# dafyomi

lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'Aser... v'Ochalta (you must tithe what you will
               eat)', but not what you sell;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> '(Tithe) Tevu'as Zar'echa (what you grew)', but not
               what you buy.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, a sale is Kove'a the Peros mid'Rabanan.
          Mid'Oraisa, it is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> (If a buyer is exempt, also a worker is.)
               What does 'k'Nafshecha' teach?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Beraisa):</font></b> 'K'Nafshecha' - just like if one
               muzzles himself he is exempt (from lashes), also if
               he muzzles a worker.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Mar Zutra - Mishnah):</font></b> The final processing for
          Ma'aser for gourds and pumpkins is from when Yifkesu.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Asi):</font></b> This is when the flower falls off the top.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> This is even in the field!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> No, it is in the house.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> If so (the Chidush is, that it is exempt until
          then), it should not say 'from when Yifkesu', rather,
          'not until Yifkesu'!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> That would connote until all the flowers fall
          off. 'From when Yifkesu' connotes once they start to fall
          off.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question (Mar Zutra brei d'Rav Nachman - Beraisa):</font></b> After
          final processing of Tevel (untithed Peros), one who eats
          it is liable. The final processing is Hachnasah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Hachnasah means gathering it, even in
               the field.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer #1:</font></b> No, it is bringing it into the house.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer #2:</font></b> R. Yanai said that entering the house is
          Kove'a only for grapes and olives (which one plans to
          eat. He does not pile them up in the field.) For grain
          (which one piles up in the field), the Torah explicitly
          says ('ka'Dagan Min ha'Goren' - Bamidbar 18:27) that it
          becomes Kavu'a there!
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>EATING DETACHED PEROS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	We have learned that a person eats attached Peros, and
          ('Lo Sachsom Shor b'Disho' teaches) that an animal eats
          detached Peros (when they work);
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source that a person eats detached
          Peros?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> A Kal va'Chomer teaches this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> No verse permits an ox to eat attached Peros, yet
               the Torah permits it to eat detached Peros. The
               Torah explicitly permits man to eat attached Peros,
               all the more so he may eat detached!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection:</font></b> We cannot learn from an ox, for one may not
          muzzle it!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Suggestion:</font></b> A Kal va'Chomer teaches that it is also
          forbidden to muzzle man!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There is no Mitzvah to help animals survive, yet one
               may not muzzle them. We are commanded about man
               'v'Chei Achicha Imach', all the more so one may not
               muzzle him!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection:</font></b> 'K'Nafshecha' - (the law of) a worker is like
          the owner himself;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like if one muzzles himself he is exempt, also
               if he muzzles a worker.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Question (b) remains. What is the source that a person
          may eat detached Peros?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2:</font></b> It says 'Kamah' twice. Only one is needed to
          permit man to eat attached Peros, so the other is used to
          permit detached.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #3 (R. Ami):</font></b> We do not need an extra verse for
          this. 'B'Cherem Re'echa' includes when he was hired to
          carry detached grapes!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ANIMALS EAT ATTACHED PEROS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source that an animal eats attached
          Peros?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1:</font></b> A Kal va'Chomer teaches this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> No verse permits man to eat detached Peros, yet the
               Torah permits him to eats attached. The Torah
               commands us to let an ox eat attached Peros, all the
               more so it eats detached!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> We cannot learn from man, for we are commanded
          to help him survive!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Suggestion:</font></b> A Kal va'Chomer teaches that we are commanded
          to help animals survive!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One may muzzle man, yet we are commanded to help him
               survive. One may not muzzle animals, all the more so
               we are commanded to help them survive!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> 'V'Chei Achicha Imach' - we are commanded to
          help man survive, not animals.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Question (a) remains. What is the source that an animal
          eats attached Peros?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2:</font></b> It says 'Re'echa' twice. Only one is needed to
          teach that man eats attached Peros, the other is used to
          teach that animals eat attached Peros.
<br>

<p>

sjt:
</p><p>
<font><b>3) DERIVING THE PROHIBITION OF 'CHASIMAH' THROUGH A 'KAL VA'CHOMER'</b></font><b>
<br>QUESTION:</b> The Gemara teaches that although the Torah prohibits muzzling an animal and preventing it from eating while it works, the Torah does not prohibit preventing a hired laborer from eating. The Gemara asks that logically the prohibition of muzzling an animal should be extended to a human laborer as well, through a Kal va'Chomer. The owner of an ox has no obligation to ensure that the ox stays alive, but he nevertheless is prohibited from muzzling it. Since a person <i>is</i> obligated to ensure that his fellow man stays alive, a Kal va'Chomer should teach that the prohibition of muzzling certainly applies to an employer who prevents his laborer from eating. The Gemara answers that the verse of 'k'Nafshecha' (Devarim 23:25) teaches that just as the employer himself may choose not to eat, he also is not punished if he prevents his laborer from eating.
</p><p>
The Gemara's suggestion that a Kal va'Chomer should teach that the prohibition of 'Lo Sachsom' applies to a laborer is difficult to understand. There is a rule that 'Ein Mazhirin Min ha'Din' -- a prohibition which is punishable with Malkus cannot be derived through a Kal va'Chomer (Yevamos 22b, Makos 17b).
</p><p>
Although a Kal va'Chomer may serve as a source for a prohibition which does not carry a penalty of Malkus, the Gemara here is not attempting to derive a prohibition for which the employer is not punished with Malkus. The fact that such an Isur exists would be known <i>without</i> a Kal va'Chomer, because the verse itself implies such an Isur. When the verse (Devarim 23:25-26) permits a laborer to eat from the fruit of the field in which he works, it teaches that the owner of the field is obligated to allow the laborer to eat. Since the verse obligates the owner with a Mitzvas Aseh to allow the laborer to eat, he transgresses an Isur Aseh if he prevents the laborer from eating (as the <b>SEFER HA'CHINUCH</b> writes in Mitzvah 576). It is clear that the Gemara seeks to derive through the Kal va'Chomer an Isur that is punishable with Malkus. How can this be reconciled with the rule that 'Ein Mazhirin Min ha'Din'? (<b>MISHNEH L'MELECH</b>, Hilchos Ma'achalos Asuros 2:1)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MISHNEH L'MELECH</b> answers based on the words of the <b>MAGID MISHNEH</b> that in a situation in which an Isur exists even without the Kal va'Chomer, a Kal va'Chomer <i>can</i> be used to teach that there is Malkus, and the principle of 'Ein Mazhirin Min ha'Din' does not apply.
</p><p>
(b) The <b>SHA'AR HA'MELECH</b> understands that the Gemara indeed seeks to derive through the Kal va'Chomer only that there is an Isur, but not that the Isur is punishable with Malkus. Although there would be an Isur Aseh even without the Kal va'Chomer (as the Mishneh l'Melech says), nevertheless the Gemara wants to derive that there is also an Isur <i>Lo Ta'aseh</i> (albeit without a punishment of Malkus) against preventing one's laborer from eating the fruits in the field while he works.
</p><p>
(The <b>YOSEF DA'AS</b> asks that if one does not receive Malkus for transgressing this Isur Lo Ta'aseh, then what difference does it make if there is one Isur (an Isur Aseh) or two Isurim? He answers based on the <b>RITVA</b> later (94a) that if there is no Lo Ta'aseh, then when the Torah commands the employer with a Mitzvas Aseh to permit a laborer to eat, it merely establishes the laborer's right to eat. The laborer, however, may forgo his right and accept upon himself not to eat, in which case the employer may prevent him from eating. If, however, the Torah commands the employer with a Lo Ta'aseh to permit the laborer to eat, then the laborer cannot agree to let the employer prevent him from eating.) (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT WE LEARN FROM THE WORD B'DISHO</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #3 (to Question 3:a (88b), and Answer #4 to
          Question 2:b - Ravina):</font></b> We do not need an extra verse for
          man to eat detached, nor for animals to eat attached!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Lo Sachsom Shor b'Disho' includes all animals. We
               learn a Gezeirah Shavah 'Shor-Shor' from Shabbos
               (all our animals must rest).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Torah could have written 'do not thresh with
               (something) muzzled.' 'Shor' is extra, to equate the
               muzzler (man) to the muzzled one (an animal);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Just like the muzzler eats attached, also the
               muzzled one. Just like the muzzled one eats
               detached, also the muzzler!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa #1):</font></b> (The Torah permits an animal to eat
          'b'Disho' (while threshing), and we learn to people.)
          Threshing applies to something that grows from the
          ground, and a worker may eat. He may eat everything that
          grows from the ground:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One who milks, churns (milk to make butter), or
               makes cheese does not eat, for milk does not grow
               from the ground.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why must the Torah write 'b'Disho'? We already
          know from 'b'Cherem Re'echa'!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that the extra 'Kamah'
          (which includes everything that grows from the ground)
          includes even things that do not grow from the ground.
          'B'Disho' teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa #2):</font></b> Just like 'b'Disho (threshing)' is final
          processing, and a worker may eat, he may eat whenever he
          does final processing;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One who weeds among garlic and onions may not eat,
               for this is not final processing.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why must the Torah write 'b'Disho'? We already
          know from 'v'El Kelyecha Lo Siten'! (Since he does not
          put in the owner's Kli, he may not eat.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he removes small onions and garlic
          that will never grow big (he puts them in the owner's 
          Kli).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa #3):</font></b> 'B'Disho (threshing)' is before final
          processing that is Kove'a for Ma'aser, and a worker may
          eat. He always eats before final processing for Ma'aser;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One who separates dates and figs that stuck together
               may not eat, for they are Kavu'im for Ma'aser.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> One who separates dates and figs
          that stuck together may eat!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> That refers to bad dates and figs that
          do not ripen on the tree. They are warmed in a Kli to
          ripen (they are not Kavu'a for Ma'aser).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Beraisa #4):</font></b> 'B'Disho' is before it is Kavu'a for
          Chalah, and a worker may eat. He always eats food before
          it is Kavu'a for Chalah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One who kneads or arranges the dough may not eat,
               for a dough is Kavu'a for Chalah.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Why must we teach this? Since it is Kavu'a for
          Ma'aser, we already know that he may not eat!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The Beraisa teaches about Chutz la'Aretz,
          where there is no Ma'aser.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Rejection:</font></b> Nor is there Chalah in Chutz la'Aretz!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #2:</font></b> The Beraisa teaches the law during the seven
          years of conquest and seven years of division of Eretz
          Yisrael;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> During those years Chalah applied, but Ma'aser did
               not.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Rejection:</font></b> Permission for a worker to eat does not depend
          on whether or not the Peros actually must be tithed,
          rather, whether the final processing has been done. (The
          final processing for each species is the same as what is
          Kove'a (Peros of that species that must be tithed) for
          Ma'aser.)
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer #3 (Ravina):</font></b> Beraisos #3 and #4 are extracts from
          one Beraisa. It says 'threshing is before it is Kavu'a
          for Ma'aser and (if it applies) Chalah, and a worker may
          eat. He always eats until produce is Kavu'a for Ma'aser
          and (if it applies, also) Chalah (even if it is Kavu'a
          for Ma'aser).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>IMPROVING THE FOOD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> May a worker roast Peros (Rashi - to make it
          tastier; Tosfos - if it is unfitting to eat without
          roasting) and eat it?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Is this like eating grapes with something to season
               them (which is forbidden (Tosfos - if it is hard to
               eat them by themselves)), or not?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Beraisa):</font></b> An employer may give his workers
          wine in order that they will not eat many grapes. Workers
          may dip grapes in brine, in order that they will eat
          many.
<br>
<br>

sjt:
<font><b>1) THINGS WHICH GROW FROM THE GROUND</b></font><b>
<br>QUESTION:</b> The Gemara cites several Beraisos which discuss the types of item which a hired laborer may or may not eat while he works with them. The first Beraisa derives from the verse (Devarim 25:4) that a laborer may eat only items which grow from the ground. Accordingly, a laborer who is milking a cow, making milk curdle, or pressing the curds into cheese is not entitled to eat the foods with which he is working.
</p><p>
It is clear from the Gemara that milk is not considered something that grows from the ground ('Gidulei Karka'). However, the Gemara in Eruvin (27b) derives from the verse that when one buys food in Yerushalayim with money of Ma'aser Sheni, the money must be used to buy only food items that were produced from other food items and that are 'Gidulei Karka.' The Gemara there says that this includes animals, since they are produced from other animals and they are considered 'Gidulei Karka' since their nourishment comes from the ground. Why does the Gemara here imply that animals are <i>not</i> 'Gidulei Karka'? (<b>TOSFOS</b> and <b>TOSFOS SHANTZ</b> cited by the Shitah Mekubetzes)
</p><p>
<b>ANSWER: TOSFOS</b> (DH Gidulei Karka) answers that the Gemara here uses the term 'Gidulei Karka' only in reference to things that actually grow out of the ground, as implied by the word in the verse which the Gemara is expounding -- 'Dayish,' threshing, which applies only to actual produce of the ground. The Gemara in Eruvin uses the same term, 'Gidulei Karka,' with a different connotation. There, the term refers to anything which obtains nourishment from the ground or from produce that grows in the ground.
</p><p>
The verse of Ma'aser Sheni states that the money may be used to buy 'cattle, sheep, wine, or beverage' (Devarim 14:26), and the Gemara explains that the common denominator of these things is that they are 'Gidulei Karka.' The Gemara uses that terminology in its broader sense to refer even to things that receive their nourishment from the ground. With regard to the food that a laborer may eat while he works, the verse says 'Dayish,' and the Gemara therefore excludes items which cannot be considered 'Dayish,' such as animals, which do not actually grow out of the ground. (I. Alsheich)
</p><p>


<font><b>2) THE POINT AT WHICH DOUGH IS OBLIGATED IN 'CHALAH'</b></font><b>
<br>QUESTION:</b> The Gemara cites several Beraisos which discuss what type of items a hired laborer may not eat while he works with them. The last Beraisa states that a laborer may eat the fruit only as long as it has not been processed to the point that it is obligated in Chalah ('Lo Nigmar Melachto l'Chalah'). This excludes dough that is being kneaded, rounded, or baked.
</p><p>
Kneading ('Lash') comes before the process of rounding the dough ('Mekatef') and baking it ('Ofeh'). Once the Beraisa states that a laborer who is kneading dough may not eat from it because it has reached a point of 'Nigmar Melachto l'Chalah,' why does the Beraisa need to add the two later procedures?
</p><p>
<b>ANSWER: TOSFOS</b> and the <b>RITVA</b> answer that the reason why the Beraisa mentions 'Ofeh,' baking, is that it is possible to bake dough without kneading it first. When the flour is mixed with a lot of water such that it becomes very thin, it does not need to be kneaded. The Beraisa must teach that dough which is baked before kneading becomes obligated in Chalah without the process of kneading.
</p><p>
Why, though, does the Beraisa mention the Melachah of 'Mekatef,' rounding the dough, if that Melachah must always be preceded by kneading? Tosfos leaves this question unanswered.
</p><p>
The <b>RITVA</b> and <b>TOSFOS RABEINU PERETZ</b> answer that since the Tana mentions 'Lash' and 'Ofeh,' he also mentions 'Mekatef,' even though it is not necessary to mention it. The <b>TOSFOS HA'ROSH</b> writes that the Tana is describing the 'order of preparation of bread,' and thus he mentions 'Mekatef' even though it is not necessary.
</p><p>
The Acharonim ask why the Rishonim do not ask a similar question on the first Beraisa that the Gemara quotes. The Beraisa derives from the verse (Devarim 25:4) that a laborer may eat only from items which grow from the ground. Thus, the Beraisa continues, a laborer who is milking a cow, making milk curdle, or pressing the curds into cheese is not entitled to eat the foods with which he is working. There, too, the question arises: why does the Beraisa mention the two later procedures, if milking a cow must come before them?
</p><p>
The <b>TORAS CHAIM</b> answers that the Rishonim's question does not apply at all to the earlier Beraisa. That Beraisa merely lists procedures that do not involve things that grow from the ground. Hence, it lists milking along with cheese-making. In the later Beraisa, though, the Beraisa teaches the point at which dough becomes obligated in Chalah, and thus it is unnecessary to mention stages that take place only <i>after</i> the dough has already become obligated in Chalah. (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT IS KOVE'A FOR MA'ASER?</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'> 87b (R. Yanai):</font></b> Produce need be tithed only once it
               sees (is brought in through) the opening of the
               house - 'I eradicated the Kodesh from the house.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> Even entering the yard obligates
               tithing it - 'they will eat in your gates and be
               satiated.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (against both - Rav Chanina Chuza'ah -
               Beraisa):</font></b> 'K'Nafshecha' - a worker is like the
               owner. Just like the owner can eat without tithing,
               also a worker.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Inference:</font></b> A buyer must tithe before eating!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Suggestion:</font></b> This applies even in the field!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rav Papa):</font></b> No. The case is, a date tree is
               in a garden, and the foliage extends into a Chatzer
               (or according to R. Yanai, into a house).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> The owner need not tithe before eating, for his
               primary concern is the tree itself. Since the tree
               is in the garden, the fruit is Kavu'a (must be
               tithed before eating it) only when all of it is
               brought inside. The buyer cares only about what he
               bought. Since that is in the Chatzer (or house), it
               is Kavu'a.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> Mid'Oraisa, one need not tithe bought
               Peros!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> The stores of Beis Hino were
                    destroyed before Yerushalayim because they
                    stuck to Torah law (and neglected a Rabbinical
                    enactment).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> 'Aser... v'Ochalta' (tithe what you will eat),
                    but not what you sell. '(Tithe) Tevu'as
                    Zar'echa', but not what you buy.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> A sale is Kove'a the Peros mid'Rabanan.
               Mid'Oraisa, it is exempt.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> (If so, also a worker is exempt.) What
               does 'k'Nafshecha' teach?
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer (Beraisa):</font></b> 'K'Nafshecha' - just like one who
               muzzles himself is exempt (from lashes), also one
               who muzzles a worker.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question (Mar Zutra - Mishnah):</font></b> The final processing
               for Ma'aser for gourds and pumpkins is from when
               Yifkesu.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Asi):</font></b> This is when the flower falls off the
                    top.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Suggestion:</font></b> This is even in the field!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer:</font></b> No, it is in the house.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Question:</font></b> If so (the Chidush is that it is exempt
               until then), it should not say 'from when Yifkesu',
               rather, 'not until Yifkesu'!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Answer:</font></b> 'Until Yifkesu' connotes until all of them
               Yifkesu. 'From when Yifkesu' connotes from the
               beginning.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> 89b (Abaye):</font></b> Dipping in salt is Kove'a for Ma'aser
               in Eretz Yisrael, but not in Chutz la'Aretz.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Objection (Rava):</font></b> If it is Kove'a in Eretz Yisrael,
               it also is Kove'a in Chutz la'Aretz (where Chachamim
               enacted Ma'aser)! Rather, everywhere, salting one at
               a time (and eating it) is not Kove'a, but salting
               two (together) is Kove'a.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> (Rav Masnah):</font></b> We learn that salting two at a time is
               Kove'a for Ma'aser from 'Ki Kibetzam ke'Amir
               Gorenah.'
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> Beitzah 34b (Rav Nachman):</font></b> Shabbos is Kove'a even
               unfinished produce.
<br>        <b>  <b><font color='darkgreen'>18. </font></b><font color='darkgreen'> 35b (R. Yochanan):</font></b> Shabbos, Terumah, Chatzer and a
               sale are Kove'a only finished produce.
<br>        <b>  <b><font color='darkgreen'>19. </font></b></b> Tana'im argue about all of these.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Ma'aser 3:3):</font></b> Any one of the
               following six things are Kove'a for Ma'aser: the
               house, a sale, fire, salt, Terumah, and Shabbos.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad:</font></b> Why did the Rambam omit that pickling
                    is Kove'a? The Mishnah (Ma'aseros 4:1) listed
                    it separately from salt!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ri Korkus:</font></b> The Rambam explains that pickling is
                    in saltwater, therefore he did not list it
                    separately. This is like the Yerushalmi, which
                    counted only six things. Even if it means in
                    vinegar, like the Ra'avad holds, perhaps it is
                    included in fire, for pickling is like cooking.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (ibid.):</font></b> They are Kove'a only something that
               was finished.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Or Some'ach (5:2):</font></b> The Rambam says that a sale
                    of attached Peros is not Kove'a. The Yerushalmi
                    infers that this opinion holds that a sale of
                    detached Peros is Kove'a even unfinished Peros.
                    The Rambam here says that it does not! It seems
                    that a sale is not Kove'a until final
                    processing. Then, the sale is Kove'a
                    retroactively. The Rambam (3:6) says similarly
                    about a house.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (4):</font></b> If he sold Peros, cooked them through
               fire, pickled them with salt, separated Terumah, or
               Shabbos came, he may not eat until tithing, even
               though they did not reach the house. If he brought
               them into the house before final processing, he may
               eat Arai.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (ibid.):</font></b> If he began final processing after
               they entered the house, he must tithe all of them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ri Korkus:</font></b> The Rambam explains 'from when
                    Yifkesu' connotes from the beginning, i.e.
                    final processing on even one Pri obligates all
                    of them. (Rashi explains that it is obligated
                    once some flowers begin to fall off.)
<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 (EH 331:83):</font></b> Any one of the following
               six things are Kove'a for Ma'aser: the house, a
               sale, fire, salt, Terumah, and Shabbos. All of them
               are Kove'a only finished Peros.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Pischei Teshuvah (11):</font></b> The Sha'ar ha'Melech
                    (Ma'aser 5:22) says that also Yom Tov is
                    Kove'a, for it is called Shabbos. Also, Shabbos
                    is Kove'a because 'v'Korasa l'Shabbos Oneg.'
                    The same applies to Yom Tov! However, the
                    Me'iri says that Yom Tov is not Kove'a. The
                    Pnei Yehoshua and Tzlach (Beitzah 40b and 35a)
                    explain that there is no Mitzvah of Oneg on Yom
                    Tov, only Simchah. Simchah is through Shelamim;
                    Ma'aser does not apply to it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos Sho'el u'Meshiv (on Tzlach Beitzah
                    35a):</font></b> We rule that Oneg is obligatory on Yom
                    Tov, like on Shabbos (OC 529:1). For Oneg Yom
                    Tov, one may tithe even if the Peros being
                    exempted and the Terumah are not together
                    (Tosfos Gitin 31 DH ha'Meni'ach).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> The Pnei Yehoshua cited (without
                    explaining) a proof from Beitzah 13a that Yom
                    Tov is not Kove'a. The opinion that allows
                    rolling Melilos (grain between one's fingers to
                    remove the chaff) on Yom Tov holds that produce
                    can become Tevel on Yom Tov. I.e. he entered
                    grain to make a dough, and on Yom Tov decided
                    to roll Melilos. If Yom Tov were Kove'a, all
                    would agree that finished Peros brought inside
                    on Yom Tov become Tevel on Yom Tov!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Tosfos Yom Tov (Ma'aseros 5:1 DH Lokach):</font></b> The
                    Rambam and Bartenura explain that a sale is not
                    Kove'a attached Peros. In any case it is not
                    Kove'a, because they are not finished! R.
                    Shimshon says that a sale is Kove'a in a
                    similar case of detached fruit, even though it
                    is not finished. This is like the Stam Mishnah
                    2:5 (if people trade figs, they may not eat
                    without tithing).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> Similarly, if he sold,
               cooked through fire, pickled with salt, separated
               Terumah, or Shabbos came, he may not eat until
               tithing, even though they did not reach the house.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>THE HOUSE AND CHATZER ARE KOVE'A FOR MA'ASER </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> We knew that one may make himself capable of
          eating much. The question is only whether he may improve
          the food.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Beraisa):</font></b> Workers may eat grapes at the ends
          of the rows of the vineyard, but they may not roast them.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps it is only forbidden because it
          detracts from his work, but if his wife or children roast
          them, he may eat them!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3 (Beraisa):</font></b> A worker may not roast (produce),
          put in the ground (to warm it) or break it on a rock and
          eat, but he may break it in his hands.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> Those are forbidden because they detract from
          his work.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support:</font></b> That is the only reason to forbid breaking
               it on a rock. It does not improve it!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> It improves it a little.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #4 (Beraisa):</font></b> Workers harvesting figs, dates,
          grapes or olives may eat without tithing, for the Torah
          permitted them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They may not eat with their bread unless the
               employer permitted them, nor may they dip them in
               salt.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> Dipping in salt is surely like eating them
          with something else. This does not prove that one may not
          roast them.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>IS SALTING KOVE'A FOR MA'ASER?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> A worker hired to dig under
          olive trees and cover the roots may not eat. If he was
          hired to harvest, he may eat without tithing, for the
          Torah permitted him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he stipulated with the employer (R. Chananel - to
               eat a certain number), he may eat one at a time, but
               he may not (gather and) eat two at a time. (The
               Tanai is like a sale. If he would gather two
               together, he would have to tithe them (Rashba - and
               he has no permission to tithe).)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He may not dip them in salt and eat.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> In which case is it forbidden to dip in
               salt?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Version #1:</font></b> If he stipulated, he may eat (one
                    at a time) any way he wants!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Version #2 (Ra'avad):</font></b> If he stipulated, may he
                    eat any way he wants without concern for
                    Ma'aser?!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it is when he did not stipulate.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> Dipping in salt is Kove'a for Ma'aser
          in Eretz Yisrael, but not in Chutz la'Aretz.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> If it is Kove'a for Ma'aser in Eretz
          Yisrael, it also is Kove'a in Chutz la'Aretz (in those
          places where Chachamim enacted Ma'aser)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> Both in Eretz Yisrael and Chutz
          la'Aretz, salting one at a time (and eating it) is not
          Kove'a for Ma'aser, but salting two (together) is Kove'a
          for Ma'aser;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he stipulated, whether or not he salts, he may
               eat one at a time, but he may not gather two
               together;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he did not stipulate, if he does not salt, he may
               eat two (or any number) at a time;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he salts, he may eat one at a time, but not
                    two at a time.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	(Ra'avad - Abaye and Rava agree that even when dipping in
          salt is forbidden, this is only due to Ma'aser, but not
          because it helps him eat more. All the more so, roasting
          is permitted! Most Rishonim hold that the question about
          roasting is not resolved.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source that salting two at a time
          is Kove'a for Ma'aser?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Masnah):</font></b> 'Ki Kibetzam ke'Amir Gorenah.'
<br>

<p>

sjt:
</p><p>
<font><b>3) MAKING THE FRUIT TASTIER</b></font><b>
<br>QUESTION:</b> Rava concludes that when the Beraisa says that a laborer may dip his fruit into salt, it refers to when he eats one fruit at a time and he and his employer did not stipulate a specific number of fruits that he may eat. In such a case, his act of dipping the fruit into salt does not establish an obligation to separate Ma'aser. However, when the laborer eats two fruits at a time, he may not dip them into salt because doing so makes the fruit obligated in Ma'aser. If, however, the laborer and the employer agreed on a specific number of fruits that the laborer may eat, then he may not eat two even if he does not dip them into salt.
</p><p>
The Gemara earlier (89a) discusses the question of whether a laborer is permitted to scorch the fruit (to make it tastier) and eat it, or whether he is prohibited from scorching the fruit just as he is prohibited from eating it with another condiment. Rava's statement seems to resolve this question of the Gemara. Dipping the fruit in salt (to make it tastier) is akin to scorching it with a flame and is, in fact, even more similar to eating it with a condiment. Thus, if the laborer is permitted to dip the fruit in salt, he certainly should be permitted to scorch it. Why, then, does the Gemara not answer its question based on Rava's statement?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Po'el) cites <b>RABEINU TAM</b> who answers that the Gemara never questions whether a laborer may scorch fruit that is completely edible in its present state; that is obviously permitted, because it merely enhances the taste of the fruit. The Gemara asks its question only with regard to fruit that is barely edible in its present state, which will become completely edible if the laborer scorches it. In such a case, is the act of scorching fruit like eating it with other condiments, since the scorching enables the laborer to eat a lot of the fruit, or is the act of scorching fruit (that is barely edible) permitted just as one may scorch fruit that is fully edible? Rava's statement, however, deals with whether one may salt fruit that is already fully edible, and therefore Rava's words provide no answer to the Gemara's original question.
</p><p>
(b) <b>RASHI</b>, however, understands that the Gemara's earlier question deals with scorching fruit even when the fruit is fully edible. <b>TOSFOS</b> therefore offers another answer (which is also the approach of the <b>RAMBAN</b> in Milchamos and the <b>RITVA</b>). Rava's statement refers specifically to a case in which the employer gives explicit permission to the laborer to eat the fruit. In such a case, the laborer may dip the fruit in salt even though doing so will cause him to eat more. However, Rava's ruling does not imply that the laborer is permitted to scorch the fruit in a case in which the employer did not expressly permit the laborer to eat the fruit (even though the Torah entitles the laborer to eat the fruit even without the employer's permission).
</p><p>
(c) The <b>BA'AL HA'ME'OR</b> disagrees with Tosfos and asserts that the Gemara's question indeed is answered by Rava's ruling. According to Rava, a laborer may scorch the fruit, just as a laborer may dip the fruit into salt. (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ANIMALS WORKING WITH TERUMAH AND MA'ASER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa #1):</font></b> If one muzzles a cow that is Meraches
          (threshes grain that was soaked and dried) or threshes
          Terumah or Ma'aser, he does not transgress 'Lo Sachsom'
          (Rashi - these were already Kevu'im for Ma'aser. Tosfos -
          Terumah and Ma'aser are not 'Disho', i.e. food fit for
          it. Rambam - Meraches is stepping on grain while walking
          on its way. This is not considered work);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> To avoid suspicion (others assume that it is regular
               Chulin), he brings a handful of the same species and
               hangs it near its mouth so it can eat.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon says, he gives it vetch (horsebean), for
               this is the best food for it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Contradiction (Beraisa #2):</font></b> One who muzzles a cow that is
          Meraches does not transgress 'Lo Sachsom.' If it threshes
          Terumah or Ma'aser, he transgresses.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a Nochri threshes with Reuven's muzzled cow,
               Reuven does not transgress;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven threshes with a muzzled cow of a Nochri,
               Reuven transgresses.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The Beraisos argue about Terumah and Ma'aser!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (regarding Terumah):</font></b> He does not transgress if
          it threshes regular (mid'Oraisa) Terumah. He transgresses
          if it threshes Peros grown from Terumah seeds (which is
          only Terumah mid'Rabanan);
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> The contradiction remains regarding Ma'aser!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Perhaps also regarding Ma'aser, he
          transgresses if it threshes Peros grown from Ma'aser.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection:</font></b> Granted, Peros grown from Terumah are Terumah,
          but Peros grown from Ma'aser are Chulin!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Peros grown from Tevel or Ma'aser Sheni
               are Chulin.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (regarding Ma'aser):</font></b> He transgresses if it
          threshes Ma'aser Rishon (it is like Chulin), but not if
          it threshes Ma'aser Sheni.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (regarding Ma'aser):</font></b> In both Beraisos, it
          threshes Ma'aser Sheni;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beraisa #1 is R. Meir, who says that Ma'aser Sheni
               is like Hekdesh. Beraisa #2 is R. Yehudah, who says
               that Ma'aser Sheni is like Chulin.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> In what case is it Ma'aser before
               threshing?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> He declared it to be Ma'aser when it was
               still sheaves.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> According to R. Yehudah, why is he liable?
               He may not let the animal eat Ma'aser Sheni outside
               of Yerushalayim!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, it threshes within
               Yerushalayim.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #3 (regarding Ma'aser):</font></b> He is liable for Ma'aser
          Sheni of Demai (doubtfully tithed Peros. Mid'Oraisa, they
          are Chulin.) He is exempt for proper (mid'Oraisa) Ma'aser
          Sheni.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This suggests another answer for Terumah!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (regarding Terumah):</font></b> He is liable for Terumah
          of Demai, and exempt for proper Terumah.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> We find Ma'aser of Demai, but not Terumah of
          Demai!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> (Yochanan Kohen Gadol) instructed people
               not to say the declaration of Ma'aser (since it was
               enacted to give Ma'aser Rishon to Kohanim or the
               poor, people cannot say 'Nesativ la'Levi'), and
               decreed that one who buys Peros from a commoner
               (i.e. one who did not accept all the stringencies of
               being trustworthy about Ma'aser) must separate
               Ma'aseros;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is because he found that many people
                    separated only Terumah Gedolah, but not
                    Ma'aseros.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #3 (regarding Terumah):</font></b> He is liable for Terumas
          Ma'aser of Demai, and exempt for proper Terumas Ma'aser.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> If an animal was suffering diarrhea from
          eating, may he muzzle it?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the Mitzvah is for the physical well-being of the
               animal, it is better that it not eat;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the Mitzvah is because the animal is pained when
               it sees food and cannot eat it, he should let it
               eat!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Rav Sheshes - Beraisa - R. Shimon):</font></b> He gives it
          vetch, for this is the best food for it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This shows that the Mitzvah is for the physical
               well-being of the animal.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ASKING A NOCHRI TO MUZZLE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> May Reuven tell a Nochri 'muzzle my cow and
          thresh with it'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One may not tell a Nochri to do Melachah on Shabbos.
               Perhaps this is a stringency of Shabbos (since one
               who desecrates Shabbos is liable to death), but it
               does not apply to muzzling, which is only a Lav;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps there is no distinction!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Beraisa):</font></b> If a Nochri threshes with Reuven's
          muzzled cow, Reuven does not transgress.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> He does not transgress, but it is
               forbidden!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> Really, it is permitted. The Tana said 'he
          does not transgress' for parallel structure with the
          Seifa: if Reuven threshes with a muzzled cow of a Nochri,
          Reuven transgresses.
<br>
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 - Question (from Eretz Yisrael):</font></b> If Nochrim
          steal bulls from Yisre'elim (their friends, who prefer
          castrated bulls for plowing), castrate them and return
          them, what is the law?
<br>
<br>

sjt:
<font><b>1) THE STAGE AT WHICH GRAIN BECOMES SUBJECT TO 'MA'ASER'</b></font><b>
<br>QUESTION:</b> The Gemara quotes two Beraisos which state that one does not transgress the Isur of 'Lo Sachsom' when he muzzles cows that are 'Merachsos' -- stamping soaked barley grains to remove the chaff. <b>RASHI</b> (DH ha'Merachsos) explains that the Isur of 'Lo Sachsom' does not apply to grain which has already become obligated to have Ma'aser separated, and in this case the threshing ('Dishah') of the grain, which already took place, is considered the final stage of processing ('Gemar Melachah') with regard to Ma'aser.
</p><p>
Why does Rashi say that the grain becomes obligated in Ma'aser at the time of threshing? All other produce becomes obligated in Ma'aser from the time of 'Miru'ach' -- the leveling of the pile of produce. (<b>YAD DAVID</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>YAD DAVID</b> answers that the Beraisa here refers to grains of barley that were soaked in water and then oven-dried, and which are now being tread on by the cows in order to remove the chaff, as Rashi explains (89b, DH ha'Merachsos ba'Tevu'ah). This process is done only with a small quantity of grain, and thus there is no 'Miru'ach' since there is not enough grain to make a pile. Consequently, the 'Gemar Melachah' is the time of threshing.
</p><p>
(b) The <b>RITVA</b> (89b, DH Tanu Rabanan Paros) cites Rashi's explanation of the process of 'Merachsos.' He then writes that the reason one does not transgress the Isur of 'Lo Sachsom' is that 'the grain has already been leveled in a pile and thus has become obligated in Ma'aser.' According to the Ritva, it indeed is the 'Miru'ach' and not the 'Dishah' which is the 'Gemar Melachah' that makes the grain obligated in Ma'aser, in contrast to Rashi's explanation. (I. Alsheich)
</p><p>


<font><b>2) FOOD FOR THE COW</b></font><b>
<br>OPINIONS:</b> The Beraisa states that one does not transgress the Isur of 'Lo Sachsom' when he muzzles a cow that is threshing produce of Terumah and Ma'aser. However, he should suspect from the cow's neck a feedbag with the same type of produce with which the cow is working so that people will not suspect him of muzzling the cow unlawfully. Raban Shimon ben Yochai rules that one should hang Karshinim (a type of bean) around the cow's neck, 'because Karshinim are the healthiest of all foods' for the cow.
</p><p>
Is Raban Shimon ben Yochai arguing with the Tana Kama, or is he adding to the words of the Tana Kama?
</p><p>
(a) The <b>RITVA</b> in the name of his Rebbi (the <b>RE'AH</b>) writes that Raban Shimon ben Yochai's statement is an addition to the words of the Tana Kama. Even though the Tana Kama requires the owner to feed the cow the same type of produce with which it is working, one may nevertheless feed the cow Karshinim even if it is not working with Karshinim, because of the superior health benefits of Karshinim.
</p><p>
The Ritva proves from the Gemara later that Raban Shimon ben Yochai cannot be arguing with the Tana Kama. The Gemara later asks whether one is permitted to muzzle a cow which experiences digestive problems when it eats. If the Torah prohibits muzzling the animal because it is detrimental to the animal's health, one would be permitted to muzzle it in a case in which <i>eating</i> is detrimental to its health. On the other hand, if the reason for the prohibition is that the animal experiences distress when it cannot eat food that it sees, one would not be allowed to muzzle an animal even in such a case, because the animal will experience distress when it sees the food. Rav Sheshes answers this question from the words of Raban Shimon ben Yochai in the Beraisa, who says that one should feed his cow Karshinim because it is the healthiest food. Rav Sheshes infers from this that the Isur of 'Lo Sachsom' is because of concern for the animal's health.
</p><p>
If Raban Shimon ben Yochai is arguing with the Tana Kama, how does Rav Sheshes answer the Gemara's question based on the view of Raban Shimon ben Yochai? His view is a minority opinion with which the Chachamim argue, and the Gemara's question would therefore be the subject of a Machlokes Tana'im between the Tana Kama and Raban Shimon ben Yochai. The Ritva therefore infers from the statement of Rav Sheshes that Raban Shimon ben Yochai agrees with the view of the Tana Kama and merely adds to his words.
</p><p>
(b) The <b>ROSH</b> (7:6) writes that the Tana Kama and Raban Shimon ben Yochai disagree. Raban Shimon ben Yochai maintains that one should hang Karshinim around the cow's neck because of their superior nutritional value. While the Tana Kama agrees with Raban Shimon ben Yochai regarding the nature of the Isur of 'Lo Sachsom' (i.e. that it is for the sake of the animal's health), the Tana Kama argues and maintains that one may <i>not</i> feed the cow Karshinim when it is working with another type of produce, because others will suspect that he is transgressing the Isur of 'Lo Sachsom.'
</p><p>
This also seems to be the view of <b>TOSFOS</b> (DH Amar) who writes that the Rabanan (the Tana Kama) do not argue with Raban Shimon ben Yochai with regard to the nature of the Isur of 'Lo Sachsom.' This implies that they <i>do</i> argue with regard to another issue: they maintain that the owner may <i>not</i> feed the cow Karshinim and must feed it only the type of produce with which it is working. The <b>TOSFOS SHANTZ</b> cited by the Shitah Mekubetzes writes this explicitly. (See, however, the <b>MINCHAS CHINUCH</b>, Mitzvah 596.) (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>AMIRAH L'NOCHRI</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'> Question:</font></b> May Reuven tell a Nochri 'muzzle my cow
               and thresh with it'?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We forbid Amirah l'Nochri (telling him to do
                    Melachah) on Shabbos. Is this a stringency of
                    Shabbos (since one who desecrates Shabbos is
                    liable to death)? Or, does it apply even to
                    Lavin, such as muzzling?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer - Question (from Eretz Yisrael):</font></b> If Nochrim
               steal bulls from Yisraelim (their friends), castrate
               them and return them, what is the law?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Answer (Shmuel's father):</font></b> The owners may not
                    benefit from this ruse. They must sell them.
                    (Castration is a Lav, yet one may not ask a
                    Nochri to do it!)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection (Rav Papa):</font></b> In Eretz Yisrael, they hold
               like Rav Chidka, that Nochrim are forbidden to
               castrate. A Yisrael may not tell them to do so, due
               to 'Lifnei Iver.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rava):</font></b> Shmuel's father ruled that the bulls must be
               sold for slaughter.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection (Abaye):</font></b> It suffices that we fine the
               owner by forcing him to sell them.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> May one sell it to his minor son?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #1 (Rav Achi):</font></b> No.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #2 (Rav Ashi):</font></b> Yes.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> Mereimar and Mar Zutra would exchange their bulls
               with each other.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif (52b) brings our Sugya 90a.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Machlefei):</font></b> All the Acharonim
                    forbid Amirah l'Nochri even for a Lav, for all
                    the Amora'im forbade castration through
                    Nochrim. It is not due to Lifnei Iver, like Rav
                    Chidka, for the Halachah does not follow him. A
                    Yisrael may not tell a Nochri 'muzzle my cow
                    and thresh your grain with it', or 'muzzle your
                    cow and thresh my grain with it', for Isur is
                    done with a Yisrael's property. The Machilta
                    permits when it does not involve a Yisrael's
                    property.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Kil'ayim 1:3):</font></b> One may tell a Nochri
               to plant Kil'ai Zera'im for him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> In Eretz Yisrael, one must
                    uproot Kil'ayim from his field! Also, the
                    question of Amirah l'Nochri was not settled; we
                    must be stringent.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Kesef Mishneh, citing Ri Korkus:</font></b> The Rambam
                    permits telling the Nochri to plant in the
                    Nochri's field, even through Shelichus of the
                    Yisrael and for his need. The Gemara asked
                    about Amirah l'Nochri for the sake of a
                    Yisrael. Even in the Yisrael's field, there is
                    no Isur until it takes root.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 13:3):</font></b> a Yisrael may not
               tell a Nochri 'muzzle my cow and thresh with it. He
               is not lashed for this.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> We are stringent, for the
                    question was not settled. This is the primary
                    text of the Rambam. Some texts permit telling a
                    Nochri to do so. We are lenient, for the
                    question was not settled and it is a Safek
                    mid'Rabanan.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Mishneh l'Melech Hilchos Sechirus
                    3:13):</font></b> We should be lenient about a Safek
                    mid'Rabanan. Why is the Semag (and Ra'avad)
                    stringent?
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rosh (7:6):</font></b> The Gemara asked about Amirah
                    l'Nochri for Lavim. This is unlike telling a
                    Nochri to eat a Neveilah. A Yisrael may put
                    Neveilah in a Nochri's mouth, just like he
                    commands the Nochri! A Yisrael may not muzzle,
                    so he cannot tell a Nochri to do so. Mereimar
                    and Mar Zutra did not want Nochrim to castrate
                    their bulls. They were stringent, for the
                    Nochri wanted to help a Yisrael. The Ra'avad is
                    lenient, for the question was not settled. I
                    say that it was settled. All Amora'im except
                    for Rav Papa forbid, even though the Halachah
                    is unlike Rav Chidka.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (EH 5:32):</font></b> In Hilchos Kil'ayim, the Ra'avad
                    says we are stringent, for the question was not
                    settled. This requires investigation.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Hagahos Ashri:</font></b> Since a Nochri is not commanded
                    about muzzling, David may tell a Nochri 'muzzle
                    my cow and thresh your grain with it', but not
                    to thresh David's grain. One may not tell a
                    Nochri to do something forbidden to him, due to
                    Lifnei Iver. If we are sure that the Nochri
                    himself decided to do something, even if it is
                    to benefit his Yisrael friend, we do not fine
                    the Yisrael and force him to sell it. We fine
                    regarding castration, lest people scheme. Since
                    the Nochri knows the Yisrael, stole the animal,
                    castrated it and returned it, there are grounds
                    to suspect that the Yisrael told him to do so.
<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 (EH 5:14):</font></b> One may not tell a Nochri
               to castrate a Yisrael's animal. If he took it
               himself and castrated it, it is permitted. If the
               Yisrael schemed (Rema - even if he did not scheme,
               but the Nochri knows him and intends to help him),
               we fine him. He sells it to another Yisrael.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chelkas Mechokek (EH 5:8):</font></b> The Ra'avad is
                    lenient because Rav Papa, who was Basra,
                    answered that Shmuel's father forbade due to
                    Lifnei Iver. He rules like R. Chidka, and there
                    is no source to forbid Amirah l'Nochri. In
                    Choshen Mishpat (338:6), the Shulchan Aruch
                    forbids Amirah l'Nochri.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Shmuel (EH 5:16):</font></b> One should be stringent
                    like those who rule like R. Chidka (and not
                    sell a rooster to a Nochri, for he will
                    castrate it), and also like those who rule
                    unlike R. Chidka (and forbid Amirah l'Nochri
                    for all Isurim).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 296:2):</font></b> Levi may tell a Nochri to
               plant Kil'ai Zera'im for Levi.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (1) and Gra (EH 5:33):</font></b> Why is this
                    different than castration, which one may not
                    tell a Nochri to do? It seems that we permit
                    only in the Nochri's field.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (7):</font></b> We forbid only in the Yisrael's field,
                    just like muzzling is forbidden only with the
                    Yisrael's cow, even if it is for the sake of
                    the Yisrael.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (297 (the latter of this double
               Siman):4):</font></b> One may not give an animal to a Nochri to
               mate it with another species.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Drishah (1):</font></b> The Beis Yosef says that we are
                    stringent about Amirah l'Nochri. I say that the
                    Gemara did not ask about grafting or
                    crossbreeding animals, for it forbids these to
                    Nochrim, like the Rambam in Hilchos Melachim.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishneh l'Melech (Kil'ayim 1:6) and Dagul
                    me'Revavah:</font></b> The Kesef Mishneh (Kil'ayim 1:6)
                    and Shach (3) say that the Rambam does not
                    forbid these to Nochrim. They overlooked
                    Melachim 10:6
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Every Amirah l'Nochri, even for an Isur Lav,
               is forbidden, unless the Nochri acts for his own
               benefit.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (4):</font></b> This implies that it is permitted
                    when the Nochri acts for his benefit, like
                    Hagahos Ashri and the Magid Mishneh. Rashi, the
                    Rosh and the Tur hold that the question was
                    even in this case, and we are stringent. The
                    Rosh says that one may tell a Nochri to do
                    anything the Yisrael could do, e.g. feed
                    Neveilah to the Nochri. If so, he may not tell
                    him to muzzle and thresh the Nochri's grain.
                    The Nimukei Yosef forbids with a Yisrael's cow,
                    even if the Yisrael does not benefit.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mordechai (Shabbos 459):</font></b> One may not tell a
                    Nochri to muzzle the Yisrael's cow and thresh
                    the Nochri's grain, for this benefits the
                    Yisrael: he can ask for more rent, since he
                    allows muzzling.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>AMIRAH L'NOCHRI ON SHABBOS </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer (Shmuel's father):</font></b> This is a ruse. We do not
               let the owners benefit from this; they must sell
               them. (Even though castration is only a Lav, one may
               not ask a Nochri to do it.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection (Rav Papa):</font></b> In Eretz Yisrael, they hold like
          Rav Chidka, who holds that Nochrim are forbidden to
          castrate. If a Yisrael encourages them to do so, he
          transgresses 'Lifnei Iver.'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rava):</font></b> Shmuel's father ruled that the bulls must be sold
          for slaughter.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection (Abaye):</font></b> It suffices that we fine the owner by
          forcing him to sell them.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Obviously, selling it to one's (adult) son is
          (permitted,) like selling it to a stranger.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> May he sell it to his minor son?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1 (Rav Achi):</font></b> No.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> Yes.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	Mereimar and Mar Zutra would exchange their bulls with
          each other (Tosfos - they did not want the Nochrim to
          castrate them. In any case, they did not keep them, lest
          people will suspect them).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DIFFERENT KINDS OF MUZZLING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question #1 (Rami bar Chama):</font></b> May one put a thorn in an
          animal's mouth so it cannot eat (while working)?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection:</font></b> Surely not. That is muzzling!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Correction - Question #1 (Rami bar Chama):</font></b> If an animal
          has a thorn in its mouth and cannot eat, must one remove
          it before working with it?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question #2:</font></b> May one set a lion near the animal, so it
          will be afraid to eat?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> Surely not, that is muzzling!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Correction - Question #2:</font></b> If a lion was near the animal,
          may one work with it? (Tosfos - even if one must remove a
          thorn, this does not show that one may not work with an
          animal that  will not eat due to something not on the
          animal's body.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question #3:</font></b> May one set the animal's child nearby, so it
          will be reluctant to eat? (Some texts - if the animal's
          child is nearby, what is the law?)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question #4:</font></b> May one put a hide over the grain, so the
          animal will not see what it threshes?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (to Question #4 - Beraisa):</font></b> Reuven may deny food
          to his cow in order that it will eat a lot when working
          by Shimon. Reuven may put straw in front of his animal so
          it will not eat from what it threshes.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> There, it eats (straw, at least). If he
          puts a skin over, it will not eat anything.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> The Beraisa means that Reuven may put straw
          in front of his animal before it threshes, so it will not
          eat much when it threshes.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (R. Yonason):</font></b> If Reuven muzzled his animal
          before it started threshing, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Torah forbids muzzling when it threshes. He did
               not do this!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps it is forbidden to thresh with a muzzled
               animal?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (R. Simai):</font></b> (Kohanim may not drink wine)
          'b'Vo'achem.' Does this forbid drinking only while in the
          Mikdash, but permit drinking beforehand?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It says 'u'Lehavdil' (he must be sober to
               distinguish)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rather, the verse teaches that at the time of
               coming, he may not be drunk;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Likewise, at the time of threshing, the animal
                    may not be muzzled!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven muzzled a cow or tied diverse
          species to a wagon and Shimon made them thresh or lead,
          Reuven is exempt and Shimon is liable.
<br>

sjt:
</p><p>
<font><b>3) MUZZLING WITHOUT AN ACTION</b></font><b>
<br>QUESTION:</b> Rebbi Yochanan and Reish Lakish disagree about the law in a case in which one yells at a cow to prevent it from eating but does not do an action, such as muzzling it, to prevent it from eating. <b>RASHI</b> (DH Chasmah b'Kol) explains that their dispute is in a case in which the animal bends down to eat and the owner yells at it and stops it from eating. Rebbi Yochanan considers the movement of the owner's mouth to be an action (and thus it is a 'Lav she'Yesh Bo Ma'aseh'), while Reish Lakish exempts the owner from Malkus because he maintains that yelling is not considered an action.
</p><p>
<b>RAV ELCHANAN WASSERMAN</b> Hy'd (in Kovetz Shemu'os) asks why this act is considered a 'Lav she'Ein Bo Ma'aseh' according to Reish Lakish. The Isur of 'Lo Sachsom' is a prohibition against working with a muzzled animal, and once the owner yells at his animal to stop eating and then uses it to thresh grain, he is working (threshing) with a 'muzzled' animal. The threshing is an action, and thus the owner should be liable for Malkus. (Rav Elchanan Wasserman proves this from the fact that when an owner muzzles his animal and someone else works with the animal while it is muzzled, the second person is the one who transgresses the Isur. It is clear that the prohibition is not on the act of muzzling itself but on working with a muzzled animal. See <b>TOSFOS RID</b> (90a).)
</p><p>
<b>ANSWER:</b> Rav Elchanan Wasserman answers that the Gemara refers to a case in which someone else is threshing with the animal and the owner yells at it and prevents it from eating. Just as one may not work with an animal that is muzzled, one may not muzzle an animal while it is working. (The law that the owner does not transgress the Isur when someone else threshes with the animal refers to a case in which the owner muzzles the animal <i>before</i> the other person works with it. If, however, the owner muzzles his animal <i>while</i> someone else is working with it, he <i>does</i> transgress the Isur.) Accordingly, the owner transgresses the Isur of 'Lo Sachsom' when he merely yells at his animal and thereby prevents it from eating. (See also <b>DARCHEI DAVID</b>.) (I. Alsheich)
</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LASHES FOR MUZZLING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> If Reuven muzzled a threshing cow through
          his voice (he yelled to stop it from eating) or caused
          diverse species to lead a wagon, he is liable;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> He is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan holds that moving one's mouth (to make
               voices) is considered an action. Reish Lakish says
               that it is not.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (R. Yochanan - Mishnah):</font></b> ...We do not say that
          one may make Temurah (say that a Chulin animal should be
          in place of a Korban), rather, if one did, he receives
          forty lashes.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Reish Lakish):</font></b> That is according to R. Yehudah,
          who says that one is lashed even for a Lav without an
          action.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah cannot be R. Yehudah. The Reisha
          says 'anyone can make Temurah, both men and women.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What does 'anyone' come to include?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It includes an heir.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Summation of question:</font></b> This is unlike R. Yehudah. He
               says that an heir cannot make Temurah or do Semichah
               (lean on the neck of the Korban)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The Tana holds like R. Yehudah about lashes, and
          argues with him about heirs.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven muzzled Shimon's cow (which he was
          renting or borrowing) and threshed with it, he is lashed
          and pays four Kavim (the estimated amount it would have
          eaten). For muzzling a donkey, he is lashed and pays
          three Kavim.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> The general rule is, one does not pay and
          receive lashes for one transgression!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> The Beraisa is R. Meir, who says that
          one pays and is lashed.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> The Torah disqualifies an Esnam (a
          harlot's hire) from being a Korban, even if a man hired
          his mother. (Even though he is liable to death for Bi'ah
          with her, so Beis Din cannot make him pay, if he pays, it
          is disqualified. It is called an Esnan because he truly
          owes her. To fulfill his obligation (b'Yedei Shamayim) he
          must pay. Similarly, even though Beis Din cannot make
          Reuven pay (since he is lashed for muzzling), he is
          liable to pay four Kavim. (Some say that if Shimon took
          the money, Beis Din does not make him return it.))
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #3 (Rav Papa):</font></b> From the moment he was Moshech the
          cow (to begin his rental or borrowing), he is obligated
          to feed it. He is not liable for lashes until he threshes
          with it. (Since the obligations come at different times,
          he pays and is lashed.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CROSSBREEDING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Rav Papa:</font></b> Dvei Rav Papa bar Aba asked me if one may knead
          a dough with milk. I answered 'no.' This was correct.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> We may not knead a dough with milk. If
               one did, it is forbidden; lest he eat it with meat;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We may not smear an oven (for baking bread) with
               lard. If one did, the first bread cooked inside is
               forbidden (unless the oven was heated up
               beforehand).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rav Papa:</font></b> Dvei Rav Papa bar Aba asked me if one may put
          diverse species in a pen together. I answered 'no.' This
          was incorrect.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> To kill or lash people for forbidden
               Bi'ah, the witnesses must see them act like
               adulterers. To be liable for crossbreeding animals,
               one must bodily mate the male with the female.
<br>
<br>

sjt:
<font><b>1) HOW MANY LASHES DOES ONE RECEIVE FOR THE TRANSGRESSION OF 'TEMURAH'?</b></font><b>
<br>QUESTION:</b> The Gemara quotes the Mishnah in Temurah (2a) that states that one who makes a statement of Temurah (he attempts to substitute a different animal for an animal that he has sanctified as a Korban) 'receives forty' lashes for transgressing the Isur of Temurah.
</p><p>
Why does the Mishnah say that he receives only one set of forty lashes? One who attempts to exchange a sanctified animal transgresses <i>two</i> Lavim -- the Lav of 'Lo Yamir' and the Lav of 'Lo Yachlifenu' (Vayikra 27:10), and he therefore should be punished with two sets of lashes. (Rishonim)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> in Temurah (2a, DH v'Sofeg) answers that the Mishnah's intention is not to teach how many lashes the transgressor receives, but rather to teach that one who transgresses the Isur of Temurah receives lashes. In truth, the transgressor receives two sets of Malkus.
</p><p>
(b) Tosfos there, in his second answer, suggests that one who transgresses the Isur of Temurah indeed receives only forty lashes. The verse that teaches that there are two Isurim -- 'Lo Yamir' and 'Lo Yachlifenu' -- refers to two separate Isurim that apply in two separate situations. One Isur applies when a person performs Temurah with his own Korban, and the other Isur applies when he performs Temurah with someone else's Korban. In each case, since the person transgresses only one Lav, he receives only forty lashes.
</p><p>
(c) <b>RASHI</b> here writes that one receives Malkus because of the Isur of 'Lo Yachlifenu.' Rashi implies that the transgressor receives only one set of Malkus (see <b>AFIKEI YAM</b> 1:25). In Temurah, however, Rashi (2a, DH v'Sofeg) says that one receives Malkus for the Isur of 'Lo Yamir.' Rashi there does not mention the Isur of 'Lo Yachlifenu,' which he mentions here. Another difficulty is that it seems more appropriate for Rashi to mention the Isur of 'Lo Yachlifenu' since these words are the beginning of the verse that teaches the Isur of Temurah. How can the words of Rashi in both places be reconciled?
</p><p>
1. Rashi in Temurah quotes the words 'Lo Yamir' because the Mishnah there begins with the words 'ha'Kol Mamirin,' and Rashi wants to explain why the Isur is called 'Temurah.' Here, however, Rashi quotes the words 'Lo Yachlifenu' because that is the first Isur in the verse. (Alternatively, Rashi here quotes 'Lo Yachlifenu' because that Isur is more encompassing in that it applies both to one who makes Temurah with his own animal and to one who makes Temurah with someone else's animal. The Isur of 'Lo Yamir,' on the other hand, refers only to one who makes Temurah with his own animal, as the Gemara in Temurah (9a) states.) (M. Kornfeld)
</p><p>
2. The <b>OTZAR CHAIM</b> (Rav Chaim Broyde) suggests a brilliant answer to reconcile the words of Rashi. The Mishnah in Temurah there says, 'All are liable for Temurah -- both men and women.' The Gemara there says that women are included because of the extra word 'Yamir' in the verse, 'v'Im Hamer Yamir' (Vayikra 27:10). Accordingly, even if a man transgresses <i>two</i> Isurim when he makes a Temurah, a woman transgresses only <i>one</i> Isur, the Isur of 'Lo Yamir.' Since the primary Chidush of the Mishnah in Temurah is that women are also liable for Temurah, Rashi there quotes the Isur of 'Lo Yamir,' which applies to women.
</p><p>


<font><b>2) TWO PUNISHMENTS FOR ONE ACT OF MUZZLING</b></font><b>
<br>QUESTION:</b> The Gemara quotes a Beraisa which states that a person who muzzles someone else's animal while he works with it is punished with Malkus and also must pay to the animal's owner the amount that it eats in one day while threshing (four Kavin for a cow, three Kavin for a donkey). The Gemara questions the Beraisa from the principle that a person is not given two punishments (Malkus and an obligation to pay) for one act. Abaye answers that the Tana of the Beraisa is Rebbi Meir who maintains that when a person is liable to receive Malkus, he also can incur a monetary punishment.
</p><p>
The Rishonim ask that Rebbi Meir says this only with regard to a person who performs one act with which he transgresses two <i>different</i> Isurim, one of which obligates him to pay and one of which obligates him to receive Malkus. This position of Rebbi Meir is found in Makos (4a), where the Gemara discusses a case in which witnesses testify that one person owes another person 200 Zuz and then the witnesses are found to be Zomemin. Rebbi Meir rules that they receive Malkus because of the Isur of 'Lo Sa'aneh' (Shemos 20:13) and they must pay the intended victim because of 'va'Asisem Lo Ka'asher Zamam La'asos' (Devarim 19:19). In the case of the Beraisa, however, the person receives Malkus because he transgressed the Isur of 'Lo Sachsom,' and the same Isur of 'Lo Sachsom' obligates him to pay. How, then, can the Gemara explain the Beraisa based on Rebbi Meir's position? (<b>TOSFOS</b> to Makos 4a, DH Lokin, and Kesuvos 32b, DH she'Lo, and other Rishonim)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAN</b> and <b>RITVA</b> here, and the <b>CHIDUSHEI HA'RE'AH</b> in Kesuvos, answer that in the case of the muzzled animal the two punishments also result from two separate Isurim. The person who muzzles the animal receives Malkus because of the Isur of 'Lo Sachsom' (Devarim 25:4), while the reason he must pay the owner of the animal is that he 'stole' food from the owner by not letting his animal eat what it was entitled to eat. Thus, his obligation to pay results from the obligation of 'v'Heishiv Es ha'Gezeilah Asher Gazal' (Vayikra 5:23).
</p><p>
The Ritva in Kesuvos (32b, DH she'Lo), however, rejects this answer. He contends that since there would be no Gezeilah in this case if not for the Isur of 'Lo Sachsom,' the two punishments cannot be considered to come from two different sources.
</p><p>
The <b>DEVAR YAKOV</b> suggests that this dispute among the Rishonim is based on their different ways of understanding the nature of the Socher's obligation. According to one way of understanding, the Socher's obligation to pay results from the fact that he is considered to have failed to fulfill his obligation to the owner. Since the Socher knows that the Torah forbids him from muzzling the animal that he rents, it is considered as though the owner rented the animal to the Socher on condition that the Socher feed it. Hence, his failure to feed it is a violation of that agreement. A second way of understanding is that the Socher's obligation to pay takes effect because once the Torah prohibits the muzzling of an animal, when the Socher muzzles it he is considered as though he has caused the owner a loss. (See <b>CHAZON ISH</b>, Likutim to Choshen Mishpat, #20; <b>KEHILOS YAKOV</b> to Bava Kama #13; and <b>SHI'UREI REBBI SHMUEL ROZOVSKY</b>, Makos #121.)
</p><p>
Perhaps the Ramban and the Ritva here follow the first approach, that the obligation to pay is a result of an unspoken stipulation between the owner and the Socher. Accordingly, the obligation to pay is not related at all to the Isur of 'Lo Sachsom,' but rather falls into the general category of Gezeilah, as it is merely a compensation for the Socher's failure to fulfill his commitment. The Ritva in Kesuvos, on the other hand, may take the second approach, that the obligation to pay is a direct result of the Isur of 'Lo Sachsom,' for by transgressing that Isur the Socher caused a loss to the owner of the animal. Hence, the obligation to pay is not because of Gezeilah but because of the Isur of 'Lo Sachsom,' the same Isur for which he receives Malkus.
</p><p>
(b) The <b>RITVA</b> in Kesuvos (32b) gives a different answer. He says that Rebbi Meir actually maintains, in general, that a person can incur two punishments for one transgression. It is only with regard to Edim Zomemin that Rebbi Meir requires that the two punishments come from two different sources. This is because the verse 'va'Asisem Lo Ka'asher Zamam La'asos' (Devarim 19:19) implies that the <i>only</i> punishment that may be given to Edim Zomemin is the punishment which they attempted to inflict upon the victim (in this case, an obligation of monetary payment). They may not be punished with Malkus because the Torah specifically dictates that they should receive only the punishment they attempted to inflict upon their intended victim. Therefore, an additional Isur (i.e. 'Lo Sa'aneh') is necessary to make them liable for Malkus. In contrast, in the case of a person who muzzles an animal there is no indication in the verse that he may not be given more than one punishment. Therefore, the single Isur of 'Lo Sachsom' can cause him to be punished with both Malkus and an obligation to pay. (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DAIRY OR MEATY BREAD</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 Papa:</font></b> Dvei Rav Papa bar Aba asked me whether one
               may knead a dough with milk. I answered 'no.' This
               was correct.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> We may not knead a dough with milk.
                    If one did, it is forbidden; lest he eat it
                    with meat;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> We may not smear an oven (for baking bread)
                    with lard. If one did, the first bread baked
                    inside is forbidden (unless the oven was heated
                    up beforehand).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Pesachim 30a:</font></b> An oven was smeared with lard. Rabah
               bar Ahilai forbade all bread that will ever be baked
               in it, even to eat it with salt, lest it be eaten
               with Kutach (a common dairy dip).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Beraisa):</font></b> We may not knead a dough with
               milk. If this was done, all the bread is forbidden,
               lest it be eaten with meat. Similarly, we may not
               smear an oven with fat of the tail (and bake bread).
               If this was done, all the bread is forbidden, unless
               the oven was Husak (heated up) before this.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Inference:</font></b> If the oven was Husak, the bread is
                    permitted!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 36a - R. Yehoshua (to his children):</font></b> Do not knead
               for me with milk on the first day (of Pesach).
               Afterwards, you may do so.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> The Beraisa forbids this!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, he allowed kneading with honey
               after the first day.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #2:</font></b> Really, he allowed kneading with milk
               after the first day. Ravina permits like an ox's
               eye. R. Yehoshua permitted like this.
<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 (Chulin 38a and 8:21):</font></b> We may not knead
               a dough with milk. If this was done, all the bread
               is forbidden, lest it be eaten with meat. Similarly,
               we may not smear an oven with fat of the tail. If
               this was done, all the bread baked until the oven
               was Husak is forbidden. We conclude that if he did
               it different than usual, e.g. like an ox' eye. It is
               permitted.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> Rashi explains that he made only a small
               amount, like an ox' eye.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Ma'achalos Asuros 9:22):</font></b> We may not
               knead a dough with milk. If this was done, all the
               bread is forbidden, lest it be eaten with meat. We
               may not smear an oven with fat of the tail. If this
               was done, all the bread baked until the oven was
               Husak is forbidden, lest it be eaten with meat. If
               he made the bread in a different form that is
               recognizable, so he will not eat it with meat or
               milk, it is permitted.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri (Avodah Zarah 5:8):</font></b> L'Chatchilah,
                    we are concerned for smell. Therefore, if bread
                    was baked with roasting meat, one may not eat
                    it with Kutach. Since it can be eaten without
                    Kutach, this is l'Chatchilah. B'Di'eved, it is
                    permitted. Even though we are concerned for
                    smell, one may bake in our ovens, which are
                    covered above, meat pies with bread. Our ovens
                    are big. However, if lard flowed from the meat
                    pie and was absorbed in the oven, even if the
                    bread is far from the meat pie, one may not eat
                    it even with salt. Therefore, it is good to be
                    careful not to bake any meat pies with bread in
                    an oven, lest the fat drip and he will be
                    unaware. Rather, he bakes the meat pie, fires
                    the oven and (then) bakes bread.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 97:1):</font></b> We may not knead a dough
               with milk, lest it be eaten with meat. If this was
               done, all the bread is forbidden, even to eat it by
               itself. If it was a small amount that is eaten at
               once, or he changed its form so it is recognizable
               and he will not eat it with meat, it is permitted.
               Similarly, we may not bake bread in an oven with fat
               of the tail. If this was done, it is like bread
               kneaded with milk.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Ein):</font></b> Rabah totally forbade the
                    bread baked in the oven smeared with lard only
                    with salt. It says that he forbade it with
                    salt, for in those days the bread had no salt,
                    and had no taste at all without salt. The
                    Rashba permits if he changed the form of the
                    bread and made small loaves like an ox's eye,
                    for one sees that it is different and will ask,
                    and they will tell him. Sha'arei Dura (60:2)
                    says this and each other Perush (the loaves are
                    shaped like an ox's eye) are true according to
                    the Halachah. He also permits l'Chatchilah
                    baking loaves for Lechem Mishneh for Shabbos
                    with meat pies. Since it is a small amount and
                    it is eaten quickly on Shabbos, it is like an
                    ox' eye.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz (1):</font></b> From here it seems that if a mortar
                    used to pound spices that are used with meat or
                    milk, and once it was used to pound garlic with
                    duck sauce, one may not use the mortar any
                    more, even for spices to be used with meat.
                    This is unlike 96:3, which forbids spices
                    pounded in a meat mortar to be used with milk,
                    but permits with meat. There, the mortar is
                    special for meat, and one will not err.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>Pri Chodosh (1, cited in Machatzis ha'Shekel):
                    We are concerned only for Stam bread, which is
                    normally eaten with meat or milk. One does not
                    designate bread for either. Therefore, we
                    decree lest he eat it with meat. Other things,
                    such as a mortar, are normally designated for
                    meat or milk. Even if initially it was (Pareve)
                    just for spices, once he designates it for
                    meat, he will be careful with it. We may not
                    invent new decrees.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Machatzis ha'Shekel:</font></b> In our land, no one
                    designates a mortar for meat or milk, so the
                    Shulchan Aruch's law applies like the Taz says.
                    If loaves for Lechem Mishneh for Shabbos were
                    kneaded with meat, we permit them with meat. We
                    do not decree lest he eat them with milk, for
                    they are normally eaten with meat on Shabbos.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b></b> R. Akiva Eiger (2, citing Minchas Yakov 60:2):
                    The Maharit says that we forbid only if there
                    is concern lest he eat it with meat, but if the
                    only concern is lest he eat it after meat or
                    cheese, we are not so stringent.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Rema:</font></b> Therefore, our custom is to knead bread with
               milk on Shavuos, and also with lard for Kavod
               Shabbos, for this is considered a small amount.
               Also, it is shaped different than other bread. All
               the more so, (cheese) blintzes and meat pie are
               permitted. One may not bake any bread with blintzes
               or meat pie, lest some of the fat drip onto the
               bread. If one baked (them together) and the fat
               dripped under it, it is as if it was kneaded with
               it. Our custom is to put the meat pie in the opening
               of the oven. Even if it is a frying pan, we are
               stringent l'Chatchilah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (2):</font></b> This is not if the fat is seen under
                    the bread. Rather, it spread from (under) the
                    meat pie. Hagahos Ashri connotes like this.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bach (3):</font></b> The Rema is stringent only when the
                    fat dripped under the bread. He did not
                    understand Hagahos Ashri. Really, in a small
                    oven we forbid even if a pan is underneath (to
                    collect any fat that drips, and without a pan
                    we forbid even in a big oven if there is
                    concern lest fat drip. In our big ovens it is
                    Asur l'Chatchilah, but permitted b'Di'eved.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (2):</font></b> L'Chatchilah one may not bake bread
                    with blintzes or meat pie, even if the oven is
                    wide and not slanted, lest the fat drip onto
                    the bread. B'Di'eved, we do not assume that it
                    dripped, unless the oven is slanted or the
                    bread is above the meat pie. If we see that fat
                    flowed from the meat pie, even if it did not
                    flow under the bread, the bread is forbidden
                    even b'Di'eved. Hagahos Ashri, Sha'arei Dura
                    and Isur v'Heter all say so. I say that it is
                    because we are unsure whether or not cooking
                    spreads (the contents) throughout the entire
                    Kli, therefore is we do not know whether or not
                    fat flowed, it is a Sefek Sefekah and we are
                    lenient. If the oven is slanted or we see that
                    fat flowed, there is only one Safek. Hagahos
                    Isur v'Heter says in the name of Or Zaru'a that
                    if we did not see fat flow, (even if the oven
                    is slanted) there is a Sefek Sefekah, for even
                    if fat flowed, perhaps he will not eat the
                    bread with milk. The Rema disagrees, for people
                    regularly eat bread with all foods, so this is
                    not considered a Safek. If so, the Rema forbids
                    when fat flows under <i>it</i>, i.e. the meat pie,
                    even if it is far from the bread. He says so in
                    Toras ha'Chatas. The Bach did not look into
                    Toras ha'Chatas, therefore he misunderstood the
                    Rema.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Taz (3):</font></b> A woman baked cheese blintzes in an
                    oven on its floor, without a Kli, then put a
                    boiling pot of meat in the same place. I
                    permitted. The earthenware of the oven that
                    absorbed from the cheese is no worse than a pot
                    in which milk is cooking that touched a meat
                    pot. Two pots that touched each other are
                    permitted, like the Poskim and Rema (92:8) say.
                    We are stringent about a frying pan only
                    l'Chatchilah.
<br>

<p>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Achdevoy bar Ami - Beraisa):</font></b> Had it said
          only 'Behemtecha Lo Sarvi'a', one might have thought that
          the Torah forbids holding a (female) animal when it mates
          (even with a male of the same species). The verse adds
          'Kilayim' (to teach that the Isur applies only to diverse
          species).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This teaches that one is liable for
               Kilayim just for holding the female!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> No. 'Holding' (in the Beraisa) is a polite way of
          saying 'bodily mating (a male with a female)'.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> Within one species, one may bodily mate a
          male with a female. We are not concerned lest this arouse
          his lust.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> He is occupied with his job.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rav Achdevoy bar Ami - Beraisa):</font></b> Had it said
          only 'Behemtecha Lo Sarvi'a', one might have thought that
          the Torah forbids holding a (female) animal when it mates
          (even with a male of the same species). The verse adds
          'Kilayim'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This forbids holding the female
               regarding Kilayim, but it is permitted within one
               species;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Within one species, only holding the female is
                    permitted!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> No. 'Holding' is a polite way of saying 'bodily
          mating'.
<br>
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (d'Vei Ravna Nechemyah Reish Galusa):</font></b> May one
          put a species in a pen with its own and a different
          species?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we assume that it will mate with its own species?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, are we concerned lest it mate with the other
               species?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rav Ashi:</font></b> I told him that this is forbidden. This is not
          the Halachah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> I was stringent (for him), lest his slaves come to
               lewdness.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>HOW MUCH MUST AN EMPLOYEE WORK IN ORDER TO EAT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a worker was working only with his hands,
          or only with his legs, even just with his shoulders, he
          eats;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yosi b'Rebbi Yehudah says, he eats only if he works
          with his hands and legs.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is (Chachamim's) reason?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> 'Ki Savo b'Cherem Re'echa' - whatever work you do
          there.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah - R. Yosi b'Rebbi Yehudah):</font></b> He eats only if he
          works with his hands and legs.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is R. Yosi's reason?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> He learns from an ox. An ox eats only when it
          works with its hands (forelegs) and (hind) legs. The same
          applies to a person.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rabah bar Rav Huna):</font></b> According to R. Yosi
          b'Rebbi Yehudah, if a chicken threshes, may one muzzle
          it?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since it works with its full strength, he must let
               it eat;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps one must let an animal eat only when it
               works with four limbs?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This question is not resolved.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHICH TYPES OF FOODS MAY AN EMPLOYEE EAT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> Workers (to stomp grapes) who did not yet
          traverse the length and width of the winery may eat
          grapes, but may not drink wine (they are working with
          grapes, but they have not yet made wine);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> After traversing the length and width of the winery,
               they may eat grapes and drink wine.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven was working with dates, he may not
          eat grapes, and vice-versa;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	A worker may withhold from eating until he reaches the
          place of good Peros;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Letter of the law, workers may eat only while working. To
          reduce the time they are idle from work, Chachamim
          permitted them to eat while walking from row to row or
          returning from the winepress;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A donkey may eat while they unload it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> If Reuven is working on one vine, may
          he eat from another vine?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If we require only that he eat from the same species
               that he harvests for the owner, he may eat;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps he may eat only from what he is
               harvesting?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If he may eat only from the vine he works
               on, how can an ox eat while working with attached
               Peros? (Rashi - the workers harvest vines near the
               wagon it pulls. Its head is far ahead, near
               different vines! Tosfos - when threshing attached
               Peros, it cannot eat from the stalk it threshes!)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rav Shisha brei d'Rav Idi):</font></b> It may eat from
               a very long vine or stalk (that stretches to where
               its head is).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Mishnah):</font></b> If Reuven was working with dates, he
          may not eat grapes.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Dates and grapes are different species on
               separate trees. In a corresponding case of the same
               species (dates and dates) on separate trees, he may
               eat!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection (Rav Shisha brei d'Rav Idi):</font></b> No. The date
          branches are draped over the vines (or vice-versa); it is
          like eating from the same tree. (We may infer only that
          he may eat dates of the same tree, which is no Chidush.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Mishnah):</font></b> A worker may refrain from eating
          until he reaches a place of good Peros.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one may eat from a different vine than the one he
               is working on, he may immediately eat from the good
               Peros!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, he must wait until he gets there so he
          does not detract time from his work.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Clarification:</font></b> This is obvious! The question was, may his
          wife or children bring him from other vines? (He would
          not detract from his work.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #3 (Mishnah):</font></b> Letter of the law, workers may eat
          only while working. To reduce the time they are idle from
          work, Chachamim permitted them to eat while walking from
          row to row or returning from the winepress.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 - Suggestion:</font></b> Walking is like working (on
               the vine he approaches), and even so, mid'Oraisa he
               may not eat (for one may eat only from the vine he
               is working on, and he is not there yet). He eats
               only due to the enactment.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection:</font></b> Walking is not like working, therefore,
          mid'Oraisa he may not eat. However, when working, he may
          eat even from vines that he is not working on.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #2 - Suggestion:</font></b> Walking is like not like
               working, therefore, mid'Oraisa he may not eat. If it
               were like working, he would be entitled to eat (even
               though he is not working on this (or any other) vine
               now!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Rejection:</font></b> Walking is like working. Even so, mid'Oraisa
          he may not eat, because a worker may eat only from the
          vine he is working on.
<br>

<p>

sjt:
</p><p>
<font><b>3) HALACHAH: WHICH FRUIT MAY A WORKER EAT</b></font><b>
<br>OPINIONS:</b> The Gemara asks whether a hired laborer may eat the grapes of one vine while he works with a different vine (such as when the grapes which he eats are of a higher quality than the grapes on the vine with which he is working). The Gemara attempts to determine the Halachah from several sources, but the Gemara refutes all of its attempted proofs and does not come to any conclusion. What is the Halachah?
</p><p>
(a) The <b>RAMBAM</b> (Hilchos Sechirus 12:10) rules that a laborer may <i>not</i> eat the grapes of a vine with which he is not working.
</p><p>
The <b>LECHEM MISHNEH</b> asks why the Rambam does not mention that if the laborer <i>does</i> eat from a different vine, he does not have to pay for what he eats. In all other places where the Gemara does not resolve such a question, the Rambam rules that if the person takes the item that is in doubt, the owner may not take it from him ('Im Tafas, Lo Mafkinan Minei').
</p><p>
(b) The <b>ROSH</b> (7:10) rules that out of doubt (mi'Safek) the laborer may not eat from another vine, and he adds that if the laborer does eat from another vine, the owner cannot make him pay for it because of the same Safek. This is also the ruling of the <b>TUR</b> and <b>SHULCHAN ARUCH</b> (CM 337:10).
</p><p>
The Acharonim ask that the Rosh's ruling here contradicts his usual position. In general, the Rosh rules that in any case where the Halachah itself is in doubt (as opposed to a case in which the Halachah is known but there is a doubt about what happened), if one unlawfully took that which, mi'Safek, he was not supposed to take ('Tefisah'), then he <i>is</i> obligated to give it back (or pay for it).
</p><p>
1. The <b>SHACH</b> (in <b>TAKFO KOHEN</b>, cited by the <b>KUNTRUS HA'SEFEIKOS</b> 4:8) presents a novel approach to answer this question. The Shach explains that the Rosh rules <i>only</i> with regard to a Kenas (penalty) that 'Tefisah' does not work when the Halachah is in doubt. In contrast, in a case of monetary law (when there is a doubt as to whether a person is entitled to a certain amount of money), 'Tefisah' <i>does</i> work. When there is a doubt in Halachah about a Kenas, 'Tefisah' does not work because even if the Halachah was known Beis Din would not have the power to force the person to pay, since today there is no Beis Din that has Semichah and thus no one is empowered to collect a Kenas. In cases of ordinary monetary claims, however, Beis Din today <i>does</i> have the power to collect money, and thus if the person seizes the item or the money he is entitled to keep it. Here, too, the Halachah that is in doubt does not pertain to a Kenas but to the monetary right of the laborer to eat the grapes. Therefore, if the laborer eats the grapes his act is considered a 'Tefisah' for which he is not required to pay.
</p><p>
2. The <b>KUNTRUS HA'SEFEIKOS</b> (4:13) and the <b>NESIVOS HA'MISHPAT</b> (#28, Klalei Tefisah 4) answer that the doubt about whether the laborer may eat grapes from a different vine is not a doubt about whether those fruits belong to him. The fruits certainly belong to the owner of the field. The doubt is whether the laborer has permission to eat them. (The Gemara (92b) concludes that 'mi'Shel Shamayim Hu Ochel,' the laborer merely has the right to eat the fruits but does not gain actual ownership over them.) Accordingly, when the laborer does eat grapes from a different vine, the Safek in Halachah is only a question of whether the laborer is obligated to pay. With regard to this Safek, the laborer is considered 'Muchzak' since he is in possession of his own money, and Beis Din does not collect from someone who is 'Muchzak' when the Halachah is in doubt. Thus, the Rosh's ruling here does not contradict his position elsewhere, because the case of a laborer who eats from a different vine is not a case of 'Tefisah' at all, since the Safek applies not to the grapes themselves but rather to the money which the laborer would be required to pay. (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>AN ANIMAL MAY EAT FROM THE LOAD IT CARRIES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One must let a donkey eat while they unload
          it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> (They unload it at once.) What does it eat?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, one must let a donkey eat until they
          unload it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> One must let a donkey or camel eat from
               the load it carries.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HOW MUCH MAY AN EMPLOYEE EAT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A worker may eat even a Dinar's worth of
          gourds or dates;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Eliezer Chisma says, a worker may not eat more than
          his wages;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Chachamim permit this, but we teach a person not to be
          gluttonous, for then no one will hire him.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Chachamim agree with the first Tana!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> They argue about whether or not we teach
          people not to be gluttonous. The first Tana holds that we
          do not.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> They argue about Rav Asi's law;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Asi):</font></b> Even if a worker was hired to harvest
               only one cluster, he may eat it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Asi):</font></b> Even if a worker harvested only one
               cluster, he may eat it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rav Asi needed to teach both laws.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Had he taught only the first law, one might
                    have thought that since nothing will remain for
                    the owner, he may eat, but when he will (later)
                    harvest for the owner, he must harvest before
                    eating;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Had he taught only the second law, one might
                    have thought that there he may eat for he will
                    later harvest for the owner, but if the owner
                    will be left with nothing, he may not eat.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Version #1 (Rashi):</font></b> The first Tana agrees with Rav
               Asi. He may eat the gourds or dates, even if he will
               not harvest for the owner. Chachamim argue. They
               permit eating more than his wage, but not all that
               he harvests.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Version #2 (Ritva):</font></b> The first Tana argues with Rav
               Asi. His Chidush is only that he may eat a Dinar's
               worth. Chachamim agree with Rav Asi. They permit
               eating more than his wage, but not all that he
               harvests.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #3:</font></b> They argue about Rav's law.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> In a hidden scroll (even before Chachamim
               permitted writing oral Torah, one was allowed to
               write reminders for himself), Isi ben Yehudah says
               'Ki Savo b'Cherem Re'echa' permits anyone (not only
               a worker) to eat.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav:</font></b> This does not allow any (farmer) to survive!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion (Rav Kahana):</font></b> Perhaps Isi permits only
               one who (was not hired, but) works in the land the
               value of what he eats!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> If so, why did Rav object to the law?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> One prefers to choose workers to harvest his
               land.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Version #1 (Rashi):</font></b> The first Tana argues with Isi.
               He permits (only) a worker to eat. Chachamim agree
               with Isi. They say 'we teach a person (even not a
               worker) that it is not advisable to be gluttonous!'
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Version #2 (R. Chananel, in Shitah Mekubetzes):</font></b> The
               first Tana agrees with Isi (like Rav Kahana
               explained). One who works is called a worker, even
               if he was not hired. Chachamim argue with Rav. They
               permit eating more than one's wage. This implies
               that he was hired.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DOES A WORKER OWN WHAT HE EATS?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Does a worker own what he eats? Or perhaps he
          does not own it, just the Torah permits him to eat?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What difference does it make?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> This determines whether or not he may give
               what he is entitled to eat to his family;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he owns what he eats, he may give them;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If the Torah merely allows him to eat, it did
                    not allow others.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Mishnah):</font></b> A worker may eat even a Dinar's
          worth of Kishus.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he owns what he eats, we cannot say that he was
               hired for a sixth of a Dinar, and he eats (and owns)
               a Dinar's worth!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> Even if we say that the Torah merely allows
          him, this is astounding!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We must say that indeed the Torah entitles him. We
               can equally say that it entitles him to own what he
               eats!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Mishnah - R. Eliezer Chisma):</font></b> A worker may not
          eat more than his wages;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim permit this.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> R. Eliezer holds that he owns what he
               eats, and Chachamim say that the Torah merely allows
               him to eat.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, they do not argue about that. All agree
          that if not for 'k'Nafshecha', he could eat more than his
          wages;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Eliezer expounds 'k'Nafshecha' - he may eat as
               much as his wages, for which he risks his Nefesh;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim expound 'k'Nafshecha' - your worker is
               like yourself. If you muzzle him, you are exempt.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3 (Beraisa):</font></b> If a Nazir was harvesting grapes,
          and he said 'let my family eat what I am entitled to',
          they may not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he owns what he eats, he may give them!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> This is a decree to dissuade a Nazir from
          harvesting grapes. Nezirim should stay far from
          vineyards.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #4 (Beraisa):</font></b> If a worker said 'let my family eat
          what I am entitled to', they may not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he owns what he eats, he may give them!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> That refers to a Nazir.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> The other Beraisa discusses a Nazir!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> They are different Beraisos, so they may
               teach the same law.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #5 (Beraisa):</font></b> If a worker said 'let my family eat
          what I am entitled to', they may not, for it says 'v'El
          Kelyecha Lo Siten'.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps it refers to a Nazir.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa attributes the law to 'v'El
          Kelyecha Lo Siten', not because a Nazir should avoid
          vineyards!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, it is because a Nazir should avoid
          vineyards;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since the Beraisa calls him a worker, it cites the
               verse of a worker, but this is not the true source.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #6 (Mishnah):</font></b> If Reuven was hired to set figs to
          dry, he may eat without tithing. (The final processing
          for Ma'aser was not done, so the Torah lets him eat, and
          this is not a sale);
<br>
<br>

sjt:
<font><b>1) A DONKEY'S RIGHT TO EAT</b></font><b>
<br>QUESTION:</b> The Mishnah (91b) teaches that a donkey may eat from the food it is carrying while the food is being unloaded. The Gemara asks, 'While the food is being unloaded from its back, from where is it supposed to eat?' The Gemara explains that the donkey may eat from the food as long as it is carrying it.
</p><p>
What exactly does the Gemara mean by its question, 'While the food is being unloaded from its back, from where is it supposed to eat?' Why does the Gemara not interpret the Mishnah in the simplest way -- that the animal may eat the produce <i>while</i> it is being removed from its back?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> explains that the load on a donkey is removed all at once and then taken away, and thus there is nothing from which the donkey can eat at the moment that it is unloaded.
</p><p>
(b) The <b>RA'AVAD</b> (cited by the Shitah Mekubetzes) and the <b>RITVA</b> explain that the Gemara is asking <i>why</i> the donkey is permitted to eat the produce while the produce is being unloaded from its back. At that moment, the donkey has finished transporting it and is no longer doing any work with the produce.
</p><p>
The Ra'avad and Ritva question this explanation based on the Halachah that a hired laborer may eat from the fruit of the field even when he is returning from the press and when he is walking from one job to another (91b). It should be permitted for a donkey to eat the produce that it has finished carrying before another batch is loaded on its back.
</p><p>
1. The Ra'avad answers that the Gemara is asking that the donkey should not be permitted to eat after it has finished working with (i.e. transporting) the produce, because the reason one must let the donkey eat is to prevent the owner of the donkey from incurring a loss. Here, allowing the donkey to eat will cause Bitul Melachah, which will also cause the owner a loss. The Gemara therefore concludes that the donkey may not eat after it has finished working, but while it is still carrying the load it may eat, since there will be no Bitul Melachah.
</p><p>
2. The Ra'avad offers another answer as well. He explains that when the Mishnah permits a hired laborer to eat from the fruit of the field on his way back from the press (even though he has finished working), it does not mean that he may take grapes from the press. He has finished working with those grapes and he may no longer eat them. (For those grapes, it is no longer 'b'Disho,' 'during the threshing' (Devarim 25:4), but rather it is '<i>after</i> the threshing.') Rather, the Mishnah means that the laborer may eat grapes, which have not been harvested yet, which he passes on his way out of the field. Although he has not worked with these grapes yet, since he is <i>going</i> to be working with them and harvesting them he is permitted to eat them. The produce that the donkey has finished transporting, however, is similar to the grapes from the press, since its work with that produce is finished. Therefore, the donkey may not eat the produce that it has finished transporting.
</p><p>
3. The Ran answers that the difference between a hired laborer who has finished working and a donkey that has finished working is that if a hired laborer eats fruit while walking from one job to the next, he will be embarrassed to eat more from the second field and will not eat more while he is working. An animal, though, has no sense of shame, and thus even if it eats from the produce that it has finished transporting, it will eat more from the next batch of produce that it transports.
</p><p>
4. The Ritva answers that a laborer is given a special right to eat while he is returning from the press and while he is walking from one job to the next, whereas an animal is not given this right. If a laborer would be allowed to eat only during the time that he works, he would have to take off time from his work to eat, which would cause Bitul Melachah. Therefore, it is preferable to allow him to eat while he is walking from one job to the next, before he begins his next task. An animal, however, does not take off time to eat while it is working or carrying a load, and there would be no Bitul Melachah. Therefore, an animal is permitted to eat only while it is working and not after it has finished working. (I. Alsheich)
</p><p>


<font><b>2) WITHHOLDING GOOD ADVICE</b></font><b>
<br>QUESTION:</b> The Tana Kama in the Mishnah states that a hired laborer may eat fruit with which he is working even if it is worth a Dinar. Rebbi Elazar Chasma says that a laborer may not eat more than the value of his wages. The Chachamim permit him to eat more than the value of his wages. The Gemara asks that the Chachamim seem to say the same thing as the Tana Kama. The Gemara answers that they differ with regard to whether the laborer should be instructed not to eat more than the value of his wages. The Chachamim maintain that he should be given such advice, while the Tana Kama disagrees.
</p><p>
Why, according to the Tana Kama, should the laborer not be advised against gluttony? After all, it is for his own benefit to give him such advice.
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RABEINU YEHONASAN</b> (cited by the Shitah Mekubetzes) writes that one may not advise the laborer to limit the quantity that he eats because the Torah itself does not limit the quantity that he may eat. The Tana Kama maintains that there are no grounds to take away from him that which the Torah gives to him.
</p><p>
The <b>YAD DAVID</b> concurs with the approach of Rabeinu Yehonasan. He adds an explanation as follows. All of the commandments of Hash-m are upright (see Tehilim 19:9). If people would instruct the laborer not to eat so much, their advice would imply that Hashem's Torah is lacking and that this Mitzvah is not correct, for the Torah gives the laborer permission to eat more than his wages are worth. The Chachamim who disagree with the Tana Kama are not concerned about this, because they understand that when the Torah gives a laborer the right to eat as much as he wants, it is addressing the person's Yetzer ha'Ra, as the Torah indeed does on occasion (see Kidushin 21b). It is the laborer's choice to take advantage of his right to eat as much as he wants or to conquer his Yetzer ha'Ra and to limit what he eats.
</p><p>
(b) The <b>CHIDUSHEI HA'RITVA YESHANOS</b> writes that the Tana Kama and the Chachamim are not arguing. The Tana Kama agrees that one is permitted to instruct the laborer not to eat so much. The difference between the Tana Kama and the Chachamim is not a difference in Halachah; the difference is only that the Tana Kama does not mention that the laborer should be given advice, while the Chachamim specify explicitly that the laborer should be instructed not to eat so much.
</p><p>
(c) Perhaps the Chachamim maintain that there is an obligation to instruct the laborer not to be gluttonous, while the Tana Kama maintains that it is permissible, but not obligated, to instruct him not to be gluttonous. (This is the way the <b>DEVAR YAKOV</b> understands the view of the <b>ROSH</b>.) (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>HOW MUCH MAY A WORKER EAT?</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> A worker may eat a gourd or date, even if
               it is worth a Dinar;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Eliezer Chisma says, a worker may not eat more
               than his wages;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim permit this, but we teach a person not to
               be gluttonous, for then no one will hire him.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Chachamim agree with the first Tana!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #1:</font></b> They argue about whether or not we teach
               people not to be gluttonous. The first Tana holds
               that we do not.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2:</font></b> They argue about Rav Asi's law;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Asi):</font></b> Even if a worker was hired to
                    harvest only one cluster, he may eat it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Rav Asi):</font></b> Even if a worker harvested only one
                    cluster, he may eat it.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> Had Rav Asi taught only the first law, one might
               have thought that since nothing will remain for the
               owner, he may eat, but when he will (later) harvest
               for the owner, he must harvest before eating. Had he
               taught only the second law, one might have thought
               that there he may eat for he will later harvest for
               the owner, but if the owner will be left with
               nothing, he may not eat.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #3:</font></b> They argue about Rav's law.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav):</font></b> In a hidden scroll, Isi ben Yehudah says
                    'Ki Savo b'Cherem Re'echa' permits anyone (not
                    only a worker) to eat.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Rav:</font></b> This does not allow anyone (i.e. farmers) to
               survive!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Rav Ashi:</font></b> I said this in front of Rav Kahana.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps Isi permits only one who (was
               not hired, but) works in the land the value of what
               he eats!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Question:</font></b> If so, why did Rav object to the law?
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Answer:</font></b> One prefers to choose workers to harvest his
               land.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif brings the Mishnah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Masnisin):</font></b> The Torah
                    authorized a worker to eat to satiation, even
                    if it is more than his wage.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 12:11):</font></b> A worker may eat
               gourd or date, even if it is worth a Dinar, even if
               he was hired only for a sixth of a Dinar. However,
               we teach a person not to be gluttonous, for then no
               one will hire him.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (7:11):</font></b> Chachamim say that we teach one not to
               be gluttonous, unlike the first Tana. The Halachah
               follows Chachamim. We find many Stam Mishnayos that
               are the opinion of an individual. We say that a Stam
               Mishnah is R. Meir. 'Chachamim' connotes many.
               Further, their reasoning is sound. We should teach
               one what is good for him! Alternatively, Chachamim
               and the first Tana argue about Rav Asi's law. The
               Halachah follows Chachamim, who disagree with Rav
               Asi. One may not eat all that he was hired to
               harvest. Alternatively, they argue about Isi's law.
               Rashi says that the first Tana argues with Isi. He
               permits only a worker. Chachamim agree with Isi.
               They permit eating more than one's wages, and even
               if he was not hired at all! I showed that the
               Halachah follows Chachamim, therefore, the Halachah
               follows Isi. However, it seems that the first Tana
               holds like Isi. Just like he permits one to eat for
               more than his wage, he permits who works just for
               his meal. Chachamim permits eating more than one's
               wage, but only if he gets a wage. Rav Ashi merely
               <i>suggested</i> that perhaps Isi permits only one who
               works the value of what he eats! He accepted Rav
               Kahana's response, that one prefers to choose
               workers to harvest his land.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  R. Yonason (in Shitah Mekubetzes):</font></b> One may eat
                    more than a Dinar if needed for satiation, for
                    the Torah permitted 'your satiation.' R.
                    Eliezer Chisma forbids more than his wages, for
                    it is not normal to be hired for less than
                    one's satiation. The Torah did not discuss
                    bizarre cases. Chachamim hold that the Torah
                    discusses everyone, even a glutton. However,
                    his friends should teach him not to be
                    gluttonous. The first Tana forbids teaching him
                    this, even giving mere counsel, for we should
                    not uproot what the Torah entitles him to.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Me'iri (DH Afilu):</font></b> Some say that even if a
                    worker was hired to harvest only one cluster,
                    he may eat the entire cluster. This is
                    unreasonable. If he was hired to harvest a
                    vineyard, one may begin to eat before putting
                    in the owner's basket. It seems that the Rambam
                    explains oppositely.
<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 337:7):</font></b> A worker may eat more
               than his wages. If he was hired for a Dinar, he may
               eat a gourd or a date worth four Dinarim. In any
               case, we teach him not to do so, lest people refrain
               from hiring him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (18):</font></b> The Gemara and Poskim discuss eating
                    <i>a</i> gourd or date, but the same applies to
                    eating many. The Gemara discusses one due to
                    the opinion that even if he was hired to
                    harvest only one, he may eat it, even if it is
                    more than his wage. Even though the Halachah
                    does not follow that opinion, the Tur and
                    Shulchan Aruch discuss eating one.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that this is only if he was hired to
               work the entire day, but if he was hired to harvest
               just one gourd, he may not eat it, and even if he
               was hired to work the entire day, he may not eat the
               first gourd he harvests. Rather, first he puts in
               the owner's basket, then he eats.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Yachol):</font></b> Rashi and the Rosh
                    connote that when the Gemara said 'they argue
                    about Rav Asi's law', it refers to the first
                    version. If so, the Halachah follows the second
                    version. The Tur says that the Halachah does
                    not follow the second version. He learns from
                    the Gemara's explanation why both teachings
                    were needed. It is possible that even if he
                    eats in the first version, he does not eat in
                    the second version. Since the Halachah does not
                    follow the first version, it does not follow
                    the second version. The Rif omitted the Gemara
                    and brought only the Mishnah. He holds that the
                    Halachah follows Chachamim, and not Rav Asi's
                    laws. Also the Rambam rules like Chachamim and
                    omits Rav Asi's laws.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (19):</font></b> The Rema says 'some say that', even
                    though he and the Mechaber both cite the Tur,
                    because the Beis Yosef said that the Rif and
                    Rambam disagree.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Shach 3):</font></b> The Beis Yosef said that
                    Rif and Rambam omitted Rav Asi's laws because
                    they hold that the Halachah does not follow
                    him!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Drishah (7):</font></b> Surely, if he was hired to harvest
                    only one and he ate it, the owner need not pay
                    him, even if it was worth less than his wage.
                    If he was hired for the entire day, even if he
                    ate more than his wage, his employer must pay
                    his full wage. The Tur holds that since the
                    Gemara said 'they argue about Rav Asi's law'
                    without specifying which, they argue about
                    both. If not; the Gemara should not have
                    brought his second teaching here, especially
                    because it interrupts between the Mishnah and
                    the third explanation of the argument! Rather,
                    the first Tana alludes to both of Rav Asi's
                    laws (he may eat a gourd, even if he was hired
                    to harvest only it or harvests it first).
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Gra (7):</font></b> Rashi and the Rosh connote that Rav
                    Asi's second law does not depend on the
                    argument in the Mishnah. However, the Rif and
                    Rambam omitted it because they hold that it
                    depends on it (so we do not follow it).
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>KAM LEI BID'RABAH MINEI </b></b>(</font><font color='darkblue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he stipulated 'on condition that I and my son may
               eat', or 'on condition that my son may eat in place
               of my wages (Rashi; Tosfos - in place of my
               eating)', Reuven eats without tithing, but his son
               must tithe before eating.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he owns what he eats, why must his son tithe what
               he eats? Just like he is exempt, his son should also
               be exempt (Tosfos - on the amount his father would
               have eaten)!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Rejection (Ravina):</font></b> Mid'Oraisa, the son is exempt.
          Chachamim decreed that he tithes, because it looks like a
          sale.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>DOES A WORKER OWN WHAT HE EATS? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #7 (Mishnah):</font></b> If Reuven hired Shimon to work with
          Revai (fruits of a tree in its fourth year; they have
          Kedushah like Ma'aser Sheni), Shimon may not eat;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven did not tell him that he will work with
               fourth-year Peros, Reuven must redeem what Shimon
               wants to eat.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the Torah allows workers to eat, why must Reuven
               redeem so Shimon can eat? The Torah never allows
               workers to eat fourth-year Peros!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection:</font></b> That is like a mistaken contract (he agreed to
          work assuming that he may eat).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #8 (Seifa):</font></b> If Shimon was hired to repress rings
          of figs that came apart or reseal barrels that were
          opened, he does not eat (since they were Kavu'a for
          Ma'aser);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven did not tell him that he will work with
               such Peros, Reuven must tithe them and allow Shimon
               to eat.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the Torah allows workers to eat, what is the
               reason? The Torah never allows workers to eat Tevel!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps also, it is like a mistaken
               contract.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> Granted, repressing figs is like a
               mistaken contract (Shimon thought that they were not
               pressed yet), but resealing barrels is not. Shimon
               knows that the wine is Tevel!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection #1 (Rav Sheshes):</font></b> The case is, the wine spilled
          back into the pit. (He was hired to draw it from the pit.
          He thought that it was not yet barreled.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Beraisa):</font></b> Wine is Tevel once it flows into
               the pit.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The Mishnah is R. Akiva, who says that it is
               Tevel after Kipuy (removal of the grape skins and
               pits that float on top of the wine in the pit).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Shimon had no reason to assume that he
               would eat. Perhaps Kipuy was already done!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> The Mishnah discusses  a place where the one
               who draws from the pit does Kipuy.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> We need not say that the wine spilled back
          into the pit. Rav Zvid taught that Chachamim say that
          wine is Tevel after Kipuy, and R. Akiva says that it is
          after doing Shiluy (removal of the dregs that float on
          top of the wine in the barrel);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shimon did not know that Shiluy was done.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Shimon had no reason to assume that he
               would eat. Perhaps Shiluy was already done!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The Mishnah discusses  a place where the one
               who corks the barrel does Shiluy.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #9 (Mishnah):</font></b> Shimon may stipulate with his
          employer to receive extra wages in place of eating. He
          may also stipulate on behalf of his wife and adult
          children and slaves, because they have intelligence (they
          can pardon their right to eat);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He may not stipulate on behalf of his animals or
               minor children or slaves, because they lack
               intelligence.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We are thinking that Shimon feeds his children and
               slaves, therefore he gets their wages.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If the Torah allows workers to eat, we understand
               why he cannot stipulate. Minors do not acquire the
               food until they eat it!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  But if a worker owns what he eats, it is like
                    part of his wages. It is Shimon's, why can't he
                    stipulate for them?!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> The case is, he does not feed them.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why can he stipulate for adults?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> If they agree, they pardon their privileges.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #10:</font></b> Tana'im argue about whether or not or not a
          worker owns what he eats.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (R. Hoshaya - Beraisa):</font></b> Shimon may
               stipulate on behalf of himself, his wife and adult
               children and his (adult or minor) Kena'ani slaves,
               but not on behalf of his animals or minor children.
               (The Mishnah did not allow stipulating on behalf of
               minor slaves.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> The Mishnah and Beraisa both discuss
               when he feeds them. The Mishnah holds that the Torah
               allows workers to eat, the Beraisa holds that a
               worker owns what he eats. (One may not stipulate for
               animals, for this would entail muzzling.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> No, both hold that a worker owns what he
          eats;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the Mishnah, he does not feed them. In the
               Beraisa, he feeds them.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> If in the Beraisa, he feeds them, why can't he
          stipulate for his minor children?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> The Torah does not authorize a father to cause
          pain to his children.
<br>

<p>

sjt:
</p><p>
<font><b>3) THE FRUIT EATEN BY THE SON OF THE LABORER</b></font><b>
<br>QUESTION:</b> The Torah allows a hired laborer to eat fruit from the field while he works. The Gemara discusses the question of whether the fruit is considered his own property or whether it is the property of the landowner but the Torah gives him permission to eat it. The Gemara explains that there is a practical difference between these two possibilities. If the fruit is considered the property of the worker, then he should be entitled to let his son eat it as well. If the fruit belongs to the employer and the worker merely has permission to eat it, then that permission should not extend to his son.
</p><p>
The Gemara cites the Mishnah in Ma'aseros (2:7) which discusses the case of a laborer who is hired to harvest and dry out figs. The Mishnah rules that if the laborer stipulates that he will work on condition that both he and his son are permitted to eat from the figs, then the laborer himself is not obligated to separate Ma'aser from the figs that he eats (since the figs have not yet been cut open to dry and thus they have not reached their final stage of processing), but his son must separate Ma'aser from the figs that he wants to eat. The Gemara attempts to infer from this Mishnah that the fruit that a laborer eats does not actually belong to him, because if it did then his son would not have to separate Ma'aser (just as the laborer himself does not have to separate Ma'aser). Ravina answers that perhaps the fruit <i>does</i> belong to him and the fruit is <i>not</i> obligated in Ma'aser, but the Chachamim required the son to separate Ma'aser because it <i>looks</i> like a transaction of a 'Mekach.' <b>RASHI</b> (DH u'Vno Ochel) explains that the son is like a Loke'ach, a buyer, who purchases fruit from the laborer. Just as a Loke'ach is obligated to separate Ma'aser immediately from the fruit that he buys, so, too, the son must separate Ma'aser.
</p><p>
The Rishonim ask that in this case, the Melachah of the figs has not been completed ('Gemar Melachah'), as Rashi writes (DH Harei Zeh Ochel). There is one opinion (Beitzah 35a) which maintains that purchasing fruit does <i>not</i> make it obligated in Ma'aser unless the 'Gemar Melachah' of the fruit already took place. According to this opinion, why should the son be obligated to separate Ma'aser, even if he is like a Loke'ach?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TOSFOS RABEINU PERETZ</b> answers that the Mishnah refers to a case in which the son eats two figs at a time. When one eats in such a manner, the fruit is considered to have had 'Gemar Melachah' (since it is considered as though it is used for a proper meal) and thus the 'Gemar Melachah' together with the 'Mekach' obligate it in Ma'aser.
</p><p>
(b) The <b>TIFERES YISRAEL</b> (Ma'aseros 2:41) answers that the Mishnah refers to a case in which the fruit has already been brought into the Chatzer. This factor, combined with the similarity to a 'Mekach,' renders the fruit obligated in Ma'aser. (Although normally the act of bringing fruit into a Chatzer alone causes it to be obligated in Ma'aser, this act is not sufficient in this case because his intention is to do further work with the figs -- to dry them out. The Mishnah in Ma'aseros (3:1) teaches that when one brings fruits into a Chatzer with the intention to dry them out, they do not become obligated in Ma'aser. When the fruit is sold to a Loke'ach, however, it is considered to have reached the stage of 'Gemar Melachah' because 'Loke'ach -- Einav b'Mekcho.') (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DOES A WORKER OWN WHAT HE EATS? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Objection:</font></b> We can establish the Mishnah to discuss one
          who does not feed them only according to the opinion that
          a master cannot force his slave to work for him without
          feeding him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, according to the opinion that one can force
               his slave to work for him without feeding him, even
               if he does not feed him, he owns his wages!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> Rather, both the Mishnah and the Beraisa
          (hold that a worker owns what he eats, and) discuss  one
          who does not feed them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah holds that a master cannot force his
               slave to work for him without feeding him. The
               Beraisa holds that he can.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> R. Yochanan holds that a master can force his
          slave to work for him without feeding him. Why does he
          rule like the Beraisa against the Mishnah?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection #3:</font></b> Rather, both the Mishnah and the Beraisa
          hold that the Torah allows workers to eat. One cannot
          stipulate that minors may not eat.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa says that Shimon can stipulate that
          his minor child and slaves will not eat!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> It means, he will feed them much beforehand so
          they (presumably) will not eat while working.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> If so, why does the Beraisa forbid this
          regarding his animals? (A Beraisa (90b) permits putting
          straw in front of his animal beforehand so it will not
          eat much while working!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Conclusion:</font></b> Rather, like we said above, the Mishnah holds
          that the Torah allows workers to eat, and the Beraisa
          holds that a worker owns what he eats.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Shimon may stipulate with his employer to
          receive extra wages in place of eating; he may also
          stipulate on behalf of his wife and adult children and
          slaves, because they have intelligence;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He may not stipulate on behalf of his minor children
               or slaves or his animals, because they lack
               intelligence.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	If Reuven hired Shimon to work with fourth year Peros,
          Shimon may not eat;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven did not tell him that he will work with
               fourth-year Peros, Reuven must redeem what Shimon
               wants to eat.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	If Shimon was hired to repress rings of figs that came
          apart or reseal barrels that were opened, he does not
          eat;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven did not tell him that he will work with
               such Peros, Reuven must tithe them and allow Shimon
               to eat.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DO SHOMRIM EAT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The Torah does not entitle Shomrei (people who
          guard) Peros to eat, but they may eat because that is the
          custom.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Rav):</font></b> The Mishnah discusses Shomrim of gardens
          and orchards (attached Peros), but Shomrim of winepresses
          or stacks of grain eat mid'Oraisa;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav holds that guarding is like doing an action.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> The Mishnah discusses Shomrim of winepresses or
          stacks of grain, but Shomrim of gardens and orchards do
          not eat, not mid'Oraisa nor due to custom;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shmuel holds that guarding is not like doing an
               action.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Acha bar Rav Huna - Beraisa):</font></b> The one who
          guards the red heifer (after it was slaughtered) and his
          clothes become Tamei.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If guarding is not like doing an action, why is he
               Tamei?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> That is a decree, lest he move one of its limbs
          (which would make him Tamei mid'Oraisa).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Kahana - Beraisa):</font></b> One who guards patches
          of gourds of four or five people should not eat his fill
          from one, rather he eats from each.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Shmuel, one who guards attached Peros
               may not eat!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Simi bar Ashi):</font></b> The case is, the gourds are
          detached.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If so, they are Kavu'a for Ma'aser (so a worker
          may not eat)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The flower did not yet fall off the top (they are
          not yet Kavu'a).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Support (for Shmuel - Rav Ashi - Mishnah):</font></b> The Torah
          allows the following to eat: one working with finished
          food attached to the ground, or any detached food...
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Some workers do not eat mid'Oraisa,
               rather due to custom.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> The Seifa says 'the following may not
               eat... What does this mean?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> They may not eat mid'Oraisa, rather
                    due to custom.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection:</font></b> The Reisha taught this!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, they may not eat mid'Oraisa, nor due
               to custom.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> This refers to people who work with attached Peros
               before it is finished. All the more so, Shomrim may
               not eat!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE SHOMRIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> There are four kinds of Shomrim: a Shomer
          Chinam, a borrower, a Shomer Sachar, and a renter:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Shomer Chinam swears and is exempt for paying for
               any loss (that the Torah mentions regarding the
               other Shomrim); a borrower pays for any loss;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A Shomer Sachar or renter swears if it was broken,
               taken captive or died, and pays if it was stolen or
               lost.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Who is the Tana of the Mishnah 'there
          are four Shomrim'?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Nachman citing Rabah bar Avuha):</font></b> It is R.
          Meir.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Does anyone argue that there are four
          Shomrim?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Clarification:</font></b> (Rav Nachman): R. Meir is the Tana who
          says that a renter has the law of a Shomer Sachar.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> R. Meir holds just the contrary!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> A renter pays like a Shomer
               Chinam;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, he pays like a Shomer Sachar.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Rabah bar Avuha switches the opinions in the
          Beraisa.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Since a renter is like a Shomer Sachar, there
          are only three Shomrim!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rav Nachman bar Yitzchak):</font></b> There are four
          Shomrim; they have three different laws of liability.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>THE LIABILITY OF SHOMRIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	A shepherd was grazing animals on the bank of the river.
          One fell into the water.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rabah:</font></b> He is exempt. What could he have done? He guarded
          normally!
<br>
<br>

sjt:
<font><b>1) A GUARD'S RIGHT TO EAT</b></font><b>
<br>QUESTION:</b> The Mishnah states that laborers working as guards for fruit may eat from the fruit only because it is the customary practice ('Hilchos Medinah'), but not because the Torah entitles them to eat. Rav and Shmuel argue about what type of guard the Mishnah is discussing. Rav says that the Mishnah refers to a guard of gardens and orchards (in which the produce still is attached to the ground); a guard of a winepress or of stacks of grain is entitled mid'Oraisa to eat the fruit. Shmuel argues and says that the Mishnah refers to a guard of a winepress or of stacks of grain. Shmuel maintains that such a guard is entitled to eat the fruits only due to Hilchos Medinah, while a guard of gardens or orchards may not eat <i>at all</i>, neither mid'Oraisa nor on account of custom.
</p><p>
The Gemara explains that the argument between Rav and Shmuel is based on the question of whether guarding is considered an action. Rav maintains that guarding is like an action, while Shmuel maintains that it is not like an action.
</p><p>
The verses which discuss a laborer's entitlement to eat, however, do not mention that only a laborer who does an action has the right to eat. Why does the Gemara understand that a guard's right to eat depends on whether or not his task is considered an action? After all, a guard has the same status as an ordinary laborer with regard to other Halachos (for example, with regard to the Isur of withholding a worker's wages). Why would a guard not be viewed like any other worker with regard to his right to eat from the fruit?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MA'AYANEI HA'CHOCHMAH</b> and <b>AYELES HA'SHACHAR</b> answer that there is a logical reason to distinguish between a guard and other types of workers with regard to a worker's right to eat the fruit. It is obvious that any worker who happens to work in a vineyard on something unrelated to the vineyard itself (for example, one who is hired to fix an object in the vineyard) may not eat from the fruit of the vineyard. Only one who works with the fruit itself, or with the ground from which the fruit grows, may eat from the fruit. Similarly, if a guard's task is not considered an action, he would not be considered to be working with the fruit itself, and thus he would not have the right to eat it.
</p><p>
(b) The <b>DARCHEI DAVID</b> answers that Shmuel maintains that there is a Hekesh that links a 'Chosem' (a person who muzzles) to a 'Nechsam' (an animal which is muzzled). That Hekesh teaches that a laborer must do an action in order to be entitled to eat the fruits. A laborer is considered a 'Chosem' because he is the one who would muzzle the ox, and the ox is the 'Nechsam,' that which is muzzled. The Halachah that prohibits muzzling an ox applies while the ox is threshing in the field, which is an action. Thus, the Hekesh teaches that the requirement to allow a laborer to eat also applies only when he is doing an action. (I. Alsheich)
</p><p>


<font><b>2) THE DIFFERENCE BETWEEN A GUARD OF A WINEPRESS AND A GUARD OF AN ORCHARD</b></font><b>
<br>QUESTION:</b> The Mishnah states that laborers working as guards for fruit may eat from the fruit only because it is the customary practice ('Hilchos Medinah'), but not because the Torah entitles them to eat. Shmuel says that the Mishnah refers to a guard of a winepress or of stacks of grain. Shmuel maintains that such a guard is entitled to eat the fruit only due to Hilchos Medinah, while a guard of gardens or orchards may not eat <i>at all</i>, neither mid'Oraisa nor on account of custom. The Gemara explains that Shmuel's position is that guarding the fruit is not considered like an action (see previous Insight).
</p><p>
The <b>RA'AVAD</b> (cited by the Shitah Mekubetzes) asks why the Chachamim differentiate between the guards of gardens or orchards and the guards of winepresses or stacks of grain. Shmuel maintains that a guard of winepresses or stacks of grain may eat from the produce due to 'Hilchos Medinah,' even though he is not considered to be doing an action, while a guard of gardens or orchards may not eat at all, even on account of 'Hilchos Medinah.' Why, though, is there a difference between the two types of guards if neither guard is considered to be doing an action?
</p><p>
The <b>RASHBA</b> also asks why the Halachah distinguishes between the two types of guards, but he does not ask why the <i>Chachamim</i> differentiate between them. The Rashba's question seems to be why the Minhag ha'Medinah differentiates between the two types of guards. (The Ra'avad seemingly understands that the Minhag ha'Medinah is an enactment of the Chachamim to allow this particular type of guard to eat (as the <b>TOSFOS RID</b> writes explicitly). The Rashba, on the other hand, seemingly understands that there is no such enactment of the Chachamim, and it is the custom alone which entitles the guard to eat, as implied by <b>RASHI</b> (DH me'Hilchos Medinah) and as the <b>ME'IRI</b> writes.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RA'AVAD</b> answers that 'occasionally, a guard has to do an action.' He seems to mean that the reason why the Chachamim allow a guard of winepresses or stacks of wheat to eat from the produce is that a situation <i>might</i> arise in which he has to do an action with the produce (in which case he would be entitled to eat mid'Oraisa). Since such a situation might arise, the Chachamim give him the right to eat even before he does an action (and even if, ultimately, he does not need to do an action). In contrast, if a need arises for a guard of gardens or orchards to do an action with the fruit that he is guarding, his right to eat the fruit still will be due only to 'Hilchos Medinah' since the fruit is still attached to the ground. Since, in any event, he will not have a right mid'Oraisa to eat the fruit, the Chachamim did not institute that he may eat when he has not yet done any action.
</p><p>
(b) The <b>RASHBA</b> and <b>RITVA</b> answer that a guard of winepresses would have been entitled to eat mid'Oraisa if he <i>had</i> been doing an action, and he is therefore entitled to eat, due to 'Hilchos Medinah,' even if he does not do an action. A guard of gardens or orchards, though, would not have been entitled to eat mid'Oraisa even if he had been doing an action, and, therefore, since he is not doing any action he may not eat even due to 'Hilchos Medinah.' (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MAVRIACH ARI</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If a shepherd was grazing the flock, and
               a lion came and killed some, we estimate. If he
               could have saved them, he is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rabah):</font></b> If a Shomer Chinam could have gathered for
               free shepherds with sticks to fend it off, he is
               liable. A Shomer Sachar must hire people.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> A Shomer Sachar is exempt for
               Ones. Why must he pay to avoid Ones?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rabah):</font></b> The owner reimburses him.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Bava Kama 57b (Mishnah):</font></b> If Reuven's animal fell
               into Levi's garden and benefited, Reuven pays the
               benefit (not the full damage).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rav):</font></b> The case is, it fell on fruits.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> Rav teaches that Reuven pays the benefit not only
               when it ate, rather, even when it fell on fruits. We
               do not say that Reuven is exempt because the fruits
               were merely 'Mavri'ach Ari (chased away a lion).'
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> Why don't we say this?
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #1:</font></b> Mavri'ach Ari is only when Levi intended
               to prevent damage. Here, he did not.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer #2:</font></b> Mavri'ach Ari is only when there is no
               loss. Here, there is a loss.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 115b (Mishnah):</font></b> If a flooding river overcame the
               donkeys of Reuven and Levi, and Levi neglected his 
               own donkey (worth 100) to save Reuven's (worth 200),
               he is paid only like a worker (he is not compensated
               for the loss of his donkey).
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> If he said 'I will save yours and you will pay for
               mine', Reuven must pay him.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif (Bava Kama 24b, 41b, Bava Metzi'a 54a)
               brings the Gemaros in Bava Kama, and the Gemara in
               Bava Metzi'a (in the name of Rav Yehudah).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 3:6):</font></b> If a shepherd could
               have saved animals from being torn or captured
               through (calling to) other shepherds and sticks, and
               he did not, he is liable, whether he is a Shomer
               Sachar or Shomer Chinam. However, if a Shomer Chinam
               could not gather shepherds and sticks for free, he
               is exempt. A Shomer Sachar is obligated to hire
               shepherds and sticks to save the flock. The owner
               reimburses him.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Kama 6:6):</font></b> The two answers go together.
               Mavri'ach Ari is when Levi intended to prevent
               damage, therefore it is even if he suffered a loss.
               One who paid a loan is called Mavri'ach Ari.
               Alternatively, Mavri'ach Ari is even without Levi's
               intent, rather, Reuven forced him to do so, but only
               if Levi did not suffer a loss. It is not Mavri'ach
               Ari only if it is without Levi's' intent and he
               loses, like our Mishnah. Reuven need not pay even
               for Levi's toil, i.e. when it is not clear that
               Reuven would have lost, e.g. the lion is far away,
               and Levi merely saves Reuven from worry. However, if
               it is almost certain that he would lose, or he saves
               him from the lion itself, he gets his wages. If Levi
               spent money, Reuven pays everything. This is clear
               from Bava Metzi'a 93b. If a shepherd did not gather
               shepherds to fight off a lion, he is liable. A
               Shomer Chinam must try to gather them for free, and
               a Shomer Sachar for pay. He gets back the money from
               his employer. This connotes that if a Shomer Chinam
               voluntarily gathered them for pay, this was
               praiseworthy, and he is paid back what he spent and
               for his toil. The same applies to other people.
               Since a Shomer Chinam need not hire people, he is
               like any person (who volunteered to fight off the
               lion). When Levi neglected his own donkey to save
               Reuven's, he is paid only like a worker. This
               connotes that he is paid for his toil. We do not say
               that he is a Mavri'ach Ari.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> This is when Reuven was there
                    and Levi did not stipulate with him. If Reuven
                    was not there, he pays Levi what Levi lost.
                    This is like one who returns an Aveidah; if he
                    lost wages (while caring for the Aveidah), he
                    receives what one would want to be paid to be
                    idle, as opposed to his full wage for his (more
                    wearisome) job.
<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 128:1):</font></b> If Moshe paid Levi's loan
               document without Levi's knowledge, even if there was
               a security and Moshe took it back, Levi need not pay
               him. He takes back the security for free. Moshe lost
               his money. Even if the creditor was pressing Levi to
               pay, (some texts - perhaps, or we say that) Levi
               would have appeased him, and he would have pardoned
               the debt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> This is primary, unlike those who obligate
               Levi to pay. Some say that this is only when the
               lender is a Yisrael, but if he is a Nochri, all
               obligate Levi to pay, and all the more so if Moshe
               retrieved Levi's security from the Nochri. It is
               proper to rule like this.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Shach 6):</font></b> The Darchei Moshe cites
                    this in the name of the Maharil. The Maharil
                    does not say this. Also, it is against the
                    Poskim! The Mordechai obligates only when Levi
                    did not really owe. This is even if the lender
                    was a Nochri. A Nochri creditor is no worse
                    than a pressing creditor. The Yerushalmi learns
                    from Shekalim, which no one can pardon. It is
                    Mavri'ach Ari because Levi can say that he
                    would have found friends to pay for him
                    (Tosfos). This applies equally when the
                    creditor is a Nochri. If Levi did not really
                    owe, then he must pay Moshe, for friends do not
                    pay a thief.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that this is when Moshe did not have
               anything of Levi, but if he had Levi's money and
               paid the debt with it, Levi has no claim against
               him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rebuttal (Maharam Lublin 22, cited in Shach 8).
                    Levi is exempt because he could have appeased
                    the creditor. This is even if Moshe had money
                    of Levi!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Defense (Shach 8):</font></b> Levi is exempt because Moshe
                    was Mavri'ach Ari (Tosfos Bava Kama 58a DH Iy).
                    We assume that he intended for a Mitzvah. If he
                    had Levi's money, we do not say so. Actually,
                    the Rema's law is obvious, for R. Noson's law
                    applies mid'Oraisa even if Moshe has his own
                    money.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 303:8):</font></b> If a shepherd could have
               saved animals from being torn or captured through
               (calling to) other shepherds and sticks, and he did
               not, he is liable, whether he is a Shomer Sachar or
               Shomer Chinam. However, if a Shomer Chinam could not
               gather shepherds and sticks for free, he is exempt.
               A Shomer Sachar is obligated to hire shepherds and
               sticks to save the flock. The owner reimburses him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (8):</font></b> Also a stranger who paid to save it
                    is paid back.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHEN IS ONE CALLED MAVRIACH ARI? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> If so, if he went to the city when
               people normally do, is he also exempt?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rabah):</font></b> Yes.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> If he slept a bit when people
               normally sleep, is he exempt?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rabah):</font></b> Yes.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Abaye - Beraisa):</font></b> A Shomer Sachar is exempt for
          Onesim such as 'va'Tipol Sheva... Hiku Lefi Charev (an
          army attacked).'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> That refers to guards of the city. They
          must guard better.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Abaye - Beraisa):</font></b> A Shomer Sachar must guard to
          the point of 'va'Yom Achalani Chorev v'Kerach ba'Laylah'-
          to guard day and night.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> That also refers to guards of the city.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Yakov (who said 'Achalani. . .' ) was not
               a guard of the city!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> He told Lavan that he guarded extra well,
               like a guard of the city.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Abaye - Beraisa):</font></b> If a shepherd was grazing the
          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;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he could have saved, he is liable. If not, he is
               exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> He went to the city when people normally
               do.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> No, he went to the city when people
          normally do not.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> If so, why is he exempt? The beginning
          was negligence, and the end was Ones. He is liable!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> He went to the city because he heard a
          lion coming.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> If so, what could he have done?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> He should have gathered shepherds with
          sticks to fend it off.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> If so, why does the Beraisa discuss a
          (shepherd, who is a) Shomer Sachar? You obligate even a
          Shomer Chinam if he could have gathered shepherds with
          sticks to fend it off!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> If a Shomer Chinam cannot gather
          shepherds with sticks for free, he is exempt. A Shomer
          Sachar must hire people.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> How much should he pay?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rabah):</font></b> He should pay up to the value of the
               animals that he is guarding.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> A Shomer Sachar is exempt for
               Ones. Why must he pay to avoid Ones?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rabah):</font></b> The owner reimburses him.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (Rav Papa):</font></b> What does the owner gain if he
               must pay their value?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #1 (Abaye):</font></b> His animals are used to his
               house.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #2 (Abaye):</font></b> He saves the toil of buying new
               animals.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Rav Chisda and Rabah bar Rav Huna):</font></b> A Shomer Sachar must
          guard better than usual. He is paid for this! (They argue
          with Rabah (above (b), who exempts one who guarded
          normally.)
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	Bar Ada Savola'ah was taking animals across a bridge. One
          pushed another over into the water. Rav Papa ruled that
          he must pay.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Bar Ada:</font></b> What should I have done?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Papa:</font></b> You should have led them single file.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Bar Ada:</font></b> I did like most people. Rabah says that
               that is enough!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Papa:</font></b> Many have tried to exempt themselves
               according to Rabah. No one succeeded. (The Halachah
               does not follow Rabah.)
<br> <b>    <b><font color='darkgreen'>(q)</font></b></b>  	Aibo deposited flax with Bei Runya. It was stolen. The
          thief was found; he was a known armed robber. Rav Nachman
          obligated the Shomer.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Rav Nachman argues with Rav Huna bar Avin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Huna bar Avin):</font></b> If it was stolen through Ones
               and the thief was later found, a Shomer Chinam may
               swear, or pay and claim the money from the thief. A
               Shomer Sachar may not swear. He must pay and claim
               the money from the thief.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> Rav Nachman obligated him because there
          were (police) officers there.  Had he screamed, they
          would have come.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>WHAT IS ONES?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One wolf is not Ones. Two wolves are Ones;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yehudah says, when wolves are rampant, even one wolf
          is Ones.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Two dogs are not Ones;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Yadu'a ha'Bavli says, from one direction it is not Ones.
          From two directions it is Ones.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	A robber is Ones.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	A lion, bear, leopard, Bardelas (hyena) or snake is Ones;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if it came here. If a Shomer took the
               deposit to a place where these animals are found, it
               is not Ones.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	If it died normally, this is Ones. If he starved it and
          it died, it is not Ones.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	If it went up a mountain and fell, it is Ones. If he
          brought it up a mountain and it fell, it is not Ones.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Gemara) Contradiction (Beraisa):</font></b> One wolf is Ones.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rav Nachman bar Yitzchak):</font></b> The Beraisa is R.
          Yehudah. It discusses when wolves are rampant.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A robber is Ones.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Why is this Ones? The Shomer can fend off the
          robber!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Rav):</font></b> It is an armed robber.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> Is an armed robber considered Ones if the
          Shomer is also armed?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we say that the Shomer can fend off the robber?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, do we say that the robber is willing to risk his
               life, and a Shomer need not do so?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> Presumably, the latter is correct.
<br>

<p>

sjt:
</p><p>
<font><b>3) AN UNAVOIDABLE 'ONES' THAT RESULTS FROM A 'PESHI'AH'</b></font><b>
<br>QUESTION:</b> The Gemara (93a) relates an incident in which a shepherd was grazing animals on the bank of the river and one of the animals fell into the water. Rabah ruled that the shepherd was exempt because he guarded the animals normally. Abaye questioned this ruling from 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 he would have been able to protect the herd, then he is Chayav, even though he guarded the herd in the normal manner, as he went into the city when people normally do so. Rabah answered that the Beraisa refers to a case in which the shepherd went into the city when people normally do <i>not</i> do so, and that is why he is Chayav. Abaye asked why, then, is the shepherd exempt if an evaluation shows that he would <i>not</i> have been able to protect the herd. Since he neglected his duties by entering the city, it is a case of 'Techilaso b'Peshi'ah v'Sofo b'Ones,' and he should be Chayav. The Gemara answers that the shepherd heard the ferocious roar of an approaching lion and therefore fled to the city, and thus he is exempt because there was nothing he could do.
</p><p>
This Gemara presents a difficulty to the opinion of the <b>RIF</b>, <b>TOSFOS</b>, and other Rishonim who maintain that the Chiyuv of 'Techilaso b'Peshi'ah v'Sofo b'Ones' applies only when the eventual Ones occurs as a result of the initial Peshi'ah (for example, when the Ones would not have occurred had the Shomer not committed the Peshi'ah in the first place). An example of 'Techilaso b'Peshi'ah v'Sofo b'Ones' is found in the Gemara (42a) which records an incident in which a person deposited money with a Shomer and the Shomer placed the money inside a hunter's hut for safekeeping. The hut provided adequate protection from thieves but not from a fire, so the Shomer's action was considered an appropriate act of Shemirah to prevent thieves from taking it, but it was an act of negligence (Peshi'ah) with regard to a fire. In the end, the money was stolen by thieves (an Ones). Although it was an Ones, the Ones would not have happened if the Shomer had not put the money in the hut. These Rishonim maintain that only in such a case -- where the Ones occurs as a result of the Peshi'ah -- is the Shomer Chayav because of 'Techilaso b'Peshi'ah v'Sofo b'Ones.'
</p><p>
The Rishonim ask that the Gemara here clearly contradicts this opinion. In the case of the Gemara, the eventual Ones -- that the herd was ravaged by a lion -- would have occurred even had the shepherd not been Poshe'a and had remained with the herd. The Ones cannot be attributed to the fact that the shepherd entered the city, yet the Gemara says that the shepherd would be Chayav because of 'Techilaso b'Peshi'ah v'Sofo b'Ones.' How can this Gemara be reconciled with this position of the Rishonim? (<b>RIF</b> and <b>ROSH</b> to 36b, <b>TOSFOS</b> to 78a, DH Huchmah)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RIF</b> answers that this point is actually the subject of a Machlokes between Abaye and Rava earlier (36b). Rava maintains that a Shomer is Chayav because of 'Techilaso b'Peshi'ah v'Sofo b'Ones' only when the Ones occurs as a result of the Peshi'ah having been done (as the Rif rules l'Halachah). Abaye, however, maintains that one is Chayav for 'Techilaso b'Peshi'ah v'Sofo b'Ones' even when the eventual Ones is unrelated to the initial Peshi'ah. Abaye here is consistent with his view earlier (36b).
</p><p>
(b) <b>TOSFOS</b> earlier answers that here, too, the Ones can be viewed as related to the Peshi'ah, in one of the following ways.
</p><p>
1. Perhaps had the shepherd remained with the herd he would have brought it to a different grazing area before the danger arose in the present place, for shepherds normally move their herds to different grazing areas.
</p><p>
2. Alternatively, perhaps the lion would have been afraid to approach the herd if the shepherd had remained with it. Accordingly, the Peshi'ah of the shepherd leaving the herd resulted in the Ones of the herd being attacked by a lion.
</p><p>
3. In his third answer, Tosfos suggests that had the shepherd stayed with the herd the blessing of the verse, 'Even the lion and the bear has your servant defeated' (Shmuel I 17:36), might have applied to him, and he indeed would have been successful in fighting off the lion. The <b>RA'AVAD</b> (cited by the Shitah Mekubetzes) adds that perhaps the blessing in the verse, 'Fear of you and dread of you shall be upon all of the wild beasts of the earth' (Bereishis 9:2), would have applied to him and the lion itself would have been afraid. This is also the answer of the <b>ROSH</b>.
</p><p>
4. The <b>TOSFOS RABEINU PERETZ</b> (cited by the Ritva) answers that if the shepherd would have stayed with the herd, he would have been able to gather other shepherds to save the herd.
</p><p>
5. The <b>RAMBAN</b> (36b, and as cited by the Ritva here) explains that since the shepherd went into the city at a time when people normally do not go in, he could have brought the entire flock into the city with him, and he should not have left the sheep in the fields where they were vulnerable to attack. Hence, his initial Peshi'ah resulted in the Ones of the lion's attack. (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A SHOMER WHO INCITED A THIEF</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> If the shepherd taunted the thief,
          telling him that a certain place is protected by so many
          people, dogs, and slingshots, and the thief stole from
          there, what is the law?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> That is like taking the flock to a place
          where wild animals are found. (He is liable for inciting
          the thief.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>STIPULATIONS OF LIABILITY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A Shomer Chinam may stipulate to be exempt
          from swearing. A borrower may stipulate to be exempt from
          paying. A Shomer Sachar or renter may stipulate to be
          exempt from swearing or paying;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Any Tanai contrary to Torah is void. Any Tanai in which
          the Ma'aseh (the event governed by the Tanai) precedes
          the Tanai, the Tanai is void;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Any Tanai that can be fulfilled is valid.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why are the Shomrim's Tanayim valid?
          They are contrary to Torah. They should be void!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Our Mishnah is R. Yehudah, who says that a
          monetary Tanai contrary to Torah is valid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> If one was Mekadesh a woman 'on
               condition that you have no claim against me for
               food, clothing or Onah (Bi'ah at regular
               intervals)', she is Mekudeshes, and the Tanai is
               void;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, monetary Tanayim (food and
               clothing) are valid.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> The Seifa proves that our Mishnah is not R.
          Yehudah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Any Tanai contrary to Torah is void.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is like R. Meir!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, it is R. Yehudah. The Mishnah discusses a
          non-monetary Tanai.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection (Seifa):</font></b> If a Tanai follows the Ma'aseh, the
          Tanai is void.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like R. Meir!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa - Aba Chalifta citing R. Meir):</font></b> If the
               Tanai precedes the Ma'aseh, the Tanai is valid. If
               not, it is void.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (to Question (c)):</font></b> Really, our Mishnah is R.
          Meir. Here, the Tanai works because the Shomer never
          obligated himself (to have the full liability of a
          Shomer. Kidushin is different, for there is no such thing
          as partial Kidushin.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A Shomer Sachar can stipulate to be like a
          borrower.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Is this through mere words?!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1 (Shmuel):</font></b> The case is, he made an acquisition
          for the extra liability.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2 (R. Yochanan):</font></b> No acquisition is needed. He
          obligates himself through the pleasure that he will get a
          reputation for trustworthiness.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>IMPOSSIBLE TANAYIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Any Tanai that can be fulfilled is valid.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Tavla):</font></b> Our Mishnah is R. Yehudah ben Teima.
          Chachamim say that even if a Tanai cannot be fulfilled,
          it is valid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If one divorced on condition 'that you
               will go up to the sky' or 'that you will descend to
               the depth (of the ocean)' or 'that you will swallow
               a reed of 100 Amos', or 'you will cross the ocean on
               foot', if she fulfills the Tanai (e.g. through using
               a Name of Hash-m) she is divorced. If not, she is
               not divorced.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah ben Teima says, such a Get is valid;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Yehudah ben Teima says, the general rule is:</font></b> if a
               Tanai cannot be fulfilled, it is just meant to
               tease. It is not a Tanai.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> The Halachah follows R. Yehudah ben Teima.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Support (Rav Nachman bar Yitzchak - Seifa):</font></b> Any Tanai
          that can be fulfilled is valid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Any Tanai that cannot be fulfilled is
               void. (Tosfos - one might have thought that the
               Seifa explains the Reisha: a Tanai contrary to Torah
               is invalid because it cannot be fulfilled. Rav
               Nachman bar Yitzchak teaches that this is not so.
               'Any Tanai that can be fulfilled...' connotes that
               this is a new Halachah.)
<br>
<br><center><font color='ff0000' size='+1'><b>*****<b>PEREK HA'SHO'EL</b>*****
</b></font></center><p><b>
<br><b></b><b><b><font color='blue'>4) </font></b><font color='blue'>SHE'ELAH B'BA'ALIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven borrowed Shimon's cow and at the
          same time asked or hired Shimon to work for him, or if he
          asked or hired Shimon to work and later borrowed it, and
          the cow died, Reuven is exempt - 'Im Ba'alav Imo Lo
          Yeshalem';
<br>
<br>

sjt:
<font><b>1) EXEMPTING ONESELF FROM LIABILITY IN A CASE OF A 'PESHI'AH'</b></font><b>
<br>QUESTION:</b> The Mishnah states that when a Shomer Chinam is given an object to watch, he may stipulate that in the event of a loss, theft, or Ones, he will be exempt from paying and will not be obligated to make a Shevu'ah. Likewise, a Sho'el -- who normally is obligated to pay in cases of loss, theft, or Ones -- may stipulate that he will be exempt from such liability.
</p><p>
The Rishonim ask why the Mishnah does not also say that a Shomer Chinam may stipulate that he will be exempt from having to pay in the event of Peshi'ah. Just as a Sho'el may make a stipulation to exempt himself from the usual obligation of a Sho'el to pay, a Shomer Chinam should also be able to stipulate that he will be exempt in the event of Peshi'ah.
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RABEINU YEHONASAN</b> (cited by the Shitah Mekubetzes) answers that no person of sound mind would attempt to make a stipulation to exempt himself from paying if he is Poshe'a, because such a person would not be called a 'Shomer' at all but a 'Mazik'! A person who deposits an item with a Shomer does so with the understanding that the Shomer will guard it, not damage it. Hence, every Shomer accepts upon himself some degree of responsibility to guard the object. The only flexibility that exists with regard to exempting himself from a Shevu'ah is in a case of loss, theft, or Ones.
</p><p>
(b) The <b>HAGAHOS ASHIRI</b> writes that since the Mishnah does not list this as one of the stipulations that a Shomer may make, it implies that a Shomer Chinam is <i>always</i> obligated to pay in a case of Peshi'ah, even if he stipulated that he would be exempt.
</p><p>
It seems that there is a practical Halachic difference between these two answers. According to the Hagahos Ashiri, even if a Shomer <i>does</i> stipulate that he should be exempt from liability for Peshi'ah, he still is obligated to pay. According to Rabeinu Yehonasan, however, he indeed is exempt from liability. This is also the view of <b>TOSFOS</b> (93b, DH Iy) and the <b>ME'IRI</b>.
</p><p>
(c) <b>RAV SHLOMO EIGER</b> (in Gilyon Maharsha) cites the <b>SHEVUS YAKOV</b> who answers this question as follows. It is obvious that when a Shomer Chinam stipulates that he will be exempt in a case of Peshi'ah, the stipulation is valid and he is exempt from payment. A Shomer who makes such a stipulation effectively removes from himself the basic obligation to guard the object. It is as if he has stipulated that he should be permitted to be negligent with the object, in which case he certainly does not become a Shomer. In each case that the Mishnah mentions, there is a Havah Amina that the stipulation would not be effective because it runs counter to the law written in the Torah and thus constitutes 'Masneh Al Mah she'Kasuv ba'Torah.' The Mishnah therefore must teach that in each of these cases, a Shomer can deviate from the laws that the Torah established for a Shomer. In contrast, when a Shomer Chinam stipulates that he will not be obligated in a case of Peshi'ah, this is not a case of 'Masneh Al Mah she'Kasuv ba'Torah' because he is not attempting to change the Torah's rules for a Shomer. Rather, he is refusing to accept upon himself the obligations of a Shomer. Hence, the Mishnah does not need to mention that case. In the cases that the Mishnah does discuss, the person accepts upon himself the title (and laws) of a Shomer and merely wishes to exempt himself from a Shevu'ah or from a certain form of liability. (I. Alsheich)
</p><p>


<font><b>2) EXEMPTING ONESELF FROM A 'SHEVU'AH' IN A CASE OF 'MEISAH MACHMAS MELACHAH'</b></font><b>
<br>QUESTION:</b> The Mishnah states that when a Sho'el borrows an object, he may stipulate that he will be exempt from payment in the event of loss, theft, or Ones. Why does the Mishnah not mention that a Sho'el may stipulate that he will be exempt from a Shevu'ah in the event of 'Meisah Machmas Melachah' (when the animal dies in the course of normal work)? In such a case, a Sho'el normally is exempt from payment but must make a Shevu'ah.
</p><p>
<b>ANSWER:</b> The <b>DEVAR YAKOV</b> answers that this Mishnah is a continuation of the previous Mishnah (93a). Since the previous Mishnah does not discuss the exemption of a Sho'el in a case of 'Meisah Machmas Melachah,' the Mishnah here does not mention it either. (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ARE OTHER MISHPETEI TANAYIM REQUIRED FOR A TANAI OF 'AL MENAS'?</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 the Ma'aseh (the event governed by the
               Tanai) precedes the Tanai, the Tanai is void.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Our Mishnah is like R. Meir.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - Aba Chalifta citing R. Meir):</font></b> If the
                    Tanai precedes the Ma'aseh, the Tanai is valid.
                    If not, it is void.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Kidushin 60b (Rav Huna citing Rebbi):</font></b> Saying 'Al
               Menas (on condition)' is like saying 'from now.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 61a (Mishnah - R. Meir):</font></b> A Tanai (stipulation) is
               invalid if it is not (Kaful, i.e. discusses both
               possibilities) like the Tanai made with the tribes
               of Gad and Reuven. 'If they will cross the Yarden...
               if they will not cross to fight...'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> R. Chanina ben Gamliel says, the verse does not
               teach this (it is not extra). There was a need to
               stipulate that if they do not cross, they will
               inherit in Eretz Yisrael.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Gitin 75a (Beraisa):</font></b> If one said 'the Get is yours
               but the paper is mine', she is not divorced. If he
               said 'Al Menas that you return the paper to me', she
               is divorced.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> What is the difference between the two
               clauses?
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #1 (Abaye):</font></b> The Beraisa is like R. Meir, who
               says that a Tanai is invalid unless it is Kaful. (In
               the Seifa, he did not double the Tanai, so it is
               Batel, and the Ma'aseh (the act about which he
               stipulates) takes effect.)
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #2 (Rava):</font></b> In the Seifa, the Ma'aseh preceded
               the Tanai.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer #3 (Rav Ada bar Ahavah):</font></b> In the Seifa, the
               Tanai and Ma'aseh involve the same matter.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer #4 (Rav Ashi):</font></b> The Mishnah is like Rebbi, who
               says that saying 'Al Menas that' is like saying
               'from now' (there is no contradiction between the
               Tanai and the Ma'aseh. She is divorced only if she
               fulfills the Tanai.)
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Rava):</font></b> Every Tanai must be like that of Benei Gad,
               in which the positive (if they will fight) preceded
               the negative (if they will not fight).
<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 (Gitin 37b and 6:10):</font></b> Kefel is needed
               only for a Tanai 'if', like Benei Gad. It is not
               needed for a Tanai 'Al Menas', for 'Al Menas' is
               like 'from now.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> The primary opinion is like I wrote (see 6:9
               below, that all Mishpetei Tanayim (conditions for a
               proper Tanai) are needed even for a Tanai 'Al
               Menas').
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Ran Gitin 36b DH Tanu):</font></b> Rashi says
                    that Chachamim argue only about Kefel, but all
                    learn from Benei Gad that the Tanai must
                    precede the Ma'aseh, and the Tanai and Ma'aseh
                    cannot be in the same matter. This is
                    unreasonable. R. Meir requires Kefel only due
                    to an extra verse. Perhaps even he does not
                    require these other two conditions, for which
                    there is no extra verse. Perhaps the Tanai of
                    Benei Gad just happened to be like this!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Ran):</font></b> Benei Gad mentioned the Ma'aseh
                    first. Surely, Moshe reversed the order because
                    the Tanai must be first. There is no source to
                    say that R. Meir and Chachamim argue about
                    this. The Gemara assumed that a Tanai 'Al Menas
                    that you return the paper to me' is void
                    because 'Al Menas' is unlike 'from now', like
                    Chachamim, so the Tanai contradicts the
                    Ma'aseh. We conclude like Rebbi. 'Al Menas' is
                    like from now, so the Tanai does not contradict
                    the Ma'aseh. The Rif and Rambam do not require
                    Mishpetei Tanayim for a Tanai of 'Al Menas'.
                    Rav Ashi supports this. Why did he say that the
                    Beraisa is (only) like Rebbi? Chachamim agree
                    that the Tanai must precede the Ma'aseh, and
                    that they are about different matters! We must
                    say that a Tanai of 'Al Menas' does not need
                    Mishpetei Tanayim.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Ran):</font></b> In Bava Metzi'a, R. Meir and
                    Chachamim argue about a Tanai before the
                    Ma'aseh. R. Meir holds that the Kefel in Tanai
                    Benei Gad is extra, to require all Tanayim to
                    be just like Tanai Benei Gad. Chachamim say
                    that it is not extra, and we do not learn to
                    all Tanayim. Rav Ashi established the Beraisa
                    like Rebbi, so is even like Chachamim of R.
                    Meir. It can also be R. Meir. It is better to
                    say so, for then she is divorced even if she
                    does not return it, for the Tanai and Ma'aseh
                    are about the same matter. R. Meir requires all
                    Mishpetei Tanayim for a Tanai to be Mevatel a
                    Ma'aseh that did not take effect yet, and all
                    the more so if the Ma'aseh already took effect!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Defense (Magid Mishneh Hilchos Ishus 6:18):</font></b> A
                    Tanai of 'if' must be stronger, in order to
                    delay the Ma'aseh from taking effect until the
                    Tanai is fulfilled.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Ran (ibid.):</font></b> R. Yochanan says that 'Al Menas'
                    is like 'from now', yet Chalitzah 'Al Menas
                    that she will give 200 Zuz' is Kosher in any
                    case. The Tanai is Batel, for a Shali'ach could
                    not do the Ma'aseh.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Gerushin 9:1):</font></b> If one divorced to
               take effect after a fixed time, she is divorced when
               the time comes, like a Tanai. However, here he did
               not divorce until the time, unlike divorce on Tanai,
               which takes effect immediately. Therefore, one who
               divorces on Tanai must make a Tanai Kaful, but one
               who divorces after a fixed time does not need Kefel
               or any Mishpetei Tanayim.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Gitin 6:8):</font></b> In other places, the Gemara did
               not explain that the Mishnah omitted the Mishpetei
               Tanayim. Everywhere else it relies on our Sugya,
               which needed to discuss them to resolve the
               contradiction.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (9):</font></b> Regarding a tricked Chalitzah, we find
               that even when one says 'Al Menas', the Tanai is
               valid only if a Shali'ach could do the Ma'aseh.
               I.e., also such Tanayim must be like that of Benei
               Gad and Benei Reuven. R. Chananel requires all
               Mishpetei Tanayim even when he said 'Al Menas.'
               Chachamim of our region agree, and this is the
               practice.'
<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 (EH 38:3):</font></b> If one said 'Al Menas' or
               'from now' he does not need Kefel or the Tanai
               before the Ma'aseh. Some say that he needs all
               Mishpetei Tanayim (also the positive before the
               negative, and it is possible to fulfill).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH veha'Rosh):</font></b> The Rosh requires
                    the Tanai and Ma'aseh to involve different
                    matters. The Rambam disagrees, for he (Hilchos
                    Gerushin 8:7) says that she is divorced only if
                    she returns the paper.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Dagul me'Revavah and Hagahosav on Beis Yosef
                    (brought in Rosh Pinah Shulchan Aruch):</font></b> Also
                    the Tur (Siman 143) says that she is divorced
                    only if she returns the paper, yet he holds
                    like the Rosh! Primarily, the Beis Yosef infers
                    that the Rambam disagrees because he did not
                    mention this among Mishpetei Tanayim in Hilchos
                    Ishus 6:1,2. However, the Rambam did not
                    mention in Hilchos Ishus that a Shali'ach must
                    be able to do the Ma'aseh. He relied on what he
                    wrote in Hilchos Gerushin. The Beis Yosef
                    proves from Hilchos Gerushin we cannot say
                    similarly about a Tanai and Ma'aseh involving
                    the same matter.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Shmuel (4):</font></b> The Rosh and Ran say that the
                    Poskim who do not require Kefel with a Tanai of
                    'Al Menas' or 'from now' also allow a Tanai and
                    the Ma'aseh to involve the same matter. We
                    cannot infer whether or not the positive must
                    precede the negative. However, the Ran always
                    requires ending with the negative.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHICH KINDS OF TANAYIM MUST BE DOUBLED? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he borrowed Shimon's cow and later asked or hired
          Shimon to work for him and the cow died, he is liable -
          'Ba'alav Ein Imo Shalem Yeshalem.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Inference:</font></b> The middle clause says 'and later
          borrowed the cow.' This implies that the Reisha, which
          says 'at the same time', means precisely at the same
          time.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> How is this possible? Shimon is hired as soon
          as Reuven asks, but the cow is not borrowed until Reuven
          does Meshichah (takes it to his premises)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The cow was already in Reuven's Chatzer, so no
          Meshichah is needed.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Reuven asked Shimon to begin working for him
          when he does Meshichah.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>LIABILITIES OF THE SHOMRIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> There are four kinds of Shomrim: a Shomer
          Chinam, a borrower, a Shomer Sachar, and a renter:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Shomer Chinam swears and is exempt for any loss; a
               borrower pays for any loss;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A Shomer Sachar or renter swears if it was broken,
               taken captive or died, and pays if it was stolen or
               lost.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> The first Parshah (of Shomrim in the
          Torah) discusses a Shomer Chinam, the second discusses a
          Shomer Sachar, and the third discusses a borrower.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Granted, the third explicitly says 'when one
          will borrow.' However,  perhaps the first Parshah
          discusses a Shomer Sachar, and the second discusses a
          Shomer Chinam!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Presumably, the second is a Shomer Sachar, for he
          is liable for theft or loss.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Just the contrary! The first has greater
          liability. He pays Kefel (double) if he claims that it
          was stolen (and really, he stole it himself)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> It is more stringent to pay principal for theft,
          than to swear and be exempt (and pay Kefel if he stole it
          himself).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support:</font></b> A borrower gets free benefit (presumably,
               he should be most liable), and he never pays Kefel!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> His benefit is not free. He must feed the
               animal!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1:</font></b> The case is, the animal grazes in the
               swamp. The borrower need not feed it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> The borrower must guard it!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer:</font></b> It is guarded by the guard of the city.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #2:</font></b> It suffices to say that a borrower gets
               most of the benefit.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #3:</font></b> He borrowed Kelim. (He need not feed
               them, and they are guarded just by being in his
               house.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A Shomer Sachar or renter swears if it was
          broken, taken captive or died, and pays if it was stolen
          or lost.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	We have an explicit source for theft - 'v'Im Ganov
          Yiganev';
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source that he pays if it was lost?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Beraisa) Suggestion:</font></b> Perhaps he pays only if it
          was stolen!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rejection:</font></b> The double expression 'v'Im Ganov
               Yiganev' teaches even if it was lost.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is like the opinion that does not say that (we
               need not expound the double expression, for) the
               Torah speaks the way people speak.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> According to the opinion that the Torah speaks
          like people do, how can we answer?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Chachamim of Eretz Yisrael):</font></b> We learn from a Kal
          va'Chomer. Theft is close to Ones, yet he is liable for
          it. All the more so he is liable if he loses it, for this
          is close to negligence!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The opinion that the Torah does not speak like
               people do says that the verse teaches this, even
               though we could have learned it from a Kal
               va'Chomer.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A borrower pays for any loss.
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	The Torah explicitly obligates if it is broken or dies -
          'v'Nishbar Oh Mes'.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source to obligate if it is
          captured?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> We learn from breakage or death.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> A person anticipates that such Onesim
               might happen, but he does not anticipate that it
               will be captured!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer #1:</font></b> It says 'v'Nishbar Oh Mes' regarding a
          borrower and regarding a Shomer Sachar. Just like being
          captured has the same law as breakage or death for a
          Shomer Sachar (he is exempt for either), also for a
          borrower (he is liable for either).
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Objection:</font></b> We cannot learn from a Shomer Sachar, who is
          exempt, that a borrower is liable! (Perhaps the Torah
          never obligates for being captured.)
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer #2 (Beraisa - R. Noson):</font></b> 'Oh' includes being 
          captured.
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  	Question:</font></b> We need 'Oh' to separate! One might have
          thought that he is liable only if it breaks and dies.
          'Oh' teaches that this is not so
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is not difficult for R. Yonason, but according
               to R. Yoshiyah, how can we answer?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa - R. Yoshiyah):</font></b> 'If a man will curse Es
               Aviv v'Es Imo' teaches only if he curses both;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  'Aviv v'Imo Kilel' includes even if he cursed 
                    only one of them.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yonason says, the prefix 'Vov' connotes even one,
               unless the Torah explicitly says 'together' (like it
               does regarding Kilayim).
<br>

<p>

sjt:
</p><p>
<font><b>3) 'MILSA D'ASYA B'KAL VA'CHOMER TARACH V'CHASAV LAH KRA'</b></font><b>
<br>QUESTION:</b> The Gemara asks what the source is for the Halachah that a Shomer Sachar is obligated to pay in a case of Aveidah. The Gemara answers that his obligation is derived from the repetition in the verse 'Im Ganov Yiganev' (Shemos 22:11). The Gemara then asks that this answer suffices only according to the opinion that the Torah 'does not speak in the style of man.' That opinion maintains that when the Torah uses a repetitious term such as 'Im Ganov Yiganev,' the extra word is meant to convey a piece of information. However, another opinion maintains that the Torah <i>does</i> speak in the style of man, and according to that opinion nothing can be inferred from the extra word in the verse. What, then, is the source of the Halachah that a Shomer Sachar is obligated for Aveidah? The Gemara answers that the source is a Kal va'Chomer: if a Shomer Sachar is liable for a stolen object even though Geneivah is more similar to an Ones, he certainly should be obligated to pay for a lost object, since Aveidah is more similar to negligence.
</p><p>
The Gemara explains that according to the first opinion, although there is a Kal va'Chomer the extra word in the verse still teaches that a Shomer Sachar is obligated for Aveidah because 'Milsa d'Asya b'Kal va'Chomer, Tarach v'Chasav Lah Kra' -- 'the Torah troubles itself to write explicitly that which can be learned from a Kal va'Chomer.'
</p><p>
What is the logic behind this principle? If a Halachah is known from a Kal va'Chomer, why would the Torah add extra words to teach it? Moreover, a Kal va'Chomer is the most logical and understood of the thirteen methods that the Chachamim use to extrapolate the Halachah from the verses of the Torah. In fact, a person may use the rules of Kal va'Chomer to derive a Halachah even if he has no tradition to make such a Kal va'Chomer. This is in contrast to a Gezeirah Shavah, for which there must be a tradition from Sinai. Why, then, is it necessary for a verse to repeat something that can be derived from a Kal va'Chomer? Indeed, the Gemara never mentions such a principle with regard to any of the other thirteen methods of Halachic derivation, such as a Gezeirah Shavah, although it would seem to make more sense for the Torah to trouble itself to write a Halachah that can be derived from a Gezeirah Shavah since a Gezeirah Shavah does not have any apparent logic to it.
</p><p>
<b>ANSWER:</b> The <b>BNEI YISSACHAR</b> (Chodesh Adar, Ma'amar 10, cited by <b>YOSEF DA'AS</b>) explains that <i>none</i> of the other thirteen methods are based on human logic. They are purely methods of derivation taught at Sinai. The only exception is a Kal va'Chomer which, in addition to having been taught at Sinai, also has some logical basis. The Torah troubles itself specifically to write a law that can be learned <i>through a Kal va'Chomer,</i> the only type of Halachic derivation with a logical basis, in order to teach that all of the Mitzvos of the Torah are beyond logical understanding and must be fulfilled merely because they are the will of Hash-m.
</p><p>
Perhaps this also explains the principle stated in Shabbos (132a) and Pesachim (81b) that 'Ein Danin Kal va'Chomer me'Halachah' -- a Kal va'Chomer cannot be used to derive a second Halachah from a Halachah l'Moshe mi'Sinai. <b>RASHI</b> there explains 'that Torah she'Ba'al Peh is not given to be expounded with the thirteen methods.' This seems difficult to understand. If a Kal va'Chomer is a logical tool, then why should a Kal va'Chomer not be made from a Halachah l'Moshe mi'Sinai? The answer is, as mentioned above, that if the methods of Halachic derivation had not been taught at Sinai, man would not have been permitted to extrapolate a new Halachah through any method, regardless of how logical it might be. The Chachamim are able to apply the methods of Halachic derivation only because the Torah teaches that they may do so, but the Torah permits this only with regard to laws written explicitly in the Torah. Since that license is not given with regard to Torah she'Ba'al Peh, even a Kal va'Chomer may not be made. This is the reasoning behind the principle, 'Ein Danin Kal va'Chomer me'Halachah.' (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LIABILITIES OF THE SHOMRIM (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer:</font></b> This is even like R. Yoshiyah. Here, we do not
          need 'Oh' to separate.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Breakage is like partial death. Since he is
               liable for full death, he should pay also for
               partial death.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source that a borrower is liable
          for theft or loss?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> We learn from breakage or death.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> He is liable for those because the owner
               cannot retrieve it. If it was stolen or lost, the
               owner can toil and retrieve it!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> 'V'Nishbar Oh Mes' - we learn theft or
          loss from a Kal va'Chomer:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Shomer Sachar is exempt for breakage or death, yet
               he is liable for theft or loss. A borrower is liable
               for breakage or death. All the more so he is liable
               for theft or loss!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This Kal va'Chomer cannot be refuted.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What does this mean?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> The following question does not refute the
               Kal va'Chomer.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> There is a stringency of a Shomer
                    Sachar. He pays Kefel if he claims that armed
                    robbers stole it (and really, he stole it
                    himself)!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer #1:</font></b> It is more stringent to pay
                    principal, than to swear and be exempt (and pay
                    Kefel if he stole it himself).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer #2:</font></b> The Tana holds that armed robbers
                    are like regular robbers. (Kefel is only for a
                    claim of theft.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source that if one borrows
          b'Ba'alim (from his employee) he is exempt for theft or
          loss?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> We learn from breakage or death.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> We cannot learn from them. They are
               Onesim!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, we learn from a Shomer Sachar.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the source that a Shomer Sachar is
               exempt for these b'Ba'alim (if the depositor was
               working for the Shomer)?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> We learn liabilities of a Shomer Sachar
               (theft or loss) from the liabilities (explicit in
               the Torah) of a borrower (breakage or death). Just
               like a borrower is exempt b'Ba'alim, also a Shomer
               Sachar.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What method teaches this?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> We learn from a 'Mah Matzinu' (just
                    like we find here, the same applies there).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection:</font></b> We cannot learn from breakage or
                    death. They are Onesim!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, we learn from 'v'Chi Yish'al' - the
               Vov teaches that the former Parshah (a Shomer
               Sachar) is learned from the latter (a borrower).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection:</font></b> We cannot learn from a Shomer Sachar, for he
          is exempt for breakage or death!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, we learned that a borrower is liable
          for theft or loss from (a Kal va'Chomer from) a Shomer
          Sachar. We say Dayo (we cannot learn more than the
          source, i.e. not b'Ba'alim).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> This is according to the opinion that says
               Dayo. According to the opinion that does not say
               Dayo, how can we answer?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer#3:</font></b> 'V'Chi Yish'al' connects the Parshiyos. We
          learn each from the other.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>NEGLIGENCE B'BA'ALIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Acha or Ravina):</font></b> One who borrowed b'Ba'alim and was
          negligent is liable.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(The other of Rav Acha and Ravina):</font></b> He is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first opinion learns the exemption of b'Ba'alim
               to the previous Parshah (a Shomer Sachar), not to
               the Parshah before the previous Parshah (a Shomer
               Chinam);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Therefore, a Shomer Chinam (who is liable only
                    for negligence) is liable b'Ba'alim. We learn
                    from a Kal va'Chomer that a Shomer Sachar or
                    borrower is liable for negligence b'Ba'alim.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> The exemption of b'Ba'alim was written only
                    regarding the other obligations of a Shomer
                    Sachar and borrower.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The latter opinion holds that we learn also to two
               Parshiyos earlier. (A Shomer Chinam is liable only
               for negligence, and he is exempt b'Ba'alim. There is
               no source to obligate other Shomrim for negligence
               b'Ba'alim.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Implied question:</font></b> What is the law?)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Mishnah):</font></b> If Reuven borrowed Shimon's cow and
          at the same time asked or hired Shimon to work for him,
          or if he asked or hired Shimon to work and later borrowed
          it, and the cow died, Reuven is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah does not say that a Shomer Chinam is
               exempt b'Ba'alim. (It must be that he is liable)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> It does not mention a Shomer Sachar, even
          though he is exempt!
<br>
<br>

sjt:
<font><b>1) PLOWING WITH AN OX</b></font><b>
<br>QUESTION:</b> The Gemara (end of 94b) cites the Machlokes between Rebbi Yonasan and Rebbi Oshiyah with regard to the implication of the conjunctive 'Vav' ('and'). Rebbi Yonasan says that a 'Vav' between two words indicates that the Halachah applies to either one of them, even if they are not both together, unless the verse specifically states 'Yachdav.' As an example, <b>RASHI</b> quotes the verse, 'Lo Sacharosh b'Shor uva'Chamor <i>Yachdav</i>' -- 'Do not plow with an ox and a donkey <i>together</i>' (Devarim 22:10). Had the verse not written 'Yachdav,' it would have been understood to mean that one may not plow at all, either with an ox alone or with a donkey alone.
</p><p>
How could there have been an assumption that the Torah would prohibit plowing with an ox alone? The Torah explicitly commands that one must let his ox rest on Shabbos (Shemos 23:12). This implies that during the rest of the week one certainly may plow with an ox! It cannot be that the Torah's requirement that one let his ox rest on Shabbos refers to other forms of work on Shabbos, while plowing is forbidden on any day of the week. An ox is used primarily for plowing, and thus when the Torah requires a person to let his ox rest from work on Shabbos, it certainly refers to the primary form of work -- plowing. (<b>RITVA</b> in the name of <b>TOSFOS</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RITVA</b> quotes 'some who answer' that even if the Torah had prohibited plowing altogether with an ox (which would have been the implication of the verse without the word 'Yachdav'), it still would have been necessary for the other verse to command a person to let his ox rest on Shabbos. That verse would have been understood as a command that one not let even a Nochri plow with his ox on Shabbos (as a Nochri <i>may</i> plow with an ox during the week).
</p><p>
(b) The Ritva answers further that had the verse not written 'Yachdav,' it would have been understood as a prohibition for a <i>man himself</i> to plow with an ox or with a donkey, but it certainly would have been permitted to have an ox or a donkey plow by itself. The verse regarding Shabbos, therefore, would have been necessary to prohibit making one's ox plow by itself on Shabbos. The word 'Yachdav' teaches that although a man himself may plow together with an ox or a donkey, he may not have an ox and a donkey plow together. (I. Alsheich)
</p><p>


<font><b>2) THE SOURCE FOR THE LIABILITY OF A 'SHO'EL' FOR 'GENEIVAH V'AVEIDAH'</b></font><b>
<br>QUESTION:</b> The Gemara asks what the source is for the Halachah that a Sho'el is obligated in cases of Geneivah and Aveidah. The Gemara answers that it is derived from a Kal va'Chomer from Shomer Sachar. (According to the conclusion of the Gemara later that 'Vav Mosif Al Inyan Rishon,' the 'Vav Mosif' teaches that a Sho'el is obligated for Geneivah and Aveidah, and the Kal va'Chomer is no longer necessary, as <b>TOSFOS</b> (DH Vav) points out.)
</p><p>
Why does the Gemara need a Limud to teach that a Sho'el is obligated for Geneivah and Aveidah? A Sho'el's degree of liability certainly includes that of a Shomer Sachar. Since the liability of Shomer Sachar for Geneivah v'Aveidah is already known, a Sho'el certainly should be obligated as well. (<b>RIVASH</b> #279)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RIVASH</b> answers that a Sho'el in fact differs from a Shomer Sachar and his liability does not include that of a Shomer Sachar. A Shomer Sachar receives payment in return for guarding the object, as that was the agreement made between the two parties. A Sho'el, in contrast, receives no benefits in exchange for guarding the object. (Although he benefits in that he is permitted to use the object, that benefit is not given to him in exchange for guarding it.) Rather, the two parties agreed that the owner would lend his object to the borrower for free, and the owner does not mind that the borrower will benefit from the usage of the object. A Sho'el therefore is obligated to guard the object like a Shomer Chinam, since he is not being paid to guard it, and thus a Sho'el's liability for Geneivah and Aveidah cannot be derived from the degree of liability of a Shomer Sachar.
</p><p>
(b) The Rivash answers further that it is necessary to have an independent source to teach that a Sho'el is obligated for Geneivah and Aveidah because without such a source it would have been logical to assume that he would be exempt. If a Sho'el would be liable for Geneivah and Aveidah because he is no less accountable than a Shomer Sachar, it would emerge that he is not the sole beneficiary of the arrangement; the owner of the object would also benefit because his object would be guarded by a Shomer Sachar. The Gemara, however, states that in a case of She'eilah, the Sho'el is the sole beneficiary ('Kol ha'Hana'ah Shelo'), and that is why a Sho'el is liable for Onsin. Hence, the liability of a Sho'el for Geneivah and Aveidah cannot be due to the fact that he is also a Shomer Sachar, and the Gemara must find a different source to establish that a Sho'el is liable for Geneivah and Aveidah. Without such a source, it would have been logical to understand that the Torah in fact exempts a Sho'el from such liability so that he will have an absolute status of 'Kol ha'Hana'ah Shelo.' (A similar answer is suggested by the <b>TESHUVOS HA'RAN</b>, cited by the <b>SHACH</b> CM 72:11. Similarly, the <b>MACHANEH EFRAIM</b>, Hilchos She'eilah #3, writes that a Sho'el who borrows Sifrei Kodesh is not the sole beneficiary of the She'eilah because the lender also benefits from the 'Perutah d'Rav Yosef' when others are learning Torah from his books.) (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN MUST THE OWNER BE WORKING FOR HIM TO BE CONSIDERED <i>B'BA'ALIM</i>?</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'> 94b (Mishnah):</font></b> If David David borrowed Levi's cow
               and at the same time asked or hired Levi to work for
               him, or if he Sho'al (asked) or hired Levi to work
               and later borrowed it, and the cow died, David is
               exempt - 'Im Ba'alav Imo Lo Yeshalem'. If he
               borrowed Levi's cow and later asked or hired Levi to
               work for him and the cow died, he is liable -
               'Ba'alav Ein Imo Shalem Yeshalem.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> The middle clause says 'and later borrowed
               the cow.' This implies that the Reisha means
               precisely at the same time. How is this possible?
               Levi is hired as soon as David asks, but the cow is
               not borrowed until David does Meshichah (takes it to
               his premises)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answers:</font></b> The cow was already in David's Chatzer, so
               no Meshichah is needed. Or, David asked Levi to
               begin working when he does Meshichah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Abaye):</font></b> 'Ba'alav Ein Imo Shalem Yeshalem' - he is
               liable because the owner was not working for him at
               either time, not the time of She'elah nor the time
               of death. If he was working for him at one time, he
               is exempt.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> 'Im Ba'alav Imo Lo Yeshalem' exempts only
               if the owner was working for him at both times.If he
               was working at only one time, he is liable!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> If he was working for him only at the time
               of She'elah, he is exempt. If he was working only at
               the time of death, he is liable!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rava):</font></b> 'Im Ba'alav Imo Lo Yeshalem' - he is exempt
               if the owner was working for him at both times, or
               even at one of them.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> 'Ba'alav Ein Imo Shalem Yeshalem' - he is
               liable if the owner was not working for him at even
               one of the times!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer:</font></b> If he was working for him only at the time
               of She'elah, he is exempt. If he was working only at
               the time of death, he is liable!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question:</font></b> We can say oppositely! If he was working
               only at the time of She'elah, he is liable. If he
               was working only at the time of death, he is exempt!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer #1:</font></b> Presumably, the time of She'elah is more
               important, since the animal comes to his
               jurisdiction.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Question:</font></b> No, the time of breakage or death is more
               important, for that is what he pays for!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Answer:</font></b> He is liable for feeding it from when he
               borrows it.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer #2 (Rav Ashi):</font></b> One is liable for She'elah
               '<i>me'Im</i> Re'ehu' (from his neighbor), but not for
               She'elah 'Im (with) Re'ehu'.
<br>        <b>  <b><font color='darkgreen'>15. </font></b></b> We need 'Be'alav Ein Imo' and 'Im Be'alav Imo'. If
               not for them, we would say that it is normal for the
               verse to say me'Im Re'ehu and not expound it.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> 97a (Rava):</font></b> If one wants to borrow something and be
               exempt, he should ask the lender 'give me a drink of
               water.' This is b'Ba'alim. If the lender is sharp,
               he will tell the borrower 'I will give to you after
               you take the object.
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> (Rava):</font></b> The following are considered b'Ba'alim when
               they are working: a teacher of children (who lends
               to the parents), one hired to plant a vineyard for
               half the Peros, a slaughterer, a blood-letter, and
               the town Sofer.
<br>        <b>  <b><font color='darkgreen'>18. </font></b><font color='darkgreen'> Rabanan (to Rava):</font></b> You work for us.
<br>        <b>  <b><font color='darkgreen'>19. </font></b><font color='darkgreen'> Rava:</font></b> No, you work for me. I decide which tractate
               we learn, and you cannot protest!
<br>        <b>  <b><font color='darkgreen'>20. </font></b></b> The Halachah is, before the festival, when the Rebbi
               must teach laws of the festival, he works for them.
               At other times, they work for 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 and Rosh (8:1):</font></b> If he was working for him at the
               time of She'elah, even if he was not working for him
               at the time of death, he is exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (6):</font></b> Rava (97a) says that She'elah b'Ba'alim is
               only if he was working at the time, but the
               beginning of the Perek says that it is from when he
               accepted to work! It seems that Rava does not mean
               when they are working, rather, from when they
               prepare and move themselves to go. The Ra'avad
               explains like this. If one asked to borrow Ploni and
               his cow, from when he starts walking with his cow,
               even before they leave his house, the She'elah
               began. He explains that 'at the time of working'
               means at a time that he could do that task, even if
               he is not working. I.e. since he is hired for the
               city whenever they need him, it is She'elah
               b'Ba'alim to the entire city, for if anyone needed
               him, he must work for him. This is like partners who
               hired someone for a month or year. It is always
               She'elah b'Ba'alim to the partners.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos She'elah 2:1):</font></b> If one was Sho'el
               b'Ba'alim, even if it was lost or stolen through
               negligence, he is exempt, as long as the owner was
               borrowed first. The same applies if the owner was
               borrowed or rented, whether for the same job or a
               different one (than the item borrowed). Even if one
               told his friend 'give to me water to drink' and
               borrowed his animal, and he give to him to drink and
               gave to him the animal, this is She'elah b'Ba'alim 
               and he is exempt. If he did Meshichah on the animal
               and afterwards give to him to drink, it is not
               She'elah b'Ba'alim. The same applies to all similar
               cases.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 1:3):</font></b> If one deposited with
               his friend, for free or for pay or lent or rented to
               him, if the Shomer borrowed or hired the owner with
               the item, the Shomer is totally exempt. This is even
               if it was lost through negligence. This is when he
               borrowed or hired the owner at the time he took the
               item, even if the owner was not there at the time of
               the Ones. If he took the item first and became a
               Shomer, and after it came to his Reshus he hired or
               borrowed the owner, even if the owner was there at
               the time of the Ones, he must pay. Tradition teaches
               that if the owner was with him (borrowed or hired)
               when he borrowed the item, even if he was not with
               him at the time of theft or death, he is exempt. If
               he was with not with him when he borrowed the item,
               even if he was with him at the time of theft or
               death, he is liable. The same applies to other
               Shomrim. All are exempt b'Ba'alim, even for
               negligence.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 346:1):</font></b> If one borrowed, and the
               lender was with (working for) the borrower when he
               did Meshichah on the borrowed item, even if it was
               lost or stolen through negligence, he is exempt.
               This is whether the owner was working for free or
               was hired, whether for the same job or a different
               one than the item borrowed. Even if one told his
               friend 'give to me water to drink' and lent to him
               his cow while giving to him to drink, this is
               She'elah b'Ba'alim and he is exempt. If he did
               Meshichah on the animal and afterwards give to him
               to drink, it is not She'elah b'Ba'alim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (1):</font></b> Ir Shushan says that the verse
                    connotes that it depends on whether or not the
                    owner was borrowed at the time he lent the
                    animal. He overlooked the Gemara (which said
                    that we could expound that it depends on the
                    time of Ones, and needed to learn from
                    reasoning).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (2):</font></b> Even if he did Meshichah on the animal
                    and afterwards the owner did a real labor for
                    the borrower, it is not She'elah b'Ba'alim.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (3):</font></b> The Rambam holds that She'elah
                    b'Ba'alim is only after he started working.
                    Tosfos and the Rosh hold that it is even before
                    he started (Sa'if 3).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> Whether the owner was borrowed
               together with the cow, or if he was borrowed or
               hired and afterwards lent his cow, the Shomer is
               exempt, even if the owner was not there at the time
               it broke or died. However, if he was not with him at
               the time he borrowed the item, and afterwards he
               borrowed or hired the owner, it is not She'elah
               b'Ba'alim, even if the owner was there at the time
               it broke or died.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (3):</font></b> If he asked to borrow the owner
               and the owner agreed, even if he did not yet begin
               working when Meshichah was done, just he was
               preparing himself to go, this is b'Ba'alim. If he
               just verbally accepted to work for him, but did not
               prepare himself for work, it is not She'elah
               b'Ba'alim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tur:</font></b> The Ramah says similarly, but only if no
                    time was specified; he may do the task whenever
                    he wants. Since if he would say 'do it now', he
                    would do it, the She'elah already began, even
                    though he did not start working yet. If he told
                    him to do a task immediately, as long as he did
                    not begin, he is not considered to be working
                    for him.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bedek ha'Bayis:</font></b> It seems that this is a
                    printing mistake. For contrast with the Reisha,
                    the Tur should conclude 'if a time was fixed,
                    as long as he did not begin, he is not
                    considered to be working for him.' However,
                    this is difficult, for if so, once the time
                    comes, he is considered to be working for him
                    even if he did not start yet.
<br>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We must say that the Tana teaches only a borrower
               because the Torah wrote b'Ba'alim regarding a
               borrower.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Beraisa):</font></b> If Reuven borrowed Shimon's cow and
          (at the same time) asked Shimon to work for him, or if he
          rented the cow and hired Shimon, or he borrowed the cow
          and hired Shimon, or he rented the cow and asked Shimon
          to work, even if Shimon was working somewhere else when
          the cow died, Reuven is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We are thinking that the Beraisa is R. Yehudah, who
               says that a renter is liable like a Shomer Sachar.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Tana teaches a renter, (even though his
               exemption b'Ba'alim is learned by expounding), but
               he does not teach about a Shomer Chinam. We must say
               that a Shomer Chinam is liable b'Ba'alim!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> The Beraisa is R. Meir, who says that a
          renter is liable like a Shomer Chinam;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Tana teaches that a Shomer Chinam is exempt
               b'Ba'alim, and the same applies to a Shomer Sachar.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> The Beraisa is R. Yehudah, according to
          Rabah bar Avuha, who switches the opinions.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah bar Avuha):</font></b> R. Meir says that a renter is
               like a Shomer Sachar, and R. Yehudah says that he is
               like a Shomer Chinam;
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHEN MUST THE OWNER BE WORKING FOR HIM TO BE CONSIDERED B'BA'ALIM?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Hamnuna):</font></b> Reuven (the borrower) is liable unless the 
          owner was working with his animal, and he was working for
          Reuven from the moment he borrowed it until it broke or
          died.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He holds that 'Ba'alav Imo' applies to the entire
               Parshah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question #1 (Rava - Beraisa):</font></b> If (at the same time)
          Reuven borrowed Shimon's cow and asked Shimon to work for
          him, or if he rented the cow and hired Shimon, or he
          borrowed the cow and hired Shimon, or he rented the cow
          and asked Shimon to work, even if Shimon was working
          somewhere else when the cow died, Reuven is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Shimon was not working on the same task
               as his cow.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> No, he was working on the same task.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> It says 'even if Shimon was working
               somewhere else'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It means that he was softening the ground in
               front of it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Since the Seifa says that he was on (i.e.
               working with) the animal, the Reisha means he was
               doing a different task!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Seifa):</font></b> If Reuven borrowed Shimon's cow and
                    later asked Shimon to work for him, or if he
                    rented the cow and later hired Shimon, even if
                    Shimon was on the cow when it died, Reuven is
                    liable.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> In both clauses, Shimon was working with it.
               Each clause teaches a Chidush;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The Reisha teaches that even though he was not
                    on it, just engaged in the same task, since he
                    was hired from the beginning of the rental,
                    Reuven is exempt;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> The second clause teaches that even though he
                    was on it, since he was not hired from the
                    beginning of the rental, Reuven is liable.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> If in the Reisha he was doing a different task
          and in the Seifa he was engaged in the same task, each
          would be a Chidush;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But if in both clauses, Shimon was engaged in the
               same task, what difference does it make it he was on
               it?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question #2 (Beraisa) Question:</font></b> Since it says 'Im Ba'alav
          Imo Lo Yeshalem', we can infer that 'Ba'alav Ein Imo
          Shalem Yeshalem'!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> The latter verse is extra, to teach that the
               exemption is only if Shimon was working for him when
               the animal was borrowed. It does not matter whether
               or not he was working for him when it broke or died.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question #3 (Beraisa) Question:</font></b> Since it says 'Ba'alav
          Ein Imo Shalem Yeshalem', we can infer that 'Im Ba'alav
          Imo Lo Yeshalem'!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> 'Im Ba'alav' is extra, to teach if the
               animal was borrowed b'Ba'alim, whenever it may die
               (even after the owner stops working for the
               borrower) he is exempt.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Rav Hamnuna is refuted.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Abaye holds like R. Yoshiyah, and expounds the verses
          like R. Yoshiyah. Rava holds like R. Yonason, and
          expounds the verses like R. Yonason.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Abaye):</font></b> 'Ba'alav Ein Imo Shalem Yeshalem' - he is liable
          because the owner was not working for him at either time,
          not the time of borrowing nor the time of death;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he was working for him at one time, he is exempt.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> It says 'Im Ba'alav Imo Lo Yeshalem' - he is
          exempt only if the owner was working for him at both
          times;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he was working for him at only one time, he is
               liable!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> If he was working for him only at the time of
          borrowing, he is exempt. If he was working only at the
          time of death, he is liable!
<br>

sjt:
</p><p>
<font><b>3) THE MORE IMPORTANT TYPE OF 'HALACHAH'</b></font><b>
<br>QUESTION:</b> The Amora'im argue whether the exemption of 'Ba'alav Imo,' written in the Torah in the Parshah of Sho'el (Shemos 22:14), refers also to Shomer Sachar (the preceding Parshah) <i>and</i> to Shomer Chinam (the Parshah before the preceding Parshah), or only to Shomer Sachar. If it does not refer to Shomer Chinam, then there is no source to exempt any Shomer in a case of Peshi'ah when 'Ba'alav Imo.' The Gemara attempts to prove from the Mishnah (94a) -- which mentions the exemption of 'Ba'alav Imo' with regard to a Sho'el but does not mention it with regard to a Shomer Chinam -- that the exemption does not apply to a Shomer Chinam. The Gemara answers that the Mishnah does not mention a Shomer Sachar either, and thus it must be that the Mishnah mentions only a case in which the Torah explicitly writes the exemption of 'Ba'alav Imo' (i.e. Sho'el), and it does not mention cases in which the exemption is derived through a Limud (i.e. a Shomer Sachar and a Shomer Chinam).
</p><p>
The <b>MAHARATZ CHAYOS</b> asks that an opposite idea is found elsewhere in the Gemara. The Gemara in Nedarim (3a) and Yevamos (2a) says that the Mishnayos there (2a) prefer to teach the laws that are derived through a Limud and are not written explicitly in the Torah, because 'since it is derived through a Derashah, it is beloved [to the Tana]' (see also Bava Kama 17b, Bava Basra 108b, and elsewhere). How are these opposing Gemaras to be reconciled?
</p><p>
<b>ANSWER:</b> The <b>MAHARATZ CHAYOS</b> answers that in Nedarim and Yevamos, the Mishnah teaches <i>both</i> Halachos -- that which is derived through a Limud, and that which is written explicitly in the Torah. It merely teaches that which is derived through a Limud <i>first</i>. He explains this based on the words of <b>RAV MOSHE KAZIS</b> (in <b>SEFER KIN'AS SOFRIM</b>, and as cited by the <b>YAD MALACHI</b> #11) who asks why the Gemara there (Nedarim and Yevamos) says that 'since [a Halachah] is derived through a Derashah, it is <i>beloved</i>?' It would have seemed more logical for the Gemara to say that such a Halachah is 'more important.' Rav Moshe Kazis explains that when one derives a Halachah through his own toil in applying the methods of Halachic derivation, that Halachah is more cherished and beloved to him because of the effort he exerted to learn it. Based on this, the Maharatz Chayos explains that in Nedarim and Yevamos, where the Tana teaches both Halachos, he prefers to write the one that is 'beloved to him' first. That Halachah, though, is not <i>more important</i> than a Halachah written explicitly in the Torah, but is merely more beloved. Here, where the Mishnah mentions only one Halachah, it chooses the Halachah which is written explicitly in the Torah, for that indeed is the 'more important' one to teach.
</p><p>
(Although this explains why the Mishnah in Nedarim <i>explains</i> the laws of Yados first, it does not explain why the Gemara in Nedarim says that the Mishnah there first <i>mentions</i> the Halachah that is explicit in the Torah (i.e. Kinuyim), and only afterward mentions that which is learned from a Derashah. The <b>BEIS YOSEF</b>, in his commentary to Halichos Olam, <b>KLALEI HA'GEMARA</b> 3:19, discusses this. See <b>HALICHOS OLAM</b> there, and see also <b>YAVIN SHEMU'AH</b> there.) (I. Alsheich)
</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN MUST HE BE WORKING FOR HIM? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> 'Im Ba'alav Imo Lo Yeshalem' - he is exempt if
          the owner was working for him at both times, or even at
          one of them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> 'Ba'alav Ein Imo Shalem Yeshalem' - he is
          liable if the owner was not working for him at even one
          of the times!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> If he was working for him only at the time of
          borrowing, he is exempt. If he was working only at the
          time of death, he is liable!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Perhaps it is the other way! If he was
          working for him only at the time of borrowing, he is
          liable. If he was working only at the time of death, he
          is exempt!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Presumably, the time of borrowing is more
          important, since the animal comes to his jurisdiction.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> No, the time of breakage or death is more
               important, for that is what he pays for!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Had he not borrowed, he would not be liable
               for the death.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Had it not died, he would not be liable
               for borrowing!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> He is liable for feeding it from when he
               borrows it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> 'When a man will borrow me'Im
          Re'ehu (from his neighbor, he will be liable)', but not
          when he borrows Im Re'ehu (with his neighbor, at the time
          of borrowing).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why do we need the verses 'Be'alav Ein
          Imo' and 'Im Be'alav Imo'?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> If not for them, we would not have expounded
          'me'Im Re'ehu.' We would have said that it is normal for
          a verse to speak this way.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN IS A BORROWER LIABLE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rami bar Chama):</font></b> If Reuven borrowed an animal
          for bestiality, is this considered borrowing (Rashi - to
          be liable for Ones; Rambam - to get the exemption of
          b'Ba'alim, but liability for Ones comes for having used
          it, even if he is not a borrower)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps the Torah discusses only normal borrowing;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, a borrower is one who gets free benefit, and
               here also he gets free benefit!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> If he borrowed something to appear rich, is he
          like a borrower?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it depends on getting monetary benefit, he gets
               it (people will give him credit);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps he must benefit from the object itself!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If he borrowed an animal to use for less than
          the value of a Perutah, is he like a borrower?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it depends on (getting benefit from) something of
               worth, this is fulfilled;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps less than a Perutah is like getting no
               benefit?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If you will say that borrowing to use for less
          than a Perutah is not like borrowing, if he borrowed two
          animals to use for a Perutah, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The borrower gets a Perutah of benefit;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since each borrowed animal does less than a
               Perutah of work, perhaps he is unlike a borrower!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If Reuven borrowed from two partners, and one
          of them was working for him, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps the exemption is only if all the owners are
               working for him, and they are not;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps he is exempt for the half of the owner
               working for him!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If two partners borrowed from Shimon, and he
          was working for one of them, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps the exemption is only if the owner is
               working for all the borrowers, and he is not;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps the partner for whom the owner is
               working is exempt for his half?
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DOES A HUSBAND OWN HIS WIFE'S PROPERTY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> If Reuven borrowed a woman's animal and hired
          her husband, or if a woman borrowed an animal and her
          husband hired the owner, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Is Kinyan Peros (a husband's owns the earnings of
               his wife's property) like Kinyan ha'Guf (owning the
               property itself)?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> If Reuven told Shimon 'go work in
          place of me with my cow', what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps the exemption is only when the owner himself
               works;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, do we say that one's Shali'ach is like himself?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Acha brei d'Rav Avya):</font></b> R. Yochanan and Reish Lakish
          argue about the question about the husband. R. Yonason
          and R. Yoshiyah argue about the question about the
          Shali'ach.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> If Reuven sold the rights to the
               Peros of his field to Shimon, Shimon brings Bikurim
               and recites the Parshah (in which he thanks Hash-m
               for 'the land that You gave to me.') Kinyan Peros is
               like Kinyan ha'Guf ;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Reish Lakish):</font></b> Shimon brings Bikurim but does not
               recite the Parshah. Kinyan Peros is not like Kinyan
               ha'Guf.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  (R. Yochanan considers a husband to own his
                    wife's property. Reish Lakish does not.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Beraisa - R. Yoshiyah) Suggestion:</font></b> If Reuven told
               Shimon 'annul any vows that my wife will take until
               I return from my trip' (and he did so), perhaps they
               are annulled !
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> 'Ishah Yekimenu v'Ishah Yeferenu' (only
               her husband can annul them).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> R. Yonason says, a man's Shali'ach is like himself
               in all respects.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  (R. Yonason says that one's Shali'ach is like
                    himself regarding borrowing b'Ba'alim. R.
                    Yoshiyah argues.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Ilish):</font></b> If Reuven told his slave 'go work
          in place of me with my cow', what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We can ask according to R. Yonason (who says that a
               man's Shali'ach is like himself) and according to R.
               Yoshiyah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Perhaps R. Yonason says that one's Shali'ach is
                    like himself only when the Shali'ach himself is
                    commanded about the matter, but a slave cannot
                    be a lender or borrower (whatever he gets
                    belongs to his master)!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Perhaps R. Yoshiyah agrees that one's slave is
                    like himself, because the slave's Yad (power of
                    acquisition) is like his master's Yad!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Presumably, a man's slave is like himself.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rami bar Chama):</font></b> Is a man like a borrower of
          his wife's property, or a renter?
<br>
<br>

sjt:
<font><b>1) WHEN MUST THE OWNER BE WITH THE BORROWER FOR THE EXEMPTION OF 'BA'ALAV IMO' TO APPLY</b></font><b>
<br>QUESTION:</b> The Gemara derives from verses that a Sho'el is granted the exemption of 'Ba'alav Imo' as long as the owner of the animal is with him at the time of the She'eilah, even if the owner is not with him at the time that the animal dies. The Gemara asks why the exemption of 'Ba'alav Imo' depends upon the owner being with the Sho'el at the time of She'eilah; perhaps it should depend upon the time of the animal's death, because it is at that moment that the Sho'el would become Chayav (when the owner is not with him) to pay for the Ones. The Gemara concludes that the time of She'eilah is more important because it is at that moment that the Sho'el becomes obligated to feed the animal.
</p><p>
What is the connection between the Sho'el's obligation to feed the animal and the exemption of 'Ba'alav Imo'?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MA'AYANEI HA'CHOCHMAH</b> answers that the Sho'el's liability for Onsin takes effect at the same moment that his obligation to feed the animal takes effect. The Gemara here rejects its previous assumption that the Sho'el's obligation to pay for an Ones takes effect at the time that the Ones occurs (i.e. when the animal dies). To prove this, the Gemara points out that the Sho'el becomes obligated to feed the animal at the moment he borrows it. This shows that <i>all</i> of his obligations take effect at that moment, including the obligation to pay for the animal if an Ones occurs. Accordingly, it is logical the Sho'el is exempt if the owner was with him at the time that he borrowed the animal. (See Kesuvos 34b, where the Gemara suggests (in its Havah Amina) that since the Sho'el becomes obligated to feed the animal at the moment he does Meshichah, he becomes obligated in Onsin from that moment as well. The Gemara here follows the Havah Amina of the Gemara in Kesuvos.)
</p><p>
(b) The <b>DARCHEI DAVID</b> answers that the Gemara cites the Sho'el's obligation to feed the animal as an example of an obligation that takes effect at the moment of She'eilah. The Gemara means to say that at the moment of She'eilah, <i>all</i> of the laws and obligations of the Sho'el take effect. It follows logically, then, that the exemption of 'Ba'alav Imo' takes effect at the same moment that the obligations of the Sho'el take effect, because the law of 'Ba'alav Imo' itself suspends some of the obligations of the Sho'el. (I. Alsheich)
</p><p>


<font><b>2) HALACHAH: BORROWING AN ITEM TO BENEFIT FROM IT IN A WAY OTHER THAN USING IT</b></font><b>
<br>OPINIONS:</b> The Gemara asks whether a borrower is obligated for Onsin when he borrows an item merely in order to be seen with it (so that people think he is wealthy and will not refrain from selling to him on credit) but does not actually use the item. If the obligation for Onsin applies whenever one derives monetary benefit from borrowing the item, then the borrower would be obligated for Onsin in such a case since he <i>does</i> derive monetary benefit (in that people will sell to him on credit). If, however, the obligation for Onsin applies only when the benefit comes from the item itself, then this borrower would not be obligated for Onsin since he does not benefit from the item itself. The Gemara leaves this question unanswered. The Halachah is that 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' and the Sho'el does <i>not</i> have to pay in the event of an Ones.
</p><p>
This question has other important ramifications.
</p><p>
(a) The <b>MACHANEH EFRAIM</b> (Hilchos She'eilah #3; see also Insights to Bava Metzia 95:2) and the <b>KETZOS HA'CHOSHEN</b> (72:34) cite the <b>RAN</b> (in a Teshuvah) who writes that a person who borrows a Sefer is <i>not</i> obligated to pay if the Sefer is destroyed in an Ones. The Ran explains that this case of She'eilah differs from a normal case of She'eilah. In a normal case of She'eilah, a Sho'el is obligated for Onsin because he is the sole beneficiary ('Kol ha'Hana'ah Shelo'). A person who borrows a Sefer, however, is not the sole beneficiary of the She'eilah; the lender also benefits when he loans a Sefer since he does a Mitzvah by enabling someone else to learn with his Sefer, and thus he is exempt from Tzedakah at that moment because of the rule of 'Perutah d'Rav Yosef.' (The Machaneh Efraim questions whether the exemption of 'Perutah d'Rav Yosef' would apply in such a case.)
</p><p>
The Machaneh Efraim and Ketzos ha'Choshen give a different reason for why the Sho'el should be exempt from Onsin. The fact that the lender benefits from the Mitzvah that he does is not a reason to exempt the Sho'el, because there is a principle that 'Mitzvos Lav Leihanos Nitnu,' Mitzvos were not given for the benefit derived from them, and any benefit is not considered Hana'ah. Thus, the lender is not considered as though he benefits from the She'eilah. However, the same principle dictates that when the Sho'el learns from the Sefer, the Mitzvah that he does is not considered Hana'ah. Hence, this type of She'eilah is identical to the case discussed by the Gemara here, in which the Sho'el receives no benefit from the actual object itself, although he does receive indirect monetary benefit from the object (in that he is exempt from giving a Perutah to a poor person while he is using the object). Since the Gemara leaves this question unanswered, the Halachah follows the rule of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah,' and thus the lender cannot demand that the Sho'el pay for an Ones.
</p><p>
(b) The <b>NESIVOS HA'MISHPAT</b> (72:17) challenges the Ketzos ha'Choshen's assertion that the case of a borrowed Sefer is similar to the case of one who borrows an item in order to appear wealthy. The <b>TAZ</b> (YD 221:43) writes that the principle that 'Mitzvos Lav Leihanos Nitnu' does <i>not</i> apply to the Mitzvah of learning Torah. The Torah gladdens man's heart and gives him pleasure. The Taz explains that since one experiences pleasure from learning Torah, he may not lend a Sefer to someone whom he has prohibited, with a Neder, from benefiting from his property. If he would lend a Sefer to such a person, the borrower would receive Hana'ah from the Madir, which is forbidden. Similarly, the pleasure that the borrower derives from learning with the Sefer certainly should be considered Hana'ah and he should be obligated for Onsin (if not for the reason of the Ran).
</p><p>
The Ketzos ha'Choshen responds (in <b>MESHOVEV NESIVOS</b>) that although the words of the Taz present a difficulty to his approach, his approach is supported by the words of the <b>HAGAHOS MAIMONIYOS</b> (cited by the <b>BEIS YOSEF</b> YD 221). The Hagahos Maimoniyos gives a different reason for why, in the case of a Neder, one may not lend a Sefer to a person who is prohibited to receive Hana'ah from him. The Hagahos Maimoniyos explains that since the owner of the Sefer would be able to rent out the Sefer in exchange for money, when he lends it for free the borrower benefits by saving the money he otherwise would have had to pay in order to rent the Sefer. That is why the Madir may not lend a Sefer to the Mudar, even though 'Mitzvos Lav Leihanos Nitnu' and the learning itself is not considered Hana'ah. (However, the view of the Taz is supported by the words of <b>RABEINU AVRAHAM MIN HA'HAR</b> in Nedarim (48a) who rules that the pleasure of learning Torah <i>is</i> considered Hana'ah. See Insights to Nedarim 48:1 for a discussion of whether the principle of 'Mitzvos Lav Leihanos Nitnu' applies to learning Torah.)
</p><p>
(c) The <b><b><b>OR</b></b> SAME'ACH</b> (Hilchos She'eilah 7:4) challenges the assertion of the Machaneh Efraim and the Ketzos ha'Choshen in a different way. He argues that borrowing a Sefer is not comparable to borrowing an item in order to appear wealthy. In general, the Torah obligates a Sho'el to pay for Onsin because the Sho'el becomes the 'owner' (temporarily) of the item that he borrows, since it enters his possession and the original owner loses his right to use it. Just as the real owner would have to suffer the loss if an Ones occurred to his object, so, too, the Sho'el must suffer any loss caused by an Ones.
</p><p>
Consequently, when a Sho'el borrows an item merely in order to be seen with it, he is not considered the full owner (even temporarily) of the item since he did not borrow it in order to <i>use</i> it. The Hana'ah which he gets is not from the actual usage of the item, and thus he is not using it in the manner of an owner. Therefore, the Gemara has a doubt in such a case as to whether the Sho'el has the status of a normal, full-fledged Sho'el.
</p><p>
In contrast, when one borrows a Sefer in order to learn from it, he uses the Sefer in the way that a Sefer is intended to be used (when a person buys a Sefer, that is the purpose for which he buys it). Hence, this Sho'el is like the 'owner' of the Sefer while it is in his possession; he uses the Sefer in the same way that its real owner would use it. (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>PARTNERS WHO OWE</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> 'V'Chichesh Bah' excludes one who admits
               to one of the brothers or partners who claimed from
               him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is that case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he admitted that he owed half to one
                    partner, he should be liable for denying the
                    other half!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, they say that they lent to him
               together, and he admits to borrowing the entire
               amount from one partner.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Bava Metzi'a 33b (Mishnah):</font></b> If Reuven deposited with
               Shimon an animal or Kelim, and they were stolen or
               lost, Shimon could swear and be exempt. If he paid
               and did not want to swear, and the thief was found,
               he pays Kefel (double) to Shimon.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 34b - Question:</font></b> If Shimon paid half, what is the
               law? (Does Reuven give to Shimon rights to collect
               half the Kefel?)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> If two partners borrowed, and one of them
               paid, what is the law?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 96a - Question:</font></b> If two partners borrowed from
               Shimon, and he was working for one of them, is this
               She'elah b'Ba'alim?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Perhaps the owner must be working for all the
                    borrowers. Or, perhaps the partner who is
                    employing the owner is exempt for his half?
<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 (Shevu'os 16b and 5:2):</font></b> The Yerushalmi
               expounds 'he denied his fellowman' to exclude one
               who lied to partners. R. Yosi inferred that if two
               borrowed from one, they are Arevim (guarantors) with
               responsibility for each other, even if they did not
               write this.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh and Ran (17a):</font></b> (The Yerushalmi continues) if
               two deposited with one, and one comes to take his
               half, we do not heed him. He will deny his half, and
               he will be liable. If one deposited with two, and
               one of them denied it, he is liable. If the other
               denied it, he is liable. If he deposited a Perutah
               with them, the Shevu'ah takes effect on a half-
               Perutah. Here, the Shevu'ah is on a Perutah. The
               Ramban explains that the verse refers to one who
               exempted himself through the Shevu'ah, and he would
               have been liable had he admitted. We exclude one who
               accepted a deposit from partners, and one partner
               claimed it, for had he admitted he would not be
               obligated or permitted to give it to him until his
               partner came. Therefore, he is not liable if the
               Shevu'ah was false. R. Yosi inferred that if two
               borrowed from one, even though they wrote only
               'Ploni and Almoni borrowed 100 from Levi', each is
               liable for the full amount. When two deposited with
               one, one depositor cannot say 'you are obligated to
               return my share.' The Shomer says 'I am liable only
               to both of you (together).' Likewise, when two
               borrowed from one, he can say 'I lent to both of
               you, and neither of you is exempt by paying just
               your share. Rather, each of you is responsible for
               the full amount.' The custom is not to rely on this.
               Rather, they write that they are responsible and
               Arevim for each other, so the document will make it
               clear. Since one is exempt when he swears to one
               partner, we infer that even if the Shomer admits, he
               need not give to him. When one deposits with two,
               they are liable, for each is responsible for the
               full amount. The Yerushalmi asked that each swears
               about half a Perutah. It answered that each is
               liable for the full amount.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh and Ran:</font></b> The Rif brought the Yerushalmi
               briefly. R. Chananel rules like it. R. Efrayim
               rejected it, for the Bavli did not say that one who
               denies to one partner is exempt. It exempted only
               one who says that he borrowed the entire amount from
               one partner. This is wrong. The laws of both
               Beraisos are true. The Bavli expounds 'to exclude
               one who admitted', therefore it teaches exemption
               due to admission. The Yerushalmi expounds 'to
               exclude one who denies', therefore it teaches
               exemption of one who totally denies.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh:</font></b> Some ask from a Tosefta (Bava Metzi'a 1:21)
               which says that if two borrowed in a document and
               Ploni paid his part, the document is still valid,
               and the lender writes 'I received your share.' This
               implies that Ploni is not responsible for the rest.
               This is not difficult. The case is, the document
               explicitly says that each of them borrowed 100. The
               Ra'avad explains that the Yerushalmi exempts one who
               denies to one partner, for the other partner can
               claim everything. Just like when two lent, one can
               claim everything, when two borrowed, the lender can
               claim everything from either. This is not the
               correct Perush of the Yerushalmi. Also, if one
               partner claimed the entire amount, and the borrower
               swore to deny it, the other partner can claim only
               his share. Most of this is from the Ramban.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 25:9):</font></b> If two borrowed in one
               document, or bought one purchase, or if one partner
               borrowed or bought for the partnership, they are
               Arevim for each other, even though they did not
               specify.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rosh (Bava Metzi'a 3:3):</font></b> Rashi said that we ask
               about a partner who paid half, which is all that is
               incumbent on him. Rashi does not mean that he is
               exempt if the other partner will not pay or swear.
               The partners are Arevim for each other! Rather, he
               paid what is incumbent on him, and perhaps his
               partner will pay (therefore, perhaps the owner
               immediately gives the Kefel to him).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Ran, ibid.):</font></b> We asked whether an
                    owner gives to a Shomer half the Kefel when the
                    Shomer agreed to pay for half. Then we asked
                    whether he gives half the Kefel when there were
                    two Shomrim and one agreed to pay for his half.
                    If he is responsible for the entire animal,
                    this is the same question!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Ran):</font></b> Even though letter of the law,
                    each Shomer is responsible for the entire
                    amount, perhaps the owner gives half the Kefel
                    when Shimon paid his entire obligation. If he
                    would pay the other half, he could collect it
                    back from the other Shomer. Alternatively, one
                    Shomer is responsible for the other's share
                    only like an Arev. The owner can claim from him
                    only if the other Shomer has no property. We
                    asked (96a) whether She'elah b'Ba'alim applies
                    when partners borrowed and the owner was
                    working for one of them. If a partner is fully
                    responsible, this is like working for all the
                    borrowers! Rather, one partner does not
                    intrinsically owe the entire amount. He is only
                    an Arev for his partner's share.
<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 77:1):</font></b> If two people borrowed
               together or bought an item together (Rema - or
               accepted a deposit together, whether with or without
               a document), they are Arevim for each other, even
               though they did not specify.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Da):</font></b> The Yerushalmi does not
                    distinguish whether or not there was a
                    document. The Rambam mentioned a document, for
                    this is the usual case. Alternatively, he
                    teaches that it is only if they borrowed like
                    one.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 2):</font></b> The Yerushalmi says 'even
                    if they did not write responsibility for each
                    other.' This connotes that there was a
                    document! The Rambam and all Poskim mention a
                    document. It is difficult to say that the same
                    applies without a document. The Rashba (1082)
                    clearly distinguishes. Perhaps the Beis Yosef
                    and Rema mean that the same applies without a
                    document when it is clear that they borrowed in
                    partnership.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Defense (Gra 4,5):</font></b> The Yerushalmi and Bavli
                    establish the Beraisos to discuss even a loan
                    with witnesses. The Yerushalmi cannot discuss a
                    loan document, for then either partner could
                    claim by himself!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> SMA (2):</font></b> It is reasonable that the lender
                    intended that if one cannot pay, he will
                    collect from the other.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Gra (2):</font></b> (Money owed for) a sale is like a
                    loan. It is included in the verse 'and he
                    denied' (Bava Kama 105b).
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Rema (Teshuvah 27):</font></b> If two overseers were
                    appointed, this is unlike two who borrowed
                    together. Borrowers get Hana'ah, so they are
                    Arevim for each other. The lender lent with
                    this intent. Why should one overseer accept to
                    be an Arev for the other?
<br>
<font color='blue'><i>See also:</i>
<br><b><b>MULTIPLE SHOMRIM </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Objection (Rava):</font></b> The question is pointless!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Whether he is a borrower or renter, he is
                    exempt, for this is b'Ba'alim (she works for
                    him)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rami bar Chama asked about one who rented
               a cow from a woman, and later married her.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If a husband is a borrower, borrowing b'Ba'alim
                    uproots the rental;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If a husband is a renter, he continues to be a
                    renter (and since it was not initially
                    b'Ba'alim, he is liable).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection:</font></b> If he is a borrower, we say that
               borrowing b'Ba'alim uproots the rental. Likewise,
               if he is a renter, we should say that renting
               b'Ba'alim uproots rental not b'Ba'alim!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #2:</font></b> Rami bar Chama asked about a woman who
               rented a cow from Shimon and later married Levi.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> He does not ask according to Chachamim (of R. Yosi,
               35b).
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  (If Simchah rented Shimon's cow and lent it to
                    Levi, and it died normally), Chachamim say that
                    Simchah swears that it died normally, and Levi
                    pays Simchah. Even if a husband is a borrower,
                    since he would pay his wife, this is b'Ba'alim,
                    so he is exempt.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> Rami bar Chama asks according to R. Yosi, who says
               that Levi pays Shimon.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since he is liable to pay Shimon (who is not
                    working for Levi or his wife), this is clearly
                    not b'Ba'alim. Rami asks if Levi is a renter or
                    a borrower.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> A husband is neither a renter or borrower,
          rather, a buyer;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yosi b'Rebbi Chanina):</font></b> (When a woman marries,
               her husband eats the Peros of her property. If she
               said that it should be Nichsei Melug, when she is
               widowed or divorced, she takes back her property
               without compensation for any increase or decrease in
               value.) In Usha, they enacted that if a married
               woman sold her Nichsei Melug and then died, her
               husband takes it back from the buyers. (We consider
               it as if he bought her property beforehand, from the
               time he married her.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rami bar Chama):</font></b> (If a married woman inherited
          property, her husband acquires (the rights to eat the
          Peros from) it. If they did not know that it included
          Hekdesh, who transgressed Me'ilah?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Objection (Rava):</font></b> The husband did not. He wants to
               acquire only permitted property!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> She did not. She did not want him to acquire her
               (Rashi - forbidden) property!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The Beis Din (Rashi - the greatest Chachamim in
               Yisrael at the time, to whom we attribute all
               Rabbinical enactments) did not. They made a husband
               like a buyer only of her permitted property!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The husband will transgress Me'ilah when
          he spends the Hekdesh (like anyone who unknowingly spends
          Hekdesh money).
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>BREAKAGE THROUGH USAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> If an animal became weaker due to working, what
          is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Rav Chilkiya brei d'Rav Avya):</font></b> This
               implies that if it died due to working, he would be
               liable. This is unreasonable. He borrowed it to
               work!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Not only if an animal became weaker due to
          working, rather, even if it died, he is exempt, for he
          borrowed it to work!
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Reuven borrowed a lamp from Shimon, and it broke.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rava:</font></b> Bring witnesses that you did not use it
               abnormally, and you are exempt.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If he cannot find witnesses, how much does he
          pay?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> We learn from the following case.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven borrowed a lamp from Shimon, and it broke
               (through negligence). Rav obligated him to pay for a
               proper lamp.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Kahana and Rav Asi:</font></b> Is that really the law?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rav was silent.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> The Halachah follows Rav Kahana and Rav Asi. Reuven
               returns the pieces, and pays the decreased value.
<br>

<p>

sjt:
</p><p>
<font><b>3) TRANSGRESSING 'ME'ILAH' BY MERELY INHERITING PROPERTY</b></font><b>
<br>QUESTION:</b> The Halachah is that when a married woman inherits property her husband obtains control over it. Rami bar Chama asks: When a married woman inherits property that was sanctified as Hekdesh but the woman and her husband are unaware that it is Hekdesh, who transgresses the Isur of Me'ilah when the property enters the domain of the husband? Rava challenges Rami bar Chama's question and asserts that no one could possibly be Chayav for Me'ilah. The husband cannot be Chayav, because he wants to acquire only permitted property from his wife's inheritance, and had he known that this property was Hekdesh he would not have agreed to acquire it. Likewise, the wife could not be Chayav, because she also did not want to be Makneh to her husband property that was forbidden. The Gemara concludes that the husband will transgress Me'ilah, not when he receives the property but only when he uses or spends it (as is the case of any person who unintentionally spends money of Hekdesh and thereby causes it to leave the domain of Hekdesh).
</p><p>
The <b>TALMID RABEINU PERETZ</b> (cited by the Shitah Mekubetzes) asks that the same question should be asked regarding every case of Me'ilah. Every case of Me'ilah involves a person who accidentally makes personal use of Hekdesh. Clearly, if the person would have known that the item or money was Hekdesh, he never would have acquired it for himself. According to Rava's reasoning, how can anyone ever be Chayav for Me'ilah?
</p><p>
<b>ANSWER:</b> The <b>TALMID RABEINU PERETZ</b> answers that the Gemara's case is not comparable to a normal case of Me'ilah with Hekdesh. In a normal case, even though the person is not aware that the money he spends is money of Hekdesh, he <i>is</i> aware of the action that he does with the money; he has full intention to spend the money and take it out of its present domain. In the Gemara's case, however, not only does the husband not know that the item is Hekdesh, but he also has no intention to remove it from its present domain. Even when he physically takes the money, he thinks that it already belongs to him and he does not intend to acquire it with that action. Therefore, the Gemara asks that he should not be Chayav for Me'ilah. (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>BREAKAGE THROUGH USAGE (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Reuven borrowed a bucket from Shimon, and it broke.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Papa:</font></b> Bring witnesses that you did not use it
               abnormally, and you are exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #1:</font></b> Reuven borrowed a cat from Shimon, and mice
          ganged up on it and killed it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> Is this like dying during work?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Mordechai):</font></b> Yes. (He was not negligent for
          putting it in a dangerous place. A proper cat would not
          be killed by mice.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #2:</font></b> Reuven borrowed a cat from Shimon, and it ate
          too many mice, got overheated and died.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> Is this like dying during work?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Mordechai):</font></b> Yes. (He was not negligent; the
          cat killed itself.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHAT IS CONSIDERED WORKING?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> If one wants to borrow something and be exempt,
          he should ask the lender 'give me a drink of water.' This
          is b'Ba'alim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the lender is sharp, he will tell the borrower 'I
               will give you after you take the object.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> If any of the following lends (to the one he
          works for) while working, it is considered b'Ba'alim: a
          teacher of children (who lends to the parents), one hired
          to plant a vineyard for half the Peros, a slaughterer, a
          blood-letter, and the town Sofer (scribe, or barber).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rabanan (to Rava):</font></b> You work for us (you teach us.  If we
          borrow from you, we are exempt.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rava:</font></b> No, you work for me. I decide which tractate we
          learn, and you cannot protest!
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	The Halachah is, in the period before the festival, when
          the Rebbi must teach laws of the festival, he works for
          them. At other times, they work for him.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Mereimar bar Chanina rented a mule to people of Bei
          Chuzai. He went out to help them load it. They were
          negligent, and it died; Rava obligated them to pay.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rabanan:</font></b> This is negligence b'Ba'alim!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rava was embarrassed. Later, it was found that
               Mereimar did not go to help, rather to ensure that
               they did not overload his mule.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Granted, according to the opinion that exempts
          negligence b'Ba'alim, we understand why Rava was
          embarrassed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to the opinion that obligates negligence
               b'Ba'alim, why was he embarrassed?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> It was not a case of negligence. Rather, it was
          stolen and died in the thief's premises. Rava obligated
          them to pay.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rabanan:</font></b> This was b'Ba'alim!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rava was embarrassed. Later, it was found that
               Mereimar did not go to help, rather to ensure that
               they did not overload his mule
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A SAFEK ABOUT WHICH ANIMAL DIED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Reuven borrowed Shimon's cow for half the day
          and rented it for half the day, or he borrowed it for
          today and rented it for tomorrow, or he borrowed one cow
          and rented another; the cow (in the last case, one of
          them) died.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon claims that the borrowed cow died (or, in
               the last case, that at the time it died it was
               borrowed), and Reuven is unsure, he must pay.
<br>
<br>

sjt:
<font><b>1) HALACHAH: THE CAT KILLED BY MICE</b></font><b>
<br>QUESTION:</b> The Gemara discusses an incident in which a person borrowed his friend's cat (to catch mice), and the mice ganged up on the cat and killed it. (This is the case according to the first version as cited by the Gemara. According to the second version, the cat ate too many mice and became ill as a result and died.) Rav Ashi questioned whether such a case is considered 'Meisah Machmas Melachah' for which a Sho'el is exempt. <b>TOSFOS</b> (DH Ki Hai) explains that Rav Ashi reasoned that it might <i>not</i> be considered a case of 'Meisah Machmas Melachah' because the Sho'el brought the cat to a place that was infested with mice. By bringing it to a place with so many mice, he may have placed the cat in a situation to which it was not accustomed, and therefore he would be Chayav for the cat's death. Rav Mordechai suggested to Rav Ashi that the case is comparable to a case of a man who was killed by women, in which case the man should not have been overpowered by them. Similarly, the cat should not have been killed by the mice, and thus the Sho'el should be exempt from liability. This is the way the <b>REMA</b> (CM 340:3) rules.
</p><p>
The <b>TERUMAS HA'DESHEN</b> (#328) cites this Gemara as proof for a ruling he issued in response to a certain question that was asked of him. An armed group of robbers had besieged a town and planned to plunder and steal all of the animals of the town. The townspeople armed themselves and prepared to go to battle with the robbers to save their flocks. Reuven borrowed from Shimon a coat of armor and weapons so that he could join the legion going to fight the robbers. However, those who went to battle were defeated, and the robbers stripped them and took all of their belongings, including their weapons. The borrowed armor and weapons were also taken away. Is Reuven obligated to pay Shimon for the loss of the armor and weapons? This was the question posed to the Terumas ha'Deshen.
</p><p>
<b>ANSWER:</b> The Terumas ha'Deshen ruled that Reuven was not obligated to pay. Even though a Sho'el is obligated to pay in the event of loss due to an Ones, in this case the Sho'el was exempt because the loss of the armor and weapons was considered 'Meisah Machmas Melachah.' Even though the weapons did not actually break in the course of normal usage (which is the common definition of 'Meisah Machmas Melachah'), nevertheless since they were lost due to the very Melachah for which Reuven borrowed them, it is considered a case of 'Meisah Machmas Melachah' and he is exempt.
</p><p>
The Terumas ha'Deshen cites proof for his ruling from the case of the cat that was killed by mice. The Gemara debates whether it was a case of 'Meisah Machmas Melachah' or whether the Sho'el acted negligently when he brought the cat to a place teeming with mice. It is clear, however, that if the Sho'el had used the cat in a normal manner, such as in a house that had only a few mice, he would not have been obligated to pay for the demise of the cat even if the same Ones had occurred. Even if the mice had attacked and killed the cat while it was <i>not</i> involved in chasing and catching them (which is the Melachah for which he borrowed the cat), it would have been a clear case of 'Meisah Machmas Melachah.' (The Terumas ha'Deshen understands, according to the Gemara's first version of the case, that the mice's killing of the cat had no connection with the Sho'el's intent to use the cat to catch the mice. According to the second version of the case, in which the cat caught and ate too many mice and died as a result, the <b>BACH</b> (CM 340, in explanation of the Ramah cited by the Tur there; see also <b>S'MA</b> there) explains that in that case, too, the death of the cat was not related to the Melachah for which he borrowed the cat. He borrowed the cat in order to <i>catch and kill</i> the mice, and not to <i>eat</i> them. The Terumas ha'Deshen, however, explains that his proof is only from the first version, in which the cat's death was not related to its Melachah of catching mice.) The Terumas ha'Deshen asserts that although the borrowed armor and weapons were not lost as a result of the Melachah for which they were borrowed, nevertheless their loss is considered 'Meisah Machmas Melachah,' because the loss occurred as a result of the usage for which he borrowed them.
</p><p>
The <b>SHACH</b> (CM 340:6), however, says that there is an important difference between the case of the borrowed cat and the case of the borrowed weapons. He maintains that only the borrowed cat that was killed by mice can be considered 'Meisah Machmas Melachah,' since the mice killed the cat as a result of the Melachah that the cat wanted to do on its own accord (i.e. to chase and kill mice). The lender was at fault because he lent a cat that would be unable to withstand an onslaught of mice. In contrast, in the case of the borrowed weapons, the weapons themselves certainly did not do any Melachah on their own accord. Rather, the Sho'el used them for battle. As a result of <i>his</i> failure to prevail in combat, the weapons were captured, and the lender is not to blame (for there was nothing wrong with the weapons that he lent to the borrower). Hence, the confiscation of the weapons is considered an Ones, and not 'Meisah Machmas Melachah,' and thus the Sho'el is Chayav.
</p><p>


<font><b>2) HALACHAH: LIGHT WORK WITH 'BA'ALAV IMO'</b></font><b>
<br>QUESTION:</b> Rava says that if one wants to borrow something and be exempt from all liability, he should ask the lender, at the time that he borrows the item, to give him a drink of water. The lender thus performs work for the Sho'el and the case is one of 'Ba'alav Imo,' in which case the Sho'el is exempt from liability.
</p><p>
The Gemara has discussed the concept of 'Ba'alav Imo' at length, and it has established that when the owner of the item performs work for the Sho'el, the Sho'el is exempt from liability. What is Rava adding that was not already known?
</p><p>
<b>ANSWER:</b> The <b>RITVA</b> (Yeshanim) answers that Rava is teaching that even when the owner performs merely a small, light task, he is considered 'loaned' to the Sho'el for this Melachah and the She'eilah is considered 'She'eilah b'Ba'alim' to exempt the Sho'el. (I. Alsheich)
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MESAH MACHMAS MELACHAH</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'> 96b - Question:</font></b> If an animal became weaker Machmas
               Melachah (due to working), what is the law?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection (Rav Chilkiya brei d'Rav Avya):</font></b> This
               implies that if it was Mes (died) Machmas Melachah,
               he would be liable. This is unreasonable. He
               borrowed it to work!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rava):</font></b> Not only if an animal became weaker
               Machmas Melachah, rather, even if it died, he is
               exempt, for he borrowed it to work!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> A case occurred in which Reuven borrowed a lamp from
               Shimon, and it broke.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rava:</font></b> Bring witnesses that you did not use it
                    abnormally, and you are exempt.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Rav Papa said the same to one who borrowed a bucket,
               and it broke.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Version #1:</font></b> Reuven borrowed a cat from Shimon, and
               mice ganged up on it and killed it.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question (Rav Ashi):</font></b> Is this like Mesah Machmas
               Melachah?
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer (Rav Mordechai):</font></b> Yes. (He was not negligent
               for putting it in a dangerous place. A proper cat
               would not be killed by mice.)
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Version #2:</font></b> Reuven borrowed a cat from Shimon, and
               it ate too many mice, got overheated and died.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question (Rav Ashi):</font></b> Is this like Mesah Machmas
               Melachah?
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer (Rav Mordechai):</font></b> Yes.
<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 (8:5):</font></b> When it Mesah Machmas Melachah,
               if the Shomer cannot bring witnesses that he did not
               use it abnormally (to exempt himself), he swears to
               exempt himself.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos She'elah 1:1):</font></b> If one borrowed an
               animal to plow and it died while plowing, he is
               exempt. If it died before or after plowing, or he
               rode on it or threshed with it and it died at the
               time, he is liable. The same applies to all similar
               cases. If one borrowed an animal to go to the place
               Ploni, and it died under him on the way, or he
               borrowed a bucket to draw water and it cracked while
               filling it up, or he borrowed an ax to chop wood and
               it broke due to the chopping, he is exempt, for he
               borrowed it to do this job, and he did not deviate.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rivash (423):</font></b> The Torah explicitly obligates a
                    borrower if the animal died, i.e. normally,
                    even though the angel of death would have
                    killed it anywhere. If it died due to the job,
                    the lender was negligent for lending it for a
                    job it could not bear. The Rambam exempts only
                    if it died while working. This is why he said
                    'under him', i.e. while he was riding it;
                    otherwise, we would not know that it died due
                    to the task. Or, perhaps he means that the
                    sickness started while he was riding, and it
                    died within 24 hours. It seems that this is his
                    opinion. The Ramban and Rashba disagree, for
                    the Gemara said <i>due to</i> the task, not at the
                    time of the task. Why should we exempt at the
                    time of work? Perhaps it was sick due to
                    something else! Rather, we must know that it
                    died due to the task, e.g. from weariness. This
                    is even if it died afterwards, for the lender
                    was negligent.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> The Ramban and Rashba are
                    correct.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (4):</font></b> If the animal became leaner due to the
               job, he is exempt, and swears that it was due to the
               job.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (4):</font></b> Mesah Machmas Melachah is when it tripped
               and fell while walking, and the borrowed did not
               deviate and was not negligent. Or, it became tired
               and overheated and died. However, if it died on the
               way and he did not notice weariness due to the
               exertion of walking, he cannot swear that it died
               due to the work. Perhaps it would have died had it
               been standing at its feeding trough! If it became
               tired and weak due to the journey, even if it did
               not die right away, rather, it kept getting weaker
               over a long time, this is Mesah Machmas Melachah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (5):</font></b> Rava required the one who borrowed a lamp
               to bring witnesses, because many people were around,
               like Isi ben Yehudah (who says that one may not
               swear in such a case - 83a). Alternatively, he meant
               that he should bring witnesses, or swear.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Terumas ha'Deshen (328, cited in Beis Yosef CM 340
               DH Reuven):</font></b> If one borrowed armor and weapons to
               fight with his city against the enemy, and the enemy
               conquered and took all the weapons, he is exempt.
               This is Mesah Machmas Melachah. Even though it did
               not deteriorate or break due to the task, since the
               loss was due to the task, it is like Mesah Machmas
               Melachah. We learn from the mice that ganged up on
               the cat and killed it. Tosfos asked why Rav Ashi was
               unsure about this, and answered that he asked
               whether taking it to a place where many mice are
               found is negligence. If not, surely he is exempt,
               even though it did not die due to its task of
               catching mice and eating them.
<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 340:1):</font></b> If one borrowed an animal
               or Metaltelim, he is exempt for any mishap due to
               the job for which he borrowed it. This is not only
               if it became leaner, rather, even if it died. This
               is if he did not deviate from the job for which he
               borrowed it. If he deviated, even if he did a
               lighter task, we attribute the death to the change.
               Deviation applies even in the job for which he
               borrowed it, e.g. he borrowed it to plow, and he
               plowed day and night, unlike normal practice.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (4):</font></b> The Rosh and Tur (308:4, 311:4) permit
                    changing to a job no harder, and all the more
                    so to an easier job! It is unreasonable to be
                    more stringent about a borrower, who gets all
                    the benefit, than a renter. The Torah exempted
                    Mesah Machmas Melachah! We must say that even
                    though one may deviate, if we can attribute the
                    death to the change, we do.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (3):</font></b> If one borrowed an animal to go
               on a certain path, and bandits or wild animals
               killed it on the path, this is Mesah Machmas
               Melachah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Kosav ha'Ramah):</font></b> The Ramah says
                    so. This is like the cat that ate too many
                    mice, even though the eating itself did not
                    kill it, just it became sick and died due to
                    this. The Tur says that the Rosh disagreed. The
                    Rosh did not write this; he just told his
                    Talmidim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema (3):</font></b> Some disagree, for even without going,
               such an Ones could occur.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source:</font></b> Bedek ha'Bayis citing the Rosh.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema (ibid):</font></b> If one borrowed a cat to chase mice,
               and mice ate it, this is Mesah Machmas Melachah, for
               the Ones was due to the task.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (8):</font></b> The Tur exempts when it died from
                    eating too many mice, even though it is not
                    totally Machmas Melachah. The cat was borrowed
                    to chase mice, not to eat them. The Rema should
                    have taught this, and all the more so he is
                    exempt if mice killed the cat. Perhaps he holds
                    like Version #1 (and obligates when the cat
                    died from overeating). Or, he holds like the
                    Terumas ha'Deshen, that the bigger Chidush is
                    when mice ate the cat.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (6):</font></b> The Darchei Moshe and <b>SMA</b> (8) bring
                    the Terumas ha'Deshen, who learns from the mice
                    that ganged up on the cat, that if one borrowed
                    weapons and the enemy conquered, he is exempt.
                    This is wrong. The cat was lent to chase mice
                    by itself. If it could not, the owner was
                    negligent (for lending something inadequate for
                    the job). Kelim do not make war by themselves.
                    The soldiers' defeat is due to themselves, so
                    they are liable! The Terumas ha'Deshen holds
                    like the Mechaber. The opposing opinion that
                    the Rema brings is primary, and it would
                    obligate the soldiers!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema (ibid.):</font></b> If an animal became weary while
               working and became overheated and died later or
               tripped and died, this is Mesah Machmas Melachah.
               This is only if he noticed weariness while it was
               working. If not, he cannot swear that it died
               Machmas Melachah. Perhaps in any case it would have
               died!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Bedek ha'Bayis):</font></b> This is astounding.
                    Do we obligate the Shomer due to a doubt? We
                    should say that since it died on the road,
                    presumably it was Machmas Melachah. He needs to
                    swear only that it died on the road to be
                    exempt.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Shach 7):</font></b> The Shomer must swear to
                    exempt himself. He cannot swear if he is
                    unsure, therefore he must pay. R. Yerucham and
                    the Terumas ha'Deshen bring the Rosh; this is
                    primary.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Nimukei Yosef (Bava Kama 39a DH Chaayvin):</font></b> The
                    Ro'oh says that that if one borrowed a donkey
                    for his Shali'ach to ride on, and he does not
                    know whether or not it died Machmas Melachah,
                    he is exempt, for perhaps he was never liable.
                    If he borrowed it to ride on it himself and
                    gave it to a Shali'ach, he was liable
                    immediately for deviating, and he does not know
                    whether he is exempt due to Mesah Machmas
                    Melachah, therefore, he must pay.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Ketzos ha'Choshen (4):</font></b> This shows that
                    normally, we do not obligate a Shomer if he
                    cannot swear because he does not know.
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>HEILACH DOES NOT EXEMPT FROM SWEARING? </b></b>(</font><font color='darkblue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven claims that the cow that died was rented,
               and Shimon is unsure, Reuven is exempt.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If Shimon claims that the cow that died was
               borrowed, and Reuven says that it was rented, Reuven
               swears that it was rented and he is exempt.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> If both are unsure, Reuven pays half.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Inference:</font></b> If Levi claims that Yehudah owes him
          money and Yehudah says 'I don't know', he must pay.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Suggestion:</font></b> This refutes Rav Nachman!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Huna and Rav Yehudah):</font></b> If Levi claims that
               Yehudah owes him money and Yehudah says 'I don't
               know', he must pay;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Nachman and R. Yochanan):</font></b> Yehudah is exempt.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. Our Mishnah discusses a case like Rav
          Nachman said (elsewhere), that Reuven must swear to
          Shimon (about something else. Therefore, Shimon can
          demand that he include in the oath that the borrowed cow
          did not die. Reuven must swear, and he cannot, for he is
          unsure, so he must pay.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> In what case must Reuven (pay because he
          cannot) swear to Shimon?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> It is a case like Rava taught;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> If David claimed 100 from Moshe, and Moshe
               admits to 50, and he does not know about the other
               50, since Moshe must swear and he cannot, he must
               pay.
<br>

<p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE CASE OF THE MISHNAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	We can establish the first two cases of the Mishnah with
          two cows, and the last case with three cows.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (The first cases):</font></b> Reuven borrowed two cows for half
               the day and rented them for half the day, or he
               borrowed them for today and rented them for
               tomorrow. Shimon claims that both died at the time
               they were borrowed. Reuven admits that one died when
               it was borrowed, and he is unsure about the other.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since Reuven must swear and he cannot, he must
                    pay.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (The last case):</font></b> Reuven borrowed two cows and rented
               one. Two of them died. Shimon claims that they were
               the two borrowed ones. Reuven is unsure; perhaps
               only one was borrowed and the other was rented.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since Reuven must swear and he cannot, he must
                    pay.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Rami bar Chama holds that Shomrim must swear only if they
          partially admit to a claim. He can establish the first
          two cases of the Mishnah with three cows, and the last
          case with four.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (The first cases):</font></b> Shimon claims that Reuven
               borrowed three cows for half the day and rented them
               for half the day, (or he borrowed them for today and
               rented them for tomorrow), and that all died at the
               time they were borrowed. Reuven admits that he
               received two cows from Shimon, and that one died
               while borrowed. He is unsure when the other died,
               and he denies that he took a third;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since Reuven must swear and he cannot, he must
                    pay.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (The last case):</font></b> Shimon claims that Reuven borrowed
               three cows and rented one, and that the three
               borrowed cows died. Reuven admits that he borrowed
               two cows and rented one, and that one borrowed cow
               died. He is unsure if the other dead cow was
               borrowed or rented, and he denies that he took a
               fourth.
<br>
<br>

sjt:
<font><b>1) TWO COWS</b></font><b>
<br>QUESTION:</b> The Mishnah (97b) teaches that when the lender claims that the cow that he lent to the borrower is the one that died (and thus the Sho'el is Chayav), and the borrower says that he is unsure which one was the cow that died, the borrower must pay. The Gemara explains that the Mishnah refers to a case in which the borrower is already obligated to make a Shevu'ah about something else, and the lender therefore may demand that the borrower include in the Shevu'ah that he is not liable for the cow. The borrower must pay because he is obligated to swear but is unable to swear (since he is unsure).
</p><p>
The Gemara says that the first two cases of the Mishnah must involve two cows, and the last case must involve three cows, in order for the Mishnah to be understood as a case in which there is an additional obligation of a Shevu'ah. In the first two cases, Reuven must have borrowed from Shimon two cows for half the day and rented them for half the day (or borrowed them for one day and rented them for the next), and both cows died. Shimon claims that both died at the time they were borrowed, and Reuven admits that one died when it was borrowed, but he is unsure about the other. Since Reuven is obligated to swear but cannot swear, he must pay.
</p><p>
<b>RASHI</b> (DH Ka) explains why the Gemara needs to say that <i>both</i> of the cows died. In a case in which only one of the cows died and Shimon demands both cows from the borrower, when Reuven returns the cow that did not die he would <i>not</i> have to make a Shevu'ah on the other cow. When he returns the live cow, it is considered 'Heilach,' and, according to one opinion (4a), a case of 'Heilach' is not considered 'Modeh b'Miktzas' and the borrower does not have to make a Shevu'ah. Therefore, it must be that both cows died, and the borrower admits to one ('Modeh b'Miktzas') and is unsure about the other.
</p><p>
Why, though, must the Gemara say that both cows died? It could have said that only one cow died, and when Shimon demands his two cows from Reuven, Reuven admits that he must return one live cow but says that it is in the marsh (and he is not returning it at that moment), and he says that he is unsure whether the one that died was borrowed or rented when it died. In such a case the borrower <i>should</i> be obligated to make a Shevu'ah of 'Modeh b'Miktzas,' since he does not say 'Heilach.' Why does the Gemara not explain the case in this manner?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>BA'AL HA'ME'OR</b> (cited by the Shitah Mekubetzes), the <b>RASHBA</b>, and the <b>ROSH</b> maintain that, in fact, it is considered a case of 'Heilach' whenever a borrower admits to part of a lender's claim but does not return it at that moment and instead says that the object is located somewhere else. They prove this from the fact that the Gemara does not explain the case here in this manner; since the Gemara does not give this explanation, such a case indeed must be considered 'Heilach.' In fact, Rashi himself (4a) maintains that it is considered 'Heilach' as long as the original object is still present even though it has not yet been returned.
</p><p>
(b) The <b>RA'AVAD</b> (98b) argues with the Ba'al ha'Me'or's assertion and maintains that the only case of 'Heilach' is a case in which the borrower immediately returns part of the lender's claim. If the borrower admits to part of the claim and says that the item is elsewhere, it is <i>not</i> a case of 'Heilach.'
</p><p>
The Ra'avad therefore gives a different answer to the above question. The Ra'avad says that when a person claims that he is owed a borrowed item (She'eilah) and a rented item (Sechirus), he is considered to have made two separate claims. Therefore, when Reuven admits that he must return one borrowed cow to Shimon, but he says that the other cow might have been rented when it died, he is responding to two separate claims and not to a single claim. Hence, he is not considered 'Modeh b'Miktzas' to one claim involving two cows, but rather he has admitted to a separate claim in itself.
</p><p>
Based on this, the Ra'avad rules that in a case in which a claimant says, 'I lent you 100 Zuz, and I deposited with you 100 Zuz for safekeeping,' and the defendant denies having borrowed any money but admits that 100 Zuz were given to him as a deposit, this is <i>not</i> considered 'Modeh b'Miktzas' and the defendant does not make a Shevu'ah of 'Modeh b'Miktzas.'
</p><p>
The <b>RAMBAN</b>, however, argues with the Ra'avad and maintains that a claim that includes She'eilah and Sechirus is considered a single claim and not two separate claims. In the Gemara's case, therefore, the borrower's claim is considered 'Modeh b'Miktzas.' The Ramban also argues with the Ra'avad's comparison of this case to a case of a person who denies that he borrowed money but admits that he received money as a deposit. Even if a claim involving both She'eilah and Sechirus would be considered two separate claims, a claim of money loaned and a claim of money deposited would be considered <i>one</i> claim and thus a Shevu'ah of 'Modeh b'Miktzas' would apply (because the claim is that the defendant owes money; it does not matter why he owes the money).
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ONE DEPOSITS WITH INTENT FOR THE HOUSEHOLD</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'> 42a (Mishnah):</font></b> If Reuven deposited coins with
               Shimon, and Shimon gave them to his small children
               (minors) to guard (and they were lost), he is
               liable, for this is not the way people guard.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A case occurred in which Reuven deposited coins with
               Shimon, who gave them to his mother to guard. She
               put them in a chest, and they were stolen.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rava):</font></b> We cannot obligate Shimon or his mother. A
               depositor expects the Shomer to entrust the deposit
               with (adult) members of the Shomer's family, and she
               was not told that it was another's money and she
               should bury it!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 98b (Mishnah):</font></b> If Reuven lent to Shimon a cow, he
               sent it with his own or Shimon's son, slave or
               Shali'ach, and it died, Shimon is exempt.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> The same applies to returning it.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Bava Basra 87b (Mishnah):</font></b> If Reuven sent his son
               (with a flask) to a grocer (Shimon), who gave to him
               oil, and the child broke the flask, Shimon is
               liable;
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> R. Yehudah exempts him, for he did like Reuven
               wanted.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> Chachamim agree that if the child held the flask and
               Shimon measured into it, he is exempt.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> Why do Chachamim obligate him? Reuven
               knowingly gave it to his son (who is prone to break
               it)!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer (Rava and R. Zeira):</font></b> The case is, Shimon took
               it to measure for others. R. Yehudah holds that one
               who borrows without permission is like a borrower.
               It suffices to return it to where he took it from
               (the child). Chachamim hold that such a borrower is
               like a thief, and he must return it to the owner.
<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 3:23):</font></b> Rava taught that a
               depositor expects the Shomer to entrust the deposit
               with members of the Shomer's family.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> If people of the Shomer's family were
               negligent, the Shomer is liable. If the Shomer would
               be exempt, his wife and children would consume the
               deposit, for also they are exempt (they have no
               money to pay)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rif and Rosh (Bava Basra 44b and 5:20):</font></b> Chachamim
               hold that one who borrows without permission is a
               thief, therefore, it is in his Reshus. Even if he
               returned it to the child, he is not exempt until he
               returns it to the owner.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 3:15):</font></b> If Levi's child or
               slave was holding a flask, and Ploni took it and
               used it, he is liable for Ones until he returns it
               to Levi. Therefore, if he returned it to the minor
               who was holding it or the slave and it was lost or
               broken, Ploni must pay. The same applies to all
               similar cases.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> A slave is like a child. As long
                    as Ploni did not return it to the owner, he is
                    liable.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Lechem Mishneh:</font></b> A slave is unlike a child! A
                    slave has Da'as (understanding). He is his
                    master's Shali'ach. This is like one who
                    returned a flask to its place. He is exempt,
                    for it is guarded there!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos She'elah 4:8):</font></b> One who deposits
               money or Kelim with Ploni intends that they will be
               entrusted to Ploni's wife, adult children and
               household. If Ploni gave it to his minor children,
               or minor or adult slaves, or a relative who does not
               live in the house with him, he is liable, unless the
               second Shomer proves that he was not negligent.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> One does not entrust his
                    property with his slave.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Mordechai (Bava Metzia 272, citing Maharam):</font></b> If
               Shimon returned Reuven's deposit to Reuven's wife,
               and she has Da'as and Reuven lets her buy and sell,
               Shimon swears and he is exempt, for Reuven trusts
               her with everything. Also, a depositor expects the
               Shomer to entrust it with members of the Shomer's
               family; this is similar.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Maharik (77):</font></b> Since Reuven lets his wife buy
                    and sell, it is as if he normally deposits
                    everything with her.
<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 (291:21):</font></b> One who deposits money or
               Kelim with Ploni intends that they will be entrusted
               to Ploni's wife, (Rema - adult) children and
               household.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (31):</font></b> This is because the depositor knows
                    that Ploni cannot be in his house constantly to
                    guard the deposit.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Maharshach (2:85):</font></b> This refers only to a Shomer
                    Chinam. A Shomer Sachar is paid to guard well,
                    day and night (She'altos). He is liable for
                    theft even though it is close to Ones. If a
                    servant stole the deposit, this shows that the
                    servant was not established to be Kosher; he is
                    like a slave. Even if Ploni was a Shomer
                    Chinam, he is liable for allowing such a person
                    to access the deposit.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (27):</font></b> Teshuvas Ri l'Beis Levi (87)
                    challenged this, for the Beis Yosef brought
                    that argue with the Rambam, and exempt a Shomer
                    who gave to an inferior Shomer if the owner
                    regularly used the latter. (This shows that the
                    exemption is not limited to a Shomer Chinam.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Similar, if the Shomer returned to the owner's
               wife, he is exempt. See Siman 340:8.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If Ploni gave it to his minor
               children, or minor or adult slaves, or a relative
               who does not live in the house with him and eat from
               him, and all the more so if he gave it to someone
               else, Ploni is liable, unless the second Shomer
               proves that he was not negligent.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Beis Yosef (DH u'Mah she'Omar):</font></b> Stam slaves are
               thieves.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Darchei Moshe (10**):</font></b> This refers to Kena'ani
                    slaves. One who gave to an Eved Ivri is exempt,
                    like one who gave to his son or daughter.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema:</font></b> The same applies if Ploni allowed others to
               enter where the deposit was kept. Even if those who
               entered were not established thieves, Ploni is
               liable if it was stolen, for this is negligence.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rema (340:8):</font></b> Some say that if a borrower returned
               the item to the lender's wife and Ones occurred, he
               is liable.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Kosav ha'Rashba):</font></b> The Rashba
                    (2:262) says that if a borrower returned the
                    Keli to the owner's wife or children who eat
                    from his table, and it was stole, he is liable.
                    We learn from the Mishnah (98b). The owner must
                    know when it is returned. This is like R.
                    Eliezer (31a), who requires informing the owner
                    in every case except for Hashavas Aveidah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Darchei Moshe (1):</font></b> One who deposits with Ploni
                    intends that they will be entrusted to Ploni's
                    household. Perhaps a borrower is different.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Taz and SMA (12):</font></b> A borrower is different, for
                    he gets all benefit (so he has more liability,
                    and must return it to the lender himself).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rema (120:2):</font></b> If a borrower paid the lenders wife,
               he was Yotzei.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (7):</font></b> The Rema (291:21) wrote similarly
                    about returning a deposit. This is from the
                    Maharam in the Mordechai, and Teshuvas Maimoni
                    (Mishpatim 3). In Siman 340:8, the Rema rules
                    like the Rashba, who argues. The Acharonim
                    strained to resolve them, but in truth they
                    argue. The Rashba's opinion is primary.
                    Regarding returning, we do not say that one
                    deposits with intent for his family (Bava
                    Metzia 98b). The same applies to a loan, for
                    Bava Kama 104a equates returning theft and
                    returning a loan.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Shulchan Aruch (366:3):</font></b> Sho'el she'Lo mi'Da'as is a
               thief. If Levi's child or slave was holding a flask,
               and Ploni took it and used it, he is a Sho'el she'Lo
               mi'Da'as, and it is in his Reshus to be liable for
               Ones until he returns it to Levi. Therefore, if he
               returned it to the minor who was holding it or the
               slave and it was lost or broken, Ploni must pay.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (8):</font></b> The Rambam said that if Ploni returned
                    it to Levi's slave, he is liable. The Tur and
                    Shulchan Aruch (291:21) agree.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHEN MAY A SHOMER GIVE TO A SHOMER? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Since Reuven must swear and he cannot, he must pay.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Shimon claims that the borrowed cow died
          and Reuven says that the rented cow died, Reuven swears
          and he is exempt.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why must Reuven swear? He did not admit to the
          claim, rather to something else!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Ula):</font></b> Since even according to Reuven's claim, he
          must swear that it died normally, Shimon can demand that
          he swear through Gilgul that it was rented.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If both are unsure, Reuven pays half.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	The Mishnah is Sumchus, who says that when we are in
          doubt, we divide the money.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CHANGE OF STATUS REGARDING THE SHOMER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (R. Aba bar Mamal):</font></b> If he borrowed a cow
          b'Ba'alim and before returning it he rented it not
          b'Ba'alim (and it was lost or stolen), what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the rental a separate matter, it is not
               b'Ba'alim, so he is liable;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps rental is a continuation of borrowing,
               for a borrower has the liability of a renter (for
               theft or loss) and more! (If so, also it is
               considered to be b'Ba'alim.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (R. Aba bar Mamal):</font></b> If you will say that rental
          is a continuation of borrowing, if he rented b'Ba'alim
          and before returning it he borrowed it not b'Ba'alim,
          what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Surely, borrowing (has more liability, so it) is not
               a continuation of renting, so he is liable;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since it is a continuation regarding theft or
               loss, perhaps it a continuation for everything?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (R. Aba bar Mamal):</font></b> If you will say that a
          partial continuation is not like a total continuation, if
          he borrowed b'Ba'alim, rented not b'Ba'alim, and borrowed
          it again, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Does it revert to the original borrowing, which was
               b'Ba'alim?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since he interrupted with a rental, it is a new
               borrowing not b'Ba'alim?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (R. Aba bar Mamal):</font></b> If he rented b'Ba'alim,
          borrowed not b'Ba'alim, and rented it again, what is the
          law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Does it revert to the original rental, which was
               b'Ba'alim?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since he interrupted with borrowing, it is a new
               rental not b'Ba'alim?
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	These questions are not resolved. (Rambam - whenever the
          Gemara says 'if you will say', it is according to the
          Halachah.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>LIABILITY FOR GETTING AND RETURNING THE BORROWED OBJECT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven lent to Shimon a cow, he sent it
          with his own son, slave or Shali'ach, or with Shimon's
          son, slave or Shali'ach, and it died, Shimon is exempt;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Shimon asked Reuven to send it with one of them, or if
          Reuven told Shimon that he will send it with one of them
          and Shimon agreed, Shimon is liable.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	The same applies to returning it.
<br>

<p>

sjt:
</p><p>
<font><b>2) SEND THE COW WITH MY SON</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that when a Sho'el borrows a cow and tells the owner, 'Send the cow with my son or with my servant,' the Sho'el becomes responsible for any Ones that occurs to the cow while it is being brought to him.
</p><p>
Why, though, should he be Chayav? The Sho'el did not speak to the person bringing the cow and he did not formally appoint him as his Shali'ach. (<b>RA'AVAD</b> and <b>RAN</b> cited by the Shitah Mekubetzes)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RA'AVAD</b> cited by the Shitah Mekubetzes answers that when the Sho'el told the owner to send the cow with his son or servant, he was appointing the <i>owner</i> as his Shali'ach to appoint the messenger as a Shali'ach to bring the cow.
</p><p>
(b) The <b>RAN</b> cited by the Shitah Mekubetzes explains that the Sho'el becomes Chayav for Onsin because of the law of 'Arev.' When an Arev guarantees a loan, the Arev becomes obligated to repay the loan (if the borrower cannot) because the lender gave money to the borrower only as a result of the Arev's promise that he would back the loan. Similarly, in the Mishnah's case, the owner gave the cow to the Sho'el's son or servant only because of his reliance on the Sho'el's word that he would be responsible for Onsin. (See also Insights to Bava Metzia 73:1 and 76:1.)
</p><p>
The <b>NESIVOS HA'MISHPAT</b> (CM 340:11, as cited by the <b>YOSEF DA'AS</b>) points out that there are important Halachic differences between these two answers. According to the Ra'avad who says that the Sho'el is obligated for Onsin because the messenger becomes his Shali'ach, if the Sho'el requested that the cow be sent to him in the hands of a Cheresh, Shoteh, or Katan, he would <i>not</i> be Chayav for Onsin because none of those people can be appointed as a Shali'ach. According to the Ran, who says that the Sho'el is Chayav for Onsin because he is like an Arev, even if the person who brings the cow to him cannot be a valid Shali'ach, the Sho'el still would be Chayav because of the Halachah of Arev.
</p><p>
Another difference between the two answers relates to whether the owner may change his mind and take back the cow. According to the Ra'avad, once the cow is placed in the hands of the Shali'ach, the owner cannot take it back since it is considered to have come into the domain of the Sho'el. According to the Ran, he may take it back since it was not given to a Shali'ach of the Sho'el and thus is not yet considered to have come into the Sho'el's domain.
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN A BORROWER BECOMES LIABLE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> If Reuven sent it with his own slave
          on Shimon's request, why is Shimon liable? A slave does
          not have his own Yad (power of acquisition). He can
          acquire only for his master. It is as if Reuven still has
          it!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Shmuel):</font></b> The Mishnah discusses a Yisrael
          slave. Reuven owns only his labor. The slave has his own
          Yad.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Rav):</font></b> It can even be a Kena'ani slave. It is
          as if Shimon said 'hit the cow so it will come to me.'
          Once it leaves Reuven's premises, Shimon is liable.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven lent Shimon a cow, and sent
          it (on Shimon's request) with his own son or Shali'ach,
          Shimon is liable. If Reuven sent it with his own slave,
          Shimon is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shmuel can say that the Beraisa discusses a Kena'ani
               slave. How can Rav answer?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav did not mean that asking to send with a
          Kena'ani slave is as if Shimon said 'hit it so it will
          come to me.' Rather, the Mishnah discusses when Shimon
          actually said 'hit it...';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the Beraisa, Shimon just asked 'send it with your
               slave.'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Nachman citing Rav):</font></b> If Levi asked to borrow
          Yehudah's cow, and Yehudah asked with whom he should send
          it, and Levi said 'hit it and it will come to me', once
          it leaves Yehudah's premises, if it dies, Levi is liable.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> If Levi asked to borrow Yehudah's cow,
          and Yehudah asked with whom he should send it, and Levi
          said 'hit it and it will come to me', once it leaves
          Yehudah's premises, if it dies, Levi is liable.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection (Rav Ashi):</font></b> The case is, Levi's Chatzer was
          inside Yehudah's. It is sure to go to Levi after leaving
          Yehudah's Chatzer. (However, if it is a distance away,
          Levi is unsure if it will come to him, so he does not
          resolve to accept liability until it comes to him.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> If so, this is obvious. What is the Chidush of
          the Beraisa?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> There are small passages where it could hide. It
          is not absolutely certain that it will go to Levi. One
          might have thought that Levi does not resolve to accept
          liability. The Beraisa teaches that this is not so.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN SHOMRIM MAKE A KINYAN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> Reuven borrowed an axe from Shimon. Once he
          chops with it, he acquires it. Before chopping with it,
          he does not acquire it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> For what must he acquire it?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is to be liable for Ones.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> This should be no different than a cow.
               He is liable once he borrows it, even before using
               it!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, it is so Shimon cannot demand that he
          return it (for the duration of the loan);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Before Reuven chops with it, Shimon can demand that
               he return it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Rav Huna argues with R. Ami.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Ami):</font></b> If Levi lent a Hekdesh axe to Yehudah,
               Levi transgressed Me'ilah according to the benefit
               he received (how much he would pay to be able to
               lend an axe). Yehudah may use it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Yehudah did not acquire it (even before using
               it), why does Levi transgress, and why may Yehudah
               use it? He should be obligated to return it to avoid
               Me'ilah!
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Rav Huna argues also with R. Elazar.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Elazar):</font></b> Just like Meshichah was enacted for
               buyers (to acquire in place of money), it was also
               enacted for Shomrim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> Just like Meshichah was enacted for
          buyers, it was also enacted for Shomrim;
<br>
<br>

sjt:
<font><b>1) THE LIABILITY OF THE BORROWER FOR AN ITEM IN TRANSIT</b></font><b>
<br>OPINIONS:</b> The Mishnah (98b) teaches that when a lender sends his item to the borrower via a servant, the responsibility of the item en route depends on whether or not the borrower asked him to send it in this manner. If the borrower asked the lender to send it with a servant, the borrower is responsible for the item once it is given to the servant. If the lender decided on his own to send it to the borrower in this manner, the lender is responsible for the item until the borrower receives it.
</p><p>
The Gemara asks, why should the borrower be responsible for the item right away when he asks the lender to send it with his servant? There is a principle in Halachah that the hand of a servant is considered the hand of his master. Accordingly, as long as the item is in the hand of the servant, it has not yet left the lender's domain. Why, then, is the borrower responsible for it?
</p><p>
Shmuel answers that the Gemara refers to a case in which the lender sent the item with his Eved Ivri, not with his Eved Kena'ani. An Eved Ivri is not the possession of his master, and therefore his hand is not considered like that of his master. Rav answers that the Gemara may even refer to a case in which the lender sent the item with his Eved Kena'ani. The reason why the borrower is responsible is that it is as if he told the lender, 'Hit it with a stick and it will come.'
</p><p>
What does Rav mean? The borrower never took possession of the animal, and it is still in the hands of the Eved Kena'ani. Why should the borrower be responsible?
</p><p>
(a) The <b>RITVA</b> quotes some who explain that it is as if the borrower said to the lender that he should lead the animal to a side street, or to the sides of Reshus ha'Rabim, so that the borrower can acquire it there through Meshichah (unlike Reshus ha'Rabim where he cannot acquire through Meshichah). However, the Ritva says that he does not understand this explanation. Meshichah was not actually done by the borrower, and thus he never took possession of the borrowed item.
</p><p>
The explanation which the Ritva cites is the opinion of <b>TOSFOS</b> (DH Keivan). Tosfos explains that it is considered as though Meshichah was done when the animal is brought to a side street or to the sides of Reshus ha'Rabim with the express intent of the borrower to acquire the animal through this act (of leading the animal into the side street). Alternatively, Tosfos explains, it is possible that even if the animal was led to Reshus ha'Rabim by the slave due to the explicit request of the borrower, it is enough to make the borrower responsible for the animal (even though Meshichah normally is not a fully effective Kinyan in Reshus ha'Rabim).
</p><p>
(b) <b>RASHI</b> (DH Na'aseh) explains that the reason why the borrower is responsible is not due to his status as a Sho'el. Rather, he is responsible because he asked his friend to send the item with his servant, and by making such a request he effectively accepted responsibility for the item. Just as a person can tell the owner of an item to put the item somewhere and he will take full responsibility for the item even without making a formal Kinyan to that effect, a borrower can tell a lender to send the animal with his servant, and it is tantamount to saying to the lender that he should let the animal find its way and he accepts full responsibility for it. Although, in this case, the borrower does not say explicitly that he accepts full responsibility, Rav explains that it is considered as though he said so. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>THE ENACTMENT OF MESHICHAH FOR SHOMRIM</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'> 80b (Mishnah):</font></b> If Reuven told Shimon 'guard this for
               me', and Shimon said 'leave it in front of me', he
               is a Shomer Chinam.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 99a (Rav Huna):</font></b> If Reuven borrowed an axe from
               Shimon, once he chops with it, he acquires it.
               Before chopping with it, he does not acquire it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> He acquire it to be liable for Ones.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> This should be no different than a cow.
               He is liable once he borrows it, even before using
               it!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Rather, he acquires the right to keep it for the
               duration of the loan. Before Reuven chops with it,
               Shimon can demand that he return it.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> Rav Huna argues with R. Ami.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Ami):</font></b> If Levi lent a Hekdesh axe to
                    Yehudah, Levi transgressed Me'ilah according to
                    the Tovas Hana'ah (how much he would pay to be
                    able to lend an axe). Yehudah may use it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If Yehudah did not acquire it (even before
                    using it), why does Levi transgress, and why
                    may Yehudah use it? He should be obligated to
                    return it to avoid Me'ilah!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> Rav Huna argues also with R. Elazar.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Elazar):</font></b> Just like Meshichah was enacted
                    for buyers (to acquire in place of money), it
                    was also enacted for Shomrim.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> A Beraisa says just like R. Elazar.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Bava Kama 79a (Mishnah):</font></b> If Reuven was dragging
               Shimon's animal to take it out (and steal it), and
               it died while still in Shimon's premises, he is
               exempt. If he lifted it or took it outside, and then
               it died, he is liable.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> If he gave the animal to... a Shomer, and he was
               dragging it out, and it died in his (Shimon's)
               premises, he is exempt.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question (Ameimar):</font></b> Was Meshichah enacted regarding
               Shomrim?
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer (Rav Yeimar - Mishnah):</font></b> If he gave the animal
               to a Shomer, and he was dragging it out, and it died
               in his premises, he is exempt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> Reuven's Shomer was dragging it.
                    (Reuven is exempt because Meshichah was enacted
                    for Shomrim, and it was not done!)
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Rejection (Ameimar):</font></b> No, Reuven was dragging it from
               the premises of Shimon's Shomer.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Question:</font></b> We know this from the Reisha!
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Answer:</font></b> The Mishnah teaches about one who steals
               from the owner's premises, and one who steals from a
               Shomer's house.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> Objection (Rav Ashi):</font></b> There is no reason to
               differentiate between them! (The Mishnah need not
               teach both.) Rav Yeimar's answer is valid.
<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 (8:15):</font></b> Rav Huna argues with R. Elazar.
               A Beraisa supports R. Elazar.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (57a DH b'Eved):</font></b> Even if he said
                    'hit it (so it will come to me) and I will be
                    liable', he is exempt (until it gets to his 
                    Reshus), because the lender can still retrieve
                    it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> Meshichah is so the lender cannot retract.
               Even without Meshichah, a borrower is liable for
               Ones and a Shomer Chinam is liable for negligence
               (80b). Likewise, a Shomer Sachar is liable.for theft
               or loss (without Meshichah). If a borrower said 'hit
               it with a stick and it will come to me', and it went
               to a Reshus ha'Rabim, where Meshichah does not
               acquire, the lender can retract, for it is no better
               than Meshichah there. Still, the borrower is liable
               for Ones. Also, the Gemara said that Rav Huna argues
               with R. Elazar. This connotes that R. Elazar
               discusses retracting the loan, like Rav Huna. There
               is great reason to distinguish between retracting
               and Onesim. Regarding retracting, it is in the
               owner's Reshus until the Shomer does something that
               acquires in a sale. Liability for Onesim comes once
               the owner ceases to guard it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 2:8):</font></b> Just like Meshichah
               was enacted for buyers, it was also enacted for
               Shomrim. If Reuven told Shimon 'guard this for me',
               and Shimon said 'leave it in front of me', he is a
               Shomer Chinam.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> A Beraisa supports R. Elazar. He
                    teaches that after Meshichah, the lender cannot
                    retract. The same applies to a Shomer Sachar.
                    Also, the Shomer is liable for Ones only after
                    he did Meshichah. The Rashba asked how one is
                    liable for saying 'leave it in front of me.' He
                    did not do Meshichah! It seems that he left it
                    in a Simta within his four Amos, or the
                    borrower said 'hit it with a stick and it will
                    come to me.' The Ra'avad says so. All the more
                    so, if it is in the borrower's Reshus he is
                    liable!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos She'elah 1:5):</font></b> If one borrowed a Kli
               or animal Stam, the lender can demand it back
               whenever he wants. If he borrowed it for a fixed
               time, once he did Meshichah, he acquired, and the
               owner cannot take it back from him until the time
               ends. Even if the borrower died, his heirs use it
               until the end of the time. This is reasonable. One
               who receives a gift, even though he gave nothing,
               acquires the object permanently, like one who buys.
               Similar, one who borrows, even though he gave
               nothing, acquires the object for the set time, like
               one who rents.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (Bava Kama 7:11):</font></b> After Meshichah, the Shomer
               is liable.
<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 291:5):</font></b> Some say that once a
               Shomer accepts to guard or says 'leave it in front
               of me' and the owner ceased to guard it, the Shomer
               is liable for negligence even if he did not do
               Meshichah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (8):</font></b> The Shomer become liable <i>because</i> the
                    owner ceased to guard it. If the owner
                    continued to guard it a little, the Shomer
                    would be exempt, for this is Shemirah
                    b'Ba'alim, like the Tur and Shulchan Aruch say
                    at the end of this Siman.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (12):</font></b> They do not say so at the end of
                    this Siman! Siman 346:4 (see below) connotes
                    that this is not Shemirah b'Ba'alim!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gilyon Maharsha (346:4):</font></b> The <b>SMA</b> holds that
                    since the borrower is already liable, the owner
                    need not be concerned for his animal, so if he
                    helps, it is to help the borrower. If the
                    borrower stipulated that he must help, this is
                    not b'Ba'alim, for he only accepted to guard
                    together. The Shach holds that even though the
                    Shomer is liable, the owner prefers his own
                    animal to payment for it, so he helps for his
                    own benefit.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Some say that he is not
               liable until he does Meshichah in a place where
               Meshichah acquires.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (13):</font></b> Rashi and the Rambam say that he is
                    not liable until Meshichah. Bava Kama 79a
                    connotes like this.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (13):</font></b> Tosfos and the Rosh in Bava Metzia
                    say that he is liable before Meshichah. In Bava
                    Kama they exempt before Meshichah, and Bava
                    Kama 79a connotes like this. This requires
                    investigation.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 307:2):</font></b> Either party in a rental
               can retract until Meshichah or a Kinyan is done.
               Some say that once the owner releases his Shemirah
               over it according to the Shomer's desire, the Shomer
               is liable to guard it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav):</font></b> Tosfos and
                    the Tur hold like the Rosh. The Rambam
                    disagrees, and holds that the borrower is
                    liable only after Meshichah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (341:1):</font></b> If one borrowed a Kli or
               animal for a fixed time, once he did Meshichah, he
               acquired, and the owner cannot take it back from him
               until the time ends. Even if the borrower died, his
               heirs use it until the end of the time.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (346:6):</font></b> If the owner went with the
               animal he lent to help it and load it, it is
               Shemirah b'Ba'alim, even if the owner did so on his
               own (Rema - unlike those who disagree).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Darchei Moshe ha'Aruch (7):</font></b> The Mordechai (373)
                    holds that it is Shemirah b'Ba'alim only if the
                    borrower asked him to work for him.
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