# dafyomi

lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like land is acquired through money, a document
               or Chazakah, also rental is acquired through these.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> How can one make Chazakah (on rented 
          Metaltelim) without already acquiring through Meshichah?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> The Beraisa refers to rental of
          land.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHICH PRICE DOES A THIEF PAY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> If Reuven stole 50 dates stuck together, which
          sell for 49 when sold together, and for 50 when sold
          individually:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he stole from an individual, he pays 49. If he
               took from Hekdesh, he pays 50 and a Chomesh;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he damaged Hekdesh, he does not add a fifth.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> 'If one will eat Kodesh (he adds a fifth).' This
               excludes one who damages.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rav Bivi bar Abaye):</font></b> Why does he pay only 49 to
          an individual? The victim can say 'I would have sold them
          one at a time!'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Huna brei d'Rav Yehoshua - Mishnah):</font></b> We
          evaluate damage by estimating the decreased value of a
          Beis Se'ah due to the damaged patch (Rashi; Tosfos - we
          estimate a damaged Beis Se'ah as part of a field 60 times
          greater). (I.e. we are lenient about damages!)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Does Shmuel really distinguish the laws of
          paying people and Hekdesh?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven (the treasurer of Hekdesh) took
               a rock or beam of Hekdesh, he did not transgress
               Me'ilah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he gave it to Shimon, Reuven transgressed
               Me'ilah;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If Reuven (kept it and) used it to build his house,
               he does not transgress Me'ilah until he gets a
               Perutah's worth of benefit from it by living in the
               house.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (R. Avahu citing Shmuel):</font></b> We learn from this that if
               Levi dwells in Yehudah's field without his
               knowledge, Levi must pay!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Shmuel retracted from that teaching.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps he retracted from this teaching!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Presumably, he holds like Rava.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> One who takes from Hekdesh unknowingly is
               like one who takes from a person knowingly.
               (Therefore, we cannot learn about dwelling in a
               man's field without his knowledge from dwelling
               under Hekdesh.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rava):</font></b> If burden carriers broke a barrel of wine, and on
          most days, it sells for four, but on the market day, the
          grocer sells it for five:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they replace it before the market day, that
               suffices. If not, they must pay five.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is only if the grocer did not have other wine
               to sell. If he did, they can return a barrel even
               after the market day.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Even when they pay five, they deduct to compensate
               for the toil the grocer was spared (he did not have
               to sell it) and the cost of making a hole in the
               barrel (some explain - the cost of announcing that
               he has wine to sell).
<br>

<p>

sjt:
</p><p>
<font><b>2) WHAT FORM OF 'KINYAN' IS VALID FOR 'SECHIRUS'</b></font><b>
<br>OPINIONS:</b> The Beraisa states that just as Meshichah was established as a Kinyan for buying, it was also established as a Kinyan for Shomrim. Moreover, just as land is acquired through the Kinyanim of Kesef, Shtar, and Chazakah, the obligation of Shemirah may be acquired in these manners as well. The Gemara then asks about what type of Sechirus was done. What is the Gemara's question?
</p><p>
(a) <b>RASHI</b> (DH Mai Avidtei) explains that the Gemara's question is how can the Beraisa say that a Shomer can acquire an item through Chazakah without the process of Meshichah? Chazakah on a movable item means that the Shomer performs Meshichah! The Gemara answers that the Beraisa refers to someone who must guard land.
</p><p>
The <b>RITVA</b> asks that this does not seem to be the Gemara's question. If the Gemara assumes that the Beraisa refers to movable items as well, it should understand that when the Beraisa says 'Chazakah' it means 'Meshichah'!
</p><p>
(b) The <b>RAN</b> understands Rashi differently. He understands that Rashi maintains that the Gemara's question involves the Kinyan of <i>Kesef</i>. Just as movable items are not acquired through a Kinyan Kesef (because of a Gezeirah that after the buyer gives money to the seller, the seller will not bother to protect the merchandise from destruction; see 47b), the Sechirus of movable items is not 'acquired' through Kesef. Hence, the Beraisa must not be talking about the Sechirus of movable items when it mentions the Kinyan of Kesef.
</p><p>
The Ran questions this explanation. He asks that there are cases in which money is considered a valid Kinyan for movable items, and thus the Gemara would not ask such a question. He then gives the same explanation as the Ritva (see (b) below).
</p><p>
There seems to be a third difficulty with Rashi's explanation. <b>RAV YOSEF SHALOM ELYASHIV</b> shlit'a (quoted in He'oros b'Maseches Bava Metzia) points out that the Gemara in Bava Kama explicitly explains the question. The Gemara there asks, what kind of Sechirus is the Beraisa discussing? The Beraisa cannot be discussing movable items, since movable items cannot be acquired through the Kinyan of Shtar. The Gemara there answers that the Beraisa must be talking about land. Why does Rashi here veer from the way the question is explained by the Gemara itself in Bava Kama?
</p><p>
(b) The Ritva explains, therefore, that the Gemara is asking about the Kinyan of Shtar. The Gemara's question is based on the Gemara in Bava Kama (79a) which teaches that the Kinyan of Shtar does not apply to movable items. Why does the Beraisa say that they <i>are</i> acquired through Shtar? The Gemara answers that the Beraisa does not refer to movable items, but rather to land. (Y. Montrose)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN DO WE DIVIDE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah #1):</font></b> If Reuven traded a cow for Shimon's donkey,
          or he sold a slave, and the cow or slave gave birth
          (elsewhere), and Reuven says that the birth was before
          the sale (so the child is mine), and Shimon says that the
          birth was after the sale, they divide the offspring;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven had two slaves (or fields), one big and one
          small, and Shimon says 'I bought the big one', and Reuven
          is unsure which he sold, Shimon gets the big one.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven says, 'I sold the small one' and Shimon is
               unsure, he gets the small one.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Shimon says 'I bought the big one', and Reuven
               says 'I sold the small one', Reuven swears that he
               sold the small one;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If each says 'I don't know', they divide them.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> (In the first clause) why do they
          divide? The one in whose premises the baby lies is
          Muchzak. The other must bring proof to take from him!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (R. Chiya bar Avin):</font></b> The case is, the calf is in
          the swamp, and the slave is by the selling-block (neither
          owns the premises).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> The seller is Muchzak. The buyer must bring
          proof to take from him!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah is Sumchus, who says that when we are
          in doubt, we divide the money without an oath.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Sumchus (explicitly) said that they divide
          without swearing only when both parties are unsure. Would
          he say this when both parties make definite claims?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1 (Rabah bar Rav Huna):</font></b> Yes, Sumchus' law is even
          when both make definite claims.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> Sumchus said that they divide without
          swearing only when both parties are unsure;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In our Mishnah, Reuven says 'perhaps the birth was
               before the sale', and Shimon says  'perhaps it gave
               birth after the sale.'
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If each says 'I don't know', they
          divide them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Granted, according to Rava, in the Reisha and Seifa,
               each side is unsure.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> However, according to Rabah bar Rav Huna, the Reisha
               teaches that they divide when each is certain. It
               need not teach this when each is unsure!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> From the Seifa we deduce that in the Reisha, both
          are certain. Otherwise, we might have thought (like Rava)
          that both are uncertain.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If Shimon says 'I bought the big
          one', and Reuven says 'I sold the small one', Reuven
          swears that he sold the small one.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We understand according to Rava. Sumchus says that
               we divide the money only when neither side is sure.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But according to Rabah bar Rav Huna, even when both
               are sure, Sumchus says that they divide!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> When one party is obligated to take an oath
          mid'Oraisa, Sumchus agrees (that he swears and gets like
          he says).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE CASE OF THE OATH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah #1):</font></b> Reuven had two slaves, one big and one
          small...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Questions:</font></b> (When Shimon claims the big one and Reuven
          says that he sold the small one,) why does Reuven swear?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question #1:</font></b> His admission is not part of what
               Shimon claimed!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question #2:</font></b> This is Heilach (he gives him the small
               slave (or land) he admits to at the time of the
               admission)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question #3:</font></b> We do not swear about slaves (or land)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (to all three questions - Rav):</font></b> Reuven and
          Shimon argue about the money of a big or small slave or
          field.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2A (Shmuel):</font></b> They argue about the clothing of a
          big or small slave, or the piles of grain of a big or
          small field.
<br>
<br>

sjt:
<font><b>1) WHEN A CLAIM OF 'BARI' OVERRIDES A CLAIM OF 'SHEMA'</b></font><b>
<br>QUESTION:</b> The Mishnah discusses various cases in which a dispute arises between a buyer and a seller concerning the object that was purchased. The Mishnah says that in a case in which the buyer claims that he bought the larger object (such as the larger field), and the seller does not know which one he sold to the buyer, the buyer is entitled to take the larger field.
</p><p>
Why is the buyer entitled to take the larger field? Presumably, the Mishnah entitles the buyer to take it because his claim is a claim of certainty ('Bari'), while the seller has only a claim of doubt ('Shema'). The Halachah in such a case, however, is 'Bari v'Shema <i>Lav</i> Bari Adif' -- when one person has a claim of certainty and the other has a doubtful claim, the claim of certainty does <i>not</i> prevail to take money or objects from the possession of the other. Why, in the case of the Mishnah here, does the buyer's claim prevail?
</p><p>
<b>ANSWERS:</b>
<br>(a) In his first answer, the <b>RA'AVAD</b> explains that the rule of 'Bari v'Shema <i>Lav</i> Bari Adif' applies only when the one with the claim of 'Shema' is actually in possession of the object in doubt and thus has a 'Chezkas Mamon' that counters the other person's claim of 'Bari.' If, however, the one with the claim of 'Shema' is not in possession of the object (and he has only a 'Chezkas Mara Kama' -- a Chazakah that, before this moment, he was known to be the owner -- to support his claim of ownership), the other person's claim of 'Bari' overrides his claim of 'Shema.'
</p><p>
The Mishnah presumably discusses a case in which the seller is not in physical possession of the object. The previous case in the Mishnah, according to the Gemara, certainly refers to a case in which the cow is not in the physical possession of either the buyer or seller, but rather is in the marsh. It is reasonable to assume that the second case of the Mishnah also discusses such a situation. Since there is no proper 'Muchzak,' but only a Chazakah of 'Mara Kama,' the buyer's claim of 'Bari' overrides the seller's claim of 'Shema.'
</p><p>
The <b>RAMBAN</b> (Bava Basra 34b), however, argues with the Ra'avad's assertion and maintains that even when the original owner is not in physical possession of the object and has only a Chazakah of 'Mara Kama,' the other person's claim of 'Bari' does not prevail.
</p><p>
(b) The Ra'avad offers a second answer with which the Ramban agrees. He explains that the Mishnah refers to a case in which the seller was obligated to make a Shevu'ah of 'Modeh b'Miktzas' to the buyer due to an additional element involved in the dispute that arose between them. Since the seller admits that he owes part of the buyer's claim, and -- with regard to the buyer's claim that he bought the larger field -- the seller responds that he does not know, the Halachah follows the standard rule that a person who is obligated to swear but cannot swear must pay. (This is similar to the case in the Gemara on 97b.) (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A SAFEK ABOUT WHICH ANIMAL GORED WHICH</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven had two slaves (or fields), one
               big and one small, Shimon says, 'I bought the big
               one'; and Reuven says 'I sold the small one', Reuven
               swears that he sold the small one.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why does Reuven swear? His admission is
               not part of what Shimon claimed, it is Heilach (he
               gives him the small slave (or land) he admits to at
               the time of the admission), and we do not swear
               about slaves (or land)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1:</font></b> They argue about the value of a big or 
               small slave or field.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #2 (Shmuel):</font></b> They argue about (fabric to
               make) clothing of a big or small slave, or the piles
               of grain of a big or small field.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Bava Kama 35b (Mishnah):</font></b> If two oxen of Reuven
               damaged two of Levi's oxen, and Levi says that the
               big ox (or the Mu'ad) damaged the big ox, and the
               small ox (or the Tam) damaged the small ox, and
               Reuven says oppositely, ha'Motzi mi'Chavero Alav
               ha'Re'ayah.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rabah bar Noson):</font></b> If David claimed that Shimon owes
               him wheat, and Shimon admitted that he owes barley,
               Shimon is exempt.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question (Mishnah):</font></b> If two oxen of Reuven, one big
               and one small...
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Inference):</font></b> If Levi cannot bring proof, he
                    collects like Reuven said.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question:</font></b> This is like wheat and barley (and R.
                    Noson totally exempts)!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, if Levi cannot bring proof, he
               should collect like Reuven says, but does not
               collect at all.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question (Beraisa):</font></b> Levi collects for the small ox
               from the big ox, and for the big ox from the small
               ox.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer:</font></b> That is when Levi seized the damager.
<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 Kama 17a):</font></b> We answered that Levi collects
               for the small ox from the big ox and for the big ox
               from the small ox when he seized them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Echad):</font></b> If Levi says that the
                    Mu'ad gored the big animal, and Reuven says
                    oppositely, he pays what he admits. This is
                    unlike wheat and barley. Levi claims damage for
                    the big one from the Aliyah (i.e. not limited
                    to the value of the damager) and Reuven admits
                    to damage for the small one from the Aliyah.
                    This is like a claim for clothing (Shach's text
                    - the value of) a big slave, and he admits to
                    that of a small one.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Nimukei Yosef (DH Mai):</font></b> When both are Tam,
                    since the admission is not considered mi'Min
                    ha'Ta'anah (like the claim) to obligate an
                    oath, it does not obligate paying. One might
                    have thought that admission and denial of wheat
                    and barley is like admission and denial of
                    their value, and he must pay the value of the
                    barley.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Nizkei Mamon 9:11):</font></b> If two oxen of
               Reuven damaged two of Levi's oxen, and Levi says
               that the big ox (or the Mu'ad) damaged the big ox,
               and the small ox (or the Tam) damaged the small ox,
               and Reuven says oppositely, ha'Motzi mi'Chavero Alav
               ha'Re'ayah. If there was no clear proof, Reuven is
               exempt. This is like a claim of wheat and admission
               of barley. He swears Heses and is exempt even from
               paying the barley.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Kama 3:15):</font></b> The Mishnah said ha'Motzi
               mi'Chavero Alav ha'Re'ayah, and not 'exempt', to
               teach that if he seized the animals, he receives
               like Reuven said.
<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 400:4):</font></b> If two oxen of Reuven
               damaged two of Levi's oxen, and Levi says that the
               big ox (or the Mu'ad) damaged the big ox, and the
               small ox (or the Tam) damaged the small ox, and
               Reuven says oppositely, ha'Motzi mi'Chavero Alav
               ha'Re'ayah. If there was no clear proof, Reuven is
               exempt. This is like a claim of wheat and admission
               of barley. He swears Heses and is exempt even from
               paying the barley.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (14):</font></b> The Rashba says that when one of the
                    damagers was Mu'ad, Reuven pays because he
                    cannot swear. The Nimukei Yosef says that even
                    this case is like wheat and barley. The Rambam
                    holds that it is wheat and barley only to
                    exempt Reuven for paying from the small one,
                    but he must swear. Tosfos and the Poskim hold
                    that whenever he did not need to know, he is
                    totally exempt.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Shach 10):</font></b> When there are no
                    witnesses, the Rambam and Shulchan Aruch exempt
                    even when one of them was Mu'ad, unlike the
                    Nimukei Yosef. Why is this different than an
                    admission to a garment (or value) of a small
                    slave in response to a claim of the garment (or
                    value) of a big slave? In Bava Metzi'a and CM
                    (95:3), we obligate for this! It is difficult
                    to say that there, he never retracted from his
                    admission. If so, the Gemara should have asked
                    that he may retract, like it asked regarding
                    Reuven's admission about which ox gored which!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer (Shach):</font></b> The Rambam and Shulchan Aruch
                    agree that an admission to the value of a small
                    slave obligates. He cannot say that he was
                    joking. We asked from Rabah bar Noson because
                    he holds that an admission Lo mi'Min ha'Ta'anah
                    is a mere rebuff. The same applies here.
                    Presumably, Reuven was not there, and should
                    have said 'I do not know about any damage.'
                    Therefore, he can say 'I was joking', just like
                    Rabah bar Noson says about an unnecessary
                    admission to barley.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> This is like the opinion I brought in Sa'if 3.
               Some distinguish and say that  if there were
               witnesses that one damaged but they do not know
               which, Reuven pays according to what he says. This
               is not like wheat and barley; rather, it is an
               admission, like the first opinion in the Mechaber.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (12):</font></b> The Rambam (in Sa'if 3) connotes
                    that the victim is Vadai. He adds that when the
                    victim says that the damager knows, the damager
                    swears mid'Oraisa and pays like he admitted.
                    There is no Shevu'ah mid'Oraisa when the
                    claimant is unsure!
<br>
<font color='blue'><i>See also:</i>
<br><b><b>A SAFEK ABOUT WHICH ANIMAL DAMAGED </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If they argue about the clothing of a big or
          small slave, Question #1 remains. The admission is unlike
          what was claimed!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2B:</font></b> We answer like Rav Papa taught (below), that
          'clothing' refers to fabric from which to make clothing.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection (R. Hoshaya):</font></b> The Mishnah does not discuss
          clothing. It discusses slaves!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #3A (R. Hoshaya):</font></b> They argue about a big or small
          slave with the clothing he wears, or a big or small field
          with the piles of grain in it.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Also regarding a clothed slave, Question #1
          remains. The admission is not a portion of the claim! (A
          small garment is not a portion of a larger garment.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #3B (Rav Papa):</font></b> 'Clothing' refers to fabric from
          which to make clothing.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection (Rav Sheshes):</font></b> Does the Mishnah teach that once
          he must swear about Metaltelim, he must swear about land
          (or slaves)? Another Mishnah teaches this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one must swear about Metaltelim, his opponent can
               make him swear also about land.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #4A (to Question #3 - Rav Sheshes):</font></b> The Mishnah is
          R. Meir, who says that slaves are considered Metaltelim
          (so we swear about them).
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	Question #1 remains. The admission is not a portion of
          what was claimed!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #4B (to Question #1 - Rav Sheshes):</font></b> R. Meir holds
          like R. Gamliel.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Yehudah claimed wheat and Levi
               admitted to owing only barley, Levi is (totally)
               exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Gamliel says, he is liable (to swear that he does
               not owe wheat. Most explain, he must also pay the
               barley.)
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	Question #2 remains. This is Heilach!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #4C (to Question #2 - Rava):</font></b> Reuven does not
          return the small slave or land intact. He cut a limb off
          the slave, or dug pits in the land.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DO WE SWEAR ABOUT SLAVES AND LAND?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (against Answer #4A):</font></b> R. Meir holds that slaves
          are like land (which we do not swear about)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah #2):</font></b> If a man stole an animal or slaves and
               they grew old, he pays like at the time of the
               theft;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Meir says, regarding slaves he can say 'here are
               your slaves.' (Slaves are like land, so they are
               never considered to be stolen.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> We can answer like Rabah bar Avuha, who switches
          the opinions in Mishnah #2. R. Meir says that one must
          pay for slaves (for they are unlike land). Chachamim
          exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> (Mishnah #1 holds that we swear about land.)
          What is the source that R. Meir equates land to slaves,
          to teach that we swear about land? Perhaps we swear about
          slaves, but not about land!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Beraisa #1 - R. Meir):</font></b> If Reuven traded a cow for
          Shimon's donkey, or he sold a slave, and the cow or slave
          gave birth (elsewhere), and one party says 'I owned the
          mother at the time of birth (so the child is mine)', and
          the other party is silent, the party claiming the child
          gets it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If both parties are unsure, they each own half the
               child;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If both parties claim the child, the original owner
               of the mother swears that he still owned her at the
               time of birth (and he gets the child), for
               mid'Oraisa, the one who swears does not pay.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim say, we do not swear about land or slaves.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Inference:</font></b> Chachamim say that we do not swear about
               land. This implies that R. Meir says that we swear
               about land!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps Chachamim came to argue with R. Meir
          only about slaves., and say 'you should admit that we do
          not swear about slaves, just like you admit that we do
          not swear about land!'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Support (for Rejection - Mishnah - R. Meir):</font></b> There are
          things that are (attached) like land, but they are not
          considered land (so we swear about them; Chachamim
          disagree);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven claims that he entrusted ten laden vines
               to Shimon, who only admits to five, Shimon must
               swear;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, anything attached is like land (we do
               not swear about it).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (R. Yosi bar Chanina):</font></b> They argue about grapes ready
               to be harvested. R. Meir considers them as if they
               are already harvested, and Chachamim do not.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	(Rav Sheshes' answer does not answer Question #3, i.e.
          why does he swear about land? However,) we can defend R.
          Hoshaya's answer (according to Rav Papa, that they argue
          about a big or small slave and fabric to make clothing
          for him, or a big or small field with piles of grain in
          it).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (to Question 2:i):</font></b> Even though another Mishnah
          teaches that one who must swear about Metaltelim must
          swear about land, Mishnah #1 is needed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that (fabric for) a slave's
               clothes are considered like a slave (and we do not
               swear about this), and piles of grain in a field are
               like a field. Mishnah #1 teaches that this is not
               so.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>DIVIDING WHEN IN DOUBT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa #1):</font></b> If each says 'I don't know', they divide
          them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	The Beraisa is Sumchus, who says that when we are in
          doubt, we divide the money.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Seifa):</font></b> If both parties claim the child, the
          original owner of the mother swears that he still owned
          her at the time of birth.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Rabah bar Rav Huna, Sumchus' law is
               even when both make definite claims. Why does the
               seller swear? They should divide it!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> When one party is obligated to take an oath
          mid'Oraisa, Sumchus admits that he swears and gets like
          he says;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We must establish it like Rava. He cut a limb off
               the slave, therefore it is not Heilach.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>SELLING OLIVE TREES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven sold his olive trees to Shimon for
          the wood, and before he cut them, they produced poor
          olives, which yield less than a Revi'is of oil per Se'ah
          of olives, Shimon keeps them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they produced olives that yield a Revi'is of oil
               per Se'ah, and Shimon claims 'it is due to my
               trees', and Reuven claims 'it is due to my land',
               they divide them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If a river flooded Levi's trees and deposited them in
          Shimon's land, and they produced olives, and each claims
          'it is due to my trees/land', they divide them.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven told Shimon to cut the trees immediately,
               even if the olives yield less than a Revi'is, they
               belong to Reuven (Shimon had no right to leave the
               trees standing)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he told Shimon to cut them whenever he wants,
               even if the olives yield a Revi'is, they belong to
               Shimon!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> He did not specify;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One is not concerned about poor olives that yield
               less than a Revi'is. One is concerned about olives
               that yield a Revi'is.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Shimon ben Pazi):</font></b> The Mishnah discusses producing a
          Revi'is, i.e. profit (above the expenditures of
          harvesting and pressing the olives).
<br>

sjt:
</p><p>
<font><b>2) A CASE OF 'HEILACH'</b></font><b>
<br>QUESTION:</b> The Mishnah (100a) discusses various cases in which a dispute arises between a buyer and a seller concerning the object that was purchased. The Mishnah says that in a case in which the buyer claims with certainty that he bought the larger Eved (or larger field), and the seller claims with certainty that he sold the smaller Eved (or smaller field), the seller must swear that he sold the smaller Eved (and then the buyer receives only the smaller Eved). This Shevu'ah is a 'Shevu'as Modeh b'Miktzas,' since the seller admits that he did sell something.
</p><p>
The Gemara (100a) asks several questions on the Mishnah's ruling. The Gemara asks that this is not a case of 'Modeh b'Miktzas' because the seller does not admit to any part of the buyer's claim. The buyer claims that he bought one Eved (or one field), and the seller claims that he sold a completely different Eved (or field). The case of 'Modeh b'Miktzas' is a case in which the defendant admits to part of what the claimant actually claims is his. In the case of the Mishnah, the seller's admission relates to an entirely different item.
</p><p>
The Gemara then asks that this case should be considered a case of 'Heilach,' because when the seller denies that he sold a large Eved, he hands over the small Eved that he admits having sold. One opinion cited earlier (4a) maintains that one does not make a Shevu'ah of 'Modeh b'Miktzas' in a case of 'Heilach.'
</p><p>
Finally, the Gemara asks that there is a rule that one does not swear about Avadim (or Karka'os, land). Why, then, does the seller have to swear?
</p><p>
Shmuel answers that in the Mishnah's case, the dispute is not over the Eved himself, but over the <i>clothes</i> of an Eved (or, in the case of the field, the sheaves of grain on the field). The buyer claims that he bought the clothing of a large Eved, while the seller claims that he sold the clothing of a small Eved. The subject of the dispute, therefore, is mobile property (Metaltelin) about which a Shevu'ah may be made (in contrast to Avadim and Karka'os). This answers the third question. It also answers the first question, as the Gemara itself explains, because the dispute involves one large piece of fabric from which the clothing is made. Thus, the seller indeed admits to part of the buyer's claim; the buyer claims that he is entitled to a large piece of fabric, while the seller maintains that only a portion of that fabric was sold.
</p><p>
How, though, does Shmuel's explanation answer the second question? The case still should be considered a case of 'Heilach,' because the seller readily gives to the buyer the part of the claim to which he admits (i.e. part of the clothing), and no Shevu'ah should be made. (<b>RAN</b>)
</p><p>
<b>ANSWER:</b> The <b>RAN</b> answers that the case is not a case of 'Heilach' because the clothing in dispute is attached to one large piece of fabric, as the Gemara explains. Accordingly, the buyer does not claim a specific article of clothing, but rather he claims an <i>amount</i> (such as a length) of any part of the roll of fabric. Hence, when the seller agrees that he sold a smaller amount, there is no specific, identifiable object that the seller hands over as part of his admission. Rather, the seller now must choose which part of the fabric he will give to the buyer. Therefore, the seller's admission does not involve 'Heilach.' (Similarly, with regard to the sheaves in the field, the buyer claims a <i>number</i> of sheaves, but not any particular sheaves.) (Y. Marcus)
</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A TREE DEPOSITED ON ANOTHER'S PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	If a river flooded Levi's trees...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Ula):</font></b> The Mishnah discusses only if they were uprooted
          with their surrounding earth, and after three years;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Within three years, Levi gets all the olives. Even
               if Yehudah would have planted his own trees, he
               could not have benefited from the Peros for three
               years (they are Orlah).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> Yehudah can say, had I planted my own trees, I
          would have received all the Peros after three years. I
          agreed to keep your trees there and let you share the
          Peros after three years, only on condition that I share
          the Peros within three years!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Ravin):</font></b> The Mishnah discusses only if they were uprooted
          with their surrounding earth, and within three years;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> After three years, Yehudah gets all the olives. Had
               he planted his own trees, he would have received all
               the Peros after three years.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Levi can say, had you planted your own trees,
          you would not have benefited for three years;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Now that you shared the olives with me within three
               years, I should share after three years!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Yehudah can say, had I planted my own trees, they
          would have been small the first three years, and I could
          have planted beets and vegetables underneath them. (Your
          trees were big and I could not plant under them,
          therefore I shared the olives.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Levi cannot say 'I will take back my trees'.
          (He does get half the olives for three years, and is then
          paid the value of trees (for replanting)).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Why can't he take back his trees?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> This is an enactment for the
          settlement of Eretz Yisrael.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ENACTMENTS FOR THE SETTLEMENT OF ERETZ YISRAEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Yehudah):</font></b> If Reuven is a sharecropper on
          his ancestors' field that (now) belongs to a Nochri, he
          must tithe even the half that he returns to the Nochri.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is 'his ancestors' field'?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> It is Eretz Yisrael, which formerly belonged
          to Avraham, Yitzchak and Yakov.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Yehudah holds that a Nochri cannot acquire Eretz
          Yisrael to uproot (the Kedushah and) the obligation to
          separate Ma'aser from the Peros, and that a sharecropper
          (who gets a fixed portion of the produce) is like a
          Choker (one who rents a field on condition to pay a fixed
          amount of Peros each year);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like a Choker must tithe and pay the Nochri
               whether or not the field produces, for he pays a
               debt, also a sharecropper.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rav Kahana - Beraisa - R. Yehudah):</font></b> If Reuven
          is a sharecropper on his ancestors' field that now
          belongs to a Nochri extortionist, he must tithe even the
          Nochri's share.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why does the Beraisa discuss an extortionist? The
               same applies to any Nochri!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, R. Yehudah holds that a Nochri can
          acquire Eretz Yisrael to uproot Ma'aser, and a
          sharecropper is not like a Choker. The field belonged to
          Reuven's father or grandfather;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The obligation to tithe is a fine on heirs of the
               original owners. Since the field is dear to them,
               they will work it anyway.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason for the fine?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> It encourages the heir to buy it
          back from the Nochri.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WORKING FOR ANOTHER'S BENEFIT WITHOUT HIS PERMISSION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> If Reuven planted Shimon's field without
          permission, he has the lower hand (he gets the
          improvement or his expenditures, whichever is smaller);
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> We estimate how much someone would pay to have
          such a field planted.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> They do not argue. Rav discusses a field that
          is not normally planted, and Shmuel discusses a field
          that is normally planted.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Rav did not say this explicitly. Rather it was inferred
          from the following case.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Yehudah planted Levi's field without permission. Rav
               said that he must estimate and pay. Levi said 'I did
               not want it planted.' Rav said that he must estimate
               and pay, but Yehudah has the lower hand. Levi
               refused.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Later, Rav saw Levi guarding the crops. Since he
               showed that he was happy that it was planted, he
               forced him to give Yehudah the upper hand.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If Reuven rebuilt Shimon's ruined house
          without permission he may take back his wood and rocks;
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Sheshes):</font></b> He may not.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Beraisa - R. Shimon ben Gamliel):</font></b> Beis Shamai
          say, he may take them back;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beis Hillel say, he may not.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Does Rav Nachman rule like Beis Shamai?!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> No, Rav Nachman rules like R. Shimon ben Elazar.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Shimon ben Elazar):</font></b> He may take them
               back;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Gamliel says, Beis Shamai say that he
               may take them back, and Beis Hillel say that he may
               not.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Like whom is the Halachah?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (R. Yakov):</font></b> If he rebuilt a house, he may take
          back his wood and rocks. If he planted young trees in a
          field, he may not take them back.
<br>
<br>

sjt:
<font><b>1) HALACHAH: PLANTING TREES</b></font><b>
<br>OPINIONS:</b> The Mishnah (100b) discusses a case in which one person's olive trees were swept away by an overflowing river and took root in his neighbor's field. The Gemara cites a Beraisa which says that the owner of the olive trees may not remove his olive trees from his neighbor's field and replant them in his own field. Rebbi Yochanan explains that the reason for this is 'Yishuv Eretz Yisrael' -- in order to settle the land of Eretz Yisrael. (Some Rishonim explain that this means that if the owner takes his trees back to his own field, the neighbor will not replant trees in his field since he did not plant any trees there in the first place, while if the owner does not take his trees back, he <i>will</i> plant new trees in his field, since he had planted trees there in the first place. Hence, if the owner is not permitted to take his trees back, Eretz Yisrael will be planted with more trees.) Rebbi Yochanan's reason for the ruling of the Beraisa seems to limit the ruling to Eretz Yisrael. Outside of Eretz Yisrael, however, it seems that the owner of the trees <i>may</i> take back his trees. Is this indeed the Halachah?
</p><p>
(a) Most Rishonim (see <b>TOSFOS</b> 101b, DH b'Sadeh) explain the Gemara in its straightforward sense, that the ruling of the Beraisa applies only in Eretz Yisrael.
</p><p>
(b) The <b>RAMACH</b> (cited by the Shitah Mekubetzes, and by the <b>ME'IRI</b> as 'Yesh Poskin'), however, rules that this Halachah applies even outside of Eretz Yisrael. How does he understand the words, 'Mishum Yishuv Eretz Yisrael'? The Ramach suggests that 'Yishuv Eretz Yisrael' means the 'settling of the land <i>of a Yisrael</i> (i.e. of a Jew).' He maintains that there is a benefit in planting and cultivating land owned by Jews even in Chutz la'Aretz. He finds a source for this in the words of Yirmeyahu to the people in exile in Bavel, 'v'Dirshu Es Shelom ha'Ir...' -- 'Seek the peace of the city to which I have exiled you' (Yirmeyahu 29:7). (A similar concept is expressed by the <b>BEIS YOSEF</b> and <b>S'MA</b>, CM 175:43.)
</p><p>

<b>HALACHAH:</b> The <b>TUR</b> and <b>SHULCHAN ARUCH</b> (CM 168:1) state explicitly that outside of Eretz Yisrael the owner of the trees may retrieve his trees. According to their interpretation, the ruling of the Beraisa applies only in Eretz Yisrael because of the Mitzvah of Yishuv Eretz Yisrael.
</p><p>


<font><b>2) PAYING FOR UNSOLICITED IMPROVEMENTS MADE TO ONE'S PROPERTY</b></font><b>
<br>QUESTION:</b> The Gemara discusses a case of a person who enters another person's field and plants trees without permission. Rav rules that the owner of the field is obligated to pay him, but the intruder has the 'lower hand' with regard to the amount of payment. This means that if his expenses were greater than the value of the improvement he made to the field, then the owner needs to pay only the value of the improvement to the field, while if the intruder's expenses were <i>less</i> than the increase in the field's value, then the owner needs to pay only the expenses. Shmuel says that the owner must pay the amount that he would have paid to have trees planted in his field. Rav Papa explains that Rav and Shmuel do not argue. Rav refers to a field which was not designated to be planted, while Shmuel refers to a field which was designated to be planted.
</p><p>
Why should the owner of a field ever be obligated to pay for the intruder's work, which was done without permission? How can a person incur an obligation to pay for something that was done without his consent?
</p><p>
<b>ANSWER:</b> The <b>ROSH</b> (8:22) answers that the Gemara rules this way only in a case in which the landowner is interested in keeping the improvements made to his land. If he does not want to keep the improvements, then he indeed is entitled to tell the intruder, 'Take your improvements and leave!' If he does so, of course, he is not obligated to pay.
</p><p>
With regard to the case of a field which was <i>not</i> designated to be planted, the Rosh explains that the owner claims, 'I did not want these improvements to be made to my field, but since you have already made them I am willing to keep them.'
</p><p>
The Rosh (8:23) makes a similar statement with regard to the next case in the Gemara. The Gemara discusses a case in which a person enters the destroyed building of another person and rebuilds it without permission. In such a case, there is a dispute about whether he is entitled to take away the wood and stones that he used to rebuild the other's building (or force the other to pay for them). The Rosh writes that when the following two conditions are present, the owner must pay for the renovations even if he claims that he does not want them: prior to the renovations he was not using the dilapidated building, and he is significantly financially solvent that paying for the renovations will not adversely affect his livelihood. When these two conditions are met, even if the owner claims he is not interested in the repairs, Beis Din forces him to pay, for it is assumed that he merely is trying to find a way to obtain free repairs.
</p><p>
The <b>CHAZON ISH</b> (Bava Kama 22:6) writes that Beis Din must be sensitive to the subtleties of each individual case and discern whether the property owner truly does not want the improvements made to his property, or he is just trying to obtain free labor in a devious manner while in truth he wants to make use of the work that was done. (Y. Marcus)
</p><p>


<font><b>3) ONE WHO FENCED-IN HIS FIELD AFTER AN INTRUDER PLANTED IT</b></font><b>
<br>QUESTION:</b> The Gemara relates the incident in which Rav made his ruling concerning an intruder who plants trees in another person's field without permission. An intruder planted trees in a field without permission. The owner claimed that he did not want trees planted. Rav said that the owner must assess the improvements that the intruder made to the field and he must pay the value of either the expenses or the improvements, whichever was less. The owner refused to pay. Later, Rav saw that the owner had built a fence to protect the trees that the intruder had planted. Based on that, Rav understood that the owner was happy that they had been planted, and he forced the owner to pay the intruder the full value of the improvements (or the expenses, whichever was greater).
</p><p>
Why did Rav obligate him to pay? The owner explicitly expressed discontent with the improvements, and he was not obligated to accept them since the field was not designated to be planted (as Rashi points out in DH Lo Ba'ina). Even though he later built a fence around his field, that is not necessarily proof that he was satisfied that the trees had been planted. Perhaps once the trees were in his field and he could not get rid of them, he decided to build a fence to protect the field. Why, though, must he pay for the trees as if he wanted them planted there?
</p><p>
<b>ANSWER:</b> The <b>RAMBAN</b> explains that in the case of the Gemara, had the owner truly not desired the improvement to his field, he would have insisted that the improvement be removed rather than fence-in his field. (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO PLANTED IN ANOTHER'S FIELD WITHOUT PERMISSION</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> If Reuven planted trees on Shimon's field
               without permission, he has the lower hand (he gets
               the lesser of the improvement or expenditures);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Shmuel):</font></b> We estimate how much people pay to plant
               such a field.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> They do not argue. Rav discusses a field
               that is not normally planted, and Shmuel discusses a
               field that is normally planted.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Rav did not say so explicitly. It was inferred from
               the following case:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  David planted Levi's field without permission.
                    Rav said that he must estimate and pay. Levi
                    said 'I do not want it.' Rav said that he must
                    estimate and pay, but David has the lower hand.
                    Levi refused.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Later, Rav saw Levi guarding the crops. Since
                    he showed satifaction that it was planted, he
                    forced him to give David the upper hand.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (R. Yakov):</font></b> If Reuven planted young trees in a
               field, he may not take them back.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> Why must he leave the trees?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #1:</font></b> It is for the settlement of Eretz
               Yisrael.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #2:</font></b> It weakens the land.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> These answers argue about a field in Chutz la'Aretz.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (8:23):</font></b> If Reuven built on Shimon's
               land, and Shimon fenced or guarded it, we force him
               to pay for the full building, and Reuven has the
               upper hand. We learn from the case of David and
               Levi. This is better than what Rav Hai Gaon wrote in
               Sefer ha'Mekach. Even if it would be a Safek, the
               claimant cannot make the defendant pay due to a
               Safek. All the more so here, for what I wrote is
               more reasonable!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 10:4):</font></b> If Reuven planted
               Shimon's field without permission, if the field is
               normally planted, we estimate how much people pay to
               plant such a field, and Shimon pays this to him. If
               it is not normally planted, we estimate, and Shimon
               has the lower hand.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> He gets the lesser of the
                    improvements and expenditures. Some say that he
                    gets the smallest estimate of the appraisers.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (5):</font></b> If Shimon said 'take your trees and
               leave', we heed him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam discusses a field not
                    normally planted. Then, Shimon prevails. If it
                    is normally planted, Shimon cannot say this.
                    The Ramban and Rashba agree; it seems that the
                    Rif agrees.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Kesef Mishneh:</font></b> I see no proof that the Rif
                    agrees.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Ra'avad):</font></b> We do not say so in Eretz
                    Yisrael.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> We can say that this is only
                    when the landowner wants the trees. If it is
                    worth more to plant seeds, this is no claim (to
                    say that he must leave the trees for settlement
                    of Eretz Yisrael).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (ibid):</font></b> If Reuven said 'I will take my
               trees', we do not heed him, for it weakens the land.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad:</font></b> This is why we do not heed him even in
                    Chutz la'Aretz. The other opinion gives another
                    reason why we do not heed him.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> The Rambam rules like the latter
                    version.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (8):</font></b> If Reuven planted in Shimon's field
               without permission, and later Shimon guarded the
               trees, or in another way showed that he is pleased
               with what was done, we estimate and Reuven has the
               upper hand.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rosh (8:22):</font></b> Shmuel says that we estimate how much
               people pay to plant such a field, i.e. like
               professionals who plant for the city. Rav Hai Gaon
               says that he has the lower hand, and gets the least
               that the experts appraise.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Bach (1):</font></b> This means that when the improvement
                    exceeds the expenditures, he gets like the
                    experts appraise. This is included in 'he has
                    the lower hand.'
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rosh (ibid):</font></b> Levi's field was normally planted. Rav
               said that David has the upper hand. Levi said that
               he did not want it planted, and David should take
               back his trees. We said that Reuven gets like
               planters receive (if it is normally planted), or he
               has the lower hand (if it is not normally planted)
               when Shimon wants to keep the trees. If not, Shimon
               can say 'take your trees', even if the field is
               normally planted. He can say 'I prefer to plant
               grain.' Rav suggested that Levi pay to David the
               lower amount, i.e. if he (Levi) will agree. When Rav
               saw Levi guard it, this shows that he wanted the
               trees. He ruled that David has the upper hand, for
               the field was normally planted.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Rosh):</font></b> Most Meforshim say that the field was not
               normally planted. This is wrong. If so, we must say
               that the first time, Rav told Levi that David has
               the lower hand. If so, why did he say the second
               time that David has the lower hand'? He already said
               so! Also, if so, after Levi showed that he wants the
               trees, why did Rav obligate him to give to David the
               upper hand?! Surely, when Shimon does not want the
               trees, he can tell Reuven 'take your trees.' It
               follows that Rav taught that Reuven has the lower
               hand when Shimon wants to keep them!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Beis Yosef (CM 375 DH u'Mah she'Chosav Omar):
                    Rashi, the Ramah and, it seems, the Rambam
                    explain that the field was not normally
                    planted. The Rosh said that most explain like
                    this. At first, Rav told Levi to pay Stam. Rav
                    thought that Levi refused because he understood
                    that David has the upper hand. Rav clarified
                    that David has the lower hand. Had Levi said at
                    first 'since it was already planted, I will
                    keep it', David has the lower hand. However,
                    since he said that he does not want it at all,
                    and later we see that he wants it, we say that
                    he wanted it from the beginning. Therefore, it
                    is like a field normally planted, and David has
                    the upper hand.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Drishah (1 DH v'Ayen):</font></b> The Rosh's proof is
                    valid. This is no defense. However, we said
                    'Rav did not say so explicitly. It was
                    inferred...' The Rosh was forced to say that
                    this does not refer to Rav's law (about a field
                    that is not normally planted), rather, Rav
                    Papa's teaching, that Rav admits about a field
                    that is normally planted.
<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 375:1):</font></b> If Reuven planted
               Shimon's field without permission, if the field is
               normally planted, we estimate how much people pay to
               plant such a field, and Shimon pays this to him. If
               it is not normally planted, we estimate and Shimon
               has the lower hand.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav):</font></b> Since the
                    Ramah rules like the Rosh, and so is the simple
                    reading of the Rambam, and their reasoning is
                    sound, we rule like this.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Drishah (DH v'Hinei):</font></b> The Tur brings an opinion
                    that Shmuel's law (he pays what one would pay a
                    planter) is even if Shimon says 'take your
                    trees', for we do not heed him (since the field
                    is normally planted). This is the Rambam. Rav
                    discusses a field not normally planted; then,
                    we heed him. The Tur also brings the Rosh, who
                    holds that in every case we heed him. The Ramah
                    also says so, but he holds that Reuven has the
                    upper hand if he showed that he wants the
                    trees, or even Stam (he did not reveal if he
                    wants them) if the field is normally planted.
                    Rav and Shmuel argue about Stam. The Rosh said
                    that most hold like this, but he refuted them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> If Shimon said 'take your trees
               and leave', we heed him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (2):</font></b> Most Poskim learn this from the
                    episode. Levi refused to pay anything, and Rav
                    was quiet, until Levi showed that he wanted the
                    trees. Most say that this is only for a field
                    not normally planted. The Rosh says that it is
                    in any case. The Nimukei Yosef explains that
                    Rav did not know whether it is normally
                    planted, therefore, the first time he did not
                    specify that David has the lower hand.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If Reuven said 'I will take
               my trees', we do not heed him, for it weakens the
               land.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (5):</font></b> The Ir Shushan explains that uprooting
                    the trees would weaken the land. Rashi explains
                    that the trees already weakened the land. It
                    seems that the Rambam and Mechaber agree.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> However, if Shimon said 'take your trees and
               leave', Reuven may do so, even if Shimon later
               retracted.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (6):</font></b> This is like one who said 'swear, and
                    I will pay.' He cannot retract (Shulchan Aruch
                    and Rema, CM 22:3).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (3):</font></b> If Reuven planted in Shimon's
               field without permission, and later Shimon guarded
               the trees, or in another way showed that he is
               pleased with what was done, we estimate, and Reuven
               has the upper hand.
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>YESH KINYAN L'NOCHRI </b></b>(</font><font color='darkblue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Why must he leave the trees?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1:</font></b> It is for the settlement of Eretz Yisrael.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2:</font></b> He already caused (a loss to Reuven,)
          weakening of the land.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between these answers?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> They argue about a field in Chutz la'Aretz.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>GIVING NOTICE BEFORE EVICTING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven rented a house to Shimon in winter,
          he cannot evict him from Sukos until Pesach;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In summer, he cannot evict him for 30 days.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	In big cities he cannot evict him for 12 months.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Regarding a store, even in small cities, he cannot evict
          him for 12 months (to enable the grocer to collect from
          people who bought on credit).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon ben Gamliel says, one who rents a baker or
               dyer's store gets three years.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Presumably, one cannot evict a tenant
          in winter because a person expects to rent one place for
          the entire winter. Likewise, a person expects to rent one
          place for the entire summer!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> One cannot evict a tenant in winter because it is
          hard to find housing in winter.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Reisha):</font></b> In big cities he cannot evict him for
          12 months.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the 12 months expire in winter, he can evict him,
               even though it is hard to find housing!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> The Mishnah tells how much warning
          one must give before evicting a tenant;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven rented a house to Shimon in winter, he
               cannot evict him from Sukos until Pesach without
               giving 30 days warning.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> The 30 days and 12 months are the
          periods of warning before evicting;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like the owner must warn the tenant, also the
               tenant must warn the owner before leaving so he can
               look for suitable tenants.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Asi):</font></b> If he lived there one day in winter, he cannot
          be evicted from Sukos until Pesach.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> (This implies that in summer he can be evicted
          immediately.) The Mishnah gives 30 days!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Asi means that if even one of the 30 days
          extends into winter, he cannot be evicted until Pesach.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>RIGHTS OF A LANDLORD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> The owner may raise the rental.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rav Nachman):</font></b> That is the ultimate eviction!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> He may raise the rent if the cost of housing has
          increased.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Obviously, if Reuven's house fell, he can tell Shimon to
          leave when the contract expires. Reuven need not give
          warning, because he did not know that he would need the
          house.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	If Reuven sold, gave or bequeathed the house to Levi,
          Levi has no right to evict Shimon before Reuven could.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven needed the house to marry off his son (and
               the son will live there), if he could have warned
               the renter but he did not, he cannot evict him. If
               it was impossible to warn him, he may evict him.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Reuven bought a boatload of wine; he had no place to put
          it. He asked Leah if she had a place for it, and she said
          'no'. He was Mekadesh her; she gave him a place. He
          immediately wrote and sent her a Get; she hired workers
          to remove his wine, paying them from the wine itself.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Huna brei d'Rav Yehoshua):</font></b> She (justifiably) treated
          him like he treated her.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is not only if her Chatzer is not normally
               rented. Rather, even if it is normally rented, she
               can say that she does not want to rent to him.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah - R. Shimon ben Gamliel):</font></b> One who rents a baker
          or dyer's store gets three years.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	This is because he extends much credit.
<br><b>
<br></b><b><b><font color='blue'>6) </font></b><font color='blue'>WHAT THE LANDLORD MUST SUPPLY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven rented his house to Shimon, he must
          supply the door, bolt and lock, and everything that
          requires a craftsman;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shimon supplies anything that does not require a
               craftsman.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	The dung belongs to Reuven (this will be explained).
          Shimon only gets (ashes) from the oven.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> If Reuven rented his house to Shimon,
          he must supply the doors, make windows (i.e. holes in the
          wall for air and light), strengthen the roof (if it
          corrodes), and fix any beams that break;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Shimon must make a ladder, a Ma'akeh (a wall around the
          roof to prevent people from falling), a gutter pipe, and
          plaster the roof.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Who must supply the Mezuzah?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Objection:</font></b> This is obvious. Rav Mesharshiya taught
               that the one who lives in a house is obligated to
               affix a Mezuzah!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The question was, who must supply the place
               in which to put the Mezuzah (the word 'Mezuzah'
               means doorpost).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Sheshes - Mishnah):</font></b> Shimon supplies anything
          that does not require a craftsman.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One can put the Mezuzah in a hollow reed and hang it
               from the doorpost. This does not require a
               craftsman!
<br>

<p>

sjt:
</p><p>
<font><b>4) HALACHAH: THE PROPER WAY TO AFFIX A MEZUZAH</b></font><b>
<br>OPINIONS:</b> The Mishnah lists the things that a homeowner must supply when he leases a house to a tenant, and the things that the tenant is obligated to supply. The homeowner must supply anything that requires a craftsman, while anything that does not require a craftsman is supplied by the tenant. The Gemara inquires who must supply the Mezuzah. The Gemara questions that it is obvious that the one who lives in the house is obligated to affix the Mezuzah. The Gemara answers that its initial inquiry was who must build the place in which to put the Mezuzah (such as by drilling a crevice in the doorpost). Rav Sheshes answers that since one can place the Mezuzah in a hollow reed and suspend it from the doorpost, the place of the Mezuzah does <i>not</i> need to be made by a craftsman and thus the tenant must provide it.
</p><p>
Does the Gemara here imply that a Mezuzah need not be placed directly on the doorpost, but may be placed in a case and affixed to the doorpost?
</p><p>
(a) The <b>PISCHEI TESHUVAH</b> (YD 289:2) writes in the name of the <b>VILNA GA'ON</b> that a Mezuzah must be placed directly on the doorpost without any case.
</p><p>
(b) <b>RAV CHAIM KANIEVSKY</b> shlit'a quotes the <b>CHAZON ISH</b> as having said, 'These words could not have come from the [Vilna] Ga'on himself,' because the Vilna Ga'on himself (in YD 289:1) cites the Gemara here as proof that a case <i>may</i> be used. Rav Chaim Kanievsky (in his commentary on the Rambam, Hilchos Mezuzah 2:56) suggests that the Vilna Ga'on objected only to a Mezuzah case that is made from a material different from the material from which the doorpost is made, because the case in such a situation would be a Chatzitzah between the Mezuzah and the doorpost. Accordingly, the Vilna Ga'on understood that the Gemara here refers to a case made of wood, the same material as the doorpost, and thus such a case is not a Chatzitzah ('Min b'Mino Eino Chotzetz'). (Y. Marcus)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>MAY A RENTER TAKE THE MEZUZAH WHEN HE LEAVES?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven rented a house to Shimon, Shimon
          must affix a Mezuzah. When he leaves, he does not take it
          with him,
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the next tenant will be a Nochri, he takes it
               with him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A case occurred in which a man took the Mezuzah with
               him. His wife and two children died.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> The case contradicts the Halachah! (Since it is
          permitted, why was he punished?)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Sheshes):</font></b> The case illustrates the Reisha
          (when the next tenant will be a Yisrael).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>FOR WHOM DOES A CHATZER ACQUIRE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The dung belongs to Reuven. Shimon only gets
          (ashes) from the oven.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon rents the Chatzer and the dung is from his
               own animals, why does Reuven get it?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven did not rent out the Chatzer and the dung
               is from his animals, obviously he gets it!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, Reuven did not rent out the Chatzer.
          The dung is from animals that pass through.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	This supports R. Yosi b'Rebbi Chanina:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yosi b'Rebbi Chanina):</font></b> A person's Chatzer
               acquires for him without his knowledge.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven said 'whatever lost (i.e.
          Hefker) objects enter my Chatzer today, I hereby acquire
          them', this does nothing.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to R. Yosi b'Rebbi Chanina, his Chatzer
               should acquire for him!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, his Chatzer is not guarded.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Seifa):</font></b> If there is talk that a Metzi'ah
          (something ownerless, e.g. fish deposited with the river
          or a lame deer) entered his yard, his words take effect.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If his Chatzer is not guarded, why does he acquire?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Since there is talk that a Metzi'ah entered his
          yard, other people will not take it. It is as if his
          Chatzer is guarded.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Shimon gets ashes from the oven and
          dung that falls through the air (in a Kli that he
          suspended). Reuven gets dung deposited in the pen and the
          Chatzer.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to R. Yosi b'Rebbi Chanina, just like
               Reuven's Chatzer acquires for him, its airspace
               should acquire for him!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> The case is, Shimon hung a Kli by the
          animal's rump to collect the dung (it never entered the
          air).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> (Even if the Kli hangs below the rump,)
          we consider something in the air to be resting on the
          ground only if it is destined to land on the ground.
          (Here, it will fall in the Kli.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Rava was unsure about this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Rava):</font></b> If one threw a wallet through a
               yard, and it left the yard before landing, is being
               suspended in the air, in a domain in which the
               object will not land, like resting on the ground, or
               not?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> There, nothing separates between it and the
          ground. Here, the Kli separates.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Reuven gets dung deposited in the pen and the
          Chatzer.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Version #1 (Rashi) Question:</font></b> Why must the Beraisa teach
          two cases? (Since Reuven owns both, they teach the same
          Chidush.)
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Version #2 (Tosfos) Question:</font></b> This is a contradiction!
          (Clearly, one who rents a house has no rights to the pen.
          Surely, the Beraisa teaches that Reuven gets the dung in
          the pen to exclude dung in the Chatzer!) (end of Version
          #2)
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> The Beraisa teaches that dung in the pen
          in the Chatzer belongs to Reuven (even though Shimon
          rented the Chatzer).
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> This teaches that one who rents a Chatzer
          does not rent a pen inside it.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DOES ONE ACQUIRE EGGS IN HIS PROPERTY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> The Mitzvah to send away a mother
          bird (on eggs or chicks, before taking her offspring)
          applies to doves of a dovecote or an upper story. It is
          considered theft (for someone else to take them) due to
          the ways of Shalom
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to R. Yosi b'Rebbi Chanina, a person's
               Chatzer acquires for him without his knowledge. He
               owns the eggs. He should be exempt from sending the
               mother!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'Ki Yikarei' excludes what is prepared (i.e. his).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rava):</font></b> Once the majority of the egg leaves the
          mother, one (who wants to take it) is obligated to send
          the mother. The Chatzer acquires it only when it lands.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In this case, the Beraisa obligates one to send the
               mother.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why is it considered theft to take the
          eggs? (The Chatzer did not acquire them yet!)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1:</font></b> It is theft to take the mother (Tosfos; Rashi
          - or eggs) due to the ways of Shalom (she normally
          returns to the nest. The owner of the property thinks
          that he owns her.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2:</font></b> It is considered theft to take the eggs due to
          the ways of Shalom, because once the majority of an egg
          is born, the owner of the Chatzer anticipates getting it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Rav Yehudah's law suggests another answer (to Question
<br>      <b>    <b><font color='darkgreen'>(a)</font></b></b>).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> 'Shale'ach... v'Es ha'Banim Tikach' -
               you may acquire the eggs only after sending the
               mother.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Even if the eggs are fully born, the Chatzer
          does not acquire them when the owner could not acquire
          them (i.e. while the mother is on them, for he must send
          her first).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Why is it considered theft to take the eggs due
          to the ways of Shalom?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the mother was sent, the owner of the Chatzer
               acquires them. This is absolute theft?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the mother was not sent, the Torah forbids taking
               the eggs!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa forbids a minor to take the eggs due
          to the ways of Shalom. A minor is not commanded to send
          the mother.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> A minor is not commanded about the ways of
          Shalom, either!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa commands the minor's father to return
          the eggs due to the ways of Shalom.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>CONTRADICTORY WORDING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven rented a house to Shimon for a year
          and it was made a leap year, Shimon need not pay extra
          for the extra month;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he rented it for 12 months, Shimon must pay for
               the added month (if he wants to stay for the full
               year).
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	A case occurred in Tzipori in which Levi rented a
          bathhouse to Yehudah for 12 Dinarim for the year, a Dinar
          per month. R. Shimon ben Gamliel and R. Yosi ruled that
          he pays half for the added month.
<br>
<br>

sjt:
<font><b>1) THE 'KINYAN' ACHIEVED BY A RENTED 'CHATZER'</b></font><b>
<br>OPINIONS:</b> The Mishnah (101b) states that when one rents a house, the Zevel that falls into the Chatzer of the house belongs to the owner and not to the tenant. The Gemara explains that the case of the Mishnah cannot be one in which the Chatzer (and not only the house) is rented by the tenant and the Zevel comes from the tenant's own animals, for in that case the Zevel certainly belongs to the tenant. The case of the Mishnah also cannot be one in which the Chatzer is not rented out and the Zevel is from the animals of the owner, because in such a case it is obvious that the owner keeps the Zevel, and it is unnecessary for the Mishnah to teach this. The Gemara therefore asserts that the Mishnah's case is one in which the Chatzer is not rented by the tenant and the Zevel that falls into it comes from animals that belong to other people.
</p><p>
What is the law in the case of a Chatzer that <i>is</i> rented by a tenant? For whom does the Chatzer acquire objects of Hefker that fall into it, the owner or the tenant?
</p><p>
(a) According to Rashi's Girsa in the Gemara, the Mishnah refers to a case in which the tenant rented only the house and <i>not</i> the Chatzer, and, accordingly, the Chatzer acquires the Zevel for the owner. This implies that if the <i>tenant</i> had rented the Chatzer, <i>he</i> would have acquired the Zevel. Thus, Rashi's version of the Gemara indicates that a rented Chatzer acquires objects of Hefker for the tenant and not for the owner.
</p><p>
(b) The <b>RAMBAM</b> (Hilchos Sechirus 6:5) understands the Gemara differently. According to the Rambam, the Gemara means that in the case of the Mishnah the Chatzer was rented out, but the owner of the Chatzer still acquires objects of Hefker that fall into it. The Rambam maintains that a rented Chatzer is Koneh for the owner, not for the tenant. The <b>VILNA GA'ON</b>, <b>KETZOS HA'CHOSHEN</b>, and other Acharonim question the Rambam's ruling from a number of Gemaras which seem to support the opinion of Rashi (see commentaries to Shulchan Aruch CM 313:3). (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES ONE ACQUIRE WITH A RENTED CHATZER?</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 (R. Zeira) Question:</font></b> Does Ona'ah apply to
               rental?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The verse of Ona'ah discusses a sale, not
                    rental. Or, perhaps we do not distinguish!
<br>       <b>   <b><font color='darkgreen'>2.  </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>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 102a (Mishnah):</font></b> The dung belongs to Reuven (who owns
               the house). Shimon (the renter) gets only (ashes)
               from the oven.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> If Shimon rents the Chatzer and the dung
               is from his own animals, why does Reuven get it? If
               Reuven did not rent out the Chatzer and the dung is
               from his animals, obviously he gets it!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, it is Reuven's Chatzer, and
               dung from others' animals.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Kidushin 26b (R. Elazar):</font></b> A case occurred in which a
               man wanted to give a large gift of Metaltelim. They
               told him that the only solution is to give them with
               land. He bought a small plot of land and said 'the
               northern part is given to Ploni, and with it 100
               flock and 100 barrels.' He died. The gift was valid.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Mishnah):</font></b> R. Gamliel and Chachamim were on a boat.
               He said 'the tithe (Ma'aser Rishon) that I will
               measure off later is given to R. Yehoshua, and I
               rent to him the area it rests on. Another tithe
               (Ma'aser Ani) that I will measure off later is given
               to R. Akiva, to acquire it on behalf of the poor. I
               rent to him its place.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> This does not prove that the Metaltelim must be on
               the land given. R. Gamliel rented the land to them
               so they could leave the Peros there indefinitely.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Avodah Zarah 15a (R. Yitzchak brei d'Rav
               Mesharshiya):</font></b> Rental does not acquire!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If a Kohen rents a cow from a
                    Yisrael, the Kohen must feed it, but he may not
                    feed it vetch (fodder that people can eat) of
                    Terumah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If rental acquired, the Kohen would own the
                    cow, and he would be allowed to feed it vetch
                    of Terumah!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Gitin 77b:</font></b> Rava): The moment a Get is put in a
               woman's hand, she is divorced and simultaneously
               gets back her Yad (power of acquisition). Similarly,
               the moment a Get enters her yard, she is divorced
               and they are hers.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Rav Ashi):</font></b> A husband does not own his wife's hands!
               Really, Rava asked about the opinion (Kidushin 22b)
               that a slave can himself receive a Get of freedom
               from his master.
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> A man did not expect to survive until after Shabbos;
               he wrote a Get to his wife just before Shabbos. Rava
               said that he should give to her, for a gift, the
               place where the Get is resting. She should close the
               door there (on Shabbos) to acquire it through
               Chazakah.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Rav Ilish:</font></b> How will it help her to acquire the area?
               What a wife acquires belongs to her husband!
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b> Rava was embarrassed. Later, it was found that she
               was only an Arusah. A husband gets what his wife
               acquires only after Nisu'in.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> (Rava):</font></b> Even a Nesu'ah acquires the place at the
               moment of divorce!
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (Bava Metzia 59a and 8:28):</font></b> The owner
               of the house gets the dung, i.e. when he did not
               rent out the Chatzer. The dung is from others'
               animals.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (32a DH Gemara):</font></b> The Ran says
                    that rental is a temporary sale regarding usage
                    of the item. The item itself still belongs to
                    the owner.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 6:5):</font></b> Dung in a Chatzer
               from the renter's animals belongs to the renter.
               Dung of others' animals belongs to the owner. One's
               yard acquires for him, even if it is rented out.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> The Gemara connotes that
                    had he rented it out his Chatzer, the renter
                    would get it, just like a buyer who rents the
                    premises acquires immediately.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Question (Beis Yosef CM 313 DH veha'Rambam):
                    The Rambam is difficult. Rental is like a sale
                    for that period of time!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer #1 (Toras Chaim Bava Metzia 102a DH
                    Memkar):</font></b> A cattle pen is rented for cattle and
                    dung. A Chatzer is only for people's needs,
                    therefore the renter does not get dung of
                    others' animals. If one rented a cow for two or
                    three years for milk, and it gave birth, will
                    he receive the calf?! He rented it only for
                    milk! This is why a worker keeps Metzi'os that
                    he finds, for he was not hired to find
                    Metzi'os.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer #2 (Lechem Mishneh 7:1):</font></b> R. Matalon says
                    that the Rambam explains that it is as if the
                    owner stipulated that he rents the Chatzer only
                    for necessary uses, but not for other rights,
                    such as acquisition. I answer like the Nimukei
                    Yosef, that rental is like a sale for that
                    period only regarding usage. The property still
                    belongs to the owner (and acquires for him).
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer #3 (Shach CM 313:1):</font></b> Tosfos (Bava Metzia
                    56b DH v'Hai) says that rental is like a sale
                    only regarding Ona'ah. The Bach (Sof DH
                    ha'Socher) says that mid'Rabanan, it is like a
                    sale in other respects. What is his source?!
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Rebuttal (Gra CM 313:5):</font></b> Also the Rosh
                    (Teshuvah 1:1) says that rental is like a sale
                    to acquire. All the Meforshim are unlike the
                    Rambam.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Question (Ketzos ha'Choshen 313:1):</font></b> If rented
                    land really belongs to the owner, he cannot
                    authorize someone else (the renter) to acquire
                    through the land without transferring ownership
                    of the land!
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Answer (Ketzos ha'Choshen ibid.):</font></b> R. Matalon
                    says that the owner can retain rights to
                    acquire. R. Gamliel wanted R. Yehoshua and R.
                    Akiva to acquire. The Rambam (Hilchos Gerushin
                    5:1) says that a rented Chatzer can acquire a
                    Get, for rights to acquire normally come with
                    rights of usage.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Maharit (2 CM 83):</font></b> Even though rental is a sale
                    for the day, it does not suffice to acquire
                    Agav. The man who wanted to give a large gift
                    of Metaltelim needed to buy a piece of land. It
                    did not suffice to rent or borrow it! R.
                    Gamliel rented the place of the tithes to R.
                    Yehoshua and R. Akiva, and the Rambam says that
                    renting the place works. This is only to enable
                    the buyer's Kelim to acquire there, but not to
                    acquire through the land itself.
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Rebuttal (Ketzos ha'Choshen 313:1):</font></b> The case
                    with R. Gamliel proves that rental suffices for
                    Agav. The Rema (CM 202:1) rules like this.
<br>             <b>  <b><font color='darkgreen'>xi. </font></b><font color='darkgreen'> Note:</font></b> In another case (Kidushin 26b), a man
                    bought much land and gave a square Tefach to
                    Ploni, and with it 100 flock and 100 barrels.
                    Why did he buy so much? Perhaps no one wanted
                    to sell less to him, or he wanted to buy a lot
                    (e.g. to help publicize the gift). The same
                    reasons could explain why he (and the man who
                    bought a small plot) did not merely rent!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Tosfos Bava Basra 51b DH b'Matanah):</font></b> R.
               Tam says that one can acquire through property only
               if he can sell or give it; Peros rights do not
               suffice. A renter acquires, even though he cannot
               sell the property!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (R. Tam, in Tosfos):</font></b> A renter has great
               rights. Even if he died during the rental period,
               his heirs keep the premises until the end of the
               period. If a woman sold property and died, her
               husband takes it back immediately.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (Bava Basra 3:54):</font></b> If a man gave a gift to his
               wife, she acquires and he does not eat the Peros.
               Why was Rava embarrassed about his counsel to give a
               Get? Since a husband does not eat the Peros of what
               he gives to his wife, she can acquire a Get there!
               Some say that it was not a proper gift; he merely
               lent the place to her. I disagree. He could give it
               for a total gift until the divorce! R. Tam says that
               ability to acquire does not depends on rights to the
               Peros. Rava holds that Kinyan Peros is not like
               Kinyan ha'Guf. Rather, since she could not sell it,
               it is not considered hers. Also, even though she
               eats the Peros, the Peros are like property that
               fell to her. We buy land with it, and he eats the
               Peros of that land. Some ask that it should acquire
               for her like a borrowed or rented field. I say that
               it is unlike a rented field, for her husband still
               has rights to spread Peros in it.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (313:3):</font></b> Dung in a Chatzer from the
               renter's animals belongs to the renter. Dung of
               others' animals belongs to the owner. One's yard
               acquires for him, even if it is rented out.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Maharit (1:65):</font></b> Since Poskim argue about
                    whether a rented Chatzer acquires for the owner
                    or the renter, whoever is Muchzak keeps it.
                    This is like seizure before the Safek arose,
                    which helps.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ketzos ha'Choshen (1):</font></b> The Rambam (Hilchos 
                    Gerushin 5:1) says that a rented Chatzer can
                    acquire a Get, for rights to acquire normally
                    come with rights of usage. The Torah teaches
                    that it suffices to put a Get in a woman's
                    Chatzer, so we are not concerned if her husband
                    has usage (Peros) rights. (In conclusion, we
                    need not say her Get and Chatzer come
                    together.) We are concerned for usage regarding
                    other acquisitions through a Chatzer.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Avnei Milu'im (138:1):</font></b> Even though Kinyan Peros
                    is not like Kinyan ha'Guf, a rented Chatzer
                    acquires for the owner because it is his
                    Reshus. Why did Rav Ashi say that Rava really
                    asked about how a slave can receive his own
                    Get? Rava explicitly discussed a woman! Rather,
                    Rava (Kidushin 42b) holds that brothers who
                    divide an inheritance are like buyers. It
                    follows that he holds that Kinyan Peros is like
                    Kinyan ha'Guf, so it is as if her husband owns
                    her hands.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>HOW CAN A WOMAN RECEIVE A GET IN HER PROPERTY? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> The case contradicts the law!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah is abbreviated. It should say as
          follows: if he rented it for 12 Dinarim for the year, a
          Dinar per month, they split the added month;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A case occurred... R. Shimon ben Gamliel and R. Yosi
               ruled that he pays half for the added month.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav):</font></b> I would have ruled that he must pay for the entire 
          month.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Does Rav come to teach that (when someone says
          two contradictory things,) we follow the latter? He
          taught this elsewhere!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Huna citing Rav):</font></b> If Reuven sold something for
               'Istira (half a Zuz, which is 96 Perutos), 100
               coins', the price is 100. If he sold for '100 coins,
               Istira', the price is 96.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #1 (Rashi) Answer:</font></b> Had Rav said only that, one
          might have thought that there the latter expression
          explains the former (a big Istira worth 100, or 100 small
          coins worth 96).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Version #2 (Tosfos) Answer:</font></b> Had Rav said only that, one
          might have thought that here, the latter expression
          explains the former (12 Dinarim for the year, to be paid
          a Dinar each month, not all at the end).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> The Mishnah discusses when they come to Beis
          Din (for a ruling) in the middle of the 13th month, but
          if Levi said at the beginning of the month 'you must pay
          extra for this month', Yehudah must pay for the entire
          month;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Levi made no claim until the end of the month,
               Yehudah need not pay.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Shmuel agrees that the latter phrase is
          binding!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav and Shmuel):</font></b> If one said 'I sell you a Kor for
               30 (Sela'im)', he can retract until he measures out
               (Rashi - until the buyer does Meshichah on) the full
               amount);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said 'I sell you a Kor for 30, a Se'ah for a
               Sela', the buyer acquires each Se'ah when it is
               measured out (Rashi - when he is Moshech it).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Shmuel is unsure whether or not the latter phrase
          is binding, so we follow Chazakah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There, he cannot retract because the buyer is
               Muchzak in what he holds;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Here, Levi is Muchzak in his bathhouse. Yehudah
               cannot use it without proving that he is entitled
               to. Yehudah is Muchzak in his money; Levi cannot
               make him pay for what he used of the extra month.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> The owner is Muchzak in his land. (Even if
          Levi claims at the end of the month, Yehudah must pay.)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Rav Nachman must hold that the latter phrase is
          binding. He merely says like Rav!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> No, he is unsure which phrase we follow;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even if the phrase favoring the renter was said
               last, the owner is Muchzak and the renter must pay.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>IS A RENTER BELIEVED TO SAY THAT HE PAID?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> If Yehudah says that he paid, and Levi says
          that he was not paid, who must bring proof?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Whether this is before or after the time
               the rent is due, a Mishnah teaches the law!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If Yakov died within 30 days of the
                    birth of a firstborn son Reuven, we assume that
                    he did not redeem him (Reuven must redeem
                    himself when he matures), unless he proves that
                    he was redeemed;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If Yakov died more than 30 days after the
                    birth, we assume that he redeemed him, unless
                    people (neighbors) say that he was not
                    redeemed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The owner and renter are arguing on the day
               the rent is due. The question is, does one pay on
               the day that the money is due?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (R. Yochanan - Mishnah):</font></b> If a worker claims (on
          the day he worked) that he was not paid, he swears and
          collects.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim believe only a worker to swear and
               collect. Since the employer is distracted with his
               workers, we assume that the employer erred;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Here, we allow the renter to swear that he paid.
<br>

<p>

sjt:
</p><p>
<font><b>2) A DISPUTE OVER THE THIRTEENTH MONTH OF THE YEAR</b></font><b>
<br>QUESTION:</b> The Mishnah mentions an incident in which a tenant agreed to rent a property 'for twelve gold pieces for the year, one Dinar per month,' and the year was subsequently made into a leap year with thirteen months. The Gemara explains that such a case involves a contradiction in the terms of the rental. According to the first phrase ('for twelve gold pieces for the year'), the tenant should not be required to pay an additional gold piece for the extra month since the extra month is part of the year. According to the second phrase ('one Dinar per month'), the tenant should be required to pay an extra Dinar for the extra month. Rav Nachman (whom the Halachah follows) rules that the tenant must pay for the extra month, even if he has already lived there for that extra month. Rav Nachman's reasoning is that since the property itself (the rented house) belongs to the owner, the owner is considered to be the one who is 'Muchzak' in this case. Since he has a Chazakah that the house is his, the tenant is not entitled to live there without paying the additional fee.
</p><p>
Why, though, should the ownership of the property be the deciding factor? The dispute is not about who owns the house, but rather about whether the tenant owes the rental money for the additional month. Since the tenant is in possession of that money, <i>he</i> should be considered 'Muchzak' and he should not have to pay!
</p><p>
<b>ANSWER:</b> The <b>KUNTRUS HA'SEFEIKOS</b> (at the end of the Sefer) explains that in any case of a Safek in which Beis Din rules based on who is 'Muchzak,' the Muchzak is determined based on the moment when the Safek began. In this case, the Safek began at the end of the twelfth month. The owner claims that the rental agreement was for 'one Dinar per month.' According to his claim, every month is a separate rental period, and the tenant therefore is entitled to enter the house for the thirteenth month <i>only</i> on condition that he pays a thirteenth payment. According to the tenant's claim that the rental agreement was for 'twelve gold pieces for the year,' the original rental period (one year) has not yet terminated; it will end only at the conclusion of the thirteenth month. Therefore, the dispute between the owner and the tenant deals with whether or not the tenant may enter the house for the thirteenth month. Since the dispute involves the use of the house, the owner is considered the 'Muchzak' since he is in possession of the house.
</p><p>
(According to this explanation, Rav Nachman's ruling applies only in a case where the subject of the dispute is <i>Karka</i>, such as a house or a field. Regarding whether his ruling also applies to Metaltelin, see Insights to 103:1, which mentions that Tosfos in this Sugya (103a) and Tosfos in Bava Basra (61b) argue about this point.) (Y. Marcus)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DISPUTING THE LENGTH OF A RENTAL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #1 - Rashi - (Rava):</font></b> If Shimon has an undated
          document saying that Reuven rented a house to Shimon for
          ten years, and Reuven claims that five years have expired
          (and Shimon says that only three have expired), Reuven is
          believed.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #2 - Tosfos - (Rava):</font></b> If Reuven has a document
          saying that he rented a house to Shimon for ten years for
          100 Dinarim, ten Dinarim per year, and five years have
          expired, and he claims that no rent was paid, and Shimon
          says that he had paid for the five years, Shimon is
          believed. (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Acha mi'Difti):</font></b> Will we also say that if
          Reuven borrowed 100 Zuz with a document and says that he
          paid half, he is believed?!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> That is different. A loan document is
          destined to be fully paid. If he paid half, he should
          have written so on the document itself, or gotten a
          receipt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 (Rashi):</font></b> Here, the document was written
               to publicize the rental, so Shimon cannot claim that
               he bought the house. (It is not to prove that he
               gets ten years from when he shows the document!)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2 (Tosfos):</font></b> Here, the document was written
               to prevent Shimon from claiming that he bought the
               house. (It is not to prove that he owes rent for all
               ten years!)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HOW GENEROUSLY DO PEOPLE LEND THINGS?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> Reuven asked to borrow Shimon's Kli
          'b'Tuvo (in its goodness)', and Shimon consented, Reuven
          can borrow it forever, whenever he needs it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Mari brei d'Vas Shmuel):</font></b> This is if he made an
          acquisition. If not, (Rashi - if he returns it) he does
          not have permanent rights to it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Mari brei d'Rav Ashi):</font></b> When it is no longer fitting
          to use, he returns the remnant (e.g. the handle of an
          axe).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven asked to borrow Shimon's shovel to dig
          in this orchard, he may dig in that orchard;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he borrowed to dig in an orchard, he may dig in
               any orchard he wants;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he borrowed to dig in 'Pardisai' (my orchards),
               he may dig in as many orchards as he has, even if he
               wears out the shovel.
<br>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> If Reuven asked Shimon 'lend to me this well
          (to irrigate my fields)', and it caved in, Reuven cannot
          say 'I will rebuild it and you must let me use the new
          one';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he asked 'lend to me a well', and it caved in,
               Reuven can rebuild it, and he may use it to irrigate
               all his fields (like before it caved in);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he asked 'lend to me place for a well', he may
               dig in as many places as needed until he finds
               water;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He must make an acquisition. If not, Shimon can
                    retract his promise.
<br>
<br><center><font color='ff0000' size='+1'><b>*****<b>PEREK HA'MEKABEL</b>*****
</b></font></center><p><b>
<br><b></b><b><b><font color='blue'>3) </font></b><font color='blue'>FOLLOWING THE LOCAL CUSTOM OF WORKERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven accepted to work on Shimon's field
          (to receive a fixed portion of the Peros, like a
          sharecropper, or to rent it on condition to pay a fixed
          amount of Peros each year, like a Choker, he follows the
          local customs, such as to reap (the grain, leaving the
          stalk) or to uproot (the entire stalk), or to plow after
          harvesting.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	They share the straw just like they share the grain. They
          share the vines and reeds just like they share the wine;
<br>
<br>

sjt:
<font><b>1) THE MINIMUM NUMBER OF 'FIELDS'</b></font><b>
<br>QUESTION:</b> The Gemara says that if a person borrows a hoe and tells the owner that he will use it 'to hoe orchards,' he is entitled to hoe as many fields as he wants.
</p><p>
The Gemara here seems to contradict the Gemara in Bava Basra (61b) that states that when a fieldowner says to a buyer, 'I am selling <i>fields</i> to you,' the buyer is entitled to only <i>two</i> fields, because the plural term 'fields' denotes a minimum of two. Why, then, may the borrower of the hoe use the hoe for as many fields as he wants? He should be permitted to use it for only two fields. (<b>TOSFOS</b> DH Pardisi)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> here answers that there is a difference between a Sho'el (borrower) and a Loke'ach (buyer). The Gemara here refers to a person who <i>borrows</i> a hoe. In such a case, the Sho'el becomes 'Muchzak,' and Beis Din accepts his claim that the plural word 'fields' that he used means many fields and not just two. The Gemara in Bava Basra, on the other hand, refers to a person who <i>buys</i> fields. In such a case, the <i>seller</i>, and not the buyer, is considered 'Muchzak,' and thus the seller is entitled to claim that the plural word 'fields' means only two fields.
</p><p>
Tosfos' assumption that a Sho'el is considered the 'Muchzak' seems to contradict a Sugya earlier. Rav Nachman (102b) states that the <i>owner</i> of a rented house, not the tenant, is the one who is 'Muchzak.' A borrower is similar to a renter, and the owner should therefore be the 'Muchzak.'
</p><p>
(b) <b>TOSFOS</b> in Bava Basra (61b, DH Ar'asa) rejects the notion that the Sho'el is considered to be 'Muchzak' because of the abovementioned question. Tosfos there explains instead that when a person borrows an instrument to work on his 'fields,' it is normal for the owner to allow him to use it for many fields and not to limit it to the minimum number of two. In contrast, when one <i>sells</i> 'fields,' it is not generally the intent of the seller to sell all of his fields, and thus it is assumed that his intent is to sell only the minimum number of two.
</p><p>
How does Tosfos here reconcile his explanation -- that a Sho'el is considered 'Muchzak' -- with the statement of Rav Nachman, who says that a Socher (and, similarly, a Sho'el) is not considered 'Muchzak'? Tosfos differentiates between Karka and Metaltelin. Rav Nachman considers the owner 'Muchzak' only with regard to <i>land</i> (or a house). When a movable object is borrowed, however, the Sho'el is considered 'Muchzak.' Tosfos explains that the difference between Karka and Metaltelin stems from how easily each one can be hidden. A person who rents Karka cannot hide the Karka, and therefore the owner is still considered 'Muchzak.' An item of Metaltelin, in contrast, can be concealed easily, and thus the Sho'el (or Socher) is considered 'Muchzak.'
</p><p>


<font><b>2) PAYING FOR A COLLAPSED HOUSE</b></font><b>
<br>OPINIONS:</b> The Gemara states that when a person rents a specific house ('Bayis Zeh') from a homeowner and the house collapses before the end of the rental period, the owner does not have to provide the tenant with another house. Must the tenant pay the rental fee in such a case?
</p><p>
(a) The <b>RITVA</b> in the name of the <b>RE'AH</b> maintains that a rental agreement is tantamount to a sale. If a house collapses after it is sold, the buyer suffers the loss and he still must pay for the house (if he has not paid for it already). Similarly, the tenant must pay the rental fee, since the house collapsed while it was in his possession. The <b>HAGAHOS ASHIRI</b> (6:10) writes that this is also the view of <b>RASHI</b>, as he infers from the words of Rashi (DH Azda) who says that 'it is the Mazal of the Socher that caused [the loss].'
</p><p>
(b) The <b>RAMBAN</b> argues and maintains that the tenant is not obligated to pay for more than the actual use that he obtained from the house (that is, he pays only for the number of days that he used the house until it collapsed). (This is also the view of the <b>RAN</b> and <b>ROSH</b>.)
</p><p>
<b>RAV ELCHANAN WASSERMAN</b> Hy'd (Kovetz He'oros 53:3) explains that the Machlokes between the Ritva and the Ramban revolves around a basic dispute about how to view the nature of a rental agreement. The Ritva views a rental agreement (Sechirus) as an acquisition of the rented object (in this case, a house) for the sake of its use ('Dekel l'Perosav'). Thus, even if the renter is not able to make use of the object, he still is obligated to pay for his acquisition of the object. The Ramban, on the other hand, views Sechirus as a payment for the use of the object, and not for the object itself. The use of an object is a type of 'Peros' which the object yields. Thus, the Socher is obligated to pay only for the 'Peros,' or use, which he actually receives from the object.
</p><p>
Rav Elchanan Wasserman (ibid. 53:6) points out a slight contradiction in the opinion of the Ramban. The Ramban in Kesuvos (59a) states that a person who rents a field is considered to have partial ownership of the field, and he therefore can consecrate (Makdish) his share of the field. The Ramban there even refers to the Socher's ownership as a 'Kinyan ha'Guf l'Peros,' which seems to be exactly the way the Ritva refers to Sechirus. Thus, the Ramban there seems to contradict his own words here, where he says that Sechirus is merely a right to use the object. Rav Elchanan Wasserman leaves this question unanswered.
</p><p>
The <b>CHAZON ISH</b> (Bava Kama 23:10) writes that the Ramban in fact may agree with the Ritva that Sechirus is a temporary sale, as he explains in Kesuvos. However, the Ramban still may understand that the Socher does not have to pay for the rest of the rental after the house collapses. This is because the agreement was that he would pay for the house only as long as it stands.
</p><p>
<br>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They both supply the reeds.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> Where the custom is to reap, he may
          not uproot, and vice-versa. Neither the owner nor worker
          can deviate from the custom without the other's consent.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Where the custom is to reap, he may not uproot. The
               owner can say 'I want the stalks to remain to
               fertilize the land.' The worker can say 'I do not
               want to toil so much';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Where the custom is to uproot, he may not reap. The
               owner can say 'I want the land to be clear.' The
               worker can say 'I need straw for my animals.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why must it say 'neither can deviate without
          the other's consent'? (It already said that the worker
          cannot reap or uproot against the custom. We already know
          that sometimes he prefers one, and sometimes the other,
          and likewise the owner!)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa gives the reason for the law. Because
          sometimes each prefers one way, neither can deviate
          without the other's consent.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Where the custom is to plow after harvesting,
          he must do so.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> It teaches about place in which people do not
          weed, and this worker weeded;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that he can say 'I weeded in
               order that I will not have to plow.'  The Mishnah 
               teaches that he cannot say so now. It helps only if
               he said so before weeding (Me'iri - and the owner
               agreed; Ramah - and the owner did not object).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> All is according to the local custom.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What does this come to include?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> In a place where trees on the field are
          included in the rental (even though they need very little
          work), if nothing was specified, they are included. In a
          place where trees are not included, (unless specified)
          they are not included.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Obviously, in a place where trees are included,
          we assume that they are included!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the owner agreed to give the worker
          a larger share of the Peros than normal. One might have
          thought that this was on condition that the trees are not
          included. The Beraisa teaches that this is not so,
          because he did not stipulate.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> In a place where trees are not included, they
          are not included.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the worker agreed to take a smaller
          share of the Peros than normal. One might have thought
          that this was on condition that the trees are included.
          The Beraisa teaches that this is not so, because he did
          not stipulate.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> They share the straw just like they share the
          grain.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> In Bavel, the custom is that sharecroppers
          do not receive a portion of the straw.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Question:</font></b> What do we learn from this?
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  	Answer:</font></b> If one person does so, we do not learn from him.
          He just happens to be generous.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>RESPONSIBILITIES OF THE OWNER AND THE WORKER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #1 (Rav Yosef):</font></b> The custom is make a dirt wall
          around a field, and to add to the wall (make it higher),
          and to add a third time. The owner supplies all the dirt,
          and also posts to make a fence around the field;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The worker supplies thorns for the fence.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The general rule is, the owner supplies needs of
               basic guarding, and the worker supplies extra
               guarding.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> The owner supplies the shovel, hoe, and the
          bucket or pouch for irrigating. The worker makes the
          irrigation ditch.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> They share the vines and reeds just like they
          share the wine.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Which reeds are harvested from a vineyard?!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (d'Vei R. Yanai):</font></b> These are smoothed reeds that
          were used to support the vines.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> They both supply the reeds.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious! (Since he gets a share,
          surely he also supplies!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah gives the reason. They share the
          vines and reeds because they both supply the reeds.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>GROUNDS FOR DEDUCTING FROM THE RENTAL FEE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven accepted to work on Shimon's Beis
          ha'Shelachin (a field that must be irrigated from a
          spring) or a Beis ha'Ilan (a field with a tree, which is
          profitable for the worker), and the spring dried up or
          the tree was cut down, Reuven does not deduct from the
          agreed rental;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'Chakor Li (rent to me; Nimukei Yosef -
               rent from me) this Beis ha'Shelachin or Beis
               ha'Ilan', he deducts from the agreed rental.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is the case (in which the spring
          dried up)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a big river dried up, why doesn't he deduct? This
               affects the entire region (we cannot say that it is
               due to his bad Mazal)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> A small spring dried up. The worker
          could bring from the big river.
<br>

<p>

sjt:
</p><p>
<font><b>3) FOLLOWING THE LOCAL CUSTOM</b></font><b>
<br>QUESTION:</b> The Beraisa states that in a place where the prevalent custom is to cut the produce from a field, a sharecropper is not permitted to uproot it. In a place where the custom is to uproot the produce, a sharecropper may not cut it. The Beraisa adds that neither the fieldowner nor the sharecropper may deviate from the local custom without the other's consent.
</p><p>
The Gemara goes on to explain why neither may deviate from the local custom. Since either of them may have a reason to prefer that the produce be cut in a particular way, the local custom must be followed. If the custom is to cut the produce and the sharecropper wants to uproot it, the owner can argue that he wants the roots to remain in the field in order to fertilize the soil. If the owner wants the produce to be uprooted, the sharecropper can say that he does not want to toil so much.
</p><p>
Similarly, if the custom is to uproot the produce and the sharecropper wants to cut it, the owner can say that he wants the land to be clean of roots. If the owner wants the produce to be cut, the sharecropper can say that he needs the roots as feed for his animals. Hence, neither may deviate from the local custom.
</p><p>
Why does the Gemara need to give reasons to explain why neither party may deviate from the local custom? The mere fact that it is the local custom should be reason enough to prevent either party from deviating without the other's consent. (The Gemara in many other places cites the rule, 'ha'Kol k'Minhag ha'Medinah.') (<b>NIMUKEI YOSEF</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TOSFOS YOM TOV</b> answers that one party may force the other to follow the prevalent custom only when that custom has a logical reason. A person cannot be forced to follow a custom that has no reason, for such a custom is no better than a 'Minhag Sedom.' Accordingly, the Gemara here needs to explain the logical basis for the custom in order to explain why each party may force the other to abide by the local Minhag. Similarly, the <b>SHITAH MEKUBETZES</b> writes that in a place where the local custom has no basis, one side may force the other to deviate from the custom because of 'Zeh Neheneh v'Zeh Lo Chaser.'
</p><p>
(b) The <b>ARUCH HA'SHULCHAN</b> (CM 320:5), as cited by the <b>DEVAR YAKOV</b>, answers that the Gemara here explains why each side may force the other to follow the Minhag because there is a practical ramification from one of the reasons that the Gemara gives. The Gemara explains that in a place where the custom is to cut, and not uproot, the produce, the owner may force the sharecropper to follow the custom so that his land will be fertilized. This reason applies <i>only</i> when the field was rented for one year and will return to the owner's possession after these crops are harvested. When the field is rented out for two or more years -- and thus the sharecropper will be the one who has to plant the field the following year -- the owner may not force the sharecropper to follow the Minhag, and the sharecropper may choose to uproot, and not cut, the produce.
</p><p>


<font><b>4) ROOTS FOR ANIMAL FEED</b></font><b>
<br>QUESTION:</b> The Beraisa states that in a place where the prevalent custom is to cut the produce from a field, a sharecropper is not permitted to uproot it, and in a place where the custom is to uproot the produce, a sharecropper may not cut it. The Beraisa adds that neither the fieldowner nor the sharecropper may deviate from the local custom without the other's consent.
</p><p>
The Gemara goes on to explain why neither may deviate from the local custom. Since either of them may have a reason to prefer that the produce be cut in a particular way, the local custom must be followed. If the custom is to cut the produce and the sharecropper wants to uproot it, the owner can argue that he wants the roots to remain in the field in order to fertilize the soil. If the owner wants the produce to be uprooted, the sharecropper can say that he does not want to toil so much.
</p><p>
Similarly, if the custom is to uproot the produce and the sharecropper wants to cut it, the owner can say that he wants the land to be clean of roots. If the owner wants the produce to be cut, the sharecropper can say that he needs the roots as feed for his animals. Hence, neither may deviate from the local custom.
</p><p>
Why does the Gemara not give the same reason for the owner that it gives for the sharecropper? That is, the Gemara says that if the custom is to uproot the produce and the owner wants it to be cut, the sharecropper can refuse on the grounds that he needs the roots as feed for his animals. The same claim can be made by the owner when the sharecropper wants to cut it and not uproot it. The owner receives a portion of whatever the sharecropper harvests, including the roots, and he should also be able to argue that he wants the roots so that they can be used as feed for his own animals. Why does the Gemara give a different reason for the owner's refusal? (Acharonim)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARSHA</b> answers that the Gemara indeed could have used this reason to explain why the owner can force the sharecropper to follow the local custom. However, the Gemara gives a better reason, one which applies regardless of whether the owner has animals or wants the roots as feed for them.
</p><p>
(b) The <b>RITVA</b>, <b>TORAS CHAIM</b>, and <b>RASHASH</b> answer that the Gemara here refers to all cases of sharecropping -- whether it is a case of 'Arisus' (in which the sharecropper gives a percentage of the field's produce to the owner) or a case of 'Chakirus' (in which the sharecropper gives a lump sum per year to the owner, regardless of how much the field produces). Since, in a case of 'Chakirus,' the owner of the field does not receive what grows in the field, he cannot claim that he wants the produce to be uprooted so that he can feed the roots to his animals, since he will not receive the roots.
</p><p>
(c) The <b>TORAS CHAIM</b> answers further that this would not be a valid argument for the owner, because even if the sharecropper cuts the produce and leaves the roots in the ground, the owner still will be in possession of the roots and will be able to let his animals eat them from the ground. The sharecropper, on the other hand, may claim that he wants to uproot the produce in order to feed the roots to his animals, because he is not permitted to bring his animals into the owner's field after the conclusion of his rental period.
</p><p>
(d) The <b>DARCHEI DAVID</b>, cited by the <b>DEVAR YAKOV</b>, answers that if the owner claims that he wants the produce to be uprooted so that he will be able to feed the roots to his animals, the sharecropper can respond that he will uproot only half of the field's produce in order to give the owner his share of the roots. However, he may not cut the other half of the produce and leave the roots in the ground. Therefore, the Gemara says that the owner may force the sharecropper to uproot <i>all</i> of the produce because he wants his field to be clean.
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>MUST A PURCHASE FIT ITS DESCRIPTION?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> The first two Mishnayos of our Perek apply to
          sharecroppers and Chokerim. Every other Mishnah applies
          to sharecroppers or Chokerim, but not both.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven said 'rent to me this Beis
          ha'Shelachin or Beis ha'Ilan', (he deducts ...)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why can't Shimon say 'that is just their name.
          The rental was not contingent on the spring or tree!'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven said to Shimon 'I sell to you a
               Beis Kor (the area of land (75,000 square Amos) in
               which 30 Sa'im of seed are planted) of dirt (i.e.
               the entire area is farmable)', if people call it a
               Beis Kor, the sale stands, even if the area is only
               half of that;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is because he sold a field called a Beis
                    Kor.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said 'I sell to you a vineyard (or an
               orchard)', if people call it that, the sale stands,
               even if has no vines (or trees, for the same reason
               as above);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Here also, he should be able to say that it is only
               called a Beis ha'Shelachin or Beis ha'Ilan!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Shmuel):</font></b> When the seller (or owner) calls it
          so, he can say 'it is just called that.' When the buyer
          (or renter or worker) calls it so, he bases the sale (or
          rental) on this.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Ravina):</font></b> In the Mishnah and Beraisa, the owner
          called it so (Tosfos - the Mishnah says that the renter
          said so! Really, it does not depend on who calls it so);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In our Mishnah, he said 'this Beis ha'Shelachin.'
               They were standing in it, so he did not need to say
               'Beis ha'Shelachin' to identify it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rather, he called it a Beis ha'Shelachin to make the
               rental contingent on the spring.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>RULINGS BASED ON THE WORDING PEOPLE USE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven accepted to work Shimon's field and
          he left it fallow, we estimate how much it would have 
          produced, and he pays accordingly;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He accepted to do so in the contract - 'if I will
               leave it fallow and not work it, I will pay what it
               would have produced.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara):</font></b> R. Meir used to expound Lashon Hedyot (the text
          that people used to write in documents, even though it
          was not based on Chachamim. Tosfos - he did so even when
          it was not written.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> He accepted to do so in the
               contract - 'if I will leave it fallow and not work
               it, I will pay what it would have produced'.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Yehudah used to expound Lashon Hedyot.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah):</font></b> If a woman must bring an
               Oleh v'Yored (a Korban in which a rich person brings
               an animal, and an Oni brings birds or flour), her
               husband brings for her the Korban of a rich person;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Version #1 (our text, Tosfos):</font></b> Men write in the
                    Kesuvah 'any prior obligations of yours are
                    upon me'.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Version #2 (Rashi):</font></b> A woman writes in a receipt
                    of payment of the Kesuvah that she exempts her
                    ex-husband from her obligatory Korbanos.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Hillel used to expound Lashon Hedyot.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> People of Alexandria would be Mekadesh
               women, and others would take the women at the time
               of the Nisu'in. Chachamim thought that the children
               (from the second man) were Mamzerim;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Hillel examined the Kesuvos (that were written at
               the time of Kidushin). They said 'after the Nisu'in,
               you will be my wife.' He ruled that the children are
               Kosher.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	R. Yehoshua ben Korchah used to expound Lashon Hedyot.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yehoshua ben Korchah):</font></b> If Reuven lent
               Shimon, he may not (later tell a Shali'ach of Beis
               Din to) take collateral worth more than the loan,
               for when Reuven returns the security (before the
               debt is repaid), we evaluate it, and Shimon writes
               that he owes the value of the security.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Inference:</font></b> If he did not write this, Reuven would
               not get it back when Shimon dies.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> R. Yochanan taught that if Reuven took a
               security from Shimon and returned it, and Shimon
               died, Reuven takes the security from Shimon's
               children.
<br>
<br>

sjt:
<font><b>1) WHO COLLECTS THE KESUVAH -- THE 'HUSBAND' OR THE 'CHASAN'?</b></font><b>
<br>QUESTION:</b> Rebbi Yosi in the Beraisa teaches that in a place where a dowry is written in the Kesuvah as a loan (i.e. at its proper value), it is considered a loan and the woman's father must give the full amount to the Chasan. If she later collects the Kesuvah, she collects the full amount. In a place where they write double the amount of the dowry (to honor the Kalah), her father gives to the Chasan half of the amount written, and if she later collects the Kesuvah, she collects half of the amount written.
</p><p>
<b>RASHI</b> (DH Goveh Milveh) first describes the collection of the Kesuvah as 'Ba'al Goveh me'Avi ha'Bas' -- 'the husband collects from the father of the woman.' However, just a few lines later Rashi (DH Goveh) refers to the collection of the Kesuvah as 'he'Chasan me'Chamav' -- 'the groom from his father-in-law. In his next comment (DH Magbei Shivcha), Rashi returns to his earlier description and says that the collection is made 'me'Avi ha'Bas,' 'from the father of the woman.' What is the reason behind these changes in the words of Rashi?
</p><p>
<b>ANSWERS:</b>
<br>(a) In a place where the Kesuvah is treated like a loan (Milveh), the parties involved are like any other lender and borrower (Malveh and Loveh), with no particular relationship between them. Therefore, Rashi says that the 'father of the woman' pays the husband.
</p><p>
In a place where twice the actual amount is written in the Kesuvah in order to give honor to the parties involved, the whole point is to give honor to the marriage taking place. Therefore, Rashi emphasizes that the 'groom collects from his father-in-law.' (M. Kornfeld)
</p><p>
(b) <b>RAV YAAKOV</b> D. HOMNICK explains that the reason why Rashi alters his wording when he refers to one who collects the Nadan, the dowry, is as follows. The primary element of the Kesuvah contract is the money that will be paid in the end (to the woman or to her father) upon the husband's death or divorce. This amount is known as the 'Kesuvah' itself. In contrast, the dowry (Nadan) that is paid at the time of the marriage is secondary.
</p><p>
The relationship of the payment of the Kesuvah to the payment of the Nadan is a converse relationship: whatever happens at the time of the payment of the Kesuvah happens at the time of the payment of the Nadan in the other direction. That is, the woman (or her father) receives the Kesuvah payment later, while the husband receives the dowry payment now.
</p><p>
When a change in the manner or form of payment of the actual Kesuvah money (i.e. in the primary element of the Kesuvah, as mentioned above) is stipulated, the same change happens for the dowry. This is because the person who benefits from the change later, in the primary element of the Kesuvah, must concede now in order to keep his benefit later. The one who benefits at the time of the giving of the Kesuvah is considered the one who receives the primary benefit. When the Gemara discusses writing the Kesuvah as a Milveh, Rashi explains that the 'father of the woman' ('Avi ha'Bas') must pay the dowry as a Milveh. Why does Rashi call him specifically 'Avi ha'Bas'? Rashi calls him 'Avi ha'Bas' because having the Kesuvah written as a Milveh is an advantage for the <i>woman's</i> side (i.e. the woman or her father) in that it entitles her to collect the Kesuvah later from Beinonis and not just from Ziboris, like a Milveh. This means that she (or her father) has won, so to speak, this point in the Kesuvah negotiations by having the payment of the Kesuvah upgraded to the level of a Milveh. However, in return for this benefit, the woman's side must pay the dowry (the secondary element of the Kesuvah contract) like a Milveh now at the time of the wedding. That is what she concedes in order to keep the benefit that comes later. Rashi focuses on the 'winner' of the negotiations (that is, the one who gains on the main part of the Kesuvah), and therefore he says that the 'Avi ha'Bas' (who is the winner on the Kesuvah side) must pay like a Milveh on the dowry side.
</p><p>
When the Gemara says that in a place where double the actual amount is written in the Kesuvah (because of Kavod), only half of what is written is actually paid, Rashi explains that the 'Chasan collects from his father-in-law.' Rashi here emphasizes that it is the <i>Chasan</i> who collects the dowry because with regard to the main part of the Kesuvah (i.e. what the husband will have to pay later), it is the Chasan who is the winner, for he benefits by having to pay only half of what is written. Since he benefits in the main part of the Kesuvah, he must concede with regard to what he receives for the dowry. To emphasize that he is the one who is benefiting from the Kesuvah, Rashi explains that the 'Chasan collects from his father-in-law' half of the amount written.
</p><p>
In his next comment (DH Magbei Shivcha), Rashi says that the husband collects from the 'Avi ha'Bas,' again focusing on the father of the woman, because again it is he who wins at the end with regard to the main part of the Kesuvah.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>EXPOUNDING LASHON HEDYOT</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir, R. Yehudah, Hillel and R. Yehoshua ben
               Korchah used to expound Lashon Hedyot (the text that
               people used to write in documents, even though
               Chachamim did not enact it).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> The sharecropper accepted in
               the contract 'if I will leave it fallow and not work
               it, I will pay what it would have produced'.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rosh (Bava Metzi'a 9:3,4):</font></b> R. Meir used to expound
               Lashon Hedyot as if it was a text instituted by
               Chachamim. E.g. even if one did not write 'your
               daughters (from me will be fed until they marry)' or
               'your sons (will inherit your Kesuvah)', it is as if
               he wrote it, for it is a Tanai Beis Din. Also Lashon
               Hedyot, since people normally write it, is as if it 
               was written. We cannot say that it is in force only
               when it was written. If so, this is obvious. It is
               not Asmachta!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Ishus 16:7):</font></b> Ge'onim in all the
               Yeshivos enacted that a widow collects from
               Metaltelim, just like they enacted for creditors.
               This enactment spread throughout most of Yisrael.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (8):</font></b> In every place we know of, the custom is
               to write in the Kesuvah 'from land and Metaltelim.'
               This is a great enactment that great Chachamim
               instituted. This is a monetary Tanai, so a widow
               collects due to the Tanai, not from the Ge'onim's
               enactment.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (9):</font></b> If one did not write this in the
               Kesuvah, if he knew about the Ge'onim's enactment,
               she collects (from Metaltelim). If we are unsure if
               he knew, we must deliberate greatly. We cannot make
               orphans pay based on an enactment of Ge'onim that
               was not written (in the Kesuvah), the way we rule
               based on Tanai Kesuvah enacted by the Great
               Sanhedrin.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> It is not like Tanai Kesuvah
                    because this enactment was made after the
                    Gemara (was completed).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 11:11):</font></b> All the latter
               Ge'onim enacted that a creditor can collect
               Metaltelim of heirs. Yisraelim in the entire world
               rule like this. However, in the west they write in
               loan documents that he can collect 'from land and
               Metaltelim, in his lifetime and after death', so he
               collects due to his Tanai in addition to the
               enactment. This is a great fence, lest the borrower
               not know about the enactment and orphans' money be
               taken improperly. The enactment of latter Chachamim
               cannot obligate orphans.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rivash (392, cited in Kesef Mishneh and Mishneh
                    l'Melech):</font></b> The Rambam agrees that we collect
                    even if it is not written. Writing avoids the
                    need to rely on the enactment, and avoids the
                    problem of one who did not know about the
                    enactment and did not intend to put a lien on
                    his Metaltelim. Also, writing enables to
                    collect from Metaltelim even if the orphans
                    have land. The enactment was only for when the
                    orphans have no land, so the lender will not
                    lose. In Hilchos Ishus (16:9), the Rambam says
                    that if one did not write a lien on Metaltelim
                    in the Kesuvah, it is not as if he wrote it.
                    This is where it is the custom to write it.
                    Since he did not write it, he put a lien on his
                    property only according to Gemara law.
                    Alternatively, in the days of the Rambam the
                    enactment regarding Kesuvah spread through most
                    of Yisrael, not all of Yisrael, like the
                    enactment for loans spread. Nowadays everyone
                    knows that we collect even from Metaltelim of
                    orphans; not everyone knows the law according
                    to the Gemara.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Shmuel (EH 100:2):</font></b> Now that the enactment
                    regarding Kesuvah spread throughout Yisrael,
                    even if he omitted it, it is as if he wrote it.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rosh (Kesuvos 6:5):</font></b> R. Tam says that the Kesuvah is
               collected from Metaltelim because men write in the
               Kesuvah a lien on Metaltelim Agav (along with) land.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Korban Nesan'el (70):</font></b> Tosfos cites R. Tam to
                    say that the enactment that creditors have a
                    lien on Metaltelim applies also to Kesuvah.
                    Nevertheless, we write in the Kesuvah, lest a 
                    man not know, and she collect improperly.
<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 42:15):</font></b> We follow a text that is
               normally written in documents, even if it was not
               enacted by Chachamim, rather, by commoners in a
               certain place. Even if it was not written, we
               consider it as if it was written.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> The same applies to enactments of the Tzibur
               and customs of the city.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Kol):</font></b> Tosfos, the Rosh, the
                    Rashba, Rav Hai Gaon, R. Chananel, the Nimukei
                    Yosef, the Ran and (it seems) Rashi all hold
                    that something normally written is as if it was
                    written, even if it was not written. We rule
                    based on a custom followed in most places. If
                    it is only in some places, we follow it only in
                    those places. Ha'Rav Bartzeloni (brought in
                    Nimukei Yosef 61a DH Garsinan) explained
                    differently (expounding Lashon Hedyot means
                    like we expound Pesukim, e.g. if it is not
                    needed to teach about this, it teaches another
                    matter). The Rashba rejected this.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Beis Yosef, ibid.):</font></b> The Rambam
                    (Hilchos Ishus 16:9) says that if a man did not
                    write a lien on Metaltelim in the Kesuvah, and
                    we are unsure whether he knew about the
                    enactment, we must deliberate greatly. It seems
                    that he does not hold that it is as if it is
                    written. Some say (to explain the Rambam) that
                    if commoners started the custom themselves, it
                    is as if it was written, but not if Acharonim
                    initiated it. However, the Rashba says that a
                    consensus of the Tzibur is stronger than a
                    custom of commoners! Perhaps a consensus of the
                    Tzibur is stronger than an enactment of
                    Ge'onim, for everyone knows about the
                    consensus. This is difficult.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer #1 (Beis Yosef):</font></b> The Rambam discussed
                    only places, unknown to us, where it is not
                    normally written in the Kesuvah. Alternatively,
                    he discusses places where the custom did not
                    spread through the entire country. We find that
                    the Rambam follows customs of the country, e.g.
                    the dowry written is a third or a fifth more
                    than the true amount (Hilchos Ishus 23:11,12)
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer #2 (Shach 36):</font></b> It is as if was written
                    because we assume that he intended to write it.
                    The Rambam was unsure only about one who did
                    not know about the custom. He discusses only
                    when there is a custom to write, for then one
                    can say 'I did not know about the enactment. I
                    saw women collect from Metaltelim, but I
                    thought that it was because the man wrote a
                    lien. This is why I did not write a lien!'
                    However, if there is no custom to write it,
                    surely he saw women collect from Metaltelim,
                    and he should have realized that there was an
                    enactment. The Rivash supports this. Also the
                    Rashba rules that we expound Lashon Hedyot, but
                    it is according to the judges' discretion: one
                    cannot say that a woman knows the text normally
                    written in documents, and assume that she
                    commanded the scribe accordingly!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (71:14):</font></b> If a document has Ne'emanos
               (to believe the lender) and it is the custom in the
               area that many write this without asking the
               borrower, if the borrower denies authorizing it and
               the witnesses say that they wrote it only because it
               is written in other documents, we do not rely on it.
               This is because it is not a clear custom to write
               this in all documents.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Question (Beis Yosef DH u'Mah she'Chosav v'Im):
                    Here, the Tur brings only the opinion of Sefer
                    ha'Terumos, that we do not rely on Ne'emanos if
                    the witnesses say that it was written not
                    because the borrower said to do so, rather,
                    because scribes normally write this in all
                    documents. In Siman 61 he brought only the
                    Rosh's opinion, that anything people in a
                    country normally write, such as Ne'emanos or
                    '(he commanded to) write it in public', can be
                    written without a command. One who authorizes a
                    document intends for the local custom!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answers #1,2 (Beis Yosef):</font></b> Perhaps Sefer
                    ha'Terumos discusses when it is not the custom
                    to write this in all documents, and the Rosh
                    discusses when it is written in all documents.
                    Alternatively, the Rosh discusses when there
                    are no witnesses saying that the borrower did
                    not authorize it.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Shach 33):</font></b> The second answer is
                    inadequate. If one who authorizes a document
                    wants it to be like the local custom, it does
                    not matter if witnesses say that he did not
                    specify! The Beis Yosef retracted from this.
                    Therefore, in the Shulchan Aruch he relied on
                    the first answer, and wrote 'many write this
                    without asking the borrower.' But this is
                    difficult, for the Tur and Sefer ha'Terumos
                    explicitly say that it is written in all
                    documents!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answers 3,4 (Shach):</font></b> Bedek ha'Bayis says that
                    Sefer ha'Terumos discusses when in all
                    documents it is written just for beauty of the
                    document, not so that there should be Ne'emanos
                    without authorization. I say that the Rosh
                    discusses when the borrower knew the custom,
                    and Sefer ha'Terumos discusses when he did not.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Beis Yosef (YD 174 DH Mochar, citing Rashba
                    3:435):</font></b> If a group stipulated that whoever says
                    'I sell <i>l'Shinsh</i>' can redeem it at any time,
                    even without any Tanai (at the time of the
                    sale), it is like a loan. Since they stipulated
                    from the beginning, it is as if they stipulated
                    later at the time of the sale. We find that
                    Tana'im expounded Lashon Hedyot, even though it
                    was not a proper Tanai. Since it was the
                    custom, it is as if they stipulated.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>THE ENACTMENT TO COLLECT A KESUVAH FROM METALTELIM </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Writing this allows Reuven to collect also
               any depreciation of the security that occurred when
               Shimon held it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	R. Yosi used to expound Lashon Hedyot.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yosi):</font></b> In a place where a dowry is
               written in the Kesuvah like a loan (i.e. at its
               proper value), it is like a loan (her father must
               give the full amount to the Chasan. If she collects
               the Kesuvah, she collects the full amount);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In a place where they write double the amount
                    of the dowry (to honor the Kalah), her father
                    gives (and if she later collects the Kesuvah,
                    she collects) half the amount written.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	People of Neharblai would collect a third.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Mereimar would collect whatever was written (even if it
          was more than was given).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Ravina - Beraisa):</font></b> In a place where they write
          Kefel, she collects half.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Mereimar):</font></b> That is if no acquisition was made. If
          an acquisition was made, she collects what is written.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Ravina wrote an inflated dowry to his daughter. They
          asked him to make an acquisition.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Ravina:</font></b> I write double only if there is no
               acquisition.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	Reuven was dying; he commanded that they give a dowry of
          400 to his daughter.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Rav Acha brei d'Rav Avya):</font></b> Does he mean to
               write 800 and give 400, or to write 400 and give
               200?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #1 - Answer #1 (Rav Ashi):</font></b> If he said to
               give 400, he means to write 800. If he said to write
               400, he means to give 200.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Version #2 - Answer #1 (Rav Ashi):</font></b> If he said to
               give 400 for her Kesuvah, he means to write 800 and
               give 400. If he said 400 in her Kesuvah, he means to
               give 200 and write 400 in the document.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection (and Answer #2):</font></b> No. whether he said 'for'
               or 'in', we write 400 and give 200, unless he said
               400 without mentioning 'Kesuvah'.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A SHARECROPPER WHO DEVIATED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Reuven accepted to be a sharecropper on a field. he
          promised to pay 1000 Zuz if he will leave it fallow. He
          left a third fallow.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Chachamim of Neharde'a):</font></b> He must pay a third of
               1000 Zuz.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rava):</font></b> His promise was Asmachta. It is not binding.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> According to Rava, why is this different than
          the Mishnah?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If he said 'if I will leave it fallow and
               not work it, I will pay what it would have produced'
               (he must pay).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> That was not exaggerated; 1000 Zuz is an
          exaggeration.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Reuven accepted to be a sharecropper to plant sesame on a
          field. he planted wheat (which depletes the land less
          than sesame), and it produced wheat worth as much as
          sesame would have been worth.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Kahana):</font></b> The owner deducts from his own share
               the savings (the lower depreciation of his land).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Rav Ashi):</font></b> No. The owner would rather
               suffer depreciation of his land than a loss of
               money.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Reuven accepted to be a sharecropper to plant sesame on a
          field. He planted wheat, and it produced more than the
          sesame would have been worth.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Ravina):</font></b> Reuven gets the entire added value of the
               wheat.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Rav Acha mi'Difti):</font></b> He did not cause the
               profit himself. Also the land helped! They share the
               added value.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>HOW ISKA WORKS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Chachamim of Neharda'a):</font></b> In an Iska (Reuven gives Shimon
          merchandise to sell where it is expensive, on condition
          to share the profits. Half is considered a loan, and half
          is a deposit), Chachamim enacted that both gain;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since half is a loan, Shimon may use his half for
               anything he wants.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> No. It is called Iska because it is an
          investment. (Rashi - Reuven relies on Shimon to work
          diligently because Shimon stands to gain from his half;
          Tosfos - Reuven wants collateral from which he can later
          collect the half that is a loan.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Idi bar Avin):</font></b> If Shimon dies, the half that is a
          loan is considered Metaltelim. Reuven does not collect it
          from the orphans.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> No. It is called Iska because if Shimon
          dies, Reuven can collect his loan from the orphans.
<br>

<p>

sjt:
</p><p>
<font><b>2) 'ASMACHTA'</b></font><b>
<br>OPINIONS:</b> The Gemara relates an incident in which a person made a sharecropping agreement with a fieldowner. In the agreement, he promised to pay an exaggerated fine of 1000 Zuz if he neglected to work the land. He ended up leaving a third of the land fallow. Neharda'i ruled that he was obligated to pay one third of the 1000 Zuz, corresponding to the third of the land that he left fallow. Rava ruled that his promise was an 'Asmachta' and therefore not binding.
</p><p>
The Gemara asks that Rava's ruling is contradicted by the Mishnah. The Mishnah states that when the sharecropper promises that he will pay for what the field would have produced in the event that he leaves it fallow and does not work it, his commitment is binding. Rava answers that when his commitment is not exaggerated, it is not an Asmachta and is binding, but when it is exaggerated (such as a commitment to pay 1000 Zuz), it is an Asmachta and is not binding.
</p><p>
The concept of 'Asmachta' is mentioned a number of times throughout the Gemara. What is the definition of 'Asmachta'? Three different, but not necessarily mutually exclusive, descriptions of 'Asmachta' are offered by the Rishonim.
</p><p>
(a) The Gemara here defines an Asmachta as an agreement with exaggerated terms ('Guzma,' 'Milsa Yeseira').
</p><p>
(b) The <b>SEFER HA'CHINUCH</b> (#343) defines an Asmachta as any stipulation that is phrased as a penalty, even if it is not stated in exaggerated terms. The Sefer ha'Chinuch agrees that an <i>exaggerated</i> commitment is also considered an Asmachta, even when it is not described as a penalty, as is evident from the Gemara here.
</p><p>
This description of Asmachta is derived from a statement of Rabah earlier (66b). Rabah states that 'any [statement of] 'if' is not binding' ('Kol 'd'Iy' Lo Kani'). This means that a statement such as, 'If I do not [do a particular action, then I will have to do such and such],' is a form of penalty and is considered an Asmachta. Therefore, such a statement is not binding.
</p><p>
(c) A third possible type of Asmachta is defined by the Gemara earlier (73b-74a) as a case in which a person agrees to a condition that is not in his control. The Gemara there discusses a person who is appointed as a Shali'ach to buy wine and who agrees that if he fails to purchase the wine, he will pay his employer the profits that he would have earned if he had bought it. In that case, it is not fully in the Shali'ach's control ('b'Yado') to buy the wine, because the sale is subject to the consent of the seller who might not agree to sell. The Gemara there states that this is an Asmachta because it is 'not in his control.'
</p><p>
<b>TOSFOS</b> there explains that there are three levels of something that is beyond a person's control. The first level is a condition which is completely out of a person's control (for example, when a person gambles with dice). Tosfos says that such a case is <i>not</i> considered an Asmachta. Anyone who agrees to such a risk knows from the outset that he has no control over the matter. Therefore, it is understood that he consented all along to lose his money. (This level is called 'Ein b'Yado Klal, Gamar u'Makni.')
</p><p>
At the other extreme is the fulfillment of a condition which is completely within a person's control. Such a condition, too, is not considered an Asmachta.
</p><p>
The only case that is considered an Asmachta, according to Tosfos, is a case in which the condition is not completely beyond the person's control, but it is also not completely within his control. An example of such a case is the Gemara's case earlier, concerning a Shali'ach who says that he will buy wine. The act of buying wine is partially, but not entirely, within his control ('b'Yado'), since it also depends on the consent of the seller. (Y. Marcus)
</p><p>


<font><b>3) HOW MUCH MUST A SHARECROPPER PAY FOR BEING NEGLIGENT</b></font><b>
<br>OPINIONS:</b> The Gemara relates an incident in which a person made a sharecropping agreement with a fieldowner. In the agreement, he promised to pay an exaggerated fine of 1000 Zuz if he neglected to work the land. He ended up leaving a third of the land fallow. Rava ruled that his promise was an 'Asmachta,' and therefore it was not binding.
</p><p>
Although in such a situation, a sharecropper does not have to pay the exaggerated penalty, does he have to pay the owner for the amount of produce that the field would have produced had he worked it?
</p><p>
(a) The <b>RIF</b> maintains that although a sharecropper is not obligated to pay the exaggerated penalty, he is not exempt from paying the value of the fruit that the field would have produced had he worked the field. The Rif reasons that when a sharecropper promises to pay 1000 Zuz as a penalty, that promise includes an agreement to pay the amount of potential profit that would be lost. (That amount certainly is less than 1000 Zuz, and 'Bichlal Ma'asayim Manah' -- the promise to pay the larger amount includes within it a promise to pay the smaller amount.) The Mishnah teaches that a promise to pay the amount of potential profit lost is binding, since it is not an exaggerated promise.
</p><p>
The Rif cites further proof to his opinion from the Gemara later (109a) which discusses the Halachah when a sharecropper (who normally receives half of the profits) agrees that if he is negligent and causes a loss, he will not be entitled to receive anything, even a share of the profit which was produced. Rava rules that this is an Asmachta and is not binding, and the sharecropper therefore receives a share in the profit which was produced. However, Rava adds that although the sharecropper does not forfeit all of his wages, the exact amount lost as a result of his negligence is deducted from his wages. The Rif concludes from this statement of Rava that although a sharecropper is not penalized with an exaggerated amount, he nevertheless is penalized with a reasonable amount when he enters into such an agreement. Similarly, in the case of the Gemara here, although the sharecropper is exempt from the exaggerated fine of 1000 Zuz, he would be obligated to pay the reasonable amount of potential profit that was lost.
</p><p>
(b) The <b>ROSH</b> (9:7) disagrees with the Rif. He maintains that since the exaggerated condition of 1000 Zuz is not valid, the sharecropper is not obligated to pay <i>anything</i>. The Rosh makes a distinction between this case and the case of the Mishnah. Although the Mishnah rules that a sharecropper who committed to pay a reasonable amount (i.e. the amount of potential profit that was lost) is obligated to do so, in the Gemara's case -- in which he mentioned only an exaggerated sum -- his words cannot be 'divided' and his commitment therefore is not binding at all. Regarding the Rif's proof from the Gemara later (109a), the Rosh asserts that the sharecropper's commitment to forfeit his wages is completely ineffective, and the value of the loss is deducted from his pay for an entirely different reason. Whenever a sharecropper is in the midst of working a field and is gaining the profits, a loss caused by his negligence is deducted from his wages even if he made no specific commitment. The case of the Gemara here, in contrast, is a case in which the sharecropper did not do any work at all on the field, and he therefore cannot be penalized unless he makes a commitment to that effect.
</p><p>

<b>HALACHAH:</b> The <b>SHULCHAN ARUCH</b> (CM 228:2) prefers the Rif's opinion. The <b>VILNA GA'ON</b> there (#3) mentions that the Rosh disagrees. (Y. Marcus)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT IS CONSIDERED ONE ISKA?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> If two documents were written for one Iska, it is
          considered two investments. This hurts the lender (if
          there is a loss on one and a gain on the other, his share
          of the loss is more than his share of the gain, so it is
          not Ribis. Had it all been in one document, the loss and
          profit would have cancelled each other);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If two Iskos were combined into one document, it is
          considered one investment. This hurts the borrower (if
          there is a loss on one and a gain on the other, they
          cancel each other. Had it all been in two documents, his
          share of the loss would have been less than his share of
          the gain.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven received an Iska from Shimon, and there
          was a loss, and Reuven then toiled (R. Chananel - after
          the time for the Iska expired; Ra'avad - using money of
          another Iska) and recovered the loss, without telling
          Shimon, he cannot force Shimon to accept a larger share
          of the loss than of the gain;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shimon can say that Reuven toiled in order that
               people will not say that he is a failure regarding
               Iska.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven and Shimon jointly received an Iska
          from Levi, and there was a profit, and Reuven wanted to
          stop in the middle, Shimon can demand that they continue
          for the agreed time;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven cannot demand to take his share of the
               profits, because the profit is tied to the principal
               (perhaps they will need to use the profits).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He cannot demand to take his share of the profits
               and principal. Each partner's share is tied to the
               other;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Even if Reuven offers 'if you will lose, I will
               share the loss with you', Shimon can demand that
               they stay together, for the Mazal of two people is
               better than that of one.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>RESPONSIBILITY OF A WORKER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven was Choker a field from Shimon; he
          cannot refuse to weed, even though he pays the agreed
          rental;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shimon can say 'I do not want the field to be full
               of weeds when you leave.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara):</font></b> Even if Reuven offers to plow afterwards to
          kill the weeds, Shimon can refuse. He can say 'if you do
          not weed, (my share of the) the Peros will be low
          quality.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven cannot offer to buy good Peros to pay the
               rental. Shimon can demand Peros of his own field.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Reuven cannot offer to weed only the portion from
               which he must pay the rental. Shimon can say 'I do
               not want my land to get a bad reputation.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection (Mishnah):</font></b> Shimon can say 'I do not want the
          field to be full of weeds when you leave.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> This is Shimon's only claim!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Retraction:</font></b> Rather, Reuven's offer to plow afterwards is
          insufficient, for seeds of the weeds will sprout the next
          year.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven accepted to be a sharecropper on
          Shimon's field and it produced very little, if it
          produces enough to make a pile, Reuven must work it;
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	R. Yehudah:</font></b> That is unreasonable (the quantity should
          depend on the size of the field)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, it must yield as much as the seeds (this
               will be explained later).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> If Reuven accepted to be a
          sharecropper on Shimon's field and it produced very
          little, if it produces enough to make a pile, Reuven must
          work it, for he writes 'I will plow, seed, harvest,
          thresh, winnow and make a pile, and we will each take
          half.'
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is considered a pile?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (R. Yosi b'Rebbi Chanina):</font></b> Ii enough that the
          pitchfork will stand in it.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If the prongs can be seen from both sides, what
          is the law?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (R. Avahu):</font></b> The prongs must be totally covered.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Levi):</font></b> It must produce three Sa'im.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(D'Vei R. Yanai):</font></b> It must produce two Sa'im.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> The two Sa'im are above the expenditures.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>LAWS OF TUMAH THAT DEPEND ON WEAK THINGS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - Beis Shamai):</font></b> Pritzei (this will be explained)
          olives and grapes receive Tum'ah;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Beis Hillel say, they do not receive Tum'ah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What are Pritzei olives?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Huna):</font></b> They are bad olives that never fully
          ripen.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> How much oil can they produce and still be
          considered Pritzei?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (R. Elazar):</font></b> The limit is four Kavim of oil
          from the amount of olives pressed at once under a beam.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (d'Vei R. Yanai):</font></b> It is two Sa'im (12 Kavim)
          from this amount of olives.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They do not argue. In R. Elazar's area, one Kor (30
               Sa'im) of olives are pressed under a beam at once.
               In R. Yanai's area, three Kor are pressed.
<br>
<br>

sjt:
<font><b>1) A FIELDOWNER'S RIGHT TO BE PAID FROM PRODUCE OF HIS OWN FIELD</b></font><b>
<br>QUESTION:</b> The Tana Kama in the Mishnah says that only if a field produces enough produce 'l'Ha'amid Kri' -- with which 'to form a pile' -- is a sharecropper ('Kablan') obligated to work the field. <b>RASHI</b> explains that this applies only to 'Kablanus' and not to 'Chakirus. With regard to a Chocher, Rashi explains, it makes no difference to the owner of the field whether the worker works the field, because in either case he will receive what the sharecropper owes him.
</p><p>
Why is this obvious to Rashi? A few lines earlier, the Gemara says that a fieldowner can tell a sharecropper, 'I want you to work the land because I want to be paid with produce from my own land and not with produce bought in the market.' The same should apply to the case of the Mishnah here, in which the field produces a small yield. The owner should be able to insist that the sharecropper reap the produce so that the owner will be paid from the produce of his own field.
</p><p>
Some maintain that according to the Gemara's conclusion, the owner cannot insist that he receive only produce from his own land (see <b>CHOCHMAS MANO'ACH</b>, and <b>TAZ</b> CM 324). However, the <b>NIMUKEI YOSEF</b> here proves from the Mishnah (106b) that if the land does produce crops, the owner <i>can</i> insist on receiving his payment from that yield. Why, then, does Rashi maintain that a Chocher is not obligated to work the land?
</p><p>
<b>ANSWER:</b> The Mishnah must be discussing a fieldowner who does not insist on being paid from the produce of his own land. This is clear from the Mishnah's ruling, for if the fieldowner <i>did</i> insist on payment from his own produce, there would be no reason to link the amount that the field produces to the size of a pile, or to the amount needed to sow the field. Instead, the Mishnah should have said that an amount equivalent to the rental fee must be harvested from the produce of the field, and the rest does not have to be harvested. It is therefore clear that the Mishnah's case is one in which the fieldowner agrees to receive payment from another source of grain, and Rashi therefore concludes that the Mishnah must be discussing a 'Kablan' who splits <i>all</i> of the produce with the owner of the field. (M. Kornfeld)
</p><p>


<font><b>2) THE PITCHFORK IN THE PILE</b></font><b>
<br>QUESTION:</b> The Tana Kama in the Mishnah says that only if a field produces enough produce 'l'Ha'amid Kri' -- with which 'to form a pile' -- is a sharecropper ('Kablan') obligated to work the field. In the Gemara, Rebbi Yosi b'Rebbi Chanina explains that this is enough produce to make a pile which can support a pitchfork in an upright position.
</p><p>
The Gemara then cites a dispute between Levi and d'Vei Rebbi Yanai regarding whether this pile of produce refers to three Se'ah or to two Se'ah of produce. Are Levi and d'Vei Rebbi Yanai arguing with Rebbi Yosi b'Rebbi Chanina?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAM</b> cites only the measurement of two Se'ah (the opinion of d'Vei Rebbi Yanai), and he makes no mention of the pitchfork. It is possible that the Rambam understands that the Amora'im indeed argue about the size of the pile of produce and he rules in accordance with d'Vei Rebbi Yanai.
</p><p>
Alternatively, it could be that Levi and d'Vei Rebbi Yanai do not argue with Rebbi Yosi b'Rebbi Chanina. There are different sizes of pitchforks, and Levi and d'Vei Rebbi Yanai may have a separate dispute about how large the pitchfork -- which the pile must support -- needs to be. D'Vei Rebbi Yanai says that the pile must be able to support only a pitchfork that can hold two Se'ah, and thus a smaller pile suffices.
</p><p>
Support for this approach may be found in the words of the <b>RIF</b> and <b>ROSH</b> who cite the opinions of both Rebbi Yosi b'Rebbi Chanina and d'Vei Rebbi Yanai.
</p><p>
(b) The <b>CHOCHMAS MANO'ACH</b> suggests another approach to reconcile the two opinions. He explains that Levi and d'Vei Rebbi Yanai are answering Rebbi Yehudah's question on the Tana Kama. Rebbi Yehudah asks, how can the Tana Kama give a standard amount that any field must produce? A larger field should have to produce more in order to require the sharecropper to tend to the crops, while a sharecropper should be obligated to work a smaller field even if it produces a smaller amount of crops (as the Gemara says on 21a, with regard to 'Kav b'Arba Amos').
</p><p>
The argument of d'Vei Rebbi Yanai and Levi may not be about the size of the pile of grain that a field must produce, but rather about the size of a <i>field</i> for which the measurement of the Tana Kama applies. They agree that different sizes of piles are required for different sizes of fields, and they argue only about what size of field requires a pile of grain in which a pitchfork will stand upright. D'Vei Rebbi Yanai maintains that in a field which ordinarily would produce two Se'ah of grain, a sharecropper is obligated to work it as long as it will produce a pile of grain in which a pitchfork will stand upright, while Levi maintains that this measurement applies to a field large enough to produce three Se'ah of grain.
</p><p>
It is possible that Rebbi Yehudah in the Mishnah understands the Tana Kama in this way as well. His question may be why the Tana Kama describes a Shi'ur that applies to a specific size of field and must be adjusted for other sizes of fields, when he could have stated a standard Shi'ur that applies to every size of field (i.e. 'Kedei Nefilah').
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>HOLDING THINGS WHILE PRAYING</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'> (D'Vei R. Yanai):</font></b> Four Kavim is the quantity for
               prayer.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> To which law does he refer?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Beraisa):</font></b> If one was carrying a load on his
               shoulder, if it is less than four Kavim, he casts it
               on his back and prays. If it is four Kavim or more,
               he must put it down before praying.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Sukah 41b - Mar bar Ameimar (to Rav Ashi):</font></b> My father
               would pray while holding his Lulav.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (Beraisa):</font></b> One may not pray while holding
               Tefilin in his hand or a Sefer Torah in his arm.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Shmuel):</font></b> The same applies to holding a knife,
                    coins, bowl, or loaf.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> It is not a Mitzvah to hold them, and they
               distract them. It is a Mitzvah to hold the Lulav; it
               does not distract him.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif and Rosh (Sukah 20a and 3:32) bring the
               Gemara in Sukah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (20a DH Aba):</font></b> Holding Tefilin in his hand
                    is not a Mitzvah, therefore he is dcd with them
                    until he puts them on. The Mitzvah of Lulav is
                    dear to him and guarded, so it does not
                    distract him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Rif and Rosh (Berachos 14b and 3:28,30) bring
               our Gemara
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  R. Yonah (DH Sachin):</font></b> Rashi holds that we
                    forbid things about which he will be distracted
                    lest they fall. A knife can damage him, a food
                    in a bowl can get ruined, the loaf will get
                    dirty, and coins can scatter. One may hold
                    things that, if they drop, there will be no
                    loss. The Gemara asked about Lulav. Perhaps it
                    is forbidden, for he is distracted lest it fall
                    and become Pasul. Or, because the Mitzvah is
                    dear to him, he will not drop it and he is not
                    distracted. We conclude the second way, it is
                    like things that will not be ruined if they
                    drop. Others say that we just gave common
                    examples, but one may not pray holding
                    anything, even if it would not be ruined if it
                    dropped. Only a Lulav is permitted; because the
                    Mitzvah is dear to him, he will not be
                    distracted.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Tefilah 5:5):</font></b> One may not pray while
               holding Tefilin in his hand or a Sefer Torah in his
               arm, for it distracts him. He may not hold Kelim or
               coins in his hand (at the time). He may pray with a
               Lulav in his hand during Sukos, for it is the
               Mitzvah of the day. If one was carrying a load on
               his head and the time for prayer came, if it is less
               than four Kavim, he casts it on his back and prays.
               If it is four Kavim, he puts it on the ground and
               prays.
<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 96:1):</font></b> One may not pray while
               holding in his hand Tefilin, a Sefer of Kisvei
               ha'Kodesh, a full bowl, a knife, coins or a loaf,
               for he thinks about them, lest they fall. This
               distracts him and spoils his concentration.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mishnah Berurah (1):</font></b> The Pri Megadim says that
                    the same applies at the time of Kri'as Shema
                    and Pesukei d'Zimrah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishnah Berurah (2):</font></b> B'Di'eved, one need not
                    pray again, unless due to this he did not have
                    intent in the first Berachah of Shemoneh Esre
                    (for he will have intent if he prays again -
                    Sha'ar ha'Tziyon 2). A Shali'ach Tzibur may
                    hold the Sefer Torah while saying 'Yekum
                    Purkan.' Since he prays for those who learn, he
                    is not holding it to guard it, so it is like a
                    Lulav in its time. Likewise, one may hold a
                    Sefer Torah during Birkas ha'Chodesh.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Mishnah Berurah (4):</font></b> Similarly, one may not put
                    an infant in front of himself at the time of
                    Tefilah.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Kaf ha'Chayim (4):</font></b> Tosfos (Chagigah 3a DH
                    Kedei) says that we bring (young) children to
                    the Beis ha'Keneses. However, at the time of
                    prayer we take them out.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Taz (2):</font></b> The Shulchan Aruch (97:5) requires
                    casting a load on his back. This proves that
                    one may not hold anything in front of him, even
                    if it would not get ruined if it falls.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Mishnah Berurah (6):</font></b> If one fears lest Tefilin
                    or a Sefer Torah be stolen, perhaps one may
                    hold it during Tefilah. This requires
                    investigation.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Kaf ha'Chayim (7):</font></b> Surely, if he can wrap it in
                    a cloth and hang it from his belt, it is
                    permitted. We forbid only in his hand. Here,
                    there is no concern lest it fall. If this is
                    impossible, it is better to hold it in his hand
                    than to leave it on the bench, for his mind is
                    more settled this way. The Yerushalmi says so
                    regarding coins.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Kaf ha'Chayim (5):</font></b> One may pray with eyeglasses
                    only if they fit his nose well or are tied on
                    and will not fall.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Note:</font></b> In those days, most eyeglasses were not
                    secure and were prone to fall. This is why the
                    Mishnah Berurah (301:44) forbade wearing them
                    on Shabbos where there is no Eruv.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> He may pray with a Lulav in
               his hand in the time (of the Mitzvah). Since holding
               it is a Mitzvah, it will not distract him.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Kaf ha'Chayim (9):</font></b> Similarly, one may hold Tzitzis
               in his hand.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> One may hold a Machzor of
               Tefilos in his hand while praying. Since he holds it
               for the sake of Tefilah, it will not distract him.
               It is like a Lulav. Since taking it is a Mitzvah, he
               is not distracted.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source (Terumas ha'Deshen 17, cited in Beis
                    Yosef DH v'Chasuv):</font></b> All Kisvei ha'Kodesh are
                    forbidden, like a Sefer Torah. Machzorim and
                    Tefilos are permitted only if he holds it to
                    pray from it deeply and precisely.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishnah Berurah (7):</font></b> If a Sefer fell on the
                    floor in front of him, he may pick it up after
                    finishing the Berachah he is in only if due to
                    it he cannot concentrate. All the more so, one
                    may not gesture with his finger.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema:</font></b> If he was not holding a Sidur before he began
               praying, he may not pursue one during Tefilah,
               unless it was in a prepared, designated place. Then,
               one may go to get it during Tefilah to pray from it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source:</font></b> Beis Yosef ibid., citing R. Yonah 15b
                    Sof DH v'Asur.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Kaf ha'Chayim (11):</font></b> If one is unsure about a
                    law, he may go to where he knows that there is
                    a Sefer in which he can find the Halachah.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Mishnah Berurah (8):</font></b> Similarly, one who prays
                    from a Sidur must be careful to mark in advance
                    all the places he needs to pray from, lest he
                    need to search during Tefilah and cease to
                    concentrate.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Mishnah Berurah (9):</font></b> Also during Chazaras
                    ha'Shatz it is proper to have a Siddur in front
                    of him and see what the Shali'ach Tzibur says.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Shulchan Aruch (97:5):</font></b> If one was carrying a load on
               his head and the time for prayer came, if it is less
               than four Kavim, he casts it on his back and prays.
               If it is four Kavim, he puts it on the ground and
               prays.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Hayah):</font></b> Our text, and that of
                    the Rif and Rosh, says that there was a load on
                    his shoulder. The Rambam's text said 'it was on
                    his head.' According to this, one may pray with
                    a load on his shoulder. The Tur did not mention
                    casting the load on his back. It seems that he
                    explains that this is not obligatory. The
                    Beraisa permits praying while they are on him.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishnah Berurah (17):</font></b> A load of four Kavim on
                    him would distract him.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kaf ha'Chayim (29):</font></b> Also, people do not stand
                    in front of kings bearing a big load like this.<p>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a Zav (a man Tamei due to emissions) and a
          Tahor person went together on a weak tree or branch, the
          Tahor person is Tamei. (Rambam - the Zav makes the tree
          or branch bend. This moves the Tahor person.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> What is considered a weak tree?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (d'Vei R. Yanai):</font></b> At the trunk (Chachmas Mano'ach
          - where the branches come out), it is too thin to carve
          out a quarter of a Kav.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> What is considered a weak branch?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Reish Lakish):</font></b> It is so thin that it can be
          concealed (surrounded) by one's hand.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> (A Beis ha'Pras is a field in which a grave
          was plowed. We are concerned lest the plow dragged
          bones.) If one walked through a Beis ha'Pras on top of
          rocks that one can move, or rode on a weak person or
          animal, he is Tamei (mid'Rabanan, for perhaps his weight
          helped move a bone).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> What is considered a weak person?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer (Reish Lakish):</font></b> When he carries someone, his knees
          knock together.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> What is considered a weak animal?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer (d'Vei R. Yanai):</font></b> When one rides it, it excretes.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>LOADS THAT MUST BE PUT DOWN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(D'Vei R. Yanai):</font></b> Four Kavim is the quantity for prayer
          and Tefilin.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> To which law of prayer does he refer?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> If one is carrying a load on his
          shoulder, if it is less than four Kavim, he casts it on
          his back and prays. If it is four Kavim or more, he must
          put it down before praying.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> To which law of Tefilin does he refer?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> One may not carry a load of four Kavim
          on his head while wearing Tefilin on his head if it
          compresses them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it does not compress them, it is permitted.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(R. Chiya):</font></b> If one is wearing Tefilin and carries manure
          on his head, he should not move the head Tefilin to the
          side or tie them on his thigh, for this is disgraceful;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, he should tie them on his arm, next to his
               hand Tefilin.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(D'Vei Shila):</font></b> One may not carry even a Tefilin bag on
          his head while wearing Tefilin on his head.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> According to d'Vei Shila, how much may one
          carry on his head along with Tefilin?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> Even a 16th of a Litra of Pumbadisa is
          forbidden.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>THE AMOUNT OF PEROS WORTH FARMING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Yehudah):</font></b> It is unreasonable to say 'a
          pile.' Rather, it must yield as much as the seeds.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> How much is this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Version #1 (Rashi) Answer #1 (R. Ami citing R. Yochanan):
          It is when a Beis Kor produces (enough grain so that the
          volume of its seeds is) four Sa'im (Gra - four Kavim.
          Normally, when seeded, this produces a Kor.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #2 (Tosfos) Answer #1 (R. Ami citing R.
          Yochanan):</font></b> It is when the amount of land fitting to
          produce a Kor of Peros produces only four Sa'im (the
          amount needed to seed land of this size). (end of Version
          #2)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (R. Ami himself):</font></b> It is when that amount of
          land produces eight Sa'im (Gra - Kavim).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(An elder):</font></b> (They do not argue). In R. Yochanan's day,
          land was more fertile. From (Rashi - the yield of) four
          Sa'im one could seed such an area of land. In R. Ami's
          day, eight Sa'im were needed.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If wind scattered Reuven's sheaves (and we do
          not know how much Leket (fallen sheaves that must be left
          for the poor) was there), we estimate how much Leket
          normally falls, and he gives this to the poor;
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Version #1 (Rashi):</font></b> R. Shimon ben Gamliel says, (we need
          not estimate;) he gives the amount of Leket that normally
          falls (it is fixed).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Version #2 (Rambam):</font></b> R. Shimon ben Gamliel says, he gives
          the amount that we seed (in a field of this size). (end
          of Version #2)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> How much is this?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rav Dimi citing R. Yochanan):</font></b> It is four Kavim to
          a Kor.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (R. Yirmeyah):</font></b> Does he mean an area that
          normally produces a Kor of grain, or in which one plants
          a Kor of seeds?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Ravin):</font></b> It is for a Kor of seed.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> Does he refer to seeding by hand, or (when the
          seeds fall from a punctured Kli drawn) by oxen?
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	This question is not resolved.
<br><b>
<br></b><b><b><font color='blue'>6) </font></b><font color='blue'>REGION-WIDE AFFLICTIONS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven was a Choker on Shimon's field and
          the crop was stricken by locusts or withered (by the sun
          or wind):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the entire province was stricken, he deducts from
               the rental. If not, he pays the full rental.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, if the rent was a fixed amount of
               money, in either case he pays the full rental.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is a region-wide affliction?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah):</font></b> The majority of the valley was
          stricken.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Ula):</font></b> Fields in all four directions were
          stricken.
<br>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Questions (according to Ula):</font></b> If only the closest row of
          the surrounding fields was stricken, what is the law? If
          the surrounding fields were stricken, except for the row
          closest to Shimon's field, what is the law?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Questions:</font></b> What if the law if the following separated
          between them: a fallow field; fields planted for fodder
          (that were not stricken. Do we say that had they been
          planted with grain, they would have been stricken?);
          fields planted for a different crop (for people, and they
          were not stricken)?
<br>

sjt:
</p><p>
<font><b>3) A LOAD ON ONE'S HEAD</b></font><b>
<br>QUESTION:</b> The Beraisa says that a person is not allowed to transport on his head a load that crushes his Tefilin. D'Vei Rebbi Yanai explains that this prohibition applies only to a load that weighs at least four Kavim. The Gemara later quotes d'Vei Shilo who states that a person is prohibited even to place the cloth (which is used to wrap the Tefilin when they are not being worn) upon his head while he is wearing Tefilin. Abaye explains that this applies even to something as small as the tiny measure used in Pumbedisa.
</p><p>
How can d'Vei Shilo's words be reconciled with d'Vei Rebbi Yanai and the Beraisa, who prohibit placing on one's head only a load that is heavy and will crush the Tefilin?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAM</b> does not mention that the prohibition applies only to loads heavier than four Kav. <b>RABEINU YONAH</b> in Berachos (14b of the pages of the Rif) writes that d'Vei Shilo argues with d'Vei Rebbi Yanai. Since the Halachah follows d'Vei Shilo (because Abaye follows that view), the Rambam does not mention the view of d'Vei Rebbi Yanai.
</p><p>
(b) However, the <b>RIF</b> in Berachos there and the <b>ROSH</b> here cite both opinions, that of d'Vei Rebbi Yanai and that of d'Vei Shilo. Rabeinu Yonah asks, how can they cite two contradictory opinions?
</p><p>
1. The <b>BEIS YOSEF</b> (OC 41) quotes <b>MAHARI ABUHAV</b> who answers that d'Vei Rebbi Yanai permits a load of up to four Kavim only b'Di'eved, when the person has already placed the load upon his head. L'Chatchilah, though, a person should not put a load of any size upon his head while wearing Tefilin, as d'Vei Shilo rules. The Beis Yosef adds that one might be permitted even l'Chatchilah to carry up to four Kavim if there is a good reason to do so (for example, one is being paid to carry it); otherwise, a person is prohibited l'Chatchilah to carry any burden on his head while he is wearing Tefilin.
</p><p>
2. The <b>BEIS YOSEF</b> himself suggests that if one placed a load on his head before he decided to don Tefilin, he is permitted to wear Tefilin together with a load that weighs up to four Kavim.
</p><p>
3. The Beis Yosef infers from the wording of the <b>TUR</b> that a load of up to four Kavim is permitted when it rests beside the Tefilin, as long as it is not on top of the Tefilin. If the load weighs four Kavim, the Rabanan prohibit even wearing it alongside the Tefilin, since it might move and come to rest on top of the Tefilin.
</p><p>
(The <b>MISHNAH BERURAH</b> points out that <b>RASHI</b> (DH v'Im Lav) writes clearly that when the load is not resting on the Tefilin, even a burden of four Kavim may be carried on one's head, unlike the opinion of the Tur as the Beis Yosef understands it.)
</p><p>
4. The Beis Yosef cites <b>RAV YOSEF <b><b>AL</b></b> ASKANDRANI</b> who says that a person may carry a load of up to four Kavim if the load is not resting on his head, but is suspended from a rope that is strung over his head and pulls against the Tefilin. Since nothing is on top of the Tefilin, one is permitted to carry a load in such a way as long as the burden is not four Kavim, which would exert too much pressure on the Tefilin.
</p><p>
5. The <b>DARCHEI MOSHE</b> writes that a load of up to four Kavim is permitted if it is the type of load that is normally carried upon one's head (such as a hat). This is the way the <b>REMA</b> rules in the Shulchan Aruch.
</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>REGION-WIDE AFFLICTIONS (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> (If a different crop is not a separation), is
          wheat considered a different crop than barley?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> If everyone else's field was stricken by
          dryness, and Shimon's field was stricken by withering, or
          vice-versa, what is the law?
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	These questions are not resolved.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If Shimon told Reuven to plant wheat; and
          Reuven planted barley, and the crop withered (along with
          most of the valley), what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Can Reuven say 'even had I planted wheat, it would
               have been stricken'?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, can Shimon say 'had you planted wheat, 'v'Sigzor
               Omer v'Yakam Lach' (it would have prospered).'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Presumably, Shimon can say this.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If all of Shimon's fields were stricken, but
          the majority of the valley was not, what is the law?
<br>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since the majority of the valley was not stricken,
               Reuven pays the full amount;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since all of Shimon's fields were stricken, it
               was due to him?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Presumably, if it was due to Shimon, a little
          would have remained - 'Ki Nisharnu Me'at me'Harbeh.'
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If all the fields that Reuven rents were
          stricken, and also the majority of the valley, what is
          the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since the majority of the valley was stricken,
               Reuven deducts;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since all of Reuven's fields were stricken, it
               was due to him?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Presumably, it was due to Reuven.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> We should say that if it were due to
               Reuven, a little would have remained - 'Ki
               Nisharnu...'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> If Hash-m wanted to leave a remnant for
               Reuven, he would leave it on Reuven's property.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If the crops were stricken that year
          with withering, dryness, or it was Shemitah, or there was
          a drought like the years when Eliyahu decreed there would
          be no rain at all, it does not count towards the two
          years (that one must wait before redeeming a sold field).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The Mishnah teaches years of withering
               or dryness together with years of Eliyahu. Just like
               in the years of Eliyahu nothing grew at all, also
               years of withering or dryness;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> However, if some things grow, this is not a region-
               wide affliction (regarding redemption and rental)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rav Nachman bar Yitzchak):</font></b> Redemption is
          different. 'Shnei Sevu'os Yimkar' refers to years when
          there is grain (somewhere).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> If so, Shemitah should count, for
          there are harvests in Chutz la'Aretz!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Rav Kahana):</font></b> The Torah forbids working the land.
          It is not a 'year of grain.'
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (Mar Zutra brei d'Rav Mari):</font></b> If so, years of
          Shemitah should not count towards reducing the redemption
          of a Hekdesh field, but they do!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one redeems an inherited field that he
               made Hekdesh, he pays a Sela and a 48th of a Sela
               for each year remaining until Yovel (about a 49th of
               the redemption for all 49 years. Seven of these
               years are Shemitah!)
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> One can use the field in Shemitah for
          spreading out Peros to dry.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> The renter deducts only if he planted and it
          was afflicted. If he did not plant, the owner can say
          'had you planted, my crops would have been spared -
          'u'Vimei Re'avon Yisba'u'.'
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question (Rav Sheshes - Beraisa):</font></b> If a shepherd was
          grazing his flock, and he left it and went to the city,
          and a wolf or lion came and killed some of the flock, we
          do not say that had he stayed he (surely) would have
          saved. Rather, we estimate. If he could have saved, he is
          liable; if not, he is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why can't the owner say 'had you been there, you
               would have saved them miraculously - 'Gam Es
               ha'Ari... Hikah Avdecha'!'
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer:</font></b> The shepherd can say 'if you were worthy of a
          miracle, it would have happened in my absence.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The goats of R. Chanina ben Dosa killed bears that
               came to attack.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Question:</font></b> Why can't the owner say 'had you been there,
          you would have saved them with a small miracle. I am not
          worthy of a big miracle (i.e. that they should be saved
          in your absence)'?
<br>
<br>

sjt:
<font><b>1) AGADAH: INEXACT PRAYER</b></font><b>
<br></b>The Gemara says that when a sharecropper ('Chocher') does not plant the type of crop that he told the owner he would plant, and then the crop that he planted is smitten by blight, even if all the surrounding fields are also smitten he may not pay a reduced fee for the land. The Gemara explains that the owner can claim, 'I prayed that Hash-m would protect the type of crop that I wanted you to plant there. Had you planted the type of crop for which I prayed, then Hash-m would have listened to my prayers. Now that you planted a different crop, my prayers were meaningless' (<b>RASHI</b> DH v'Sigzar Omer).
</p><p>
The <b>MESHECH CHOCHMAH</b> (Parshas Chukas) finds a source for this concept in the Torah. The Torah says that when Amalek came to attack Yisrael in the year before they entered Eretz Yisrael, the Amalekim spoke the language of the Kena'anim in order to thwart the prayers of the Jewish people. The Amalekim hoped that the Jewish people would think that the approaching enemies were Kena'anim and would pray to Hash-m to vanquish the Kena'anim. They would not be saved because their enemies were really Amalekim and not Kena'anim. The Jewish people, however, saw that something was amiss when they saw the Amalekite clothing and heard the language of Kena'an. They decided to pray to Hash-m without specifying a name, and they prayed that Hash-m should defeat 'that nation.' This implies that prayers are not answered if a person inadvertently prays for the wrong thing.
</p><p>
According to this explanation, however, the sharecropper should be able to reply to the fieldowner that he should not have prayed for a specific crop, but rather he should have prayed for whatever crop was planted in the field. Why does the Gemara rule that the sharecropper may not pay a reduced rate? The answer is that <b>TOSFOS</b> (DH l'Nisa) writes that a much greater miracle is required for a person's prayers to be answered if he does not articulate the specific item for which he is praying. Tosfos might have come to this conclusion based on this very question. The fieldowner can justify the fact that he prayed for a specific type of crop because he did not feel that he was worthy of being answered if he would not specify the crop, because that would have required a much greater miracle.
</p><p>


<font><b>2) THE FIELDOWNER'S PRAYER</b></font><b>
<br>QUESTION:</b> The Gemara says that when a sharecropper ('Chocher') does not plant the type of crop that he told the owner he would plant, and then the crop that he planted is smitten by blight, even if all the surrounding fields are also smitten he may not pay a reduced fee for the land. The Gemara explains that the owner can claim, 'I prayed that Hash-m would protect the type of crop that I wanted you to plant there. Had you planted the type of crop for which I prayed, then Hash-m would have listened to my prayers. Now that you planted a different crop, my prayers were meaningless' (<b>RASHI</b> DH v'Sigzar Omer; see previous Insight).
</p><p>
Why does this claim obligate the sharecropper to pay the full amount of the 'Chakirus'? The sharecropper should have a counter-claim: that there is no certainty that Hash-m would have answered the fieldowner's prayers even if the proper crop had been planted. Since it is a doubt, the sharecropper should not be forced to pay (since, in any monetary case involving a doubt, the Halachah is 'ha'Motzi me'Chaveiro Alav ha'Re'ayah'). (<b>DEVAR YAKOV</b>)
</p><p>
<b>ANSWER:</b> The <b>DEVAR YAKOV</b> quotes the <b>RAMACH</b> (as cited by the Shitah Mekubetzes) who says that the sharecropper is considered to have been 'Poshe'a' (negligent) because he deviated from the agreement and planted a different crop. Therefore, he has the 'lower hand' and the burden of proof is shifted to him. Instead of the owner being obligated to prove that his prayers would have been answered, the sharecropper must prove that the prayer of the fieldowner would <i>not</i> have been answered. Since it is obviously impossible for him to prove this, he must pay the full rate.
</p><p>


<font><b>3) A SMALL MIRACLE</b></font><b>
<br>QUESTION:</b> Rav Sheshes cites a Beraisa which states that if a shepherd leaves his herd and enters the city, and a wolf or lion attacks the herd, Beis Din evaluates whether he would have been able to protect the herd had he been there. If Beis Din assesses that he would have been able to protect the herd, then he is liable (see Insights to Bava Metzia 93:3). If Beis Din assesses that he would not have been able to defeat the lion, he is exempt. Rav Sheshes asks that in either case the shepherd should be liable because the owner can claim, 'Had you been there, a miracle would have happened for me and the verse 'Gam Es ha'Ari, Gam ha'Dov, Hikah Avdecha' would have applied to me!' The Gemara answers that the shepherd can counter-claim that had the owner truly been worthy of a miracle, his herd would have been saved even without the shepherd being there. The Gemara asks that the owner should be able to retort, 'Had you been there, it would have required only a small miracle to save them, of which I am worthy; but I am not worthy of a big miracle (that they should be saved with no one there)!' The Gemara leaves this question unanswered.
</p><p>
How can the fieldowner suggest that he is worthy of even a small miracle? The fact that wild animals attacked his flock in the first place shows that he is not worthy of even a small miracle! (<b>TORAS CHAIM</b>)
</p><p>
<b>ANSWER:</b> The <b>TORAS CHAIM</b> answers that the fieldowner still may claim that he indeed is worthy of a small miracle, and the reason his flock was attacked in the first place is that if a small miracle had prevented the attack of the wild animals, no one would have known about the miracle. Hash-m wanted to do a miracle for him that he would recognize so that he would be able to give thanks and praise to Hash-m. Thus, it is reasonable to assume that even if his flock was attacked by wild animals, a small miracle might have occurred to save the flock.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>REGIONAL AFFLICTIONS</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'> 103b (Mishnah):</font></b> If Reuven accepted to work on
               Shimon's Beis ha'Shelachin (a field that is
               irrigated from a spring) or Beis ha'Ilan (a field
               with a tree, which is profitable for the worker),
               and the well dried up or the tree was cut down, he
               does not deduct from the agreed rental.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> If a big river dried up, why doesn't he
               deduct? This affects the entire region (we cannot
               say that it is due to his bad Mazal)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav Papa):</font></b> A small spring dried up. The
               worker could bring from the big river.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> This Mishnah applies to sharecroppers
               (who get a fixed portion of the produce) and
               Chokerim (renters who pay a fixed amount of Peros
               each year). Every Mishnah later in our Perek applies
               to only one of them.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 105b (Mishnah):</font></b> If Reuven was a Choker on Shimon's
               field and the crop was eaten by locusts or withered
               (by the sun or wind), if it was a regional
               affliction, he deducts from the rental. If not, he
               pays the full rental.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> R. Yehudah says, if the rent was a fixed amount of
               money, in either case he pays the full rental.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> What is a regional affliction?
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #1 (Rav Yehudah):</font></b> The majority of the valley
               was stricken.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #2 (Ula):</font></b> Fields in all four directions were
               stricken.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question (Mishnah):</font></b> If the crops were stricken with
               withering, dryness, or it was Shemitah, or there was
               a drought like in the years of Eliyahu, the year
               does not count towards the two years (before
               redeeming a sold field).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> The years of withering or dryness
                    are like the years of Eliyahu, in which nothing
                    grew at all, but if some things grow, this is
                    not a region-wide affliction (for redemption
                    and rental)!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer (Rav Nachman bar Yitzchak):</font></b> It says about
               redemption 'Shnei Sevu'os Yimkar', i.e. years in
               which there is grain (somewhere).
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> 106b:</font></b> Reuven rented a land on the bank of a certain
               river, to plant garlic on it, for a fixed amount of
               money. The river was dammed up (and therefore, the
               garlic did not grow well).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rava:</font></b> It is unusual to dam up that river. This
                    is a regional affliction, so you deduct from
                    the rental.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question (Rabanan - Mishnah - R. Yehudah):</font></b> If the
               rent was a fixed amount of money, in either case he
               pays the full rental.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer (Rava):</font></b> No one says that the Halachah follows
               R. Yehudah.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (9:14):</font></b> The Halachah follows Rav
               Yehudah, for the Sugya is like him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Eino):</font></b> R. Yehudah holds that
                    if the rental was for money he does not deduct,
                    for there was no decree against money, so we
                    attribute it to the renter's bad Mazel.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> The Gemara brought many questions according to
               Ula. Ula himself asked them (so this does not show
               that the Halachah follows him)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 8:4):</font></b> If Reuven was Choker
               or accepted to work on Shimon's Beis ha'Shelachin or
               Beis ha'Ilan, if the spring dried up but the river
               did not, and Reuven can bring from the river with a
               bucket, or the tree of the Beis ha'Ilan was cut
               down, Reuven does not deduct from the rental. If the
               entire region was stricken, e.g. the river dried up,
               he deducts from the rental.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Ramban and Rashba explain
                    that a sharecropper does not deduct for
                    regional afflictions. The owner gets the same
                    fraction of the produce that they agreed upon.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (5):</font></b> If Reuven rented or accepted to work
               Shimon's field and the crop was eaten by locusts or
               withered, if most fields of the city were stricken,
               he deducts from the rental according to the loss
               that occurred. If most fields were not stricken, he
               pays the full rental.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> Rashi says that this applies
                    only to a Choker. What would a sharecropper
                    deduct? They share whatever there is! This is
                    obvious, for Rav Papa taught that each later
                    Mishnah applies to a Choker or sharecropper,
                    but not both. Why did the Rambam say 'accepted
                    to work' (a sharecropper)? He adopted the text
                    of the Mishnah, but he means rental or
                    Chakirus. Still, he should have explicitly said
                    so. The Rambam's text said 'most valley<i>s</i>',
                    i.e. of the city. Some texts of the Rif say so.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos Ashri (6:6, b'Sof):</font></b> If a one was hired
                    to teach a child, and the mayor decreed to
                    forbid this, this is a regional affliction and
                    he receives his full wage. This requires
                    investigation later regarding one who accepted
                    to work a field.
<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 321:1):</font></b> If Reuven was Choker or
               accepted to work on Shimon's Beis ha'Shelachin or
               Beis ha'Ilan, if the spring dried up but the river
               did not, and Reuven can bring from the river with a
               bucket, or the tree of the Beis ha'Ilan was cut
               down, Reuven does not deduct from the rental. If the
               entire region was stricken, e.g. the river dried up,
               he deducts from the rental.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Beis Yosef (DH u'Mah she'Chosav Gabei):
                    Talmidei ha'Rashba say that even if a small
                    river dried up in the entire city, it is not a
                    regional affliction. It merely causes more
                    exertion; this is normal.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> A sharecropper does not deduct when the entire
               region was stricken. The owner gets the same
               fraction of the produce that they agreed upon.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (4):</font></b> This is unlike one answer in Tosfos
                    (104a DH d'Efshar) that we discuss when it is
                    possible to draw from the river, but if he
                    cannot, even a sharecropper need not toil to
                    work the field.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (5):</font></b> The Rema is like the Nimukei Yosef.
                    Tosfos, the Rosh and Tur hold that even a
                    sharecropper deducts. The Tur holds that we do
                    not deduct when all crops in the region were
                    withered or eaten by locusts, but here he can
                    say 'I did not accept to toil to bring water
                    from afar.' When crops are withered or eaten by
                    locusts, this is no reason to refrain from
                    tasks.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (322:1):</font></b> If Reuven was Choker or
               rented Shimon's field and the crop was eaten by
               locusts or withered, if most fields of the city were
               stricken, he deducts from the rental, all according
               to the loss that occurred. If most fields were not
               stricken, he pays the full rental.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH veha'Ra'avad):</font></b> It seems that
                    Rabbeinu (the Ra'avad) rules like Ula. Surely,
                    we do not rule like him against all those who
                    rule like Rav Yehudah (the Rif, Rambam and
                    Rosh).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shitah Mekubetzes (95b DH Aval, citing the
                    Ra'avad):</font></b> The questions according to Ula were
                    not answered. Even though the other questions
                    are according to Rav Yehudah, Ula is not
                    rejected, for each of them agrees to the other.
                    Alternatively, Ula agrees that when the
                    majority was stricken, it is a regional
                    affliction. He teaches a bigger Chidush (fields
                    in all four directions are like a majority).
                    Since in Eretz Yisrael they asked according to
                    him, we say that also what he said is a
                    regional affliction.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (3):</font></b> 'He deducts, all according to the loss
                    that occurred' connotes that if this field was
                    stricken more or less than others, he deducts
                    according to the loss that occurred in this
                    field.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema (334:1):</font></b> If one rented out his house, he is
               like a worker (if Ones occurred). If the tenant fled
               due to bad air or another Ones, the worker (or
               owner) loses.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Maharam Padova (86):</font></b> A student fled Venice due
                    to a plague. This is Ones; the teacher is not
                    paid. Hagahos Ashri says that when there is a
                    regional affliction, he receives his full wage.
                    Here it was not regional affliction, for only a
                    minority fled. If a river dries up and the
                    workers knew about this possibility as much as
                    the owner, they are not paid. Loss of the river
                    is Mevatel many people, but not all, from work.
                    Hagahos Ashri was discussing illness; and he
                    switched to discuss a decree, and not a
                    regional illness, for a regional affliction is
                    only when everyone, not just a majority, is
                    affected.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 3):</font></b> A regional affliction is
                    when the majority of the valleys were stricken!
                    All Poskim agree to this. Hagahos Ashri
                    discussed a decree for this is clearcut. He did
                    not discuss a plague, for then we must
                    determine whether or not the majority were
                    stricken. Indeed, if the majority were stricken
                    or fled, it is a regional affliction.
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>A WOMAN WIDOWED TWICE </b></b>(</font><font color='darkblue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(t)</font></b></b>  	This is left difficult.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HOW LONG THE RENTER MUST PERSEVERE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa #1):</font></b> The first two times, the renter must plant.
          The third time, he need not.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Contradiction (Beraisa #2):</font></b> The first three times, the
          renter must plant. The fourth time, he need not.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Beraisa #1 is Rebbi, who says that a Chazakah is
          established after two occurrences. Beraisa #2 is R.
          Shimon ben Gamliel, who says that a Chazakah is
          established after three occurrences.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> The renter deducts only if it sprouted
          and was afflicted, but if it never sprouted, he should
          have planted again, perhaps he planted too early.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> How long must he keep planting?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> He must plant until the constellation
          'Kimah' is directly overhead in late afternoon (i.e.
          Adar).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Beraisa - R. Shimon ben Gamliel):</font></b> (Bereishis
          8:22 mentions the following six seasons. Each is two
          months.) The time of 'Zera (planting)' is from the middle
          of Tishrei until the middle of Kislev. The next two
          months are 'Choref', followed by 'Kor', 'Katzir',
          'Kayitz', and 'Chom';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah says, Zera starts at the beginning of
               Tishrei;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon says, it starts at the beginning of
               Cheshvan.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Even according to R. Shimon, who has the latest time
               for planting, it does not extend until Adar!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa discusses times for planting wheat
          and rye. Rav Papa discusses planting barley and legumes.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>PAYING CHAKIRUS WHEN THE FIELD WAS STRICKEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Yehudah):</font></b> If the rent was a fixed amount of
          money, in either case he pays the full rental.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Reuven rented a land on the bank of a certain river, to
          plant garlic on it, for a fixed amount of money. The
          river was dammed up (and therefore, the garlic did not
          grow well).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rava:</font></b> It is unusual to dam up that river. This is a
               region-wide affliction, so you deduct from the
               rental.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Rabanan - Mishnah - R. Yehudah):</font></b> If the
               rent was a fixed amount of money, in either case he
               pays the full rental.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rava):</font></b> No one says that the Halachah follows
               R. Yehudah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven was Choker a field for ten Kor of
          wheat per year, and it was stricken, he may give him
          wheat from the field;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If the wheat of the field was good, he must give it. He
          may not give wheat that he buys elsewhere.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara):</font></b> A case occurred in which Reuven was Choker a
          field, to plant fodder, for one Kor of barley per year.
          He planted and harvested fodder, then (in the same year,
          instead of planting more fodder), plowed it and planted
          barley. The barley was stricken.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Chaviva of Sura):</font></b> Is this like the Mishnah?
          Since it was stricken, he may give him from the field.
          Or, is it different?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> It is different. There, the field did
          not produce (wheat) like it should have . Here, it
          produced (fodder) like it was supposed to.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Gemara):</font></b> A case occurred in which Levi was Choker a
          vineyard for 10 barrels  of wine. The wine soured.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Kahana):</font></b> This is this like the Mishnah. Since it was
          stricken, he may give him from the field.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection (Rav Ashi):</font></b> It is different. There, the field
          did not produce like it should have . Here, it produced
          proper grapes (like it was supposed to.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Ashi admits that if it produced wormy grapes, or
               if the grain was stricken while drying in the field,
               he deducts from the rental.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>PLANTING DIFFERENTLY THAN AGREED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven was Choker a field to plant barley,
          he may not plant wheat. If he was Choker to plant wheat,
          he may plant barley;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Shimon ben Gamliel forbids this.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If he was Choker to plant grain, he may not plant
          legumes. If he was Choker to plant legumes, he may plant
          grain;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Shimon ben Gamliel forbids this.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara - Rav Chisda):</font></b> R. Shimon ben Gamliel learns from
          'Yisrael... Lo Yedaberu Chazav.'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Money collected for the poor for
          Purim must be used for Purim. We are not concerned (Rashi
          - that this is too much for Purim, that some should be
          given for regular Tzedakah; Ritva - to check that the
          recipient is truly poor);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yakov says, the poor people may not use it to buy
               a shoe strap without stipulating in front of the
               people of the city.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Gamliel is lenient (the money may be
               used for other things).
<br>

<p>

sjt:
</p><p>
<font><b>4) PLANTING DIFFERENTLY THAN AGREED</b></font><b>
<br>OPINIONS:</b> The Tana Kama of the Mishnah states that if a sharecropper arranges with a fieldowner that he will plant barley in the field, he is not permitted to plant wheat. If they agree that he will plant wheat, he is permitted to plant barley. Wheat weakens a field much more than barley does, and he therefore may not plant wheat if the fieldowner agrees only to barley.
</p><p>
Does the rule of the Mishnah apply to both forms of sharecropping -- 'Kablanus' and 'Chakirus' -- or only to one of them?
</p><p>
(a) <b>RASHI</b> (DH Lo Yizranah) states that the Mishnah's rule applies only in a case of 'Chakirus.' Since the fieldowner will receive the same payment regardless of what the field produces, he certainly does not want his field to be weakened by the wheat that is planted there. In contrast, in a case of 'Kablanus' the sharecropper <i>may</i> deviate and plant barley instead of wheat. Since the fieldowner receives a percentage of the field's produce, it is assumed that he would prefer to receive a superior crop (wheat) and let his field be weakened rather than receive an inferior crop (barley) and not have proper food to eat.
</p><p>
Rashi proves this from the Gemara earlier (104b) which discusses an incident in which a sharecropper agreed to plant sesame (a superior crop) and then planted wheat instead, which depletes the land <i>less</i> than sesame does. The field produced wheat worth as much as the sesame would have been worth. Rav Kahana thought that the owner's share of the crops should be reduced, since the field was not depleted as much as it would have been and the owner thus benefited. Rav Ashi ruled that the fieldowner did <i>not</i> have to deduct this amount from the crops that he received. The owner would have preferred that the sharecropper plant sesame, even though it would have depleted the land more than the wheat did. Sesame is a superior crop, and it is assumed that an owner would prefer to have his land weakened rather than lose some of his sustenance.
</p><p>
The Acharonim question Rashi's explanation. The case in which Rav Ashi reasoned that a fieldowner would prefer that his land be weakened in order to receive more or better sustenance was a case in which the fieldowner told the sharecropper to plant a <i>superior</i> type of crop (such as sesame) which weakens the land considerably, and the sharecropper planted a crop (wheat) that does not weaken the field as much. The case here, however, is the opposite: the fieldowner told the sharecropper to plant an <i>inferior</i> crop (barley) in order that his field not be weakened. In such a case, the sharecropper certainly should not be permitted to deviate and plant a crop that weakens the field considerably (even if it is a better crop). (<b>TORAS CHAIM</b>, <b>CHOCHMAS SHLOMO</b> in Gilyonos to Shulchan Aruch CM 324, as cited by the <b>DEVAR YAKOV</b>)
</p><p>
(b) The <b>RAMBAN</b> (as cited by the Hagahos ha'Gra) takes the opposite position: the Mishnah refers <i>only</i> to a case of 'Kablanus' and <i>not</i> to a case of 'Chakirus.' In a case of 'Kablanus,' the fieldowner wants <i>only</i> the crop that he told the sharecropper to plant, since the owner receives a portion of the produce that grows in the field, and he does not want the sharecropper to plant a different type of crop. In a case of 'Chakirus,' the owner does not care what the sharecropper plants, since he receives the same payment regardless of what crops are grown.
</p><p>
The Acharonim question the Ramban's explanation as well. In a case of 'Chakirus,' the fieldowner is entitled to insist that he receive his set payment from produce of the field itself, as the Gemara earlier (105a) says. He therefore should be able to prevent the sharecropper from planting a different type of crop, even in a case of 'Chakirus.' (<b>TOSFOS YOM TOV</b>, <b>TAZ</b> CM 324)
</p><p>
The <b>TAZ</b> answers that according to the Gemara's conclusion there, the owner cannot claim that he wants only produce from his own land (see also Insights to Bava Metzia 105:1).
</p><p>
The <b>DEVAR YAKOV</b> cites the <b>CHOCHMAS SHLOMO</b> and <b>RASHASH</b>, who answer based on the words of the <b>NIMUKEI YOSEF</b>. They explain that the owner's right to insist that he receive his payment from the crops of his field applies only when those crops actually grow in his field. When there is no crop growing in his field, the owner cannot insist that the sharecropper cultivate that crop in his field to give to him; rather, he must accept produce bought in the market. Thus, in a case of 'Chakirus,' the fieldowner cannot insist that the sharecropper plant barley so that he can be paid with barley from his field, since there presently is no barley growing in his field.
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>PLANTING DIFFERENTLY THAN AGREED (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> In our Mishnah, R. Shimon ben Gamliel
          forbids due to Rabah's reason. (Based on what the owner
          planted last year, planting wheat might be better for the
          field.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 - Rashi (Rabah):</font></b> If one plants wheat and
               the next year barley, or one year widthwise and the
               next year lengthwise, this will ruin the field;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2 - Tosfos (Rabah):</font></b> If one plants wheat and
               the next year barley, or one year widthwise and the
               next year lengthwise, this will improve the field;
               (end of Version #2)
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he plows after harvesting, this will not
                    happen (so Reuven may plant barley).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he was Choker to plant grain, he may not
          plant legumes...
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Rav Yehudah taught Ravin that if he was Choker to plant
          grain, he may plant legumes.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Ravin - Mishnah):</font></b> If he was Choker to plant
          grain, he may not plant legumes. If he was Choker to
          plant legumes, he may plant grain.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> The Mishnah is for Eretz Yisrael. I
          taught you the law in Bavel (where the soil is not harmed
          by legumes).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If leeks grow among flax, one may take
          them from others' fields (removing them improves the flax
          more than their own value). If they are on the perimeter
          of a patch of flax, taking them is theft (because taking
          them does not help the flax);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the leeks have hardened to the point that the
               seeds are fit for planting, it is theft to take them
               even amidst the flax.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> They will not cause further harm.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>TREES ON THE BORDER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Rav Yehudah (to his neighbor Ravin):</font></b> Some of your fruit
          is on my premises, and some of my fruit is on your
          premises (there were trees straddling the border).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The custom among neighbors is that the fruit belongs
               to the one in whose premises the roots are.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #1 - Rashi - (Rav):</font></b> If a tree is on the border
          between two fields, the fruit belongs to the one in whose
          premises the roots are;
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> They divide the fruit.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If a tree stands on the border, the
          neighbors divide the fruit.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Shmuel, on behalf of Rav):</font></b> The case is, the roots
          are in both fields.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, this is obvious!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, the branches lean to one side
               (e.g. the field on the east).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Version #2 - Tosfos - (Rav):</font></b> If a tree lies on the border
          (jointly owned by the neighbors), they split the branches
          that are over the border. Each takes the fruit of the
          branches above his field;
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> They divide the fruit.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If a tree stands on the border, the
          neighbors divide the fruit.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Shmuel, on behalf of Rav):</font></b> The case is, the
          branches are over the border.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, this is obvious!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, they produce more fruit on one
               side (e.g. the east) than the other.(end of Version
               #2)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection:</font></b> Still, this is obvious!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that the neighbor on
               the east can say 'each of us will take the fruit in
               his half.' The Beraisa teaches that this is not so.
               The other says 'one of us will take the northern,
               and the other will take the southern half.'
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>BLESSINGS AND CURSES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Rav Yehudah (to Ravin):</font></b> Do not buy land close to the
          city.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Aba):</font></b> One may not look at another's field when
               it is laden with crops (due to Ayin ha'Ra'ah.
               Jealousy can arouse harsh judgment from Shamayim.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Rav taught that 'Baruch Atah ba'Ir' is a
          Berachah that your house will be close to the Beis
          ha'Keneses. 'U'Varuch Atah ba'Sadeh' - your property will
          be close to the city; 'Baruch Atah b'Vo'echa' - when you
          return home, you will not find your wife Safek Nidah;
          'u'Varuch Atah b'Tzeisecha' - your descendants will be
          like you;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> 'Baruch Atah ba'Ir' is that you will
               have a Beis ha'Kisei (privy) near your table. A
               house close to the Beis ha'Keneses is not a
               Berachah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is like R. Yochanan taught elsewhere, that
                    one is rewarded for every step he takes to walk
                    to the Beis ha'Keneses.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> 'U'Varuch Atah ba'Sadeh' - a third of
               your land will be grain fields, a third olive
               orchards, and a third vineyards. 'Baruch Atah
               b'Vo'echa u'Varuch Atah b'Tzeiseacha' - you will
               leave the world like you entered, without sin.
<br>
<br>

sjt:
<font><b>1) HALACHAH: IS IT BETTER TO LIVE NEAR TO OR FAR FROM A SYNAGOGUE</b></font><b>
<br>QUESTION:</b> The Gemara quotes two different explanations of the verse, 'Baruch Atah ba'Ir' (Devarim 28:3). Rav explains that the blessing of 'Baruch Atah ba'Ir' means that one's house will be near the Beis ha'Keneses. Rebbi Yochanan argues and explains that 'Baruch Atah ba'Ir' means that one will have a place to relieve oneself near the table, but a house near the synagogue is not considered a blessing, for Rebbi Yochanan states elsewhere (Sotah 22a) that a person receives 'Sechar Pesi'os' -- more reward for the more steps he takes to walk to the Beis ha'Keneses.
</p><p>
Does Rav argue with Rebbi Yochanan and maintain that one does not receive 'Sechar Pesi'os' when he takes more steps to walk to the Beis ha'Keneses?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TORAS CHAIM</b> explains that Rav takes into account a different factor. The Gemara in Berachos (47b) says that a person should make an effort to go early to the Beis ha'Keneses so that he will be among the first ten who make the Minyan, for the reward of the first ten is equivalent to the reward of all those who come afterward. Rav apparently holds that this reward takes precedence over the reward of 'Sechar Pesi'os,' and he therefore maintains that it is a blessing to live near the Beis ha'Keneses, where one is in a better position to be among the first ten.
</p><p>
(b) The <b>MAHARSHA</b> explains why the verse 'Baruch Atah ba'Ir' implies a Beis ha'Keneses according to Rav and a Beis ha'Kisei according to Rebbi Yochanan. Until modern times, it was the practice to build most synagogues and bathrooms outside of the residential area. Hence, there was a reasonable danger involved in going out to the synagogue alone (as mentioned in Berachos 5b-6a; see Tosfos to Berachos 2a, DH Mevarech, and 6a, DH ha'Mispalel) or to the bathroom alone. Rav and Rebbi Yochanan therefore explain, respectively, that it is a blessing to have a Beis ha'Keneses or a Beis ha'Kisei nearby.
</p><p>
According to the Maharsha, it could be that Rav agrees that a person receives 'Sechar Pesi'os' when he walks farther to a Beis ha'Keneses. However, that only applies when the Beis ha'Keneses is inside the city, relatively close to his home, and he does not have to endanger himself to get to the Beis ha'Keneses. (Y. Shaw)
</p><p>


<font><b>2) THE REWARD FOR WALKING TO SHUL</b></font><b>
<br>QUESTION:</b> Rebbi Yochanan maintains that a person receives 'Sechar Pesi'os' when he walks to a Beis ha'Keneses that is farther away, even if there is another one that is nearby (see <b>RASHI</b> to Sotah 22a, and Insights there). Although this teaches the importance of exerting oneself for a Mitzvah, such a Halachah -- that one should exert oneself by traveling a longer distance to perform a Mitzvah -- is found only with regard to the Mitzvah of going to a Beis ha'Keneses. (The Halachah does not state, for example, that it is a greater Mitzvah to walk a longer distance to sit in a Sukah.) Is there any reason why the Mitzvah of going to a Beis ha'Keneses should be unique in this respect?
</p><p>
<b>ANSWERS:</b>
<br>(a) Perhaps there is a special Mitzvah to travel to the Beis ha'Keneses because the Beis ha'Keneses is called a 'Mikdash Me'at' (Megilah 29a; see also Bava Metzia 28b) and there is a Mitzvah in the Torah to travel to the Beis ha'Mikdash during the festival. The same Mitzvah would apply to traveling to the 'Mikdash Me'at,' the Beis ha'Keneses.
</p><p>
(b) The purpose of Tefilah is for a person to bring himself closer to Hash-m and to lessen, as it were, the distance between himself and Hash-m. When one travels a distance to get to the Beis ha'Keneses, he thereby symbolizes that he is exerting himself to lessen the distance between him and Hash-m, and as such it is a proper preface to prayer. (This might also be the theme of Aliyah l'Regel.) (<b>MAHARAL</b> in <b>NESIVOS OLAM</b>, Nesiv ha'Avodah 5)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>PAS SHACHARIS</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> 'Machalah' refers to Marah. It sickens
               the whole body and causes 83 sicknesses (the
               numerical value of Machalah). Pas Shacharis (eating
               bread in the morning) with salt and a flask of water
               prevent all 83.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> There are 13 benefits of Pas Shacharis:
               it prevents heatstroke, chills, wind and damagers.
               It gives wisdom to the foolish, it helps him (be
               settled in Beis Din, which helps him) to win his
               case, to learn and to teach Torah. People heed his
               words, he remembers his learning, he does not sweat
               too much, he desires only his own wife, and it kills
               intestinal worms;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Some say, it even dispels envy and promotes love.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (Rabah):</font></b> People say 'sixty runners cannot
               catch one who ate Pas Shacharis.' Chachamim say 'eat
               early in summer due to the heat, and in winter due
               to the cold. What is the source of these?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #1 (Rava bar Mari):</font></b> 'They will not be hungry
               or thirsty, heat and sun will not strike them
               (because they already ate).'
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2 (Rabah):</font></b> 'You will serve Hash-m' refers to
               Kri'as Shema and Tefilas Shacharis. 'And He will
               bless your bread and water' refers to bread with
               salt and a flask of water. After this 'I will remove
               sickness from your midst.'
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Shabbos 10a (Beraisa):</font></b> Ludim (cannibals) eat in the
               first hour of the day... most people eat in the
               fourth, workers eat in the fifth, and Chachamim eat
               in the sixth. After this, it is like throwing a rock
               into a pouch with little wine.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Abaye):</font></b> This is only if he did not taste anything
               all morning. If he ate even a bit, there is no
               problem.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Sukah 26a (Mishnah):</font></b> One may eat Arai (casually)
               outside a Sukah.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rav Yosef):</font></b> This is the volume of two or three
               eggs.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Objection (Abaye):</font></b> Sometimes this is enough for him,
               and it is a fixed meal! Rather, it is the amount
               that a Talmid eats before going to learn.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rosh (Berachos 6:29):</font></b> Ha'Motzi exempts drinks, since
               they come only due to the bread, even if they do not
               nourish. Even water comes due to the meal, like we
               say 'Pas Shacharis and a flask of water overcome the
               83 illnesses.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rashi (107b DH v'Kiton):</font></b> The water is for one who
               has no wine.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Tosfos (Berachos 37b DH Omar):</font></b> R. David of Mitz used
               to soak break in water until it lost the form of
               bread so he could eat to have strength to teach,
               without need to delay for Birkas ha'Mazon.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kaf ha'Chayim (OC 152:24):</font></b> This implies that
                    even so, it is called Pas Shacharis.
<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 155:2):</font></b> Before going to learn,
               one may eat bread in the morning, if he normally
               does so. It is good to do so regularly.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tur:</font></b> We say 'like a Talmid eats before going to
                    learn.'
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bi'ur Halachah (DH Yuchal):</font></b> The Tur connotes
                    that he should eat only a little.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Bach (2, citing Mordechai ha'Aruch):</font></b> We and our
               Rebbeyim are not accustomed to eat Pas Shacharis. We
               heard that the grain must come far from
               civilization, and never heard roosters or people
               pulling boats. One who regularly eats it must do so
               every day. Chachamim refrain, for one cannot fulfill
               it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (1):</font></b> If one is not concerned for this
                    opinion and fulfills Pas Shacharis simply, he
                    does not lose at all.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magen Avraham (3):</font></b> The Gemara is unlike the
                    Mordechai. Perhaps it is a mistake based on
                    Shabbos 66b, which says that Pu'ah (a certain
                    plant) helps for a certain sickness and
                    witchcraft, but not if it was exposed to the
                    sun, moon, or rain, or the sound of iron,
                    roosters or footsteps. Rav Nachman bar Yitzchak
                    said that this renders <i>Pusa</i> (i.e. Pu'ah)
                    futile. This was mistakenly understood to refer
                    to Pas Shacharis!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Eliyahu Rabah:</font></b> Also exposure to the sun, moon,
                    or rain ruins Pu'ah! Also, grain cannot grow
                    without them! That Gemara cannot discuss Pas
                    Shacharis. If anything, perhaps his source is
                    Berachos 56a (which says 'like people say, 'the
                    bread fell in the well and can't be found.''
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Chacham Tzvi (15):</font></b> We do not heed the
                    Mordechai, for all Poskim and many Gemaros hold
                    that any bread suffices. Drinking much wine
                    helps an inflated spleen. Rav Acha said that
                    one with much wine will never have the problem!
                    Rather, he should eat Pas Shacharis regularly
                    (Gitin 69b). This shows that Pas Shacharis is
                    easy to obtain!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Kaf ha'Chayim (22):</font></b> Mateh Yehudah (or Mateh
                    Yosef) says that the Gemara, Tur, and Shulchan
                    Aruch connote that we discuss regular bread
                    that removes hunger, unlike Mordechai ha'Aruch.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Sha'ar ha'Tziyon (3):</font></b> Water is for one who does
                    not have other beverages. Rashi connotes like
                    this.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Drishah (2):</font></b> Rashi explains that it gives
                    wisdom to the foolish, for his mind is settled,
                    for he is not afflicted (by hunger). This
                    enables him to grow wise, learn, teach, explain
                    and defend his words.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Mishnah Berurah (11):</font></b> It is a Mitzvah to
                    accustom onself to a good Midah and conduct to
                    guard his health in order that he will be
                    strong to serve the Creator.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Kaf ha'Chayim (23):</font></b> The Gemara discusses bread
                    kneaded without salt. Our bread has salt in it,
                    so eating it without salt is like eating bread
                    with salt. The water should be hot, like
                    nowadays people eat cake with coffee. Divrei
                    Chamudos says that just like one should not eat
                    before praying for his food, he should not eat
                    before learning his fixed quota. We can say
                    that this applies to a fixed meal. It is better
                    to accustom himself to eat a small amount
                    first, so he can learn for a long time. If one
                    cannot have bread, coffee with sugar helps a
                    little.
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Kaf ha'Chayim (24, Mishbetzos Zahav 2):</font></b> The
                    Shi'ur is k'Beitzah. The bread should be from
                    the five grains, for it says 'He will bless
                    your <i>bread</i>.' A cooked dish from the five
                    grains is not Pas.
<br>             <b>  <b><font color='darkgreen'>xi. </font></b><font color='darkgreen'> Eshel Avraham (Butshats):</font></b> Any food helps, not
                    only bread, as long as it satisfies him. Even
                    drinking coffee, milk, honey, sugar or wine
                    helps. Even a judge appointed over the Tzibur
                    may eat or drink in front of people, as long as
                    he does not fix a meal.
<br>             <b>  <b><font color='darkgreen'>xii. </font></b><font color='darkgreen'>Kaf ha'Chayim (25):</font></b> Eating while standing
                    weakens the body. One must be extra careful
                    about this regarding Pas Shacharis.
<br>             <b>  <b><font color='darkgreen'>xiii.</font></b><font color='darkgreen'>Shevet ha'Levi (4:16):</font></b> Undoubtedly, Pas
                    Shacharis is merely a good counsel. It is not a
                    Mitzvah. This is clear from the Shulchan
                    Aruch's words '...if he normally does so. It is
                    good to do so regularly.' The Tur calls it a
                    Mitzvah because it strengthens Avodas Hash-m.
                    The Gemara says that it helps him merit to
                    learn, teach... Surely it is a Mitzvah to bring
                    himself to this, but eating is not a Mitzvah
                    itself. It is like other Mitzvah related
                    conducts. If the Tur meant a real Mitzvah, the
                    Shulchan Aruch would not disagree needlessly!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (157:2):</font></b> When the fourth hour comes,
               one should fix his meal. A Chacham who learns waits
               until the sixth hour, but no longer, for this is
               like throwing a rock into the pouch if he did not
               eat anything in the morning.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magen Avraham (1):</font></b> On Shabbos and Yom Tov some
                    delay past midday, for we calculate six hours
                    (based on 12 daylight hours) from when one
                    rises.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishnah Berurah (2):</font></b> The six hours are from
                    when one rises.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kaf ha'Chayim (2):</font></b> Mateh Yehudah (or Yosef)
                    says that we always count six Zemaniyos hours
                    from dawn.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Mishnah Berurah (4,5):</font></b> Eating after six hours
                    does not help or harm. L'Chatchilah, one should
                    eat in the sixth hour even if he tasted
                    earlier. Chachamim used to eat a little Pas
                    Shacharis, and fix the meal in the sixth hour.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Kaf ha'Chayim (3):</font></b> The Beis Yosef requires
                    eating at the beginning of the sixth hour, but
                    many prove that it is until the end of six
                    hours.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Mishneh Halachos (7:25):</font></b> Pas Shacharis is until
                    the sixth hour. It is a <i>Heter</i> for a Chacham
                    to wait until the sixth hour. Even though one
                    should eat Pas Shacharis due to 'guard your
                    souls', since he normally learns first and does
                    not want to interrupt, Chachamim permit him
                    until midday. Surely, if he rose early and
                    learned his quota earlier, he may eat when most
                    people eat.
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>REWARD FOR WALKING TO THE BEIS HA'KENESES </b></b>(</font><font color='darkblue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> It is a Berachah to have property close to the
          city only if there is a wall so people cannot see in.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Opinion #1 (Rav):</font></b> 'V'Hesir Hash-m Mimecha Kol Choli'
          refers to Ayin ha'Ra'ah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like he said elsewhere. Rav went to a
               graveyard and somehow  learned that 99 of every 100
               died from Ayin ha'Ra'ah, and only one died normally.
               (Rashi - he whispered by the graves; Aruch - he
               asked in a dream, or planted trees and imposed an
               oath on them; R. Peretz - he just said this. He did
               not do any action to learn this.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Opinion #2 (Shmuel):</font></b> 'Kol Choli' refers to wind.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like Shmuel holds, that that all sickness
               and death is due to wind.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> The kingdom beheads people. They do not
               die due to wind!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> If not for wind, a potion could be used to
               reconnect their heads and heal them.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Opinion #3 (R. Chanina):</font></b> 'Kol Choli' refers to the cold.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chanina):</font></b> 'Tzinim Pachim... Shomer Nafsho
               Yirchak Mehem' - whatever befalls one is decreed by
               Heaven, except for chills and fevers (they are due
               to lack of caution).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Opinion #4 (R. Yosi b'Rebbi Chanina):</font></b> 'Kol Choli' refers
          to mucus and earwax;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A small amount of them is good. A large amount is
               harmful.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Opinion #5 (R. Elazar):</font></b> 'Kol Choli' refers to Marah
          (bile).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> 'Machalah' refers to Marah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It is called Machalah because it sickens the whole
               body.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Also, it is called Machalah because it causes 83
               sicknesses (the numerical value of Machalah);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Eating bread in the morning with salt and
                    drinking water prevents all 83.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> There are 13 benefits of eating bread in the
          morning: it prevents heatstroke, chills, wind and
          damagers. It gives wisdom to the foolish, it helps him
          (be settled in Beis Din, which helps him) to win his
          case, to learn and to teach Torah. People heed his words,
          he remembers his learning, he does not sweat too much, he
          desires only his own wife, and it kills intestinal worms;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Some say, it even dispels envy and promotes love.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Rabah):</font></b> People say 'sixty runners cannot catch
          one who ate bread in the morning.' Chachamim say 'eat
          early in summer due to the heat, and in winter due to the
          cold,. What is the source of these?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1 (Rava bar Mari):</font></b> 'They will not be hungry or
          thirsty, heat and sun will not strike them (because they
          already ate).'
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2 (Rabah):</font></b> 'You will serve Hash-m' refers to
          saying 'Shema Yisrael' and prayer in the morning. 'And He
          will bless your bread and water' refers to (eating) bread
          with salt and a flask of water. After this 'I will remove
          sickness from your midst.'
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WATERFRONT PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Rav Yehudah (to Rav Ada the land measurer):</font></b> Be very
          careful when measuring land. Every tiny piece is fitting
          for saffron;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #1 (Rashi):</font></b> People leave four Amos fallow near an
          irrigation channel . Don't worry if you mark off less
          than four.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #2 (Tosfos):</font></b> People leave four Amos fallow near
          an irrigation channel. Give them generously (so people
          can stand comfortably while drawing water). (end of
          Version #2)
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	People leave four Amos fallow near the river. Don't even
          measure it. Rather, give a generous estimation. (Tosfos -
          if it is too narrow, people pulling ships may fall in!)
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	This is like Rav Yehudah taught elsewhere.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> The four Amos near an irrigation
               channel belong to the people who use it; (Rashi - if
               they get too little, they can forgive this.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The four Amos near the river belong to everyone.
               (Rashi - if they get too little, it is unfeasible to
               get their forgiveness!)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(R. Ami):</font></b> If trees or a forest grow near the river bank,
          one may cut whatever interferes with people pulling the
          ship, on both banks.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Rav Noson bar Hoshiya cut 16 Amos. The owners beat him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Noson reasoned that the width allotted should be
               like a public road.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is wrong. There, 16 Amos are needed. Here, we
               give only what is needed for people pulling a ship.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Rabah bar Rav Huna had a forest on the riverbank. People
          asked him to cut his trees. He said 'after the owners
          upstream and downstream cut, also I will cut.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Reish Lakish taught 'Hiskosheshu va'Koshu' -
          first correct yourself before correcting others!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> The case was, the owner upstream and downstream
          was a Nochri officer. Surely, he would not agree to cut;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since he would not cut, people pulling the ships
               would have to be on the other bank in any case.
               Surely, they would not cross to Rabah's side when
               they came to his forest.
<br>

<p>

sjt:
</p><p>
<font><b>3) AGADAH: PROTECTION FROM 'AYIN HA'RA'</b></font><b>
<br></b>The Amora'im give different opinions as to what illness is alluded to in the verse, 'Hash-m will remove from you all illness' (Devarim 7:15). Rav says that it refers to Ayin ha'Ra.
</p><p>
When the Jewish people are counted, a direct census is not taken. Rather, each person gives a Machtzis ha'Shekel and the coins are counted so that no Ayin ha'Ra should affect the people.
</p><p>
The <b>MALBIM</b> in <b>ERETZ CHEMDAH</b> (Parshas Ki Sisa) writes that this might be why the Shekalim are collected in Adar (as the Mishnah in the beginning of Shekalim teaches). <b>RASHI</b> (106b) mentions that the Mazal of the month of Adar is 'Dagim.' The Gemara teaches that Dagim, fish, are not affected by the Ayin ha'Ra because the water covers them. Hence, the month of Adar, the Mazal of which is Dagim, has a degree of protection from the Ayin ha'Ra. This is why the Shekalim are given in Adar. Both the use of Shekalim instead of a count of the people themselves, and the choice of Adar as the month in which the Shekalim are given, ensure that the Jewish people will not be affected by Ayin ha'Ra.
</p><p>


<font><b>4) PROTECTION FROM THE COLD</b></font><b>
<br>QUESTION:</b> The Amora'im give different opinions as to what illness is alluded to in the verse, 'Hash-m will remove from you all illness' (Devarim 7:15). Rebbi Chanina says that it refers to the cold, in accordance with what he teaches elsewhere, 'Everything is decreed by Heaven except for 'Tzinim Pachim'.'
</p><p>
<b>TOSFOS</b> in Kesuvos (30a) and in Bava Basra (144b) asks that if the cold is not decreed in Heaven, but rather it is within the ability of man to protect himself, then why does the verse say that Hash-m will bless a person by removing the cold?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> in Kesuvos answers that when Rebbi Chanina says that everything is decreed by Heaven except for 'Tzinim Pachim,' he means that <i>when</i> there is cold in the world (as a result of Hashem's decree, of course), then one's protection from it is not decreed by Hash-m but rather is in one's own hands. The verse that says that Hash-m will bless a person by removing the cold means that Hash-m will make the world warm, or He will provide the person with warm clothing. The person himself, however, must choose to protect himself from the cold.
</p><p>
(b) <b>TOSFOS</b> in Bava Basra answers that the verse means that Hash-m will give the person the intellectual capacity, as well as the wherewithal, to discern how to protect himself from the cold.
</p><p>
(c) The <b>TORAS CHAIM</b> answers that it within man's ability to protect himself from the cold. If, however, he does not protect himself from the cold and as a result he becomes sick, then a man cannot heal himself. In this verse, Hash-m gives man a blessing that He will remove the sickness that results from the cold.
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>COMPENSATION FOR WHAT A DEVELOPER LEAVES BEHIND</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven rented a field for a small period of
          time, he may not plant flax, and he may not cut branches
          of sycamore trees;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he rented it for seven years, he may plant flax
               and cut branches of sycamore trees the first year
               (since the loss will not be felt in the land and the
               tree when the land goes back).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Abaye):</font></b> He may not cut branches of sycamore
          trees, but he is compensated for their increased value
          (when he leaves).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> He is not even compensated for their increased
          value.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven rented a field, when it is
          time for him to leave, we estimate for him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> We estimate the increased value of the
               sycamore trees!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> No, we estimate the value of the vegetables and
          beets.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why estimate them? He may uproot them and take
          them!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> They will not last until the market day (when one
          gets the proper price for them).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven rented a field and Shemitah
          came, we estimate for him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Objection:</font></b> Shemitah does not force him to leave the
               land!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Correction (Beraisa):</font></b> Rather, if Yovel came, we estimate
          for him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Objection:</font></b> Yovel does not apply to rental. The Torah
               only forbids (and reverts) a permanent sale -
               'li'Tzmisus'
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Correction (Beraisa):</font></b> Rather, if Reuven bought a field
          and Yovel came, we estimate for him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps here also, we estimate the value
               of the vegetables and beets!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> In Yovel, vegetables and beets (and all
               Peros) are Hefker!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rather, we estimate the increased value of the
               sycamore trees!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Abaye on behalf of Rava):</font></b> Yovel is different, for
          the Torah said 'v'Yotza Mimkar Bayis' - the sale goes
          back, but the improvements do not go back.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> We should learn from Yovel to a renter!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> When one buys land, even though it goes back in
          Yovel, he is not like a renter . He is a full buyer, just
          Hash-m uproots his ownership in Yovel (and returns it to
          the seller).
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	Rav Papa rented a land to plant fodder; trees sprouted on
          it. When he left, he asked for the increased value.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Shisha brei d'Rav Idi:</font></b> If one rents a date tree
               to eat its fruit, and it got thicker, does he get
               the improvement?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Papa:</font></b> That is different. There, he did not rent
               it for the wood. I rented the field for whatever
               will grow.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Rav Papa holds like Abaye.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> He can hold like Rava. Rava said that he
               gets no improvements only when he did not lose.
               Here, Rav Papa lost.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> His loss was a small area in which he
               could have grown fodder . That is all he is entitled
               to!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> No, he could have grown saffron (which is
               very dear).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> You admit that you did not intend for
               lasting improvements, therefore you are only
               entitled to the value of wood (not the value of
               growing trees).
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	Rav Bibi bar Abaye rented a field; he raised the borders,
          and sorb trees sprouted in it. When he left, he asked for
          the improvements.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Rav Papi:</font></b> No. Even Rav Papa only demanded improvements
          because he suffered a loss. You suffered no loss from
          these!
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN A SHARECROPPER LEAVES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Rav Yosef had a permanent planter (a sharecropper who did
          all the work in the field, starting with plating). He
          died, leaving five sons-in-law. Rav Yosef did not want
          them to continue for their father-in-law, lest each rely
          on the others, and the field would not be properly cared
          for.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> I offer you the improvements on the
               field. If you refuse, you will get (letter of the
               law, i.e.) nothing.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Yehudah):</font></b> If a planter dies, the owner may
                    expel his heirs without giving the
                    improvements.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection:</font></b> This is wrong. (They are entitled to
                    improvements.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If a planter said 'if I cause a loss, I
          will leave' and he caused a loss, he does not get the
          improvements;
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Kahana):</font></b> He gets the improvements.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Rav Kahana admits that if he said 'if I cause a loss, I
          will leave without improvements', he gets no
          improvements.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rava):</font></b> This is Asmachta (an exaggerated promise). It is
          not binding. (He gets the improvements.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If he said 'if I will leave it fallow
          and not work it, I will pay what it would have produced'
          (this is binding).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> There, he pays for the loss he caused;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here also, we deduct the loss he caused, and he gets
               the balance of the improvements.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Runya was Ravina's planter. He caused a loss, and Ravina
          fired him. Runya complained to Rava, who defended Ravina.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Runya:</font></b> He did not warn me (that he would fire me if
               I cause a loss)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rava:</font></b> He need not warn you!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rava):</font></b> The following may be fired (for
                    negligence) without warning: one who teaches
                    children, a planter, a slaughterer, a
                    bloodletter, and the town scribe (Rashi - to
                    write Sifrei Torah; Tosfos - to write
                    documents);
<br>
<br>

sjt:
<font><b>1) THE NATURE OF AN ACQUISITION OF LAND DURING THE TIME WHEN 'YOVEL' IS IN EFFECT</b></font><b>
<br>QUESTION:</b> The Gemara cites a Beraisa which teaches that when the Yovel year arrives, any field that was purchased must be returned to its original owner, but the purchaser is not required to 'return' the improvements that he made to the field (and thus when he returns the field, the original owner must pay him for the improvements). The Gemara attempts to derive from this law that when a sharecropper ('Mekabel') finishes his work, the owner of the land is similarly obligated to pay him for any improvements that he made to the land. The Gemara rejects the proof and explains that there is a basic difference between a buyer who must return a field when Yovel arrives, and a sharecropper (renter) who must return a field when the term of the rental ends. The buyer's purchase of the land is a valid, permanent sale, which gives him full ownership of the field. He must return the field only because Hash-m decreed that the Yovel annuls the sale and the field returns to its original owner. In the case of a rental, though, the field never leaves the possession of the original owner, and therefore the sharecropper is not entitled to receive payment for the improvements to the field.
</p><p>
(The <b>MINCHAS CHINUCH</b> (339:10) deduces from this Gemara that, at Yovel, the original owner does not need to make a new Kinyan to acquire the field, because Hash-m decreed that it should be returned to him and that the Kinyan of the buyer should be annulled.)
</p><p>
The Gemara here clearly indicates that the Kinyan of the buyer is a valid and complete Kinyan, and the Yovel is a special decree that returns the land to its original owner. This seems to contradict the Gemara in Gitin (48a). The Gemara there says that when one buys a field (when Yovel is in effect), his purchase is not a full purchase of the field, but rather it is a 'Kinyan Peros' -- he acquires the field only with regard to the fruit that it produces, but the original owner still owns the 'Guf' of the field. The Gemara there discusses whether a Kinyan Peros is considered a Kinyan ha'Guf or not. According to all opinions in the Gemara there, one who buys a field (when Yovel is in effect) acquires only the Kinyan Peros. The Gemara here, however, implies that the buyer has a complete Kinyan, and Yovel annuls the Kinyan and returns the field to the original owner.
</p><p>
<b>ANSWER:</b> The <b>SHO'EL U'MESHIV</b> (of <b>RAV YOSEF SHAUL NATANSOHN</b>, 4:3:58) answers that although the buyer has a full-fledged Kinyan, nevertheless the buyer's Kinyan is considered a Kinyan Peros because the Torah decrees that the field will be returned to the seller without a need for a new Kinyan. This means as follows. The Gemara in Gitin says that before the first Yovel year in history, people sold their lands with the absolute intention that the sale would be permanently binding. The first Yovel year activated the decree of the Torah that annulled the buyers' Kinyanim and returned the lands to their original owners. After the first Yovel, people knew that Yovel would return the fields to their owners and they therefore began to buy fields with the knowledge that the sale would last only until Yovel. Hence, their 'Da'as' makes the Kinyan into a Kinyan Peros. (Y. Marcus)
</p><p>


<font><b>2) MAY A MOHEL RECEIVE PAYMENT FOR HIS SERVICES</b></font><b>
<br>OPINIONS:</b> Rava rules that a teacher of young children, a professional field-planter, a butcher, an 'Uman,' and a 'Safar Masa' (see following Insight) are all considered to be forewarned with regard to the proper execution of their tasks, since any mistake that they make will cause an irreversible loss. Consequently, if they err, they lose their positions without further warning.
</p><p>
When Rava mentions an 'Uman,' to what profession does he refer?
</p><p>
(a) <b>RASHI</b> interprets the word 'Uman' as a reference to a Mohel. Rashi thus implies that a Mohel is permitted to receive payment for his services. This is because the law that Rava teaches here is relevant to financial matters; Rava teaches that these workers are removed from their positions and do not receive their outstanding pay. It is therefore clear that these positions are paid positions, because, otherwise, it would make no difference to the workers if they lose their work. Accordingly, it seems from the Gemara that the position of Mohel is a paid position.
</p><p>
(b) The <b>YA'AVETZ</b> does not agree with the apparent position of Rashi. He maintains that one is <i>not</i> permitted to receive payment for performing Milah. The <b>RASHBA</b> (in Teshuvos 1:475) writes that a Mohel who receives payment 'is not acting in accordance with the proper conduct expected from a descendant of Avraham Avinu.' He writes that it has always been understood, throughout the generations, that the father of a baby does the Mohel the greatest kindness by allowing him to perform the Milah. The Rashba concludes that Beis Din should admonish a Mohel who takes payment.
</p><p>
The <b>YA'AVETZ</b> therefore suggests that when Rava mentions an 'Uman,' he refers not to a Mohel but to a blood-letter ('Meikiz Dam'), as the term 'Uman' refers to a blood-letter in a number of places throughout the Gemara.
</p><p>
The <b>TOSFOS HA'ROSH</b> also says that 'Uman' refers to a blood-letter, as Rashi himself explains the word earlier (97a). (The <b>HAGAHOS HA'GRA</b> to Shulchan Aruch CM 306:21 says that both explanations of 'Uman' here are true, since errors in both professions involve losses that cannot be corrected.) (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WORKERS WHO CAN BE FIRED WITHOUT WARNING</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Runya was Ravina's planter. He caused a loss, and
               Ravina fired him. Runya complained to Rava, who
               defended Ravina.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Runya:</font></b> He did not warn me (that he would fire me if
               I cause a loss)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rava:</font></b> He need not warn you!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rava):</font></b> The following may be fired (for
                    negligence) without warning: one who teaches
                    children, a planter, a Tovach (slaughterer), a
                    bloodletter, and the town scribe.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> The general rule is, in any trade in which a
                    mistake cannot be corrected, it is as if the
                    worker was warned.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Bava Basra 21a (Rava):</font></b> If there are two teachers,
               and one learns more but the other teaches more
               precisely, we prefer the former. If he makes any
               mistakes, the children will later learn the correct
               version.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav Dimi of Neharde'a):</font></b> No, we take the latter.
               Once a child learned incorrectly, the mistake will
               stick with him.
<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 Basra 10b):</font></b> A teacher she'Posha (was
               negligent) with the children is like one who was
               warned.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (Bava Metzia 66a DH Peseida):</font></b> The
                    teacher taught incorrectly, hit the children
                    too much, or neglected to teach them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 10:7):</font></b> The following may be
               fired without warning: one who plants for the city
               and caused a loss...
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad:</font></b> The same applies to one who plants for
                    an individual.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> The Rambam learns from Runya,
                    who was Ravina's planter. Rava ruled that
                    Ravina was allowed to fire him without warning.
                    Perhaps the Rambam holds that Runya planted for
                    the Rabim, including Ravina. The last
                    profession that Rava listed was 'Sofer Masya.'
                    The word 'Masya' (of the city)' applies to all
                    the professions listed.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Bach (CM 306:12):</font></b> All the others listed are
                    people whom the Tzibur appointed over them, so
                    presumably a planter is the same. The Gemara
                    says that he was Ravina's planter because he
                    was the head of the city, and they did not do
                    anything without his consent. Ravina hired
                    Runya.for the entire city. We require a
                    Chazakah to fire someone, so we must say that
                    he caused a loss to two or three people,
                    according to Rebbi and R. Shimon ben Gamliel
                    (who argue about whether two or three times are
                    needed to make a Chazakah).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (ibid):</font></b> ...A city Tovach who did invalid
               Shechitah, a bloodletter who wounded...
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rashba (citing the Ra'avad, brought in Magid
                    Mishneh):</font></b> If the Tovach is paid, what loss
                    results from his mistake? He must pay for the
                    loss! If he works for free, he does not lose if
                    he is fired! We must say that even if he works
                    for free, we fine him, and he may not slaughter
                    for free or for pay. Alternatively, he was
                    paid, and caused a great loss. Even though he
                    pays for the animal, he does not pay for the
                    owner's embarrassment (the host has no meat to
                    serve to his guests) or the guests'
                    embarrassment. Also, sometimes much meat is
                    needed, and he is the only Tovach. Even though
                    they need not be warned, they need Chazakah (to
                    cause a loss). We do not remove them until
                    there is a Chazakah or they are warned.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> Another answer is suggested from Rivash
                    (113). If there is a Safek whether or not a
                    Tovach slaughtered properly, the meat is
                    forbidden but we cannot force him to pay. The
                    Lechem Mishneh questioned his reasoning, for he
                    understood that the the animal was Safek
                    Tereifah even before he slaughtered it, so
                    surely the Tovach is exempt!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Ha'Emek She'elah (92:1):</font></b> The Ra'avad holds that
                    we discuss one who works for an individual,
                    therefore, if he caused a loss once, he can say
                    that he erred or was Shogeg. He is fired only
                    after he was established to err. If not, no one
                    can keep a job! The She'altos, Bahag, Rif,
                    Rambam hold that we discuss only one who works
                    for the city. 'Musrin v'Omdim' means that he is
                    warned at every moment; he cannot say that he
                    erred. Perhaps the Rambam and Ra'avad agree
                    about the Halachah follows. They argue only
                    about what Rava discusses.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> SMA (CM 306:20):</font></b> The answer for a Tovach does
                    not apply to a planter! Perhaps we can say that
                    he harmed the tree he planted, and had he
                    planted properly, it would have already
                    produced Peros. We cannot obligate him for
                    these Peros, for we do not know how much it
                    would have produced.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (ibid):</font></b> ... a scribe who erred in documents,
               and a teacher she'Posha with the children and did
               not teach or taught incorrectly. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rif explains that the
                    teacher neglected to teach the children. Rashi
                    says that he taught to them incorrectly. The
                    Rambam brings both Perushim. Meforshim explain
                    that Rashi discusses a teacher who himself
                    errs, but if he knows, just he did not
                    supervise a child who said wrong, we do not
                    fire him.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Tosfos (109b DH v'Sofer):</font></b> Rashi's Perush is
                    wrong, for Rava (Bava Basra 21a) says that the
                    children will later learn the correct version.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> Rashi must hold that Rav Dimi's opinion
                    was taught last because the Halachah follows
                    him. Presumably, Tosfos rules like Rava because
                    he was greater, or because he himself taught
                    the prfoessions that can be fired without
                    warning.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Ohel Moshe (Bava Basra 21b):</font></b> Tosfos agrees that
                    we fire a teacher if he himself errs. He argues
                    with Rashi about a teacher who knows, but does
                    not supervise to see that the child erred, like
                    Yo'av's teacher (Bava Basra 21a).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (ibid):</font></b> The same applies to any profession in
               which the loss cannot be returned. It is as if they
               were warned to strive to work (properly), since the
               Tzibur appointed them.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rosh (9:38):</font></b> Runya complained (only) about being
               fired, for he received the improvements he made to
               the field.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (CM 306 DH u'Mah she'Chosav
                    Rabeinu):</font></b> The Tur learned from here that one
                    pays the improvements that the worker made.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos Ashri:</font></b> A children's teacher is
                    considered a mistake that cannot be corrected,
                    for while he was teaching incorrectly, he could
                    have taught something else. This implies that
                    all the more so, if he was idle at the time
                    (when he should have been teaching) for a day
                    or two, the teacher can be fired without
                    warning. Rebbi once did so.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Tosfos (Bava Basra 21b DH Sofer):</font></b> Rashi explains
               that a Sefer Torah written incorrectly cannot be
               corrected. This is wrong! Rather, Sofer refers to
               one who writes documents.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 306:8):</font></b> The following may be
               fired without warning: one who plants for the city
               and caused a loss...
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that the same applies to one who
               plants for an individual.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (19):</font></b> They argue about all of the
                    professions.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> ... A city slaughterer who
               did invalid Shechitah, a bloodletter who wounded...
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (21):</font></b> This is like the Rambam, Tur and
                    Rashi in Bava Basra. Rashi in Bava Metzia says
                    that 'Uman' refers to a Mohel. Both of these
                    Perushim are true.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> ... A scribe who erred in
               documents, and a teacher of children who was
               negligent and did not teach (Rema - even one or two
               days) or taught incorrectly.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Shasal):</font></b> Teaching incorrectly is
                    irreversible, for once the mistaken entered the
                    Talmid's head, it will stay.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (21):</font></b> It suffices to say that he did not
                    teach for one day! Perhaps he adopts the text
                    of Shemos 21:21 to allude to a 24-hour period.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> The same applies to any
               profession in which the loss cannot be returned. It
               is as if they were warned to strive to work
               (properly), since the Tzibur appointed them.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that even though they need not be
               warned, they need Chazakah. We do not remove them
               until there is a Chazakah or they are warned.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Al):</font></b> The Nimukei Yosef (66a DH
                    v'Tavcha) says that we do not remove them until
                    they are Muchzakim three times, or are warned.
<br>

<p>


lvr: 42
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> The general rule is, in any trade in which a
                    mistake cannot be corrected, it is as if the
                    worker was warned.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CHANGES OF CONTRACT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	A planter asked for the improvements (after he planted),
          because he wanted to go to Eretz Yisrael. Rav Papa bar
          Shmuel ruled that the owner must give them to him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rava:</font></b> The land also caused the increased value!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Papa bar Shmuel:</font></b> Indeed, I meant that he shares
               the improvements.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rava:</font></b> The agreement was that the owner gets half. He
               will now need to hire a sharecropper (to finish the
               work for a planted field)!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Papa bar Shmuel:</font></b> Indeed, I meant that he gets a
               quarter of the improvements.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rav Ashi:</font></b> Rav Papa meant a quarter of the owner's share,
          i.e. a sixth. (The owner will get two thirds, and the
          sharecropper who will finish gets a third.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Minyomi brei d'Rav Nechumi):</font></b> In a place where a
               planter gets half the crop and a sharecropper (who
               works a planted field) gets a third, a planter who
               leaves after planting gets a share of the
               improvements (i.e. a sixth), in order that the owner
               does not lose. (After the owner pays a sixth, he
               will be left with half, like he normally received.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the planter would get a quarter of the Peros, the
               owner would lose!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Acha brei d'Rav Yosef):</font></b> Why can't the
          planter say 'give (a quarter) from your (three quarters)
          share to hire a sharecropper to finish working your
          share, and I will do with my share (a quarter) as I
          want'?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #1 (Rashi) Retraction (Rav Ashi):</font></b> Indeed, he can
          say so. (Rav Papa meant that he gets a quarter of the
          Peros.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #2 (R. Chananel) Answer (Rav Ashi):</font></b> He cannot say
          this because one cannot find a sharecropper for less than
          a third. (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Minyomi brei d'Rav Nechumi):</font></b> In a place where a
          planter gets half the crop and a sharecropper gets a
          third, a planter who leaves after planting gets a share
          of the improvements in order that the owner does not
          lose.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #1 - Rashi - (Rav Minyomi brei d'Rav Nechumi):</font></b> A
          planter gets half of an old vine (just like he gets half
          the Peros), for this is normal. If a river flooded the
          field (and the trees will not produce fruits for a long
          time), the planter gets half the wood (like the law of a
          planter who leaves early).
<br>
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Version #2 - R. Chananel - (Rav Minyomi brei d'Rav
          Nechumi):</font></b> If a planter uproots old vines and plants new
          ones, he gets half the Peros (for this is much work). If
          a river flooded the field (and uprooted the trees) and he
          plants new ones, he gets a quarter of the Peros.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	A case occurred in which Reuven gave his orchard as
          collateral for a loan for ten years (they deducted its
          rental value for each year from the loan). After five
          years, the trees stopped producing, for they were old.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Abaye:</font></b> The wood is considered like Peros. The lender
               gets it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rava:</font></b> The wood is considered like principal. They
               buy land with it, and the lender eats the Peros (for
               the remaining five years, after which Reuven keeps
               it).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> (In Mashkanta of Sura, after a
          certain time, the tree goes back for free.) If the tree
          dried (and no longer gives fruit) or was cut, neither the
          lender or borrower may use it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They should sell it and buy land. The lender eats
               the Peros.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> In Yovel, the land will revert to the one who sold
               it. The principal is consumed!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> The case when it dries is like when it
               is cut. Just like (presumably) it was cut in the
               proper time (when it ceased to bear fruit), also it
               dried in the proper (i.e. expected) time, and it
               says that they buy land with it and the lender eats
               the Peros!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> This shows that the wood is principal!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> No. The case when it is cut is like when it
          dries. Just like 'dried' connotes before the proper time
          (it does not say 'it grew old'), also it was cut before
          the proper time.
<br>

<p>

sjt:
</p><p>
<font><b>3) A 'SAFAR MASA'</b></font><b>
<br>OPINIONS:</b> Rava rules that a teacher of young children, a professional field-planter, a butcher, an 'Uman' (see previous Insight), and a 'Safar Masa' are all considered to be forewarned with regard to the proper execution of their tasks, since any mistake that they make will cause an irreversible loss. Consequently, if they err, they lose their positions without further warning.
</p><p>
When Rava mentions a 'Safar Masa,' to what profession does he refer?
</p><p>
(a) <b>RASHI</b> earlier (97a) explains the term 'Safar Masa' as a reference to the town barber. This is also one of the explanations of <b>RABEINU YEHONASAN</b> (cited by the Shitah Mekubetzes here), who explains that when a barber errs, although his victim's hair will eventually grow back, the customer nevertheless experiences intense embarrassment when too much hair was removed, and that constitutes an irreversible loss.
</p><p>
(b) <b>RASHI</b> in Bava Basra (21b) explains that a 'Safar Masa' is a scribe, Sofer, who writes Sifrei Torah.
</p><p>
<b>TOSFOS</b> there asks, why is a Sofer's error considered an irrevocable loss? After all, if a Sofer makes a mistake in a letter in a Sefer Torah, it can be corrected with ease.
</p><p>
Tosfos there answers that when a Sofer makes a mistake in writing the Name of Hash-m, the mistake cannot be corrected. When the Gemara says that a Sofer's mistake causes an irrevocable loss, it refers to such a mistake.
</p><p>
The <b>RAN</b> and other Rishonim answer that the Gemara refers to a Sofer who makes five mistakes on a single parchment of a Sefer Torah. The Gemara in Menachos (29b) teaches that a parchment with five mistakes must be buried and cannot be used.
</p><p>
The <b>MELO HA'RO'IM</b> in Bava Basra answers that the Gemara refers to a Sofer who writes Tefilin and Mezuzos. Since the text inside of Tefilin and Mezuzos must be written in order, if he makes a mistake he cannot correct it and he must start anew.
</p><p>
The <b>PNEI SHLOMO</b> cited by the <b>DEVAR YAKOV</b> answers that the irreversible loss that results from the Sofer's mistake is that the Tzibur unknowingly reads from a Sefer Torah that is not valid.
</p><p>
(c) <b>TOSFOS</b> in Bava Basra (21a) and the <b>ME'IRI</b> explain a 'Safar Masa' as a scribe who writes legal documents.
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ARE OLD TREES CONSIDERED PRINCIPAL?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If a married woman inherited old
          vines or date trees, we sell the wood to buy land and her
          husband eats the Peros.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The Mishnah says that 'they grew old'.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2:</font></b> We established the Mishnah (in Kesuvos) to be
          when she inherited trees in another's field. (Since she
          has nothing after they are cut, Abaye agrees that they
          are considered principal.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>AMBIGUOUS DOCUMENTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	A document (of Mashkanta) said 'years' without specifying
          how many. Reuven (the lender) says that it was for three
          years, and Shimon (the borrower) says that it was for
          two.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If Reuven already ate the Peros for three
          years, he must pay for the last year. When in doubt, we
          establish land to belong to the original owner (Shimon);
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Kahana):</font></b> Our question is about the Peros, which are
          with Reuven. The Chazakah favors him, he need not pay.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	The Halachah follows Rav Kahana.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> The Halachah follows Rav Nachman (in monetary
          laws), who says that when in doubt, we apply Chazakah to
          the land and say that it belongs to the original owner!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> That is when the doubt will never be resolved
          (e.g. two expressions contradict each other, and we do
          not know which to follow);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, witnesses might come and testify how many
               years it was for. Beis Din does not force someone to
               pay if we anticipate that future testimony might
               force Beis Din to retract its ruling.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If Reuven says that it was for five years
          (and he lost the document), and Shimon says it was for
          three, Reuven is believed, Migo (since) he could have
          said that he bought it (i.e. if he wanted to lie, he had
          a better lie to say).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rav Papa:</font></b> Rav Zvid and Rav Avira argue with Rav Yehudah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A buyer is careful with his document only for three
               years, but a lender is careful as long as he is
               entitled to eat the Peros. (We assume that he did
               not lose it, rather, he is hiding it in order to eat
               extra Peros.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question ((Rashi - against Rav Yehudah; Rashba - also
          against Rav Zvid and Rav Avira) - Ravina):</font></b> If so,
          Mashkanta of Sura, in which they write 'after such and
          such years, the land reverts to the owner for free', the
          lender should be believed to say that he bought it!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim would not enact something that enables the
               lender to steal!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> Chachamim enacted that the borrower
          pays the taxes and fix the trench around the field (so
          all will know that he did not sell it).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> If the land has no taxes or trenches, what will
          be?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> He must protest (tell people) that the land was
          not sold, it is being eaten for Mashkanta. (This
          obligates one who claims that he bought the land to guard
          the document.)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> If he did not protest, what will be?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> He caused his own loss through his negligence.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If Reuven (a sharecropper) claims that
          Shimon hired him on condition to receive half the Peros,
          and Shimon says that he promised to give a third, Shimon
          is believed;
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> We follow the local custom.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Rav Yehudah can agree with Rav Nachman. Rav
          Yehudah teaches about a place where the custom is that
          sharecroppers get a third.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Rejection (Rav Mari bra d'bas Shmuel citing Abaye):</font></b> No.
          Even in a place where sharecroppers get half, Shimon is
          believed, Migo he could say that Reuven is not his
          sharecropper, rather, he is only a hired worker.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>COLLECTING FOR IMPROVEMENTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Reuven died, leaving land and a creditor
          (Shimon). His orphans claim that they improved the land
          (and Shimon can only collect from the value of what they
          inherited). Shimon claims that Reuven improved the land.
          Who must bring proof?
<br>
<br>

sjt:
<font><b>1) IMPROVEMENTS MADE TO LAND WHICH IS PLEDGED TO A CREDITOR</b></font><b>
<br>QUESTION:</b> The Gemara discusses a case in which a creditor wants to collect a field from the orphaned heirs of the debtor as repayment for his loan, but improvements ('Shevach') were made to the field which increased its value. The orphans claim that they made the improvements and therefore the creditor is not entitled to collect the value of the improvements. The creditor, who is entitled to confiscate the land itself as repayment for his loan, claims that he is entitled to collect the improvements because their father, the debtor, made the improvements to the land.
</p><p>
The Gemara clearly implies that a creditor is not entitled to collect a debt from improvements made by the orphans themselves after their father's death. This seems to contradict the Gemara in Bechoros (52a) which states that a woman whose husband died may not collect her Mezonos or Kesuvah from improvements made to her husband's land by the orphans, because the Chachamim placed limitations on what she may collect. The Gemara there implies that only a widow, who wants to collect her Kesuvah, may not collect the 'Shevach,' but an ordinary creditor <i>is</i> entitled to collect the 'Shevach' which the orphans made in a field. How can the Sugya here be reconciled with the Gemara in Bechoros?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ROSH</b> (1:39) answers that, in fact, a creditor is not entitled to collect the 'Shevach' which the orphans made, as the Gemara here implies. When the Gemara in Bechoros says that a widow cannot collect her Mezonos or her Kesuvah from the 'Shevach' because the Chachamim limited her rights, it does not mean that any other creditor <i>may</i> collect from the 'Shevach.' Rather, the Gemara there singles out a widow because logic would dictate that a widow would be entitled to collect the 'Shevach' from the orphans even if an ordinary creditor would not be entitled to do so, since one might have thought that the obligation to pay the Mezonos of a widow is a debt which <i>always</i> falls upon the orphans. Therefore, the Gemara must teach that even the Mezonos of a widow may not be collected from the 'Shevach' of the orphans.
</p><p>
(b) <b>TOSFOS</b> earlier (15a, DH Ba'al Chov) disagrees with the Rosh and maintains that a creditor <i>may</i> collect the 'Shevach' from the orphans. Tosfos explains that the Gemara here is discussing a case of an 'Apotiki.' When a creditor collects land of an 'Apotiki' along with improvements made by the orphans, they are entitled to collect from the creditor the expenses that they incurred when they made those improvements. This is because an 'Apotiki' is considered to be completely in the creditor's possession (after the borrower dies or sells it), and the orphans who improved it therefore have the status of a person who improves his friend's field, who is entitled to reimbursement for his expenses. (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MAY WE TAKE THROUGH A MIGO?</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'> 2a (Mishnah):</font></b> If two are holding a garment, and each
               claims 'it is mine', each swears that he does not
               own less than half, and they divide it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven says 'it is all mine' and Shimon says 'it
               is half mine', Reuven swears that he does not own
               less than three quarters, and Shimon swears that he
               does not own less than one quarter. Each gets like
               he swore.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 8a:</font></b> One might have thought that Shimon is like
               Meshiv Aveidah (one who returns a lost object), and
               he is exempt from swearing. The Mishnah teaches
               otherwise. Perhaps he schemes to avoid swearing. He
               knows that if he claims the entire object, he must
               swear, so he claims only half to be like Meshiv
               Aveidah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 110a:</font></b> A document (of Mashkanta) said 'years' without
               specifying how many. Levi (the lender) says that it
               was for three years, and David (the borrower) says
               that it was for two.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> If Levi already ate the Peros for
               three years, he must pay for the last year. When in
               doubt, we establish land to belong to the original
               owner (David);
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rav Kahana):</font></b> Our question is about the Peros, which
               are with Levi. The Chazakah favors him, he need not
               pay.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> (Levi lent to David and took his land
               for Mashkanta.) If Levi says that the Mashkanta was
               for five years (and he lost the document), and David
               says that it was for three, Levi is believed, Migo
               (since) he could have said that he bought it (i.e.
               if he wanted to lie, he had a better lie to say).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rav Papa:</font></b> Rav Zvid and Rav Avira disagree. A buyer
               guards his document only for three years, but a
               lender is careful as long as he may eat the Peros.
               (Surely he did not lose it, rather, he is hiding it
               in order to eat extra Peros.)
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Bava Basra 70b (Beraisa - judges of Bavel):</font></b> If Levi
               brought a Shtar Kis (document of a business venture;
               half is a loan, and half is a deposit) against
               orphans, he swears (that their father never paid)
               and collects it all;
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> Judges of Eretz Yisrael say, he swears and collects
               half.
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> They hold that the father would be believed to say
               that the money was lost through Ones, which would
               exempt him from paying half (the deposit), therefore
               he would also be believed to say 'I returned it.'
               Therefore, we claim on behalf of the orphans, that
               perhaps their father paid half.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif (1a) brings our Mishnah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif and Rosh (66b and 9:40):</font></b> The Halachah follows
               Rav Yehudah; Levi is believed (that the Mashkanta
               was for five years).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 9:8):</font></b> If Reuven says 'it is
               all mine' and Shimon says 'it is half mine', Reuven
               swears that he does not own less than three
               quarters, and Shimon swears that he does not own
               less than one quarter. Each gets like he swore. From
               here we learn to all who swear to receive, with a
               light or severe oath, that they do not swear like
               they claim, rather, like they receive, even if they
               claim more.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rashba says that presumably,
                    if they argue about something that can be
                    divided, Reuven can take half, and afterwards
                    swear that he does not own less than half of
                    what remains in order to receive half of it. If
                    the contested item cannot be divided, Reuven
                    must swear that he does not own less than three
                    quarters.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 7:6):</font></b> If Levi rented a
               field or took it for Mashkanta and ate the Peros for
               three years, and concealed the document and said 'I
               have rights to eat for five years', and the owner
               says that it was for three years, Levi is believed.
               If he wanted, he could say that he bought it, for he
               ate it for three years.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (1:1):</font></b> Letter of the law, Reuven should receive
               half without an oath, and they should divide the
               other half with an oath. However, Beis Din makes him
               swear about three quarters to prevent any Rama'os
               (scheme) he might have in his heart. He cannot say
               'why do you insist that I swear about three
               quarters? I swear according to your Da'as
               (understanding), and you intend that I swear without
               Rama'os!' One fears more when they remind him of the
               oath he transgresses than when he swears Stam
               (without specifying).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Tosfos (2a DH v'Zeh):</font></b> Why isn't Shimon believed that
               half is his, Migo (since) he could have said that
               all of it is his? The Gemara (8a) said that this
               Migo would have exempted him from swearing, if not
               that we are concerned lest he schemes to avoid
               swearing. Rivam answered that we do not say a Migo
               to take from someone. Reuven is as Muchzak in the
               contested half as Shimon is. In Bava Basra 32b,
               Rabah ruled that a man can take through a Migo,
               because he could have been silent (and won his
               case). Rav Yosef holds that he had no Migo, because
               his first claim was false. We apply Migo even to
               keep one's property only when his first claim was
               true.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Ramban (Bava Metzi'a 2a DH vh'Omer):</font></b> If Reuven says
               'it is all mine' and Shimon says 'it is half mine',
               why isn't he believed with a Migo that he could have
               claimed all of it and received half? We say such a
               Migo in Bava Basra 70b! Some learn from here that
               one may not take through a Migo. I say that it is no
               proof, for he is not believed to receive his full
               claim. He admitted that half is not his; it is as if
               Reuven already received that half. We do not say
               that since he could have claimed about another
               garment (the half he conceded) that he should be
               believed to totally take this garment (the half that
               they argue about).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Ramban (Bava Basra 32b DH Amai):</font></b> Some say that one
               may not take through a Migo. However, in Bava
               Metzi'a (110a) when a Mashkanta did not specify the
               number of years, we believe the lender, Migo he
               could say that he bought it (he had already eaten it
               for three years). Rashi explains that the original
               owner was Muchzak regarding all the Sefekos in the
               Gemara there, and even so, the lender takes the
               Peros through Migo.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Rivash (336):</font></b> Even though Chezkas Karka supports
               David, Levi is believed through a Migo to keep what
               he has, and all the more so according to the
               Acharonim who gave clear proofs that we may take
               through a Migo.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 87:12):</font></b> If the borrower says that
               they stipulated that he will be exempt if he
               fulfills a certain Tanai, and the lender agrees but
               says that he did not fulfill it, the lender must
               bring a proof. If he cannot, the borrower swears
               Heses and is exempt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Bach (19 DH v'Kashya):</font></b> A grocer is believed to
                    say that Moshe owed a tab (not a loan), for he
                    could have said that he wrote a Pruzbul and
                    lost it. Sefer ha'Terumos explains that this is
                    because there is a Chazakah that one does not
                    sin if he can achieve his goal without sinning.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Yam Shel Shlomo (Bava Kama 10:30):</font></b> The Tur (CM 357)
               cites the Rambam, who says that Levi (a Nigzal) is
               believed to swear and take from Ploni things that
               are normally lent or rented, even without talk that
               he was robbed. This is wrong. The Rambam relies on
               what he said above, that there was talk that he was
               robbed. He also erred about the Rosh. When Moshe
               says 'I bought them', and Yosef says 'you stole
               them', he is not believed with a Migo that he lent
               or rented them, for we do not establish people to be
               thieves. Here, Levi does not say that Ploni stole
               them. Ploni himself says that he bought them! The
               Rosh holds like those who say that Levi is believed
               due to the Migo, even without talk that he was
               robbed. Even though one may not take through a Migo,
               like Tosfos and most Poskim say, here one may, for
               the Muchzak is unsure. Ploni bought from Almoni. He
               does not know whether Almoni stole it! Also, here it
               is not called taking through a Migo because Levi
               recognizes his Kelim and witnesses recognize them;
               it is as if Levi is Muchzak in them. If Levi would
               say 'I rented to you', and Ploni would say 'I bought
               from you', all say that Levi is believed, except for
               Rashi. All the more so we believe Levi through a
               Migo!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> The lender is not believed with a Migo (that
               he could have denied that there was a Tanai), for we
               do not take money with a Migo. Some disagree and say
               that we take through a Migo.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Darchei Moshe (2):</font></b> The Mordechai (Bava Metzi'a
                    216), Tosfos, Rosh and Nimukei Yosef say that
                    we do not take through a Migo. The Rivash says
                    that the Acharonim proved that we may take
                    through a Migo, and even the opposing opinion
                    uses Migo against Chazakah of land.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (138:2):</font></b> If Reuven says 'it is all
               mine' and Shimon says 'it is half mine', Reuven
               swears that he owns part and does not own less than
               three quarters, and Shimon swears that he owns part
               and does not own less than one quarter. Each gets
               like he swore. From here we learn to all who swear
               to receive, with a light or severe oath, that they
               do not swear like they claim, rather, like they
               receive, even if they claim more.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (8):</font></b> If Reuven would swear 'of the half
                    that Shimon claims to own, I do not own less
                    than a quarter', perhaps Reuven would intend
                    for the half that Shimon concedes.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (9):</font></b> Perhaps Reuven's oath need not include
                    'I own part', for Shimon admits that Reuven 
                    owns half.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema:</font></b> If they argue about something that can be
               divided, Reuven can take half, and afterwards each
               swears that he does not own less than half of what
               remains.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHEN MAY WE TAKE THROUGH A MIGO? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (R. Chanina):</font></b> The land is in the Chazakah of
          the orphans. Shimon must bring proof.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection and Answer #2:</font></b> R. Yochanan said that the
          orphans must bring proof.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is R. Yochanan's reason?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Since Shimon is destined to collect the land, it
          is as if he already collected it (he is Muchzak).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Support (Abaye - Mishnah):</font></b> (A tree within 50 Amos of a
          city may be cut. If it preceded the city, they must
          compensate the owner.) If we are unsure whether the tree
          or city came first, it may be cut without paying the
          owner.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since it may be cut in any case, the owner must
               bring proof to collect;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Here also, in any case Shimon collects the land. We
               are unsure whether Shimon must compensate for the
               improvements, so the orphans must bring proof to
               collect.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	The orphans proved that they improved the land.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(R. Chanina):</font></b> Shimon must let them keep a piece of the
          land worth as much as the improvements.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, he may give them money.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Nachman citing Shmuel):</font></b> In three cases we
               evaluate the improvements and pay it with money: a
               firstborn (if the brothers improved the land
               together, the firstborn gets an extra share of the
               land, but he is not entitled to an extra share of
               the improvements), a creditor or widow (entitled to
               a Kesuvah) collecting from orphans, and a creditor
               collecting from someone who bought the borrower's
               land after the loan.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> Does Shmuel really hold that a buyer
          is compensated for improvements when a creditor takes the
          land?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Shmuel):</font></b> A creditor collects the
               improvements.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps Shmuel says that a buyer is
               compensated for fruit that is almost ready to be
               harvested, but a creditor takes (for free) fruit
               that needs to remain attached for a while.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> Shmuel often authorized a creditor to
               take fruit almost ready to be harvested.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> A creditor collects the improvements for free if
          he is owed the value of the land and the improvements;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If not, he must return the value of the
               improvements. Shmuel taught that he may return
               money.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> This is according to the opinion that the
          creditor may take the land even if the buyer has money
          and wants to pay the debt and keep the land;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to the opinion that if the buyer has money
               he may pay the debt and keep the land (against the
               creditor's will), the buyer can say, if I had money,
               you would not get any land. The improvements should
               be considered like partial payment, so you must let
               me keep their value in land!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the land was made an Apotiki. The
          loan will be collected only from it.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHEN WAGES MUST BE PAID</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven rents a field from Shimon for a
          Shavu'a (seven year period) for 700 Zuz, Shemitah counts
          like one of the seven years;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he rents for seven years for 700 Zuz, Shemitah is
               not counted among the seven years.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	The following are the periods for paying workers. A
          worker hired for a day collects  the entire night (i.e.
          he must be paid that night). One hired for a night
          collects the coming day. One hired by the hour collects
          the entire night or day,
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one hired for a week, month, year or Shemitah
               cycle ends working during the day, he collects the
               entire day. If he ends working at night, he collects
               the entire night and day.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> 'Lo Salin Pe'ulas Sachir Itecha Ad
          Boker' teaches that a worker hired for a day must be paid
          that night;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'B'Yomo Titen Scharo' teaches that one hired for a
               night must be paid the coming day.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps the former verse discusses one hired
          for the night, and the latter verse discusses one hired
          for the day!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Wages need not be paid before the job is
          finished. We cannot obligate one to pay a day worker
          during the day (or to pay a night worker at night).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'Lo Salin' already forbids keeping a worker's
          wages the entire night . What does 'Ad Boker' add?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> This teaches that one transgresses only the first 
          morning.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If he further delays paying, what is the law?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rav):</font></b> He transgresses 'Bal Tishaheh' (delaying
          payment).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yosef):</font></b> Rav learns from 'do not say 'Lech
               va'Shuv, I will pay you tomorrow', when you have the
               money.
<br>

sjt:
</p><p>
<font><b>2) HALACHAH: PAYING A WORKER WHO FINISHES HIS WORK JUST BEFORE SHABBOS</b></font><b>
<br>OPINIONS:</b> The Mishnah states that when a hired day-laborer finishes working, the employer has the entire night to pay his wages. If the morning comes and he has not paid his worker, then he transgresses the Isur of 'Bal Talin' (Vayikra 19:13).
</p><p>
If external circumstances prevent the employer from paying that night (for example, that night is Shabbos), does the employer transgress any Isur?
</p><p>
(a) The <b>SEFER HA'CHINUCH</b> (#588) is in doubt whether the Isur of 'Bal Talin' applies in such a case. The Gemara says that, in a normal case, once the first morning comes and the employer transgresses the Isur of 'Bal Talin' because he has not yet paid the worker, there is no Isur of 'Bal Talin' thereafter. Consequently, when an employer cannot pay his worker during the first night because it is Shabbos, perhaps there is no Isur of 'Bal Talin' at all since 'Bal Talin' generally does not apply after the morning that follows the first night.
</p><p>
There is, however, a different Isur, that of 'Bal Teshaheh,' which is an Isur d'Rabanan that prohibits delaying the payment of a hired worker, based on the verse, 'Al Tomar l'Re'acha Lech va'Shuv u'Machar Eten v'Yesh Itach' (Mishlei 3:28). This Isur would apply if the employer delays paying the worker once Shabbos has concluded.
</p><p>
The <b>SHITAH MEKUBETZES</b> adds that although the prohibition of 'Bal Talin' does not apply after the first night, the other Isur d'Oraisa of 'Lo Savo Alav ha'Shemesh' (Devarim 24:15) -- which prohibits withholding the wages of a hired worker past sunset -- does apply on subsequent nights. Hence, even though it does not apply at sunset of the first night after he finished working (i.e. Motza'i Shabbos), it does apply on Sunday night.
</p><p>
The <b>RAN</b> and <b>NIMUKEI YOSEF</b> disagree with the Shitah Mekubetzes. They maintain that the Isur of 'Lo Savo Alav ha'Shemesh' as well applies only on the first night.
</p><p>
(b) The <b><b><b>OR</b></b> SAME'ACH</b> (Hilchos Sechirus 11:2) disagrees with the Sefer ha'Chinuch and maintains that when a worker finishes his work close to Shabbos, the employer is obligated to pay the worker <i>during the day</i> on Friday, before he finishes his work. If the employer fails to pay him, he transgresses the Isur of 'Bal Talin.' The Or Same'ach cites proof to his opinion from the Yerushalmi.
</p><p>

<b>HALACHAH:</b> The <b>CHAFETZ CHAIM</b> (in <b>AHAVAS CHESED</b> 9:10) writes that where the author of the Sefer ha'Chinuch lived, it was the custom to work on Friday until just before sunset, and thus it was not practically possible for an employer to pay a worker after the completion of his work, before Shabbos. Now, however, the practice is to finish work much earlier in the day on Friday. Thus, a hired laborer has the status of an 'hourly worker' ('Sechir Sha'os'), who must be paid before the night arrives.
</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN ONE TRANSGRESSES BAL TALIN FOR WITHHOLDING WAGES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven told Shimon 'hire workers for me',
          neither transgresses 'Lo Salin';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven does not transgress, for he did not hire
               them. Shimon does not transgress, for they do not
               work for him.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon said 'it is my responsibility to pay you',
               he must pay them!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> If Levi hired David to work for
                    himself, and set him to work on what is really
                    Yehudah's property, Levi pays David, and can
                    demand that Yehudah pay him the benefit he
                    received.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, Shimon said 'Reuven will pay you'.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Yehudah bar Mereimar told his servant 'hire workers, and
          tell them that I will pay them.'  (This way, no one will
          transgress 'Lo Salin.')
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Mereimar and Mar Zutra would hire workers on behalf of
          each other.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rabah bar Rav Huna):</font></b> People of Sura (who hire workers
          and are unable to pay them until the market day) do not
          transgress 'Lo Salin.' The workers know that they will
          not be paid before this;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the employer does not pay on the market day, he
               transgresses 'Bal Tishaheh'.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A Sechir Sha'os (one hired by the hour) must
          be paid that night or day.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav):</font></b> A Sechir Sha'os for the day (Rashi - to work in
          the morning) must be paid that day. If he was hired to
          work at night, he must be paid that night.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> If he was hired for the day, he must be paid
          that day. If he was hired for the night, he must be paid
          that night or the coming day.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (against Rav - Mishnah):</font></b> A Sechir Sha'os must be
          paid that night or day.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rav):</font></b> The Mishnah puts together the laws of two
          different cases;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he was hired for the day, he must be paid that
               day. If he was hired for the night, he must be paid
               that night.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (against Rav - Mishnah):</font></b> If one hired for a
          week, month, year or Shemitah cycle ends working during
          the day, he must be paid that day. If he ends working at
          night, he must be paid that night or the coming day.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Rav):</font></b> Tana'im argue about this. (I rule like R.
          Yehudah.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah):</font></b> If he was hired (by the hour
               and worked) during the day, he must be paid that
               day. If he worked at night, he must be paid that
               night;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon says, if he worked during the day, he must
               be paid that day. If he worked at night, he must be
               paid that night or the coming day.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Anyone who withholds wages transgresses five
                    Lavim and an Aseh - 'Lo Sa'ashok Es Re'acha',
                    'v'Lo Sigzol', 'Lo Sa'ashok Sachir Oni', 'Lo
                    Salin', 'v'Lo Savo Alav ha'Shemesh' and the
                    Aseh 'b'Yomo Siten Secharo.'
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question:</font></b> How can one transgress them all? Some
                    of these apply only during the day, and others
                    apply only at night!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer (Rav Chisda):</font></b> The Tana means that there
                    are five Lavim and an Aseh that forbid
                    withholding wages.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>OSHEK AND GEZEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between 'Oshek'
          (withholding wages) and theft?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rav Chisda):</font></b> If he keeps saying 'go, come back
          later', this is Oshek. If he says 'I have your wages, but
          I will not pay you', this is theft.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection (Rav Sheshes):</font></b> The Oshek for which one brings a
          Korban is similar to the case of a deposit, i.e. he
          denies owing (and falsely swears and then admits).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rav Sheshes):</font></b> If he says 'I already paid you',
          this is Oshek. If he says 'I have your wages, but I will
          not pay you', this is theft.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> The theft for which one brings a
          Korban is similar to the case of a deposit, i.e. he
          denies owing (and falsely swears and then admits).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3 (Abaye):</font></b> If he says 'I never hired you', this
          is Oshek. If he says 'I already paid you', this is theft.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Why did Rav Sheshes challenge Rav Chisda
               only regarding Oshek, but not regarding theft?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Perhaps Rav Chisda meant that outside of
               Beis Din the thief said 'I will not return to you',
               and in Beis Din, he denied stealing (and swore
               falsely).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If so, we can similarly defend Rav Chisda
               regarding Oshek! (Outside of Beis Din he said 'go,
               come back later.' In Beis Din, he denied owing.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> No. Regarding theft it says '(and he
               denied...) Oh b'Gezel', (even if he denied only now,
               but beforehand he did not deny);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Had it said 'Oh b'Oshek', we would say the same
                    about Oshek (even if he denied owing wages only
                    now, but beforehand he did not deny);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Rather, it says 'Oh Oshak', which connotes that
                    he denied owing wages from the beginning.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #4 (Rava):</font></b> Oshek and theft are the same;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Torah gives it another name to obligate one who
               transgresses with an extra Lav.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>FOR WHICH WAGES DOES ONE TRANSGRESS?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One who withholds wages of a worker or rental
          of an animal or Kelim transgresses 'b'Yomo Siten Secharo'
          and 'Lo Salin Pe'ulas Sachir Itecha Ad Boker';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is when the worker asked for his wages. If not,
               the employer does not transgress.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	He does not transgress if he arranged with a grocer or
          moneychanger to pay the worker (and the employer will
          reimburse him).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	In the time a worker should be paid (if he argues with
          his employer about whether he was paid), he swears and
          collects;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> After the time he should be paid, he does not swear
               and collect;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If witnesses saw the worker demand his wages (before
               the due time, and he was not paid), he swears and
               collects (after the time).
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	'B'Yomo Siten Secharo' applies to one who hires a Ger
          Toshav, but not 'Lo Salin Pe'ulas Sachir Itecha Ad
          Boker';
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Who is the Tana of the Mishnah? It is
          not the first Tana of the Beraisa of 'Achicha', nor R.
          Yosi b'Rebbi Yehudah!
<br>
<br>

sjt:
<font><b>1) APPOINTING A 'SHALI'ACH' TO HIRE A WORKER</b></font><b>
<br>QUESTION:</b> The Gemara cites a Beraisa which says that when a person tells his friend to hire workers for him, neither the employer nor his friend transgresses the Isur of 'Bal Talin' when the payment of the workers' wages is delayed. The employer does not transgress the Isur because he did not personally hire the workers, and his friend does not transgress the Isur because the workers are not working for him.
</p><p>
Why, though, should the employer not transgress 'Bal Talin' if he delays paying the workers? Since he appointed his friend as a Shali'ach to hire them, it should be as if he hired the workers himself. (<b>TOSFOS RID</b>, <b>RITVA YESHANOS</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TOSFOS RID</b> answers that when workers do not see the employer who hires them, they do not rely on the employer to pay them promptly upon the completion of their work. Therefore, when an employer hires workers through a Shali'ach, even though the workers trust that the Shali'ach was appointed by the employer to hire them, they make an understood, unstated agreement that the employer may delay payment of their wages and that they forgo the right to prompt payment.
</p><p>
The Tosfos Rid's explanation might be based on the Gemara that follows, in which Rabah bar Rav Huna teaches that the market-goers of Sura do not transgress 'Bal Talin' if they do not pay a worker when he finishes his work, because the workers know that their employers will not have money with which to pay them until the market day arrives. The market-goers do transgress, however, the Isur of 'Bal Teshaheh.' This Gemara might be the source for the Tosfos Rid's logic that an employer does not transgress 'Bal Talin' when there is an unspoken understanding that he will not have to pay the worker immediately when the work is finished.
</p><p>
(b) <b>RASHI</b> (110b, DH Zeh) writes that since the employer did not hire the workers personally, the workers are not considered his 'Sechirim.' Rashi seems to understand that when the Torah uses the word 'Sachir' it refers to a person whom the employer personally hires (and not to a person hired by a Shali'ach). (See also <b>BACH</b> CM 339:6.)
</p><p>
Rashi might mean that although a Shali'ach can effect a Kinyan in the place of his Meshale'ach (the person who appoints him), the Shali'ach does <i>not</i> take the place of the Meshale'ach with regard to personal actions which do not effect a Kinyan. For example, a Shali'ach cannot wear Tefilin or sit in a Sukah on behalf of another person (see at length <b>TOSFOS RID</b> to Kidushin 42a, and <b>KETZOS HA'CHOSHEN</b> CM 196). Thus, although it is considered as if the Meshale'ach hired the workers and obligated himself to pay them for his work (which is an Kinyan), the Shali'ach's action still is not considered as if the Meshale'ach himself personally spoke to them (which is a personal action, not a Kinyan).
</p><p>
It is clear that Rashi and the Tosfos Rid differ in their understanding of why the employer does not transgress the Isur of 'Bal Talin.' Their dispute might be based on two different ways to understand the Isur of 'Bal Teshaheh.'
</p><p>
Although a person who hires a worker through a Shali'ach does not transgress 'Bal Talin' when he delays the worker's wages, it is clear that he transgresses the Isur of 'Bal Teshaheh' if he delays payment; l'Chatchilah, he is not permitted to delay his worker's wages indefinitely. The Rishonim here write explicitly that the device of hiring workers through a Shali'ach serves to exempt the employer only from the Isur of 'Bal Talin' but not from the Isur of 'Bal Teshaheh' (see <b>TOSFOS</b> and <b>TOSFOS HA'ROSH</b> to 111a, DH Amar Lei, and Shulchan Aruch CM 339:7). According to the Tosfos Rid, even when workers allow their employer to delay payment, when the employer has the money with which to pay he must pay his workers as soon as he can because of his own obligation of 'Bal Teshaheh.' Only the Isur of 'Bal Talin' is affected by an unspoken agreement between the workers and the employer.
</p><p>
Perhaps Rashi explains the Gemara differently because he disagrees with this conclusion and maintains that if the workers did forgo the prompt payment of their wages, then the employer would be exempt from 'Bal Teshaheh' as well (as the <b>SHACH</b> CM 339:2 cites from the <b>SEFER CHASIDIM</b>). Rashi therefore explains that the employer is exempt from 'Bal Talin' because of a technical point: the worker is not called the employer's 'Sachir.' When the employer is exempt from 'Bal Talin' because of a technical point, the Isur of 'Bal Teshaheh' still applies and obligates the employer to pay his worker promptly (as the Gemara teaches (110b) with regard to an employer who does not pay his workers the first morning after their work has finished).
</p><p>
The Tosfos Rid may have found a source for his ruling (that 'Bal Teshaheh' applies even when the workers forgo their right to prompt payment -- in the abovementioned Gemara about the market-goers. The Gemara says that even though the market-goers do not transgress 'Bal Talin,' they do transgress 'Bal Teshaheh.' The <b>ME'IRI</b> explains that this means that the market-goers do not transgress 'Bal Talin' until the day of the market. Once the market day passes, though, they <i>do</i> transgress 'Bal Talin' if they do not pay, since that day is considered the first day of their obligation to pay (which is the only day for which 'Bal Talin' applies). The Gemara's statement that they do not transgress 'Bal Talin,' then, refers to the period of time before the market day. When the Gemara says that the market-goers do transgress 'Bal Teshaheh,' it must mean, therefore, that they transgress 'Bal Teshaheh' even before the market day arrives, even though the workers had an unspoken agreement with the employer that he would not be obligated to pay until the market day. This could be a source for the Tosfos Rid's position that even after the workers forgo prompt payment, the employer is obligated to pay them if he has money with which to pay.
</p><p>
Rashi, on the other hand, explains the Gemara about the market-goers differently, consistent with his own view. Since Rashi maintains that 'Bal Teshaheh' cannot apply if the workers forgo their prompt payment, the Gemara must mean that market-goers transgress only 'Bal Teshaheh' and not 'Bal Talin' even <i>after</i> the market day. Rashi therefore explains that the market-goers are exempt from <i>ever</i> transgressing 'Bal Talin,' even after the market day, since 'Bal Talin' applies only on the day after the work is finished (and not the day after the obligation to pay begins). (M. Kornfeld)
</p><p>


<font><b>2) THE PUNISHMENT FOR TRANSGRESSING 'BAL TALIN'</b></font><b>
<br>OPINIONS:</b> The Gemara discusses the prohibition against delaying the payment owed to one's hired worker. Does an employer who does not pay his worker's wages on time receive Malkus for transgressing the Isur of 'Bal Talin'?
</p><p>
(a) <b>TOSFOS</b> (61a, DH la'Avor) maintains that a person who transgresses the prohibition of 'Bal Talin' is punished with Malkus. Tosfos apparently follows the view that a person receives Malkus even for a 'Lav she'Ein Bo Ma'aseh,' a prohibition that is transgressed without any positive action.
</p><p>
(b) The <b>RAMBAM</b> (Hilchos Sechirus 11:1) disagrees with Tosfos and maintains that since a person who delays his worker's wages still has an obligation to pay the worker, he does <i>not</i> receive Malkus. Similarly, the <b>SEFER HA'CHINUCH</b> (#230) writes that the employer does not receive Malkus because he still has an opportunity to pay the worker and rectify his transgression.
</p><p>
The <b>MINCHAS CHINUCH</b> raises an objection to this reasoning. When the employer eventually pays the worker, he does not rectify the prohibition that he transgressed when he delayed the payment. The prohibition to withhold the wages of a worker is not like the prohibition of stealing. When a person steals, he withholds property that belongs to someone else. When he delays payment to a worker, he does not withhold money that belongs to the worker; rather, he merely delays payment. The act of delaying the payment is an Aveirah by itself, and thus it is not rectified by the eventual payment. The Aveirah of stealing, on the other hand, involves keeping property that belongs to someone else, and a person therefore rectifies the Aveirah when he returns the stolen property.
</p><p>
(c) The <b>MINCHAS CHINUCH</b> cites a different opinion which maintains that the employer does not receive Malkus because it is a 'Lav she'Ein Bo Ma'aseh' -- an Aveirah done without an action, and the Halachah is that Malkus is given only for an Aveirah that is transgressed by a positive action.
</p><p>
This is also the reasoning of the <b>SHA'AR HA'MELECH</b> (Hilchos Chametz 1:3, DH v'Derech Agav). The Sha'ar ha'Melech points out that the reason given by the Sefer ha'Chinuch (that the employer is still able to pay) is more encompassing than his reason (that the Isur is a 'Lav she'Ein Bo Ma'aseh'), because sometimes the Isur of 'Bal Talin' <i>is</i> transgressed with a positive action, such as when there was a specific item that was designated to be the payment for the work, and the employer keeps that item for himself. (Y. Marcus)
</p><p>


<font><b>3) WHAT IS 'GEZEILAH'?</b></font><b>
<br>QUESTION:</b> The Gemara quotes a Beraisa which states that there are five prohibitions which an employer might transgress when he fails to pay his worker. Among these are 'Lo Sa'ashok Es Re'acha' (Vayikra 19:13), 'Lo Sigzol' (ibid.), and 'Lo Sa'ashok Sachir' (Devarim 24:14). The Gemara asks what the difference is between the Isur of Gezel and the Isur of Oshek. Rava answers that Gezel and Oshek are the same, and the Torah merely makes the employer liable for an additional transgression.
</p><p>
This Gemara seems to contradict the words of the <b>RAMBAM</b> (Hilchos Gezeilah 1:3-4), who writes that Gezel and Oshek are two different prohibitions. The Rambam writes that the prohibition of Gezeilah applies when one forcibly takes money from someone else (such as by seizing an object from him). In contrast, Oshek applies when one refuses to pay money that he owes to someone else. If the Gemara concludes that Gezel and Oshek represent the same action (for which the Torah makes two prohibitions), why does the Rambam say that they represent two different actions? Moreover, the Gemara earlier (61a) states that the verse of 'Lo Sigzol' refers specifically to the prohibition against withholding a worker's wages, while the general prohibition against stealing is derived from the prohibitions of Ribis and Ona'ah. Why, then, does the Rambam state that the verse of 'Lo Sigzol' refers to the general prohibition against stealing? (<b>MAGID MISHNEH</b>)
</p><p>
<b>ANSWER: RAV YERUCHAM FISHEL PERLOW</b> (in Hagahos to Sefer ha'Mitzvos, Lo Sa'aseh #50, p. 50) answers that the straightforward meaning of the verse 'Lo Sigzol' is a prohibition against forcibly taking money from someone else, as the Rambam writes. There is, however, a second form of Gezeilah. This second form of Gezeilah is derived from the fact that the words 'Lo Sigzol' are found in the same verse as 'Lo Sa'ashok.' Rava's intention in the Gemara here is to teach that the <i>second</i> form of Gezeilah is the same as the Isur of Oshek. Certainly, however, the straightforward Isur of Gezeilah is different from the Isur of Oshek, as the Rambam describes. This is also the way the <b>PNEI YEHOSHUA</b> and <b>LECHEM MISHNEH</b> explain the Rambam. (See also <b>VILNA GA'ON</b>, CM 359:10, who elaborates on this answer.)
</p><p>
The Lechem Mishneh adds that the Rambam is troubled by the question of <b>TOSFOS</b> (DH v'Lamah), and that is why he explains that there is a general prohibition of Gezeilah apart from the specific form of Gezeilah which applies only to a worker's wages. Tosfos asks that if Gezeilah and Oshek are the same Isur, then although it makes sense for the Torah to mention both with regard to one who withholds a worker's wages (in order to teach that a person transgresses two Isurim when he withholds the wages), why does the Torah also mention both Gezeilah and Oshek with regard to a person who must bring a Korban Asham Gezeilos, in the verse 'O b'Gezel O Ashak Es Amiso' (Vayikra 5:21)? The Rambam understands that since the Torah specifies that a person is obligated to bring a Korban Asham Gezeilos for both Gezeilah and Oshek, there is a separate, general prohibition of Gezeilah.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>CAN ONE PARDON A LOAN GIVEN THROUGH MA'AMAD SHELOSHTAN?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> David does not transgress
               withouseholdlding wages if he arranged with a grocer
               to pay David's worker (and David will reimburse the
               grocer).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 112a - Question:</font></b> If the grocer refuses to pay, can
               the worker claim from David?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Sheshes):</font></b> He cannot claim from David;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rabah):</font></b> He can claim from David.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rabah infers from the Mishnah that David does
                    not transgress if he arranged with a grocer or,
                    but he is obligated to pay. Rav Sheshes
                    explains that it is irrelevant to discuss
                    transgressing, for he is exempt from paying.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Gitin 13b (Rav):</font></b> If Reuven says to Shimon 'you have
               money of mine. Give it to Levi', and all three are
               present, Levi acquires the money.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Shmuel):</font></b> If Reuven says to Shimon 'you borrowed
               money from me. Give it to Levi', and all three are
               present, Shimon owes the money to Levi.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Ameimar):</font></b> It is as if Shimon said when he borrowed
               the money 'I am indebted to you, or anyone who will
               come in your stead.'
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Objection (Rav Ashi):</font></b> If so, it should not be
               possible to give the loan to someone who was not
               born at the time the loan was given! Rather, through
               the benefit of converting an old loan into a new
               loan, Shimon is able to obligate himself to Levi.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Objection (Huna, son of Rav Nechemyah):</font></b> If so, Rav's
               law would not apply if Levi's temperament is to
               force borrowers to pay immediately!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Mar Zutra):</font></b> Rather, Rav's law is an enactment
               without reason (how it works).
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Kidushin 47b (Beraisa #1 - R. Meir):</font></b> If one was
               Mekadesh a woman with a loan document, or gave her
               rights to collect a debt owed to him, she is
               Mekudeshes;
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> Chachamim say, she is not Mekudeshes.
<br>        <b>  <b><font color='darkgreen'>13. </font></b></b> Regarding a loan document, they argue about Shmuel's
               law, that a lender who sold his loan document can
               pardon the debt. Alternatively, all hold like
               Shmuel. They argue about whether a woman resolves to
               accept the document, or if not, due to fear lest he
               pardon the debt.
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b> Regarding a Milveh Al Peh (a loan without a
               document), they argue about whether Ma'amad
               Sheloshtan applies only to deposits, or even to
               loans.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> The Halachah follows Rabah, who says that if
               David arranged with a grocer to pay David's worker
               (and David will reimburse him), and the grocer
               refuses to pay, the worker can claim from David.
               However, Ma'amad Sheloshtan acquires, implying that
               they cannot retract! Here, the grocer had nothing of
               David. David wanted him to give on credit. This is
               why if the grocer will not give, the worker can
               claim from David. The Yerushalmi says that if David
               arranged with his workers in front of the grocer,
               they have no claim against David. This is like Rav
               Sheshes; the Halachah does not follow him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Ishus 5:17):</font></b> If David owed money to
               Reuven, and Reuven told Leah that he is Mekadesh her
               with it b'Ma'amad Sheloshtan, she is Mekudeshes.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 6:8):</font></b> If Reuven, Shimon and
               Levi were present, and Reuven told Shimon 'you have
               money of mine, a deposit or loan. Give it to Levi',
               Levi acquires it. None of them can retract.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> Meforshim argue about whether or
                    not one who sold through Ma'amad Sheloshtan can
                    pardon the loan, and also about whether or not
                    Hamcha'ah (telling one's creditor that Ploni
                    will pay him, in the presence of all of them)
                    exempts the borrower even without specifying. I
                    say that they depend on each other. If
                    Hamcha'ah does not exempt without specifying,
                    it is because the lender still has a grasp on
                    the debt. Therefore, he can pardon it. From
                    Hilchos Ishus (5:17), it is clear that the
                    Rambam holds that the lender cannot pardon.
                    Also his words here 'none of them can retract'
                    suggest this. The Ran says that the Rif omitted
                    the law of Kidushin because he holds that the
                    giver can retract, and she is not Mekudeshes. I
                    say that he did not need to teach it, for from
                    his ruling in Bava Metzi'a, we know that the
                    giver cannot pardon. Even though the Rosh and
                    Tur say that Hamcha'ah does not exempt (without
                    specifying), but a giver cannot pardon, what I
                    wrote is reasonable.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach CM 126:10):</font></b> Tosfos, the Ran and
                    Nimukei Yosef citing R. Tam, and the Rema also
                    say that Hamcha'ah does not exempt, but a giver
                    cannot pardon. The Ramban holds oppositely;
                    Hamcha'ah exempts, but a giver can pardon!
                    Perhaps the Kesef Mishneh retracted, for he
                    rules (CM 126:1) that the giver cannot pardon
                    it, but brings (126:9) both opinions about
                    whether or not Hamcha'ah exempts.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Rosh (Gitin 1:17) and Tosfos (Gitin 13b DH Tenehu):
               One who gave a debt through Ma'amad Sheloshtan
               cannot pardon it. We did not conclude (Kidushin 48a)
               that all agree that Ma'amad Sheloshtan applies to
               loans, and they argue about whether or not she fears
               lest he pardon the debt. In Ma'amad Sheloshtan, the
               lender's Shibud is totally uprooted, not only his
               lien on the borrower's property, rather, even Shibud
               ha'Guf (the borrower's obligation to pay). There is
               a new Shibud to pay the recipient. When one sells a
               loan document not in front of the borrower, no
               Kinyan can transfer Shibud ha'Guf. Ma'amad
               Sheloshtan is an enactment to help business. It
               accomplishes what no Kinyan can do. If the lender
               could pardon the debt, the enactment would not help.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Prishah (CM 126:10):</font></b> The Rosh did not simply
                    say that it is as if the buyer appeased the
                    borrower to write a new document obligating
                    himself to him, for he holds that Ma'amad
                    Sheloshtan works b'Al Korcho of the borrower.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 6:12):</font></b> Kinyan of documents
               through writing another document is mid'Rabanan.
               Mid'Oraisa, only the paper can be transferred.
               Therefore, the seller can pardon the loan. Even his
               heir can pardon it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> No, he can pardon it
                    because the borrower tells the buyer 'I did not
                    obligate myself to you.' If the wrote in the
                    document that he obligates himself to the
                    lender or anyone who will come in his stead,
                    the lender cannot pardon it after selling it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection (Ramban Gitin 13b DH v'Ika...):</font></b> If
                    so, Ameimar (who says that a borrower obligates
                    himself to anyone who will be in place of the
                    lender) must hold that a seller cannot pardon.
                    If so, Shmuel contradicts himself! We return a
                    receipt for a Kesuvah (Bava Metzi'a 19b)
                    without concern lest he agreed to pay anyone in
                    her stead! Rather, in any case, the seller can
                    pardon. Some say that normally, one who sold a
                    debt can pardon it because the sale is only
                    mid'Rabanan, but here he obligated himself
                    (mid'Oraisa) when he borrowed. This is wrong.
                    Chachamim enacted that it is as if he intends
                    for this! Alternatively, this is Ameimar's
                    opinion; the Halachah does not follow him.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Defense (Ran Teshuvah 64):</font></b> Ameimar did not say
                    that every borrower agrees to pay whoever will
                    be in place of the lender. Ma'amad Sheloshtan
                    works only with the borrower's consent! Surely,
                    Rav Ashi (who says that it works through the
                    borrower's Hana'ah) holds that it is only with
                    his consent. He understood better than we do.
                    Ameimar and Rav Ashi argue only about how
                    Ma'amad Sheloshtan works, not about the
                    Halachos. Ameimar was concise. He meant that
                    one obligates himself to whoever will be in
                    place of the lender, and he will agree to him.
                    The Acharonim agree with the Ra'avad.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Rosh Teshuvah 69:1):</font></b> Obligating
                    oneself to whoever will come in the lender's
                    stead explains why the Kinyan takes effect. It
                    does not imply that the lender cannot pardon.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Nimukei Yosef (Bava Basra 67a):</font></b> The Rif says
                    that once the recipient acquires, he pardoned
                    his claim against the lender. Most Meforshim
                    say that Shmuel's law that one who sold a loan
                    document can pardon it is even if he sold
                    through Ma'amad Sheloshtan.
<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 (126:1):</font></b> If Shimon had Reuven's
               money, a loan or deposit, and in Levi's presence
               Reuven told Shimon 'the money you have of mine, give
               it to Levi', Levi acquires it. Reuven cannot pardon
               it to Shimon.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (11):</font></b> The Shulchan Aruch holds that
                    Reuven cannot pardon even if he has property,
                    and Levi will not lose through the pardon (he
                    will collect his debt from Reuven's property),
                    so it is not considered detrimental to others.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>CAN ONE PARDON A LOAN DOCUMENT GIVEN THROUGH MA'AMAD SHELOSHTAN? </b></b>(</font><font color='blue'>


