# dafyomi

lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CAN MA'ASER BECOME BATEL?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> The following apply to Terumah and
          Bikurim, but not to Ma'aser: A Zar (non-Kohen) or Tamei
          Kohen who eats them is Chayav Misah b'Yedei Shamayim; if
          a Zar ate them b'Shogeg, he pays for them and adds a
          fifth; they are forbidden to a Zar; they are the property
          of the Kohen; if one measure of them becomes mixed with
          100 measures of Chulin, they are Batel (nullified); one
          must wash his hands before eating them; one who was Tamei
          may not eat them until the night after he immerses.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Terumah (or Bikurim) is Batel in 100
               parts of Chulin, but Ma'aser is not. This implies
               that Ma'aser is Batel in a majority of Chulin!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chizkiyah holds that (even less than a Perutah's
               worth) Ma'aser can be redeemed. Anything she'Yesh Lo
               Matirim (it can be permitted in some way) is never
               Batel!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Terumah is Batel in 100 parts, but Ma'aser is
          never Batel!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection #1:</font></b> The Mishnah lists stringencies of Terumah
          over Ma'aser, not leniencies.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> That is not true. It says that Terumah is the
          Kohen's property! (He can buy land or Tamei animals with
          it. This is a leniency!)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection #2 (Beraisa):</font></b> Ma'aser is Batel in a majority of
          Chulin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This applies to less than a Perutah's worth of
               Ma'aser, or Ma'aser that entered Yerushalayim and
               left. (It cannot be redeemed or eaten.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Chizkiyah, (in the former case) it can
               be redeemed on prior coins!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he has no prior coins.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> He can redeem the Ma'aser (that became mixed
          with Chulin) together with other Ma'aser worth a half-
          Perutah!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Mid'Oraisa, the Ma'aser is Batel in the mixture.
          It is considered Ma'aser only mid'Rabanan. It does not
          help to join it with mid'Oraisa Ma'aser.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> He can redeem it together with a half-Perutah's
          worth of Ma'aser of Demai (Peros bought from an Am
          ha'Aretz, who is suspected about Ma'aser. Most Amei
          ha'Aretz do tithe, so Ma'aser of Demai is only
          mid'Rabanan.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> We decree not to, lest he redeem it with
          mid'Oraisa Ma'aser.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> He can redeem a Perutah and a half of
          mid'Oraisa Ma'aser on two Perutah coins, and redeem the
          mixed Ma'aser on the other half-Perutah!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> If he tries this, a Perutah of Ma'aser is
          redeemed on one coin, but the other half-Perutah of
          Ma'aser cannot be redeemed on the other coin (since it is
          less than a Perutah)!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> He can redeem mid'Oraisa Ma'aser (worth less
          than an Isar) on an Isar (a coin worth six or eight
          Perutos), and redeem the mixed Ma'aser on Chulin that
          remains in the Isar!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> We decree lest he redeem on Perutos.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>MA'ASER THAT ENTERED YERUSHALAYIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa said that Ma'aser that entered
          Yerushalayim and left is Batel. He can return it to
          Yerushalayim and eat it there! (Since Yesh Lo Matirim, it
          should not be Batel!)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case is, it became Tamei.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If so, he can redeem it!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Elazar):</font></b> Tamei Ma'aser Sheni can be redeemed
               even in Yerushalayim (since it cannot be eaten) -
               'Ki Lo Suchal Se'eiso';
<br>
<br>

sjt:
<font><b>1) TERUMAH AND BIKURIM ARE 'ASURIM L'ZARIM'</b></font><b>
<br>QUESTION:</b> The Beraisa (end of 52b) lists differences between the laws of Terumah and Bikurim and the laws of Ma'aser. The Beraisa says that the punishment for one who intentionally eats Terumah and Bikurim is death, and one who eats them unintentionally must pay an extra fifth. The Beraisa adds that Terumah and Bikurim are forbidden for Zarim (non-Kohanim) to eat.
</p><p>
The second statement of the Beraisa seems entirely unnecessary. The Beraisa has already said that one who eats Terumah and Bikurim is punishable by death, and one who eats them unintentionally must pay an extra fifth. The Beraisa clearly refers to a non-Kohen who eats Terumah and Bikurim. Why does it need to add that a non-Kohen may not eat Terumah and Bikurim?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> (DH v'Asurim l'Zarim) writes that there is no reason why the Beraisa needs to add that Terumah and Bikurim are forbidden to Zarim. It adds this statement only because of the contrast which the end of the Beraisa teaches: 'Mah she'Ein Ken b'Ma'aser' -- 'this is not the case for Ma'aser.' If the Beraisa would not have explicitly stated that Terumah and Bikurim are forbidden to Zarim, one might have thought that Zarim are forbidden from eating Ma'aser as well, although they are not punished with the same strict punishments as those who eat Terumah and Bikurim. The Beraisa therefore says that Zarim are forbidden from eating Terumah and Bikurim so that it can contrast Ma'aser with Terumah and Bikurim and teach that Zarim are <i>permitted</i> to Ma'aser.
</p><p>
<b>TOSFOS</b> (DH v'Asurim l'Zarim) points out that the Mishnah in Chalah (1:9) uses this same terminology, but does not mention Ma'aser at all. Why does the Mishnah in Chalah mention that Zarim may not eat Terumah and Bikurim, if it has already said that they are punished by death for eating it intentionally, and they must pay an extra fifth if they eat it unintentionally?
</p><p>
(b) Tosfos quotes the Yerushalmi which answers that the Beraisa means that Zarim are not allowed to eat even a Chatzi Shi'ur (less than the minimum amount for which one is punishable) of Terumah or Bikurim. Tosfos apparently understands that this is true according to both Rebbi Yochanan (Yoma 74a), who maintains that the Torah prohibits one from eating a Chatzi Shi'ur of any forbidden item, and Reish Lakish, who maintains that a Chatzi Shi'ur is prohibited only mid'Rabanan. According to Rebbi Yochanan, the Beraisa means that a Chatzi Shi'ur of Terumah or Bikurim is forbidden mid'Oraisa. According to Reish Lakish, the Beraisa means that a Chatzi Shi'ur is forbidden mid'Rabanan.
</p><p>
The <b>RASHBA</b> questions this explanation. Why should the Beraisa need to point out that one may not eat less than the amount punishable by Torah law? Everyone agrees that a Chatzi Shi'ur of <i>every</i> Isur is forbidden, either mid'Oraisa (Rebbi Yochanan) or mid'Rabanan (Reish Lakish)! Why does the Beraisa need to mention the prohibition of Chatzi Shi'ur specifically with regard to Terumah and Bikurim?
</p><p>
The Rashba answers that the prohibition of Chatzi Shi'ur is derived from the verse that prohibits Chelev (forbidden fats; see Yoma 74a). One might have thought that the prohibition against eating a Chatzi Shi'ur applies only to Isurim which apply to every Jew equally, but not to Isurim which apply only to some Jews and not to others, such as the Isur of Terumah and Bikurim to Zarim. The Beraisa therefore mentions specifically that a Chatzi Shi'ur of Terumah and Bikurim is forbidden to Zarim. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DAVAR SHE'YESH LO MATIRIM APPLY WHEN THE HETER DOES NOT COME AUTOMATICALLY?</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'> 52b (Chizkiyah):</font></b> One can redeem Ma'aser Sheni worth
               less than a Perutah on coins of Ma'aser, for surely
               he did not redeem their full value.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Mishnah):</font></b> Terumah and Bikurim can become
               Batel in 100 parts of Chulin, but Ma'aser cannot.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Inference:</font></b> Ma'aser is Batel in a majority of
                    Chulin!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If one can redeem even less than a Perutah of
                    Ma'aser, it is Yesh Lo Matirim (it can be
                    permitted in some way). If so, it is never
                    Batel!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, he has no prior coins.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Yevamos 81b (Beraisa):</font></b> If a Tahor piece of a Chatas
               or Lechem ha'Panim was mixed with 100 Tahor Chulin
               pieces, all agree that it is not Batel.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 82a (Rav Ashi):</font></b> It is Davar she'Yesh Lo Matirim, so
               it is never Batel.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rejection:</font></b> This is wrong! For a Kohen, the piece is
               always permitted! For a Yisrael, it is always
               forbidden!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Avodah Zarah 73b (Beraisa):</font></b> If Tevel was mixed
               b'Mino, it forbids b'Mashehu. If it was mixed Lo
               b'Mino, it forbids b'Nosen Ta'am.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> We are more stringent about Tevel than about other
               Isurim, for its Isur resembles the Heter (the way it
               becomes permitted):
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Shmuel):</font></b> Separating even a tiny amount of
                    Terumah permits any quantity of Tevel
                    (mid'Oraisa).
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rashba (Toras ha'Bayis ha'Katzar 4:4 38a, brought in
               Beis Yosef YD 102 DH v'Chosav):</font></b> If a Kli that
               absorbed Isur became mixed with others and the
               forbidden Kli is not recognizable, it is Batel in a
               majority. Even though one could Kasher it, we do not
               consider it like Davar she'Yesh Lo Matirim and
               forbid until he Kashers all the Kelim. Rather, it is
               like a dry Isur that became mixed with dry Heter. It
               is Batel in a majority. Whenever the Isur is not
               permitted automatically, and one must spend money,
               it is not considered Davar she'Yesh Lo Matirim.
               (Beis Yosef - the Tur wrote so in Siman 122.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Tosfos (Avodah Zarah 73b DH Tevel):</font></b> The Yerushalmi
               says that any amount of Tevel forbids because it is
               Yesh Lo Matirim. Both reasons are needed. Yesh Lo
               Matirim applies only when the owner is in the city,
               and could take Terumah and permit it. If one would
               need to toil and spend money to go to where the
               owner is, it is like Ein Lo Matirim. R. Tam
               explained like this in Bava Metzia. 'The Isur
               resembles the Heter' applies only to Terumah, but
               not to Ma'aser Rishon from which one must take a
               tenth to be Terumas Ma'aser.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (YD 122:8 DH Kosav ha'Rashba):</font></b> The
                    Rashba says that when one has other produce to
                    tithe from, he can permit without loss so it is
                    Yesh Lo Matirim. In Avodah Zarah we discuss
                    when he has no other produce. Bava Metzia
                    proves this. Chizkiyah holds that Ma'aser is
                    Ein Lo Matirim when he has no prior coins. We
                    do not say that he can buy Tevel, tithe it and
                    redeem the Ma'aser, so he will have prior
                    coins! A Mishnah in Chalah (3:9) says that even
                    if he has no other produce, Teve is Davar
                    she'Yesh Lo Matirim! The Ramban (Avodah Zarah
                    73b DH Zeh) says that when one must tithe
                    everything and lose much Heter, this is Ein Lo
                    Matirim. The same applies when one would need
                    to Kasher all the Kelim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Tosfos ha'Rosh (53a DH Chetzi, citing R. Shlomo of
               Travyash):</font></b> The Gemara could not explain that Tevel
               is not Batel due to Yesh Lo Matirim, for Chachamim
               would decree not to tithe on Tevel mixed with
               Chulin, lest one buy Vadai Tevel. (This is like the
               decree not to redeem less than a Perutah of Ma'aser
               together with other Ma'aser.) The decree would make
               Tevel Ein Lo Matirim, and it could be Batel! We do
               not need R. Tam's poor answers to this question.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Tosfos (Bava Metzia 53a DH Lihader):</font></b> The Gemara
               suggested that Ma'aser should be Batel, i.e. when it
               is far from Yerushalayim and it is Ein Lo Matirim
               (for it is a toil and costly to take it to
               Yerushalayim to permit it).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Terumas ha'Deshen (170):</font></b> If meat was not salted for
               three days, and it became mixed with other pieces,
               it is Batel (in a majority). One may cook the entire
               mixture (in water). Even though even unsalted meat
               is permitted through roasting, it is not Davar
               she'Yesh Lo Matirim, for it was never forbidden to
               roast the unsalted meat, and it will never be
               permitted to cook it. Yesh Lo Matirim is only when
               the very matter forbidden can become permitted. The
               Mordechai (Chulin 665) says that if bread was baked
               with roasting meat, the Rif calls this Davar
               she'Yesh Lo Matirim because it can be eaten with
               meat, and Avi ha'Ezri considers it Ein Lo Matirim,
               for it was never forbidden with meat, and will never
               be permitted with milk. Maharam says that we
               normally rule like the Rif when Tosfos does not
               argue. However, Avi ha'Ezri's opinion is primary. We
               conclude that Chatas is Ein Lo Matirim, for it was
               always permitted to Kohanim, and will never be
               permitted to Yisre'elim. This is like Avi ha'Ezri.
               One could distinguish, but Davar she'Yesh Lo Matirim
               is mid'Rabanan, so we are not so meticulous to be
               stringent. Even if the piece was Chatichah ha'Reuyah
               Lehiskaved (a piece fitting to honor guests with),
               it is Batel, for it is not forbidden due to itself,
               rather, due to the blood absorbed. Even though we
               measure (to forbid a mixture) based on the entire
               piece, for we do not know how much blood is inside,
               the importance of the piece is not due to the blood,
               rather, to the piece itself, which is permitted. We
               distinguish like this regarding other Isurim.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Yam Shel Shlomo (Chulin 8:86):</font></b> The Terumas ha'Deshen
               says that meat that was not salted for three days is
               Ein Lo Matirim. Even though all could be roasted,
               the Isur, i.e. cooking it, is never permitted. It is
               unlike an egg (laid on Yom Tov). There the very
               matter forbidden today (eating it) will be permitted
               tomorrow. The Terumas ha'Deshen holds that any Isur
               that is not Batel even in 1000, such as Chatichah
               ha'Reuyah Lehiskaved, something normally sold by
               number, or a whole creation, is only when it itself
               is forbidden. However, Davar she'Yesh Lo Matirim is
               different. It is never Batel. This primarily affects
               Chametz during Pesach. All the more so, if unsalted
               meat became mixed with salted pieces, and one does
               not have enough salt to salt all the pieces or does
               not want to do so lest it blunt the meat's taste,
               all are permitted. Davar she'Yesh Lo Matirim is only
               if it becomes permitted later, automatically. The
               Rashba says that it does not apply if one must spend
               money to permit it. He did not need to mention
               money. Any Heter that does not come automatically is
               Ein Lo Matirim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Shach YD 102:8):</font></b> Nedarim is called
                    Yesh Lo Matirim, even though the Heter does not
                    come automatically through time! The Ro'oh (in
                    Bedek ha'Bayis) argues with the Rashba. He says
                    that Yesh Lo Matirim is not why absorptions are
                    not Batel. Rather, any recognizable Isur is not
                    Batel. Since one can remove the Isur through
                    Kashering, it is as if the Isur is
                    recognizable. Further, the Kli will give
                    forbidden taste to Heter. The Maharil argues
                    with the Rashba, because the cost of Kashering
                    is small. We say that Ma'aser Sheni is Yesh Lo
                    Matirim because one can take it to Yerushalayim
                    (even though there is a small expense). One
                    should be concerned for his words when no big
                    loss will result. I say that one should wait
                    until the Kelim are not Bnei Yoman (24 hours
                    after they absorbed Isur), for then they are
                    permitted mid'Oraisa. Mas'as Binyamin
                    (Chidushei Dinim YD 4) says so about using all
                    of them together, but not to use one of them;
                    since it is a mere (absorbed) taste, it is not
                    Davar she'Yesh Lo Matirim. I say that one must
                    wait 24 hours even before using one of them,
                    since the Rashba and Tur permit only because
                    the Heter costs money, and after 24 hours the
                    Torah permits them for free! I wrote (Sa'if
                    Katan 9) that also taste is not Batel (when
                    Yesh Lo Matirim).
<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 102:3):</font></b> If a Kli that absorbed
               Isur became mixed with others and the forbidden Kli
               is not recognizable, it is Batel in a majority. We
               do not consider it like Davar she'Yesh Lo Matirim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> This is because one would need to spend money
               to Kasher it. The same applies to all similar cases.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Taz 8):</font></b> Why did the Rashba and Rema
                    need to say that it is Ein Lo Matirim because
                    the Heter costs money? In any case, something
                    Ne'esar (it became forbidden due to something
                    else) cannot forbid more than the Oser (what
                    forbade it)! The Isur itself is Ein Lo Matirim,
                    so it can be Batel! Tosfos (Chulin 108b DH
                    Amai) and the Tur (105) say so about salt that
                    absorbed blood.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Taz):</font></b> Since the Keli is Yesh Lo
                    Matirim, we do not rely on any reasoning to be
                    lenient, since we can permit without it. We can
                    learn from here to unsalted meat (YD 69:14);
                    the Rema says 'the same applies to all similar
                    cases' to allude to this. Even though one may
                    use all the Kelim, he should not leave them
                    like this a long time without Kashering them,
                    for it is like a dry Isur mixed with Heter: one
                    may not consume all of them together. Here we
                    must be concerned lest he eventually forget the
                    Isur and eat something cooked in all of the
                    mixed Kelim, which is forbidden.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Bach (102 Sof DH u'Mah she'Chosav Aval):</font></b> It
                    would seem that we are lenient about a mere
                    absorption without any real substance. However,
                    the Rashba disagrees. He applies Yesh Lo
                    Matirim to a Keli that absorbed Isur, because
                    the Heter does not come by itself. The Ran and
                    Terumas ha'Deshen agree. Also the Rambam
                    (Nedarim 5:12) forbids a barrel due to one drop
                    of wine, even though it is not intact. One may
                    not rely on Isur v'Heter, who permits.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DAVAR SHE'YESH LO MATIRIM </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'Se'eiso' refers to eating - 'va'Yisa Masa'os'.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The Ma'aser was bought with Ma'aser money.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Even so, he can redeem it!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If food was bought with money of Ma'aser
               Sheni, and it became Tamei, it can be redeemed.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa is R. Yehudah, who says that it must
          be buried.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> If so, it would be Batel even in Yerushalayim,
          for it cannot be eaten or redeemed!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, it is still Tahor. The Beraisa says
          that it left Yerushalayim, i.e. the walls of Yerushalayim
          fell (so it can no longer be eaten).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Rava taught that mid'Oraisa, Ma'aser can be
          eaten only within the walls. Mid'Rabanan, once Ma'aser
          enters the walls, it cannot be redeemed.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Presumably, Chachamim decreed only for when there
               are walls (and it can be eaten). If the walls fell,
               why can't it be redeemed?!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Chachamim did not distinguish whether or not
          there are walls.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #3 (Rav Huna bar Yehudah):</font></b> The Beraisa teaches one
          case: if less than a Perutah's worth of Ma'aser that
          entered Yerushalayim and left, it can be Batel.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> He can return it to Yerushalayim and eat it!
          (It has Matirim. Why is it Batel?!)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the walls of Yerushalayim fell.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> If so, he can redeem it!
<br>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rava taught that mid'Oraisa, Ma'aser can be eaten
               only within the walls. Mid'Rabanan, once Ma'aser
               enters the walls, it cannot be redeemed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Presumably, Chachamim decreed only for when there
               are walls. If the walls fell, why can't it be
               redeemed?!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> Chachamim did not distinguish whether or not
          there are walls.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> If so, even if it is worth a Perutah, it can be
          Batel!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa teaches a bigger Chidush:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim decreed that Ma'aser cannot be redeemed
               once it entered Yerushalayim. This is not only when
               it is worth a Perutah. Rather, even when it is not
               worth a Perutah, and it is not common to redeem it
               (on a prior coin), Chachamim decreed that it cannot
               be redeemed once it entered.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DOES REDEMPTION DEPEND ON THE MA'ASER OR ON THE CHOMESH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'If one will redeem mi'Ma'asero' teaches that
          not all Ma'aser can be redeemed. This excludes Ma'aser
          Sheni that there is not in it a Perutah (it cannot put
          Kedushah onto a Perutah).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Ami and R. Yochanan):</font></b> This means that the Ma'aser is
          worth less than a Perutah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Asi and Reish Lakish):</font></b> This means that the Chomesh
          is worth less than a Perutah.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Ma'aser is worth less than a
          Perutah, it suffices to say that it and its Chomesh are
          redeemed on prior coins.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Granted, according to Rav Asi, even though the
               Ma'aser is more than a Perutah, since the Chomesh is
               not, it suffices to redeem on prior coins (he need
               not take it to Yerushalayim or redeem it with more
               Ma'aser so the Chomesh will be a Perutah);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Rav Ami the Ma'aser is less than a
               Perutah. Why does it say 'it suffices'? It should
               just say, he redeems it on prior coins!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This is left difficult.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Is the fifth an inner fifth (of the principal),
          or an outer fifth (of the principal and fifth, i.e. a
          quarter of the principal)?
<br>

<p>

sjt:
</p><p>
<font><b>2) DOES AN 'ISUR D'RABANAN' RENDER AN OBJECT A 'DAVAR SHE'EIN LO MATIRIN'?</b></font><b>
<br>QUESTION:</b> The Beraisa (53a) states that fruit of Ma'aser Sheni worth less than a Perutah which came into Yerushalayim and then went out is Batel b'Rov. The Gemara explains that when the Beraisa says that the Ma'aser Sheni 'went out' it refers to when the walls of Yerushalayim were razed after the Ma'aser Sheni entered Yerushalayim. The fruit has the status of a 'Davar she'Ein Lo Matirin,' since the Rabanan decreed that once fruit of Ma'aser Sheni enters Yerushalayim it no longer may be redeemed. Such an object <i>can</i> become Batel, in contrast to a 'Davar she'Yesh Lo Matirin' (an object which can become permitted or used in a permitted manner) which does not become Batel.
</p><p>
The <b>SHA'AGAS ARYEH</b> (ha'Chadashos #12) asks that this Gemara seems to contradict the <b>RAMBAN's</b> explanation for why Chametz is not Batel during Pesach. The Ramban explains that since the Chametz will be permitted after Pesach, it is considered a 'Davar she'Yesh Lo Matirin' during Pesach and therefore is not Batel. Even though Chametz owned by a Jew during Pesach is prohibited mid'Rabanan after Pesach ('Chametz she'Avar Alav ha'Pesach'), apparently the Ramban still considers it a 'Davar she'Yesh Lo Matirin' because mid'Oraisa it is permitted after Pesach. However, the Gemara here calls Ma'aser Sheni a 'Davar she'Ein Lo Matirin' due to the fact that it is prohibited mid'Rabanan from being redeemed once it has entered the walls of Yerushalayim! Why does the Ramban consider an Isur d'Rabanan inconsequential when determining whether something is a 'Davar she'Yesh Lo Matirin'?
</p><p>
<b>ANSWER:</b> The <b>SHA'AGAS ARYEH</b> answers that the Rabanan's decree of 'Chametz she'Avar Alav ha'Pesach' -- that Chametz owned by a Jew during Pesach is forbidden after Pesach -- was instituted as a <i>stringency</i>, not a leniency. Hence, Chametz is considered a 'Davar she'Yesh Lo Matirin' and is not Batel even though it will continue to be prohibited after Pesach, mid'Rabanan. In contrast, the Rabanan's prohibition against redeeming Ma'aser Sheni once it has entered the walls of Yerushalayim was not intended to be solely a stringency. Therefore, the Ma'aser Sheni is considered to have no way of becoming permitted (since a person is not expected to transgress a decree of the Rabanan) and thus it can become Batel. (Y. Montrose)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HOW MUCH IS THE CHOMESH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer (Ravina - Mishnah):</font></b> If Reuven was Makdish his
          field and offers to redeem it for 20, the same as others
          offer, he redeems it, because he adds a Chomesh;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon offers to redeem the field for 21, Reuven
               must pay 26 (the 20 he offered and five for the
               fifth, plus another one because he may not pay less
               principal than Shimon's offer).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Likewise, if Shimon offers between 22 and 25, Reuven
               must pay five more:</font></b> the Chomesh of his own offer,
               and Shimon's offer. He need not add a Chomesh of the
               excess of Shimon's offer over his own.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since the Chomesh of 20 is five, this shows it
                    is an outer fifth.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Conclusion:</font></b> Tana'im argue whether it is an outer or inner
          fifth.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yoshiya):</font></b> 'V'Yosaf Chamishiso Alav' -
               it and the fifth are five (i.e. it is four, the
               fifth is one, an outer fifth);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yonason says, 'Chamishiso (its fifth)' - the
               fifth is of the principal (an inner fifth).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>IS THE CHOMESH ESSENTIAL?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> If the fifth was not given, was the redemption
          valid?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Does the principal redeem, and the Chomesh is a
               separate obligation?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps the Chomesh is Me'akev (essential for
               redemption)!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Mishnah):</font></b> Chomesh and Bi'ur do not apply to
          Ma'aser Sheni of Demai.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> One must pay principal (to redeem it).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The reason is, since principal is Me'akev redemption
               of mid'Oraisa Ma'aser, it applies to mid'Rabanan
               Ma'aser;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since the Chomesh is not Me'akev for mid'Oraisa
                    Ma'aser, it does not apply to mid'Rabanan
                    Ma'aser.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Tana'im argue about whether the Chomesh is
          Me'akev.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Eliezer):</font></b> If one gave the principal
               (to redeem Ma'aser) but not the Chomesh, he may eat
               it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehoshua says, he may not eat it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rebbi says, presumably, R. Eliezer's opinion is true
               for Shabbos, and R. Yehoshua's opinion is true for a
               weekday.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Inference:</font></b> They argue about both Shabbos and
                    weekdays.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Suggestion:</font></b> R. Eliezer holds that the Chomesh
                    is not Me'akev, and R. Yehoshua holds that it
                    is Me'akev!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection (Rav Papa):</font></b> No, all agree that the Chomesh is
          not Me'akev (mid'Oraisa);
<br>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue about whether or not (mid'Rabanan) we are
               concerned lest he neglect to pay it. R. Yehoshua is
               concerned, and R. Eliezer is not.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> All agree that Hekdesh is redeemed without
          the Chomesh. Since Gizbarim (treasurers of Hekdesh)
          demand payment from people in the market, we are not
          concerned lest one not pay.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> They argue about Hekdesh!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Eliezer):</font></b> If one gave the principal
               (to redeem Hekdesh) but not the Chomesh, it is
               redeemed;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, it is not redeemed.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rebbi says, presumably, we follow R. Eliezer
               regarding Hekdesh, and we follow Chachamim regarding
               Ma'aser.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This implies that they argue both about Hekdesh
                    and Ma'aser!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Correction (R. Yochanan):</font></b> All agree regarding Hekdesh
          that on Shabbos, it is considered redeemed without the
          Chomesh.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Firstly, 'v'Korasa l'Shabbos Oneg' (therefore,
               Chachamim should be lenient to enable enjoyment of
               Shabbos);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Secondly, since Gizbarim demand payment from him in
               the market, surely he will pay.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>IS THE CHOMESH LIKE THE PRINCIPAL?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question #1 (Rami bar Chama):</font></b> Hekdesh cannot be redeemed
          on land, for it says 'v'Nosan ha'Kesef v'Kam Lo';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Can the Chomesh be redeemed on land?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question #2 (Rami bar Chama):</font></b> If a Zar ate Terumah
          b'Shogeg, he must pay Chulin for it (it becomes Terumah
          when the Kohen receives it) - 'v'Nosan la'Kohen Es
          ha'Kodesh', i.e. something that can become Kodesh;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Must the Chomesh be from Chulin?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question #3 (Rami bar Chama):</font></b> One cannot redeem Ma'aser
          on an Asimon. 'V'Tzarta ha'Kesef b'Yadecha' includes
          anything with a Tzurah (image);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Can the Chomesh be redeemed on an Asimon?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (to all three questions - Rava):</font></b> Regarding all of
          these it says 'Alav.' The Chomesh has the same law as the
          principal.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Support (Ravina - Mishnah):</font></b> If one stole Terumah and did
          not eat it, he pays twice the value of the Terumah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he ate it, he pays one principal and a Chomesh
               from Chulin, and a second principal, the value of
               the Terumah.
<br>
<br>

sjt:
<font><b>1) REDEEMING 'MA'ASER SHENI' WITH A COIN THAT HAS ONLY WRITING ON IT</b></font><b>
<br>QUESTION:</b> The Gemara derives from the unusual terminology of the verse regarding the redemption of Ma'aser Sheni, 'v'Tzarta ha'Kesef' -- 'And you shall bind the money' (Devarim 14:25), that Ma'aser Sheni may be redeemed only onto a coin that has a stamped form or image ('Tzurah'), and not onto a plain piece of metal.
</p><p>
What exactly constitutes a 'Tzurah'? The <b>RAMBAM</b> (Hilchos Ma'aser Sheni 4:9) writes that one may redeem Ma'aser Sheni onto a coin 'that has a picture or writing on it.' The Rambam apparently understands that a 'Tzurah' includes writing, even though the word 'Tzurah' itself means an image. What is the Rambam's source for his ruling that the writing on a coin constitutes a 'Tzurah'?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TORAH TEMIMAH</b> (Devarim 14:25) answers this question based on the Gemara in Kidushin (11b) which teaches that one is allowed to redeem Ma'aser Sheni with Perutos, simple copper coins. <b>TOSFOS</b> there (11a, DH Kol Kesef) explains that a Perutah does not have a Tzurah. If a Perutah has no Tzurah, how can the Gemara there say that one may redeem Ma'aser Sheni with Perutos? It must be that although the Perutah has no image on it, it has writing on it, and the writing is considered enough of a Tzurah to allow the coin to be used to redeem Ma'aser Sheni.
</p><p>
According to this explanation, why does the Gemara here not mention explicitly that the coin used for the redemption of Ma'aser Sheni must have either a picture or writing? The Torah Temimah answers that the Gemara mentions the most common form of coins -- those that have a Tzurah. Most coins are distinguished by the images on them, and not merely by the writing.
</p><p>
(b) Perhaps another answer may be suggested based on the Rambam's frequent comparison of pictures with writing in the laws of Shabbos. The Rambam writes (Hilchos Shabbos 11:7) that one who draws pictures on a wall on Shabbos transgresses the prohibition of writing (Kosev) on Shabbos. Similarly, the Rambam writes (23:14) that a woman who puts on eye shadow transgresses the prohibition of Kosev. Although there is a separate Melachah of coloring (Tzove'a), the Rambam maintains that these cases constitute Kosev. The <b>KEHILOS YAKOV</b> (Shabbos #40) discusses at length the difference between Kosev and Tzove'a according to the Rambam. He concludes that when a person seeks to make something colored, he wants the actual object to have that color. (For example, when a person forms a vessel and dyes it blue, he does not make a cup that is colored blue, but rather he makes a blue cup.) In contrast, when one writes words on paper, his intention is not to transform the paper into a new and better entity, but to communicate a message via the means of the words written on the paper. Similarly, when a woman puts on eye shadow, she wants to give a little bluish look to that area of her face; she does not want to make herself look as though she has a blue face. Hence, such an act is more similar to the purpose of writing than to the purpose of coloring.
</p><p>
Accordingly, when the Torah says that a coin with a Tzurah is acceptable, it means that any kind of writing which is comparable to a Tzurah is acceptable. The purpose of the Tzurah on a coin is not to beautify the coin but to show that it is the currency of a certain government or kingdom. The Tzurah fulfills the same purpose as the writing on a coin. Perhaps this is why the Rambam is certain that if one may redeem Ma'aser Sheni with a coin that has a Tzurah, he also may redeem it with a coin that has writing. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>REDEMPTION OF MA'ASER SHENI WORTH LESS THAN A PERUTAH</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'> 52b (Chizkiyah):</font></b> One may redeem Ma'aser Sheni worth
               less than a Perutah, and its Chomesh (he must add a
               quarter of the principal), on prior coins (on which
               Ma'aser was already redeemed), for surely he was not
               exact.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Mishnah):</font></b> The following apply to Terumah
               and Bikurim, but not to Ma'aser.... they can become
               Batel in 100 parts of Chulin.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Inference:</font></b> Ma'aser is Batel in a majority of
                    Chulin!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If one can redeem even less than a Perutah of
                    Ma'aser, it is Yesh Lo Matirim (it can be
                    permitted in some way). If so, it is never
                    Batel!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, he has no prior coins.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> He can redeem Ma'aser mixed with Chulin
               together with other Ma'aser worth a half-Perutah!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Mid'Oraisa, the Ma'aser is Batel in the
               mixture. It is considered Ma'aser only mid'Rabanan.
               It does not join with mid'Oraisa Ma'aser.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> He can redeem it together with a half-
               Perutah of Ma'aser of Demai (Peros bought from an Am
               ha'Aretz. Its Ma'aser is only mid'Rabanan!)
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> We decree not to, lest he redeem it with
               mid'Oraisa Ma'aser.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> He can redeem a Perutah and a half of
               mid'Oraisa Ma'aser on two Perutah coins, and redeem
               the mixed Ma'aser on the other half-Perutah!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer:</font></b> If he does so, a Perutah of Ma'aser is
               redeemed on one coin, but the rest is not redeemed
               on the other coin (for it is less than a Perutah)!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question:</font></b> He can redeem mid'Oraisa Ma'aser on an
               Isar (worth eight Perutos), and redeem the mixed
               Ma'aser on Chulin that remains in the Isar!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer:</font></b> We decree lest he redeem on Perutos.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> 53b (Beraisa):</font></b> 'If one will redeem <i>mi</i>'Ma'asero'
               excludes Ma'aser Sheni that there is not in it a
               Perutah.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> (Rav Ami and R. Yochanan):</font></b> The Ma'aser is less than
               a Perutah.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> (Rav Asi and Reish Lakish):</font></b> The Chomesh is less than
               a Perutah.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Question (Beraisa):</font></b> If Ma'aser is worth less than a
               Perutah, <i>it suffices</i> to say that it and its
               Chomesh are redeemed on prior coins.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Granted, according to Rav Asi, even though the
                    Ma'aser is more than a Perutah, since the
                    Chomesh is not, <i>it suffices</i> to redeem on
                    prior coins (he need not take it to
                    Yerushalayim or redeem it with more Ma'aser so
                    the Chomesh will be a Perutah).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> According to Rav Ami the Ma'aser is less than a
                    Perutah. Why does it say 'it <i>suffices</i>'? It
                    should just say, he redeems it on prior coins!
<br>        <b>  <b><font color='darkgreen'>16. </font></b></b> This is left difficult.
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> 54a (Beraisa - R. Eliezer):</font></b> If one gave the
               principal (to redeem Ma'aser) but not the Chomesh,
               he may eat it;
<br>        <b>  <b><font color='darkgreen'>18. </font></b></b> R. Yehoshua says, he may not eat it.
<br>        <b>  <b><font color='darkgreen'>19. </font></b><font color='darkgreen'> Suggestion:</font></b> They argue about whether the Chomesh is
               Me'akev!
<br>        <b>  <b><font color='darkgreen'>20. </font></b><font color='darkgreen'> Rejection (Rav Papa):</font></b> All agree that it is not
               Me'akev (mid'Oraisa). They argue about whether
               Chachamim are stringent, lest he neglect to pay it.
<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 Ma'aser Sheni 5:4):</font></b> If the Chomesh
               of Ma'aser Sheni is worth less than a Perutah, one
               does not add a Chomesh to it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> The Rambam explains the Beraisa
                    to teach that if the Chomesh is less than a
                    Perutah, one does not add a Chomesh. Rashi
                    explains that in such a case, one cannot redeem
                    the Ma'aser.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ri Korkus:</font></b> The Yerushalmi is explicitly like
                    the Rambam.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Tosfos (53b DH Ein):</font></b> Granted, Rav Ami holds that the
               Ma'aser is less than a Perutah, so it is better to
               expound that it cannot be redeemed, than to say that
               it can be redeemed, and the exclusion exempts only
               from Chomesh. Rav Asi holds that the Chomesh is less
               than a Perutah. If so, it would be better to expound
               that the Ma'aser can be redeemed, but there is no
               Chomesh!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Toras Kohanim (Bechukosai 12:10):</font></b> 'Chamishiso'
               excludes less than a Perutah. 'Yosif Alav' teaches
               that the Ma'aser and its Chomesh are five.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad and R. Shimshon:</font></b> Since Ma'aser less
                    than a Perutah need not be redeemed, there is
                    no Chomesh for it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Ritva (52b DH Gufa):</font></b> Chizkiyah holds that one
               redeems with intent that if later he will redeem
               more Ma'aser on the excess, it will become Kodesh
               then, and if not, it is Kodesh now. Rashi says that
               mid'Oraisa, less than a Perutah cannot be redeemed.
               This is wrong. If so, Chachamim would not enact that
               it becomes Chulin! Rather, mid'Oraisa one may redeem
               it on previous coins, or let it rot. Chizkiyah
               teaches that Chachamim obligate redeeming it on
               prior coins.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (Tosfos 53a DH Dilma (2)):</font></b> When one redeems
               on Perutos, that exact number of Perutos of Ma'aser
               is redeemed, but no more. Why does the Mishnah (2:8)
               allow this? Whatever Ma'aser remains above a whole
               number of Perutos will be eaten without redemption!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #1 (Tosfos):</font></b> One may redeem onto an Isar and
               Perutos together. (One can redeem on an Isar any
               amount between a Perutah and the entire value of the
               Isar.) There, we do not decree lest he redeem on
               Perutos alone, for people know that a half-Perutah
               cannot put Kedushah on a coin.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #1B (Tosfos ha'Rosh DH Chetzi, citing R.
               Shlomo of Travyash):</font></b> Chachamim are lenient and are
               not concerned he redeem on Perutos alone, to enable
               a solution. Regarding a mixture we are concerned
               lest he bring Vadai Tevel, lest it (be Yesh Lo
               Matirim) and it can be Batel. Tevel is never Batel.
               Avodah Zarah 73b explains that any amount forbids,
               just like the Heter (any amount of Terumah permits
               the entire stack). It didn't say that Tevel is Yesh
               Lo Matirim (one could buy Demai and separate from it
               on the mixture), for we similarly decree lest one
               buy Vadai Tevel.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (YD 122:22):</font></b> Why did the Gemara need to say
                    that oe buys Demai to tithe on the mixture?
                    Ma'aser of anything bought is only mid'Rabanan!
                    See Tosfos 88a DH Tevu'as. (R. Tam says that
                    what one buys after Miru'ach (final processing)
                    is exempt mid'Oraisa. Rivam exempts mid'Oraisa
                    what one buys before Miru'ach.)
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #2 (Tosfos ha'Rosh DH Chetzi):</font></b> We said that
               one cannot calculate the exact value of Ma'aser
               Sheni, i.e. without exertion, and one would not do
               so for a whole stack. When one wants to be exact, he
               can, and this suffices, for the Torah was given to
               mortals.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Lechem Mishneh (Erchin 5:1):</font></b> The Rambam rules
                    like one may not redeem Hekdesh for less than
                    four Perutos, for the Chomesh must be at least
                    a Perutah. Why is this different than Ma'aser
                    Sheni?
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Rambam (5):</font></b> If one redeemed Ma'aser Sheni and has
               other Ma'aser, if the Chomesh of the latter is not
               worth a Perutah, it suffices to say 'it and its
               Chomesh are redeemed on the first coins', for one
               cannot be exact with coins.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ri Korkus:</font></b> Rava did not count this among places
                    where we rule like Reish Lakish against R.
                    Yochanan, for other Amora'im also argued. One
                    cannot be exact with coins, so he redeems onto
                    more than the value of the Ma'aser, lest he eat
                    without redemption. He redeems now on the
                    excess.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Rambam (ibid):</font></b> If one redeems Ma'aser for more than
               its value, the excess does not get Kedushas Ma'aser.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> The Yerushalmi says so.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ri Korkus:</font></b> The Yerushalmi says that if one
                    redeems Hekdesh for more than its value, the
                    excess gets Kedushas Ma'aser, for people are
                    prone to be Makdish more.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Chidushei R. Meir Simchah (53b DH v'Da):</font></b> The Chomesh
               can join with the Ma'aser to the Shi'ur of a Perutah
               only if the Chomesh is Me'akev.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Minchas Shlomo (1:63 DH v'Hach):</font></b> Nowadays, we may
               redeem any amount of Ma'aser onto a Perutah. The
               Gemara says that one cannot redeem a half Perutah of
               Ma'aser mid'Rabanan with a half Perutah of Ma'aser
               mid'Oraisa. One can investigate whether one can
               redeem, onto one Perutah, a Perutah of Ma'aser
               mid'Rabanan with a Perutah of Ma'aser mid'Oraisa. If
               we consider each Ma'aser to be redeemed on a half
               Perutah, it is not a Pidyon, for the two Ma'aseros
               do not join. Or, perhaps the Ma'aser mid'Oraisa is
               Tofes (puts Kedushah onto) the entire Perutah, and
               the Ma'aser mid'Rabanan is redeemed along with it,
               The Gemara means only that a half Perutah of each
               cannot join. The same applies if the Ma'aser
               mid'Rabanan is a Perutah, but if the Ma'aser
               mid'Oraisa is a Perutah, it is Tofes an entire
               Perutah, and Ma'aser mid'Rabanan less than a Perutah
               can be redeemed along with it, as if it had no
               Pidyon. However Hekdesh does not become Chulin for
               free (without Pidyon). This is why we say that what
               is bought with Kesef Ma'aser cannot be redeemed when
               it is Tahor, for its Kedushah is too weak to put
               Kedushah onto Chulin used to redeem it (Pesachim
               38a). This is why R. Shimshon (Ma'aser 2:2) says
               that Chulin that absorbed taste from Ma'aser cannot
               be redeemed. Alternatively, Pidyon does not apply to
               taste, for taste has no value. If Ma'aser
               mid'Rabanan could be redeemed along with Ma'aser
               mid'Oraisa for free, we should similarly be able to
               redeem Ma'aser that is too weak to put Kedushah on
               Chulin! Rather, we must say that Kedushas Ma'aser
               never vanishes for free. Therefore, one who wants to
               redeem mid'Oraisa and mid'Rabanan Ma'aser at once
               cannot do so on one Perutah.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DAVAR SHE'YESH LO MATIRIM APPLY WHEN THE HETER DOES NOT COME AUTOMATICALLY? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This teaches that the Chomesh is like the principal.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rava):</font></b> Regarding theft, it says 'va'Chamishisav Yosef
          Alav'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven paid the principal, and
               (falsely) swore that he also paid the Chomesh, he
               must pay (the Chomesh and) an additional Chomesh of
               the Chomesh.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Each time he swears falsely about paying a Chomesh
               (of a Chomesh ...) he is liable to add a Chomesh of
               what he swore about, until the denied money is less
               than a Perutah.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rava):</font></b> Regarding a Zar who b'Shogeg eats Terumah, it
          says 'v'Yosaf Chamishiso Alav';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If a Zar ate Terumah b'Shogeg, he pays
               principal and a Chomesh. This applies to one who
               ate, drank or anointed, whether the Terumah was
               Tahor or Tamei;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He pays the Chomesh and (if he eats the Chomesh
               after he gave it to the Kohen, which makes it
               Terumah) a Chomesh on the Chomesh;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Regarding Ma'aser, we have no verse nor Mishnah
               teaching that he adds a Chomesh on the Chomesh. We
               have no doubt (clearly, if one redeems his Ma'aser
               and later redeems the redemption money, he (adds a
               second Chomesh on the principal but) does not add a
               Chomesh on the Chomesh, for we have no source for
               this).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rava):</font></b> Regarding Hekdesh, it says 'v'Yosaf Chamishis';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> One who redeems Hekdesh adds a Chomesh.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> The Mishnah says that he adds a Chomesh.
          It does not say that he adds a Chomesh on the Chomesh (if
          he redeems the redemption). What is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding Terumah, it says 'va'Yosaf.' One can take
               the 'Vov' and append it to 'Chamishiso', to make
               'Chamishisav' (its fifths);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Regarding Hekdesh, it says Chamishis. Even if we
               append the 'Vov', we are left with 'Chamishiso' (one
               fifth)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> We should know the law because it is
               secondary Hekdesh!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Yehoshua ben Levi):</font></b> One adds a Chomesh on
                    initial Hekdesh, but not on secondary Hekdesh.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rav Papi):</font></b> Rava meant, the Chomesh is like
               initial Hekdesh (since it does not come in place of
               another Kedushah).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What was the conclusion?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rav Tavyomi):</font></b> 'V'Yosaf Chamishis Kesef Erkecha' -
          the Torah equates the Chomesh to money of Erchin;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like one adds a Chomesh to Erchin, also to the
               Chomesh of Hekdesh.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>SECONDARY HEKDESH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Yehoshua ben Levi):</font></b> One adds a Chomesh on initial
          Hekdesh, but not on secondary Hekdesh.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> He learns from 'ha'Makdish' (one who makes new
          Hekdesh), not ha'Matfis (one who imbues Chulin with the
          Kedushah of existing Hekdesh).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(A Tana, i.e. one who recites Beraisos):</font></b> 'Ba'Behemah
          ha'Teme'ah' - just like a Tamei animal is initial
          Hekdesh, and the owner has no part in it (it is Hekdesh
          of Bedek ha'Bayis), and Me'ilah applies to it, Me'ilah
          applies to any initial Hekdesh in which the owner has no
          part.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (R. Elazar):</font></b> Granted, 'the owner has no part in
          it' excludes Kodshim Kalim. Since the owner has a share,
          there is no Me'ilah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> What does 'initial Hekdesh' come to exclude? Can you
               say that Me'ilah applies only to initial Hekdesh,
               but not to secondary Hekdesh?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps it refers (not to Me'ilah,
               rather to) the Chomesh (which applies to Me'ilah),
               like R. Yehoshua ben Levi taught?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	The Tana:</font></b> That is what I meant.
<br>

<p>

sjt:
</p><p>
<font><b>2) IS RUBBING OIL ON ONE'S SKIN LIKE DRINKING?</b></font><b>
<br>OPINIONS:</b> The Gemara quotes the Mishnah in Terumos (6:1) which states that one who accidentally eats, drinks, or anoints himself with produce of Terumah must pay the amount which he used plus an additional fifth.
</p><p>
The Mishnah there equates anointing oneself with oil of Terumah with eating and drinking produce of Terumah. The Gemara in Yoma (76b) also equates rubbing oil on oneself on Yom Kippur with eating and drinking on Yom Kippur. The similarity between rubbing oil on one's body and drinking is known as 'Sichah k'Shtiyah' -- 'anointing is like drinking.' Does this concept apply to all Torah prohibitions, or only to anointing oneself with oil of Terumah and anointing oneself with oil on Yom Kippur? For example, if one rubs on himself a mixture of meat and milk, is he considered as though he ate a mixture of meat and milk?
</p><p>
(a) <b>TOSFOS</b> in Yoma (77a, DH d'Tenan) quotes <b>RABEINU TAM</b> who says that a person is permitted to anoint himself with forbidden fats, since the concept of 'Sichah k'Shtiyah' applies only with regard to Terumah, Yom Kippur, and certain specific Isurei Hana'ah. Rabeinu Tam adds that even in the cases of Terumah, Yom Kippur, and those Isurei Hana'ah, the prohibition against Sichah is only mid'Rabanan. When the Gemara quotes verses to show that these acts of Sichah are forbidden, those verses are only 'Asmachtos.'
</p><p>
It is interesting to note Rabeinu Tam as quoted by Tosfos in Nidah (32) is even more lenient. He states there is <i>never</i> a prohibition against anointing oneself, even in the cases of Terumah and Yom Kippur, with anything other than <i>oil</i>.
</p><p>
(b) The <b>BEIS YOSEF</b> (YD 123) quotes the <b>RASHBA</b> who rules that one may not bathe in a bath of a Nochri's wine because of 'Sichah k'Shtiyah.'
</p><p>
<b>RAV YOSEF SHALOM ELYASHIV</b> shlit'a (quoted in He'oros b'Maseches Bava Metzia) comments that most Rishonim do not seem to rule that 'Sichah k'Shtiyah,' and therefore the Halachah is that anointing is not like drinking. However, since some Rishonim, as well as the <b>VILNA GA'ON</b>, <i>do</i> rule that 'Sichah k'Shtiyah' with regard to some prohibitions, it is preferable that one be stringent if possible. However, one need be stringent only when the material used for anointing is 'Ra'uy l'Achilas Kelev,' fit for the consumption of a dog. When it is not 'Ra'uy l'Achilas Kelev' one definitely is permitted to rub it into one's skin.
</p><p>
<b>RAV MOSHE FEINSTEIN</b> zt'l (in <b>IGROS MOSHE</b> OC 3:62) quotes the ruling of the <b>MACHANEH EFRAIM</b> who writes that even those Rishonim who rule that 'Sichah k'Shtiyah' agree that it applies only when one performs the Sichah for pleasure. When one performs the Sichah for medicinal purposes it is permitted. (See Teshuvah there with regard to the use of ointments mixed with Chametz on Pesach.) (Y. Montrose)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>SECONDARY HEKDESH (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> Why does the Tana assume that a
          Tamei animal is always initial Hekdesh? Perhaps it is
          intermediate Hekdesh! (E.g. it was used to redeem
          Hekdesh, and later it will be redeemed, for it is not
          needed for Avodah in the Mikdash.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> He calls it initial Hekdesh because it
          cannot be final Hekdesh (something used for Avodah). This
          is why the Chomesh does not apply to it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Acha mi'Difti):</font></b> When it is intermediate
          Hekdesh, there should be a Chomesh for it!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> Intermediate Hekdesh is like final
          Hekdesh. Just like there is no Chomesh for the latter (it
          is not redeemed), also for the former.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Mar Zutra brei d'Rav Mari):</font></b> Why do you compare
          intermediate Hekdesh to final Hekdesh, and not to initial
          Hekdesh?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> It is preferable to learn Hatfasah
          (imbuing with Kedushah of existing Hekdesh) from
          Hatfasah, and not from initial Hekdesh.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Mar Zutra):</font></b> Just the contrary! It is preferable
          to learn something that can be redeemed from something
          that can be redeemed, and not from final Hekdesh!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Rava taught that 'ha'Olah' refers to the first
          Olah (offered each day). Similarly, 'ha'Teme'ah' refers
          to the first (Hekdesh)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Support (for R. Yehoshua ben Levi - Beraisa):</font></b> If Reuven
          said 'this cow or garment is (Hekdesh) in place of this
          Hekdesh cow', it is redeemed, and Hekdesh has the upper
          hand (if the redemption is worth more than the Hekdesh,
          the redemption stands. If it is worth less than the
          Hekdesh, Reuven must give the difference to Hekdesh.
          Normally, saying this is Temurah, and both cows would be
          Kodesh. We must say that the first Kodesh cow was of
          Bedek ha'Bayis, or it had a Mum before it was made
          Hekdesh.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'this cow or garment should be like five
               Shekalim in place of (i.e. to redeem) this Hekdesh
               cow', even if it is not worth five Shekalim, it is
               redeemed (Rashi - and Hekdesh has the upper hand;
               Tosfos - here, he need not add anything, for he
               intended to redeem onto this cow or garment even if
               it is worth less than the Hekdesh);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He adds a Chomesh when redeeming initial Hekdesh,
               not secondary Hekdesh.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THINGS DEPENDANT ON A PERUTAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The threshold of Ona'ah is four (Ma'os of)
          silver (per Sela); the oath of partial denial is only
          when the claim was at least two (Ma'os of) silver, and
          the admission was at least a Perutah;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	A Perutah is the Shi'ur (required quantity) for five
          things:</font></b> the admission; money to be Mekadesh a woman;
          benefit from Hekdesh to transgress Me'ilah; the value of
          a Metzi'ah that obligates the finder to announce it; and
          if one stole a Perutah and swore that he did not, he must
          return it, even if the owner is overseas.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> A Mishnah (49b) already taught this.
          The threshold of Ona'ah is four Ma'os per Sela, a sixth
          of the purchase!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The Chidush is the next case. The oath of partial
          denial requires a claim of two Ma'os and an admission of
          a Perutah.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Another Mishnah (Shevu'os 38b) explicitly
          teaches this!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The Chidush is that a Perutah is the Shi'ur for
          five things.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A Perutah is the Shi'ur for five things...
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> It should also teach that the threshold of
          Ona'ah is a Perutah!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rav Kahana):</font></b> The omission teaches that Ona'ah of
          Perutos is not Ona'ah (only Ona'ah of Isarim, silver
          coins).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Levi):</font></b> Ona'ah applies to Perutos.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHY SOME CASES WERE OMITTED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Levi's Tosefta):</font></b> A Perutah is the Shi'ur for five
          things: Ona'ah; the admission; money to be Mekadesh a
          woman; theft; and a claim to obligate judges to judge the
          case.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't our Tana teach a claim to obligate
          judges to judge the case?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> He already taught theft.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Even so, he also taught a Metzi'ah. If so, he
          could also teach a claim to obligate judges to judge the
          case!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Each of those had a Chidush:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Chidush of theft is that if one stole a Perutah
               and swore that he did not, he must return it, even
               if the owner is overseas;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Chidush of a Metzi'ah is that if it was worth a
               Perutah when he found it he must announce it, even
               if it declined in value to less than a Perutah.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't Levi teach a Metzi'ah?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> It is included in theft.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> He taught theft and a claim to obligate judges
          to judge the case!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> That was needed to exclude the opinion of Rav
          Katina.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Katina):</font></b> Beis Din must judge a case of less
               than a Perutah.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't Levi teach Me'ilah?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> He only lists Perutos of Chulin.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Our Tana lists Perutos of Hekdesh. Why did he
          omit Ma'aser?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> He rules according to the opinion that it can
          imbue Kedushah to a coin only if its Chomesh is worth a
          Perutah (i.e. the Ma'aser is worth four Perutos).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't he teach that the Chomesh of Ma'aser
          must be a Perutah (in order that the Ma'aser can put
          Kedushah on a coin)?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> He discusses only principal, not Chomeshim.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Rav Katina):</font></b> Beis Din must judge a case of less than a
          Perutah.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Objection (Rava - Beraisa):</font></b> 'Asher Chota Min ha'Kodesh
          Yeshalem' includes less than a Perutah. One must return
          it to Hekdesh.
<br>
<br>

sjt:
<font><b>1) AN EXCHANGE OF A SANCTIFIED ANIMAL</b></font><b>
<br>QUESTION:</b> The Gemara quotes a Beraisa which states that when one proclaims that he exchanges his cow for a cow which is Hekdesh, the exchange takes effect and 'Hekdesh has the upper hand.' This means that Hekdesh receives the value of the most expensive cow, regardless of whether the cow being exchanged is worth more or less than the cow of Hekdesh. Even if it is worth less, the person who makes the pledge must add money to equal the value of the cow of Hekdesh (in addition to the extra Chomesh, fifth, that he must add).
</p><p>
Why does the Kedushah of the Hekdesh animal transfer to the new animal? The law of Temurah (Vayikra 27) clearly teaches that when a person attempts to exchange an animal for an animal of Hekdesh, both animals become Hekdesh. Why is this exchange valid in this case?
</p><p>
(a) Tosfos answers that the concept of Temurah applies only to Korbanos, not to Kodshei Bedek ha'Bayis. The Gemara here refers to an animal consecrated as Hekdesh to Bedek ha'Bayis. Even though the Gemara in Temurah (5b) says that one who consecrates an animal, which is fit to be a Korban, to Bedek ha'Bayis commits a sin, his Hekdesh nevertheless is valid.
</p><p>
However, Tosfos has difficulty with this approach. The Gemara in Temurah (33b) states that whatever is fit for the Mizbe'ach is always designated for the Mizbe'ach. This means that an animal consecrated as Hekdesh for Bedek ha'Bayis becomes consecrated as a Korban and not as Bedek ha'Bayis.
</p><p>
1. Tosfos answers that the animal in fact <i>must</i> become a Korban. When the Gemara says that the exchange works, it means that the animal which is acquired by the person who exchanges his animal for Hekdesh must be sold to be used as a Korban Olah. The seller is allowed to keep the money from the sale for himself.
</p><p>
The <b>AYELES HA'SHACHAR</b> asks that the concept of selling such an animal so that it should be used as a Korban is explicitly stated by the Gemara in Temurah (ibid.). Why does Tosfos not attribute his answer to the Gemara there?
</p><p>
The Ayeles ha'Shachar presents two ways to understand how an animal which attains a degree of Hekdesh must be brought as a Korban. It is possible that once the animal is proclaimed Hekdesh it is considered to have Kedushas Mizbe'ach. Alternatively, the animal does not become sanctified with Kedushas Mizbe'ach, but it becomes obligated to be sold as a Korban. Tosfos here follows the second approach, that the animal must be sold as a Korban but does not have Kedushas Mizbe'ach. Tosfos does not quote his statement from the Gemara in Temurah, so that one not mistakenly understand that the animal actually becomes sanctified with the Kedushah of a Korban Olah, and that when the Gemara in Temurah says that the animal is sold for an Olah it means that the Kedushas Bedek ha'Bayis element of the animal is sold in order that it should be a complete Olah. (The Ayeles ha'Shachar understands that the opinion that the animal actually has Kedushas Olah before it is redeemed is the view of a different Tosfos quoted by the <b>RITVA</b>.)
</p><p>
2. Alternatively, Tosfos explains that the Gemara refers to a case in which the animal had a permanent blemish before it was made Hekdesh. Accordingly, it was never a candidate to be brought as a Korban. Since it was never fit to be a Korban, the Gemara in Temurah (33b) does not apply here. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES ONA'AH APPLY TO PRUTOS?</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> The Shi'ur (minimal quantity) for Ona'ah
               is four Kesef (silver coins, i.e. Ma'os, per
               Sela)... A Perutah is the Shi'ur for five things:
               the admission (for Modeh b'Miktzas)...
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Our Mishnah should also teach that the
               Shi'ur of Ona'ah is a Perutah!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav Kahana):</font></b> The omission teaches that Ein
               Ona'ah l'Perutos (Ona'ah does not apply to Perutos).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Levi):</font></b> Ona'ah applies to Perutos.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Levi's Tosefta):</font></b> A Perutah is the Shi'ur for five
               things: Ona'ah... and a claim to obligate judges to
               judge the case.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> Why didn't our Tana teach that a Perutah
               is the Shi'ur of a claim to obligate judges to judge
               the case?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> He already taught that it is the Shi'ur for
               theft.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 56a (Mishnah):</font></b> Ona'ah does not apply to documents.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 56b (Beraisa):</font></b> The verse forbidding Ona'ah says
               'v'Chi Simkeru.' This connotes that the matter
               itself is sold. Documents are sold for the proof
               they contain (of a sale or loan). Therefore, if one
               sells documents to a perfumer (to use the parchment
               to cork his bottles), Ona'ah applies to them.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Objection:</font></b> This is obvious!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer:</font></b> This teaches unlike Rav Kahana, who says
               that Ein Ona'ah l'Perutos.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> 61a (Rava):</font></b> Had the Torah not written a Lav of
               robbery, we could not have learned from Ona'ah, for
               a victim of Ona'ah does not know he was cheated, so
               he cannot pardon it. One who was robbed knows, and
               can pardon his loss.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> The Halachah does [not - some texts omit this]
               follow Levi.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (4:20, and Chidushei Anshei Shem):</font></b> The Rif says
               that the Halachah does not follow Levi, because the
               Mishnah connotes like Rav Kahana. I hold like the
               Ramah, who rules like Levi, like the Gemara on 56b.
               Levi explains that the Mishnah did not mention
               Ona'ah, for it is included in theft. The Gemara did
               not ask about this, rather, about which cases Beis
               Din judges, for that is according to everyone. The
               answer also answers for Ona'ah. If not, we would
               have challenged Levi, and answered that he holds
               like the Tana on 56b!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 12:4):</font></b> A swindler need not
               return Ona'ah unless it is more than a Perutah. If
               it was exactly a Perutah, he does not return it, for
               Ona'ah does not apply to Perutos.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> He rules that above a Perutah is
                    Ona'ah, like Rav Kahana and the Stam Mishnah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Kiryat Sefer:</font></b> Even though one must return theft
                    of a Perutah, regarding a sale, one pardons it,
                    since it is not more than a Perutah. Likewise,
                    if the buyer delayed, we say that he pardoned
                    the Ona'ah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (4:20):</font></b> Even less than a sixth, Ona'ah is
               forbidden if it is at least a Perutah. 'Al Tonu'
               forbids an amount considered to be money. Chachamim
               said that until a sixth is pardoned, because people
               cannot set prices exactly. Rav Kahana taught that
               Ona'ah does not apply to Perutos. Rashi explains
               that if the sale item is worth only six Perutos
               there is no Ona'ah, for this is less than an Isur, a
               (the smallest) silver coin (it is worth eight
               Perutos). Rashi erred. The smallest silver coin is a
               Mo'oh (32 Perutos). The Mishnah taught that the
               Shi'ur for Ona'ah is four Kesef out of 24 (a Sela).
               It did not specify (four of) which coin, for it was
               known that the smallest silver coin is a Mo'oh. The
               claim for Modeh b'Miktzas must be at least two Ma'os
               (Shevuos 39b). We learn from 'Ki Yiten... Kesef O
               Kelim.' Just like Kelim (plural) implies two, also
               Kesef. If there were a smaller silver coin, it
               should be two of that coin! Also, a Tosefta says
               that copper acquires silver, e.g. if one gave 30
               Isarim for a Dinar Kesef... This shows that Isarim
               are of copper! The Rif brought this Tosefta at the
               beginning of the Perek. Once we exclude Perutos from
               Ona'ah, the Shi'ur is a Mo'oh.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef:</font></b> The Rif rules like Levi. Also
                    the Rambam does, for he says that one must
                    return anything above a Perutah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rashash (55a DH Ein):</font></b> On 56b, Rashi says that
                    Ein Ona'ah l'Perutos means that he paid less
                    than an Isar, so there is no Ona'ah until he
                    paid an Isar and the Ona'ah is a one and a
                    third Perutos. The Rosh explains that Rashi
                    requires the Ona'ah to be at least an Isar; the
                    Rosh himself requires at least a Mo'oh. The
                    Rambam holds that Ona'ah can be anything above
                    a Perutah. Why does the Nimukei Yosef say that
                    the Rambam rules like Levi? Perhaps he means
                    that the Rambam does not hold like Rashi, who
                    requires an Isar. It seems that Rav Kahana does
                    not hold that Ona'ah applies to anything above
                    a Perutah, for we say that it does not apply to
                    documents sold for the paper. The Ona'ah on
                    them could be more than a Perutah!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Machaneh Efrayim (Ona'ah 17):</font></b> The Rosh says
                    that a Lav forbids Ona'ah less than a sixth. If
                    so, there should be lashes for this, but we
                    never heard of lashes for Ona'ah.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Minchas Chinuch (337):</font></b> Surely, one transgresses
                    even for Ona'ah of a Perutah, just he need not
                    return it. Since he does not pay, he should be
                    lashed! The opinion that Ein Ona'ah l'Perutos
                    is because he pardons. Why is this different
                    than all other monetary laws, for which the
                    Shi'ur is a Perutah? We must say that Chachamim
                    knew that in sales, one pardons a Perutah. We
                    can say that he is not lashed, like I explained
                    regarding Ona'ah less than a sixth (it is
                    considered that he is liable to pay, even
                    though he does not pay).
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 227:5):</font></b> A swindler need not
               return Ona'ah unless it is more than a Perutah. If
               it was exactly a Perutah, he does not return it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Rabeinu):</font></b> The
                    Tur says that the Rif says that once we exclude
                    Perutos from Ona'ah, the Shi'ur is a Mo'oh. The
                    Rosh explained the Rif this way; we could
                    explain differently. Perhaps the Rif holds like
                    the Rambam, that Rav Kahana excludes only a
                    Perutah, but more than a Perutah is Ona'ah!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Drishah (1 DH u'Bilvad):</font></b> The Tur says that the
                    Rif requires Ona'ah to be at least a Mo'oh.
                    Rashi explicitly says that the Shi'ur is an
                    Isar, and the Rambam holds that more than a
                    Perutah is Ona'ah. Rashi admits that it must be
                    a silver coin. The Rosh proved from a Tosefta
                    that an Isar is of copper; he mentioned that
                    the Rif brought this Tosefta, to teach that
                    also the Rif holds that the Shi'ur is a Mo'oh.
                    The Tur holds that also the Rambam (Hagahah
                    under Rif in Oz v'Hadar Gemara - this should
                    say 'Ramah') means that once we exclude Perutos
                    from Ona'ah, the Shi'ur is a Mo'oh. An Isar is
                    not different than a Perutah. The Rif and
                    Rambam mentioned a Perutah only because the
                    Mishnah and Amora'im did.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra:</font></b> Rashi says that Ona'ah applies only to at
                    least an Isur, which is of silver. The Amora'im
                    argue about whether or not there is Ona'ah for
                    Perut<i>os</i>; this supports Rashi. Also in
                    Kidushin (2a), Rashi said that the Isar is of
                    silver. This is wrong.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Piplulei Charifta (4:20):</font></b> In Shevuos 39b, Rashi
                    explained like the Rosh that a Mo'oh is the
                    smallest silver coin.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Note:</font></b> The Sugya is also brought in Kidushin
                    11b, and there Rashi explained that a Mo'oh is
                    the smallest silver coin <i>in Tzuri.</i>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that he must return a Perutah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (11 and 6:1):</font></b> The first opinion (the
                    Rambam) rules like Rav Kahana, for the Stam
                    Mishnah is like him. How could Levi know better
                    than Rebbi?! The latter opinion holds that the
                    Gemara did not need to answer how Levi explains
                    the Stam Mishnah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Drush v'Chidush (R. Akiva Eiger 61a DH v'Im):
                    Rava said that we could not learn robbery from
                    Ona'ah, for a victim of Ona'ah does not know he
                    was cheated. Rava must hold like Levi.
                    According to Rav Kahana, in any case we cannot
                    learn, for robbery applies even to a Perutah!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> Rava was Basra (later than Rav Kahana and
                    Levi). I did not notice anyone saying that this
                    is a reason to rule like Levi!
<br>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It must be returned to Hekdesh, but not to a
               commoner (so Beis Din would not judge the case)!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Correction (Rav Katina):</font></b> If Beis Din started judging a
          case of a Perutah, they must give a verdict, even if the
          claim changed and it is now less than a Perutah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The beginning of the case must be for a Perutah. The
               verdict need not be.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>STRENGTHENING RABBINICAL ENACTMENTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	There are five cases in which one must add a Chomesh:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a Zar ate b'Shogeg Terumah, Terumas Ma'aser of
               (definite) Tevel or Demai, Chalah or Bikurim, he
               adds a Chomesh to what he ate and gives it to a
               Kohen;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One who redeems his Revai fourth-year Peros or
               Ma'aser Sheni;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> One who redeems his Hekdesh;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> If one benefited b'Shogeg from a Perutah of Hekdesh,
               he adds a Chomesh when paying back Hekdesh;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> If one stole and swore falsely, when he admits his
               sin he adds a Chomesh to the theft.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Rava) Question (R. Elazar):</font></b> Why is there a
          Chomesh for Terumas Ma'aser of Demai? Did Chachamim
          really strengthen their enactment as Torah law?!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Shmuel):</font></b> The Tana is R. Meir, who holds that
          indeed Chachamim strengthened their enactments like Torah
          law.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> (It was enacted that a
               Shali'ach who brings a Get from Chutz la'Aretz must
               say 'it was written and signed in front of me.') If
               he did not say this and she remarried using this
               Get, she must leave her husband. Any children she
               had are Mamzerim;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, the child are not Mamzerim;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  To make the Get valid, he gives it again in
                    front of two witnesses and says 'it was written
                    and signed in front of me.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Does R. Meir say that because he did not
               say 'it was written and signed in front of me', she
               must leave her husband and her children are
               Mamzerim?! (Mid'Oraisa, the Get is valid!)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Yes, he holds ;` this in general;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Hamnuna):</font></b> R. Meir holds that if a woman
                    remarried using a Get that deviates from
                    Chachamim's enactment, she must leave her
                    husband and the children are Mamzerim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Sheshes - Mishnah #1 - R. Meir):</font></b> Regarding
          Ma'aser Sheni of Demai, one may redeem silver (coins)
          onto silver or copper, copper onto copper or food (even
          outside of Yerushalayim), and he may redeem the food
          again;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim say, he must take the food to
               Yerushalayim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> One may not redeem silver onto copper!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah #2):</font></b> If a Sela of Ma'aser was mixed
                    with a Sela of Chulin, he brings a Sela's worth
                    of coins and says that the Ma'aser is redeemed
                    onto the coins. He then redeems the coins onto
                    the better of the two Sela'im;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> This is because one may redeem silver onto
                    copper only in pressed circumstances. It should
                    not be left that way.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Summation of question:</font></b> We may redeem silver onto
               copper only in pressed circumstances. Mishnah #1
               allows this l'Chatchilah for Demai!
<br>

sjt:
</p><p>
<font><b>2) THE RABANAN GAVE 'CHIZUK' TO THEIR ENACTMENTS MORE THAN TO THE LAWS OF THE TORAH</b></font><b>
<br>QUESTION:</b> The Mishnah states that one who eats Terumas Ma'aser of Demai must pay a Chomesh, an extra fifth. Rava says that Rebbi Elazar (ben Pedas) had difficulty with this law. Did the Chachamim make their laws the same as those of the Torah? Apparently, Rebbi Elazar is bothered why the Rabanan made their enactment as strict as Torah law when they decreed that one who eats Terumas Ma'aser of Demai must pay a Chomesh, just as the Torah requires that a non-Kohen who unintentionally eats Terumah must pay a Chomesh.
</p><p>
The Rishonim have difficulty with this question. The Gemara says in many places that the Rabanan specifically strengthened their enactments, sometimes even by making them more stringent than the laws of the Torah. What was bothering Rebbi Elazar?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH v'Chi) answers that Rebbi Elazar's question was that, normally, the Rabanan invoke a stringency in order to discourage people from transgressing the decree of the Rabanan. However, the Chomesh instituted by the Torah itself is a stringency which the Rabanan would not have added had the Torah not done so.
</p><p>
Tosfos apparently means that since the Rabanan usually do not apply a fine (when it is not for a preventative measure) for one who transgresses certain laws, whether mid'Oraisa or mid'Rabanan, the Rabanan also should not have instituted a fine for Terumas Ma'aser of Demai.
</p><p>
(b) The <b>RITVA</b> answers that the entire decree of Demai itself a great stringency, since the decree was made only because of the minority of Amei ha'Aretz who do not separate Ma'aser from their produce. Rebbi Elazar therefore was perplexed as to why an additional stringency of Chomesh was added to this decree.
</p><p>
(c) The Ritva writes in the name of <b>TOSFOS</b> that there are other things for which the Torah requires a payment of a Chomesh, and yet the Rabanan did not decree that their correlating laws d'Rabanan should require the payment of a Chomesh. Why is it that in most places the Rabanan did not institute the requirement of a Chomesh like the corresponding Torah law, but for Terumas Ma'aser of Demai they did? This was Rebbi Elazar's question. (Y. Montrose)
</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LENIENCIES OF DEMAI</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer (Rav Yosef):</font></b> Even though R. Meir is lenient about
          redeeming Ma'aser of Demai, he is stringent about eating
          it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> Only a wholesaler may sell
               Demai. A regular person, whether selling a lot or
               little, must separate Ma'aser first.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, even a regular person may sell or
               give Demai for a gift.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Ravina - Mishnah - R. Meir):</font></b> If one buys from a
          Nachtom (Tosfos ha'Rosh - baker; Rashi - wholesaler of
          bread) who is not trustworthy about Ma'aser, he may
          separate warm bread (i.e. it was baked recently) to be
          Ma'aser on cold or vice-versa, even from different shapes
          of bread on each other.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Granted, cold on warm is permitted, like R. Ilai
               taught;.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Ilai):</font></b> If one separated bad Peros to be
                    Terumah on good Peros, it takes effect - 'v'Lo
                    Sisa Alav Chet...' (you will not bear sin if
                    you separate good Peros).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If it would not become Terumah, why would he
                    bear sin?! We conclude that if bad Peros are
                    separated, it takes effect.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But why may he separate from different shapes of
               bread on each other? Perhaps he will separate from
               tithed grain on untithed grain, or vice-versa!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Abaye:</font></b> R. Elazar asked a good question, and Shmuel's
          answer is insufficient!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Elazar asked about (Terumas Ma'aser of Demai.
               Even Vadai Terumah is punishable only by) death
               b'Yedei (through) Shamayim, and Shmuel answered from
               (Gitin, which permit married women, for which the
               punishment was) death at the hands of Beis Din;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Perhaps Chachamim are more stringent about death at
               the hands of Beis Din, since it is more stringent!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Abaye:</font></b> Rav Sheshes' question was improper. R. Elazar and
          Shmuel discusses (things punishable by) death, and he
          asked from (Ma'aser Sheni, which is only) a Lav - 'Lo
          Suchal Le'echol'!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Yosef's answer was proper.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> Why did Ravina ask from a Nachtom? He
          should have supported the law from a Palter (wholesaler
          of bread)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Meir):</font></b> One who buys from a Palter must
               tithe separately bread from each type of mold.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> He did not bring a support from a Palter, for we
          must say that he buys bread from different bakers, so
          surely one must tithe separately from each mold.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rebuttal:</font></b> If so, we can likewise say that a Nachtom buys
          all (Rashi - his bread; Tosfos ha'Rosh - his wheat) from
          one person, so even if his bread is from different molds,
          we may tithe from one to another! (Therefore, Ravina's
          question was improper.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rava):</font></b> Shmuel's answer was proper. Death is essentially
          the same, whether b'Yedei Shamayim or Beis Din.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ITEMS TO WHICH ONA'AH DOES NOT APPLY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Ona'ah does not apply to the following:
          slaves, documents, land, and Hekdesh;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Also, one who steals them does not pay Kefel, four or
          five. A Shomer Chinam does not swear about them, and a
          Shomer Sachar does not pay (if they are lost or stolen);
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Shimon says, Ona'ah applies to Kodshim with Acharayus
          (if this animal cannot be brought, the owner must bring
          another), but not to Kodshim without Acharayus.
<br>
<br>

sjt:
<font><b>1) THE DEGREE OF LIABILITY OF A 'SHOMER CHINAM' AND A 'SHOMER SACHAR' FOR DESPOSITS OF SLAVES, LEGAL DOCUMENTS, LAND, AND HEKDESH</b></font><b>
<br>OPINIONS:</b> The Mishnah states that the laws of Kefel and Arba'ah v'Chamishah do not apply to slaves, legal documents, land, and Hekdesh.
</p><p>
Similarly, a Shomer Chinam entrusted to guard such things is not obligated to make a Shevu'ah to exempt himself from liability, and a Shomer Sachar is not obligated to pay for such things. What exactly does the Mishnah mean? Does it mean that these Shomrim are absolved of all liability, or does it mean that their liability is limited, but they are still obligated to make a Shevu'ah or pay under certain circumstances?
</p><p>
(a) <b>TOSFOS</b> (57b, DH Shomer Chinam) writes that neither a Shomer Chinam nor a Shomer Sachar ever has to pay for any of these objects, even if he is negligent in his duty. The Gemara later (58a) questions the Mishnah from a Beraisa which states that a Shomer is liable for objects of Hekdesh. If the Mishnah means that a Shomer has some degree of liability for these things if he is negligent, why does the Gemara not answer simply that the Shomer in the Beraisa's case is liable because he was negligent, while the Mishnah exempts him from liability in all cases other than negligence (such as Geneivah and Aveidah)? It must be that the Mishnah maintains that these Shomrim are <i>never</i> liable for slaves, legal documents, land, and Hekdesh.
</p><p>
(b) The <b>RAMBAM</b> (Hilchos Sechirus 2:3) rules that a Shomer is liable for negligence when he is entrusted to watch slaves, legal documents, and land. How does the Rambam refute the proof of Tosfos?
</p><p>
1. The <b>SHACH</b> (CM 66:126) answers that the Gemara says that because a Shomer of Hekdesh is not paid for guarding the Hekdesh on Shabbos, he is not liable for anything that happens to it on Shabbos. This implies that if not for Shabbos, he would be liable like an ordinary Shomer Sachar who is liable for negligence as well as for the theft or loss of the object. The Gemara therefore cannot answer that the Beraisa refers solely to negligence.
</p><p>
2. The <b>KEHILOS YAKOV</b> (#34) points out that the proof of Tosfos does not pose a problem to the Rambam, because the Rambam writes that the only obligations from which these Shomrim are exempt are obligations related to watching the items. However, 'anyone who is negligent is called a damager.' In the Beraisa's case of Hekdesh (58a), the Shomer is required to tell people that the grain in a certain part of the field is set aside for the Korban ha'Omer. He is not allowed to use force to stop them, because the Omer may not be brought from barley which has been fully guarded (see Tosfos to 58a, DH Lishmor, and Insights there). The Shomer cannot be held liable if the barley of Hekdesh is damaged, because the barley is in a state of vulnerability even after the Shomer has fulfilled his obligations of Shemirah. He can be held liable only for not fulfilling the obligations of Shemirah which he accepted upon himself. This is why the Gemara does not answer that he was negligent.
</p><p>
The Kehilos Yakov explains that Tosfos fundamentally argues with the Rambam (as do many other Rishonim) with regard to a Shomer's liability for negligence. Tosfos categorizes this as passive negligence, not as though the Shomer himself damaged the item. Accordingly, when the Shomer accepted upon himself the responsibility of a Shomer he also accepted not to be negligent in guarding the item. The fact that the Gemara does not answer that the Beraisa refers to negligence shows that according to the Mishnah a Shomer Chinam and Shomer Sachar are exempt even from negligence. (Y. Montrose)
</p><p>
<br>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Yehudah says, Ona'ah does not apply to a Sefer Torah,
          animal or pearl;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Chachamim say, it applies to everything except the above
          exceptions.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is the source of the first law?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> The verse forbidding Ona'ah says 'v'Chi
          Simkeru... mi'Yad Amisecha.' It refers to something
          acquired from hand to hand;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This excludes land, which cannot be moved. It
               excludes slaves, which are equated to land;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It excludes documents, because 'v'Chi Simkeru'
               connotes that the matter itself is sold. Documents
               are sold for the proof they contain (of a sale or
               loan).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Therefore, one who sells documents to a perfumer (to
               cork his bottles), Ona'ah applies to them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Objection:</font></b> This is obvious!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer:</font></b> This teaches unlike Rav Kahana's
                    opinion, that Ona'ah does not apply to Perutos
                    (it applies only to at least an Isar). The Tana
                    teaches that it is Ona'ah (presumably, the
                    intrinsic value of documents is only Perutos).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> We exclude Hekdesh because the verse says 'Achiv'.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rabah bar Mamal):</font></b> Whenever the Torah says
          'Yado', does this literally mean 'hand'?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Va'Yikach Es Kol Artzo mi'Yado' - we cannot say
               that Sichon's land was in his hand!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rather, it means from his possession. Also in the
               verse of selling, it means from his possession!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Counter-question:</font></b> You cannot say that 'Yado' never
               literally means 'hand'! (Each of the coming two
               Beraisos shows this.)
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa #1) Question:</font></b> It says '(if the stolen
                    object will be found) b'Yado.' What is the
                    source to include his roof, yard or storage
                    area?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer:</font></b> 'Himatzei Simatzei' - the double
                    expression comes to include them.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>We expounded this way only because it says
                    'Himatzei Simatzei.' If not, we would have said
                    that 'Yado' literally means 'his hand'!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> (Beraisa #2):</font></b> '(A husband puts the Get)
                    b'Yadah.' What is the source to include her
                    roof, yard or storage area?
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer:</font></b> It says 'v'Nosan' (and he will give,
                    before it says 'her hand'). This suggests that
                    he can put it in other places as well).
<br>             <b>  <b><font color='darkgreen'>vi. </font></b></b> We expounded this way only due to 'v'Nosan.' If
                    not, we would have said that 'Yado' always
                    means 'his hand'!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Really, 'Yado' (almost) always means 'his
               hand'. We cannot say so regarding Sichon, so it must
               mean 'his possession'.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (R. Zeira):</font></b> Does Ona'ah apply to rental?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The verse of Ona'ah discusses a sale, but not
               rental;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps we do not distinguish!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> The verse does not specify a permanent
          sale. Rental is a temporary sale (so Ona'ah applies to
          it).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ARE PLANTED PEROS LIKE LAND?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If one planted wheat in the ground, does
          Ona'ah apply?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If we view it as being in a Kli, it is still
               Metaltelim, so there is Ona'ah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since it will stay in the ground, perhaps it is
               like land (and there is no Ona'ah)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> He says that he planted six
                    measures of wheat, and witnesses say that he
                    only planted five.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection:</font></b> Rava taught that if one was
                    shortchanged through an error in measure,
                    weight or quantity, he is compensated, even if
                    the error was less than the threshold of
                    Ona'ah;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, Reuven was told to plant wheat as
               needed, and he planted too little.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If we view it as being in a Kli, it is still
                    Metaltelim, there is Ona'ah;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Or ,since it will stay in the ground, is it
                    like land?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Does one swear about it?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is considered Metaltelim, he swears; if it is
               land, he does not.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> (If the wheat was Chadash (i.e. from this
          year's harvest)) - is it permitted when the Omer offering
          is brought?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case? A Mishnah teaches the
               law if it took root, and if not!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If it took root before the Omer, the
                    Omer permits it; if not, it is permitted when
                    the Omer is brought the next year.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, he uprooted it and planted it
               before the Omer; the Omer passed before it took
               root. The question is, may he remove it and eat it?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If we view it as being in a Kli, the Omer
                    permits it;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If it is considered as part of the ground, the
                    Omer does not permit it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	These questions are unsettled.
<br>

<p>

sjt:
</p><p>
<font><b>2) 'ONA'AH' OF PLANTED WHEAT</b></font><b>
<br>OPINIONS:</b> The Mishnah (end of 56a) teaches that the laws of Ona'ah do not apply to land. Rava asks whether the laws of Ona'ah apply to wheat planted in the ground. Is the wheat considered separate from the land (and it is like wheat 'cast into a jar') and thus subject to the laws of Ona'ah, or is the wheat considered Batel to, and part of, the land?
</p><p>
What exactly is Rava's question?
</p><p>
(a) <b>RASHI</b> (DH Yesh Lahem Ona'ah) explains that Rava is asking what the Halachah is when someone sells wheat which he planted.
</p><p>
Does Rashi mean that Rava is asking about wheat which one planted and sold immediately afterward (before it grew), or that Rava is asking about wheat which one sells at a later stage of its growth?
</p><p>
1. The <b>TUR</b> (CM 227) understands that Rashi refers to wheat sold together with the land on which it grows, right after it is planted. Is the wheat considered Metaltelin since it has not yet taken root, or is it considered part of the land since it was sold together with the land? That is Rava's question.
</p><p>
2. The <b>BACH</b> understands that Rashi refers to one who sells the wheat kernels <i>separate from</i> the land in which they were planted, immediately after he planted them. The buyer purchases the wheat for the wheat crop which eventually will grow (he hopes) due to the planting. Are the seeds still considered Metaltelin and thus are subject to the laws of Ona'ah, or are the seeds considered part of the ground since the wheat which they eventually will yield will be attached to the ground? That is Rava's question.
</p><p>
(b) The <b>RAMBAM</b> (Hilchos Mechirah 13:16) understands that Rava's question involves a landowner who supplies the seeds and pays a worker to plant his field. The Rambam writes that it is doubtful whether there is Ona'ah if the worker does not plant the field correctly.
</p><p>
The <b>RASHBA</b> and <b>RAMBAN</b> do not understand how this can be the explanation of Rava's question in the Gemara here. Rava's question involves a sale, while the Rambam's case does not involve a sale but a question of whether or not an employer must pay a worker who does a poor job.
</p><p>
The <b>KESEF MISHNEH</b> answers that in the Rambam's case, the worker definitely did his job, and the field yielded a wheat crop. The worker therefore must be paid for planting the field. The only question is whether or not the small amount of wheat that was sold by the worker to his employer has the status of land or Metaltelin. (Y. Montrose)
</p><p>



</p><p>

loi:
<b>
<br></b><b><b><font color='blue'>1) </font></b><font color='blue'>LIABILITY OF A SHOMER ON SLAVES, DOCUMENTS AND LAND</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 56b (Mishnah):</font></b> A Shomer Chinam does not swear about
               slaves, documents, land, and Hekdesh, and a Shomer
               Sachar does not pay for them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 58a (Mishnah):</font></b> If people of a city made Sheluchim to
               take their half-Shekalim to the Mikdash, and they 
               were stolen or lost before Terumah was taken (some
               of the Shekalim collected were taken to buy the
               communal Korbanos), the Sheluchim swear to the
               people of the city (and they must send more
               Shekalim).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Shmuel):</font></b> The case is, the Sheluchim were hired.
               They must swear in order to receive their wages.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> A Shomer Sachar is liable for theft or
               loss! Granted, regarding Hekdesh they are exempt,
               but they should not be paid!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (Rabah):</font></b> It was Ones. Armed robbers stole
               them, or they were lost on a boat that sank.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question (Rav Yosef bar Chama - Beraisa):</font></b> If Hekdesh
               hired Reuven to guard crops, for the week, he is
               paid (even) for Shabbos, therefore, he is
               responsible for (losses on) Shabbos.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer (Rav Sheshes):</font></b> He made a Kinyan obligating
               himself to pay if there will be a loss.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Bava Kama 62a (Rava):</font></b> If Reuven gave to Leah a gold
               coin, and told her 'be careful with it, for it is
               silver', and she damaged it, she pays its full
               value, for she had no right to damage it. If she was
               negligent and it was damaged, she pays for silver.
               She can say 'I accepted to guard only a silver
               coin.'
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> If he did a Kinyan to accept liability, he
               pays.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 2:1):</font></b> The three laws of the
               four Shomerim apply only to Metaltelim of a Yisrael
               commoner. It says 'money or Kelim or any animal.'
               This excludes land, slaves (which are equated to
               land), and documents, which have no intrinsic value.
               'When one will give to his fellowman' excludes
               Hekdesh and property of Nochrim. From here,
               Chachamim said that a Shomer Chinam does not swear
               about land, slaves or documents, and a Shomer Sachar
               or renter does not pay. If he acquired, he is
               liable.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (3):</font></b> It seems to me that if the Shomer was
               negligent with slaves or similar matters, he must
               pay.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ritva (Teshuvah 199, cited in Beis Yosef CM 66
                    DH Kosav ha'Ritva):</font></b> The Rambam holds that the
                    Torah excluded documents only from what is
                    written in the Parshah, i.e. Ones, theft or
                    loss. One is liable for negligence, due to
                    Mazik. If there is no proof of negligence, he
                    need not swear that he was not negligent or
                    Shole'ach Yad, and that it is not in his
                    Reshus, for the Mishnah says absolutely that he 
                    does not swear. All my Rebbeyim hold like the
                    Rif, who exempts. Negligence is only Gerama, so
                    it is not liable b'Yedei Adam like a Mazik. The
                    Torah obligates a Shomer for negligence,
                    because the owner relied on him. If one says
                    that he returned documents, he should be exempt
                    even from Shevu'as Heses, due to a Migo that he
                    could say that they were lost. However, later
                    Chachamim enacted Heses, even though the Torah
                    exempts. Migo does not exempt from Heses more
                    than the Torah! Some of my Rebbeyim exempt
                    documents even from Heses.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (ibid):</font></b> My Rebbeyim ruled that if one gave a
               vineyard to a Shomer, whether a sharecropper or a
               Shomer Chinam, and stipulated that he dig or prune o
               r Ye'avek (put dust on the top) from his own, and he
               was negligent and did not do so, he is liable like
               one who overtly caused a loss; he is liable in any
               case.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad:</font></b> A Mishnah (Bava Metzia 104a) teaches
                    this! If I will leave it fallow and not work
                    it, I will pay. Chachamim made this like a
                    Tanai Beis Din. If a worker ruined his task,
                    obviously he is like a Mazik! We say that a
                    planter, slaughterer or bloodletter is like one
                    who was warned (that if he ruins his task, he
                    is fired - Bava Metzia 109a).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 5:6):</font></b> If Shimon says 'I
               deposited a document with you. It contained a proof
               of 10 Dinarim (that are owed to me)', and Reuven
               said 'nothing ever happened', he swears Heses, and
               he is exempt. If Reuven said 'yes, you deposited a
               document with me. It was lost', he is exempt even
               from Heses. Even if he would admit that he was
               negligent and lost it, he would be exempt, like I
               said in Hilchos Chovel.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> In the Seifa, Reuven does not
                    believe that Shimon lost due to loss of the
                    document. He need not swear, for Shimon does
                    not have a Vadai claim.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rosh (4:21):</font></b> The Ra'avad and Ramban exempt only from
               swearing, but if he admits or witnesses testify that
               he was negligent, and it was stolen or lost, he is
               liable. Teshuvas ha'Rif exempts a Shomer who was
               negligent witgh documents. This seems correct. Even
               though a Shomer Sachar does not pay, he is not paid
               until he swears that he guarded properly. If he
               acquired, he is liable.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (CM 66 DH u'Mihu):</font></b> The Magid Mishneh
                    (Hilchos Sechirus 2:2) proves from Bava Metzia
                    58a that he does not lose his wages if Ones
                    occurred.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rosh (Shevuos 6:24):</font></b> Also a borrower is exempt for
               these things. The Mishnah exempts a Shomer Chinam
               and Shomer Sachar, so it did not need to teach that
               a borrower is exempt. Also, it taught only things
               that apply to Hekdesh.
<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 66:40):</font></b> If one was a Shomer
               Sachar on documents and they were lost or stolen,
               even through negligence, he is exempt. However, he
               loses his wages until he swears that he guarded
               properly.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> All the more so, a Shomer Chinam is exempt for
               negligence.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Some obligate for negligence.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> The first opinion is primary. He is exempt
               even for negligence. However, he is liable for overt
               damage, e.g. he cast them into a river.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (ibid.):</font></b> The Rosh (39:2) says that
                    even the Rif exempts only theft or loss due to
                    negligence, but not if he cast them into a
                    river. For this reason, he obligated a scribe
                    who wrote a document for Shimon and gave it to
                    his father. This is like overt destruction, and
                    he is liable, unless the father came to the
                    scribe as the son's Shali'ach, and it is known
                    that the son trusts the father with all his
                    property. In such a case, the scribe was not
                    negligent.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (127):</font></b> The Rema (301:1) obligates even if
                    he merely made the father a Shomer. This is
                    wrong. This is not worse than negligence, for
                    which the Rosh exempts! If a Shomer gave to a
                    Shomer, the Rosh (Bava Metzia 3:6) does not
                    call this negligence. He obligates the scribe
                    only if he totally gave it to the father.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (158):</font></b> We learn from Bava Kama 62a. Even
                    one who is exempt from obligations of a Shomer
                    (for gold, for she was asked to guard silver)
                    is liable for overt damage.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If he acquired to be liable
               like a Shomer, he is liable.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Da):</font></b> The Gemara discusses only
                    a Shomer Sachar obligating himself to pay. A
                    Shomer Chinam cannot obligate himself to swear
                    (mid'Oraisa)! Why did the Tur omit this?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Darchei Moshe 14):</font></b> There is no reason
                    to distinguish. Even a Shomer Chinam can
                    obligate himself to swear. Even though the
                    Gemara taught this only regarding a Shomer
                    Sachar, the Rosh says that a borrower is exempt
                    from liability of Shemirah for land, even
                    though the Gemara taught only about a Shomer
                    Chinam and Shomer Sachar! The Tur did not need
                    to teach this, for it is obvious, just like a
                    Shomer Chinam can stipulate to be liable like a
                    Shomer Sachar (291:28).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Defense (Shach 128):</font></b> A Kinyan to pay takes
                    effect. A Kinyan to obligate swearing is like a
                    verbal Kinyan, which is invalid (Bava Basra
                    3a). The Rema himself (157:4) says that a
                    verbal Kinyan is invalid!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> SMA (90):</font></b> The Tur and Shulchan Aruch (291:28,
                    305:4) say that a Shomer Chinam can obligate
                    himself to pay like a Shomer Sachar or borrower
                    through words without a Kinyan! It is because
                    he is a Shomer. Here, one who guards land is
                    not a Shomer.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Shach (129):</font></b> A Kinyan is needed to obligate
                    something that the Torah never obligates.
                    There, it is as if he says 'I am like a
                    borrower.'
<br>
<font color='blue'><i>See also:</i>
<br><b><b>THINGS TO WHICH ONA'AH DOES NOT APPLY </b></b>(</font><font color='blue'>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>AN ERROR ABOVE A SIXTH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav Ami):</font></b> The Mishnah listed things to which
          Ona'ah (returning an overcharge or undercharge of a
          sixth) does not apply. Is the sale invalid if the error
          was more than this?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> He later concluded that the sale is
          invalid.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(R. Yonah citing R. Yochanan):</font></b> Ona'ah does not apply to
          Hekdesh, but cancellation of the sale does apply.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Yirmeyah citing R. Yochanan):</font></b> Ona'ah does not apply
          to land, but cancellation of the sale does apply.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yonah said so about Hekdesh (even though only one
               party, i.e. the person, erred). All the more so it
               applies to land (in which the buyer and seller
               erred);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yirmeyah said so about land, but regarding
               Hekdesh, the sale is never invalid.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Shmuel):</font></b> If 100 Maneh (10,000 Dinarim) were
                    redeemed on a Perutah, the redemption works.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven said 'this Korban is redeemed onto
          this animal' if the Korban was blemished, it is redeemed,
          but Reuven must compensate Hekdesh if the redemption is
          worth less than the Korban.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> Mid'Oraisa, it is redeemed. Mid'Rabanan,
          Reuven must compensate Hekdesh.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> Mid'Oraisa, Reuven must compensate
          Hekdesh.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the mistake was a sixth, why would Reish Lakish
               say that mid'Oraisa, he must compensate Hekdesh? Our
               Mishnah teaches that Ona'ah do not apply to Hekdesh!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it was more than a sixth, how could R. Yochanan
               say that mid'Oraisa, it is redeemed? R. Yonah cited
               R. Yochanan to say that regarding Hekdesh, the
               redemption is cancelled!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Really, it was more than a sixth. The opinions
          must be switched.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What do they argue about?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> They argue about Shmuel's law (that any
               amount of Hekdesh can be redeemed on a Perutah).
               Reish Lakish holds like Shmuel, and R. Yochanan does
               not.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #2:</font></b> Really, both hold like Shmuel. They argue
               about whether or not l'Chatchilah, one may redeem
               Hekdesh on less than its value;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Reish Lakish says that it is l'Chatchilah
                    (therefore, only mid'Rabanan he must compensate
                    Hekdesh);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Yochanan says that it is b'Di'eved.
                    Therefore, mid'Oraisa he must compensate
                    Hekdesh.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, the mistake was a sixth. The opinions
          need not be switched. They argue about Rav Chisda's law.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> The Shi'ur of Ona'ah does not apply to
               Hekdesh. Even if it was less than a sixth, Hekdesh
               must be compensated.
<br>
<br>

sjt:
<font><b>1) HALACHAH: DOES THE LAW OF 'ONA'AH' INVALIDATE A SALE OF LAND?</b></font><b>
<br>OPINIONS:</b> The Mishnah (end of 56a) teaches that the laws of Ona'ah do not apply to land. The Gemara attempts to clarify the Mishnah and asks whether this means that there is no <i>prohibition</i> against Ona'ah but a sale <i>does</i> become annulled if one party was cheated, or whether the Mishnah means that the laws of Ona'ah do not apply to land whatsoever. Rav Nachman quotes Rav Chasa who says that although there is no prohibition against Ona'ah, the sale <i>does</i> become annulled.
</p><p>
<b>TOSFOS</b> (DH Amar Rav Nachman) asks that Rav Nachman seems to contradict himself. The Gemara later (108a) discusses a case in which one pays 200 for property worth 100. Rav Nachman says that the sale is valid since Ona'ah does not apply to land. Here, however, Rav Nachman says that the sale is <i>not</i> valid when one is overcharged for land.
</p><p>
(a) <b>RABEINU TAM</b> (cited by Tosfos) explains that both statements of Rav Nachman are true. Rav Nachman maintains that Ona'ah invalidates a sale of land only when the amount overcharged is <i>more than double</i> the actual value (in contrast to the standard rate of Ona'ah, which is one sixth more than the actual value). Since the Ona'ah in the case of the Gemara later is exactly (and not more than) double, Rav Nachman rules that the sale is valid. In the Gemara here, when Rav Nachman says that Ona'ah in the case of land can invalidate the sale, he refers to a case in which the overcharge was more than double the value of the land.
</p><p>
This is also the position of <b>RABEINU CHANANEL</b>, the <b>ROSH</b>, and <b>REMA</b> (CM 227:29).
</p><p>
According to Rabeinu Tam, what is the basis for this measure of Ona'ah for land? <b>RAV ELYASHIV</b> shlit'a (as cited in <b>HE'OROS B'MASECHES KIDUSHIN</b>) explains that just as the Torah gave to the Chachamim the authority to determine the amount that constitutes Ona'ah for regular merchandise (one sixth), it gave them the authority to determine the amount that constitutes Ona'ah for land. The Chachamim reasoned that although a given piece of land cannot be ascribed an exact value, an overcharge of more than double its approximate value constitutes Ona'ah.
</p><p>
(b) The <b>RIF</b>, <b>RAMBAM</b>, and most Rishonim disagree with Rabeinu Tam. They rule that there is no Ona'ah for land at all. The Rif explains that although the Gemara here implies that there <i>is</i> Ona'ah with regard to invalidating the sale, the Halachah follows the view of Rav Nachman (who is a later Amora and whom the Halachah generally follows in monetary matters) who says later (108a) that there is no Ona'ah whatsoever for land. When Rav Nachman here says that there <i>is</i> Ona'ah for land with regard to invalidating the sale, he is merely quoting Rav Chasa. Rav Nachman himself rules otherwise.
</p><p>
This is the ruling of the <b>SHULCHAN ARUCH</b> (CM 227:29). The <b>S'MA</b> points out that even according to the Shulchan Aruch, one is not <i>permitted</i> to overcharge for land (or to intentionally not alert a seller when one buys land). The fact that the Torah does not apply the laws of Ona'as Mamon to land does not mean that it permits one to cheat others by selling useless plots of land. A person who knowingly cheats someone in such a manner transgresses the Isurim of Ona'as Devarim and Geneivas Da'as. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>IS A SHOMER ON SLAVES, DOCUMENTS AND LAND LIABLE FOR NEGLIGENCE?</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'> 56b (Mishnah):</font></b> A Shomer Chinam does not swear about
               slaves, documents, land, and Hekdesh, and a Shomer
               Sachar does not pay,
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 57b (Beraisa):</font></b> 'Ki Yiten Ish El Re'ehu' is a Kelal.
               'Chamor Oh Shor Oh Seh' are Pratim. 'V'Chol Behemah
               Lishmor' is another Kelal. The Kelal u'Frat u'Chlal
               teaches everything similar to the Pratim, something
               movable with intrinsic value. This excludes land,
               slaves and documents. 'Re'ehu' excludes Hekdesh.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 58a (Mishnah):</font></b> if people of a city made Sheluchim to
               take their (half-Shekalim to the Mikdash, and they
               were stolen or lost before Terumah was taken (some
               of the Shekalim collected were taken to buy the
               communal Korbanos), the Sheluchim swear to the
               people of the city (and they must send more
               Shekalim).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Shmuel):</font></b> The case is, the Sheluchim were hired.
               They must swear in order to receive their wages.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> A Shomer Sachar is liable for theft or
               loss! Granted, regarding Hekdesh they are exempt,
               but they should not be paid!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #1 (Rabah):</font></b> It was Ones. Armed robbers stole
               them, or they were lost on a boat that sank.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #2 (R. Elazar):</font></b> This oath is mid'Rabanan,
               lest people treat Hekdesh lightly.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Contradiction (Rav Yosef bar Chama - Beraisa):</font></b> If
               Hekdesh hired Reuven to guard crops, he is not paid
               for Shabbos, therefore, he is not liable for what
               happens on Shabbos. If he was hired for the week, he
               is paid (even) for Shabbos, therefore, he is
               responsible for (losses on) Shabbos.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #1 (Rabah):</font></b> No, it means that if a loss
               occurs on Shabbos, he is not paid for Shabbos.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Objection (and Answer #2 - Rav Yosef):</font></b> The Reisha
               cannot refer to losing his wages, for he is not paid
               for Shabbos! Rather, Rav Sheshes taught that he made
               an acquisition obligating himself to pay if there
               will be a loss.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Bava Kama 93a:</font></b> Rav Yosef deposited a wallet with
               Tzedakah money with Ploni. He was negligent, and
               thieves took it. Rav Yosef obligated him to pay.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Question (Abaye - Beraisa):</font></b> 'To guard', not to
               distribute to Aniyim.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Answer (Rav Yosef):</font></b> (That applies in most places,
               where we do not know who was destined to receive the
               money, so no Oni can claim it.) Here, each Oni gets
               a fixed amount from Tzedakah. Ploni was like a
               guardian for every Oni.
<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 Sechirus 2:3):</font></b> It seems to me that
               if a Shomer was negligent with slaves or similar
               matters, he must pay. He is exempt for slaves, land
               and documents only for theft, loss, death and
               similar matters. A Shomer Chinam for Metaltelim must
               swear if they were lost or stolen. He need not swear
               about sld9. Similarly, a Shomer Sachar pays for
               theft or loss of Metaltelim, but he is exempt for
               these. If he was negligent he pays, for he is like a
               Mazik (damager). Damaging land is holds like
               damaging Metaltelim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> If so, a Shomer Chinam
                    should swear. Perhaps he was negligent, and he
                    is liable! This is unlike Modeh b'Miktzas, who
                    would pay if he admitted, but even so he does
                    not swear. A Kelal u'Frat teaches about a
                    Shomer Chinam, and one teaches about a Shomer
                    Sachar. Just like the Torah exempted a Shomer
                    Sachar from his primary liability to pay, not
                    just from swearing, the same applies to a
                    Shomer Chinam. One who was negligent is not a
                    Mazik. If he were, negligence b'Ba'alim would
                    be liable.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Defense (Shach CM 66:126):</font></b> Modeh b'Miktzas and
                    one witness refute the Ra'avad (even though
                    perhaps he owes, a Gezeras ha'Kasuv exempts
                    from swearing). The Ra'avad said that just like
                    the Torah exempted a Shomer Sachar from his
                    primary liability to pay, not just from
                    swearing, the same applies to a Shomer Chinam.
                    I say that the Torah did not Mechadesh that
                    even a Shomer Chinam pays for negligence. We
                    know from reasoning that he is a Mazik.
                    (Therefore, he is liable even if he is not
                    considered a Shomer, e.g. for land.) The Rambam
                    did not mean that it is literally Mazik,
                    rather, it is <i>like</i> Mazik, that we obligate
                    due to reasoning. (Therefore, it is exempt
                    b'Ba'alim.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (4:21):</font></b> It seems that we exempt only from
               swearing, but if he admits or witnesses testify that
               he was negligent, and it was stolen or lost, he is
               liable. The Ra'avad and Ramban say so. The Rif wrote
               in a Teshuvah that if one deposited documents and
               the Shomer was negligent, he is exempt. This seems
               correct. Since the Torah excluded them from Parshas
               Shomerim, we can obligate only for Mazik (one who
               damaged). Negligence that led to loss is not Mazik,
               for a Shomer b'Ba'alim (the depositer was working
               for the Shomer) is exempt for negligence. If
               negligence were like Mazik, he would be liable!
               Rather, he is not like a Mazik, since he did not
               overtly damage it. It was lost due to his
               negligence. The Torah obligates a Shomer for this,
               therefore, b'Ba'alim he is exempt.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Shevuos 6:24):</font></b> The Mishnah said 'a Shomer 
               Chinam does not swear about them.' It did not say
               that he does not pay for them, for the Parshah of
               Shomer Chinam did not discuss payment. It only
               discusses Shevu'ah. The Mishnah mentions only what
               the Torah mentioned regarding these Shomerim. E.g.
               the Torah says that a Shomer Sachar pays for theft
               or loss, so the Mishnah says that he does not pay.
               Likewise, a Shomer Chinam is exempt (for land,
               slaves and documents) for his liability, i.e.
               negligence. Bava Kama 93a proves this. Abaye wanted
               to exempt the Shomer due to 'to guard', not to
               distribute to Aniyim. This shows that one need not
               pay for what is excluded from the Parshah. The
               exclusion is not only for swearing. Even a Shomer
               Sachar is exempt for negligence, for the Shomer of
               Tzedakah was exempt from giving Tzedakah (while
               caring for the money), and Rav Yosef holds that this
               makes him a Shomer Sachar. The Ramban and Ra'avad
               obligate for negligence.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Bach (CM 66:39 DH Kosav):</font></b> This is a textual
                    mistake. It should say 'the Rambam and Ramah
                    obligate.'
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (ibid.):</font></b>  There is no mistake. There were
                    two Ra'avad's. Alternatively, in his Perush,
                    the Ra'avad retracted from what he wrote in his
                    comments on the Rambam. The Ramban in his
                    treatise on Garmi brought both opinions and did
                    not decide.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Tosfos (57b DH Shomer):</font></b> The Gemara asked why one
               hired to guard Hekdesh is liable, and did not answer
               that he was negligent. This shows that (for Hekdesh,
               land...) even a Shomer Sachar is exempt for
               negligence.
<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 66:40):</font></b> If one was a Shomer
               Sachar on documents and they were lost or stolen,
               even through negligence, he is exempt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav):</font></b> The Rosh (94:5) says
                    that we rely on the clear proofs of the Rif,
                    Ra'avad and Ri, and not on the Rambam, who
                    wrote (as if he heard this Halachah through)
                    prophecy, without any proof.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (126):</font></b> The Shulchan Aruch rules like this
                    also in Siman 95:1 and 301:2. However, the
                    Gemara supports the Rambam. We do not follow
                    the majority when the Gemara supports the
                    minority, especially when the majority relied
                    on invalid proofs. In Bava Kama, ''to guard',
                    not to distribute to Aniyim' teaches that he is
                    not called a Shomer. Therefore, he is like a
                    Stam person, and surely he is exempt for
                    negligence. Tosfos brought a proof from
                    liability of a Shomer Sachar for Hekdesh. The
                    Gemara did not answer that he was negligent. I
                    say that this is because 'he is liable for
                    Shabbos' connotes liability like a regular
                    Shomer, not only for negligence. Also, the
                    Reisha said 'he is not paid for Shabbos,
                    therefore, he is not liable for Shabbos.' (The
                    Rambam holds that) this cannot refer to
                    negligence, for even a Shomer Chinam is liable
                    for negligence. One could reject this and say
                    that (really, we discuss negligence;) since he
                    is not paid for Shabbos, he is not a Shomer at
                    all for Shabbos! However, the Gemara could
                    understand that since he accepted Stam, and it
                    is in his Reshus on Shabbos, he accepted
                    Shemirah even for Shabbos. The Mishnah did not
                    simply say that Shemirah does not apply to
                    land. It elaborated to say that a Shomer Chinam
                    does not swear about them... to teach that he
                    is exempt only from swearing, but if he admits
                    that he was negligent, he pays. In Shevuos
                    (42b) it says that one does not swear. This
                    implies that only Shevu'ah is excluded. R.
                    Elazar said 'this oath (about lost Shekalim) is
                    a stringency mid'Rabanan, lest people treat
                    Hekdesh lightly. Surely, only the oath is
                    mid'Rabanan. We would not obligate them to pay
                    due to this concern if the Torah exempts them!
                    Also, he said 'this oath' to teach that only
                    the oath is mid'Rabanan but not liability to
                    pay. Similar, Rashi (56a DH Eino) says 'the
                    Torah did not obligate <i>swearing</i> that he was
                    not negligent.'
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Question:</font></b> What is the source to exempt
                    negligence b'Ba'alim, and to obligate it for
                    land?
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer (Shach):</font></b> A Kelal u'Frat exempts slaves,
                    documents and land from laws of Shemirah. We
                    rely on reasoning, to obligate only for
                    negligence. 'Ba'alav Ein Imo' exempts Shemirah
                    b'Ba'alim even for negligence.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> All the more so, a Shomer Chinam is exempt for
               negligence.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Some obligate for negligence.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rema:</font></b> The first opinion is primary. He is
                    exempt even for negligence.
<br>

<p>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Ribis and Ona'ah apply to people, not
          to Hekdesh.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> We can answer like we answered our Mishnah. This
          means that Ribis and the Shi'ur of Ona'ah do not apply to
          Hekdesh.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Seifa):</font></b> Here, a commoner in more stringent than
          Hekdesh. (According to Rav Chisda, Hekdesh is more
          stringent!)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> That refers to Ribis, regarding which a commoner
          is more stringent.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa should also teach (regarding
          Ona'ah) 'here, Hekdesh is more stringent than a
          commoner'!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> No. Ribis is the only stringency of a commoner
          above Hekdesh, so it is proper to say 'here, a commoner
          is more stringent.' Hekdesh has many stringencies over a
          commoner.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case of Ribis regarding Hekdesh?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the Gizbar lent 100 on condition to get back 120,
               the Gizbar transgressed Me'ilah, and the money is
               his (and he owes Hekdesh. This is Ribis of a
               commoner!)
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer #1 (R. Hoshiya):</font></b> The case is, Reuven accepted to
          supply Hekdesh with flour for four Sa'im per Sela, and
          the price rose to three Sa'im per Sela. He supplies like
          he stipulated. (One may not contract with a commoner
          until the price stabilizes, i.e. many people are selling
          it in the market.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If one accepted to supply Hekdesh with
               flour for four Sa'im per Sela, and the price rose to
               three Sa'im per Sela, he supplies for four;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he accepted to supply for three Sa'im per Sela,
               and the price declined to four Sa'im per Sela, he
               supplies for four, because Hekdesh has the upper
               hand.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer #2 (Rav Papa):</font></b> The case is, the Gizbar lent 100
          rocks used for building on condition to get back 120;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> The building materials are Chulin. We give
               what is built to Hekdesh only after finishing (to
               avoid accidental Me'ilah).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THINGS THAT DO NOT APPLY TO LAND AND HEKDESH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One who steals them does not pay Kefel.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> 'Al Kol Devar Pesha' is a Kelal. 'Al
          Shor Al Chamor Al Seh Al Salmah' are Pratim. 'Al Kol
          Avedah' is another Kelal;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Kelal u'Frat u'Chlal teaches everything similar to
               the Perat, in this case, something movable that has
               intrinsic value;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This excludes land, slaves (which are equated
                    to land), and documents (their value is not
                    intrinsic).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Hekdesh is excluded, for it says 'l'Re'ehu'.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> He does not pay four or five...
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	This is because the Torah discusses four or five, not
          three or four. (Four or five is the total of principal,
          Kefel, and another two or three; we expounded that he is
          exempt from Kefel.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A Shomer Chinam does not swear...
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> 'Ki Yiten Ish El Re'ehu' is a Kelal.
          'Kesef Oh Kelim' are Pratim. 'Lishmor' is a Kelal;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Kelal u'Frat u'Chlal teaches everything similar
               to the Pratim, i.e. something movable that has
               intrinsic value;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This excludes land, slaves and documents;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Hekdesh is excluded, for it says 'Re'ehu'.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A Shomer Sachar does not pay.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'Ki Yiten Ish El Re'ehu' is a Kelal. 'Chamor
          Oh Shor Oh Seh' are Pratim. 'V'Chol Behemah Lishmor' is
          another Kelal;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Kelal u'Frat u'Chlal teaches everything similar
               to the Pratim, something movable with intrinsic
               value;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This excludes land, slaves and documents;
<br>
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Hekdesh is excluded, for it says 'Re'ehu'.
<br>

<p>

sjt:
</p><p>
<font><b>2) THE SOURCE THAT A SHOMER IS NOT LIABLE FOR FAILURE TO GUARD A 'SHTAR'</b></font><b>
<br>QUESTION:</b> The Gemara derives through a Klal u'Frat u'Chlal that a Shomer is liable only for movable objects which have intrinsic value. This excludes land which is not movable, slaves (which have the same Halachic status as land due to a Hekesh), and Shtaros (legal documents) which have no intrinsic value.
</p><p>
The <b>KETZOS HA'CHOSHEN</b> (CM 291:5) asks that the teaching with regard to Shtaros seems unnecessary. <b>RASHI</b> in Bava Kama (79a, DH Tiknu) writes that a Shomer's obligation to guard an object takes effect only when he does an act of Meshichah to that item. Shtaros, however, are acquired only through Kesivah u'Mesirah (writing and handing over). For example, the Gemara in Bava Kama says that a person who wants to sell a Shtar (to someone who will collect the debt in his place) writes in a document that 'you, the buyer, acquire this legal document and all of its obligations.' Only when this paper is handed over does the transaction become valid. Since a Shomer is obligated to guard an item only when he has done Meshichah to it, and Meshichah is not applicable to Shtaros, why would one think that a Shomer has any obligation to guard a Shtar?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>KETZOS HA'CHOSHEN</b> answers that his question may be based on a faulty assumption. Although Rashi in Bava Kama, whom he quotes, indeed writes that Shtaros are acquired only through Kesivah u'Mesirah, the <b>MAHARAM MI'LUBLIN</b> (Teshuvos #22) asserts that Rashi writes this only in reference to one who <i>sells</i> a Shtar. Since the buyer wants the full ownership of the rights in the Shtar, the Chachamim required that the seller explicitly write that the buyer acquires all of the rights in the Shtar. In contrast, if a lender decides to declare a Shtar as Hefker, he loses his claim to the debt written in the Shtar despite the fact that he never put this in writing. Similarly, a Shomer does not have to acquire the actual Shtar which he accepts to guard, and thus there is no requirement that he acquire the Shtar through Kesivah u'Mesirah. Accordingly, the Klal u'Frat u'Chlal is necessary to teach that a Shomer is not liable for Shtaros.
</p><p>
(b) The <b>NESIVOS HA'MISHPAT</b> (CM 291:12) answers based on the words of <b>TOSFOS</b> in Kesuvos (85b, DH ha'Mocher) that there are times when a Shtar indeed is acquired through Meshichah, such as when it is bought for the purpose of selling it to the borrower (see Tosfos at length who says that this becomes an ordinary Mechirah). If a Shomer would receive a Shtar in order to facilitate such a Mechirah (for example, the Shomer himself tries to initiate such a sale), it is logical that he should be held responsible for the Shtar once he has done Meshichah. This is why the Klal u'Frat u'Chlal is needed to exclude the Shomer from liability. (See also <b>CHOCHMAS SHLOMO</b> ibid.) (Y. Montrose)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>SWEARING ABOUT SHEKALIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A Shomer Chinam does not swear...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Contradiction (Mishnah):</font></b> if people of a city made
          Sheluchim to take their (half-)Shekalim to the Mikdash,
          they were stolen or lost:
          1.	If they were stolen or lost (Tosfos; Rashi - if
               they were taken to Beis Din) after the Terumah was
               taken (i.e. some of the Shekalim in the chamber in
               the Mikdash were taken to buy the communal Korbanos
               from Nisan until Shavuos), the Sheluchim swear to
               the Gizbarim. (We will explain that the Terumah
               'covers' Shekalim en route to the Mikdash,
               therefore, the people of the city need not send
               more. This contradicts our Mishnah, which exempts a
               Shomer Chinam from swearing!)
          2.	If not ((Rashi - the Gizbar found out that) they
               were lost before Terumah was taken), the Sheluchim
               swear to the people of the city (and they must send
               more Shekalim).
               i.	If the coins were found or the thieves returned
                    them, both those Shekalim and the replacements
                    have the Kedushah of Shekalim (they can be used
                    for communal Korbanos). The people of the city
                    are not exempt from giving Shekalim the next
                    year.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Shmuel):</font></b> The case is, the Sheluchim were
          hired. They must swear in order to receive their wages.
          1.	Question: If so, (also in the Reisha) they should
               swear to the people of the city (who hired them)!
          2.	Answer (Rabah): (In the Reisha,)They swear to the
               people of the city when the Gizbarim are present, to
               avoid suspicion, or so people will not think they
               were negligent.
          3.	Question: A Shomer Sachar is liable for theft or
               loss!
               i.	Granted, regarding Hekdesh they are exempt, but
                    they should not be paid!
          4.	Answer (Rabah): It was Ones. Armed robbers stole
               them, or they were lost on a boat that sank.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (R. Yochanan):</font></b> The Mishnah is R. Shimon, who
          says that Ona'ah applies to Kodshim that have Achrayus.
          Likewise, a Shomer Chinam swears about them.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> Granted, if they were lost before Terumah
          was taken, there is Achrayus (more Shekalim must be given
          in place of them);
          1.	However, if they were lost after Terumah was
               taken, there is no Achrayus. Why do the Sheluchim
               swear?
          2.	(Beraisa): Those who take the Terumah intend that
               these are Terumah (also) from: Shekalim that were
               sent and (unknowingly) lost, Shekalim that are en
               route to the Mikdash; and Shekalim that will later
               be given. (Anyone who gave such a (half-)Shekel has
               a share in the Korbanos.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3 (R. Elazar):</font></b> The oath is mid'Rabanan, lest
          people treat Hekdesh lightly.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>SHOMRIM OF HEKDESH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A Shomer Sachar need not pay.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Contradiction (Rav Yosef bar Chama - Beraisa):</font></b> If
          Hekdesh hired Reuven (for a certain wage each day) to
          guard a red heifer, a child or crops, he is not paid for
          Shabbos, therefore, he is not responsible for what
          happens on Shabbos;
          1.	If he was hired for the week, month, year or
               Shemitah cycle, he is paid for (the whole period,
               including) Shabbos, therefore, he is responsible for
               Shabbos.
          2.	Suggestion: This means that he must compensate
               for any losses on Shabbos.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> No, it means that if a loss occurs on
          Shabbos, he is not paid for Shabbos.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Yosef):</font></b> The Reisha taught that he is not
          responsible for Shabbos. This cannot mean to lose his
          wages, for he is not paid for Shabbos!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rabah:</font></b> I cannot answer. Did you hear an answer?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Yosef citing Rav Sheshes; also, R.
          Yochanan):</font></b> The case is, he made an acquisition obligating
          himself to pay if there will be a loss.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah - R. Shimon):</font></b> Ona'ah applies to Kodshim that
          have Achrayus, but not to Kodshim without Achrayus.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(A Tana (one who recites Beraisos)):</font></b> (If one swore
          falsely about) Kodshim that have Achrayus, he is liable,
          for this is considered 'ba'Shem v'Chichesh';
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	He is exempt for Kodshim without Achrayus, for this is
          considered 'v'Chichesh b'Amiso.'
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (R. Yitzchak bar Aba):</font></b> Just the contrary! (One
          is less liable for Hekdesh than for property of people.)
<br>
<br>

sjt:
<font><b>1) MAY THE KORBAN HA'OMER BE BROUGHT FROM GUARDED WHEAT?</b></font><b>
<br>QUESTION:</b> The Gemara says that when one hires a worker to guard his crops, he may not give him payment for watching the crops on Shabbos. <b>RASHI</b> (DH v'Lishmor) writes that the Gemara refers to a field of barley which is designated to be used for the Korban ha'Omer during Shemitah, for which a guard is needed to ensure that no one takes the barley.
</p><p>
<b>TOSFOS</b> questions Rashi's explanation. The Halachah is that a Korban may be offered only from an item which an ordinary Jew is permitted to eat. The Toras Kohanim explicitly states that a person may not guard his produce during Shemitah. Tosfos understands that according to the Toras Kohanim, if a person guards his produce during Shemitah, he is forbidden from eating that produce. (See the <b>MAHARSHA</b> who explains how this question is evident in the words of Tosfos.) How, then, can the barley that is guarded during Shemitah be brought for the Korban ha'Omer?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that the guard does not really need to guard the produce from being harvested. He merely informs people who pass by that the barley in this field is designated for the Omer. Once the people hear that, they refrain from taking the barley on their own accord. What is the difference, though, between warning people that the barley is designated for the Omer, and actively guarding the barley from being taken? The <b>SHITAH MEKUBETZES</b> in Menachos (84a, #10) explains that when the guard merely warns people about the barley, he takes no action at all against people who disregard his warning and take the grain. This is why the grain is not considered guarded.
</p><p>
This answer seems difficult. If the guard does not actively guard the grain but merely provides information, a sign which details the area of the barley and the purpose for which it is designated should suffice! Why is a guard needed for such a purpose? Tosfos in Yevamos (122a, DH Shel) explains that the guard is necessary in order to protect the produce from animals.
</p><p>
(b) <b>TOSFOS</b> in Menachos (84a, DH Shomrei) writes that the verses which discuss the prohibition against harvesting produce and grapes use the words 'Betzirecha' and 'Ketzirecha' -- '<i>your</i> harvest.' This wording indicates that the prohibition applies only for the general public, not for Hekdesh. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES BITUL MEKACH APPLY TO LAND AND DOCUMENTS?</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'> 56a (Mishnah):</font></b> Ona'ah does not apply to documents 
               and land.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 57a Question (R. Ami):</font></b> Does Bitul Mekach apply to
               them?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> He later concluded that it applies.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (R. Yonah and R. Yirmeyah citing R. Yochanan):</font></b> Bitul
               Mekach applies to land.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 58b (Beraisa - R. Yehudah):</font></b> Ona'ah does not apply
               even to a Sefer Torah, because it is priceless.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Ameimar):</font></b> There no Ona'ah until double the value.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 108a - Assumption:</font></b> If land worth 100 was sold for
               200, Levi (the neighbor, who has first rights to buy
               it) tells the buyer 'you were like a Shali'ach to
               buy the land for me, but not to overpay! I need to
               pay you only 100.'
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rejection (Mar Kashisha to Rav Ashi, citing Chachmei
               Neharde'a):</font></b> Rav Nachman says that land is worth
               whatever one pays for it. (Levi pays 200.)
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Bava Kama 14b (Beraisa):</font></b> 'Shavah Kesef' teaches that
               Beis Din collects only if the damager has land.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rabah bar Ula):</font></b> Shavah Kesef alludes to something
               Shavah (worth) all the money you pay for it, i.e.
               something to which Ona'ah does not apply to.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Objection:</font></b> Ona'ah does not apply to slaves and
               documents, either!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Kidushin 42b (Rav Nachman):</font></b> Brothers who divided an
               inheritance and erred are like buyers. If they erred
               more than a sixth, the sale is invalid If they erred
               exactly a sixth, the sale is valid, but whoever got
               too little is compensated.
<br>        <b>  <b><font color='darkgreen'>13. </font></b></b> This refers only to Metaltelim. Ona'ah does not
               apply to land.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Kesuvos 100b - Question:</font></b> Up to how much of a mistake
               can Beis Din make (and the sale stands)?
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Answer (Rav Huna bar Yehudah):</font></b> They can err up to
               half the value.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> Support (Beraisa - R. Shimon ben Gamliel):</font></b> If Beis
               Din sold a field worth 200 for 100, or a field worth
               100 for 200, the sale stands.
<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 Metzia 32a):</font></b> Some rule like R. Ami and R.
               Yochanan, that Bitul Mekach applies to land. Some
               say that this is only when the price is double the
               value, like it says in the Yerushalmi. Some are
               unsure and did not rule about this. I say that the
               Halachah follows Rav Nachman, who is Basra. He holds
               that there is no Ona'ah even when the price is
               double (Bava Metzia 108a). Also in Kidushin he said
               that Ona'ah does not apply to land. In Bava Kama we
               say that The Yerushalmi is no more authoritative
               than what the Bavli says in the name of R. Yochanan,
               and Rav Nachman overrides this.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rebuttal (Rosh Bava Metzia 4:21):</font></b> The Halachah
               follows the latter Chacham only from Abaye and Rava
               and onwards! Before them, the Halachah follows the
               Rebbi against his Talmid. We follow R. Yochanan 
               against Shmuel, and all the more so against Rav
               Nachman, Shmuel's Talmid. The rule that we follow
               Shmuel and Rav Nachman in monetary laws is only when
               they argue with Rav and Rav Sheshes, respectively.
               There is Bitul Mekach when the value is half the
               price. We must say that Rav Nachman validated a sale
               of land worth 100 for <i>slightly less than</i> 200.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ba'al ha'Ma'or:</font></b> R. Chananel rules like the
                    Yerushalmi, that when the price is twice the
                    value, there is Ona'ah. This is primary. This
                    resolves the contradiction in Rav Nachman.
                    Ameimar's ruling supports this. He refers to
                    the entire Mishnah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Milchamos Hash-m):</font></b> The Yerushalmi
                    says that R. Yochanan holds that when the value
                    is less than half the price there is Bitul
                    Mekach, and Hekdesh is not redeemed. This is
                    unlike the Bavli, which says that Ona'ah does
                    not apply to land. R. Chananel was unsure
                    because Rav Nachman's law was not said here
                    (rather, regarding the law of a neighbor). The
                    Rif says that many laws are explained only
                    elsewhere. \f
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 13:8):</font></b> Ona'ah does not
               apply to documents or land, even if one sold
               something worth 1000 for one or vice-versa.
<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 66:38):</font></b> If one sold a document
               for collection, Ona'ah does not apply, even if he
               sold something worth 1000 for one or vice-versa.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that more than half, there is Bitul
               Mekach.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (122):</font></b> The Rosh holds like this, for the
                    Halachah follows Basra only from Abaye and Rava
                    and onwards. Also, the rule that we follow Rav
                    Nachman in monetary laws is only when he argues
                    with Rav Sheshes, but not against his Rebbeyim
                    Rav and Shmuel or R. Yochanan. This is not
                    difficult. In Bava Metzia, Mar Kashisha told
                    Rav Ashi that Rav Nachman said that land is
                    worth whatever one pays for it. Even though R.
                    Ami, R. Yonah, R. Yirmeyah and R. Yochanan
                    argue with Rav Nachman, the latter Chachamim,
                    i.e. Mar Kashisha and Rav Ashi (who were after
                    Abaye and Rava) and the Stam Gemara accepted
                    Rav Nachman's answer. This shows that we follow
                    him in monetary laws against Rav, Shmuel and R.
                    Yochanan. In many places the Gemara says that
                    the Halachah follows Rav Nachman in monetary
                    laws, even against earlier Amora'im. The Rosh
                    himself retracted, for in Kesuvos (5:38, 6:22
                    and 8:18) and other places, the Rosh wrote like
                    the Rif that the Halachah follows Rav Nachman
                    in monetary laws, even against Shmuel and R.
                    Yochanan. In a Teshuvah (Sof Klal 60), the Rosh
                    says that in monetary laws the Halachah follows
                    Shmuel against Rav, but not against Rav
                    Nachman, for Rav Nachman was near the Reish
                    Galusa, and judges were frequent there.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (ibid.):</font></b> The Rosh said that 'land for 100
                    was sold for slightly less than 200. This is
                    difficult. Also, if so, why did Mar Kashisha
                    say: 'Chachamim of Neharde'a say in the name of
                    Rav Nachman (that land is worth whatever one
                    pays for it)'? Perhaps the Gemara assumed that
                    when the buyer paid a full 200 for land worth
                    100, the neighbor can say that he overpaid! If
                    that the assumption explicitly said that when
                    the buyer paid less than 200 for land worth
                    100, why did the Gemara omit this and allow
                    room for error? Also, if so sometimes we do say
                    'you were a Shali'ach to help me, but not to
                    overpay, i.e. when the Ona'ah is more than a
                    half! Rather, Mar Kashisha teaches that we
                    never say this, for Ona'ah does not apply to at
                    all. The Rif's proof from Bava Kama is valid.
                    Tosfos and the Rosh say that 'all the money one
                    pays for it' is imprecise. This is difficult.
                    The Beis Yosef says that R. Chananel holds like
                    R. Tam. This is wrong. R. Chananel merely
                    explains the Yerushalmi, that 'a big
                    difference' is half (the value). He could rule
                    like Rav Nachman. The Ramban and Tosfos Rid say
                    so about R. Chananel's opinion. Many other
                    Rishonim rule like the Rif.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Tumim 65):</font></b> I proved above that there
                    is no Bitul Mekach at exactly half. R. Yochanan
                    explicitly says that there is Bitul Mekach past
                    a half. There is no source that Rav Nachman
                    argues! In Bava Metzia, he validated only
                    exactly a half! Some ask, if Rav Nachman agrees
                    that there is Bitul Mekach past a half, what
                    proof did Mar Kashisha bring from him? Tosfos
                    (Kesuvos 99b DH Hachi) answered that one might
                    have thought that when a Shali'ach erred, the
                    owner can say 'I sent you only to help me!' Rav
                    Nachman this teaches that this is not so.
                    Whenever the owner's mistake would stand, the
                    Shali'ach's mistake stands. Surely, this is Rav
                    Nachman's Chidush. The Mishnah teaches that
                    Ona'ah does not apply to land! Rashi (Gitin
                    37a) explained that Pruzbul may be written even
                    on a tiny piece of land, for it can be
                    collected many times. He did not say that one
                    can pay any amount for it, for there is Bitul
                    Mekach past a half! In any case, it is at least
                    a Safek, like Maharashdam says, and ha'Motzi
                    mi'Chavero Alav ha'Re'ayah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 227:15):</font></b> Ona'ah does not apply to
               documents, and land, even if one sold something
               worth 1000 for one or vice-versa.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (Sof DH v'Elu):</font></b> Since the Rif and
                    Rambam agree, we rule like them.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Darchei Moshe 4):</font></b> We do not follow
                    the Rif and Rambam against the Rosh and Tosfos,
                    especially since the Tur agrees with the Rosh
                    and Tosfos. In any case, ha'Motzi mi'Chavero
                    Alav ha'Re'ayah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that this is only until half, but
               more than half, e.g. he sold something worth one for
               more than two, there is Ona'ah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Gra (40):</font></b> This opinion explains Bava Kama 14b to say
               that land is worth all the money you pay for it to a
               greater extent than Metaltelim are. R. Yehudah
               taught that Ona'ah does not apply <i>even</i> to a Sefer
               Torah, i.e. it has the same law as land. The Gemara
               explained that Ona'ah does not apply to a Sefer
               Torah until half the value.
<br>

<p>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	The Tana:</font></b> I will no longer recite the Beraisa (there is
          a mistake in the text).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	R. Yitzchak:</font></b> It is not mistaken. It means like this:
          one is liable for Kodshim with Achrayus, for this is
          included from 'ba'Shem v'Chichesh';
          1.	He is exempt for Kodshim without Achrayus. This
               is excluded from 'v'Chichesh b'Amiso.'
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THINGS TO WHICH ONA'AH DOES NOT APPLY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Yehudah):</font></b> Ona'ah does not apply to a
          Sefer Torah, animal or pearl.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa - R. Yehudah):</font></b> Ona'ah does not apply to a
          Sefer Torah, because it is priceless. It does not apply
          to an animal or pearl, because people want (and willingly
          pay extra for) a good match of animals or pearls;
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Chachamim:</font></b> People want a good match for everything!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	R. Yehudah:</font></b> These are more important to people than
          everything else.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Up to how much is there no Ona'ah?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Ameimar):</font></b> It is until double their value.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Beraisa - R. Yehudah ben Beseira):</font></b> Also if one sells a
          horse, sword or shield in wartime, Ona'ah does not apply,
          for one's life depends on them.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>VERBAL AFFLICTION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Just like Ona'ah in a sale is forbidden,
          also verbal Ona'ah (affliction) is forbidden:
          1.	One may not ask the price of an item if he does
               not intend to buy it;
          2.	One may not say to a sinner who repented
               'remember your prior deeds!'
          3.	One may not say to a convert's son 'remember your
               ancestors' deeds!', for it says 'v'Ger Lo Soneh v'Lo
               Silchatzenu.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> 'Lo Sonu Ish Es Amiso' forbids
          verbal Ona'ah.
          1.	Question: Perhaps it forbids Ona'ah in a sale!
          2.	Answer: 'V'Chi Timkeru Memkar...' discusses
               Ona'ah in a sale.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	One may not say to a sinner who repented 'remember your
          prior deeds!'
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	One may not say to a convert's son 'remember your
          ancestors' deeds!'
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	One may not say to a convert who wants to learn 'your
          mouth ate forbidden foods. Will it learn Torah, which was
          given from Hash-m?!'
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	One may not speak to one suffering afflictions (or
          sickness or whose children died) the way Iyov's friends
          spoke to him - 'Mi Hu Naki Ovad'.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	If donkey-drivers ask one for grain, he may not direct
          them to one whom he knows does not sell;
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	R. Yehudah says, one may not ask about buying something
          if he lacks money to buy it;
          1.	One himself knows whether he intends to pain
               another. Regarding all such matters, it says
               'v'Yareisa me'Elokecha.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> Verbal Ona'ah is worse than deceit in a
          sale. It says 'v'Yareisa me'Elokecha' regarding the
          former, but not regarding the latter.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> Verbal Ona'ah is worse, for it afflicts
          the person himself, not just his property.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rav Shmuel bar Nachmani):</font></b> Verbal Ona'ah is worse, for
          it cannot be returned (undone).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(A reciter of Beraisos):</font></b> If one whitens a person's face
          (makes him blush), this is like bloodshed.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Support (Rav Nachman bar Yitzchak):</font></b> Yes! Afterwards,
          the redness fades and the face turns white again.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> What are people careful about in
          Eretz Yisrael?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer (Rav Dimi):</font></b> They are careful not to make people
          blush.
          1.	(R. Chanina): Everyone goes to Gehinom, except
               for three...
          2.	Interjection: This cannot be!
          3.	Correction: Rather, everyone who goes to Gehinom
               leaves, except for three: one who has Bi'ah with
               another man's wife, one who makes someone blush, and
               one who coins a derogatory nickname for someone.
          4.	Question: Giving a bad nickname is included in
               making him blush!
          5.	Answer: If the person is already used to the
               name, he does not blush. (Even so,  he does not
               leave Gehinom. Kesef Mishneh (Hilchos Teshuvah 3:14)
               - this includes one who calls him by a name that
               someone else gave to him.)
<br>

<p>

sjt:
</p><p>
<font><b>2) WINDOW SHOPPING</b></font><b>
<br>OPINONS</b>: The Mishnah lists a number of examples of Ona'as Devarim. In one case, a person asks, 'How much is that item?' when he really has no intention to buy the item. What exactly is the element of Ona'as Devarim involved in such a case?
</p><p>
(a) The <b>ME'IRI</b> explains that when a person asks for the price when he has no intention to buy the item, often he will respond that he does not want to buy the item because the price is too high. Others might hear his remark and decide to shop elsewhere, and as a result the storeowner will suffer a loss.
</p><p>
(b) The Me'iri cites a second opinion which explains that when a person asks about the price of an item, the storeowner's hopes are raised that he will make a sale. When the person walks away, the storeowner feels disappointed. The storeowner would not mind questions about his item from a person who genuinely is interested in purchasing the item. However, one who asks such questions knowing that he will cause disappointment to the storeowner for no reason transgresses the prohibition against Ona'as Devarim. This is also the reason given by the <b>CHAFETZ CHAIM</b> in <b>CHOVAS HA'SHEMIRAH</b> (ch. 10).
</p><p>
(c) The <b>RASHBAM</b> in Pesachim (112b) explains that such a question causes other potential customers to avoid buying the item. The <b>SEFER L'RE'ACHA KAMOCHA</b> (vol. 3, p. 34) explains this as follows. When there is only one item of this type for sale, others who are interested in buying it will not try to purchase it for themselves when they see someone else asking questions about it. Similarly, when other potential buyers see one person ask the storeowner for details about the item, they are likely to leave and shop at another store. When the questioner is genuinely interested in the item, asking about it is permitted, even if his questions will cause others not to buy it, and even if he ends up not buying it himself. However, when he has no intention to buy the item, his questions merely harm the storeowner and constitute Ona'as Devarim.
</p><p>
(d) The <b>RA'AVAD</b> on the Sifra (Behar, ch. 4) writes that the storeowner will feel hurt when he finds out later that the person was merely taking up his time for no reason.
</p><p>

<b>HALACHAH:</b> Based on these sources, the <b>SEFER L'RE'ACHA KAMOCHA</b> gives specific guidelines for 'window shoppers.' Many of his rulings are recorded in the name of <b>RAV CHAIM KANIEVSKY</b> shlit'a. A person who is not interested in buying an item at all may not ask a storeowner for the price of an item. This includes asking over the telephone. If, however, he says before he asks that 'I just want to know how much this costs,' he is permitted to ask, since he is letting the storeowner know that he is not really interested in buying the product. This avoids causing the storeowner unnecessary disappointment when the 'shopper' does not make a purchase. In any event, a person is not allowed to make remarks like, 'That price is too high,' within earshot of others, since he thereby causes the storeowner to lose customers. Also, he should not pester the storeowner with questions about a product when others are in the store who might require attention.
</p><p>
A hired employee in a store differs from the storeowner in that his disappointment in the lack of a sale is less than that of the owner. Accordingly, one is permitted to ask such a worker the price of an item even without first saying, 'I just want to know how much this costs,' as long as he does not ask too many questions or complain loudly about the price. (Y. Montrose)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE EVIL OF ONA'AH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rabah bar bar Chanah):</font></b> Making someone blush is worse
          than having Bi'ah with a doubtfully married woman.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> He learns from 'Kor'u v'Lo Damu' - David said 'if
          I would be torn, my blood would not spill';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even when my tormentors are learning about Tzara'as
               and Tum'as Ohel (the most difficult tractates), they
               ask me 'which death penalty is given for Bi'ah with
               a married woman?'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> I answer 'it is strangulation, and he has a share in
               the world to come, but one who makes someone blush
               has no share in the world to come.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Mar Zutra bar Tuvya):</font></b> It is better to cast oneself into
          a lit furnace than to make someone blush;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We learn from Tamar - 'Hi Mutzeis v'Hi Sholchah'
               (she did not save herself from being burned by
               saying that she was pregnant from Yehudah, for it
               would have embarrassed him).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Chanina brei d'Rav Idi):</font></b> 'Lo Sonu Ish Es Amiso'
          refers to one's fellowman, i.e. he also observes Torah
          and Mitzvos.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav):</font></b> A man must be very careful not to afflict his
          wife. Women are prone to cry, and Hash-m is quick to
          punish when the victim cries.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> The gates of prayer were locked from the
          time of the destruction of the Mikdash - 'Sosam
          Tefilasi';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even so, the gates of tears were not locked -
               'Dim'asi Al Techerash'.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav):</font></b> Anyone who follows his wife's counsel falls to
          Gehinom. We learn from Achav.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> People say 'if your wife is short,
          bend down to listen to her'!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1:</font></b> In matters of the house, listen to her, but
          not regarding worldly matters.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2:</font></b> In worldly matters, listen to her, but not
          regarding spiritual matters.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rav Chisda):</font></b> All the gates (of prayer) were locked,
          except for gates of (one who suffered) affliction -
          'Hash-m Nitzav Al Chomas Anach.'
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> Hash-m punishes for everything through a
          Shali'ach, except for affliction - 'uv'Yado Anach.'
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(R. Avahu):</font></b> There are three sinners from whom Hash-m does
          not take His eyes off them until He punishes them -
          swindlers, robbers and idolaters.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We learn about swindlers from 'uv'Yado Anach';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We learn about robbers from - 'Chamas... Al Panai
               Tamid';
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> We learn about idolaters from 'ha'Mach'isim Osi Al
               Panai Tamid'.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>IMPORTANT COUNSEL FOR ONE'S HOME</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> A man must be very careful not to lack
          grain in his house, for this causes constant quarrels -
          'Gevulech Shalom Chelev Chitim Yasbi'ech'.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> People say that when barley is finished from
          the barrel, quarrels come.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Chinena):</font></b> A man must be very careful not to lack
          grain in his house, for Yisrael are called poor only due
          to lack of grain - 'va'Yidal Yisrael Me'od'.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Chelbo):</font></b> A man must be very careful to honor his
          wife properly, for Berachah is found in his house only
          due to her - 'ul'Avram Heitiv Ba'avurah'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rava advised men of his city to honor their wives,
               in order that they will get rich.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>TORAH IS NOT IN HEAVEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Eliezer):</font></b> The oven of Achnai is assembled
          rings of earthenware are, with sand in between them. It
          does not receive Tum'ah;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Chachamim say, it receives Tum'ah.
<br>
<br>

sjt:
<font><b>1) MUST A PERSON DIE IN ORDER TO AVOID EMBARRASSING SOMEONE IN PUBLIC?</b></font><b>
<br>OPINIONS:</b> The Gemara says that it is better for a person to cast himself into a blazing furnace than to embarrass someone publicly. The Gemara derives this from the conduct of Tamar, who did not attempt to save herself from the death penalty by announcing that Yehudah was the father of her children. She did not want to embarrass him in public, and thus she merely sent Yehudah his personal items that he had given her as collateral, and she hoped that he would admit his responsibility. She was prepared to be burned to death if Yehudah would not admit on his own accord.
</p><p>
What does the Gemara mean when it says that 'it is better' for a person to cast himself into a furnace than to embarrass someone publicly? Does this mean that a person <i>must</i> allow himself to be killed rather than embarrass someone in public, or does it mean only that such conduct is praiseworthy, but not obligatory? The Gemara in Pesachim (25a) lists only three sins for which one is obligated to give his life and not transgress ('Yehareg v'Al Ya'avor'): Avodah Zarah (idolatry), Giluy Arayos (illicit relationships), and Shefichus Damim (murder). If one must let himself be killed in order to avoid embarrassing someone in public, why does the Gemara there not include it in the list of transgressions of 'Yehareg v'Al Ya'avor'?
</p><p>
(a) <b>TOSFOS</b> in Sotah (10b, DH No'ach) rules that a person <i>must</i> throw himself into a furnace rather than embarrass someone in public. The only reason why the Gemara in Pesachim does not mention this prohibition is that it is not specifically mentioned in the Torah (unlike the other prohibitions listed there).
</p><p>
The <b>SHA'AREI TESHUVAH</b> (3:139) agrees that such conduct is obligatory, but he understands that it indeed <i>is</i> included in the list in Pesachim of transgressions of 'Yehareg v'Al Ya'avor.' When the Gemara there mentions the sin of Shefichus Damim, it includes embarrassing someone publicly, as the Gemara here (58b) teaches that embarrassing someone publicly is tantamount to murder. The <b>SEFER L'RE'ACHA KAMOCHA</b> (vol. 2, p. 72, note 111) quotes many Rishonim and Acharonim who agree with the Sha'arei Teshuvah.
</p><p>
(b) The <b>ME'IRI</b> in Sotah writes that the Chachamim made this statement about Tamar as an observation. The Me'iri implies that the Gemara derives the <i>preferable</i>, but not obligatory, mode of conduct from Tamar. The <b>IYUN YAKOV</b> and <b>PNEI YEHOSHUA</b> agree with this understanding.
</p><p>
Does this mean that one may act leniently and save his life by embarrassing someone in public, since there is a doubt about whether one must allow himself to be killed rather than embarrass someone in public? The Sefer l'Re'acha Kamocha cites many Poskim, including the <b>TERUMAS HA'DESHEN</b> (1:199), who rule that if one is faced with a situation in which there is a doubt about whether he is allowed to transgress a sin or be killed, he must give up his life out of doubt, based on the rule of 'Shev v'Al Ta'aseh Adif' -- it is better to remain passive than to commit a sin actively. However, the Sefer l'Re'acha Kamocha adds that this question applies only in cases of serious embarrassment, where the victim becomes <i>extremely</i> embarrassed. One does <i>not</i> have to give up his life in order to avoid slightly embarrassing someone. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>LO VA'SHAMAYIM HI</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> R. Eliezer and Chachamim argued about
               Tum'ah of a kind of oven. R. Eliezer gave all proofs
               in the world; Chachamim did not accept them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Eliezer:</font></b> If the law is like me, this carob tree,
               the irrigation ditch, the walls of the Beis Medrash,
               and Heaven should show it. (The tree moved 100 Amos,
               the water reversed the direction of its flow, and
               the walls leaned to fall.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim said 'we don't bring proof from trees or
               irrigation ditches.' R. Yehoshua rebuked the walls
               for interfering in a dispute of Chachamim.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> A Bas Kol (voice from Heaven) said 'do not argue
               with R. Eliezer. The Halachah always follows him!'
               R. Yehoshua said 'Lo va'Shamayim Hi.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (R. Yirmeyah):</font></b> Once the Torah was given on Sinai, we
               do not heed a Bas Kol. Rather, we follow the
               majority of Chachamim - 'Acharei Rabim Lehatos'.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 86a:</font></b> If we are unsure whether the Tzara'as (white
               appearance on the skin) or white hair came first,
               Hash-m said that he is Tahor (Musgar). The rest of
               the Heavenly academy said Tamei (Muchlat). The angel
               of death was sent to take Rabah to decide the
               matter. He died amidst saying 'Tahor, Tahor.'
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Megilah 2b (R. Yirmeyah):</font></b> Nevi'im taught the five
               final-letters of the Aleph-Beis.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> 'Eleh ha'Mitzvos' - a Navi may not change
               a law through prophecy (changing the letters affects
               Tefilin and Mezuzos)!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'>Answer:</font></b> All the letters were already known, just it
               was not known which are the final letters and which
               come in the beginning or middle of words.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question:</font></b> Still, this is something new, so a Navi
               may not teach it!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer:</font></b> It was known and forgotten. The Nevi'im just
               restored it.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Yevamos 14a:</font></b> Reish Lakish says that in practice,
               Beis Shamai did not follow their own teachings. R.
               Yochanan says that they did.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question:</font></b> Before the Bas Kol (announced that the
               Halachah follows Beis Hillel), all should agree they
               followed their teachings! After the Bas Kol, all
               should agree they did not follow their teachings!
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer #1:</font></b> They argue about before the Bas Kol.
               Reish Lakish says that Beis Shamai conducted like
               Beis Hillel, for Beis Hillel were the majority. R.
               Yochanan says that they followed their own
               teachings, for they were sharper.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Answer #2:</font></b> It was after the Bas Kol. Reish Lakish
               says that Beis Shamai heeded the Bas Kol. R.
               Yochanan holds like R. Yehoshua, who does not heed a
               Bas Kol.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> Shabbos 108a - Question (Mar brei d'Ravina):</font></b> May one
               write Tefilin on skin of a Tahor fish?
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> Answer (Rav Nachman bar Yitzchak):</font></b> If Eliyahu will
               come and say.
<br>        <b>  <b><font color='darkgreen'>18. </font></b><font color='darkgreen'> Question:</font></b> What does this mean? (A Navi cannot
               resolve Halachah!)
<br>        <b>  <b><font color='darkgreen'>19. </font></b><font color='darkgreen'> Answer:</font></b> If he will say that (after it is tanned) it
               is no longer considered disgusting (like it was
               before tanning), it is Kosher; if not, not.
<br>        <b>  <b><font color='darkgreen'>20. </font></b><font color='darkgreen'> Zevachim 62a (Rabah bar bar Chanah):</font></b> Three prophets
               came back with the exiles from Bavel. One testified
               that the Mizbe'ach may be up to 60 Amos, one
               testified where it should be, and one testified that
               we may bring Korbanos (if the Mizbe'ach is in its
               proper place) even without a Beis ha'Mikdash.
<br>        <b>  <b><font color='darkgreen'>21. </font></b><font color='darkgreen'> Temurah 16a (Rav Yehudah):</font></b> In the mourning over
               Moshe's death, 3000 Halachos were forgotten.
               Yehoshua said that he cannot ask Hash-m, for 'Lo
               va'Shamayim Hi.' Shmuel said that he cannot ask
               Hash-m, for 'Eleh ha'Mitzvos' - a Navi may not teach
               a new (mid'Oraisa) law through prophecy.
<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 Yesodei ha'Torah 9:1):</font></b> It is clear
               and explicit in the Torah that it is an eternal
               Mitzvah. There can be no change, detraction or
               addition. It says 'everything that I command you,
               you will oberve. Do not add to or detract from it'
               and 'eternal statutes for your generations.' It says
               'Lo va'Shamayim Hi.' This teaches that a Navi cannot
               make new laws. Therefore, if a Yisrael or Nochri
               will do a miracle and say that Hash-m sent him to
               add or remove a Mitzvah, or give an explanation of a
               Mitzvah that we did not hear from Moshe, or that the
               Mitzvos Yisrael were commanded were temporary, he is
               a false prophet, for he contradicts Moshe's
               prophecy. We kill him for deliberately speaking in
               Hashem's name what he was not commanded. Hash-m
               commanded Moshe that this Mitzvah is forever. Hash-m
               is not a person, who lies!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> R. Yirmeyah explained that we do
                    not heed a Bas Kol to decide Halachah. All the
                    more so, we do not heed a Navi's prophecy!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Tzara'as 2:9):</font></b> If we are unsure
               whether the Tzara'as or white hair came first, he is
               Tamei. It seems that it is a Safek.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> We do not rely on what Hash-m
                    said, for Lo va'Shamayim Hi. Rabah died while
                    saying 'Tahor', so Lo va'Shamayim Hi applies
                    and we cannot learn from him.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Tosfos (59b DH Lo):</font></b> In Yevamos we say that the
               Halachah follows Beis Hillel due to the Bas Kol.
               Here we do not heed a Bas Kol, because it opposed
               Divrei Torah - 'Acharei Rabim Lehatos'. There, the
               Bas Kol supported Divrei Torah, for Beis Hillel were
               the majority. The only doubt was because Beis Shamai
               were sharper. Also, here the Bas Kol was only for
               the honor of R. Eliezer, who requested a proof from
               Shamayim. There, we said that R. Yochanan holds like
               R. Yehoshua, who does not heed a Bas Kol. Our only
               source is here (where there are reasons not to heed
               it)! Since R. Yehoshua said 'Lo va'Shamayim Hi',
               this shows that he holds that we never heed a Bas
               Kol.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Maharsha (DH Lo):</font></b> R. Yehoshua must hold that
                    the Halachah follows Beis Hillel because they
                    were the majority.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Maharsha (Temurah 16a DH Omar):</font></b> Yehoshua had
                    already learned the laws, so he did not say
                    'Eleh ha'Mitzvos', for they were not new for
                    him.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rashi (Shabbos 108a DH Mai):</font></b> We cannot learn from
               Eliyahu what is permitted or forbidden, for Lo
               va'Shamayim Hi.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Birkei Yosef (OC 32:4 DH v'Nir'eh):</font></b> A Navi cannot
               tell us the Halachah through prophecy, but he can
               say things from his Chachmah. When the Gemara says
               'if Eliyahu will come and say... we will not heed
               him', it means if he will say through prophecy. We
               may not resolve a Safek law through Eliyahu. The
               Rambam (introduction to Perush ha'Mishnayos) says
               similarly that if a Navi testifies that Hash-m told
               him a law about a certain Mitzvah or that a certain
               reasoning is true, he is a false prophet and we kill
               him. Hagahos R. Betzalel (Gitin 6) asks, since
               Eliyahu frequently spoke with Amora'im, why didn't
               he resolve Teiku (unsettled questions left for
               Eliyahu)? He answered that the Eliyahu who
               frequented the Amora'im was Pinchus, and in the
               future a different Eliyahu will resolve Teiku. The
               Rashba (Menachos 45a) asked why Eliyahu will need to
               explain difficult verses in Yechezkeil. When Eliyahu
               comes, the dead will be revived, and Yechezkeil
               himself can answer! He answered that perhaps Eliyahu
               will come before Techiyas ha'Mesim. Or, before
               Mashi'ach Eliyahu will be able to explain it in a
               Beis Medrash; he was regularly in Rebbi's Beis
               Medrash. How can R. Betzalel and the Rashba say that
               Eliyahu will explain laws? We can also ask against
               Hagahos Maimoniyos, Sefer ha'Chinuch and Beis Yosef,
               who rule like R. Shimon, that Nochrim have no Tum'as
               Ohel, because Eliyahu said so to Rabah bar Avuha
               (Bava Metzia 114b). They must hold that Eliyahu said
               so based on his awesome Chachmah, not through
               prophecy. Rashi in Shabbos means that we would not
               heed what Eliyahu says through prophecy. However,
               what was the Gemara's question against Rav Nachman
               bar Yitzchak? Perhaps he meant, if Eliyahu will come
               and say through his Chachmah we will heed him!
<br><b><font color='darkgreen'> <b>    (d)</b>  Mishneh l'Melech (Hilchos Ishus 9:6): We may rely on</font></b>
          Eliyahu to resolve a Safek in Metzi'us (which of two men
          is a Kohen - Tosfos Yevamos 99b), but not a Safek in
          Halachah. However, perhaps this is only for money, but
          not for Safek Isur.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Birkei Yosef (ibid.):</font></b> Tosefes Yom ha'Kipurim (Yuma
               75a) says that we cannot rely on prophecy to say
               which father a baby was from, or that Ploni sold a
               slave, for the Torah required witnesses. He asked
               why the Gemara says that the manna resolved such
               doubts (the true father or master would get extra
               manna for him), and from Shabbos 34a (R. Shimon was
               Metaher certain places through Ru'ach ha'Kodesh). He
               answered that Moshe used to rule according to Din
               Torah, and the manna would verify his ruling. R.
               Shimon relied on his tradition. Tosefes Yom
               ha'Kipurim holds that prophecy cannot resolve even a
               Safek in Metzi'us. Prophets who returned from Bavel
               <i>testified</i> about the size and location of the
               Mizbe'ach, and that we may bring Korbanos even
               without a Mikdash (Zevachim 62a). Even though these
               are Metzi'us, the Nevi'im needed to testify. Had
               they said them through prophecy, we would not accept
               it. It seems to me that we may rely on a Navi for a
               Safek in Metzi'us, e.g. whether fish skin ceases to
               be repulsive. We may rely on Eliyahu to teach about
               Kevi'us (Berachos 35b), whether Terumah became Tamei
               (Pesachim 15), who gave the bigger deposit (Bava
               Metzia 37a), the final letters (Megilah 3a), whether
               a Yevamah will miscarry (Yevamos 35b) whether an
               animal's innards are lean (Tosfos Menachos 64a), and
               which day was made Rosh Chodesh in Eretz Yisrael
               (Tosfos Beitzah 30b and Rosh Sof Sukah). The Rashba
               (Teshuvah 10) says that David was allowed to take
               Michal back, for he knew through prophecy that
               Michal never had Bi'ah with Palti. All these show
               that we may rely on Nevi'im for a Safek in Metzi'us.
               In Zevachim the Nevi'im knew testimony, so it was
               proper to testify! The Halachos forgotten during the
               mourning over Moshe were as if they were never
               taught, so if a Navi would teach them, it would be
               like a new law (Temurah 16a).
<br>

<p>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> R. Eliezer gave all proofs in the world why it
          is Tahor; Chachamim did not accept them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Eliezer:</font></b> If the law is like me, this carob tree
               should show it. (The tree moved 100 Amos.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Chachamim:</font></b> We don't bring proof from a tree.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Eliezer:</font></b> If the law is like me, the irrigation
               ditch should show it. (The water reversed the
               direction of its flow.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Chachamim:</font></b> We don't bring proof from an irrigation
               ditch.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> R. Eliezer:</font></b> If the law is like me, the walls of the
               Beis Medrash should show it. (The walls leaned to
               fall.)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> R. Yehoshua (to the walls):</font></b> We are arguing over 
               Halachah. This is not your affair!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The walls stopped falling, to honor R.
                    Yehoshua. To this day they remain bent, in
                    honor of R. Eliezer.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> R. Eliezer:</font></b> If the law is like me, Heaven should
               show it.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (A voice from Heaven):</font></b> Why do you argue with R.
               Eliezer? The Halachah always follows him!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> R. Yehoshua:</font></b> It (the Halachah) is not in Heaven.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What does this mean?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (R. Yirmeyah):</font></b> Once the Torah was given on Sinai,
          we do not heed voices from Heaven. Rather, we follow the
          majority of Chachamim - 'Acharei Rabim Lehatos'.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	R. Noson (to Eliyahu):</font></b> What was Hash-m doing at the time
          of that dispute?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Eliyahu:</font></b> He laughed and said 'My children Nitzchuni.
          (This could mean 'defeated Me', or 'made Me (My Torah)
          Eternal.')
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	That day, they burned all the food that was Tahor
          according to R. Eliezer (and Tamei according to
          Chachamim). They voted and excommunicated him. R. Akiva
          volunteered to inform him, lest someone else do this
          improperly.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Akiva dressed in black, and sat four Amos away
               from R. Eliezer, who inquired about this. When he
               heard, he tore his clothing and removed his shoes
               (Rashi - like one who was excommunicated must do).
               He sat on the floor and cried. Olives, wheat and
               barley were stricken. Some say that even the dough
               in a woman's hands spoiled.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Wherever R. Eliezer looked at was burned. R. Gamliel
               (the Nasi, who authorized the excommunication) was
               on a boat. A storm was about to sink it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Gamliel:</font></b> Hash-m, you know that I acted for Your
               honor, lest disputes increase in Yisrael! (The storm
               abated.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Eliezer's wife was R. Gamliel's sister. After
               this episode, she would not allow him to fall on his
               face (to say Tachanun, lest Hash-m avenge R.
               Eliezer's pain). One day, she did not stop him (she
               erred about which day was Rosh Chodesh, on which
               Tachanun is not said. Some say that she went to give
               bread to a poor person at the door). She found him
               on his face.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> His wife:</font></b> Get up! You killed my brother. (They then
               heard the announcement of his death.)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> R. Eliezer:</font></b> How did you know?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> His wife:</font></b> I have a tradition from my father's house
               (from David) that all the gates were locked, except
               for gates of Ona'ah.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>AFFLICTION OF CONVERTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> One who (verbally) afflicts a convert
          transgresses three Lavim. One who pressures him (to pay a
          loan) transgresses two Lavim.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection:</font></b> Surely, the three Lavim of affliction are
          'v'Ger Lo Soneh', 'v'Chi Yagur...', and 'Lo Sonu Ish Es
          Amiso' (a convert is also 'your countryman').
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Similarly, one who pressures him transgresses 'v'Lo
               Silchatzenu', 'v'Ger Lo Silchatz', and 'Ami... Lo
               Sihyeh Lo k'Nosheh' (a convert is also in 'My
               nation'!).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, one who pressures or afflicts a
          convert transgresses three Lavim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa - R. Eliezer ha'Gadol):</font></b> The Torah warns in 36
          (some say - 46) places not to mistreat a convert, for he
          is prone to return to his former way.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What do we learn from 'v'Ger Lo Soneh v'Lo
          Silchatzenu Ki Gerim Hayisem b'Eretz Mitzrayim'?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (R. Noson):</font></b> Do not point out in someone else a
          blemish that you yourself have.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	People say that one in a family from which someone was
          hanged should not mention the word 'hang', for it recalls
          his shame.
<br>

<p>

sjt:
</p><p>
<font><b>2) TORAH IS NOT IN HEAVEN</b></font><b>
<br>QUESTION:</b> The Gemara relates the incident of 'Tanuro Shel Achna'i' and the miraculous ways in which Rebbi Eliezer attempted to convince the Chachamim that the Halachah was in accordance with his opinion. He miraculously uprooted a carob tree, had the waters of a river shift direction, and caused the walls of the study wall to lean inwards, and still the Chachamim did not change their mind. He then declared that Heaven should prove that he is correct, and a Bas Kol emanated and pronounced, 'Why are you challenging Rebbi Eliezer, when the Halachah is like him?' Rebbi Yehoshua stood up and declared, 'Lo ba'Shamayim Hi' -- 'It (the Torah) is not in the heavens!' (Devarim 30:12).
</p><p>
<b>TOSFOS</b> (DH Lo ba'Shamayim) asks that the Chachamim had a different reaction to the Bas Kol which decided the question of whether the Halachah should follow the view of Beis Shamai or the view of Beis Hillel. The Gemara in Yevamos (14a) relates that when the Bas Kol declared that the Halachah should follow Beis Hillel, the Halachah indeed was established in accordance with the view of Beis Hillel. Why does the Gemara here say that the Halachah is <i>not</i> decided based on a Bas Kol?
</p><p>
The <b>MAHARAM</b> explains that Tosfos is not asking his question on the view of Rebbi Yehoshua, as the Gemara in Yevamos itself cites Rebbi Yehoshua who said there as well that we do not rely on a Bas Kol. The question of Tosfos is on the Gemara in Yevamos (and other places) which follows the view of Beis Hillel because of the Bas Kol. If the Gemara there follows the view of Beis Hillel because of the Bas Kol, why does the Gemara here not follow the view of Rebbi Eliezer because of the Bas Kol?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that in this case, the Bas Kol contradicted the Torah's principle of 'Acharei Rabim l'Hatos' -- 'turn after the majority' (Shemos 23:2). In the case in Yevamos, the Halachah presumably followed the view of Beis Hillel, whose opinion was that of the majority. However, the fact that the students of Beis Shamai were sharper caused a doubt to arise about whom the Halachah should follow. The Bas Kol resolved the doubt when it proclaimed that even in this case the verse of 'Acharei Rabim l'Hatos' applies.
</p><p>
(b) In another answer, Tosfos explains that the Bas Kol in the case in Yevamos was spontaneous, and therefore considered more 'neutral.' In contrast, the Bas Kol in the case of 'Tanuro Shel Achna'i' was in response to Rebbi Eliezer's demand that 'Min ha'Shamayim Yochichu,' and therefore the Halachah does not follow its declaration. (Y. Montrose)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>MIXING PEROS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven sells Peros of a field (Aleph), he
          may not mix with it Peros of field Beis, even if the
          Peros of both are new, all the more so if that of Aleph
          is old (which is preferable) and that of Beis is new.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Really, they permitted to mix hard wine with soft, for
          this improves (soft) wine.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	It is forbidden to mix dregs into wine, but he gives him
          its dregs (this will be explained).
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If water was mixed into wine, one may not sell it in a
          store without informing the buyer;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One may not sell it to a merchant, even if he
               informs him, for he will sell it without saying that
               it was mixed with water.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	In a place where people dilute wine with water, this is
          permitted.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	A merchant mixes together what he buys from different
          granaries or winepresses, on condition that he does not
          intend to mix (inferior Peros with superior, and to call
          it superior).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> Obviously, if new Peros sell for four
          Sa'im for a Sela and old for three Sa'im for a Sela, he
          may not mix them (and say that it is old);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even if new Peros sell for three Sa'im for a Sela
               and old for four Sa'im for a Sela, he may not mix
               them;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The new is more expensive only because it can
                    be kept longer. If the buyer wants to use it
                    soon, the old is better for him.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>MIXING WINE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Really, they permitted to mix hard wine with
          soft, for this improves it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> This teaches that whenever the Mishnah says
          'really', that is the Halachah. (Rashi - since it gives
          the reason, there is no room for doubt; Rambam - the
          Halachah is a tradition from Moshe from Sinai.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> The Mishnah discusses at the times of
          pressing the grapes (but afterwards, it harms the wine).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Nowadays, people mix afterwards!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Rav Papa):</font></b> People know this, and they pardon
          it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rav Acha brei d'Rav Ika):</font></b> The Mishnah is R.
          Acha;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Acha):</font></b> One may mix something that
               people taste before buying.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One may not mix dregs into wine, but he gives
          him (mixes in) its dregs.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> This is self-contradictory!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He may give him the dregs if he informs
               him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Reisha):</font></b> (If water was mixed into wine),
               one may not sell it in a store without informing the
               buyer. One may not sell it to a wine merchant, even
               if he informs him;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference:</font></b> Until now, the Mishnah discusses without
               informing!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> The Mishnah forbids mixing dregs of
          one wine with a different wine, but he may mix in dregs
          of the same wine.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Support (Beraisa - R. Yehudah):</font></b> Reuven gently poured wine
          to Shimon (so the dregs stayed in Reuven's Kli) - Reuven
          may not mix in dregs of a different wine, but he may mix
          in its own dregs.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If water was mixed into wine, one may not sell
          it in a store without informing the buyer...
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	They brought wine from a store to Rava. He mixed it and
          tasted it. It was not good. He returned it to the store.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Abaye - Mishnah):</font></b> One may not sell mixed wine
          to a merchant, even if he informs him.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> I put in so much water that any buyer will
          know that it was mixed.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> We should be concerned lest the store
               owner add pure (undiluted) wine, so it will not be
               recognized!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> If the store owner himself will mix the
               wine, he could add water to pure wine. He need not
               buy mixed wine to swindle (so we are not
               responsible).
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> In a place where people dilute wine with
          water, this is permitted.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> One mixes according to the local custom, a
          half, third or quarter.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Rav):</font></b> This refers to at the time of pressing grapes.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WAYS TO ATTRACT BUYERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Yehudah):</font></b> A grocer may not give treats to
          children, for this accustoms them to patronize him;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Chachamim permit this.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Yehudah forbids selling for less than the standard
          price;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Chachamim say, he should be blessed for this!
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Aba Sha'ul says, one who sells beans may not remove the
          cut beans;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Chachamim permit this;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim agree that he may not remove the cut beans
               only on top, for that is deception.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	One may not be Mefarches (this will be explained) people,
          animals or Kelim (for sale).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why do Chachamim permit giving nuts?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The other grocers can do the same if they want.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> R. Yehudah forbids selling for less than the
          standard price. Chachamim say, he should be blessed for
          this!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Why do Chachamim permit this?
<br>
<br>

sjt:
<font><b>1) 'B'EMES AMRU'</b></font><b>
<br>OPINIONS:</b> The Mishnah teaches that one is permitted to mix 'hard wine' with 'soft wine' because it improves the quality of the wine. The Mishnah introduces this law with the words, 'b'Emes Amru' -- 'in truth they said.' What is the significance of these words? After all, everything the Mishnah says is the truth! Rebbi Elazar explains that whenever the Mishnah says 'b'Emes Amru' it means that this is the Halachah. How do these words imply that this is the Halachah?
</p><p>
(a) <b>RASHI</b> (DH b'Emes) explains that the reason which the Mishnah gives for its law is purely logical. One certainly is permitted to mix one item with a similar item which improves the quality of the mixture. This is the source that whenever the phrase 'b'Emes Amru' appears it expresses a clear Halachah, based on pure logic which is not subject to dispute.
</p><p>
(b) The <b>RAMBAM</b> (introduction to <b>PERUSH HA'MISHNAYOS</b>) records this Halachah as a Halachah l'Moshe mi'Sinai. This implies that the Rambam understands that the words 'b'Emes Amru' teach that the law is a Halachah l'Moshe mi'Sinai.
</p><p>
The <b>OTZAR MEFARSHEI HA'TALMUD</b> cites many references in the Yerushalmi which explicitly say that whenever the Mishnah says 'b'Emes Amru' it means that the law is a Halachah l'Moshe mi'Sinai.
</p><p>
This implies that Rashi's position conflicts with that of the Yerushalmi. However, the <b>ROSH</b> (beginning of Mikva'os) writes that there are some laws which the Gemara calls a Halachah l'Moshe mi'Sinai simply because they are clear Halachos, even though they are not actually Halachos l'Moshe mi'Sinai. Perhaps Rashi has a source (such as the references in the Yerushalmi mentioned above) that teaches that the phrase 'b'Emes Amru' is a Halachah l'Moshe mi'Sinai, and he understands that this means that it is a clear Halachah and not necessarily an actual Halachah l'Moshe mi'Sinai. Rashi maintains that 'b'Emes Amru' indicates clarity, and not that something is a Halachah l'Moshe mi'Sinai. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>GIVING A FALSE APPEARANCE TO PEOPLE AND MERCHANDISE</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'> 56a (Mishnah):</font></b> Ona'ah does not apply to slaves or
               land.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 56b (Beraisa):</font></b> The verse forbidding Ona'ah says
               'v'Chi Simkeru... <i>mi'Yad</i> Amisecha.' It refers to
               something acquired from hand to hand. This excludes
               land, which cannot be moved, and slaves, which are
               equated to land.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 60b (Mishnah):</font></b> One may not be Mefarches people,
               animals or Kelim.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Beraisa):</font></b> One may not be Mesharbet animals or
               inflate intestines, or soak the meat in water.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> What does Mesharbet mean?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #1 (Chachamim of Bavel):</font></b> It is to give to
               them bran water to drink.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #2 (Ze'iri):</font></b> It is to comb with a thick comb.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> Shmuel permitted putting silk fringes on a cloak.
               Rav Yehudah permitted to starch clothing with
               colorful designs. Rabah permitted stretching hemp
               garments (to show off the fine threads). Rava
               permitted putting designs on arrows. Rav Papa bar
               Shmuel permitted putting designs on baskets.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question (Mishnah):</font></b> One may not be Mefarches people,
               animals or Kelim.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer:</font></b> It is forbidden only for old Kelim, for it
               makes them look new.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question:</font></b> How does Pirchus apply to people?
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer:</font></b> It is like the case of the slMefarches
               regarding people is like the case of an old Kena'ani
               slave who dyed his (white) hair and beard black.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Chulin 113a (Rav Huna):</font></b> One must salt meat, and then
               rinse it.
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b> This is when the butcher already rinsed the meat. If
               he did not, the buyer must rinse it, salt it and
               rinse it again.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif brings our Gemara.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Ein Mesharbetin):</font></b> Making the
                    hair stand up makes an animal appear fatter.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 13:15):</font></b> If one hired a
               worker, Ona'ah does not apply, for it is as if he
               acquired him temporarily, and Ona'ah does not apply
               to slaves.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (18):</font></b> I say that Ona'ah applies to a Kablan,
               e.g. one hired to weave or sew a certain garment for
               10 Zuz.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (18:2):</font></b> One may not be Mefarches people,
               animals or old Kelim in order that they will look
               new. One may be Mefarches new Kelim, to polish, iron
               and beautify them as much as necessary.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (3):</font></b> One may not be Mesharbet people with
               bran water or similar things to them and fatten the
               face. One may not dye the face with rouge or similar
               things. One may not inflate intestines or soak the
               meat in water or similar things.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rosh (4:24):</font></b> One may not be Mefarches old Kelim. It
               is permitted for new Kelim.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Perush ha'Mishnayos:</font></b> Pirchus is fixing and
               beautifying.
<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 227:33):</font></b> If one hired a worker,
               Ona'ah does not apply, for it is as if he acquired
               him temporarily. Ona'ah does not apply to slaves.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Terumas ha'Deshen (318, brought in Bach 45):
                    The Rambam says that Ona'ah does not apply to a
                    (regular) worker, because he can retract in the
                    middle, for Bnei Yisrael are Hashem's slaves,
                    not people's slaves. A Kablan cannot retract.
                    However, even a worker is equated only to an
                    Eved Ivri, but not to an Eved Kena'ani. We
                    exclude slaves from Ona'ah because they are
                    like land. This is only for an Eved Kena'ani!
                    However, Kidushin 28a equates an Eved Ivri to
                    land regarding oaths. It seems that the same
                    applies to Ona'ah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (95:18):</font></b> Megilah 23b proves that a
                    Yisrael is like land. It requires 10 to
                    estimate the value of a Yisrael, just like for
                    land. Sanhedrin 15a, Kidushin 7a and 28a
                    connote similarly. Tosfos says that only Eved
                    Kena'ani is equated to land. The Sugyas oppose
                    this. Surely, we learn all people from slaves.
                    Why should they be different?
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (51):</font></b> A Mishnah (56a) lists things to which
                    Ona'ah does not apply. The Maharshal says that
                    even so, one may not deceive about their value.
                    This is no less than Ona'as Devarim and
                    Geneivas Da'as (deception).
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Pischei Teshuvah (21):</font></b> Sefer ha'Chinuch (337)
                    brings from the Ramban (Vayikra 25:15) that
                    Ona'as Mamon applies to everything. Land (and
                    slaves) is (are) excluded only from returning
                    Ona'ah.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Ya'avetz:</font></b> It seems that there is no Isur
                    regarding an Eved Ivri, since he is not
                    acquired permanently. He is like a poor
                    Yisrael; it is a Mitzvah to support him. The
                    same applies to to Amah Ivriyah. All the more
                    so one may be Mefarches and beautify a Bas
                    Yisrael so she will be pleasing in the eyes of
                    someone proper for her and he wil be Mekadesh
                    her, even if she is unattractive. R. Yishmael
                    did so (Nedarim 66a). This is if she is merely
                    unattractive. If she has a blemish that is
                    grounds to disqualify Kidushin, Pirchus to
                    cover it up is the ultimate Ona'ah. In the end
                    she will leave (be divorced) amidst disgrace
                    and without a Kesuvah. One can ask about dying
                    an old woman's hair to make her look younger,
                    if she is not so old that she wobbles when
                    walking, which is a Mum. It seems that if she
                    is too old to have children and one covers it
                    up, this is a great Ona'ah and she is divorced.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Divrei Yatziv (EH 15:2):</font></b> Why did the Gemara
                    discuss only slaves? Ona'ah also applies to
                    women, e.g. Shiduchin!
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Rashash (56b DH Davar):</font></b> Ona'ah does not apply
                    to slaves, but one may not deceive regarding
                    their value, like we find later (60b). One
                    could distinguish; it seems that we do not
                    distinguish.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (228:9):</font></b> One may not be Mefarches
               people, animals or old Kelim, to dye the beard of a
               slave whom one wants to sell, in order that he will
               appear young.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (16. citing the Tur):</font></b> One may not dye old
                    Kelim, for he increases the price more than
                    they increase in value. One may dye new Kelim,
                    for in any case they are new and good.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Sho'el u'Meshiv (1:210):</font></b> The Rambam (Hilchos
                    Avodah Zarah 12:10) forbids dying a white hair
                    black due to Simlas Ishah (adorning oneself
                    like a woman). What is his source? The Gemara
                    asked how Pirchus applies to people, and
                    answered 'like the case of the slave.' The
                    Mishnah connotes that it discusses Stam people,
                    but Rashi explained that it discusses an Eved
                    Kena'ani destined to be sold. According to the
                    Rambam, the Gemara asked what is the case of
                    Pirchus, for a Yisrael may not dye his hair due
                    to Simlas Ishah. We needed to say that the
                    Mishnah discusses slaves.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> We could say that Pirchus applies to
                    women, either single women who need not cover
                    their hair, or even a married woman (she may
                    let other women see her hair). Seemingly, the
                    Mishnah forbids Pirchus regarding sales. If so,
                    regarding people we must discuss slaves!
                    However, it could discuss an Eved Ivri, or a
                    prospective worker who wants his employer to
                    think that the worker is young. I do not know a
                    source to say that Simlas Ishah does not apply
                    to slaves.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> One may not give bran water
               to animals to drink to inflate the intestines and
               make the hair stand up. One may not be Mekader
               (scratch with a Magredes (comb for animals) or thick
               toothed comb) or Mekartzef (with a Magredes or thin
               toothed comb) to make the hair stand up, or dye old
               Kelim in order that they will look new. One may not
               inflate intestines in order that they will look
               fatty and wide. One may not soak meat in water to
               make it appear white and fatty.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (16):</font></b> Chulin 113a permits rinsing meat,
                    i.e. where this is the custom, for everyone
                    knows this. They will not think that it is
                    white because it is fatty.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ya'avetz:</font></b> One may rinse it a small amount, but
                    not very much.
<br>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> This will encourage others to sell cheaply, and
          the price will decline.
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	Aba Sha'ul says, one may not remove the cut beans.
          Chachamim permit this...
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> Like whom do Chachamim hold?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> They hold like R. Acha;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Acha):</font></b> Anything that the buyer can see
               is permitted.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>MAKING THE MERCHADISE ATTRACTIVE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One may not be Mefarches people, animals or
          Kelim.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> One may not be Mesharbet animals or inflate
          intestines (of a slaughtered animal) nor soak the meat in
          water (to make it appear fatty).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What does Mesharbet mean?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Chachamim of Bavel):</font></b> It is to give to them
          bran water to drink (to inflate the intestines and make
          the hair stand up).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Ze'iri):</font></b> It is to comb with a thick comb.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Shmuel permitted putting silk fringes on a cloak.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Rav Yehudah permitted to starch clothing with colorful
          designs.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Rabah permitted stretching hemp garments (to show off the
          fine threads).
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Rava permitted putting designs on arrows;
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	Rav Papa bar Shmuel permitted putting designs on baskets.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> One may not be Mefarches people,
          animals or Kelim.
<br>
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> That is forbidden only for old Kelim, for it
          makes them look new.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> What does Mefarches mean with respect to
          people?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> It is like the case of an old Kena'ani slave who
          dyed his (white) hair and beard black, and asked Rava to
          buy him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rava:</font></b> A Mishnah says 'the poor should be in your
               household.' (It is better to pay a poor Yisrael to
               serve me.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Papa bar Shmuel bought him. One day, when he
               told the slave to serve him, the slave showed him
               that he was older than Rav Papa's father;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rav Papa applied to himself 'Tzadik mi'Tzarah
               Nechelatz va'Yavo Rasha Tachtav' - the Tzadik (Rava)
               was saved from trouble, the evil one (myself) gets
               the evil in his place.
<br>
<br><center><font color='ff0000' size='+1'><b>*****<b>PEREK EIZEHU NESHECH</b>*****
</b></font></center><p><b>
<br><b></b><b><b><font color='blue'>5) </font></b><font color='blue'>NESHECH AND TARBIS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah) Question:</font></b> What is Neshech (biting, making the
          borrower pay more than he received), and what is Tarbis
          (increase (of the lender's money))?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Neshech is lending four Dinarim to get back five,
          or two Sa'im of wheat to get back three;
<br>
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Tarbis is increasing Peros (like the coming case);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven bought a Kor of wheat for 25 Dinarim, which
               was the going rate. The price rose to 30 Dinarim,
               and he asked for his wheat, in order to sell it and
               buy wine. The seller did not have wheat; he promised
               to give Reuven 30 Dinarim worth of wine, and now he
               has no wine.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Inference:</font></b> The Tana did not give examples of
          Tarbis mid'Oraisa (through a loan), only Tarbis
          mid'Rabanan (through a sale). This implies that
          mid'Oraisa, Neshech and Tarbis are the same!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> The Torah wrote them regarding different
          matters, so they must be different! Neshech is written
          regarding money, and Tarbis regarding food!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Counter-question:</font></b> You cannot find either without the
               other!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> We can find Neshech without Tarbis. He
               lent 100 (Perutos) on condition to get back 120. At
               the time of the loan, 100 Perutos was a Danka (a
               sixth; Rashi - of a Dinar; Ra'avad - of a Kor of
               grain), at the time of the payment, a Danka was 120
               Perutos;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The borrower pays more (Perutos), the lender
                    does not gain (Rashi - he received back the
                    same Danka he lent; Ran - we are thinking that
                    Neshech depends on the time he lends him,
                    Tarbis depends on the time of payment).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> (Ran - no, Neshech and Tarbis both depend
               on the same time.) If it depends on the beginning
               (he stipulated to return 120 for 100), this is
               Neshech and Tarbis. If it depends on the end, (a
               Danka was given, a Danka was returned) there is
               neither Neshech nor Tarbis.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> We can find Tarbis without Neshech. He
               lent 100 on condition to get back 100. At the time
               of the loan, 100 was a Danka (a sixth, of a Dinar or
               Kor), at the time of the payment, 100 was a fifth.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection:</font></b> If it depends on the beginning, this is
               neither Neshech nor Tarbis. If it depends on the
               end, there is both Neshech and Tarbis.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Really, you cannot find one without the
          other. The Torah wrote them separately to forbid Ribis
          with a second Lav.
<br>

sjt:
</p><p>
<font><b>2) THE OLD SLAVE WHO DISGUISED HIMSELF</b></font><b>
<br>OPINIONS:</b> The Gemara relates that an old slave seeking a master dyed the white hair of his head and beard black. He then attempted to sell himself to Rava. Rava said he was not interested in buying him, since the Mishnah says (Avos 1:5), 'Your household [help] should be poor.' The old slave went to Rav Papa bar Shmuel who agreed to buy him. One day, Rav Papa asked the slave to bring him a drink of water. The slave promptly showed Rav Papa his white hair and said, 'Look! I am older than your father!' and he refused to serve Rav Papa. Rav Papa said about himself, 'Tzadik mi'Tzarah Nechelatz va'Yavo Acher Tachtav' -- 'A righteous person is saved from trouble, and another comes in his place' (Mishlei 11:8).
</p><p>
What type of slave was the old man who was selling himself?
</p><p>
(a) <b>RASHI</b> (DH Zivnan) writes that he was an Eved Kena'ani who wanted Rava to buy him. Rava, who knew that he was not a full-fledged Jew, preferred to support the Jewish poor and give them the work of running his household. Rashi adds that the man could not have been an Eved Ivri, a Jewish slave, because the incident took place after Yovel was no longer observed, and only when Yovel is observed can a Jew be an Eved Ivri.
</p><p>
The <b>RITVA</b> has difficulty with Rashi's explanation. The Torah commands, 'l'Olam Bahem Ta'avodu' -- 'They shall be your slaves forever' (Vayikra 25:46), which refers to an Eved Kena'ani. This verse teaches that an Eved Kena'ani must always be put to work, regardless of age (see Gitin 38a). Why, then, was Rav Papa permitted not to make the Eved work just because he was old? Moreover, the <b>RASHBA</b> asks that according to Rashi, the facts of the case are difficult to understand. If the old man was an Eved Kena'ani, he must have already been owned by someone else. It cannot be that he was freed, because a freed Eved Kena'ani becomes a full-fledged Jew, and Rava would not have refused to take him in and give him work.
</p><p>
(b) The <b>RASHBA</b> and <b>RITVA</b> explain that the slave was not an Eved Kena'ani but a full-fledged Nochri.
</p><p>
(c) The Ritva quotes the <b>RA'AVAD</b> who explains that the slave was actually a Jew. He was not a true slave; as Rashi points out, the status of Eved Ivri is not applicable when Yovel is not observed. Rather, the old Jew merely wanted to be hired for a year.
</p><p>
According to this explanation, why did Rava refuse to hire him, claiming that one is supposed to employ the poor? The <b>MAHARAM SHIF</b> explains that Rava refused to hire him because he was not as poor as the others who were either already employed in, or seeking employment in, Rava's household. (Y. Montrose)
</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>BOTH LAVIN APPLY TO BOTH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'Es Kaspecha Lo Siten Lo b'Neshech uv'Marbis
          Lo Siten Ochlecha' - we find only Neshech regarding
          money, and only Tarbis regarding food;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source that Neshech applies also to
          food?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> It says 'Neshech Ochel.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source that Tarbis applies also to
          money?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> We could have learned Neshech of money
          (regarding the borrower) had it said 'Lo Tashich...
          (anything that bites).' 'Neshech Kesef' is extra to teach
          Tarbis of money.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> These are written about the borrower. What
               is the source that the lender also transgresses
               Neshech of food and Tarbis of money?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> We learn a Gezeirah Shavah 'Neshech-Neshech'
               - just like regarding the borrower, both Lavim apply
               to both, also regarding the lender.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What is the source to include everything
               else (as well as money and food)?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> We learn from 'Neshech Kol Davar Asher
               Yishach.'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (to questions (b) and (d) - Ravina):</font></b> We already
          learn Neshech of food and Tarbis of money from 'Es
          Kaspecha Lo Siten Lo b'Neshech uv'Marbis Lo Siten
          Ochlecha.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Indeed, had it said 'Es Kaspecha Lo Siten Lo
               b'Neshech v'Ochlecha b'Tarbis', we would need
               another source;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The verse reversed the order, in order that we
               expound 'Es Kaspecha Lo Siten Lo b'Neshech
               uv'Marbis' (both apply to money), and 'b'Neshech
               uv'Marbis Lo Siten Ochlecha' (both apply to food).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> The Tana learns from a Gezeirah Shavah!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The Tana teaches that had the verse not put
          Neshech and Tarbis next to each other, we could have
          learned from the Gezeirah Shavah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since Neshech and Tarbis are written next to each
               other, we do not need the Gezeirah Shavah.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> What does the Gezeirah Shavah teach?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> It teaches that 'Neshech Kol Davar Asher Yishach'
          (everything else) applies to the lender, for this was
          written only regarding the borrower.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE LAVIM OF ROBBERY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Why must the Torah write Lavim
          forbidding Ribis, robbery and Ona'ah?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> It must teach all three:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had it taught only Ribis, we could not learn to the
               others, for Ribis is a Chidush. The borrower is
               forbidden to give!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had it taught only robbery, that which is (totally)
               against the will of the victim, we could not learn
               to Ona'ah, in which the victim (buys or sells)
               willingly.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Had it taught only Ona'ah, we could not learn to the
               others, for a victim of Ona'ah does not know he was
               cheated, so he cannot pardon it. Regarding the
               others, the victim can pardon his loss.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Suggestion:</font></b> We cannot learn the others from one. Perhaps
          we could learn one from the other two!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Which could we learn from the others?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We could not learn Ribis, for the victim willingly
               gives his money!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We could not learn Ona'ah, for one might have
               thought that it is normal to overcharge or
               undercharge in commerce;
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> We could learn robbery.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We could not learn from Ribis (alone), because it is
               a Chidush. Ona'ah is not a Chidush, we can learn
               from it!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We could not learn from Ona'ah (alone), because the
               victim does not know he was cheated. We can learn
               from Ribis, in which the victim knows what he paid!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The stringency of each is unlike the stringency of
               the other. What is common to both is that he steals.
               We can learn to robbery!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why did the Torah write a Lav regarding
          robbery?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> It forbids withholding wages.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> There is a Lav for withholding wages - 'Lo
          Sa'asok Sachir'!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The Lav of robbery is a second Lav forbidding
          withholding wages.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> We can say that it is a second Lav for Ribis
          and Ona'ah!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> We learn it from context. The Torah wrote it
          regarding a worker.
<br>
<br>

sjt:
<font><b>1) WHAT THE VERSE OF 'GEZEL' TEACHES</b></font><b>
<br>QUESTIONS:</b> The Gemara asks that since the prohibition against Gezel (theft) could have been derived from the prohibitions of Ona'ah and Ribis, why does the Torah specify a separate prohibition of Gezel? It answers that the Torah writes a separate prohibition of Gezel in order to give a second prohibition against cheating one's workers.
</p><p>
(a) Why does the Gemara not answer simply that the Torah is giving a second prohibition for the Isur of Gezel itself? Why does the Gemara need to take the verse out of context and say that it refers to cheating one's workers? (<b>TOSFOS</b> DH la'Avor Alav)
</p><p>
(b) The <b>MISHNEH L'MELECH</b> (Hilchos Malveh v'Loveh 4) asks that the verse of 'Lo Sigzol' should be necessary to teach the prohibition against stealing from Hekdesh. This prohibition cannot be derived from Ribis, since the Torah permits Hekdesh to borrow with Ribis.
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that since Gezel is a 'Lav ha'Nitak l'Aseh' (a prohibition that can be rectified by the performance of a Mitzvas Aseh), one is not punished with Malkus for transgressing the prohibition. Accordingly, it does not make sense that the Torah would give another Lav for Gezel when there would be no practical consequence of a second prohibition. However, one <i>is</i> punished for cheating one's workers, and therefore a second prohibition is relevant (that is, one who transgresses receives <i>two</i> punishments).
</p><p>
This answer is difficult to understand. Cheating one's workers is also a 'Lav ha'Nitak l'Aseh'; just as the Torah requires a thief to return what he stole, the Torah requires an employer to return money to his workers! The <b>MAYIM CHAYIM</b> explains that when the Torah writes two prohibitions for the same act in close proximity to each other, they cancel the prohibition's status as a 'Lav ha'Nitak l'Aseh,' since one positive commandment cannot rectify the transgression of two prohibitions. Hence, the act of cheating workers, which is prohibited by both the verse of 'Lo Sigzol' and 'Lo Sa'ashok' (Vayikra 19:13), is not considered a 'Lav ha'Nitak l'Aseh.'
</p><p>
(b) The <b>MITZPEH EISAN</b> answers that a different verse already prohibits stealing from Hekdesh -- the prohibition against Me'ilah (Devarim 12:17). (Y. Montrose)
</p><p>


<font><b>2) THE 'GEZEL' ELEMENT OF THE PROHIBITION OF 'RIBIS'</b></font><b>
<br>QUESTIONS:</b> Rava asks why the Torah must give three specific prohibitions against stealing -- Ribis, Gezel, and Ona'ah, when one of them would suffice to teach the others. The Gemara concludes that in truth the prohibition of Gezel could have been derived from the prohibitions of Ribis and Ona'ah (through a Tzad ha'Shaveh).
</p><p>
The Gemara makes it clear that the prohibition of Ribis stems from the concept of Gezel. There are a number of problems with this supposition.
</p><p>
1. Why should taking interest, which essentially is nothing more than taking payment in return for the use of one's money, be different from taking rent, which is payment in return for the use of one's object? In the case of rent, the person returns the object to the owner together with the rental fee. Why should a person be prohibited from returning borrowed money together with an interest payment?
</p><p>
2. If Ribis is considered a form of Gezel, then why is it permitted (and, according to some opinions, even a Mitzvah) to take Ribis from a Nochri? One is prohibited to steal from a Nochri!
</p><p>
3. How can Ribis be considered Gezel, theft, when the borrower explicitly asked to borrow money with interest and he willingly pays the interest? Theft is when someone takes something against the will (or without the knowledge or consent) of the owner!
</p><p>
<b>ANSWERS:</b>
<br>(a) Gezel is defined by what the Torah says one is forbidden to take. It is not defined simply as an act of taking something without the knowledge or consent of the owner. The element of Gezel which exists in the prohibition of Ribis is a result of the fact that the Torah curtails one's right to take interest on loans to fellow Jews. Since the Torah prohibits taking interest, doing so constitutes Gezel. This understanding of the element of Gezel involved with Ribis answers all of the questions:
</p><p>
1. The Torah does not prohibit taking a fee for lending one's object (or apartment) to someone else in a rental agreement. It <i>does</i> prohibit taking a fee for lending money, and therefore interest on a loan is considered Gezel, while payment for a rental is not.
</p><p>
2. Since the Torah does not curtail one's rights to take interest on loans to Nochrim, taking interest does not constitute Gezel. (<b>RAV AVRAHAM DOV AUERBACH</b>, Rav of Tiberias)
</p><p>
3. Although the borrower willingly pays the interest, the Torah prohibits the lender from receiving it. Since the Torah prohibits it, it constitutes Gezel.
</p><p>
(b) <b>RAV SHALOM GELBER</b> in <b>NESIVOS SHALOM</b> (Hilchos Ribis, p. 35) explains the difference between renting out objects for a fee and taking interest on loans as follows. When one rents out an object, the use of that object is a form of consumption of the fruits of that object, since one benefits from the use of the object itself. In return for those 'fruits,' the borrower pays a fee. In contrast, in the case of a loan, the fee -- or interest -- is paid not in return for a benefit realized, but to compensate the lender for the loss that he suffers by not being able to profit from the money that he has lent out. The borrower's benefit from using the money comes from his own business ventures for which he uses the money, and it does not come inherently from the money itself.
</p><p>
1. This explains why taking interest on a loan is prohibited, but receiving a fee for renting out an object is permitted. The rental fee is a payment for the benefit realized from the object itself. Interest on a loan is compensation for the lender not having the money in his possession with which to profit.
</p><p>
2. Jews are commanded to perform Chesed for one another with their bodies, time, and money -- 'v'Chei Achicha Imach' (Vayikra 25:36). Thus, they are obligated to perform Chesed even if it means forfeiting the profits which they would have made had they used their time for business and not for Chesed. Likewise, they are obligated to forfeit the profits which they would have made had they used their <i>money</i> for business and not for Chesed (such as lending to their brothers when in need). Taking interest for that passive loss is therefore considered an unjust gain, Gezel.
</p><p>
In contrast, a Jew is not obligated to sacrifice his time or money for the welfare of a Nochri, and therefore money received as interest from a Nochri, to compensate for profits not gained as a result of lending the money, is not considered unjust gain.
</p><p>
3. Since a Jew is obligated to give up his time and money in order to help another Jew, taking money in return for giving such help is considered theft, regardless of whether the recipient agrees to pay interest. (This is similar to answer (a) above.)
</p><p>
(c) <b>RAV MOSHE FEINSTEIN</b> zt'l in <b>DIBROS MOSHE</b> (56:5) writes that when the Gemara here associates Gezel with Ribis, it does not refer to the standard form of Ribis. He points out that it is Rava who says that Ribis involves Gezel. It is Rava who agrees with the view of Rebbi Yochanan (61b) that money paid in violation of the Torah prohibition of Ribis cannot be retrieved by Beis Din. Accordingly, Ribis cannot be actual Gezel if Beis Din cannot force the lender to give it back. Rather, when Rava says that Ribis involves Gezel, he refers to a situation in which the lender takes interest from the borrower forcefully, against his will.
</p><p>
Rav Moshe Feinstein zt'l cites proof for this assertion from the words of the <b>HAGAHOS HA'GRA</b> (Shulchan Aruch YD 161:10) who writes that even according to Rebbi Yochanan, who maintains that ordinary Ribis is not considered Gezel, when the Ribis is taken forcefully it <i>is</i> considered Gezel. (M. Weiner)
</p><p>


<font><b>3) THE NATURE OF THE PROHIBITION OF 'RIBIS'</b></font><b>
<br>OPINIONS:</b> Rava asks why the Torah must give three specific prohibitions against stealing -- Ribis, Gezel, and Ona'ah, when one of them would suffice to teach the others. The Gemara concludes that in truth the prohibition of Gezel could have been derived from the prohibitions of Ribis and Ona'ah (through a Tzad ha'Shaveh).
</p><p>
The Gemara makes it clear that the prohibition of Ribis stems from the concept of Gezel. There are, however, other ways of understanding the nature of Ribis.
</p><p>
(a) The <b>RAMBAN</b> (Devarim 23:20-21) explains that the Isur of Ribis is based on the Torah's dictum that a Jew must do Chesed for his fellow Jew. He proves this from the fact that the verse that prohibits taking interest concludes with a blessing, '... so that Hash-m your G-d will bless you in all of your endeavors...' (Devarim 23:21), just as it concludes the Mitzvah of Tzedakah with a blessing, '... for in return for this matter, Hash-m your G-d will bless you in all of your deeds and in all of your endeavors' (Devarim 15:10).
</p><p>
(b) <b>RAV SAMSON RAPHAEL HIRSCH</b> zt'l (in his commentary to Devarim 23:20) writes that the nature of the Isur of Ribis is to show that Hash-m is the Master and Owner of all property. (This is similar to the nature of the Mitzvah of Shabbos and the Mitzvah of Shemitah, as Rav Hirsch explains.) This is expressed by restricting the lender from taking interest on what he considers to be his own money. By restricting him from taking interest, the Torah reminds him that the world and everything in it is Hashem's (see Tehilim 24:1).
</p><p>
(c) The <b>KLI YAKAR</b> (Vayikra 25:36) explains that the nature of the Isur of Ribis is a reinforcement of the Midah of Bitachon, trust in Hash-m. He writes that lending with interest is a no-risk source of income, and thus the one who lends with interest is prone to lose his trust in Hash-m that it is Hash-m Who provides man with his livelihood. The profits of other businessmen, in contrast, are not assured and are not risk-free, and thus they maintain their Bitachon in Hash-m. (M. Weiner)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SHOULD WE TRY TO FULFILL TECHELES NOWADAYS?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> The Torah mentions Yetzi'as Mitzrayim
               regarding Tzitzis to teach that just like Hash-m
               knew the true fathers to kill the firstborns, He
               knows who puts Kala Ilan (blue tree sap) on his
               garment and says 'it is Techeles.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Menachos 38a (Mishnah):</font></b> Techeles is not Me'akev the
               Lavan (threads that are white, like the garment),
               and Lavan is not Me'akev Techeles.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Gemara) Suggestion:</font></b> Our Mishnah is unlike Rebbi!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - Rebbi):</font></b> 'U'Re'isim Oso' - Techeles
                    and Lavan are Me'akev each other;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Chachamim say, they are not Me'akev each other.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection (Shmuel):</font></b> The Mishnah is even like Rebbi.
               It teaches that the order is not Me'akev.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> The Mitzvah is to put the Lavan
                    first. If one put Techeles first, he was
                    Yotzei, but he missed (ideal fulfillment of) a
                    Mitzvah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rava):</font></b> 'Lavan is not Me'akev Techeles' teaches that
               if the Lavan snapped and the Techeles remains, it is
               Kosher.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 40a (Beraisa - R. Eliezer bar R. Tzadok):</font></b> Chachamim
               exempted a linen garment from Tzitzis due to
               ignoramuses. They did not teach that only the
               Mitzvah of Techeles permits Kilayim, lest they wear
               Tzitzis dyed with Kala Ilan.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> Even if they do so, even though they do
               not fulfill the Mitzvah of Techeles, they fulfill
               the Mitzvah of Lavan!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> Since the Mitzvah of Lavan can be fulfilled
               with linen threads (without transgressing Kilayim),
               the Mitzvah does not override Kilayim.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 42b (Rav Shmuel bar Rav Yehudah):</font></b> To dye Techeles,
               we take the blood of the Chilazon (a fish) and cook
               it with dying ingredients such as alum...
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> 44a (Beraisa):</font></b> The Chilazon has the form of a fish.
               Its color is like the sea. Techeiles is made from
               its blood. The Chilazon comes up only once every 70
               years, therefore Techeiles is expensive.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Megilah 6a:</font></b> Zevulun was complaining about his
               portion. Hash-m said 'I will make your brothers need
               you, through the Chilazon.'
<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 Tzitzis 2:2):</font></b> To dye Techeles
               threads, we take the blood of the Chilazon, a
               Techeles-colored fish whose blood is as black as
               ink. It is found in Yam ha'Melach. We cook its blood
               with cumin and other ingredients like dyers do. We
               put the wool in until it is like the color of the
               sky.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Tiferes Yisrael, introdction to
                    Mo'ed, Klalei Bigdei Kodesh DH Hinei):</font></b> Yam
                    ha'Melach is in Yehudah's portion. The Chilazon
                    is found in Zevulun's portion!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Answer (Ma'adanei Yom Tov, on Halachah 7 of
                    Rosh Halachos Kilayim (in Nidah Perek 9),10):
                    The Rambam uses 'Yam ha'Melach' to refer to
                    salt-water seas.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (4):</font></b> If we checked Techeles and found out
               that it was dyed with another blackening agent that
               does not last, it is Pasul.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Ba'al ha'Ma'or (Shabbos 12a):</font></b> I hold that Lavan and
               Techeles are Me'akev each other. Even though a
               Beraisa says that they are not Me'akev the other, we
               establish it to be like an individual, R. Yitzchak.
               Even though the Beraisa called his opinion
               'Chachamim', the Halachah follows Rebbi against an
               individual. Amora'im strove to explain the Mishnah
               like Rebbi, unlike the simple reading. This is why
               Bahag omitted this Mishnah. Our custom follows
               Bahag.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Milchamos Hash-m):</font></b> The Amora'im
                    strove to explain the Mishnah like Rebbi, for
                    he codified it! Gitin 4a says that we tried to
                    explain the Mishnah like R. Meir, even though
                    the Halachah does not follow him, for a Stam
                    Mishnah is (usually) R. Meir. Here, we follow
                    R. Yitzchak, for his opinion is called
                    Chachamim. Also, R. Noson, R. Yosi ha'Glili,
                    and R. Yochanan ben Nuri all hold like R.
                    Yitzchak. We rule like Rebbi against a
                    colleague, but not against two or more
                    colleagues. Also, the Gemara said that even
                    Kala Ilan fulfills the Mitzvah of Lavan (even
                    without Techeles). According to the Ba'al
                    ha'Ma'or, there is no Mitzvah nowadays. If he
                    will say that Chachamim decreed, where did they
                    decree? One may not wear Tzitzis that do not
                    fulfill the Mitzvah in Reshus ha'Rabim on
                    Shabbos! From the days of the Ge'onim, we wear
                    Tzitzis with only Lavan. Chachamim always enact 
                    like Torah law. If both were Me'akev, Chachamim
                    would not enact to wear just one, for this does
                    not commemorate the Torah Mitzvah!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Tosfos (42b DH v'Simemanim):</font></b> It is astounding that
               one may mix other ingredients with Techeles! Perhaps
               together with the ingredients it is called Techeles.
               Rashi explains that the Techeles is soaked in other
               ingredients.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Medrash Rabah (Shlach 17:5, cited by Gra OC 9:3):
               Nowadays, we have only Lavan, for Techeles was
               Nignaz (hidden).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Etz Yosef:</font></b> This means that it was forgotten.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (OC 9:2):</font></b> Nowadays that there is no
               Techeles, we do not put wool strings on a linen
               garment or vice-versa.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mishnah Berurah (7):</font></b> Shatnez in Tzitzis was
                    permitted only when we had Techeles and totally
                    fulfilled the Mitzvah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Noda b'Yehudah (1 OC 1):</font></b> The Shulchan Aruch
                    (32:48) disqualifies Tefilin boxes plated with
                    gold. This is when the covering stands by
                    itself and is not Batel to the box. When we
                    blacken Tefilin, the ink is Batel to the
                    leather of the box. It is not a problem of
                    adding to the Mitzvah or covering the boxes. We
                    learn a Kal va'Chomer from Techeles. The Torah
                    was very particular about it, and even so one
                    may mix other ingredients with it. Tosfos was
                    astounded by this. I say that since Techeles
                    dyes the wool only through the ingredients, the
                    ingredients are part of the dye.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Question (Igros Moshe YD 2:133 DH Aval):</font></b> What
                    was the Noda b'Yehudah's proof from Techeles?
                    Tosfos asked that since the Torah requires
                    Techeles, other ingredients may be added only
                    if they are Batel to it. One may not be Mevatel
                    l'Chatchilah! Tosfos answered that perhaps it
                    is called Techeles only with the ingredients.
                    I.e. the tradition was that the blood must be
                    mixed with ingredients. If the blood alone is
                    used, it is Pasul! The blood itself is black,
                    and the other ingredients make it bluish. The
                    Rambam disqualifies if another blackening agent
                    was used. He did not mention Kala Ilan, for any
                    other blackening agent disqualifies. Perhaps he
                    knew of others that become like Techeles
                    through other ingredients. All such agents
                    other than Techeles do not last. Presumably, if
                    wool was dyed Techeles, and afterwards it was
                    dyed with Kala Ilan, they are disqualified.
                    Surely, if Kala Ilan was mixed with other
                    blackening agents, it is Pasul. The blood must
                    be the only blackening agent.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Yeshu'os Malko (OC 2):</font></b> It seems that Techeles
                    was Nignaz in the days of the last Amora'im.
                    Tana'im argue about whether or not Techeles is
                    Me'akev the Lavan. The Halachah was not
                    decided, and there was danger. The Ari Zal
                    wrote that there is no Mitzvah of Tzitzis
                    nowadays, for the Halachah was decided that it
                    is not Me'akev. It says 'l'Dorosam' regarding
                    Tzitzis, a guarantee that the Mitzvah will be
                    for all generations. It does not say so about
                    Techeles. The Ba'al ha'Ma'or and Ri bar Baruch
                    rule like Rebbi, that nowadays Tzitzis is only
                    mid'Rabanan. All the Poskim rejected them. Rav
                    Yuda Lebush ha'Kohen said that the tint (ink)
                    fish is the Chilazon, for it has all the
                    Simanim. This is mere reasoning. It is found
                    every year, and in other seas as well. He said
                    that we are obligated to try to fulfill the
                    Mitzvah, even if it is a Safek. The Gemara said
                    that Kala Ilan does not fulfill the Mitzvah of
                    Techeles, but it fulfills Lavan! Most Poskim
                    hold like this; some disagree. However, since
                    we do not know that clearly that it is
                    Techeles, and Gedolim hold that nowadays it is
                    Nignaz and we need not have Techeles, we should
                    not abandon what is Vadai and be stringent due
                    to Safek. I do not say to remove this (alleged)
                    Techeles, since the Tzitzis are not
                    disqualified.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Beis Yosef (8 DH v'Nikreis):</font></b> Ba'al ha'Itur
                    commends to make a commemoration of Techeiles
                    (and separate two strings from the other two).
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Aruch ha'Shulchan (2):</font></b> Years ago, someone
                    claimed that he found the Chilazon and made
                    Techeiles. He attracted some followers; the
                    Gedolim and Klal Yisrael did not agree. It is
                    Batel until Mashi'ach will come.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (5:1):</font></b> Some say that the Tzitzis must
               be the same color as the garment. Meticulous people
               do so.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Ashkenazim make Tzitzis only white.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (8):</font></b> A Meticulous person should make a
                    white garment and white Tzitzis to fulfill all
                    of the opinions.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Eshel Avraham (Pri Megadim 6):</font></b> Eliyahu Rabah
                    (9:5) says that his grandfather made white
                    Tzitzis for a blue garment, to commemorate
                    Tzitzis. Our custom is like this. Nowadays,
                    people make a blue brim on the garment. The
                    Tzitzis are the color of the primary part of
                    the garment.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Teshuvos v'Hanhagos (4:5):</font></b> Piskei Tosfos
                    (Menachos 118) says that one who deviates is
                    called a commoner, for he makes it as if there
                    are two Toros in Yisrael. Perhaps he transgresses
                    Lo Sisgodedu (making factions). Also, some say
                    that one is Yotzei only if one or two complete
                    strings are Techeiles. If one received this custom
                    from his fathers or Rebbi he may persist, but he
                    must stipulate that if it is not the Mitzvah, he
                    does not intend for the Mitzvah, lest he transgress
                    'Bal Tosif.' Others should not begin to wear Techeiles.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Ohr l'Tziyon (2:44:13):</font></b> If one's fathers did
                    not wear Techeiles, he should not. If it is not
                    really Techeiles, there is concern for Kala
                    Ilan (pretending to fulfill the Mitzvah).
<br>

<p>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> What do we learn from 'Lo Signovu'?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> 'Lo Signovu' one may not steal with
          intent to (give back, and in the interim) cause pain, or
          in order to pay Kefel.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>FALSE WEIGHTS AND MEASURES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav Yemar):</font></b> Why did the Torah need to write a
          Lav for (false) weights?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> This forbids putting one's weights in
          salt (Rashi - to make them heavier, to get more when
          buying; R. Tam - to make them lighter, to give less when
          selling).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> That is pure robbery, no extra verse is
          needed!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> One transgresses the Lav of weights from the time
          he puts them in salt, even before he uses them.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'Avel b'Mishpat b'Midah' refers to measuring
          land;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If land should be divided equally, one may not
               measure to one party in winter (Rashi - when the
               rope is moist and stretches out properly; R.
               Chananel - when the land contracts) and to the other
               party in summer.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'B'Mishkal' forbids putting one's weights in salt;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> 'Uva'Mesurah' - one who sells wine may not make it
               foam (to make it look like the buyer's Kli is full).
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We may learn a Kal va'Chomer. Mesurah is a tiny
                    measure, a 36th of a Log, yet the Torah warns
                    about it. All the more so, one may not steal a
                    larger measure!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Why does the Torah mention Yetzi'as
          Mitzrayim regarding Ribis, Tzitzis, and weights?
<br>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Just like in Mitzrayim, Hash-m knew
          everyone's true father to kill the firstborns, Hash-m
          knows (and will punish) one who falsely claims that his
          money belongs to a non-Jew in order to lend it with
          Ribis, one who puts his weights in salt, and one who uses
          blue tree sap to (cheaply) feign the Mitzvah of putting
          threads dyed with Techeles on the corners of his garment.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rav Chanina of Sura):</font></b> Why does the Torah
          mention Yetzi'as Mitzrayim regarding Sheratzim (vermin)?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> Just like in Mitzrayim, Hash-m knew the
          fathers and killed the firstborns, Hash-m knows (and will
          punish) one who mixes innards of Tamei fish (mentioned in
          this Parshah) with those of Tahor fish and sells them to
          Yisrael.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Rav Chanina of Sura):</font></b> My question was, why does
          the Torah say 'ha'Ma'aleh' (who brings you up, from
          Mitzrayim) regarding Sheratzim?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Ravina - Beraisa - Tana d'Vei R. Yishmael):</font></b> The
          merit that Yisrael will not become Teme'im through
          Sheratzim sufficed for Hash-m to redeem them from
          Mitzrayim.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Is the reward for refraining from (eating)
          Sheratzim greater than that of refraining from Ribis and
          false weights and fulfilling Tzitzis?!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> Even though the reward is not greater, they are
          exceedingly disgusting to eat.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>FIXED RIBIS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> What is Tarbis? It is one who increases Peros.
          If Reuven bought a Kor of wheat...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Also the previous examples were Tarbis! (We
          concluded that every case of Neshech is Tarbis.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (R. Avahu and Rava):</font></b> The previous cases were Ribis
          mid'Oraisa. The coming cases are mid'Rabanan;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the previous cases, 'Yachin v'Tzadik Yilbash' (if
               the lender died, his heir may keep the Ribis).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> May we infer that in the later cases
               (mid'Rabanan Ribis), the heir must return it?!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Correction:</font></b> Rather, even in the previous cases, the
               heir may keep it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> The previous cases are fixed Ribis. The coming cases
               are Avak (dust of) Ribis.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> Beis Din forces the lender to return fixed
          Ribis, but not Avak Ribis.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> Beis Din does not force the lender to
          return even fixed Ribis.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Question:</font></b> What is R. Yochanan's source?)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (R. Yitzchak):</font></b> 'Ba'Neshech Nosan v'Tarbis
          Lokach va'Chai Lo Yichyeh' - he will die (b'Yedei
          Shamayim). It will not help to return the Ribis.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ada bar Ahavah):</font></b> '...V'Yoresa me'Elokecha'
          - one returns Ribis because he fears Hash-m. Beis Din
          does not force him.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #3 (Rava):</font></b> He learns from the end of the first
          verse '(Lo Yichyeh) Mos Yumas Damav Bo,' This equates
          those who lend on Ribis are compared to murderers;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like one cannot undo murder, one cannot undo
               Ribis by returning it.
<br>

<p>

sjt:
</p><p>
<font><b>4) ONE WHO STEALS WITH INTENT TO RETURN THE STOLEN OBJECT</b></font><b>
<br>QUESTION:</b> The Gemara derives from the verse of 'Lo Tignovu' (Vayikra 19:11) that the Torah prohibits stealing even when one steals merely to aggravate the victim, and even when one steals with intent to pay Kefel to the victim (such as when the thief wants to give a gift to his friend but he knows that his friend will not accept a gift).
</p><p>
Why is a special source in the Torah needed to teach that one is prohibited to steal with intent to aggravate the victim? Why would one have thought that such stealing, which has criminal intent, would have been permitted?
</p><p>
<b>ANSWERS:</b>
<br>(b) The <b>RITVA</b> answers (in his second approach) that the Gemara refers to one who steals with intent to return the stolen object (after he causes anguish to the victim). One might have thought that such stealing is not included in the Isur since the thief does not intend to keep the item that he steals but intends to return it.
</p><p>
(b) The <b>RITVA</b> (in his first approach) explains that without a special source to teach that stealing with such intent is forbidden, one might have thought that it is not included in the Isur of stealing since the thief -- who is not stealing the item because he wants it for himself -- derives no personal pleasure from the item.
</p><p>
If, however, the thief steals it with intent to return it, then indeed he has not transgressed the Isur of stealing.
</p><p>
<b>RAV MOSHE FEINSTEIN</b> zt'l (in <b>DIBROS MOSHE</b>, He'oros, p. 427) questions this approach. How is it possible to suggest that a thief who steals an object with intent to return it has not transgressed the Isur of stealing? If, as the Gemara here says, the Torah forbids one from stealing with intent to pay Kefel, then it also certainly forbids one from stealing with intent to pay back the object itself. Moreover, why would one have thought that deriving pleasure from the stolen item is a condition for transgressing the Isur against stealing? The very act of taking someone else's property without permission is what defines the act of stealing, and not whether the thief derives benefit from the stolen object!
</p><p>
Rav Moshe Feinstein zt'l rules in accordance with the Ritva's second approach, that the Isur of stealing applies even when one steals with intent to return the stolen object. He proves this from the words of the <b>RAMBAM</b> (Hilchos Geneivah 1:2) and the <b>TUR</b> (CM 348:9). (M. Weiner)
</p><p>


<font><b>5) ONE WHO STEALS WITH INTENT TO HARASS</b></font><b>
<br>OPINIONS:</b> The Gemara teaches that one is not allowed to steal 'Al Menas l'Meikat.' <b>RASHI</b> (DH l'Meikat) explains that this refers to stealing with intent to harass. Does this mean that the person steals the object and intends to give it back after he has pained the victim, or does it mean that the thief merely has no intent to use the object for himself, but he also has no intent to return it?
</p><p>
(a) The <b>SHULCHAN ARUCH</b> (CM 348:1) rules: 'It is forbidden to steal even a miniscule amount according to Torah law, and it is forbidden to steal even in a playful manner, and even on condition to return [the object], or in order to pay double, or in order to cause pain. Every form [of stealing] is forbidden in order that one not accustom himself to this.'
</p><p>
The <b>S'MA</b> (CM 348:2) writes that when the Shulchan Aruch mentions the case of stealing 'in order to cause pain,' he refers to the case in which the thief intends to return the object. What does the Shulchan Aruch mean when he says, in a separate case, 'and even on condition to return [the object]'? The S'ma explains that this refers to one who steals an object with intent to use it for his own needs and then to return it to the owner. This is also implicit in the words of the <b>RAMBAM</b> in <b>SEFER HA'MITZVOS</b> (Mitzvah 264), where the Rambam defines 'Al Menas l'Meikat' as 'to pain the owner and to worry him, and afterwards he will return it to him.'
</p><p>
(b) The <b>SHITAH MEKUBETZES</b> writes that some explain that 'Al Menas l'Meikat' means with intent to cause pain and then to return the object. The Shitah Mekubetzes questions this explanation from the fact that people do this all the time, and thus it surely cannot be considered Gezel. The Shitah Mekubetzes quotes another opinion that explains 'Al Menas l'Meikat' to mean stealing with intent to cause pain without intent to give back the item. The thief does not use the item; he steals it only so that the owner should suffer from its loss.
</p><p>
The <b>KETZOS HA'CHOSHEN</b> (348:1) quotes the opinion of Shitah Mekubetzes and the opinion of the Rambam in Sefer ha'Mitzvos. He comments that perhaps a parent is permitted to steal an object from a child, with intent to give it back, in order to educate his child to keep his things in their proper place. The parent certainly does not have intent to cause pain to the child. However, a friend should never do such a thing, since he likely will have in mind intent to harass his friend and not merely to educate him.
</p><p>
It is important to note that other prohibitions are involved when one steals with intent to harass, such as the Mitzvah of 'v'Ahavta l'Re'acha Kamocha.' <b>RAV CHAIM PALAGI</b> in <b>TOCHACHOS CHAIM</b> writes that a person who does such a thing is likely to be cursed by the victim, who will wish ill on whoever stole his object. He writes that he knows of several cases in which people died young after they were cursed by people from whom they stole, even though they intended to return the objects. (See also <b>ATARAH L'MELECH</b> of <b>RAV PAM</b> zt'l, who strongly decried this practice. He added that even the game that some adults play wherein they tease children by taking away a toy temporarily is included in this category.) (Y. Montrose)
</p><p>


<font><b>6) RETRIEVING THE INTEREST FROM THE LENDER</b></font><b>
<br>QUESTION:</b> Rebbi Elazar and Rebbi Yochanan disagree about whether money paid as interest in a case of Ribis d'Oraisa ('Ribis Ketzutzah') is retrievable in Beis Din. Rebbi Elazar says that Beis Din can force the lender to return the money, while Rebbi Yochanan says that Beis Din cannot force the lender to return the money.
</p><p>
<b>RASHI</b> (DH Ad Kan Ribis Ketzutzah) writes that according to the opinion that the Ribis is retrievable, Beis Din can force the lender to give it back when the borrower demands it from him during his lifetime. (This is also the ruling of the <b>TAZ</b> (CM 161:3).)
</p><p>
Why should Beis Din wait until the borrower demands the Ribis back? According to the opinion that the Ribis must be returned, the Ribis must be returned because the Torah says, 'v'Chei Achicha Imach' -- 'and your brother shall live with you' (Vayikra 25:36), meaning that the lender must give back the Ribis so that his fellow Jew can live. Since Beis Din is empowered to enforce all Mitzvos Aseh, why should Beis Din not be able to force the lender to fulfill this Mitzvas Aseh to return interest? Why must Beis Din wait until the borrower makes a claim in court?
</p><p>
Moreover, the Gemara in Bava Kama (94b) clearly implies that one must return Ribis even when the borrower does not demand it. Why, then, does Rashi say that only when the borrower demands it must it be returned? (<b>KETZOS HA'CHOSHEN</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>KENESES HA'GEDOLAH</b> and the <b>KETZOS HA'CHOSHEN</b> suggest that Rashi is not describing the Halachah when he says that Ribis must be returned only when the borrower demands it. Rather, Rashi is describing the normal situation: the borrower usually demands his money back right away.
</p><p>
(b) The <b>CHASAM SOFER</b> here understands that Rashi is making a Halachic qualification to the law that Ribis must be returned. (He does not understand the words of Rashi literally, though, as the Taz understands them.) He explains that Rashi mentions that the Ribis must be returned when the borrower demands it only because Rashi is explaining the view of this particular Amora, Rava. Rava (as Tosfos proves) maintains that Ribis <i>cannot</i> be retrieved in Beis Din ('Ribis Ketzutzah Eino Yotzei b'Dayanim'), and therefore the only situation in which Beis Din may retrieve the Ribis is one in which the borrower demands it back. The reason why Beis Din may retrieve it when the borrower demands it is due to Rava's opinion elsewhere (Temurah 4b) that 'Iy Avid Lo Mehani' -- if a person does something which the Torah prohibits, his act is ineffective (and thus the money that the lender took as interest does not legally become his, and thus the borrower may claim it back in Beis Din). (M. Weiner)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>MUST ONE RETURN FIXED RIBIS?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Nachman bar Yitzchak):</font></b> R. Elazar learns from 'v'Chei
          Achicha Imach' - return it, in order that the borrower
          will live.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What does R. Yochanan learn from this verse?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Beraisa - Ben Petura):</font></b> If two were in a
          wilderness, and one had a flask of water sufficient to
          enable one of them to return to civilization, but if they
          share it, both will die, it is best that they share the
          water, and neither will see the other die;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Akiva:</font></b> 'V'Chei Achicha Imach' (your brother will
               live with you) - your own life takes precedence over
               another's life.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (against R. Yochanan - Beraisa):</font></b> If a man died,
          and left to his orphans money of Ribis that he collected,
          even if they know this, they need not return it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> They need not return it, but their father
               would have to return it!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, even their father is exempt. The Beraisa
          discusses the children for parallel structure to the
          Seifa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Seifa):</font></b> If their father left them a cow, garment or
               any specific item, they must return it for the honor
               of their father.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Children need not honor such a father!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Do not curse a Nasi of your nation' refers to one
               who acts like your nation. (We are not concerned for
               honor of the wicked)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> We answer like Rav Pinchas answered (elsewhere).
          The case is, the father repented.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If he repented, he should have returned
               it!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> He died before he was able to.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Thieves or people who lent on Ribis:
          even if they collected, they return it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> The expression 'collected' does not apply
               to thieves!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If they stole, they stole! If they did not
                    steal, why are they called thieves?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> 'Thieves' refers to people who lent on
               Ribis. Even if they collected, they return.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Tana'im argue about whether or not it must be
          returned.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (Beraisa - R. Nechemyah and R. Eliezer ben Yakov):
               The lender and cosigner do not transgress a Lav and
               they are not lashed because they can correct their
               sin through a Mitzvas Aseh.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> The Aseh is returning the Ribis.
               Chachamim argue, and say there is no such Aseh.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, the Aseh is to tear the loan document.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Do R. Nechemyah and R. Eliezer ben Yakov hold
          that we consider a document as if it was already
          collected (because it puts a lien on the borrower's
          land)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they do, the lender and cosigner already
               transgressed when they wrote the document, and they
               must tear the document;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Similarly, it the Ribis was paid, they must
                    return the money!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If we do not consider a document as if it was
               already collected, they did not transgress anything.
               Why do Chachamim argue?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> They consider a document as if it was already
          collected; Chachamim obligate for Shuma (setting Ribis
          upon the borrower).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Support (Mishnah):</font></b> The following transgress a Lav: the
          lender, the borrower, the cosigner and the witnesses.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Granted, the first three did an action.
               What did the witnesses transgress?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> We conclude that they are liable for Shuma.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Rav Safra):</font></b> Any case in which the courts of Nochrim
          force the borrower to pay the lender, we make the lender
          return to the borrower. When they do not force the
          borrower to pay, we do not make the lender return it.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> They force a borrower to repay a loan
          of a Se'ah of Peros on condition to return a Se'ah, and
          we don't force the lender to return it!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer (Rav Yosef):</font></b> They consider that to be return of a
          deposit. Rav Safra refers to what they collect as Ribis.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> If one who takes land for collateral
          and eats the Peros without deducting from the loan, they
          force the borrower to pay (if he took some of the Peros),
          and we do not make the lender return it!
<br>
<br>

sjt:
<font><b>1) WHOSE LIFE COMES FIRST?</b></font><b>
<br>QUESTION:</b> Rebbi Elazar derives from the verse, 'v'Chei Achicha Imach' (Vayikra 25:36), that Ribis taken unlawfully must be returned 'so that the borrower will be able to live.' Rebbi Yochanan disagrees and maintains that the verse teaches a different Halachah, the Halachah expressed in the Beraisa. The Beraisa teaches that if two people are traveling in the desert and one of them has a flask of water, but it contains only enough water to enable one of them to reach civilization alive, Ben Petura rules that it is better for them to share the water even though neither one will survive, rather than to have one of the drink all of the water and watch the other person die. Rebbi Akiva disagrees and derives from the verse, 'v'Chei Achicha Imach,' that one's own life takes priority over the life of his fellow man, and therefore the owner of the flask should drink the water and live.
</p><p>
The Beraisa implies that without the verse 'v'Chei Achicha Imach,' logic would support the ruling of Ben Petura. The reasoning for this is that as soon as the other person is about to die of thirst, the owner of the flask would be required to give him enough water to keep him alive because of the Mitzvah of 'Lo Sa'amod Al Dam Re'echa' (Vayikra 19:16), the injunction not to let one's fellow man die. The owner of the flask would then take a drop of water for himself to prevent himself from dying, but he would need to leave over whatever he does not immediately need so that he could help the other person remain alive.
</p><p>
<b>TOSFOS</b> in Sanhedrin (73b) and elsewhere writes that although a person must give up his life rather than kill another Jew, if he is faced with an option of <i>refraining</i> from doing an action and thereby causing another Jew to die, he is not required to give up his life, and he indeed may refrain from the action. The Halachah of 'Yehareg v'Al Ya'avor' applies only when a person is asked to do an <i>action</i> which will kill someone else, but not an <i>inaction</i>. Why, then, should logic dictate that a person should offer his friend the flask to prevent him from dying? Since the life of the owner of the flask is at stake, and he can save his life with an <i>inaction</i> (i.e. not giving the flask to his friend), 'Yehareg v'Al Ya'avor' should not apply and he should be allowed to keep the water for himself in order to stay alive!
</p><p>
In fact, in this case the prohibition that the owner of the flask will transgress by not giving the water to the other person is not the Isur of murder, 'Lo Sirtzach,' but rather the Isur of 'Lo Sa'amod Al Dam Re'echa,' and thus he certainly should be permitted to transgress the Isur through an inaction when his life is at stake. (<b>CHIDUSHEI RABEINU CHAIM HA'LEVI</b>, Hilchos Yesodei ha'Torah 5:1, who uses this question as a proof against Tosfos; see also </p><center><font color='ff0000'><b><b>HE'OROS B'MASECHES BAVA METZIA</b> here.)
<br></b></font></center><p>
<br><b>ANSWERS:</b>
<br>(a) The <b>CHAZON ISH</b> (in his comments to Chidushei Rabeinu Chaim there, and in Choshen Mishpat, Likutim #20 to this Daf) suggests that since the life of the owner of the flask is not at immediate risk at the moment that he gives the water to his companion to drink, it is not comparable to a case in which a person's life is directly threatened. Although he might die eventually as a result of the lack of water, nevertheless his companion's immediate need overrides the possible long-term need of his own. A person may not transgress a Mitzvah in order to prolong his life if there is no immediate threat to his life at the present moment.
</p><p>
(b) The Chazon Ish adds that a case can be contrived in which the owner of the flask indeed will be doing an action that will endanger his companion's life. Such a case exists, for example, when there are <i>three</i> people walking together in the desert, and one of them has an extra flask of water and the other two have none. It should be prohibited for the owner of the flask to give the entire flask to one of the two others, because by doing so he will be causing the death of the third person through an action. Rebbi Akiva, who learns from 'v'Chei Achicha Imach' that the owner's life takes precedence, would rule that the owner has the prerogative to give the flask to whomever he chooses.
</p><p>
(c) Another answer may be suggested as follows. When the person who owns the flask drinks the water, he is doing an action. It is that action that is prohibited because of the threat to his companion's life. Although the act of drinking cannot be compared to an act of killing ('Lo Sirtzach'), it <i>is</i> a transgression of 'Lo Sa'amod Al Dam Re'echa,' because if he drinks even a drop it will prevent his companion from reaching civilization alive. Therefore, neither the owner nor his friend should drink from the flask, because by doing so he will actively cause the other to die. Why, then, does Ben Petura say that both of them should drink from the flask? He should say that <i>neither</i> may drink from the flask!
</p><p>
The answer is, as the Toras Kohanim writes, that Ben Petura also learns his ruling from 'v'Chei Achicha Imach.' He understands the verse to mean that 'you and your brother shall <i>live</i> together' (and not die together).
</p><p>
Accordingly, the Gemara's wording is precise when it says that Rebbi Yochanan uses the verse of 'v'Chei Achicha Imach' '*for the way the Beraisa uses them*.' That is, whether he rules like Ben Petura or like Rebbi Akiva, he uses the verse for the Halachah of the Beraisa. (When Rashi (DH b'Din and DH Lav) writes that Rebbi Yochanan learns the Halachah of <i>Rebbi Akiva</i> from 'v'Chei Achicha Imach,' he simply may be choosing to express the Halachic opinion.) (M. Kornfeld)
</p><p>


<font><b>2) THE OBLIGATION TO RETURN 'RIBIS KETZUTZAH'</b></font><b>
<br>QUESTION:</b> Rebbi Elazar and Rebbi Yochanan disagree about whether one must return Ribis Ketzutzah that one collected from a borrower. The Gemara cites proof for Rebbi Elazar's opinion that one must return the Ribis from a Beraisa which states so explicitly.
</p><p>
In order to defend the view of Rebbi Yochanan, the Gemara says that this matter might be the subject of a Machlokes Tana'im, and the Gemara cites a different Beraisa in which the Tana'im disagree about whether the lender receives Malkus for collecting Ribis or whether he is exempt because he has a way of removing the Isur that he did (i.e. by returning the money). According to the first Tana, the lender receives Malkus and has no obligation to return the money. This Tana supports Rebbi Yochanan's opinion. The Gemara rejects this defense of Rebbi Yochanan and says that neither Tana in the Beraisa would exempt the lender from Malkus because he must return the money. Rather, the Tana who exempts the lender from Malkus does so because the lender may destroy the Shtar. <b>RASHI</b> (DH Lo) explains that the Gemara means that according to both Tana'im, returning the money does not exempt the lender from Malkus, because the Isur of Ribis is not a 'Lav ha'Nitak l'Aseh,' a prohibition that is rectifiable by the performance of a Mitzvas Aseh to return the money.
</p><p>
The flow of the Gemara seems illogical. The Gemara attempts to reject the support which it brought for Rebbi Yochanan from this Beraisa, and thus one would expect the Gemara to say that both Tana'im agree with Rebbi Elazar that the money must be returned. Instead, the Gemara seems to say that <i>both</i> Tana'im agree that the money need <i>not</i> be returned, and thus the Beraisa <i>does</i> support Rebbi Yochanan! (Because of this question, <b>TOSFOS</b> (DH Lo) explains the Gemara differently from Rashi.)
</p><p>
<b>ANSWER:</b> The <b>RAMBAN</b> and other Rishonim explain that according to Rashi, the Gemara <i>does</i> mean that both Tana'im agree with Rebbi Elazar and maintain that Ribis Ketzutzah must be returned. When the Gemara says that the transgression of the Isur of Ribis is not rectified by the Mitzvas Aseh to return the money, it does not mean that there is no Mitzvah at all to return the money. Rather, it means that the Mitzvah to return the money does not serve to rectify the wrongdoing of taking Ribis, but it is an independent Mitzvah 'to return it to the borrower in order that he may live.' The <b>RASHBA</b> cites proof for this from the fact that the borrower is also commanded not to pay Ribis. Obviously, the Isur of Ribis is not merely a prohibition against taking someone else's money, but rather it is a prohibition against participating in such a transaction. Thus, it cannot be compared to the Mitzvah to return a stolen object, which rectifies the wrongdoing of stealing (see Makos 16a).
</p><p>
This approach also answers why the Gemara does not ask what Rebbi Elazar does with the verses that Rebbi Yochanan cites to prove that Ribis need not be returned (see Ritva). Rebbi Elazar agrees that the Ribis is 'l'Misah v'Lo l'Hishavon' -- Ribis is punishable with death and cannot be returned. However, this does not mean that there is no Mitzvah to return it. Rather, it means that returning it is an independent Mitzvah and does not serve to rectify the wrongdoing or to lessen the perpetrator's punishment.
</p><p>


<font><b>3) THE EXEMPTION FROM 'MALKUS' FOR TRANSGRESSING THE PROHIBITION AGAINST 'RIBIS'</b></font><b>
<br>QUESTION:</b> The Gemara concludes that Tana'im disagree about whether the Isur of 'Lo Sesimun' (Shemos 22:24) is punishable with Malkus as soon as a Shtar with Ribis is written, or it is exempt from Malkus before the Ribis is actually collected since the Shtar can be destroyed. When Rebbi Nechemyah and Rebbi Eliezer ben Yakov teach that the Malveh and Arev (that is, an Arev Kablan who collects the Ribis from the Loveh after the Malveh collected it from him; see Ritva here and Rashba to 71b) are exempt from Malkus, it is because they can destroy the Shtar without collecting the Ribis and thereby not transgress the Isur of 'Lo Sesimun.'
</p><p>
The Gemara cites a Mishnah which teaches that the Loveh and witnesses (and scribe) also transgress the Isur of 'Lo Sesimun' when they prepare a Shtar that includes Ribis. If the Shtar is destroyed, then they, too, should be exempt from Malkus! Why, then, do Rebbi Nechemyah and Rebbi Eliezer ben Yakov teach that only the Malveh and Arev are exempt from Malkus of 'Lo Sesimun'? They should exempt the Loveh, witnesses, and scribe as well!
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> explains that only a person who has the ability to destroy the Shtar is exempt from Malkus as long as the Shtar can be destroyed. Since the Loveh, witnesses, and scribe cannot destroy the Shtar (since it is not in their hands to do so), they transgress 'Lo Sesimun' as soon as the Shtar is written and are liable for Malkus immediately.
</p><p>
(b) The <b>RAMBAM</b>, however, makes no mention of Malkus with regard to any of the Isurim of Ribis. He does not include the Isur of Ribis or 'Lo Sesimun' among the list of prohibitions (in Hilchos Sanhedrin 19:1) that bear a punishment of Malkus. It is clear from the Rambam that even the witnesses are not punished with Malkus.
</p><p>
Moreover, even if the Shtar is not destroyed and the Ribis is collected, the Malveh is not punished with Malkus. Why is he not punished with Malkus? (<b>PNEI YEHOSHUA</b>)
</p><p>
With regard to the Malveh, it seems that the Rambam maintains that according to Rebbi Elazar, who requires the Malveh to return the Ribis, just as the Mitzvah to return the Ribis exempts the Malveh from Malkus for the Isur of 'Lo Sashich,' it also exempts him from Malkus for writing the Shtar in the first place (the Isur of 'Lo Sesimun'). (This also seems to be the opinion of Rashi (DH Lo), who implies that if the Isur of 'Lo Sashich' would be a 'Lav ha'Nitak l'Aseh,' then the Mitzvas Aseh would remove the Malkus for 'Lo Sesimun' as well. Tosfos (DH Lo) argues with Rashi on this point.)
</p><p>
The Rambam learns -- as the Gemara assumed originally -- that Rebbi Nechemyah and Rebbi Eliezer ben Yakov exempt the Malveh from Malkus because it is a 'Lav ha'Nitak l'Aseh' by the Mitzvas Aseh to return the Ribis. He therefore rules that 'Lo Sesimun' is also 'Nitak l'Aseh' by the Mitzvas Aseh to return the Ribis. That is why the Malveh and Arev can never receive Malkus for the Isur of 'Lo Sesimun' or for 'Lo Sashich.'
</p><p>
Why, though, do the Loveh, witnesses, and scribe not receive Malkus? After all, they have no Mitzvah to return the Ribis or to destroy the Shtar, since neither of these acts is within their control. The <b>SEFER HA'CHINUCH</b> (end of #68) answers that it is not appropriate for the Malveh to be exempt from Malkus and for those who were secondary to his sin to be liable for Malkus. If the Malveh is exempt, then the witnesses and scribe who helped him also must be exempt.
</p><p>
Why, then, does the Beraisa teach that only the Malveh and Arev are exempt from Malkus, if the others involved are also exempt? The answer is that the others are exempt from Malkus only because the Malveh and Arev are exempt. Therefore, the Beraisa discusses only the Malveh and Arev, since the exemption from Malkus of the others depends on the exemption of the Malveh and Arev.
</p><p>
(c) Perhaps the Beraisa does not mention whether the Loveh, witnesses, and scribe receive Malkus because even without the fact that it is a 'Lav ha'Nitak l'Aseh,' they would be exempt from Malkus since they transgressed the Isur without an action, and the Beraisa maintains that a 'Lav she'Ein Bo Ma'aseh' (a transgression committed without an action) is not punished with Malkus. (Writing or signing the Shtar is not considered an action. See <b>PNEI YEHOSHUA</b>.) Even though the Loveh does an action when he pays the money of Ribis to the Malveh, he cannot be punished with Malkus for that act since he is forced to do so by the Malveh. Therefore, the only ones who perform a 'Lav <i>she'Yesh</i> Bo Ma'aseh' are the Malveh and Arev who actively collect the Ribis from the Loveh. (M. Kornfeld)
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MUST ONE HONOR PARENTS FROM HIS OWN MONEY?</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 a man died, leaving his orphans money
               of Ribis that he collected, even if they know this,
               they need not return it. If he left them a cow,
               garment or any specific item, they must return it
               for his honor.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> One need not honor such a father! 'Do not
               curse a Nasi of your nation' - one who acts like
               your nation (but one need not honor a Rasha)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> We answer like Rav Pinchas answered
               (elsewhere). The case is, the father repented and
               died before he was able to return it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Kidushin 32a (Rav Yehudah):</font></b> One must honor his
               father from his own money.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav Noson bar Oshaya):</font></b> He honors using his father's
               money.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> R. Yirmeyah asked, and was told to follow R. Noson's
               opinion.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question (Beraisa):</font></b> It says 'honor your father and
               mother', and 'honor Hash-m from your wealth.' Just
               like one must spend money to honor Hash-m, also to
               honor parents.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> He must spend time and neglect his job to
               honor them.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Beraisa):</font></b> A son may feed his (poor) father Ma'aser
               Oni.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question:</font></b> If the son must spend to honor his father,
               how can he fulfill his obligation with Ma'aser Oni?!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer:</font></b> He must use his own (Chulin) money to feed
               the father the basics. He may use Ma'aser Oni only
               for extras.
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> R. Yehudah says that one who does so will be cursed.
               Even if the Ma'aser Oni is only for extras, it is
               disgraceful.
<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 (Kidushin 13a and 1:50):</font></b> If a man lacks
               money and his son has, we force the son to give
               Tzedakah, and give it to his father.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> R. Chananel proved this from a case in the
               Yerushalmi in which R. Yonason forced a son to feed
               his father. This is a weak proof, for there, the
               father wrote his property to his son. He brought
               another proof from the Yerushalmi, which obligates
               Kivud Av v'Em even if the son does not have and must
               beg. It does not mean that he will spend his money
               and need to beg, for we hold that Kivud Av v'Em is
               from the father! Rather, one must honor him with his
               body, even if through this he is idle from his job
               and must beg. The Halachah is that Kivud Av v'Em is
               from the father's money. Also the She'altos says so.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> A poor mother had three sons.
                    One was poor, and merely subsisted from what he
                    received for learning. Another had 16 gold
                    pieces, and the third was not here. We hold
                    that Kivud Av v'Em is from the father's money.
                    The Rif wrote that we force the son due to
                    Tzedakah. Presumably, this is only if he has,
                    and need not beg. If they do not feed her, they
                    are cursed. The Gemara connotes that that they
                    may feed her from Ma'aser Sheni and accept the
                    curse. Here is different. Since she has rich
                    sons, we force them. When they have and want to
                    feed her from Ma'aser, we do not protest, but
                    they will be cursed. We cannot force them to
                    give to her extras. It is a Mitzvah to do so.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Mamrim 6:3):</font></b> Kivud Av v'Em is to
               give to eat, drink, clothe and cover from the
               father's money. If the father has no money and his
               son does, we force the son to feed his parents
               according to his means.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rif (Bava Metzia), Rambam (Hilchos Malveh 4:4) and
               Rosh (Bava Metzia 5:5):</font></b> If a man died, leaving money
               of Ribis that he collected, even if his heirs know
               this, they need not return it. If he left them a
               specific item, they must return it for his honor
               only if he repented and died before he was able to
               return it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mishneh l'Melech (DH v'Yesh):</font></b> A child need not
                    honor his parents in the matter his parents
                    sinned with, even if his parents repented.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (6:11):</font></b> One must honor and fear his father
               even if his father is a Rasha who transgresses.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Tur):</font></b> The Gemara (Bava Metzi'a 62a)
                    says that if the father did not do Teshuvah,
                    his children need not return a stolen cow that
                    they inherited. This shows that one must honor
                    his father only if he did Teshuvah, but not if
                    he is a Rasha!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer #1 (Kesef Mishneh):</font></b> The Gemara discusses
                    a cow received for Ribis. It was not stolen.
                    Only the lender is commanded about Ribis, not
                    his son. If the father repented and wanted to
                    return the cow but was unable to, it is as if
                    his sons did not inherit it. Otherwise, it is
                    the son's property, and we hold that one need
                    not honor his father from his money. He must
                    honor when there is no loss of money, even if 
                    the father is a Rasha.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Question #1 (Lechem Mishneh):</font></b> If so, how can we
                    answer for the opinion that one must use his
                    money to honor his father? It is difficult to
                    say that he establishes the Beraisa to be when
                    he did not do Teshuvah.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Question #2 (Machaneh Efrayim Malveh 8):</font></b> If a
                    son does not return for Kivud Av v'Em, rather,
                    for it is as if he did not inherit it, this
                    should apply even when the father left money,
                    and to any heir, not just children!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Question #3 (Taz YD 240:17):</font></b> The Gemara asked
                    that the son should not need to return the cow
                    because the father is not 'Amcha'. The Kesef
                    Mishneh exempts because it is the son's
                    property!
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Answer #2 (Machaneh Efrayim):</font></b> Beis Din does not
                    force one to fulfill Kivud Av v'Em, for the
                    Torah specifies the reward. If the father left
                    a specific item, we force, for then there is
                    disgrace (Tosfos Kesuvos 86a DH Pri'as). If the
                    father did not do Teshuvah, we are not
                    concerned for disgrace.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> R. Shimshon (Pe'ah 1:1 DH Yerushalmi):</font></b> The
               Yerushalmi obligates Kivud Av v'Em even if the son
               must beg. It does not mean that he begs for food to
               give to them. Rather, he gives his food to them, and
               needs to beg for himself, like the opinion that
               Kivud Av v'Em is from the son. Rav Noson is forced
               to explain that he is idle from his job and must
               beg. He does not obligate the son to use his money
               even when the father has nothing, for we did not
               answer the question against him by saying that it is
               when the father has no money.
<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 240:5):</font></b> One must feed his
               parents, i.e. from their money. If a man has no
               money and his son has, we force him to feed his
               father according to his ability. If the son lacks,
               we do not force him to beg to feed his father.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Zeh):</font></b> The Rif, Rambam, Rosh 
                    and Tosfos rule like Rav Noson, for Rabanan who
                    instructed R. Yirmeyah hold like him. They are
                    a majority against Rav Yehudah. Also, Rabanan
                    ruled like this in practice.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Gilyon Maharsha (4, citing Shevus Yakov 1:75):
                    A Kinyan to exempt one's son does not help. He
                    cannot cast himself on the Tzibur.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some do not obligate more than he must give to
               Tzedakah. In any case, if he can feed him from
               Chulin, but uses his Tzedakah, he will be cursed. If
               one has many sons, we calculate how much each must
               give according to their wealth. If he has rich and
               poor sons, we obligate only the rich ones.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Taz 6):</font></b> Why does he say '<i>some</i> say
                    that'? No one obligates giving more than he
                    must give to Tzedakah!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Shach 6):</font></b> The Darchei Moshe (1) derives
                    from 'he need not beg' that if he would not
                    need to beg, he must suppy all their needs,
                    even though surely one need not do so for
                    Tzedakah. Semag and Semak are stringent, but
                    the Rambam holds like the Shulchan Aruch says.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Tosfos (31a DH Kaved):</font></b> The Yerushalmi expounds
                    'honor Hash-m from your wealth' (from money you
                    have), but one must 'honor your father and
                    mother', even if he has no money and must beg
                    to feed them.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (11):</font></b> Do not say that when the father has
                    no money, the son must use his own. If so, we
                    should have answered the question against Rav
                    Noson by saying that it is when the father has
                    no money!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Gilyon Maharsha (7,8):</font></b> The Rashba (3:44)
                    obligates a son to pay his father's debt, even
                    if he did not inherit anything. The Shulchan
                    Aruch (CM 107:1) says that there is no Mitzvah
                    to do so.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> One must honor him with his
               body, even if through this he is idle from his job
               and must beg. This is if the son has food for that
               day. If not, he need not abandon his job and beg.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source (Beis Yosef DH u'Mah she'Chosav
                    Rabeinu):</font></b> R. Yerucham says that we learn from
                    Kavod Hash-m. One need not neglect his job to
                    visit the sick or console mourners if then he
                    will need to beg.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (14):</font></b> This is astounding! The Yerushalmi
                    holds that Kivud is from the son's money, and
                    the Bavli explicitly obligates abandoning his
                    job and begging, for honoring parents is
                    equated honoring Hash-m.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Mayim Amukim (2:101):</font></b> If one was renting in his
                    son's (Levi's) house, and Levi swore to sell it
                    to Yehudah, the oath is invalid, for it is
                    against Kivud Av v'Em.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>HONORING WICKED PARENTS </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> They consider that to be a sale (the
          lender bought the land, and the borrower may redeem it).
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Question:</font></b> What Chidush did Rav Safra come to teach?
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  	Answer:</font></b> Any case in which Nochrim force the borrower to
          pay, i.e. fixed Ribis, we make the lender return it, i.e.
          R. Elazar's law;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> What they do not force the borrower to pay, i.e.
               pre-loan Ribis (a gift in order that you will lend
               to me) and post-loan Ribis (a gift after returning
               the money, due to the money you lent to me), we do
               not make the lender return it.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE CASE OF THE MISHNAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven bought a Kor of wheat from Shimon
          for 25 Dinarim, which was the going rate...(if Shimon has
          no wine, it is forbidden).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Even if Shimon has no wine, it should be
          permitted!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> We may not contract to supply Peros for a
               set price until there is a set price in the market.
               When there is a set price, we may contract. Even if
               this seller does not have, others have (this seller
               could buy and supply the Peros now).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rabah):</font></b> In our Mishnah, Reuven never gave
          money. He bought on credit .(Therefore, we cannot say
          that Shimon could have supplied the wine with Reuven's
          money.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support (Beraisa):</font></b> If Yehudah told Levi 'give to me
               the Maneh that you owe to me, so I can buy wheat',
               and Levi answered 'I accept to supply to you a
               Maneh's worth of wheat (at today's price) over the
               course of the year', this is forbidden. (Even though
               Levi has wheat,) it is unlike giving money. (Then,
               Levi could have supplied the wheat with Yehudah's
               money.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection (Abaye):</font></b> If Reuven never gave money, the
          Mishnah should forbid this even if Shimon has wine!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Abaye):</font></b> Our Mishnah is like Rav Safra taught.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Safra):</font></b> Some things are permitted (letter of
               the law), but forbidden because they look like
               Ribis. For example, Yehudah asked to borrow 100
               (Dinarim). Levi said, 'I don't have money. Take that
               value of my wheat.' Levi bought it back for 96.
               (Letter of the law) this is permitted, but it is
               forbidden because it looks like Ribis.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Also in our Mishnah, Reuven asked to borrow 30 
               Sela'im. Shimon said 'I don't have money. Take that
               value of my wheat.' Shimon bought it back for 25;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If Shimon has wine (to take in place of wheat), this
               is like a sale, and it is permitted. If he has no
               wine, one may not take their value in money, for
               this looks like Ribis.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If so, the Mishnah should not say 'give
          me my wheat', rather, 'give me the money for my wheat'!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, that is the correct text.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If so, the Mishnah should not say 'that
          I want to sell', rather, 'that I sold to you'!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, that is the correct text.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If so, why does the Mishnah say 'I
          consider your wheat like 30? That is what he gave him!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> He means 'like payment for the wheat which you
          took from me in place of 30 Dinarim'.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> How can the Mishnah say 'you now have
          that value of wine by me', and Shimon has no wine'? It
          said that he bought a Kor of wheat for 25, and that was
          the price!
<br>

<p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>RETURNING PEROS IN PLACE OF MONEY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #3 (Rava):</font></b> The Mishnah is like R. Oshaya.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Oshaya - Beraisa):</font></b> Yehudah told Levi 'give me
               the Maneh you owe me so I can buy wheat'. Levi
               answered 'I have wheat. I will give you a Maneh's
               worth of my wheat at today's price.' The price of
               wheat rose; Yehudah asked for the wheat in order to
               buy wine.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Levi:</font></b> 'I have wine. I will give you wine equal in
               value to your wheat at today's price'. The price of
               wine rose; Yehudah asked for the wine in order to
               buy oil.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Levi:</font></b> 'I have oil. I will give you oil equal in
               value to your wine at today's price'. In all these
               cases, it is permitted if Levi has the Peros.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The Mishnah says 'he bought', i.e., with the
                    loan.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> We learn three things from R. Oshaya:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One may convert a loan into Peros, unlike the
               Beraisa Rabah brought (62b);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It is permitted only if the borrower has the Peros;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yanai, who says that the Peros are like the 
               money, is correct.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav):</font></b> Amanah of Peros (Reuven pays Shimon for Peros (at
          today's price), which Shimon will give later when the
          price will be higher) is permitted;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Amanah of money (Reuven pays Shimon for Peros (at
               today's price); later, when the price will be
               higher, Shimon will pay Reuven the value of the
               Peros) is forbidden (since he gives and receives
               money, it looks like Ribis).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Yanai):</font></b> Getting back their value (in money) is like
          getting back the Peros. Both are permitted.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (against Rav - Beraisa):</font></b> It is permitted (to
          receive back money) if Levi has the Peros.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rav):</font></b> The case is, he did Meshichah on the
          Peros (took them to his premises, at the beginning,
          therefore, it was no longer like a loan).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> If so, obviously it is permitted!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, he designated a corner of the Peros
          that will be Yehudah's.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #3 (Shmuel):</font></b> The Beraisa is R. Yehudah, who
          permits Tzad Echad b'Ribis (a deal that will end up
          either like a sale or like a loan).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Reuven owed Shimon 100; he said that if
               he does not pay by a certain date, Shimon will get
               his field. This is permitted only if Reuven eats the
               Peros in the interim (lest he will pay, and it was
               always a loan, and Shimon's eating was Ribis);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah permits even if Shimon eats the Peros in
               the interim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Yehudah:</font></b> There was a case in which R. Elazar ben 
               Azaryah authorized the buyer to eat the Peros!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Chachamim:</font></b> No, the seller ate.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> They argue about Tzad Echad b'Ribis.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> They argue about whether or not one may
          take Ribis on condition to return it.
<br>
<br>

sjt:
<font><b>1) THE DIFFERENCE BETWEEN 'TZAD ECHAD B'RIBIS' AND 'SE'AH B'SE'AH' ACCORDING TO REBBI YEHUDAH</b></font><b>
<br>QUESTION:</b> The Gemara teaches that according to Rebbi Yehudah, 'Tzad Echad b'Ribis' is permitted. 'Tzad Echad b'Ribis' refers to a transaction which can have two possible outcomes, one of which involves Ribis. He maintains that a transaction that involves Ribis is prohibited only when Ribis definitely will be involved, but not when the presence of Ribis depends on the outcome of the transaction. The classic case of 'Tzad Echad b'Ribis' is where a borrower gives his field to the lender and stipulates that if he does not repay the loan, the lender will acquire the field (for the money of the loan) retroactively. In the interim, the lender eats the produce of the field. According to the Tana Kama in the Beraisa, this is forbidden as Ribis, because if the borrower pays back the loan on time and repossesses his field, the sale will be invalidated and all the fruit that the lender ate will have constituted Ribis. Rebbi Yehudah says that this is permitted because there exists the possibility that the borrower will default on the loan, making the sale valid and entitling the new owner to eat from the fruit of the field. As long as this possibility exists, there is no prohibition against entering such a transaction.
</p><p>
<b>TOSFOS</b> (DH Tzad Echad) questions Rebbi Yehudah's opinion from the case of 'Se'ah b'Se'ah.' The Mishnah later (75a) prohibits a person from borrowing a Se'ah of flour with a commitment to return a Se'ah a flower, because the market price of flour may rise, in which case the borrower will end up returning something (a Se'ah of flour) of greater value than what he borrowed. According to Rebbi Yehudah, why is that case not considered 'Tzad Echad b'Ribis' and permitted? Since there is a possibility that the price will not rise, why is the case of 'Se'ah b'Se'ah' forbidden according to Rebbi Yehudah?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> explains that there is a fundamental difference between the two cases. 'Tzad Echad b'Ribis' occurs only when it is within the control of the borrower to pay or not to pay Ribis. In the case of 'Se'ah b'Se'ah,' the borrower has no control over the market price of wheat. Since it is not within his control, he is not allowed to borrow a Se'ah of wheat with intent to pay back a Se'ah of wheat.
</p><p>
The <b>NESIVOS SHALOM</b> clarifies the intent of Tosfos. One of the primary factors involved in determining whether or not a transaction involves Ribis is 'Ketzitzah' -- 'setting an amount.' In a case of 'Tzad Echad b'Ribis,' even after the terms have been set, no stipulation has been made that the borrower will pay Ribis. Since there is no 'Ketzitzah,' the transaction is permitted. In contrast, in the case of 'Se'ah b'Se'ah,' the terms of the loan included the stipulation that a Se'ah of wheat be paid back regardless of the market price of wheat. This stipulation constitutes a certain degree of 'Ketzitzah,' and thus the transaction is forbidden.
</p><p>
The <b>AYELES HA'SHACHAR</b> asks that this explanation seems to contradict the concept of 'Ribis Me'ucheres' -- the law that forbids a borrower from giving extra money (or objects) to the lender even <i>after</i> he has already paid back the loan. According to Rebbi Yehudah, why should this be forbidden? If 'Tzad Echad b'Ribis' is permitted, even though the borrower originally knew that he might have to pay Ribis, why should the borrower not have the option of paying Ribis later, after the loan has been repaid? The Ayeles ha'Shachar answers that the difference is based on how the decision to pay Ribis is established. When a borrower pays 'Ribis Me'ucheres,' he clearly decided to pay Ribis. In contrast, when a borrower makes a condition which allows for the possibility that he will end up having to pay Ribis, he is not making a clear stipulation of Ribis. If he ends up having to pay, he pays only as a result of a condition that was not directly linked to Ribis.
</p><p>
(b) <b>TOSFOS</b> in Megilah (27b, DH v'Rebbi) answers that the leniency of 'Tzad Echad b'Ribis' is based on the fact that it involves a sale, as opposed to a loan. This is also implied by <b>RASHI</b> here (DH Rebbi Yehudah), the <b>RA'AVAD</b>, and others. (Y. Montrose)
</p><p>
<br>


lvr: 42
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CONTRACTING TO SUPPLY PEROS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> Since R. Yanai says that money is like the Peros,
          we may say that Peros are like money, and we may contract
          to supply Peros for a set price even if the seller has no
          Peros (as long as there is a set price in the market).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rav Papa - Beraisa):</font></b> It is permitted only if
          Levi has the Peros.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> That refers to a loan. I discuss a sale.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rabah and Rav Yosef):</font></b> The reason one may contract to
          supply Peros even if he has no Peros is because he does
          not give anything extra to the buyer. Had the buyer kept
          his money, he could have bought Peros cheaply elsewhere.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> If so, a loan of a Se'ah on condition
          to return a Se'ah should be permitted, for the borrower
          does not give anything extra to the lender It would not
          have spoiled!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Yosef):</font></b> A loan is forbidden. We permit only a
          sale.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Ada bar Aba):</font></b> The buyer saves the fee he
          would have had to pay someone to go to buy where the
          Peros are cheap!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1 (Rava):</font></b> Indeed, it is permitted only when the
          buyer pays that to the seller.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> (In any case buyers need not pay
          for this.) Donkey-drivers (for the sake of their own
          employment) go to seek the buyers.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rabah and Rav Yosef):</font></b> If Reuven gave money based on the
          (low) price of the first grain to reach the market, he
          must see the seller thresh in the granary.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It cannot be to acquire it, for seeing is not an
               acquisition!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is so the seller will be cursed (He
               who punished...) if he retracts.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> He will be cursed even if Reuven does not
               go to see!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, it is so the seller will be cursed (if he
          retracts);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Buyers often give money to more than one seller
               based on the price of the first grain. If he comes
               to the granary, the seller is assured that the buyer
               will buy. If he does not come , the seller assumes
               that the buyer preferred someone else's Peros (so we
               do not curse him for retracting).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Ashi):</font></b> Since this is the reason, the same
               applies if they met in the market and the buyer said
               that he expects to receive the Peros.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE GENERAL RULE OF RIBIS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> The general rule of Ribis is that any
          payment for allowing one to borrow money for a period of
          time is forbidden.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If wax was selling for four cakes per Zuz,
          and one seller offered five if the buyer would pay now
          and receive the wax later, this is permitted only if he
          has wax now.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the seller already gave someone else
          money to receive wax. One might have thought that he is
          like one who borrows a Se'ah on condition to return a
          Se'ah, and he already has it at home;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Nachman teaches that this is not so. Since he
               has not collected his wax, it is as if he does not
               have it.
<br>
<b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>ONE WHO RECEIVED TOO MUCH MONEY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If Reuven borrowed money from Shimon and
          he received more than he was supposed to, if it is an
          amount that could be a mistake, he must return it. If it
          is more than that, Shimon intended it to be a gift.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is an amount that could be a mistake?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Acha brei d'Rav Yosef):</font></b> (People usually count
          ten or five at a time.) If the error is (Rashi - a
          multiple of) ten or five, he may have skipped counting
          some groups of ten or five. If not, it is surely an
          intentional gift.
<br>

<p>

sjt:
</p><p>
<font><b>2) EXTRA MONEY</b></font><b>
<br>OPINIONS:</b> The Gemara discusses a case in which a person receives money from someone else and finds that the person gave him more money than they agreed upon. Is he allowed to attribute the extra money to the other person's generosity and assume that it is a gift, or must he point out the over payment to the other person? Rav Nachman says that if the extra money is an amount that might reasonably be the result of a mistake in calculation, he must mention the overpayment to the other person. If the amount is unlikely to be a result of a miscalculation, he may attribute it to the other person's generosity.
</p><p>
Rav Acha says that it is reasonable to assume that a mistaken calculation was made when the overpayment is a denomination of ten or five. (It was the custom to count large quantities by counting from one to ten (or to five), and then again from one to ten (or to five), and remembering how many sets of ten (or five) one has already counted. Hence, it was possible to err in the number of tens (or fives).)
</p><p>
The Gemara's ruling seems problematic. The recipient of the extra money should simply ask the payer whether or not he intended to give him a gift! The Rishonim explain that the recipient indeed is required to ask the payer about the overpayment whenever possible. However, in a case where it is not possible, such as when the payer died, he is not required to inform the payer's heirs about the overpayment if it was not likely the result of a miscalculation.
</p><p>
Does Rav Nachman's ruling apply to any recipient of money, even a lender who receives money from a borrower? If the lender is permitted to keep the overpayment in such a case, why is it not considered Ribis?
</p><p>
(a) <b>RASHI</b> (DH Iy bi'Chedei) apparently understands that Rav Nachman's ruling applies only to a lender who gives extra money to a borrower. A lender cannot accept extra money from a borrower who is paying him back, since that indeed would constitute 'Ribis Me'ucheres.' <b>RAV YOSEF SHALOM ELYASHIV</b> shlit'a (quoted in He'oros b'Maseches Bava Metzia) explains that although Rashi generally maintains that 'Ribis Me'ucheres' is permitted when the borrower does not specify that he is paying extra money due to the loan, Rashi agrees that when the borrower gives the extra money at the time he pays back the loan, it is prohibited.
</p><p>
(b) The <b>RAMBAM</b> (Hilchos Malveh v'Loveh 4:10) explains that Rav Nachman's ruling applies even when a borrower pays back his loan to the lender. Why is the extra money that he pays not considered 'Ribis Me'ucheres'? In fact, the Rambam himself rules (unlike Rashi) that even when the borrower does not specify that he is giving the extra money because of the loan, it is prohibited because of 'Ribis Me'ucheres.' Why, then, does the Rambam rule that a lender may keep the extra money given to him by the borrower?
</p><p>
Rav Elyashiv explains that the case must be one in which the borrower is friendly with the lender, and he sometimes gives gifts out of friendship even when he has not borrowed money from him. In such a case, the lender is permitted to keep the extra money. (Y. Montrose)
</p><p>



</p><p>

loi:
<b>
<br></b><b><b><font color='blue'>1) </font></b><font color='blue'>LENDING 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'> 63b (Rabah and Rav Yosef):</font></b> One may contract to
               supply Peros even if he has no Peros, because he
               does not give anything extra to the buyer. Had the
               buyer kept his money, he could have bought Peros
               cheaply elsewhere.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> If so, a loan of a Se'ah on
               condition to return a Se'ah should be permitted, for
               the borrower does not give anything extra to the
               lender. It would not have spoiled!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav Yosef):</font></b> A loan is forbidden. We permit
               only a sale.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 72b:</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'>5.  </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'>6.  </font></b></b> Hillel forbids this.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (R. Yitzchak):</font></b> if one has a Se'ah, he may borrow
               many Sa'im.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Support (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'>i. </font></b><font color='darkgreen'>  Inference:</font></b> If he has, he may borrow many drops.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'>(Mishnah):</font></b> Similarly, Hillel forbids a woman to lend
               a loaf to her neighbor until she sets a price for
               it, lest wheat rise in price and she will give (back
               a loaf worth more, which is) Ribis.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> Chachamim permit Stam.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> If people lend to each other and are
               insistent to get back no less than they gave,
               according to Hillel, they transgress Ribis.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </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. Hillel
               forbids lending a loaf until setting a price.
               Chachamim permit as long as there is a market price.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ba'al ha'Ma'or):</font></b> Chachamim permit a
                    loaf even without a market price! Its value
                    does not change much. If the borrower does not
                    have a loaf, others do. This is like manure;
                    one may contract for it at any time of the
                    year.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Milchamos Hash-m:</font></b> The Ba'al ha'Ma'or
                    misunderstood the Rif! Rav Yehudah said 'we may
                    borrow and pay Stam.' He refers to Se'ah
                    b'Se'ah, not to a loaf. Bahag explained that
                    this is even without a market price. The Rif
                    teaches unlike Bahag; it is only if there is a
                    market price. This is why it says '<i>we</i>may
                    borrow', for it does not refer to the case of a
                    <i>woman</i> borrowing a loaf). The Rif agrees that
                    a loaf is permitted without a fixed price!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (YD 162:5):</font></b> R. Chananel (cited in Milchamos
                    Hash-m) connotes the way Hagahos Ashri and Beis
                    Yosef understand the Rif (i.e. like the Ba'al
                    ha'Ma'or did).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 10:2):</font></b> If one wants to borrow
               something and has none of that species, and there is
               no market price, or they did not know the market
               price, he may not borrow Se'ah b'Se'ah until fixing
               a price. If he borrowed without fixing a price, and
               the Peros declined in value, he pays back the
               measure or weight he borrowed. If the price
               increased, he pays back what it was worth at the
               time of the loan. Even if one has some of the
               species he wants to borrow, or there was a market
               price, one may not borrow Peros for Peros for a
               fixed time. Rather, he borrows Stam and pays back at
               any time.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> We never heard such a
                    Chidush! Rather, if he has, or there is a
                    market price, one may borrow Stam without
                    fixing a price, even for a fixed time.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Magid Mishneh:</font></b> The Rambam explains that the Reisha
               forbids lending for a fixed time. This is even if he
               has, similar to the Seifa (until my son comes).
               Other Meforshim explain that whenever he has, it is
               permitted even if he fixed a time. If so, the
               Mishnah should have said that it depends only on
               this! It seems that one fixes a time because he
               expects the price to rise, and there is a Chazakah
               that the borrower will not pay early. The Rashba
               disagrees. Fixing a time benefits the borrower; the
               lender cannot force him to pay before the time. It
               is unusual to pay early, but no one forbids doing
               so.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (3):</font></b> One may not say 'lend to me a Kor of
               wheat, and I will return a Kor after the harvest'.
               He may ask for a loan until his son comes or until
               he finds the key.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (75):</font></b> The Mishnah forbids a loan 'until after
               the harvest', for typically that is when he will
               have wheat to pay back. The same applies if no time
               was fixed. It is permitted only if the borrower has,
               or if there is a market price. The Halachah follows
               Chachamim, who permit to borrow Stam and pay back
               Stam.
<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 162:1):</font></b> One may not lend Se'ah
               b'Se'ah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (1):</font></b> Since the Isur is mid'Rabanan, if
                    one transgressed, Beis Din does not force him
                    to return the Ribis returned.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz (1):</font></b> This is permitted in the way of a
                    sale. I.e. one sold a Se'ah, and at a fixed
                    time pays with a different Se'ah in place of
                    it. He is prone to gain or lose. Even regarding
                    a loan, this is forbidden only mid'Rabanan.
                    Therefore, it is totally permitted regarding a
                    sale. The Torah permits in the way of a sale
                    even if he is more prone to gain than to lose.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> This is even if he did not
               fix a payment date.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Bein):</font></b> Even though the Mishnah
                    forbids a loan 'until after the harvest', this
                    is merely a typical case. Alternatively, it is
                    for parallel structure with the Seifa, which
                    permits 'until my son comes or until I find the
                    key.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> The same applies to all
               commodities. We are concerned lest the commodity
               increase in price, and he pays back more than was
               lent. It is permitted only if a price is fixed, and
               if the commodity will rise in value, he will pay
               back the price fixed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Pischei Teshuvah (3, citing Beis Efrayim YD
                    43):</font></b> If the price declined, he must pay back
                    wheat. He may pay money only if the price rose.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If one borrowed without
               fixing a price and the commodity rose in value, he
               pays back what it was worth at the time of the loan.
               If the price decreased, he pays back a Se'ah, the
               amount he borrowed.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema:</font></b> Some permit lending a loaf for a loaf. It is a
               small amount, so people are not particular about it
               with each other. The custom is to be lenient.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Ishah):</font></b> The Tur, Rashi and many
                    others hold that we hold like Chachamim who
                    argue with Hillel regarding both laws.
                    Chachamim were not stringent about a small
                    amount. The Rif requires a market price even
                    for a loaf. It seems that the Rambam agrees,
                    for he did not distinguish. They must explain
                    that Hillel mentioned a loaf not because
                    Chachamim are more lenient about it, rather, to
                    teach that he is stringent, even though it is a
                    small amount. Rav Yehudah taught that people
                    who lend to each other transgress Ribis
                    according to Hillel. This is when the borrower
                    has, or there is a market price, for if not,
                    even Chachamim forbid. The Rosh did not say
                    whether Chachamim permit only when there is a
                    market price. Perhaps he relies on Rashi. The
                    Tuf's Kitzur Piskei Rosh permits lending a loaf
                    for a loaf (in every case).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 162:2):</font></b> If one has a small amount
               of a species, he may borrow many Sa'im and repay
               Se'ah b'Se'ah.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rema:</font></b> This is when the borrower can pay back 
               whenever he wants. If the lender stipulated not to
               accept payment until it is expensive, it is
               forbidden.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (YD 162 DH Kosav ha'Rambam):</font></b> R.
                    Yerucham says that the Rif holds like the
                    Rambam (who always forbids when a time was
                    fixed). I see no source to say so. Teshuvas
                    ha'Rosh (108:15) is like the Ra'avad. However,
                    if he stipulated not to pay until a fixed time,
                    one may not rely on a market price, but if he
                    has the same species, it is permitted. Semak
                    and Kol Bo forbid if he stipulated not to pay
                    until the price rises.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (11):</font></b> Why did the Rema say 'if he
                    stipulated not to accept payment until <i>it is
                    expensive</i>'? The Rosh is stringent whenever he
                    stipulated not to accept payment before a fixed
                    time! Perhaps he merely used the Semak's
                    wording. Alternatively, he teaches that if the
                    price rose, he does not pay the higher price. I
                    say that if he fixed a time lest the price
                    drop, all forbid even if he did not stipulate
                    not to accept payment before the time. Poskim
                    argue with the Rambam only because fixing a
                    time helps the borrower. When it helps the
                    lender, he can refuse to accept early payment!
<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: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO RECEIVED TOO MUCH MONEY (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav Acha brei d'Rava):</font></b> If Shimon never gives
          gifts, what is the law?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> We assume that he stole from Reuven,
          and wants to return the money.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If one stole money and returned it by
               giving too much money in a subsequent transaction
               with the victim, he fulfilled returning it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Acha brei d'Rava):</font></b> If Shimon came from
          abroad and had no previous dealings with Reuven, what is
          the law?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> We assume that someone else stole from
          Reuven, and asked Shimon to return the money in this way.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>BUYING FUTURE GROWTH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav Kahana):</font></b> I heard Rav saying 'Kari, Kari.'
          What was he saying?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rabanan):</font></b> If Reuven gave a gardener (Shimon)
          money for Kari (gourds) the size of a pinky, and Shimon
          stipulated to give (later) gourds the size of the middle
          finger, this is permitted only if Shimon has gourds now.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that since they grow by
          themselves, this is permitted even if he has none now.
          Rav teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	This is like the following Tana.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven was going to milk his goats,
               shear his sheep or take the honey from his hive, and
               he sold to Shimon 'whatever I will milk, shear or
               extract', this is permitted;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he stipulated how much this will be, it is
               forbidden.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Even though they will produce more milk, wool
                    or honey by themselves, it is forbidden, since
                    it is not there now.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rava):</font></b> A gardener may stipulate to give (later) bigger
          gourds even if he has no gourds now, since they grow by
          themselves.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa forbids this!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> There, the milk (or wool or honey) does not grow
          out of the milk that is here now (rather, from the
          seller's goat, so it is like Ribis);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, the buyer buys small gourds now. His own
               gourds grow bigger. A proof of this is that when the
               gourds are uprooted, nothing grows by itself in
               their place.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Abaye):</font></b> Reuven may pay Shimon for a barrel of wine, on
          condition that if it spoils, Shimon suffers the loss, and
          if the price changes, Reuven gains or loses.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Rav Sharbiya):</font></b> Reuven is closer to gain than to
          lose! (This is forbidden due to Ribis.)
<br>
<br>

sjt:
<font><b>1) THE DIFFERENCE BETWEEN MILK FUTURES AND FRUIT FUTURES</b></font><b>
<br>QUESTION:</b> The Beraisa says that when one proposes to sell for a set amount whatever milk comes out of his goats, the sale is permitted, despite the fact that the amount of milk might be more valuable than the amount of money which the buyer paid. <b>RASHI</b> (DH Mutar) explains that since the buyer accepts upon himself the risk of a loss (in the event that the value of milk falls) as well as the possibility of a gain (in the event that the value of milk rises), there is no Ribis.
</p><p>
<b>TOSFOS</b> (DH Ma she'Izai) asks that this ruling seems to contradict the ruling of Rav (73a) who states that one is not allowed to purchase the future crops of an orchard for a set amount when it is still unclear how large of a crop it will yield. How can Rav's ruling be reconciled with the Beraisa?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that there is a difference between the two types of sales. Ordinarily, when a person who is about to milk his goats proposes to sell the milk to a potential buyer, he does so only one or two days before the milking. Since the actual commodity will soon be in his hands (or in his pail), he does not charge a lower price for the milking. He merely figures what the average milking is worth and sells the rights to the milk in advance. In contrast, it is common for speculators to buy the crops of an orchard far in advance, because they know that the farmer will generally give them a discount for advancing them the money long before the harvest. When the speculator receives a crop which is worth more than what he paid, it is Ribis. Although one might suggest that it should be permitted because the speculator accepts upon himself the risk of losing the crop to hail, ice, or violent rain, Tosfos explains that Rav maintains that these are not serious enough risks to offset the usual clear gain of advancing money long before the harvest. This is why Rav forbids the purchase of crop 'futures,' but agrees that one may buy goat milk 'futures.'
</p><p>
The <b>RITVA</b> asks that nowhere does the Gemara mention anything about purchasing the commodity far in advance. If this condition is so important in determining the permissibility of the transaction, the Gemara should mention it.
</p><p>
(b) The <b>RITVA</b> therefore explains that the transaction in the case of the orchard is forbidden because of an exit clause which protects the speculator from complete loss. This clause states that in the event that the field yields no crops at all, the speculator is allowed to renege. Rav maintains that this type of transaction is prohibited because the speculator does not face any risk of serious loss; the crop that is harvested is usually worth more than he pays. He effectively is advancing money to the owner of the orchard, which is Ribis. In the case of the goats, the condition is that even if the goats produce no milk at all on that day, the sale is valid. This makes the possibilities of gain and loss even, and thus the transaction is not considered Ribis.
</p><p>
The Ritva adds another difference between the two cases (although it is unclear whether he maintains that this second difference suffices by itself to distinguish between the two cases). The crops of the orchard are not yet present at the time the deal is made, and thus the advance payment looks more like a loan. In contrast, the milk of the goats is usually noticeable when the deal is made. (This seems to contradict the earlier reasoning of the Ritva, that the buyer faces the risk of not getting any milk, unless one assumes that there is milk which is not fit for human consumption due to other factors.) (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN DO WE ASSUME THAT EXTRA MONEY IS A GIFT?</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'> 63b (Rav Nachman):</font></b> If Reuven borrowed money from
               Shimon and he received more than he was supposed to,
               if it is an amount that could be a mistake, he must
               return it. If it is more than that, Shimon intended
               it to be a gift.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is an amount that could be a mistake?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav Acha brei d'Rav Yosef):</font></b> (People usually
               count ten or five at a time.) If the error is ten(s)
               or five(s), he may have erred in counting a group of
               ten or five. If not, it is surely an intentional
               gift.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (Rav Acha brei d'Rava):</font></b> If Shimon never
               gives gifts, what is the law?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (Rav Ashi):</font></b> We assume that he stole from
               Reuven, and wants to return the money.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> If one stole money and returned it
                    by giving too much money in a subsequent
                    transaction with the victim, he fulfilled
                    returning it.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question (Rav Acha brei d'Rava):</font></b> If Shimon came from
               abroad and had no previous dealings with Reuven,
               what is the law?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer (Rav Ashi):</font></b> We assume that someone else stole
               from Reuven, and asked Shimon to return the money in
               this way.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> If Reuven borrowed money from Shimon and he
               received more than he was supposed to, if it is an
               amount that could be a mistake, he must return it.
               E.g. if there were five or 10 too many, perhaps
               Shimon counted five or 10 at a time, and erred by
               one. Alternatively, perhaps he made Simanim (a coin
               to tally each five counted), and the Siman became
               mixed in. Also this is an error. Anything else he
               may keep. If it is more than that, Shimon intended
               it to be a gift.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Omar Rav):</font></b> Likewise, if the
                    excess was several 10's or fives, we assume
                    that it was a mistake. This is when people
                    normally count 10's or fives, but not two or
                    three at a time and to put a Siman of how many
                    were counted. If Shimon does not give gifts, we
                    assume that he stole from Reuven a long time
                    ago and Reuven is unaware, and now Shimon wants
                    to repent.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 4:10):</font></b> If Shimon lent to
               Reuven and Reuven found extra, or Shimon paid his
               debt to Reuven and Reuven found extra, if it is an
               amount that could be a mistake, he must return it.
               If not it is a gift, or Shimon had stolen from him
               and include it with the loan, or someone else
               commanded Shimon to include it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam's text said 'one who
                    lent coins and found extra', i.e. when the loan
                    was repaid. Some texts say 'one who borrowed
                    coins.' According to this, this is only when
                    the borrower finds extra, but if the lender
                    finds extra, we say that the borrower gave
                    extra for Ribis, and it is forbidden, except
                    for Chachamim, who are permitted. Some say that
                    even the Rambam's text means that the borrower
                    found extra. Perhaps even the lender may keep
                    extra (when it is not a mistake). We do not
                    assume that it is post-loan Ribis (i.e. a token
                    of appreciation without any prior stipulation).
                    We do not assume that the borrower is a Rasha
                    who will cause the lender to transgress,
                    especially if this harms the borrower (he pays
                    and also transgresses).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishneh l'Melech:</font></b> The Magid Mishneh (Hilchos
                    Ishus 1:4) said that people are not so careful
                    about Isurim mid'Rabanan! He must hold that the
                    Torah forbids post-loan Ribis.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (ibid):</font></b> An amount that could be a mistake is
               one, two, five or 10. Perhaps Shimon counted five at
               a time or 10 at a time. Similarly, if he found one
               more than the number of fives or 10's, he must
               return it. Perhaps he was using coins to count the
               fives or 10's, and those coins became mixed with the
               10's.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Lechem Mishneh:</font></b> 'One or two' is when the local
                    custom is to count one or two at a time. The
                    Rambam says 'perhaps he was counting fives or
                    10's', for clearly people count this way. The
                    Gemara mentions only fives or 10's', for in
                    those days everyone counted this way.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (5:12):</font></b> The amount that could be a mistake
               depends on how people normally count money in that
               region, e.g. two, three or four at a time. If the
               excess is this amount, without one or two extra, he
               must return the entire excess. If the excess is one
               or two more than this amount, the lender
               intentionally added it, and the borrower may keep
               it. This is if the lender did not claim it. If the
               lender says that he erred and gave too much, the
               borrower must return the excess.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Maimoniyos (9, citing Tosfos 64a DH
                    b'Isuraisa) and Hagahos Ashri:</font></b> We count by
                    ones, so for us any amount is a possible
                    mistake.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mordechai (433):</font></b> Even though one must inform
                    the owner when returning anything except for an
                    Aveidah, also here the owner knows, for a
                    person constantly checks his wallet. If one
                    gave an excess that cannot be a mistaken and
                    later asks for it back, Reuven need not return
                    it. If one paid the price of cattle for a yoke,
                    Tana'im argue about whether the money (price)
                    proves that he intended for the cattle (Bava
                    Basra 77b). If the money does not prove this,
                    he cannot demand back the extra money.
<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 232:2):</font></b> If Reuven received money
               from Shimon, for a sale, loan or payment, and there
               were extra coins, even if Shimon did not claim it,
               Reuven must return it if it is an amount that could
               be a mistake. E.g., the excess is a whole number of
               10's or fives without one or two left over, we can
               say that he erred between 50 and 40 or between 40
               and 30. If the remainder is a multiple of five,
               people commonly count five at a time. If they were
               55, he erred about the 10's like we said, and
               regarding the five extra he erred between three
               fives and four fives. If the excess was 15 or 25, he
               erred three or five times about the fives. If the
               excess exceeded a multiple of five by one, two,
               three or four, the entire excess is a gift, provided
               that the excess was not the number of fives or 10's.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav):</font></b> Rashi
                    explains like this. Also the Rambam says so.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Lechem Mishneh):</font></b> The Rambam is unlike
                    Rashi. He holds like the Rif, that we attribute
                    an error only to one five or 10. It is not
                    normal to err like this more than once. If we
                    would not say so, any amount can result if he
                    counted ones and erred many times!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> This is unlike the Nimukei Yosef, who
                    says that the Rif allows for multiple mistakes
                    of five or 10. The Gemara mentioned that some
                    count by 10's, even though any mistake of 10's
                    could be attributed to twice as many mistakes
                    when counting by fives. Perhaps this was to
                    teach about when the coins used to keep track
                    were mixed in. Tosfos says that indeed, for us
                    any amount is a possible mistake, but the
                    Rambam clearly disagrees.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> SMA (5):</font></b> If Reuven knows that Shimon did not
                    count by fives and he found five extra, it is a
                    gift. The same applies to all similar cases.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Shach (2):</font></b> Darchei Moshe ha'Aruch (2) says that
                    if the giver later says that he erred, R.
                    Yerucham obligates returning the excess (like
                    the Rosh), and the Mordechai (433) exempts.
                    Shiltei ha'Giborim (Bava Kama 45b 1) exempts,
                    and says that if a lender does not claim the
                    loan, this shows that it was a gift and the
                    borrower need not return it. This requires
                    investigation.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Machaneh Efrayim (Ona'ah 22, cited in R. Akiva
                    Eiger):</font></b> Sefer ha'Terumos (46:4:3) says that if
                    later Shimon says that he erred and gave too
                    much, Reuven must return it. Even though we
                    could say that Shimon intended for a gift and
                    now wants to retract, Shimon claims Vadai and
                    Reuven is unsure, so Reuven must pay.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If the excess was the number
               of fives or 10's, he must return it, lest the units
               he used to coiunt the fives or 10's got mixed in.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (9):</font></b> E.g. if he was owed 40 and received
                    44, we say that he counted 10 at a time and
                    after each 10 put a Dinar on the side (to keep
                    track), and later the four extra Dinarim became
                    mixed with the 40. This is an error, and it
                    must be returned. Likewise, if he received 48,
                    he counted five at a time, and the eight extra
                    Dinarim became mixed with the 40. The same
                    applies to all similar cases.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> In a place where people normally count money
               one or two at a time etc., this determines what is
               considered a possible mistake.
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>ONE WHO CAUSED A SMALL LOSS </b></b>(</font><font color='darkblue'>


