Rav's Talmid) told the owner to redeem it from
               the buyer (i.e. to pay for it).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> The case of Chanan Bisha is different. Since
          the buyer cannot receive his money from him, it is as if
          the thief was not found.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CONDITION OF THE ENACTMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> No enactment was made for one who bought from a
          known thief.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Chanan Bisha was a known thief, and an
          enactment was made for one who bought from him!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> He was known to be evil (Bisha), but not
          necessarily to be a thief.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If a thief stole and paid up a loan, or a debt for
          goods received, no enactment was made;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is because the money or goods were not given
               due to the stolen object.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	If the thief gave the stolen object for collateral, if
          it was worth 200 for a loan of 100, an enactment was
          made;
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Ameimar):</font></b> If it was worth the same as the loan, no
          enactment was made.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mar Zutra):</font></b> Also in this case an enactment was made.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	If a stolen object was sold for its value, an enactment
          was made.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Sheshes):</font></b> If it was sold for twice its value, no
          enactment was made;
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rava):</font></b> Also in this case an enactment was made;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Halachah is, an enactment was made in all
               cases, except for when it was given to pay a loan or
               debt.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Ploni owed four Zuz to Avimi bar Gazi, Ravina's father-
          in-law. Ploni stole a garment and gave it to Avimi, who
          then lent him four more Zuz. The theft became known.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Ravina:</font></b> Regarding the first four Zuz, no
               enactment was made when it was given to pay a loan
               or debt (Avimi does not get them from the owner);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Avimi can demand the last four Zuz (before
               returning the garment). The garment was collateral
               for the second loan.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Rav Kohen):</font></b> Perhaps the garment was payment
          for the first loan, and not collateral for the second,
          just like the first loan was without collateral!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(R. Avahu):</font></b> The Halachah follows Rav Kohen.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	Reuven stole Yehudah's Sefer and sold it to Shimon for
          80 Zuz, who then sold it to Levi for 120 Zuz. It became
          known that Reuven stole it.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Abaye:</font></b> Yehudah pays Levi 80 Zuz, and gets his Sefer.
          Shimon pays 40 Zuz to Levi.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> An enactment was made for one who buys
          from a thief (to get everything he paid before returning
          the stolen object), all the more so an enactment was made
          for one who bought from one who bought from a thief!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Rava):</font></b> Rather, Yehudah pays Levi 120 Zuz, and gets his
          Sefer; Yehudah gets 40 from Shimon (Shimon's profit) and
          80 Zuz from the thief.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>SOMETHING ABOUT TO BE LOST</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Levi was carrying a barrel of wine, and
          Yehudah was carrying a jug of honey, and Yehudah's barrel
          cracked, and Levi spilled out his wine and saved the
          honey, he is paid only like a worker (he is not
          compensated for the wine he sacrificed);
<br>
<br>

sjt:
<font><b>1) MAY THE OWNER FORCE THE BUYER OF A STOLEN OBJECT TO SELL IT BACK TO HIM AFTER 'YE'USH'?</b></font><b>
<br>QUESTION:</b> The Mishnah (114b) discusses the case of a person who recognizes his stolen books or utensils in the possession of someone else, and there had been a rumor in town that they indeed had been stolen. The Mishnah says that the buyer of the books or utensils may take an oath to the owner how much he paid when he bought them from the thief, and he receives this sum back from the owner when he gives him back the objects. <b>RASHI</b> (DH Nishba) adds that this law applies when the owner did not have Ye'ush. <b>TOSFOS</b> (DH ha'Makir) points out that if the owner had Ye'ush, the buyer would not be required to return the objects even if the owner offered to pay him for them. This is because in this case there was both Ye'ush and Shinuy Reshus (the object changed from the thief's possession to the buyer's possession).
</p><p>
The Gemara (115a) quotes Rav in the name of Rebbi Chiya who says that when a thief is caught after he sold the stolen object, the owner's claim is against the thief, not against the buyer. The buyer has no obligation to deal with the owner. Rashi (DH ha'Din) explains that if the owner wants to retrieve his object from the buyer, he must pay him. Even though the identity of the thief is now known, the buyer is not required to return the utensils for free to the owner and then collect his money back from the thief. Rather, the owner must find the thief and recover his money from him.
</p><p>
The Gemara continues and says that according to Rebbi Yochanan in the name of Rebbi Yanai, the owner's claim <i>is</i> against the buyer. Rashi explains that the owner can approach the buyer and demand the return of his object without pay. It is the buyer who must find the thief and retrieve his money from him.
</p><p>
Rav Yosef says that there is no dispute between Rav and Rebbi Yochanan. Rebbi Yochanan is discussing a case in which the buyer purchased the object from the thief before Ye'ush, and thus the owner may collect from the buyer. Rav is discussing a case in which the buyer purchased it after Ye'ush, and thus the owner must collect from the thief. Both Rav and Rebbi Yochanan agree with the law of Rav Chisda (111b) that when one person stole something and a second person ate the stolen object before the owner had Ye'ush, the owner can collect his property from either person, the thief or the second person. (See <b>TOSFOS</b> to 111a, DH Gazal.)
</p><p>
Rashi's explanation of Rav's opinion (DH ha'Din), that if the owner wants to retrieve his object from the buyer he must pay him, is difficult to understand. Both Rashi and Tosfos on the Mishnah (114b) imply that had there been Ye'ush (which is indeed the case which Rav discusses), the buyer would not have to return the object even if the owner is willing to pay him for it. Why, then, does Rashi imply that the owner is <i>entitled</i> to buy the object back from the buyer if he is prepared to pay for it?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARSHA</b> answers that Rashi's statement that the owner may buy back the object from the buyer according to Rav does <i>not</i> apply according to Rav Yosef's opinion. The Maharsha explains that Rashi's statement applies only according to Abaye's opinion. Abaye maintains that Rav and Rebbi Yochanan indeed disagree with each other, and that both refer to a case in which the buyer purchased the object from the thief <i>before</i> Ye'ush, and the dispute between Rav and Rebbi Yochanan concerns the law of Rav Chisda. Rebbi Yochanan agrees with the law Rav Chisda, while Rav does not agree with it. According to Rav, before Ye'ush the owner can collect only from the thief. Consequently, if the owner wants to retrieve his object from the buyer he must pay him. However, since there was no Ye'ush, the buyer did not actually acquire the object with Ye'ush and Shinuy Reshus. Therefore, the buyer is obligated to return the object to the original owner upon receiving payment.
</p><p>
(b) The <b>PNEI YEHOSHUA</b> answers that Rashi's statement <i>does</i> apply according to Rav Yosef. Rashi maintains that the Rabanan instituted a decree for the benefit of the owner that if he pays, the buyer is obligated to return the object to him (even though, according to the letter of the law, the buyer actually acquired it through Ye'ush and Shinuy Reshus).
</p><p>
When Rashi (114b) states that the buyer must return the object before Ye'ush, which implies that after Ye'ush he may keep them, this applies only according to Rav Papa and the other Amora'im who disagree with Rav Yosef. (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>USING ANOTHER'S MONEY TO AVOID A LOSS TO HIMSELF</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'> 81b - Question:</font></b> The Tana omitted other enactments of
               Yehoshua!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Yishmael son of Rebbi Yochanan
                    ben Berokah):</font></b> Yehoshua made the inheritance of
                    Eretz Yisrael conditional on these three
                    enactments:
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If Reuven's bees settled on a branch in
                    Shimon's field, Reuven may cut off the branch
                    to retrieve his bees and pay for the branch;
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>If Reuven's barrel of honey and it broke, and
                    Shimon was carrying a barrel of wine (which is
                    cheaper than honey), Shimon should spill out
                    his wine to save the honey. Reuven pays to him
                    the value of his wine.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b></b> If Reuven's donkey was carrying flax and died,
                    and Shimon's donkey was carrying wood, Shimon
                    should dump his wood and load the flax on his
                    donkey. Reuven pays to him the value of his
                    wood.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Our Tana lists only Tanayim that all agree
               about. Only one Tana holds that Yehoshua made these
               other enactments.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 115a (Mishnah):</font></b> If Reuven's jug of honey cracked,
               and Shimon spilled out his wine and saved the honey,
               he gets only his proper wage. If Shimon said 'I will
               save your honey and you will pay for my wine',
               Reuven must give him.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> If a flooding river overcame the donkeys of Reuven
               and Levi, and Levi neglected his own donkey (worth
               100) to save Reuven's (worth 200), he is paid only
               like a worker. If he said 'I will save yours and you
               will pay for mine', Reuven must pay.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 115b - Question:</font></b> Why does he get only like a worker?
               The honey was going to be lost, it is like Hefker!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, there is a basket around the
               barrel (holding the shards in place. The honey would
               have dripped out slowly. It could have been saved.)
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> Why can't Reuven say 'I was only joking!'?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> If Reuven was fleeing from jail, and
                    he told the ferryman 'I will give you a Dinar
                    to take me to the other side', he need pay only
                    the standard fare.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> This is because he can say 'I was only joking!
                    We should say the same here!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> Our case is like the Seifa;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Seifa):</font></b> If he said 'take a Dinar for your
                    wages', he must pay the full wage.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Rami bar Chama):</font></b> The Seifa discusses a ferryman who
               was taking fish from the sea. In the time he crossed
               the river, he lost a Dinar's worth of fish.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Bava Metzi'a 30a (Rav Yehudah):</font></b> If one's cessation
               from his work exceeds the value of the Aveidah, he
               is exempt from returning - 'Lo Yihyeh Becha Evyon
               (do not bring yourself to poverty)' - (avoiding)
               your own loss takes precedence.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Bava Basra 8a:</font></b> The Kaiser imposed a tax on the city
               of Tiverya in order to buy a crown. The ignoramuses
               threatened to leave if Chachamim will not share the
               cost. Rebbi refused, and half of them left. The
               Kaiser pardoned the city from half the original
               demand. The remaining ignoramuses made the same
               threat. Rebbi refused. They all left, except for one
               launderer. The kings' officers imposed the entire
               tax on him. He left, and the Kaiser totally pardoned
               the city.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Rebbi:</font></b> This teaches that punishments only come due
               to ignoramuses.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (41b):</font></b> Some say that the Halachah follows the
               additional enactments that R. Yishmael taught. This
               is wrong. The Mishnah says that he gets only his
               proper wage. Also, the Gemara said that they are the
               opinion of an individual.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rebuttal (Rosh 10:16):</font></b> The Mishnah discusses one who
               voluntarily spilled his wine. R. Yishmael discusses
               when the owner of the honey tells him to spill his
               wine. The Tana did not list enactments of an
               individual, but the Halachah could follow them!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (7:18):</font></b> When Reuven's barrel of honey broke,
               Shimon should spill out his wine to save the honey.
               Reuven to pays him the value of his wine. This is
               when there is a basket around the barrel. If not,
               the honey is Hefker.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 12:5):</font></b> If Reuven's jug of
               honey cracked, and Shimon spilled out his wine and
               saved the honey, he gets only his proper wage. If
               Shimon said 'I will save your honey and you will pay
               for my wine', or he stipulated in front of Beis Din,
               Reuven must give him.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (6):</font></b> If Reuven's jug of honey cracked, and
               Shimon had empty bottles and said 'I will saved the
               honey only of you will give to me half or a third',
               or such and such Dinarim, and Reuven agreed, he
               jested with him and gives only his proper wage,
               since Shimon did not lose anything.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (Bava Basra Sof 5b):</font></b> Rebbi told
                    the ignoramuses to leave, for he knew that this
                    would uproot the decree. If not, they may not
                    leave. Once the king put the obligation on the
                    city, there is a lien on all the residents and
                    their property to pay. If water was coming to
                    flood one's property, before it gets there he
                    may divert it, i.e. seal his fence so the water
                    will not enter. Once the water entered, he may
                    not divert it (Yerushalmi Bava Kama 3:1). Once
                    damage reached someone, he may not impose it on
                    someone else.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Ra'avad (in Shitah Mekubetzes 117b DH uv'Emes):
                    One may not save a large amount of his money
                    with a small amount of Ploni's money in Ploni's
                    absence. A Mishnah forbids cutting another's
                    branch, with intent to pay, to save his own
                    bees. If Ploni is here, he must consent to save
                    another's money, since he will not lose. A
                    Beraisa (Bava Metzi'a 30b) exempts from
                    Hashavas Aveidah when he will not be
                    compensated for his loss. This implies that
                    when he will be compensated, he is obligated,
                    e.g. to forfeit his wine or donkey to save
                    another's honey or more valuable donkey. I lean
                    to say that if Levi stipulates to compensate
                    Ploni for his loss and he refuses, Levi may
                    spill out Ploni's wine. Ploni is a Rasha for
                    refusing, for he is obligated; Levi acts
                    according to law. 'Lo Yihyeh Becha Evyon'
                    teaches that your Aveidah comes before others'.
                    This refers to the Aveidah of one's Rebbi or
                    father. There is no Isur to put one's own
                    first. Perhaps even regarding others, one
                    should not value his Sela more than 100 Sela'im
                    of another. One should trust in Hash-m to repay
                    him many times for the Mitzvah of Hashavas
                    Aveidah.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rashba (4:17):</font></b> One who steals with intent to return
               in order to save his money is called a Rasha.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Mordechai (Bava Kama 193):</font></b> If witnesses signed
               Sheker due to monetary Ones, they are Resha'im and
               Pasul for testimony, and must pay for the loss they
               caused.
<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 264:5):</font></b> If Reuven's jug of honey
               cracked, and Shimon spilled out his wine and saved
               the honey, he gets only his proper wage. If Shimon
               said 'I will save your honey and you will pay for my
               wine', or he stipulated in front of Beis Din, Reuven
               must give him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Shimon is obligated to spill his wine, since
               Reuven offers to pay for it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (17):</font></b> He must do Hashavas Aveidah because
                    he has no loss from it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Some disagree.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (18):</font></b> If a worker has an opportunity to do
                    Hashavas Aveidah, and the owner of the Aveidah
                    offers to pay what he will lose from his work,
                    he is obligated. Here is different, for he can
                    say that he prefers his wine (to another's wine
                    that he will buy if he is compensated for the
                    loss of his).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (6):</font></b> If Reuven's jug of honey and it
               cracked, and Shimon had empty bottles and said 'I
               will save the honey only if you will give to me half
               or a third', or such and such Dinarim, and Reuven
               agreed, he jested with him and gives only his proper
               wage, since Shimon did not lose anything.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>MUST ONE FULFILL WHAT HE PROMISED UNDER DURESS? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Levi said 'I will save your honey and you will
               pay for my wine', Yehudah must give him.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	A flooding river overcame the donkeys of Reuven and
          Shimon, and Reuven neglected his own donkey (worth 100)
          to save Shimon's (worth 200), he is paid only like a
          worker (he is not compensated for the loss of his
          donkey).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'I will save yours and you will pay
               for mine', Shimon must pay him.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why does he get only like a worker?
          The honey was going to be lost, it is like Hefker!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #1):</font></b> If a man was carrying jugs of wine
               and oil, and saw that they were breaking, he may not
               make the wine and oil Terumah to exempt what he has
               in his house. If he did, it is invalid.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah discusses a case like R. Yirmiyah
          said (below), there is a basket around the barrel
          (holding the pieces of the barrel in place. The honey
          would have dripped out slowly. It could have been saved.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> In Beraisa #1, why is the Terumah invalid?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #2):</font></b> If Reuven was carrying coins, and
               an extortionist approached him, Reuven may not
               redeem the Kedushah of coins in his house onto the
               coins he is carrying. If he did so, it takes effect.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> There, the case is that he can save them from
          the extortionist.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> If so, he should be allowed to redeem
          l'Chatchilah!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> He can save only with difficulty.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Is it really true that whenever a loss is
          impending, he may not endow (the money or Peros) with
          Kedushah?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If a Levi had 10 barrels of Tamei
               Ma'aser Rishon (of wine) that was Tevel (Terumas
               Ma'aser had not been separated from it), and one
               broke or was uncovered (one may not drink it, lest a
               snake left venom in it), he may declare it to be
               Terumas Ma'aser on the other nine;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Regarding oil he may not do so, for this causes a
               loss to the Kohen (he could have benefited from
               burning Tamei oil of Terumas Ma'aser).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (R. Yirmiyah):</font></b> There is a basket around the
          barrel. (The wine or oil could have been saved, therefore
          he may declare wine to be Terumas Ma'aser, and even
          regarding oil it takes effect.)
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHAT MAY BE MADE TERUMAH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Granted, if the barrel broke, the wine may be
          gathered. But if it was uncovered, what may it be used
          for? (Perhaps there is venom in it! Why may he make it
          Terumas Ma'aser?)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He may sprinkle it to scent the
               house.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Beraisa):</font></b> Exposed wine may not be
               poured in the Reshus ha'Rabim, used to knead mud,
               sprinkled on the floor, or fed to an animal.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> After straining it, it may be used, according
          to R. Nechemyah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> We are concerned for exposure of dregs
               on a strainer through which the wine filters down
               (into a bottom Kli);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Nechemyah says, this is only if the bottom Kli
               is exposed. We are not concerned if the top Kli is
               exposed, because snake's venom floats and stays on
               top.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> R. Simon taught that that is only when the
          wine filters through by itself, but if the top Kli was
          shaken, the poison mixes with the wine and goes through!
          (The same applies if the wine is poured into the
          strainer.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> One can put the strainer on the mouth of the
          barrel and pour it straight through.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa permits separating Tamei Peros to
          be Terumah. It cannot be like R. Nechemyah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> We may separate Tamei Peros to be
               Terumah on Tamei Peros, or Tahor Peros to be Terumah
               on Tahor or Tamei Peros, but not Tamei Peros to be
               Terumah on Tahor Peros;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Nechemyah says, even Tamei Peros on Tamei
               Peros is permitted only for Demai (doubtfully tithed
               Peros).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa discusses Demai.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Regarding oil he may not do so, because this
          causes a loss to the Kohen.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Presumably, we are concerned because a Kohen
          can benefit by burning Tamei oil. Also regarding wine, he
          can sprinkle it!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Sprinkling is insignificant.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> Shmuel taught, one should pay up to a
               Sela for a Log of wine to drink, and up to two
               Sela'im for a Log of wine to sprinkle!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, it is new wine unfit for
          sprinkling.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> The Kohen can keep it until it is fit!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> We are concerned for a pitfall (lest someone
          drink it. Tamei Terumah is forbidden to everyone).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Also regarding oil, we should be concerned
          for a pitfall!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> He can put it in a filthy container, so no one
          will drink it.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> He can do the same with wine!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> If we did, it would not be fit for sprinkling.
<br>

sjt:
</p><p>
<font><b>2) ONE WHO LOST WORK TIME WHILE RECOVERING LOST PROPERTY</b></font><b>
<br>QUESTION:</b> The Mishnah (115a) states that if one's barrel of honey cracked and a different person, who was carrying a barrel of wine, poured out his wine to save the honey (honey is worth more than wine) by collecting it in his now empty barrel, the owner of the wine receives 'only his Sachar.'
</p><p>
<b>RASHI</b> (115b, DH Ein) explains that this means that he receives 'Sechar Kli,' the amount of money that it would have cost the owner of the honey to rent a barrel for his honey, and 'Sechar Pe'ulah,' the amount of money that it would have cost the owner of the homey to hire a worker to save his honey.
</p><p>
What is the difference between this Mishnah and the Mishnah in Bava Metzia (30b)? The Mishnah there states that when one takes off from his work to return a lost object, the owner of the object must compensate him like a hired laborer. The Gemara (31b) explains that this refers to the amount of money that he would be prepared to accept if one would offer to pay him to sit and take a rest instead of doing his normal work.
</p><p>
From the Gemara in Bava Metzia it is clear that the pay one receives for the time spent returning someone's lost object is fixed according to what he lost by doing so. That is, he may not claim his full wages for that time, but he may demand at least the rate that he would have agreed to receive had he been offered not to work for that amount of time.
</p><p>
However, the Mishnah here teaches that the amount is determined in a different manner, by assessing how much a worker who was available on hand with an empty barrel would be paid for the effort of collecting the honey. This amount has no connection with how much the person lost by saving the honey. According to the Gemara in Bava Metzia, the owner must compensate the finder in accordance with how much money he lost. Therefore, in this case, too, the owner of the honey should compensate the owner of the wine with the value of the wine that he lost by saving the honey (which is more than the wages of a worker with an empty barrel).
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>NIMUKEI YOSEF</b> (42a of the pages of the Rif) answers that the Mishnah here expresses the basic Halachic ruling according to the letter of the law. The owner of the honey is not required to pay the owner of the wine for his loss, because his loss is related only indirectly to the service he performed for the owner of the honey. In contrast, in the case of the Mishnah in Bava Metzia, the Rabanan instituted a special decree that a person who returns a lost object should receive more than the wages of a salvage worker, because happens frequently that a person encounters the Mitzvah of returning a lost object while he is in the middle of his work. The Rabanan did not want him to lose so much by doing a Mitzvah, and therefore they gave him the wages that he would have received for taking a rest in the middle of his work.
</p><p>
Although in the case of the Mishnah here, the owner of the wine certainly is doing a good thing, this is a very unusual case, and the Rabanan did not apply their decrees in unusual cases. Moreover, the owner of the wine had the opportunity to stipulate with the owner of the honey that he would save the honey only on condition that he receive the value of his wine in return. (See the Mishnah in Bava Metzia 30b, which says that such a condition is valid.) Accordingly, the owner of the honey is obligated only to pay for the service he received, and not for the loss incurred by the owner of the wine.
</p><p>
(b) The <b>ROSH</b> in Bava Metzia (end of 2:28) writes that there indeed is no difference between the two cases. The Rabanan decreed that the finder receive the difference in wages (or more, see Rosh there at length) only when he made such a condition with Beis Din or with the owner of the object, or if nobody was present with whom to make a condition when he saved the object. However, if the owner was present and the finder made no condition with him but quietly proceeded to save the object, even though he took off from his work he receives the same payment that the owner of the wine barrel receives -- the wages of a salvage worker.
</p><p>
The Rosh applies this ruling to a different case. The Mishnah here (115b) states that when two donkeys were swept away by a river and the owner of one donkey saves his friend's donkey while he lets his own donkey drown, he may demand that his friend pay for his donkey, if his friend was not present. It follows that where the owner of the honey was not present (and thus it was impossible to make a condition with him), the owner of the honey must pay for the wine that was spilled. (D. Bloom, Y. Montrose)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ARE WE CONCERNED FOR A PITFALL?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Tana'im argue about whether or not we are concerned for
          a pitfall.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Beis Shamai):</font></b> If a barrel of Terumah
               wine became Tamei, we spill it all out;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Beis Hillel say, it may be used to sprinkle on
               the floor.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Yishmael b'Rebbi Yosi:</font></b> I will be Macrhi'a (give an
               intermediate opinion; the Halachah always follows the Machri'a):
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Version #1:</font></b> If it became Tamei in the house, he may sprinkle
                    it (for he need not delay). If it became Tamei in the field, he
                    spills it out (lest there be a pitfall before he brings it to the
                    house to sprinkle).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Version #2:</font></b> If old wine became Tamei, he may sprinkle it. If
                    the wine was new (it is not yet ready for sprinkling), he spills it out.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Chachamim:</font></b> You are not a Machri'a, since Beis Shamai and Beis
               Hillel did not distinguish (between the house and the field, or
               between new and old).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>PAYING LIKE ONE STIPULATED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Levi said, I will save your (honey...
          Yehudah must pay for his wine).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why can't Yehudah say 'I was only joking!'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven was fleeing from jail, and
               he told the ferryman 'I will give you a Dinar to
               take me to the other side', he need pay only the
               standard fare.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is because he can say 'I was only joking! We
                    should say the same here!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Our case is like the Seifa .
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Seifa):</font></b> If he said 'take a Dinar for your
               wages', he must pay the full wage.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between this and when
          he said 'I will give you a Dinar'?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rami bar Chama):</font></b> The Seifa discusses a ferryman
          who was taking fish from the sea. By crossing the river,
          he lost a Dinar's worth of fish.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A flooding river overcame their donkeys;
          Reuven's was worth 100...
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	The Mishnah needed to teach both cases;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had it taught only about wine, one might have
               thought that only there he is compensated for his
               loss when he stipulated, for he actively caused his
               own loss (he spilled out the wine);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had it taught only about donkeys, one might have
               thought that only here he is not fully compensated
               unless he stipulated, for his loss came by itself.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rav Kahana):</font></b> If Reuven stipulated that he
          will save Shimon's donkey and be compensated for his own,
          and he went to save Shimon's, and his own donkey came to
          safety by itself, what is the law?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rav):</font></b> Hash-m was gracious (to give Reuven a
          gift). Shimon must pay like he agreed.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	This is like Rav Safra's case;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Safra was in a caravan; a lion accompanied
               them. Each night, a member of the caravan would give
               his donkey to the lion, and the lion ate it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> On Rav Safra's night, the lion did not eat the
               donkey; Rav Safra made an acquisition on the donkey.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Rav Acha mi'Difti):</font></b> Why did he need to make
          an acquisition? He only made it Hefker for the lion, not
          for others!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> Really, no acquisition was needed. Rav
          Safra did so lest someone contest him.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Rav):</font></b> If Reuven stipulated that he will save
          Shimon's donkey and be compensated, and he was unable to
          save it, what is the law?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Rebbi):</font></b> This is obvious! He only receives the
          normal wage for his exertion.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question (Rav - Beraisa):</font></b> If Levi hired Yehudah to
          bring cabbage and plums to a sick person, and by the time
          he brought it, the patient died or recovered, Yehudah
          gets his full wage.
<br>
<br>

sjt:
<font><b>1) ONE WHO SAVES HIS FRIEND'S DONKEY AT THE LOSS OF HIS OWN</b></font><b>
<br>QUESTION:</b> The Mishnah (115b) states that when two donkeys were swept away by a river and the owner of one donkey (worth one Maneh) saved his friend's donkey (worth two Maneh) and let his own donkey drown, he may claim from his friend only the wages of a rescue worker, but not the value of his donkey that he lost while saving his friend's donkey. However, if he said to his friend before the rescue, 'I will save your donkey, and you will pay me the value of mine,' his friend is obligated to pay him for his lost donkey.
</p><p>
Rav Kahana asked Rav what the law would be in a case in which he made the above condition with his friend but his own donkey washed ashore safely on its own. <b>RASHI</b> (DH v'Alah) explains Rav Kahana's question. Perhaps since the rescuer relinquished the ownership of his donkey at the start, it is considered Hefker, in which case his friend became obligated from that point to pay him the value of his lost donkey. The fact that the original owner later retrieved his donkey is irrelevant. On the other hand, perhaps since the donkey surfaced alive it was never considered lost, and therefore the owner of the rescued donkey does not need to pay the rescuer.
</p><p>
Rav answered that 'mi'Shemaya Rachimu Alei' -- 'Heaven had mercy on him.' The owner of the two-Maneh donkey still must pay the owner of the one-Maneh donkey the value of his donkey. The rescuer's reclaiming of his donkey is considered as though he re-acquires his donkey from Hefker.
</p><p>
The Gemara compares this case to the incident involving Rav Safra, who was part of a caravan that met up with a lion. Rashi (DH Lavinhu) explains that the people understood that the lion was willing to guard the animals owned by the members of the caravan from wild animals and bandits in exchange for food. In order to keep the lion satisfied, the members of the caravan agreed that a different person would give a donkey to the lion as food every night. When Rav Safra's turn came, he threw his donkey to the lion his but the lion did not eat it. Rav Safra quickly grabbed back his donkey (so that no one else would grab it first). Rav Acha mi'Difti asked Ravina, why was it necessary for Rav Safra to re-acquire his donkey when he threw it to the lion only in case the lion was hungry? He obviously did not make his donkey Hefker such that anyone else could acquire it if the lion did not want it. It should have returned automatically to Rav Safra's possession without the need for any additional action on Rav Safra's part.
</p><p>
Ravina replied that it indeed was unnecessary for Rav Safra to re-acquire his donkey, but he did so anyway to ensure that there would be no argument about its ownership.
</p><p>
The law in the case of the donkey thrown to the lion seems to contradict the Gemara in Bava Metzia (22b) and the Gemara in Kerisus (24a). The Gemara in Bava Metzia teaches that if one's property was swept away by a river, it becomes Hefker and anyone is permitted to take it. Just as the owner of the property gives up hope of ever recovering his property which was swept away by the river, one who throws his donkey to a lion gives up hope of ever recovering his donkey!
</p><p>
Similarly, the Gemara in Kerisus teaches that if Beis Din declares that an ox must be stoned (because it killed a person) and afterwards the witnesses who testified against the ox were found to be Edim Zomemim, the ox becomes Hefker. This is because once Beis Din has ruled that the ox must be stoned, the owner despairs of recovering it, and thus it becomes Hefker. Accordingly, why does the Gemara here say that Rav Safra did <i>not</i> despair of recovering his donkey once he threw it to the lion?
</p><p>
<b>ANSWER:</b> The <b>PISKEI TOSFOS</b> in Kerisus (#30) writes that the difference between these cases is whether the person's property was forcibly taken away from him (such as by the river, in the case of Bava Metzia, or by the Beis Din, in the case of Kerisus), or whether the person voluntarily relinquished his property, through his own action (such as by throwing the donkey to the lion).
</p><p>
The <b>KEHILOS YAKOV</b> (Nedarim 42:4) explains the answer of the Piskei Tosfos. Rav Safra's act of giving the donkey to the lion was similar to an act of giving hay to one's animal to eat. When a person gives hay to his animal, he does not make the hay ownerless. Rather, he simply uses the hay as animal fodder. Until the hay is actually eaten, it belongs to him. In contrast, when a river washes away someone's possessions, or Beis Din declares that his ox must be killed, the owner's object is of no use to him, and he therefore despairs of retrieving it (and thus it becomes Hefker). Accordingly, even if the river later washes his possessions ashore, they have already left the possession of the owner. (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DO WE LEARN FROM ONE FINE TO ANOTHER?</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'> 91b (Beraisa):</font></b> If Reuven claimed 'you killed my ox'
<br><b><font color='darkgreen'>           <b>    (or)</b> 'you cut my young trees', and Shimon answered</font></b>
               'you told me to do so', he is exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav):</font></b> A damager cannot exempt himself by saying
               this! 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>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Chulin 87a - Question:</font></b> Is this for 'stealing' the
               Mitzvah, or for depriving him of the Berachah? This
               determines the fine for stealing Birkas ha'Mazon
               (when someone else should have blessed.) It is only
               one Mitzvah, but it is four Berachos.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Once, Rebbi invited a Tzeduki to eat, and
               offered him 40 gold pieces if he will decline to
               drink the Kos Shel Berachah (the wine over which
               they will say Birkas ha'Mazon). The man declined the
               money. A Bas Kol announced that 40 gold pieces is
               the value of Birkas ha'Mazon.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Bava Kama 116b:</font></b> Once, Rav Nachman obligated a Moser
               to pay. Rav Huna bar Chiya asked if this was mi'Dina
               (letter of the law), or a fine.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question (Rav Yosef):</font></b> What difference does it make
               if it was mi'Dina or a fine?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer (Rav Huna):</font></b> If it was mi'Dina, one may learn
               to other cases. If it was a fine, one may not.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> At first they used to obligate for
                    being Metamei another's Peros, or Menasech
                    (pouring wine to idolatry). Later, they
                    included Medame'a (mixing Chulin with Terumah,
                    forbidding it to a non-Kohen).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Suggestion:</font></b> Initially, we could not learn
                    Medame'a (or other cases of unnoticeable
                    damage) from Metamei and Menasech, for they are
                    fines,
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rejection:</font></b> No. At first they fined only for a
                    major loss (Tamei Terumah and Yayin Nesech are
                    forbidden to all). Later, they fined even for a
                    small loss.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Gitin 52b (Rav):</font></b> Menasech is literal; he poured wine
               for a libation to idolatry.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Shmuel):</font></b> No, he mixed Shimon's wine with wine that
               was offered to idolatry.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> Rav didn't explain like Shmuel, for mixing wine is
               just like mixing Peros with Terumah. The Tana would
               not teach this case twice.
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> Shmuel holds that we can not derive one fine from
               another. Both must be taught.
<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 (Bava Kama 32b and 8:15):</font></b> Some say that
               R. Gamliel levied a fine of 10 gold pieces, and we
               do not learn from it to other cases. The Gemara is
               unlike this. Rav inferred that if one was not told
               to cut the tree, he is liable. Rather, it is
               mi'Dina; we learn from it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (CM 382:1):</font></b> Rav (Gitin 53a) holds that we
                    learn from one fine to another! This is the
                    conclusion, even though Shmuel disagrees.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> Also, if it were not a fine, why should we
               fine one who intended to do a Mitzvah?! Also, in
               Chulin we ask whether 10 gold pieces is for the
               Mitzvah or the Berachah, and this determines what
               one pays for Birkas ha'Mazon.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (Chulin 29a):</font></b> We do not collect this
                    nowadays, for there is no monetary loss. The
                    Rif wrote it because if he seized, we do not
                    force him to return it, like all fines.
<br>       <b>   <b><font color='darkgreen'>3.  </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'>4.  </font></b></b> Rambam (14) 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><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'>  Drishah (2 and SMA 1):</font></b> In these cases the Tur
                    obligates like the judges deem proper, and for
                    covering the blood and other Mitzvos he 
                    obligates 10 gold pieces. It seems that in
                    cases when it was a big damage and there was no
                    time to ask Reuven, Shimon is exempt. However,
                    the Rambam and Shulchan Aruch bring two
                    opinions, whether the judges assess or if the
                    fine is fixed. Neither opinion distinguishes.
                    It seems that if Reuven is meticulous about
                    Mitzvos, they levy a big fine. If not, they
                    fine less. Also, if it is a big exertion,
                    sometimes a person leaves it for others to do.
                    The Tur merely wrote the text of the Gemara.
                    The Tur says 'the same applies to any Mitzvah',
                    i.e. even if there is no Berachah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Shach 1):</font></b> Why does the Tur say that
                    one pays like the judges deem proper? The Rosh
                    holds that mi'Dina, he (always) pays 10 gold
                    pieces!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shiltei ha'Giborim (32b 3):</font></b> The Rambam
                    concludes that we learn from Kisuy ha'Dam to
                    other Mitzvos. This shows that it is not a
                    fine.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Shach 1):</font></b> The Rambam and Shulchan
                    Aruch hold that it is a fine. If it were
                    mi'Dina, obviously one must pay 10 gold pieces,
                    like R. Gamliel obligated for Kisuy ha'Dam!
                    Rather, it is a fine according to what the
                    judge deems proper. The latter opinion holds
                    that the fine is fixed. R. Yerucham (15:4) says
                    that some say that 10 gold pieces is only for a
                    Mitzvah with a Berachah. Others say that it is
                    even for a Mitzvah without a Berachah, like we
                    find regarding killing an ox or cutting a tree.
                    The Rashba and Ran conclude that one pays 10
                    gold pieces for each Berachah, and also for a
                    Mitzvah without a Berachah. We do not
                    distinguish Mitzvos from each other.
<br>       <b>   <b><font color='darkgreen'>2.  </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'>i. </font></b><font color='darkgreen'>  Gra (382:2):</font></b> The Rif and Rosh rejected the
                    first opinion, for if it is a fine, we cannot
                    learn to other fines, but in Bava Kama (91b)
                    and Chulin (87a), we learn to other cases. On
                    117a we rejected the proof that one may not
                    learn from one fine to another. It is a mere
                    Dichuy; really, we may not learn from one to
                    another, like Shmuel. There is no question from
                    Bava Kama, for there Rav learned to another
                    case. We can say that also Chulin 87a is like
                    Rav. The Rambam rules like Rav because these
                    two Sugyos are like him.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> Perhaps the Rif and Rosh hold that it is
                    better to explain the Sugyos even like Shmuel,
                    for we rule like Shmuel against Rav in monetary
                    laws.
<br>       <b>   <b><font color='darkgreen'>3.  </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>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (8):</font></b> This is like the latter opinion.
                    (According to the first opinion, he could not
                    keep what he seized, for Beis Din never decided
                    how much to fine.)
<br>
<font color='blue'><i>See also:</i>
<br><b><b>PAYING FOR TAKING ANOTHER'S MITZVAH </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer (Rebbi):</font></b> There, Yehudah fulfilled his mission.
          Regarding the donkey, he did not.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>LAWS OF PEOPLE TRAVELING TOGETHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a caravan was traveling in the
          wilderness; a troop was about to despoil it. The troop
          agreed to take a sum of money instead. Members of the
          caravan pay according to their wealth (since there was no
          mortal danger);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they hired a guide, for this they may pay a
               fixed amount per person (since getting lost is
               mortal danger). They adhere to the custom of donkey-
               drivers.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Donkey-drivers may stipulate that anyone who loses a
          donkey, will get another donkey, but not if it was lost
          through negligence.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If he says 'give to me the money for a donkey, and I
          will buy it', we do not accede (lest he not buy it).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious! (The whole agreement is s
          that he will be motivated to guard well.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> This is a Chidush when he already has a donkey;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that he will guard well in
               any case. The Beraisa teaches that this is not so.
               He will guard better if he has two donkeys.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a storm was about to sink a ship, and the 
          passengers were throwing things overboard to lighten the
          ship, they must throw equal weights, regardless of the
          value. They stick to the custom of ship-drivers.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Ship-drivers may stipulate that anyone who loses a ship
          will get another ship, but not if it was lost through
          negligence;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he went to a part of the river where ships do
               not go, he does not get another ship.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection:</font></b> This is obvious!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, he went in spring (when the
               river is overflowing) to a part of the river
               normally traveled in fall (when the water level is
               low). One might have thought that he adopted a
               normal course. The Beraisa teaches that this is not
               so.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a caravan was traveling in the
          wilderness, and a troop despoiled it, and a member of the
          caravan saved some of what the troop took, everyone gets
          back his own things;
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	If he told them that he is saving for himself, he keeps
          it all.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the others can also save, why should his
               declaration help?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If they cannot save, why does he need to declare?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1 (Rami bar Chama):</font></b> The case is, they were
          partners. In case as this, a partner can divide the
          property by himself;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Unless he said that he is saving for himself,
               they are still partners.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> The case is, the one who saved was
          working for the caravan. The Tana holds like Rav, that a
          worker can quit his job in the middle;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Until he says he is quitting, he acts on their
               behalf;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> When he said that he is saving for himself, he
               acquires for himself from Hefker.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  'To Me (Hash-m) Bnei Yisrael are slaves.' They
                    are not slaves of slaves (therefore, a worker
                    can quit when he wants).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #3 (Rav Ashi):</font></b> The case is, the others could
          have saved with difficulty.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he never said that he saves for himself, they
               did not despair of their property;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said that he saves for himself, and they
               did not protest, this shows that they despaired of
               their property.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>SHOWING PROPERTY TO PEOPLE WHO WILL TAKE IT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven stole Shimon's field, and
          extortionists stole it from Reuven:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b>If extortionists are taking fields from everyone,
               Reuven can say 'your field is still there';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If they took it due to Reuven, he must give
               another field to Shimon.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) - Question:</font></b> What is the case when they took it
          due to Reuven?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they took only Reuven's field, the Reisha
               teaches this! He is exempt only if everyone is
               afflicted!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #1 - Answer:</font></b> The case is, Reuven never stole
          the field, he merely showed it to Sheluchim of the king
          who were looking to take land.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #2 - Answer:</font></b> The case is, Nochrim forced Reuven
          to show them his fields. He also showed them the field he
          stole from Shimon.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	A case occurred in which Levi showed a pile of wheat of
          the Reish Galusa (to extortionists). Rav Nachman
          obligated him to pay.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Huna bar Chiya:</font></b> Was this letter of the law,
               or a fine?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> This is the law of our Mishnah. If
               they took it due to Reuven, he must give another
               field to Shimon. We established this to be when
               Reuven showed it (to people who would take it).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Yosef (to Rav Huna):</font></b> What difference does it
               make if it was letter of the law, or a fine?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Huna:</font></b> If it was letter of the law, one may
               learn to other cases. If it was a fine, one may not.
<br>

<p>

sjt:
</p><p>
<font><b>2) WHEN THE VICTIM OF A THEFT IS NOT IN MORTAL DANGER</b></font><b>
<br>QUESTION:</b> The Beraisa discusses the case of a caravan of people traveling through the desert who were held up by armed robbers. They came to an agreement that the members of the caravan would give the robbers a certain sum of money. The amount that each member of the caravan was required to contribute in order to appease the bandits was made according to the relative wealth of each member, and not according to the number of heads in the caravan. This is because only the money of the travelers was under threat, not their lives. The wealthier members stood to lose more, and the poor had less to lose.
</p><p>
This Beraisa seems to contradict the Mishnah in Sanhedrin (72a) which teaches that one who is 'Ba b'Machteres' (a thief who tunnels his way into a house; see Shemos 22:1) is judged according to the crime he is prepared to do. Rava explains that there is a Chazakah (strong assumption) that a person will not stand by quietly while his money is being stolen, and he is likely to resist the theft of his money. The thief is suspected of intending to murder the owner should he try to stop him. Consequently, the owner is allowed to kill the thief in order to save his own life.
</p><p>
Why does the Beraisa here say that only the property of the travelers was under threat? Since there was a Chazakah that they would attempt to resist, their <i>lives</i> were in danger, and thus they should have had to pay according to their numbers, not according to their relative wealth!
</p><p>
<b>ANSWER: TOSFOS</b> in Bava Basra (7b, DH Lefi) answers that in fact the armed robbers do not intend to kill the travelers. They want only to take their money. If the travelers do not resist, the robbers have no intention to do any physical harm to them. Therefore, there is no danger to life, and if the travelers arrange an agreement with the robbers to appease them financially, it shows retroactively that there was never any danger to life. This is why the members of the caravan pay according to their wealth.
</p><p>
The <b>KOVETZ SHI'URIM</b> (Bava Basra #43) explains that according to Tosfos' reasoning, the reason why one is permitted to kill a 'Ba b'Machteres' is that although it is possible to surrender to him, the Torah does not obligate a householder to surrender his money. Since the thief is likely to kill if the owner does not allow him to steal his money, the thief has the status of a Rodef whom one is permitted kill in order to save his own life). However, in the case of the caravan, the members of the caravan came to a peaceful agreement with the bandits. Therefore, the money is collected from its members according to their wealth.
</p><p>
(This approach explains another Halachic ruling. The <b>BI'UR HALACHAH</b> (OC 218:9, DH v'Yesh) cites the <b>NISHMAS ADAM</b> (65:1) who writes that if thieves attack a person and he is saved from them, he does not recite the blessing which one recites upon being the beneficiary of a miracle of Hash-m. This is because the thieves came only for money, and the victim was in no physical danger. The Bi'ur Halachah disagrees with the Nishmas Adam on the basis that there is a Chazakah that the bandits are prepared to kill, and thus the victim is entitled to kill his attackers first. It may be possible to justify the Nishmas Adam's position based on the approach of Tosfos. Although the victim is permitted to kill the bandits, nevertheless the bandits do not intend to kill their victim. As long as the victim does not attempt to resist, he is in no corporal danger at all. Therefore, if he does not resist and the thieves spare him, no miracle at all was done for him. The Nishmas Adam indeed writes that if the bandits find money on him they will not kill him, and if they do not find money on him there is no reason to assume that they will kill him for no reason. It seems that both the Bi'ur Halachah and the Nishmas Adam agree that if there is reason to suspect that the victim was in danger (for example, thieves in that area <i>do</i> kill the victims they try to rob even when the victims hand over their money), the person would recite a blessing if he survived unscathed.) (D. Bloom, Y. Montrose)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WE MAY NOT LEARN FROM FINES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source that one may not learn to
          other cases from a fine?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Beraisa ):</font></b> At first they used to obligate
          for being Metamei another's Peros, or Menasech (pouring
          wine to idolatry). Later, they included Medame'a (mixing
          Chulin with Terumah, forbidding it to a non-Kohen).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Initially, Medame'a was exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Metamei and Menasech are fines,
               therefore we cannot learn to other cases (of
               unnoticeable damage).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. At first they fined only when a major
          loss resulted (Tamei Terumah and wine of idolatry are
          forbidden to all). Later, they fined even for a small
          loss (a mixture of Terumah can be sold to a Kohen).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2:</font></b> R. Avin's father taught differently. At
          first they used to obligate Metamei and Medame'a. Later,
          they included Menasech;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Initially, Menasech was exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Metamei and Medame'a are fines,
               therefore we cannot learn to other cases.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. At first they held like R. Avin (below).
          Later, they held like R. Yirmiyah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Avin):</font></b> If Reuven threw an arrow four Amos in
               the Reshus ha'Rabim on Shabbos, and it tore silk
               along the way, he is exempt for the silk, because
               the liability for Shabbos depends on the initial
               thrust.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  (His liability for Shabbos begins then, so he
                    tore the silk amidst Chilul Shabbos. Since he
                    is liable to death for Shabbos, he is exempt
                    from all payments. Similarly, liability for
                    idolatry depends on picking up the wine to pour
                    it. Liability for idolatry begins then, so he
                    is exempt from all payments.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Yirmiyah):</font></b> From the moment he picks up the
               wine, he is obligated to return it. He is not liable
               for idolatry until he pours it.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>SHOWING MONEY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Nochrim forced Reuven to show them money (to take). He
          showed them Shimon's money. Rav Huna bar Yehudah
          obligated Reuven to pay.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rava:</font></b> Retract the ruling!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Nochrim forced Reuven to show them
               money, and he showed them Shimon's money, he is
               exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven took the money and gave it to them, he
               is liable.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rabah):</font></b> If he voluntarily showed them, this is
               like taking the money and giving it to them.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Nochrim forced Ploni to show them money. He showed them
          Rav Mari's wine. They asked Ploni to help them carry it;
          he complied. Rav Ashi exempted him.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rabanan - Beraisa):</font></b> If Reuven took the money
          and gave it to them, he is liable.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> That is when Reuven brought the
          money to them. Here, he helped them only after they
          already saw it. It is as if they already took it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (R. Avahu - Beraisa):</font></b> If an extortionist told
          Reuven 'pass to me a bundle of sheaves or a cluster of
          grapes', and he passed it to him, he is liable.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> The case is, the extortionist was on
          the other side of a river. He could not have taken it
          himself.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support:</font></b> He said 'pass to me', not 'give to me'.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></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'>(i)</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'>(j)</font></b><font color='darkgreen'>  	Rava:</font></b> We don't allow him to do such a thing!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, he is excommunicated until he brings the
               trap to Beis Din so they can judge the case (even if
               he must pay extra to get it back).
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Levi wanted to show Yehudah's straw (to extortionists).
          Rav told him not to. He persisted 'I will show'.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	Rav Kahana broke Levi's neck bone.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav:</font></b> '...Like a trapped wild ox' - once a wild ox
               is trapped, no one has mercy on it. Similarly, once
               money of Yisrael falls into the hands of Nochrim,
               they have no mercy on it.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Rav:</font></b> Until now, Persians ruled over us. They did not
          care about murder. Now the Yevanim rule, they object to
          it!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> You should go to Eretz Yisrael. Accept upon
               yourself not to ask any questions of R. Yochanan for
               seven years.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	Reish Lakish perceived Rav Kahana's great Chachmah, and
          praised him to R. Yochanan. R. Yochanan seated him in the
          front row of Talmidim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> While R. Yochanan taught, Rav Kahana kept silent.
               He was successively moved back seven rows, to the
               last row.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Kahana considered this humiliation equal to
               seven years of not asking questions. He then
               challenged all the teachings. Each time, R. Yochanan
               (could not answer, and) gave to him one of the seven
               carpets he was sitting on, until Rav Kahana had all
               of them. R. Yochanan looked closer at the stunning
               Talmid. Due to a cut on Rav Kahana's lip, it looked
               like he was laughing at R. Yochanan. R. Yochanan
               felt bad, and Rav Kahana died.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> When R. Yochanan learned about the cut, he went
               to the cave where Rav Kahana was buried. A snake was
               guarding it; R. Yochanan could not enter until he
               called himself Rav Kahana's Talmid.
<br>
<br>

sjt:
<font><b>1) A JEW WHO REVEALS TO A NOCHRI THE LOCATION OF ANOTHER JEW'S PROPERTY</b></font><b>
<br>QUESTION:</b> The Gemara relates that Rav Huna bar Yehudah visited a place called Bei Evyonei. After he returned home, he came before Rava who asked him if he had ruled on any cases while he was there. Rav Huna replied that there was a case in which a Nochri forcibly coerced a Jew to show him where the possessions of a fellow Jew were located, and the Nochri confiscated those possessions. Rav Huna ruled that the Jew must pay for the damage he caused to his friend by divulging the location of his property.
</p><p>
Rava told Rav Huna that he must retract his ruling and ensure the return of the money that was paid. A Beraisa states that if a Jew was coerced by a Nochri and showed him where his friend's property was located, he is exempt from paying for the loss. However, if the Jew physically took his friend's property and handed it over to the Nochri ('Natal v'Nasan b'Yad'), he is liable. <b>RASHI</b> (DH Nasa) explains that in this case he saved himself with his friend's property. Rabah added that if he showed his friend's property to the Nochri on his own initiative (Rashi explains that this means he was not forced to do so), it is equivalent to 'Nasa v'Nasan b'Yad' and he is liable.
</p><p>
The <b>CHOCHMAS SHLOMO</b> writes that Rashi's words imply that the person who caused his friend's loss is liable only when was not coerced by the Nochri. If he was forced, he is exempt even if he was 'Nasa v'Nasan b'Yad.' The Chochmas Shlomo cites the <b>RIF</b> (43a of the pages of the Rif) who indeed mentions such an opinion. However, the Rif challenges this opinion and argues that if it is correct, the Beraisa which states that one who is 'Nasa v'Nasan b'Yad' is liable must refer to a case in which one voluntarily divulged the information. However, in such a case one would be liable even if did <i>not</i> physical hand the property to the Nochri, but merely showed the Nochri the location of the property! Why, then, does Rashi imply that if the Jew was coerced, he is exempt even if he was 'Nasa v'Nasan b'Yad'?
</p><p>
<b>ANSWER:</b> The <b>CHOCHMAS SHLOMO</b> answers that according to Rashi, the Beraisa's case of 'Nasa v'Nasan b'Yad' indeed refers to a case in which the Jew was not forced. The reason the Beraisa mentions 'Nasa v'Nasan b'Yad' is that if the Jew merely showed the Nochri where the property was, even if he did so voluntarily he is liable only according to Rebbi Meir, who says that one is obligated to pay for damages done through 'Garmi.' ('Garmi' refers to a more causal form of indirect damage. It is damage that one did not do directly, but which one <i>directly caused</i>. For example, the Gemara (98b) says that if one burns a deed of debt and the holder thereby loses his right to collect the debt, the one who burned the deed must pay because of Garmi.)
</p><p>
Therefore, the Beraisa says that one who was 'Nasa v'Nasan b'Yad' is liable even according to the Rabanan who disagree with Rav Meir and obligate one to pay only for damage done directly.
</p><p>
However, the Chochmas Shlomo's question on Rashi seems to be unfounded in the first place. The words of Rashi as they appear in our text (DH me'Atzmo) read that the person showed property to the Nochri without being forced, in the case of <i>Rabah</i>. Rabah said that even without 'Nasa v'Nasan b'Yad,' one must pay if he voluntarily showed his friend's possessions to the Nochri.
</p><p>
Perhaps the Chochmas Shlomo had a different Girsa of Rashi, in which the two comments of Rashi here appeared as one, with no separate 'Dibur ha'Maschil' between them. Accordingly, it is possible that he understands the words of Rashi (in DH me'Atzmo) as a continuation of the previous comment of Rashi (DH Nasa v'Nasan b'Yad). Accordingly, Rashi indeed comments on the case of 'Nasa v'Nasan b'Yad' and states what the Chochmas Shlomo understands him as saying -- that the person who caused his friend's loss is liable only when he did so without being forced. The <b>MAHARSHA</b> and <b>PNEI YEHOSHUA</b> indeed point out that these are two separate comments of Rashi, unlike the understanding of the Maharshal. (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO WAS COERCED TO BRING ANOTHER'S PROPERTY</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Nochrim forced Reuven, and he showed them Shimon's
               money. Rav Huna bar Yehudah obligated Reuven to pay.
               Rava told him to retract the ruling.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> If Nochrim forced Reuven, and he
                    showed them Shimon's money, he is exempt. If
                    Reuven took the money and gave it to them, he
                    is liable.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Rabah):</font></b> If he voluntarily showed them, this is
                    like taking the money and giving it to them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Nochrim forced Ploni to show them money. He showed
               them Rav Mari's wine. They asked Ploni to help them
               carry it; he complied. Rav Ashi exempted him.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Beraisa):</font></b> If Reuven took the money and
               gave it to them, he is liable.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rav Ashi):</font></b> That is when Reuven brought the
               money to them. Here, he helped them only after they
               already saw it. It is as if they already took it.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (R. Avahu - Beraisa):</font></b> If an Anas
               (extortionist) told Reuven 'pass to me a bundle of
               sheaves or a cluster of grapes', and he passed it to
               him, he is liable.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (Rav Ashi):</font></b> The case is, the Anas was on the
               other side of a river. (He could not have taken it
               himself.)
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Support:</font></b> He said 'pass to me', not 'give to me'.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 117b:</font></b> Reuven had deposited a silver cup by Shimon.
               Robbers came; he gave it to them. Rabah exempted
               him.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Objection (Abaye):</font></b> He saved himself with another's
               money!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rav Ashi):</font></b> If Shimon is wealthy, presumably, the
               robbers came for his money (and he is liable for
               saving himself with Reuven's money). If Shimon is
               not wealthy, presumably, the robbers came for
               Reuven's cup, so Shimon is exempt.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (43a):</font></b> Some say that just like one who was
               coerced to show others' money to Nochrim (and did
               so) is exempt, also one who was coerced to bring
               others' money to Nochrim. This is unlike our Gemara.
               The Beraisa obligates one who gave over others'
               money. If he was not forced, he is liable even for
               showing! Rather, he was forced. We do not
               distinguish whether he was forced (Bach - to show;
               Hagahos me'Eretz Yisrael - Stam), or forced to bring
               money. A case occurred in which Ploni showed and
               helped to carry Rav Mari's wine due to coercion.
               Rabanan asked Rav Ashi why he exempted him. The
               question is understood only if even one who was
               coerced is liable for bringing.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rebuttal (Nimukei Yosef, citing Ba'al ha'Itur):
                    Ploni was coerced only to show. He was not
                    coerced to bring it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Nimukei Yosef:</font></b> The Rif agrees that the Moser is
                    exempt if the Anas saw the money, and then the
                    Moser gave to him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif:</font></b> Showing due to Ones is exempt, for it is mere
               Gerama (causing damage). Bringing is an overt
               action. A Beraisa teaches that if an Anas told
               Reuven to pass a bundle, and he did, he is liable,
               i.e. if the Anas could not have taken it himself.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef:</font></b> If one was coerced Stam, and
                    showed another's money, he is liable. Reasoning
                    obligates one who saved himself with another's
                    money. Rav Hai Gaon, Rashi and the Ra'avad
                    exempt one who was forced to bring another's
                    money. They can explain the case of the silver
                    cup simply. However, they obligate one who
                    brought money when he was forced only to show.
                    They must say that the Reisha exempts when he
                    only showed, and the Anas did not specify whose
                    money to show. This is unlike Gerama, which is
                    exempt. It is like Garmi (semi-direct ways of
                    causing damage), which is liable! All agree
                    that if an Anas asked to bring Ploni's money,
                    the Moser is exempt.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (10:27):</font></b> If Levi was coerced to bring money
               from Ploni's house, he is liable. The Yerushalmi
               exempts in this case. We must say that Levi is
               exempt when the Nochri knew about the money in
               Ploni's house and coerced him to bring it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Beis Yosef (CM 388 DH Kosav ha'Chacham):
                    Ha'Marshim exempts only when the Nochri knew
                    where the money was. If not, it is as if he is
                    on the other side of the river. Also, if the
                    Moser could say 'I looked for it, but did not
                    find it' (but rather, he was Moser), he is
                    liable.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mar'eh ha'Panim (Yerushalmi Bava Kama 37a DH
                    Aval):</font></b> Rav Hai Gaon, R. Chananel and Ba'al
                    ha'Itur rule like the Yerushalmi, which exempts
                    even when the Nochri designated which money the
                    Yisrael must bring. They explain that the Bavli
                    obligates when he was coerced only to show it,
                    and voluntarily brought it. Most hold like the
                    Rif, who obligate.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Chovel u'Mazik 8:2):</font></b> If a Moser
               physically gave another's property to the king, he
               is liable, even if he was coerced, for one who saves
               himself with another's money must pay.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (4):</font></b> If one took the money and handed it to
               the Anas, he is liable in any case, even if the king
               forced him to bring.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad:</font></b> This is like the Rif. The Gaon
                    disagrees, for one may transgress anything for
                    Piku'ach Nefesh other than the three Aveiros.
                    Will we obligate someone to die rather than
                    show another's money?! They designated which
                    money they wanted! I already explained this in
                    Bava Kama.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> The Rif's proofs are best.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Teshuvas ha'Rashba (1:980):</font></b> The Ra'avad is
                    correct. If one was bodily coerced he is
                    exempt, like the case of thieves who came for
                    the silver cup.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Lechem Mishneh:</font></b> A Beraisa (which we established
                    to discuss an Anas on the other side of the
                    river) obligates even when the Anas designated
                    what he wants! The Ra'avad must explain that
                    the Anas did not request a particular bundle.
                    The Yisrael could have given his own, therefore
                    he may not save himself with another's money.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Tosfos (Bava Kama 117b DH v'Iy):</font></b> Even though we said
               that one who overtly gave is liable, a Shomer is
               different. The depositor intended that the Shomer
               save himself with it if Anasim comes for it.
<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 388:2):</font></b> If a Moser physically
               gave it to them, he is liable, even if he was
               coerced, for one who saves himself with another's
               money must pay.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (4):</font></b> If one took the money and handed
               it to the Anas, he is liable in any case, even if
               the king forced him to bring.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (24):</font></b> The Rambam, Ba'al ha'Ma'or, Ramban,
                    (Chidushei) ha'Rashba, Rosh, Tur, Shulchan
                    Aruch and Poskim rule like the Rif. I refuted
                    the Rif's proofs, and concluded that he is
                    liable only if he was coerced to bring Stam
                    money, for he saved himself with another's
                    money. He is exempt if he was forced to bring
                    Ploni's money. This is not saving himself with
                    another's money. If he will not comply, he
                    saves Ploni's money with his life! This does
                    not override Piku'ach Nefesh. We do not rule
                    against Ge'onim (Rav Hai Gaon and R. Chananel)
                    without a proof from Shas, especially since
                    their opinion is more reasonable; also R.
                    Efrayim, the Ra'avad, Ba'al ha'Itur, Teshuvas
                    ha'Rashba and Nimukei Yosef hold like them. The
                    simple reading of the Yerushalmi is like them;
                    the Ramban and Rosh give another way to explain
                    it. Some say that it is a Safek, so we do not
                    force one to pay. I have no doubt; the opinion
                    that exempts is primary.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Or Gadol (p.20):</font></b> The Minchas Chinuch exempts
                    one who transgressed due to Ones for that
                    Aveirah, but not for Ones of illness. Likewise,
                    we exempt only if the Anas wanted Ploni's
                    money, but not if he Stam demanded money.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>ONE WHO WAS MOSER TO SAVE HIMSELF </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yochanan prayed, and Rav Kahana returned to
               life. Rav Kahana resolved all of R. Yochanan's
               doubts.
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	Reuven showed R. Aba's silk ornament to extortionists.
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	R. Avahu, R. Chanina bar Papa and R. Yitzchak Nafcha
          thought that he is liable, like the following Mishnah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If a judge acquitted the guilty party,
               obligated the exempt party, pronounced Tamei what
               was really Tahor, or pronounced Tahor what was
               really Tamei, what he did is done, and the judge
               must pay (for any resulting loss).
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Rejection (R. Elazar):</font></b> Rav taught that this is only
          when the judge himself gave the money (to the one whom he
          ruled that it should go).
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	R. Avahu, R. Chanina bar Papa and R. Yitzchak Nafcha
          (to R. Aba):</font></b> Go to R. Shimon ben Elyakim and R. Elazar,
          who obligate one who damaged through Garmi (causation).
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	R. Shimon ben Elyakim and R. Elazar:</font></b> This is like our
          Mishnah. If they took it due to Reuven, he must give
          another field to Shimon. We established this to be when
          he showed the field.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>SAVING ONESELF WITH ANOTHER'S MONEY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Reuven had deposited a silver cup by Shimon. Robbers
          came; he gave it to them. Rabah exempted him.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> He saved himself with another's
          money!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> If Shimon is wealthy, presumably, the
          robbers came for his money (and he is liable for saving
          himself with Reuven's money);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon is not wealthy, presumably, the robbers
               came for Reuven's cup, so Shimon is exempt.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Reuven was holding a wallet with communal funds for
          redeeming captives. Robbers came; he gave it to them.
          Rabah exempted him.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> He saved himself with another's
          money!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> The money was meant for redeeming
          captives. He redeemed himself!
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Reuven had brought his donkey on a ferry. The ferry was
          in danger of sinking; Shimon threw the donkey overboard,
          and it drowned. Rabah exempted him.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> He saved himself with another's
          money!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> Reuven was threatening their lives by
          bringing the donkey aboard!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like Rabah taught elsewhere.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rabah):</font></b> If while Levi was chasing Yehudah to
               kill him, Levi broke Kelim, he is exempt, whether
               they belong to Yehudah or to others, for he is
               liable to be killed while he chases.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If Yehudah broke Levi's Kelim, he is exempt.
               Since he may kill Levi, all the more so he may break
               his Kelim;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> If Yehudah broke someone else's Kelim, he is
               liable. One may not save himself with another's
               money (without paying for it).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> If David was chasing Levi to stop him from
               killing Yehudah, and David broke Kelim, whether they
               belong to Yehudah or to others, he is exempt;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Letter of the law, he is liable. This is an
                    enactment, lest people refrain from trying to
                    save a pursued person.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHAT CAN BE STOLEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> (If Reuven stole Shimon's field and) the
          river flooded it, Reuven can say 'your field is in front
          of you.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Beraisa - R. Eliezer):</font></b> (If Reuven stole
          Shimon's field and) the river flooded it, he must give
          him another field;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Chachamim say, he can say 'your field is in front of
          you.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Elazar expounds through the method of
          inclusions and exclusions;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'He will deny his neighbor' is a Ribuy
               (inclusion). 'About a deposit' is a Mi'ut
               (exclusion). 'Anything that he will swear about' is
               another Ribuy;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> From the Ribuy u'Mi'ut u'Ribuy we include
               everything (that one must swear about them, and
               return them if stolen). We exclude only documents.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Chachamim expound through the method of Klalim and
          Peratim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'He will deny his neighbor' is a Klal (general
               term). 'About a deposit' is a Prat (specific term).
               'Anything that he will swear about' is another
               Klal;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> From the Klal u'Frat u'Chlal we include
               everything similar to the Prat, i.e. things that
               can be moved and have intrinsic value;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We exclude land, for it cannot be moved. We
                    exclude slaves, for they are equated to land;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  We exclude documents, for they have no
                    intrinsic value.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Beraisa - R. Elazar):</font></b> If Reuven stole a cow,
          and a flooding river washed it away, he must give the
          owner another cow;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim say, he can say 'your cow is there.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Summation of question:</font></b> Regarding a cow, what do
               they argue about?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> The case is, he stole a field on
          which a cow was lying;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Elazar holds that land can be stolen. Agav
               (along with it), also the cow is stolen.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim hold that land cannot be stolen, so
               also the cow is not stolen.
<br>

<p>

sjt:
</p><p>
<font><b>2) A RICH MAN ON THE ROAD IS CONSIDERED POOR</b></font><b>
<br>QUESTION:</b> The Gemara relates an incident in which a Shomer was entrusted with watching a silver goblet. Thieves broke in and he handed them the goblet so that they should leave him alone. Rav Ashi concluded that if the Shomer was wealthy, it may be assumed that the thieves broke in with the intent of stealing his possessions. He therefore is obligated to return the value of the goblet to the owner because he saved his own property by giving up someone else's.
</p><p>
However, if the Shomer was not wealthy, it may be assumed that the thieves came specifically to steal the goblet that he was watching. The Shomer therefore is exempt from paying, because it was the goblet itself that the thieves sought to steal, and he was permitted to give it to the thieves in order to save himself.
</p><p>
The Gemara relates another case in which a person was guarding a wallet with money that had been collected for the purpose of Pidyon Shevuyim (redemption of captives). The thieves broke in to his home, and he handed them the wallet so that they should leave him alone. The case came in front of Rabah who ruled that the Shomer is exempt from returning the money that was in the wallet.
</p><p>
Abaye challenged Rabah's decision and argued that the Shomer had saved himself with somebody else's money, and therefore he should be obligated to pay. Rabah defended his ruling by answering that since the Shomer was in danger, there was no greater act of redeeming captives than the act he did with the money in order to save himself. Since the money was designated exactly for this purpose, he was entitled to use the money to save himself.
</p><p>
The Gemara, in the second incident, makes no distinction between whether the Shomer was wealthy or not, as it distinguishes in the first incident. This implies that even if the Shomer would be wealthy, he still would be exempt from replacing the money in the wallet. Why, though, would he be exempt? Since he is wealthy and possesses the means to redeem himself, why should the public have to pay for this expense?
</p><p>
<b>ANSWER: TOSFOS</b> (DH Ein) answers that the Gemara's intention is to teach that even when the Shomer is a wealthy man but has no funds of his own on hand when the thieves threaten him, he is permitted to give them the charity funds. Since his situation is considered one of Pidyon Shevuyim, he is entitled to take the money set aside for this purpose.
</p><p>
The <b>SHULCHAN ARUCH</b> (CM 292:9) apparently incorporates Tosfos' answer into the Halachic ruling. The Shulchan Aruch writes that 'if the householder had no other money accessible to him with which to redeem himself' he is exempt from returning the charity funds. The <b>S'MA</b> (CM 292:26) writes that the Shulchan Aruch means that even if he has money in his house or in another place, he may hand over the charity money and does not have to replace it later.
</p><p>
The S'ma adds that this case is comparable to the case of the Gemara in Chulin (130b, and as recorded by the Shulchan Aruch, YD 253:4) in which a householder, even a wealthy one, who travels from place to place is allowed to accept the gifts given to paupers. The Chachamim in the Gemara there state that even if he has money at home, he is permitted to accept gifts because at that time he has no money with him and is considered a pauper. Even when he returns home he is exempt from returning the money to the charity funds. The <b>REMA</b> (YD 253:4) explains that he is exempt because he is considered a pauper who later became wealthy, who is exempt from returning what he received when he was a pauper.
</p><p>
Similarly, the wealthy householder who was attacked is exempt afterwards from returning the money of charity when he had no other money available to give to the bandits. (D. Bloom)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHERE ONE MAY RETURN THEFT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven received a deposit, stole or
          borrowed from Shimon in a settled area, he may not return
          to him in the Midbar (wilderness);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he received a deposit or borrowed from him on
               condition to go to the wilderness, he may return it
               in the wilderness.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Beraisa) Contradiction:</font></b> A loan may be paid
          anywhere. An Aveidah or deposit may be returned only to
          its place.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> The Beraisa means that one may demand
          payment of a loan anywhere. One may only demand an
          Aveidah or deposit in its place.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> (If he received a deposit or borrowed from
          him) on condition to go to the Midbar (he may return it
          in the Midbar).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> It teaches about the following case;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shimon told Reuven 'take this deposit, for I am
               going to the wilderness', and Reuven replied 'also I
               am going to the wilderness.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Reuven meant 'if I want, I will return it to you
               there.'
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONE WHO IS UNSURE WHETHER OR NOT HE OWES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven tells Shimon 'I stole, received a
          deposit or borrowed from you, and I do not know whether I
          paid you', he is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven is unsure whether or not he stole,
               received a deposit or borrowed, he is exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Huna and Rav Yehudah):</font></b> If Levi tells Yehudah 'you
          stole, received a deposit or borrowed from me', and
          Yehudah says that he does not know, he is liable;
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Nachman and R. Yochanan):</font></b> He is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Huna and Rav Yehudah obligate him, for a
               definite claim prevails over a doubtful claim;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Nachman and R. Yochanan exempt, for we leave
               the money in its status quo.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (against Rav Huna - Mishnah):</font></b> If he says 'I do
          not know whether or not I stole, received a deposit or
          borrowed from you' he is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Shimon does not claim from him, we must say so
                    also in the Reisha. If so, why is he liable?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, he claims from him, and the
               Seifa exempts him!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (and Answer #2 to question (1)):</font></b> Really, Shimon
          does not claim from him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the Reisha, Reuven wants to fulfill his
               obligation b'Yedei Shamayim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Support (R. Chiya bar Aba citing R. Yochanan):</font></b> If Levi
          said to Yehudah 'you stole, received a deposit or
          borrowed from me', and Yehudah says 'I don't know', if he
          wants to fulfill his obligation b'Yedei Shamayim, he is
          liable (even though R. Yochanan exempts b'Yedei Adam).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>RETURNING THEFT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven stole a lamb and returned it to
          the flock, and it died or was stolen, he is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the owner did not know about its theft or
               return, and/or counted the flock and found that it
               was complete, Reuven is exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Rav):</font></b> If the owner knew about its theft, he
          must be informed of its return (for the thief to be
          exempt). If he did not know of its theft, if he counted
          the flock after its return, the thief is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the Mishnah, 'and counted the flock' refers to
               the Seifa (the owner did not know of its theft or
               return).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> Whether or not the owner knew of its theft,
          if he counted the flock after its return, the thief is
          exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Or counted the flock' refers to the entire
               Mishnah.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> If the owner knew of its theft, if he
          counted the flock after its return, the thief is exempt.
          If he did not know of its theft, even if he does not
          count the flock, the thief is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Or counted the flock' refers to the Reisha (the
               owner knew of its theft).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Chisda):</font></b> If the owner knew of its theft, if he
          counted the flock after its return, the thief is exempt.
          If he did not know of its theft, the owner must know of
          its return.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Or counted the flock' refers to the Reisha.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Why does Rav Chisda require explicit
          knowledge of return when the owner never knew that it was
          stolen?
<br>
<br>

sjt:
<font><b>1) IS A 'KINYAN AGAV' EFFECTIVE FOR OWNERLESS PROPERTY?</b></font><b>
<br>OPINIONS:</b> The Gemara cites a Beraisa (117b) which discusses the case of a person who steals a field, and afterwards a river overflows and floods the field. Rebbi Elazar rules that the thief is obligated to replace the stolen field with a field of equal quality. The Chachamim rule that the thief may say to the owner, 'Here is your field,' even though it was ruined by the flood. The <b>TIFERES YISRAEL</b> (#28) explains that according to the Chachamim, whose opinion is also that of the Tana of the Mishnah (117b), land always remains in the possession of the owner.
</p><p>
The Gemara (117b) cites another Beraisa in which Rebbi Elazar and the Chachamim argue in a similar case. A person stole a cow and an overflowing river drowned it. Rebbi Elazar rules that the thief must replace it with another cow. The Chachamim rule that the thief may claim, 'Here is your cow.' The Gemara inquires what the dispute is between Rebbi Elazar and the Chachamim in this case. (The Chachamim's position seems difficult, since, in this case, the cow is not land, and therefore the thief should be obligated to make restitution for it.)
</p><p>
Rav Papa answers that the case of the second Beraisa refers to a person who stole a <i>field</i>, and there was a cow lying in the field. The overflowing river flooded the field and drowned the cow. Rebbi Elazar and the Chachamim follow their respective positions that they express in the first Beraisa with regard to whether it is possible to steal land or not.
</p><p>
<b>RASHI</b> (118a, DH Parah) explains that the thief performed no act of Meshichah on the cow. Therefore, the cow has the same status as the land on which it lies. According to Rebbi Elazar who maintains that it is possible to steal a field, the thief acquires the cow along with the field. Therefore, the thief must pay for the lost cow because all movable objects on the field (such as the cow) are acquired through a Kinyan Agav with the field. According to the Chachamim, the thief acquires neither the field nor the cow on it.
</p><p>
Does this Gemara imply that a Kinyan Agav is effective for ownerless objects? That is, when a person acquires a field of Hefker, can he also acquire movable objects on the field through Kinyan Agav? Perhaps Agav works only when the owner of the field gives or sells the field to someone along with movable objects.
</p><p>
(a) The <b>KETZOS HA'CHOSHEN</b> (275:1) addresses this issue of whether or not one can effect a Kinyan Agav from Hefker. He proves from the Gemara here that a Kinyan Agav is effective even when the person does not acquire the land from someone else. Rashi implies that a Kinyan Agav would be effective to acquire objects from Hefker, since he explains that Rebbi Elazar understands that the cow is acquired with the field through Kinyan Agav even when the thief steals the field.
</p><p>
The Ketzos ha'Choshen explains further why Rashi understands that Rebbi Elazar must maintain that the cow is acquired through Kinyan Agav and not through Kinyan Chatzer. Kinyan Chatzer works only because the Chatzer is his domain, and thus whatever falls into his Chatzer becomes his. However, a thief does not actually own the Chatzer. His Kinyan on the stolen Chatzer makes it his property <i>only</i> with regard to liability for any unavoidable accidents that happen to it; he does not acquire objects situated in the Chatzer. Therefore, Rashi explains that according to Rabbi Elazar the thief acquires the cow through Kinyan Agav and not through Kinyan Chatzer. (The Ketzos ha'Choshen does not elaborate on the mechanism of Kinyan Agav. Apparently, he understands that one acquires movable objects through Kinyan Agav with any form of Kinyan he makes on the land, even if that Kinyan is a weak Kinyan (such as a Kinyan only for the purpose of making the thief liable for damage that happens to the land).)
</p><p>
(b) The <b>NESIVOS HA'MISHPAT</b> (202:2) disagrees with the Ketzos ha'Choshen. He maintains that one cannot acquire ownerless objects with a Kinyan Agav. A Kinyan Agav requires that there be another person who wants to transfer movable objects along with the land. (This is known as 'Da'as Acheres Makneh' -- 'the intention of another person effects the transaction,' which applies to other cases of Kinyanim as well.) He points out that the Gemara in Kidushin (26a) derives the law of Kinyan Agav from the verse, 'Their father gave them many gifts... with fortified cities in Yehudah' (Divrei ha'Yamim 2 21:3), which describes the gifts which Yehoshafat gave to his sons before he died. Since the verse refers to gifts of Metaltelin which Yehoshafat gave 'Agav' the gifts of land (the cities in Yehudah), it implies that a Kinyan Agav is effective only when a person specifically gives the land and movable objects.
</p><p>
The Nesivos ha'Mishpat suggests that the reason why Rashi here implies that a thief's Kinyan Agav is effective is that Rebbi Elazar maintains that 'Stam Gezeilah Ye'ush Be'alim.' This means that we may assume that a victim of a theft despairs of ever retrieving the stolen property. (See the Gemara earlier (114a) which records a dispute between the Chachamim and Rebbi Shimon on this point.)
</p><p>
In a similar vein, <b>TOSFOS</b> (69a, DH Kol she'Liktu) writes that because of the owner had Ye'ush, it is considered as though he gave a gift to the thief. The Nesivos ha'Mishpat explains that since the owner has Ye'ush when his object is stolen, and thus it is considered as though he gave the object as a gift to the thief, it follows that theft indeed has an element of 'Da'as Acheres Makneh.' This is why a Kinyan Agav is effective in a case of theft. In contrast, a Kinyan Agav does not acquire an object of Hefker because there is no 'Da'as Acheres Makneh' whatsoever. (See also <b>DEVAR AVRAHAM</b> (1:3:6) and <b>CHAZON ISH</b>, Bava Kama 16:13.) (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN AND WHERE MAY ONE RETURN A DEPOSIT?</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> If Reuven received a deposit, stole or
               borrowed from Shimon in a Yishuv (settled area), he
               may not return to him in the Midbar (wilderness);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Contradiction (Beraisa):</font></b> A loan may be paid
               anywhere. An Aveidah or deposit is returned only in
               its place.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Abaye):</font></b> The Beraisa means that one may
               demand payment of a loan anywhere. One may demand an
               Aveidah or deposit only in its place.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Gitin 74b (Mishnah):</font></b> At first, one who bought a
               Bayis Ir Chomah (a house in a walled city) would
               hide on the last day that the seller could redeem
               it. Hillel enacted that the seller may deposit the
               redemption money in a chamber and forcibly enter the
               house.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Version #1 (Rava) Inference:</font></b> If one gave a Get 'on
               condition that you give to me 200 Zuz', the Get is
               valid only if he takes the money willingly.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Hillel needed to enact that one can pay the
                    buyer Bal Korcho. This implies that without an
                    enactment, paying Bal Korcho is invalid.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Objection (Rav Papa):</font></b> Perhaps the enactment was for
               when the buyer is away, but when he is here, giving
               Bal Korcho works!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Version #2 (Rava) Inference:</font></b> If one gave a Get 'on
               condition that you give to me 200 Zuz', the Get is
               valid whether or not he takes the money willingly.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> Hillel needed to enact only for when the buyer is
               not here. When he is here, whether or not he
               consents to accept the money, the redemption works!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Objection (Rav Papa):</font></b> Perhaps it is valid only when
               he consents to accept the money. Hillel enacted what
               was needed.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Kidushin 12b:</font></b> Shimon was Mekadesh Rachel with a
               myrtle mat. People remarked that it is not worth a
               Perutah. Shimon said 'she should be Mekudeshes with
               the four Zuzim inside.' She took it and was silent.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Rava):</font></b> Silence after the money was already given
               has no effect:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> If Reuven told Leah 'take this money
                    for a deposit', and after he gave it he said
                    'be Mekudeshes to me through it', if she wants,
                    she is Mekudeshes. If she does not want, she is
                    not Mekudeshes.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Wanting is saying 'yes'. Not wanting is being
                    silent.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Question (Rav Huna):</font></b> In the Beraisa, she is
               responsible for the money (it was a deposit), so she
               is afraid to throw it back. Here, the money was
               given for Kidushin. If she does not accept, she
               should throw it back!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Objection (Rav Achai):</font></b> Perhaps she errs, and thinks
               that even regarding Kidushin, if she throws the
               money and it is lost, she is responsible!
<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 one found an Aveidah or accepted a deposit
               in a Yishuv, the owner cannot demand it from the
               (finder or) Shomer in the Midbar if he does not have
               it with him. Similar, if the Shomer has it and the
               owner does not want to take it back in the Midbar,
               the Shomer cannot force him. He has responsibility
               until he returns it in a Yishuv, like he deposited.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos She'elah 7:11):</font></b> One can claim a
               deposit or Aveidah only in its place. If David
               deposited with Levi in Yerushalayim, he cannot claim
               from him in Nov. If he returned to him in Nov, he
               receives it. If he deposited in a Yishuv and Levi
               returned in in the Midbar, David need not accept it.
               He says 'you have Achrayus until you return it to me
               in a Yishuv, like I deposited with you in a Yishuv.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> We learned that one may demand
                    an Aveidah or deposit only in its place. This
                    implies that the Shomer may return it anywhere,
                    Bal Korcho of the owner. If he accepted to
                    guard it for a set time, he cannot force him to
                    accept it back within this time.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Gitin 7:7):</font></b> Obviously, a Shomer can repay Bal
               Korcho of the owner. Only in the Midbar he cannot
               force him to accept payment.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rashba (Kidushin 13a DH Savra):</font></b> Initially, we
               assumed that Rachel knew the Halachah. If so, why
               didn't she throw it back and say 'here is yours'?
               The Ra'avad says that he had deposited with her for
               a set time, so she could not give it back. This is
               difficult. The Beraisa did not specify. Why should
               Rav Huna assume that it discusses a deposit for a
               set timem in order to challenge Rava? The Gemara
               should have specified. Also, I am unsure about this.
               Even if the deposit was for a set time, why can't
               she retract in the middle? A Shomer Chinam should be
               no more liable than a worker, who can retract in the
               middle of the day! The Ra'avad answered that she was
               concerned lest it get lost before it reaches him.
               Some say that she thinks that since she accepted to
               guard the deposit, she is liable if she throws it,
               but even she knows that she is exempt for Kidushin
               money, since she never agreed to guard it. The
               Ramban says that if she throws a deposit, she is
               liable. She accepted to return it to his hand. If
               she said 'take yours', and he did not want to, if
               she said 'here is yours' and threw it in front of
               him, she would be exempt. If she was silent and
               threw it, she is liable. I (the Rashba) am unsure if
               she must return it to his hand. Granted, a debt must
               be returned to his hand, or the lender can authorize
               the borrower to throw it. This is because a loan is
               in the borrower's Reshus, but a deposit is in the
               owner's Reshus. It should suffice to put it in his
               four Amos!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tumim (6):</font></b> The Magid Mishneh and Ra'avad hold
                    that a Shomer cannot return the deposit early
                    Bal Korcho of the owner. The Rashba disagrees,
                    for Bnei Yisrael are slaves only to Hash-m.
                    This applies to a Shomer Sachar, who must guard
                    very well. A Shomer Chinam must merely not be
                    negligent. He is not like a slave at all!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ketzos ha'Choshen (74:1):</font></b> The Ra'avad and Magid
                    Mishneh hold that a Shomer cannot return the
                    deposit early, for Shmirah is unlike a job. It
                    is acceptance of liability for loss to the
                    deposit. One can retract early from working for
                    an Iska, but not from responsibility to guard
                    it.
<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 293:1):</font></b> One can claim a deposit
               only where he deposited it. If he deposited in
               Teveryah he cannot claim it in Tzipori However,
               whenever the Shomer wants to return it, the owner
               must accept it. Even if he returned it Bal Korcho,
               it is returned and he is exempt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (1):</font></b> Gidulei Terumah asks what is the
                    Chidush of the Mishnah. I say that in the
                    Midbar, even if the Shomer has money or a Kli
                    just like the deposit, he need not give it in
                    place of the deposit.. Sefer ha'Terumos 30:1:2
                    says that David cannot make Levi swear about a
                    deposit even if he says 'perhaps you have it
                    here.' Surely, the word 'perhaps' is a printing
                    mistake. If not, it is no different than a
                    loan, and it is no Chidush. A Safek claim does
                    not obligate swearing. Why did he need to add
                    'presumably, the Shomer did not bring it'?
                    Rather, it should say 'perhaps he cannot make
                    him swear about a deposit, even if he says
                    'surely you have it here.''
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (74:3):</font></b> Shiltei ha'Giborim was unsure if
                    money owed for wages or a sale is like a loan,
                    or like a deposit. Surely, it is like a loan. A
                    deposit is different because the Shomer was
                    supposed to leave it in its place!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If he deposited an item for
               a set time, the Shomer cannot force him to accept it
               back within this time.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (5):</font></b> This is even in a Yishuv (Shiltei
                    ha'Giborim 44a 2, <b>SMA</b> 4). This is obvious.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ketzos ha'Choshen (2):</font></b> There is a lien on a
                    Shomer's property to pay if the deposit will be
                    stolen or lost through negligence. A Shomer
                    Sachar retains responsibility for these even if
                    he returned it before the time he accepted.
                    However, if it was lost through negligence, the
                    owner bears the loss himself. Since he accepted
                    it willingly, he is no less than a Shomer
                    Chinam. If he returned it before the time Bal
                    Korcho of the owner, the owner is not even a
                    Shomer Chinam, and the Shomer is fully liable 
                    like before.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (74:1):</font></b> A caravan is considered like
               a Yishuv.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source:</font></b> Tosefta 10:14, cited in Beis Yosef (3).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (4):</font></b> There is no danger of theft in a
                    caravan.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHEN MAY AN OWNER DEMAND OR REFUSE RETURN OF A LOAN? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Once the animal was exposed to new
          pastures, it needs to be guarded better. The owner must
          know that he has such an animal in his flock.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> This contradicts another teaching of Rava!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> If Reuven saw Ploni take from Reuven's
               flock, and he cried out, and Ploni dropped the
               animal, and Reuven does not know whether it
               returned, and the animal died or was stolen, Ploni
               is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> This is even if Reuven counted his
               flock after the theft.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> No, it is only if he did not count it.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Rav contradicts another of his teachings!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> If one returned it to the flock in the
               Midbar, he is exempt (even if the owner did not know
               and did not count them)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rav Chanan bar Aba):</font></b> Rav admits about a spotted
          animal (surely he noticed its loss, and the shepherd saw
          that an animal was added to the flock).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Suggestion:</font></b> The Amora'im argue like the following
          Tana'im.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yishmael):</font></b> If one stole a lamb from
               the flock or a coin from a wallet, he should return
               to the place he stole from;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Akiva says, the owner must know that it was
               returned.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> We are thinking that all hold like R. Yitzchak.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Yitzchak):</font></b> One constantly checks his wallet.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> The owner knows that the coin was
               stolen. R. Yishmael holds like Shmuel (it suffices
               that the owner counted his money after it was
               returned). R. Akiva holds like Rav (he must know
               that it was returned);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The owner does not know that the lamb was stolen
                    and returned. R. Yishmael holds like R.
                    Yochanan (it suffices to return it to its
                    place). R. Akiva holds like Rav Chisda (he must
                    know that it was returned).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Rejection (Rav Zvid):</font></b> If a Shomer stole from the
          owner's premises, all agree like Rav Chisda (the owner
          must know);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue about a Shomer who stole from his own
               premises.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Akiva says, he is no longer a Shomer, so he
               must return it to the owner. R. Yishmael says, he
               continues to be a Shomer, so he may return to the
               place he stole from.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Tana'im argue about whether or not the
          owner's counting exempts the thief.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #1):</font></b> If Reuven stole from Shimon, and in
               a subsequent transaction, Reuven gave to Shimon more
               than he should have, in order to return the theft
               (without telling him), he was Yotzei.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa #2):</font></b> He was not Yotzei.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> We are assuming that all hold like R. Yitzchak.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Yitzchak):</font></b> One constantly checks his wallet.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> Tana #1 (of Beraisa #1) holds that
               the owner's counting exempts the thief. Tana #2
               holds that it does not.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, all agree that the owner's counting
          exempts the thief;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Explanation #1:</font></b> They argue about R. Yitzchak's
               law. Tana #1 agrees to it, and Tana #2 does not.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Explanation #2:</font></b> They agree to R. Yitzchak's law.
               One Beraisa discusses putting the money in Shimon's
               wallet, and the other discusses putting it in his
               hand. (Rashi - if he put it in his wallet, surely
               Shimon will notice it. If he put it in Shimon's
               hand, perhaps he will put it in his moneybox, not
               his wallet, and will not know that the theft was
               returned. Meiri - one notices what is put in his
               hand, but sometimes does not notice what is put in
               his wallet, like the coming explanation.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Explanation #3:</font></b> In both Beraisos, he put the
               money in Shimon's wallet. In Beraisa #1, there was
               no other money in the wallet at the time. In Beraisa
               #2, there was other money in the wallet at the time
               (and he did not know how much - Rashi. Meiri - some
               explain oppositely. When there is no other money, he
               does not check to see how much there is.)
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>BUYING FROM SHEPHERDS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We may not buy wool, milk or kids from
          shepherds (perhaps they stole them);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	We may not buy fruit or wood from people who guard
          fruit;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	We may buy from women woolen garments in Yehudah, linen
          garments in Galil, and calves in Sharon.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If the seller says to conceal it, it is always
          forbidden.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Everywhere, one may buy eggs and chickens.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> We may not buy from shepherds:
          goats, kids, Gizim (shearings) or bits of wool taken off
          the sheep;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We may buy garments. (Even if they stole the
               wool), they acquired it by changing it.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	We may buy from them milk and cheese in the wilderness,
          but not in a settled area.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	We may buy four or five goats or sheep, or four or five
          Gizim, but not two.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	R. Yehudah says, we may buy home animals (those that
          stay near the house), but not Midbariyos (those normally
          far from the house).
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	The general rule is, we may buy only things that the
          owner will realize they are missing.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa permits four or five goats or
          sheep, or four or five Gizim. If four are permitted,
          there is no need to say five!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1 (Rav Chisda):</font></b> It means that if he has five,
          we may buy four of them.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2 (Rav Chisda):</font></b> We may buy four from a small
          flock, or five from a big flock.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa permits four or five. This
          implies that three is forbidden. It forbids two, which
          implies that three is permitted!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> We may buy three healthy animals, or four or
          five weak ones.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Beraisa - R. Yehudah):</font></b> We may buy home animals, but
          not Midbariyos.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> To which law does R. Yehudah refer?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Does he qualify the allowance to buy four or
               five, and restricts this to home animals, but four
               or five Midbariyos are forbidden?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, does he qualify the Isur to buy two, and
               restricts this to Midbariyos, but two home animals
               are permitted?
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer (Beraisa - R. Yehudah):</font></b> We may buy home animals,
          but not Midbariyos. We are always allowed to buy four or
          five.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This shows that he qualifies the Isur to buy two.
<br>

<p>

sjt:
</p><p>
<font><b>2) BUYING ANIMAL PRODUCTS FROM SHEPHERDS</b></font><b>
<br>QUESTION:</b> The Mishnah states that one may not buy wool, milk, or goats from shepherds. <b>RASHI</b> (DH Ein) explains that the reason is that a shepherd is suspected of having stolen such items from the flock which he is employed to watch. The Gemara cites a Beraisa which states that one may buy ready-made clothing from them, because such items certainly belong to the shepherds. The Beraisa adds that one may buy milk and cheese from shepherds in the desert, but not in settled areas.
</p><p>
<b>RASHI</b> (DH Tefurim) explains that the reason why one may buy ready-made clothing is that even if the material from which the clothing is made in fact is stolen, nevertheless the shepherds acquired it with a Shinuy when it was made into a garment. (See <b>RASHBA</b> who disagrees with Rashi, and see <b>BACH</b> (CM 358:2) who answers the Rashba's question on Rashi.)
</p><p>
Rashi (DH Chalav) also explains why one may buy milk and cheese from shepherds in the desert. The owners of the animals usually do not go to the desert to take the materials produced by their animals (because going there involves too much effort for too little gain), and thus they allow the shepherds to keep the materials. (See <b>TUR</b> CM 358.) In contrast, in settled areas it is the common practice for the shepherds to bring the milk and other products to the owners (Rashi DH Aval), and therefore the products do not belong to the shepherds.
</p><p>
What is the difference between ready-made clothing and cheese in a settled area? Just as one may buy clothing from the shepherds because even if the material is stolen, they acquired it with a Shinuy, one should also be permitted to buy cheese, even in town, because even if the milk is stolen, when the shepherds make cheese from the milk they acquire it through a Shinuy.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>PNEI YEHOSHUA</b> explains that one may not purchase l'Chatchilah an item when there is strong reason (a Chazakah) to assume that it is stolen, even if the thief acquired it with a Shinuy. Purchasing such an item constitutes 'Mesayei'a Ovrei Aveirah,' assisting transgressors. If no one would buy stolen goods from a thief, the thief stop stealing. Accordingly, buying from him is prohibited since it supports and encourages his thievery. (The Pnei Yehoshua writes that this is the ruling of the <b>SHULCHAN ARUCH</b> CM 358:1; see also CM 269:1 and <b>S'MA</b> #1.)
</p><p>
In contrast, one is permitted to purchase ready-made garments from the shepherds because there is no certainty that the wool from which the garments are made was stolen. Perhaps they bought the wool to make clothes in the same way that tailors do. Since there is only a doubt that the wool might be stolen, one may buy the garments. In contrast, it is unusual for shepherds to buy milk in order to produce cheese, and thus one must assume that the cheese they sell is made from stolen milk and if he purchases the cheese he will be encouraging theft.
</p><p>
(b) <b>RAV YEHOSHUA LEIB DISKIN</b> (in <b>TORAS HA'OHEL</b> page 16a, DH Sham) answers that the Gemara must be referring to the purchase of cheese outside of Eretz Yisrael. The Mishnah earlier (79b) states that one may not raise Behemah Dakah (small, domesticated animals, such as a sheep and goats) in Eretz Yisrael.
</p><p>
The <b>RAMBAM</b> (Hilchos Ma'achalos Asuros 11:25) writes that in Chutz la'Aretz one may buy cheese only from a seller who has a Chezkas Kashrus (he is known to be reliable). Since the shepherds are known to be thieves they clearly cannot be relied upon for Kashrus, and one must suspect that they may have made the cheese with non-kosher materials.
</p><p>
(The Rambam's reasoning seems to contradict the words of <b>TOSFOS</b> in Chulin (12a, DH Harei), who writes that when one is suspected of stealing he is <i>not</i> automatically suspect of improperly slaughtering an animal. Perhaps, however, Tosfos agrees that a higher level of reliability is required for a person to have a Chezkas Kashrus and to trust him with regard to purchasing cheese from him in Chutz la'Aretz.) (D. Bloom)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>SUSPECTED THIEVES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We may not buy from people who guard
          fruit...
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Rava bought a bundle of vine shoots from a
          sharecropper.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Abaye:</font></b> The Mishnah forbids buying fruit or wood from
          people who guard fruit!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rava:</font></b> It refers to guardians, who receive no share of
          the Peros. Sharecroppers receive a share of the Peros, we
          may suppose that they sell from their share.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We may buy from people who guard fruit when
          they sit and sell with the baskets and big scales in
          front of them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the seller says to conceal it, it is always
               forbidden.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	We may buy from them at the entrance to the garden, but
          not in back of it.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> When may one buy from a thief?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1 (Rav):</font></b> One may buy only if the majority of
          what he sells is his.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (Shmuel):</font></b> One may buy even if the minority is
          his.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Yehudah ruled like Shmuel.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rav Huna or Rav Yehudah):</font></b> One may destroy property of
          a Moser (one who shows others' money to people who will
          take it by force).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(The other of Rav Huna and Rav Yehudah):</font></b> One may not
          destroy his property.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One permits, for one may even kill a Moser, all
               the more so one may destroy his money!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One forbids, lest he will have a righteous heir -
               'the Rasha prepares, and the Tzadik will wear'.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	Rav Chisda's sharecropper was meticulous to take his
          full share (alternatively, he took more than he was
          entitled to. Maharsha challenges the first explanation,
          for one who takes his exact share is not called a Rasha.
          Ben Yehoyada - he would weigh Rav Chisda's share while
          the grain was moist, and take the same weight for his own
          share after it dried.)
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	Rav Chisda fired him, and kept his portion - 'the
          wealth of the sinner waits (to pass to) the Tzadik'.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THEFT IS LIKE MURDER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Huna or Rav Chisda):</font></b> 'What is the hope of an
          evildoer when he steals? Hash-m Yeshel his soul' - Hash-m
          will give serenity to the soul of his victim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He learns from 'the way of a thief, he takes the
               owner's soul.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(The other of Rav Huna and Rav Chisda):</font></b> It means,
          Hash-m will cast off the thief's soul.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He learns from 'do not steal from a poor person
               because he is poor, or afflict the Oni in the gate.
               Hash-m will wage their battle and Kova Es Kov'eihem
               Nafesh (mortally avenge the one who afflicted
               them).'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> How does the latter opinion explain the first
          verse?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Hash-m will take the (thief's i.e. the) current
          owner's soul.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> How does the first opinion explain the latter
          verse?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> It explains why Hash-m will avenge the thief,
          i.e. for he mortally afflicts his victims.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> If who steals a Perutah, it is as if he
          takes the soul of his victim - 'the way of a thief, he
          takes the owner's soul';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It also says 'he will eat your harvest and your
               bread, (it is as if) they will eat your sons and
               daughters';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It also says 'the Chamas (extortion) of people of
               Yehudah, who spilled innocent blood in their land'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> It also says 'to Sha'ul... that he killed the
               Giv'onim.'
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Why are all these verses needed?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that theft is like
          killing only the owner, but not his children - 'your sons
          and daughters' teaches that this is not so;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that this applies only to
               theft without paying, but not to one who pays - 'the
               Chamas of people of Yehudah, who spilled innocent
               blood ' teaches that this is not so;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One might have thought that this applies only to
               direct theft, but not by causation - 'to Sha'ul...
               that he killed the Giv'onim' teaches that this is
               not so.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Where do we find that Sha'ul killed the
               Giv'onim?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> He did not directly kill them. He killed
               the Kohanim of Nov, and they used to supply them
               with water and food. (Rashi Yevamos 78b - the
               Kohanim used to supply the Giv'onim. Maharsha - the
               Giv'onim supplied the Kohanim, and they were blessed
               for doing so.)
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The verse considers this like killing them.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>BUYING FROM WOMEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We may buy from women...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We may buy woolen garments in Yehudah and
          linen garments in Galil from women;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	We may not buy wine, oil and flour from them, nor from
          slaves or children;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Elazar bar Shimon says, a woman may sell the value
          of four or five Dinarim, in order to make a covering for
          her head.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	If the seller says to conceal it, it is always
          forbidden.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Collectors of Tzedakah may take only a small amount
          from women.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	From wives of olive-pressers, we may buy a large
          quantity of olives or oil, but not a small amount.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	R. Shimon ben Gamliel says, in upper Galil we may buy a
          small amount of olives from women, for often their
          husbands are embarrassed to sell themselves, and ask
          their wives to sell.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Ravina (who collected Tzedakah) visited Bei Mechuza.
          Women threw gold chains and bracelets at him. He took
          them.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rabah Tosfah:</font></b> The Beraisa permits collectors of
          Tzedakah to take only a small amount from women!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Ravina:</font></b> For people of Mechuza, this is a small amount.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHICH THINGS PEOPLE CARE ABOUT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Launderers may keep tufts that they remove
          from clothing;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> What a fuller (one who cleans and shrinks wool)
               removes, he must return it to the owner (of the
               garment).
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If a launderer removes three threads to even out a
          garment, he may keep them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he removes more, he must return them to the
               owner.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If there are black threads on a white garment, he
               may keep as many as there are (for they detract from
               the garment).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If a tailor had enough thread left over to sew with, or
          cut off a piece of material three fingers by three
          fingers, the owner gets it;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Shavings shaved off by a Ma'atzad (plane) belong to the
          carpenter. Those from a Keshil (big plane) belong to the
          owner.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he is working in the owner's house, even
               sawdust from a drill belongs to the owner.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> We may buy tufts from a launderer,
          because they belong to him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A launderer takes the two top threads;
<br>
<br>

sjt:
<font><b>1) BUYING FROM A THIEF WHEN ONLY A MINORITY OF HIS MERCHANDISE IS STOLEN</b></font><b>
<br>QUESTION:</b> The Gemara asks, 'When is one permitted to buy from a thief?' Rav answers that one is permitted to buy from a thief only when most of his property belongs to him. <b>RASHI</b> (DH Rov) explains that since the majority of his merchandise is not stolen, one may assume that the object that he is buying is from the majority and he may derive benefit from that object. Shmuel disagrees and asserts that even when only a minority of his property actually belongs to him, one is permitted to buy from him. Rashi (DH Afilu) explains that one may assume that anything he buys from the thief is from the minority of his merchandise which legally belongs to him. The Gemara relates that Rav Yehudah ruled that one may rely on Shmuel's opinion.
</p><p>
The <b>RAMBAM</b> in Hilchos Gezeilah v'Aveidah (5:8) and the <b>SHULCHAN ARUCH</b> (CM 369:3) write, 'One is forbidden to derive benefit from a Gazlan. However, if a minority of his property belongs to him, even though the majority of his property is stolen, one is allowed to derive benefit from him unless he knows for certain that the object he is buying is stolen.' They clearly follow the ruling of Shmuel.
</p><p>
However, elsewhere they seem to rule otherwise. The Rambam in Hilchos Geneivah (6:1) and the Shulchan Aruch (CM 358:1) write, 'Anything for which there is a Chazakah (assumption) that it is stolen (Geneivah) is forbidden to buy. Similarly if the majority of objects of this type (in the hands of the seller) is stolen, one may not buy it. Therefore, one may not buy wool, milk, or goats from shepherds....' The source for this ruling is the Mishnah earlier (118b), which implies that when a majority of the merchandise of a seller is stolen, one may not buy any of it from him. The Mishnah seems to contradict the ruling of Shmuel, who rules that one may buy from the seller even when a majority of his merchandise is stolen, as long as a minority is not stolen. How is Shmuel's ruling to be reconciled with the Mishnah, and how are the rulings of the Rambam and Shulchan Aruch to be reconciled?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAGID MISHNEH</b> (Hilchos Gezeilah 5:8) answers that the Rambam in Hilchos Geneivah rules according to Rav, that the majority of the seller's merchandise must belong to him in order for one to be permitted to buy his wares. He rules like Rav because the Gemara in Nidah (24b) states that the Halachah always follows the opinion of Rav in matters of Isur v'Heter (questions involving whether something is forbidden or permitted). Since buying from a thief involves a question of benefiting from and encouraging theft, it is considered a question of Isur v' Heter, and not merely a financial matter. The Magid Mishneh writes that <b>RABEINU CHANANEL</b> and the <b>GE'ONIM</b> also rule according to Rav.
</p><p>
The Magid Mishneh writes that the reason why the Rambam rules according to Shmuel in Hilchos Gezeilah is that he distinguishes between a Ganav (who steals clandestinely) and a Gazlan (who steals openly). Rav's source for prohibiting one from purchasing merchandise from a seller when a majority of his goods are stolen is the Mishnah (118b) which says that one may not buy from shepherds. Shepherds are considered Ganavim because they steal clandestinely and not openly.
</p><p>
Although Rav does not distinguish between a Ganav and Gazlan and he applies his ruling to both, Shmuel <i>does</i> distinguish between them. Shmuel rules that one may buy from a Gazlan as long as a minority of his merchandise is not stolen. In this regard, the Rambam follows the view of Shmuel (despite the general principle that the Halachah follows the view of Rav in cases of Isur v'Heter), perhaps because Rav Yehudah ruled in practice like Shmuel in the case of a Gazlan.
</p><p>
(b) In his second explanation, the Magid Mishneh suggests that there is a difference between a case in which 'a majority of the money' in the seller's hands is stolen, and a case in which a 'majority of a particular type of object' in the seller's hands is stolen. When a majority of the money in the seller's hands is stolen, one may not buy from him. When a majority of one particular type of object is stolen, one may buy from him. (The Magid Mishneh comments that this is the primary explanation.)
</p><p>
The <b>DERISHAH</b> (CM 368:1-2) explains the Magid Mishneh's intention as follows. A 'majority of a particular type of object' means, for example, most of the wood, milk, cheese, or goats found in a shepherd's possession are stolen. While some shepherds are upright and do not steal at all, others are professional thieves and <i>everything</i> in their possession is stolen. When one buys from a shepherd, one does not know if the shepherd is an honest person or a thief. Therefore, one must follow the majority and assume that he is a professional thief. Consequently, he cannot presume that when he buys the object from the shepherd that it is from the minority of objects that he actually owns, because each shepherd is judged by the majority and therefore is deemed to have no permitted merchandise at all.
</p><p>
(This application of the principle of Rov is similar to the law of Rov in other matters, such as Tereifos. If it is known, for example, that a fourth of all cows in a certain region have been found to be Tereifos, it is not assumed that one out of every four cows has the status of a Tereifah. Rather, they all have the status of a kosher animal.)
</p><p>
In contrast, one may buy goods from a person who is not a shepherd, even though he is suspected of stealing. The buyer may rely on the possibility that the objects he seeks to buy are not stolen. In contrast to buying from a shepherd, where the seller-shepherd is a part of many shepherds (and is thus subject to the Rov that states that shepherds are thieves), this suspected Gazlan clearly owns some of his possessions legally. Since he is judged as an individual and not according to a Rov, one may rely upon the possibility that the goods one purchases from him are part of the known quantity of goods that he owns legally.
</p><p>
According to this explanation, the Rambam may rule like Shmuel, in contrast to the way Rabeinu Chananel rules. This ruling follows the general principle (see Bechoros 49b) that in monetary matters the Halachah always follows the opinion of Shmuel. (It is considered a monetary matter because it involves the question of ownership of the item.)
</p><p>
(See <b>BACH</b> (CM 358:1) who gives a similar explanation to that of the Derishah. See also <b>S'MA</b> (CM 358:2, 369:5), <b>TAZ</b> (CM 369:3), and <b>EVEN HA'AZEL</b>, Hilchos Geneivah 6:1.) (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHERE WE ATTACH TZIZIS</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'> (Rav Yehudah):</font></b> If the launderer did not remove three
               threads (to even out a garment), they count towards
               the amount that the Techeiles strings (of Tzitzis)
               must be distanced from the corner.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Menachos 41b (Rav Huna):</font></b> The threads must be within
               four (Etzba'os from the corner).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Yehudah and Rav Papa):</font></b> They must be within
               three.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 42a (Beraisa):</font></b> If one attached threads on the Keren
               (corner), or on the Gedil (a strong thread on the
               border, or threads hanging from the edge of a
               garment), it is Kosher;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> R. Eliezer ben Yakov says, both of these are Pasul.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rav):</font></b> Tzitzis must hang over the Keren.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> He holds like R. Eliezer ben Yakov.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (R. Yakov):</font></b> One must distance the Tzitzis (from the
               Keren) a Godel.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> We need the teachings of R. Yakov and Rav Papa. Rav
               Papa gave the maximum distance from the Keren. One
               might have thought that it can be as close as
               desired, and the closer the better! R. Yakov gave
               the minimum distance from the Keren. One might have
               thought that it can be as far as desired, and the
               further the better!
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> The corner of Ravina's garment tore, and the Tzitzis
               was no longer a Godel from the Keren.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rav Sama (to Ravina):</font></b> Do you argue with R.
                    Yakov?!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ravina:</font></b> That applies only when attaching the
                    Tzitzis.
<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 (Hilchos Tzitzis, after Menachos
               12b and 14) bring the Gemara in Menachos.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Tzitzis 6:1):</font></b> To make Tzitzis, one
               begins from the Zavis (corner) at the end of the
               weaving and and distances between Kesher Godel (a
               thumb joint) and three Etzba'os.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Mordechai (948):</font></b> One inserts the strings within
               three Etzba'os of the corner. Further than this is
               not called 'corner.' They must be at least Malei
               Godel from the corner, for it says '<i>Al</i> the
               corner', not 'below the corner.' It is good to make
               a border on the edge, for sometimes threads separate
               from the garment, and it is a Safek from where to
               count the three Etzba'os.
<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 11:9):</font></b> One makes a hole in the
               length of the Talis, not more than three Etzba'os
               (Rema - i.e. Godelim), for is not called 'corner.'
               It may not be less than the distance between the
               joint of the thumb until the nail, for it says '<i>Al</i>
               the corner.' If it was less than Malei Kesher Godel,
               it would be below the corner.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Beis Yosef (DH v'Ya'aseh):</font></b> The hole must be (far
               from the end) at least the distance from the joint
               of the thumb until the end of the nail. 'Keren' is
               the end of the garment, i.e. the bottom. Because
               Tzitzis must be near the bottom, where the corner
               is, it is called Keren. Some say that the Tur refers
               to the corner, and measures three Etzba'os from it
               on the diagonal. This is wrong. If so, why did he
               say 'in the <i>length</i> of the Talis'? Also, he and
               Semag say that there is no Shi'ur in the width of
               the garment. Also the Rambam agrees. If he held that
               one measures along the diagonal, he would have said
               so explicitly. He said that one begins from the
               Zavis, because one must put near the Zavis, where
               the corner is. One measures the straight distance
               (from the bottom); everyone does so. If one measured
               (Kesher Godel) on the diagonal it is Pasul, for
               there is less than Kesher Godel from the bottom,
               since for each unit measure of length, the diagonal
               is (bigger, i.e.) one and two fifths.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Makom):</font></b> If he put it exactly
                    three Etzba'os away, it is Kosher. Only further
                    is Pasul. The Roke'ach forbids putting it three
                    Etzba'os away. We must strain (to explain that
                    he means more than three) to avoid saying that
                    he argues with Rashi, the Rambam and Semag.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH v'Chosav):</font></b> The Kolbo, Semak,
                    Roke'ach, and Mordechai say that 'Etzba' is a
                    Godel. The Rambam says that it is a thumb
                    width. Many people measure the three middle
                    fingers. They err. They have no one to rely on.
                    The Mordechai says that we measure from where
                    the thumb is wide. Tosfos (Menachos 41b DH
                    Arba'ah) was unsure about this.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH v'grs):</font></b> Semag says that within
                    Malei Kesher Godel is not '<i>Al</i> the corner',
                    rather, below the corner. One may not put
                    Tzitzis in the border, for it is not called
                    'garment.' Rashi holds that the last Kesher
                    Godel is called Keren. Between one and three
                    Godelim is called Kenaf (corner). Above three
                    is the garment itself.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Beis Yosef (DH uv'Kolbo):</font></b> The Kolbo says that
                    the hole must be at the end of three Etzba'os.
                    This is difficult, for the Gemara says that
                    past Kesher Godel suffices!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Question (Beis Yosef DH v'Rabbeinu):</font></b> Mahari
                    Avuhav says that it must be between at most
                    three because less than three is not called the
                    garment. It must be more than one, for less
                    than this is not called Kenaf. I do not
                    understand this. Less than three is Kosher
                    because the Torah does not require on the
                    garment, rather, on the Kenaf! According to
                    Mahari Avuhav, within three should be Pasul,
                    but the Gemara says that it is Kosher!
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Answer (Taz 9):</font></b> Mahari Avuhav says that since
                    within three is not called Beged, the hole must
                    be within three, where it is called Kenaf!
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Taz (8):</font></b> Godel is where the thumb is widest,
                    not at the end where it is narrow.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Bi'ur Halachah (DH Hainu):</font></b> This is the primary
                    opinion. However, one must make the hole within
                    three Etzba'os. It is best to make the hole
                    within the width of the pinky, ring and middle
                    fingers, for this also fulfills the opinion
                    that we measure where the thunb is thin.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Kaf ha'Chayim (27):</font></b> Only the Mordechai and
                    Rambam definitely say to measure from where it
                    is widest. The Ari Zal and many say that we
                    measure from where it is narrow.
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Beis Yosef (Sof ha'Siman DH Kosav):</font></b> The Sifri
                    explains that on the Keren is Pasul because
                    then it has eight, and the Torah said four.
                    Ba'al ha'Itur explains that the way we put
                    Tzitzis on, we can use them also if the garment
                    is turned inside out, so it is as if it has
                    Tzitzis on eight corners. He disqualified all
                    our Tzitzis, and said that his Rebbin a Yishuvm
                    make two holes in the garment and insert the
                    Tzitzis through them, so all are on one side of
                    the garment. To defend our custom, he explains
                    the Medrash to disqualify Tzitzis diagonally on
                    the corner. It is as if each Tzitzis is on both
                    sides, therefore it is like eight. The
                    Yerushalmi says that whenever the Halachah
                    wavers, we follow what people do. One who is
                    stringent about such matters is not stringent,
                    rather, he is shocking, for it looks like
                    haughtiness.
<br>             <b>  <b><font color='darkgreen'>xi. </font></b><font color='darkgreen'> Bach (DH v'Ika):</font></b> Surely, the Sifri disqualifies
                    only when one actually affixed eight Tzitziyos.
                    Ba'al ha'Itur means that l'Chatchilah, one
                    should make two holes, lest it seem like it has
                    eight. He did not disqualify b'Di'eved!
                    However, Mahari Avuhav (cited in the Beis
                    Yosef) understood that he disqualifies
                    b'Di'eved. It is proper to be stringent like
                    Ba'al ha'Itur regarding the Talis Katan, which
                    is under one's garment and others do not see
                    it, so it does not look like haughtiness.
                    Maharil says that one should not hang the
                    Tzitzis on the bottom, rather, on the side.
<br>             <b>  <b><font color='darkgreen'>xii. </font></b><font color='darkgreen'>Magen Avraham (13):</font></b> Also the Ari Zal did like
                    Ba'al ha'Itur. This is difficult, for the
                    Gemara said that the first knot must be
                    mid'Oraisa, for if not, the Torah did not need
                    to permit Shatnez in Tzitzis, for we hold that
                    one insertion (of a thread through a garment)
                    is not considered attached. According to Ba'al
                    ha'Itur, two insertions are required!
<br>             <b>  <b><font color='darkgreen'>xiii.</font></b><font color='darkgreen'>Mishnah Berurah (39):</font></b> Birkei Yosef says that R.
                    Chaim Vital did not do like the Ba'al ha'Itur.
                    Each locale has its own practice.
               xiv. Kaf ha'Chayim (24): Surely, R. Chaim Vital
                    understood that the Ari Zal held this is not
                    Me'akev. He merely continued the Ashkenazi
                    custom of his youth. Therefore, R. Chaim Vital 
                    did not change his custom. Also Chasidei Beis
                    Kel in Yerushalayim do not do so even on the
                    Talis Katan.
<br>             <b>  <b><font color='darkgreen'>xv. </font></b><font color='darkgreen'> Mishnah Berurah (41):</font></b> If one inserted the
                    strings more than three Etzba'os from the end,
                    and through tying them the garment shriveled
                    and now there are less than three, it is Pasul,
                    for there is a Shi'ur Beged in between. If one
                    inserted them more than a Kesher Godel from the
                    end, and through tying them it became less than
                    Kesher Godel, it is Kosher, for there is a
                    Shi'ur of Kenaf in between.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> We measure straight, not on a diagonal from
               the corner.<p>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He should not sew loops (for stretching the
               garment) with more than three stitches.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	He should not comb the garment in the direction of the
          warp threads, rather, in the direction of the woof
          threads;
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	He should even it out lengthwise, not widthwise;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He may remove strands up to one Tefach thick to
               even it out.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Contradiction:</font></b> The Beraisa permits taking two threads,
          the Mishnah permits three!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa discusses strong threads. The
          Mishnah discusses weak threads.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>PROPER FIXING OF GARMENTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> He should not comb the garment in the
          direction of the warp threads, rather, in the direction
          of the woof threads.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Contradiction:</font></b> Another Beraisa says just the opposite!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> A garment worn every day should not be combed
          in the direction of the warp threads, lest it tear
          easily. For a fancy garment, this is better, for it looks
          nicer.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> He should not sew loops with more than three
          stitches.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (R. Yirmiyah):</font></b> Does this mean three insertions
          of the needle, or three complete (insertion and
          extraction) stitches?
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	This question is unsettled.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> He should even it out lengthwise, not
          widthwise;
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Contradiction:</font></b> Another Beraisa says just the opposite!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> A regular garment should be evened out
          lengthwise. A belt should be evened out widthwise (since
          only the ends are seen).
<br><b>
<br></b><b><b><font color='blue'>6) </font></b><font color='blue'>WHAT MAY BE BOUGHT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We may not buy tufts from a fuller, for they
          do not belong to him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In a place where the custom is that he keeps
               them, we may buy.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Everywhere, we may buy from him a pillow or
               blanket stuffed with tufts.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> (Even if he stole them,) he acquired them
               through changing them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We may not buy the following from a weaver:
          wool put on the pole holding the woof threads, threads
          through which the warp threads pass, woof threads, or
          leftover balls of thread. We may buy a multicolored
          garment (even though it seems that the material was taken
          from other garments), and spun or woven threads.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Something woven was already spun (it suffices
          to permit spun threads)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa teaches about plaits, which were
          not previously spun.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We may not buy from a dyer samples (of
          garments, taken to see how the dye will be absorbed),
          examples (of wool of the desired color) or bits pulled
          from shearings;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We may buy from him dyed garments, spun thread
               and garments.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> A garment was already spun!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa teaches about felt, which was not
          previously spun.
<br><b>
<br></b><b><b><font color='blue'>7) </font></b><font color='blue'>WHAT MAY BE BOUGHT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If one gave skins to a tanner, the pieces of
          skin and wool that come off belong to the owner;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> What comes off in the water, the tanner keeps.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Black threads...
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> A launderer is called Katzra. He is
          Mekatzer (shortens) garments, and keeps what he removes.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If the three threads were not taken,
          they count towards the thumb's-breadth that the Techeiles
          strings (of Tzitzis) must be distanced from the corner;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 	My son Yitzchak is particular about them (he
               takes them).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a tailor had enough thread left over...
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> How much is considered enough to sew with?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Asi):</font></b> It is a needle's length, and past the
          needle (one needs a needle's length just to insert the
          needle).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Does he mean a needle's length above the
          (length of the) needle, or a needle's length, and any
          amount more?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> If a tailor had thread left over
          insufficient to sew with, or fabric less than three
          fingers by three fingers, if the owner wants them, he
          gets them. If not, the tailor keeps them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the Mishnah means two needle's lengths, even
               less than this can be used for a loop.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But if the Mishnah means a needle's length and
               any amount past this, less than this is useless!
               (Why would anyone want it?)
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We conclude, it means two needle's lengths.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Shavings that come off a Ma'atzad (plane)
          belong to the carpenter. Those from a Keshil (big plane)
          to the owner.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> Pieces that come off a
          Ma'atzad or saw belong to the owner. Shavings from a
          drill or plane and sawdust belong to the carpenter.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> In the region of the Tana of the
          Mishnah, there are two kinds of planes. Big ones are
          called Keshil, and small ones are called Ma'atzad;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the region of the Tana of the Beraisa, they
               only have big ones, and they call them Ma'atzad.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he is working in the owner's house...
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If one quarries rocks, we may buy from
          anything from him;
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	Pruners of trees, vines and bushes, weeders, people who
          uproot some of the vegetables where they are growing too
          densely, if the owner wants what they remove, they must
          give him.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> One may keep hops and unripe fodder,
          except in places where people care about them.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Ravina):</font></b> In Masa Machsiya, people care about them.
<br>
<br><b>TAM V'NISHLAM</b>, <b>B'EZRAS HA'TZUR</b>
<br>

sjt:
</p><p>
<font><b>2) AGADAH: WHY THE PEOPLE OF MASA MECHASYA WERE PARTICULAR ABOUT ANIMAL FODDER</b></font><b>
<br>QUESTION:</b> Rav Yehudah stated that hops, and crops in their early stages of growth (used for animal fodder), are not subject to theft, except in a place where people tend to be particular about them. Ravina commented that the people of Masa Mechasya are particular about these things.
</p><p>
Why were the people of Masa Mechasya particular that people not take their unripe crops used for animal fodder?
</p><p>
<b>ANSWER:</b> The <b>MAHARAM SHIF</b> (in his Siyum on Bava Kama) suggests why the people of Masa Mechasya did not allow people to take their animal fodder. The Gemara in Horayos (12a) teaches that 'it is preferable to sit on the garbage piles of Masa Mechasya than to dwell in the palaces of Pumbedisa.' <b>RASHI</b> there (DH d'Masa) explains that Masa Mechasya was home to Talmidei Chachamim who were both fit to give Halachic rulings and cultured people. In contrast, the people in Pumbedisa were not so cultured. (See also Rashi in Shabbos (153a, DH d'Sanu), where he writes that the people in Pumbedisa were swindlers, as the Gemara in Chulin (127a) and Bava Basra (46a) says, 'Come and I will show you the cheaters of Pumbedisa.')
</p><p>
The Maharam Shif cites the Gemara in Chulin (91a) which teaches that Yakov Avinu remained alone on the other side of the river (see Bereishis 32) because he wanted to recover the small utensils he had left there. The Gemara derives from this incident that Tzadikim value their property more than their own bodies. The reason for their meticulousness is that they seek to stay far away from the transgression of stealing. Therefore, a Talmid Chacham is particular with small amounts of money, even though such for other people such parsimony would be a negative trait.
</p><p>
This explains why Maseches Bava Kama concludes with a description of the conduct of the people of Masa Mechasya. It was a town of Torah scholars who, as Tzadikim, wished to keep themselves far away from any contact with thievery, and thus they were careful about property which most others were not careful about. This positive trait of the residents of Masa Mechasya is mentioned at the end of Bava Kama, the Masechta which deals with the Torah's instructions to respect and value other the belongings of others. (D. Bloom)
</p><p>


<font><b>3) AGADAH: THE END OF THE MASECHTA</b></font><b>
<br>QUESTION:</b> Rav Yehudah stated that hops, and crops in their early stages of growth (used for animal fodder), are not subject to theft, except in a place where people tend to be particular about them. The Masechta concludes with the comments of Ravina who added that the people of Masa Mechasya are particular about these things and do not allow them to be taken.
</p><p>
<b>RASHI</b> (DH Masa) writes that the people of Masa Mechasya owned a lot of animals and they required 'Mir'eh Tov' -- 'good grazing' for animal food.
</p><p>
Why does Rashi add the apparently unnecessary word, 'Tov,' at the end of his comment? It would suffice for Rashi to write simply that the people in Masa Mechasya needed 'grazing' for their abundance of animals. (<b>MAHARSHA</b>)
</p><p>
<b>ANSWER:</b> The <b>MAHARSHA</b> writes that Rashi may be following the custom that one should always finish a section of Torah learning on a good note. Bava Kama begins with a discussion of the four primary types of damages. One of the damages mentioned in the first Mishnah (2a) is Mav'eh, which, according to Rav (3b), refers to a person who causes damage. The Maharsha there writes that the four damages allude to misfortunes which befall the Jewish people, Chas v'Shalom. The damage caused by 'Mav'eh' (a person) corresponds to the suffering imposed on the Jewish people by Esav, the forebear of Edom, who is mentioned in the verse which Rav cites as support for his interpretation of the word 'Mav'eh': 'How Esav has been pillaged! His hidden things sought out (Niv'u)!' (Ovadyah 1:6). Esav is referred to as plain 'Adam' ('man') in the verse which discusses the domination of Esav over Yisrael in the verse (Yeshayah 43:4), 'And I shall put a man (Adam) in your place.'
</p><p>
The last four chapters of Bava Kama (from 62b until the end) deal with damages caused by man. Rashi noticed that Bava Kama, in contrast to most other Masechtos, does not conclude with a piece of Agadah. The reason for this is that Bava Kama, Bava Metzia, and Bava Basra were originally one large tractate that were separated into three smaller ones. Rashi sought to ensure that that Bava Kama would end on a good note even after it was made into a tractate of its own. Therefore, he did not want to conclude his commentary with the word 'Mir'eh,' the last three letters of which spell 'Ra'ah' -- 'bad.' Rashi added the word 'Tov' so that his commentary to Bava Kama would conclude with 'Good.' (D. Bloom)
</p><p>


