# dafyomi

lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE ARGUMENT OF R. YOCHANAN AND REISH LAKISH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Regarding a Get, all agree that her Chatzer
          acquires like her hand;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue about a Metzi'ah. R. Yochanan learns from
               Get to a Metzi'ah. Reish Lakish does not.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, all agree that regarding a girl we
          learn from Get to a Metzi'ah (that her Chatzer acquires
          like her hand);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue about a boy. R. Yochanan learns a boy
               from a girl (his Chatzer acquires like his hand),
               Reish Lakish does not.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #3:</font></b> R. Yochanan and Reish Lakish do not argue at
          all. They discuss different things;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1:</font></b> Reish Lakish taught that a boy does not
               acquire through his Chatzer or four Amos. R.
               Yochanan said that a girl acquires through them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2:</font></b> Reish Lakish said that a girl does not
               acquire a Metzi'ah through her Chatzer or four Amos.
               R. Yochanan said that she acquires a Get through her
               Chatzer or four Amos.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ACQUISITION THROUGH A FIELD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven saw people chasing an Aveidah in his
          field, e.g. after a lame deer, or chicks that cannot
          flutter, and said 'my field should acquire for me', he
          acquires;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they were chasing a healthy deer or chicks that
               can flutter, saying 'my field should acquire for me'
               does nothing.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Rav Yehudah):</font></b> This is only when Reuven is
          standing by his field.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> His field should acquire for him (even if he is
          not there)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yosi bar Chanina):</font></b> A man's field acquires for
               him without his knowledge.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> That is only when it is guarded. If not, it
          acquires only if he is there.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source for this?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Beraisa) Suggestion:</font></b> If Reuven was in the city,
          and said 'I know that workers forgot a sheaf in my field.
          It should not be Shichechah (a forgotten sheaf, which
          must be left for the poor)', perhaps it is not
          Shichechah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rejection:</font></b> 'And you will forget a sheaf in the
               field' - when you forget (when you are) in the
               field, but not when you forget in the city.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> The Beraisa said 'one might have thought
               that it is not Shichechah...', which implies that it
               is Shichechah. We expounded the verse to teach that
               in the city it is not Shichechah!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> We expound that when he is in the field, it
               is Shichechah only if it was forgotten from the
               beginning, but not if it was remembered and then
               forgotten;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> What is the reason?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer:</font></b> Since he is there, his field acquires
                    for him.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> When he is in the city, even if he remembered and
               then forgot it, it is Shichechah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> What is the reason?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer:</font></b> Since he is not there, his field does
                    not acquire for him.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps the Torah teaches differently!
               It is Shichechah only when he is in the field, but
               not when he is in the city!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rejection:</font></b> 'Do not return to take it' includes
               Shichechah when he is in the city.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> We need that verse to teach that one who
               takes it transgresses a Lav!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #1:</font></b> It could have said 'do not take it' to
               make it a Lav. 'Do not return' includes Shichechah
               of the city.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> We need 'do not return' to teach a
               different law!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> What is in front (of one harvesting)
                    is not Shichechah. What is in back of him is
                    Shichechah, for 'do not return' applies to it;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> The general rule is, Shichechah is only when
                    'do not return' applies.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer #2 (Rav Ashi):</font></b> 'It will be' includes
               Shichechah of the city.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>MUST ONE BE BY THE FIELD?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Ula and Rabah bar bar Chanah):</font></b> The field acquires only
          when he is standing by it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (R. Aba - Mishnah):</font></b> A case occurred in which R.
          Gamliel was on a boat with R. Yehoshua and R. Akiva. He
          said 'the tithe that I will separate (for Ma'aser Rishon)
          is given to R. Yehoshua. The area it rests on is rented
          to him;
<br>
<br>

sjt:
<font><b>1) THE KINYAN OF 'CHATZER' FOR 'GENEIVAH'</b></font><b>
<br>QUESTION:</b> The Gemara explains that Rebbi Yochanan and Reish Lakish both agree that the Chatzer of a Ketanah acquires a Get for her through the mechanism of 'Yad.' They argue about whether or not a Ketanah also acquires a Metzi'ah with her Chatzer. <b>RASHI</b> explains that according to Reish Lakish, the Kinyan of Chatzer for Metzi'ah is not learned from the Kinyan of Get. Her Chatzer acquires a Get only as a Shali'ach and not as a Yad, as the verse teaches, 'Im Himatzei Timatzei' (Shemos 22:3). Rashi then asks, why does the Torah need to write that a person acquires a stolen object (Geneivah) through a Kinyan Chatzer, if Chatzer works through Shelichus? He answers that one might have thought that the principle of 'Ein Shali'ach l'Devar Aveirah' prevents the Chatzer from acquiring the item for the thief, and therefore the verse is necessary.
</p><p>
Rashi seems to contradict himself. Rashi first writes that the source that a Chatzer acquires an object for an ordinary, monetary Kinyan is the verse 'Himatzei Timatzei.' This implies that one would not have reasoned that a Chatzer is a Shali'ach based on logic alone (since a Shali'ach must be a 'Bar Da'as'; see <b>MAHARAM</b>). However, Rashi concludes that the only reason for why the verse mentions that a thief acquires through Kinyan Chatzer is to teach that the principle of 'Ein Shali'ach l'Devar Aveirah' does not apply. This implies that it is <i>not</i> necessary for the verse to teach that Chatzer acquires like a Shali'ach, for one would have known that without the verse. (<b>RASHASH</b>)
</p><p>
Moreover, Rashi earlier clearly takes the second approach, that without a verse one would have known that a Chatzer works like a Shali'ach. (See Insights to 10:4, and <b>MAHARSHA</b> to Rashi here.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>GILYON</b> (cited by the Shitah Mekubetzes) and the <b>RASHASH</b> explain that Rashi maintains that a verse is necessary to teach that a Chatzer is considered a Shali'ach (not as Rashi earlier writes). When Rashi writes that the verse teaches 'Ein Shali'ach l'Devar Aveirah' does not apply, his intention is not to explain why a verse is necessary altogether, but rather his intention is to explain why the Torah chose to teach that Chatzer works through Shelichus in the case of Geneivah, as opposed to teaching it with regard to other cases of Dinei Mamonos. Rashi answers that it was written with regard to Geneivah to show that even for Geneivah, a Chatzer can be a Shali'ach and the rule of 'Ein Shali'ach l'Devar Aveirah' does not apply.
</p><p>
This answer does not reconcile Rashi's words here with what he writes earlier, that a Chatzer works through Shelichus based on logic alone. Moreover, <b>REBBI AKIVA EIGER</b> (in Gilyon ha'Shas) asks that if a verse would have been necessary to teach either that Chatzer works through Yad or that it works through Shelichus, then why would one have assumed that the verse of Geneivah teaches that Chatzer works through Shelichus? Perhaps it is teaching that Chatzer works through Yad! Even though the Gemara earlier indeed derives from the verse regarding Geneivah that Chatzer works through Shelichus according to Reish Lakish, nevertheless now that there already is a verse (regarding Get) which clearly teaches that Chatzer works through Yad, why should one assume that the verse regarding Geneivah is teaching that Chatzer works in a different manner? Perhaps that verse is teaching that Chatzer acquires through Yad for Geneivah just as it acquires for Get!
</p><p>
(b) Perhaps Rashi is consistent with what he writes earlier (10b) and still maintains that a Chatzer is considered a Shali'ach based on logic alone. Rebbi Akiva Eiger's question is not applicable since it is preferable to learn from the verse that Chatzer works as a Shali'ach for Geneivah (as there is logical basis as well). Although an Aveirah is involved, the verse teaches that in this case it is logically acceptable for a Shali'ach (such as a Chatzer) to accomplish an Aveirah on behalf of the owner.
</p><p>
What, then, does Rashi mean when he writes that the source that Chatzer works for Dinei Mamonos is the verse of 'Himatzei Timatzei'? Rashi's intention is to explain why a verse is necessary for Dinei Mamonos if logic alone would have taught that a Chatzer can be a Shali'ach for Dinei Mamonos. Rashi is answering that although for Dinei Mamonos a Chatzer can be a Shali'ach, one might have thought that a Chatzer cannot be a Shali'ach for Geneivah, since it involves an Aveirah. (When the <b>RAMBAN</b> explains the words of Rashi, he asks why a verse is necessary to teach that a Chatzer can acquire for Geneivah, and he gives the same answer. This also is the way the <b>PNEI YEHOSHUA</b> explains Rashi here in his first explanation.)
</p><p>


<font><b>2) PROOF THAT A 'CHATZER' IS 'KONEH' FROM THE LAWS OF 'SHICHECHAH'</b></font><b>
<br>QUESTION:</b> Rav Yehudah teaches that a 'Sadeh she'Einah Mishtameres' -- a field that is not guarded -- can be Koneh an item for the owner only when he is standing next to his field. The Gemara cites proof for this from a Beraisa which discusses the laws of Shichechah. The Gemara understands that the Beraisa teaches that when a person hires workers to collect the sheaves of grain from the field and the workers forget to collect one of the sheaves, normally that sheaf becomes the property of the poor in accordance with the laws of Shichechah. However, the Beraisa qualifies this and says that if the owner of the field remembers the sheaf which the workers forgot, the sheaf is not Shichechah when the owner is standing next to the field, but when he is in the city (not near his field) the sheaf is Shichechah. The Gemara infers from here that when the owner is standing in, or adjacent to, his field, the field can be Koneh the sheaf for him, and therefore it does not become Shichechah. When the owner is in the city, the sheaf becomes Shichechah because the field cannot be Koneh for the owner (as he is not standing next to it).
</p><p>
The Gemara's comparison is difficult to understand. How can the laws of Kinyanim affect whether or not a sheaf becomes Shichechah? Crops that originally belong to the owner because they grew in his field are always able to become Shichechah! Nevertheless, when a person harvests his crops and forgets a sheaf, the Torah decrees that it becomes Shichechah and exits the ownership of the owner of the field! Why should the Kinyan Chatzer of the owner affect the Halachah of the sheaves that were forgotten by the workers, any more than it affects the Halachah of the sheaves that he forgot himself in a normal case of Shichechah?
</p><p>
Moreover, at what point does the Kinyan Chatzer of the owner take effect on the sheaves which the workers forgot? Before the sheaves become Shichechah, the owner cannot be Koneh them because they are already his. After they become Shichechah, he cannot be Koneh them because they are already the property of the poor people.
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> (DH Ela Lav) seems to understand that the Gemara refers to a case in which the owner never forgot the sheaf, and it was only the workers who forgot it. When the Gemara says that the sheaf 'was first remembered and then forgotten,' it does no mean that the owner later forgot it. Rather, the owner realized that the workers might forget it (perhaps because it was in a remote part of the field), but he himself had it mind the entire time. The workers are the ones who forgot it when they collected the sheaves.
</p><p>
What difference does it make if the owner is standing next to the field or if he is in the city? Apparently, the difference is that when the owner is next to the field, he is viewed as the field's owner with regard to Shichechah. However, when he is in the city, the workers are viewed as the field's owner with regard to Shichechah.
</p><p>
The Gemara assumes that the reason why the actual owner is not viewed as the owner with regard to Shichechah when he is in the city is that he no longer is associated with the field with regard to Kinyanim. If an object of Hefker would fall into the field it would not become his through Kinyan Chatzer. On the other hand, when he is in, or adjacent to, the field, even though he is not actively collecting the sheaves, since the field can be Koneh an object of Hefker for him he is considered the owner with regard to Shichechah as well. Accordingly, when the Gemara says that when the owner is in the city 'he is not near the field such that it could be Zocheh for him,' it does not mean that the field cannot be Zocheh for him the sheaves that were forgotten, but rather it means that the field cannot be Koneh a Metzi'ah for him and therefore he is not considered the owner with regard to Shichechah.
</p><p>
(b) <b>TOSFOS</b> (DH Zachur) explains that the owner himself originally remembered the sheaf and later forgot it. Why should this sheaf be different from any other forgotten sheaf (such as when the owner is collecting the sheaves himself and he forgets one)? Tosfos answers that since the owner still remembered the sheaf even at the moment that the workers forgot it, he may acquire it for himself.
</p><p>
The <b>RAMBAN</b> and <b>RAN</b> explain this further. They write that when workers collect the sheaves for the owner, two requirements must be met in order for a sheaf to become Shichechah: the sheaf must be forgotten both by the owner and by the workers. When the sheaf is forgotten only by the workers but not by the owner, it enters a stage of half-Shichechah, wherein it leaves the possession of the owner but does not yet enter the possession of the poor people. At that stage, since the sheaf does not belong to the owner (since it has left his possession), he is able to acquire it through Kinyan Chatzer (since it is not yet the property of the poor people). If he acquires it at that point, the sheaf is prevented from becoming Shichechah.
</p><p>
(c) The <b>RA'AVAD</b> explains also that the owner himself eventually forgot the sheaf. Nevertheless, if the owner is in the field, his Kinyan Chatzer prevents the sheaf from becoming Shichechah. He explains this as follows.
</p><p>
Shichechah normally takes effect at the moment the owner turns away from the sheaf he forgot to collect. The reason for this is that the prohibition that describes the Mitzvah of Shichechah states, 'You shall not <i>return</i> to collect it' (Devarim 24:19), which implies that the moment one turns away from it while collecting the sheaves, he may not go back to collect it, and it becomes Shichechah. Normally, a sheaf becomes Shichechah only when the owner does not remember it at the time he turns his back to it. The sheaf discussed in the case of the Beraisa does not become Shichechah because the owner remembers it at the time that he turns away, and only later does he forget it. At the time that he turns away -- since that is the point at which Shichechah normally takes effect -- a Kinyan Chatzer can 'acquire' it for him. If, at that point, the sheaf is lying in a place in which the owner could have acquired it had it been Hefker, it is considered as though the sheaf is in his hand. A sheaf that a person is carrying in his hand cannot become Shichechah even if he later forgets it.
</p><p>
The Ra'avad's words are not clear. Why should a Kinyan Chatzer take effect on an object if it did not yet become Shichechah because he did not forget it? If a Kinyan Chatzer does take effect, it should take effect even if the owner <i>does</i> forget the sheaf at the time that he turns away!
</p><p>
Perhaps the Ra'avad means that when the owner remembers the sheaf when he turns away and later forgets it, Shichechah takes effect retroactively from the time that the owner turned away ('mi'Kan ul'Haba l'Mafrei'a,' see Insights to Nedarim 52a). Therefore, at the time that the owner turns away, Shichechah begins to take effect, but it does not take effect completely until later when the owner forgets it. Since Shichechah started to take effect, it is removed from the owner's possession but is not yet in the possession of the poor people (as mentioned above in the name of the Ran), and therefore a Kinyan Chatzer can take effect on it to make as though it is in the hands of the owner. If the owner forgets the sheaf at the time he turns away, then he cannot acquire it through Chatzer since it has already become Shichechah and belongs to the poor people.
</p><p>
In any event, the Ra'avad concludes that if the owner is now in the city, and before he left the field he remembered the sheaf but forgot it after he came to the city, the field no longer can acquire objects for him through Kinyan Chatzer. Therefore, the sheaf is not considered to be in the hands of the owner, and Shichechah can take effect on it.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES A YARD ACQUIRE WHAT IS ALREADY INSIDE IT?</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'> (Ula and Rabah bar bar Chanah):</font></b> One's field acquires
               for him only when he is standing by it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (R. Aba - Mishnah):</font></b> Once, R. Gamliel and
               Chachamim were on a boat. He said 'the Ma'aser
               (Rishon) that I will separate is given to R.
               Yehoshua, and I rent to him the area it rests on.
               The Ma'aser (Oni) that I will separate is given to
               R. Akiva, to acquire for the poor. I rent to him its
               place.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1 (a Chacham):</font></b> The land did not acquire the
               tithes for them. Rather, they acquired them Agav
               (along with) acquiring the land!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #2 (to Question 3:b - Rav Papa):</font></b> The case of
               R. Gamliel is different. Since one (with Da'as, i.e.
               intelligence) gave the tithes, the field can acquire
               even if the owner is not there.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 25b (Beraisa):</font></b> One may keep things he found in a
               rockpile or an old wall, for he can say that it was
               from Kena'anim (from the days of Yehoshua).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Gitin 77b (Rava):</font></b> The moment a Get is put in a
               woman's hand, she is divorced and simultaneously
               gets back her Yad (power of acquisition). Similarly,
               the moment a Get enters her yard, she is divorced
               and they are hers.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rav Ashi):</font></b> A husband does not own his wife's hands!
               Really, Rava learned from the opinion (Kidushin 22b)
               that a slave can himself receive a Get of freedom
               from his master. A slave's hand is like his master's
               hand. Rava answered that when a Get is put in his
               hand, he simultaneously goes free and acquires his
               Yad. This also explains how a woman can receive a
               Get in her yard!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> A man did not expect to survive until after Shabbos;
               he wrote a Get to his wife just before Shabbos. Rava
               said that he should give to her, for a gift, the
               place where the Get is resting. She should close the
               door there (on Shabbos) to acquire it through
               Chazakah. She acquires the place at the moment of
               divorce.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Bava Kama 12a (Beraisa):</font></b> If one was buying slaves
               and Metaltelim, and he did a Chazakah to acquire the
               slaves, he acquires the Metaltelim.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rav Ika brei d'Rav Ami):</font></b> The Tana holds that slaves
               are like Metaltelim. The Metaltelim acquired with
               the slave is the clothes he is wearing.
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> A moving Chatzer does not acquire Metaltelim inside
               it! We must say that the slave is tied up.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Kidushin 27a:</font></b> A Beraisa says that a Mishnah (about
               acquiring a document with the field) illustrates
               Agav. This shows that the Metaltelim need not be
               Tziburin (in the land).
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question:</font></b> Must the giver say 'acquire Agav (along
               with)'?
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b> The Halachah is, we do not require Tziburin, but the
               giver must say 'Agav' and 'acquire'.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Kidushin 10b):</font></b> The Halachah is, we do not
               require Tziburin, but the giver must say 'Agav',
               i.e. acquire with this land the Metaltelim in the
               place Ploni.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 3:8):</font></b> If one is Makneh land
               and Metaltelim, once the buyer acquired the land, he
               acquired the Metaltelim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (9):</font></b> This is if the Metaltelim are in the
               land. If they were elsewhere, he must say 'acquire
               Al Gav the land.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> The Gemara requires saying
                    Agav even if the Metaltelim are Tziburin. It
                    concluded that we need Agav, but we do not need
                    Tziburin. According to the Rambam, sometimes we
                    need Tziburin, but not Agav!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> Perhaps the Rambam explains that
                    the Gemara asked whether one must say Agav when
                    the Metaltelim are not Tziburin. The Rif
                    suggests like this, for he explains the need to
                    say Agav only in this case. However, it is not
                    certain that he holds like the Rambam.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Ran (Kidushin 10b DH v'Hilchesa):</font></b> If the Rambam
               explains that the question was whether one must say
               Agav when the Metaltelim are not Tziburin, he should
               have said that the Chatzer is guarded or he is
               standing in it! This is clear from Bava Metzia 11a,
               and the Rambam himself rules like this (Hilchos
               Zechiyah 4:9).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Kesef Mishneh:</font></b> The Gemara already concluded that we
               do not require Tziburin. It asked whether the giver
               must say 'Agav', and answered 'we do not require
               Tziburin, but the giver must say Agav'. It repeated
               that we do not require Tziburin to teach that he
               needs to say Agav only in this case. Perhaps the
               Rambam relied on what he wrote in Hilchos Zechiyah.
               This is how the Ran explained the Rambam. I say that
               if the Kinyan is due to Chatzer, the Rambam would
               not have taught it here! Rather, when they are not
               Tziburin, Agav is needed to clarify that he is
               Makneh them with the land. When they are Tzibur,
               this is clear without saying Agav.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 16:8):</font></b> A Chatzer acquires
               for its owner even without his knowledge. If a
               treasure was found in an old wall, why doesn't the
               owner of the wall acquire through is Chatzer? This
               is because he or others do not know about it. It is
               lost from him and others.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rosh (2:9):</font></b> A Chatzer does not acquire something
               (e.g. a Kena'ani's object) that might never be
               found. Further, it does not belong to the Yisrael
               who inherited this wall (in the days of Yehoshua),
               for the spoils were divided among all of Yisrael.
               Why didn't the owner's Chatzer acquire for him after
               Yisrael despaired? His Chatzer is no better than his
               hand. If something came to his hand before despair,
               he does not acquire it afterwards, for it came to
               his hand b'Isur (in a way that it was forbidden for
               him to keep it). Also his Chatzer does not acquire
               in such a case.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'> Hagahos Ashri:</font></b> Avi ha'Ezri says that in such a
                    case, we cannot say that one's Chatzer acquires
                    for him without his knowledge and the first one
                    who bought the wall acquired. This is unlike
                    normal Metzi'os. It never crossed the mind of
                    the buyer to acquire what is inside. Therefore,
                    he acquires only what he wanted to acquire. His
                    Chatzer acquires for him only what will enter
                    it afterwards. A case occurred in which Levi
                    bought what was assumed to be tin from a Nochri
                    smith, in order to cover his roof. He sold it
                    to David. It was found to be silver covered
                    with tin. The Re'em exempted David, for Levi
                    did not acquire the silver, since he did not
                    know about it. R. Tam agreed.
<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 198:5):</font></b> One who rents a place
               acquires the Metaltelim there if the place is
               guarded.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (7):</font></b> Renting suffices to acquire only if
                    afterwards the owner sold or gave the
                    Metaltelim. If both are at the same time, it
                    does not work.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Ketzos ha'Choshen 2):</font></b> A woman
                    receives her Get and Chatzer at the same
                    moment! Perhaps this is because her Chatzer
                    works like a Yad, but a man's Chatzer is like
                    his Shali'ach. However, they work together even
                    through Shelichus, e.g. R. Gamliel and
                    Chachamim. It was not through Yad, for they
                    were not near the premises. The Mordechai
                    explains that it was Da'as Acheres Makneh
                    (someone gave it) because he gave to them the
                    Chatzer at the same time. The Shitah Mekubetzes
                    (Bava Metzia 25b DH Lo Nitzrechah) says that
                    one who acquires a Chatzer acquires what enters
                    it afterwards, but not what was there from
                    before. This is like the Shach.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema (202:2):</font></b> If one is Makneh land and Metaltelim,
               some say that even if the Metaltelim are in the
               land, he must say 'acquire Agav the land.' This is
               primary.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (4):</font></b> This is when the land is not guarded.
                    If it is guarded, even without Agav he acquires
                    through Kinyan Chatzer.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 3):</font></b> The Ran, Magid Mishneh and
                    Ra'avad say that even a guarded Chatzer
                    acquires only what enters it after he owns the
                    Chatzer, but not what is acquired at the same
                    time as it. It seems that the Tur and Rema
                    agree.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Pnei Yehoshua (Kidushin 27a DH Mekomo):</font></b> In
                    Kidushin, the Gemara assumes that R. Gamliel
                    gave to the Chachamim Agav the land. In Bava
                    Metzia, Amora'im argue about this! Rav Papa and
                    Rav Ashi conclude that they acquired through
                    Chatzer! Some Poskim rule like them, for they
                    are Basra! It seems that Rav Papa and Rav Ashi
                    came to show that one may not settle either of
                    two questions from the episode. Even if we
                    cannot learn that Agav does not require
                    Tziburin (because they acquired through
                    Chatzer, not Agav), we cannot learn that a
                    Chatzer acquires even if the owner is not
                    there, for perhaps this is only with Da'as
                    Acheres Makneh. Perhaps they agree that the
                    primary Perush is that he gave Agav, for if
                    not, he should have rented the land to them
                    before giving the tithes. This is not only
                    according to the Shach, who says that Chatzer
                    does not acquire Metaltelim in it given at the
                    same time. Even unlike the Shach, the Chatzer
                    does not acquire what was already there, so
                    after renting the land, R. Gamliel needed to
                    again say that he gives the tithes to them. It
                    is much better to say that the Beraisa
                    discusses Agav, in which one must mention the
                    Metaltelim before the land. The Shach is
                    difficult, for Gitin 77b clearly shows that
                    Chatzer acquires what is given at the same
                    time!) Even if one distinguishes, Bava Kama 12a
                    and Bava Metzia 11b show that Chatzer acquires
                    (what is given at the same time).
<br>
<font color='blue'><i>See also:</i>
<br><b><b>HOW CAN A WOMAN RECEIVE A GET IN HER PROPERTY? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The second tithe that I will separate (for Ma'aser
               Oni) is given to R. Akiva, who will acquire on
               behalf of the poor. The area it rests on is rented
               to him.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehoshua and R. Akiva were not by the field, yet
               they acquired!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Ula:</font></b> You ask like one who has never learned.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Aba repeated this dialogue in front of Rabanan in
          Sura.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (a Chacham):</font></b> The land did not acquire the
          tithes for them. Rather, they acquired them Agav (along
          with) acquiring the land!
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	R. Zeira accepted this answer, but R. Aba did not.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rava:</font></b> Indeed, this answer is unacceptable!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Why didn't they acquire them through
               Chalipin? Surely they had a garment to do Chalipin!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1 (Rava):</font></b> We must say, since R. Gamliel did
               not own the tithes themselves, only the Tovas
               Hana'ah (the right to give it to the Levi or Oni of
               his choice), Chalipin does not work;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Similarly, one cannot acquire something Agav
                    (land) when the giver owns only Tovas Hana'ah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> (Rather, R. Gamliel allowed them to acquire it,
                    like one acquires Hefker. The field acquired it
                    for them.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection (and Answer #2 to Question g:1):</font></b> Chalipin
          cannot be used for gifts to a Kohen because the Torah
          said they should be given. Chalipin is a method of
          commerce;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Agav is a method of giving, so it can be used.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>THE HALACHAH IS DIFFERENT WHEN SOMEONE GIVES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #2 (to Question 3:b - Rav Papa):</font></b> The case of R.
          Gamliel is different. Since one (with Da'as, i.e.
          intelligence) gave the tithes, the field can acquire even
          if the owner is not there.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source for this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Mishnah):</font></b> If Reuven saw people chasing an Aveidah
          in his field... (his field acquires).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yirmeyah):</font></b> This is only if one could chase and
               catch (the lame deer, or chicks that cannot
               flutter).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (R. Yirmeyah):</font></b> What is the law regarding a
               gift?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (R. Aba bar Kahana):</font></b> Regarding a gift, even
               if one cannot catch them, the field acquires.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why is a gift different?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> It is because one with Da'as gave it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Simi):</font></b> One with Da'as gives a Get, yet Ula
          taught that (when the husband threw it into his wife's
          Chatzer or house) she is divorced only if she is by her
          Chatzer or house!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (Rav Papa):</font></b> A Get is different, because she
          acquires it against her will.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rav Sheshes brei d'Rav Idi):</font></b> That is illogical!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even though she acquires a Get against her will, she
               must be by her Chatzer;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One chooses to receive a gift. All the more so he
               must be by the field!
<br>

<p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN A FIELD ACQUIRES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> The Torah says that a Chatzer
          acquires like a person's hand, but it can also acquire
          like a Shali'ach;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Get is disadvantageous for her. Something
               disadvantageous may be done only in front of the
               person it harms;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A gift is advantageous. Something advantageous may
               be done for a person in his absence.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven saw people chasing an Aveidah in his
          field... (and said... his field acquires).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(R. Yirmeyah):</font></b> This is only if one could chase and catch
          it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (R. Yirmeyah):</font></b> What is the law regarding a gift?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (R. Aba bar Kahana):</font></b> Regarding a gift, even if one
          cannot catch it, the field acquires.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If one threw a wallet through a Chatzer,
          and it left the Chatzer before landing (Rashi - he made
          it Hefker; Tosfos - he intended to give it for a gift),
          what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Is being suspended in the air, in a Reshus in which
               the object will not land, like resting on the
               ground, or not?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Papa - Mishnah):</font></b> If Reuven saw people
          chasing...
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yirmeyah):</font></b> This is only if one could chase and
               catch it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (R. Yirmeyah):</font></b> What is the law regarding a
               gift?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (R. Aba bar Kahana):</font></b> Regarding a gift, even
               if one cannot catch it, the field acquires.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> Something moving on the ground is
          different. Clearly, it is considered to be resting.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHAT MINORS FIND</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Reuven receives Metzi'os found by his small
          (minor) sons and daughters, his male and female Kena'ani
          slaves, and his wife;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If his big (adult) sons or daughters, male or female
          (Yisre'elim) slaves, or his ex-wife (even if he didn't
          pay her Kesuvah yet) found a Metzi'ah, they keep it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Shmuel) Question:</font></b> Why did Chachamim say that
          Reuven receives Metzi'os found by his minor son?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Shmuel):</font></b> When he finds it, he immediately brings
          it to his father. (He picked it up with intent to give it
          to him.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Inference:</font></b> This shows that Shmuel holds that a minor
          cannot acquire mid'Oraisa!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven (a rich man) was hired to
          harvest, his son may walk after him and take Leket (Peros
          that falls during harvesting and must be left for the
          poor);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven receives a fixed percentage of the
               harvest, his son may not take Leket after him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yosi says, in either case his wife and children
               may take Leket after him.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Shmuel):</font></b> The Halachah follows R. Yosi.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Summation of question:</font></b> Granted, if a minor can
               acquire this is permitted because the child acquires
               for himself, then gives to his father;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  But if a minor cannot acquire, he takes for his
                    father. This should be forbidden, for his
                    father is rich!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Shmuel explained the Tana of our Mishnah (why
          the father gets the Metzi'os), but Shmuel himself rules
          like R. Yosi.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection:</font></b> R. Yosi holds that a minor cannot acquire
          mid'Oraisa!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> To promote Shalom, it is considered
               stealing to take the Metzi'ah of a child, lunatic or
               Cheresh;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yosi says, it is absolute theft.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> It is absolute theft mid'Rabanan.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  They argue about whether or not Beis Din forces
                    one to return it to them. R. Yosi says that
                    Beis Din forces him; Chachamim say that they do
                    not.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (Abaye):</font></b> Really, R. Yosi agrees that
          mid'Oraisa, minors cannot acquire;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He permits a worker's children to take the Leket
               because the poor people despair from it, just like
               they despair after Nemushos (old people who walk
               with canes, or the second wave of collectors)
               passes. They assume that the worker's children will
               take it all.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection:</font></b> (Rav Ada bar Masnah): One may not force poor
          people to despair from taking what they are entitled to!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #3 (Rava):</font></b> Even though minors cannot acquire,
          Chachamim enacted to allow them to collect as if they can
          acquire.
<br>
<br>

sjt:
<font><b>1) ACQUIRING A 'METZI'AH' THROUGH 'KINYAN CHATZER'</b></font><b>
<br>QUESTION:</b> The Gemara (11a) quotes Amora'im who teach that one's Chatzer which is not guarded ('she'Einah Mishtameres') cannot acquire a Metzi'ah for him unless he is standing next to his Chatzer. The Gemara questions this from the Mishnah in Ma'aser Sheni (5:9) which relates that Raban Gamliel, while traveling with other Tana'im, was Makneh his Ma'aseros to the other Tana'im by leasing to them a part of his land (which was not Mishtameres; see Tosfos DH v'Chi), thus enabling them to acquire the produce through Kinyan Chatzer even though they were not standing beside the Chatzer. Rav Papa (11b) answers that a Matanah, a gift, is different, because when a gift is given there is a 'Da'as Acheres Makneh.' The fact that it is being given by another person (rather than being acquired from Hefker) enables the recipient's Chatzer which is not Mishtameres to acquire the gift even when he is not standing beside his Chatzer.
</p><p>
The Gemara (end of 11b) questions this from the case of a man who divorces his wife by throwing a Get into his wife's Chatzer. In that case, the wife must be standing next to her Chatzer in order to acquire the Get. Why does she need to be standing there if -- in the case of giving a Get -- there is 'Da'as Acheres Makneh'? The Gemara (beginning of 12a) answers that since a Get is a Chov (detriment) to a woman, the Chatzer cannot acquire it for her in her absence ('Ein Chavin l'Adam Ela b'Fanav'), while a Matanah, which is a Zechus (benefit) to a person, does not require the person's presence ('Zachin l'Adam she'Lo b'Fanav').
</p><p>
This explains the difference between acquiring a Get with one's Chatzer and acquiring a Matanah with one's Chatzer. This explanation, however, leads to another question: What is the difference between acquiring a Matanah with one's Chatzer and acquiring a <i>Metzi'ah</i> with one's Chatzer? One's Chatzer should be Koneh a <i>Metzi'ah</i> as well through the principle of 'Zachin l'Adam she'Lo b'Fanav,' even when the owner of the Chatzer is not present! Why should 'Da'as Acheres Makneh' be necessary to acquire an object through a Chatzer that is not Mishtameres when the owner of the Chatzer is not present? (<b>RASHI</b> and Rishonim)
</p><p>
One might answer that, for some reason, a Chatzer can acquire a Metzi'ah only through 'Yad' and, therefore, the owner must be standing next to it (like the woman who receives a Get in her Chatzer). If this is true, however, then there is another difficulty: Why does a Chatzer that is Mishtameres acquire a Metzi'ah for the owner even when the owner is not standing there? A Chatzer that works through 'Yad' cannot be Koneh when the owner is not present. (See <b>MAHARSHA</b>, <b>PNEI YEHOSHUA</b>.)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> seems to address these questions at length. However, his answers do not seem clear, and he also seems to repeat himself (see Rashi to 11b, DH Ela Amar Rav Ashi). From the words of <b>TOSFOS RABEINU PERETZ</b> and other Rishonim, it is clear that Rashi is presenting two different approaches to the Sugya. These two approaches represent the ways that Rashi understood the Sugya at two different times. Originally, Rashi explained the Gemara in one way, which we will call his 'Mahadura Kama.' Later, Rashi changed his mind and added another explanation, which we will call his 'Mahadura Basra' (and which appears in the beginning of DH Ela Amar Rav Ashi). (Rashi's Mahadura Basra is not complete in our text of Rashi. A more complete version was printed in the Salonica printing of the Gemara and is cited in part by the Shitah Mekubetzes. However, there seem to be numerous printing errors in what is printed there. See Shitah Mekubetzes.)
</p><p>
The two approaches differ mainly in how they understand the source for the Halachah that one's Chatzer serves as his Shali'ach. In his Mahadura Kama, Rashi understood that no verse is necessary to teach that a Chatzer can be a Shali'ach; once it is known that a person can be a Shali'ach and perform an act for another person, it is obvious that a Chatzer also can be a Shali'ach for a person. This is also Rashi's opinion in all of his other comments in this Sugya, except for the part that he added in his Mahadura Basra, as described above. (See Rashi to 10b, DH Mishum; 10b, DH Talmud Lomar; 11a, DH u'Mar Savar, and 11b, DH Ela Amar Rav Ashi, and see Insights to 10b and 11a.) Based on this, Rashi had to use one approach to answer the aforementioned questions.
</p><p>
In his Mahadura Basra, Rashi retracted this approach and explained that a Chatzer would <i>not</i> be considered a Shali'ach based on logic alone, and, therefore, a verse is necessary to teach that a Chatzer can be a Shali'ach. As a result, he was able to use a different approach to answer the questions. This is also the approach of Tosfos (10b, DH v'Iy Mishum, as the Maharsha explains on 11a). The Maharsha and Maharam point out that this approach seems more logical. After all, a person who is not a 'Bar Da'as,' such as a Katan, cannot be a Shali'ach. A Chatzer is certainly not a 'Bar Da'as,' so why should it be able to be a Shali'ach if not for a verse that specifically teaches that it can be a Shali'ach?
</p><p>
According to Rashi's approach in his Mahadura Basra, the very concept of Kinyan Chatzer is derived from the verse of Geneivah. Why does the Gemara learn from that verse that Chatzer works through Shelichus? Why does the Gemara not learn that it works through Yad, similar to what it derives from the verse of Get?
</p><p>
<b>TOSFOS RABEINU PERETZ</b> explains that according to this approach, the Gemara determines whether a Chatzer acts as a Shali'ach or as a Yad based on the context of the Halachah. With regard to Get, the verse must be teaching that a Chatzer acquires the Get for the woman through Yad, since receiving a Get is a Chov for the woman, and therefore a Shali'ach would not be able to receive it on her behalf unless she specifically appointed one for that purpose. Hence, the woman must be standing next to her Chatzer in order to acquire the Get, just as her hand is next to her body. With regard to a gift, however, the Gemara understands the verse to mean that a Chatzer can function as a Shali'ach to acquire it, since it is a Zechus for the owner to acquire the object. Consequently, it is not necessary for the owner to be standing near the field.
</p><p>
The status of a Metzi'ah in this respect is more complicated. On one hand, a Metzi'ah is a Zechus for the owner and therefore his Chatzer should acquire it for him as a Shali'ach, even when he is not nearby. On the other hand, a Metzi'ah is similar to a Get in that acquiring a Metzi'ah for the owner would cause a loss to others (as the Gemara explains on 8a), so a Chatzer should not be able to act as a Shali'ach to acquire a Metzi'ah. In this respect, a Chatzer should acquire a Metzi'ah only through Yad (i.e. when the owner is nearby).
</p><p>
Tosfos Rabeinu Peretz concludes that since it is not clear from the verse how a Chatzer should acquire a Metzi'ah, this indicates that the Torah leaves it for the Chachamim to determine based on their logic how a Chatzer acquires a Metzi'ah ('Lo Masrah ha'Kasuv Ela la'Chachamim'). The Chachamim ruled that a Chatzer that is Mishtameres acquires as a Shali'ach even when the owner is not nearby, while a Chatzer that is not Mishtameres acquires only through Yad and only when the owner is nearby. (Perhaps the logic for this distinction is that when the Chatzer is Mishtameres, the acquisition of a Metzi'ah is not as damaging to others, since it is not within their grasp anyway.)
</p><p>
The <b>RAN</b> cited by the <b>NIMUKEI YOSEF</b> explains this further. Even though a person <i>is</i> able to acquire a Metzi'ah on behalf of someone else (as a Shali'ach, and he is not considered to be causing a Chov to others, nevertheless a Chatzer is not able to acquire a Metzi'ah for its owner through Shelichus because it causes a Chov to others. The reason for this distinction is that a person can acquire a Metzi'ah for someone else due to a Migu: since he could have acquired it for himself, he may acquire it for others. A Chatzer, in contrast, cannot acquire a Metzi'ah for itself, and therefore it cannot acquire it for others.
</p><p>
(b) In his Mahadura Kama, Rashi was not able to explain the Gemara the way he explained it in his Mahadura Basra. Rashi originally maintained that the fact that a Chatzer can be a Shali'ach is derived from logic alone and not from a verse. Rashi therefore took a different approach. He explained that a Chatzer cannot act as a Shali'ach to acquire a Metzi'ah because an act of a Shali'ach requires 'Da'as,' conscious intent. When a person purchases an object with a Kinyan Chatzer, there is conscious intent involved on the part of the seller, even though the Shali'ach (the Chatzer) does not have conscious intent. However, when a Chatzer acquires a Metzi'ah, there is no conscious intent involved since the Metzi'ah is not being given by another person, and therefore a Chatzer cannot act as a Shali'ach to acquire a Metzi'ah.
</p><p>
However, this does not explain why a Chatzer which is Mishtameres <i>can</i> acquire a Metzi'ah for its owner even when the owner is not standing nearby, and it does not explain why a Chatzer which is <i>not</i> Mishtameres can acquire a Metzi'ah for its owner when the owner <i>is</i> standing nearby. The words of Rashi (11a, DH Iy Omed) imply that even when the owner is standing next to his Chatzer which is not Mishtameres, the Chatzer cannot acquire a Metzi'ah through Yad, since the Torah gives a Chatzer the status of Yad only with regard to Get and not with regard to Metzi'ah. Rather, standing next to the Chatzer makes it Mishtameres, and therefore the Chatzer can be a Shali'ach. How does the fact that it is Mishtameres enable the Chatzer to become a Shali'ach? Perhaps Rashi understands that if the Chatzer is Mishtameres it is considered as though there is 'Da'as,' conscious intent, to acquire the object for the owner, since the fact that the Chatzer is guarded with the intent of the owner makes it as if the Chatzer intends to acquire that object for the owner.
</p><p>
(c) The <b>RAN</b> cited by the <b>NIMUKEI YOSEF</b> explains that a Chatzer which is Mishtameres is considered an extension of a person's Yad, since people normally place things which are in their hands into a Chatzer that is Mishtameres. That is why a Chatzer that is Mishtameres can acquire an object for the owner even when the owner is not nearby.
</p><p>
Why, then, can a Chatzer that is Mishtameres not acquire a Get for a woman unless the woman is nearby? The Ran answers that a Chatzer is considered an extension of the owner's hand only with regard to objects that a person takes from his hand and places into his Chatzer for safekeeping. However, in the case of a Get, the woman normally is not interested in receiving the Get and she is not interested in placing it somewhere for safekeeping. She will not transfer it from her hand into her Chatzer. That is why a Chatzer cannot acquire a Get for a woman unless she is nearby, in which case it is considered an extension of her hand.
</p><p>
(d) The <b>ROSH</b> (1:31) explains that, actually, the same Halachah applies both to a Metzi'ah and to a Matanah: A Chatzer can acquire only when it is Mishtameres. When the Chatzer is not Mishtameres, the Chatzer cannot acquire the object for the owner, because even if the Chatzer functions as a Shali'ach a person would not give his object to a Shali'ach who will not guard it (which is what a 'Chatzer she'Eino Mishtameres' is) and, therefore, a Chatzer that is not Mishtameres cannot be a Shali'ach. However, with regard to a Matanah, a Chatzer that is not actually guarded is still considered a Chatzer that is Mishtameres and can acquire the item through Shelichus, since the person who gives the gift is standing beside the Chatzer even though the Chatzer's owner is not there. The recipient of the gift is willing to have the giver watch the Chatzer for him, and the Chatzer therefore becomes Mishtameres through the giver.
</p><p>
<b>TOSFOS RABEINU PERETZ</b> (in the name of Rabeinu Peretz) offers a similar explanation for why a Chatzer is considered Mishtameres with regard to a Matanah even when it is not actually guarded. He explains that it is not necessary for there to be a physical barrier to prevent other people from taking what is in the Chatzer. Even if only the <i>Halachah</i> prevents others from taking what is in the Chatzer, it is considered Mishtameres. Therefore, with regard to a Matanah, since the one who gives the Matanah wants to give the gift only to this recipient, no one else has permission to take it, and thus it is considered to be 'guarded' while in the Chatzer of the recipient. In contrast, anyone is entitled to take a Metzi'ah, and thus it is not considered 'guarded' unless the owner of the Chatzer is actually present and guarding his Chatzer, or there is a physical barrier that prevents others from entering the Chatzer.
</p><p>
(See the <b>RITVA</b>, cited by the Shitah Mekubetzes, who offers an entirely different explanation for the Sugya. According to his explanation, Rav Ashi does not accept the distinction between Matanah and Metzi'ah and rules that in both cases either the Chatzer must be Mishtameres or the owner must be standing next to the field, and that Raban Gamliel was Makneh the produce to the other Tana'im through Kinyan Agav.)
</p><p>


<font><b>2) CAN THE AIRSPACE OF ONE'S 'CHATZER' ACQUIRE AN ITEM FOR HIM</b></font><b>
<br>QUESTION:</b> Rava asks whether a person acquires a wallet that is thrown through the airspace of his Chatzer, from one side of the Chatzer to the other, and that does not land in the Chatzer. The question is whether the airspace above a Chatzer can acquire an object that is not destined to land in the Chatzer. The Gemara attempts to prove from the statement of Rebbi Yirmeyah that the owner of the Chatzer <i>does</i> acquire the wallet. Rebbi Yirmeyah teaches that although one's Chatzer cannot acquire a Metzi'ah -- such as an animal -- that is running through it unless the owner is able to run after and reach the animal while it is still in his field, a Chatzer <i>can</i> acquire a Matanah even though the owner is unable to reach it before it leaves his field. The Gemara argues that if a Chatzer can acquire a Matanah that passes through it without stopping in it, then it should also be able to acquire a wallet that flies through its airspace without landing in the Chatzer. The Gemara refutes this proof by distinguishing between an animal and a wallet: an animal that runs across the ground of the Chatzer is considered to have stopped in the Chatzer, but an item that travels through the airspace is not considered to have stopped in the Chatzer.
</p><p>
It is obvious from the Gemara's proof that the wallet thrown through the Chatzer is being given as a Matanah, gift, to the owner of the Chatzer, and is not a Metzi'ah. However, Rashi (DH Zarak) writes that the person who threw the wallet made it Hefker for anyone to take. If the wallet is Hefker, it should be like a Metzi'ah which is not acquired through 'Da'as Acheres Makneh.' How, then, can the Gemara compare this case to that of an object given as a Matanah which is running through one's field? (<b>TOSFOS</b> DH v'Yatza)
</p><p>
A similar question may be asked on the <b>ROSH</b> and <b>RASHBA</b>. The Rosh and Rashba explain that Rava's question applies both to a wallet of Hefker and to a wallet given as a Matanah. Since Rava's question remains unresolved, they rule that if a wallet of Hefker is thrown through the airspace of a Chatzer, the owner of the Chatzer is considered to be Muchzak mi'Safek in the wallet, and no one else may take it from him.
</p><p>
Why do the Rosh and Rashba write that the Halachah remains in doubt regarding a wallet of Hefker that passes through the airspace of one's field? Since a person cannot acquire a Metzi'ah that runs through his field when he cannot catch it before it leaves his field, it should follow that the same applies to a wallet of Hefker. If a Chatzer cannot acquire even an object that travels across the ground in such a case, it certainly cannot acquire an object that passes through its airspace.
</p><p>
<b>ANSWERS:</b>
<br>(a) The ruling of the Rosh may be explained as follows. Perhaps the requirement that the owner must be able to catch the object before it leaves his field does not apply to an inanimate object such as a wallet, but only to a live animal which moves of its own volition. An object that passes over a field will land eventually, and even if it lands outside the field the owner easily can recover it. Thus, it stands to reason that the owner can acquire it since he will be able to capture it after it has left the field. An animal that runs through a field, in contrast, will continue running even after it leaves the field, and thus the owner cannot acquire it if he cannot reach it while it is still in his field.
</p><p>
However, this approach does not address the question on Rashi.
</p><p>
(b) The <b>NIMUKEI YOSEF</b> writes in the name of 'Acharonim' that Rashi implies that an object that a person makes Hefker is considered 'Da'as Acheres Makneh Oso.' The <b>MISHNEH L'MELECH</b> (Hilchos Mechirah 29:11) writes that based on the Nimukei Yosef's explanation, according to Rashi whenever someone acquires an object from Hefker it is as if he receives a Matanah from the one who was Mafkir it. Hence, the only time that the owner of the field will have to be able to reach the object before it leaves his property is when the object was not made Hefker by a person but rather it was never in another person's domain (such as a wild animal, like a deer or a bird), or when the object became Hefker (after leaving a person's possession) in an inadvertent manner, such as through Ye'ush.
</p><p>
The <b>KETZOS HA'CHOSHEN</b> (273:1) finds further support for this approach in the words of the <b>RAMBAM</b> (Hilchos Nedarim 2:14) who writes that although Hefker is not a vow, it is similar to a vow in that a person cannot retract it. This implies that Hefker does not remove an item from a person's domain, but rather it requires him to let other people take it for themselves. When someone else takes it, he receives it from the original owner and not from an ownerless domain.
</p><p>
However, the Ketzos ha'Choshen points out that a number of Gemaras seem to contradict this approach. The Gemara in Shabbos (11b) teaches that when a person is Mafkir his object, the Mitzvah of Shevisas Kelim does not apply to it because it no longer is considered his. Also, in numerous places the Gemara applies the principle of 'Hefker Beis Din Hefker' in a way which shows that the object leaves the domain of its previous owner. (To answer this question, the Ketzos ha'Choshen suggests that 'Hefker Beis Din' is more powerful than an ordinary form of Hefker.) This also is evident from the Gemara in Nedarim (43a-b; see Insights there), as the <b>RASHBA</b> here points out.
</p><p>
The Rashba asserts that Rashi does not mean to say that an object of Hefker does not leave the domain of its original owner. Rather, he means that even though an object of Hefker <i>has</i> left the domain of its owner, when someone acquires that object it is considered as if there is 'Da'as Acheres Makneh Oso'; it is considered as though it is being <i>given</i> to him and not that he is merely taking it for himself.
</p><p>
The <b>NESIVOS HA'MISHPAT</b> limits this further. He says that the Nimukei Yosef equates Hefker with Matanah and considers it 'Da'as Acheres Makneh Oso' <i>only</i> with regard to Kinyan Chatzer. Thus, the Nimukei Yosef means that when the person who is Mafkir the object throws the object through the Chatzer, the Chatzer can acquire that object <i>as if it were being given by someone</i> just as a Chatzer can acquire a gift that one gives to the owner of the Chatzer.
</p><p>
(This may be justified based on the logic of the Rosh who writes that a person who gives a Matanah makes the Chatzer guarded, Mishtameres, on behalf of the recipient. Similarly, the Mafkir who throws the object through the airspace of the Chatzer is watching the Chatzer on behalf of the Chatzer's owner, the recipient of the Hefker object.)
</p><p>
(c) Others explain that the Nimukei Yosef does not mean that Hefker is like Matanah even with regard to Kinyan Chatzer. Rather, he means that in the case of the Gemara, a person threw a wallet through the airspace of the Chatzer with intention to give it to the first person who takes it. Accordingly, this is not a true act of Hefker. The word 'Hefker' is used loosely; here it refers to an open-ended Matanah (which anyone may take). If a person is Mafkir an object and leaves it in a public place, then certainly it leaves his domain immediately, as the Gemara in Nedarim explains. (See <b>KOS YESHU'OS</b>, <b>LECHEM ABIRIM</b>.)
</p><p>
Why do Rashi and the Nimukei Yosef understand the case of the Gemara this way? Why do they not interpret the Gemara in its simplest sense, that the person who threw the wallet intended to give it as a Matanah specifically to the Chatzer's owner?
</p><p>
The answer is that some manuscripts of the Gemara included the word 'v'Afkerei' ('and he made it Hefker [to all]') in Rava's question, as is evident from the words of Tosfos. The Nimukei Yosef writes that this was also the Girsa of Rav Yehuda'i Ga'on. Accordingly, Rashi is explaining the words of the Gemara according to his Girsa. Rashi explains that the word 'v'Afkerei' is not to be understood literally, but rather it means that the owner of the wallet made it available for all to acquire it. (The Rashba, who does not have the Girsa of 'v'Afkerei' in his text, offers another explanation for what forced Rashi to explain that Rava refers a wallet of Hefker, based on a Gemara later in Bava Metzia (102a).)
</p><p>
The same question, however, may be asked on the Gemara itself. Why does <i>Rava</i> mention that the owner was Mafkir the wallet, and not that he gave it as a Matanah to the owner of the Chatzer?
</p><p>
Perhaps Rava wanted to pose his question in a situation in which there will be a practical difference (with regard to whether the Chatzer is Koneh) even when the wallet's original owner does not change his mind and renege on the gift. If the original owner intended to give the wallet specifically to the owner of the Chatzer, it should make no difference whether the Chatzer is Koneh for him or not; he still can pick it up after it lands in another person's field because it was given specifically to him and to no one else. Therefore, in such a case the question of whether or not the Chatzer is Koneh will be relevant only if the giver changes his mind after the wallet has already passed through the Chatzer. If the Chatzer was already Koneh the wallet, it will be too late for him to change his mind. If the Chatzer was not Koneh the wallet, he may take his wallet back. In the case that Rashi describes, however, if the owner of the Chatzer is not Koneh the wallet, the owner of the neighboring Chatzer in which the wallet lands will acquire it. Thus, Rava's question is still relevant even if the person who threw the wallet does not change his mind.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ENACTMENTS AS IF SOMEONE ACQUIRED</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> One receives Metzi'os that his small
               children find.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Shmuel):</font></b> Chachamim said this because a child
               immediately brings what he finds to his father. (He
               picks it up with this intent.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference:</font></b> Shmuel holds that a minor cannot acquire
               mid'Oraisa!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (Beraisa):</font></b> If Reuven (a rich man) was hired
               to harvest, his son may walk after him and take
               Leket (what falls during harvesting; it is left for
               the poor). If Reuven receives a fixed percentage of
               the harvest, this is forbidden;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yosi permits in either case.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Shmuel):</font></b> The Halachah follows R. Yosi.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Summation of question:</font></b> If a minor cannot
                    acquire, he takes for his father. This should
                    be forbidden, for his father is rich!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (Rava):</font></b> Chachamim enacted that it is as if
               the son acquires. This helps Oniyim; when an Oni is
               hired, his son may collect after them.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> Shmuel argues with R. Yochanan
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Yochanan):</font></b>  'Small' and 'big' in the
                    Mishnah do not refer to minor and adult.
                    Rather, any child fed by his father is called
                    small. Any child who feeds himself is called
                    big.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Gitin 30a (Mishnah):</font></b> If Reuven lent money to David
               (a Kohen, Levi or Oni), and stipulated to keep the
               Terumah, Ma'aser Rishon or Ma'aser Oni that he would
               have given to David, and deduct its value from the
               loan, he may do so, without concern lest David died
               or (if he was poor) became rich.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> David never received the tithes! (Reuven
               must give them!)
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #1 (Rav):</font></b> The Mishnah discusses Makirei
               Kehunah or Leviyah (Reuven always gives his tithes
               to David). Once Reuven separates it, it
               automatically belongs to David!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer #2 (Shmuel):</font></b> The case is, Reuven asks a third
               party to be Zocheh (acquire) the tithes on behalf of
               David.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer #3 (Ula):</font></b> The Mishnah is R. Yosi, who says
               that Chachamim enacted that it is as if one
               acquired, even though (mid'Oraisa) he did not
               acquire.
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> Shmuel and Ula did not answer like Rav, for the
               Mishnah does not mention Makirei Kehunah or Leviyah. 
               Rav and Ula did not answer like Shmuel, for the
               Mishnah does not say that another acquires for
               David. Rav and Shmuel did not answer like Ula, who
               establishes the Mishnah like an individual's
               opinion.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Bechoros 17a (Mishnah):</font></b> If twins were born at the
               same moment to Reuven's sheep (its first birth),
               surely one was first. He keeps one, and gives the
               other to a Kohen. He gives Matanos (foreleg, jaw and
               stomach) to a Kohen;
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b> R. Yosi exempts from Matanos.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> 18a (Rava):</font></b> R. Yosi holds that (if Reuven kept the
               Bechor,) Chachamim consider it as if the Kohen
               acquired the Bechor, and after it got a Mum, traded
               it with Reuven for the other animal.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> (R. Elazar):</font></b> Even R. Yosi obligates Matanos when the
               Kohen gets nothing (e.g. one of the twins was a
               female).
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> Question:</font></b> This is obvious! In the Seifa (18b), R.
               Yosi exempts 'whenever the Kohen received Chalipin
               (something in place of the Bechor)'!
<br>        <b>  <b><font color='darkgreen'>18. </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that R. Yosi
               addresses R. Meir (the first Tana) according to R.
               Meir's reasoning. I decree to exempt even when the
               Kohen received nothing, lest people come to shear or
               work with a Safek Bechor. Even if you do not decree,
               you should exempt when the Kohen received Chalipin!
<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 Metzi'a 5b and 1:33) explain
               the Mishnah in Bava Metzia like R. Yochanan.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Ma'aser 7:6):</font></b> If Reuven lent money
               to David (a Kohen, Levi or Oni) and stipulated...
               when Reuven separates Terumah, Ma'aser Rishon or
               Ma'aser Oni, he gets another to acquire for David.
               If Reuven normally gave his Terumah or Ma'aser to
               David, no one else need acquire for David.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> Rav, Shmuel and Ula all agree
                    about the Halachah. They argue only about how
                    to explain the Mishnah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Chasam Sofer (Gitin 30a DH k'Rebbi):</font></b> Regarding a
               loan, the Rambam rules unlike R. Yosi, but regarding
               a Bechor mixed with Chulin, he rules like R. Yosi
               and exempts from Matanos. He also rules like R. Yosi
               regarding an Oni's son collecting Leket, for the
               Aniyim desire this. Regarding the loan, and an Oni
               knocking olives off a tree (Gitin 59b), there is no
               pressing need for an enactment as if he acquired.
               Even so, R. Yosi enacts; the Halachah does not
               follow him. Shmuel holds like R. Yosi in every case,
               even when the Kohen received nothing. We must say
               that not only can Chachamim make Hefker; they can
               even put something in one's Reshus. They learn from
               the verse that equates leaders to Avos (Gitin 36b).
               This is like R. Yochanan ben Berokah (Bava Basra
               130a), who says that one can bequeath to whom he
               wants. Shmuel did not establish our Mishnah like R.
               Yosi, for if so a Stam Mishnah in Gitin would be
               followed by a Machlokes in Bava Basra, and the
               Halachah is unlike the Stam. Some Poskim hold that
               this means the Halachah <i>surely</i> (not just perhaps)
               is unlike the Stam.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Note:</font></b> For two Masechtos, Ein Seder l'Mishnah (we do
               not know which was taught first - Bava Kama 102a). I
               did not find anyone who disagrees. Why didn't he
               bring a proof from Bava Basra 131a? Noson ha'Bavli
               proved from a Mishnah in Kesuvos that our Stam
               Mishnah is like R. Yochanan ben Berokah; Rebbi did
               not admit. Why didn't either prove this from our
               Mishnah in Gitin?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (Bechoros 2:4):</font></b> The Halachah follows R. Meir.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Mordechai (Bava Basra 657):</font></b> In the Yerushalmi,
               Amora'im argue about whether or not the Gabai
               (overseer of Tzedakah) must borrow for the sake of
               Aniyim when the Tzedakah box is empty. Or Zaru'a
               rules that we tell the Gabai to borrow. Avi ha'Ezri
               says that since it is called a loan, when there is
               money in the pouch later, it is repaid. He need not 
               ask permission from those who give. My Rebbi says so
               even about one who lends to collect from Tzedakah
               and Ma'aser that he normally separates. This is
               unlike the Mishnah which requires asking permission
               from the Oni's heirs. If he lent in Beis Din; he
               does not lose his loan. All the more so when one
               lends to the Tzedakah box, which is for all Aniyim!
               I disagree with those who learn from Gitin that he
               needs permission from the donors. The Yerushalmi is
               not concerned lest all the Aniyim became rich. Even
               concerning one Oni, we are not concerned unless we
               find out!
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 257:5):</font></b> When the Tzedakah pouch
               is lacking and the overseer needs to lend to it
               (from his money), when there is money in the pouch
               later he can be repaid. He need not ask permission
               from those who give.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If Reuven separates Ma'aser and lent to an Oni
               (David) from Reuven's own money, he may consider the
               loan to be Ma'aser and keep that amount of Ma'aser
               for himself. This is only if the Oni is still alive.
               If he died or became rich, he need not pay, for he
               was an Oni at the time; Reuven may not keep Ma'aser
               that was still owes, for we do not separate based on
               what was lost. One need not be concerned lest the
               Oni became rich, unless he finds out.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (12):</font></b> Reuven lent on condition to be
                    repaid from gifts that he will give to David in
                    the future. Therefore, he can separate Ma'aser
                    or Tzedakah and consider it as if he gave to
                    him.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (13):</font></b> Sefer ha'Terumos, the Bartenura and
                    the Rambam require another to acquire on behalf
                    of David, and then Reuven is paid from it, in
                    order to fulfill 'Nason Titen' (the Mitzvah to
                    give Tzedakah). If he normally gives to David,
                    this is like Makirei Kehunah and Leviyah, and
                    Zechiyah is not needed. This is difficult. Ula
                    established the Mishnah like R. Yosi, who says
                    that Chachamim enacted that it is as if he
                    acquired. If so, no Zechiyah is required.
                    Tosfos says that even though Rav and Shmuel did
                    not want to explain the Mishnah like an
                    individual, the Halachah follows R. Yosi, like
                    Shmuel himself says in Bava Metzi'a. Perhaps
                    this is why the Rema did not mention that one
                    must be Zocheh. Sefer ha'Terumos, the Bartenura
                    and the Rambam must explain like the latter
                    answer in the Rashba, that Rav and Shmuel hold
                    that R. Yosi does not enact in a case like
                    this.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Noda b'Yehudah (YD 1:73):</font></b> If one gave Ma'aser
                    to Aniyim above a 10th of what he already
                    earned, perhaps he may not deduct the excess
                    from his obligation to tithe future earnings.
                    The Rema's Heter is when one lent to the Oni.
                    If he gave for Tzedakah, there is nothing from
                    which to deduct later! Even when he lends, it
                    is not a normal loan, for the Oni need not pay
                    even if he will get rich and the Ashir cannot
                    separate due to him. One who normally lends
                    like this need not tell the Oni; Stam, it is
                    with this intent. Even if he is not explicitly
                    Mezakeh, we rely on the Rema, who says that
                    Chachamim enacted that it is as if he acquires.
                    I say that the Rambam agrees that the Halachah
                    follows R. Yosi, which is a leniency for the
                    Nitva, i.e. the lender. Since he is Muchzak, we
                    rely on R. Yosi. Also, Ma'aser of money is
                    mid'Rabanan. The Mishnah discusses Ma'aser
                    mid'Oraisa, for which one must fulfill the
                    Mitzvah to give, so we do not rely on R. Yosi.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>A DEBT TO BE PAID THROUGH TITHES </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> The poor are happy with the law, for when they
          themselves are hired, their children can collect after
          them.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	Shmuel argues with R. Chiya bar Aba.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chiya bar Aba):</font></b> 'Small' and 'big' in the Mishnah
               do not refer to minor and adult;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rather, any child fed by his father is called small.
               Any child who feeds himself is called big.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>METZI'OS OF SLAVES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> What his male and female slaves (Yisre'elim)
          find, they keep.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Their law should be like workers!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> A worker keeps what he finds. This is
               only if he was hired for a particular job, e.g.
               'weed (or hoe) with me today';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said 'work for me today', the employer gets
               it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (R. Chiya bar Aba):</font></b> The case is, the slave
          makes holes in pearls (in order to thread them, a  very
          high-priced labor). The master does not want the slave to
          stop working to pick up Metzi'os. (Therefore, the slave
          acted on his own behalf. He must compensate his master
          for the time he stopped working to take the object.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> The case is, the slave picked it up
          while he worked. Since his labor was not diminished at
          all, he keeps it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #3 (Rav Papa):</font></b> The Beraisa discusses a worker
          hired to pick up Metzi'os.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Who would hire a worker for this?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> A river overflowed its banks, taking many
               fish with it; the overflowed water dried up, leaving
               many dead fish.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case of the Amah (Yisraelis slave)
          in the Mishnah?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If she brought two hairs (after 12 years , and
               became a Na'arah), she is free!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If she is still a minor, if she has a father, he
               gets her Metzi'os. If her father died, that frees
               her!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Reish Lakish):</font></b> A Kal va'Chomer teaches that a
                    Yisraelis slave goes free if her father dies.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> (She is a minor, and her father died.) Reish
          Lakish was refuted.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Also our Mishnah refutes Reish Lakish!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> We could say that her father is alive (and he
          gets her Metzi'os). The Mishnah says 'they belong to
          them' only to teach that the master does not receive
          them.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> What his ex-wife finds...
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Obviously, she keeps what she finds!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, she is divorced and not divorced
          (i.e. Safek divorced).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Zeira):</font></b> Wherever the Tana'im said 'divorced and
               not divorced', her husband must feed her.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Normally, Chachamim enacted that a man gets his
               wife's Metzi'os, to avoid enmity. Here, enmity is
               preferable (so he will divorce her absolutely)!
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>A FOUND DOCUMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Meir):</font></b> If one finds a document saying that
          Reuven lent money to Shimon, if it has Achrayus (it puts
          a lien on Shimon's land), he may not return it, because
          Beis Din will make Shimon pay;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it has no Achrayus, he should return it, because
               Beis Din will not make him pay.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, in either case he may not return it,
               because Beis Din will make him pay.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon admits (that he owes the money), if it has
               Achrayus why not return it?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he does not admit, if it has no Achrayus, why
               should one return it?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Granted, Reuven cannot collect from land that
                    Shimon sold, but he can collect from Shimon's
                    own property (and money)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Really, Shimon admits. We are concerned lest
          the loan was given after the date on the document;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven could use the document to illegally collect
               property that Shimon sold after the date but before
               the loan was given.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If so, we should be concerned for this
          regarding all documents!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> We are concerned only when something is amiss
          (e.g. the document was lost).
<br>

<p>

sjt:
</p><p>
<font><b>3) AN ADULT 'KATAN'</b></font><b>
<br>QUESTIONS:</b> The Mishnah (12a) states that when children who are Ketanim (minors) find a Metzi'ah, the Metzi'ah belongs to their father. When children who are Gedolim (adults) find a Metzi'ah, they keep it for themselves. Rebbi Chiya bar Aba in the name of Rebbi Yochanan explains that when the Mishnah refers to one's children who are Gedolim, it does not mean literally Gedolim, and when the Mishnah mentions one's children who are Ketanim, it does not mean literally Ketanim. Rather, the term 'Katan' refers to a child (whether a minor or adult) who is still supported by his father, and 'Gadol' refers to a child (whether a minor or adult) who is not supported by his father.
</p><p>
(a) Why does Rebbi Chiya bar Aba in the name of Rebbi Yochanan take the words in the Mishnah out of their literal and straightforward meaning? What is problematic with explaining the word 'Ketanim' to mean minors, and the word 'Gedolim' to mean adults (which indeed is the way Shmuel (12a) understands the Mishnah)?
</p><p>
(b) Why does Rebbi Chiya bar Aba switch the order of the words as they appear in the Mishnah? The Mishnah first mentions 'Ketanim' and then 'Gedolim,' while Rebbi Chiya bar Aba changes the order and says that ''Gadol' is not literal, and 'Katan' is not literal.'
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>IMREI ZUTRI</b> answers the first question as follows. Rebbi Yochanan infers from the Mishnah's words that 'Katan' and 'Gadol' are not to be understood literally. The Mishnah separates the cases of the Metzi'ah of one's child who is a Gadol, the Metzi'ah of one's Jewish servants, and the Metzi'ah of one's wife whom he divorced, and writes them as three distinct cases instead of combining them all into one case ('the Metzi'ah of one's child who is a Gadol, one's Jewish servants, and one's wife whom he divorced'). Rebbi Yochanan infers from this that the Tana of the Mishnah wants to show that the three cases are not identical in their other aspects. In the case of one's child who is a Gadol, the Halachah (that the Metzi'ah belongs to the child) depends on whether the child is supported by his father. In contrast, in the case of the Metzi'ah of one's divorced wife, even if the wife is still supported by the husband (as in the case of 'Megureshes v'Eino Megureshes,' as the Gemara later explains the Mishnah), she still keeps her Metzi'ah.
</p><p>
 (b) The <b>TORAS CHAIM</b> answers that Rebbi Yochanan derives his explanation from the end of the Mishnah that says that the Metzi'ah of one's children who are Gedolim belong to them. If the Mishnah refers literally to an adult child, it is obvious that what he finds belongs to him; there is no need for the Mishnah to teach that he keeps his findings. The Mishnah must refer not to an actual adult child, but to a child who is a Katan but who is considered an adult in this regard when he is not supported by his father.
</p><p>
From the fact that the reference at the end of the Mishnah to children who are Gedolim is not literal but refers to children who are not supported by their father, Rebbi Yochanan derives that the beginning of the Mishnah -- which mentions children who are Ketanim -- is also not literal, and it means children who are supported by their father.
</p><p>
This also answers the second question. Since Rebbi Yochanan derives that the 'Ketanim' of the Reisha of the Mishnah is not literal only from the word 'Gedolim' of the Seifa of the Mishnah, he therefore changes the order and says that 'Gadol' is not literal before he says that 'Katan' is not literal. (I. Alsheich)
</p><p>
(Shmuel, on the other hand, who understands the Mishnah in its literal sense, does not make the same inference -- that 'Gedolim' in the Seifa of the Mishnah cannot be literal for otherwise there is no Chidush. Rather, he maintains that there indeed is no Chidush when the Seifa of the Mishnah mentions children who are Gedolim, and the Mishnah mentions that law only to parallel the Reisha which mentions children who are Ketanim (in which case there is a Chidush). Rebbi Yochanan counters that just as the other two cases in the Seifa teach a Chidush, so, too, the case of children who are Gedolim must also teach a Chidush.)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CONCERN FOR FRAUDULENT COLLECTION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> We may write a document for the
          borrower in the lender's absence.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why is this l'Chatchilah? Perhaps he will not lend
               the money on the date of the document, and he will
               improperly take land from people who bought before
               the loan!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rav Asi):</font></b> The Mishnah discusses Hakna'ah
          documents, in which the borrower puts a lien on his land
          immediately (so the collection is proper).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah says that if it has Achrayus, the
          finder may not return it. We said that this is when
          Shimon admits that he owes. We are concerned lest the
          loan was given after the date on the document, and Reuven
          will collect improperly from property sold before the
          loan;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is a Hakna'ah document, the collection is
               proper;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it is not a Hakna'ah document, it would be
               written only in front of the lender. Surely, the
               loan was the same day!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Asi):</font></b> The Halachah is, a document without
          Hakna'ah should be written only in front of the lender;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since this document was lost, we are concerned lest
               it was written (improperly) in the lender's absence.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (to Question (a) - Abaye):</font></b> Even if a document
          is not Hakna'ah, when witnesses sign, the lender
          immediately acquires (a lien on the borrower's land).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Abaye did not learn like Rav Asi, due to this
               question. Since documents that are not Hakna'ah are
               written only in front of the lender, we should not
               be concerned lest the money was not given on the
               date!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (against Abaye - Mishnah):</font></b> If one finds a Get of
          divorce or freedom, a document of a gift from a dying man
          or a receipt, he may not return it, perhaps they were
          written and never given.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why should this matter? When witnesses sign, the
               lender acquires immediately!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> He acquires only if the document is ultimately
          given.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah says that if it has Achrayus, we do
          not return it. We established this to be when Shimon
          admits, lest the loan was given after the date (and
          Reuven will collect illegally).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (Rav Asi - above):</font></b> This refers to documents
          that are not Hakna'ah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Abaye says that when witnesses sign, the lender
               acquires immediately. How can he answer?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (Abaye):</font></b> We are concerned lest the loan was
          already repaid. The borrower admits because he is
          scheming to help the lender collect from buyers illegally
          (and share the profit).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ANOTHER EXPLANATION OF THE MISHNAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Shmuel is not concerned for repayment and
          scheming. How can he answer?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1:</font></b> If he learns like Rav Asi, he can answer like
          Rav Asi.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, if he learns like Abaye, how he can answer?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2:</font></b> The Mishnah discusses when Shimon does not
          admit.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If so, when there is no Achrayus, why do we
          return the document?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Granted, Reuven cannot collect from land that Shimon
               sold, but he can collect from Bnei Chorin (property
               that Shimon owns)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Shmuel says (like he said elsewhere) that
          according to R. Meir, a document without Achrayus cannot
          be used to collect at all.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If it cannot be used for collection, why return
          it?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Noson bar Oshiya):</font></b> The lender can use the
          parchment to cork a bottle.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Why don't we return it to the borrower?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The borrower claims that the lender forged the
          document.
<br>
<br>

sjt:
<font><b>1) ACCEPTING THE BORROWER'S WORD WHEN DOING SO WILL CAUSE A LOSS TO OTHERS</b></font><b>
<br>QUESTION:</b> The Mishnah (12b) states that when one finds a Shtar Chov which includes Achrayus, the finder may not give it back to the Malveh (lender) because the Shtar will give him the ability to collect the property which Lekuchos (purchasers) bought from the Loveh (borrower) after the Shtar was written. If the Shtar does not include Achrayus, the finder may give it back to the Malveh (according to Rebbi Meir) because such a Shtar cannot be used to collect from Lekuchos. The Gemara questions what case the Mishnah is discussing. If it is discussing a case in which the Loveh admits that he owes the money, then why may the finder not give the Shtar back to the Malveh when it includes Achrayus? If, on the other hand, the Loveh denies that he owes money, then why can the finder give the Shtar back to the Malveh when it includes no Achrayus? The Malveh might use the Shtar to collect from the Nechasim Bnei Chorin of the Loveh unjustly (since the Loveh denies that he owes the money).
</p><p>
Abaye (13a) answers that in the case of the Mishnah, the Loveh admits that he owes money. Why, then, may the finder return the Shtar to the Malveh when the Shtar contains Achrayus? After all, the Loveh admits that the Shtar is valid. Abaye answers that 'Chaishinan l'Pira'on ul'Kinunya' -- Beis Din is concerned that the Loveh already paid back his debt, received the Shtar in return, lost it, and now is attempting to conspire with the Malveh to cheat the Lekuchos out of their money by claiming that he did not yet repay the loan and that the Shtar is still valid. If Beis Din permits the finder to return the Shtar to the Malveh in such a case, the Malveh will be able to use the Shtar to collect the property from the Lekuchos and he will split the profits with the Loveh. This is why the finder may not give back to the Malveh a Shtar with Achrayus, even when the Loveh admits that the Shtar is valid.
</p><p>
This implies (as the Gemara asks on Abaye before it presents the issue of 'Chaishinan l'Pira'on ul'Kinunya') that had the Chachamim not been afraid that the Loveh and Malveh are conspiring together, the Loveh <i>would</i> be believed to say that he did not yet pay back the loan (because Beis Din accepts 'Hoda'as Ba'al Din,' the debtor's own admission), and the Shtar would be given back to the Malveh. This inference contradicts the opinion that 'Hoda'as Ba'al Din' is <i>not</i> accepted when it will cause a loss to others -- 'b'Makom she'Chav l'Acherim.' (See <b>ROSH</b> to Kesuvos 19a, and <b>KETZOS HA'CHOSHEN</b> 99.) This is because a person's word is accepted only to obligate himself; his word is not accepted to obligate <i>others</i>. Here, the Loveh's admission that he owes the money will cause a loss to others -- to the Lekuchos who purchased his property and from whom the Malveh now will be able to collect the debt. Why, then, would Beis Din accept the Loveh's admission and return the Shtar to the Malveh if not for the problem of 'Chaishinan l'Pira'on ul'Kinunya'?
</p><p>
<b>ANSWER: RAV SHMUEL ROZOVSKY</b> zt'l (in Shi'urim to Gitin 2a, and in Chidushim to Gitin #21-22) explains as follows. 'Hoda'as Ba'al Din' is not a proper testimony and is accepted only because of a Gezeiras ha'Kasuv that teaches that one's word is believed ('k'Me'ah Edim Dami') to obligate himself. However, the concept of 'Hoda'as Ba'al Din' applies only with regard to monetary matters. Hence, its limited effectiveness (to a case where it does not cause a loss to others) also applies only to testimony about monetary matters. The case of the Gemara here, however, is not judged as a monetary case, but rather is viewed primarily as a case of 'Hashavas Aveidah,' returning a lost item (i.e. the Shtar). The question in this case is whether the Shtar that was found may be returned to the Malveh or not. The testimony of witnesses is not necessary in such a case (as it is necessary in a case of a monetary matter), but rather any clear indication, such as the Loveh's own admission, suffices (see <b>RAN</b> in Chulin 96a) to permit the return of the Shtar to the Malveh. Since the return of the Shtar is not based on the normal concept of 'Hoda'as Ba'al Din,' it is also not subject to the usual limitation of 'Hoda'as Ba'al Din.' Thus, the Loveh's admission is effective even though it will cause a loss to the Lekuchos.
</p><p>
This is explained further by <b>RAV SHIMON SHKOP</b> zt'l (in <b>SHA'AREI YOSHER</b> 6). The return of a lost object is not viewed as a monetary matter, because from the point of view of monetary law whenever there is a claim of certainty ('Bari') versus a claim of uncertainty ('Shema') and no one is Muchzak (in possession of the item in doubt), the one with the claim of 'Bari' prevails. In a case of Hashavas Aveidah, the only matter that needs clarification is whether the person who claims to be the rightful owner of the object is telling the truth (Bava Metzia 27b). The testimony of a single witness suffices for this, as does 'Hoda'as Ba'al Din.' Therefore, if not for the concern that the Loveh and Malveh are conspiring, the Shtar would be returned to the Malveh based on the Loveh's admission, because his admission clarifies the doubt at hand (whether or not the Malveh is telling the truth). The fact that returning the lost object to its owner might cause the Lekuchos to suffer a loss is not relevant, because that is only a secondary, indirect result of accepting the Loveh's word with regard to the Hashavas Aveidah. (See also <b>CHIDUSHEI HA'GRIZ HA'LEVI</b> to the Rambam, Hilchos Aveidah 18:14.) (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES KINYAN SUFFICE TO COLLECT FROM MESHUBADIM?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> We may write a document for the borrower
               in the lender's absence.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why is this l'Chatchilah? Perhaps he will
               lend the money after the date, and the lender will
               improperly take land from people who bought before
               the loan!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1 (Rav Asi):</font></b> The Mishnah discusses Hakna'ah
               documents, in which the borrower puts a lien on his
               land immediately (so the collection is proper).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> The Mishnah says that one who finds a
               document with Achrayus should not return it. We said
               that this is when the borrower admits that he owes.
               We are concerned lest the loan was given after the
               date on the document, and the lender will collect
               improperly from property sold before the loan;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it is a Hakna'ah document, he is entitled to
                    collect. If it is not a Hakna'ah document, it
                    is written only in front of the lender. Surely,
                    the loan was the same day!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (Rav Asi):</font></b> The Halachah is, a document
               without Hakna'ah should be written only in front of
               the lender. Since this document was lost, we are
               concerned lest it was written (improperly) in the
               lender's absence.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2 (to Question (a) - Abaye):</font></b> Even if a
               document is not Hakna'ah, when witnesses sign, the
               lender immediately acquires (a lien).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> Bava Basra 172a - Rava bar Rav Shila (to scribes):
               When you write an Hakna'ah document (in which a
               Kinyan Chalipin was done), if you know the date of
               the Kinyan, write it. If not, write the current
               date, lest it look like Sheker.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Kesuvos 102a (Mishnah):</font></b> If Levi married Leah and
               agreed to feed her daughter Dinah for five years, he
               must feed her for five years. If Levi died, his own
               daughters are fed from Benei Chorin. Dinah is fed
               even from Musafim (property sold after he accepted
               to feed her), because she is like a creditor.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 102b:</font></b> The case is, the commitment was acquired
               through Chalipin.
<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 6a):</font></b> We establish the Mishnah to
               discuss Hakna'ah documents. I.e. it has a Kinyan, in
               which the borrower immediately was Meshabed himself
               to the lender for a certain amount. If there was no
               Kinyan, there is no Shibud until the document is
               written.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Rosh 1:36):</font></b> Since the document says
                    that Ploni borrowed from Ploni, why does it
                    make a difference whether or not there is a
                    Kinyan? Shibud is mid'Oraisa! Whatever one
                    owes, there is a lien on his property to pay
                    it! Witnesses who sign make a Kol, not
                    witnesses who saw a Kinyan! Rather, Rashi
                    explained that in a Hakna'ah document, the
                    borrower was Makneh his property to the lender.
                    Whether or not he will lend, he may collect
                    from the date on the document. It is astounding
                    that one was Meshabed his property before the
                    loan. This causes a Kol from when it is
                    written.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b>The Rif (Bava Basra 79b) brings Rava bar Rav Shila's
               teaching.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Omar):</font></b> The Ri says that a
                    Kinyan is destined to be written, therefore
                    there is a Kol from the time of the Kinyan.
                    However, if they do not write the document, the
                    Kol is Batel. Ba'al ha'Itur and the Ro'oh say
                    that even loan documents can be written from
                    the time of the Kinyan, unless it is now after
                    the loan was due, for then we are concerned
                    lest it was paid. The Rashba says that we may
                    write as long as the borrower does not protest.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 23:5):</font></b> If a document has a
               Kinyan, we may write it for the borrower in the
               lender's absence, for the borrower was immediately
               Meshabed his property. If there was no Kinyan, we
               may write only when the lender is here, and we will
               see the borrower give the document to him, lest it
               be given later and he will be Toref from the date,
               improperly.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Gitin 2:7):</font></b> We disqualify a document signed
               the night after it was written when there was no
               Kinyan. If there was a Kinyan, there is no concern.
               We say in Bava Basra that witnesses may write a
               document from the day the Kinyan was made, if they
               remember it.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (Bava Basra 10:31):</font></b> The document is not
               predated. Since the document was written, witnesses
               publicize it from the day of the Kinyan. Normally,
               people borrow covertly. Here, he generously was
               Meshabed his property, so there is a Kol. In Gitin,
               we disqualify a document signed the night after it
               was written. This is when there was no Kinyan.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rashbam (172a DH l'Hanach):</font></b> Rav Shila permits only
               documents of gift or sale, but a loan document may
               be written only on the current day. One may be Toref
               from buyers only from the day it is written. If the
               day of the loan is written, the lender can be Toref
               illegally. R. Chananel explains that the Shibud is
               from the time of the Kinyan. What I wrote is
               correct.
<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 39:1):</font></b> If witnesses say that he
               made a Kinyan (in which the borrower was Meshabed
               his property to the lender), even if it was not
               written, he collects from Meshubadim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (4):</font></b> We find in Kesuvos 102b that Kinyan
                    enables collecting from Meshubadim. The Poskim
                    hold that Shitrei Aknaisa, even for loans,
                    enable collecting from Meshubadim, unlike the
                    Rashbam. Bava Metzi'a 13a supports this,
                    according to the Rif and other Poskim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (43:16):</font></b> If a document was written
               during the day and signed at night, it is Pasul.
               However, if he immediately acquired through a Kinyan
               it is Kosher, even if it was signed only much later.
               Therefore, if witnesses saw the Kinyan and wrote the
               document much later, if they remember the date of
               the Kinyan, they write that day. If not, they write
               the current day.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Davka):</font></b> The Rosh and Ran learn 
                    this from Bava Basra 172a. The Rashbam explains
                    that a loan document may be written only on the
                    current day. If the day of the Kinyan is
                    written, the lender can be Toref illegally. R.
                    Chananel explains that the Shibud is from the
                    time of the Kinyan. It seems that the Rambam
                    agrees, for he did not distinguish.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (39:2):</font></b> A Kinyan Sudar (Chalipin) in front
                    of witnesses shows that he is not concerned for
                    publicity. The witnesses will publicize it,
                    even if no document was written. This is why
                    the Shulchan Aruch concludes that Kinyan
                    suffices, unlike the Nimukei Yosef and Rashbam.
                    This is only if the witnesses are here and
                    remember when the Kinyan was. If not, even if
                    the borrower admits that he borrowed on this
                    date, and other witnesses saw the Kinyan, he
                    cannot collect from Meshubadim, for only the
                    witnesses who did the Chalipin publicize the
                    matter. We must be concerned lest they forgot
                    the matter, so a dated document is needed to
                    collect from Meshubadim.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Shach 35 and Gra 29):</font></b> He collects
                    from Meshubadim even if no document was ever
                    written, for we hold that Kinyan has a Kol,
                    like the Shulchan Aruch said (39:1). This is
                    like most Poskim, and unlike the Rosh.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Taz:</font></b> In Siman 39, the Shulchan Aruch allows
                    collecting from Meshubadim without a document.
                    This refers to within the time (before the loan
                    was due). Here we discuss after the time, and
                    witnesses signed before the time.
<br>

<p>


lvr: 42
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE ARGUMENT IN THE MISHNAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> The argument in the Mishnah is when Shimon
          does not admit. R. Meir says that a document without
          Achrayus cannot be used to collect at all. Chachamim hold
          that in can be used to collect from Bnei Chorin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When Shimon admits, all agree that we return it. We
               are not concerned for repayment and scheming.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> They argue about when Shimon admits. R.
          Meir agrees that a document without Achrayus can be used
          to collect from Bnei Chorin. Chachamim hold that it can
          be used to collect even from Meshubadim (property that
          the borrower sold).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When Shimon does not admit, all agree that we do not
               return it. We are concerned for repayment.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	A Beraisa supports R. Yochanan, refutes R. Elazar in one
          point, and refutes Shmuel in two points.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa - R. Meir):</font></b> If Levi found a document with
          Achrayus, even though the lender and borrower agree, he
          may not return it to either;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the document has no Achrayus, if the borrower
               agrees, Levi returns it to the lender. If not, he
               may not return it to either.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is because documents with Achrayus can be used
               to collect even Meshubadim. Documents without
               Achrayus can be used to collect from Bnei Chorin.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim say, either can be used to collect even
               Meshubadim.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> This refutes R. Elazar, who said that R. Meir says
               that a document without Achrayus cannot be used to
               collect at all;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Also, R. Elazar said that neither Tana is
                    concerned for scheming, but the Beraisa is
                    concerned (it says not to return a document
                    with Achrayus even when both admit)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> R. Elazar is refuted on two points! (Above, we
          said that he is refuted on only one)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Both points stem from one source;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Because he says that they argue only when Shimon
               does not admit, he was forced to say that neither is
               concerned for scheming.
<br>

<p>

sjt:
</p><p>
<font><b>2) RETURNING A LOST 'SHTAR CHOV' TO THE LENDER</b></font><b>
<br>QUESTION:</b> The Mishnah (12b) records a dispute between Rebbi Meir and the Rabanan regarding returning a lost Shtar to the Malveh. When one finds a Shtar Chov which includes Achrayus, Rebbi Meir and the Rabanan agree that the finder may not give it back to the Malveh, because the Malveh might use the Shtar to collect unjustly the property of the Lekuchos which they purchased from the Loveh after the Shtar was written. If the Shtar does not include Achrayus, the finder may give it back to the Malveh, because it cannot be used to collect from Lekuchos.
</p><p>
The Gemara (12b) questions what case the Mishnah is discussing. If it is discussing a case in which the Loveh admits that he owes the money, then why is the finder not permitted to give the Shtar back to the Malveh when it includes Achrayus? If, on the other hand, the Loveh denies that he owes money, then why is the finder permitted to give the Shtar back to the Malveh when it includes no Achrayus? The Malveh might use the Shtar to collect from the Nechasim Bnei Chorin of the Loveh unjustly (since the Loveh denies that he owes the money).
</p><p>
Rebbi Elazar answers that in the case of the Mishnah, the Loveh <i>denies</i> that he owes the loan written in the Shtar. The reason why Rebbi Meir allows the finder to return the Shtar to the Malveh when it has no Achrayus is that a Shtar without Achrayus is worthless; it cannot be used to collect from Nechasim Meshubadim <i>or</i> from Nechasim Bnei Chorin. The Rabanan disagree and maintain that such a Shtar may be used to collect from Nechasim Bnei Chorin, and therefore it may not be returned to the Malveh.
</p><p>
However, when the Loveh admits that he owes the money as written in the Shtar, Rebbi Elazar says that both Rebbi Meir and the Rabanan agree that the Shtar may be returned to the Malveh even when the Shtar includes Achrayus. Rebbi Elazar maintains that the Loveh and Malveh are not suspected of conspiring together to cheat the Lekuchos (Beis Din does not suspect 'Pira'on ul'Kinunya'; see previous Insight). (Rebbi Elazar understands the Mishnah (12b) as Shmuel (13a) understands it.)
</p><p>
Although Rebbi Elazar rejects the notion of 'Chaishinan l'Pira'on ul'Kinunya,' why is he not concerned that perhaps the Loveh wrote the Shtar in Nisan and did not borrow the money until Tishrei? The Shtar should not be returned to the Malveh because perhaps it is a 'Shtar Mukdam' which could be used to collect unjustly from Lekuchos.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ROSH</b> (cited by the Shitah Mekubetzes) answers that according to Rebbi Elazar, there is no reason to suspect that the Shtar was written in the absence of the Malveh and without the loan taking place at that time (as the Gemara says on 13a when it questions Rav Asi's answer).
</p><p>
(b) <b>TOSFOS</b> and the <b>ROSH</b> answer further that Rebbi Elazar agrees with the position of Abaye, who says (13a) that a Shtar takes effect immediately when witnesses sign it, such that the property of the Loveh becomes collateralized immediately to the Malveh, even if the loan itself does not take place until later. There is no problem of 'Shtar Mukdam' since the property that was sold before the actual loan is indeed subject to collection by the Malveh. Rebbi Elazar adds only that there is not even a problem of 'Chaishinan l'Pira'on ul'Kinunya.'
</p><p>
The Rosh adds that it is logical to assume that Rebbi Elazar agrees with Abaye in this regard, because if he agrees with Rav Asi's position (that when the witnesses sign the Shtar it does <i>not</i> immediately take effect), he should say explicitly that there is no concern that the Shtar was written in Nisan but the loan took place only later in Tishrei, just as he explains that there is no issue of 'Chaishinan l'Pira'on ul'Kinunya.'
</p><p>
(c) The <b>RITVA</b> cites <b>RABEINU TAM</b> who answers that Rebbi Elazar understands that the Mishnah refers to a Shtar Hakna'ah (a Shtar in which the Loveh gave the Malveh the rights to his property from the day the Shtar was written, regardless of whether or not he ultimately receives the loan). Therefore, even if the Shtar was written in Nisan and the money was borrowed only in Tishrei, the Shtar is not a 'Shtar Mukdam' and the Malveh may use it legally to collect from the Lekuchos.
</p><p>
The Ritva questions this explanation. If Rebbi Elazar understands that the Mishnah refers to a Shtar Hakna'ah, the Rabanan should agree with Rebbi Meir that even when the Loveh <i>denies</i> that he owes the money, the Shtar should be returned to the Malveh. After all, Rebbi Elazar neither suspects that there is a conspiracy between the Loveh and Malveh nor is concerned that the Shtar is a 'Shtar Mukdam,' since it is a Shtar Hakna'ah.
</p><p>
The Ritva answers that the Rabanan do not permit the Shtar to be returned to the Malveh when the Loveh denies that he owes money because they indeed are concerned that the Loveh paid back the debt. Since the Loveh claims that he paid the debt, the Rabanan maintain that it is a valid concern. In contrast, when the Loveh admits that he owes the money, they are not concerned that he paid back the debt and is now conspiring with the Malveh to cheat the Lekuchos. (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE BERAISA REFUTES SHMUEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Shmuel establishes the Mishnah like R. Elazar. The
          Beraisa refutes him like it refutes R. Elazar.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Also, Shmuel said that one who finds a Hakna'ah document
          should return it, for we are not concerned for repayment.
          The Beraisa says that we do not return a document with
          Achrayus, even when both admit. This implies that we are
          concerned;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> All the more so, when the borrower does not admit,
               we are concerned!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> Chachamim hold that every document should have
          Achrayus. If it is not mentioned in the document, we
          attribute this to a mistake of the scribe, and we
          consider it as if Achrayus is written in the document.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rava bar Isi):</font></b> This contradicts another
          teaching of Shmuel!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> A scribe must consult (with Reuven, the
               seller of a field) before writing the following
               provisions in the document (in case a creditor will
               take the field from the buyer (Shimon)):
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Improvements (if Shimon improved the field and
                    it was taken, Reuven compensates him);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Idis (Shimon will be compensated from highest
                    quality land);
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>A lien (on Reuven's property to repay Shimon if
                    the land is taken).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> One of these teachings was mistakenly
               said in Shmuel's name.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> No. Regarding a loan, every document should have
          Achrayus. One lends money only on condition to get it
          back;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding a sale, the scribe must consult. People
               sometimes buy land for a day (i.e. without assurance
               that they will keep it a long time).
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Avuha bar Ihi bought an upper story from his sister. His
          sister's creditor took it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shmuel:</font></b> Did she write for you Achrayus?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Avuha:</font></b> No.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shmuel:</font></b> You receive no compensation.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Avuha:</font></b> You hold that if Achrayus is not mentioned in
               the document, this is a scribal mistake!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shmuel:</font></b> That refers to a loan. Regarding a sale,
               people sometimes buy land for a day.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>LAWS THAT MIGHT DEPEND ON WHETHER OR NOT ONE SOLD WITH ACHRAYUS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #1 (Abaye):</font></b> If Reuven sold a field to Shimon with
          Achrayus, and Reuven's creditor (Levi) took it, Reuven
          can take Levi to Beis Din to contest this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Levi cannot say 'you have no claim against me (since
               I did not take from you)', because Reuven must
               compensate Shimon for what Levi took.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #2 (Abaye):</font></b> Even if Reuven sold without Achrayus,
          he can take Levi to Beis Din. (Even though Reuven need
          not compensate Shimon,) he can say 'I don't want Shimon
          to bear a grudge against me.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #1 (Abaye):</font></b> If Reuven sold a field to Shimon
          without Achrayus, and people protested (said that the
          field belongs to them), before Shimon makes a Chazakah,
          he can withdraw from the sale. After making a Chazakah,
          he cannot.
<br>
<br>

sjt:
<font><b>1) ARGUING A CASE IN COURT FOR SOMEONE ELSE</b></font><b>
<br>QUESTION:</b> The Gemara teaches that if Reuven sells a field to Shimon with Achrayus, and then Reuven's lender comes and tries to take the field from Shimon, <i>Reuven</i> may defend Shimon's case in court in order to stop the lender from collecting the land from Shimon, since Shimon's loss ultimately will affect Reuven as well.
</p><p>
What difference does it make whether Reuven comes to court or not? If there is a valid claim which can prevent the lender from collecting the land, why can Shimon not use that claim without bringing Reuven to court? (Reuven could tell Shimon the claim out of court and let Shimon make the claim himself in court.)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> here (and in Kesuvos and Bava Kama) explains that the reason why Reuven would have to come to court is that he has a claim of <i>certainty</i> ('Bari') against the Malveh's Shtar. Shimon, who does not know the details for certain, can make at best a tentative claim ('Shema') and say that 'I <i>think</i> that the Shtar is not valid (because Reuven paid you or because you owed money to Reuven for some other reason and therefore he was entitled to withhold payment for this debt).' A claim of 'Shema' has no validity against a Shtar. In contrast, Reuven's claim of certainty ('Ta'anas Vadai') carries weight against a Shtar. The Rabanan instituted a Shevu'as Heses for one who challenges a claimant who has a 'Ta'anas Vadai.' Therefore, Reuven can cause the Malveh to swear a Shevu'as Heses in court, while Shimon cannot.
</p><p>
<b>TOSFOS RABEINU PERETZ</b> asks, why is it necessary for Reuven to cause the Malveh to swear a Shevu'as Heses? The Malveh must swear to <i>Shimon</i> anyway, before he may collect from him, because the Rabanan instituted a different Shevu'ah which requires anyone who collects a debt from Yesomim or Lekuchos to swear that he was not paid already for the debt. (The Rabanan require Beis Din to speak up on behalf of the Lekuchos, who are not expected to know how to counter the claim. Thus, Beis Din automatically imposes a Shevu'ah on anyone who comes to collect from Lekuchos.)
</p><p>
<b>TOSFOS</b> in Kesuvos (92b) answers that the difference that Rashi gives for when Reuven makes the claim instead of Shimon (i.e. the ability to make the Malveh swear a Shevu'as Heses) will apply in a case in which Shimon pardoned to the Malveh the Shevu'ah of Lekuchos. In such a case, only Reuven can make the Malveh swear, through a 'Ta'anas Vadai' which obligates him to make a Shevu'as Heses.
</p><p>
(b) <b>TOSFOS</b> explains that the difference might be in a case in which Shimon announces in court that he has no evidence to disprove the claim of the Malveh. If he does try to bring evidence afterwards, Beis Din cannot accept it (Sanhedrin 31a). On the other hand, Reuven never announced that he had no witnesses, so he still may bring witnesses to court to disprove the Malveh.
</p><p>
(c) The <b>RASHBA</b> and <b>NIMUKEI YOSEF</b> (in Bava Kama) and the <b>RAN</b> here explain that Shimon would need Reuven to make the claim for him in court in a case in which the land that Shimon bought is an Apotiki for a loan. The Halachah is that a buyer cannot pay with money to redeem land that is an Apotiki for a loan. Rather, the Malveh is entitled to take the land itself. The borrower himself, however, may redeem the Apotiki by paying money for the loan that he received, and he thereby can prevent the Malveh from collecting the Apotiki. Therefore, if Reuven comes to court and says that he will pay back the loan to the Malveh, he can prevent Shimon from losing the property.
</p><p>
However, if this is the case, why is Reuven, the borrower, permitted to become involved in the case for the benefit of Shimon? The Gemara explains that Reuven is permitted to become involved because Shimon's loss affects him, since he will need to reimburse Shimon if the land is confiscated. If Reuven agrees to pay the loan, then it should make no difference to him whether Shimon wins the case or the Malveh wins; in either case he will have to pay someone back -- either the Malveh or Shimon!
</p><p>
They answer that it is still to Reuven's benefit for Shimon not to lose his land, because when a Malveh collects land, the land is assessed at the value that it was worth at the time that Shimon purchased it. If it naturally rises in value (without Shimon investing anything in it) before the time that the Malveh takes it from Shimon, then the Malveh keeps the profit. Shimon, however, may demand from Reuven, the borrower, <i>full</i> reimbursement of his loss, including the additional value. Therefore, if Shimon loses the field, Reuven will have to pay <i>more</i> to reimburse Shimon than he would have to pay to the Malveh.
</p><p>
(d) <b>TOSFOS</b> here suggests further that there would be a difference in the case of a Gilgul Shevu'ah. If, because of some different case in which they are involved, the Malveh needs to make a Shevu'ah d'Oraisa to Reuven, the borrower, then Reuven may insist that the Malveh make a Shevu'ah <i>d'Oraisa</i> that he did not yet receive the loan repayment, through the Halachah d'Oraisa of 'Gilgul Shevu'ah.' This will make the Shevu'ah more severe than a Shevu'ah d'Rabanan, and therefore it is to Shimon's benefit for Reuven to come to court.
</p><p>
The <b>ME'IRI</b> cites others who suggest in a similar vein that the practical difference would be in a case in which Reuven has other claims for which he wants to make the Malveh swear. If Reuven represents this case for Shimon, then he may make the Malveh swear to his other claims as well through the Halachah of Gilgul Shevu'ah (d'Rabanan). (According to the Me'iri, however, Reuven would be coming to court for his own benefit, and not for Shimon's benefit as the Gemara implies.)
</p><p>
(e) <b>TOSFOS RABEINU PERETZ</b> and <b>TOSFOS</b> here explain that it would be beneficial for Reuven to come to court if Reuven is more knowledgeable than Shimon and he might think of a claim that Shimon might not think of. Why, though, is this a reason for Reuven to come to court? Reuven should simply make suggestions to Shimon, who would then make the claims for himself!
</p><p>
Perhaps the court would not let Reuven advise Shimon in the middle of the case, because the Mishnah in Avos (1:8), cited in Kesuvos (52b), teaches that a person should not act like 'Orchei ha'Dayanim.'
</p><p>
Tosfos here suggests further that a person may insist that his opponent come with him to a greater Beis Din. If Reuven has the strength to go to a greater Beis Din, and Shimon does not have the strength, then Reuven may insist that the Malveh go with him to a greater Beis Din.
</p><p>
Finally, Tosfos suggests that it is beneficial for Reuven to argue the case in Beis Din because the Malveh might not be so brazen as to lie to Reuven's face and say that he was never repaid, whereas he would be brazen enough to lie to Shimon and say that he was never repaid, since Shimon does not know the truth.
</p><p>
(f) The <b>RITVA</b> upholds one of the differences which Tosfos here refutes. One might have suggested that Reuven would need to go to court when the witnesses who can testify that the loan was repaid are relatives of Shimon but not relatives of Reuven. In such a case, Shimon would not be able to bring those witnesses to court, but Reuven would be able to bring them. Tosfos asserts, however, that since the outcome of their testimony will also benefit Shimon (by allowing him keep the land that he bought from Reuven), these witnesses may not testify even for Reuven. Tosfos proves from the Gemara in Makos (7a) that the witnesses in such a case -- where their testimony is given primarily for an unrelated person, but it will affect a relative -- may not testify for the unrelated person. The Gemara there discusses a case of a debt in which the witnesses who testify on behalf of the borrower were related to the <i>guarantor</i> of the borrower. The Gemara there says that the witnesses are disqualified in that case and may not testify on behalf of the borrower or the lender, because if the borrower has no money to pay back the debt, the lender will collect the money from the guarantor.
</p><p>
The Ritva, however, disagrees with Tosfos and makes a distinction between this case and the case in Makos. In the case in Makos, the guarantor's property is also Meshubad to the loan, and thus when the witnesses testify about the loan their testimony directly affects the guarantor. In contrast, in the case of the Gemara here, Shimon -- who bought the field from Reuven -- has no connection to the loan, and his property is not Meshubad to the loan. The witnesses, therefore, would be permitted to testify that Reuven paid back the loan, even though as a result of that testimony Shimon, their relative, will be able to keep the land that he bought from Reuven. Their testimony is about the repayment of the loan, which has no connection to Shimon. Therefore, it indeed makes a different whether Reuven goes to court against the lender or Shimon goes to court.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES A CREDITOR COLLECT FROM ATTACHED PRODUCE?</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'> (Shmuel):</font></b> A creditor takes Shevach.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Inference:</font></b> He only takes Shevach, but not Peros!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rava):</font></b> A seller writes (in the sale document) 'I
               will silence any claims against this sale; the land,
               money invested in it and Shevach.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Shmuel says that a creditor must pay for Shevach
               (Peros) if it is Magi'a l'Kesafim.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Shmuel regularly rules that a creditor
               collects such Shevach for free!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> That is when he was owed the value of the
               land and the Shevach.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Shevu'os 42b (Mishnah - R. Meir):</font></b> If Reuven claimed
               'I entrusted you with 10 laden vines, and Shimon
               said 'you entrusted me with only five', he must
               swear.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> Chachamim say that anything attached is like land;
               he need not swear.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 43a (R. Yosi b'Rebbi Chanina):</font></b> They argue about
               grapes ready to be detached. R. Meir considers them
               as if they were already detached; Chachamim do not.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Kesuvos 50b:</font></b> Rav Yosef ruled that daughters be fed
               from dates on mats.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question (Abaye):</font></b> A creditor would not collect from
               them (they are Metaltelim)!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer (Rav Yosef):</font></b> I discuss dates ready to be
               (detached and) put on mats.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question:</font></b> What is ready to be detached is considered
               detached (i.e. Metaltelim)!
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer (Rav Yosef):</font></b> I discuss dates that must remain
               on the tree a little longer.
<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 8b):</font></b> A creditor collects attached
               Peros. This is like we say, that Shmuel regularly
               collects even Shevach ha'Magi'a l'Kesafim, i.e.
               Peros ready to be detached and carried on the
               shoulder.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 21:2):</font></b> A creditor collects
               attached Peros, even if they do not need the ground,
               e.g. grapes ready to be detached.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> He explains Shevach ha'Magi'a
                    l'Kesafim like the Rif, R. Chananel and Rashi.
                    However, Rashi says that they still need the
                    land. The Ramban agrees, for if they do not
                    need the land at all, it is as if they are
                    detached (Kesuvos 51a). He says that also the
                    Rif means this. The Rashba agreed with the
                    Ba'al ha'Ma'or that he does not collect even
                    unfinished Peros, and answered the Gemara in
                    Kesuvos. Rashi's opinion is primary.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (CM 95 DH v'Chosav ha'Rambam):</font></b> The
                    Rambam holds like his Rebbi, Ri ha'Levi. R.
                    Meir and Chachamim argue only about Shomrim.
                    For everything else, what is ready to be
                    detached is considered detached.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Question (Lechem Mishneh and Shach 115:18):</font></b> Why
                    does the Rambam allow collection? This is not a
                    case of Shomrim! The Rambam learned from
                    Kesuvos that we exempt from Shevu'ah only when
                    they need the land a bit!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer #1 (Lechem Mishneh):</font></b> In Kesuvos, we
                    merely say that they are like Metaltelim. Here,
                    even if they are Metaltelim, the buyer never
                    acquired them for he did not detach them,
                    therefore a creditor collects them.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer #2 (Shach):</font></b> The Rambam holds that they
                    are like land only regarding Shomrim, for they
                    were meant to stay attached. Here also, the
                    creditor wants them to remain attached to his
                    land so he can collect them.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Drishah (95:5):</font></b> In Hilchos To'en (5:4) the
                    Rambam said 'grapes ready to be detached...',
                    and added 'this is if they do not need the land
                    any more.' He explains that the Tana'im argue
                    about grapes ready to be detached, but they
                    still need the land a little. The Rambam rules
                    like Chachamim. He distinguished like this so
                    that the Gemara in Kesuvos is like Chachamim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Kesuvos 8:7):</font></b> R. Yonah says that if there was
               finished produce ready to be detached on her Nichsei
               Melug when she was widowed or divorced, she gets it.
               Normally, anything ready to be detached is
               considered to be detached. Here is different.
               Chachamim enacted that a husband eats the Peros,
               i.e. only what he actually detached during the
               marriage. Ri ha'Levi challenged the Rif from Bava
               Basra 136a; a buyer is compensated for finished
               attached Peros when land is taken from him. R. Yosef
               concluded that the Halachah follows Chachamim. What
               I said upholds the Rif's ruling that they are
               considered detached.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Bava Metzi'a 1:39):</font></b> A creditor collects
               attached Peros almost ready to be detached, but they
               need the land a bit more. This is like we say in
               Kesuvos; a creditor collects dates that are ready
               for mats but still need the land a bit.
<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 115:1):</font></b> A creditor collects all
               attached Peros, even if they do not need the ground,
               e.g. grapes ready to be detached.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Prishah (10):</font></b> The Beis Yosef says that the Tur
                    rules like the Rosh, that if they do not need
                    the ground at all, it is as if they were
                    detached. If so, when the Tur says that a
                    creditor does not collect what was detached, it
                    means (even) what is fully ready to be
                    detached.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (18,19):</font></b> Why didn't the Rema bring the
                    opinion of Rashi, the Rosh, Tur and many
                    others, that this is only if they need the land
                    a bit?!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (9):</font></b> This is like the Rif. He did not learn
                    like Rashi, because the Gemara suggested that
                    Shmuel collects only from Shevach ha'Magi'a
                    l'Kesafim. According to Rashi, neither Tana
                    distinguishes like this!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (95:9):</font></b> The Gemara in Kesuvos says that a
                    creditor or widow (who collects only land) did
                    not rely on collecting attached Peros, for the
                    orphans can harvest them if they want. If they
                    are summonsed to Din, surely they will do so!
                    For everything else, attached Peros are like
                    land. This also explains why slaves of orphans
                    are like Metaltelim for collection; creditors
                    do not rely on them, since the orphans can
                    divert (sell) them. The Rashbam (Bava Basra
                    128a DH v'Rav) and Ro'oh (cited in Nimukei
                    Yosef Bava Kama 34b) say so. We need not say
                    like the Rosh (Bava Kama 1:14) that one does
                    not collect from Metaltelim acquired Agav,
                    because Agav is mid'Rabanan. Rather, the
                    creditor did not rely on it. The Ba'al ha'Ma'or
                    (Bava Metzi'a 7a) says that a creditor does not
                    collect attached Peros even if they need the
                    ground. We must say that a creditor does not
                    rely on them, for buyers can detach them.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Gra (12):</font></b> The Rambam (Hilchos Malveh 21:2)
                    agrees about a creditor that it is as if they
                    are attached, because the seller wrote 'I will
                    silence any claims against this sale; the land,
                    money invested in it and Shevach. Regarding
                    orphans, it is as if they are detached.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHEN DO WE CONSIDER ATTACHED PRODUCE AS IF IT WERE DETACHED? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven can say 'you knew that you were taking a
               risk.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> When is it considered that Shimon made a
               Chazakah?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> It is from when he walks around the borders.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #2:</font></b> Even if Reuven sold with Achrayus, Shimon
          cannot retract after making a Chazakah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven can say 'if and when Beis Din rules that it
               is theirs, I will compensate you.'
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>COMPENSATION FOR IMPROVEMENTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> If Reuven sold a field to Shimon, and it was found
          that it was not Reuven's, Shimon receives what he paid,
          and is also compensated for Shevach (improvements that he
          made to the land).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> Shimon receives what he paid, but he is not
          compensated for Shevach.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> (According to Shmuel), if Reuven stipulated
          that he will compensate him for Shevach if it is taken,
          what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shmuel exempts from compensating for Shevach
               because he did not stipulate, here he stipulated (he
               is liable)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps Shmuel's holds that since Shimon never
               truly received land, it is as if he lent Reuven the
               money. If Reuven will compensate him, it will look
               like interest, so even if he stipulated, he does not
               pay?
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Rav Huna was unsure.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Nachman citing Shmuel):</font></b> Shimon receives what
          he paid. He is not compensated for Shevach, even if
          Reuven stipulated;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since Shimon never received land, it would look like
               Ribis.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rava - Mishnah):</font></b> It was enacted that the
          following are not paid from Meshubadim: Peros that were
          eaten (this will be explained), Shevach to land, and food
          for the widow and daughters.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They are not paid from Meshubadim, but they are paid
               from Bnei Chorin!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> 'Shevach to land' refers to when it was
               found to be stolen.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> No. It is when a creditor took it.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah teaches Peros that were eaten. A
          creditor who takes land does not take Peros!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> A creditor takes Shevach.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Inference:</font></b> He only takes Shevach, but not Peros!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> We must say that the Mishnah discusses Peros in a
               case when the land was stolen. Presumably, the same
               applies to Shevach!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> No. Peros are in a case when the land was stolen.
          Shevach is when a creditor took it.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Compensation for Shevach: if Yehudah
          stole David's field, when it is taken, he collects
          principal (what he paid) even from Meshubadim, and
          Shevach from Bnei Chorin (this will be explained).
<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 it is like the Beraisa says, who should pay
                    the thief?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, Yehudah stole David's field and sold
               it to Moshe, who improved it.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> The Beraisa must be corrected. We
          can correct it to discuss a creditor!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> Evaluation of Peros: Yehudah stole
          David's field. Behold, it leaves his hand; he collects
          principal from Meshubadim, and Peros from Bnei Chorin.
<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 it is like the Beraisa says, who should pay
                    the thief?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, Yehudah stole David's field and sold
               it to Moshe; who improved it.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Rejection #1 (Rava):</font></b> The case is, Yehudah stole David's
          field laden with Peros. He ate the Peros and dug pits in
          the field. David collects principal (the decreased value
          of the land due to the pits) even from Meshubadim, and
          the value of the Peros from Bnei Chorin.
<br>

<p>

sjt:
</p><p>
<font><b>2) A CREDITOR'S RIGHT OF APPROPRIATION OF PROPERTY FROM A PURCHASER</b></font><b>
<br>OPINIONS:</b> Rav Nachman in the name of Shmuel rules that the purchaser of a stolen field is not entitled to collect the 'Shevach,' the value of the improvements that he made in the field, from the thief who sold the field to him. He may collect only the money that he paid for the field. The Gemara questions this ruling from a Beraisa which states that one may not collect 'Shevach Karka'os' from Nechasim Meshubadim, which implies that one <i>may</i> collect it from Nechasim Bnei Chorin. The Gemara assumes that the Beraisa refers to the Shevach produced by the purchaser of a stolen field, and thus the Beraisa contradicts the ruling of Rav Nachman in the name of Shmuel.
</p><p>
The Gemara answers that the Beraisa does not refer to the Shevach of the purchaser of a stolen field, but rather to the Shevach of a field that one bought from a borrower and that was then collected by the creditor (Ba'al Chov). In that case the Beraisa says that the purchaser is entitled to collect the value of the Shevach from the seller (i.e. the borrower).
</p><p>
The Gemara asks that the Beraisa cannot refer to land appropriated by a Ba'al Chov because the Reisha of the Beraisa says that a purchaser whose field was confiscated may not collect the 'Achilas Peros,' the value of the consumption of the produce, from the seller's Nechasim Meshubadim, which implies that he <i>may</i> collect it from the Nechasim Bnei Chorin. However, Shmuel himself rules that when a Ba'al Chov appropriates a field from one who purchased it from his debtor, he collects the field together with the field's Shevach, but he may not collect the Peros of the field. Hence, the purchaser obviously will not be collecting the Peros from the seller, since the Peros were not taken from him. The Gemara concludes that, indeed, the Reisha ('Achilas Peros') does not refer to the case of a Ba'al Chov but rather to the case of one who purchased a stolen field from a thief, while the case of 'Shevach Karka'os' refers to a Ba'al Chov.
</p><p>
When Shmuel states that a Ba'al Chov is not entitled to take the Peros grown on his land by the purchaser, to what Peros does his statement refer?
</p><p>
(a) <b>RASHI</b> (DH l'Achilas Peros) explains that the Ba'al Chov may not collect the fully-grown Peros which are still attached to the ground but which no longer need to be attached (that is, they no longer depend on that attachment). Rashi implies that Peros which still need to be attached to the ground <i>are</i> collected by the Ba'al Chov.
</p><p>
According to Rashi's explanation, however, the Gemara could have answered its question from the Reisha of the Beraisa in a more simple way. The Gemara could have said that the Reisha indeed discusses a case of a Ba'al Chov, and when it implies that the purchaser may collect the value of the Peros that were confiscated from him, it refers to the young Peros that still need to be attached to the ground.
</p><p>
The Rishonim (<b>RAMBAN</b>, <b>RASHBA</b>, and others) answer that the Gemara could not have given this answer because such Peros are included in the Shevach of the field, and they would not be referred to separately as 'Achilas Peros.'
</p><p>
The Ramban and Rashba maintain that the Rif agrees with Rashi.
</p><p>
(b) Some Rishonim, such as the <b>RITVA</b>, interpret the opinion of the <b>RIF</b> differently. They understand that the Rif maintains that the Ba'al Chov may collect the land even with Peros that do not need to be attached to the ground but are still attached. When the Gemara states that the Ba'al Chov may not collect the Peros, it refers to Peros that are detached already from the ground. (Although there is a principle that 'anything which is [attached to the ground but is] ready to be picked is considered picked already,' this principle applies only to giving the Peros a status of Metaltelin as opposed to a status of Karka. The purchaser of the land, however, is not entitled to keep them, unlike Peros that have already been detached, for these Peros belong to the Ba'al Chov.)
</p><p>
(c) Another view is cited in the name of <b>RAV HAI GA'ON</b>. This view states that even Peros that are attached to the ground and depend on their attachment to the ground may not be collected by the Ba'al Chov. Why may the Ba'al Chov not collect them? If they need to remain attached to the ground, they should be considered part of the field and the Ba'al Chov should be able to collect them!
</p><p>
The <b>SHACH</b> (CM 98:9) writes that since the purchaser has the ability to pick the Peros, the Ba'al Chov does not have them in mind (to collect the debt from them) at the time of the loan. (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>COMPENSATION FOR IMPROVEMENTS (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Rejection #2 (Rabah bar Rav Huna):</font></b> The case is,
          extortionists took the field from Yehudah (the thief).
          David collects principal (the value of the land) even
          from property that Yehudah sold, and the value of the
          Peros from Yehudah's Bnei Chorin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rava did not explain like Rabah, because 'behold it
               leaves his hand' connotes legally.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rabah did not say like Rava, because 'behold it
               leaves his hand' connotes like it was originally.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection #3 (Rav Ashi):</font></b> The laws of the Beraisa apply to
          different people. Yehudah stole David's field and sold it
          to Moshe. Moshe collects principal (what he paid) from
          Yehudah's Meshubadim. David (gets back his field and) is
          compensated for Peros from Yehudah's Bnei Chorin.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> According to both Rava and Rabah bar Rav Huna,
          why does David collect from Meshubadim? Yehudah's debt is
          like a Milveh Al Peh (there is no document. People who
          bought from Yehudah did not know to beware!)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, before Yehudah sold his land, Beis
          Din ruled that Yehudah must pay. (Such a debt is like a
          loan with a document.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If so, also compensation for Peros should be
          from Meshubadim!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Beis Din ruled only about the land itself, but
          not about the Peros.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa did not specify. Why should we
          assume it discusses such a case?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Normally, people claim the principal before
          claiming Peros
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Does Shmuel really hold that one who buys from
          a thief is not compensated for Shevach?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shmuel told Chinena bar Shilas to consult with the
               seller and to write in the document (that if the
               land is taken from the buyer, he will collect from
               the seller's) Idis, and for Shevach, and for Peros.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> In what case do these apply?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> They apply when a creditor takes
                    the land.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection:</font></b> Shmuel said that a creditor receives
                    Shevach (i.e. but not Peros)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, they applies when it is found that
               the seller had stolen the land!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Version #1 - Answer (Rav Yosef):</font></b> The case is, the seller
          has land (with which he pays the buyer, so it does not
          look like Ribis. In this case, Shmuel says that he pays
          for Shevach.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> If one has land, may he lend Se'ah
          b'Se'ah (a volume of wheat on condition to return the
          same volume? We know that this is forbidden, lest the
          price of wheat rise!)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Yosef):</font></b> Se'ah b'Se'ah is a loan. I discuss
          one who sold (land, just the sale was invalid so he must
          return the money. When he pays with land, we are not
          concerned lest it look like Ribis.)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Version #2 - Answer (Rav Yosef):</font></b> The case is, at the time
          of the sale the buyer acquired (through Chalipin)
          compensation for Shevach (if the field will be taken from
          him. The seller's obligation precedes his benefit of
          ability to use the money, so it does not look like
          Ribis.)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> May one lend Se'ah b'Se'ah if he does
          Chalipin (to obligate himself from the beginning to
          return a Se'ah later)?!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer (Rav Yosef):</font></b> Se'ah b'Se'ah is a loan. I discuss a
          sale.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>COLLECTING A DEBT FROM LAND THAT IMPROVED AFTER THE LOAN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> A creditor collects Shevach (on the land that
          he collects).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Support (Rava):</font></b> Surely, this is true. A seller writes (in
          the sale document) 'I will silence any claims against
          this sale; the land, money invested in it and Shevach.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (R. Chiya bar Avin):</font></b> One who gives a gift does
          not write this. Will you say that a creditor does not
          collect Shevach from a gift?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> That is correct.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (R. Chiya bar Aba):</font></b> Does one who receives a gift
          have more privileges than one who buys?!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Yes!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rav Nachman:</font></b> A Beraisa supports Shmuel. However, the way
          Rav Huna establishes it, it does not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven sold a field to Shimon, and it
               was taken from Shimon, he collects principal from
               Meshubadim, and Shevach from Bnei Chorin.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Huna):</font></b> (A creditor did not take it. Rather,)
               Reuven sold a field that he stole.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven sold a field to Shimon, who improved
          it, and Reuven's creditor took it:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the Shevach exceeds the expenditures, Shimon
               collects his expenditures from the creditor, and the
               Shevach above his expenditures from Reuven;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the expenditures exceed the Shevach, the creditor
               pays Shimon the Shevach.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> How can Shmuel establish the Beraisa?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The 'creditor' is really the true owner
               (i.e. Reuven stole the field).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> Shmuel says that one who buys from a
               thief is not compensated for Shevach!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is a normal creditor.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> Shmuel says that a creditor collects the
               Shevach (without paying for it)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The 'creditor' is the true owner. Shimon
          collects Shevach from Reuven either because Reuven has
          land, or because Shimon acquired rights to compensation
          for Shevach at the time of the sale (like Rav Yosef's
          answers above).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2:</font></b> It is a normal creditor;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shmuel says that a creditor must pay for Shevach
               (Peros) if it is Magi'a l'Kesafim (Rashi - it is
               almost ready to be harvested, so it is considered
               like Peros; Tosfos - it came through exertion).
<br>
<br>

sjt:
<font><b>1) WRITING IN A CONTRACT THE 'SHUFRA,' 'SHEVACH,' AND 'PEROS'</b></font><b>
<br>QUESTION:</b> Shmuel (14b) maintains that when one buys a stolen field from a thief and the original owner comes to reclaim it, the purchaser is entitled to receive in return the purchase price that he paid to the thief (the seller), but he is not entitled to receive the value of the Shevach that he produced in the field. The Gemara here questions this ruling of Shmuel from another ruling of Shmuel. Shmuel rules that when a scribe writes a contract that transfers the ownership of land, he must ask the seller whether he specifically wants to include in the contract a clause to allow the buyer to collect from him the 'Shufra,' 'Shevach,' and 'Peros' in the event that the land is confiscated from him. The Gemara says that this clause cannot be intended for the case of a Ba'al Chov who comes to collect a field that was purchased from the borrower, because Shmuel himself rules that a Ba'al Chov is not entitled to collect the Peros from the buyer. Rather, this clause must be a provision for a case in which the field turns out to be stolen and the original owner comes to collect it from the buyer. The Gemara asks, how can Shmuel suggest that the seller may let the buyer collect the Shevach from him, if Shmuel himself maintains that the buyer is not entitled to collect the Shevach from the seller in such a case?
</p><p>
What is the Gemara's question on Shmuel? When a contract is written for a purchaser who buys land from a seller, the contract must take into account <i>both</i> possibilities: that the land may be taken away by the seller's Ba'al Chov, and that the land may have been stolen and will be taken away by the original owner. Hence, the contract must include mention of 'Shevach' in case the land is taken away by a Ba'al Chov (since a Ba'al Chov is entitled to collect the Shevach from the buyer), and it must include mention of 'Peros' in case the land was stolen and is taken away by the original owner (since Shmuel says only that when the original owner takes back his land, the buyer may not collect the Shevach from the seller, which implies that he <i>may</i> collect Peros). (<b>PNEI YEHOSHUA</b>, <b>TORAS CHAIM</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TORAS CHAIM</b> answers that Shmuel's statement that the scribe may write the 'Shufra, Shevach, <i>and</i> Peros' implies that the buyer will be able to collect <i>all three</i> of them if the land is taken away from him, and not that they are written in the Shtar so that the buyer can collect two out of the three.
</p><p>
(b) The <b>PNEI YEHOSHUA</b> cites the <b>SHACH</b> (CM 115) who answers as follows. Shmuel's earlier ruling -- that one who bought a stolen field from a thief may not collect the Shevach -- applies to the Peros as well. The Gemara (14b) explains that he may not collect the Shevach because it will be considered like Ribis, since he gave money to the seller and now is receiving more money in return (and since the sale never took effect because the land was stolen, the giving of the money was like a loan). The same applies to the Peros; if the seller is required to compensate the buyer for the Peros that were confiscated, then it will look like Ribis.
</p><p>


<font><b>2) WHAT A SCRIBE WHO WRITES A CONTRACT MUST ASK THE SELLER</b></font><b>
<br>QUESTION:</b> Shmuel (14b) maintains that when one buys a stolen field from a thief and the original owner comes to reclaim it, the purchaser is entitled to receive in return the purchase price that he paid to the thief (the seller), but he is not entitled to receive the value of the Shevach that he produced in the field. The Gemara here questions this ruling of Shmuel from another ruling of Shmuel. Shmuel rules that when a scribe writes a contract that transfers the ownership of land, he must ask the seller whether he specifically wants to include in the contract a clause to allow the buyer to collect from him the 'Shufra,' 'Shevach,' and 'Peros' in the event that the land is confiscated from him. The Gemara says that this clause cannot be intended for the case of a Ba'al Chov who comes to collect a field that was purchased from the borrower, because Shmuel himself rules that a Ba'al Chov is not entitled to collect the Peros from the buyer. Rather, this clause must be a provision for a case in which the field turns out to be stolen and the original owner comes to collect it from the buyer. The Gemara asks, how can Shmuel suggest that the seller may let the buyer collect the Shevach from him, if Shmuel himself maintains that the buyer is not entitled to collect the Shevach from the seller in such a case?
</p><p>
The Gemara's initial interpretation of Shmuel's statement is difficult to understand. Why does the Gemara entertain the possibility that Shmuel would suggest that a scribe could include 'Shufra, Shevach, and Peros' in the Shtar in case the land was bought from a debtor who owes money? In such a case, Shmuel himself rules that the Ba'al Chov cannot collect anything unless Achrayus is written explicitly in the contract (for Shmuel maintains that 'Achrayus Lav Ta'us Sofer'). If Shmuel's directive to the scribe is out of concern for a case of a Ba'al Chov's collection, he should say instead that the scribe must ask the seller whether he wants <i>Achrayus</i> to be written in the Shtar. If Achrayus is not written in the Shtar, then when the Ba'al Chov takes the land away from the buyer, the buyer cannot collect <i>anything</i> from the seller (the borrower). (According to the Gemara's conclusion -- that Shmuel's directive to the scribe indeed refers to a case of one who buys a field from a thief -- there is no need to write Achrayus in the contract, because the buyer certainly is entitled to collect the money he paid for the field, since the sale itself was not valid.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>GILYON</b> cited by the Shitah Mekubetzes, the <b>MAHARAM SHIF</b>, and the <b>PNEI YEHOSHUA</b> answer that the Gemara indeed could have asked this question to prove that Shmuel's directive to the scribe does not refer to the contract of a Ba'al Chov. However, the Gemara preferred to ask a better question from the fact that a Ba'al Chov has no right to collect Peros from the buyer.
</p><p>
(b) The <b>MAHARSHA</b> answers that the Gemara never meant to suggest that Shmuel would include 'Shufra, Shevach, and Peros' in a Shtar out of concern that a Ba'al Chov may collect the land. In such a case, the contract indeed must include mention of Achrayus. Rather, the Gemara means to suggest that Shmuel's ruling refers to the <i>Shtar Chov</i> itself written on behalf of a Ba'al Chov, which gives him the right to collect from the borrower's property (from the borrower himself, before it is sold to anyone else). Such a Shtar does not need to mention Achrayus, since Shmuel agrees (14a) that for a loan, 'Achrayus Ta'us Sofer' (since no one would lend money without receiving anything in return and without any guarantee).
</p><p>
The Maharam Shif rejects the Maharsha's answer. He argues that if the Gemara refers to the right of an actual Ba'al Chov to collect the 'Shufra,' 'Shevach,' and 'Peros' from the borrower, then there is no need to mention those things because the Ba'al Chov certainly is entitled to collect the value of the loan from the property of the borrower. Only when a buyer collects from a seller the value of land that was confiscated from him is there a question of whether he may collect the additional value of the Shevach and the Peros.
</p><p>
(c) The <b>IMREI MAHARSHACH</b> answers that the Gemara assumes that when Shmuel instructs the scribe to ask the seller if he should write in the contract 'Shufra, 'Shevach,' and 'Peros,' Shmuel takes it for granted that the scribe also asks the seller about including the actual Achrayus itself in the contract. Shmuel tells the scribe to ask about including the 'Shufra, 'Shevach,' and 'Peros' because the scribe might err and think that once Achrayus is written in the contract, it includes Achrayus for everything, even to collect from the 'Shufra' and to collect the value of the Shevach and Peros.
</p><p>
(d) Perhaps when the scribe writes the 'Shufra, 'Shevach,' and 'Peros' in the contract, that already includes Achrayus. 'Shufra' means that the scribe writes in the contract that if the land is taken away from the buyer (such as by the seller's Ba'al Chov), the buyer may go back to the seller and collect the highest quality land that the seller has. This itself is Achrayus. (Perhaps <b>RASHI</b> (DH Imlich) alludes to this when he adds the word 'principal' and explains that the scribe must ask the seller if he wants to give the buyer the right 'to collect <i>the principal</i> from his highest quality land.') (Y. Shaw)
</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>HETERIM FOR SE'AH B'SE'AH</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 (Rav Yosef):</font></b> Shmuel permits a seller to
               compensate the buyer for Shevach (improvements he
               made to the land) if the land will be taken from him
               if the seller has land (and will give it to pay for
               the Shevach).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> If one has land, may he lend Se'ah
               b'Se'ah (a volume of wheat on condition to return
               the same volume? We know that this is forbidden,
               lest the price of wheat rise!)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Version #2 (Rav Yosef):</font></b> Shmuel permits compensation
               for Shevach if the buyer acquired through Chalipin
               (to obligate the seller from the beginning.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> May one lend Se'ah b'Se'ah if he
               does Chalipin?! (end of Version #2)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (Rav Yosef):</font></b> Se'ah b'Se'ah is a loan. I
               discuss one who sold. (If he pays with land or did
               Chalipin, we are not concerned lest it look like
               Ribis.)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 72b (Rav Huna):</font></b> We may not borrow Se'ah for Se'ah
               even though there are Peros in the market.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> Rav Huna permitted Talmidim to borrow in
               Tishrei and repay Peros in Teves (at the cheaper
               price of Teves), because the money could be used now
               to buy Peros in Hini or Shili (other places)!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> Originally, Rav Huna ruled that it was
               forbidden, until he heard that R. Shmuel bar Chiya
               permits it.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 75a (Mishnah):</font></b> One may not say 'lend to me a Kor of
               wheat on condition that I will return a Kor after
               the harvest.' He may ask for a loan until his son
               comes or until he finds the key (to get to wheat he
               has now);
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (R. Chiya - Beraisa):</font></b> One may not lend wine (or oil)
               when he does not have even a drop of wine (or oil);
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Inference:</font></b> If he has, he may borrow many drops.
<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 (43a and 5:61):</font></b> Rav Huna initially
               forbade to borrow Se'ah b'Se'ah (i.e. on condition
               to return a Se'ah, lest it be worth more when he
               returns it) even though there are Peros in the
               market. After he heard that R. Shmuel bar Chiya
               permits it, he also permitted. This is the Halachah.
               One may borrow and pay back Stam, based on the
               market price.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Gemara, Garsinan):</font></b> A Mishnah
                    permits Se'ah b'Se'ah when the borrower has
                    some of what he borrows. He need not tell the
                    lender; he borrows with this intent. The Ran
                    explains that the lender immediately acquires
                    what the borrower had; it rose in value in the
                    lender's Reshus.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Beis Yosef YD 162 DH v'Im Yesh):</font></b> What
                    does he teach? He does not permit only when he
                    borrows with intent to repay from what he had
                    initially, for one with a drop of wine may
                    borrow much! He cannot mean that he must intend
                    that the lender acquire drop for drop, for if
                    so, why do we permit an ignoramus who does not
                    know this?!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer (Bach DH v'Im):</font></b> The Rambam holds that
                    the Heter of a market price is only when both
                    of them know this. The Nimukei Yosef teaches
                    that the Heter of when the borrower has some of
                    what he borrows is even if the lender does not
                    know, since the borrower intends for this
                    Heter.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Taz (3):</font></b> The Rambam requires that both know the
                    market price. When the borrower has, the lender
                    need not know. The Bach holds that also then,
                    both of them must know. This is wrong. If even
                    the borrower did not know, the Nimukei Yosef
                    forbids, but the Ran permits, for Chachamim
                    acquired it to the lender.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Note:</font></b> The Bach said 'if not, one of them
                    intended for Isur.' The Taz understood that
                    also the lender must know. Perhaps the Bach
                    means that 'if not (that the borrower knows
                    that he has), one of them (the borrower)
                    intended for Isur.' Perhaps we are not
                    concerned for the lender, for he assumes that
                    the borrower would not borrow unless he had
                    some (for otherwise, it is forbidden)!
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Shach (7):</font></b> Perhaps the Beis Yosef means like
                    the Bach says. Even the Bach says so only
                    l'Chatchilah. If one lent without intent for
                    this, the Bach agrees that he may and must pay
                    (Se'ah b'Se'ah). The Rosh and Tur connote like
                    this.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Rif (45a):</font></b> The Halachah is, if one has a Se'ah,
                    he may borrow many Korim. Chachamim permit to
                    lend Stam (without fixing a price) and repay
                    Stam. This is when there is a market price,
                    like Rav Huna taught, or when the borrower has
                    some of that species, like R. Yitzchak. In such
                    a case, it is like a loan until his son comes
                    or until he finds the key.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 10:1):</font></b> One may contract (to
               supply Peros) when there is a fixed market price,
               also this permits lending Se'ah b'Se'ah Stam without
               fixing a time. E.g. if there was a fixed market
               price known to both of them, and he lent 10 Sa'im,
               he must pay back 10 Sa'im even if the price
               increased. When he borrowed, he could have bought
               and returned to him, for no time was fixed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Toras Chayim (Bava Metzia 72b DH v'Nir'eh):</font></b> If
                    he fixed a time, and if the borrower will not
                    pay by then he will collect like the cheap
                    price then, this is Agar Natar (compensation
                    for delaying payment, i.e. Ribis).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (61):</font></b> We said above that one may lend on
               (condition to be paid with) Peros only if he has,
               even if there is a market price. There is different.
               Since he lent money, it looks like Ribis. Chachamim
               permit to lend a Se'ah based on the market price,
               like they permitted 'until my son comes or until I
               find the key.' Even if the borrower has no money, he
               could buy Peros on credit, since there is a price,
               or borrow (money) from another. The Ra'avad says
               that the Heter to lend Se'ah b'Se'ah based on a
               market price is only when the borrower has money and
               could buy, so it is as if he has Peros. We permit
               because he could buy elsewhere. If he has no money,
               he could not!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (75):</font></b> It is permitted only if the borrower has.
               Rav Huna discusses when there is no market price. R.
               Yitzchak permits borrowing any amount at once even
               if he has only a little. When there is a market
               price, even one without anything may borrow. The
               Halachah follows Chachamim, who say that one may
               borrow Stam and pay back Stam.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> Rashi permits even if there is
                    no fixed price. The Rif requires a fixed price.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (YD 162 DH a'Ha):</font></b> Tosfos (72b DH
                    Ein) asks why we need a market price. If
                    suffices that he has money and can buy Peros!
                    Some texts do not mention a fixed price, only
                    that there are Peros in the market. The text of
                    Rashi, Rif, Rambam and Rosh mentions a fixed
                    price; one may not rely on Tosfos.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Teshuvas Rosh (108:7,15):</font></b> If Reuven borrowed
               something and claims that he had none of that
               species, and Shimon (the lender) says that he had,
               Shimon is not believed. Reuven can say 'I cannot pay
               the higher value now, for this is Ribis.' Shimon
               cannot be Makneh to Reuven through someone else, for
               this harms Shimon. We do not say that surely Shimon
               borrowed in a permitted way, for there is no Vadai
               Isur; he did not expect the commodity to rise in
               price. If it will rise, he can pay its initial value
               without any Isur. Shimon must swear that he did not
               have, and that there was no market price.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Note:</font></b> There is an Isur at the time of the loan
                    to borrow Se'ah b'Se'ah! Perhaps people think
                    that it is forbidden only if he will pay Ribis
                    later.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 162:3):</font></b> If there was a fixed
               market price known to both of them, one may lend
               Se'ah b'Se'ah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chen Im):</font></b> The Rambam requires
                    that both of them know the price. If not, the
                    other intends that the loan be paid after the
                    price rises, which is Ribis. However, perhaps
                    it suffices that they know that there is a
                    fixed price. Since the borrower could buy and
                    return, they do not intend for Ribis. Teshuvas
                    ha'Rosh does not require them to know of a
                    market price. He says that it suffices to
                    clarify that there was a market price.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gidulei Terumah (46:5:1):</font></b> Why didn't the Tur
                    mention that the Rosh argues with the Rambam?
                    He must hold that they do not argue. The Rambam
                    teaches that one may borrow l'Chatchilah when
                    both know. The Rosh teaches that if there was a
                    market price, the borrower pays pack a Se'ah,
                    even if they did not know that there was a
                    market price. Alternatively, he teaches that if
                    the lender can prove that there was a market
                    price, the borrowed must prove that one of them
                    did not know, for it is common knowledge.
                    Surely, one would have told the other to avoid
                    the Isur!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH Im):</font></b> When there is a market
                    price, we permit, because the money could be
                    used now to buy Peros in Hini or Shili. This
                    shows that a market price in one place permits
                    other nearby places. Also the Mordechai and
                    Yerushalmi say so.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Beis Yosef (DH v'Hai):</font></b> Some say that one may
                    not contract based on the price in cities,
                    because it is not fixed. They hold the same
                    about Se'ah for Se'ah. This is why the Rambam
                    said that the price was fixed.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Beis Yosef (DH veha'Ra'avad):</font></b> The Ra'avad and
                    Tosfos (72b DH Ein) say that we may rely on a
                    market price only if the borrower has money.
                    Piskei Rosh connotes like this, but in a
                    Teshuvah he did not require this. Sefer
                    ha'Terumos (5:46:5) says that the Ra'avad
                    requires that he has money. If he has something
                    else that he could sell, perhaps the fixed
                    price will change before he is able to buy. The
                    Rashbatz says that the Rif and Rambam permit in
                    every case. Also the Ramban says that the
                    Ge'onim are unlike the Ra'avad; we rule like
                    them.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>BORROWING COINS WHEN THEIR VALUE COULD CHANGE </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> In many cases, Shmuel ruled that a creditor
          collects such Shevach for free!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> That is when he was owed the value of the land
          and the Shevach, but not if he is owned only the value of
          the land.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	We can understand this according to the opinion that the
          creditor can collect the land even if the buyer wants to
          pay the debt and keep the land.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> According to the opinion that if the buyer
          wants to pay the debt and keep the land, he can do so, he
          should be able to say 'if I had money, you would not get
          the land. Even now that I have no money, the Shevach
          should be considered like money to pay part of the debt,
          and you must leave me land corresponding to the money!'
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the land was an Apotiki, i.e. they
          stipulated that the loan will be collected only from it.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ONE WHO KNOWINGLY BOUGHT A STOLEN FIELD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> If Reuven bought a field from Shimon, even though
          he knew that Shimon had stolen it, he gets back what he
          paid, but not Shevach.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> He does not get back even what he paid.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav holds that Reuven intended that the money
          should be a deposit;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, he should say that he gives a
               deposit!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> He thinks that Shimon would not accept to
               guard it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Shmuel holds that he gave the money for a gift.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, he should say that he gives a gift!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> He does not want to embarrass Shimon.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Rav and Shmuel argued about this elsewhere. Why
          must they argue about it again?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> If Reuven was Mekadesh his sister with money,
               she must return the money;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Shmuel):</font></b> The money is a gift.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rav holds that he intended that the money be a
                    deposit. He does not explicitly say so, lest
                    she not accept to guard it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Shmuel holds that he gave the money for a gift.
                    He does not explicitly say so, lest this
                    embarrass her.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> They needed to argue in both cases;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had they argued only about stolen land, one might
               have thought that only there Rav holds that it is a
               deposit, for normally, people don't give gifts to
               strangers, but he would agree that Kidushin of his
               sister is a gift.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had they argued only about Kidushin, one might have
               thought that only there Shmuel says it is a gift,
               but regarding land he agrees that it is a deposit,
               for people normally don't give gifts to strangers.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> According to both Rav and Shmuel, why may
          Reuven use the land and eat the Peros?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> He reasons 'I will use the land like the thief
          would have used it. When the owner comes, I will return
          the land' (and, according to Rav, get back his money).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rava):</font></b> The law is, (one who buys a field without knowing
          that it was stolen) gets back his money and is
          compensated for Shevach, even though he never stipulated;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he knew that it was stolen, he gets back his
               money but not the Shevach.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Achrayus (if omitted from a document) is a mistake
               of the scribe (and there is Achrayus), regarding a
               loan or sale.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>A THIEF WHO LATER BOUGHT THE FIELD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Shmuel):</font></b> If a thief sold the field, and then
          the thief bought it from the true owner, what is the law?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav):</font></b> One who sells, he sells all rights he will
          obtain in the matter (the buyer keeps it).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Mar Zutra):</font></b> The thief does not want to be
          called a thief.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> A person wants to conduct his
          dealings faithfully.
<br>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A THIEF WHO LATER BOUGHT THE FIELD (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between the answers?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The buyer died.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There is no concern of being called a thief, but
               (Rav Ashi would say) that he wants to conduct his
               dealings faithfully with the heirs.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> If he does not justify himself, the heirs will
          call him a thief!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2:</font></b> The thief died.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He is not concerned about being called a thief after
               his death, but he wants that his dealings were
               faithful.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> He does not want that people will call his
          children 'children of a thief'!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3:</font></b> He never sold the stolen field, rather, he
          gave it for a gift.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There is no concern of being called a thief, but he
               wants to conduct his dealings faithfully
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	(The following apply when Reuven stole Levi's field and
          sold it to Shimon.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Obviously, if Reuven sold or gave it to Yehudah and
               then bought it from Levi, he did not buy it so
               Shimon should keep it (therefore, Shimon gets his
               money back, but not the land);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven inherited it, he did not do anything to
               show that he wants Shimon to keep it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If Reuven collected the field for a debt that Levi
               owed to him:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Levi had other fields and Reuven requested
                    specifically this one, this shows that he
                    wanted Shimon to keep it;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If this was Levi's only field, we have no such
                    indication.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Acha or Ravina):</font></b> If Levi gave it to Reuven for a
          gift, this is like an inheritance (Reuven did nothing);
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(The other of Rav Acha and Ravina):</font></b> If Levi gave it to
          Reuven like a gift, we assume that he requested this (to
          cause that his dealings were faithful).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Until how long do we assume that Reuven acted
          in order to conduct his dealings faithfully?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1 (Rav Huna):</font></b> It is until Shimon brings him to
          trial.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2 (Chiya bar Rav):</font></b> It is until Shimon receives an
          Adrachta (a document authorizing him to collect from
          Reuven's property).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #3 (Rav Papa):</font></b> It is until the days of announcing
          (that Beis Din is selling Reuven's property).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HOW DOES THE BUYER ACQUIRE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rami bar Chama):</font></b> (When we say that Reuven
          bought it for Shimon to keep), how did Shimon acquire the
          field?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The document that he received is worthless (Reuven
               did not own it at the time)!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The case is, Shimon trusted Reuven to give
          him the field. With the pleasure that Shimon relies on
          him, Reuven transfers the field.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Sheshes - Beraisa):</font></b> If Levi sold to Yehudah
          'what I will inherit from my father' or 'what will be
          caught in my trap', this is void;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'what I will inherit from my father
               today' or 'what will be caught in my trap today', it
               is valid.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We learn that one cannot sell something that is not
               yet in his possession
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> One who bought a stolen field relied on
          the seller. He has Gemiras Da'as (the resolve needed for
          an acquisition). One who buys a future  inheritance is
          not confident of receiving anything.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One who bought a stolen field trusts that the seller
               will get the field for him, so he will not be called
               a thief. This does not apply by inheritance.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #1 (Rashi) R. Aba bar Zavda:</font></b> This question is too
          difficult. There is no answer for it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rava:</font></b> We can answer it (like above).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #2 (Ge'onim) R. Aba bar Zavda:</font></b> This is a simple
          question.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rava:</font></b> It is very difficult!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding the stolen field, the buyer relied on the
               seller, by inheritance, he lacks resolve. (end of
               Version #2)
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	A case occurred in Pumbadisa. Rav Yosef said like R. Aba
          bar Zavda, Abaye said like Rava.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> In the Beraisa, why is it different when he
          says (what I will inherit or my trap will catch) 'today'?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> The case when he says 'today' is
          that his father is about to die. (Chachamim enacted that)
          he can sell his inheritance in order to be able to honor
          his father with a proper burial;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding the trap, Chachamim enacted than the sale
               is valid to help the trapper support himself.
<br>
<br>

sjt:
<font><b>1) THE DIFFERENCE BETWEEN A 'SHTAR ADRACHTA' AND A 'SHTAR HALVA'AH'</b></font><b>
<br>QUESTION:</b> The Mishnah later (20a) states that if one finds any document authorized by Beis Din he may return it to the bearer. The Gemara here says that this refers to a Shtar 'Chaltasa' and a Shtar 'Adrachta,' documents which give permission to a creditor to seize the possessions of a debtor. These documents may be returned to the creditor; the Gemara is not concerned that the creditor may have collected the property of the debtor already and that the debtor redeemed his property by paying money to the creditor, and now the creditor seeks to use the Shtar again to collect from the debtor unlawfully. The Gemara assumes that if the debtor indeed had redeemed his property, he should have demanded either that the Shtar Adrachta be torn up or that the creditor write a normal Shtar Mechirah (bill of sale) for the land that he redeemed. Since the debtor did neither of these two things, he is considered to have caused his own loss.
</p><p>
In contrast, a Shtar Halva'ah (deed of loan) that was found may not be returned to the lender. In that case, the Gemara is concerned that the borrower may have already paid back the debt, but he was unable to retrieve the Shtar and tear it up, either because the lender told him that he would give it back the next day ('Ishtamutei') or because the lender wanted to hold on to the Shtar until the borrower reimbursed him for the scribe's fees.
</p><p>
Why does the concern that the lender eluded giving back the Shtar apply only in the case of a loan? Even in the case of a Shtar Adrachta, when the borrower demands the return of the Shtar the lender can push him off and say that he will give it to him the next day. Thus, it would not be the borrower's fault that the Shtar was not destroyed, and in the case of a Shtar Adrachta the Gemara should rule that the Shtar Adrachta not be returned to the lender because the property may have been redeemed already.
</p><p>
Similarly, just as the Gemara reasons in the case of a Shtar Adrachta that the lender caused himself a loss by not demanding that a new Shtar be written, the Gemara should apply the same logic to a Shtar Halva'ah. In that case, too, when the borrower repaid the loan, he should have demanded that the lender write a receipt. Why is the case of a Shtar Halva'ah not considered a case in which the borrower brought the loss upon himself? (<b>RISHONIM</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAN</b> differentiates between the two cases. In the case of a Shtar Halva'ah, the borrower is not expected to demand that a receipt be written when he repays the loan. He prefers to receive the original Shtar from the lender and tear it up rather than receive a receipt which he will be bound to protect from destruction by rodents. Hence, the borrower agrees to wait for the lender to return the Shtar Halva'ah to him. In contrast, in the case of a Shtar Adrachta, the borrower has no reason to prefer to have the Shtar returned to him rather than to have a new Shtar Mechirah written; in either case he will have to hold onto and protect the Shtar. (If he receives the Shtar Adrachta in return and tears it up, he still will need to keep the fragments of it in case the lender brings witnesses to testify that the land was legally confiscated from the borrower and became his property. In such a case, if the borrower does not have the torn Shtar Adrachta as proof that he redeemed the land from the lender, he will be forced to return the land.) Hence, the Gemara says that if he neither demanded that the Shtar Adrachta be returned to him nor demanded that a new Shtar Mechirah be written, he is considered to have caused a loss to himself.
</p><p>
(b) The <b>MAHARSHAL</b> answers that in the case of a Shtar Adrachta, it is not possible for the lender to evade giving back the Shtar. Evading the return of the Shtar is a possibility only in the case of a Shtar Halva'ah. This is because in the case of a Shtar Halva'ah there is a relationship of trust between the borrower and the lender, so that when the borrower pays back the loan he trusts that the lender will return the Shtar to him later. In contrast, when a borrower has refused to pay back the loan and the lender has been forced to confiscate his property, there obviously is no longer any relationship of trust between them, and thus the borrower certainly will not give money to the lender to redeem his land without receiving the Shtar Adrachta in return; he will not trust the lender to give him the Shtar later.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SHUMA HADAR</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'> (Chachamim of Neharde'a):</font></b> If Beis Din allowed a
               lender to collect a field for payment, Shuma Hadar
               (the borrower can take back his field) if he pays
               the debt within one year.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Ameimar):</font></b> I am from Neharde'a. I hold that Shuma
               Hadar without a time limit!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Letter of the law, the lender need not return the
               field. Chachamim obligated him to return it due to
               'you will do what is straight and good in the eyes
               of Hash-m.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 35a:</font></b> The Halachah is, Shuma Hadar without a time
               limit.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Clearly, if Reuven collected Shimon's field, and
               Levi collected it from Reuven, Levi has no more
               right to keep it than Reuven (i.e. Shimon can buy it
               back from Levi);
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> If Reuven collected Shimon's field, and then sold,
               gave or bequeathed it to Levi, Levi wanted land, not
               money (Shimon cannot force Levi to sell it).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> If Leah collected Shimon's field and then married
               Levi, or if Reuven collected Leah's field and then
               she married Levi and she died, a husband is like a
               buyer (regarding his wife's property), so the
               original owner has no right to buy back the field.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Rav Acha or Ravina):</font></b> If Shimon willingly gave
               Reuven his field (to pay his debt), Shuma Hadar.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (The other of Rav Acha and Ravina):</font></b> We do not say
               that Shuma Hadar.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> The latter opinion considers collection of the field
               like a sale, for he willingly gave it. The first
               opinion says that Shimon did not want to give it. He
               gave it to avoid the embarrassment of going to Beis
               Din.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Kesuvos 91b:</font></b> A man owed 1000 Zuz. He had two
               mansions, and sold each for 500 Zuz to Ploni. The
               creditor took one mansion, and was about to take the
               other. Ploni took 1000 Zuz cash and said 'if one
               mansion is worth 1000 to you, consider one mansion
               full collection. If not, take 1000 Zuz.'
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Rava):</font></b> The buyer can force the creditor to do one
               of these, for the creditor does not lose. He lent
               1000 and receives 1000!
<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 (3:4):</font></b> Whenever Rav Acha and Ravina
               argue, the Halachah follows the more lenient
               opinion. Therefore, if Shimon willingly gave his
               field for payment outside of Beis Din, Ein Shuma
               Hadar.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> A husband is like a buyer, and he need not
               sell back the property. If we would say that he is
               like an heir, it would return. We said that if a
               creditor collected land and bequeathed it, the
               recipient wanted land, not money (so Ein Shuma
               Hadar). That is when the creditor wrote in his
               lifetime to one of his heirs, similar to a sale or
               gift. In an automatic inheritance, the heir is like
               the one he inherits, and he must return land, but
               land does not return to him. Shuma Hadar only for
               land, but not for Metaltelim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 22:16):</font></b> If Beis Din took
               Reuven's land to pay Shimon, and then gave it to
               Shimon's creditor Levi, Levi has no more right to
               keep it than Shimon. If Shimon sold or gave it for a
               gift or willingly gave it to pay a loan, or died and
               bequeathed it, it does not return. A husband is like
               one who bought his wife's property. He need not
               return it (to one who gave it to her for payment),
               and it does not return to him (if her creditor takes
               it).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam holds that Shuma
                    Hadar also to a buyer. Kesuvos 91b proves this.
                    After the creditor took the house, the buyer
                    returned the money.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ran (Kesuvos Reish 50a):</font></b> Some say that this is
                    only before the house was absolutely given to
                    the creditor. After this, Shuma Hadar only to
                    the owner, but not to a buyer. It returns due
                    to 'v'Asisa ha'Yashar veha'Tov.' The buyer
                    caused his own loss (by buying property with a
                    lien on it). We say that Ein Shuma Hadar to a
                    husband, because he is like a buyer! The Rambam
                    says that we return even to a buyer. The simple
                    reading of our Gemara connotes like this.
                    Perhaps in Bava Metzia, they collected from her
                    before he married her, but if they collected
                    from her after he married her, it would return
                    to him.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Magid Mishneh:</font></b> The Rashba says in the name of
                    the Ramban that if they acquired (did Chalipin)
                    with him that he will not remove him from the
                    land, he cannot remove him, for he pardoned,
                    like we say about Bar Meitzra (a neighbor, who
                    has rights to buy the land before anyone else).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Rambam (17):
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (Kesuvos 10:3):</font></b> I saw in the name of R. Yonah
               that Kesuvos 91b discusses when the mansion was
               seized without announcement (that it is being
               auctioned to pay a debt). If it was announced and
               Beis Din gave it to the creditor, the buyer cannot
               dispossess him. If you would not say so, there is no
               end (he could forever redeem it)! The Ramah says
               that if the creditor sold or gave it to another, Ein
               Shuma Hadar. 'v'Asisa ha'Yashar veha'Tov' does not
               apply to one who bought land on which a creditor had
               a 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 103:9):</font></b> If Beis Din took land to
               pay Reuven's debt to Shimon (Rema - Metaltelim are
               not returned), whether the land was with Reuven or
               with Ploni who bought it from Reuven, and later
               Reuven or Ploni or their heirs obtained money and
               paid Shimon, we remove Shimon from the land, even if
               he had it for many years.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (10,11):</font></b> Many say that no other Kinyan is
                    needed. The Ritva says that Shuma does not
                    return to a minor until he matures and knows to
                    be Makneh. This implies that he holds that a
                    Kinyan is required.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (13):</font></b> It applies only to land, for it is
                    called 'inheritance' and it is intact for
                    generations.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that a buyer cannot remove the
               creditor after he collected the land, for Shuma
               returns only to the original owner when Bnei Chorin
               (land that the borrower still owned) was collected,
               but it does not return to a buyer.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (14):</font></b> Even if the seller has nothing now,
                    the buyer gets back his money when the seller
                    obtains money. He has no claim against the
                    creditor.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> If the borrower willingly gave it to pay a
               loan, we do not return it to him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (21):</font></b> Whenever he needed to bring the
                    borrower to Beis Din, even if he immediately
                    agreed to give the land, this is called Shuma,
                    and it returns.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 15):</font></b> Rashi holds oppositely! If
                    Beis Din did not collect from him against his
                    will, this is not considered gong to Beis Din,
                    and Shuma Hadar. Correspondingly, if a Shomer
                    paid willingly, even if the owner needed to
                    take him to Beis Din, (if the thief will be
                    found and will pay double,) Rava says that the
                    owner is Makneh to him the extra payment (Bava
                    Metzia 108a).
<br>

<p>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rav Huna citing Rav):</font></b> If Reuven told Shimon 'the field I
          will buy, when I buy it, it is acquired to you from now',
          Shimon acquires it.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Rava:</font></b> Presumably, this is when Reuven did not specify a
          particular field. If he did, Shimon would lack resolve,
          lest the seller will not want to sell it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, I swear that Rav said so even regarding a
               particular field!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav rules like R. Meir, who says that one can
               acquire something that is not yet in the world.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> If Levi told Leah that she will be
                    Mekudeshes to him (when this will be possible,
                    i.e.): after he or she converts, or after he or
                    she is freed, or after her sister (if Levi is
                    married to her sister) or husband will die, or
                    after Leah does Chalitzah, she is not
                    Mekudeshes (even after the event occurs);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Meir says, she is Mekudeshes (after it
                    occurs).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> (Some cases of) a woman are like a field (e.g. her
               husband's death is beyond their control), yet R.
               Meir says that it takes effect!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ONE WHO FINDS A DOCUMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> If one finds a Hakna'ah document (that Shimon
          owes Reuven), he returns it to Reuven.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We are not concerned lest the loan was never given.
               Shimon obligated himself in any case!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We are not concerned that it was paid, for then
               Shimon would have torn it up.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rav Nachman:</font></b> My father was a scribe in Shmuel's Beis Din.
          From my youth, I recall announcements that Hakna'ah
          documents found in the market should be returned to the
          lender.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Support (Rav Anan - Mishnah):</font></b> All documents of actions of
          Beis Din should be returned.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This shows that we are not concerned lest they were
               paid.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection #1 (R. Zeira):</font></b> The Mishnah discusses Chaltasa
          documents (saying that a lender collected a field as
          payment), or Adrachta. Payment does not apply to such
          documents.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> Payment applies to them!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Chachamim of Neharde'a):</font></b> If Beis Din allowed a
               lender to collect a field for payment, the borrower
               can recover his field if he pays the debt within one
               year.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Ameimar):</font></b> I am from Neharde'a. I hold that he can
               always redeem his field!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection #2 (Rava):</font></b> For such documents, we are not
          concerned for payment. If the borrower later paid, he
          caused his own loss by not tearing the document, or
          demanding a document of (re)sale of his field from the
          lender.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Letter of the law, the lender need not return the
               field. Chachamim obligated him to return it due to
               'you will do what is straight and good in the eyes
               of Hash-m';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is like a new sale, so a new document
                    should be written.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Regarding loan documents, perhaps the borrower is
               not at fault;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Perhaps the lender promised to return the
                    document at his next opportunity, or was
                    holding it until the borrower paid the scribe's
                    fee!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(R. Avahu):</font></b> If one finds a loan document, even though it
          has a Henpek, he may not return it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it has no Henpek, we are concerned lest the loan
               was never given. Even if it has a Henpek, we are
               concerned lest it was paid.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is a document with a Henpek?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> It was validated by Beis Din.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (R. Yirmeyah - Mishnah):</font></b> All documents of
          actions of Beis Din should be returned.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (R. Avahu):</font></b> That does not apply to all actions
          of Beis Din. It is only when the borrower was established
          to be a liar (then he is not believed to say that he
          paid).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> If a man was once established to be a
          liar, will he never pay?!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> The Mishnah discusses documents of
          Chaltasa or Adrachta (like R. Zeira said above).
<br>

<p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN IS ONE BELIEVED TO SAY THAT HE PAID?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yosef bar Minyomi citing Rav Nachman):</font></b> If Beis Din
          told Reuven 'go give to Shimon', and later Reuven claims
          that he paid him, he is believed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon requests an Adrachta, we do not give to
               him.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Beis Din told Reuven 'you are obligated to give
          Shimon', and Reuven later claims that he paid him, he is
          not believed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon requests an Adrachta, we write one for
               him.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Zvid citing Rav Nachman):</font></b> Whether Beis Din said 'go
          give' or 'you are obligated to give', Reuven is believed
          to say that he paid, and we do not write an Adrachta for
          Shimon.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The two expressions differ about the following. If
               they said 'go give', and Reuven claims that he paid,
               and witnesses say that they once saw him refuse to
               pay, he is established to be a liar on that debt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If they said 'you are obligated to give', and Reuven
               claims that he paid, and witnesses say that he once
               refused to pay, he is not established to be a liar
               on that debt.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> When they said 'you are obligated to give',
               Reuven was merely stalling. He thinks that Beis Din
               might change their minds.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rabah bar bar Chanah):</font></b> Levi claimed 100 from Yehudah. He
          denied it all, and witnesses testified that he has it.
          Yehudah then said that he paid. He is established to be a
          liar on this money; he is not believed.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shabtai wrote in his daughter-in-law's Kesuvah that
               he would give to her a silk garment. She lost her
               Kesuvah. He denied the matter. Witnesses testified
               that he had written it; he said that he gave it to
               her.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Chiya:</font></b> He is established to be a liar about that
               garment.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Avin):</font></b> Reuven was obligated to swear to Shimon. He
          claims that he swore, and witnesses testified that he
          refused to swear. He is established to be a liar about
          that oath.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(R. Avahu):</font></b> Presumably, that is only when Beis Din
          obligated him to swear. If he accepted on himself to
          swear, he is believed. People often say (about self-
          imposed obligations, not according to Beis Din) 'I will
          not fulfill it' (even if they intend to fulfill it).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Avin heard this, and said that indeed, this was
               his intent.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONE MAY NOT REUSE A DOCUMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Asi citing R. Yochanan):</font></b> If one finds in the market a
          validated document for a loan given that same day, he
          returns it to the lender.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We are not concerned lest the loan was never given,
               for it was validated;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We are not concerned lest it was paid, for people do
               not pay loans on the same day.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (R. Zeira):</font></b> You said in the name of R. Yochanan
          that if a loan was paid, the document cannot be used for
          another loan (of the same amount between the same
          parties), because the lien (that the document imposes
          against the borrower) has been pardoned!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> In what case does R. Yochanan teach that
               the document may not be used again?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it is on a later day, why does he forbid
                    (only) because the lien was pardoned? It may
                    not be used because the date precedes the loan!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Mishnah):</font></b> Predated loan documents are invalid!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, R. Yochanan teaches that the
               document may not be used the same day. This shows
               that people sometimes pay a loan the same day!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav Asi):</font></b> It is possible to pay a loan on the
          same day. However, this is rare, so (if we do not know
          that this occurred), we are not concerned for it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rav Kahana):</font></b> R. Yochanan says that we return a
          document on the same day if the borrower admits that he
          did not pay.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If so, of course it may be returned!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that perhaps it was paid,
          and he claims that it was not, in order to use it again
          to borrow money, and save the cost of another document;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan teaches that we are not concerned for
               this. The lender would not do so, lest Chachamim
               find out, and disqualify it (for collection from
               Meshubadim (Rashi), or even from Bnei Chorin
               (Rashbam)).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Why is R. Yochanan's law different than the
          Mishnah?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one finds loan documents, if they have
               Acharayus, he may not return them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We established this to be when the borrower admits.
               We are concerned lest the loan was given after the
               date on the document, and the document will be used
               to collect from buyers illegally!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> We do not say that the lender fears to use such a
               document, and demands a new document with the proper
               date!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> There, the lender stands to gain from the early
          date. It enables him to collect from buyers who bought
          before the loan;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, since only the borrower gains (he saves the
               cost of another document), the lender demands a
               proper document.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>TANAYIM OF BEIS DIN</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 claims that
          he paid an obligation that Chachamim enacted, he is not
          believed.
<br>
<br>

sjt:
<font><b>1) WHEN A BORROWER IS BELIEVED TO SAY HE PAID</b></font><b>
<br>QUESTION:</b> Rav Zevid in the name of Rav Nachman rules that there is no difference between a case in which Beis Din formally passed a verdict requiring a borrower to pay his debt ('Tzei Ten Lo') and a case in which Beis Din merely told the borrower to pay ('Chayav Atah Liten Lo') but did not actually pass a verdict. In both cases, if the debtor later claims that he paid he is believed, since the loan was made verbally and no Shtar was written.
</p><p>
The Gemara earlier (15a) seems to contradict this ruling. The Gemara there says that once a claim against a borrower has been brought to court ('k'she'Amad ba'Din'), it is as if the loan is written in a Shtar, because the matter of the loan becomes publicized. Hence, if someone bought property from a borrower after the lender made a claim against him in court, the lender may take that property from the buyer just as a lender may collect property that was purchased from the borrower when the loan was written in a Shtar.
</p><p>
Why, in the case of the Gemara here, is the borrower believed to say that he paid back the debt? Since the claim was brought to court, it should be like a loan written in a Shtar. A borrower who claims to have repaid the loan is not believed when the loan is written in a Shtar. Rather, he must bring witnesses or show a receipt from the lender.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RIF</b> answers that the Gemara earlier refers to a case in which the borrower does not agree to obey the instructions of Beis Din, and he refuses to pay. The loan in such a case becomes like a loan written in a Shtar. In the case of the Gemara here, the borrower left Beis Din with the intent to comply and pay his debt. In such a case, when he later claims that he paid, he is believed.
</p><p>
(b) <b>RABEINU CHANANEL</b> and <b>RABEINU EFRAIM</b> answer that the fact that the case has been brought to Beis Din does not automatically make the loan considered like one written in a Shtar, and thus the borrower is believed to say that he paid. The Gemara earlier refers to a case in which Beis Din actually wrote a Shtar stating that the borrower owes money to the lender. The Gemara teaches that even though the Shtar was not written at the behest of the borrower, it still is considered a fully valid Shtar Chov and it enables the lender to collect from the Lekuchos.
</p><p>
(c) The <b>RAMBAN</b>, <b>RASHBA</b>, <b>RAN</b>, and <b>RITVA</b> answer that when the Gemara earlier states that the loan becomes like one written in a Shtar when the case is brought to Beis Din, it refers <i>only</i> to the lender's right to collect from Lekuchos. The lender may collect from Lekuchos because the loan became public knowledge when the case was brought to court, and the buyers knew that they were purchasing land from a person who was in debt, so they are considered to have caused the loss to themselves. The Gemara here, in contrast, discusses whether the borrower is believed to say that he paid back the loan. In general, the only reason such a claim does not work against a Shtar is that the lender can prove that the loan has not been paid from the fact that he is still holding the Shtar Chov. The lender can argue that if the borrower truly paid back his debt, then he would have insisted that the lender return the Shtar to him. In the case of a loan brought before Beis Din, although it is considered as if the loan was written in a Shtar, the lender does not have an actual Shtar, and thus his argument is not applicable. Consequently, the borrower is believed to say that he paid his debt.
</p><p>


<font><b>2) WHEN A BORROWER IS NOT BELIEVED TO SAY HE PAID</b></font><b>
<br>QUESTION:</b> Rav Zevid in the name of Rav Nachman rules that there is no difference between a case in which Beis Din formally passed a verdict requiring a borrower to pay his debt ('Tzei Ten Lo') and a case in which Beis Din merely told the borrower to pay ('Chayav Atah Liten Lo') but did not actually pass a verdict. In both cases, if the debtor later claims that he paid he is believed, since the loan was made verbally and no Shtar was written.
</p><p>
<b>QUESTION:</b> Rav Zevid in the name of Rav Nachman rules that when a borrower claims to have paid back his debt, he is believed regardless of whether Beis Din formally passed a verdict requiring him to pay ('Tzei Ten Lo') or Beis Din merely told the borrower to pay ('Chayav Atah Liten Lo') but did not actually pass a verdict. In both cases, if the debtor later claims that he paid he is believed, since the loan was made verbally and no Shtar was written. The difference between these two cases exist when the borrower claims that he paid and witnesses testify that he did not pay. If Beis Din passed an actual verdict requiring him to pay, and he then claimed to have paid and was contradicted by witnesses, he is 'Huchzak Kafran' and is not believed subsequently to claim that he paid, unless he brings proof. In contrast, if Beis Din merely told him to pay but did not pass a verdict, and he then claimed to have paid and was contradicted by witnesses, he is not 'Huchzak Kafran' and he retains the ability to claim subsequently that he paid (even without bringing proof). In a case where no actual verdict was passed, Beis Din assumes that when he contradicted the witnesses, he did not mean to deny the debt's existence outright but merely wanted to get more time to pay back, and he rationalized that he would wait until Beis Din looked into the case further.
</p><p>
How can witnesses contradict the borrower who says that he paid and cause him to be 'Huchzak Kafran'? How is it possible for witnesses to testify that an event <i>did not</i> happen, and that the borrower <i>did not</i> pay?
</p><p>
<b>ANSWERS:</b>
<br>(a) Most Rishonim (<b>RASHBA</b>, <b>RITVA</b>, <b>RAN</b>, <b>ROSH</b>) explain that the borrower is 'Huchzak Kafran' when he claims that he paid back the loan on a certain day at a certain time and witnesses testify that he was with them at that time. (He is not 'Huchzak Kafran' if Beis Din merely told him to pay but did not yet pass a verdict, even though it is still clear that he lied, because Beis Din assumes that he merely wanted to delay paying until Beis Din would look into the case, and he did not have intention to steal the money.)
</p><p>
(b) <b>RASHI</b> explains that the borrower becomes 'Huchzak Kafran' (and later loses his credibility to claim that he paid) in a case in which witnesses were present when the lender demanded his money from the borrower, and the borrower refused to pay. Since he so brazenly and blatantly disobeyed the verdict of Beis Din in front of witnesses, he is 'Huchzak Kafran' and is not believed later to claim that he paid (unless he brings proof to support his claim).
</p><p>
The Rishonim challenge Rashi's explanation and contend that even when the borrower refuses to pay in front of witnesses, he should <i>not</i> be 'Huchzak Kafran.' They reason that in that case as well it is possible that he did not have money at the time and he merely wanted to stall for time.
</p><p>
The Acharonim offer various approaches to resolve the Rishonim's difficulty with the words of Rashi.
</p><p>
1. The <b>GIDULEI TERUMAH</b> (II:12:3) answers that Rashi maintains that if the borrower's intention truly was to gain more time, he would not have tried to do so in such a brazen way. Instead of blatantly refusing to obey the ruling of Beis Din, he would have found some other way to gain more time. Since he was so brazen, it must be that he lied outright and intended to steal, with no intention to pay later.
</p><p>
2. The <b>LECHEM ABIRIM</b> answers that when Rashi writes that the borrower 'did not pay' when the lender demanded repayment from him in front of witnesses, he means that the borrower said, 'I do not <i>want</i> to pay,' which implied that he had no intention of paying at all, even later. If his intention had been to delay and gain more time, he would not have said that he does not <i>want</i> to pay, but he simply would have evaded paying at that moment.
</p><p>
Some Rishonim, however, strengthen their question on Rashi's explanation. They contend that even if the borrower said that he does not <i>want</i> to pay, Beis Din still should assume that he was attempting to gain more time, and not that he had no intention of ever paying. The <b>ROSH</b> (1:42) asserts that whenever it is possible to find some merit in the borrower's claim -- and not declare him to be a liar and a thief -- Beis Din is required to give him the benefit of the doubt. The Rosh proves this from the Gemara earlier which discusses a Shomer who denies having a Pikadon. In such a case, the Gemara says that the Shomer is not deemed to be 'Huchzak Kafran' unless witnesses testify that they saw the Pikadon in his possession at the time that he denied having it. As long as witnesses have not testified to that effect, Beis Din gives him the benefit of the doubt and assumes that he lost the Pikadon and merely wanted to gain more time to find it. Similarly, in the case of the Gemara here, Beis Din should give the borrower the benefit of the doubt and assume that he refused to pay merely in order to gain more time, and that he <i>does</i> intend to pay his debt at some point. Why, then, does Rashi write that the borrower is 'Huchzak Kafran' when he disobeys the ruling of Beis Din in front of witnesses and refuses to pay? Perhaps he merely is stalling for more time.
</p><p>
3. The <b>MILCHEMES MITZVAH</b> and <b>IMREI MAHARSHACH</b> (cited in Otzar ha'Mefarshim) answer that the proof of the Rosh from the case of a Pikadon does not apply to the case of the Gemara here. Only in the case of a Pikadon can the Shomer be given the benefit of the doubt in this way. It is reasonable to assume that the Shomer denies having the Pikadon in order to stall for time, because he would be afraid to admit that he has the Pikadon lest the claimant force him to surrender it immediately. In contrast, when the defendant has no Pikadon that he must return but merely owes money from a loan, he could tell the truth (that he does not yet have money to pay back) and he would not be forced to pay right away; he does not have to be so brazen as to say that he does not want to pay.
</p><p>
4. The Milchemes Mitzvah answers further that in the case of the Pikadon, when the Gemara says that the Shomer is not a proven liar and thief when he denies having the Pikadon (until witnesses testify that they saw the Pikadon in his possession at the time that he denied having it), the Gemara is referring to the Shomer's credibility with regard to all other matters. Once he is proven beyond any doubt to have lied (i.e. when witnesses testify that they saw the Pikadon in his possession at the time that he denied having it), he no longer is trusted to testify in any monetary matter. In contrast, in the case of the Gemara here, the borrower who refuses in front of witnesses to obey Beis Din merely becomes 'Huchzak Kafran' with regard to <i>this</i> loan; if he later claims again that he paid the loan, he will not be believed unless he brings proof that he paid, such as witnesses who saw him pay. However, the borrower still will be believed if he testifies or makes a claim in any other monetary matter. Since his status of 'Huchzak Kafran' applies only to this loan, Beis Din does not require as strong a reason to establish him as a liar as it requires in the case of a Pikadon. For that reason, the borrower is 'Huchzak Kafran' when he disobeys Beis Din in front of two witnesses, and Beis Din does not assume that he is simply trying to gain more time, in contrast to the case of a Pikadon in which the Shomer is given the benefit of the doubt even in that respect. (I. Alsheich)
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A PARTIALLY PARDONED LIEN</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'> Bava Metzi'a 17a (R. Asi citing R. Yochanan):</font></b> If one
               finds in the market a validated document for a loan
               given that same day, he returns it to the lender.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We are not concerned lest the loan was never
                    given, for it was validated. We are not
                    concerned lest it was paid, for people do not
                    pay loans on the same day.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (R. Zeira):</font></b> R. Yochanan taught that if a
               loan was paid, the document cannot be used for
               another loan, for its lien was pardoned;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yochanan did not need to teach this if the
                    latter loan was on a later day. Even if the
                    lien was not pardoned, the document could not
                    be reused because the date precedes the loan. A
                    predated loan documents is invalid!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Bava Basra 168a (Mishnah - R. Yosi):</font></b> If Reuven paid
               part of his debt to Shimon, and gave the document to
               Levi and said 'if I do not pay the rest by date
               Ploni, give the document to Shimon (who may then
               collect the full amount)', and Reuven did not pay in
               time, Levi gives the document to Shimon.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 14:8):</font></b> A document that was
               paid is a shard.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Perush ha'Rosh (Nedarim 27b DH R. Yosi):</font></b> R. Yosi
               allows collecting the entire loan from Bnei Chorin.
               He cannot collect from Meshubadim, for the lien was
               pardoned. He cannot collect from Meshubadim even the
               part that was not paid, lest he collect the entire
               loan from Meshubadim. This is like a predated
               document. One may not collect from the true date,
               lest one collect from the date on the document.
               Here, he can collect from Bnei Chorin, for he
               acquired the document through Mesirah (handing it
               over). Alternatively, he can collect the entire debt
               from Meshubadim. He stipulated from the beginning
               that if he will not pay in time, the partial
               'payment' was a gift, and the debt will remain like
               it was. This Perush is better, for one acquires a
               document only through Kesivah and Mesirah (writing
               another document and giving it over).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ramban (Bava Basra 168a DH Masnisin) and Ran
                    (Nedarim 27b DH  She'ani):</font></b> How does R. Yosi
                    allow collection with the document? Its lien
                    was pardoned! We must say that he stipulated
                    from the beginning that if he will not pay in
                    time, the partial 'payment' was a gift.
<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 48:1):</font></b> If a loan document was
               paid, one may not use it to borrow again, even if
               this is on the same day, for its lien was pardoned.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ir Shushan (cited in SMA 2):</font></b> If one cannot
                    collect from Meshubadim with a signed document,
                    one cannot use it even for Bnei Chorin. Since
                    the testimony is partially Batel, it is totally
                    Batel.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (SMA 2):</font></b> We learn from one who paid 
                    part of his debt and said that if he does not
                    pay by a certain date, the lender may collect
                    the entire loan. The Rosh says that he collects
                    the entire loan from Bnei Chorin. He cannot
                    collect even the part that was not paid from
                    Meshubadim, since the lien was pardoned. It
                    seems the Rosh allows collecting, from Bnei
                    Chorin, the part that was already paid only if
                    there was through Kesivah and Mesirah. However,
                    the Shulchan Aruch and Rema (55:1,2) allow
                    collecting without this.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Defense (Shach 2):</font></b> In R. Yosi's case, the
                    borrower admits. Also, the Rosh concludes that
                    he stipulated from the beginning that if he
                    will not pay in time, the partial 'payment' was
                    a gift, and the lender collects from
                    Meshubadim. He also implies that without
                    Kesivah and Mesirah, the first document cannot
                    be used to collect (again the part that was
                    paid) even from Bnei Chorin. The Ramban and Ran
                    agree.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If the loan was partially
               paid, one may not use it to borrow that part again,
               for that part of the lien was pardoned.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (55:2):</font></b> (If Reuven paid part of his
               debt to Shimon, and gave the document to Levi and
               said 'if I do not pay the rest by date Ploni, give
               the document to Shimon', Levi does so.) This is when
               Reuven said 'if I do not pay by date Ploni, the
               money I gave now was a gift.' If not, the document's
               lien was pardoned according to the amount he paid.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> In this case, he cannot collect with it at
               all, only from Bnei Chorin.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (2):</font></b> One may collect the part that was not
                    paid.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 5):</font></b> Indeed, initially the Rosh
                    connotes like this. However, there is no reason
                    not to collect from Meshubadim the part that
                    was never paid. We do not find in the Gemara or
                    Poskim a decree lest he collect from Meshubadim
                    the part that was paid. We may not invent a new
                    decree not found in the Gemara. Some allow
                    collecting the principal from Meshubadim with a
                    document that sets Ribis. Some disagree, but
                    only because it was forbidden to write the
                    document. Therefore, it is like a predated
                    document. Alternatively, there is more reason
                    to decree there, for the Ribis comes from the
                    principal. Here, the paid part does not affect
                    the balance. (Below, we give two more reasons
                    why there is less reason to decree here.) All
                    Poskim and the Tur say that if one says that he
                    paid half a document and witnesses say that he
                    paid all of it, the lender collects half from
                    Bnei Chorin (Bava Basra 128b). He cannot
                    collect from Meshubadim, because the buyers say
                    that they rely on the witnesses. If not, e.g.
                    they agree with the borrower, he collects from
                    Meshubadim!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (2):</font></b> The Rosh initially said that the
                    lender cannot collect at all from Meshubadim,
                    lest he collect the entire amount from
                    Meshubadim. The borrower must pay the entire
                    amount, so he is not concerned if it is
                    collected from Meshubadim. Therefore we do not
                    allow collecting from Meshubadim at all, like a
                    predated document. The Rosh concludes that he
                    cannot collect more than half, even from Bnei
                    Chorin, unless the borrower stipulated that
                    what he paid will be a gift, or did Kesivah and
                    Mesirah. There is no concern lest the borrower
                    let him collect more than half from Meshubadim.
                    In many places it seems that a half-paid
                    document may be used to collect the rest from
                    Meshubadim. Also, one must swear to take
                    Meshubadim. We are not concerned lest he swear
                    falsely to collect improperly. We decree about
                    a predated document, and some decree about a
                    document with Ribis, for then the lender
                    collects without swearing. The Rema cannot hold
                    like the Rosh's initial words, for the Rosh
                    retracted! We must say that the Rema means that
                    he collects the unpaid part from Bnei Chorin.
                    He should collect from Meshubadim!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> SMA (2):</font></b> Regarding what was paid, the Rosh
                    requires Kesivah and Mesirah. Above, the
                    Mordechai says that it suffices to give the
                    document again in front of witnesses. He did
                    not mention Kesivah. There is different, for he
                    borrowed again that day. Why does the Darchei
                    Moshe (ha'Aruch 54:12) say that he collects
                    everything from Bnei Chorin? He should specify
                    that this is only through Kesivah and Mesirah!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Rebuttal (Shach 6):</font></b> The Rosh did not mean that
                    Kesivah and Mesirah, i.e. writing 'acquire it,
                    and its entire lien', would help. Here, part of
                    the lien was pardoned! Also, it is predated
                    (the second document creates a lien on the paid
                    part, but the first document is dated earlier,
                    unless this was all the same day). The Rosh
                    prefers the Perush that he said that what he
                    paid will be a gift, because the only way to
                    acquire a document, through Kesivah and
                    Mesirah, is not feasible here.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Gra (5 DH v'Eino):</font></b> The Rema holds that Kesivah
                    and Mesirah is not needed here like he says in
                    Siman 66:1 (b'Sof, when from the beginning one
                    told witnesses to write a document for the
                    buyer and to give it to him). The Shulchan
                    Aruch (Sof Siman 57 and Sof Siman 116) connotes
                    that he does not collect from Bnei Chorin.
                    However, the Rambam (Hilchos Malveh 23:1) and
                    Shulchan Aruch (43:7) allow collecting from
                    Bnei Chorin with a predated document. In Bava
                    Metzi'a 17a, we asked why we must teach the
                    Pesul of a pardoned lien, for in any case the
                    document is predated. If a document in which
                    the lien was pardoned is totally Pasul, this is
                    not a question! Rather, it is Kosher to collect
                    from Bnei Chorin.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>A DOCUMENT IN WHICH THE LIEN WAS PARDONED </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<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> Regarding such enactments, we consider it as if a
          document was written.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (R. Chiya bar Aba):</font></b> A Mishnah teaches this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If a woman showed her Get and she did not
               have a Kesuvah (document), she collects her Kesuvah.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	R. Yochanan:</font></b> You understood the Mishnah due to my
          teaching!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> Perhaps the Mishnah discusses a place
          where they do not write Kesuvos, so the Get is in place
          of the Kesuvah, but where they write Kesuvos, she does
          not collect without a Kesuvah (for one is believed to say
          that he paid an obligation that Chachamim enacted)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Retraction (Abaye):</font></b> What I said is wrong. If where they
          write Kesuvos she does not collect without a Kesuvah, a
          widow from Kidushin would collect only with witnesses of
          death. His heirs could claim that she was already paid!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps that is indeed true!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> If so, it was futile to enact a Kesuvah for
          widows from Kidushin!
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>A KESUVAH FROM KIDUSHIN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Mar Kashisha brei d'Rav Chisda):</font></b> How does Abaye
          know that a widow from Kidushin receives a Kesuvah?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion (Mishnah):</font></b> If a woman was widowed or
               divorced, whether from Kidushin or Nisu'in, she
               collects everything (her full Kesuvah).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> Perhaps that is only when he wrote her a
               Kesuvah!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If so, this is obvious!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> It teaches unlike R. Eliezer ben Azaryah,
               who says that an addition (over the minimal Kesuvah)
               was written only on condition that he will make
               Nisu'in.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Support:</font></b> It says, 'she collects everything.' We
               understand this only if he wrote for her (extra);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he did not write (extra), she gets 100 or
                    200 (if she was a widow or virgin when she
                    married him). Why does it say 'everything'?!
<br>

<p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A KESUVAH FROM KIDUSHIN (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Abaye learned from the following.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Chiya bar Ami - Beraisa):</font></b> If an Arusah (a wife
               during Eirusin, i.e. engagement) dies, her husband
               does not become an Onen (a mourner before the
               burial) and does not become Tamei to engage in her
               burial. If  he dies, she does not become an Onen or
               become Tamei for him. If she dies, he does not
               inherit her. If he dies, she collects her Kesuvah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> Perhaps that is when he wrote her a
               Kesuvah!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If so, this is obvious!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> (Indeed, it is.) It was taught along with
               'when she dies, he does not inherit her', which was
               not obvious.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Abaye had no source that a widow from Kidushin
          gets a Kesuvah. He retracted due to the Mishnah itself.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the Mishnah is in a place where people do not
               write Kesuvos, the Get is the Kesuvah, and it does
               not say that she collects 100 or 200!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps since Chachamim enacted 100 or
               200, it is as if this is written in the Get!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> If so, he could claim that he paid her!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps that is no claim, for then he
               should have torn the Get (to stop her from
               collecting again).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection:</font></b> He cannot tear it, for she needs it to
               remarry!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Suggestion:</font></b> Beis Din should have torn the Get, and
               written that the tear just shows that the Kesuvah
               was paid, but not that the Get is invalid!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rejection:</font></b> He can say that he paid her outside of
               Beis Din (therefore, it is not torn)!
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CONCERN LEST A DIFFERENT DOCUMENT WAS FOUND</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one finds a Get of divorce or freedom, or a
          document of a gift or a receipt, he does not return it.
          Perhaps the giver reconsidered and never gave it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Inference:</font></b> The only concern is that he
          reconsidered. If he would say to give it, we would give
          it, even if it was found much later!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Contradiction (Mishnah):</font></b> If one brought a Get and lost
          it, if he found it immediately, it is Kosher. If not, it
          is invalid.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rabah):</font></b> If it was lost in a place through
          which caravans pass, it is only valid if it was found
          immediately. If caravans do not pass through, it is
          Kosher even if it was found later.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even where caravans pass, it is invalid (if found
               later) only if we know that another couple in the
               city have the same names as on this Get. If we do
               not know, it is Kosher.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If we would not say this, Rabah would contradict
               himself.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  A Get was found in Rav Huna's Beis Din. It said
                    'in the city of Sheviri, on the Rachis River.'
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Rav Huna):</font></b> Are we concerned lest
                    there are two cities 'Sheviri' on the Rachis
                    River (and this Get belongs to a man of the
                    other city, so we do not return it)?
<br>
<br>

sjt:
<font><b>1) THE REASON NOT TO RETURN A GET THAT WAS FOUND</b></font><b>
<br>QUESTION:</b> The Mishnah states that if one finds a lost Get, he may not give it to the woman whose name is written in it, because perhaps the husband wrote the Get but then decided not to give it, and thus it never took effect.
</p><p>
Why does the Mishnah give this as the reason for not returning a Get that was found? Even if the husband did not change his mind and intended to give the Get to his wife, the finder may not give it to her because the husband did not designate the finder as his Shali'ach to give the Get to his wife. In order for a Get to take effect, either the husband or his appointed agent must give the Get to the woman. (<b>PNEI YEHOSHUA</b>)
</p><p>
<b>ANSWER:</b> The <b>PNEI YEHOSHUA</b> answers that the Mishnah implies that in the case of a Get that is found, the woman herself claims that she already received the Get from her husband and then lost it. It is necessary for the Mishnah to teach that the Get is not returned to the woman because one might have thought that it should be returned to her since there is a greater likelihood that a Get that was found was lost by the wife than by the husband.
</p><p>
There are two reasons why it is more likely that the Get was lost by the woman after she had received it, and not by the man before he gave it:
</p><p>
1. There is no urgent need for a woman to keep her Get once she has received it and has become divorced. Hence, a woman is not careful to guard her Get punctiliously, and she easily could have lost it. In contrast, if the Get had been in the possession of the husband, it would have been very unlikely that he would have lost it, since he has a reason to be very careful about guarding the Get and preventing its loss, lest it come into the hands of his wife without his consent. Therefore, it is more likely that the Get was lost by the woman.
</p><p>
2. There is a general rule that a person does not hurry to bring upon himself misfortune. Hence, it is unusual for a man to write a Get and to hold on to it for a long time. Rather, a man waits to write a Get until the moment before he plans to give it to his wife. Since the Get can be assumed to have been in the husband's possession for only a very short time, it is reasonable to assume that it was lost by the wife after she received it..
</p><p>
The Mishnah therefore must teach that although it is more likely that the Get was lost by the woman, the finder should not give her the Get, because there is still reason to fear that it was lost by the husband. The Mishnah mentions the concern that the husband 'decided not to give it' to explain how it is logical to assume that the husband might have lost it: perhaps he was not careful to guard it because he decided not to give it, or perhaps he placed it among his other possessions because he decided not to give it.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>KEEPING A PAID 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'> (Rav Kahana):</font></b> One may not keep in his house a
               document of Amanah (the borrower trusted the
               prospective lender and gave to him the document
               before the loan was given) - 'Do not let Avlah
               (fraud) dwell in your home.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Yehoshua ben Levi):</font></b> One may not keep in his
               house a document for a loan that was paid - 'Do not
               let Avlah dwell in your home'.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav):</font></b> 'If there is sin in your hand, distance it'
               refers to a document of Amanah or Pasim (a document
               which was written only to make the alleged lender
               appear rich). 'Do not let Avlah dwell in your home'
               refers to a paid document.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yehoshua forbids keeping a paid document, all the
               more so he forbids keeping a document of Amanah;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Rav Kahana forbids keeping a document of Amanah. He
               permits keeping a paid document. Sometimes the
               lender keeps it until the borrower pays the cost of
               the document.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Shabbos 78b (Beraisa):</font></b> If one was Motzi a paid loan
               document, he is exempt;
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> R. Yehudah obligates.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Rav Yosef):</font></b> They argue about whether or not one may
               keep a paid document. Chachamim forbid, and R.
               Yehudah permits.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Abaye):</font></b> All forbid keeping a paid document. They
               argue about whether a lender must validate a
               document when the borrower agrees that he authorized
               it.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Bava Metzi'a 16b (Rava):</font></b> When a loan document is
               found, we should be concerned for payment. We do not
               say that the borrower caused his own loss by not
               tearing the document. Perhaps the lender promised to
               return the document at his next opportunity, or was
               holding it until the borrower paid the scribe's fee!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 18a - Suggestion:</font></b> Perhaps one is believed to say
               that he paid an obligation that Chachamim enacted!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Rejection:</font></b> If so, in a place where they do not write
               Kesuvos, why does a woman collect a Kesuvah by
               showing her Get? He could claim that he paid!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps that is no claim, for then he
               should have torn the Get (to stop her from
               collecting again).
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Rejection:</font></b> He cannot tear it, for she needs it to
               remarry!
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> 68a:</font></b> In documents of Chuznai, wholesalers who sell
               goods to merchants write in the document the
               principal and half the anticipated profit. This is
               forbidden, lest there will be no profit (and the
               borrower will pay Ribis)!
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> Mar bar Ameimar:</font></b> My father does so. He believes a
               buyer who says that he did not profit.
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> Rav Ashi:</font></b> He should be concerned lest he die, and
               his heirs will not trust the buyer!
<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> One may not keep in his house a document of
               Amanah or a paid document.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (DH l'Olam):</font></b> Letter of the law, witnesses
                    may sign on Amanah. However, since the lender
                    may not keep it, they should not do so.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ran (DH Asur):</font></b> The borrower should pay the cost
                    of the document. Sometimes he has no money at
                    the time, and the lender pays it, to be repaid
                    when the loan is repaid. The Gemara proves that
                    one may not keep a paid document to be repaid
                    its cost.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Drishah (CM 57:1):</font></b> Bava Metzi'a 16b connotes
                    otherwise. What is the Ran's proof? Surely all
                    agree that it is Avlah to keep the document
                    after the borrower paid for its cost. We must
                    say that they argue about whether this is
                    forbidden even before this, lest one keep it
                    afterwards.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Ran (DH Tanai):</font></b> If a document is on condition,
                    one may keep it in his house because some lien
                    begins now. This is no worse than keeping a
                    document for 100 even though only 50 is owed.
                    One opinion allows even to keep a paid document
                    in order to be paid the cost of the document.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (2:11):</font></b> Rav Kahana forbids keeping a document
               of Amanah. He holds that the verse would not call
               keeping a paid document Avlah, for sometimes one may
               keep it, i.e. until the borrower pays its cost. R.
               Yehoshua holds that one should be careful to not to
               keep it after its cost was paid. If he kept it, this
               is called Avlah  Keeping it to be paid its cost is
               not called Avlah. It is not improper!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Note:</font></b> R. Ami expounded that one may not keep an
                    uncorrected Sefer for more than 30 days from
                    our verse. The Ritva (DH mi'Kan) says that less
                    than 30 days is not called 'Tashken'
                    (dwelling). I did not find anyone give this
                    Shi'ur regarding keeping a paid document.
<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 57:1):</font></b> One may not keep in his
               house a paid document (Rema - or a document
               she'Nimchal Shibudo (its lien was pardoned)).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (2):</font></b> She'Nimchal Shibudo is when the lender
                    pardoned his lien on land, or when the loan was
                    paid, even he borrowed again with the same
                    document.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 2):</font></b> One may keep a document
                    even if he pardoned the lien on land, since it
                    is valid to collect from Bnei Chorin. This is
                    no worse than keeping a document for 100 even
                    though only 50 is owed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If one does not agree to
               return a paid document, it is proper to 
               excommunicate him until he returns it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source (Rashbatz 1:24, cited in Beis Yosef DH
                    Asur):</font></b> We excommunicate for transgressing 'Do
                    not let Avlah dwell in your home'.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (61:16):</font></b> This is even if the borrower
                    does not demand the document back. One does not
                    transgress if he gave a receipt. Alternatively,
                    perhaps even then one transgresses (unless the
                    receipt is written on the document), for there
                    is no reason to keep the document. The receipt
                    might get lost!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> One may not keep the
               document to be paid its cost.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Drishah 1):</font></b> Why is there no mention
                    of the opinion of Tosfos, the Rosh and Ritva
                    (who permit this) in the Shulchan Aruch or Beis
                    Yosef? Why didn't the Ran mention that Tosfos
                    argues?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> It seems that the Drishah never saw Bedek
                    ha'Bayis (additions that the Beis Yosef later
                    added to and incorporated in his Sefer), which
                    cites them.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Question (Shach):</font></b> Why does the Shulchan Aruch
                    rule like the Ran?! It seems that if one tears
                    the document or writes on it that it was paid,
                    all permit keeping it. It seems that the
                    Shulchan Aruch disagrees.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer (Gra 3):</font></b> Rav Kahana does not call
                    keeping a paid document Avlah, for sometimes
                    the lender keeps it to be paid its cost. This
                    connotes that R. Yehoshua forbids even this.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> In a place where the borrower does not pay the
               cost of the document one need not return it, as long
               as he tears it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (5):</font></b> If the borrower paid for the document,
                    even if this is not the custom in that area,
                    one must return it for it is the borrower's.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (4):</font></b> In Bava Metzi'a 18a, we suggested that
                    the husband should have torn her Get when he
                    paid the Kesuvah. We did not suggest that he
                    take it back, because she pays for it.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (5):</font></b> The Rema explains that the Shulchan
                    Aruch discusses who is entitled to keep the
                    document (e.g. to cork a bottle) even after it
                    is torn. Ir Shushan says so explicitly. This is
                    wrong. (That is discussed in 61:12). Here the
                    Shulchan Aruch discusses the Isur to keep an
                    intact paid document.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch:</font></b> One may keep a document for 100 even
               if only 50 is owed, if a receipt is given to the
               borrower or written on the document.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Shach 6):</font></b> The Shulchan Aruch explains
                    that the Ran permits to keep such a document
                    only when he wrote a receipt. This is wrong. If
                    so, also keeping a document to be paid its cost
                    is when a receipt is written on it. If so, why
                    does anyone forbid?! Whenever David holds
                    Levi's property, he may retain it for a debt
                    Levi owes him for an unrelated reason. Avlah is
                    only when one keeps a document for no proper
                    reason. Not writing a receipt is not Avlah.
                    Many people trust each other!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Defense (Korban Nesan'el (on Rosh), 4):</font></b> In Bava
                    Metzi'a (68a), we are concerned lest a lender
                    die and his heirs will collect improperly with
                    his document. If there is no receipt, the same
                    applies here! The Heter to keep the document to
                    be paid its cost is when a receipt is given to
                    the borrower (the cost of the document is
                    deducted), or written on the document. Or, he
                    tears the document (unknown to the borrower,
                    lest the borrower feel no need to pay). It
                    seems that the Rosh and Ran do not argue. The
                    Ran forbids keeping a paid document without
                    tearing it or writing a receipt, and the Rosh
                    permits when one tears it or writes a receipt.
<br>

<p>


lvr: 42
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer (Rabah - Mishnah):</font></b> We return any
                    document of actions of Beis Din.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Even though Rav Huna's Beis Din is (frequented by
               many people) like a place where caravans pass, Rabah
               ruled that we return it!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We must say that if we do not know that two
                    couples have the same names (or that there is
                    another city with the same name), we are not
                    concerned.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Rabah ruled like this about a document found in the flax
          district of Pumbadisa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1:</font></b> It was where flax is sold. Caravans pass
               there. He returned it because we did not know about
               someone else with the same name.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2:</font></b> It was where flax is soaked. He returned
               it even though there was someone else with the same 
               name, because caravans do not pass there. (end of
               Version #2)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (R. Zeira - Mishnah):</font></b> One who brings a Get and
          lost it, if he found it immediately, it is Kosher. If
          not, it is invalid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Beraisa):</font></b> If a Get was found in the
               market, if the husband says to give it, we give it
               to his wife. If not, we do not return it to either
               of them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Inference:</font></b> When the husband agrees, we give it to
               her, even if it was found long after it was dropped!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (R. Zeira):</font></b> If it was lost in a place through
          which caravans pass, it is valid only if it was found
          immediately. If caravans do not pass through, it is
          Kosher even if it was found later.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1:</font></b> Even where caravans pass, we are
               concerned only if we know of someone else with the
               same name. This is like Rabah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2:</font></b> Where caravans pass, we are concerned
               even if we do not know of someone else with the same
               name. R. Zeira argues with Rabah. (end of Version
               #2)
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Rabah did not ask like R. Zeira, for it is better to ask
          a contradiction between Mishnayos.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Why did R. Zeira prefer to ask the
          contradiction between the Mishnah and Beraisa?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Our Mishnah does not explicitly discuss returning
          it to her. We only inferred that we return it to her when
          he agrees. Perhaps this is only if it was found
          immediately. (However, the Beraisa explicitly discusses
          returning it to her. If this were only immediately, it
          would have said so.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> According to Version #2, where caravans pass,
          R. Zeira is concerned even if we do not know of someone
          else with the same name. What do he and Rabah argue
          about?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> Rabah explains that in the Mishnah 'all actions
          of Beis Din, we return them' implies that it was found in
          Beis Din, which is like a place where caravans pass;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We must say that only when we know of someone else
               with the same name, we do not return;
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	R. Zeira disagrees. The Mishnah does not say that they
          were found in Beis Din. They were found outside (which is
          not like a place where caravans pass).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>OTHER ANSWERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Answer #2 (to contradictions 2:c and 2:f - R. Yirmeyah):
          The Mishnah permits returning a Get when the witnesses
          say that they only signed on one Get for a man of this
          name.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Obviously, we may return such a Get!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that we should be
               concerned lest other witnesses with the same names
               as these witnesses signed a Get for another couple
               with the same names. He teaches that we are not
               concerned.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #3 (Rav Ashi):</font></b> The Mishnah permits returning a Get
          when the loser tells us (a superb Siman (sign that it is
          his), such as) a hole in the Get next to a particular
          letter.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if he says which letter the hole is
               near. If he says only that there is a hole, we do
               not return it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Ashi is unsure whether the Torah allows
               returning lost objects when the loser gives a
               mediocre Siman. (If so, this suffices also for a
               Get.) Or, perhaps this is only a Rabbinical
               enactment (regarding money, but for a Get we require
               a superb Siman. Due to his doubt, he requires a
               superb Siman.)
<br>

<p>

sjt:
</p><p>
<font><b>2) APPLYING THE RULE OF 'KAROV' TO A GET THAT WAS FOUND</b></font><b>
<br>QUESTION:</b> The Gemara relates that a Get was found in the court of Rav Huna. The name of the place written in the Get was 'Sheviri.' Rav Huna suggested that it not be returned to the Shali'ach who claimed that he lost it, because there might be two cities called 'Sheviri.' <b>RASHI</b> explains that since there might be another city 'Sheviri,' Rav Huna was concerned that there might be a couple in the other city of Sheviri with the same names as the couple for whom the Shali'ach was supposed to deliver the Get, and the Get that was found may have been written for the other husband with this name and lost by him. Hence, the Get cannot be given, for it might have been written for someone else.
</p><p>
There is a rule that states that in cases of a doubt, the doubt may be resolved (where applicable) by following 'Karov.' This means that the item in doubt is assumed to have come from the nearest place. In this case, Rav Huna knew that there was at least one Sheviri -- the city from which the Shali'ach brought the Get. Even though there might have been another Sheviri somewhere else, farther away, Rav Huna should have assumed that this Get came from the Sheviri that was closer, because of the rule of 'Karov.' Why, then, did Rav Huna suggest that the Get not be returned out of concern that it may have been written for someone else by the same name in a city farther away? (<b>CHASAM SOFER</b>, EH 2:12, <b>TORAS GITIN</b> EH #132)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>SEFER NEFESH CHAYAH</b> answers that mid'Oraisa the rule of 'Karov' <i>would</i> resolve the concern that the Get was lost by someone with the same name, and the Get should be returned to the Shali'ach who claims that he lost it. Rav Huna, however, suggested that the Chachamim may have decreed that the Get may not be given back anyway. The Chachamim may have been concerned that other people might cast aspersions on the validity of the Get (see <b>TOSFOS</b> to 20b, DH Isura) and suspect that it was written for someone else with the same name, in the other city of the same name. Such aspersions would cause the woman's children from her second marriage to be rumored to be Mamzerim, and therefore the Chachamim decreed that a Get that was found may not be given to the woman.
</p><p>
(b) The <b>SEFER MAYANEI HA'CHOCHMAH</b> answers that Rav Huna was not concerned merely that two cities with the same name might exist. The rule of 'Karov' <i>would</i> apply to such a case. Rather, Rav Huna was concerned that there might be <i>many</i> cities of the same name, in which live many people with the same names as those written in the Get. Hence, there would be a '<i>Rov</i>' which counters the 'Karov,' and the Gemara in Bava Basra (24a) teaches that the Rov overrides the Karov in such a situation.
</p><p>
(c) The <b>CHASAM SOFER</b> answers that the Gemara in Beitzah (10b; see <b>RASHI</b> there) teaches that when many people from different parts of the world gather in a single place, the principle of 'Karov' does not apply. Since many people from many places converge on this place frequently, all of the places are considered 'Karov.'
</p><p>
Here, too, the Get was found in the Beis Din of Rav Huna. Rashi writes that everyone was accustomed to coming to him for judgment, and thus his Beis Din was considered a place frequented by caravans (Shayaros Metzuyos). Since many people came to his Beis Din from all parts of the land, he could not rule in accordance with the principle of 'Karov,' for in that place people from nearby and from far away frequently gathered. (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>RETURNING THROUGH SIMANIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Rabah bar bar Chanah lost a Get in the Beis Medrash. He
          said 'I have a Siman. Also, I recognize the Get.' They
          returned it to him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rabah:</font></b> I do not know if they returned it to me
               because of the Siman. If so, they hold that
               (mediocre) Simanim work mid'Oraisa;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps they returned it because I recognize it.
               We allow this only for a Chacham (if we know that he
               lies only about three things about which it is
               proper to lie.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a Get was found in the market, if the
          husband says to give it, we give it to his wife. If not,
          we do not return it to either of them.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> When he agrees, why do we give it to her?
          Perhaps it was not given until after the date written!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If her husband sold Peros of her property in the
               interim, she might use the Get to make us believe
               that she was already divorced, and she will take the
               Peros from the buyer!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1:</font></b> According to the opinion that from the time a
          husband writes a Get, he forfeits Peros of her property,
          the Peros are truly hers!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> How can we answer for the opinion that he gets
          the Peros until he divorces her?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> When she comes to take the Peros, the buyer
          will demand proof that the Peros grew after she received
          the Get.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Why is this different than loan documents?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one finds a loan document with
               Acharayus, he may not return it, because Beis Din
               will make the borrower (Shimon) pay.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We established the Mishnah to be when Shimon admits.
               We are concerned lest the loan was given after the
               date written, and the lender might use the document
               to illegally collect property that Shimon sold in
               the interim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Why don't we say that when he comes to take the
                    property, the buyer will demand that he prove
                    that the document was given before the sale?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> A buyer will realize that Beis Din would return a
          Get to a woman, even if it was not given on the date
          written, to enable her to remarry,. He will demand that
          she bring proof (when it was given);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A buyer will assume that Beis Din returned a loan
               document in order that the lender use it to collect
               from buyers. He will not demand proof.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHY DO WE RETURN DOCUMENTS OF FREEDOM?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Documents of freedom...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a Get of freedom was found in the market,
          if the master says to give it, we give it to the slave.
          If not, we do not return it to either of them.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> When the master agrees, why do we give it?
          Perhaps it was not given until after the date written!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the slave bought property in the interim, and the
               master sold it, the slave might use the Get to make
               us believe that he was already freed, and he will
               take the property from the buyer!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1:</font></b> According to the opinion that it is
          advantageous for a slave to go free, we can answer like
          Abaye, who says that when witnesses sign a document, they
          immediately acquire on behalf of the receiver (indeed,
          the slave is free from the time the Get was signed);
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> How can we answer for the opinion that it is
          detrimental for a slave to go free?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> When he comes to take the property, the buyer
          will demand that he prove that he was free at the time
          (for the same reason that he would demand that a divorcee
          bring proof).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHICH GIFT DOCUMENTS DO WE RETURN?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Gift Daitiki (documents)...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> What is a 'Daitiki'? 'Da Tehei l'Meikam (this
          will be established) to be' - if the giver dies, his
          property goes to Ploni.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	What is a (standard) gift document? It says 'from today
          and after my death.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If it does not say 'from today and after my
          death' it does not acquire?!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> The Beraisa means: which gift of a
          healthy person is like a gift of a Shechiv Mera (a sick
          person who fears lest he die), which acquires only after
          the giver dies? It says 'from today and after my death.'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Inference:</font></b> The Mishnah says that we do not give them,
          lest the giver reconsidered, but if he said to give them,
          we would!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> If one finds a Daitiki, Apotiki
          or gift document, even if both sides agree, he may not
          return it to either party.
<br>
<br>

sjt:
<font><b>1) THE DIFFERENCE BETWEEN THE TRUSTWORTHINESS OF A TALMID CHACHAM AND AN AM HA'ARETZ</b></font><b>
<br>QUESTION:</b> Rabah bar bar Chanah stated that a lost object may be returned to the claimant even when the claimant identifies the object merely with 'Tevi'us Ayin.' However, he added that this applies only to a Talmid Chacham, who is trusted not to lie. An Am ha'Aretz, on the other hand, may not retrieve a lost object based on 'Tevi'us Ayin,' because his word cannot be trusted.
</p><p>
This distinction between a Talmid Chacham and an Am ha'Aretz is difficult to understand. Nowhere in the Torah is the trustworthiness of a person determined based on whether he is an Am ha'Aretz or a Talmid Chacham. (The only exception is the opinion of <b>RABEINU CHANANEL</b> with regard to the credibility of a single witness in matters of Isurim. Rabeinu Chananel differentiates between a Talmid Chacham and an Am ha'Aretz, but all of the other Rishonim argue with his opinion; see <b>RAMBAN</b> and <b>RAN</b> to Chulin 96a). Why, then, may one return a lost object to a Talmid Chacham when he identifies it based on 'Tevi'us Ayin,' while an Am ha'Aretz who identifies it in the same manner is not believed? If 'Tevi'us Ayin' is a sufficient form of identification, then it should be accepted even when the claimant is an Am ha'Aretz. If, on the other hand, 'Tevi'us Ayin' is not a sufficient form of identification, then even when the claimant is a Talmid Chacham it should not be accepted.
</p><p>
With regard to lost money or any other object that has only monetary value, it is easier to understand why there would be a distinction between a Talmid Chacham and an Am ha'Aretz. With regard to Hashavas Aveidah the Torah states, 'Ad Derosh Achicha' (Devarim 22:2), from which the Mishnah (28b, see Gemara 27b) learns that before he may return the object, the finder must ascertain whether the claimant is a liar or is credible. Therefore, it is logical to rely on the word of a Talmid Chacham, since it is known that a Talmid Chacham does not alter the truth. An Am ha'Aretz, however, does not have any established credibility, since it is possible that he alters the truth. Thus, the 'Tevi'us Ayin' of an Am ha'Aretz is not sufficient simply because his credibility has not yet been established as the Torah requires.
</p><p>
In contrast, the Gemara here discusses a <i>Get</i> that was lost. In such a case, the issue is not whether the Get may be returned to the claimant for the sake of its monetary value. After all, the Get itself may have <i>no</i> monetary value (the paper on which it is written may be worth less than a Perutah). Rather, the issue is whether the Get may be returned so that it can be used to effect Gerushin, divorce. Divorce is an issue of Isur, and, as mentioned above, with regard to Isur there is no precedent in the Torah to assign greater credibility to a Talmid Chacham than to an Am ha'Aretz.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAN</b> in Gitin (27a, in his explanation of Rashi there) writes that a Talmid Chacham and an Am ha'Aretz <i>are</i> believed equally with regard to matters of Isur. Accordingly, in the case of a lost Get, both should be considered equally credible. Nevertheless, there is a distinction between a Talmid Chacham and an Am ha'Aretz with regard to '*Tevi'us Ayin*,' but this distinction is not because a Talmid Chacham is trusted not to lie while an Am ha'Aretz is suspected of lying. Rather, the difference is that a Talmid Chacham is much more exacting in what he notices, while others do not notice the precise details of an object. When an Am ha'Aretz claims that he recognizes an object as his own, there is concern that he may be mistaken even if he is not lying intentionally. A Talmid Chacham, on the other hand, is trusted to recognize his own belongings due to his superior recognition of details. Hence, when a Talmid Chacham says that he recognizes an object as his, it may be returned to him, but when an Am ha'Aretz says that he recognizes an object as his, it may not be returned to him.
</p><p>
<b>TOSFOS</b> (here and in Gitin) in the name of <b>RABEINU TAM</b>, however, writes that an Am ha'Aretz, like a Talmid Chacham, <i>does</i> have 'Tevi'us Ayin'; he is assumed to be able to identify his own object reliably based on his visual recognition. His word is not accepted, however, because he lacks credibility. Accordingly, the original question returns -- why is a Talmid Chacham trusted more than an Am ha'Aretz in this case, when there is no such difference in all other cases of Isur in the Torah?
</p><p>
(b) Perhaps the Chachamim treat a Get like a monetary matter (l'Chumra) since a Get affects a husband and wife in two ways, as the <b>ACHIEZER</b> (Gitin 27a, #4) writes: it changes the wife's status of Isur and it also impacts on their financial obligations (such as the Kesuvah and the monetary obligations that each party has to the other). Hence, due to the monetary matter involved, the Am ha'Aretz is not trusted when he identifies the Get based on 'Tevi'us Ayin,' even though his word <i>is</i> accepted with regard to the Isur element of the divorce. When Tosfos writes that an Am ha'Aretz is not believed with regard to 'Tevi'us Ayin,' he refers only to the monetary matter involved.
</p><p>
(It is interesting to note that the <b>RAMBAM</b> (Hilchos Gerushin 3:9) does not differentiate between a Talmid Chacham and an Am ha'Aretz with regard to 'Tevi'us Ayin' of a lost Get. The Ramban in Gitin there explains that this is because of the aforementioned consensus of most of the Rishonim, that with regard to all matters of Isur in the Torah, a Talmid Chacham and an Am ha'Aretz are considered equally credible.) (I. Alsheich)
</p><p>


<font><b>2) THE SHALI'ACH WHO LOST A GET</b></font><b>
<br>QUESTION:</b> The Gemara relates that Rabah bar bar Chanah lost a Get in the Beis ha'Midrash. When the Get was found, he declared that if a Siman was necessary to have it returned to him, then he had a Siman, and if 'Tevi'us Ayin' was necessary to have it returned to him, then he had 'Tevi'us Ayin.' The Rabanan returned the Get to him, and he said, 'I do not know whether they maintain that Simanim are mid'Oraisa, and that is why they returned it to me, or whether it was because of the 'Tevi'us Ayin' that they returned it to me (and, if so, only a Talmid Chacham may retrieve a lost item based on 'Tevi'us Ayin').'
</p><p>
<b>RASHI</b> explains that Rabah bar bar Chanah was a Shali'ach who was delivering a Get on behalf of someone else.
</p><p>
How does Rashi know that Rabah bar bar Chanah was a Shali'ach? Perhaps the Get belonged to Rabah bar bar Chanah who intended to divorce his wife? (<b>MAHARAM SHIF</b>, Gitin 27a)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARAM SHIF</b> answers that it would be inappropriate to assume that Rabah bar bar Chanah was divorcing his wife, and therefore Rashi assumes that he was merely a Shali'ach to deliver a Get for someone else.
</p><p>
(b) <b>REBBI AKIVA EIGER</b> (Teshuvos, 1:107) answers that Rashi understands that Rabah bar bar Chanah <i>must</i> have been a Shali'ach and could <i>not</i> have been divorcing his own wife. If he had been divorcing his own wife, then mid'Oraisa he certainly would have been believed to say that the Get that was found was his, since he would have had a 'Migu' that he could have divorced her anyway by writing another Get. It was only mid'Rabanan that he would not have been believed, because of a concern that the Get may belong to someone else. If that were the case, however, then Rabah bar bar Chanah would not have said that perhaps they returned the Get to him because 'they maintain that Simanim are mid'Oraisa,' for even if Simanim are <i>not</i> mid'Oraisa but only mid'Rabanan, the Get could have been returned to him. Mid'Oraisa he was believed anyway with a 'Migu,' and even if Simanim are only mid'Rabanan such Simanim would have sufficed for the concern of the Rabanan that the Get may belong to someone else. This is why Rashi explains that Rabah bar bar Chanah was not the husband himself, but he was merely a Shali'ach. A Shali'ach has no 'Migu,' and thus the concern that the Get belongs to someone else is a concern mid'Oraisa, since there is no basis (such as a 'Migu') to believe a Shali'ach or assume that he is not lying. That is why Rabah bar bar Chanah attributed the return of the Get to the fact that 'they maintain that Simanim are mid'Oraisa,' because only if Simanim are mid'Oraisa could the Simanim allow the Get to be returned to him.
</p><p>
(c) The <b>BEIS AHARON</b> answers that Rashi understands that if the husband himself lost the Get, he would be believed with 'Tevi'us Ayin' even if he is not a Talmid Chacham. This is because the husband has a 'Migu' that he could have divorced her (as Tosfos writes in Gitin 28a with regard to a Shali'ach who found a Get that he himself lost: when the Shali'ach testifies that he lost the Get but found it himself, he is believed because of a 'Migu' that he could have said that he never lost it in the first place). Accordingly, even a husband who is an Am ha'Aretz would be believed because of the 'Migu.' Why, then, did Rabah bar bar Chanah state that if the Get was returned to him based on 'Tevi'us Ayin,' it was because he was a 'Tzurba m'Rabanan'? If he was the husband, then the Get would have been returned to him even if he was not a 'Tzurba m'Rabanan' because of the 'Migu'! Based on this, Rashi concludes that he was only a Shali'ach, and thus he did not have a 'Migu.'
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>CAN ONE PARDON A LOAN DOCUMENT GIVEN THROUGH MA'AMAD SHELOSHTAN?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If one found a receipt (for payment of
               Leah's Kesuvah), if she admits (that she was paid),
               we return it to her ex-husband.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps he paid after the date written,
               and she sold her Kesuvah in between. The receipt
               'proves' that he paid the Kesuvah before she sold
               it!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1 (Rava):</font></b> This shows that Shmuel is correct.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Shmuel):</font></b> One who sells a loan document can
                    pardon the debt. (Since Leah can pardon the
                    Kesuvah anyway, returning it does not hurt the
                    buyer.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection (and Answer #2 - Abaye):</font></b> This is not a
               proof for Shmuel. The case is, she is holding her
               Kesuvah (so we are not concerned lest she sold it).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Gitin 13b (Shmuel):</font></b> If Reuven says to Shimon 'you
               borrowed money from me. Give it to Levi', b'Ma'amad
               Sheloshtan (when all three are present), Shimon owes
               the money to Levi.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Kesuvos 86a (Shmuel):</font></b> One who sells a loan document
               can pardon the debt.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rav Huna brei d'Rav Yehoshua):</font></b> If the buyer is
               clever, he will offer money to the borrower to write
               a loan document obligating himself to the buyer.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Kidushin 47b (Beraisa #1 - R. Meir):</font></b> If one was
               Mekadesh a woman with a loan document, or gave her
               rights to collect a debt owed to him, she is
               Mekudeshes;
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> Chachamim say, she is not Mekudeshes.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> Regarding a loan document, they argue about Shmuel's
               law, that if a lender sold his loan document, and
               then pardoned the debt, it is cancelled.
               Alternatively, all hold like Shmuel. They argue
               about whether a woman resolves to accept the
               document, or if not, due to fear lest he pardon the
               debt.
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> Regarding a Milveh Al Peh (a loan without a
               document), they argue about whether Ma'amad
               Sheloshtan applies only to deposits, or even to
               loans.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Bava Kama 89a (Mishnah):</font></b> If a married woman damaged,
               she is exempt (she cannot pay). We do not say that
               she must sell the Tovas Hana'ah of her Kesuvah
               (rights to collect, if she will be widowed or
               divorced), due to Shmuel's law. (Surely, she will
               pardon the Kesuvah to please her husband!)
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question:</font></b> She should sell the Tovas Hana'ah of her
               Kesuvah to the damagee. Even if she will pardon the
               loan, it is no worse for him than collecting nothing
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer:</font></b> Surely, she will pardon the Kesuvah to
               please her husband. We do not exert Beis Din to
               arrange a sale that will not help the damagee.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Bava Basra 147b:</font></b> Rav Nachman holds that Matnas
               Shechiv Mera takes effect only in those cases when a
               gift of a healthy person takes effect.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> Question:</font></b> Rav Nachman taught that if a Shechiv Mera
               said 'the debt owed to me should be to Ploni', it
               takes effect, even though a healthy person cannot do
               this!
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> Answer #1 (Rav Papa):</font></b> Matnas Shechiv Mera makes
               Ploni the heir (and heirs acquire debts), therefore
               he acquires the debt.
<br>        <b>  <b><font color='darkgreen'>18. </font></b><font color='darkgreen'> Answer #2 (Rav Acha brei d'Rav Ika):</font></b> A healthy
               person can transfer a debt through Ma'amad
               Sheloshtan.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 6:8):</font></b> If Reuven, Shimon and
               Levi were present, and Reuven told Shimon 'you have
               money of mine, a deposit or loan. Give it to Levi',
               Levi acquires it. None of them can retract.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Ishus 5:17):</font></b> If David owed money to
               Reuven, and Reuven told Leah 'you are Mekudeshes to
               me with the money that David owes me' b'Ma'amad
               Sheloshtan, she is Mekudeshes.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> She resolves to be Mekudeshes
                    because he cannot pardon the debt.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Gitin 1:17):</font></b> Normally, if one sold a debt and
               later pardoned it, the buyer cannot collect. If he
               gave through Ma'amad Sheloshtan, he cannot pardon
               it. We can prove this from Kidushin 47b. The Gemara
               did not conclude that all agree that Ma'amad
               Sheloshtan applies even to loans, and they argue
               about whether or not she fears lest he pardon the
               debt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rebuttal (Ramban Bava Basra 144a DH va'Ani):
                    According to the answer that they argue about
                    Shmuel's law regarding a loan document, the
                    same applies to a Milveh Al Peh!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question #1:</font></b> Bava Metzi'a 19b proves that one
                    can pardon even if he gave through Ma'amad
                    Sheloshtan. If not, we should be concerned lest
                    she sold her Kesuvah through Ma'amad
                    Sheloshtan!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer #1 (Ramban DH Maneh):</font></b> When her husband
                    was in the Ma'amad Sheloshtan, he admitted that
                    he did not yet pay the Kesuvah, so a receipt
                    saying that he paid it beforehand would not
                    exempt him.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Tosfos (Gitin 13b DH Tenehu):</font></b> If there are no
                    witnesses to the sale, in any case she could
                    deny that she ever sold it. If witnesses say
                    even that the husband was silent, this is like
                    admission that he did not pay it.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Question #2:</font></b> In Bava Kama 89a, we say that it
                    is futile to make a woman sell her Kesuvah to
                    pay a damagee, for surely, she will pardon the
                    Kesuvah. We do not force her to sell through
                    Ma'amad Sheloshtan!
<br>             <b>  <b><font color='darkgreen'>vi. </font></b></b> Answer (and Answer #2 to Question #1 - R. Tam,
                    cited in Ramban and Rosh Bava Metzi'a 1:48):
                    Ma'amad Sheloshtan works only for something
                    that can be collected immediately. Perhaps the
                    Kesuvah will never be collected!
<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 66:29):</font></b> If one gave or sold a
               loan document through Ma'amad Sheloshtan, he cannot
               pardon it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (66 DH v'Chen):</font></b> The Nimukei Yosef
                    (Bava Basra 67a DH Omar) says that most
                    Meforshim say that one who sold a loan
                    document, even through Ma'amad Sheloshtan, can
                    pardon it. This is wrong. Most say that in this
                    case he cannot pardon it, including Tosfos, the
                    Rosh and Ran.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 126:10):</font></b> Perhaps the Nimukei
                    Yosef saw more Meforshim who disagree with
                    Tosfos, e.g. the Ra'avad, Rashba, Ramah, Ba'al
                    ha'Ma'or, and Ri mi'Gash! Also the Magid
                    Mishneh leans to say that he can pardon.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (97):</font></b> The Rishonim say that Ma'amad
                    Sheloshtan works for loans with a document. It
                    transfers the debt, but not the document. The
                    giver can pardon even if he also gave the
                    document through another document.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Nesivos ha'Mishpat Urim 39):</font></b> This is
                    unreasonable. The giver can pardon because he
                    retains Shibud ha'Guf (the borrower owes him).
                    Once it lapses there is no Shibud of property.
                    Ma'amad Sheloshtan transfers Shibud ha'Guf. It
                    leaves over only the document, which is Shibud
                    of property. Since he transferred the document
                    through another document, he cannot pardon it!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> SMA (71):</font></b> He cannot pardon it because it is as
                    if a (new) loan was made and the borrower
                    obligated himself to the recipient.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Tumim (54):</font></b> Bava Basra 148a proves that one who
                    gave through Ma'amad Sheloshtan cannot pardon!
                    Rav Nachman holds that Matnas Shechiv Mera
                    helps only when a gift of a healthy person
                    takes effect, and he taught that a Shechiv Mera
                    can transfer a debt. Rav Acha answered that 
                    also a healthy person can transfer a debt
                    through Ma'amad Sheloshtan. We must say that it
                    is in the same way, i.e. the giver cannot
                    pardon it. (One cannot pardon a gift through
                    Matnas Shechiv Mera, for it is like an
                    inheritance.)
<br>
<font color='blue'><i>See also:</i>
<br><b><b>CAN ONE PARDON A LOAN GIVEN THROUGH MA'AMAD SHELOSHTAN? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1 (R. Aba bar Mamal):</font></b> We distinguish between a
          (normal) gift of a healthy person, and Matanas (a gift of
<br>      <b>    <b><font color='darkgreen'>a)</font></b></b> Shechiv Mera. The Mishnah teaches that we return
          Matanas Shechiv Mera (e.g. Levi gave to Reuven, when Levi
          consents), because Levi can retract;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even if (Levi never gave the document to Reuven,
               and) he reconsidered and gave the property to
               Shimon, it does not harm Shimon to return the found
               document to Reuven:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Shimon received a Matanas Shechiv Mera, Levi
                    can retract (now he says to return the document
                    to Reuven, for he wants to give it to Reuven)!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If Shimon received a normal gift, even if
                    Reuven has an earlier Matanas Shechiv Mera, (we
                    see that Levi retracted, so) Beis Din will give
                    the property to Shimon;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Beraisa discusses a normal gift. We do not
               return it, even if Levi consents, for he cannot
               retract.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Perhaps he never gave the found document to
                    Reuven, and reconsidered to give to Shimon, and
                    wrote and gave a normal gift document to
                    Shimon, and now he regrets this and wants to
                    give to Reuven. If we give the document to
                    Reuven, people will assume that it was given on
                    the date written (before Shimon's document),
                    and Reuven will get the property illegally;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If Levi did not give it to anyone else and
                    still wants Reuven to have it, he can write
                    another document now!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection (Rav Zvid):</font></b> Both the Mishnah and Beraisa say
          Daitiki (i.e. Matanas Shechiv Mera)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (Rav Zvid):</font></b> Both discuss Matanos Shechiv Mera.
          The Mishnah says that we give it (when Levi consents),
          because he may retract if he wants (like above);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Beraisa says that we do not give it when Levi
               died and his son says to give it;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Perhaps Levi never gave this document to
                    Reuven. Levi's son (David) inherited the
                    property, and gave it to Shimon, and now he
                    regrets this.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> David cannot retract his own gift. We are
                    concerned lest he scheme with Reuven to give
                    him the document. People will assume he
                    received it in Levi's lifetime, and Reuven will
                    get the property and split it with David.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>If David did not give it to anyone else and
                    wants Reuven to have it, he can give it to him
                    now!
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>ONE WHO FINDS A RECEIPT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If one found a receipt (for payment of Leah's
          Kesuvah), if she admits, he returns it to her husband. If
          not, he does not return it to either of them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> When she agrees, why do we give it to him?
          Perhaps it was not given until after the date written,
          and she sold (the rights to collect) her Kesuvah (if she
          will be widowed or divorced) after the date on the
          receipt but before she was paid. Her husband might use
          the receipt to 'prove' that he paid the Kesuvah before
          she sold it!
<br>

<p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO FINDS A RECEIPT (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #1 (Rava):</font></b> This shows that Shmuel is correct:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> If Reuven sold a loan document to Shimon,
               and then pardoned the debt, the debt is cancelled.
               If Reuven died without pardoning it, even Reuven's
               heir can pardon the debt. (Since Leah can pardon the
               Kesuvah anyway, returning the document does not hurt
               the buyer.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection (and Answer #2 - Abaye):</font></b> This is not a proof
          for Shmuel. The case is, she is holding her Kesuvah (so
          there is no concern lest she sold it).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Rava says that this does not eliminate the concern.
          Perhaps two Kesuvos were written!
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Abaye is not concerned for two Kesuvos;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Further, even if we were concerned, a receipt
               pardons the debt on the day it is signed (even if it
               was given only later);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is like Abaye taught elsewhere, that when
               witnesses sign a document, they immediately acquire
               on behalf of the receiver.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DOCUMENTS THAT WE RETURN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one found documents of appraisal (of a
          borrower's land), of food (from a man who accepted to
          feed a stepdaughter), documents of Chalitzah or Mi'un,
          documents of Birurin (clarification or choosing; this
          will be explained), and all actions of Beis Din, he
          returns them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he found a document in a Chafisah or Deluskema (pouch
          or box), or documents wrapped together in a Tachrich or
          Agudah, he returns it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Three documents tied together is considered an
               Agudah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Shimon ben Gamliel says, if Reuven borrowed from three
          people, we return them to Reuven. If three people
          borrowed from Shimon, we return them to Shimon.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If one finds a document among his documents and does not
          know who deposited it with him (the lender or borrower),
          he leaves it until Eliyahu comes;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If (the lender) finds a receipt (among his own
               documents), he acts according to it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What are documents of Birurin?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Chachamim of Bavel):</font></b> They are documents that
          give the parties' claims.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (R. Yirmeyah):</font></b> Each party selected one judge
          (and the two judges will pick the third).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> We return any document of actions of Beis Din.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	A Get was found in Rav Huna's Beis Din; it said 'in the
          city of Sheviri, on the Rachis River.'
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Rav Huna):</font></b> Are we concerned lest there are two
          cities 'Sheviri' on the Rachis River (and this Get
          belongs to a man of the other city)?
<br>
<br>

sjt:
<font><b>1) ONE WHO FINDS A RECEIPT FOR A KESUVAH</b></font><b>
<br>QUESTION:</b> The Beraisa (end of 19b) states that when one finds a receipt ('Shover') for the payment of a Kesuvah, it may be returned to the husband if the woman admits that she received the money. The Gemara asks why it may be returned; even if the wife admits that she received the payment of her Kesuvah, it is still possible that the receipt was written in Nisan and was not given to the husband until Tishrei. In such a case, the wife may have sold to someone else the rights to collect her Kesuvah (in the event that she is widowed or divorced), and the buyer may have collected the Kesuvah after Nisan (before Tishrei). In such a case, returning the Shover to the husband will allow him to collect unlawfully from the buyer. Since his receipt says that he already paid the Kesuvah to the woman in Nisan, Beis Din will conclude that the subsequent payment to the buyer of the Kesuvah was incorrect and will return the land that was collected (the land that was designated as payment for her Kesuvah) to the husband.
</p><p>
Rava answers that this Beraisa supports the opinion of Shmuel who rules that if a lender sells a Shtar Chov to a third party and then absolves the borrower of his debt, the debt is cancelled even though it now belongs to the third party. Likewise, in the case of the Gemara here, there is no concern that the husband will collect unlawfully from the buyers because the woman who sold the rights to collect her Kesuvah is still entitled to absolve her husband of his responsibility to pay it. If she does absolve her husband of this obligation, then the husband's obligation to pay the buyer will be nullified retroactively, and the husband will be justified in taking back the land that he paid them.
</p><p>
Abaye rejects Rava's opinion that the Beraisa supports Shmuel's ruling. Abaye maintains that the Beraisa can be explained differently. The Beraisa can be understood to refer to a case in which the woman is still in possession of her Kesuvah, and that alone proves that she did not sell it. Rava rejects this answer with the argument that perhaps the husband wrote two Kesuvos for his wife and she sold the first one, in which case the fact that she still has her Kesuvah does not prove that it was not sold.
</p><p>
Abaye gives two responses to Rava's argument. First, Abaye maintains that the Halachah never takes into account a possibility that two Kesuvos were written. Second, even if there would be such a concern, the Shover takes effect to cancel the debt on the day that it was signed (and not just on the date that it was given), and thus even if the wife sold the rights to her Kesuvah after the receipt was written, the buyers were <i>not</i> entitled to collect the Kesuvah. The Gemara states that Abaye's position here is consistent with his own opinion earlier (13a, 19a) where he rules that when witnesses sign a document, the document takes effect immediately.
</p><p>
It is difficult to understand why Abaye needs to give both answers. If Abaye maintains that a document takes effect at the moment that witnesses sign it, then his second answer is an adequate and accurate explanation for the Beraisa's ruling, and no further explanation should be necessary. Why does Abaye add in his response to Rava that the case of the Beraisa may be one in which the woman still possesses her Kesuvah? According to Abaye's opinion, the Beraisa can be understood in all cases, even if the woman no longer has her Kesuvah, because a receipt always takes effect at the time that it is signed.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b><b><b>RI</b></b> MI'GASH</b> (cited by the Shitah Mekubetzes) answers that Abaye gives his first answer to refute Rava's argument even according to Rava's own position. That is, Abaye wants to prove that the Beraisa does not support Shmuel's opinion even if a document takes effect not when witnesses sign it but when it is given to the recipient. Since the case of the Beraisa can be explained as one in which the woman is still in possession of her Kesuvah, it is not necessary to interpret the Beraisa to mean that the woman cancelled her husband's obligation to pay the Kesuvah. Rather, since Beis Din would not suspect that two Kesuvos were written, the fact that she still has her Kesuvah proves that she did not sell it to anyone.
</p><p>
(b) The <b>MA'AYANEI HA'CHOCHMAH</b> offers an answer based on the opinion of the <b>RIF</b> according to the <b>ROSH</b>, who maintains that even if witnesses cause a document to take effect when they sign it, the effect of their signatures can be nullified if the subject of the document is sold between the time that the document is written and the time that it is given. Consequently, in the case of the Gemara here, Abaye's second answer does not suffice to address the concern that the woman may have sold the Kesuvah for which the receipt was written, because her sale would override the effect of the witnesses' signatures. Therefore, Abaye also answers that the Kesuvah still may be in the woman's possession, in which case the Beraisa is no proof for the opinion of Shmuel. Why, then, does Abaye give the second answer, if that answer does not address the Gemara's concern? The second answer is meant to address a different concern -- that perhaps the woman borrowed money from a third party after the receipt was written but before it was given to the husband. In such a case, the Kesuvah would be Meshubad to the loan due to the law of Rebbi Nasan, who teaches that a lender is permitted to collect his debt from someone else who owes money to the borrower. (In this case, the husband owes the Kesuvah money to the wife, who is the borrower, and thus the lender may collect directly from the husband.) In such a situation, the woman certainly cannot release her husband from his obligation to pay the Kesuvah (see Shulchan Aruch CM 86:5 and Shach there). Hence, Beis Din must suspect that the woman and her husband are conspiring to cheat the lender. (If the woman 'admits' that her Kesuvah was paid already and the pre-dated receipt is returned to her husband, he will be able to take back the property that the creditor collected, which is the property designated for the Kesuvah.) The fact that she still has her Kesuvah would not prove this second concern to be invalid, since the fear is not that she sold the Kesuvah, but rather that she borrowed money against it. Therefore, Abaye must add that the receipt took effect from the moment that the witnesses signed it. (I. Alsheich)
</p><p>
(See also <b>BA'AL HA'ME'OR</b> and <b>CHEMDAS SHLOMO</b>.)
</p><p>


<font><b>2) THE WOMAN'S ABILITY TO PARDON THE DEBT OF HER 'KESUVAH'</b></font><b>
<br>QUESTION:</b> The Beraisa (end of 19b) states that when one finds a receipt ('Shover') for the payment of a Kesuvah, it may be returned to the husband if the woman admits that she received the money. The Gemara asks why it may be returned; even if the wife admits that she received the payment of her Kesuvah, it is still possible that the receipt was written in Nisan and was not given to the husband until Tishrei. In such a case, the wife may have sold to someone else the rights to collect her Kesuvah (in the event that she is widowed or divorced), and the buyer may have collected the Kesuvah after Nisan (before Tishrei). In such a case, returning the Shover to the husband will allow him to collect unlawfully from the buyer. Since his receipt says that he already paid the Kesuvah to the woman in Nisan, Beis Din will conclude that the subsequent payment to the buyer of the Kesuvah was incorrect and will return the land that was collected (the land that was designated as payment for her Kesuvah) to the husband.
</p><p>
Rava answers that this Beraisa supports the opinion of Shmuel who rules that if a lender sells a Shtar Chov to a third party and then absolves the borrower of his debt, the debt is cancelled even though it now belongs to the third party. Likewise, in the case of the Gemara here, there is no concern that the husband will collect unlawfully from the buyers because the woman who sold the rights to collect her Kesuvah is still entitled to absolve her husband of his responsibility to pay it. If she does absolve her husband of this obligation, then the husband's obligation to pay the buyer will be nullified retroactively, and the husband will be justified in taking back the land that he paid them.
</p><p>
How does the Beraisa support the opinion of Shmuel? <b>RASHI</b> (DH Shema Minah) explains that according to Shmuel, even if the woman sold the rights to her Kesuvah <i>before</i> she gave the receipt to her husband, 'her husband justly acquires the receipt.' Rashi apparently means that when the woman gives the receipt to her husband, that act in itself absolves the husband of his debt. Accordingly, since Shmuel maintains that a creditor may forgive a debt even after he has sold it, the woman's act of forgiving her husband's debt (by giving him a receipt) takes effect. (This is also the way the <b>NIMUKEI YOSEF</b>, <b>RASHBA</b>, and <b>RAN</b> explain.)
</p><p>
However, Rashi later (DH l'Shtei Kesuvos) gives an entirely different explanation. Rashi writes that 'since it is in her ability to forgive the Kesuvah to her husband' there is no concern that she sold the rights to collect the Kesuvah. Rashi there takes the position of Tosfos that the woman has a 'Migu': since she could have forgiven the debt, her admission that she already received the Kesuvah payment is sufficient for the receipt to be returned to her husband. Shmuel maintains simply that she has basis for a 'Migu,' which gives her credibility. Rashi does not mention that the very act of giving a receipt to the husband releases him from his obligation to pay the Kesuvah. How can these two different explanations of Rashi be reconciled? (<b>MAHARIM SHIF</b>)
</p><p>
<b>ANSWER: RAV ISUR YEHUDAH UNTERMAN</b> zt'l (She'eilos u'Teshuvos, Kuntrus Acharon 80:18) answers based on the view expressed in the Yerushalmi that when a creditor forgives a debt owed to him while he still retains the document about that debt, his forgiveness is ineffective and the debt remains in force (see Shulchan Aruch CM 241, and the Shach there, #4). In the Gemara here, Abaye says the woman still has the Kesuvah in her possession (in order to explain why Beis Din does not need to be concerned that she sold it to others). According to Abaye, therefore, even if she gives the receipt to her husband, that act cannot absolve him of the debt of the Kesuvah, because she still has the Kesuvah in her possession. Rather, it must be that the receipt may be returned because of a 'Migu' that the woman could forgive the debt right now. The second statement of Rashi explains Rava's response to <i>Abaye</i> who understands that the Beraisa refers to a case in which the woman still has possession of her Kesuvah. Since she still has her Kesuvah, even if she were to forgive the debt it would not be cancelled, so Rashi cannot explain that the woman forgives the debt by giving the receipt to her husband. Rather, Rashi explains that the woman's ability to forgive the debt gives her a Migu which lends her credibility so that the receipt can be returned to her husband.
</p><p>
The first statement of Rashi is an explanation of Rava's initial statement (before Abaye's response). At that point in the Gemara, Rava understands the case of the Beraisa as one in which the Kesuvah is <i>not</i> in the woman's possession. That is why she is able to forgive the debt of the Kesuvah, and Rashi is able to give his first explanation: that the very act of giving a receipt to her husband is itself a way for the woman to forego payment of her Kesuvah. (See a different approach in <b>CHIDUSHEI CHASAM SOFER</b>.) (I. Alsheich)
</p><p>


<font><b>3) 'IGROS MAZON'</b></font><b>
<br>QUESTION:</b> The Mishnah states that one who finds 'Igros Mazon' may return it to the bearer of the document who lost it. <b>RASHI</b> explains that an Igeres Mazon is a document in which a man obligates himself to support his step-daughter (the daughter of his wife).
</p><p>
If the Igeres Mazon is a document of obligation, then why does the Mishnah allow it to be returned? With regard to other types of Shtaros, the Mishnah (12b and 18a) expresses concern that the person who wrote a document may have decided not to give it, and therefore the document should not be returned lest it be used unlawfully against the person who wrote it. Here, too, the Mishnah should not allow the Igeres Mazon to be returned to the woman, because it might unjustly cause the man who wrote it to be forced to pay.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHASH</b> answers that Rashi refers to an Igeres Mazon which states that the man accepted this obligation upon himself 'with a Kinyan,' in which case he is not able to retract his commitment to support his step-daughter. Since the <i>Kinyan</i> makes the obligation take effect (and not the Shtar), the Shtar itself merely serves as proof of his obligation, and thus it may be returned.
</p><p>
(b) The <b>IMREI MAHARSHACH</b> answers that according to Rashi, the Mishnah refers to a Shtar written in Beis Din. Beis Din authorizes the writing of documents only when they are written with the intention to be used. Therefore, there is no concern that the man changed his mind, and thus the document may be returned. (Rashi himself writes this with regard to 'Kol Ma'aseh Beis Din' in DH Harei Zeh Yachzir, #1.) (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN ONE CAN PARDON A DEBT TO WHICH SHIBUD D'R. NOSON APPLIES?</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'> 19b - Question:</font></b> Why does a Beraisa permit returning
               a receipt for payment of a Kesuvah (to the husband)
               if she admits? Perhaps it was given after the date
               written, after she sold her Kesuvah after the date
               but before she was paid. The receipt is a false
               'proof' that the Kesuvah was paid before she sold
               it!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rava):</font></b> This is a proof for Shmuel, that if
               one sold a loan document, and then pardoned the
               debt, the debt is cancelled. (Since she can pardon
               the Kesuvah anyway, returning the document does not
               hurt the buyer.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Kesuvos 19a (Rav Yehudah):</font></b> If he says that the
               document is Amanah (the loan was never given), he is
               not believed.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Abaye):</font></b> The lender says that it is Amanah. It is a
               case in which his admission hurts others (his
               creditors), like R. Noson's law:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beraisa (R. Noson):</font></b> 'He will give to the one he
                    sinned against' - if Reuven owes Shimon, and
                    Shimon owes Levi, we take from Reuven to pay
                    Levi.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 81b (Beraisa):</font></b> Reuven owed money to his brother
               Levi. Levi died and his wife fell to Yibum. Reuven
               cannot say 'since I (will do Yibum and) inherit, I
               will keep the money.' Rather, we take the money and
               buy land with it, and he eats the Peros.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> He cannot tell her 'you have no claim against me.'
               This is like R. Noson.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 85b:</font></b> A relative of Rav Nachman sold her Kesuvah. She
               was divorced, and then died. The buyer came to
               collect from her daughter (who inherited her, and
               claimed her mother's Kesuvah from her father). Rav
               Nachman suggested that she pardon her mother's
               Kesuvah to her father, (and she will inherit that
               money from her father). The daughter heard the
               counsel, and did so.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Bava Kama 87a (Mishnah):</font></b> If a (married) woman
               damaged someone, she is exempt now, but pays later.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 89a - Question:</font></b> Granted, we can say that she has no
               Nichsei Melug to pay. However, she should sell the
               Tovas Hana'ah of the Kesuvah to pay the damage!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer:</font></b> She need not sell it, for Shmuel taught that
               one who sold a loan document can pardon it. (Surely,
               she will pardon it to please her husband!)
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Gitin 40b (Mishnah):</font></b> If Shimon lent to Reuven money,
               and Reuven made his slave Tavi collateral (with a
               guarantee that the loan may be collected from Tavi's
               value) and he freed him, letter of the law, Tavi
               owes nothing to his master.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Rav):</font></b> Reuven freed him. Letter of the law, Tavi
               owes nothing to Shimon, who should have received
               him. Rava taught that freeing a slave uproots a
               lien. Chachamim exempt one who damages property
               Meshubad to someone else.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rosh (and Tosfos, Kesuvos 2:9 and 19a DH u'Chegon):
               Shimon is not believed to say that the document was
               Amanah, Migo (since) he could pardon the debt. This
               is not a Migo, for perhaps he plans to collect. He
               assumes that the borrower does not want to steal,
               and will pay later.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Tosfos (ibid.):</font></b> Alternatively, if the sale of a loan
               document is only mid'Rabanan, perhaps one cannot
               pardon when Shibud d'R. Noson applies, for it is
               mid'Oraisa.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (CM 86 DH v'Da):</font></b> The Rosh only
                    brought Tosfos' first answer. This implies that
                    he holds that one can pardon when Shibud d'R.
                    Noson applies (unlike the Teshuvah below).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Reuven had a loan document against Shimon,
               and Shimon had a loan document against his brother
               Levi. Reuven wanted to collect from Levi due to
               Shibud d'R. Noson. Levi claims that his brother
               kindly agreed not to press him for payment until
               Levi wants. Beis Din senses that this is true. Is
               Levi's claim valid?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rosh 69:3):</font></b> If the explicitly says that Levi
               need not pay until he wants, Reuven has no more
               Shibud against Levi than Shimon did. We do not say
               'as long as Shimon owes Reuven, he is his slave, and
               may not do Chesed with his master's money.' Shimon
               may give gifts to anyone he wants. Levi is Meshubad
               to Reuven only due to the loan. Once the loan was
               given, Reuven merited Shimon's Shibud against Levi,
               and Shimon cannot pardon it or extend the time. He
               is not believed to say that the document is Amanah.
               He has no Migo that he could pardon it. He is unlike
               one who sold a loan document, who can pardon it, for
               the sale is only mid'Rabanan. If the document does
               not say that he cannot force Levi, even if it is
               known that he would not have forced him, Shimon
               could collect whenever he wants, and Reuven has that
               right.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Contradiction:</font></b> The Rosh in Kesuvos holds that
                    Shimon can pardon Levi!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer #1 (Bach CM 86 DH She'elah):</font></b> The Rosh
                    holds that Shimon can pardon before it is known
                    that he has no other property. He cannot pardon
                    after it is known, for then Shibud d'R. Noson
                    applies.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Shach 47:7):</font></b> The Rosh in Kesuvos
                    discusses when Shibud d'R. Noson applies. In
                    the Teshuvah he discusses the same case as in
                    Kesuvos! (Rather, the Rosh retracted to say
                    that he cannot pardon.)
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer #2 (Taz 86:5):</font></b> The Rosh (Teshuvah 90:1,
                    cited in Beis Yosef DH Kosav) says that Shibud
                    d'R. Noson starts only when it becomes clear to
                    Beis Din that Shimon owes him. Before this, he
                    can pardon.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rema (CM 66:26):</font></b> Some say that if Shimon sold a loan
               document, he can pardon it only if he did not owe
               the buyer, or if Shimon has other property to pay
               the debt. If Shimon owed the buyer and had no other
               property, the borrower already is Meshubad to the
               buyer, so Shimon cannot pardon.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (108):</font></b> We learn from Bava Kama 89a (that
                    one who does not owe can pardon, even if he has
                    no other property). If a woman without money
                    sells her Kesuvah, she can pardon it (for once
                    she sells it, she does not owe). Also, Rav
                    Nachman counseled a girl to pardon her mother's
                    Kesuvah so the buyer would not collect. If
                    Reuven owed to his brother Levi, and Levi died
                    and his wife fell to Yibum, we take the money
                    from Reuven, buy land with it, and he eats the
                    Peros. Reuven will (do Yibum and) inherit Levi,
                    but he cannot pardon the debt to himself, for
                    he is Meshubad to her due to R. Noson's law.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Rema (ibid.):</font></b> Some disagree.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (110):</font></b> Tosfos (Kesuvos 19a) rejected the
                    above proofs. (Reuven cannot uproot the
                    Yevamah's rights, for he inherits only due to
                    Yibum with her). Gitin 40b supports Tosfos.
                    Sefer ha'Terumos says that freedom is like
                    pardon (and it works). Really, this proves the
                    opposite! (Only) freedom works, for it is like
                    Kedushas ha'Guf. (The slave becomes a Yisrael,
                    and cannot revert to being a slave. Hekdesh
                    Kedushas Damim does not uproot a lien - Tosfos
                    40b DH Hekdesh, based on the Yerushalmi.)
                    Kesuvos 86a proves that Shimon can pardon. The
                    Ramban brings a proof from Bava Metzi'a 20a. We
                    return a receipt, even though perhaps she
                    borrowed from others (and the receipt will
                    exempt her husband from Shibud d'R. Noson). We
                    can reject this; perhaps we return when she has
                    Nichsei Melug.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 86:5):</font></b> Shimon cannot pardon Levi
               or extend the time he has to pay, for his Shibud on
               Levi was uprooted. Levi is now Meshubad to Reuven.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (16):</font></b> Bava Kama 89a discusses a woman
                    without Nichsei Melug, yet she can pardon! The
                    Rema said that one who did not owe can pardon.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>TO WHICH DEBTS DOES SHIBUD D'R. NOSON APPLY? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rabah - Mishnah):</font></b> We return any document of
          actions of Beis Din.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Rav Amram):</font></b> How can you learn about a Get,
          which affects an Isur, from monetary laws?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> Actions of Beis Din include document of
          Chalitzah and Mi'un, which are Isurim.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DOCUMENTS FOUND TOGETHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If they were found in a Chafisah or Deluskema.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is a Chafisah?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rabah bar bar Chanah):</font></b> It is a small wine pouch.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is a Deluskema?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rabah bar Shmuel):</font></b> It is a box in which old
          people put their Kelim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A Tachrich or Agudah of documents.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> How many is considered a Tachrich?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> It is three wrapped together.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> How many is considered an Agudah?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1:</font></b> It is three tied together.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Inference:</font></b> This teaches that the type of knot is a Siman.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection (and Answer #2):</font></b> R. Chiya taught that an Agudah
          is three wrapped together (and the fact that they were
          wrapped is the Siman).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> That is a Tachrich!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> In a Tachrich, the first document is rolled, and
          each successive document is wrapped around the previous
          ones, so the top of each is near the bottom of the
          previous. In an Agudah, the parchments were placed
          resting on each other, and all were wrapped at once.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> If one finds them, what does he announce (so
          the loser will know to claim them)?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #1:</font></b> He announces how many he found.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Objection:</font></b> If the loser need not say how many there were
          (just that they were wrapped together) he should announce
          even if there were only two!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Ravina taught that one who finds coins
          announces 'coins'. Here, he announces 'documents.'
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	(Mishnah - R. Shimon ben Gamliel):</font></b> If Reuven borrowed
          from three people, we return them to him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had they fallen from the lenders, there is no reason
               why they would be wrapped together.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps they were being brought to be
               validated!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, they are already validated.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps the scribe dropped them!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> A lender would not leave a validated
               document with the scribe.
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Shimon lent to three people, we return them
          to him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had they fallen from the borrowers, there is no
               reason why they would be wrapped together.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps one scribe wrote all of them!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, the handwriting reveals that
               different scribes wrote them.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps they were being brought to be
               validated!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> The lender validates documents. The borrower
               does not.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>DO WE ACT ACCORDING TO A RECEIPT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If there is a receipt with them, he acts
          according to it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yirmeyah bar Aba):</font></b> If the lender has a receipt, even
          in his own handwriting, we ignore it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is not only if a scribe wrote it, for then we
               can say that he happened to find a scribe, and had
               him write it (in case he will not find a scribe when
               he needs it);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Even if he wrote it himself, he wanted to be ready,
               in case the borrower will want to pay just before
               Shabbos on condition that he receives a receipt, and
               there will not be time to write one. (The coming
               five questions are against R. Yirmeyah.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question #1 (Mishnah):</font></b> If (the lender) finds a receipt
          (among his own documents), he does like it says.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> We can answer like Rav Safra answered (below).
          The case is, he found it (the document for which this
          receipt was written) among torn documents (this confirms
          that the document was paid. Alternatively, the receipt
          was among torn documents, to show that he does not need
          the receipt, i.e. he was already paid.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question #2 (Mishnah):</font></b> If Reuven lent to two people with
          the same name, and found a receipt saying that one of
          them was paid, he may not collect from either.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Here also, we can answer like Rav Safra. He found
          it among torn documents.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question #3 (Mishnah):</font></b> (If Reuven's orphans that want to
          collect what Shimon owed Reuven from Shimon's orphans,)
          they must swear 'our father did not tell us, nor did we
          find a receipt among his documents saying that this debt
          was paid.' (This implies that such a receipt would be
          valid!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Safra):</font></b> If they would find it among torn
          documents, the receipt would be valid.
<br>

sjt:
</p><p>
<font><b>4) DID AN AMORA FORGET A MISHNAH?</b></font><b>
<br>QUESTION:</b> When a Get was found in the court of Rav Huna, Rabah ruled that it may be returned to the Shali'ach who lost it. He based his ruling on the Mishnah (20a) which states, 'Any document written in Beis Din may be returned.' Rav Amram questioned how Rabah could derive a Halachah for a matter of Isur (divorce) from a Halachah pertaining to a monetary matter (Shtaros). Rabah responded, 'Fool! The Mishnah is [also] discussing Shtarei Chalitzah and Mi'un (which are matters of Isur)!'
</p><p>
What was Rav Amram's intention when he asked Rabah how he could derive a Halachah of Isur from a monetary matter? He certainly knew that the Mishnah mentions Chalitzah and Mi'un!
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>PNEI YEHOSHUA</b> writes that Rav Amram maintained that there is a difference between the Isur associated with Chalitzah and the Isur associated with Gerushin. If a man marries a woman who did not do a proper Chalitzah, he transgresses only an Isur Lav, while a man who marries a woman who did not receive a proper Get transgresses the Isur of Eshes Ish, which is very severe. Accordingly, although the Mishnah indicates that a document pertaining to Chalitzah or Mi'un may be returned, Rav Amram was not willing to extrapolate from those cases to the case of a Get. Rabah, on the other hand, maintained that regardless of the severity of the Isur, the same rule would apply to all such documents that are found, since they all relate to issues of Isurim.
</p><p>
(b) The <b>EIN YEHOSEF</b> explains that Rav Amram's difficulty was with the language that Rabah used in his ruling. Rabah based his ruling on the 'Ma'aseh Beis Din' mentioned in the Mishnah, but Rav Amram maintained that the phrase 'Ma'aseh Beis Din' refers only to Shtaros pertaining to monetary matters. Rabah answered that since this Mishnah also discusses Shtaros of Chalitzah and Mi'un, 'Ma'aseh Beis Din' includes all types of Shtaros. (I. Alsheich)
</p><p>


<font><b>5) 'FOOL!'</b></font><b>
<br>QUESTION:</b> When a Get was found in the court of Rav Huna, Rabah ruled that it may be returned to the Shali'ach who lost it. He based his ruling on the Mishnah (20a) which states, 'Any document written in Beis Din may be returned.' Rav Amram questioned how Rabah could derive a Halachah for a matter of Isur (divorce) from a Halachah pertaining to a monetary matter (Shtaros). Rabah responded, 'Fool! The Mishnah is [also] discussing Shtarei Chalitzah and Mi'un (which are matters of Isur)!'
</p><p>
How could Rabah, a holy Amora, call Rav Amram a 'fool'? (See <b>CHAVOS YA'IR</b> (#152), as quoted in Insights to Bava Kama 65:2 with regard to a similar question.)
</p><p>
<b>ANSWER: RAV YERUCHAM LEVOVITZ</b> zt'l, the Mashgi'ach of the Mirrer Yeshiva, in <b>DA'AS CHOCHMAH U'MUSAR</b> (volume 2), teaches that every action of the holy Amora'im was done with the utmost purity and holiness. We, who do not live on such a lofty level of holiness, would insult and degrade our fellow man if we were to call him by a derogatory name, and it indeed would be a severe transgression for we cannot be confident that no impure motivation was behind our words or actions. The holy Amora'im, on the other hand, spoke only with absolute purity of intention. Hence, even words that might seem to be words of derision were spoken -- and understood -- by the Amora'im with the 'fire of Torah' burning in them, with only the purest intentions. (I. Alsheich)
</p><p>


<font><b>6) A 'SHTAR' OR A 'SHOVER' AMONG ONE'S TORN 'SHTAROS'</b></font><b>
<br>QUESTION:</b> Rav Safra states that when a lender finds among his torn Shtaros a receipt (Shover) which states that a certain debt was repaid to him, that receipt is valid and he may not demand payment for the debt for which it was written.
</p><p>
<b>RASHI</b> (DH she'Nimtza) writes that the Shtar itself (and not the Shover) was found among the torn Shtaros. Why does Rashi say that the Shtar was found among torn Shtaros, when the Gemara clearly says that the Shover was found?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARSHA</b>, <b>MAHARAM</b>, and <b>MAHARAM SHIF</b> answer that Rashi refers to the two Shtaros for which this Shover might have been written (for example, two borrowers with the same name borrowed money from this lender, and a Shover was written stating that one of the Shtaros is paid). Rashi means that the two Shtaros are kept together with torn Shtaros, and when each borrower claims that 'this is my Shtar,' he claims that the Shtar for which a Shover was written is his Shtar.
</p><p>
(b) The <b>EIN YEHOSEF</b> answers that when Rashi here mentions 'Shtar,' he actually refers to a Shtar of receipt, a Shover.
</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DO WE ACT ACCORDING TO A RECEIPT? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question #4 (Beraisa):</font></b> A receipt that has witnesses is
          validated through the signatures.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection:</font></b> It is validated (established) through asking
          the signers if the loan was paid.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question #5 (Beraisa):</font></b> A receipt that has witnesses is
          Kosher.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> It is Kosher if it has witnesses of a Henpek
          (a validation of Beis Din, for the loan was paid).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Support (for R. Yirmiyah - Seifa):</font></b> A receipt that has
          no witnesses is invalid.
          1.	If is has no witnesses at all, this is obvious!
          2.	Rather, it has no witnesses of validation (even
               though witnesses are signed on it).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A receipt which has witnesses is validated
          through the signatures;
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	If it has no witnesses, and a third party holds it or
          it is written on the loan document below the signatures,
          it is valid.
          1.	If a third party holds it, it is valid, for the
               lender trusted the third party;
          2.	If it is written on the loan document below the
               signatures, it is valid, for the lender would not
               allow them to taint his document unless he was
               really paid.
<br>
<br><center><font color='ff0000' size='+1'><b>*****<b>PEREK ELU METZI'OS</b>*****
</b></font></center><p><b>
<br><b></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHICH METZI'OS MAY BE KEPT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Meir):</font></b> If one found any of the following,
          he may keep it: scattered Peros or coins, small bundles
          of sheaves in the Reshus ha'Rabim, rings of figs, baker's
          loaves, fish threaded on strings, pieces of meat, wool
          shearings, bundles of flax, and strips of purple wool;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yehudah says, one must announce to return anything
          abnormal, such as a ring of figs with pottery inside.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Shimon ben Elazar says, one need not announce
          Anpurya Kelim (this will be explained).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> How much scattered Peros may one
          keep?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (R. Yitzchak):</font></b> One may keep one Kav (of grain)
          spread over four (by four) Amos.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
          1.	If it is scattered like Peros that fell, even if
               it is denser than this, he should be allowed to keep
               them!
          2.	If it seems that it was placed down and did not
               fall, even if it is sparser than this, it should be
               forbidden to keep!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Ukva bar Chama):</font></b> The case is, it was the
          time (Rashi; Rambam - place) of gathering the Peros (this
          was left over).
          1.	If one Kav is spread over four Amos, the owner
               will not exert himself to gather it, and he makes it
               Hefker. If it is closer together than this, he
               gathers it.
<br>
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (R. Yirmiyah):</font></b> If a half Kav is spread over
          two Amos (by four Amos; alternatively, by two Amos), what
          is the law?
          1.	If the reason he does not gather one Kav in four
               Amos is because the exertion is too much, here
               (perhaps he would return for it, for) it is not so
               much exertion;
          2.	If one does not gather one Kav in four Amos is
               because it is not worth very much, all the more so a
               half Kav spread over two Amos (he makes it Hefker).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> If two Kavim are spread over eight Amos. what
          is the law?
          1.	If one does not gather one Kav in four Amos is
               because the exertion is too much, all the more so
               here;
          2.	If one does not gather one Kav in four Amos is
               because it is not worth very much, (perhaps here is
               different, for) two Kavim in eight Amos is
               worthwhile.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If a Kav of sesame is spread over four Amos,
          what is the law?
          1.	If one does not gather one Kav (of grain) in four
               Amos is because it is not worth very much, (perhaps
               here is different, for) sesame is worth a lot;
          2.	If one does not gather one Kav in four Amos is
               because the exertion is too much, all the more so
               sesame, which is hard to gather.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> If a Kav of dates or pomegranates is spread
          over four Amos, what is the law?
          1.	If one does not gather one Kav in four Amos is
               because the exertion is too much, (perhaps here is
               different, for) it is not so much exertion;
          2.	If one does not gather one Kav in four Amos is
               because it is not worth very much, all the more so
               here!
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	These questions are unsettled.
<br>
<br>

sjt:
<font><b>1) 'YE'USH SHE'LO MI'DA'AS'</b></font><b>
<br>QUESTION:</b> Rava and Abaye argue about whether 'Ye'ush she'Lo mi'Da'as' is considered Ye'ush or not. May the finder of a lost object keep for himself the object when the owner, who at present does not realize that he lost it, eventually will have Ye'ush when he realizes that he lost it? The Gemara explains that their dispute is limited to a specific case. If the object was lost because it was swept away by the sea or a river, even Abaye agrees that one may keep it, for the verse itself permits such an object as the Beraisa later (22b) explains. The dispute between Rava and Abaye applies only to an object which was lost in a normal manner (and has no Siman). Abaye maintains that the finder may not keep it; since the owner does not know that he lost it, he does not have Ye'ush. Rava maintains that since the owner eventually will have Ye'ush, the Ye'ush is considered to have taken effect already.
</p><p>
The Gemara attempts to support the opinion of Rava from the Mishnah which states that a person who finds money scattered on the ground may keep it, even though he cannot be certain that the owner already knows that he lost the money. The Gemara rejects this proof with the argument that the finder may indeed assume that the owner knows about the loss already, based on the principle of Rebbi Yitzchak. Rebbi Yitzchak teaches that a person constantly checks his pockets for his money, and thus it is logical to assume that the owner became aware that he lost the money as soon as it was lost.
</p><p>
The Gemara's argument, however, does not seem to fully explain why the finder may keep the money. The logic of Rebbi Yitzchak only provides a reason to assume that the owner is aware of his loss. It does not provide a reason to assume that the owner had Ye'ush and gave up hope of ever retrieving his money. Why may the finder assume that the owner had Ye'ush as soon as he found out about the loss?
</p><p>
The simplest explanation seems to be that because the object has no Siman, the owner is assumed to have Ye'ush since he knows that he will not be able to reclaim it. This explanation is problematic, however. If a person who loses an object without a Siman is always assumed to have Ye'ush, then how is this case different from the case of an object swept away by the sea? Even Abaye permits the finder to keep an object -- even with a Siman -- that was swept away by the sea, because the finder may assume that the owner gave up hope of ever retrieving it. (See <b>RASHI</b> to Bava Kama 66a, DH Motzei; <b>RAMBAM</b>, Hilchos Gezeilah v'Aveidah 11:10; and <b>RITVA</b> to 26b. The Rambam there explains that the finder may keep an object swept away by the sea because the owner is assumed to have had Ye'ush. The <b>RAMBAN</b> (Milchamos to 22b) gives the same explanation, and he cites <b>RABEINU CHANANEL</b> who says this as well.)
</p><p>
When the Beraisa says that an object swept away by the sea is 'lost to all mankind' (and therefore the finder may keep it), the Beraisa's intention is to explain why it is assumed that the owner had Ye'ush. If the possibility had remained that another person might find the object, the owner would not have given up hope of retrieving it; he would have thought that he might conceivably convince the finder that the object is his, even if it does not have a Siman. However, if an object is lost in such a way that it is clear that no person will ever find it, then the owner certainly despairs of ever retrieving it. An object that is swept away by the sea is lost in such a way that it seems that it will never be found. Therefore, the owner is assumed to have Ye'ush. The Gemara says that even if the owner protests that he did not have Ye'ush, or if he is seen running after his object to try to retrieve it, the Halachah assumes that he does not really mean what he says, and he really <i>does</i> have Ye'ush. In such a case, Beis Din can be certain (with an 'Umdena') of his thoughts of Ye'ush, and those thoughts ('Devarim sheb'Lev') override his actions and words. (See Ritva to Kesuvos 3a.)
</p><p>
Abaye agrees that when an object is swept away by the sea, even before the owner is aware of his loss it is as if he has already found out about it and proclaimed his Ye'ush. Why, then, does Abaye disagree with Rava when an object without a Siman is lost in a normal manner? It must be that it is <i>not</i> absolutely certain that the owner will give up hope of retrieving it. In fact, if one finds an object without a Siman and then sees that the owner clearly did not give up hope of retrieving it, he is not permitted to keep it, as the Gemara says later (26b). (This is also implicit in the words of the Beraisa which states that only when an object is 'lost to all of mankind' is it assumed that the owner has Ye'ush.) Why, then, does the Gemara conclude, based on the principle of Rebbi Yitzchak, that the finder may keep the money? It is clear that the mere fact that an object does not have a Siman is not a sufficient reason to assume that the owner had Ye'ush. The only conclusion the Gemara should be able to make is that the owner is aware of the loss but not that he actually had Ye'ush. Why does the Gemara assume that the owner had Ye'ush?
</p><p>
(Although the <b>RASHBA</b> (21b) explains the Halachah of an object swept away by the sea differently and says that such an object is permitted because the Torah gives it a status of Hefker (and not just because of Ye'ush), nevertheless the Rashba's explanation is also based on the assumption that the owner had Ye'ush. The Torah gives the object a status of Hefker because the situation is such that a person normally despairs of ever retrieving the object that was lost. Since most people would have Ye'ush in such a situation, the Torah dictates that even if a particular person does not have Ye'ush, his Da'as is disregarded ('Batel Da'ato Etzel Kol Adam'), and it is considered as though he made the object Hefker. In contrast, the Torah does not give the status of Hefker to a lost object that has no Siman; this indicates that it is not certain that a person will have Ye'ush when he loses an object that has no Siman. Hence, the above difficulty applies even according to the Rashba's opinion: why is a person allowed to keep money that he finds that has no Siman, if he cannot be certain that the owner had Ye'ush?)
</p><p>
<b>ANSWER:</b> When a person finds an object that has no Siman and it is not known whether the owner had Ye'ush, the finder is allowed to assume that the owner had Ye'ush due to a Rov. Most people have Ye'ush when they lose something that has no Siman, and therefore the finder is not required to suspect that the one who lost it is part of the Mi'ut, the minority, who do not have Ye'ush. However, there is a general rule that 'Ein Holchin b'Mamon Achar ha'Rov' -- the concept of Rov does not apply to monetary matters (as Shmuel rules in Bava Kama 26b). Why, then, does the Rov here allow the finder to keep the Aveidah?
</p><p>
<b>TOSFOS</b> (23a, and Bava Basra 23b) explains that the reason for the general rule of 'Ein Holchin b'Mamon Achar ha'Rov' is that a Chazakah, which is created when a person is in possession of an object, is a more powerful proof of ownership than a Rov. Thus, the Chezkas Mamon proves that the object belongs to the holder even if a Rov indicates otherwise, and thus Beis Din cannot take the object away from him. In the case of an Aveidah, however, the object is not in anyone's possession. Therefore, when the person who finds the Aveidah takes possession of it, a Rov is accepted to determine that the owner probably had Ye'ush and to allow the finder to keep it. Since there is no Chazakah to counter it, the Rov dictates the Halachah even though it is a monetary matter.
</p><p>
This explanation sheds light on the exact issue about which Rava and Abaye disagree. Abaye agrees with Rava that the finder may keep an object that was swept away by the sea. In that case, it is absolutely clear (through an 'Umdena') that the person who lost the object would have Ye'ush; even if he would deny that he had Ye'ush, the Halachah would assume that he had Ye'ush. Since it is so certain that the owner will have Ye'ush, Abaye agrees that it is considered as though he had Ye'ush even before he becomes aware of his loss. However, Abaye rules this way only when there is <i>absolute certainty</i> that the owner will have Ye'ush. Rava, on the other hand, maintains that even a Rov suffices; even if a Rov indicates that the owner will have Ye'ush, it is considered as though he had Ye'ush even before he knows that he lost the object. Rava views a Rov just like an 'Umdena' of absolute certainty. Abaye, on the other hand, maintains that 'Ye'ush she'Lo mi'Da'as' is not Ye'ush. Abaye's position is that although a Rov can clarify what was already done, a Rov that indicates what <i>will</i> take place cannot affect the object's present status. If the fact that the owner will have Ye'ush is known only because of a Rov, that is not sufficient for it to be considered as though he already had Ye'ush. According to Abaye, only an 'Umdena' can do that.
</p><p>
This answers the question of the <b>RA'AVAD</b>. The Ra'avad asks that the dispute between Abaye and Rava about 'Ye'ush she'Lo Mi'Da'as' seems to be connected to the issue of 'Bereirah' which is discussed in many places in the Gemara. 'Bereirah' refers to a retroactive clarification of the status of a past event based on an event which occurs in the future. A person makes a Kinyan but stipulates that it depends on the occurrence of a future event. If the Halachah is 'Ein Bereirah' (there is no 'Bereirah'), then the Kinyan does not take effect since the future event is not known at the time of the Kinyan and the effectiveness of the Kinyan cannot be determined retroactively by a future event. The opinion of 'Yesh Bereirah' maintains that the effect of a Kinyan <i>can</i> be determined retroactively. This issue seems to be directly related to the issue of 'Ye'ush she'Lo mi'Da'as,' which is based on the assumption that the owner will have Ye'ush in the future. The Halachah of 'Ye'ush she'Lo mi'Da'as' should depend on whether or not Bereirah works. If the Halachah is 'Ein Bereirah,' the Ye'ush should not take effect since the owner's Ye'ush has not happened yet. If the Halachah is 'Yesh Bereirah,' the Ye'ush should take effect now, when the finder finds the object. Why is the discussion of Abaye and Rava not contingent on the issue of Bereirah?
</p><p>
Perhaps the answer is that even if the Halachah follows the opinion of 'Ein Bereirah,' that means only that a Kinyan that is contingent on a future event cannot take effect because the future event cannot have a retroactive impact on the Kinyan. With regard to Ye'ush, however, the efficacy of 'Ye'ush she'Lo mi'Da'as' is not a result of the future Ye'ush of the owner. An actual Ye'ush is not necessary. Rather, the very fact that a person probably will have Ye'ush takes the place -- and accomplishes the function -- of the actual Ye'ush. Rava, who maintains that it is effective, equates 'Ye'ush she'Lo mi'Da'as' to an 'Umdena,' another instrument that states that the probability that a person will say something makes it as if he has already said it. Thus, Rava's position applies only to the future decisions of a person that can be ascertained by a Rov. Rava would not necessarily consider other future events, which are completely unknown, to have an impact on a current Kinyan; such a case would be subject to the general rule of Bereirah.
</p><p>
This explains how the opinion of Rava can be consistent even with the opinion of 'Ein Bereirah.' However, the opinion of Abaye must also be reconciled with the opposing opinion of 'Yesh Bereirah.' If future events can impact on a present Kinyan, then why is it not obvious that 'Ye'ush she'Lo mi'Da'as' is considered Ye'ush? After all, in the case of 'Ye'ush she'Lo mi'Da'as,' the fact that the owner ultimately will have Ye'ush is even more obvious than the future events that affect the Kinyanim in most cases of Bereirah.
</p><p>
The answer to this question should be clear based on the above definition of Bereirah. Bereirah affects a Kinyan only when the Kinyan is made with a clear stipulation that it should be dependent on a future event. When the Kinyan is not made with such a stipulation, there is no reason for a future event to affect a Kinyan that was already made. (See <b>TOSFOS</b> to Bechoros 56b, DH Livror, and Temurah 30a, DH v'Idach.) In the case of 'Ye'ush she'Lo mi'Da'as,' the owner never makes a verbal stipulation that the status of the object should depend on whether he is Me'ya'esh in the future. Therefore, there is no reason to compare the case of 'Ye'ush she'Lo mi'Da'as' to the issue of Bereirah. Even if the Halachah is 'Yesh Bereirah,' it would have no bearing on the case of 'Ye'ush she'Lo mi'Da'as' because it is not a case of a Kinyan made with the intention that it should be affected by a future Ye'ush. Similarly, Rava's argument is not based on the concept of Bereirah. Rather, Rava maintains that even if 'Ein Bereirah,' the fact that most people are Me'ya'esh should make it as though the one who lost the object was actually Me'ya'esh at the moment that he lost the object.
</p><p>


<font><b>2) THE 'YE'USH' OF A MINOR</b></font><b>
<br>QUESTION:</b> The Gemara quotes the Mishnah in Pe'ah (8:1) which says that after the 'Nemushos' (the last group of poor people) pass through the fields to collect Leket, anyone else -- even one who is not poor -- may take whatever is left from the Leket. The Gemara explains that once the Nemushos pass through the fields, the other poor people in the city are Me'ya'esh from anything that might be left in the field, and the poor people from other cities were Me'ya'esh from the Leket in this city from the beginning because they assumed that the poor people of this city would collect it all and leave nothing.
</p><p>
<b>REBBI AKIVA EIGER</b> (in Gilyon ha'Shas, Derush v'Chidush, and Tosfos Rebbi Akiva Eiger on the Mishnayos) asks why the Ye'ush of the poor people in other cities should make the Leket in this city permissible for anyone to take. After all, there are poor Ketanim, minors, in neighboring cities who also are entitled to collect the Leket. The Gemara (22b; see Tosfos there, DH d'Lav) states that the Ye'ush of a Katan is considered 'Ye'ush she'Lo mi'Da'as' until he becomes an adult. How can the 'Ye'ush' of poor Ketanim from other cities permit people to take the Leket? This issue would seem to depend on the dispute of Abaye and Rava, but the Gemara gives this explanation even according to Abaye.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>SHA'AREI YOSHER</b> (5:19) and <b>DIBROS MOSHE</b> (31:8) quote the Gemara in Chulin (134b) which tells about a landowner who lived in a city that had no poor people to collect the Leket from his field. He asked Rav Sheshes what to do, and Rav Sheshes ruled that he could take the Leket for himself, because the verse states that Leket is to be left 'le'Ani vela'Ger' -- 'for the poor person and the stranger' (Vayikra 19:10), and not for animals of the wild. This means that there is an obligation to leave Leket only when it will be taken by poor people, but there is no obligation to leave Leket when it will be consumed by animals. The Gemara there implies that the reason one may take Leket when there are no poor people to take it is that the verse makes a special allowance. Consequently, it is not necessary for the poor people to be Me'ya'esh in order to permit others to take the Leket. Rather, if no poor people claim the Leket, the Torah permits anyone to take it. The <b>RAMBAM</b> (Hilchos Matnos Aniyim 1:10) cites the Mishnah quoted by the Gemara here which permits Leket to be taken by anyone after the last wave of poor people, and he prefaces this ruling with the teaching of the Gemara in Chulin that the Torah does not want people to leave Leket for the wild animals to take. The Rambam implies that the Gemara here does not rely on Ye'ush to permit Leket to others, and thus the fact that there are poor minors in other cities presents no problem since their Ye'ush is not necessary to make the Leket permissible.
</p><p>
Although the Gemara states that the poor people in other cities have Ye'ush, the Acharonim reconcile the words of the Gemara with the position of the Rambam. They explain that the Gemara does not mean that the actual Ye'ush of the poor in other cities is what permits the Leket for everyone. Rather, the Gemara means that the poor in other cities despair of ever receiving the Leket, and therefore they do not make any attempt to collect it. The Leket then becomes permitted for anyone to take because no poor people collect it.
</p><p>
However, the words of the Rambam imply that the Gemara in Chulin and the Gemara here actually address two separate issues that pertain to Leket that is forsaken by Aniyim. The Derashah in Chulin does not address the monetary issue, the fact that Leket is the 'property' of Aniyim and if someone else takes it, he is considered to have stolen from the Aniyim. Rather, the Gemara addresses an issue of Isur v'Heter: is Ma'aser Ani similar to Terumah, which is not permitted to those who are not Kohanim and which must be delivered to Kohanim by the owner? The Gemara in Chulin proves from the verse that Leket is not prohibited to those who are not Aniyim, and that there is no Mitzvah to deliver the Leket to Aniyim. Therefore, if Aniyim do not take the Leket, the Leket is not considered an item that is prohibited to the owner in such a way that it would prevent him from taking it for himself.
</p><p>
The Gemara here addresses a different issue. Even if there is no Isur involved, the Leket is 'Mamon Aniyim' -- it is considered the property of the poor people of the world. Even if the poor people are not interested in taking the Leket, if a person who is not poor takes it his act should be considered an act of theft. The Gemara answers this question with the assumption that poor people are Mafkir, or have Ye'ush from, the remaining Leket.
</p><p>
Accordingly, the Rambam implies that the Ye'ush of the poor people in other cities is necessary to make the Leket permissible for everyone and, consequently, Rebbi Akiva Eiger's question remains difficult. Since the poor minors are not able to be Mafkir or have Ye'ush from their portion of the Leket, why should others be permitted to take the Leket?
</p><p>
(b) Perhaps Ye'ush in the case of Matnos Aniyim differs from Ye'ush in the case of an object that is privately owned. In general, the Ye'ush of a minor cannot permit his object to be taken by others, just as the minor cannot make a Kinyan because he has no Da'as. Matnos Aniyim, however, do not actually belong to the minor. Rather, they are the collective property of the general group known as Aniyim, poor people. This is not the same as a partnership, in which many people own one object, because the Matnos Aniyim can be given to any single poor person without a need to compensate the others. Thus, Matnos Aniyim must be viewed as property which can <i>potentially</i> be given to any poor person, but is not the personal property of any one of them (yet). Hence, the minor Aniyim do not yet own this Leket, and therefore it is not necessary for them to actually give it away through Ye'ush or Hefker. Rather, they simply have to remove themselves from the group of Aniyim who are candidates to receive this Matanah. The Ye'ush of minors suffices to remove them from this group of candidates. Since they do not expect to receive it, they will not present themselves as candidates. That is why even Ye'ush of minors permits others to take the Leket. (M. Kornfeld)
</p><p>


<font><b>3) ACQUIRING 'LEKET' THROUGH 'KINYAN CHATZER'</b></font><b>
<br>QUESTION:</b> The Gemara quotes the Mishnah in Pe'ah (8:1) which says that after the 'Nemushos' (the last group of poor people) pass through the fields to collect Leket, anyone else -- even one who is not poor -- may take whatever is left from the Leket. Why should the Leket not be acquired automatically by the owner of the field, through Kinyan Chatzer? After all, the Gemara says earlier (12a) that a person's Chatzer is Koneh an item for him 'she'Lo mi'Da'ato,' even when he does not know about it. (<b>TOSFOS REBBI AKIVA EIGER</b>, Pe'ah 8:1)
</p><p>
Perhaps the Mishnah in Pe'ah refers specifically to a 'Chatzer she'Einah Mishtameres' -- an unprotected field, which cannot be Koneh for the owner when the owner is not near it and does not have intention to be Koneh with it, as the Gemara earlier (12a) states. (It is logical to assume that the Mishnah there refers to a Chatzer that is not Mishtameres, because the owner must leave the gates open to allow the poor people to enter and collect the Leket.)
</p><p>
However, Rebbi Akiva Eiger asks that if this is correct, the Gemara earlier (12a) should have cited the Mishnah in Pe'ah as proof that a 'Chatzer she'Einah Mishtameres' does not acquire for a person 'she'Lo mi'Da'ato,' without his knowledge. Although the Gemara discusses at length the question of whether such a Chatzer acquires for a person 'she'lo mi'Da'ato,' it does not cite this Mishnah as support. This seems to imply that there is a different reason for why the owner of the field does not acquire the Leket through Kinyan Chatzer.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>DEVAR AVRAHAM</b> (1:13, in footnote there) suggests that perhaps the Gemara does not cite the Mishnah in Pe'ah as proof that a 'Chatzer she'Einah Mishtameres' is not Koneh because, in truth, such a Chatzer may be Koneh even according to the Mishnah. The Mishnah might not mean that every person may take the Leket, but rather that the <i>owner</i> is Koneh the Leket through Kinyan Chatzer. Why, then, does the Mishnah state that 'Kol Adam' ('any person') is permitted to take it? These words mean that the owner may acquire the Leket for himself if he so desires, and if he has no interest in acquiring it for himself, then anyone else may take it.
</p><p>
(b) Another answer may be suggested based on a statement of <b>TOSFOS</b> (26a, DH d'Shasich). Tosfos writes that a Chatzer, even if it is Mishtameres, cannot be Koneh any object of which the owner is not aware and that he may never find, (see Insights to 26b). It is very likely that the Leket which remains after all of the groups of poor people have combed the field will not be found by anyone. Since the owner may never find it, his Chatzer cannot acquire it for him.
</p><p>


<font><b>4) FIGS THAT FALL INTO PUBLIC PROPERTY FROM A PRIVATE TREE</b></font><b>
<br>QUESTION:</b> The Gemara cites proof for Abaye's view from the Mishnah in Ma'aseros (3:4) which discusses whether a person may take fruits that he finds beneath a tree which stands in a private yard but which leans over the public thoroughfare. The Mishnah says that one may take figs found beneath a fig tree, but he may not take olives or carobs from beneath a private olive or carob tree. The Gemara interprets this Mishnah in accordance with Abaye's opinion. The finder may take the figs because fig trees often shed their figs and therefore the owner of the tree is presumed to have had Ye'ush, and it is considered 'Ye'ush mi'Da'as.' The owner of a fig tree realizes that the figs will fall and expects people to take them thinking that they were dropped by a passer-by. In contrast, olives and carobs normally do not fall off the tree, and therefore the owner does not expect them to fall and is not presumed to have had Ye'ush (until he actually discovers that the fruits fell). Such a case is one of 'Ye'ush she'Lo mi'Da'as.' According to Rava, however, even olives and carobs should be permitted to take, because Rava maintains that 'Ye'ush she'Lo mi'Da'as' is considered Ye'ush.
</p><p>
Rav Papa rejects the proof and explains the Mishnah according to the opinion of Rava. A passer-by normally assumes that any fruit found on the public road beneath a tree fell from that tree; he does not assume that it was dropped by other passers-by. Therefore, the owner of an olive or carob tree is not Me'ya'esh from fruits that fall beneath his tree. (They are similar to a 'Davar she'Yesh Bo Siman,' a lost object that has a Siman, for which there is no 'Ye'ush she'Lo mi'Da'as.') In contrast, when figs fall from a tree they become disgusting, and the owner is no longer interested in them. Therefore, he is Mafkir whatever falls. <b>RASHI</b> (DH Im Nefilasah) explains that since figs become disgusting when they fall, and the owner knows that they are going to fall, he has Ye'ush and makes them Hefker from the beginning.
</p><p>
Rashi's words are problematic. The Gemara's answer reconciles the Mishnah with Rava's opinion that 'Ye'ush she'Lo mi'Da'as' <i>is</i> considered Ye'ush. Accordingly, even if the owner did <i>not</i> expect the figs to fall, since he would have had Ye'ush had he known that the figs fell, they should be permitted now. Why, then, does Rashi write that the owner knew that the figs would fall and therefore he had Ye'ush from the beginning? It is not necessary to say this according to Rava, who says that the owner's <i>future</i> Ye'ush suffices. (<b>MAHARAM SHIF</b>, <b>LECHEM MISHNEH</b> in Hilchos Gezeilah v'Aveidah 15:15)
</p><p>
<b>ANSWER:</b> Perhaps Rashi understands that the answer of the Gemara is not given exclusively for Rava. Rather, once the Gemara gives this answer, it retracts its original understanding of the Mishnah even according to Abaye. The Gemara now understands, according to both Rava and Abaye, that the difference between figs and carobs is that figs become disgusting when they fall, and therefore the owner is Mafkir them, whereas when carobs fall the owner is not Me'ya'esh from them at all. That is why Rashi writes that the owner knew all along that his figs would fall and was Me'ya'esh from them. Rashi indicates that the Gemara's conclusion applies to Abaye as well as to Rava.
</p><p>
This is evident from the Rishonim who state that according to the Gemara's conclusion, Abaye understand the Mishnah the way that Rava understands it. (See <b>RAMBAN</b> to 22b in Milchamos, and <b>TOSFOS</b> to 22b, DH me'Achar.)
</p><p>
Why does Rashi understand that the Gemara revises its interpretation of the Mishnah even according to Abaye? Perhaps Rashi takes this position because the Gemara later (22b) states that when dates fall beneath a palm tree, the owner has Ye'ush because of the insects and pests that tend to get to the fruits before he does. According to Rashi there (22b, DH Heichi), the Gemara is discussing the exact same situation that the Mishnah cited here discusses. If the Gemara did not alter its understanding of Abaye's interpretation of the Mishnah, it should not be necessary for that Gemara to state that the owner has Ye'ush because of the insects. After all, the Gemara here initially understands that the reason the owner has Ye'ush from retrieving fallen fruits is that passers-by will take them, and not that they will be eaten by insects. If the Gemara here had understood that the owner has Ye'ush because he assumes that insects will eat the fruit, then the fact that the fruit is directly beneath the owner's tree would not prevent the insects from eating it, and it should still be considered a case of 'Ye'ush she'Lo mi'Da'as.' Rashi therefore explains that the Gemara revises its understanding and now assumes that even according to Abaye, the owner does not believe that passers-by will take fruits from under his tree. Rather, Abaye understands that the owner has Ye'ush because of the insects that will eat the fruits. (In the case of the trees mentioned in the Mishnah in Ma'aseros, the assumption is that the owner is not concerned about insects, either because the fruits discussed here are not as sweet as dates and therefore do not attract insects, or because the Mishnah refers to an area where there are fewer insects. See <b>RITVA</b> to 22b.)
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SEPARATION OF TERUMAH BEFORE THE OWNER CONSENTED</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Abaye):</font></b> If one would despair from something if he
               knew that he lost it, but he does not know that he
               lost it, it is not considered as if he despaired;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rava):</font></b> It is as if he despaired.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Beraisa):</font></b> One can separate Terumah without the
               owner's knowledge, and it takes effect. Reuven
               entered Shimon's field, gathered fruit, and
               separated Terumah without consulting Shimon. If
               Shimon does not consider Reuven's separation to be
               theft, the Terumah takes effect.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> If Shimon says 'why didn't you take nicer ones?',
               and there are nicer fruits, he is sincere, and the
               Terumah takes effect. If Reuven took the best fruit,
               the Terumah does not take effect. If Shimon gathered
               fruit and added to the Terumah that Reuven
               separated, in either case Reuven's separation takes
               effect.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (against Abaye):</font></b> When there is better
               fruit, how does Reuven's separation take effect?
               When he separated it, he did not know that Shimon
               would agree to it!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (Rava, on behalf of Abaye):</font></b> The case is,
               Shimon had made Reuven a Shali'ach to separate
               Terumah.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Support:</font></b> Presumably, this is correct. Had he not
               made him a Shali'ach, the Terumah could not take
               effect!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> Ameimar, Mar Zutra and Rav Ashi came to Mari bar
               Isak's orchard. Mari's sharecropper put dates in
               front of them. Ameimar and Rav Ashi ate, but Mar
               Zutra did not. Mari found them, and asked his
               sharecropper 'why didn't you give them from these
               nice ones?'
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Ameimar and Rav Ashi (to Mar Zutra):</font></b> Why don't you
               eat now?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> If he says 'why didn't you take
                    nicer ones?', the Terumah takes effect.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Mar Zutra:</font></b> Rava taught that 'why didn't you take
               nicer ones?' applies only to Terumah, for people are
               happy to do Mitzvos (nicely). Here, (perhaps) Mari
               suggested giving nicer ones only because he was
               embarrassed.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Kidushin 52b:</font></b> A brewer was Mekadesh a woman with
               dregs of beer. The owner found out and said 'why 
               didn't you give her good beer?!'
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Rava):</font></b> The concept of 'why didn't you take better
               ones?' was said only about Terumah. Here, the owner
               said 'why didn't you give better?' because he was
               embarrassed to say that he does not consent!
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Terumos 4:3):</font></b> If Reuven separated
               Terumah (from Shimon's Peros) without permission, or
               took (stole) Peros from Shimon's field, and
               separated Terumah, and.Shimon said 'why didn't you
               take nicer ones?':
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If there are nicer fruits, the Terumah takes
                    effect. If there are no nicer fruits, it does
                    not take effect. If Shimon picked more and made
                    it Terumah, in either case what Reuven
                    separated is Terumah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (331:31 DH ha'Torem):</font></b> Also the Tur
                    says so. In Bava Metzia, we say that Shlichus
                    is required! Perhaps 'without permission' in
                    the Tur does not mean that he was not a
                    Shali'ach, rather, he did not have permission
                    to separate the good fruits. However, the
                    Rambam discusses when he did not make him a
                    Shali'ach at all! It seems that he learns from
                    the episode with Mari's sharecropper. Rava
                    taught that 'why didn't you take nicer ones?'
                    applies only to Terumah, for it is a Mitzvah,
                    and the owner wants (to do Mitzvos nicely). A
                    case occurred in which Ploni took Levi's dregs
                    to be Mekadesh a woman. The owner said 'why
                    didn't you give her good beer?!' Rava said that
                    'why didn't you take better ones?' applies only
                    to Terumah. This implies that in such a case,
                    when he took without any permission, if there
                    were nicer Peros, Terumah takes effect, i.e.
                    even without Shlichus. Since it is a Mitzvah,
                    and he shows now that he consents, it is as if
                    he was satisfied from the beginning and made
                    him a Shali'ach. In Bava Metzia we required
                    Shlichus. That was before we distinguished
                    Mitzvos from other matters. In the conclusion,
                    if he shows that he was pleased about a
                    Mitzvah, it takes effect even if he did not
                    make him a Shali'ach from the beginning. The
                    Rambam cited the Beraisa, and added 'or entered
                    his field' to explain it.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Tosfos (Kidushin 52b DH Im):</font></b> In Bava Metzia,
                    Reuven had to be a Shali'ach. Since we contrast
                    to there, we must say that also the brewer was
                    a Shali'ach.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Taz (YD 331:15):</font></b> The Maharshal says that the
                    Tur discusses a Shali'ach who did not have
                    permission to separate the good fruits. The
                    Beis Yosef's defense of the Rambam is wrong.
                    There is no proof from the case of Mari's
                    sharecropper. Shlichus is needed only to make
                    the separation valid retroactively. They asked
                    Mar Zutra why he did not eat after Mari
                    approved! There is no proof from Kidushin, for
                    there Rava ruled, and he holds that Yi'ush
                    she'Lo mi'Da'as is Yi'ush! In Bava Metzia, we
                    say that Rava answered for Abaye. He himself
                    holds that if the owner approves later, the
                    Terumah is valid without Shlichus! No Sugya
                    connotes that Shlichus is not needed according
                    to the Halachah. Tosfos says that the brewer
                    was a Shali'ach, like the Shali'ach for
                    Terumah. The Rambam disagrees. However, how can
                    he say that it is Terumah even if Reuven took
                    for himself (and Shimon approved)? We said that
                    it is not Terumah if there is concern for
                    theft! 'Why didn't you take nicer ones?'
                    applies only to (taking nicer fruits for)
                    Terumah, when it is a Mitzvah, but not to a
                    thief! The Rambam learns from Rava. Rava does
                    not need to say that he was a Shali'ach. Since
                    it is a Mitzvah, it is as if Shimon said from
                    the beginning that he makes him a Shali'ach. We
                    can say that Abaye agrees to this regarding
                    Mitzvos. Rava answered for Abaye that he made a
                    Shali'ach, for he was unsure whether Abaye
                    agrees that Mitzvos are different. There were
                    two questions: one against Abaye regarding
                    Yi'ush she'Lo mi'Da'as, and one even against
                    Rava, that Terumah requires Shlichus. We could
                    have answered both by saying that he made a
                    Shali'ach. In Kidushin, Rava answers
                    differently, that Mitzvos are different.
                    Therefore, we answer like this also for Abaye.
                    To answer for theft, we must say that he made
                    all that he took Terumah. No theft remained; it
                    was entirely a Mitzvah.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Ketzos ha'Choshen (262:1):</font></b> The Taz says that
                    Reuven made all that he took Terumah,
                    therefore, it is not theft. If Reuven exempted
                    his own Peros, this was not obligatory for
                    Shimon to do. It is a loss for him. In such a
                    case, we do not say that one is pleased to do a
                    Mitzvah (OC 14:4). According to the Shach
                    (358:1), if one picked Peros for himself, there
                    is no theft, for one may do so when he knows
                    that the owner will approve, even if it is not
                    a Mitzvah. We require knowledge only to
                    separate Terumah on the owner's Peros. If he
                    picked to separate for the owner, which is a
                    Mitzvah, the owner need not know. However, this
                    is unlike Tosfos, Hagahos Ashri and the
                    Mordechai. Milchamos Hash-m (Bava Kama 41a DH
                    u'Mah) says that Terumah of a thief takes
                    effect due to Yi'ush and Shinuy ha'Shem. It is
                    not a combination; rather, Yi'ush allows Shinuy
                    ha'Shem to take effect. Without Yi'ush, the
                    Shinuy reverts to like it was initially. Yi'ush
                    she'Lo mi'Da'as suffices, since the Shinuy will
                    not revert. Therefore, if one detached for
                    himself and made it Terumah for his own Peros,
                    he acquires through Shinuy ha'Shem, since (i.e.
                    if) the owner will be pleased when he hears.
                    When he detached for the owner, he cannot
                    acquire through Shinuy ha'Shem (it acquires
                    only for thieves). Tosfos (Sukah 30b DH Ki)
                    says that Yi'ush she'Lo mi'Da'as is only when
                    it came to his hand before the owner knew that
                    it was lost. If it was after, it is proper
                    Yi'ush, even if the owner does not know about
                    the Kinyan (through detaching the myrtle). All
                    the more so, Terumah is a proper Shinuy ha'Shem
                    as long as the owner will not try to undo it.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Ri Korkus:</font></b> Perhaps when there is a Mitzvah
                    (Terumah), the owner pardons even theft (Reuven
                    detached for himself). Alternatively, Shimon
                    does not consent that Reuven keep what he took
                    for himself. He consents only that the Terumah
                    take effect. However, the Gemara connotes that
                    Shlichus is needed for Terumah. The Rambam says
                    'he separated Terumah without permission, or
                    took Peros from Shimon's field, and separated
                    Terumah.' These are the same! Perhaps
                    'separating without permission' is when the
                    Peros were already detached. It is a bigger
                    Chidush that Terumah takes effect even if the
                    Peros were initially attached and not ready for
                    Terumah to be separated. Or, the two cases are
                    separating for himself, and separating for the
                    owner. The Rambam learns from Kidushin that
                    Shlichus is not needed. Alternatively, we
                    challenged Mar Zutra from the Beraisa of
                    Terumah, and did not answer that there,
                    Shlichus is required. Even if Rava requires
                    Shlichus, we rule like Rav Ashi, Ameimar and
                    Mar Zutra. However, perhaps there is no proof
                    from them. They require Shlichus only to make
                    the Terumah valid retroactively, but showing
                    consent now helps from now and onwards. Perhaps
                    in the Rambam's text, the Gemara did not
                    <i>support</i> that Shlichus is needed. Rather, it
                    challenged this, for if so in either case the
                    Terumah should be valid!
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Mishneh l'Melech (Bechoros 4:1, b'Sof):</font></b> Sefer
                    ha'Terumos (188) says that if David asked Ploni
                    to do something, and Levi heard and did it, he
                    is a Shali'ach. Terumah is different, for
                    perhaps David wants only Ploni, who knows the
                    amount and quality that David usually
                    separates. If so, since Ma'aser Rishon and
                    Ma'aser Sheni are fixed (10%), if the entire
                    pile was uniform quality, if another heard a
                    request to tithe and separated, it is valid.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shulchan Aruch (YD 331:31) If Reuven separated
               Terumah without permission, or took Peros from
               Shimon's field and separated Terumah, and Shimon
               said 'why didn't you take nicer ones?', the Terumah
               takes effect only if there are nicer fruits. If
               Shimon picked more and made it Terumah, in either
               case what Reuven separated is Terumah.
<br>

<p>


