# dafyomi

lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>REPAYING IN A DIFFERENT CURRENCY (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> The new coins have more weight (they are 
          worth more to be melted down)!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #2:</font></b> A case occurred, and Rav Papa and Rav Huna 
          brei d'Rav Yehoshua checked with a moneychanger, and 
          found that eight new coins equal 10 old coins (which were 
          lent);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 (Rashi):</font></b> They ruled that eight new 
               coins must be returned. (Had they added less to the 
               coins, the same number lent would be returned.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #1 (R. Chananel, brought in Tosfos):</font></b> They 
               ruled that 10 new coins must be returned. (Had they 
               added more to the coins, only the same weight of 
               metal lent would be returned.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>IS ONE LIABLE FOR MAKING A COIN UNUSABLE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rabah):</font></b> If Reuven threw Shimon's coin into the sea, he 
          is exempt.
<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 coin is there; it can be retrieved.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if the water is clear, so the coin 
               can be seen. If the water is cloudy, he is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is only if he knocked Shimon's hand. If he 
               took the coin and threw it, he stole it, and he must 
               return the coin to Shimon.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rava - Mishnah):</font></b> One may not redeem (Ma'aser 
          Sheni) on coins not in his Reshus;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he had coins in a far away place (with no safe 
               way to get there), or if his coins fell into the 
               sea, they may not be used.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> Regarding redemption of Ma'aser, the 
          coins must be available to him - 'you will bind the money 
          in your hand'. (Normally, money on the sea floor is not 
          considered lost.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rabah):</font></b> If Reuven rubbed out the writing or picture on 
          Shimon's coin, he is exempt.
<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> He did not do (take away) anything!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if he pounded it with a hammer. If 
               he filed it smooth, he removed some of the metal, so 
               he is liable.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rava - Beraisa):</font></b> If a master hit his slave on 
          his eye and blinded the eye, or on his ear and deafened 
          the ear, the slave goes free (even though nothing is 
          missing)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he hit him near the eye or ear, and he cannot 
               see or hear, he does not go free.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Rabah holds that one who deafens his father is 
          killed, for certainly he made a wound; a drop of blood 
          fell in his ear (there is a loss).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DAMAGE THAT DOES NOT AFFECT THE INTRINSIC VALUE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rabah):</font></b> If Reuven made a groove in the ear of Shimon's 
          cow (disqualifying it from being a Korban), he is exempt.
<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 cow is fine. Not all cows are destined to 
          be Korbanos.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rava - Beraisa):</font></b> If Reuven worked with 
          Shimon's red heifer, or with his water destined to be 
          sanctified with ashes of a red heifer (which disqualifies 
          them), he is exempt b'Yedei Adam, but liable b'Yedei 
          Shamayim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He is only exempt for work, for this is not 
               noticeable. He would be liable b'Yedei Adam for a 
               notch in the ear, which is noticeable!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> No, he is exempt b'Yedei Adam even for a notch 
          in the ear, which is noticeable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Beraisa teaches that even for work, which is 
               not noticeable, he is liable b'Yedei Shamayim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rabah):</font></b> If Reuven burned Shimon's loan document, he is 
          exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He can say 'I burned a mere piece of paper!'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rami bar Chama):</font></b> What is the case?
<br>
<br>

sjt:
<font><b>1) WHEN DOES AN ACT OF LIFTING CONSTITUTE STEALING?</b></font><b>
<br>QUESTION:</b> Rabah rules that if one throws his friend's coin into the sea, he is exempt from paying. He may say to his friend that the coin is available, lying on the seabed, and if the owner wants he may take it from there. This claim applies only when the water is clear and the coin can be seen. If the water is murky, he is liable to pay. The Gemara adds that the exemption from payment (when the water is clear) applies only when the coin was in the hand of its owner, and the person struck him under his hand and caused the coin to be cast into the sea. However, if he actually takes the coin out of the hand of the owner and throws it into the sea, it is considered an act of theft for which he is obligated to pay. In such a case, he is obligated to return the coin even if he threw it into clear water.
</p><p>
Earlier (26b), Rabah says that when one throws a vessel off of the roof when there are cushions on the ground to break its fall, but someone else comes and removes the cushions before the vessel lands and the vessel shatters, the person who threw the utensil is exempt. At the time he threw the vessel it was not destined to break since the cushions were there at that time.
</p><p>
Why does Rabah not say that when the person lifts up the vessel in order to throw it from the roof, he is considered as though he is stealing the vessel, and he therefore is obligated to return the stolen vessel?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>SHACH</b> (CM 386:20) answers that the Gemara there (26b) refers to a case in which the person who threw the vessel off the roof did not actually lift it up first; rather, he merely pushed it off the roof. If he would have lifted up, his act indeed would have been considered an act of theft and he would have been obligated to return the stolen object (but since he broke the object, he would be obligated to pay for it).
</p><p>
(b) The <b>CHAZON ISH</b> (Bava Kama 2:12) disagrees with the Shach. He asserts that the Gemara's wording -- he 'threw' the vessel off the roof -- implies the normal way of throwing, which involves lifting up the object first. Had the Gemara there intended to say that he merely pushed it off the roof, it should have said so explicitly, with terminology similar to that of the Gemara here (which says that he 'pushed it' out of the owner's hand).
</p><p>
Therefore, the Chazon Ish distinguishes between the two cases of the Gemara in the following manner. In the case of the one who throws a vessel off the roof, the thrower is exempt even if he lifted it up before he threw it. At the time that he lifted it, the cushions were on the ground, and thus his lifting of the vessel did not represent any act of damage. The Chazon Ish adds that even if he intended afterwards to remove the cushions himself (the Gemara there says that even in this case he would be exempt), at the time he lifted it there was no act of stealing (as the act of damage did not yet exist).
</p><p>
The Chazon Ish asserts that this case is comparable to the case of one who raises his friend's vessel with intention to place it on the ground and then to break it with a stick. His original act of lifting the vessel is not considered an act of theft. He is liable only for his later act of breaking. In contrast, when he lifts up the coin with intention to throw it into the sea, the original lifting is done in such a way that it is capable of resulting immediately in a loss or damage (i.e. being thrown into the sea). He therefore is responsible to return the coin to its owner. (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>BURNING A DOCUMENT</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'> 98b (Rabah):</font></b> If Reuven burned Shimon's loan
               document, he is exempt. He can say 'I burned a mere
               piece of paper!'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Rami bar Chama):</font></b> If witnesses know what
               was in the document, they can write another
               document! If no witnesses know what was in the
               document, how could we possibly obligate Reuven to
               pay?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rava):</font></b> The case is, Reuven trusts Shimon to
               say what was written.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rav Dimi bar Chanina):</font></b> R. Shimon and Chachamim
               argue about Rabah's law. R. Shimon holds that Davar
               ha'Gorem l'Mamon (something that has no intrinsic
               value, but if it is lost, one will lose money)
               k'Mamon Dami (it is like property with value). He
               obligates for burning documents. Chachamim hold that
               Davar ha'Gorem l'Mamon is not k'Mamon. They exempt.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (Rav Huna brei d'Rav Yehoshua):</font></b> R. Shimon
               said (that it is k'Mamon) only regarding something
               that was originally worth money, like Rabah's case
               (Reuven stole Shimon's Chametz before Pesach, and
               Levi burned it after Pesach. R. Shimon obligates
               him, for now Reuven cannot return the Chametz
               itself, and must pay for his theft.) We never find
               that R. Shimon obligates for something that never
               had intrinsic value!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Ameimar):</font></b> According to the opinion that obligates
               for Garmi (causing damage), he must pay the full
               value of the document. According to the opinion that
               exempts for Garmi, he pays the value of the paper.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> A case occurred, and Rafram forced Rav Ashi to pay
               the full value.
<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> Rabah exempts one who burned another's
               document. However, the Halachah follows Ameimar, who
               forced Rav Ashi to pay fully. This is only when the
               one who burned agrees about what was written in the
               document, and because he burned it the lender cannot
               collect.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Chovel u'Mazik 7:9):</font></b> If Reuven
               burned Shimon's document, he must pay the entire
               debt written in the document. Even though it is has
               no intrinsic value, he caused a loss of money. This
               is only if Reuven admits that it was a validated
               document, and because he burned it Shimon cannot
               collect. If not, he pays only the value of the
               paper.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (9:13):</font></b> If witnesses know what was in the
               document, they can write another document. Even
               though written testimony is invalid, a signed
               document is like testimony that was accepted in Beis
               Din. It is as if the latter witnesses testify that a
               Beis Din obligated the borrower to pay. The lender
               is not believed to say what was in the document. An
               enactment was made (to believe the victim) when
               property with intrinsic value was burned. Here it is
               only Gerama. The Gemara was unsure whether an
               enactment was made to believe a victim of a Moser.
               Here, surely no enactment was made, for he burned a
               mere piece of paper.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Yam Shel Shlomo (9:19):</font></b> Really, here it is
                    Garmi. In any case, Moser is more stringent. If
                    Reuven says how much the document was for, he
                    swears and pays only that. If he is unsure, he
                    swears that he is unsure. However, if he knows
                    that there was a debt, but is unsure how much,
                    he is Modeh b'Miktzas. Since he cannot swear,
                    he must pay.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach CM 386:15):</font></b> The Gemara never
                    answered whether an enactment was made for
                    Moser. The same applies to burning a document.
                    It is a Safek, so we cannot obligate the one
                    who burned to pay.
<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 386:2):</font></b> Similarly, if Reuven
               burned Shimon's document, he must pay the entire
               debt that was in the document.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Shach 10):</font></b> Sefer ha'Terumos (brought
                    in Beis Yosef DH v'Chosav Ba'al) says that if
                    Shimon says that the document was for 100 and
                    Reuven says that it was for 50, he must swear
                    due to Modeh b'Miktzas. If he is unsure if it
                    was more than 50, since he cannot swear he must
                    pay. This is difficult. We do not swear about
                    documents (Shevu'os 42b)! Perhaps that Mishnah
                    in Shevu'os exempts Garmi, or discusses when
                    Shimon can collect his loan. However, the
                    Poskim bring Stam that we do not swear about
                    documents, i.e. in every case.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Shach):</font></b> I have no good answer. It seems
                    that Sefer ha'Terumos equates Garmi and Davar
                    ha'Gorem l'Mamon, and rules like R. Shimon. He
                    says that also the Ra'avad says that Davar
                    ha'Gorem l'Mamon depends on Garmi. Most Poskim,
                    including the Rif, Rambam, Magid Mishneh and
                    Rosh, rule unlike R. Shimon, so the Halachah
                    does not follow Sefer ha'Terumos. The Ramban
                    (Dina d'Garmi) obligates one who burns a
                    document to pay due to Garmi, even though the
                    Halachah is unlike R. Shimon, and we do not
                    swear about documents because they have no
                    intrinsic value. He says that one does not
                    swear mid'Oraisa about Garmi. This is unlike
                    the Rashba and Teshuvos Maimoniyos. Also the
                    Rambam says that there is a Shevu'ah mid'Oraisa
                    about Moser, who is liable only due to Garmi.
                    The Yam Shel Shlomo (Bava Kama 9:16) obligates
                    a Shevu'ah when Reuven is unsure how much was
                    in the document, like the opinion in Tosfos
                    (that also Chachamim of R. Shimon obligate for
                    Garmi). However, the other opinion in Tosfos
                    (Bava Kama 71b DH v'Savar) is primary, that his
                    Chachamim admit only about principal, but not
                    for Kefel. If so, they also exempt from
                    swearing. Also, I hold that Garmi is
                    mid'Rabanan, so there is no Shevu'ah mid'Oraisa
                    about it.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (13):</font></b> He pays as much as one would pay to
                    buy the debt, just like one who sold a document
                    and pardoned it. This is like the Rosh
                    (Teshuvah 69:1). We cannot distinguish these.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> Even though the document is
               not intrinsically money, he caused him to lose
               money. This is only if Reuven admits that the
               document was validated and how much it was for, and
               because he burned it Shimon cannot collect. If
               Reuven does not believe (that it was validated, or
               how much was written), he pays only the value of the
               paper.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Yam Shel Shlomo (9:19):</font></b> If Reuven seized the
                    document before burning it, all agree that he
                    is liable. This is no worse than Garmi. Rabah
                    admits that one who seized a coin and threw it
                    to the sea is liable.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 13):</font></b> Rabah exempts Stam, i.e.
                    (in any case,) even if he seized it and burned
                    it. Regarding throwing a coin to the sea, Rabah
                    distinguished between whether or not he seized
                    it first. He did not distinguish regarding
                    burning documents. Also, land and documents
                    cannot be stolen (Bava Kama 117b). One who
                    stole land is exempt even if it was flooded,
                    for it was always in the owner's Reshus. The
                    same applies to documents.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> This is when witnesses do not know what was in
               the document. If there are witnesses, they can write
               another document!
<br>
<font color='blue'><i>See also:</i>
<br><b><b>IS THERE A DIFFERENCE BETWEEN GERAMA AND GARMI? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If witnesses know what was in the document, they 
               can write another document!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If no witnesses know what was in the document, 
               how could we possibly obligate Reuven to pay?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The case is, Reuven trusts Shimon to say 
          what was written.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Dimi bar Chanina):</font></b> R. Shimon and Chachamim argue 
          about Rabah's law;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon holds that Davar ha'Gorem l'Mamon 
               (something that has no intrinsic value, but if it is 
               lost, one will lose money) k'Mamon Dami (it is like 
               property with value). He obligates for burning 
               documents;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim hold that Davar ha'Gorem l'Mamon is not 
               k'Mamon. They exempt.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Rav Huna brei d'Rav Yehoshua):</font></b> R. Shimon said 
          (that it is k'Mamon) only regarding something that was 
          originally worth money, like Rabah's case!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah):</font></b> If Reuven stole Shimon's Chametz before 
               Pesach, and Levi burned it during Pesach, he is 
               exempt, for all are commanded to burn Chametz on 
               Pesach;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he burned it after Pesach, R. Shimon, who 
               holds that Davar ha'Gorem l'Mamon k'Mamon Dami, 
               obligates him (for now Reuven cannot return the 
               Chametz itself, and must pay for his theft);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim, who say that it is not k'Mamon, exempt 
               him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We never find that R. Shimon obligates for 
                    something that never had intrinsic value!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Ameimar):</font></b> According to the opinion that obligates for 
          Garmi ((Tosfos - direct) causation), he must pay the full 
          value of the document;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to the opinion that exempts for Garmi, 
               he pays the value of the paper.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	A case occurred, and Rafram forced Rav Ashi to pay the 
          full value. (Rashi - he burned it when he was a minor.)
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>RETURNING SOMETHING FORBIDDEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven stole Shimon's Chametz, and Pesach 
          passed, he can return the Chametz and say 'here is your 
          Chametz.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Who is the Tana of our Mishnah, who allows 
          saying 'here is your object' even if it is Asur b'Hana'ah 
          (forbidden to benefit from it)?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> It is R. Yakov;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Gemara - Beraisa):</font></b> If Reuven's ox killed, before 
               the final verdict, if he sold it, it is sold. If he 
               made it Hekdesh, it is Hekdesh. If he slaughtered 
               it, the meat is permitted;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Shimon was appointed to guard it, and he 
               returned it to Reuven's house, it is considered 
               returned;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> After the verdict (if Reuven did these things), 
               it is not sold, it is not Hekdesh, and the meat is 
               forbidden. If Shimon returned it, it is not 
               considered returned.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yakov says, it is considered returned.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Suggestion:</font></b> R. Yakov holds that one can say 'here 
               is your object' even if it is Asur b'Hana'ah, and 
               Chachamim (the first Tana) hold that he cannot say 
               this.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection (Rabah):</font></b> No, all agree that one can say 'here 
          is your object', even if it is Asur b'Hana'ah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 (Rashi):</font></b> If that were the argument, 
               Chachamim would not allow one to return Chametz 
               after Pesach (but they do allow this).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2 (Tosfos):</font></b> If that were the argument, 
               the argument (here) should have been taught 
               regarding Chametz on Pesach (lest we think they 
               argue about something else). (end of Version #2) 
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rather, they argue about whether or not Beis Din 
               can sentence an ox in its absence.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Chachamim hold that they cannot sentence an ox in 
                    its absence. Reuven can say 'you made me lose 
                    my ox (by giving it over to Beis Din). Had you 
                    returned it to me, I would have hid it, it 
                    would not have been sentenced';
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  R. Yakov holds that they can sentence an ox 
                    in its absence. In any case, it would have been 
                    sentenced.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rabah bar Shmuel - Beraisa) Question:</font></b> It says 'he will 
          return the stolen object.' Why must it say 'that he 
          stole'?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> This teaches that he returns similar to what he 
          stole;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he stole a coin and it was disqualified, 
               produce and it rotted, wine and it soured, Terumah 
               and it became Tamei, Chametz and Pesach came, an 
               animal and a person slept with it or it was 
               disqualified from being a Korban, or if (it killed 
               but) was not yet sentenced to be stoned, he can say 
               'here is your object'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This Tana does not allow returning an animal 
               after it was sentenced to be stoned, like Chachamim, 
               yet he allows returning Chametz after Pesach! (This 
               supports Rabah, who says that all permit returning 
               theft that became forbidden Asur b'Hana'ah.)
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>A CRAFTSMAN WHO RUINED AN OBJECT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven gave something to a craftsman to 
          fix, and the craftsman ruined it, he is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he gave a chest, box or tower to a carpenter, 
               and he ruined it, he is liable;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If a builder was hired to dissemble a wall, and he 
          broke it or damaged the rocks, he is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he was dissembling from one side, and it fell 
               from the other side, he is exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it fell due to the blow, he is liable.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Rav Asi):</font></b> The Mishnah discusses only when he 
          gave a chest, box or tower to a carpenter to insert a 
          nail, and in doing so, he broke it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he gave to him wood to make a chest, box or 
               tower, and then he broke it, he is exempt, for Uman 
               Koneh bi'Shvach Kli (a craftsman immediately 
               acquires improvements that he makes to a Kli).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If Reuven gave something to a 
          craftsman to fix, and he ruined it, he is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He gave to him wood.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> No, he gave him a chest, box or tower.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> The Seifa discusses when he gave a chest, box 
          or tower. This implies that in the Reisha, he gave wood!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The Seifa explains the Reisha. He is liable 
          when he gave a chest, box or tower.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Support:</font></b> We must say that the Seifa explains the 
          Reisha! If in the Reisha he gave to him wood, we would 
          learn that Ein Uman Koneh bi'Shvach Kli. There would be 
          no need for the Seifa to teach that he is liable for 
          breaking a Kli!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps the Seifa is needed to reveal that 
          the Reisha discusses when he gave wood, but not when he 
          gave a Kli.
<br>

sjt:
</p><p>
<font><b>2) MINOR DAMAGE</b></font><b>
<br>QUESTION:</b> The Gemara (end of 98a) quotes Rabah who states that when one burns someone else's loan document, he is exempt from paying for the other person's inability to collect his loan. He may say to the lender that he burned merely a piece of paper, and not the money that was owed to the bearer of the document.
</p><p>
The Gemara later quotes Ameimar who states that according to the opinion that one who damages through Garmi (a more causal form of indirect damage) is obligated to pay, one who burns a lender's loan document is obligated to pay the full sum of the loan. According to the opinion that damage of Garmi does not obligate one to pay, one who burns a lender's loan document pays only for the value of the paper that he burned; he does not pay for the value of the debt itself.
</p><p>
The Gemara relates that a case in which Rafram forced Rav Ashi to pay full payment, 'Ki Keshura l'Tzalmei' ('like a beam used for etched drawings, i.e. straight and smooth, the beam of highest quality). <b>RASHI</b> explains that Rafram made Rav Ashi pay for a lender's loan document which he had burned in his childhood. He made him pay the full sum that was written in the document, and he made him pay from his best land.
</p><p>
Why does Rashi explain that Rafram collected payment for damages done by a minor? The Mishnah (87a) states that one who encounters a person who is deaf and dumb, insane, or a minor, stands only to lose, because anyone who damages such a person must pay for the damages, while when such a person damages anyone else, he is exempt. Since a minor who damages is exempt, why did Rafram force Rav Ashi to pay for a document that he burned when he was a minor?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>HAGAHOS ASHIRI</b> (8:9) answers in the name of the <b><b><b>OR</b></b> ZARU'A</b> that although a minor is exempt before he reaches the age of adulthood, he is obligated to pay when he becomes an adult. Rafram made Rav Ashi pay when he was an adult for damage that he did when he was a minor.
</p><p>
The Hagahos Ashiri cites proof for this answer from the Gemara earlier (39b). The Mishnah there (39a) states that when the bull of a person who is deaf and dumb, insane, or a minor gores, Beis Din appoints a trustee. In the Gemara there, Rava explains that if the bull gores three times, Beis Din appoints a trustee. If it gores a fourth time, the damages are collected from the highest quality land. Rebbi Yosi bar Chanina explains that this means that the victim of the damage collects from the highest quality land of the <i>trustee</i>. When the orphans reach adulthood, the trustee may then collect reimbursement from them. If a trustee may collect reimbursement for payments given on behalf of a minor (for damage caused by his bull when he was a minor) after the minor reaches adulthood, certainly one may collect payment for any damages which the minor himself caused when he was a minor.
</p><p>
(b) The <b>BACH</b> (OC 343, DH Kasav b'Hagahos) writes that the Poskim do not agree with the assertion of the Hagahos Ashiri that a person is obligated to pay when he becomes an adult for any damage he did when he was a minor. The Bach offers a different explanation for why Rafram forced Rav Ashi to pay.
</p><p>
The <b>RAMBAM</b> (Hilchos Geneivah 1:10) writes that it is fitting for Beis Din to administer corporal punishment to minors who steal, according to the strength of the child, to deter them from becoming accustomed to stealing. The Rambam also writes that minors should be punished similarly for other damages they caused. The Bach writes that Rav Ashi was a child when he burned the document and thus was exempt from paying according to the letter of the law. Instead, he should have received some form of punishment from Beis Din. However, Rav Ashi did not want to receive this punishment; he preferred to pay for the damage that he did. Rafram therefore forced Rav Ashi to pay <i>when he was still a child</i>.
</p><p>
The Bach reasons that it is more logical to suggest that Rav Ashi was a minor when he paid for the damage than to suggest that Rav Ashi, as an adult, was forced by Rafram to comply with the Beis Din's order. Why would a great sage like Rav Ashi need to be compelled to follow the orders of Beis Din? It must be that Rav Ashi was a minor at the time, and had Rafram not forced him to pay, Beis Din could not have entitled the victim to collect the damages from Rav Ashi's property since, according to the strict letter of the law, a minor is exempt from paying for damages.
</p><p>
The Bach refutes the Or Zaru'a's proof from the Gemara earlier (39b). The case of the Gemara there involves a unique enactment which the Rabanan instituted for the sake of 'Tikun Olam' (to ensure that people would not be dissuaded -- if they could not collect reimbursement from the orphans later -- against being appointed as trustees for the property of orphans; see Rashi there, DH v'Chozrin).
</p><p>
(c) The <b>REMA</b> (OC 343:1) writes that 'a minor who hit his father or did other transgressions in his childhood, even though he does not need to repent when he grows up, is nevertheless encouraged to accept upon himself something for repentance and atonement, despite the fact that he did the transgressions before he was liable for punishment.' The Rema apparently maintains that Rav Ashi would have been exempt from paying. Based on the Rema, the <b>TAZ</b> writes that Rav Ashi indeed was exempt from paying even when he became an adult. Rafram made him pay in order that his conduct be 'Lifnim mi'Shuras ha'Din,' beyond the letter of the law. (D. Bloom)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DOES A CRAFTSMAN ACQUIRE OWNERSHIP IN A KLI THAT HE IMPROVES?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Support (for Rav Asi - Mishnah):</font></b> If Reuven gave wool to 
          a dyer, and it was ruined, he pays the value of the wool. 
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He does not pay the higher value of dyed wool!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> It was ruined after the wool absorbed 
               the dye.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection (Shmuel):</font></b> No, it was ruined the moment the 
          wool entered. The wool was never improved.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Inference:</font></b> Had it become ruined after the wool absorbed 
          the dye, he would pay for the improved wool.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Shmuel argues with Rav Asi.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> No. The case is, Reuven owns the wool and 
          the dye. The dyer is paid only for his labor.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection:</font></b> If so, the dyer should pay for the wool and 
          dye!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> Rather, Shmuel merely shows that there is 
          no proof from our Mishnah (but he could agree with Rav 
          Asi).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven gave his garment to a 
          craftsman (Levi), who finished it and informed Reuven, 
          even if Reuven does not come for 10 days (to take and pay 
          for it), he does not transgress keeping a worker's wages 
          overnight;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Levi returned the garment during the day, if 
               Reuven does not pay before sundown, he transgresses.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If a craftsman acquires ownership in a Kli that 
               he improves, why does Reuven transgress? (Levi acquired 
               the garment, and sold it to Reuven. Reuven does not owe 
               wages, rather, for a sale!)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Levi only smoothes the garment. There is no 
          improvement.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection:</font></b> If so, why did he give the garment to him?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, the worker is paid a set wage for 
          each time he presses it. Only a Kablan (a worker 
          contracted for an entire job) acquires ownership in a Kli 
          that he improves.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	Originally, we thought that he was hired for the whole 
          job. This supports Rav Sheshes;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If one hired a Kablan, does the 
               transgression of keeping wages overnight apply?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rav Sheshes):</font></b> It applies.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Rav Sheshes argues with Rav Asi (if a 
          craftsman acquires ownership in a Kli that he improves, 
          he already has his wages)!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Rejection (Shmuel bar Acha):</font></b> The case is, he was 
          contracted to deliver a letter (there is no improvement 
          to acquire).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>USING IMPROVEMENTS TO A KLI TO MAKE KIDUSHIN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Tana'im argue about whether or not a 
          craftsman acquires ownership in a Kli that he improves.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> If Leah told a man 'make for 
               me bracelets and rings and I will be Mekudeshes to 
               you', once he makes them, she is Mekudeshes;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, she is not Mekudeshes until money 
               comes to her.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What money is this?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> It is the bracelets and rings.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> If so, R. Meir holds that she is 
                    Mekudeshes even without getting them. What made 
                    the Kidushin?!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it is additional money.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> We are currently holding that both Tana'im agree 
               that wages are due only at the end of the job, and 
               that Kidushin with (pardon of) a loan is invalid.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> R. Meir holds that Uman Koneh 
                    bi'Shvach Kli (so giving her the jewelry is 
                    like giving his money), and Chachamim hold that 
                    Ein Uman Koneh bi'Shvach Kli.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> No. All hold that Ein Uman Koneh 
          bi'Shvach Kli;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir holds that wages are due only at the end 
               of the job (so it is as if he gives her the value of 
               all his work when he gives her the jewelry. This 
               makes Kidushin);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim hold that wages accrue from the 
               beginning of the job until the end (so she owes him 
               for his work. Giving her the jewelry is like 
               pardoning the debt, and this does not make 
               Kidushin).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> All hold that wages accrue from the 
          beginning of the job until the end (so giving her the 
          jewelry is like pardoning what she owes him);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir holds that Kidushin with a loan takes 
               effect;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim hold that the Kidushin is void.
<br>
<br>

sjt:
<font><b>1) 'UMAN KONEH B'SHEVACH KLI'</b></font><b>
<br>QUESTION:</b> The Gemara states that when a person gives wool and dye to a professional dyer, the dyer is not 'Koneh b'Shevach Kli' -- he does not acquire the wool and dye by doing work to it that increases its value. Since he is paid as a hired laborer and not on the basis of the completed job (like a 'Kablan'), he does not acquire the materials given to him.
</p><p>
Why, then, does the Gemara say that when a person gives wood to a carpenter to build a closet, the carpenter acquires the wood when he increases its value (by building the closet)? The carpenter adds none of his own material; he merely works with the wood that was given to him. He should be no different from the dyer who works with the wool and dye that was given to him. (<b>RASHBA</b>, <b>TOSFOS RABEINU PERETZ</b>)
</p><p>
<b>ANSWER:</b> The <b>RA'AVAD</b> cited by the Rashba writes that whenever no material is added to the original product to increase its value, and the only input is one of energy and skill, the skill which the craftsman invests into the material is considered a tangible contribution through which the craftsman acquires the object. However, when the increase in the value of the original material is accomplished with other materials (such as dye put into wool), those additional materials are viewed as the only contribution to the object, and the skill of the craftsman is not viewed as the contribution to the object.
</p><p>
It is not clear why the input of the skill of the craftsman is ignored when there is a tangible input involved. Perhaps the Ra'avad means to explain as the <b>TOSFOS RABEINU PERETZ</b> does. Tosfos Rabeinu Peretz explains that the craftsman's skill is always considered a contribution. However, when there is another input as well, such as the dye that colors the wool, the input of the craftsman is not able to acquire the object for him. (This may be related to the topic of 'Zeh v'Zeh Gorem.')
</p><p>
Alternatively, perhaps building a closet from wood requires a greater input of skill since no other input is required. Dyeing wool requires less skill since part of the dyeing is accomplishing with the dyes. A craftsman acquires the object which he improves only when a great amount of skill is required, for otherwise he is considered a hired laborer.
</p><p>
This approach may explain the comment of <b>RASHI</b> (in DH li'Vetushi). Rashi writes that when a person is hired to step on a woolen garment in order to soften it and he is paid for each time he steps on it, he is considered a hired laborer and not a craftsman who makes an object. <b>TOSFOS</b> (DH d'Agrei) asks that he still should be considered a craftsman who is hired to complete a job, since each time he steps on the garment he performs his craft. Therefore, Tosfos explains (as Rashi explains in Bava Metzia) that the person is paid to step on the clothing whether or not it becomes softer as a result of his stepping on it.
</p><p>
Rashi here may understand, as mentioned above, that a person who performs a craft which does not require a large input of skill is considered a hired laborer and he cannot acquire the object b'Shevach Kli, by making an improvement to it.
</p><p>
Tosfos, on the other hand, may understand like Rabeinu Peretz that any time there is no input other than that of the craftsman, the craftsman acquires the object b'Shevach Kli.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>IS AN UMAN KONEH BI'SHVACH KLI?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Meir):</font></b> If Reuven gave wool to Shimon
               to dye red, and he dyed it black, or vice-versa,
               Shimon pays him the value of the wool he received.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Inference:</font></b> He must hold that Shinuy Koneh. If not,
               he should pay for dyed wool!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 98b (Rav Asi):</font></b> If a carpenter was given wood to make
               a chest, and he broke it, he is exempt, for Uman
               Koneh bi'Shvach Kli (a craftsman acquires the
               improvements he makes to a Kli).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 99a (Beraisa):</font></b> If Reuven gave his garment to an Uman
               (Levi), who returned it during the day, if he does
               not pay before sundown, he transgresses Lo Talin.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Uman Koneh bi'Shvach Kli, why does Reuven
                    transgress? (Levi acquired, and sold it to
                    Reuven. Reuven does not owe wages, rather, for
                    a sale!)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection:</font></b> Levi is paid a set wage for each time he
               presses it. Only a Kablan (a worker contracted for
               an entire job) is Koneh bi'Shvach Kli.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rav Sheshes):</font></b> One transgresses 'Lo Salin' for
               withholding wages of a Kablan.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Suggestion:</font></b> Rav Sheshes argues with Rav Asi.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rejection (Shmuel bar Acha):</font></b> Rav Sheshes discusses
               one hired to deliver a letter (there is no
               improvement to acquire).
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> If one said 'make this metal
               into rings for me, and I will be Mekudeshes to you',
               once he makes them, she is Mekudeshes;
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> Chachamim say, she is Mekudeshes only when she gets
               (additional) money.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Suggestion:</font></b> They argue about whether or not a loan
               (what she owes him for his labor) can be Mekadesh.
               Both Tana'im hold that wages accrue continuously
               from the start of the job until the end, so they are
               like a loan that she owes to him.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Rejection #1:</font></b> No, all agree that a loan cannot
               Mekadesh. R. Meir holds that wages are due at the
               end. Chachamim hold that wages accrue continuously.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Rejection #2:</font></b> All agree that wages accrue, and that
               a loan cannot be Mekadesh. They argue about whether
               or not Uman Koneh bi'Shvach Kli.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Rejection #3 (Rava):</font></b> All agree that Ein Uman Koneh,
               that wages accrue, and that a loan cannot be
               Mekadesh. The case is, he added metal of his own,
               and also pardoned her debt to him. They argue about
               whether she intends to become Mekudeshes through his
               addition, or through the loan (which is invalid).
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (35a and Bava Metzi'a 68b):</font></b> Rav Sheshes taught
               that Ein Uman Koneh bi'Shvach Kli. The Halachah
               follows him. Rava concluded that all agree that Ein
               Uman Koneh bi'Shvach Kli. We do not rely on the
               rejection of the proof from our Mishnah (there is no
               improvement). The Halachah does not follow Rav Asi.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rebuttal (Rosh Kidushin 2:11):</font></b> The proof (from Rava)
               is invalid. He wanted to show that the Tana'im need
               not argue about Uman Koneh. He could not say that
               all agree that Uman Koneh, for then all would say
               that she is Mekudeshes. The Ri similarly refuted a
               'proof' from here that wages accrue continuously ,
               for we could not say that all agree that wages are
               not owed until the end. R. Tam rules like Rav Asi.
               Even though the Gemara suggested that Rav Sheshes
               says that Bal Talin applies to Umnim because Ein
               Uman Koneh, unlike Rav Asi, we retracted. Perhaps
               Rav Sheshes discusses a letter carrier (there is no
               improvement).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Defense (Ran Kidushin 20a DH Garsinan):</font></b> If Uman
                    Koneh, wages do not accrue continuously. Every
                    improvement to the Kli is not a loan. The Uman
                    acquires it. When he returns the Kli for the
                    set wage, it is as if he sells it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Defense (Gra CM 306:8):</font></b> How can the Rosh
                    suggest that the Tana'im argue about Uman
                    Koneh, i.e. and R. Meir holds that Uman Koneh
                    bi'Shvach Kli?! If so, how did the Gemara (95b)
                    prove that R. Meir holds that Shinuy Koneh?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (9:14):</font></b> If the Tana'im argue about Uman Koneh,
               the Halachah follows Chachamim who say that she is
               not Mekudeshes because Ein Uman Koneh. If they do
               not argue about this, all hold that Ein Uman Koneh.
               However, one could say that they argue about whether
               or not wages accrue continuously.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Pilpulei Charifta (6):</font></b> He means that one could
                    say that they argue about whether wages accrue
                    continuously, i.e. if he was not a Kablan,
                    rather, he was hired by the day. Wages accrue
                    continuously applies only to a Kablan.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Gra EH 28:45 and Shach CM 306:3):</font></b> If
                    he is not a Kablan, the Rif's proof is valid,
                    for Rava could have said that all agree that
                    Ein Uman Koneh!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach:</font></b> The Rosh means that Rava did not say
                    that they argue about whether wages accrue
                    continuously, for Rava holds that the Halachah
                    follows R. Meir
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Bava Metzi'a 9:43):</font></b> Rav Sheshes holds that Bal
               Talin applies to Kablanus, because Ein Uman Koneh.
               The Halachah follows him, for a Beraisa supports
               him.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 11:3):</font></b> If Reuven gave his
               garment to an Uman, who returned it during the day,
               after sundown he transgresses Lo Talin. Kablanus is
               like a hired worker; one must pay on time.
<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 339:6):</font></b> If Reuven gave his
               garment to an Uman, who returned it during the day,
               after sundown he transgresses Lo Talin. Kablanus is
               like a hired worker; one must pay on time.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Darchei Moshe (EH 28:8):</font></b> Regarding Kidushin,
                    the Tur says that the Rosh concludes like
                    Tosfos (that Uman Koneh). In Bava Metzi'a, the
                    Rosh brought only the Rif's opinion; he relied
                    on what he wrote in Kidushin. Alternatively,
                    the Rosh is stringent. Therefore, in Kidushin
                    he concludes that Uman Koneh. Regarding Bal
                    Talin, he brings only the opinion that Ein Uman
                    Koneh. Regarding an Uman who broke a Kli, he
                    brings both opinions and does not favor either.
                    In CM 306, the Tur says that Ein Uman Koneh, so
                    an Uman who made a Kli and broke it is liable.
                    Perhaps the Tur means that if the owner seized,
                    we do not force him to return it, but we would
                    not force the Uman to pay due to Safek.
                    Alternatively, the Rosh concludes like Tosfos,
                    but the Tur rules like the Rif and Rambam. In
                    Choshen Mishpat, he brought only their opinion.
                    Regarding Kidushin, the Tur is concerned also
                    for the Rosh's opinion conclusion. We resolve
                    the Tur in one of these two ways. He did not
                    err!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz (EH 28:28, citing the Maharshal):</font></b> The Tur
                    says that the Rosh holds like Tosfos, for he
                    brought Tosfos' opinion last. This is wrong. In
                    Bava Kama the Rosh brought a different proof
                    for the Rif, but said that it can be rejected.
                    In Bava Metzi'a, the Rosh explicitly rules that
                    Ein Uman Koneh. The Tur himself rules like this
                    regarding Bal Talin. Do not say that the Tur
                    holds that the Rosh is stringent about Bal
                    Talin to say Ein Uman Koneh, and stringent
                    about Kidushin to say Uman Koneh and she is
                    Mekudeshes. In Choshen Mishpat, the Tur
                    obligates paying. This cannot be due to Safek!
                    Rather, the Tur erred.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Bach (EH 28:13):</font></b> The Rosh ruled that Ein Uman
                    Koneh regarding Bal Talin. Therefore, he
                    obligates an Uman (who made a Kli and broke it)
                    to pay. In Bava Kama the Rosh rejected the
                    Rif's and his own proof that Ein Uman Koneh,
                    but surely he holds that this is the Halachah.
                    Therefore, he did not bring the opinion of the
                    Ri and R. Tam that Uman Koneh. Only in 
                    Kidushin, after rejecting the Rif's proof, the
                    Rosh brought the other opinion. Due to the
                    severity of Eshes Ish, the Rosh is stringent
                    for R. Tam's opinion to require a Get. In Yoreh
                    De'ah 120, the Tur says that if a Nochri Uman
                    fixed a Yisrael's Kli, one need not immerse it
                    (like a Nochri's Kli) even according to the
                    opinion that Uman Koneh. I.e., we are stringent
                    like R. Tam only for Kidushin.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Drishah (EH 38 DH Shuv):</font></b> The Tur holds
                    everywhere that Ein Uman Koneh. In the Tugrama
                    printing of the Tur (EH), he says 'the Ramah
                    holds that Ein Uman Koneh, for there is no loan
                    here. Also the Rosh holds like this.' The Beis
                    Yosef changed the text, for if Ein Uman Koneh,
                    there is a loan! The Tur meant 'we do not rule
                    that Uman Koneh, in which case we would say
                    that there is no loan.' Alternatively, a
                    marginal note added the opinion of the Ri and
                    R. Tam, and was incorporated into the text.
                    This misled people to think that 'the Rosh
                    holds like this' refers to the opinion of the
                    Ri and R. Tam.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Shach (1):</font></b> The <b>SMA</b> (12) says that here the
                    Shulchan Aruch is like the opinion that Ein
                    Uman Koneh. I say that it is according to
                    everyone (if the worker does not improve the
                    Kli - Shach 306:3.)
<br>
<font color='blue'><i>See also:</i>
<br><b><b>UMAN KONEH BI'SHVACH KLI REGARDING KIDUSHIN </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection #3 (Rava):</font></b> All hold that wages accrue from 
          the beginning of the job until the end, and that Kidushin 
          with a loan is invalid, and that Ein Uman Koneh bi'Shvach 
          Kli;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The case is, he added material to what she gave 
               him to make the jewelry;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Meir holds that if one is Mekadesh with a loan 
               and a Perutah, she intends to be Mekudeshes through 
               the new money (and this works);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim hold that she intends to be Mekudeshes 
               through the loan (and this does not work).
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	The following Tana'im also argue about this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> (If one was Mekadesh) 'with the wages 
               for what I worked for you', she is not Mekudeshes. 
               If he said 'with the wages of what I will work for 
               you', she is Mekudeshes;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Nasan says, (if he said) 'with the wages of 
               what I will work for you', she is not Mekudeshes, 
               and all the more so if he said 'with the wages of 
               what I worked for you.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yehudah ha'Nasi says, whether he said 'with 
               the wages of what I will work for you' or 'what I 
               worked for you', she is not Mekudeshes;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he added his own material, she is Mekudeshes.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Nasan argues with the first Tana about wages 
               (R. Nasan holds that wages accrue from the 
               beginning, and the first Tana holds that wages are 
               due only at the end);
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> R. Nasan and Rebbi argue about Kidushin with a 
               Perutah and a loan (R. Nasan holds that she intends 
               to become Mekudeshes through the loan, and Rebbi 
               holds that she intends for the Perutah).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>IMPROPER SLAUGHTER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> A slaughterer who slaughtered improperly is 
          liable. He is a damager, he is negligent;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It is as if he was told to slaughter in one 
               place, and slaughtered elsewhere.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why did Shmuel say he is a damager and he is 
          negligent?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Had he said only that he is a damager, one 
          might have thought that that is only when he slaughtered 
          for wages, but if he slaughtered for free, he is exempt. 
          'He is negligent' teaches that he is liable even if he 
          slaughtered for free.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Chama bar Gurya - Beraisa):</font></b> If a 
          slaughterer slaughtered improperly, if he is a 
          professional, he is exempt. If not, he is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he was paid, in either case he is liable.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Shmuel:</font></b> Your brain should be clouded (for asking such a 
          question)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	One of the Rabanan asked the same question.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Shmuel:</font></b> You deserve what I told Rav Chama! You should 
          have understood that my law is like R. Meir. Why do you 
          ask from a Beraisa that is like Chachamim?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'He is a damager, he is negligent. It is as if he 
               was told to slaughter in one place and slaughtered 
               elsewhere' is like R. Meir, who says that one must 
               watch what he does.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Where did R. Meir say this?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (Mishnah - R. Meir):</font></b> If the owner of an 
          animal tied or locked in front of it properly, and it 
          escaped and damaged, whether it is Tam or Mu'ad, he is 
          liable.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection:</font></b> There, R. Meir and Chachamim argue about how 
          to expound the verses.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2 (Mishnah - R. Meir):</font></b> If Reuven gave wool to 
          Shimon to dye red, and he died it black, or vice-versa, 
          Shimon pays to him the value of the wool he received.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection:</font></b> There, he intentionally changed from what he 
          was told.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #3 (Beraisa - R. Meir):</font></b> If his jug broke and he 
          did not clear away the fragments, or his camel fell, and 
          he did not stand it up, he is liable for damage that they 
          caused;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim say, Beis Din does not make him pay, 
               but Heaven holds him accountable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Meir holds that one who trips is considered 
               negligent. Chachamim hold that he is not.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Rabah bar bar Chanah, citing R. Yochanan):</font></b> If a 
          slaughterer slaughtered improperly, even if he is a 
          professional like the slaughterers of Tzipori, he is 
          exempt.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> Did R. Yochanan really say that?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan once ruled that a butcher (who 
               improperly slaughtered a chicken) will be exempt if 
               he can prove that he is an expert to slaughter 
               chickens.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> A professional is exempt if he slaughtered for 
          free. He is liable if he was paid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Zeira):</font></b> If one wants the slaughterer to be 
               liable if the slaughter will be invalid, he should 
               pay him beforehand.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> In the following cases, one is 
          liable for substandard work, because he is like one who 
          receives wages (even though he works for free):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A grinder received wheat to grind, and he did not 
               moisten it first, and he made coarse flour;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A baker received flour to make bread, and he made 
               bread that crumbles;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> A slaughterer did an invalid slaughter.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa means that he is liable because he 
          (truly) receives wages.
<br> <b>    <b><font color='darkgreen'>(s)</font></b></b>  	A case occurred in which a man slaughtered through 
          Hagramah (the knife left the ring (of the windpipe) 
          during the Shechitah; Tana'im argue about whether or not 
          this is valid). Rav ruled that the animal may not be 
          eaten, but the slaughterer is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Kahana and Rav Asi (to the animal's owner):</font></b> 
               Rav made two (contradictory) rulings in your case!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What did they mean?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1:</font></b> He made two (contradictory) rulings to 
               your detriment:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He should have permitted the slaughter, like R. 
                    Yosi b'Rebbi Yehudah;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If he forbids it like Chachamim, he should 
                    obligate the slaughterer to pay!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> It is forbidden to say such a thing!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> A judge may not say, 'I wanted to 
                    acquit you, but the other judges outnumbered 
                    me' - 'One who goes tale-bearing reveals 
                    secrets'.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #2:</font></b> Rather, he made two (contradictory) 
               rulings to your benefit:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He prevented you from eating a Safek Neveilah;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  He prevented you from Safek theft (taking 
                    money from the slaughterer. Perhaps he is 
                    exempt!)
<br>

sjt:
</p><p>
<font><b>2) PROVING THAT ONE IS AN EXPERT SLAUGHTERER</b></font><b>
<br>QUESTIONS:</b> The Gemara relates an incident in which a butcher slaughtered an animal and made it a Tereifah. Rebbi Yochanan told him that since he was not paid to slaughter it, he may exempt himself from paying for the animal if brings proof that he was an expert at slaughtering chickens. Rebbi Yochanan's ruling follows the principle mentioned earlier in the Gemara that a person who is not an expert is responsible for damages even if he took no money for slaughtering the animal. Since he knew that he was not an expert and not properly trained to slaughter, he should not have accepted to slaughter the animal in the first place.
</p><p>
There are a number of questions on this Gemara.
</p><p>
(a) Why did the butcher need to bring proof that he was an expert in order to exempt himself from payment? The principle of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' should apply, and he should have been exempt from paying unless the owner of the animal could prove that he was not an expert. (<b>RA'AVAD</b>; see also <b>KOVETZ SHI'URIM</b>, and <b>BEIS HA'LEVI</b> 2:4:4 and 3:20:2.)
</p><p>
(b) Another reason why the butcher should not have been required to prove that he was an expert is the principle (Chulin 3b) that if an animal is found slaughtered, one may assume that the slaughterer was an expert because 'Rov Metzuyin Etzel Shechitah Mumchin Hen' -- most people who are involved in Shechitah are experts. (<b>SHACH</b> YD 1:4)
</p><p>
<b>ANSWERS:</b>
<br>(a) As explained earlier (see previous Insight), the butcher is considered a Shomer Chinam when he receives no payment for his services. The reason he is exempt (according to the Rabanan who argue with Rebbi Meir) when he makes the animal a Tereifah is that the damage is considered damage caused by an Ones, rather than by a Peshi'ah, since it is unusual for an expert to ruin the Shechitah (see <b>RASHI</b> DH Uman Patur). In order to exempt himself from payment, every Shomer Chinam is required to prove that he was not Poshe'a, negligent, when he watched the object, either by making an oath or by bringing testimony of witnesses. (Similarly, if a Shomer Sachar seeks to exempt himself from payment by claiming that the object deposited with him was damaged b'Ones, he must either make an oath or bring witnesses to prove that it was damaged b'Ones.) Since the butcher, who is a Shomer, wanted to exempt himself by claiming that the animal was killed b'Ones and not through Peshi'ah, Rebbi Yochanan required that he prove that there indeed was an Ones by making an oath or by bringing testimony that he was an expert.
</p><p>
This principle -- that a Shomer is exempt only after he proves that an Ones occurred by making an oath or by providing testimony -- does not contradict the rule of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah,' since this was part of the understood agreement of the Shomer when he accepted responsibility for the object of another person.
</p><p>
The question that remains is why the butcher needed to prove, with the testimony of witnesses, that he was an expert, and he could not exempt himself from paying by making an oath that he was not Poshe'a, like any other Shomer Chinam. The <b>RA'AVAD</b> answers this question by citing the Gemara in Bava Metzia (83a). The Gemara there teaches that if the object deposited with the Shomer was damaged in a manner in which there are likely to have been witnesses who can testify whether it was damaged as a result of an Ones or not, the oath of a Shomer does not exempt him. He must bring witnesses to prove that he was not Poshe'a. Similarly, it is usually common knowledge whether the butcher is an expert or not. Since it is possible for him to bring testimony to prove that he is an expert, it does not suffice to make an oath.
</p><p>
(b) The Shach's answer for why the logic of 'Rov Metzuyin Etzel Shechitah Mumchin Hen' does not apply here is unclear. According to the <b>PRI MEGADIM</b>, the Shach means that when a Shochet ruins the Shechitah, the Rov is no longer reliable to state that the Shochet is an expert. <b>REBBI AKIVA EIGER</b> (on the Shulchan Aruch) asks that according to this approach, if it is known that a Shochet once made an animal a Tereifah, the Rov should not be reliable any more to establish that he is a capable Shochet!
</p><p>
The <b>BEIS HA'LEVI</b> (2:4:4) answers that 'Rov Metzuyin' is no more than an assumption that if one would ask the Shochet (who slaughtered the animal) whether he is a trustworthy, capable Shochet, he would say that he is. It simply shows that <i>he</i> considers himself a good Shochet. (He bases this on the words of the Rambam and the Re'ah in Bedek ha'Bayis.) Hence, that Rov certainly cannot be used to exempt the Shochet from paying since his own testimony about himself cannot exempt him.
</p><p>
If it is true that the butcher must bring proof that he is an expert because of the Halachos of Shomrim, it could be that the Rov is not a sufficient proof because of the principle that 'Ein Holchin b'Mamon Achar ha'Rov.' Therefore, the butcher must bring testimony of witnesses to prove that he is an expert (in order to exempt himself from liability).
</p><p>
Another possible answer may be derived from the words of the <b>NIMUKEI YOSEF</b>. He explains that when the Gemara says, 'If you are a Mumcheh for [slaughtering] chickens,' the word 'Mumcheh' means an 'Uman Mumcheh,' an expert professional. 'Rov Metzuyin' might prove that the butcher is a <i>regular</i> Mumcheh, but not a particularly expert Mumcheh, and thus a Hedyot -- an amateur -- also falls into the category of a regular Mumcheh. Therefore, it is not sufficient to exempt him from paying unless he proves that he is an <i>Uman</i> Mumcheh.
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO ERRED ABOUT THE VALIDITY OF A COIN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Beraisa #1:</font></b> If Reuven asked a moneychanger (Levi) about 
          a certain coin, and Levi said that it is good, and it 
          turned out to be bad, if he is an expert moneychanger, he 
          is exempt. If not, he is liable;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Contradiction (Beraisa #2):</font></b> In either case, he is 
          liable.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> Beraisa #1 exempts a very proficient 
          moneychanger, who has learned everything he needs to 
          know.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If so, how did he err?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> They had just changed the coinage, and he did 
          not yet hear about this.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	A woman showed a coin to R. Chiya. He told her that it 
          is good. It turned out to be bad. He gave her a good coin 
          in its place, and recorded his loss like a 'bad deal'.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> R. Chiya had learned everything that he 
          needed to know!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> He acted beyond the letter of the law.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yosef):</font></b> 'You will make them know' refers to 
               Talmud Torah. 'The way' refers to bestowing Chesed. 
               'They will go' refers to visiting the sick. 'In it' 
               refers to burial. 'The deed' refers to the law. 
               'That they will do' refers to going beyond the 
               letter of the law.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Reish Lakish showed a coin to R. Elazar. He told him 
          that it is good.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Reish Lakish:</font></b> You should know that I rely on you.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Elazar:</font></b> Do you expect me to pay if I am wrong? 
               You yourself say that R. Meir is the Tana who 
               obligates for Garmi!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> This means that R. Meir obligates, 
                    but the Halachah does not follow him!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Reish Lakish:</font></b> No, the Halachah follows R. Meir.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>GARMI</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Where do we find that R. Meir obligates for 
          Garmi?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Mishnah):</font></b> If a judge acquitted the guilty 
          party, obligated the exempt party, declared Tamei what is 
          really Tahor, or declared Tahor what is really Tamei, 
          what he did is done, and the judge must pay (for any 
          resulting loss. A Stam Mishnah is assumed to be R. Meir.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> R. Ila'a said that the Mishnah discusses a 
          judge who acted on his ruling (e.g. he transferred the 
          money himself, touched Tum'ah to the food (to 'prove' 
          that it is Tamei), or mixed the 'Tahor' food with 
          Taharos) which is standard damage, not Garmi).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Mishnah - R. Meir):</font></b> If Reuven gave wool to 
          Shimon to dye red, and he died it black, or vice-versa, 
          Shimon pays him the value of the wool he received.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> There, he damaged through his action (that 
          is not Garmi).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3 (Mishnah):</font></b> If Reuven draped his vines over 
          Shimon's grain, this forbids the grain, and Reuven is 
          liable.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> There also, he damaged through his action.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #4 (Beraisa):</font></b> If the wall between Reuven's 
          vineyard and Shimon's grain field was breached, and 
          Shimon told him to fix it; it was breached, and he told 
          him to fix it;
<br>
<br>

sjt:
<font><b>1) THE WAY A CRAFTSMAN ACQUIRES THE ITEM ON WHICH HE WORKS</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that when one gives wool to a dyer to dye for him and the dyer uses an inferior dye, both Rebbi Yehudah and Rebbi Meir agree that the dyer does not acquire the wool and must return the wool (or its value) to its owner, and he receives in return the lesser of the Shevach (increase in value of the wool) or Yetzi'ah (his expenses).
</p><p>
The Gemara earlier (98b) teaches that when a craftsman works on an item, he acquires the item by causing it to appreciate in value. This implies that just as a thief acquires a stolen item through a Shinuy (making a change in the item), a craftsman who changes an item and causes it to appreciate in value also acquires the item, and he merely owes the owner an amount of money that corresponds to the original value of the item. Consequently, when the craftsman returns the object to its original owner and receives his wages, it is viewed as a sale. (See Background to Bava Kama 98:35.)
</p><p>
Accordingly, why should every craftsman not be able to tell the owner of the item that he has decided to keep the item for himself and not 'sell' it back to the owner? The obvious answer is that the craftsman may not refuse to return the item he worked on when he is paid the full wages that were stipulated, since there is an implicit agreement between the owner and the craftsman that the craftsman will return the finished item upon receiving his wages.
</p><p>
However, this does not suffice to explain the Halachah of the Mishnah. Why must the craftsman return the wool to its owner when he dyes it with an inferior dye? He should be able to keep it for himself and pay for the value of the wool that was given to him (as Rebbi Meir says in the last case of the Mishnah), since he is not being paid the full wages that were stipulated. (See <b>TOSFOS RID</b> to 98b.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> explains that a craftsman has ownership of the Shevach, the amount that the item appreciated, only when the item becomes ruined before he returns it. This is because no craftsman wants to work on the item only to cause himself to pay the owner, as compensation, the amount that the object appreciated. It is assumed that there is an implicit stipulation that the craftsman will be considered the owner of the object in the event that it breaks after he starts to work on it but before he returns it to the owner. If the object does not break, the craftsman owns only an amount corresponding to the wages that he deserves for the work (since that was his implicit stipulation when he accepted the work, so that he would be entitled to hold the item in lieu of his wages).
</p><p>
According to the Rashba, the craftsman must return the wool to the owner in the case of the Mishnah because he <i>does</i> receive the wages he deserves for his labor. That is, when he dyed the wool in an inferior way, the craftsman owns only a part of the item, the part that corresponds to the lesser value of the Shevach or the Yetzi'ah, because that is the wages which he deserves in this case. (See following Insight, 2:c.)
</p><p>
(b) The <b>RA'AVAD</b> writes that it is possible that the craftsman acquires the entire amount of appreciation that he caused, even if the item does not become ruined. This also seems to be the opinion of the <b>TOSFOS RID</b>. Nevertheless, the Tosfos Rid writes that although the craftsman owns part of the item, he is not able to acquire the entire item with a Shinuy since he is not a thief (and only a thief acquires the entire object with a Shinuy). Therefore, he must return the original item to its owner along with all of the improvements that he made to it. Afterwards, in return for his labor, he receives either the Shevach or the Yetzi'ah, as the Mishnah states.
</p><p>
The Tosfos Rid and Ra'avad seem to understand that the Kinyan of a craftsman is related to implicit agreements in the hiring of a craftsman (as the Rashba explains), and is not related to the Kinyan of a thief which is based on a Shinuy.
</p><p>
(c) <b>RABEINU YEHONASAN</b> in the Shitah Mekubetzes implies that a craftsman acquires the item on which he works through making a Shinuy to it, just as a thief acquires the item that he steals through making a Shinuy to the item. Accordingly, the question returns: why may the craftsman not withhold the item in a case in which he dyes it in an inferior way?
</p><p>
Perhaps Rashi here addresses this question. Rashi (DH Tzav'o Ka'ur; see also Nimukei Yosef) writes that when the craftsman dyes the wool in an inferior way, he is a Mazik b'Kavanah, an intentional Mazik. That is why Rebbi Meir agrees that he must return the wool to the owner. The <b>RASHASH</b> asks, why does Rashi give this explanation for why Rebbi Meir agrees that the craftsman may not keep the wool in this case? Rashi himself writes later (DH v'Im ha'Shevach) that dyeing the wool in an inferior manner is not called a Shinuy, and <i>that</i> is the reason why the craftsman must return the wool to its owner!
</p><p>
Perhaps Rashi means that even if the craftsman cannot acquire the item through a Shinuy (the Shinuy that he did not follow the instructions of the owner), he should acquire it through the Shevach Kli (for following the instructions of the owner)! Rashi answers that if he dyed it in an inferior manner, although he followed the words of the owner and the change he made is not considered a Shinuy that makes him a thief, nevertheless he did not follow the <i>intention</i> of the owner and, therefore, he cannot acquire the item through Shevach Kli. Rather, he is a Mazik b'Kavanah who is like neither a Gazlan nor a craftsman.
</p><p>


<font><b>2) ASSESSING THE VALUE OF THE 'SHEVACH' AND THE 'YETZI'AH'</b></font><b>
<br>OPINIONS:</b> The Mishnah teaches that when the craftsman does not do what the owner of the item instructed him to do, in certain cases the ruling is that the owner may pay either the Shevach or the Yetzi'ah, whichever is less. How are the values of the Shevach and the Yetzi'ah assessed?
</p><p>
(a) <b>RASHI</b> and <b>RABEINU YEHONASAN MI'LUNIL</b> (in the Shitah Mekubetzes) explain these concepts in their literal sense. The Shevach refers to the amount that the item increased in value from the time it was given to the craftsman. The Yetzi'ah refers to the amount of money that the craftsman put into the item in order to cause the Shevach, the increase in value.
</p><p>
(b) The <b><b><b>RI</b></b></b> in Tosfos and the <b>ROSH</b> offer a different explanation based on the Yerushalmi here. The Ri explains that the Yetzi'ah refers to the original wages that the owner promised to give the craftsman for doing his job properly. The Shevach does not refer to the entire amount that the item increased in value. Rather, the amount of profit which the owner intended to make by hiring the craftsman to do the job is assessed. For example, if the wool and dye are worth 10 Zuz together, and the craftsman charges 10 Zuz to dye it, and the finished product is worth 25 Zuz, the owner's intention was to increase the value of his property by 5 Zuz. The first 5 Zuz that the wool increases in value are therefore ignored because the craftsman accepted upon himself the responsibility to see to it that the wool would return a 5-Zuz profit for the owner. Whatever increase in value remains besides that 5-Zuz profit is referred to as the Shevach, and the owner now has the choice to give either that Shevach to the craftsman or to give the original wages that were stipulated, whichever is less.
</p><p>
(c) Tosfos cites <b>RABEINU ELCHANAN</b> who apparently interprets the Yerushalmi in a different manner. Rabeinu Elchanan's explanation is cited by the <b>HAGAHOS ASHIRI</b> and by the <b>TOSFOS SHANTZ</b> in the Shitah Mekubetzes. Rabeinu Elchanan explains that the Yetzi'ah refers neither to the amount originally promised to the craftsman nor to the amount the craftsman actually spent on dyeing the wool, but to the amount expended by the craftsman including his labor. That is, the Yetzi'ah is assessed by determining the amount of time and effort the craftsman invested into dyeing the wool, based on the market rate of hired labor in that place and at that time. (This is also the opinion of <b>TOSFOS RABEINU PERETZ</b>.) If this amount, the Yetzi'ah, is less than the increase in the value of the wool, then the owner must give the craftsman only the Shevach, the amount that corresponds to the increase in value.
</p><p>
Rabeinu Elchanan agrees with the Ri who says that the amount that corresponds to the intended profit of the owner is not taken into account when the value of the Shevach is calculated.
</p><p>
However, Rabeinu Elchanan adds that if there is a large increase in the value of the wool, such that the increase is greater than the Yetzi'ah, it might not suffice to give the craftsman the amount of money that corresponds to the Yetzi'ah, which is based on the wages of a Sechir Yom, a hired laborer. The reason for this is that the craftsman acquires in the wool an amount that corresponds to the effort which he put into it. Therefore, if the value of the wool increased <i>more</i> than that amount, part of the increase may be attributed to <i>his</i> portion of the wool. For example, the wool (plus the intended profit of the owner, as the Ri discusses) is worth 10 Zuz, and the craftsman put in 5 Zuz worth of effort, and now it is worth 30 Zuz, making a total increase of 20 Zuz. An amount of 5 Zuz of the increase belongs to the craftsman. The other 15 Zuz may be divided into three parts, of which the craftsman's portion, which is a third of the wool, increased one part, and the owner's portion (two-thirds of the wool) increased two parts. Therefore, the owner cannot give the craftsman any less than 10 Zuz of the total (that is, he may not give him simply the 5 Zuz of effort that the craftsman expended).
</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>IS THERE A DIFFERENCE BETWEEN GERAMA AND GARMI?</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'> 98a (Rabah):</font></b> If Reuven threw Shimon's coin into the
               sea, he is exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is only if the water is clear, so the coin can
               be seen and can be retrieved.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rabah):</font></b> If Reuven rubbed out the image on Shimon's
               coin, he is exempt.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> This is if he did not do remove anything, e.g. he
               pounded it with a hammer.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rabah):</font></b> If Reuven made a groove in the ear of
               Shimon's cow (disqualifying it from being a Korban),
               he is exempt.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> This is because the cow is fine. Not all cows are
               destined to be Korbanos.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rabah):</font></b> If Reuven burned Shimon's loan document, he
               is exempt. He can say 'I burned a mere piece of
               paper!'
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Ameimar):</font></b> The opinion that obligates for Garmi
               (causing damage) obligates paying the full value of
               the document. The opinion that exempts for Garmi
               obligates paying the value of the paper.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> A case occurred, and Rafram forced Rav Ashi to pay
               the full value.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> 100a:</font></b> Reish Lakish showed a coin to R. Elazar, and
               said 'I rely on you.'
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> R. Elazar:</font></b> Do you expect me to pay if I am wrong?
               You yourself say that R. Meir is the Tana who
               obligates for Garmi (but the Halachah does not
               follow him)!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Reish Lakish:</font></b> No, the Halachah follows R. Meir;
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> (Beraisa):</font></b> If the wall between Reuven's vineyard and
               Shimon's grain was breached, and Reuven decided not
               to fix it, this forbids the grain, and he is liable.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (35a):</font></b> Rabah exempts one who pushes another's
               coin into the sea, makes a groove in the ear of his
               cow, or burns his documents. The Halachah does not
               follow for all of these. Rafram forced Rav Ashi to
               pay the full value of a document that he burned.
               This is like the opinion that obligates for Garmi.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri (2:16):</font></b> Garmi is when he himself
                    damaged another's property, e.g. he burned a
                    document or despaired of fixing the fence
                    between his vines and his neighbor's grain).
                    His despair forbids the grain, like an action.
                    Alternatively, if he damages at the time, this
                    is Garmi, and we hold that he is liable. If he
                    damages only afterwards, e.g. he threw from the
                    roof, incited a dog or other cases on Daf 55b-
                    56a, this is Gerama and he is exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Chovel u'Mazik 7:7):</font></b> Anyone who
               causes to harm to another's property must pay full
               damage from his best property, like other damagers.
               Even though he did not do the final damage, since he
               is the first cause, he is liable.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (11):</font></b> If Reuven pushed Shimon's coin and it
               rolled into the sea, he is liable. If Reuven made a
               groove in the ear of Shimon's cow, he is liable, for
               he lowered its value. If Reuven flattened Shimon's
               coin, he is liable.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> Rabah exempts all three of
                    these, for he exempts for Garmi. The Meforshim
                    say that according to us, he is liable for all
                    of them. R. Chananel, the Rif and the other
                    Poskim say so.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (1):</font></b> The Nimukei Yosef says that the Rif
                    and Rambam equate Gerama and Garmi. All the
                    Sugyos that exempt due to Gerama are like
                    Chachamim. Ameimar taught that R. Meir
                    obligates even for burning a document, which
                    never had intrinsic value, and all the more so
                    for the other Geramos. The Ir Shushan says that
                    the Rambam exempts Gerama. This is wrong.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (9:13):</font></b> Tosfos says that the following are
               Gerama, and all exempt for it. Leaving a ladder near
               a dovecote (a marten can jump and seize birds),
               throwing a Kli off the roof, and then removing the
               pillows below, putting poison in front of an animal,
               sending a fire with a Cheresh, lunatic or child,
               breaching a fence in front of an animal (it left and
               damaged, or was lost), bending grain in front of a
               fire, working with a Parah Adumah, deafening someone
               through scaring him, fanning a flame and the wind
               spread it, inciting a dog or snake, bringing Peros
               into a Chatzer (and the Ba'al ha'Bayis' animal ate
               them and got sick). The following are Garmi, and we
               obligate for them, like R. Meir: damaging property
               on which another has a lien; draping a vine over
               grain, or not fixing the fence between them;
               mistaken judgment, even without giving the property
               to the other; a mistaken ruling that a coin is
               valid, burning a document, pardoning a sold
               document, and informing to the kingdom. Garmi is
               when he himself damages, and the damage will surely
               come. Saying 'this meat is Tereifah; feed it to
               dogs' is like an action. Inciting a dog or snake is
               not certain to damage. One who removes pillows does
               not touch the object that is damaged. When one sent
               a Shali'ach with a fire, the Shali'ach did the
               damage. One who was scared damaged himself by being
               frightened. Alternatively, damage that occurs at the
               time is Garmi. When one says that a coin is good,
               immediately the asker exempts the one who gave it.
               Once one despairs from fixing the fence, what grows
               is Kil'ayim; it is not forbidden until it grows
               another one part in 200.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Teshuvos Maimoniyos (Nezikim 4):</font></b> If we could
                    identify the new growth, it would be forbidden
                    immediately.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (ibid.):</font></b> In every case of Gerama, the damage is
               not immediate. The opinion that obligates for
               unobservable damage (Gitin 53a) exempts for working
               with a Parah Adumah or the water with which its
               ashes will be mixed, because the Isur depends on
               mere thought, and it is Gerama (even though it is
               immediate). Really, it is Garmi; that Gemara is like
               Chachamim, but R. Meir obligates.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Teshuvos Maimoniyos (Nezikim 4):</font></b> These are
                    difficult distinctions. The Ritzva says that
                    Garmi is a fine, like the Yerushalmi says. Any
                    damage that would be common if not for the fine
                    is Garmi.
<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 386:1):</font></b> We hold like R. Meir, who
               obligates for Garmi.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (1):</font></b> The Ir Shushan says that Garmi is a
                    different grammatical form than Gerama; it
                    connotes that he himself damaged. This is
                    unlike the Mordechai, who says that the only
                    difference is that R. Meir fines for what is
                    common.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (1):</font></b> The Ramban wrote a long discourse to
                    explain the differences between Gerama and
                    Garmi because he holds that it is mid'Oraisa. I
                    concluded that it is mid'Rabanan; we obligate
                    only what is common.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> Therefore, if one pushed
               another's coin into the sea, flattened it, or
               pardoned a loan document after he sold it, he must
               pay.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema (3):</font></b> Some say that the following are Gerama,
               and are exempt: one who pushed another's coin, or
               flattened the image, a scribe who wrote the wrong
               amount in a document, one who damaged by giving bad
               counsel, and a middleman who returned a document
               that he should not have returned. Some fine for
               every Gerama that is common. Therefore, if one told
               a Nochri that Reuven overcharged him, he is like a
               Moser, and is liable.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (CM 386 DH Kosav ha'Rashba):</font></b> The
                    Rashba (3:76) exempts one who returned Levi's
                    paid document to the lender, for it does not
                    cause an immediate loss. If a scribe wrote the
                    wrong amount in a document, this is Gerama.<p>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven decided not to fix it, this forbids the 
               grain, and Reuven is liable.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>IMPROPER DYING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven gave wool to a dyer (Shimon), and 
          the dye was ruined, Shimon pays the value of the wool.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he dyed it poorly, Reuven pays the increased value 
          of the wool or Shimon's expenses, whichever is smaller.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Meir says, if he was told to dye it red, and he died 
          it black, or vice-versa, Shimon pays the value of the 
          wool he received;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Yehudah says, Reuven pays the increased value or 
          Shimon's expenses, whichever is smaller.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What does 'he dyed it poorly' mean?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> He dyed it with Kalbus.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is this? 
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rabah bar Shmuel):</font></b> It is the dregs of dye at 
          the bottom of the cauldron.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CRAFTSMEN WHO DEVIATED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - R. Meir):</font></b> If Reuven gave wood to a carpenter 
          to make a chair, and he made a bench, or vice-versa, he 
          pays the value of the wood he received;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yehudah says, Reuven pays the increased value or the 
          expenses, whichever is smaller.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Meir admits that if he was told to make a nice chair 
          or bench and made an unsightly one, Reuven pays the 
          increased value or the expenses, whichever is smaller.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ARE WE CONCERNED FOR CHANGED APPEARANCE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Do we say that wool increases in value due to 
          ingredients (of dye)?
<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 Reuven stole Shimon's ingredients, grated 
                    them, soaked them and dyed his own wool with 
                    them, he already acquired them by changing them 
                    (and must pay for them)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, Shimon's ingredients were 
               already soaking, and Reuven dyed his own wool with 
               them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If we say that the ingredients increase the value 
                    of the wool, Shimon can demand compensation;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If there is no increased value on the wool, 
                    Reuven can say 'I don't have anything of 
                    yours'.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection:</font></b> Even if there is no increased value on 
               the wool, Reuven must pay for depriving Shimon of 
               his ingredients!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, if we say that the wool did not 
               increase in value, Reuven pays for the ingredients;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If the increased value is on the wool, Reuven can 
                    say 'here is the wool. Take your ingredients 
                    back.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> How can he take them back?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> He can wash the wool with soap.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Objection:</font></b> Soap can remove the dye from the wool, 
               but it cannot restore the dye!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #2:</font></b> Rather, Reuven stole Shimon's wool and 
               ingredients, dyed the wool and returned it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If we say that the increased value due to the 
                    ingredients is on the wool, Reuven returned 
                    everything;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If the value of the ingredients is not on 
                    the wool, Reuven did not return the ingredients 
                    and he must pay for them.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> It should suffice that he returned wool 
               worth more than what he stole!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'>  Answer #1:</font></b> The price of dye declined (so the 
               increased value is less than the value of the 
               ingredients he stole).
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'>  Answer #2:</font></b> He dyed a monkey (some say - a box). 
               It is not worth more due to the dye.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'>  Answer #3 (to Question (1) - Ravina):</font></b> A monkey 
               dyed Reuven's wool with Shimon's ingredients;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If there is increased value due to the 
                    ingredients on the wool, Reuven must compensate 
                    Shimon;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If there is no increased value, Reuven is 
                    exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Mishnah):</font></b> If a garment was dyed with peels 
          of (fruit of) Orlah, it must be burned.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This teaches that the appearance is significant 
               (it increases the value)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> Orlah is special. The Torah forbids 
          any visible benefit from Orlah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'Do not eat Areilim' forbids eating;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Earlier, the verse says 'Va'araltem Orlaso (its 
               Orlah will be closed (forbidden) to you), its 
               fruit.' This forbids benefit, dying, or burning a 
               lamp with Orlah.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Beraisa):</font></b> If a garment was dyed with peels 
          of (fruit of) Shemitah, it must be burned.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> Shemitah is special. It says 'it will be' to 
          teach that the appearance counts.
<br>
<br>

sjt:
<font><b>1) A THIEF WHO STEALS WOOL AND DYE</b></font><b>
<br>QUESTION:</b> The Gemara asks whether there is 'Shevach Samanin Al ha'Tzemer' or not: Is the dye on the wool considered still in its original form, or is it considered consumed by the wool? The Gemara explains that the practical difference exists in a case of a thief who steals wool and dye from someone, and then he colors the wool with the dye.
</p><p>
If the dye is considered still in its original form, the thief fulfills his obligation to return the stolen wool and dye by simply returning the dyed wool in its present state. If the dye is not considered present in its original form, the thief must return the wool plus the value of the dye which is no longer present.
</p><p>
The Gemara asks, why must the thief return the value of the dye? Since the wool is now dyed it is worth more than it was worth when he stole it, and therefore when he returns the dyed wool he returns both the wool and the value of the dye!
</p><p>
The Gemara answers that the case is one in which the market price of dyed wool depreciated, and dyed wool is not worth as much as wool that is not dyed since people use dye only on finished garments and not on wool. If the thief must return the value of the dye, he must add some money to the dyed wool that he returns.
</p><p>
<b>RASHI</b> explains that had the only use of dye been for dying wool, the thief would not have been required to add the value of the dye to the dyed wool that he returns. However, since there the option exists to use dye for dyeing garments, a use which would not cause the dye to depreciate in value, the thief must return to the owner the full value of the dye that he stole because of this loss that he causes to the owner. This is also the way the <b>ROSH</b> and <b>NIMUKEI YOSEF</b> explain the Gemara.
</p><p>
<b>REBBI AKIVA EIGER</b> (in Gilyon ha'Shas) asks why Rashi needs to explain that the dye would not lose value when used to dye a garment. The Gemara is understandable just as well even if the dye depreciated in value (after the thief dyed the wool) and any other use that it has will <i>not</i> add up to the dye's original worth. Although the dye has depreciated in value, if the dye is considered consumed by the wool, the thief must return the amount of money the dye was worth at the time he applied it to the wool, and not its present value. This is the manner of assessing every stolen item which one must repay! If the dye is considered present, the thief may return the colored wool in its present form.
</p><p>
<b>ANSWER:</b> Rebbi Akiva Eiger seems to understand the words 'Zol Tziv'a' ('the dyed wool depreciated') to mean that after the wool was dyed, dye fell in value so that it was no longer worth as much as it was worth at the time that the thief applied it to the wool. Indeed, this is the way the <b>RAMBAN</b> (in Milchamos) explains these words of the Gemara.
</p><p>
However, as <b>RABEINU MOSHE KAZIS</b> explains, Rashi seems to understand these words differently. Rashi implies that the price of dye did not change from the time that the thief stole it until the time that he returned it. Rather, dyed wool was <i>always</i> low in value, in contrast to dye alone, or dyed garments, which are worth more than dyed wool. This is why Rashi adds the words that dyed wool 'depreciated in value <i>in the world</i>,' meaning that the low price was due to the nature of the world and not due to fluctuations in the market.
</p><p>
Since, according to Rashi, the Gemara does not discuss a case in which there was a depreciation in the value of the dye, even if the dye is not considered present the thief does not have to pay more than the present value of the dye.
</p><p>
Why, though, does Rashi explain the Gemara this way? Why does he not explain that the value of the dye depreciated, as the Ramban explains? Perhaps Rashi derives his explanation from the fact that the Gemara does not mention that if the dye is not considered present, the thief will have to pay based on the original value of the dye and not based on the present value. Until the Gemara gives this answer (and in its following answer, that the thief dyed a monkey with the dye), the Gemara assumes that the thief must pay the present value of the dye. If the whole point of this answer is that the thief must pay a different value, the Gemara should say so explicitly. This is why Rashi learns that the Gemara means simply that dyed wool is less valuable than wool alone and dye alone. (Perhaps even the Ramban does not mean that the <i>Gemara</i> is saying the value of dye depreciated, but rather that the <i>Rif</i> refers to a case in which the value of dye depreciated. The Ramban writes this in order to answer the question of the Ba'al ha'Me'or on the Rif.)
</p><p>
Why does the Gemara itself not suggest that the practical difference exists in a case in which the dye depreciates in value after it is stolen? Rabeinu Moshe Kazis points out that the Gemara indeed could have offered this case as a practical difference. Perhaps the Gemara does not offer this case as a practical difference because it seeks to keep the case simple. The Gemara wants to find a way to obligate the thief pay (when the dye is not considered present) because he did not return the full value of the dye, and not because he acquired it with a Shinuy and must return the original value of the dye (its value at the time that he stole it).
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A CRAFTSMAN WHO DEVIATED</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'> 95a (Mishnah - R. Meir):</font></b> If Reuven gave wool to
               Shimon to dye red, and he dyed it black, or vice-
               versa, Shimon pays him the value of the wool that he
               received.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Inference:</font></b> He pays only the value of the wool, not
               the added value of dyed wool.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he held that Ein Shinuy Koneh (one does not a
               through a change), he should pay for dyed wool!
               Rather, he must hold that Shinuy Koneh.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 99b (Shmuel):</font></b> A slaughterer who slaughtered
               improperly is liable. He is a damager, he is
               negligent. It is as if he slaughtered not where he
               was told.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shmuel (to a Chacham who questioned this):</font></b> You
               should have understood that my law is like R. Meir.
               Why do you ask from a Beraisa that is like
               Chachamim?!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 101a (Beraisa - R. Meir):</font></b> If Reuven gave wood to a
               carpenter to make a chair, and he made a bench, or
               vice-versa, he pays the value of the wood he
               received;
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> R. Yehudah says, he pays the lesser of the Shevach
               (increased value) and the expenses.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> R. Meir admits that if he was told to make a nice
               chair and made an unsightly one, Reuven pays the
               lesser of the Shevach and the expenses.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 102a (Rav Huna):</font></b> The Halachah follows R. Yehudah.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif brings the Mishnah and Beraisa.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef:</font></b> Rashi explains that he gets only
                    his expenses, but not his full wage. The Ro'oh
                    explains that he is paid like a worker would
                    want to receive to be idle (and not work). If
                    the contracted wage is less than the expense,
                    Reuven pays only it. R. Yehudah fines Shimon
                    for deviating.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 10:4):</font></b> If Reuven gave wool
               to a dyer (Shimon) to dye red, and he dyed it black,
               or vice-versa, Reuven pays the lesser of the Shevach
               and the expenses. If Reuven does not want the result
               and requests the value of the wool, we do not heed
               him. Similarly, if Shimon offers to pay this, we do
               not heed him, for Ein Uman Koneh bi'Shvach Kli (a
               craftsman does not acquire improvements that he
               makes to a Kli).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> There is no reason to say
                    so.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> The Rambam is proper! The Gemara
                    said that Reuven pays the lesser of the Shevach
                    and the expenses! If the dyer wants this,
                    Reuven cannot refuse! Perhaps the Ra'avad means
                    that there was no need to say it. Rashi
                    explains that Reuven can give the wool to
                    Shimon, i.e. for its value. This requires
                    investigation.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Migdal Oz:</font></b> The Yerushalmi says that if one
                    built on another's property without permission,
                    he cannot opt to take back his rocks and wood.
                    R. Yehoshua ben Levi called this 'an enactment
                    to promote settlement of Eretz Yisrael', but
                    the Stam Gemara connotes that it is letter of
                    the law. The same applies to all similar cases.
                    Also, one can decline an enactment of Chachamim
                    only in certain cases (an enactment made for
                    his benefit). Also, the Halachah follows R.
                    Yehudah. If Reuven may demand back the value of
                    his wool, this is like R. Meir!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (10:17):</font></b> Seemingly, the Mishnah means that if
               the wool was worth 10 and the ingredients were worth
               10, if the result is worth more than 20, the Shevach
               is greater than the expenses, and Reuven pays only
<br>             <b>  <b><font color='darkgreen'>10. </font></b></b>If the result is worth 18, Reuven pays only
               eight. The Yerushalmi explains differently. Shimon
               receives nothing until Reuven gets (the initial
               value of) his wool and the Shevach ha'Ra'uy (what it
               would have increased) had Shimon not deviated. If
               the result is worth more than the wool and the
               Shevach ha'Ra'uy, then Shimon receives. The wool and
               the Shevach ha'Ra'uy are considered principal. This
               is unlike one who planted another's field without
               permission, who receives from all the Shevach. The
               craftsman was given to dye, so it is as if it
               already increased in value all the Shevach ha'Ra'uy,
               so one who deviated must pay everything. The
               Halachah follows R. Yehudah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef:</font></b> The Ro'oh said that the
                    Yerushalmi requires investigation.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos Ashri:</font></b> R. Elchanan explains that if the
                    owner of the wool vowed to give to the dyer 10,
                    and the dyer must pay his workers five, the
                    five is like principal. Even if he deviated, he
                    takes five from the Shevach of the colored wool
                    over the original wall and ingredients. The 10
                    is principal of the owner of the wool and
                    ingredients. He gets two thirds of any
                    additional Shevach. Even if the dyer paid more
                    than five for labor, due to his mistake, only
                    five is principal. Some explain that first the
                    dyer takes the five that he paid workers, then
                    (if more Shevach remains) the owner takes the
                    five he should have profited, and then the dyer
                    gets the rest of his normal wage, up to five.
                    If more remains, perhaps the owner gets all of
                    it. The same applies to one who planted
                    another's field without permission if it is not
                    meant to be planted. If it is meant to be
                    planted, he receives a half, third or quarter,
                    like sharecroppers in the city. If a Shali'ach
                    was given money to buy wheat where it is cheap,
                    and he bought where it is expensive, the
                    Shali'ach loses.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 306:3):</font></b> If Reuven gave wool to a
               dyer (Shimon) to dye red, and he dyed it black, or
               vice-versa, Reuven pays the Shevach or the expenses,
               whichever is smaller.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (9):</font></b> This is like the Rambam, who explains
                    like the Rosh originally suggested. Expenses
                    and Shevach are like we say about one who
                    planed another's field without permission. If
                    not, the Shulchan Aruch would have explained.
                    The Yerushalmi holds that Shevach ha'Ra'uy is
                    what the wool would have increased above the
                    expenses and wages of the dyer. The Rema rules
                    like the Yerushalmi, for he holds that it is
                    primary. However, he should have said 'some say
                    that...', for they differ about whether the
                    dyer collects before the owner gets Shevach
                    ha'Ra'uy! This requires investigation.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH v'Kivan):</font></b> If the Bavli held like
                    the Yerushalmi, it would have specified. Also,
                    the Yerushalmi is not so clear. R. Elchanan
                    explained it unlike Tosfos and the Rosh.
                    Therefore, the Rambam's Perush is primary.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Darchei Moshe 2):</font></b> Tosfos and the Rosh
                    rejected Rashi due to the Yerushalmi, so we
                    cannot say that the Bavli argues. We follow the
                    Tur, who rules like the Yerushalmi.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (5):</font></b> The Rema did not say 'some say
                    that...' because the intent of the Rambam and
                    Shulchan Aruch is not so clear. The Beis Yosef
                    said that R. Elchanan explained the Yerushalmi
                    unlike Tosfos and the Rosh, i.e. and according
                    to him it is not unlike Rashi. Rashi derived
                    from the Mishnah that the dyer gets at most his
                    expenses, but not his full wage.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> The Shevach ha'Ra'uy had he not deviated is
               included in the principal. We calculate Shevach and
               expenses without this.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If Reuven does not want the
               enactment and asks to get the value of the wool, we
               do not heed him. Similarly, if Shimon offers to pay
               this, we do not heed him, for Ein Uman Koneh
               bi'Shvach Kli.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (10):</font></b> The enactment is for the owner and
                    the dyer. Neither can retract.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (6):</font></b> The Maharshal says that this is when
                    the wool did not increase in value at all. If
                    it increased, surely the owner may demand its
                    original value! This is wrong. Perhaps the
                    owner does not want to toil to sell it! The
                    Maharshal says that the Ra'avad's opinion is
                    primary; the owner may demand its original
                    value. I disagree. R. Yehudah's reason is that
                    the dyer did not acquire it! The dyer has the
                    lower hand only because he seeks to take from
                    the owner, and he deviated. Surely the owner
                    cannot take from the dyer!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (6/7?):</font></b> Shmuel said that his law is like R.
                    Meir. If the dyer were liable, Shmuel's law
                    would be even like R. Yehudah!
<br>

<p>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Mishnayos differ about whether or not 
          appearance is significant!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah #1):</font></b> If a garment was dyed with peels of 
               Orlah, it must be burned.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This teaches that the appearance is significant.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Contradiction (Mishnah #2):</font></b> If a Revi'is of blood 
               was absorbed in the floor of a house, (Kelim in) the 
               house are Tehorim. Some say that they are Teme'im;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Really, these two opinions do not argue. Kelim in 
                    the house before the blood was absorbed are 
                    Teme'im. Those that entered the house after it 
                    was absorbed are Tehorim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Continuation of Mishnah #2):</font></b> If a Revi'is of 
               blood was absorbed in a garment, (it is Tamei, but) 
               it has Tum'as Ohel (it is Metamei what is over or 
               below it or under a common roof) if a Revi'is of 
               blood will come out through washing it. (This shows 
               that the mere appearance of blood makes no 
               difference!)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Kahana):</font></b> (Normally, appearance is 
          significant.) Mishnah #2 discusses Tevusah blood (we are 
          unsure if it came out before or after death). Since its 
          Tum'as Ohel is only mid'Rabanan, Chachamim were lenient.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WOOD OF SHEMITAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> An anonymous Mishnah and Beraisa 
          disagree about whether or not wood has Kedushah of 
          Shemitah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If plants used for dyes, such as 
               saffron or woad, grew by themselves in Shemitah, 
               Kedushas Shemitah and Bi'ur (one must get rid of 
               them when they are not available in the field) 
               applies to them and money used to buy them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This shows that wood has Kedushah of Shemitah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> (If stalks of) reeds or vines were 
               stored up:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If they were stored to be eaten (by animals), 
                    they have Kedushah of Shemitah;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If they were stored (to be burned) like 
                    wood, they do not have Kedushah of Shemitah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Regarding Shemitah it says 'to eat'. 
          This is benefit derived at the same time that the Peros 
          are consumed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This excludes wood, for the (primary) benefit 
               (heat) comes after it is consumed (i.e. when it is 
               coals).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If so, Kedushah of Shemitah should apply to 
          oil-coated wood, for it can serve like a torch. It 
          illuminates at the same time that the wood is consumed!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Normally, wood is gathered to be burned 
          (for heat, not illumination).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Kahana):</font></b> Tana'im argue about whether or not wood 
          has Kedushas Shemitah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Peros (e.g. wine) of Shemitah may not 
               be used for soaking (flax) or laundering; 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yosi permits this.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is Chachamim's reason?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> It says 'to eat' - not to soak or launder;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yosi expounds 'for you' - for all your needs.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What do Chachamim learn from 'for you'?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> It includes other needs, but only those similar 
          to eating, in which the benefit comes at the same time 
          that the Peros are consumed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This excludes soaking and laundering, for the 
               wine is ruined immediately, and the benefit comes 
               much later.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> How does R. Yosi expound 'to eat'?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> '(The Peros are) to eat', not for a 
          bandage.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps we should rather exclude 
               laundering!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> 'For you' permits laundering.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps we should learn the other way! 
               Perhaps 'to eat' forbids laundering, and 'for you' 
               permits a bandage!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> It is more reasonable to permit 
               laundering, which everyone needs, than a bandage, 
               which not everyone needs.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Like whom is the following Beraisa?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> '(The Peros are) to eat', not for a 
               bandage, not to sprinkle wine on the floor (to scent 
               the house), and not to induce vomiting.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> It is like R. Yosi. If it were like Chachamim, 
          it would also exclude soaking and laundry.
<br>

sjt:
</p><p>
<font><b>2) THE DEFINITION OF 'BI'UR'</b></font><b>
<br>OPINIONS:</b> The Gemara quotes a Beraisa which teaches that if a person dyes clothing with the dye from fruit of Shevi'is, the clothing must be burned.
</p><p>
Why must the clothing be burned? It is apparently because of the Halachah of Bi'ur, which requires that one destroy (Meva'er) fruit of the Shemitah year after the time that such fruit is no longer available in the field. (<b>TOSFOS RABEINU PERETZ</b>, <b>ME'IRI</b>; according to the <b>RASHASH</b>, this is also the intention of <b>RASHI</b> in DH Yesh Lahen Bi'ur; see following Insight.)
</p><p>
The Beraisa implies that Bi'ur means the destruction of produce (as in 'Bi'ur Chametz'). However, the Tosefta (Shevi'is 8:4) states that at the time of Bi'ur, a person must take the Shevi'is fruit into the street and make it Hefker so that anyone may take it, and afterwards he may bring it back into his home and eat it until it is finished. This implies that Bi'ur means simply taking the fruit out of one's home (and making it Hefker), as in 'Bi'ur Ma'aseros' (which is done in the fourth and seven year).
</p><p>
What is the meaning of Bi'ur?
</p><p>
(a) The <b>RAMBAM</b> (Hilchos Shemitah 7:1-3) explains that Bi'ur means that the produce becomes prohibited to be eaten and it must be burned or destroyed. This also seems to be the view of Rashi here (and in Yevamos (122a) and other places). Rashi writes that produce of Shevi'is is destroyed at the time of Bi'ur. How does Rashi, understand the Tosefta?
</p><p>
Rashi in Pesachim (52b, DH Mishum she'Ne'emar) explains that one destroys the fruit by placing it in a place that is Hefker, where it will be trampled by animals. (See also Rashi to Nidah 51b, DH Kol she'Yesh Lo, who explains that Bi'ur means to remove the fruit from one's home.)
</p><p>
Why does the Beraisa here teach that the produce must be <i>burned</i> at the time of Bi'ur? Perhaps Rashi maintains that only a <i>garment</i> must be burned, since it is not ruined by the trampling of animals. Fruit, on the other hand, may be placed in a public area where it will be trampled.
</p><p>
(b) <b>TOSFOS</b> in Pesachim (52b, DH Misba'arin), the <b>RAMBAN</b> (Vayikra 25:7), and the <b>RASH</b> (Shevi'is 9:8) explain that there is no requirement to burn or destroy produce of Shemitah at the time of Bi'ur. One simply must make the produce Hefker so that anyone may take it, and afterwards even the owner may reclaim it for himself and eat it for as long as he wants. The Ramban proves this from the Tosefta mentioned above and from the fact that produce of Shemitah does not appear in the list of Isurei Hana'ah (at the end of Maseches Temurah) which are either buried or burned.
</p><p>
According to these Rishonim, why does clothing dyed with the produce of Shemitah need to be burned? (<b>MELECHES SHLOMO</b>, Shevi'is 7:1)
</p><p>
The Ramban answers that if the owner did not make the produce Hefker before the time of Bi'ur, the produce becomes prohibited (perhaps only mid'Rabanan).
</p><p>
Alternatively, perhaps the Beraisa refers to produce of Shemitah which the owner did not make Hefker but treated like produce of other years. According to <b>RABEINU TAM</b> (cited by Tosfos to Sukah 39b, DH ba'Meh Devarim Amurim), such produce becomes Asur mid'Oraisa. According to the Ramban (Vayikra 25:5), it becomes Asur mid'Rabanan.
</p><p>
(c) The <b>RA'AVAD</b> (Hilchos Shemitah 7:3) writes that both opinions are correct. There are two different types of Bi'ur which must be done with fruit of Shevi'is. When the fruit of Shevi'is is no longer available in one particular city or location, every person who lives in that location must be Mafkir the fruit in his possession, or he must bring it to Beis Din to distribute. However, when a particular fruit is no longer available in one of the three regions of Eretz Yisrael (Yehudah, Galil, and Ever ha'Yarden; see Shevi'is 9:2), the fruit must be destroyed.
</p><p>


<font><b>3) USING DYES OF 'SHEVI'IS'</b></font><b>
<br>QUESTION:</b> The Gemara quotes the Mishnah in Shevi'is (7:1) which states that the laws of Shevi'is and the laws of Bi'ur apply to 'Sefichei Satis,' plants from which dyes are made (see Background to the Daf, Bava Kama 101:20), and to the money which is paid for them.
</p><p>
<b>RASHI</b> explains that when the Gemara says that the laws of Shevi'is apply to them it means that one may not do business (Sechorah) with them because the Torah says 'l'Ochlah,' which teaches that the fruit must be eaten and not traded. One may not use these fruits for dye because such use is considered Sechorah. However, one is permitted to burn them before the time of Bi'ur because that is a use similar to eating, 'l'Ochlah.'
</p><p>
Rashi's words are perplexing. Why should dyeing a garment with fruit of Shevi'is be considered Sechorah, if one does so for his own personal use? Moreover, the Gemara immediately afterwards teaches that one <i>is</i> permitted to use dyes of Shemitah for dyeing clothing, since they are considered 'Hana'asan u'Vi'uran Shaveh' -- the Shemitah produce is consumed before the benefit is derived from it (see Rashi DH Yatz'u Etzim). (When the Beraisa (end of 101a) teaches that clothing dyed with Shemitah produce must be burned, it refers to <i>after</i> the time of Bi'ur has passed.)
</p><p>
Moreover, how can Rashi permit one to burn fruit of Shemitah before the time of Bi'ur arrives on the grounds that burning is similar to eating? The Gemara immediately afterwards teaches that burning wood is <i>not</i> similar to eating fruit (and it therefore should be prohibited)! (<b>REBBI AKIVA EIGER</b>, MAR'EH <b>KOHEN</b>, <b>YEFEH EINAYIM</b>, <b>MIKDASH DAVID</b> to Zera'im 59:4)
</p><p>
A similar question may be asked on the words of Rashi later (beginning of 102a, DH Stam), where he writes that Sefichei Satis, which have Kedushah, may not be used after the time of Bi'ur even as firewood. This implies that before the Bi'ur they <i>may</i> be used for firewood, which contradicts the Gemara! (<b>RASHASH</b>, <b>MAHARSHA</b> in Mahadura Basra)
</p><p>
<b>ANSWER:</b> It seems clear that there is a typographical error in the words of Rashi, and that the words as they appear in our text must be reversed. The words of Rashi as they appear in our text are: 'We may not do business (Sechorah) with them (plants of Shevi'is) because the Torah says 'l'Ochlah' and not for Sechorah, and it is forbidden to dye with them because such use is considered Sechorah. But we are permitted to burn them before the time of Bi'ur because that is similar to eating.' Those of words of Rashi should read instead: 'We may not <i>burn</i> them (plants of Shevi'is) because that is similar to Sechorah, but we are permitted to <i>dye</i> with plants of Shevi'is because dyeing is similar to eating' (as the Gemara explains). (The Mar'eh Kohen makes a different emendation in the words of Rashi.)
</p><p>
The cause for this error may have been the comment of Rashi earlier (end of 101a). When the Beraisa teaches that a garment dyed with Shemitah produce must be burned, Rashi writes that 'one is prohibited to do Sechorah with fruit of Shevi'is,' implying that dyeing clothes is similar to Sechorah. What does Rashi mean? In what way is dyeing comparable to Sechorah? Similarly, according to our suggested emendation in the words of Rashi, Rashi considers the act of burning firewood similar to an act of Sechorah, but in what way is burning similar to Sechorah?
</p><p>
The answer is that Rashi understands that the Isur of Sechorah is directly related to the Halachah of Bi'ur. When the Torah says, 'l'Ochlah,' it means that Shemitah produce must be eaten before the time of Bi'ur, and it is for that reason that one may not do business with Shemitah produce; one benefits from it without destroying it and he might come to use it after the time of Bi'ur. For this reason, Rashi includes in the category of Sechorah any use of Shemitah produce which is either after the time of Bi'ur or which is before the time of Bi'ur but one derives benefit from the fruit at a time other than the moment at which the fruit is consumed. This is clear from Rashi later (102a, DH l'Toch) who writes that washing clothes with wine of Shevi'is is prohibited because of Sechorah. Why does Rashi not write that it is prohibited because it is not 'Hana'asan u'Vi'uran Shaveh,' as the Gemara explains (<b>REBBI AKIVA EIGER</b>)? The answer is that Rashi puts anything which is not 'Hana'asan u'Vi'uran Shaveh' into the category of Sechorah because it might cause a person to benefit from the fruit of Shevi'is after the time of Bi'ur. This is also clear from Rashi in Sukah (see Insights to Sukah 39:2).
</p><p>
Accordingly, this is what Rashi means here when he writes that one is prohibited from burning wood of Shevi'is because of Sechorah (according to our emendation). This is also the intention of Rashi means earlier (101a) when he writes that one must burn a garment dyed with Shevi'is fruit after the time of Bi'ur because one may not do Sechorah with fruit of Shevi'is.
</p><p>
In short, the Isur of Sechorah is the source for all of the Halachos of Bi'ur of fruits of Shemitah.
</p><p>
What does Rashi later (beginning of 102a) mean when he writes that dye plants of Shevi'is may not be burned as firewood after Bi'ur, which implies that before Bi'ur they may be used in such a manner? It seems clear from Rashi that the words 'even for fuel' are out of place and they belong three words earlier. Rashi is saying that plants which normally are used to produce dyes are Kadosh with Kedushas Shevi'is to the extent that even if one picks them with intent to use them as fuel, they still retain the Kedushah of Shevi'is and cannot be used after the time of Bi'ur. This is the context in which these words appear in Rashi. (M. Kornfeld)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CRAFTSMEN WHO DEVIATED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Yehudah):</font></b> Reuven pays the increased value 
          or Shimon's expenses, whichever is smaller.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> The Halachah follows R. Yehoshua ben 
          Korchah and R. Yehudah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rav Yosef:</font></b> I understand why you must rule like R. 
          Yehoshua ben Korchah. One might have thought that the 
          Halachah follows the majority (Chachamim);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> To which teaching of R. Yehoshua ben 
               Korchah do they refer?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Beraisa - R. Yehoshua ben Korchah):</font></b> If 
               Reuven lent money to a Nochri without a document, he 
               is in danger of losing the loan, so he may collect 
               the loan within three days before the Nochri 
               festival;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Reuven has a document, he may not collect it 
                    during those three days (lest the Nochri thank 
                    his idol for helping him to pay his debts).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Yosef):</font></b> Why did you need to rule like R. 
          Yehudah? The general rule is, when a Stam (anonymous) 
          Mishnah follows a Machlokes (a Mishnah in which Tana'im 
          argue), the Halachah follows the Stam Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Our Mishnah - R. Meir):</font></b> If he was told to dye it 
               red, and he died it black, or vice-versa, Shimon 
               pays the value of the wool he received;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, Reuven pays the increased value 
               or Shimon's expenses, whichever is smaller.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Stam Mishnah (Bava Metzia 76a)):</font></b> Anyone who 
               deviates or retracts has the lower hand (to pay or 
               receive the change in value or the expenditures).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Huna):</font></b> One might have thought that we do 
          not know the order of the Mishnayos, and perhaps the Stam 
          Mishnah came first.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Yosef):</font></b> If so, we can never apply the 
          rule of a Stam Mishnah after a Machlokes!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Huna):</font></b> We can apply it within one tractate 
          (surely, it is in order).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Version #1 - Question (Rav Yosef):</font></b> All three Bavas 
          (Kama, Metzia and Basra) are one tractate (so we know 
          the order)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Version #2 - Objection (Rav Yosef):</font></b> Clearly, the 
          Halachah follows the anonymous Mishnah, for it gives 
          general rules (anyone who deviates... or retracts, he has 
          the lower hand).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DEVIATING FROM ONE'S MISSION</font></b>

<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	If Reuven gave money to a Shali'ach (Shimon) to buy 
          wheat, and he bought barley with it (or vice-versa).
<br>
<br>

sjt:
<font><b>1) 'KEDUSHAS SHEVI'IS' OF FRUITS PICKED FOR UNUSUAL PURPOSES</b></font><b>
<br>QUESTIONS:</b> The Gemara explains that even wood which is used as a torch for making light does not have Kedushas Shevi'is because the primary use of most wood (including this wood) is fuel, which is not 'Hana'asan u'Vi'uran Shaveh' -- items which are consumed before the benefit is derived from them.
</p><p>
Rav Kahana states (according to Rashi's Girsa here) that the Tana'im argue with regard to the general purpose of wood (whether or not 'Stam Etzim l'Hasakah'). Does the primary use of an item determine whether it has Kedushas Shevi'is or not?
</p><p>
The Gemara quotes a Beraisa in which the Tana Kama prohibits the use of wine of Shevi'is for soaking or washing clothes, and Rebbi Yosi permits it. <b>RASHI</b> explains that Rebbi Yosi permits the use of wine for soaking or washing when the grapes were picked for that purpose, because he maintains that they do not acquire Kedushas Shevi'is when picked specifically for that purpose. Even though the primary use of grapes in general is for making wine for drinking, the intention of the one who harvests the grapes can determine whether Kedushas Shevi'is takes effect on them or not. Similarly, when a person gathers wood in order to use as a torch (which is 'Hana'asan u'Vi'uran Shaveh'), it will have Kedushas Shevi'is. The Tana Kama maintains that the main use of the produce determines whether it has Kedushah or not, regardless of the intention of the one who gathers it. Therefore, wine is Kadosh and may not be used for soaking clothes (which is not 'Hana'asan u'Vi'uran Shaveh'), even when it is picked with that intent. Similarly, wood which is used as a torch is not Kadosh even when it is cut in order to be used for that purpose.
</p><p>
The Gemara cites as a source for the Tana Kama's ruling the word 'l'Ochlah' in the verse, '... the produce of the year of the Sabbath of the land shall be for you <i>to eat</i>' (Vayikra 25:6). Rebbi Yosi learns from the word '<i>Lachem</i> l'Ochlah' that produce of Shemitah can be used for any purpose, even for soaking. The Gemara asks how Rebbi Yosi understands the word 'l'Ochlah.' The Gemara answers that he derives from 'l'Ochlah' that one may not use produce of Shevi'is for 'Melugma,' a bandage or poultice.
</p><p>
There are a number of difficulties with understanding the Gemara.
</p><p>
(a) Why does the Gemara ask what Rebbi Yosi learns from 'l'Ochlah'? He can learn the same thing as the Tana Kama -- that fruit of Shevi'is must be used for a purpose that is 'Hana'asan u'Vi'uran Shaveh' (as the Gemara says at the end of 101b)! The only reason why Rebbi Yosi permits washing clothes with wine is that the grapes were picked for the purpose of using them for washing, and thus they have no Kedushas Shevi'is. When they are picked for the purpose of eating (or drinking), even Rebbi Yosi agrees that they cannot be used for washing clothes! (<b>MAHARSHA</b> in Mahadura Basra, <b>PNEI YEHOSHUA</b>, MAR'EH <b>KOHEN</b>)
</p><p>
(b) How can Rebbi Yosi learn from the word '<i>Lachem</i> l'Ochlah' that the wine may be used to wash clothes? That verse refers to fruit that has Kedushas Shevi'is (as is evident from the Gemara at the end of 101b) and which must be used in a manner which is 'Hana'asan u'Vi'uran Shaveh.' How can he learn from this verse that wine may be used for soaking clothes because it has <i>no</i> Kedushas Shevi'is? (<b>MAHARSHA</b> to Sukah 40a, <b>PNEI YEHOSHUA</b> here)
</p><p>
Rashi in Sukah (40a, DH v'Etzim) suggests an entirely different explanation for the Gemara here. He comments that the explanation and the Girsa which he records here are untenable and that he 'toiled to reconcile this Girsa in his youth in any possible way but without success.' Rashi may have been bothered by these questions.
</p><p>
<b>ANSWERS:</b>
<br>(a) The Gemara understands that according to the Tana Kama, the word 'l'Ochlah' refers to <i>all</i> of the produce of the land during Shemitah. However, it obviously does not refer to items which cannot be consumed in a manner of 'Hana'asan u'Vi'uran Shaveh,' because 'l'Ochlah' specifically means that it <i>is</i> consumed in such a manner. The verse <i>does</i> refer to any item that is <i>possible</i> to be consumed in a manner of 'Hana'asan u'Vi'uran Shaveh.' Accordingly, the Gemara's question on Rebbi Yosi's view is why does he limit 'l'Ochlah' to fruits picked with <i>intent</i> to use them in a manner that is 'Hana'asan u'Vi'uran Shaveh'? If those fruits do not have Kedushas Shevi'is, the Torah should say 'l'Ochlah' in a context which does not refer to all of the produce of Shemitah! The Gemara answers that the Torah wants to teach that if a limited number of people use a certain type of fruit only for purposes that are not 'Hana'asan u'Vi'uran Shaveh,' when a person from that group picks it to use for his purposes, his intentions are ignored and the fruit <i>is</i> Kadosh with Kedushas Shevi'is. For this reason, when a person picks fruit of Shevi'is for 'Melugma,' the fruit remains Kadosh with Kedushas Shevi'is and one may not use the fruit for 'Melugma.' (See Pnei Yehoshua.)
</p><p>
(b) Rebbi Yosi understands that 'Lachem' limits the meaning of the word 'l'Ochlah.' 'Lachem' teaches that sometimes the fruit of Shemitah <i>may</i> be used for purposes that are not in the category of 'l'Ochlah' (i.e. not 'Hana'asan u'Vi'uran Shaveh'), because they <i>lose</i> their Kedushas Shevi'is. This applies when the fruit is picked for a secondary usage, such as grapes picked for making wine in which to soak clothes. The verse now reads that the produce of Shemitah should be available for any use (meaning that it is not Kadosh), but usually it should be used 'l'Ochlah' (meaning that it must be consumed in a manner that is 'Hana'asan u'Vi'uran Shaveh' when it is picked for its primary usage, or when it is picked for the usage of a very limited number of people). (See Pnei Yehoshua.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A SHALI'ACH WHO DEVIATED</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #1):</font></b> If Levi gave money to a Shali'ach
               (Shimon) to buy wheat, and he bought barley with it
               (or vice-versa), if the grain went up or down in
               value, Shimon takes the gain or loss.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Contradiction (Beraisa #2):</font></b> If the grain went down
               in value, Shimon suffers the loss. If it went up in
               value, they share the gain.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1 (R. Yochanan):</font></b> Beraisa #1 is like R. Meir,
               who holds that Shinuy Koneh (one acquires through
               change). Beraisa #2 is like R. Yehudah, who holds
               that Ein Shinuy Koneh.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Objection (R. Elazar):</font></b> Perhaps R. Meir holds that
               Shinuy Koneh only when Levi wanted something for his
               own use, for then he has use only for that. However,
               when Levi wanted merchandise, he is happy with
               anything that goes up in price!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #2 (R. Elazar):</font></b> Both Beraisos are like R.
               Meir. In Beraisa #1, Levi wanted grain to eat. In
               Beraisa #2, Levi wanted merchandise.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> People in Eretz Yisrael derided R. Yochanan's
               answer. According to R. Yehudah, how does Levi
               acquire half the grain (to share the profit)? The
               seller did not know (that Shimon deviated) to intend
               that Levi should acquire!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question (R. Shmuel bar Sasarti):</font></b> If so, even when
               he bought like Levi requested, how does Levi
               acquire?
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer (R. Avahu):</font></b> When he buys what Levi wanted, it
               is as if Levi bought it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If Levi made (all) his property
                    Hekdesh, the Gizbar may not take (to be Hekdesh
                    or for collateral) clothing that Levi bought
                    for his wife.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question:</font></b> Why don't we say that the seller of
                    clothing did not know to intend that the wife
                    should acquire!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer #1:</font></b> Levi is like a Shali'ach of his
                    wife. It is as if she bought it;
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Rejection #1 (and Answer #2 - R. Aba):</font></b> Levi was not
               her Shali'ach (the clothing is not hers). Rather,
               one who is Makdish does not intend for his wife's
               clothing.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Rejection #2 (and Answer #3 - R. Aba):</font></b> (Levi was not
               her Shali'ach.) When one is Makdish, it is as if he
               gave his wife ownership of her clothing beforehand.
<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> Since the Halachah follows R. Yehudah who says
               that Ein Shinuy Koneh, if he gave money to buy
               merchandise in partnership, Shimon suffers any loss,
               for he deviated. If there was a gain, they share it.
               This is even like R. Meir. Since he gave the money
               for business, Shimon did not acquire through Shinuy.
               If he gave to buy merchandise, and Shimon is not a
               partner, he has no share in the gain. Shimon suffers
               any loss, for he deviated. If there was a gain, it
               is all Levi's. The same applies if he gave money to
               buy wheat to eat and Shimon bought barley. Shimon
               suffers any loss, for he deviated. If there was a
               gain, it is all Levi's. Shimon shares the gain only
               when the money was given for a partnership.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Sheluchim 1:5):</font></b> If Levi gave money
               to Shimon to buy wheat for business or to eat it,
               and he bought barley with it, or vice-versa, if
               there was a loss, Shimon suffers it, for he
               deviated. If there was a gain, Levi gains.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (5:2):</font></b> If one gave money to his friend for a
               partnership to buy wheat for business, and he bought
               barley with it, or vice-versa, if there was a loss,
               Shimon suffers the loss, for he transgressed. If
               there was a gain, they share the gain.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (9:18):</font></b> R. Yochanan establishes Beraisa #1 like
               R. Meir, who holds that Shinuy Koneh. Therefore, the
               loss or gain is Shimon's. Beraisa #2 is like R.
               Yehudah, who holds that Ein Shinuy Koneh. Therefore,
               it is as if he did not deviate. If the money was for
               a partnership, they share the gain. If it was
               regular Shelichus, all the gain is Levi's. However,
               if there was a loss, Levi says 'I made you a
               Shali'ach to help me, not to harm me.' R. Elazar
               establishes both Beraisos like R. Meir. In Beraisa
               #1 Levi wanted wheat to eat. In Beraisa #2, he
               wanted merchandise. Since we hold like R. Yehudah,
               it makes no difference what he wanted. If he was a
               Shali'ach, Shimon suffers any loss and Levi receives
               any gain. If it was a partnership, they share the
               gain.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> A case occurred in which Levi
                    gave money to his Shali'ach to buy a certain
                    merchandise, and he bought a different
                    merchandise, and claimed that he bought for
                    himself. The Rivam ruled that the Shali'ach
                    gets all the gain, and swears that he intended
                    for this. This is like Rabbeinu, who says that
                    one can establish himself to be a Rasha to
                    exempt himself from money. My father said one
                    can never establish himself to be a Rasha. Here
                    he is believed because he wants to pay. What he
                    did was permitted.
<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 176:11):</font></b> If one gave money to his
               friend for a partnership to buy wheat for business,
               and he bought barley with it, or vice-versa, Shimon
               suffers any loss, for he transgressed. If there was
               a gain, they share the gain.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (64):</font></b> In Siman 183, the Shulchan Aruch
                    wrote (that Levi gets the entire gain) whether
                    he sent to buy for business or to eat. This is
                    from the Rambam; the Rif agrees. They rule like
                    the people of Eretz Yisrael. R. Aba answered
                    the Mishnah according to them. They share the
                    profits only if they were partners, but a
                    Shali'ach always acquires for the Meshale'ach.
                    The Rosh and other Poskim rule unlike the
                    people of Eretz Yisrael. The Rema rules like
                    them (even if they were partners, Levi gets all
                    the profit whether he sent Shimon to buy for
                    eating or for business).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (183:5):</font></b> If Levi gave money to Shimon
               to buy wheat, whether for business or to eat it, and
               he bought barley with it (or vice-versa), if there
               was a loss, Shimon suffers the loss. If there was a
               gain, Levi gains.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH veha'Itur):</font></b> The Rif explained
                    that Shimon (shares the profits when he) was a
                    partner. Ba'al ha'Itur disagrees, for
                    'Shali'ach' connotes that he is not a partner.
                    Also, if so, why didn't the Tana teach a case
                    when (he is not a partner, and) Levi gets all
                    the profits?! Also, R. Elazar said 'perhaps R.
                    Meir said Shinuy Koneh only when Levi wanted
                    for his own use.' I.e. in such a case they
                    share the profits, even though he is not a
                    partner, like the case of a craftsman (about
                    which R. Meir said that Shinuy Koneh)! Rather,
                    the Shali'ach was not a partner. If he did not
                    find wheat to buy, and bought barley, for there
                    will be no profit if he returns the money, they
                    share the profit. They argue about a Shali'ach
                    to buy wheat to eat. R. Meir holds that Shinuy
                    Koneh, and (he keeps the entire profit. R.
                    Yehudah holds that Ein Shinuy Koneh. This is
                    like Shelichus for business, and) they share
                    the profit. Levi gets the entire profit only
                    when there was no deviation. The Rif, Rambam
                    and Rosh agree, so we follow them.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH Mashma):</font></b> The Mordechai (122)
                    connotes that if the Shali'ach deviated because
                    he thought that other merchandise will be more
                    profitable, he is not considered a thief. If he
                    were a thief, they would not share the profit.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (9):</font></b> The Shali'ach suffers the loss if
                    the price of the item declined. If an Ones
                    occurred which is not due to his Shinuy, or it
                    was stolen or lost, the Shali'ach is exempt.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (10):</font></b> Ba'al ha'Itur holds that even
                    though we rule like R. Yehudah, since the
                    Shali'ach caused the gain, he gets half. Even
                    though many hold like the Shulchan Aruch, a
                    Shali'ach can say 'I hold like the Ba'al
                    ha'Itur.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> The same applies if the Shali'ach was a
               partner in the venture.
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>KEDUSHAH OF SHEMITAH PRODUCE </b></b>(</font><font color='darkblue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Beraisa #1:</font></b> If the grain went up or down in value, 
          Shimon takes the gain or loss.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Contradiction (Beraisa #2):</font></b> If the grain went down in 
          value, Shimon suffers the loss. If it went up in value, 
          they share the gain.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (R. Yochanan):</font></b> Beraisa #1 is like R. Meir, 
          who holds that one acquires through change. Beraisa #2 is 
          like R. Yehudah, who holds that one does not acquire 
          through change.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (R. Elazar):</font></b> Perhaps R. Meir holds that 
          Shinuy Koneh only when Reuven wanted something for his 
          own use, for then he has use only for what he requested;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But when Reuven wanted something to resell at a 
               profit, he is happy with anything that goes up in 
               price!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (R. Elazar):</font></b> Both Beraisos are like R. Meir. 
          Beraisa #1 discusses when Reuven wanted grain to eat.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	In Eretz Yisrael people derided R. Yochanan's answer. 
          According to R. Yehudah, how does Reuven acquire half the 
          grain (to share the profit)? The seller did not know 
          (that Shimon deviated) to intend that Reuven should 
          acquire!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (R. Shmuel bar Sasarti):</font></b> If so, even when he 
          bought like Reuven requested, how does Reuven acquire?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (R. Avahu):</font></b> When Shimon acts like a Shali'ach of 
          Reuven, it is as if Reuven bought it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Levi made (all) his property 
               Hekdesh, or pledged his Erech value to Hekdesh, the 
               Gizbar has no rights to take (to be Hekdesh or for 
               collateral) the clothing of Levi's wife and 
               children, nor dye or shoes that Levi bought for 
               them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why don't we say that the seller of dye 
               (or shoes) did not know to intend that the wife (or 
               children) should acquire!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, Levi acts like a Shali'ach of 
               his wife and children. It is as if they bought them;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Also regarding the grain, Shimon acts like a 
                    Shali'ach of Reuven. It is as if Reuven bought 
                    it.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection #1 (and Answer #2 to question i:2 - R. Aba):</font></b> 
          We need not say that Levi was their Shali'ach (and they 
          own the dye and shoes). Rather, one who makes Hekdesh 
          does not intend for the clothing of his wife and 
          children.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (R. Zeira):</font></b> Does one who makes property 
               Hekdesh intend for his Tefilin?!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If Yehudah made all his property 
                    Hekdesh, we evaluate his Tefilin. He borrows 
                    their value and gives it to Hekdesh so he can 
                    keep his Tefilin.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Abaye):</font></b> Yes, one who makes property 
               Hekdesh intends for his Tefilin. He reasons, I am 
               doing a Mitzvah;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He does not intend for the clothing of his wife 
                    and children, lest this cause animosity.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (R. Oshiya):</font></b> The Mishnah also discusses 
               Erchin!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If one is obligated to pay Erchin, we 
                    take securities from him (against his will).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Does one intend that we take securities 
                    from him against his will?!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rejection #2 (and Answer #3 to question i:2 - R. Aba):</font></b> 
          (We need not say that they own the dye and shoes because 
          Levi was their Shali'ach.) Rather, when one makes his 
          property Hekdesh, it is as if he gave his wife and 
          children ownership of their clothing beforehand
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A FIELD BOUGHT IN ANOTHER'S NAME</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven bought a field for the sake of 
          Shimon, we do not force him to sell it to Shimon;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he told the seller that he is buying it for 
               Shimon, we force him.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What does this mean?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav Sheshes):</font></b> If Moshe bought a field, and 
          told the seller that he buys it for the Reish Galusa (he 
          intended so that people will not contest the sale, and 
          they wrote the document of sale in the Reish Galusa's 
          name), we do not force the Reish Galusa to sell the 
          property to Moshe;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he told the seller that he only intends to 
               prevent controversy, we force the Reish Galusa to 
               sell it to Moshe.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Inference:</font></b> Rav Sheshes said that if he bought in the 
          Reish Galusa's name, we do not force the Reish Galusa to 
          sell it to Moshe. This implies that the Reish Galusa 
          acquired it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Suggestion:</font></b> This argues with the people of Eretz 
          Yisrael, who said (2:g) 'The seller did not know to 
          intend that Reuven (whose money was given) should 
          acquire'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. Here, Moshe told the seller and 
          witnesses to write the document in the name of the Reish 
          Galusa.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> Rav Sheshes continued 'if he told the seller 
          that he only intends to prevent controversy, we force the 
          Reish Galusa to sell it to Moshe.' What is the reason?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Reish Galusa can say 'I didn't ask you to use 
               my name, nor do I want the disgrace of selling 
               property!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Abaye):</font></b> If Reuven bought a field in the name 
          of the Reish Galusa (the Rosh explains - in the name of a 
          commoner), we do not force the seller to write another 
          document in Reuven's name.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he told the seller from the beginning, we 
               force him.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> The first law is obvious!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that Reuven can say 'you 
          knew that I was buying for myself, and I was just 
          protecting myself. I would not spend money without 
          getting a document in my name!'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> the Beraisa teaches that this is not so. The 
               seller can say 'I assumed that you made a deal with 
               him, and he will write a document selling it to 
               you.'
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Abaye's second law, that if he told the 
          seller from the beginning, we force him, is obvious!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he told the witnesses in front of 
          the seller that he will want another document.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that the seller can say 'I 
               thought that you wanted another document from the 
               one in whose name you bought;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> the Beraisa teaches that this is not so. He told 
               the witnesses in front of the seller to make clear 
               that the next document will also be from the seller.
<br>

sjt:
</p><p>
<font><b>2) HALACHAH: MISAPPROPRIATION OF INVESTMENT FUNDS</b></font><b>
<br>OPINIONS:</b> The Gemara discusses a situation in which a person gives money to another person for the sake of investing it by buying wheat, with intention to divide the profits of the resale of the wheat. The Shali'ach purchases barley with the money, and not wheat. The Gemara cites a Machlokes Tana'im with regard to whether they split the profits when the Shali'ach makes a profit by not following the instructions of the sender, or whether the Shali'ach keeps all of the profit. According to Rebbi Yochanan, Rebbi Yehudah maintains that they split the profit since the Shinuy (the change) which the Shali'ach did does not acquire for himself the produce that he bought, but rather it still belongs jointly to him and to the one who gave him the money. Rebbi Meir says that the Shali'ach acquires the barley through the Shinuy, and thus the entire profit belongs to him.
</p><p>
The Gemara relates that in Eretz Yisrael, they rejected the logic of Rebbi Yochanan because when the Shali'ach does not invest the money in the commodity he was instructed to buy, he no longer is considered a Shali'ach. Since he is no longer a Shali'ach, even if he intends to acquire the barley for the sender, the sender does not acquire the barley that he buys because the seller thought that he was selling it to the Shali'ach (who was no longer a Shali'ach with the status of 'Shali'ach Shel Adam Kemoso'). The Gemara goes on to discuss whether the seller needs to know who is receiving the goods (as those in Eretz Yisrael maintain) or not (as Rebbi Yochanan maintains). What is the Halachah?
</p><p>
(a) The <b>RIF</b> and <b>ROSH</b> rule like Rebbi Yochanan, that the seller does not need to know who is receiving the goods. The Rosh, however, points out that the Gemara that follows has a lengthy discussion about who owns the clothing that a man buys for his wife. The Gemara says that the clothing does not become the property of his wife until the husband gives it to her. Since the Gemara discusses this at length, it appears to be the Halachic ruling. Why does the Gemara not apply to that case the ruling of Rebbi Yochanan, that as long as the husband intends for the clothing to be given to his wife, it becomes hers? The Rosh answers that the husband bought the clothing with <i>his</i> money, and therefore it first becomes his until he gives it his wife (since there is no reason to assume that he intends for his wife to acquire it immediately). In the case of the Shali'ach who buys barley instead of wheat, the Shali'ach uses the sender's money, and therefore the barley belongs to the sender whether or not the seller knows who the real buyer is.
</p><p>
The <b>HAGAHOS ASHIRI</b> disagrees and writes that the Gemara's lengthy discussion does not follow the Halachic ruling.
</p><p>
A practical difference between the Rosh and the Hagahos Ashiri is whether the husband may sell clothing that he bought for his wife. According to the Hagahos Ashiri, he may not sell such clothing since it already belongs to his wife. According to the Rosh, he may sell the clothing since it is considered his wife's property <i>only</i> with regard to one who is Makdish his property, as the Gemara says.
</p><p>
(b) The <b>RAMBAM</b> (Hilchos Sheluchim 1:5) seems to rule in a manner similar to that of the Rosh. He writes that if a Shali'ach buys barley instead of wheat, the sender acquires the barley whether the Shali'ach purchases the barley to eat or whether he purchases it to resell. However, the Rambam elsewhere (Hilchos Sheluchim 5:2) discusses the case of a partner who uses jointly-owned money for a purpose other than that for which it was intended. The Rambam rules that if one partner purchases the merchandise with intention to resell it, the other partner acquires it even though it the incorrect merchandise was purchased. The Rambam's words imply that if the partner who misused the money purchased barley for eating, his partner would <i>not</i> acquire it. The difference between purchasing it for eating and purchasing it for reselling is that when one purchases it for reselling it is not considered a Shinuy, using the money for a different purpose by buying the wrong product, as long as the purchased item can be resold. However, when one intends to purchase the product in order to eat it, if the wrong product is purchased it is considered a misuse of the money, as the Gemara explains. However, if the Rambam rules like the Rosh, it should make no difference whether the partner uses the money for the right purpose or for the wrong purpose; as long as the partner intends to acquire the barley for the other partner, the other partner should acquire it regardless of whether or not the seller knows of the buyer's intentions.
</p><p>
The Rambam seems to rule that the seller must know the buyer's intentions. However, this contradicts the first ruling of the Rambam cited above, in which the Rambam rules that when a Shali'ach purchases the wrong product even for the purpose of eating, the sender acquires the product.
</p><p>
The <b>VILNA GA'ON</b> (CM 176:64) explains that the Rambam indeed rules contrary to the ruling of the Rosh, and like the people of Eretz Yisrael who rejected Rebbi Yochanan's view and ruled that the seller must know to whom he is selling the merchandise. However, the Rambam understands that this applies only to a partner who is not sent specifically as a Shali'ach of the other partner. A Shali'ach, in contrast, who misuses money given to him always acquires for the sender what he purchases, even if the seller does not know the Shali'ach's intentions, since a Shali'ach is considered the same as the sender even when he misuses the money. The Vilna Ga'on adds that this explains why Rebbi Yehudah rules in the Mishnah that the person who gives wool to a dyer retains his wool and the dyes used on the wool, even when the person who dyes it uses the wrong dye.
</p><p>

<b>HALACHAH:</b> The <b>SHULCHAN ARUCH</b> (CM 176:11 and 183:5) rules like the Rambam. The <b>REMA</b> (CM 183:5) rules like the Rosh, that the sender acquires the produce both in the case of a partner and in the case of a Shali'ach (when it is the sender's money that is used).
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>SELLING SOLD GOODS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Rav Kahana paid Shimon money to buy his flax. the price 
          of flax went up, and Shimon sold the flax to others, 
          stipulating that they will pay Rav Kahana.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rav Kahana, of Rav):</font></b> May I take the money?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav):</font></b> It is permitted only if Shimon told the 
          buyer 'this is Rav Kahana's flax'.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Is this is like the people of Eretz Yisrael, 
          who said that the seller did not know to intend that 
          Reuven (whose money was given) should acquire?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> No. Rav Kahana did not lend the money, so there 
          is no concern lest (if the buyers were not told, they pay 
          Shimon and) Shimon pays interest to Rav Kahana;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, Rav Kahana owns the flax. It increased in 
               value by itself.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> (If Shimon did not tell the buyer 'this is 
          Rav Kahana's flax') by selling it, Shimon stole it. The 
          Mishnah says that all thieves pay like the time of the 
          theft! (Since it already increased in value, Rav Kahana 
          is entitled to the money!)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, Rav Kahana never did Meshichah (to 
          acquire the flax). He bought b'Amana (he paid now to 
          receive in the future, when Shimon will get flax);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav permits buying b'Amana to receive Peros later 
               (when it is worth more), but the seller may not give 
               its value in money (for this looks like interest).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN IS ONE OBLIGATED TO TRAVEL TO RETURN A STOLEN OBJECT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven stole a Perutah from Shimon and 
          swore that he did not, Reuven must return it, even if 
          Shimon lives overseas;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It is not enough to give it to his son or 
               Shali'ach (messenger), but it suffices to give it to 
               a Shali'ach of Beis Din.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Shimon died, he returns the stolen object to 
          Shimon's heirs.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	In the following cases, Reuven need not travel to 
          return what he owes:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He paid the principal, but did not pay the 
               Chomesh (the added fifth, i.e. a quarter of the 
               principal, that one who swore falsely must pay);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Shimon pardoned from paying the principal, but 
               not from the Chomesh;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Shimon pardoned the entire obligation, except for 
               less than a Perutah of the principal.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Reuven must travel to return what he owes if he paid or 
          was pardoned from the Chomesh, but not from (at least a 
          Perutah of) the principal.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	If Reuven paid the principal, and (falsely) swore that 
          he paid also the Chomesh, he must pay (the Chomesh and) a 
          Chomesh of the Chomesh.
<br>
<br>

sjt:
<font><b>1) RETURNING LESS THAN A PERUTAH</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that if one stole the value of a Perutah (the smallest denomination of coin) and swore falsely to the victim that he did not steal, and afterwards admitted that he stole, he must return the stolen object even he must go to Madai to return it.
</p><p>
The Mishnah later discusses two additional cases. In the first case, the victim waived the Keren (principle) obligation of what was stolen from him, but he did not waive the penalty of Chomesh (fifth) which the Torah requires a thief to add to his payment when he stole, swore falsely, and admitted his wrongdoing. In the second case, the victim waived both the Keren and the Chomesh, except for less than a Perutah's worth of the Keren. In both cases, the penitent thief is not required to go after the owner in order to return the Chomesh or less than a Perutah of the Keren.
</p><p>
<b>TOSFOS</b> (104b, DH Chutz) asks, why is it necessary for the Mishnah to say that if he waived the Keren except for less than a Perutah, he does not have to go after the owner in order to return the stolen item? The first part of the Mishnah states that he is obligated only to go after him to return the money if he stole something worth at least a Perutah. It follows that if it is worth less than a Perutah, he is exempt from returning it. Why does the Mishnah need to mention another case in which the thief owes less than a Perutah of the Keren?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>SHITAH MEKUBETZES</b> answers in the name of the <b>ROSH</b> that if the exemption in this second additional case would not have been mentioned, one might have thought that the thief is obligated to travel to the owner and return less than a Perutah. Since he originally stole something worth more than a Perutah, perhaps his obligation to return it remains even if the owner waives all but less than a Perutah's worth. The second part of the Mishnah therefore needs to teach that he is exempt and does not have to travel to the owner and return it. (This answer is also given by <b>REBBI AKIVA EIGER</b> in his commentary on the Mishnayos, #74.)
</p><p>
(b) The <b>TOSFOS YOM TOV</b> (9:6) answers this question with a statement of the <b>RAMBAM</b> (Hilchos Gezeilah 7:11). The Rambam rules that when the thief is obligated only to pay less than a Perutah or to pay a Chomesh, he is <i>not</i> required to travel to the owner to return the money. The Rambam adds, 'But the victim of the theft may come and take the remainder.' According to the Rambam, when the Mishnah states that the thief does not have to travel to the owner, it implies that if the owner comes to the thief and asks for his money, the thief is obligated to give it to him even though it is less than a Perutah.
</p><p>
(The <b>SHULCHAN ARUCH</b> (CM 359:1) rules that even though Beis Din cannot force a person to return the theft of less than a Perutah, one certainly is prohibited from stealing less than a Perutah. See also the <b>MINCHAS ASHER</b> (Parshas Noach) who discusses at length the nature of the prohibition of stealing less than a Perutah.) (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO DOES NOT KNOW FROM WHOM HE STOLE</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 #1):</font></b> If Reuven stole a Perutah from Shimon
               and swore that he did not, Reuven must return it,
               even if Shimon lives overseas. It suffices to give
               it to a Shali'ach of Beis Din.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 103b - Inference:</font></b> One must travel to return theft
               only if he swore falsely about it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Mishnah #2 - R. Tarfon):</font></b> If Reuven is
               unsure from which one of five people he stole, and 
               each of them says 'you stole from me', he may leave
               the theft in front of them and go away;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Akiva says, to correct his sin he must pay
                    the value of the theft to each.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Mishnah #1 is unlike R. Tarfon, who allows
                    leaving the theft in front of them even if he
                    swore. It is unlike R. Akiva, who obligates
                    paying every one of them even if he did not
                    swear!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #1:</font></b> Really, it is like R. Akiva. He obligates
               paying every one only if he swore falsely, for it
               says 'la'Asher Hu Lo Yitnenu b'Yom Ashmaso.' R.
               Tarfon holds that even though he swore, Chachamim
               made an enactment for the thief (to leave what he
               owes with Beis Din). R. Akiva holds that we enacted
               only for one who knows from whom he stole, for then
               the victim can get his money back.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Objection #1 (Rav Huna bar Yehudah - Beraisa - R.
               Shimon ben Elazar):</font></b> All agree that if one does not
               know from which person he bought, he may leave what
               he owes in front of them. R. Akiva and R. Tarfon
               argue about one who does not know from which one
               person he stole, and all of them claim from him. R.
               Tarfon says that it suffices to leave the theft in
               front of them. R. Akiva says, to correct his sin he
               must pay each of them the value of the theft.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he swore, the same should apply whether he
                    bought or stole!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Objection #2 (Rava - Beraisa):</font></b> A case occurred in
               which a Chasid was unsure from which of two men he
               bought. R. Tarfon told him that it suffices to leave
               the money in front of them. R. Akiva told him that 
               to clear himself he must pay each.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since he was a Chasid, surely he did not swear
                    falsely!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #2:</font></b> Really, Mishnah #1 is like R. Tarfon. He
               agrees that one who swore must pay each one, due to
               'la'Asher Hu Lo Yitnenu b'Yom Ashmaso.'
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> The verse discusses one who (brings a
               Korban, which is only if he) admitted his sin. If
               so, R. Tarfon obligates him even if he did not
               swear!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> R. Tarfon agrees that if one tells
                    two people who he is not sure from which of
                    them he stole that he must pay both, for he
                    admitted.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer (Rava):</font></b> Mishnah #1 is different. Since he
               knows from whom stole and admitted to him, it is as
               if Shimon said 'the theft is like a deposit with
               you.' Reuven must travel to return it only if he
               swore (and must bring an Asham).
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Bava Metzi'a 37a - Contradiction (Mishnah #3):</font></b> If
               Reuven told two people 'I do not know from which of
               you I stole', he pays both, for he admitted by
               himself.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps Mishnah #3 is not like R.
                    Tarfon (rather, it is R. Akiva)!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection (Beraisa):</font></b> R. Tarfon admits that if
                    one tells two people 'I do not know from which
                    of you I stole' that he pays both.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer:</font></b> In Mishnah #1, they claim from him. Letter
               of the law, he may leave the theft in front of them.
               Here, he wants to be Yotzei Yedei Shamayim.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Support (Mishnah #3):</font></b> He pays both because he
               admitted by himself.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Bava Metzi'a 20b):</font></b> We infer from 'he pays both
               because he admitted by himself' that he wants to be
               Yotzei Yedei Shamayim, but letter of the law he
               needs to pay only once. When they claim from him,
               each swears and collects, like R. Akiva. The
               Halachah follows him against R. Tarfon, his
               colleague. Even though we do not force one to pay
               due to Safek, rather, we leave money in its
               Chazakah, here Chachamim fined him because he
               transgressed an Isur Torah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ba'al ha'Ma'or Bava Kama 36b):</font></b> Some
                    texts say '<i>Ela</i> (rather), Rava said...' I.e.
                    our Mishnah is even like R. Akiva. This is
                    wrong. If so, why did it say that he swore?
                    Even if he didn't swear, if witnesses came he
                    must travel to Madai. Since he denied stealing,
                    surely Shimon does not consent that the theft
                    be a deposit with him! Rather, the Mishnah is
                    like R. Tarfon. Rav Hai Gaon rules like R.
                    Tarfon.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Defense (Milchamos Hash-m):</font></b> We thought that it
                    does not matter whether or not he knows from
                    whom he stole. Rava teaches that all
                    distinguish. We fine only when the victim will
                    not get back his money, according to R. Tarfon
                    if the thief swore, or according to R. Akiva,
                    even if he did not swear. Even if the text
                    doesnt say Ela, perhaps the Gemara did not
                    retract, e.g. Pesachim 73b...
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Shach CM 365:2):</font></b> In all the Ramban's
                    examples, the Gemara says Ela! Tosfos (104a DH
                    Omar) says that if the text does not say Ela,
                    the Mishnah is only like R. Tarfon. Rav Hai
                    Gaon and Bahag hold like the Ba'al ha'Ma'or.
                    Even if the text says Ela, perhaps we retract
                    only from saying that R. Tarfon discusses only
                    if he did not swear. Even if the Mishnah is
                    also like R. Akiva, perhaps he was R. Tarfon's
                    Talmid (Kesuvos 84b), and the Halachah follows
                    R. Tarfon. Also, perhaps the Halachah does not
                    follow R. Akiva against his colleague regarding
                    a fine. This is the intent of the Nimukei Yosef
                    (below). Even though most rule like R. Akiva,
                    the thief can say that he holds like the Ba'al
                    ha'Ma'or, Rav Hai Gaon, Bahag and Ra'avad.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Nimukei Yosef (21a DH Gemara):</font></b> The Halachah
                    follows Rav Nachman (Bava Kama 118a), who
                    exempts one who is unsure whether he owes,
                    unless he transgressed. Therefore, R. Akiva's
                    law is like a fine. Nowadays, we do not collect
                    fines. This is why the Ra'avad and Ba'al
                    ha'Ma'or rule like R. Tarfon.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 4:9):</font></b> If one does not know
               from which one of five people he stole, and each
               says 'you stole from me', even though there are no
               witnesses of the theft, each swears and receives the
               theft. This is a fine mid'Rabanan. The Torah does
               not require him to pay due to Safek.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Metzi'a 3:8):</font></b> The Stam Gemara infers that
               our Mishnah obligates only one who wants to be
               Yotzei Yedei Shamayim, like R. Tarfon. Even so, the
               Halachah follows R. Akiva against his colleague.
               Each claimant swears and collects. Our Mishnah is
               also like R. Akiva, for he agrees that when there
               are no claims against the thief, he pays each only
               if he wants to be Yotzei Yedei Shamayim. If one does
               not know whether or not he stole, he is exempt even
               b'Yedei Shamayim, like it says in Bava Kama 118a.
<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 365:1):</font></b> If one does not know from
               which one of five people he stole, and each says
               'you stole from me', even though there are no
               witnesses of the theft, each swears and receives the
               theft.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Kol):</font></b> The rule
                    is, anyone who collects due to his words must
                    swear. Alternatively, since letter of the law
                    he is exempt, and it is a fine that he must pay
                    each, it is improper to fine him without an
                    oath.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Gra):</font></b> We need not find new reasons
                    for the oath. Shevu'os 47b says that when we
                    are unsure which of two lenders a borrower
                    owes, this is like the Mishnah (45a; both swear
                    and collect).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (2):</font></b> Each swears holding a Chefetz (Sefer
                    Torah or Tefilin...). Even though the thief
                    does not have a definite claim against them,
                    since he knows that he stole only from one and
                    both come to collect, Chachamim imposed an oath
                    on them, like one who swears and collects.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>ONE WHO DOES NOT KNOW FROM WHOM HE BOUGHT </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Each time he swears falsely about paying a 
               Chomesh (of a Chomesh...) he is obligated to add a 
               Chomesh of what he swore about, unless he denied 
               less than a Perutah.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	The same applies to a deposit. For 'a deposit or 
          withheld wages or theft or oppression of his fellowman, 
          or he found an Aveidah and denied it or swore falsely', 
          he pays the  principal and Chomesh and brings a Korban 
          Asham.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>LIKE WHOM IS THE MISHNAH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Gemara) Inference:</font></b> He must travel to return a stolen 
          object only if he swore falsely about it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> This is not like R. Tarfon or R. Akiva!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Tarfon):</font></b> If Reuven is unsure from 
               which one of five people he stole, and each of them 
               says 'you stole from me', he may leave the stolen 
               object in front of them and go away;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Akiva says, to correct his sin he must pay 
               each of them the value of what he stole.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Our Mishnah is unlike R. Tarfon. He holds that 
               even if Reuven swore falsely, he may leave the 
               stolen object in front of them!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> It is unlike R. Akiva. He holds that even if 
               Reuven did not swear, he must pay every one of them!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Really, it is like R. Akiva. He obligates 
          Reuven to pay every one of them only if he swore falsely.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is his reason?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> It says 'la'Asher Hu Lo Yitnenu b'Yom Ashmaso' 
          (the verse discusses one who swore falsely and brings an 
          Asham);
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	R. Tarfon holds that even though he swore falsely, 
          Chachamim made an enactment for the thief;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Elazar b'Rebbi Tzadok):</font></b> A great 
               enactment was made. If the cost of returning a 
               stolen object exceeds the principal, the thief gives 
               the principal and the Chomesh to Beis Din, and he 
               can bring his Asham and get atonement.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	R. Akiva holds that this enactment was only when he 
          knows whom he stole from, for then the victim can get his 
          money back. It does not apply when he stole from one of 
          five people.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection #1 (Rav Huna bar Yehudah - Beraisa - R. 
          Shimon ben Elazar):</font></b> R. Tarfon and R. Akiva did not argue 
          about one who does not know from which one of five people 
          he bought. All agree that he may leave the money he owes 
          in front of them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue about one who does not know from which 
               one of five people he stole, and each of them says 
               'you stole from me.' R. Tarfon says, it suffices to 
               leave the stolen object in front of them;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Akiva says, to correct his sin he must pay 
               each of them the value of what he stole.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Summation of question:</font></b> If he swore falsely, the 
               law should be the same whether he bought or stole 
               (in either case, he sinned)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection #2 (Rava - Beraisa):</font></b> A case occurred in which 
          a Chasid was not sure from which of two men he bought. R. 
          Tarfon told him that it suffices to leave the money in 
          front of them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Akiva told him that to clear himself he must 
               pay each of them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Since he was a Chasid, surely he did not swear 
               falsely!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps he swore falsely, then 
               repented and became a Chasid!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> Every case with 'a Chasid' refers to 
               R. Yehudah ben Bava or R. Yehudah b'Rebbi Ila'i. 
               Neither was a repentant sinner!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, our Mishnah is like R. Tarfon. He 
          agrees that Reuven must pay every one of them when he 
          swore falsely.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> What is his reason?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> He learns from 'la'Asher Hu Lo Yitnenu b'Yom 
          Ashmaso.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Akiva fines him even though he did not swear 
               falsely.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> The verse discusses one who (brings a Korban, 
          which is only if he) admitted his sin. If so, R. Tarfon 
          obligates him even if he did not swear!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> R. Tarfon agrees that if one tells two 
               people who he is not sure from which of them he 
               stole that he must pay both, for he admitted (and 
               wants to clear himself b'Yedei Shamayim).
<br>

sjt:
</p><p>
<font><b>2) A 'STAM MISHNAH' FOLLOWS REBBI AKIVA</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that if one stole the value of a Perutah and swore falsely to the victim that he did not steal, and afterwards admitted that he stole, he must return the stolen object even he must go to Madai to return it.
</p><p>
The Gemara infers from the Mishnah that the thief is required to travel to the owner to return the stolen object only if he swore falsely that he did not steal it. If he made no oath, he is not required to travel to return it. The Gemara asks that this is not consistent with the opinions of Rebbi Tarfon and Rebbi Akiva as expressed in the Beraisa. The Beraisa discusses a case in which a person stole from one person in a group of five, but he does not know exactly from whom he stole. Each person in the group claims that he was the victim. According to Rebbi Tarfon, the thief fulfills his obligation to return the stolen object by leaving it in front of them. The <b>RASHBA</b> (based on Bava Metzia 37b) comments that Rebbi Tarfon does not mean literally that he places the object in front of them and leaves, because the object might end up being taken by someone other than the true owner, or the people in the group might share it among themselves when in truth it belongs only to one of them. Rather, Rebbi Tarfon means that the thief places the object in Beis Din. <b>RASHI</b> in Bava Metzia (37b, DH Amar Rav) writes that the thief asks Beis Din to find out who is the real owner. (Rashi's opinion will be discussed in detail in answer (b) below.)
</p><p>
Rebbi Akiva argues with Rebbi Tarfon and rules that the thief must give back the value of the stolen object to <i>every</i> one of the five people in the group.
</p><p>
The Gemara discusses which opinion the Mishnah follows. It cannot follow the opinion of Rebbi Tarfon, because he maintains that even if the thief swore falsely he may place the stolen object among them and leave. <b>RASHI</b> (DH Meni'ach) explains that the Gemara means that the thief clearly is not required to return the stolen object to the victim; it suffices for him to place it in front of the victim (or in this case, in front of Beis Din who acts as the agent of the victim).
</p><p>
The Gemara continues that the Mishnah does not seem to follow the opinion Rebbi Akiva either, because he maintains that even if the thief did not swear falsely he must return what he stole to all five possible victims. The Mishnah, however, states that the thief must ensure that the stolen object reaches the victim only when the thief had sworn falsely. The Gemara concludes that indeed the Mishnah follows the opinion of Rebbi Akiva, and Rebbi Akiva maintains that the thief must repay all five only when he had sworn falsely.
</p><p>
Why does the Gemara suggest that the dispute between Rebbi Tarfon and Rebbi Akiva in the Beraisa applies only when the thief swore falsely? Perhaps the dispute in the Beraisa refers to a case in which the thief did not swear. When he did swear falsely, perhaps even Rebbi Tarfon agrees that he must deliver the stolen object to the hands of the victim. According to this possibility, the Mishnah could follow the view of Rebbi Tarfon as well! Why does the Gemara not suggest this possibility?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH l'Olam) answers that the Gemara always attempts to set up the Mishnah consistent with the opinion of Rebbi Akiva. Tosfos provides a source for this from the Gemara in Bava Metzia (82a) which asks on a certain point, 'If so, does the Mishnah argue with Rebbi Akiva?' This suggests that the Mishnah normally follows the opinion of Rebbi Akiva.
</p><p>
<b>RASHI</b> (DH l'Olam) cites the Gemara in Sanhedrin (86a) which provides good reason for assuming that the Mishnayos should follow Rebbi Akiva's opinion. Rebbi Akiva was the teacher of Rebbi Meir, the primary author of all of the Mishnayos which are not attributed to any specific Tana. Accordingly, the opinions stated by Rebbi Meir presumably were learned from Rebbi Akiva.
</p><p>
(b) The <b>RASHBA</b> answers that when the Gemara says that the Mishnah follows the view of Rebbi Akiva, it does not mean that it follows <i>only</i> Rebbi Akiva and not Rebbi Tarfon. Rather, it means that the Mishnah follows <i>even</i> Rebbi Akiva and it <i>certainly</i> follows Rebbi Tarfon.
</p><p>
The Rashba adds that Rebbi Tarfon agrees that if a thief swore falsely, according to the letter of the law he must return the theft personally to the owner. (This in fact is the conclusion of the Gemara below, end of 103b.) If he does not do so, he may not bring his Korban Asham to receive atonement.
</p><p>
However, even though Rebbi Tarfon agrees in principle that he must return the theft personally, in practice he does not have to track down the owner to return the theft to him when he stole from one out of five people and does not know the identity of the victim. This is because of the decree of Rebbi Eliezer b'Rebbi Tzadok mentioned here in the Gemara, that if the expenses involved in returning the theft are greater than the theft itself, it suffices to pay the Keren and Chomesh to Beis Din.
</p><p>
As explained above, the Gemara in Bava Metzia (37b) states that he may place the stolen object in Beis Din. This is consistent with the decree of Rebbi Eliezer b'Rebbi Tzadok. The Rashba also asserts that the source for the ruling of the Mishnah (103a) that the thief may give the stolen object to the agent of Beis Din is the decree of Rebbi Eliezer. (See Rashi to 103a, DH l'Shali'ach, but see Tosfos DH ha'Gozel who disagrees.)
</p><p>
Therefore, the Rashba writes that when the Gemara states that the Mishnah follows Rebbi Akiva, it means that it can be consistent <i>even</i> with Rabbi Akiva's opinion. In fact, it is more consistent with the view of Rebbi Tarfon, who maintains that one may place the stolen object among the group of people (which means that he may place it in Beis Din, a law mentioned in the Mishnah.) (D. Bloom)
</p><p>


</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LIKE WHOM IS THE MISHNAH? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #1 (our text, Rashi) Answer #3 (Rava):</font></b> Our 
          Mishnah (is like both Tana'im. It) is unlike the Beraisa. 
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #2 (Tosfos' text) Answer (to Question 3:m, 103b 
          - Rava):</font></b> Our Mishnah is like R. Tarfon; (end of Version 
          #2) 
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since he knows that he stole from Shimon and 
               admitted to him, it is as if Shimon said 'the stolen 
               object is like a deposit with you';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven swore, he must travel to return the 
               stolen object in order to (bring his Asham and) get 
               atonement;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he did not swear, since Shimon allows him to 
               guard the stolen object, he need not travel to 
               return it.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHAT IS NEEDED TO MAKE A SHALI'ACH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> It is not enough to give it to his son or 
          Shali'ach...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Chisda):</font></b> If Reuven made Levi a Shali'ach (to take 
          what Shimon owes him), he is considered a Shali'ach (if 
          Shimon gives it to Levi, Shimon is exempt, even if Reuven 
          never gets it);
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> He is not considered a Shali'ach.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Chisda says that he is a Shali'ach. Reuven 
               bothered to appoint him in front of witnesses, so 
               what is given to Levi will be considered to be in 
               Reuven's Reshus!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rava says that he is not a Shali'ach. Reuven 
               merely informs Shimon that Levi is trustworthy. If 
               Shimon wants to rely on him, he may.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If David borrowed Moshe's cow, and 
          Moshe sent it with his own son, slave or Shali'ach, or 
          with David's son, slave or Shali'ach, and it died on the 
          way, David is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case of (David's) 
               Shali'ach?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> He was not appointed in front of 
                    witnesses.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Version #1 (Rashi) Rejection:</font></b> If so, (why 
                    does the Mishnah call him a Shali'ach?) We do 
                    not know whether or not he was truly a 
                    Shali'ach!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Version #2 (Tosfos) Rejection:</font></b> If so, how 
                    did Moshe know that he was a Shali'ach? (Why 
                    did he send the cow with him?)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, he was appointed in front of 
               witnesses. (Even so, David is exempt. This refutes 
               Rav Chisda!)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> We answer like Rav Chisda said (below), the 
          Shali'ach was his housemate or hired help.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (against Rav Chisda - Mishnah):</font></b> It is not 
          enough to give it to his son or Shali'ach.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case of his Shali'ach?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he was not appointed in front of witnesses, we 
                    do not know if he was a Shali'ach!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, he was appointed in front of 
               witnesses.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> The Shali'ach was his housemate or 
          hired help.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Inference:</font></b> If he was appointed in front of witnesses, 
          he would be a valid Shali'ach.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why does the Reisha say that it 
          suffices to give it to a Shali'ach of Beis Din? Rather, 
          it should allow giving to a Shali'ach that Shimon (the 
          owner of the stolen object) appointed in front of 
          witnesses (to distinguish the two cases of Shimon's 
          Shali'ach)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah prefers to discuss a Shali'ach of 
          Beis Din, for this always suffices (whether Reuven (the 
          thief) or Shimon appointed him). A Shali'ach appointed in 
          front of witnesses works only sometimes (if Shimon 
          appointed him).
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	The Mishnah teaches unlike R. Shimon ben Elazar.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Shimon ben Elazar):</font></b> The thief is 
               exempt in the following cases:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He gave the stolen object to a Shali'ach of Beis 
                    Din who was appointed by the owner;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  The thief appointed a Shali'ach of Beis 
                    Din, and a Shali'ach of the owner took the 
                    stolen object from this Shali'ach.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(R. Yochanan and R. Elazar):</font></b> A Shali'ach made in front 
          of witnesses is considered a Shali'ach.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah does not allow giving it to Levi, 
          the Shali'ach of Shimon (the owner. Presumably, Levi was 
          appointed in front of witnesses!)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Shimon did not appoint Levi to be a 
          Shali'ach. He merely told him to appear in front of 
          Reuven, in case Reuven wants to send it with him.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #2:</font></b> We answer like Rav Chisda said. Levi (was 
          not appointed, he) is Shimon's housemate or hired help.
<br>
<br>

sjt:
<font><b>1) A RELIABLE AGENT</b></font><b>
<br>QUESTION:</b> The Gemara records a dispute about the law in the case of one who appointed an agent in front of witnesses. <b>RASHI</b> (DH Shali'ach) explains that the case involves a lender who appointed an agent in the presence of witnesses to accept the repayment of the loan from the borrower, who indeed gave the money to the agent. Rav Chisda rules that the agent has the Halachic status of a Shali'ach. Rabah rules that he does not have the status of a Shali'ach. Rashi (DH Havei) explains that according to Rav Chisda, if the agent lost the money during his return to the lender due to circumstances beyond his control, the borrower has no obligation to pay again, since he fulfilled his obligation when he gave the money to the agent of the lender.
</p><p>
The Gemara explains that Rav Chisda's reasoning is based on the fact that the lender troubled himself to appoint the agent in the presence of witnesses. He did so in order that the money be considered in the possession of the agent. Rabah, however, says that the reason the lender appointed the agent in front of witnesses was merely to indicate to the borrower that the agent is a reliable person, and to show the borrower that he recommends the agent as a reliable person with whom to send the repayment of the loan. However, the lender does not actually accept responsibility for anything that may happen to the money during the journey.
</p><p>
Why, according to Rabah, is the borrower still liable when he gives the payment to an agent whom the lender trusts? Since the lender himself indicated that the agent is reliable, he cannot claim that the borrower acted improperly when he gave the money to the agent. The Gemara in Bava Metzia (36a) describes a case in which one may make such a claim. When an appointed Shomer (guardian) of an object gives the object to a second Shomer, one opinion maintains that the first Shomer is liable if something happens to the object because the original owner may claim, 'I did not want my object to be in the hands of someone else.' (Indeed, it is Rabah himself who gives this reasoning there.) This argument does not apply in the case of the Gemara here, however, because the lender clearly showed that he <i>does</i> want the money to be given to the agent. Even Rabah should agree that the borrower is exempt for any uncontrollable circumstance that occurs while the money is in the hands of the agent.
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Hachi) answers that according to Rabah, even if the borrower himself personally brings the money to return to the lender and loses the money on the way, he is still liable to pay. The Mishnah later (118a) states that when one deposits an object with his friend in a populated area, he may not return the object to the owner in the desert. Tosfos explains that the Mishnah means that the Shomer must return the object to the owner in the same place in which he received it, and he certainly cannot return it to him in the desert. (Tosfos implies that the borrower is considered negligent because he allowed the agent (or himself) to enter an area where an Ones was likely to occur. Accordingly, if the agent or the borrower was <i>not</i> in such an area and the money still became lost as a result of an Ones, the borrower indeed might not be liable.)
</p><p>
(See <b>PNEI YEHOSHUA</b> who discusses whether Tosfos refers only to a case in which the borrower is returning an <i>object</i> deposited with him, or even to a case in which he is returning <i>money</i> that he borrowed. If Tosfos refers only to a case of a deposit, it follows that his question does not apply according to Rashi's understanding of the Sugya, that the case refers to a borrower who returns a monetary loan.)
</p><p>
(b) The <b>RASHBA</b> answers that, indeed, the owner of an object deposited with a Shomer has no claim on the Shomer who gave his object to a second Shomer whom the owner indicated he trusted. However, this exemption applies only where the first Shomer would have been exempt had the same thing happened to the object while it was in his hands. If, however, the first Shomer would have been liable and the second Shomer exempt, the owner may claim that the first Shomer did not have the right to decrease the level of liability, even if he gave the object to a person whom the owner trusts. For example, if the first Shomer was a Shomer Sachar (a paid guardian) who gave the object to either a Shomer Sachar or Shomer Chinam (unpaid guardian) and an Ones occurred to the object, the first Shomer is exempt, because the owner trusts the second Shomer, and both a Shomer Sachar and Shomer Chinam are exempt from liability in a case of Ones.
</p><p>
However, if the first Shomer was a Shomer Sachar and he gave the object to a Shomer Chinam and the object was stolen, the first Shomer must pay, because a Shomer Sachar is liable for theft while a Shomer Chinam is exempt. Even though the owner trusts the agent, since the first Shomer lowered the level of liability for the object when he gave it to the Shomer Chinam, he cannot exempt himself from the liability for theft for which he would have been responsible had he kept the object in his guardianship.
</p><p>
Accordingly, Rabah maintains that although the agent is reliable, giving the object to him decreases the level of accountability to the owner, and therefore the owner may claim the money from the first Shomer.
</p><p>
(See <b>CHAZON ISH</b> (CM 1:28) who writes that the Rashba refers specifically to a case of a deposited <i>object</i>. In contrast, when the borrower received <i>money</i>, everyone agrees that he is obligated to ensure that the money reaches the lender and that it does not help to hand it to a Shali'ach.) (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>RETURNING THEFT THROUGH A SHALI'ACH OR BEIS DIN</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'> 103a (Mishnah):</font></b> If Reuven stole a Perutah from
               Shimon and swore that he did not, Reuven must return
               it, even if Shimon lives overseas;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It is not enough to give it to his son or Shali'ach
               (messenger), but it suffices to give it to a
               Shali'ach of Beis Din.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 104a (Rav Chisda):</font></b> If David made Levi a Shali'ach
               (to take what Moshe owes him), he is considered a
               Shali'ach (if Moshe gives it to Levi, Moshe is
               exempt, even if David never gets it).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rava):</font></b> He is not considered a Shali'ach.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rav Chisda says that he is a Shali'ach. David
                    bothered to appoint him in front of witnesses,
                    so what is given to Levi will be considered to
                    be in David's Reshus!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Rava says that he is not a Shali'ach. David
                    merely informs Moshe that Levi is trustworthy.
                    If Moshe wants to rely on him, he may.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (against Rav Chisda - Mishnah):</font></b> It is not
               enough to give it to his son or Shali'ach.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We must say that the Shali'ach was appointed in
                    front of witnesses. If not, we would not know
                    that he is a Shali'ach!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (Rav Chisda):</font></b> The Shali'ach was his housemate
               or hired help.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> This implies that if he was appointed in
               front of witnesses, he would be a valid Shali'ach.
               If so, why does the Reisha allow giving it to a
               Shali'ach of Beis Din? It should teach that
               sometimes he can give it to Shimon's Shali'ach, i.e.
               if he was appointed in front of witnesses!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> The Mishnah prefers to discuss a Shali'ach
               of Beis Din, for this always suffices (whether
               Reuven or Shimon appointed him). A Shali'ach
               appointed in front of witnesses works only sometimes
               (if Shimon appointed him). Our Mishnah is unlike R.
               Shimon ben Elazar.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Beraisa - R. Shimon ben Elazar):</font></b> The thief is
               exempt after he gave it to a Shali'ach of Beis Din.
               I.e. the owner appointed the Shali'ach.
               Alternatively, the thief appointed a Shali'ach, and
               the owner's Shali'ach took the theft from this
               Shali'ach.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (R. Yochanan and R. Elazar):</font></b> A Shali'ach made in
               front of witnesses is considered a Shali'ach.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 104b (Shmuel):</font></b> If Reuven had money deposited with
               Shimon, and he sent Levi with a letter saying to
               send it with Levi, and Reuven's stamp is underneath,
               Shimon may not send it, even if witnesses signed on
               it.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (R. Yochanan):</font></b> If witnesses signed on it, he may
               send it.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question:</font></b> According to Shmuel, how can Reuven
               retrieve his money?
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer:</font></b> He can do like R. Aba (he can transfer
               ownership of the money to the Shali'ach Agav (along
               with) any amount of land).
<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> The Halachah follows Rav Chisda, because R.
               Yochanan and R. Eliezer hold like him. Rabah is a
               minority against the majority. I.e. if the thief
               gave it to the Shali'ach and it was lost due to
               Ones, the thief is exempt. He need not give it to
               the Shali'ach. Any Harsha'ah (power of attorney)
               that does not say 'go claim and acquire for
               yourself' is void, for the one holding the money can
               say 'you have no claim against me.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Maimoniyos (2):</font></b> R. Baruch says that the
                    Rif rules like Rav Chisda, but also like
                    Shmuel, who says that we do not send money
                    based on a stamp. To avoid a contradiction, we
                    must say that Rav Chisda's Chidush is bigger
                    than Shmuel's. The Gemara asked 'according to
                    Shmuel, how can Reuven retrieve his money?'
                    I.e. he holds that one may not do like Rav
                    Chisda. The Halachah follows Rabah; a Shali'ach
                    with witnesses is not a Shali'ach. Rav
                    Matisyahu Gaon and the She'altos rule like
                    this. However, if he said 'send it with my
                    son', he is a Shali'ach (Bava Metzi'a 98b).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 7:10):</font></b> (If Reuven stole
               from Shimon and swore,) he may not give it to
               Shimon's son or Shali'ach, unless he was appointed
               in front of witnesses. If he brought the theft and
               Chomesh to Beis Din in his city, he may bring his
               Asham, and Beis Din will deal with the theft until
               it reaches Shimon. Similarly, he may give it to a
               Shali'ach of Beis Din. Whoever gives theft and
               similar matters to Beis Din was Yotzei.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (9:21):</font></b> If Reuven stole a Perutah from Shimon
               and swore, he must return it. He may not give it to
               his son or Shali'ach. The Gemara says that the
               Shali'ach discussed was Shimon's housemate or hired
               help, or Shimon merely informs Reuven that Levi is
               trustworthy. However, if Shimon appointed a
               Shali'ach in front of witnesses, Reuven may give it
               to him and bring his Korban. It was enacted that one
               may give it to a Shali'ach of Beis Din and bring his
               Korban.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> If the cost of returning it was
                    more than the principal, he gives principal and
                    Chomesh to Beis Din and need not return it to
                    him, even if he swore.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Drishah (CM 367:2):</font></b> He does not mean that one
                    may give it to Beis Din only if the cost of
                    returning it exceeds the principal. There is no
                    source for this! The Mishnah said Stam that one
                    may give it to a Shali'ach Beis Din! Rather, he
                    means that if there will be a great expense to
                    return it above the principal, Chachamim did
                    not obligate him to do so. Rather, he gives it
                    to Beis Din.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Tosfos (103a DH Aval):</font></b> Rashi says that the enactment
               was to give it to a Shali'ach of Beis Din, who holds
               it until Shimon comes for it. If so, it should have
               said 'he gives it to Beis Din', not 'to a
               <i>Shali'ach</i> of Beis Din.' Also, the Gemara says that
               we do not distinguish whether Shimon appointed the
               Shali'ach Beis Din, or if Reuven appointed him (to
               take it to Shimon - these words are not in our
               Gemara). Rather, the Shali'ach Beis Din takes it to
               Shimon. Reuven has no responsibility (if it will be
               lost on the way), and may get atonement immediately.
               Our Mishnah does not discuss the enactment (Bava
               Metzi'a 37b) to leave the theft in Beis Din.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Drishah (ibid.):</font></b>  It seems that the Tur holds
                    like Tosfos. Our Mishnah teaches Torah law:
                    Reuven has no responsibility for loss on the
                    way, and may get atonement immediately after
                    giving it to a Shali'ach of Beis Din. Reuven
                    pays the cost of delivery. However, the Tur
                    says 'all the more so, he may give it to Beis
                    Din.' Also, he should have taught that Reuven
                    pays for delivery, and has no liability for
                    loss on the way. Also, this is unlike the Rosh!
                    Rather, the Tur holds like Rashi and the Rosh.
                    The Torah requires bring it to Madai. The
                    Mishnah allows giving it to a Shali'ach of Beis
                    Din; this is an enactment. The Rambam holds
                    that one leaves it in Beis Din and they deal
                    with it until it gets to Shimon, i.e. they care
                    for it like a deposit or Aveidah.
<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 367:2):</font></b> He must return the theft
               to Shimon. He may not give it to Shimon's son or
               Shali'ach, unless Shimon appointed the Shali'ach in
               front of witnesses. Similar, he was Yotzei if he
               gave it to a Shali'ach that Beis Din appointed in
               front of witnesses, and surely if he gave it to Beis
               Din.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH ums v'Chen):</font></b> The enactment was
                    so that the thief need not pay a fortune to go
                    himself to return the theft.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (5 and Prishah 2):</font></b> He is no less than a
                    borrower, who is not Yotzei if he gave it to
                    the lender's son or Shali'ach, until the lender
                    gets it. The same applies to a thief who did
                    not swear. The Gemara discussed a normal case.
                    If Reuven did not swear, he need not bring it
                    to Shimon, so he would not give to a Shali'ach.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (8):</font></b> One is Yotzei through giving it to
                    Beis Din only if Beis Din will send it to
                    Shimon when they want, but not if they will
                    hold it until Shimon comes to get it.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>HOW FAR MUST ONE GO TO RETURN THEFT? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT PROOF OF AUTHORIZATION IS REQUIRED?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If Reuven had money deposited with 
          Shimon, and he sent Levi with a letter saying to send it 
          with Levi, and Reuven's stamp (of his signet ring) is 
          underneath, Shimon may not send the money with him. This 
          applies even if witnesses signed on it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> If witnesses signed on it, he may send 
          it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> According to Shmuel, how can Reuven retrieve 
          his money (without going himself)?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> He can do like R. Aba;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Aba asked Rav Safra to bring to him money that 
               Rav Yosef bar Chama owed to him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rava (Rav Yosef's son):</font></b> Did R. Aba write 'when 
               you give it to Rav Safra, it is as if I received 
               it'?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Safra:</font></b> No.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rava:</font></b> Return and ask him to write that.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Retraction (Rava):</font></b> Even if he writes that, we do 
               not rely on it. If R. Aba would die (after writing 
               it and before you take the money), the money would 
               pass to his heirs, and they did not authorize you!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rav Safra:</font></b> So how can I bring the money to him?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rava:</font></b> He should give (ownership of) the money to 
               you Agav (along with giving you) the corner of his 
               house (i.e. a small piece of land). When we give to 
               you the money, you will write a receipt.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	A similar case occurred with Rav Papa. He was owed 
          12,000 Zuz in Bei Chuzai. He gave the money to Rav Shmuel 
          bar Aba, Agav the corner of his house, who then brought 
          to him the money.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>THE OBLIGATION TO PAY CHOMESH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he paid the principal (but not the 
          Chomesh, he need not travel to return it).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Inference:</font></b> Since the Mishnah must teach that he need 
          not travel to return it, it must be that the Chomesh is 
          considered a proper debt, and if Shimon dies, Reuven must 
          pay it to his heirs.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Support #1 (Mishnah):</font></b> If Reuven paid the principal, and 
          (falsely) swore that he also paid the Chomesh, he must 
          pay (the Chomesh and) an additional fifth of the Chomesh. 
          (This shows that it is like a proper debt.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Support #2 (Beraisa #1):</font></b> If Levi stole from Yehudah, 
          swore falsely, and died, Levi's heirs pay the principal 
          and the Chomesh. They do not bring an Asham.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Do heirs really pay the Chomesh?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Beraisa #2):</font></b> One might have 
               thought that the only exemption (for a son from 
               paying an Chomesh on what his father stole) is when 
               neither the son nor the father swore;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the source that even if the 
               father or son swore falsely, the son is exempt?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> 'That (he) stole and oppressed' - the son 
               did not steal or oppress.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> Beraisa #1 discusses when the 
          father later admitted. Beraisa #2 discusses when he (the 
          father, and also the son) never admitted.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> If they never admitted, why does the son pay 
          principal?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps he does not pay principal!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection #1:</font></b> The Beraisa needed to teach that he 
               is exempt from the Chomesh. This implies that he 
               pays principal.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection #2 (Seifa of Beraisa #2):</font></b> One might 
               have thought that a son pays the principal that his 
               father stole only when both of them swore falsely;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> What is the source that if only one of 
                    them, or even neither swore falsely, the son 
                    pays principal?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Answer:</font></b> 'Theft, oppression, Aveidah, 
                    deposit'; Yesh Talmud (this will be explained).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Question (Rabah bar Rav Huna, to his 
                    father, who taught this):</font></b> Did you conclude 
                    'Yesh Talmud' (we learn from these words) or 
                    'Yishtalmo' (he will pay it; we know from 
                    reason, not from a verse)?
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'>  Answer (Rav Huna):</font></b> I concluded 'Yesh 
                    Talmud.' (Presumably, just like he pays 
                    principal in the Seifa, also in the Reisha.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Nachman said that in Beraisa #2, he never 
          admitted, i.e. the father, but the son admitted.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> The son should be liable to pay the Chomesh 
          for his own false oath!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case is, the stolen object is not around 
          (the son swore about money that he was not liable to pay 
          for).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why does he pay principal?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Version #1 (our text, Tosfos) Answer:</font></b> The case is, the 
          son inherited land.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Even if he inherited land, the stolen object 
          is like a Milveh Al Peh (loan without a document), which 
          cannot be collected from heirs or buyers!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the father was taken to Beis Din 
          (and was obligated to pay through testimony of witnesses. 
          This makes it like a loan with a document.)
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Version #2 (Rashi) Answer:</font></b> The case is, the son 
          inherited land (so he must return the stolen object due 
          to the honor of his father). (end of Version #2) 
<br>

sjt:
</p><p>
<font><b>2) ASSUMPTION OF DEATH OF AN ELDERLY PERSON</b></font><b>
<br>QUESTION:</b> Rav Yehudah in the name of Shmuel says (104a) that one may not give over money on the basis of a Deyukni even if witnesses are signed on it. <b>RASHI</b> (DH b'Deyukni) explains that a person deposited his money with a Shomer (guardian) and now wishes to appoint a Shali'ach (agent) to retrieve the object. He gives the Shali'ach identifying signs which the agent uses to prove that he is acting on behalf of the owner of the money. In addition, the owner sends a letter with the Shali'ach which instructs him to 'go and appear in front of the Shomer, and he will give you the money which he is holding for me,' and he affixes his signature to the document. This letter is called a Deyukni. Shmuel rules that even if witnesses sign the letter to verify it, the Shomer is not obligated to hand over the money to the Shali'ach.
</p><p>
Rebbi Yochanan disagrees with Shmuel and maintains that if witnesses sign the document, the Shomer may rely on the Deyukni. Consequently, when he sends the money with the Shali'ach, he becomes exempt from all of his obligations as though he has returned the money to the owner himself.
</p><p>
According to Shmuel, who rules that even when witnesses sign the Deyukni the Shomer is not obligated to hand over the money to the Shali'ach, when can a Shomer ever return money to its owner by giving it to a third party? The Gemara answers that there is a case in which the Shomer may return money by giving it to a third party. The Gemara relates that Rav Yosef bar Chama owed money to Rebbi Aba. Rebbi Aba said to Rav Safra, 'When you go there (to the town of Rav Yosef bar Chama), please bring my money to me.' When Rav Safra went to the town of Rav Yosef, Rav Safra's son, Rava, asked his father if Rebbi Aba had written for him 'Hiskabalti' (a commitment that 'when Rav Safra receives the money, I hereby consider it as though I had received it myself').
</p><p>
Rav Safra answered that he had no such commitment in writing. He was told that he should go back to Rebbi Aba and receive a written document of 'Hiskabalti.' Afterwards, he was told that even if he had a written document of 'Hiskabalti' it would not be of help, because Rebbi Aba might die before the money was received, in which case the debt would belong to his heirs and the deceased Rebbi Aba's word of 'Hiskabalti' would be worthless.
</p><p>
<b>RASHI</b> (DH Shechiv) writes that Rebbi Aba was old. If he would die before Rav Safra delivers the money to him, Rav Safra would no longer be his Shali'ach. Consequently, if the money would be stolen from Rav Safra on the journey, the heirs of Rebbi Aba would claim it from Rav Safra.
</p><p>
The Gemara's concern that the owner of the money might die before the money reaches him appears to contradict a principle taught by the Mishnah in Gitin (28a). The Mishnah there teaches that a person is always assumed to be alive until there is evidence otherwise. That is, a person has a 'Chezkas Chai' -- a Chazakah that he is still alive. Since Rabbi Aba was alive when he appointed the Shali'ach, why should there have been any concern that he might die while Rav Safra was en route? The Chazakah should determine that he is alive! Even though Rebbi Aba was old, the Mishnah in Gitin (28a, see also Rashi there) states that a Shali'ach who brings a Get on behalf of a man who was sick or old when the Shali'ach left him nevertheless may give the Get to the wife, because he may rely on the Chazakah that the husband is still alive. The Gemara there (28b) states, 'We are not concerned that he may have died.' Why, then, is the Gemara here concerned that the owner of the money might die before the Shali'ach returns the money to him?
</p><p>
<b>ANSWER:</b> The <b>KETZOS HA'CHOSHEN</b> (122:1) answers this question based on the words of <b>TOSFOS</b> in Bava Metzia (39b, DH Dilma). The Gemara there relates that an elderly woman who had three daughters was captured together with one of her daughters. One of the other two daughters died and left a baby boy. Abaye discussed what should be done with the property of the elderly woman. He asserted that it could not be given to the remaining sister based on the assumption that the elderly woman died in captivity (in which case the baby boy would be entitled to a portion of her possessions according to the laws of inheritance), because there is a rule that Beis Din may not give the property of a minor to a close relative to watch (as that relative might keep it for himself).
</p><p>
Tosfos there asks, why should we assume that the elderly woman died, when the Chazakah tells us to assume that she is still alive? Tosfos writes (in his second answer) that in fact there is no general rule that we do not take into account the possibility that a person might have died. Rather, in the case of the Shali'ach who brings a Get on behalf of an old or sick man, there is a special reason why the husband is assumed to be alive at the time the Shali'ach gives over the Get. If the Chachamim would have taken into account the possibility that the man died before the Get was given, the wife would have been deemed an Agunah who cannot remarry. (In the event that the man had no children, the woman would have to perform Yibum or Chalitzah with her husband's brother.) Since the Chachamim are lenient in cases of Agunah, they permit her to receive the Get from the Shali'ach and they do not suspect that her husband died. In contrast, in the case of the captured woman, the Chachamim rule stringently in order to protect the property of the orphan. Since the woman might have died, the Chachamim do not put his property in danger by entrusting it with a close relative (the older sister) who might claim later that the property belongs to her.
</p><p>
The Ketzos ha'Choshen explains the Gemara here in a similar way. The Chachamim seek to protect the Shomer, and therefore they suspect that Rebbi Aba may have died. If Rebbi Aba died, the Shomer will be liable since the orphans will claim the money from him. (D. Bloom)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LESS THAN A PERUTAH OF A STOLEN OBJECT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> If so, the son should also pay the Chomesh 
          (for his own false oath)!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Huna brei d'Rav Yehoshua):</font></b> Chomesh is not 
          paid for denial of money when there is a lien on land to 
          pay it.  
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (to Question (i) - Rava):</font></b> The case is, the 
          father had deposited the stolen object with others;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The son pays the principal, for the stolen object 
               is intact;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He does not pay the Chomesh, for he swore 
               truthfully. He did not know where it was.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>LESS THAN A PERUTAH OF A STOLEN OBJECT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Shimon pardoned the entire obligation, 
          except for less than a Perutah of the principal (Reuven 
          need not travel to return it).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #1 (Rav Papa):</font></b> This is only when the stolen 
          object is not around. If it is around, he must return it, 
          lest it rise in value to a Perutah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #2 (Rav Papa):</font></b> This is even if the stolen 
          object is around. We are not concerned lest it rise in 
          value to a Perutah.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven stole three (equal) bundles, worth a 
          total of three Perutos, and they declined in value, they 
          are now worth two Perutos, and he returned two, he must 
          (even travel to) return the third.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Support (Mishnah):</font></b> If one stole Chametz, and Pesach 
          passed, he can say 'here is your Chametz.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> If he did not have the Chametz to 
               return, he would need to pay its original value, 
               even though now it is worthless!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Also in Rava's case, since it was worth a Perutah 
               when he stole it, he must return it, even though it 
               is not worth a Perutah now.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If Reuven stole two bundles, and their 
          total worth is one Perutah, and he returned one, what is 
          the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since he is not holding (a Perutah of) stolen 
               property, he is exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since he stole (a Perutah) and has not 
               returned (a Perutah), he must return the other?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> He is not holding a Perutah of stolen 
          property, nor has he returned the theft.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Since he is not holding a Perutah of stolen 
          property, he has returned all he must return!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Rava meant, even though he is not holding a 
          stolen object worth a Perutah, he did not yet fulfill the 
          Mitzvah of returning (therefore, he must return it).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ONE WHO DID LESS THAN THE MINIMUM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> If a Nazir shaved (at the end of his Nezirus) 
          and left two hairs uncut, it is as if he did not shave.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If he shaved one of the remaining two, 
          and the other fell out, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Rav Acha mi'Difti):</font></b> Does Rava ask if a 
               Nazir may shave one hair at a time? (Surely, he 
               may!)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Ravina):</font></b> No, he asks about when one of 
               the remaining two fell out before he shaved the 
               other;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since no hair remains, it is as if he shaved (and 
                    he may drink wine);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Or, since he left two hairs (and was 
                    obligated to shave them), and one fell out 
                    before he shaved either, he did not fulfill the 
                    Mitzvah (and he may not drink wine).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Two hairs do not remain; he did not 
          shave.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Since two hairs do not remain, he has shaved 
          all he must shave!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Rava meant, even though two hairs do not 
          remain, he did not yet fulfill the Mitzvah of shaving (so 
          he may not drink wine).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rava):</font></b> If a barrel was punctured, rendering it unable 
          to block Tum'as Mes (Rashi - from passing to the upper 
          story, if it rests in the opening in between; Tosfos - 
          from entering the barrel, which is of earthenware), and 
          the hole was sealed with dregs, the barrel can block the 
          Tum'ah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he (partially) plugged up the hole with a twig 
               (so the remaining holes on each side are not large 
               enough to disqualify a barrel from blocking Tum'ah), 
               this helps only if he plasters it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he used two twigs, he must put plaster in 
               between and on both sides of them.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference:</font></b> Without plastering, it is not 
               considered sealed.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> It should be as if he sealed half the 
               hole (and the remaining hole does not disqualify the 
               barrel from blocking Tum'ah)!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> If twigs are not plastered, they will not 
               stay in place, so it is as if nothing was sealed.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>OATHS TO DENY MONEY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> Reuven stole Shimon's Chametz, and Pesach 
          passed, he can say 'here is your Chametz.'
<br>
<br>

sjt:
<font><b>1) IS VALUE DETERMINED BY THE PLACE OF THE OBJECT?</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that if one stole the value of a Perutah and swore falsely to the victim that he did not steal, and afterwards admitted that he stole, he must return the stolen object even he must go to Madai to return it.
</p><p>
<b>QUESTION:</b> The Mishnah (103a) discusses a case of one who stole and swore falsely that he did not steal. Afterwards he admitted that he stole. The victim waived the thief's obligation to pay back the Keren (principle) and Chomesh (fifth) that he owes him, except for the value of less than a Perutah from the Keren. The thief is not required to travel far away to find the victim to return to him the value of less than a Perutah. The Gemara (105a) quotes Rav Papa who says that this law -- that the thief is exempt from seeking out the victim and returning less than a Perutah -- applies only when that amount is no longer extant at all. If the thief still has in his hands less than a Perutah from the original money (or object) that he stole, he must seek out the victim and return it to him. Since inflation might cause that amount to increase in value and become worth a Perutah (which the Torah <i>does</i> require him to return), he must return less than a Perutah now as well.
</p><p>
The Gemara cites a second version of Rav Papa's statement. According to that version, Rav Papa says that it makes no difference whether the half-Perutah is extant or not. The thief is always exempt from seeking out the victim and returning the half-Perutah, because we are not concerned that the half-Perutah may increase in value.
</p><p>
The <b>RAMBAM</b> (Hilchos Gezeilah v'Aveidah 7:11) and the <b>SHULCHAN ARUCH</b> (CM 367:3) rule in accordance with the Gemara's second version of Rav Papa, that there is no concern that the half-Perutah will increase in value and become worth a Perutah.
</p><p>
The conclusion of the Gemara here seems to contradict the Gemara in Kidushin (12a). The Gemara there discusses the case of a man who gave a date to a woman for Kidushin. Shmuel says that even if a Kur of dates costs one Dinar, such that a single date is worth less than a Perutah, nevertheless the woman is considered married because the date might be worth a Perutah in Madai (where there is a shortage of dates, as Rashi there explains).
</p><p>
If the Gemara there is concerned for the possibility that the date might be worth a Perutah in another place, the Gemara here should also be concerned that the half-Perutah might increase in value. Similarly, the Gemara here should be concerned that the money worth less than a Perutah in this place might be worth more than a Perutah in another place, and the thief should be obligated to return it. What is the difference between the case of the Gemara here and the case of the Gemara in Kidushin?
</p><p>
<b>ANSWER:</b> The <b>RAN</b> in Kidushin (6a of the pages of the Rif) answers that when the Gemara in Kidushin states that there is a concern that the date might be worth a Perutah in Madai, it does not mean that if it actually is worth a Perutah in Madai that the woman is considered married with no doubt. Rather, the marriage takes effect only out of doubt, because in practice the value of the date is assessed only according to the local, present value, as the Gemara here teaches with regard to the object that was stolen.
</p><p>
Similarly, the Mishnah in Erchin (24a) states with regard to Hekdesh, 'one takes into account only its location at the present time.' For example, if a person consecrates a pearl in a village, the value which he must pay to Hekdesh is determined by the worth of the pearl in the village, and not by the higher price it would get in the city. It is evident from the Gemara here and the Mishnah in Erchin that the value of money is determined only by the place where it is presently located.
</p><p>
The Ran asserts, therefore, that Shmuel's ruling that a woman who was betrothed with a date is considered married is only a stringency of the Rabanan. The Rabanan imposed this stringency because of the severity of the prohibition of having relations with a woman who is already married. According to Torah law, however, the Kidushin is not valid at all. (The <b>TOSFOS HA'ROSH</b> there writes that even though the Gemara there says that there is a concern that Kidushin may have taken effect, the concern is only mid'Rabanan, not mid'Oraisa.) (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>HOW FAR MUST ONE GO TO RETURN THEFT?</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'> 103a (Mishnah):</font></b> If Reuven stole a Perutah from
               Shimon and swore to deny it, Reuven must bring it to
               him even if Shimon is in Madai (overseas). He need
               not bring it if Shimon pardoned all but less than a
               Perutah of the principal.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 103b - Inference:</font></b> He must bring it to him only if he
               swore to deny it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> This is like R. Akiva. He obligates
               paying every one only if he swore falsely, for it
               says 'la'Asher Hu Lo Yitnenu b'Yom Ashmaso.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Objection (Rav Huna bar Yehudah - Beraisa - R.
               Shimon ben Elazar):</font></b> All agree that if one does not
               know from which person he bought, he may leave what
               he owes in front of them. R. Akiva and R. Tarfon
               argue about one who does not know from which one
               person he stole.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he swore, the same should apply even when he
                    bought!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'>(Rava):</font></b> Since he knows from whom he stole and
               admitted to him and could return the money, it is as
               if Shimon said 'the theft is like a deposit with
               you.' Reuven must bring it to him only if he swore
               (and must bring an Asham).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 105a - Version #1 (Rav Papa):</font></b> If Shimon pardoned all
               except for less than a Perutah, Reuven need not go
               to return it, i.e. if the theft is not intact. If it
               is intact, he must return it, lest its value rise to
               a Perutah.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Version #2 (Rav Papa):</font></b> Even if it is intact, we are
               not concerned lest it rise in value to a Perutah.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif brings our Mishnah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 7:9):</font></b> If Reuven stole a
               Perutah from Shimon, even if he denied it, since he
               did not swear, if he admits he need not pursue
               Shimon to return it. Rather, he holds it until
               Shimon comes to take it. If he swore, he must pursue
               Shimon until he returns it, even if Shimon is in an
               island in the ocean, for once he swore Shimon
               despairs and will not come to claim it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (11):</font></b> He need not bring it if Shimon pardoned
               all but less than a Perutah of the principal.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (9:21):</font></b> If Reuven stole a Perutah from Shimon
               and swore that he did not, Reuven must return it,
               even if Shimon is in Madai. Since he swore, he
               cannot bring his (Asham for) atonement until
               returning it to Shimon himself.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (24):</font></b> Even though Korban and Chomesh do not
               apply nowadays, one who swore must pursue the owner
               even to Madai to fulfill the Mitzvah of returning
               theft. If he did not swear, he merely informs him 'I
               stole this from you. Send to take it.' The Halachah
               follows Version #2 of Rav Papa (we are not concerned
               lest the theft become worth a Perutah).
<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 367:1):</font></b> If Reuven stole from
               Shimon, even if he denied it, if he did not swear,
               if he later admits, he need not pursue Shimon to
               return it. Rather, Reuven holds it until Shimon
               comes (Rema - and he informs Shimon) to take it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (2,4):</font></b> Also this is an enactment to help
                    penitents. If not, it would be proper to make
                    him bring it to where Shimon is.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 1,2):</font></b> Letter of the law he need
                    not pursue him to return it, even to be Yotzei
                    Yedei Shamayim,. It is not an enactment!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (3):</font></b> The Tur connotes that he must send to
                    inform him, just he need not send the theft and
                    accept responsibility for loss on the way. The
                    Rambam connotes that he need not inform him; he
                    holds it until Shimon comes by himself. The
                    Rema teaches that when Shimon comes to Reuven's
                    city, Reuven must inform him that he is ready
                    to give the theft to him.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (3):</font></b> Also the Bach, Maharshal and Tosfos
                    Yom Tov explain the Rambam like this. I say
                    that the Rambam and Shulchan Aruch agree that
                    he must send to inform him. They merely teach
                    that he need not send the theft. The Rema
                    teaches this, that he must send to inform
                    Shimon wherever Shimon is. Ir Shushan agrees.
                    Rava said 'since... and he admitted to him
                    (i.e. he informed him), it is as if Shimon said
                    'the theft is like a deposit with you.' If not,
                    all agree that he must return it to be Yotzei
                    Yedei Shamayim. One must make all efforts to
                    inform him. Until he does, he is not Yotzei
                    Yedei Shamayim according to R. Tarfon, and is
                    not Yotzei letter of the law according to R.
                    Akiva.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Rebuttal #1 (Gra 1):</font></b> The Rambam and Shulchan
                    Aruch say that (only) when Reuven swore, he
                    must pursue him to return it, for Shimon
                    despaired. It must be that their text in the
                    Gemara didn't say 'since he knows whom he stole
                    from and admitted to him.' Rather, even if he
                    did not admit to him, Shimon agrees that it be
                    a deposit.) The Rema and Tur are like our text.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Rebuttal #2 (Ketzos ha'Choshen 1):</font></b> The Rashba
                    (104a DH Ela) says that since Reuven knows from
                    whom he stole and admits and did not swear,
                    Shimon doesn't benefit if the theft is in Beis
                    Din. It is like a deposit. This applies even if
                    Reuven never admitted, as long as he wants to
                    return it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If Reuven swore about a
               Perutah or more, he must pursue him to return it,
               even if Shimon lives overseas, for Shimon despaired
               after Reuven swore, and will not come to claim it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Bach (1):</font></b> If he swore, even if Shimon said 'the
                    theft is like a deposit with you', Reuven must
                    return it, for he needs atonement. If he did
                    not swear, it is a deposit until Shimon comes
                    for it. The Tur holds that this is only if he
                    admitted before Shimon went to Madai. If in
                    front of Shimon he denied, and he admitted in
                    Beis Din after Shimon went to Madai, even
                    though he need not bring it to Madai, he must
                    inform him. Also the Rosh says so. The Rambam
                    did not specify that he must inform him.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 4):</font></b> The Tur can explain that
                    this is even if he did not admit before Shimon
                    left. Even though he need not bring it to
                    Madai, he must inform him. Also, even if Reuven
                    swore, if Shimon agreed that the theft be a
                    deposit with him, Reuven need not bring it to
                    him. Tosfos (104a DH Omar) says so explicitly.
                    Rather, he admitted in front of witnesses, not
                    in front of Shimon
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (4):</font></b> If he swore he must return it to him,
                    for it says 'la'Asher Hu Lo Yitnenu b'Yom
                    Ashmaso.'
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Shach 5):</font></b> Also Ir Shushan says so.
                    The Gemara rejected this! Rather, since he
                    needs atonement, he must return it to him.
                    Perhaps they explain that the Gemara gives the
                    reason for the verse. There was no need to
                    explain like this.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Defense (Ketzos ha'Choshen 2):</font></b> The Gemara
                    explains that he needs atonement due to this
                    verse, therefore, he must return it to him!
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Shach (6):</font></b> The Shulchan Aruch cites the Rambam.
                    They connote that if Reuven informs Shimon, he
                    will come to claim it, so Reuven need not bring
                    it to him. The Maharshal and Tosfos Yom Tov say
                    so. I disagree. He wrote that he must pursue
                    him! Rather, the Rambam teaches that even if he
                    informed him he must pursue him, for once he
                    swore Shimon thinks that he will not return it,
                    even though he informs him now. However, why
                    did he find a new reason? The Gemara says that
                    he must return it to get atonement! This is
                    even if we know that Shimon did not despair!
                    The Maharshal says that if Reuven informed him
                    and Shimon said 'hold onto it', he must return
                    it to get atonement. This is if he sent to
                    inform him. If he told Shimon directly, if
                    Shimon left it with him, it is as if he
                    deposited it with him.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (3):</font></b> If Reuven returned it all, or
               Shimon pardoned it all, except for less than a
               Perutah, Reuven need not go to return it. Even if
               the theft is intact, we are not concerned lest it
               rise in value to a Perutah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Afilu):</font></b> It is
                    known that the Halachah follows the latter
                    version. The Gemara connotes that if it became
                    worth a Perutah, one must return it. The Ramah
                    says so, and the Rambam connotes like this. The
                    Ri exempts even if it becomes worth a Perutah.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>RETURNING THEFT THROUGH A SHALI'ACH OR BEIS DIN </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If he swore falsely (that he did not 
          steal it), is he liable?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since if the Chametz would be stolen from Reuven, 
               he would have to pay Shimon, it is as if he swore to 
               deny money (he is liable);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since now it is here, and it is worthless, 
               his oath did not matter (he is exempt).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	This was not a question for Rabah; 
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah):</font></b> If Yehudah had Levi's ox, but denied 
               that he stole it and swore 'I am a Shomer Chinam', 
               and later admitted, he is liable, because his oath 
               would have exempted himself if the ox was lost or 
               stolen;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he swore 'I am a Shomer Sachar' and later 
               admitted, he is liable, because this would have 
               exempted him if it was injured or died;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he swore 'I borrowed it' and later admitted, 
               he is liable, because this would have exempted him 
               had it died while working.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Even though now the animal is here, he is liable 
                    because his oath might have saved himself money 
                    (if it was lost or died...);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Similarly, Reuven is liable because his 
                    oath could have saved himself money (if the 
                    Chametz was stolen)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Amram - Beraisa):</font></b> 'He denied it' excludes 
          one who admits from the beginning;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Yehudah had Levi's ox, but denied that he stole 
               it. He swore to one of the following claims:</font></b> you (or 
               your father) sold or gave it to me, it chased after 
               my cow, it came by itself, I found it straying on 
               the road, I am a Shomer Chinam or Shomer Sachar, or 
               I borrowed it. He later admitted.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps he is liable!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'>Rejection:</font></b> 'He denied it' excludes one who admits 
               from the beginning.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> The Beraisa discusses a case of Heilach 
          (he returns the animal immediately). I discuss when the 
          animal is in the swamp (he does not return it 
          immediately).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa mentions an oath 'you sold it to 
          me.' This is not admission from the beginning!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Yehudah admits that he never paid for it, and 
          says 'take it back for payment.'
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa mentions 'you (or your father) 
          gave it to me.' This is not admission from the beginning!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Yehudah admits that the gift was on condition 
          that he act nicely to Levi, and that he did not fulfill 
          this. He says 'take it back.'
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> One case is 'I found it straying on the 
          road.' Since he knew that it was Levi's, he should have 
          returned it. Keeping it is like stealing it!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Shmuel's father):</font></b> He claims that he did not 
          know that it was Levi's.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Beraisa - Ben Azai):</font></b> If Reuven asked David to testify 
          about Reuven's Aveidah, and David swore falsely that he 
          knows no testimony, and later David admitted that he 
          knew, there are three cases:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He says 'I knew that it was yours, but I did not 
               know that Shimon found it (perhaps he bought it from 
               you)';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He says 'I knew that Shimon found it, but I did 
               not know that it was yours';
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> He says 'I did not know that it was yours, nor 
               that Shimon found it.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Objection:</font></b> If so, David swore truthfully!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Correction:</font></b> Rather, he says 'I knew that it was 
               yours, and that Shimon found it.'
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> What does Ben Azai come to teach?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #1 (Rav Ami):</font></b> In all three cases, the witness is 
          exempt (from the Korban for a false oath that he does not 
          know testimony).
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #2 (Shmuel):</font></b> In all three cases, he is liable.
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	R. Ami and Shmuel argue like the following Tana'im.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If one imposes an oath on one witness 
               that he does not know testimony (and he swore 
               falsely), the witness is exempt (from a Korban, 
               because the testimony of one witness cannot force 
               someone to pay);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Elazar b'Rebbi Shimon obligates him.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Elazar holds that something that can cause a 
          loss of money is considered like money. The first Tana 
          holds that it is not like money.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>DOES DENIAL MAKE ONE A THIEF?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Sheshes):</font></b> If one denies a deposit, he is 
          considered a thief, and he is liable even for Ones.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Support (Beraisa) Question:</font></b> 'And he denied it' teaches 
          the punishment (this will be explained). Where does the 
          Torah warn not to do this?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> 'Do not deny.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Version #1 (our text, Tosfos) Suggestion:</font></b> 'The 
               punishment' refers to money ('he will return the 
               theft' obligates him for Ones, until he returns it).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, it means that he must swear.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #2 (Rashi) Suggestion:</font></b> 'The punishment' 
               (liability for Ones) is because of his denial.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, it is for swearing falsely. (end of 
          Version #2)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> The Seifa discusses when he swore. This 
          implies that in the Reisha, he did not swear!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Seifa) Question:</font></b> 'And he swore falsely' teaches 
               the punishment. Where does the Torah warn not to do 
               this?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> 'Do not lie.'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Also the Reisha discusses swearing;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the Seifa, he later admitted (so he pays 
               principal, Chomesh and offers an Asham);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> In the Reisha, witnesses testified against him 
               (and he is liable even for Ones).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rami bar Chama - Mishnah):</font></b> A defendant is 
          suspected to swear falsely (and may not swear, so the 
          claimant swears and receives like he claimed) if he 
          (ever) swore falsely that he does not know testimony, or 
          about a deposit, or took a vain oath.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one becomes a thief just for denying a 
               deposit, denial alone should disqualify him from 
               swearing (in the future), even if he did not swear 
               (just like a thief is disqualified)!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the deposit is (an animal) in the 
          swamp. If he denied without swearing, we assume that he 
          is not trying to steal, he is just stalling until he can 
          return it.
<br>

sjt:
</p><p>
<font><b>2) THE DENIAL OF A DEPOSIT RENDERS A PERSON A THIEF</b></font><b>
<br>QUESTIONS:</b> Rav Sheshes rules that when one falsely denies that he received a Pikadon (deposit), he becomes a Gazlan (thief) and is liable for Ones (damage that occurs to the object due to circumstances beyond one's control).
</p><p>
Rami bar Chama challenges the ruling of Rav Sheshes from the Mishnah in Shevuos (44b). The Mishnah teaches exceptions to the rule that an oath is made only to exempt oneself from an obligation to pay, but not to extract money from one's opponent. One case in which a claimant makes an oath to take money from his opponent is the case in which the defendant is suspected of swearing falsely. Since he is suspected of swearing falsely (since he was found previously to have sworn falsely), he cannot make an oath to exempt himself from paying the disputed money, the claimant may make the oath instead of him and take the money from him.
</p><p>
The Mishnah in Shevuos gives examples of those who are suspected of swearing falsely. One example is in a case in which a Shomer swore falsely that he did not have a Pikadon in his guardianship. Rami bar Chama asks that according to Rav Sheshes, if a Shomer is disqualified from the moment that he denies possessing a Pikadon, why does the Mishnah imply that he becomes disqualified only when he actually makes a false oath?
</p><p>
The Gemara answers this challenge by stating that the Mishnah refers to a case in which the animal that was given to the Shomer to watch was grazing in a marsh at the time he denied possessing it. Accordingly, if he made no false oath he does not become disqualified from making an oath, because he made no attempt to steal the animal. Rather, he merely attempted to evade the owner temporarily until he would have time to go to the marsh and return the animal to its owner.
</p><p>
In contrast, Rav Sheshes refers to a case in which witnesses testify that they saw the object in the Shomer's possession at the time he denies having had the object in his possession. In such a case, he is disqualified even if he did not swear falsely.
</p><p>
A number of question may be asked on the Gemara.
</p><p>
(a) If Rav Sheshes refers only to a case in which the witnesses say that they saw the Pikadon in the Shomer's possession at the time he denies having had the object in his possession, it should be obvious that such a person is considered a Gazlan! Why is it necessary for Rav Sheshes to teach that he has the status of a Gazlan?
</p><p>
(b) Similarly, the Gemara earlier cites sources for Rav Sheshes' ruling from various verses. The verse, 'And he denies it' (Vayikra 5:22), teaches that he is punished for denying the Pikadon, and the verse, 'You shall not deny' (Vayikra 19:11), teaches the warning for this prohibition. Why does the Gemara need to learn such this law from the verses? It should be obvious that this person's denial of the Pikadon constitutes theft!
</p><p>
(c) Finally, why does the Gemara attempt to reject such an obvious law?
</p><p>
<b>ANSWER:</b> The <b>SHITAH MEKUBETZES</b> answers in the name of <b>ROSH</b> that the reason why this law is not obvious is that one might have thought that merely denying a Pikadon does not give a person the status of a Gazlan. Perhaps he is considered a Gazlan only if he actually uses the Pikadon in a way that weakens it. (For example, he works with an animal and thereby weakens it.) The Rosh writes that even according to the opinion in Bava Metzia (41a) that when a Shomer uses a Pikadon without permission he is liable even if he does not weaken (or lessen the value of) the Pikadon, one still might have thought that the Shomer does not have the status of a Gazlan. Without the verses, one might have thought that since the Shomer received the Pikadon in a permissible way (the owner gave it to him voluntarily), he should not be considered a Gazlan unless he actually uses it. Rav Sheshes therefore teaches that merely denying the Pikadon is enough to render a person a Gazlan.
</p><p>
(See the <b>SHITAH MEKUBETZES</b> in Bava Metzia (26b) in the name of the <b>RITVA</b> who explains that one's denial of a Pikadon in Beis Din is equivalent to stealing it directly from the hands of the owner. However, the first statement of <b>RASHI</b> in Sanhedrin (2a), that one's denial of a Pikadon makes him liable only when he is also guilty of Shelichus Yad, remains difficult and requires further elucidation.) (D. Bloom)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>IS ONE WHO DENIED SUSPECTED TO SWEAR FALSELY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Support:</font></b> Rav Idi bar Avin taught that if one denied a
          loan (and it was found that he really owed), he may
          testify (we assume that he intended to stall, not to
          steal);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One who denied a deposit (and it was found that
               he could have returned it immediately) is
               disqualified from testimony.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Ilfa taught that an oath acquires (liability
          for Ones)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Denial does not acquire!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Here also, the deposit is in the swamp.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Ilfa said that an oath acquires (not
          liability for Ones, rather,) like Rav Huna taught;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Huna citing Rav):</font></b> If Reuven denied owing
               money to Shimon and swore, and later, witnesses said
               that he owes Shimon, he is exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'The owner will take, and he (the defendant) will
               not pay' - once the owner received (heard) an oath,
               the defendant need not pay.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>MUST ONE PAY AFTER SWEARING?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Huna citing Rav):</font></b> If Reuven denied owing money to
          Shimon and swore, and later, witnesses said that he owes
          Shimon, he is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'The owner will take, and he (the defendant) will
               not pay' - once the owner received (heard) an oath,
               the defendant need not pay.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> Presumably, Rav's law applies only to a loan,
          for a borrower acquires the money. One can say that the
          oath is in place of repayment;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A deposit always belongs to the owner, Reuven
               cannot acquire it through an oath!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> However, Rav said his law even regarding a
               deposit, for the verse he expounds discusses a
               deposit!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Acha bar Minyomi - Mishnah):</font></b> If Levi
          accepted (answered 'Amen' to) an oath that the deposit he
          was guarding for Yehudah was lost; and witnesses
          testified that he ate it, he pays principal;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Levi admitted by himself, he pays principal
               and Chomesh and brings an Asham.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> The case is, he swore outside of
          Beis Din.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rav Acha bar Minyomi - Seifa):</font></b> If Levi
          accepted an oath that the deposit was stolen, and
          witnesses testified that he ate it, he pays Kefel;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Levi admitted by himself, he pays principal,
               the Chomesh and brings an Asham.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One does not pay Kefel for an oath taken outside
               of Beis Din!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rav Nachman):</font></b> I could say that the Reisha of
          the Mishnah discusses outside of Beis Din, and the Seifa
          discusses in Beis Din, but that is a poor answer.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Rav Nachman):</font></b> The entire Mishnah is in Beis
          Din;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the Reisha, Levi swore before Beis Din told
               him to. (Rav's law and) the Seifa discuss(es) when
               Beis Din administered the oath.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rami bar Chama (to Rav Nachman):</font></b> You do not hold like
          Rav. What forces you to (explain the Mishnah in such a
          way to) answer for him?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rav Nachman:</font></b> I just explain how Rav must learn the
          Mishnah.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Rav learns from a verse. How can anyone argue
          with him?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The verse teaches that in every oath
          mid'Oraisa, the oath exempts one from paying. The one who
          is asked to pay swears and is then exempt
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'The owner will take (hear the oath) and he (the
               Shomer) will not pay' - the one who was asked to
               pay, he swears.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Rav Hamnuna - Mishnah):</font></b> If Reuven made Shimon
          swear five times, whether in or outside of Beis Din (and
          he swore falsely), he is liable (an Chomesh and an Asham)
          for each oath;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon says, the reason is, each time he could
               have admitted.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We cannot say that he swore by himself. It says
               that Reuven made him swear!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> We cannot say that (this is only when) he swore
               outside of Beis Din. It says, (even) in Beis Din!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Rav Hamnuna):</font></b> The Beraisa discusses two cases:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When he made him swear, it discusses outside of
               Beis Din
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> When he swore by himself, it discusses in Beis
               Din.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (Rava - Beraisa):</font></b> If a Shomer claimed that the
          deposit was stolen, and he swore falsely, admitted that
          he lied, and witnesses testified that the Shomer himself
          took it:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he admitted before witnesses came, he pays
               principal and Chomesh, and brings an Asham.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We cannot say that he swore outside of Beis Din
               or by himself. It says that (when witnesses
               testified) he pays Kefel!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Rav taught that he does not pay. He did
          not discuss when he admits;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It says 'he will confess' - whether he originally
               swore that it was lost or stolen, he must pay the
               principal and the Chomesh (and bring an Asham)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Also - if he claimed that a deposit was stolen,
               and witnesses testified that he stole it, Rav admits
               that he pays - the Torah obligated him to pay Kefel!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rav's law is only when he claimed and swore that
               it was lost, and did not admit, and witnesses
               testified that he stole it.
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	Rav Gamda said Rava's answer in front of Rav Ashi.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> Rav Hamnuna was a Talmid of Rav.
          Surely, he knew what Rav said, and he asked from a case
          where he is liable because he could have admitted,
          because he knew that Rav exempts even when he admits!
<br>
<br>

sjt:
<font><b>1) THE VOLUNTARY OATH</b></font><b>
<br>QUESTION:</b> Rav Huna as in the name of Rav states that when a person denies that he owes his friend and he takes an oath to that effect, he is exempt from paying even if witnesses later testify that he <i>does</i> owe the money. Rav derives this from the verse, 'And the owner shall accept it and he shall not pay' (Shemos 22:10), which implies that when a Shomer takes an oath, the owner of the object receives the oath in place of payment. The Shomer therefore does not pay even if it is established later that he lied. Rav derives from here the general principle that whenever the defendant 'gives' the claimant an oath, he becomes exempt from giving him money.
</p><p>
The Gemara relates that Rav Nachman taught this law of Rav, and Rav Acha bar Minyumi challenged it from a Mishnah in Shevuos (49a). The Mishnah discusses a case in which a person asked a Shomer to return his object, and the Shomer replied that the object was lost and he took an oath to that effect. Afterwards, witnesses testified that the Shomer had eaten the object. The Mishnah says that the Shomer must pay the Keren (principle). If, however, no witnesses came but the Shomer admitted his own guilt, he must also pay an extra fifth and bring a Korban Asham. It is clear from the Mishnah that one must pay when his guilt is established, even though he took an oath that he was innocent.
</p><p>
Rav Nachman answered that the Mishnah in Shevuos refers to an oath taken outside of Beis Din. <b>RASHI</b> (DH Chutz) explains that such an oath is not strong enough to exempt the Shomer from the monetary payment after witnesses testify that he stole the object.
</p><p>
Rav Acha asked another question from the second part of the Mishnah in Shevuos. The Mishnah states that if the owner asks the Shomer where his object is and the Shomer replies that it was stolen and swears to that effect, and then witnesses testify that the Shomer stole the object, the Shomer must pay Kefel (double). If the Mishnah refers to an oath taken outside of Beis Din, why should the Shomer be liable for Kefel? (<b>RASHI</b> (DH Kan) explains that one is liable for Kefel only when he takes an oath administered by Dayanim.)
</p><p>
(Rav Acha's question is that since the second part of the Mishnah must refer to a case of an oath taken in Beis Din, the first part of the Mishnah also must refer to such a case. Rashi (DH Kafatz) explains that the fact that the second part of the Mishnah states that Kefel must be paid after an oath does not contradict Rav's position. Rav agrees that when a Shomer takes an oath about a stolen Pikadon (for which he must pay Kefel if he is found to be lying), he certainly must pay the Keren if he is caught later.)
</p><p>
After he gave one answer which he admitted was difficult, Rav Nachman replied that both parts of the Mishnah refer to an oath taken in Beis Din. However, the first part of the Mishnah refers to a case in which the Shomer jumped to take the oath before Beis Din obligated him to do so. This presents no difficulty to Rav, since Rav says that the Shomer is exempt from future payments only when the oath was mandated by the Dayanim. Therefore, in the first case of the Mishnah, the Shomer is liable for future payments because the oath he took was not mandated by Beis Din. The second case of the Mishnah indeed refers to an oath mandated by Beis Din, and thus the Shomer is obligated to pay Kefel.
</p><p>
The <b>RASHBA</b> cites <b>RABEINU CHANANEL</b> who explains that the Gemara implies that if someone swears without being ordered to do so by Beis Din (for example, he swears merely because the owner demanded that he swear, or he swears without the knowledge of the owner, even though he does so in Beis Din), it is not considered an oath.
</p><p>
This inference, however, appears to contradict the Gemara in Gitin (35a). The Mishnah there (34b) teaches that a widow receives her Kesuvah from the orphans' estate only when she takes an oath. The Gemara (35a) says that Rav's practice was never to give a widow her Kesuvah (because he was concerned for false oaths). However, the Gemara relates that a widow once came in front of Rav Huna to ask for her Kesuvah. He refused to give it to her because of Rav's practice. The widow replied to him that since Rav's reason was that she might have already received some of the Kesuvah money from her husband while he was alive, she swore in the name of Hash-m 'that I have not received any benefit from my Kesuvah at all.' Rav Huna stated that Rav would agree that if the widow takes an oath on her own initiative, she may receive her Kesuvah.
</p><p>
How is the Gemara there to be reconciled with the Gemara here which implies that an oath not mandated by Beis Din is not an effective oath?
</p><p>
<b>ANSWERS:</b>
<br>(a) The Rashba answers in the name of Rabeinu Chananel that, in the case in Gitin, the reason why the widow may collect her Kesuvah is unrelated to the oath she took. The oath indeed is not considered an oath at all, because it was not mandated by Beis Din. Rav Huna maintained that since the widow voluntarily made the oath, it is unlikely that she is swearing falsely and thus Beis Din may mandate her to take a proper oath, and she receives her Kesuvah on the basis of that oath.
</p><p>
(b) The Rashba gives another answer which differs from the view of Rabeinu Chananel. The Rashba explains that a voluntary oath indeed is usually valid. However, sometimes an especially strong oath is required. In such cases, a voluntary oath is not strong enough. A voluntary oath is not strong enough to exempt a Shomer from liability for future payments according to Rav. In order to be exempt from payment, he needs a strong oath, which is accomplished only when the oath is mandated by Beis Din. Similarly, the obligation of Kefel takes effect only when one makes a strong oath, an oath required by Beis Din.
</p><p>
In contrast, for a widow to collect her Kesuvah, a standard oath suffices (because she is entitled by law to the Kesuvah). Her voluntary oath is adequate for this purpose, which is why Rav Huna allowed her to collect her Kesuvah. (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MUST ONE PAY AFTER SWEARING?</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 Huna citing Rav):</font></b> If Reuven denied owing money
               to Shimon and swore, and later, witnesses said that
               he owes Shimon, he is exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'The owner will take, and he (the defendant) will
               not pay' - once the owner received (heard) an oath,
               the defendant need not pay.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rava):</font></b> Presumably, Rav's law applies only to a
               loan, for a borrower acquires the money. One can say
               that the oath is in place of repayment. A deposit
               always belongs to the owner, Reuven cannot acquire
               it through an oath!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> However, Rav said his law even regarding a deposit,
               for the verse he expounds discusses a deposit!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (Rav Acha bar Minyomi - Mishnah):</font></b> If Levi
               accepted (answered 'Amen' to) an oath that the
               deposit he was guarding for Yehudah was lost; and
               witnesses testified that he ate it, he pays
               principal.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (Rav Nachman):</font></b> The case is, he swore outside
               of Beis Din.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> Rav Acha asked from the Seifa, and Rav Nachman
               answered that in the Reisha, Levi swore (in Beis
               Din) before Beis Din told him to. In the Seifa, Beis
               Din administered the oath. (Rav discusses such a
               case.)
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rami bar Chama (to Rav Nachman):</font></b> You do not hold
               like Rav. What forces you to (strain to explain the
               Mishnah in such a way to) answer for him?
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> I just explain how Rav must learn the
               Mishnah.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question:</font></b> Rav learns from a verse. How can anyone
               argue with him?
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer:</font></b> The verse teaches that in every oath
               mid'Oraisa, the oath exempts one from paying. The
               one who is asked to pay swears and is then exempt.
               'The owner will take (hear the oath) and he (the
               Shomer) will not pay' - the one who was asked to
               pay, he swears.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Rava):</font></b> Rav taught that he does not pay. He did not
               discuss when he admits. It says 'he will confess' -
               whether he originally swore that it was lost or
               stolen, he must pay the principal and the Chomesh
               (and bring an Asham)!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Also, if he claimed that a deposit was stolen,
                    and witnesses testified that he stole it, Rav
                    admits that the Torah obligated him to pay
                    Kefel! Rav's law is only when he claimed and
                    swore that it was lost, and did not admit, and
                    witnesses testified that he stole it.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Sanhedrin 25a:</font></b> Ploni testified 'I saw Bar Binisus
               borrow on Ribis', and Almoni testified 'I borrowed
               from Bar Binisus on Ribis.' Rava disqualified Bar
               Binisus.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Question:</font></b> Rava said that one who borrows on Ribis is
               disqualified. If so, Almoni is a Rasha - 'Al Tesht
               Rasha Ed'!
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Answer:</font></b> Rava ruled according to another of his
               teachings, that one is considered a relative with
               respect to himself, so he cannot disqualify himself
               by saying that he is a Rasha.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> Kesuvos 87a (Mishnah):</font></b> A woman must swear
               (mid'Rabanan) to receive her Kesuvah if one witness
               says that it was paid.
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> 88a (Rav Papa):</font></b> If he is clever, he will force her
               to take an oath mid'Oraisa. He pays the Kesuvah
               again in front of a different witness. He joins the
               two witnesses, and claims that the first payment was
               a loan.
<br>        <b>  <b><font color='darkgreen'>18. </font></b><font color='darkgreen'> Bava Metzi'a 26a (Rav Nachman):</font></b> If two people were
               standing together and Levi saw a coin fall from one
               of them, he must return it. The loser does not
               despair. He is sure that his companion took it, and
               he plans to confront him and get it back.
<br>        <b>  <b><font color='darkgreen'>19. </font></b><font color='darkgreen'> Bava Basra 46a (Mishnah):</font></b> A craftsman does not get a
               Chazakah.
<br>        <b>  <b><font color='darkgreen'>20. </font></b></b> This implies that someone else gets a Chazakah. We
               cannot say that witnesses saw the object deposited.
               If so, no one would get a Chazakah!
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (9:27):</font></b> Rami bar Chama asked Rav
               Nachman 'you do not hold like Rav. What forces you
               to strain to explain the Mishnah to answer for him?
               Rav Nachman said that he just explains how Rav must
               learn. This shows that the Halachah does not follow
               Rav. His verse teaches that every Torah oath exempts
               one from paying. The Halachah follows Rav Nachman.
               Even if one witness came, he swore mid'Oraisa, and
               another witness came, he must pay.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Yam Shel Shlomo (9:47):</font></b> Regarding paying, even
                    the first witness joins. It is as if the
                    witnesses came together. You cannot say that
                    Rav Nachman agrees to Rav when only one more
                    witness came (that the oath exempted him), for
                    the Gemara asked 'Rav expounded a verse!' We
                    did not say that the verse teaches about when
                    only one more witness came.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 2:11):</font></b> If Levi denied David's
               claim and swore mid'Oraisa or Heses, and witnesses
               came and testified that he swore falsely, he must
               pay and he is established to be suspected to swear
               falsely.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Metzi'a 2:9):</font></b> If one is sure that Ploni
               stole from him, he does not despair, for he can
               seize Ploni's property, even if he made Ploni swear
               Heses.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Teshuvas Rosh (8:5):</font></b> If Reuven swore to Shimon that
               he does not owe to him anything, and later Reuven's
               money came to Shimon, he can say that he wants to
               keep it for what Reuven owes him, for he swore
               falsely. The Halachah follows Rav Nachman, who says
               that one who swore did not acquire. Just like if
               witnesses came afterwards, he is liable, also if
               Reuven's money came to Shimon's hand, he may seize
               it, for Reuven still owes b'Yedei Shamayim. Shimon
               swears that he does not have anything of Reuven's.
<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 87:29):</font></b> If Levi totally denied
               David's claim and one witness contradicted Levi and
               Levi swore to contradict the witness, and afterwards
               David brought another witness, he joins with the
               first. Levi pays, even though he swore. He became
               suspected to swear falsely through two witnesses.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (30):</font></b> Even though after Levi swore he
               is exempt, if David seized the money without
               witnesses, and claims that he took it for his claim
               because Levi swore falsely, he is believed through a
               Migo. I.e., he could have said that he did not seize
               anything. David swears Heses, and he is exempt. We
               need not say that if David brought two witnesses
               after Levi swore mid'Oraisa or Heses, that we take
               from Levi to pay David, and Levi becomes suspected
               to swear falsely, through witnesses.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Af):</font></b> Sefer ha'Terumos and the
                    Rosh say that since the oath does not acquire, 
                    seizure helps.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (90):</font></b> 'The owner will take, and he will not
                    pay' means that Beis Din does not force him to
                    pay. It does not discuss when he himself took
                    the money and he has a Migo, or when witnesses
                    came later.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (101):</font></b> We learn from Bava Basra 46a that if
                    witnesses saw him seize, he is not believed.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> R. Akiva Eiger:</font></b> If Yosef was obligated to swear
                    to Moshe, and said 'you may swear and collect',
                    and Moshe swore, and afterwards Yosef says 'I
                    know that you swore falsely. Now, I will swear
                    (and not pay)', he is believed to do so, Migo
                    he could say 'I paid you.' Mekor Baruch (22)
                    says so, but it seems that Tzemach Tzedek 7
                    disagrees.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Pischei Teshuvah (32):</font></b> Tzemach Tzedek 7 says
                    that since Yosef could have sworn to exempt
                    himself, but allowed Moshe to swear, it is as
                    if he said 'if you will swear, I will believe
                    you.' Therefore, he cannot retract. However, he
                    believed him only against himself. If witnesses
                    testify against Moshe, Yosef collects.
<br>

<p>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer (Rav Acha Sava):</font></b> Rav Hamnuna asked as follows:
          granted, if witnesses can obligate (to pay principal) one
          who already swore (this shows that he owes money), so he
          must bring a Korban for the last oath, for he could have
          admitted (his oath denied money);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But if witnesses cannot obligate one who already
               swore (it is as if he does not owe money), would he
               must bring a Korban for the last oath, because he
               could have admitted (and then he would pay
               principal)?! He did not admit!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ONE WHO CLAIMS THAT A DEPOSIT WAS STOLEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Chiya bar Aba citing R. Yochanan):</font></b> If one claimed
          that a deposit was stolen (and really, he stole it), he
          pays Kefel. If he slaughtered or sold it, he pays four
          (if it was a Seh) or five (if it was an ox);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like a thief pays Kefel, and if he
               slaughtered or sold it, he pays four or five, also
               one who claims that a deposit was stolen pays Kefel,
               and if he slaughtered or sold it, he pays four or
               five.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> One who claims that a deposit was stolen pays
          Kefel only if he swore. An actual thief pays Kefel even
          without swearing!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> A Hekesh equates one who claims that a deposit
          was stolen to a thief (they are written adjacent to each
          other). We do not challenge a Hekesh!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This answer is like the opinion that one verse
               discusses an actual thief, and the other discusses
               one who claims that a deposit was stolen;
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> According to the opinion that both verses
          discuss one who claims that a deposit was stolen, how can
          we answer?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> It says 'ha'Ganav (the thief).' The 'Hei'
          teaches that he (one who claims that a deposit was
          stolen) gets all the laws of a thief.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (R. Chiya bar Aba - Mishnah):</font></b> If Shimon
          claimed that Reuven's deposit was stolen, and Reuven
          imposed an oath on him; and he answered 'Amen', and
          witnesses testify that Shimon ate it, he pays Kefel.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon ate it, he must have slaughtered it
               first, yet he pays only Kefel!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> The case is, he ate it without
          slaughter.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't he answer that he slaughtered it,
          but it was Tereifah (according to R. Shimon, who holds
          that slaughter that does not permit the meat is not
          considered slaughter)?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Yochanan holds like R. Meir, who holds that
          it is considered slaughter.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't he answer that he ate a fetus
          found inside a slaughtered animal (which is permitted
          without slaughter)?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Yochanan holds like R. Meir, who holds that
          it must be slaughtered.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't he answer that he was taken to
          trial, and Beis Din told him 'go give to him'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> Once Beis Din says 'go give to him', if
               he slaughtered or sold, he does not pay four or
               five;
<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> Once Beis Din ruled, (the theft is known,
               so) he has the law of a Gazlan (an open robber), who
               does not pay four or five.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rava):</font></b> If Beis Din said 'you must give to him',
               if he slaughtered or sold, he pays four or five;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> This expression is not considered a final
               ruling, so he still has the law of a Ganav (covert
               thief), who pays four or five.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Counter-question:</font></b> Why didn't he answer that the
               thief was a partner in the animal, and slaughtered
               without asking his partner?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer to both questions:</font></b> There were other answers that
          R. Yochanan could have given. He chose one.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(R. Chiya bar Aba):</font></b> If one found an Aveidah and later
          claimed that it was stolen, he pays Kefel.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> 'For any Aveidah that he will say (he will pay
          Kefel).'
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question (R. Aba bar Mamal - Beraisa):</font></b> 'When a man will
          give (to a Shomer... the Shomer must swear... and
          sometimes pays Kefel for it)' excludes what a minor
          gives.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps that is only if he is still a
               minor when he claims it back! If he matured and
               claimed it, what is the source that the Shomer is
               exempt (from the oath and Kefel)?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> 'The matter of both of them (will be
               brought to the judges)' - both the giving and claim
               of the deposit must be the same, i.e. the owner was
               an adult.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Summation of question:</font></b> R. Chiya bar Aba says that
               a finder pays Kefel regarding an Aveidah, even
               though no one gave it to the finder!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer #1 (R. Chiya bar Aba):</font></b> The Beraisa discusses
          when the Shomer ate the deposit before the owner (Levi)
          grew up (Levi has no claim for anything that the Shomer
          did before Levi matured. However, the finder of the
          Aveidah swore falsely to an adult owner.)
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Objection:</font></b> This implies that if the Shomer ate the
          deposit after Levi grew up, he is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If so, why did the Beraisa say that the giving
               and claim of the deposit must be the same (with an
               adult)? It should say that the eating and claim of
               the deposit must be the same!
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> An Aveidah is different, because
          it came through (being lost by) an adult, unlike the
          deposit of a minor.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>MUST THE SHOMER PARTIALLY DENY THE CLAIM?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Chiya bar Aba):</font></b> If a Shomer claimed that a
          deposited object was stolen, he pays Kefel only if he
          partially denies the claim and partially admits to the
          claim.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> It says 'Ki Hu Zeh (i.e. this he admits to, but
          he denies something else)'.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	He argues with R. Chiya bar Yosef.
<br>

<p>

sjt:
</p><p>
<font><b>2) AN OATH SWORN TO A MINOR</b></font><b>
<br>QUESTION:</b> Rebbi Chiya bar Aba in the name of Rebbi Yochanan discusses the case of a person who found a lost object, and when the owner demanded his object the finder claimed that it was stolen from him. Afterwards, witnesses testified that the finder had taken the object for himself. Rebbi Yochanan ruled that he is obligated to pay Kefel like any other thief.
</p><p>
Rebbi Aba bar Mamal questioned this ruling from a Beraisa which explains the verse, 'When a man gives to his friend money or utensils to guard, and they are stolen from the house of the person, if the thief is found he shall pay double' (Shemos 22:6). The Beraisa teaches that when a minor (not a 'man') hands over a deposit to his friend to guard, the liability mentioned in the verse does not apply. The Shomer is not obligated to take an oath against the claim of a minor. Similarly, one does not incur an obligation of Kefel when the claimant is a minor.
</p><p>
The Beraisa asks that the verse implies that these laws do not apply to a minor only when the minor both handed over the deposit and claimed it back when he was a minor. What is the source that the Shomer is exempt from an oath and from Kefel when the owner was a minor when he handed over the deposit but he was an adult when he claimed it back? The Beraisa answers that this is derived from the verse, '... the cause of both parties shall come before the judges' (Shemos 22:8). <b>RASHI</b> (DH Talmud Lomar) explains that this verse teaches that the handing over of the deposit and the claim in Beis Din are compared to each other; both must be done when the owner of the object is an adult in order for the obligations of the verse to apply.
</p><p>
The Gemara explains that Rebbi Aba bar Mamal's question is as follows. If Rebbi Chiya bar Aba is correct that there is an obligation of Kefel for a finder who falsely claims that the object he found was stolen, this law should allow a minor to receive Kefel for his deposit. In the case of a lost object, the object was never given to the Shomer, and nevertheless the Shomer must take an oath that it was stolen and he pays Kefel if he swears falsely. Similarly, even though a deposit handed over by a minor is not considered to have been given to the Shomer (because 'Ein Nesinas Katan Klum' -- 'the act of giving of a minor has no validity'), when he becomes an adult and claims the deposit back, his claim should be sufficient to require an oath and Kefel from the Shomer.
</p><p>
The Gemara's discussion presents a difficulty to the ruling of the <b>RAMBAM</b> (Hilchos Sechirus 2:7) and <b>SHULCHAN ARUCH</b> (CM 96:1). The Rambam writes that if a minor deposits an object with an adult or lends an object to him, the adult must take the oath of a Shomer if the object was stolen. The Rambam writes that his teachers ruled that this is not considered an oath based on the claim of a minor -- which would contradict the principle that no oath is taken on the basis of the claim of a minor -- because every time a Shomer takes an oath the claim which prompts the oath is only a doubtful one (the claimant is not sure that the Shomer was negligent in guarding the object). (Accordingly, the strength of the claim of the minor is not what causes the Shomer to take the oath. Only when the claim must be one of certainty is a minor unable to force his opponent to take an oath.)
</p><p>
The <b>MAGID MISHNEH</b> writes that the Rambam's opinion is that of the <b><b><b>RI</b></b> MI'GASH</b>. According to this opinion, the Mishnah in Shevuos (38b) which states that one never takes an oath in response to the claim of a minor refers to a case such as Modeh b'Miktzas. (A minor claimed that the adult owes him 100 and the adult admits that he owes 50. Under normal circumstances (when both litigants are adults), the defendant must make a Shevu'ah d'Oraisa of Modeh b'Miktzas to exempt himself from paying 50.)
</p><p>
According to the Rambam's opinion, when the Beraisa derives from the verse (Shemos 22:8) that the defendant is exempt from an oath when the claimant was a minor both when he gave the object to the defendant and when he demanded the return of the object, it refers only to a case of Modeh b'Miktzas. If the case of the Beraisa would be a case of an object deposited with a Shomer, the defendant indeed would be obligated to take an oath according to the ruling of the Rambam. The Rambam's opinion is consistent with the simple understanding of the verse, since the verse cited by the Beraisa discusses specifically the Shevu'ah of Modeh b'Miktzas. However, according to the Rambam, why does Rebbi Aba bar Mamal assume that this case poses a question on Rebbi Chiya bar Aba? Rebbi Chiya bar Aba agrees that in the case of a minor who claims that his Pikadon was stolen, the defendant must take an oath!
</p><p>
<b>ANSWER:</b> The <b>PNEI YEHOSHUA</b> answers that the Rambam's ruling that a Shomer must take an oath to a minor does not follow the opinion of Rebbi Chiya bar Aba, but rather it follows the opinion of Rebbi Chiya bar Yosef (106b, 107a) who rules that 'Eiruv Parshiyos Kasuv Kan' -- 'a mixture of topics is written here' (see Background to Sanhedrin 2:43). According to this opinion, the topics in the verse (Shemos 22:8) -- Shomer Chinam, and Modeh b'Miktzas in the case of a loan -- were mixed in order to learn Halachos from one topic to the other. (See <b>RASHI</b> to 107a, DH Eiruv.)
</p><p>
Accordingly, the Rambam maintains that the verse, 'When a man gives to his friend money or utensils to guard' (Shemos 22:6), from which the Beraisa derives that the law applies only when a <i>man</i>, but not a <i>minor</i>, gives a deposit to his friend to guard, refers only to a loan and not to a Pikadon. Since the Halachah follows the view of Rebbi Chiya bar Yosef, if a minor entrusted a deposit with a Shomer, the Shomer may be obligated to take an oath based on the minor's claim.
</p><p>
(See the Pnei Yehoshua who says that nevertheless one does not pay Kefel based on the claim of a minor. See also <b>BI'UR HA'GRA</b> (CM 96:4) who gives the Pnei Yehoshua's answer in a few concise words.) (D. Bloom)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>MUST THE SHOMER PARTIALLY DENY THE CLAIM? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Chiya bar Yosef):</font></b> This verse does not apply to the
          Parshah in which it was written (Shomrim), rather
          elsewhere, by loans.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why should the oath about loans apply to only
          when there was partial admission, the oath of Shomrim
          always applies?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> This is like Rabah taught;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah):</font></b> The Torah obligates a borrower to swear
               (when he partially admits to the claim) because it
               is human nature that a borrower is not brazen enough
               to (fully) deny the lender's claim;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If not for this, he would deny the entire claim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Because borrowers are not brazen, he would like
               to admit to the full claim;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He denied part of it to stall until he has the
                    money to pay the loan.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The Torah imposed the oath on him, in order that
               he will admit to the full claim.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> A Shomer is brazen enough to deny the claim, so
               he swears even by full denial.
<br>
<br>

sjt:
<font><b>1) THE SOURCE THAT ONE WHO DENIES OWING MONEY IS EXEMPT FROM TAKING AN OATH</b></font><b>
<br>QUESTION:</b> Rabah asks, 'Why does the Torah say that one who admits to part of a claim must swear? It is because of a Chazakah that a person is not so brazen in the face of his creditor. He really wanted to lie and deny everything, but he would not be so brazen to do so. Instead, he reasons that if he admits to owing everything, the claimant will demand everything now, but if he evades part of the claim now, he will have time to get the rest of the money together and pay him later.'
</p><p>
The <b>RASHBA</b> explains that Rabah's question was that if one who denies <i>everything</i> is exempt from an oath according to Torah law, certainly one who partially admits should be exempt from an oath.
</p><p>
This reasoning, however, is problematic. Once the Torah obligates one who partially admits to swear about the rest of the claim, we should reason that certainly one who denies owing anything should be obligated to swear that he does not owe anything! (<b>RASHBA</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> answers that since the Torah does not discuss the full denial of a claim but teaches only that a partial denial obligates one to swear, it must be that a full denial exempts one from swearing. If one would have been obligated to swear when he denies owing anything, the Torah would have taught that a full denial obligates one to swear, and we would know that certainly a partial obligates one to swear. We would have reasoned that the defendant is not telling the truth when he admits to part of the claim, but rather he is lying in a cunning way. If one knows that he does not have to swear when he admits to part of a claim, he will always make such an admission when he owes money in order to avoid owing the rest of the money without having to swear. Therefore, had the Torah said that a full denial obligates one to swear, we would have said that a partial denial also obligates one to swear. Since the Torah states instead that a partial denial obligates one to swear, it is clear that there is no obligation to swear for a total denial.
</p><p>
However, the Rashba points out that this explanation is difficult. A partial denial always presents the possibility that the defendant is telling the truth (based on the reasoning that if he wanted to lie, he would have denied owing everything). Since the Torah states that one who did not deny everything still must swear, there is no reason to assume that one who denies everything should not have to swear.
</p><p>
(b) The Rashba quotes others who explain that the source that one who denies a claim in its entirety is exempt from swearing is the rule that a single witness can obligate a defendant to swear (Shevu'as Ed Echad). This rule implies that without a single witness, one who denies a claim does <i>not</i> have to swear. The case of a single witness obviously does not involve a defendant who partially denies a claim, because in such a case even without the witness he is obligated to swear because of his partial denial. The Rashba states that it is possible that the law of a single witness was needed only in cases where there were monetary technicalities that would not obligate an oath (for example, where the denial is less than the minimal amount required for an oath of partial admission). However, he concludes, it seems incorrect to say that the entire law of Shevu'as Ed Echad only applies in a few exceptional cases of small claims. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MODEH B'MIKTZAS</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'> (Rabah):</font></b> The Torah obligates a borrower to swear
               (when he partially admits to the claim) because
               there is a Chazakah (of human nature) that a
               borrower is not brazen enough to (fully) deny the
               lender's claim;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If not for this, he would deny the entire
                    claim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Because borrowers are not brazen, he would like to
               admit to the full claim. He denied part of it to
               stall until he has the money to pay the loan. The
               Torah imposed the oath on him, in order that he will
               admit to the full claim. A Shomer is brazen enough
               to deny the claim, so he swears even for full
               denial.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Bava Metzi'a 3a (R. Chiya - Beraisa):</font></b> If Reuven
               claimed 100 from Shimon, and Shimon totally denied
               it, and witnesses testify that he owes 50, he pays
               50 and swears that he owes no more.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> His own admission should not be stronger than
               witnesses (Modeh b'Miktzas must swear about the
               rest)!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 5a:</font></b> Every day people used to deposit animals with
               Levi (a shepherd), with witnesses. One day they gave
               to him without witnesses. He denied receiving the
               animals. Witnesses testified that he ate two of the
               animals.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> R. Zeira:</font></b> According to R. Chiya, Levi must swear
               about the rest.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Shevuos 40b (Rav Nachman):</font></b> If Shimon totally denied
               a claim, he must swear a (mid'Rabanan) oath called
               Heses.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> There is a Chazakah that one would not claim if he
               were not owed.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Objection:</font></b> Just the contrary, Chazakah says that one
               is not so brazen to deny owing his creditor!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer:</font></b> He intends to pay. He just wants to stall
               until he can pay.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Idi bar Avin):</font></b> One who denies a loan is
                    not disqualified from testifying. (We assume
                    that he merely wants to stall.) One who denies
                    a deposit is disqualified from testifying
                    (surely he intends to steal it).
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Bava Metzi'a 5b - Question (Rami bar Chama's
               Beraisa):</font></b> The four Shomrim swear only when they
               partially deny and partially admit to the claim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Why don't we say that since (he denies a
                    deposit and) he is suspected to steal, he is
                    suspected to swear falsely!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer:</font></b> There, he is not suspected of stealing. He
               merely wants to stall until he finds the thief (if
               it was stolen) or finds the animal (if it was lost).
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question:</font></b> If so, why is one who denies a deposit
               disqualified from testifying? Perhaps he is just
               stalling!
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer:</font></b> He is disqualified only when witnesses
               testify that when he denied it he knew that it was
               in his house, or he was holding it.
<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 (Bava Kama 9:28) bring Rabah's
               teaching.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> There is a Chazakah that one is not brazen
               enough to deny the claim of his creditor who knows
               that he is lying. Likewise, one cannot totally deny
               one who deposited with him. The Gemara mentioned a
               creditor, because loans entail only claim, admission
               and denial. Partial admission does not require
               brazeness. Therefore, there is no Migo (that he
               could totally deny the claim). Regarding a loan, the
               creditor knows that he is lying. One can brazenly
               lie about claims that apply only to deposits (since
               the depositer does not know what happened).
               Therefore, one is liable (to swear) even for full
               denial. If he were exempt, also Modeh b'Miktzas
               would be exempt due to a Migo, since he could
               totally deny without need to be brazen.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri (Bava Metzi'a 1:10 DH Af):</font></b> Even
                    if the deposit was in the Shomer's premises
                    when he denied it, he is not disqualified.
                    Perhaps he needed to use it temporarily.
                    However, if he swore and then witnesses said
                    that he was liable, he is disqualified.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 1:1):</font></b> If David claimed
               Metaltelim from Levi, and Levi admitted to part, he
               pays it, and swears about the rest mid'Oraisa.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Maimoniyos (1):</font></b> The Ri of Korvil asked,
                    according to Ula who says that Shibud is
                    mid'Oraisa, why does one swear Modeh b'Miktzas?
                    We do not swear about debts with a lien on
                    land! We must say that the borrower has no
                    land, or the lender pardoned his lien.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ran (Shevu'os Reish 24b):</font></b> If David claimed from
                    Levi 'you owe to me a loan of 50, and 50 for
                    wounding me' (in a case in which we believe
                    David to swear about the inhjury and collect),
                    before David swore about the injury, if Levi
                    denied everything, David swears and collects
                    for the wound. Levi is exempt from Modeh
                    b'Miktzas, because David did not have a claim
                    of money, only a claim that leads to money.
                    Perhaps David will not swear! After David
                    swore, if Levi still denies everything, he must
                    swear. This is like R. Chiya's law, in which
                    Levi denies everything and two witnesses
                    testify that he owes half. We are like
                    witnesses that Levi really owes for the
                    wounding, since David already swore.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Tosfos (107a DH Eruv):</font></b> The Riva says that 'Ki Hu
               Zeh' (which obligates one who partially admits to
               swear) refers to a loan. Also regarding a deposit,
               it applies only to claims that apply to loans
               (admission and denial). One can be brazen about a
               claim of Ones, therefore, he must swear even without
               admission. If one who did not admit were exempt,
               also one who partially admitted would be exempt, due
               to a Migo. However, one who denies (receiving the
               deposit) is exempt due to a Gezeras ha'Kasuv, even 
               when he could be brazen.
<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 87:1):</font></b> If David claimed from Levi
               money or an object that Levi could have kept by
               claiming that he never received it, he returned it,
               or bought it from him, and Levi admitted to part, he
               must swear mid'Oraisa.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rashba (2:206, cited in Beis Yosef 75 DH Kosav
                    ha'Rashba):</font></b> If David claimed 100, and Levi
                    first said that he never borrowed, and later
                    claims that he borrowed only 50 and paid it, he
                    is established to be a Kafran (liar). He must
                    pay the 50 (his initial denial is like
                    admission that he did not pay it). We can
                    investigate whether or not he must swear about
                    the rest. It seems that he is exempt, for he
                    never admitted that he owes.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (1):</font></b> The Shulchan Aruch excludes cases in
                    which Levi could not keep the money. E.g. if
                    David lent to Levi and said 'pay me back only
                    in front of witnesses', or there are witnesses
                    that he deposited an object with him, or Beis
                    Din saw that Levi has the object, Levi could
                    not make these claims. The same applies if
                    David claims things that are normally lent or
                    rented, and witnesses saw that Levi has it.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (3):</font></b> The Ir Shushan says that the reason
                    for Modeh b'Miktzas is that the borrower wants
                    to evade the lender until he will be able to
                    pay. People are suspected about (trying to
                    steal) money, but not to swear falsely. This is
                    wrong. The Gemara concluded that people are as
                    careful about theft as about false oaths. The
                    Tur says so (92:5). Rather, the borrower
                    intends to pay later. The Torah forces him to
                    swear now. Surely, he will not swear (falsely). 
                    One who totally denies is exempt, for one who
                    owes cannot totally deny. Chachamim enacted
                    Shevu'as Heses, lest he has a Safek old debt
                    against the lender (and totally denies, for
                    perhaps he does not owe). He will not swear if
                    he is unsure.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (1):</font></b> The Shulchan Aruch teaches that one
                    swears not only regarding money. Rather, even
                    regarding a deposit, perhaps he stalls, like it
                    says in Bava Metzi'a (5b). Tosfos (5a DH l'Man)
                    says that perhaps stalling applies even to land
                    (he gave it for collateral, and plans to redeem
                    it).
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Gra (8):</font></b> Rashi explains that one cannot be
                    brazen to one who helped him (lent him). Tosfos
                    disagrees, for if so one can be brazen to a
                    depositor, and one who partially admits to a
                    deposit should be exempt, since he could have
                    totally denied! R.Tam explains that he lacks
                    the audacity. The Riva says that this is only
                    when the claimant knows that he is lying. The
                    Gemara said that according to R. Chiya, Levi
                    must swear about the rest. This shows that
                    normally, one who denies a deposit is exempt.
<br>

<p>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rami bar Yechezkel):</font></b> The four types of Shomrim, a
          Shomer Chinam, borrower, Shomer Sachar or renter, swear
          only when there is partial denial and partial admission.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rava):</font></b> He learns about a Shomer Chinam from 'Ki Hu
          Zeh', which is written in the Parshah of Shomer Chinam;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He learns about a Shomer Sachar from a Gezeirah
               Shavah 'Nesinah-Nesinah' from a Shomer Chinam;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Regarding a borrower it says 'v'Chi (and when)
               one will borrow' - the 'Vav' equates this law to the
               previous Parshah (a Shomer Sachar);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Tana'im argue about whether a renter is like a
               Shomer Chinam or a Shomer Sachar;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In either case, we learned that he swears only if
                    there was partial admission.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>TAKING A DEPOSIT FOR ONE'S OWN USE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Chiya bar Yosef):</font></b> One who claims that a deposit was
          stolen pays Kefel only if he was Shole'ach Yad (took it
          for his own needs).
<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:</font></b> 'The Shomer will come to the judges, (to swear)
          that he was not Shole'ach Yad... (For any negligence, he
          pays Kefel)' implies that if he did take it, he pays
          Kefel.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> This (Kefel) is only if he was
               Shole'ach Yad.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Chiya bar Aba citing R. Yochanan):</font></b> The case is, the
          deposited animal is at the feeding trough (he did not
          take it).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (R. Zeira):</font></b> Does R. Yochanan teach that had he
          been Shole'ach Yad, he would be a Gazlan (not a Ganav),
          therefore he would not pay Kefel;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Or, does he teach that even if it is at the
               feeding trough, if he (falsely) claims that it was
               stolen, he pays Kefel?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	R. Chiya bar Aba:</font></b> I did not hear about this, but I
          heard a similar case.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Asi citing R. Yochanan):</font></b> If a Shomer (claimed
               and) swore that the deposit was lost, then he swore
               that it was stolen, and witnesses later testified
               that he had it, he does not pay Kefel.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> This is because he acquired the
               deposit through his first oath (and owes only
               principal. From then, it is considered his object,
               so he cannot pay Kefel for it.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. Rather, once he swore (that it was
          lost), he is not obligated to swear again, so the second
          oath is not like a Shomer's oath to obligate Kefel.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Support (R. Avin citing R. Yochanan):</font></b> If a Shomer swore
          that the deposit was lost, then he swore that it was
          stolen, and witnesses later testified that he had it, he
          does not pay Kefel, because he was obligated to swear
          only once.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Sheshes):</font></b> If one claims that a deposit was stolen,
          and he took it (before he swore), he is exempt (from
          Kefel).
<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 (Shomer) will come to the judges, if he
          did not Shole'ach Yad in his fellowman's object' implies
          that if he did take it, he is exempt (from Kefel).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Rav Nachman):</font></b> He must make three oaths: that
          he was not negligent, that he was not Shole'ach Yad, and
          that it is not in his domain!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The oath that he was not Shole'ach
               Yad is like the oath that it is not in his domain.
               Just like regarding the oath that it is not in his
               domain, if it is found that he swore falsely, he
               pays Kefel (for really, he stole it) - also,
               regarding the oath that he was not Shole'ach Yad!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Rav Sheshes):</font></b> No, the oath that he was not
          Shole'ach Yad is like the oath that he was not negligent;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like if he swore falsely that he was not
               negligent, he (is like a Gazlan, who) does not pay
               Kefel, also regarding the oath that he was not
               Shole'ach Yad!
<br>

<p>

sjt:
</p><p>
<font><b>2) THE DIFFERENCE BETWEEN A FALSE OATH FOR 'KEFEL' AND FOR 'KORBAN'</b></font><b>
<br>QUESTION:</b> The Gemara quotes Rebbi Chiya bar Yosef who says that a Shomer who falsely contends that the object he was asked to watch was stolen is not liable to pay Kefel unless he used the object himself (before he swore that it was stolen; see <b>RASHI</b> DH Ad).
</p><p>
Rebbi Chiya bar Aba says that Rabbi Yochanan disagrees and maintains that even if the Shomer did not misappropriate and use an animal deposited with him for safekeeping, if he swore falsely that it was stolen he must pay Kefel. Rebbi Zeira asks Rebbi Chiya bar Aba to clarify Rebbi Yochanan's position. Does he mean that the obligation of Kefel applies only when the animal was not used? The reasoning for such a position would be that if the animal was used, the Shomer might acquire the animal just as a thief sometimes acquires a stolen object. It is possible that if he subsequently took a false oath, he would not become liable for Kefel since he now owns the animal (see Rashi DH Aval Shalach). On the other hand, perhaps Rebbi Yochanan means that he is liable even for Kefel if he did not use it improperly, and he certainly is obligated if he had used it without permission.
</p><p>
Rebbi Chiya bar Aba answers that he did not hear the answer to this particular question, but he heard a similar Halachah. Rebbi Asi in the name of Rebbi Yochanan discussed the following case. A Shomer claimed that the object he was supposed to watch had been lost and he swore to that effect. Afterwards, he asserted -- and swore -- that the object has actually been stolen. Witnesses eventually came forward and testified that the Shomer himself had stolen it. Rebbi Yochanan says that the Shomer is exempt from paying Kefel.
</p><p>
Rebbi Chiya bar Aba suggests that the reason for this Halachah must be that the Shomer acquired the object with the first false oath that he took. This proves that he acquires the object and therefore no longer has to pay Kefel. Rebbi Zeira rejects this reasoning and argues that the Shomer is exempt because he fulfilled his obligation to the owner with his first oath (that the object was lost).
</p><p>
Rashi (DH Lo) explains that since the Shomer took the oath in the first Beis Din, he no longer has any obligation to the owner. The second oath is not an oath enforced by the judges, and therefore it cannot obligate him to pay Kefel.
</p><p>
However, this appears to contradict an earlier Gemara. Rav Hamnuna (106a) cites a Beraisa which discusses the case of a person who made his friend take an oath that he had not stolen from him. His friend said that he was innocent and swore to this effect. The claimant was not convinced, and he made his friend swear again and again, for a total of five times. It was later revealed that he indeed had stolen the object. The Beraisa rules that the 'friend' is liable for each false oath (whether he took the oaths inside or outside of Beis Din). According to the reasoning above, why does the Gemara there not say that he is exempt from liability for the subsequent oaths because he already fulfilled his obligation to the owner with the first oath?
</p><p>
<b>ANSWER:</b> The <b>HAGAHOS HA'BACH</b> here (#2) makes a distinction between the obligation to bring a Korban for a false oath and the obligation to pay Kefel. The Gemara earlier (106a) refers to the obligation to bring a Korban for a false oath. For that obligation it makes no difference whether the Shevu'ah was made inside or outside of Beis Din. The Torah says, 'For everything about which he has sworn falsely... he shall bring his Korban Asham to Hash-m' (Vayikra 5:24), which implies that one must bring a Korban for every false Shevu'ah that he makes.
</p><p>
In contrast to the obligation to bring a Korban Shevu'ah, one pays Kefel only after he makes a Shevu'ah which Beis Din obligated him to make (see 63b). Once Beis Din has demanded that he make a Shevu'ah, they cannot obligate him again since he has already exempted himself (through the first Shevu'ah) from any liability to the claimant. (Even if Beis Din mistakenly instructs him to make another Shevu'ah, it does not make a difference with regard to the obligation of Kefel.) (D. Bloom)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THINGS THAT ONE MUST GIVE AWAY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Continuation of Mishnah #1):</font></b> (Even) if Shimon told his
          son David 'my property is Konam (like a Korban, which one
          may not benefit from) to you'; David inherits him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'my property is Konam to you in my
               life and after death', David does not inherit him.
               His portion reverts to his (father's or own) sons or
               brothers;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If David does not want (or cannot afford) to lose
               his portion, he borrows this quantity, and the
               creditors collect it from his share of the
               inheritance.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Rav Yosef):</font></b> (If one stole from his father,
          and he knows of no other heirs to give it to,) he must
          get rid of the theft. He may even put it in the Tzedakah
          box.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> He must say 'this is what I stole from my
          father.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why can't he keep the money (if he is the
          sole heir)? He can pardon himself!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah #2):</font></b> If the owner pardoned the thief
               from paying the principal, but not from the Chomesh
               (the thief need not travel to return what he owes).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This shows that the theft can be pardoned!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (R. Yochanan):</font></b> Mishnah #2 is like R. Yosi
          ha'Glili, who holds that theft can be pardoned. Mishnah
          #1 is like R. Akiva, who holds that it cannot be
          pardoned.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yosi ha'Glili) Question:</font></b> Why does
               it say 'if the man has no redeemer (heir) to whom to
               return the theft'? Every Yisrael has heirs!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, the verse discusses a convert;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Reuven stole from a convert and swore falsely to
                    him. He heard (a false report) that the convert
                    died. He wanted to repent. He was taking the
                    money (to give to the Kohanim) and his Asham to
                    Yerushalayim; he met the convert on the way. 
                    The convert agreed that the theft should be
                    like a loan. The convert died; Reuven keeps the
                    money.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Akiva says, he may not keep the theft.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Summation of answer:</font></b> R. Yosi (ha'Glili) holds
               that theft can be pardoned, and R. Akiva holds that
               it cannot. Neither distinguishes between pardoning
               oneself or another person.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b>Really, R. Yosi holds that Reuven keeps it even if
               the convert never made it a loan. The Beraisa
               discusses when he made it a loan to teach the
               extremity of R. Akiva's opinion, that even if he
               made it a loan, Reuven cannot keep it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Sheshes):</font></b> If so, R. Yosi should teach
          that a thief can pardon himself, and all the more so we
          would know that one can pardon another, and R. Akiva
          should teach that one cannot pardon another, and all the
          more so one cannot pardon himself!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Rav Sheshes):</font></b> Both Mishnayos are like R.
          Yosi. One can pardon only another, but he cannot pardon
          himself.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, why can the thief keep the money
               (in the Beraisa)?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It was converted to a loan.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #3 (Rabah):</font></b> Both Mishnayos are like R. Akiva.
          One cannot pardon himself, but he can pardon others.
<br>
<br>

sjt:
<font><b>1) A SON WHO STEALS FROM HIS FATHER</b></font><b>
<br>QUESTION:</b> The Mishnah (108b) discusses a case of a son who steals from his father and swears falsely that he did not steal. Afterwards, the father dies and the son admits to the theft. The Mishnah rules that he must pay the Keren (principle) and Chomesh (additional fifth) to the other heirs of his father.
</p><p>
<b>RASHI</b> (DH Harei) explains that although the son inherits his father (and thus one might argue that he need not pay anything), he nevertheless is obligated to fulfill the Mitzvah of Hashavas ha'Gezeilah, returning the stolen property. Therefore, the son may not keep even his share of the money that he stole, and he must return all of the money to his father's other heirs.
</p><p>
In the Gemara (109a), Rav Yosef states that if the father has no other heirs to whom the thief can return the money, he may give the money to Tzedakah. The <b>MAHARSHA</b> in <b>MAHADURA BASRA</b> explains (on the comments of Rashi DH v'Afilu l'Arnaki) that Rav Yosef does mean that the father actually has no relatives who inherit him, because only a convert has no relatives. Rather, he means that the son cannot <i>find</i> the relatives and does not know to whom he can return the money.
</p><p>
The Gemara asks, why does the son have to give the money to Tzedakah? Why can he not pardon the debt to himself? Rashi (DH v'Nimchelei) explains that in a case where the thief is the only son of his father, the money he owes to his deceased father automatically becomes his. Accordingly, why must he give the money to Tzedakah?
</p><p>
Why does the Gemara wait to ask this question until after Rav Yosef says that he must give the stolen money to Tzedakah? The Gemara should ask this question immediately on the Mishnah which states explicitly that even when there are no other brothers, the thief must give the stolen money to his uncles, even though he is his father's sole heir.
</p><p>
<b>ANSWER:</b> The <b>PNEI YEHOSHUA</b> answers that if not for Rav Yosef's statement, one might have thought that immediately after the father dies the Torah removes from the son any rights of inheritance of anything in his hands which he had stolen from his father, and it grants the rights of inheritance to the father's other relatives. Since the money automatically goes to his father's other heirs, the son cannot pardon the debt to himself. However, when Rav Yosef states that the son must give the money to charity, this proves that one cannot say that the Torah removes his rights of inheritance from the stolen money and grants it to his father's other relatives. If this were the case, there would be no reason for him to give the money to charity. Rather, he would be obligated to entrust the money to Beis Din who would hold the money until the nearest relatives of the father would be located and could come to collect the money. This is why the Gemara asks its question that the son should be able to pardon the money to himself, only after the statement of Rav Yosef. (See Maharsha in Mahadura Basra to Rashi DH v'Nimchelei.) (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>CAN ONE PARDON 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'> 108b (Mishnah #1):</font></b> If Reuven stole from his father,
               swore falsely to him, and his father died, he pays
               principal and Chomesh to his (Rashi - father's;
               Tosfos - own) children or brothers, and brings an
               Asham.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> (Really, since he inherits his father, some (or all)
               of the payments should revert to him. However, he
               must remove the entire theft from his Reshus.) If he
               does not want (or lacks the money) to pay the share
               he should inherit, he borrows this amount, and the
               creditors collect it from his share of the
               inheritance.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Yosef):</font></b> (If one stole from his father, and he
               knows of no other heirs to give it to,) he must get
               rid of the theft. He may even give it to Tzedakah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> He must say 'this is what I stole from
               my father.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Why can't he keep the money? He can pardon
               himself!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah #2):</font></b> If the owner pardoned the thief
                    from paying the principal (the thief need not
                    travel to return what he owes).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> This shows that the theft can be pardoned!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #1 (R. Yochanan):</font></b> Mishnah #2 is like R. Yosi
               ha'Glili, who holds that theft can be pardoned.
               Mishnah #1 is like R. Akiva, who holds that it
               cannot be pardoned.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Yosi ha'Glili):</font></b> Reuven stole from
                    a convert and swore falsely to him, and <i>heard</i>
                    that the convert died. He was taking the money
                    to give to the Kohanim, and met the convert on
                    the way. If the convert agreed that the theft
                    be like a loan, and he died, Reuven keeps the
                    money.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Akiva says, he may not keep the theft.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Summation of answer:</font></b> They argue about whether
                    theft can be pardoned. No one distinguishes
                    pardoning oneself or pardoning another!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Objection (Rav Sheshes):</font></b> If so, R. Yosi should teach
               that a thief can pardon himself (and all the more so
               another), and R. Akiva should teach that one cannot
               pardon another (and all the more so, himself)!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #2 (Rav Sheshes):</font></b> Both Mishnayos are like R.
               Yosi. One can pardon only another, but he cannot
               pardon himself. In the Beraisa, the thief keeps the
               money because it was converted to a loan.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #3 (Rabah):</font></b> Both Mishnayos are like R. Akiva.
               One cannot pardon himself, but he can pardon others.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question:</font></b> This implies that R. Yosi holds that one
               can pardon even himself. If so, when did the Torah
               obligate to give Gezel ha'Ger (what was stolen from
               a convert who later died) to Kohanim? (He can pardon
               himself!)
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer (Rava):</font></b> He stole from a convert, swore, and
               admitted after the convert died. When he admits,
               Hash-m acquires the theft (for the Kohanim).
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Kesuvos 81b (Beraisa):</font></b> Reuven owed money to his
               brother Levi. Levi died and his wife fell to Yibum.
               Reuven cannot say 'since I inherit, the money will
               stay by me.' Rather, we take the money, buy land
               with it, and he eats the Peros.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> 85b:</font></b> A relative of Rav Nachman sold collection
               rights to her Kesuvah. She was divorced, and then
               died. The buyer came to collect from her daughter.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Rav Nachman:</font></b> She can pardon her father's obligation
               to pay her mother's Kesuvah (and then she will
               inherit that money from her father)!
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Ramban (Sefer ha'Zechus Kesuvos 40b DH u'Batel):</font></b> The
               case of the Yavam merely teaches that seizure does
               not exempt him. Indeed, according to Shmuel he can
               pardon to himself, and is liable due to Garmi. Or,
               perhaps we learn from here that one cannot pardon to
               himself, for there is a lien on the property. Pardon
               to oneself does not uproot the lien mid'Oraisa, and
               not mid'Rabanan. If a woman sold her Kesuvah and
               died, her son who inherits his father cannot pardon
               to himself.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 8:4):</font></b> If one stole from a
               convert, swore, then admitted and converted the
               obligation to a loan (set a date for payment) and
               then the convert died, even though he merits that
               the theft belongs to him, he must remove it from his
               possession.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad:</font></b> This is like R. Akiva.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (5):</font></b> This is when he admitted. If one stole
               from a convert, swore to him, and then the convert
               died, he must pay principal and Chomesh to Kohanim
               of the Mishmar, brings an Asham and gets atonement.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad:</font></b> Even if he admitted, if he did not
                    convert the obligation to a loan, he must give
                    everything to Kohanim according to R. Akiva.
                    The Gemara said differently only according to
                    R. Yosi ha'Glili.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> The Rambam explains that
                    converting the obligation to a loan does not
                    help according to either Tana. R. Yosi ha'Glili
                    always holds that he keeps it, and R. Akiva
                    says that it suffices to remove it from his
                    possession, but he need not give it to Kohanim.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Mishneh l'Melech:</font></b> R. Yosi ha'Glili holds that
                    even if if he did not convert it to a loan, he
                    can pardon to himself and acquire. The Gemara
                    asked how Gezel ha'Ger applies according to
                    him! The Ra'avad holds that R. Akiva's law is
                    only when he converted it to a loan.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Kesuvos 9:10):</font></b> Rashi explains that Rav
               Nachman's relative sold her Kesuvah, and the buyer
               claimed from her daughter, who came to collect her
               mother's Kesuvah from her father. This is difficult.
               Surely, when her mother sold her Kesuvah, she gave
               the document to the buyer and wrote him a sale
               document. Her father will pay only one who will
               return the Kesuvah document to him! Rather, also her
               father died, and she was the only heir. We learn
               that even in such a case that it was initially hers,
               she can pardon to her father and acquire in place of
               him. The Gemara in Bava Kama similarly asked that
               one who stole from a convert should be able to
               pardon to himself.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Kosav Ba'al ha'Terumos):</font></b> Sefer
                    ha'Terumos (51:6:6) explains like Rashi. We do
                    not learn about pardoning to oneself from the
                    daughter. We learn only from Bava Kama. Only R.
                    Yosi says that one can pardon himself. The
                    Halachah follows R. Akiva. The Rambam rules
                    like R. Akiva. The Ramban distinguishes. In
                    Bava Kama, he inherited his father's money.
                    Here, his father sold the property, so the son
                    cannot uproot the lien.
<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 66:23):</font></b> One who sold a loan
               document can pardon it. Even his heir can pardon it.
               However, an heir cannot pardon to himself to make
               the buyer lose. E.g. if Reuven lent to his son Levi
               in a document, and sold it to Shimon, and Reuven
               died, Levi cannot say 'since I inherit, I make
               Chazakah to pardon to myself. I need not pay due to
               Garmi, for I did not intend to hurt the buyer,
               rather, to exempt myself.' Rather, he pays the full
               debt to Shimon.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (98):</font></b> This is like Kesuvos 81b and R.
                    Akiva. It explains Kesuvos 85b like Rashi (her
                    father was alive).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (59):</font></b> If the heir could pardon to himself,
                    he would be exempt, for he did not intend to
                    hurt the buyer. However, he cannot, for he
                    himself borrowed. He must pay the debt, even
                    according to the opinion (in the Rema, Sa'if
                    32) that normally obligates paying only the
                    money paid for it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Some disagree and say that
               one can pardon even to himself.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (100):</font></b> This is like the Rosh, who says that
                    her father died. It explains Kesuvos 81b like
                    Tosfos (DH Lo. The Yavam could not pardon to
                    himself, for he inherited only due to her. Or,
                    the Tana holds like R. Meir, who obligates
                    paying the full amount of the document due to
                    Garmi, so he would not gain from this.) It
                    holds that the Halachah follows R. Yosi
                    ha'Glili. This is difficult. The Halachah
                    follows R. Akiva against one colleague!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (60):</font></b> This opinion holds that he is like
                    anyone else who pardons, even though he did not
                    intend to harm. They argue about whether he
                    pays the full debt, or the money he received.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Shach 81):</font></b> The Shulchan Aruch holds
                    that this opinion totally exempts, since he did
                    not intend to harm. Also the Bach says so.
                    Sefer ha'Terumos brings the Ramban, but
                    concludes that we obligate paying only when one
                    intended to harm.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (82):</font></b> This opinion is primary. However,
                    he must pay due to Garmi. One is liable for
                    Garmi even without intent to harm. The buyer
                    cannot be Toref Meshubadim (collect land that
                    the heir sold), for the debt is not from when
                    he bought, rather, from the time of pardon, so
                    he is not Toref due to his document. Also, the
                    heir is believed to say 'I paid you what I
                    owe.' Also, if the heir was a minor, he is
                    exempt even after he matures. If a married
                    woman (inherited her father) and there was a
                    loan document against him, she can pardon it
                    and need not pay due to Garmi until she is
                    widowed or divorced, for her husband acquires
                    whatever she acquires. Shiltei ha'Giborim
                    permits counseling an heir to pardon to help
                    the heir. However, a judge should not do so.
<br>

<p>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Inference:</font></b> R. Yosi holds that one can pardon even
          himself!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If so, when did the Torah obligate to give
          Gezel ha'Ger (what was stolen from a convert who later
          died without heirs) to Kohanim? (He can pardon himself!)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The case is, he stole from and swore
          falsely to a convert, then confessed after the convert
          died. When he confesses, the theft is acquired to Hash-m,
          i.e. it must be given to Kohanim.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>GEZEL HA'GER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> If Reuven stole from a female
          convert (and she died), what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It says '(if the) man (who was robbed has no
               heirs)' - the law applies only to a man;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps the Torah normally speaks this way
               (it does not come to exclude women)?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Aharon - Beraisa) Question:</font></b> Perhaps Gezel
          ha'Ger applies only to (stealing from) a 'man (convert)'.
          What is the source to include even from a female?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 - Answer:</font></b> 'To return (the theft...)
               that is returned' - the Torah discusses two
               returnings (to male and female converts).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2 - Answer:</font></b> '(To return the theft to
               him, the theft) that is returned' - the Torah
               discusses two thefts.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If so, why does it say 'man'?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Regarding a man, you must investigate
               whether or not he has heirs (children). A minor
               surely has no children.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'To Hash-m, to the Kohen' - Hash-m acquires
          the theft and gives it to a Kohen of the division serving
          that week (when the thief returns it).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps the thief may give it to any
               Kohen he wants!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> 'Except for the ram of atonement with
               which he will atone for him' - the Torah discusses a
               Kohen in that division (who could offer the Asham).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa) Question:</font></b> If a Kohen stole from a convert,
          what is the source that he cannot say 'since I am a
          Kohen, I may keep it'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Kal va'Chomer should teach that he may keep it!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #1:</font></b> A Kohen receives what others stole.
               All the more so, he should keep what he stole!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Version #2A (Rashi - R. Nasan):</font></b> Initially, a
               Kohen (Reuven) has no stake in the Korban of another
               Kohen (Shimon; Shimon may offer it himself if he
               wants), until it comes to Reuven;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Shimon gave it to Reuven to offer, he cannot
                    take it back;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Version #2B (Rashi - R. Nasan):</font></b> Initially, a
               Kohen (Reuven) has no share in Terumah until the
               owner of the produce gives it to him;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Once he receives them, he keeps them; (end of
                    Version #2)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Reuven has a share in Gezel ha'Ger even before it
               comes to Reuven (i.e. if it was given to a Kohen of
               Reuven's division). All the more so, once he has it
               (i.e. what he himself stole), no one should be able
               to take it from him!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The Kal va'Chomer is faulty!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the source (what a Yisrael stole from a
               convert, or a Kohen's Korban, or Terumah) just like
               Reuven initially has no share, also other Kohanim
               initially have no share;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But when Reuven stole from a convert, just like
               Reuven has a share, other Kohanim (of the division)
               also have a share!
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Rather, all Kohanim (of the division) share Reuven's
          theft.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> It says 'a man's Kodoshav will be to him'
          (since a Kohen may offer his own Korbanos, he also gets
          (to keep) the theft)!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case is, Reuven is Tamei (since he
          cannot offer his own Korbanos, he does not get to keep
          the theft).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> We said that he has a share. A Tamei Kohen
          has no share (in what was stolen from a convert)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2:</font></b> We learn a Gezeirah Shavah 'l'Kohen-l'Kohen'
          from an inherited field.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa) Question:</font></b> If Levi made his field
               Hekdesh, and Reuven (a Kohen) redeemed it, what is
               the source that Reuven cannot say 'since if one does
               not redeem his field before Yovel, it is divided
               among the Kohanim, and I am a Kohen, I may keep it?
               A Kal va'Chomer supports me!'
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  A Kohen receives what he did not redeem. All the
                    more so, he should keep what he redeemed!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> 'Like a Cherem field (that is given to
               Kohanim), it will be to the Kohen his inheritance' -
               this is not his inheritance;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rather, it is divided among all the Kohanim in
                    Yovel.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A KOHEN MAY OFFER HIS OWN KORBANOS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Question: What is the source that a Kohen
          can offer his own Korbanos whenever he wants?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> 'He will come with all desire of his soul, and
          serve'.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source that (the reward for)
          offering it (the meat) and the skin are his?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> 'A man's Kodoshav will be to him';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1:</font></b> If he is a blemished Kohen, he gives
               his Korbanos to a Kohen of the division. He himself
               gets the meat and skin.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2:</font></b> If he is a blemished Kohen, he gives
               his Korbanos to Kohanim of the division, they get
               the meat and skin. (end of Version #2.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he is old or sick, he gives his Korbanos to
               any Kohen he wants. Kohanim of the division get the
               meat and skin.
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sjt:
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<font><b>2) THE EARLY GENERATIONS GAVE BIRTH YOUNG</b></font><b>
<br>QUESTION:</b> The Gemara cites a Beraisa that discusses the case of one who steals and swears falsely that he did not. He must return the stolen object to the owner. If, however, the owner is no longer living, the thief must make an effort to locate relatives to whom he can return the money, as the verse states, 'If the man has no relative to whom to return the debt...' (Bamidbar 5:8). The Gemara infers from the verse that the thief must make an effort to locate the relatives only when the person from whom he stole was a 'man,' i.e. an adult. The thief is not obligated to find the relatives of a minor from whom he stole. <b>RASHI</b> (DH Katan) writes that since the minor is not an adult, he certainly has no sons, and therefore the thief gives the money directly to the Kohanim.
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Rashi adds that the Gemara in Sanhedrin (69a) infers from this verse that it is not possible for a minor to have children. This inference is problematic, however, because the same Gemara in Sanhedrin (69b) states that in the early generations, people used to have babies at the age of eight. If it was natural at the time the Torah was given to have children under the age of thirteen, how can the Gemara derive from this verse that a minor cannot have children (such that a thief is not obligated to attempt to locate his descendants)?
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<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> in Sanhedrin (69a, DH b'Yadu'a) answers that earlier generations and the later generations differed with regard to the age at which a person reached maturity. In the later generations, one generally became an adult at the age of twelve for a girl and thirteen for a boy. In the earlier generations, they became adults at a much earlier age. Accordingly, when the Torah excludes a minor, it excludes any minor in any generation. The fact that there was a shift in the age of maturity does not change the definition of the verse.
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(Similarly, the <b>SHITAH MEKUBETZES</b> in the name of <b>ROSH</b> says that in the earlier generations it is possible that men grew beards and women showed signs of physical maturity before the age of eight, signs that they became adults at a much younger age.)
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 (b) The <b>CHIDUSHEI HA'RAN</b> in Sanhedrin answers that there was no major shift in the age of maturity between the earlier generations and later generations. Rather, when the Gemara says that the earlier generations gave birth young, it refers only to exceptional cases, as mentioned in the verses cited by the Gemara there. Even in those days, the vast majority gave birth only after the age of thirteen years and one day. Accordingly, the verse teaches that a thief does not need to be concerned that the minor from whom he stole might be from the very small minority who has children, and thus he is not obligated to search for his descendants. The Ran writes that this is because the laws of the Torah relate only to the majority of cases. (D. Bloom)
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