# dafyomi

lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> '(Do not withhold wages of a poor worker)
          me'Achicha' excludes Nochrim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Mi'Gerecha' refers to a convert;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'Bi'Sh'arecha' refers to a Ger (Toshav) who may eat
               Neveilos;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What is the source to include rental of an
               animal or Kelim?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> 'B'Artzecha' includes anything in your land.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  All the Lavim and the Aseh apply to wages (or
                    rental) of a Yisrael, convert, Ger Toshav, an
                    animal or Kelim - 'b'Yomo Siten Secharo' (and
                    the Lavim before and after it) and 'Lo Salin
                    Pe'ulas Sachir' (and the other Lavin in that
                    verse).
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	R. Yosi b'Rebbi Yehudah says, 'b'Yomo Siten Secharo'
          applies to a Ger Toshav, but 'Lo Salin' does not;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Only 'Lo Sa'ashok' applies to rental of an animal or
               Kelim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Recap of question:</font></b> Our Tana is not the first Tana,
               nor R. Yosi b'Rebbi Yehudah!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It is not the first Tana, for he says that all
                    the Lavim apply to a Ger Toshav!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> It is not R. Yosi, for he says that only 'Lo
                    Sa'ashok' applies to rental of an animal or
                    Kelim!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Our Tana is Tana d'Vei R. Yishmael.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Tana d'Vei R. Yishmael):</font></b> One who
               withholds wages of a worker or rental of an animal
               or Kelim transgresses 'b'Yomo Siten Secharo' and 'Lo
               Salin Pe'ulas Sachir Itecha Ad Boker';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'B'Yomo Siten Secharo' applies to a Ger Toshav, but
               'Lo Salin' does not.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>HOW THE TANA'IM LEARN THE VERSES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> How does the first Tana of the Beraisa of 
          ''Achicha' learn?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> He learns from a Gezeirah Shavah 'Sachir-Sachir'
          (just like 'Lo Sa'ashok' (and the adjacent Mitzvos) apply
          to a Ger Toshav, also 'Lo Salin' and the other Mitzvos in
          that verse);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yosi b'Rebbi Yehudah does not learn from the
               Gezeirah Shavah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Even so, he should say that 'b'Yomo Siten
               Secharo' applies to rental of an animal or Kelim
               (this is written after 'b'Artzecha', which teaches
               that one transgresses for them)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (R. Chananya):</font></b> 'V'Lo Savo Alav ha'Shemesh Ki
               Oni Hu' - the Mitzvos of this verse only apply to
               people, who can become poor.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> What does the first Tana learn from 'Ki
               Oni Hu'?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> If the employer does not have enough to pay
               all his workers, he should first pay poor workers;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> R. Yosi b'Rebbi Yehudah learns that from 'Lo
               Sa'ashok Sachir Oni v'Evyon'.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> The first Tana needs one verse to teach that we pay
               a poor worker before a rich one, and another verse
               to teach that we pay a poor worker before a
               destitute one. The Torah needed to teach both of
               these;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Had it taught only that we pay a poor worker
                    before a destitute one, one might have thought
                    that this is because a destitute worker does
                    not let shame stop him from asking for his
                    wages, but rich and poor workers both are
                    embarrassed to ask for their wages, so neither
                    has precedence over the other;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Had it taught only that we pay a poor worker
                    before a rich one, one might have thought that
                    this is because a rich worker does not need the
                    money so badly, and since a destitute worker
                    needs the money more than a poor worker, he
                    would be paid first.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> How does our Tana learn?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he learns the Gezeirah Shavah 'Sachir-Sachir',
               all the Mitzvos should apply to a Ger Toshav!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he does not learn the Gezeirah Shavah, how does
               he know that all the Mitzvos apply to rental of an
               animal or Kelim?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, he does not learn the Gezeirah Shavah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Lo Salin Pe'ulas Sachir Itecha Ad Boker' includes
               all cases when work was done for you (and you did
               not yet pay for it).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If so, this should include wages of a Ger
          Toshav!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> 'Re'acha' excludes a Ger Toshav.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> This should also exclude rental of an animal or
          Kelim!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> 'Itecha' includes them.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Why do we include animals and Kelim, and
          exclude a Ger Toshav, and not vice-versa?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Presumably we include animals and Kelim, for
          these are the money of 'Re'acha'.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> What does the first Tana of the Beraisa learn
          from 'Re'acha'?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> 'Re'acha' excludes an Amaleki (or any
          Nochri).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> 'Achicha' excludes an Amaleki!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> One verse permits withholding his wages, and the
          other permits stealing from him. (The Halachah does not
          follow this opinion.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Torah must teach both.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had it permitted only stealing from him, one might
               have thought that this is because he did not work
               for it, but one may not withhold his wages;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Had it permitted only withholding his wages, one
               might have thought that this is because he never
               received the money, but one may not steal his money.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> What does R. Yosi b'Rebbi Yehudah learn from
          'Lo Salin Pe'ulas Sachir Itecha Ad Boker'?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> He learns Rav Asi's law (as follows).
<br>

<p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE PUNISHMENT FOR WITHHOLDING WAGES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Asi):</font></b> Even if a worker was hired only to pick one
          cluster of grapes, one who withholds his wages
          transgresses 'Lo Salin'. The first Tana learns from
          'v'Elav Hu Nosei Es Nafsho' (anything he obligated
          himself to do).
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yosi b'Rebbi Yehudah expounds this verse as follows.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'V'Elav Hu Nosei Es Nafsho' - a worker
               risks his life, going up high ramps and trees for
               his wages;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Anyone who withholds wages is like one who takes his
               life.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Huna or Rav Chisda):</font></b> This refers to the employer's
          life (he causes his own death).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(The other of Rav Huna and Rav Chisda):</font></b> This refers to
          the worker's life.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first opinion learns from 'Al Tigzal Dal...
               v'Kova Es Koveihem Nafesh';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The second opinion learns from 'Es Nefesh Be'alav
               Yikach'.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> How does the first opinion expound the
               second verse?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> The verse refers to the thief. After taking
               the money, he is called 'Be'alav (the owner)'.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> How does the second opinion expound the
               first verse?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> The employer is worthy of death because he
               mortally afflicts the worker.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>OTHER CONDITIONS FOR TRANSGRESSING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If the worker did not ask for his wages, the
          employer does not transgress.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa) Suggestion:</font></b> Perhaps 'Lo Salin Pe'ulas Sachir
          Itecha Ad Boker' is even if the worker did not ask for
          his wages;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Itecha' (you choose to have his money), i.e. you
               transgress only if he asked for his wages.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps he transgresses even if he gave
               them to a grocer or moneychanger!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> 'Itecha' - with you, not with a grocer or
               moneychanger.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> He does not transgress if he arranged with a
          grocer or moneychanger to pay the worker (and the
          employer will reimburse him).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If the grocer or moneychanger refuses to pay
          the worker, can he claim from his employer?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Sheshes):</font></b> He cannot claim from his employer;
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rabah):</font></b> He can claim from his employer.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rabah deduces this from the Mishnah. The employer
               does not transgress if he arranged with a grocer or
               moneychanger, but he is liable to pay;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Sheshes explains, it is irrelevant to discuss
               transgressing, because he is exempt from paying.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Does one transgress 'Lo Salin' for withholding
          wages of a Kablan (one hired to complete a task for a
          fixed price)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If we say that a craftsman (immediately) acquires
               the improvements he makes on a Kli, then wages are
               not due to him, this is merely a loan (the employer
               owes him for the improvements on the Kli);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If we say that a craftsman does not acquire
               improvements on a Kli, then wages are due (and the
               employer transgresses).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Sheshes):</font></b> He transgresses.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> He does not transgress.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> That is when he gave the money to a grocer or
          moneychanger.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> If Reuven gave his garment to a
          craftsman (Levi), who finished it and informed Reuven,
          even if Reuven does not come for 10 days (to take and pay
          for it), he does not transgress keeping a worker's wages
          overnight;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Levi returned the garment during the day, if
               Reuven does not pay before sundown, he transgresses.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If a craftsman acquires ownership in a Kli that he
               improves, why does Reuven transgress? (Levi acquired
               the garment, and sold it to Reuven. Reuven does not
               owe wages, rather, for a sale!)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection #1 (Rav Mari brei d'Rav Kahana):</font></b> The Beraisa
          discusses one hired to teasel cloth (there is no
          improvement, for it lasts better if not teaseled).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why did he hire him?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> He hired him to soften it.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Objection:</font></b> That is an improvement!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> Rather, he was hired to stomp on it (to
          clean and moisten it), he is paid for each hit (he is not
          a Kablan).
<br>
<br>

sjt:
<font><b>1) WITHHOLDING THE WAGES OF A CRAFTSMAN</b></font><b>
<br>QUESTION:</b> The Gemara says that according to the opinion which maintains that a craftsman ('Uman') who works on an object does <i>not</i> acquire the value of the improvements that he makes, the craftsman is considered a hired worker and the laws of 'Bal Talin' apply. Consequently, if the owner of the object does not pay the craftsman on time (when he finishes the work), he transgresses the Isur of 'Bal Talin.'
</p><p>
The <b>RITVA</b> in Kidushin (48a, DH Hacha) asks that a person who withholds the wages of a craftsman should <i>not</i> transgress the Isur of 'Bal Talin.' If an employer gives an object as a 'Mashkon' (security) to his employee, the laws of 'Bal Talin' do not take effect (since the Mashkon will serve as the payment, and thus the employee will have received his payment on time). Even if a craftsman does not acquire a share in the object that he improves, the object itself is considered a Mashkon for the craftsman, as the Gemara earlier (80b) teaches ('a craftsman holds the object in order to collect his wages'). Since a craftsman always has a Mashkon, why does the one who employed him transgress the Isur of 'Bal Talin'?
</p><p>
<b>ANSWER:</b> The <b>RITVA</b> and <b>RAN</b> answer that the presence of a Mashkon prevents the problem of 'Bal Talin' only when the employer gives it directly to the employee with the express intent that the object will be security for the payment that the employer owes. When it is given in this manner, the worker acquires the Mashkon in accordance with the ruling of Rebbi Yitzchak ('Ba'al Chov Koneh Mashkon'). In the case of the Gemara here, however, the craftsman holds the object as collateral on his own accord (without the explicit consent of the owner), and he therefore does <i>not</i> acquire it as payment for his work, and thus the laws of 'Bal Talin' apply. In fact, the Ritva uses this argument to prove that Rebbi Yitzchak's ruling (that a creditor acquires a Mashkon) does not apply to an object that was not given to him with the express intent that it be a Mashkon.
</p><p>
The <b>KETZOS HA'CHOSHEN</b> (72:23) raises an objection to the Ritva's question. The Gemara states that the employer transgresses 'Bal Talin' only after the object has already been returned, for it is at the moment that the object is returned that the employer becomes obligated to pay the craftsman. At that moment, however, the worker no longer has the Mashkon in his possession, and thus 'Bal Talin' <i>does</i> apply. How, then, does the Ritva prove that a craftsman does not acquire the object as a Mashkon? Perhaps he <i>does</i> acquire it, but the laws of 'Bal Talin' still apply because the employer becomes obligated to pay the craftsman only when the object is returned, at which time there is no longer a Mashkon.
</p><p>
The Ketzos ha'Choshen answers that if the worker <i>did</i> acquire the object as a Mashkon, then even after he returns the object to the owner the laws of 'Bal Talin' do <i>not</i> apply. Since he acquired the object as a Mashkon while it was in his possession, when he returns it to the owner it is considered a <i>sale</i> and the owner owes him money for the purchase of the object. The payment that the owner owes the craftsman is the purchase money, not the wages of a hired worker, and 'Bal Talin' therefore does not apply (just as it does not apply according to the opinion which maintains that a craftsman acquires a share in the object that he works on). This explains how the Ritva can prove from the fact that 'Bal Talin' applies after the object is returned that the craftsman does not acquire the object as a Mashkon in the manner of 'Ba'al Chov Koneh Mashkon.' (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN DO WE SAY UMAN KONEH BI'SHVACH KLI?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Does one transgress 'Lo Salin' for
               withouseholdlding wages of a Kablan (one hired to
               complete a task for a fixed price)?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If we say that Uman Koneh bi'Shvach Kli (a
                    craftsman immediately acquires the improvements
                    he makes to a Kli), then wages are not due to
                    him, this is merely a loan (the employer owes
                    him for the improvements on the Kli);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If Ein Uman Koneh bi'Shvach Kli, then wages are
                    due (and he transgresses).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rav Sheshes):</font></b> He transgresses.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Bava Kama 98b (Rav Asi):</font></b> If a carpenter received
               wood to make a chest, and he broke it, he is exempt,
               for Uman Koneh bi'Shvach Kli.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (Beraisa):</font></b> If Reuven gave his garment to an
               Uman (Levi), who returned it during the day, if
               Reuven does not pay before sundown, he transgresses
               Bal Talin (not paying a worker on the same day).
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Uman Koneh bi'Shvach Kli, why does Reuven
                    transgress? (Levi acquired, and sold it to
                    Reuven. Reuven does not owe wages, rather, for
                    a sale!)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, Levi is paid a set wage for each
               time he presses it. Only a Kablan (a worker
               contracted for an entire job) is Koneh bi'Shvach
               Kli.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Suggestion:</font></b> Rav Sheshes argues with Rav Asi.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rejection (Shmuel bar Acha):</font></b> Rav Sheshes discusses
               one hired to deliver a letter (there is no
               improvement to acquire).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> If one said 'make this metal
               into rings for me, and I will be Mekudeshes to you',
               once he makes them, she is Mekudeshes;
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> Chachamim say, she is Mekudeshes only when she gets
               (additional) money.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Suggestion:</font></b> They argue about whether or not a loan
               (what she owes him for his labor) can be Mekadesh.
               Both Tana'im hold that wages accrue continuously,
               from the start of the job until the end, so they are
               like a loan that she owes to him.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Rejection #1:</font></b> No, all agree that a loan cannot
               Mekadesh. R. Meir holds that wages are due at the
               end. Chachamim hold that wages accrue continuously.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Rejection #2:</font></b> All agree that wages accrue, and that
               a loan cannot be Mekadesh. They argue about whether
               or not Uman Koneh bi'Shvach Kli.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Rejection #3 (Rava):</font></b> All agree that Ein Uman Koneh,
               that wages accrue, and that a loan cannot be
               Mekadesh. The case is, he added to what she gave to
               him, and also pardoned her debt to him. They argue
               about whether she intends to become Mekudeshes
               through his addition, or through the loan (which is
               invalid).
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (68b and Bava Kama 35a):</font></b> Rav Sheshes taught that
               Ein Uman Koneh bi'Shvach Kli. The Halachah follows
               him. Rava concluded that all agree that Ein Uman
               Koneh bi'Shvach Kli. We do not rely on the rejection
               of the proof from our Mishnah (there is no
               improvement). The Halachah does not follow Rav Asi.
               If a craftsman received wood to make a chest, and he
               broke it, he is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rebuttal (Rosh Kidushin 2:11):</font></b> The proof (from Rava)
               is invalid. To reject the suggestion that Tana'im
               argue about this, he had to say that all agree that
               Ein Uman Koneh. He could not say that all agree that
               Uman Koneh, for then all would say that she is
               Mekudeshes. R. Tam rules like Rav Asi.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Kama 9:14):</font></b> If the Tana'im argue about
               Uman Koneh, the Halachah follows Chachamim who say
               that she is not Mekudeshes because Ein Uman Koneh.
               If they do not argue about this, all hold that Ein
               Uman Koneh. However, one could say that they argue
               about whether or not wages accrue continuously.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 10:4):</font></b> If one gave to an
               Uman wood to make a chest, and he broke it, he is
               liable, for Ein Uman Koneh bi'Shvach Kli.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (Avodah Zarah 5:35):</font></b> If a Yisrael gave silver
               to a Nochri Uman to make a Kli, he need not immerse
               it. Some require Tevilah according to the opinion
               that Uman Koneh; Bahag rules like this. The Rif
               rules that Ein Uman Koneh; it does not need Tevilah,
               for it was never called the Nochri's. It is unlike
               Klei Midyan.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (YD 120 DH Yisrael, and Bedek
                    ha'Bayis):</font></b> The Rosh means that all agree that
                    it does not need Tevilah, for it was never
                    called the Nochri's. The Ritzba requires
                    Tevilah even if a Nochri fixed a Yisrael's
                    broken Kli that did not hold a Revi'is.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 306:2):</font></b> If Reuven gave to an Uman
               wood to make a chest, and he broke it, he pays to
               Reuven the value of a chest, for Ein Uman Koneh.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Darchei Moshe (EH 28:8):</font></b> The Tur says that Ein
                    Uman Koneh, the Uman is liable. Perhaps he
                    means that if Reuven seized payment, we do not
                    force him to return it, but we do not force the
                    Uman to pay due to Safek. (In Kidushin, the Tur
                    says that Uman Koneh.) Alternatively, the Rosh
                    concludes that Uman Koneh, but the Tur rules
                    like the Rif and Rambam.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz (EH 28:28, citing Maharshal):</font></b> The Tur
                    obligates paying, so we cannot say that it is a
                    Safek! Rather, the Tur erred.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (6):</font></b> The correct text of the Tur holds
                    everywhere that Ein Uman Koneh, like I
                    explained in Drishah (EH 28:38 DH Shuv).
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (3):</font></b> It is proper to rule that this law
                    is a Safek. Bahag, the Ri, R. Tam Semag, and
                    the Terumas ha'Deshen rule like Rav Asi, that
                    Uman Koneh. It seems that the Rosh was unsure.
                    If Bava Metzi'a he brought only the Rif's
                    opinion; he relied on what he wrote in
                    Kidushin. In Bava Kama he concluded 'however,
                    one could say that they argue about whether or
                    not wages accrue continuously.' I.e. it would
                    have been simpler for Rava to say that they
                    argue about whether wages accrue continuously.
                    Rava did not, for he holds that the Halachah
                    follows R. Meir. Regarding Tevilah, all Poskim
                    hold that Uman Koneh. Regarding money, it is a
                    Safek, so ha'Motzi me'Chavero Alav ha'Re'ayah.
                    Bal Talin applies to a worker who does not
                    improve the Kli, even according to the opinion
                    that Uman Koneh.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 120:10):</font></b> If a Yisrael gave silver
               to a Nochri Uman to make a Kli, he need not immerse
               it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Some disagree. One should immerse it without a
               Berachah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (25):</font></b> This opinion (the Ritzba) holds that
                    Uman Koneh.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bach (DH u'Mah):</font></b> The Ritzba requires Tevilah
                    only if it was not considered a Kli before (it
                    could not hold a Revi'is), and the Nochri added
                    his own silver. /
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (21):</font></b> The Ritzba requires Tevilah even if
                    all the silver was the Yisrael's. One must be
                    stringent about an Isur mid'Oraisa.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Taz (12):</font></b> The Rema did not mention fixing a Kli
                    that did not hold a Revi'is, for he does not
                    rule like the Ritzba regarding this.
                    Alternatively, since it was useless before,
                    this is included in making a new Kli.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> If a Yisrael made a Kli from a Nochri's silver
               and a Yisrael bought it, he immerses it without a
               Berachah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (13):</font></b> The Isur v'Heter connotes that one
                    immerses it with a Berachah, even if the Nochri
                    never received it. It seems that the Rema holds
                    that an Uman acquires only improvements. He
                    cannot keep the Kli itself, for he did not
                    teaches that acquire it. The Rema is stringent
                    for the other opinions.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>UMAN KONEH BI'SHVACH KLI REGARDING KIDUSHIN </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHY THE WORKER SWEARS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> At the time a worker should be paid, he swears
          and collects (this is a Rabbinical enactment).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why did Chachamim enact that he swears and
          collects?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav Nachman):</font></b> Mid'Oraisa, the employer should
          swear and be exempt; like every case of one who denies a
          debt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim enacted that the worker swears and
               collects for the sake of his livelihood.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Is that a proper reason to take money from
               the employer?!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The enactment benefits the employer. It
               encourages people to work for others.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> The worker would prefer that the
                    employer swears and is exempt, to encourage him
                    to hire workers!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer:</font></b> No. An employer must hire people in any
                    case.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Objection:</font></b> Also workers must work for others in any
               case!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, an employer is busy overseeing his
          workers. Presumably he forgot that he did not pay.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question #1:</font></b> If so, the worker should collect without
          swearing!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The oath is to appease the employer (lest he
          suspect that the worker is lying).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Chachamim should have enacted that he must
               pay the worker in front of witnesses!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> That is too tedious.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Chachamim should have enacted that workers
               are paid before they work (so they will not be
               believed later).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Everyone prefers that workers are paid after
               working (sometimes the employer does not have money
               to pay them beforehand; the workers are afraid that
               they will lose the money).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question #2:</font></b> If so (the enactment is because an employer
          is busy), the same should apply even if they argue about
          the (amount of the) wages!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If the worker says 'you hired me for
               two', and the employer says 'I hired you for one',
               (for the worker) to take money from another (the
               employer), he must bring proof.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> People surely remember the agreed wages.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question #3:</font></b> If so, the same should apply after the time
          to be paid!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> After the time he should be paid, he does
               not swear and collect.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> There is a Chazakah that an employer will not
          transgress 'Lo Salin.'
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> We said that an employer is busy, and he
          forgets!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> That is before the deadline for payment comes.
          When it comes, he motivates himself and remembers.
<br>

<p>

sjt:
</p><p>
<font><b>2) COLLECTING A DEBT WHEN ONE IS HOLDING COLLATERAL</b></font><b>
<br>QUESTION:</b> The Gemara teaches that a creditor who has in his possession an object of collateral may collect from the debtor without bringing any evidence since, if he wanted, he could claim that the object of collateral belongs to him. In such a case, though, does he need to make a Shevu'ah before collecting the debt?
</p><p>
Generally, in all cases of 'Nishba v'Notel' (where one is entitled to collect money based merely on his word; a list of such cases is recorded in the Mishnah in Shevuos 7:1), one is obligated to make a Shevu'ah before he can collect the money or object. The <b>RAMBAM</b> (Hilchos Malveh v'Loveh 13:3) cites the <b>GE'ONIM</b> who explain that when a creditor possesses an object of collateral and claims a debt equivalent to the value of the collateral, although he is entitled to collect based on a 'Migu' that he could have claimed that the object of collateral belongs to him, he must make a Shevu'ah ('Nishba v'Notel') in order to collect. According to the Ge'onim, although the creditor has the object of collateral in his possession, he is not considered to be 'Muchzak' (in which case he would not have to swear). Rather, since he is claiming <i>other</i> money (the money of the debt) and not the collateral itself, he is not considered to be 'Muchzak' and thus he must swear before he may collect the money.
</p><p>
The <b>RAMBAN</b> (cited by the Ran in Shevuos, 27a of the pages of the Rif) questions the ruling of the Ge'onim from the Beraisa quoted here. The Beraisa says that when a craftsman claims that his salary was fixed at two Zuz, and the employer claims that it was fixed at one Zuz, if the craftsman is in possession of the object his claim prevails. This Beraisa is quoted in greater detail in Bava Basra (45b) where it says, 'As long as the object is in the hands of the craftsman, his claim prevails, but once the employer has received the object, <i>his</i> claim prevails, on condition that he swears first.' Since the Beraisa mentions the requirement to swear only when the object has been returned to the employer, it implies that in the case of the Reisha, when the craftsman has the object in his possession, the craftsman does <i>not</i> have to make a Shevu'ah. This seems to contradict the ruling of the Ge'onim who say that a claimant must make a Shevu'ah before he collects even though he has an object of collateral.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAN</b> points out that according to the opinion which maintains that a 'craftsman acquires the value of the improvements that he makes to the object' ('Uman Koneh b'Shevach Kli'), there is no question on the Ge'onim. The Ge'onim are discussing a case in which the creditor is merely in possession of an object of collateral (and he is thus the one who is trying to be 'Motzi' from the other person). A craftsman, in contrast, <i>owns</i> part of the object, and thus he is considered 'Muchzak' and is not obligated to swear to support his claim. This answer, however, does not address the question according to the opinion which maintains that a craftsman does <i>not</i> acquire the value of the improvements that he makes to the object.
</p><p>
(b) The <b>RAN</b> (loc. cit.) offers a different answer. Whether the creditor or craftsman needs to swear depends on what he claims. When the creditor demands payment, he is considered to be 'Motzi' money from the debtor, and in such a case the Ge'onim obligate him to swear. The Beraisa's case refers to a craftsman who does not demand payment. Rather, he threatens the employer that if he does not receive his salary, he will not return the object. He assumes that the owner will consent and pay him the salary that he claims to deserve. In such a case he is not obligated to swear. (Y. Marcus)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>AFTER THE WAGES ARE DUE</font></b>

<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Do we suspect that a worker (who claims payment
          after the due time) is trying to steal?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Two Chazakos support the employer, and only one
          supports the worker.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There is a Chazakah that an employer will not
               transgress 'Lo Salin', and that a worker does not
               delay claiming his wages;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The only Chazakah supporting the worker is that we
               do not suspect him of stealing.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If witnesses saw the worker demand his wages,
          he swears and collects after the time.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why do witnesses change things? Even without
          them, we see the worker demanding his wages!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Asi):</font></b> Witnesses saw the worker demand his
          wages before the due time.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps the employer paid him afterwards!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> Witnesses saw the worker claiming the
          entire time until the deadline.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> After this, is the employer never believed?!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rav Chama bar Ukva):</font></b> The worker is believed to
          swear (and collect) only the next day.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>TAKING A SECURITY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven lent Shimon, he may Memashken him
          (take a security from Shimon's house) only through Beis
          Din.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He may not enter Shimon's house to take it -
               'ba'Chutz Ta'amod.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Shimon has two Kelim, Reuven only takes one.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Reuven returns a pillow (when Shimon needs it) at night,
          and a plow for the day.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If Shimon dies, he need not return it to the heirs (he
          may sell it to collect the debt);
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	R. Shimon ben Gamliel says, (even when Shimon is alive)
          Reuven never need return the security after 30 days.
          After that, he sells it in Beis Din.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Gemara - Shmuel):</font></b> The Shali'ach of Beis Din may be
          Menate'ach (take a security from Shimon in the market),
          but he may not be Memashken him.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If Reuven lent Shimon, he may be
          Memashken him only  through Beis Din.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This shows that he may be Memashken him through Beis
               Din!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Shmuel):</font></b> The Mishnah means that he may be
          Menate'ach.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Support (Mishnah):</font></b> He may not enter Shimon's house to
          take it - 'ba'Chutz Ta'amod.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Who is forbidden to enter?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It cannot mean Reuven. The first clause teaches
                    this!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, the Shali'ach of Beis Din is
               forbidden.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. The Mishnah teaches that Reuven may not
          Memashken him, but Beis Din may;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven may not even Menate'ach him (Bach - this is a
               decree), so he will not come to enter his house.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Rav Yosef):</font></b> 'Lo Yachavol Rechayim va'Rachev',
          but one may be Memashken other things!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Lo Sachavol Beged Almanah' - one may be Memashken
               garments of other people!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Who may be Memashken other things or
               people?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It cannot be the lender - 'Lo Savo El Beiso
                    La'avot Avoto'!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it is a Shali'ach of Beis Din.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Papa brei d'Rav Nachman):</font></b> Really, the verses
          discuss the lender. He transgresses an extra Lav if he
          takes a millstone or a widow's garment.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Beraisa) Question:</font></b> 'Ba'Chutz Ta'amod' already teaches
          that the borrower will take out the security. What do we
          learn from 'veha'Ish'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> This includes a Shali'ach of Beis Din.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> A Shali'ach of Beis Din is like the
               borrower. (He may enter the borrower's house.)
<br>
<br>

sjt:
<font><b>1) SEIZING AN OBJECT AS COLLATERAL FROM A DEBTOR</b></font><b>
<br>QUESTION:</b> The Mishnah states that a creditor may not seize, on his own accord, an object as collateral from his debtor. The Gemara quotes Shmuel who says that although a Shali'ach of Beis Din is permitted to seize an object as collateral on behalf of a creditor, he is not permitted to enter the debtor's house in order to take the collateral.
</p><p>
This Halachah, that a creditor is not permitted to seize an object as collateral from the debtor, seems to contradict another Halachah which states that 'Avid Inish Dina l'Nafshei.' The Gemara in Bava Kama (27b) teaches that a person who is owed money is entitled to seize by force what is owed to him, without first summoning the other party to Beis Din. If the Halachah states that 'Avid Inish Dina l'Nafshei,' then why is a creditor not permitted to seize a Mashkon from a debtor? (Rishonim, cited by the <b>NIMUKEI YOSEF</b>, 69a of the pages of the Rif)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RABEINU TAM</b> answers that the Torah prohibits a lender from seizing an object from the borrower only when the object is seized as collateral. A lender is permitted to seize an object as <i>payment</i> for the debt.
</p><p>
The <b>KETZOS HA'CHOSHEN</b> (97:2) raises an objection to this answer. He says that only Beis Din may collect an object as payment on behalf of a creditor, because the object's value needs to be appraised. When a creditor seizes an object on his own accord, no proper appraisal is done, and thus it cannot be considered a valid collection according to Halachah.
</p><p>
(b) <b>RABEINU TAM</b> offers an alternative answer. He suggests that the Gemara in Bava Kama permits a person to seize only an object that rightfully belongs to him (for example, if someone stole an object from him, he may take it back by force). The Torah does not permit one to collect a debt by seizing an object that belongs to the debtor.
</p><p>
The <b>RIF</b> (in Teshuvos) states that in a case where the debtor is known to be a dishonest, brazen, or extremely difficult person who refuses to pay his debts, the Torah does <i>not</i> prohibit a Shali'ach of Beis Din from entering the debtor's home to take an object as collateral. This is also the view of the <b>RAMAH</b> (as cited by the <b>SHILTEI GIBORIM</b> and the <b>TUR</b> CM 97:26), who writes that the Torah prohibits a Shali'ach of Beis Din from entering the house of a debtor only when there is some other way to seize an object (or land) as collateral. The Shiltei Giborim and the Nimukei Yosef write in the name of the <b>SEFER HA'TERUMAH</b>, however, that this should be done only in extreme circumstances ('she'Ein Lanu Ko'ach la'Akor Mitzvah Zu Ki Im b'Koshi Gadol').
</p><p>


<font><b>2) SEIZING A 'MASHKON' FROM THE DEBTOR OUTSIDE OF HIS HOUSE</b></font><b>
<br>OPINIONS:</b> The Gemara says that a Shali'ach of Beis Din is not permitted to enter the house of a debtor in order to seize an object as collateral, but he is permitted to seize an object from the debtor when he finds him outside of his house. The creditor himself is not allowed to seize an object as collateral even when he finds the borrower out of his house.
</p><p>
What is the source of the prohibition for a creditor to seize an object that is not in the debtor's house? The verse (Devarim 24:10) prohibits specifically entering the debtor's house to seize an object. It does not mention a prohibition to seize an object outside of his house.
</p><p>
(a) <b>TOSFOS</b> (113a, DH Eima Lo) asserts that the prohibition for the creditor to seize a Mashkon from the debtor outside of his house is only an Isur d'Rabanan, because the verse mentions only that he may not enter the debtor's house. As the Gemara says (according to the Girsa of Tosfos), the Rabanan prohibited the creditor from seizing an object from the debtor even outside of his house as a Gezeirah to ensure that he will not enter the debtor's house to seize it (and thereby transgress an Isur d'Oraisa).
</p><p>
(b) The <b>LECHEM MISHNEH</b> and others infer from the words of the <b>RAMBAM</b> (Hilchos Malveh v'Loveh 3:4) that he maintains that it is prohibited mid'Oraisa for a creditor to seize a Mashkon from a debtor even outside of his house. (According to the Rambam, when the Gemara says that he may not seize a Mashkon from the debtor outside of the debtor's house because he might enter the house, the Gemara is giving a reason for the Isur d'Oraisa (<b>TOSFOS YOM TOV</b>; see <b>ARUCH HA'SHULCHAN</b> CM 97:6).) This is also the view of the <b>TOSFOS RID</b>.
</p><p>
The Acharonim (<b>NESIV HA'CHESED</b> 7:5, cited by <b>YOSEF DA'AS</b>) explain that the Rambam's view is based on the Sifri (to Devarim 24:10). The Sifri states, 'We know only that the Isur applies when the creditor enters the house of the debtor. How do we know to include in the Isur a case in which the creditor seizes an object from the debtor outside of his house? The Torah writes the additional words, 'la'Avot Avoto,' to include in the Isur the act of seizing an object from the debtor even outside of his house.' (Even though the verse specifically says that one is prohibited to enter the house of the debtor, this is Lav Davka (<b>S'MA</b> to CM 97:7). Alternatively, when the creditor takes an item directly from the debtor's hand, it is considered as though he takes it from his house (<b>EVEN HA'AZEL</b>, DH v'Nir'eh).)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ANOINTING ON SHABBOS</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> Sons of kings may rub scented oil on
               their wounds on Shabbos, for they anoint themselves
               with scented oil even when they have no wound;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon says, all Bnei Yisrael are sons of kings
               (and are permitted).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shabbos 53b (Beraisa):</font></b> (On Shabbos) one may anoint
               and crush (a scab on) a person, but not an animal.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> The case is, there is a wound, and it is
               for pain.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection:</font></b> No, the wound healed. It is for pleasure.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 111a (Mishnah):</font></b> If one's loins hurt, he may not
               anoint with wine or vinegar. He may anoint with oil,
               but not rose oil... (R. Shimon permits).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (R. Aba bar Zavda citing Rav):</font></b> The Halachah follows
               R. Shimon.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> Rav does not hold like R. Shimon!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Simi bar Chiya citing Rav):</font></b> One may not
                    wrap a rag tightly in the spout of a barrel on
                    Yom Tov (even though he does not intend to
                    squeeze out liquid)!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer:</font></b> Abaye and Rava both say that R. Shimon
               agrees about a Pesik Reishei (an inevitable result).
               It is as if he intended.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question:</font></b> Rav Chiya bar Ashi said in the name of Rav
               that the Halachah follows R. Yehudah (regarding
               Davar she'Eino Miskaven)!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer (Rava and R. Chiya bar Avin):</font></b> Rav says that
               the Halachah follows R. Shimon, but for a different
               reason.
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> R. Shimon permits, even where rose oil is scarce
               (and expensive, and it is evident that he anoints to
               heal). Rav permits only where it is abundant.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> 134b (Rav):</font></b> We do not refrain from putting hot water
               and oil on a wound on Shabbos.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> (Shmuel):</font></b> One puts next to the wound, and it drips
               down into the wound.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Support (for Shmuel - Beraisa):</font></b> One may not put oil
               or hot water on a wound on Shabbos. One puts next to
               the wound, and it drips into the wound.
<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 (Shabbos 24b and 5:3):</font></b> One may anoint
               and crush (scabs on) people, but not animals. This
               is after the wound healed, and it is for pleasure.
               If there is a wound and it is due to pain, it is
               permitted even for animals.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif and Rosh (Shabbos 41a and 14:11):</font></b> The Halachah
               follows Rav, who permits only where rose oil is
               abundant.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tosfos (111a DH l'Meimra):</font></b> The Gemara thought
                    that Chachamim forbid anointing even for
                    pleasure, for sometimes he does so for Refu'ah,
                    and R. Shimon permits, since he permits Davar
                    she'Eino Miskaven.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ran (DH Omar):</font></b> Bahag and R. Chananel rule like
                    R. Shimon, who says that all Bnei Yisrael are
                    sons of kings, for the Gemara compares this to
                    his Heter for Davar she'Eino Miskaven. Since we
                    rule like him regarding Davar she'Eino
                    Miskaven, also regarding this.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rif and Rosh (Shabbos 53b and 19:3):</font></b> The Halachah
               follows Shmuel, for a Beraisa supports him.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Shabbos 21:23):</font></b> One may anoint on
               Shabbos with oil that healthy people normally anoint
               with, even if he intends for Refu'ah. Oils that
               healthy people do not normally anoint with are
               forbidden. If one has a pain in his loins, he may
               anoint with oil, but not with wine or vinegar. He
               may use rose oil only where people anoint with it. 
               One may anoint with oil and salt in any place.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (26):</font></b> One may not put oil and hot water on a
               wound or on a tuft on a wound, or on a tuft to put
               it on a wound. One puts next to the wound, and it
               drips down into the wound.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rambam (30):</font></b> One may anoint and crush (scabs on)
               people for pleasure, but not on animals. If an
               animal had pain, one may remove its pain through
               anointing and crushing.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (OC 327:1):</font></b> If one has a pain in his
               loins, he may not anoint with oil and vinegar, but
               he may anoint with oil alone.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Ika):</font></b> A Beraisa supports
                    Shmuel, who says that one may not put oil or
                    hot water on the wound itself! We must say that
                    anointing is different, for it is only a small
                    amount. Tosfos (DH v'Ein) says that Rav and
                    Shmuel argue about oil and hot water mixed
                    together, but each by itself is permitted, like
                    the Mishnah says.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishnah Berurah (1):</font></b> One may not use oil and
                    vinegar together, for this is done only for
                    Refu'ah. All Refu'ah on Shabbos is forbidden,
                    lest one grind ingredients (to make a
                    medicine), which is an Av Melachah. Our text of
                    the Mishnah, and that of R. Chananel, the Rif
                    and Rambam, forbids 'Yayin v'Chometz', i.e.
                    wine <i>or</i> vinegar.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kaf ha'Chayim (1):</font></b> Even according to (the
                    Shulchan Aruch, which follows) the text of the
                    Tur, one may not anoint with wine, for it is
                    done only for Refu'ah.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Mishnah Berurah (2):</font></b> One may put oil even on
                    the wound itself (in a locale where where
                    people normally anoint with oil).
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Kaf ha'Chayim (3):</font></b> If one has no pain, he may
                    anoint with oil and vinegar.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> He may not use rose oil, for
               it is clear that he does so for Refu'ah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mishnah Berurah (3):</font></b> This is forbidden even
                    through a Nochri if the Yisrael is basically
                    healthy.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Kaf ha'Chayim (7):</font></b> Even though one may not
                    scent even flesh, Beis David says that rose oil
                    does not give a nice scent. Pesach ha'Dvir
                    disagrees. Perhaps rose oil is unlike rose
                    water, for they are made differently.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Taz (2):</font></b> This is why Shiltei ha'Giborim forbids
                    anointing the head if there are scabs on it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> In a place where people anoint with oil only
               for Refu'ah, every oil is forbidden.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Nir'eh):</font></b> Nowadays, one may not
                    anoint with any oil on a wound. Healthy people
                    do not anoint with oil, so it is clear that he
                    does so for Refu'ah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Kaf ha'Chayim (13):</font></b> All forbid odorous oil, for
                    it is only for Refu'ah. Eshel Avraham permits
                    putting whiskey on the head, for healthy people
                    do so to fall asleep quickly or kill lice.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (328:22):</font></b> One may remove a scab over
               a wound and anoint the wound with oil, but not with
               Chelev, for it melts. This is even after the wound
               healed, when there is mere pain. One may not put oil
               and hot water on it together, not onto a tuft to put
               on the wound, but he may put next to the wound, and
               it drips down into the wound.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Rabeinu and 327
                    DH v'Ika):</font></b> Making Chelev or lard melt is
                    forbidden, like crushing snow or hail. This is
                    overt Nolad (something that came into being on
                    Shabbos).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishnah Berurah (70):</font></b> Even though nowadays
                    people anoint with oil only for Refu'ah,
                    presumably this is permitted after the wound
                    healed.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kaf ha'Chayim (139):</font></b> Lard and congealed oil are
                    like Chelev.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Kaf ha'Chayim (143):</font></b> We permit only oils
                    normally used for anointing, and only a normal
                    amount for anointing.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Mishnah Berurah (74):</font></b> Hot water alone is
                    permitted, just like oil alone.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Mishnah Berurah (75):</font></b> One may not put even hot
                    water alone on a tuft, even though it is not
                    clearly for Refu'ah. We decree lest he squeeze.
                    We are not concerned for oil, for it is not
                    normal to launder with oil.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Kaf ha'Chayim (144):</font></b> Some decree even about
                    oil, lest he squeeze.
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>IS AN UMAN KONEH BI'SHVACH KLI? </b></b>(</font><font color='darkblue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> No, he is like the lender (he may not enter the
          borrower's house).
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> 'Im Chavol Tachbol Salmas Re'echa' -
          the verse discusses a Shali'ach of Beis Din.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps it discusses the lender!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> 'Lo Savo El Beiso La'avot Avoto' forbids
               the lender. 'Im Chavol' discusses a Shali'ach of
               Beis Din.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> Tana'im argue about whether or not or not a
          Shali'ach of Beis Din may be Memashken. Shmuel holds like
          the following Tana.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #1):</font></b> If a Shali'ach of Beis Din comes to
               Memashken, he may not enter the house - 'ba'Chutz
               Ta'amod veha'Ish (the borrower)' will take out the
               security.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>LEAVING KELIM FOR THE BORROWER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa #2):</font></b> If a lender comes to be Memashken, he may
          not enter the house - 'ba'Chutz Ta'amod';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Shali'ach of Beis Din may enter the house to be
               Memashken him.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	He may not be Memashken things used to make food;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	He leaves a rich borrower with two beds and a felt
          blanket. He leaves a poor borrower with two beds and a
          mattress of reeds.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	He leaves what the borrower needs himself, not for the
          borrower's wife and children.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Just like we are Mesader (leave essentials) for a
          borrower, we are Mesader for one who owes money of
          Erchin.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Just the contrary! The Torah teaches Sidur for
          one who owes Erchin (but does not explicitly teach Sidur
          for a borrower)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, just like we are Mesader for one who
          owes Erchin, also for a borrower.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> He leaves a rich borrower with two beds and a
          felt blanket. He leaves a poor borrower with two beds and
          a mattress of reeds.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> For whom does he leave the second bed?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It cannot be for his wife or children. The Beraisa
               continues 'he leaves for the borrower himself, not
               for his wife and children!'
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Both are for the borrower. One is to eat on, and
          one is to sleep on.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> I know how to cure anything, with three
               exceptions: one who eats a bitter date on an empty
               stomach, one who girds a belt of wet flax, and one
               who does not walk four Amos after eating before he
               sleeps. (Therefore, it is advisable to have a second
               bed for sleeping at least four Amos from where he
               eats.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(A reciter of Beraisos):</font></b> Just like we are Mesader for one
          who owes Erchin, we are Mesader for a borrower.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Objection (Rav Nachman):</font></b> We even sell the borrower's
          property. All the more so, we are not Mesader for him!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Do we really sell his property?!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> He returns a pillow at night, and a
                    plow during the day.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The Beraisa is like R. Shimon ben Gamliel,
               who says that we sell a security after 30 days.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah - R. Shimon ben Gamliel):</font></b> Reuven need
                    not return the security after 30 days. After 30
                    days, he sells it in Beis Din.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What is the source that R. Shimon ben
               Gamliel says that the security is sold entirely to
               pay the debt?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Perhaps for 30 days, the security is returned
                    intact, and after this, an expensive security
                    is sold, and the lender buys a (cheaper)
                    replacement appropriate for the borrower!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> R. Shimon ben Gamliel holds that even an
               expensive security is appropriate for any Yisrael.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>BNEI YISRAEL ARE SONS OF KINGS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Abaye):</font></b> R. Shimon ben Gamliel, R. Shimon, R. Yishmael
          and R. Akiva all hold that Bnei Yisrael are sons of
          kings.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Shimon ben Gamliel - (Mishnah):</font></b> We may not move
               Luf (a type of legume) nor mustard on Shabbos, since
               they cannot be used until cooked or ground;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Shimon ben Gamliel permits Luf, since it is
                    food for ravens (it is appropriate for sons of
                    kings to raise ravens).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Shimon - (Mishnah):</font></b> Sons of kings may rub scented
               oil on their wounds on Shabbos, for they anoint
               themselves with scented oil even when they have no
               wound;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Shimon says, all Bnei Yisrael are sons of
                    kings (and are permitted).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Yishmael and R. Akiva - (Beraisa):</font></b> If Shimon owed
               1000 Zuz, and he was wearing a garment worth 10,000,
               we make him sell it and buy something fitting for
               himself;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Yishmael):</font></b> Any Yisrael is worthy
                    of such a garment (he need not sell it).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Beraisa - R. Akiva):</font></b> Any Yisrael is worthy of
                    such a garment.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Earlier, we suggested that an expensive
          security is sold, and the lender buys a (cheaper)
          replacement fitting for the borrower;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There are blankets and pillows of varying qualities,
               but a plow is a plow!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rava bar Rabah):</font></b> The security was a silver plow.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Chaga):</font></b> Why can't the lender say 'I am not
          responsible for your livelihood'?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> The Torah makes him responsible - 'u'Lcha
          Tihyeh Tzedakah'!
<br>

<p>

sjt:
</p><p>
<font><b>3) LEAVING THE DEBTOR WITH SUFFICIENT ASSETS TO LIVE</b></font><b>
<br>QUESTION:</b> The Gemara describes the amount and type of supplies that a creditor must leave for a debtor when he collects from the debtor's assets.
</p><p>
How is this Gemara to be reconciled with the well-known principle that a creditor 'may collect from a debtor even the shirt on his back' (Bava Kama 11a)? That principle implies that the creditor is not required to leave anything for the debtor.
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RABEINU TAM</b> (cited by <b>TOSFOS</b> 114a, DH Mahu) indeed rules, based on the Gemara in Bava Kama, that 'Ein Mesadrin l'Ba'al Chov' -- the creditor is not required to leave anything for the debtor. He maintains that the Rabanan and Raban Shimon ben Gamliel here argue about whether or not the Halachah is 'Mesadrin l'Ba'al Chov,' and that the Halachah follows Raban Shimon ben Gamliel.
</p><p>
(b) The <b>RIF</b>, <b>RAMBAM</b> and others rule that the creditor must leave the debtor with his basic necessities. <b>TOSFOS</b> in Bava Kama (11a) and the <b>RAN</b> here explain that the Gemara in Bava Kama refers to a case in which the debtor has a spare shirt. The creditor may take that shirt from the debtor since the debtor still has a shirt with which to cover himself.
</p><p>
(c) The <b>RAMBAN</b> and <b>RASHBA</b> answer that the Gemara in Bava Kama refers to a case in which the creditor and debtor stipulated in the Shtar that the creditor would be entitled to collect the shirt off of the debtor's back, thus making it a binding condition in the loan.
</p><p>
(The Rashba answers further that perhaps the Gemara in Bava Kama agrees that the Halachah is that 'Mesadrin l'Ba'al Chov,' and it is exaggerating when it says that the creditor may collect even the shirt off of his back.)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>FOR WHOM ARE WE MESADER?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Are we Mesader for a borrower?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we learn a Gezeirah Shavah 'Michah-Michah' from
               Erchin, or not?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> We may learn from Ravin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Ravin):</font></b> My Rebbi'im did not answer this question,
               but they discusses one who obligated himself to give
               100 Zuz to Hekdesh.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Opinion #1 (R. Yakov):</font></b> We learn a Kal va'Chomer from
               a creditor. Even though a creditor must return a
               security, he need not be Mesader. Hekdesh need not
               return a security, all the more so it need not be
               Mesader!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Opinion #2 (R. Yochanan):</font></b> 'Neder b'Erkecha' equates
               vows and Erchin;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Just like we Mesader for Erchin, also for vows.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yakov explains that Torah equates them for one
               who vows to give the value of a limb. (If one vows
               to give the Erech of a limb vital to life, he gives
               the full Erech of the person. Likewise, if one vows
               to give the value of a limb vital to life, he gives
               the person's full (slave) value.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Suggestion:</font></b> A Kal va'Chomer should teach that a creditor
          is Mesader!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding Erchin, there is no law of returning a
               security, yet we are Mesader. A creditor must return
               a security, all the more so he must be Mesader!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> 'V'Im Mach Hu me'Erkecha' - we Mesader for
          Erchin, not for a borrower.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to the opinion that a creditor is Mesader
               (Rashi - the first Tana of our Mishnah, he obligates
               the creditor to forever return the security; Tosfos
               - the Tana of the Beraisa (113b) who said so
               explicitly), 'Hu' teaches that he was poor from the
               time he vowed until now (only then he pays (a
               smaller) Erchin according to what he can afford).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Suggestion:</font></b> A Kal va'Chomer should teach that Hekdesh
          must return a security!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A creditor is not Mesader, yet he must return a
               security. Hekdesh is Mesader, all the more so it
               must return a security!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> 'V'Shochav b'Salmaso u'Veracheka' - Hekdesh
          need not return a security, since it does not need to be
          blessed.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> Indeed, Hash-m desires our Berachos -
          'v'Ochalta v'Sovata u'Verachta'!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> 'U'Lecha Tihyeh Tzedakah' - Hekdesh need
          not return a security, since it does not need to fulfill
          the Mitzvah of Tzedakah.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rabah bar Avuha):</font></b> Are we Mesader for a
          borrower?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Eliyahu):</font></b> Yes. We learn a Gezeirah Shavah
          'Michah-Michah' from Erchin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It says regarding Erchin 'v'Im Mach Hu me'Erkecha',
               and it says regarding a borrower 'v'Chi Yamuch
               Achicha'.
<br>
<br>

sjt:
<font><b>1) HALACHIC RULINGS OF ELIYAHU HA'NAVI</b></font><b>
<br>QUESTION:</b> The Gemara relates that Rabah bar Avuha found Eliyahu ha'Navi in a Beis ha'Kevaros of Nochrim. Rabah bar Avuha asked him whether or not the Halachah follows the view that 'Mesadrin l'Ba'al Chov' (a creditor must leave certain basic necessities for a debtor when he collects his debt from the debtor's assets). Eliyahu ha'Navi answered that a Gezeirah Shavah from Erchin teaches that the Halachah is that 'Mesadrin l'Ba'al Chov.'
</p><p>
The Gemara implies that Halachic rulings of Eliyahu ha'Navi are relevant and acceptable. This is apparent from the Gemara in Eruvin (43a), which discusses whether or not Eliyahu taught certain Halachos, and in Berachos (3a), where Rebbi Yosi learned a number of Halachos from Eliyahu. The Gemara in several places leaves certain Halachic questions in doubt 'until Eliyahu comes to resolve them for us' (see, for example, Sanhedrin 44a and Menachos 32a).
</p><p>
How can these Gemaras be reconciled with the teaching of <b>RASHI</b> (Shabbos 108a) that the Rabanan cannot rely on Eliyahu ha'Navi for Halachic questions of Isur v'Heter, but only for the clarification of facts? Moreover, the Gemara in Temurah (16a) teaches that the Rabanan do not rely on a prophet even to remind them of a Halachah l'Moshe mi'Sinai that was forgotten. This seems to be based on the Gemara earlier in Bava Metzia (59b) which teaches that even if a Bas Kol emanates from Shamayim and declares the Halachah to be in accordance with a particular opinion, the Halachah does not follow the Bas Kol because 'Lo ba'Shamayim Hi' (Devarim 30:12).
</p><p>
Another difficulty is that the <b>SEFER HA'CHINUCH</b> (#350), the <b>RAN</b>, and the <b>NIMUKEI YOSEF</b> cite the <b>GE'ONIM</b> who rule that 'Mesadrin l'Ba'al Chov,' and they explain that the reason for the Ge'onim's ruling is that Eliyahu ruled in accordance with the view of 'Mesadrin.' How can the Halachah follow a ruling issued by Eliyahu ha'Navi? (<b>MAHARATZ CHAYOS</b> here; see also <b>BIRKEI YOSEF</b> OC 32:4.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARATZ CHAYOS</b> explains that when Eliyahu gives a reason and a source for his ruling, his ruling is no different from the ruling of any other of the Chachamim of the generation.
</p><p>
The <b>MAHARATZ CHAYOS</b> in Berachos (3a) adds that when Eliyahu ha'Navi (or any other prophet) teaches a Halachah as a prophecy, or Nevu'ah, from Hash-m, it is not accepted as authoritative. However, when he teaches the Halachah as his personal opinion of Da'as Torah, then it may be accepted. When Rashi in Shabbos says that Eliyahu cannot teach a Halachah, he means that Eliyahu cannot teach Halachos as Eliyahu <i>ha'Navi</i> -- in his capacity as a prophet. However, he <i>may</i> teach Halachos in his role as a Chacham. (See also <b>BIRKEI YOSEF</b> loc. cit., <b>TORAH TEMIMAH</b> to Vayikra 27:216, and <b>CHASAM SOFER</b>, Teshuvos 6:98, as cited by the <b>DEVAR YAKOV</b> here.)
</p><p>
Similarly, the <b>TOSFOS YOM TOV</b> in Eduyos (8:7) explains that Eliyahu's future rulings will be able to resolve Halachic questions because he will give his reasoning and proofs for his rulings.
</p><p>
(b) Similarly, when Eliyahu merely relates a Halachah that was taught already by someone else, it certainly is accepted. Only when he, as a prophet, teaches a Halachah that was never taught is it not accepted. (See also Insights to Eruvin 43:3.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>TUM'AS OHEL OF NOCHRIM</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rabah bar Avuha (to Eliyahu):</font></b> Aren't you a Kohen
               (Pinchas)? Why are you in a cemetery (of Nochrim)?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Eliyahu - Beraisa - R. Shimon):</font></b> Graves of Nochrim
               do not impart Tum'as Ohel.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Nazir 48a (Beraisa) Suggestion:</font></b> Perhaps '...Al
               Nefesh Mes Lo Yavo' means even an animal, which is
               called 'Nefesh Behemah'!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection #1:</font></b> 'Al Nefesh Mes' refers to a person.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection #2 (R. Yishmael):</font></b> We need not learn from
               there. 'Lo Yavo' discusses a Tum'ah imparted by
               entering (an Ohel).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 64b (Mishnah):</font></b> If one finds a Mes lying down, like
               normal, he may relocate it, taking its Tefusah
               (underlying soil) with it. The same applies if he
               finds two Mesim. If he finds three Mesim between
               four and eight Amos apart, the area is assumed to be
               a burial site. He must check 20 Amos for more Mesim.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> The Mishnah says 'if he found', to
               exclude a known Mes. 'Dead' excludes someone
               murdered. 'Lying' excludes sitting. 'Normally'
               excludes when the head rests between the thighs.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Ula bar Chanina):</font></b> An incomplete Mes does not have
               the law of Tefusah, and it does not count towards
               establishing a burial site.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> All of these cases are excluded, for perhaps the Mes
               is a Nochri.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Yevamos 61 (Beraisa - R. Shimon):</font></b> Tum'as Ohel (being
               Metamei everything under the same roof as the
               Tum'ah) does not apply to graves of Nochrim.
               Regarding Tum'as Ohel it says 'Adam Ki Yamus
               b'Ohel', and) it says 'you are My flock... you are
               Adam.' You (Yisrael) are called Adam, but Nochrim
               are not.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Questions:</font></b> 'V'Nefesh Adam Shishah Asar Elef' (the
               captives taken from Midyan are called Adam)!
               '(Ninveh) has more than 120,000 Adam...'!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer:</font></b> It says Adam to distinguish the people from
               the animals.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question:</font></b> 'Whoever killed a soul (in the war against
               Midyan) and touched a Mes will make himself Tahor'
               (shows that a dead Nochri is Metamei)!
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer #1:</font></b> Perhaps a Yisrael died.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Chachamim do not accept this answer, for it
                    says 'v'Lo Nifkad Mimenu Ish';
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Shimon explains that verse to mean that no
                    one sinned.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Answer #2 (Ravina):</font></b> 'Adam Ki Yamus b'Ohel' excludes
               only Tum'as Ohel. We do not exclude Tum'ah of
               carrying or touching!
<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 Evel 3:3):</font></b> A Nochri is not Metamei
               b'Ohel. Therefore their graves are Tehorim. A Kohen
               may enter there and trample on their graves. It is
               forbidden only to touch or carry Tum'ah (of a dead
               Nochri).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Radvaz:</font></b> Even though R. Shimon ben Gamliel holds
                    like Chachamim (Ohalos 18:9), and this is not
                    one of the three places in which the Halachah
                    does not follow R. Shimon ben Gamliel in the
                    Mishnah, the Rambam rules like R. Shimon due to
                    the episode with Eliyahu. The Rambam holds that
                    Eliyahu gave a proper answer; also, Eliyahu
                    relied on it in practice.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos Maimoniyos (2):</font></b> The Re'em rules like R.
                    Shimon, that Nochrim do not have even Tum'as
                    Maga or Masa. R. Tam rules like Chachamim,
                    because R. Shimon ben Gamliel holds like them.
                    Eliyahu gave a mere Dichuy. He went over Nochri
                    graves because there was a gap of a Tefach
                    above the Mes (so the Tum'ah stays inside).
                    Seder Eliyahu Rabah says that he descended from
                    Rachel (so he is not a Kohen).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Question (Mishneh l'Melech):</font></b> Chachamim forbade
                    Kohanim to go to Chutz la'Aretz (Avodah Zarah
                    13b). They declared Chutz la'Aretz to be Tamei
                    because Nochrim bury their dead anywhere.
                    According to the Re'em, there is no Tum'ah at
                    all! It is difficult to say only Chachamim say
                    that there was a decree. Perhaps the Re'em
                    holds like Tosfos (Nazir 54b DH Eretz), who
                    says that it was due to the many Yisraelim
                    killed in Chutz la'Aretz.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Tum'as Mes 1:13):</font></b> A Nochri is not
               Metamei b'Ohel. This is a tradition. Regarding the
               war with Midyan it says 'anyone who touched a
               corpse'. It does not mention an Ohel.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> The Rambam rules like R. Shimon
                    against Chachamim because it seems that Ravina
                    holds like R. Shimon. Also, Eliyahu said that
                    this is the Halachah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question:</font></b> Lo ba'Shamayim Hi! (Bava Metzi'a 59b
                    teaches that Nevi'im cannot tell us what is the
                    Halachah.)
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer (Birkei Yosef OC 32:4 DH v'Nir'eh):</font></b> They
                    cannot tell us whom the Halachah follows
                    through prophecy, but a Navi can say things
                    from his Chachmah. When the Gemara says 'if
                    Eliyahu will come and say... we will not heed
                    him', it means 'if he will say through
                    prophecy.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (9:4):</font></b> A Nochri's coffin is not Tamei, since
               a Nochri has no Tum'as Ohel. One becomes Tamei only
               through touching or moving the Tum'ah itself.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> He learns from Nazir 65a
                    (Nochrim do not count towards establishing a
                    burial site).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> Perhaps it is obvious that Nochrim have
                    cemeteries, so if they have Tum'as Ohel, there
                    would be no reason not to be concerned.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Mishneh l'Melech (Hilchos Beis ha'Bechirah
                    1:13):</font></b> The Yerushalmi (Sanhedrin 1:2) says that
                    Chizkiyah was Me'aber the year because the
                    skull of Arona ha'Yevusi was found under the
                    Mizbe'ach. Rashi (Sanhedrin 12a DH she'Iber)
                    says that it was due to Tum'as Avodah Zarah the
                    days of Achaz. Rashi could hold that the
                    Halachah follows Chachamim, just he seeks to
                    explain also according to R. Shimon.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b></b> V'Shav ha'Kohen (75, cited by R. Akiva Eiger):
                    Even according to the opinion that a Ger Toshav
                    must accept all the Mitzvos except for eating
                    Neveilos, R. Shimon holds that he is not called
                    'Adam' and has no Tum'as Ohel. We always follow
                    Tosfos against the Rambam, therefore one must
                    be stringent.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Teshuvas ha'Rambam (145 DH ha'Teshuvah):</font></b> Clearly
               there is no difference between touching a dead
               Nochri, or any Mes, and his Kever. It says 'V'Kol
               Asher Yiga ...ba'Chalal ...Oh v'Kaver', and
               regarding the war with Midyan it says 'V'Kol Noge'a
               be'Chalal'. Just like one who touches a Nochri is
               Tamei, also one who touches his Kever. Both have
               Tum'as Maga, but not Ohel. Ravina (Yevamos 61a) says
               so according to everyone. Had he answered only for
               R. Shimon, he would have said 'R. Shimon can
               answer...' Eliyahu towered about Nochri graves, he
               did not touch them. R. Efrayim says that the
               stringency of Nochri residences shows that Nochrim
               have Tum'as Ohel. This is wrong. It is a stringency
               mid'Rabanan. This is why one need not excavate all
               the ground underneath.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Note:</font></b> It is not clear how to resolve this with
                    what the Rambam says in the Mishnah Torah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Teshuvas ha'Rosh (30:1):</font></b> Rabanan argue about Tum'as
               Ohel of Nochrim. Maharam me'Rotenburg protested
               against Kohanim who walked over Nochri graves. One
               who is stringent will be blessed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Panim Me'iros (2:14, b'Sof):</font></b> In Avodah Zarah
                    39a, the Gemara rules about Kever fish. Rashi's
                    text says 'Kever-fish is forbidden. A Siman
                    (way to remember this) is Kivrei (graves of)
                    Nochrim (they are Tamei).' This is difficult.
                    If the Gemara holds that Kivrei Nochrim are
                    like Kivrei Yisrael, it should have simply said
                    that Kever is the Siman! Rather, we must adopt
                    the text of R. Chananel (brought in Tosfos DH
                    v'Simanech), that Kever-fish is <i>permitted</i>,
                    and the Siman is Kivrei Nochrim (which are
                    Tahor)! This shows that the Halachah follows R.
                    Shimon.
<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 372:2):</font></b> It is proper that a Kohen
               be careful not to walk over graves of Nochrim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Note:</font></b> After the Beis Yosef (DH Kivrei) brings
                    the opinions of the Rambam, R. Tam and the
                    Rosh, and the Re'em, he says 'l'Halachah we are
                    stringent.' The Shach explains that he rules
                    like R. Shimon, and is stringent like the
                    Rambam against the Re'em. The next laws in the
                    Beis Yosef are like R. Shimon. However, the
                    Mishneh l'Melech (Evel 3:3) says that the Beis
                    Yosef is stringent like R. Tam, and so he rules
                    in the Shulchan Aruch.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Even though some are lenient, it is proper to
               be stringent.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHICH TUM'OS APPLY TO NOCHRIM? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>OTHER ANSWERS OF ELIYAHU</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rabah bar Avuha):</font></b> What is the source that a
          naked person may not separate Terumah?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Eliyahu):</font></b> (One must bless before separating, and
          one may not bless while naked due to) 'v'Lo Yireh Vecha
          Ervas Davar.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rabah bar Avuha):</font></b> Aren't you a Kohen (Pinchas)?
          Why are you in a cemetery (of Nochrim)?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Eliyahu - Beraisa - R. Shimon):</font></b> A Nochri's grave
          does not have Tum'as Ohel (to make Tamei whatever is
          above it or under a common roof with it), for it says
          about Tum'as Ohel 'Adam Ki Yamus b'Ohel');
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Adam Atem' - Yisrael are called 'Adam', but Nochrim
               are not.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Eliyahu was surprised that Rabah bar Avuha did not know
          this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rabah bar Avuha:</font></b> Due to my poverty, I am not
               sufficiently fluent in the four tractates of the
               Mishnah we focus on in Bavel (Mo'ed, Nashim,
               Nezikin, Kodshim). All the more so I am not fluent
               in (Zera'im and) Taharos!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Eliyahu took him to Gan Eden and told him to take
               leaves. As he was about to leave, he heard a voice
               saying that he was consuming his share in the world
               to come, so he threw down all the leaves.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> In any case, his garment had absorbed the smell. He
               sold it for a fortune, and divided the money among
               his sons-in-law.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CONDITIONS OF RETURNING A SECURITY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'V'Im Ish Oni Hu Lo Sishkav ba'Avoto', but one
          may sleep in a rich person's garment (given for a
          security).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection:</font></b> That is Ribis!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Sheshes):</font></b> The Beraisa means, a creditor may
          not sleep while holding an Oni's (night) garment in his
          house;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He may sleep with a rich person's garment in his
               house.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven lends to Shimon, he may not
          be`Memashken him, he need not return his security to him,
          he transgresses all these Mitzvos.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What does this mean?!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rav Sheshes):</font></b> If Reuven lends to Shimon, he
          may not be Memashken him. If he was Memashken him, he
          must return it. If he does not return it, he transgresses
          all these Mitzvos.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> If Reuven lends to Shimon, he may not
          be Memashken him. He must return it to him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is if he was Memashken him after giving the
               loan, but if he was Memashken him when he gave the
               loan, he need not return it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he was Memashken him after giving the loan and he
               does not return it, he transgresses all these
               Mitzvos.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Shizbi - Beraisa):</font></b> 'Ad Bo ha'Shemesh (before the sun
          rises) Teshivenu Lo' refers to a garment worn at night;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Hashev Tashiv Lo Es ha'Avot k'Vo ha'Shemesh (when
               the sun sets)' refers to a day garment.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Why should one return a night garment
          for the day, and a day garment for the night?!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rav Shizbi:</font></b> I will no longer recite the Beraisa (there is
          a mistake in the text).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rava:</font></b> The correct version is 'Ad Bo ha'Shemesh Teshivenu
          Lo' refers to a day garment, which may be taken at night;
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	'Hashev Tashiv Lo Es ha'Avot k'Vo ha'Shemesh' refers to a
          night garment, which may be taken during the day.
<br>

<p>

sjt:
</p><p>
<font><b>2) ELIYAHU HA'NAVI'S RESURRECTION OF THE DEAD</b></font><b>
<br>QUESTION:</b> The Gemara (114a) relates that Rabah bar Avuha found Eliyahu ha'Navi in a Beis ha'Kevaros of Nochrim. Rabah bar Avuha asked Eliyahu how he could be in a Beis ha'Kevaros, as Eliyahu was a Kohen and a Kohen is prohibited from entering a Beis ha'Kevaros. Eliyahu answered that the graves of Nochrim have no Tum'ah.
</p><p>
If Eliyahu ha'Navi was a Kohen, then how was he permitted to resurrect the son of the widow by touching him, as described in Sefer Melachim I (ch. 17)? (Rishonim)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Amar Lei) answers that since Eliyahu was certain that he would succeed in resurrecting the child, it was a case of 'Piku'ach Nefesh' which overrides the prohibition for a Kohen to become Tamei.
</p><p>
Tosfos' answer is difficult to understand. The Halachah of 'Piku'ach Nefesh' overrides Isurim only with regard to saving the life of a person who is still alive. There is no indication that one may transgress an Isur in order to bring back to life someone who has already died.
</p><p>
(b) <b>TOSFOS RABEINU PERETZ</b> (cited by the Shitah Mekubetzes) answers that perhaps the child did not actually die, but was merely unconscious (see also <b>TARGUM YONASAN</b>). Tosfos Rabeinu Peretz infers this from the verse that says, '... until there was no more breath left within him' (Melachim I 17:17).
</p><p>
This answer is problematic in light of another verse. The verse in Melachim II (2:9) says that Elisha requested from Eliyahu that he bestow upon him twice his strength. The Gemara in Sanhedrin (47a) explains that Elisha requested from Eliyahu the power to resurrect <i>two</i> dead people, while Eliyahu had resurrected only <i>one</i>. The person that Eliyahu resurrected was this child of the widow (see Rashi there, DH Na Pi Shenayim). The Gemara there implies that the child of the widow was actually dead.
</p><p>
Tosfos Rabeinu Peretz challenges his own answer from another source. Reish Lakish (in Nazir 43a) maintains that a Kohen is not permitted to touch a Goses, a person on his deathbed. The unconscious child was certainly no better than a Goses. How, then, was Eliyahu permitted to touch him? Tosfos Rabeinu Peretz answers that a Goses, according to Reish Lakish, is considered to be dead already since he certainly is going to die. Since this child was going to be revived, he did not have the status of a Goses whom a Kohen is prohibited to touch.
</p><p>
(c) <b>RABEINU BACHYE</b> (Parshas Pinchas, end of 25:11) says that the woman (Ishah ha'Tzarfatis) was a Nochris, and her dead son therefore had no Tum'as Ohel. Even though the corpse of a Nochri does have Tum'as Maga, it could be that Eliyahu did not actually touch the child but rather bent over him without touching him.
</p><p>
The <b>RIDVAZ</b> refutes this answer, citing the Chachamim who say that the child resurrected by Eliyahu was the prophet Yonah ben Amitai, who was a Jew. (Tosfos (114a-b, end of DH Mahu) says in the name of a Midrash that the child resurrected by Eliyahu was Mashi'ach ben Yosef.) The Ridvaz says further that it is not reasonable that such a miracle would have occurred for a Nochri. Moreover, Eliyahu certainly would not have lodged in the home of a Nochris.
</p><p>
(d) The <b>RIDVAZ</b> (Teshuvos 6:203) cites and rejects a number of answers to this question. He concludes that Eliyahu's basis for becoming Tamei was a 'Hora'as Sha'ah' that was issued at that specific time permitting him to become Tamei in order that a Kidush Shem Shamayim be achieved through him. This is also the answer of the <b>TOSFOS HA'ROSH</b>.
</p><p>


<font><b>3) RETURNING A 'MASHKON' TO AN 'ASHIR'</b></font><b>
<br>QUESTION:</b> The Gemara derives from the verse, 'v'Im Ish Ani Hu...' (Devarim 24:12), that only when the debtor is poor is a creditor obligated to return the object of collateral at the end of each day. If the debtor is wealthy, the creditor does not have to return the object.
</p><p>
The <b>TOSFOS HA'ROSH</b> and <b>TOSFOS RABEINU PERETZ</b> question this ruling of the Gemara from the Sifri (to Devarim 24:12) which states, 'We would have understood [that one is obligated to return a Mashkon each day] only to a poor person. How do we know [that this obligation applies to] a wealthy borrower as well? The Torah says the extra words 'v'Im Ish' in order to include a wealthy man as well.' (According to the Sifri, the reason the verse specifically mentions a poor person is that when the borrower is poor, the creditor is punished more severely when he does not return the Mashkon.)
</p><p>
How can this Sifri be reconciled with the Gemara here, which says that one does <i>not</i> have to return a Mashkon to a wealthy borrower?
</p><p>
<b>ANSWER:</b> The <b>TOSFOS HA'ROSH</b> and <b>TOSFOS RABEINU PERETZ</b> answer that the term 'Ashir' (wealthy person) has two different connotations. When the Gemara refers to an 'Ashir,' it refers to a person who is not wealthy in the normal sense, but rather is 'wealthy' only with regard to the specific object that was taken as a Mashkon; that is, he has another object of this type and has no need for the one that was taken as a Mashkon. Since he does not need the object that was taken as a Mashkon, the creditor is not obligated to return it to him.
</p><p>
The Sifri, on the other hand, refers to a borrower who is rich, but who does not have another object similar to the collateral. In such a case, the creditor <i>is</i> obligated to return the object to him each day, despite the fact that he is rich. This is also the explanation of the <b>RAMBAN</b> (to Devarim 24:12), who defines an 'Ani,' a poor person, as one who does not have two of the same object.
</p><p>
(The <b>ME'IRI</b>, however, seems to learn that the Gemara here argues with the Sifri. He writes that when the borrower is wealthy, even if he has only one such object and he needs it, the creditor does <i>not</i> need to return it to him.)
</p><p>
This answer is cited by the <b>SHULCHAN ARUCH</b> (CM 97:20). The <b>VILNA GA'ON</b> there (Hagahos ha'Gra 97:62) cites further proof to this answer from the Mishnah earlier (113a) which does not differentiate between a rich borrower and a poor borrower, but rather between a borrower who has only one object and a borrower who has two objects.
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN ONE MAY ENTER THE BORROWER'S HOUSE TO TAKE A SECURITY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> If Reuven returned Shimon's security and
          Shimon died, Reuven may take it from the orphans.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Beraisa - R. Meir):</font></b> Since we take a security,
          why do we return it?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Interjection:</font></b> That is no question. The Torah
               commanded to return it!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Correction:</font></b> Rather, since we must constantly return
               a security, why does one keep taking it?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> It is so that the debt will not be cancelled
               in Shemitah, and so the lender can collect the
               security from the orphans (normally, he may collect
               only land that they inherited).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Summation of question:</font></b> This shows that had he not
               taken it back, he would not collect it from the
               orphans!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Ada bar Masnah):</font></b> We needed to correct the
          Beraisa. We may correct it as follows:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Since one must return a security, why does
               he take it at all?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It is so that the debt will not be cancelled
               in Shemitah, and so the lender can collect the
               security from the orphans.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Once the lender takes it, it is his. Even when
                    he returns it, it is like a deposit with the
                    borrower.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'Lo Savo El Beiso La'avot Avoto' - you may not
          enter the borrower's house, but you may enter the house
          of the Arev;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Lekach Bigdo Ki Arev Zar' (the lender may take the
               borrower's garment); also, 'Im Aravta
               l'Re'echa...(you will have to pay)';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If you were not an Arev, but 'Nilkadta b'Imrei Ficha
               (you afflicted someone with words)... u'Rhav Re'echa
               (get friends to ask him to forgive you).'
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Alternatively, you may not enter a borrower's house, but
          you may enter the house of one who owes for your labor,
          for rental of your animal or (inn) room.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Perhaps you may enter even if this was
          converted to a loan (e.g. a payment date was set)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Rejection It is forbidden regarding 'Mashas Me'umah (any
          debt).'
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE REASON NOT TO TAKE A SECURITY FROM A WIDOW</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One may not take a security from a widow,
          whether she is rich or poor - 'v'Lo Sachavol Beged
          Almanah'.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Beraisa - R. Yehudah):</font></b> One may not take a
          security from a widow, whether she is rich or poor;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Shimon says, one may take a security from a rich
          widow;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One may not take a security from a poor widow, for
               then he must return the security to her every day,
               and she will get a bad reputation (people will not
               know that he is returning a security).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Inference:</font></b> This shows that R. Yehudah does not interpret
          the Mitzvos according to the (apparent) reason, and R.
          Shimon does!
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Contradiction (regarding both - Beraisa - R. Yehudah):
          'V'Lo Yarbeh Lo Nashim' - a king may marry many wives, on
          condition that they do not veer his heart (from fearing
          Hash-m);
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	R. Shimon says, he may not marry even one who will veer
          his heart;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Torah forbids marrying many wives, even if they
               are righteous as Avigayil.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer - part 1:</font></b> Really, R. Yehudah does not (normally)
          interpret the Mitzvos according to the (apparent) reason;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here is an exception, for the Torah explicitly gives
               the reason - 'v'Lo Yasur' (the Isur is only if they
               will veer his heart).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer - part 2:</font></b> R. Shimon interprets the Mitzvos
          according to the reason. The Torah need not give the
          reason;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, the Torah explained 'v'Lo Yasur' to forbid
               even one wife who would veer his heart.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>TAKING A MILLSTONE AS SECURITY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one takes a millstone for a security he
          transgresses a Lav. He is liable for Rechev (the pounder)
          and the Rechayim (the stone it pounds on) - 'Lo Yachavol
          Rechayim va'Rachev.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Lav applies to every Kli used to process food -
               'Ki Nefesh Hu Chovel'.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Rav Huna):</font></b> If one takes a Rechayim for security
          he is liable twice (receives two sets of 39 lashes), for
          'Lo Yachavol Rechayim' and for 'Ki Nefesh Hu Chovel'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he takes a Rechayim and a Rechev he is liable
               three times, for 'Rechayim', for 'Rechev', and for
               'Ki Nefesh Hu Chovel.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If one takes a Rechayim or Rechev, he is
          liable only once;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he takes both he is liable twice;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He is not liable for 'Ki Nefesh Hu Chovel.' That
               applies only to other Kelim used with food.
<br>
<br>

sjt:
<font><b>1) ENTERING THE HOUSE OF A BORROWER'S HEIRS</b></font><b>
<br>OPINIONS:</b> The Gemara derives from the verse, 'You shall not enter <i>his house</i> to forcefully take a collateral' (Devarim 24:10), that although a lender is prohibited from entering the borrower's house, he is permitted to enter the house of the borrower's guarantor ('Arev'). Is he also permitted to enter the house of the borrower's heirs to collect a Mashkon?
</p><p>
(a) The <b>MINCHAS CHINUCH</b> (end of #585) suggests that just as the Gemara infers from the verse that a lender may enter the guarantor's house, one can also infer that the lender is allowed to enter the house of the borrower's heirs in order to take collateral for their father's debt. The Minchas Chinuch enumerates various other situations in which the mobile objects (Metaltelin) that the heirs inherit are Meshubad to the lender (even though the normal rule is that the Metaltelin of heirs are not Meshubad to their father's debts). One example is the Takanas ha'Ge'onim (as cited in Shulchan Aruch CM 107:1) which states that a creditor may collect from the Metaltelin of the heirs. In such a case, the Minchas Chinuch asserts, one may forcibly take an object as collateral from the heirs since the Torah forbids the lender only from entering the house of the borrower himself.
</p><p>
(b) The Gemara (beginning of 115a) says that after a lender takes an object of collateral from the borrower, the lender gains a measure of ownership over the object. As a result, even when he returns it to the borrower each day as the Torah requires him to do, it still remains the possession of the lender (and it is merely a Pikadon in the borrower's possession). Thus, even when the borrower dies, the object of collateral does not become Metaltelin that belongs to the heirs ('Metaltelin d'Yasmi') which may not be collected, but rather it has the status of a Pikadon of the lender which he may collect from the heirs.
</p><p>
The <b>RAMACH</b> (cited by the Shitah Mekubetzes, end of 114b) writes that in such a case not only may the lender collect the object from the heirs, but he may even forcibly enter their house. However, he does not use the reasoning of the Minchas Chinuch (who derives this Halachah from the verse the Gemara quotes) to explain <i>why</i> the lender may enter their house. Rather, the Ramach reasons that since the collateral already belongs to the lender, he merely is taking his own object. This implies that the Ramach does <i>not</i> agree with the Minchas Chinuch, and, according to the Ramach, a lender who does not already have collateral would be prohibited from entering the heirs' house. (Y. Marcus)
</p><p>


<font><b>2) TRANSFORMING A DIFFERENT DEBT INTO A FORMAL LOAN</b></font><b>
<br>OPINIONS:</b> The Gemara says that when a person owes money to someone who worked for him or rented something to him, the creditor may enter his home to take an object of collateral. The Torah prohibits entering a debtor's home to take collateral only for an actual Milveh, a loan, but not to take collateral for moneys owed for other reasons. The Gemara adds, however, that if the parties involved turn the debt into a loan ('Zakfan Alav b'Milveh'), then one is <i>prohibited</i> from entering the debtor's home, because the verse says, 'When you lend to your fellow man <i>any type of loan</i> (Mashas Me'umah), you shall not enter his house to forcefully take collateral' (Devarim 24:10).
</p><p>
There are numerous mentions in the Gemara of the concept of 'Zakfan Alav b'Milveh,' the transformation of a different type of debt (such as a credit debt due to a purchase) into a proper loan. There are many significant Halachic ramifications of such a transformation, such as the one mentioned in the Gemara here. What exactly constitutes an act of 'Zakfan Alav b'Milveh'?
</p><p>
(a) The <b>ROSH</b> in Gitin (4:17) explains that 'Zakfan' means that the <i>seller</i> (creditor) decides to fix a definite time as the deadline by which the buyer (debtor) must pay him. When a debt has a set date for payment, that makes it a proper loan as opposed to another type of debt.
</p><p>
(b) The <b>MORDECHAI</b> in Shevuos (8a, first column) writes that when the seller writes in his book of debts the exact amount that the buyer owes him, the debt becomes an official loan and takes on all the laws of a Milveh.
</p><p>
Both of these opinions are cited by the <b>REMA</b> (CM 67:14). (Y. Marcus)
</p><p>


<font><b>3) THE DEFINITION OF AN 'ALMANAH'</b></font><b>
<br>OPINIONS:</b> The Torah prohibits a lender from taking the garment of a widow as collateral for a loan (Devarim 24:17). The Tana of the Mishnah, as well as Rebbi Yehudah in the Beraisa, prohibits taking a widow's garment regardless of whether she is poor or rich. Rebbi Shimon in the Beraisa permits a lender to take the garment of a rich widow, since he will not need to return the garment to her each day and thus will not arouse suspicion. The Gemara explains that Rebbi Shimon's ruling is in accordance with his general view that the reasons of Mitzvos may be expounded. Since the reason for the prohibition does not apply to a rich widow, Rebbi Shimon permits it.
</p><p>
Who qualifies as a 'widow' with regard to this Halachah? There are three opinions in the Poskim. (See <b>TOSFOS REBBI AKIVA EIGER</b> to the Mishnayos.)
</p><p>
(a) The <b>S'MA</b> (CM 97:22) maintains that the Torah prohibits taking a garment as a Mashkon both from a widow <i>and</i> from a divorced woman, because neither one has a husband to provide her with moral and financial support. A single woman who was never married and who is still supported by her father is <i>not</i> included in this Isur, and a lender <i>may</i> enter her home to take a Mashkon.
</p><p>
(b) The <b>SHACH</b> (CM 97:1) argues and asserts that the Isur applies exclusively to a widow, a woman whose husband died. The Torah is especially concerned for a widow and not for any other single woman because a widow's heart is broken due to her husband's death.
</p><p>
(c) The <b>TAZ</b> offers a third opinion and suggests that the Isur applies to taking a Mashkon from <i>any</i> single woman. Most women would not need to borrow money, since their husbands or fathers work and support them. The Torah uses a widow as a paradigm of a woman who is on her own and therefore needs to engage in business and to borrow money. The Isur, however, applies to any woman who is on her own. (Y. Marcus)
</p><p>


<font><b>4) TAKING A 'MASHKON' FROM AN 'ALMANAH'</b></font><b>
<br>OPINIONS:</b> The Torah prohibits a lender from taking the garment of a widow as collateral for a loan (Devarim 24:17). The Tana of the Mishnah and Rebbi Yehudah in the Beraisa prohibit taking a widow's garment regardless of whether she is poor or rich. Rebbi Shimon in the Beraisa permits a lender to take the garment of a rich widow, since he will not need to return the garment to her each day and thus will not arouse suspicion. The Gemara explains that Rebbi Shimon's ruling is in accordance with his general view that the reasons of Mitzvos may be expounded. Since the reason for the prohibition does not apply to a rich widow, Rebbi Shimon permits it.
</p><p>
Does this Isur apply only to the widow's garment, as is written in the verse, or does it prohibit taking any of a widow's possessions as collateral?
</p><p>
(a) The <b>SHILTEI GIBORIM</b> (#2) writes that the Torah prohibits taking <i>only</i> a widow's garment or her sheets (which she needs to wear or to sleep on). One is permitted to take any other object from her as collateral.
</p><p>
(b) <b>REBBI AKIVA EIGER</b> and the <b>RASHASH</b> infer from the fact that none of the Poskim (except the Shiltei Giborim) differentiate between a garment and any other object that one is prohibited from taking <i>any</i> object from a widow as collateral. The Rashash adds that mid'Oraisa one is prohibited only from taking a garment, while taking any other object is prohibited mid'Rabanan.
</p><p>
(c) The <b>SEFER HA'CHINUCH</b> (#591) writes that one who takes <i>any</i> object from a widow as collateral transgresses an Isur <i>d'Oraisa</i>. The <b>MINCHAS CHINUCH</b> there (as cited by the <b>DEVAR YAKOV</b>) writes that the Chachamim had a tradition that the Torah prohibits taking any object from a widow as collateral.
</p><p>
The Minchas Chinuch suggests that perhaps this question depends on whether the Halachah follows the view of Rebbi Yehudah or that of Rebbi Shimon. According to Rebbi Shimon, the Torah prohibits one from taking a Mashkon only from a poor widow, because he will have to return the object to her each day and people will come to suspect them of wrongdoing. It should be prohibited, then, only to take her garment (or sheets), which need to be returned to her each day for her to use. He should be permitted to take other objects, which she does not need each day, since he will not need to return them each day. Rebbi Yehudah, however, maintains that the Torah prohibits taking a Mashkon from a widow even when she is rich and the lender does not have to return the garment to her each day. Accordingly, Rebbi Yehudah would prohibit taking any other object from her as well.
</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MAY ONE TAKE THE LAW INTO HIS OWN HANDS TO TAKE A SECURITY?</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'> 113a (Mishnah):</font></b> If Reuven lent Shimon, he may
               Memashken him (take a security from Shimon's house)
               only through Beis Din.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He may not enter Shimon's house to take it -
                    'ba'Chutz Ta'amod'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 115a (Beraisa):</font></b> 'Lo Savo El Beiso La'avot Avoto' -
               you may not enter the borrower's house, but you may
               enter the house of the Arev;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  'Lekach Bigdo Ki Arev Zar' (the lender may take
                    the borrower's garment);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Alternatively:</font></b> you may not enter a borrower's house,
               but you may enter the house of one who owes for your
               labor, for rental of your animal or (inn) room.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps you may enter even if this was
               converted to a loan (e.g. a payment date was set)!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Rejection 'Mashas Me'umah (any debt)'.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Bava Kama 27b (Rav Yehudah):</font></b> One may not take the
               law into his own hands;
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> One may do so.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> All permit when needed to avoid a loss. They argue
               about when there is no loss. Rav Yehudah forbids,
               for he can go to Beis Din. Rav Nachman permits.
               Since he acts properly, he need not exert himself to
               go to Beis Din.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Beraisa - Ben Bag Bag):</font></b> Do not enter your friend's
               property to take what is yours without permission,
               lest you appear like a thief to him! Rather, blunt
               his teeth and say 'I am taking what is mine!'
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Berachos 5b:</font></b> Four hundred barrels of Rav Huna's wine
               spoiled. Rabanan suggested that it is because he did
               not give to his sharecropper his share of vine
               branches.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Rav Huna:</font></b> He stole much more than that from me!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Rabanan:</font></b> This is like people say, that one who
               steals from a thief tastes theft.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Bava Kama 12b):</font></b> In monetary laws, the Halachah
               follows Rav Nachman, who says here that one may take
               the law into his own hands.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Sanhedrin 2:12):</font></b> One may take the
               law into his own hands if he has the power.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Kama 3:3):</font></b> One may take the law into his
               own hands only if the other comes to steal from him,
               or is holding his item. He may not (forcibly) take a
               security for an existing debt. That must be done in
               Beis Din (113a). Therefore, if he hit him, he is
               liable like anyone who hit him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rivash (396):</font></b> The Torah forbids a lender to
                    enter the borrower's house to take a security.
                    If Ploni seeks to damage his property, he may
                    harm Ploni to stop him. One may seize Ploni's
                    property in others' Reshus to be a security for
                    what Ploni owes him, for this is taking the law
                    into his own hands. If the debt is not a loan,
                    he may even enter Ploni's house. However, if he
                    seized for a loan, b'Di'eved it helps. R.
                    Chananel allows one who has a loan or deposit
                    from Ploni to keep it for what Ploni has of
                    his, for one may take the law into his own
                    hands. However, he must go to Beis Din and say
                    what he has of Ploni and what Ploni has of his.
                    He is believed up to the value of what he
                    holds. Even though he goes to Beis Din, R.
                    Chananel needed to say that one may take the
                    law into his own hands, to permit keeping it
                    for a security. This is only to take his own,
                    e.g. what was stolen from him or what he
                    deposited, like Ben Bag Bag says.
<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 4:1):</font></b> One may not take the law
               into his own hands to take a security for a debt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> The reason is explained in Siman 97:6. Some
               say that this is only for a debt, but if he is owed
               not for a loan, or if he need not take a security
               because he already has a deposit from him, or it is
               in another's hands, one may seize it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (3):</font></b> Why does the Rema say that some say
                    so? One may take a security from an Arev
                    (guarantor), or from a renter for the rental
                    (CM 97:14)! It seems that the text of the Rema
                    begins 'one may take the law into his own
                    hands... ', i.e. even to hit. He continues to
                    say that some say that one may always seize...
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that taking the law into his own
               hands is only when he hurt him; one may do so only
               if he can prove that it is his. However, one may
               always seize property for security, and then go to
               Din with him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source (Gra 15):</font></b> A Beraisa permits entering the
                    house of the Arev to take a security, or the
                    house of one who owes for your labor or for
                    rental. Rav Huna was punished because he did
                    not intend to go to Din with his sharecropper.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Maharik (161):</font></b> Even though the Halachah follows
                    Rav Nachman, this is only when one retrieves
                    his item. Surely, he does not argue with the
                    Mishnah that forbids a lender to take a
                    security . The verse explicitly forbids
                    entering his house for this! Surely a Tzibur
                    may not take the law into its own hands without
                    clarity (about what is owed). Taking the law
                    into his own hands is to act like a judge, to
                    collect property in place of other property, or
                    to beat someone or make him lose until he pays.
                    Obviously, one may seize his item. Seizing
                    property is merely called 'Tofes.' A borrower
                    may repay a loan with anything, even bran,
                    therefore the lender may not seize. Rav Huna
                    was rebuked for taking something else in place
                    of what was taken from him. It seems that
                    Rabanan did not know of the theft, and
                    nevertheless had he taken his own, he would not
                    have been punished. One may not use Nochrim to
                    recover his own, unless he can prove that it is
                    his. If not, everyone will grab another's Talis
                    through Nochrim, and say 'it is clear to me
                    that it is mine.'
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal #1 (Yam Shel Shlomo 3:5):</font></b> We cannot
                    say that anyone may seize and say 'it is mine',
                    and be believed with a Vadai claim. If so, the
                    most powerful person will seize everything! The
                    Maharik himself forbids seizure through
                    Nochrim. It is easier and more common to seize
                    by oneself! Hagahos Maimoniyos requires one to
                    be sure that it is his item even to enter the
                    other's house. The Maharik requires this only
                    to take something else in place of it, or to
                    cause a loss. Sefer Yere'im says that had Rav
                    Huna calculated what his sharecropper owed him,
                    it would be like a loan, and even to take the
                    stolen object would be taking a security, which
                    is forbidden
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal #2 (Bach DH Kosav):</font></b> Seizure helps only
                    if he received the object b'Heter, or if it was
                    not in front of witnesses, so he has a Migo.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Defense (Tokfo Kohen 114-117):</font></b> The Maharik
                    permits seizing when he knows that it is his
                    item, just he is unsure if Beis Din will accept
                    his proof, e.g. (in the case he ruled about)
                    there was a claim against the document. The
                    Maharik never meant to allow seizing when the
                    other side denies. Even seizure b'Heter helps
                    only with a Migo.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>ONE MAY TAKE THE LAW INTO ONE'S OWN HANDS </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>GENERAL LAVIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Abaye and Rava argue like Rav Huna and Rav
          Yehudah argue.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> If one eats the Korban Pesach raw, he is
               lashed twice, for '(do not eat it) Na (raw)' and for
               'Ki Im Tzli Esh (only roasted)';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he eats it cooked (in water), he is lashed
                    twice, for 'Mevushal' and for 'Ki Im Tzli Esh';
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If he eats (an olive's worth) raw and (an
                    olive's worth) cooked, he is lashed three
                    times, for 'Na', 'Mevushal' and 'Ki Im Tzli
                    Esh':
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Abaye):</font></b> One is not lashed for a Lav shebi'Kelalos
               (such as 'Ki Im Tzli Esh', which encompasses other
               Lavim).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The suggestion is that Abaye holds like Rav Yehudah,
               and Rava holds like Rav Huna.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> Even Rav Yehudah could agree to Rava. Rav
          Yehudah exempted from 'Ki Nefesh Hu Chovel' only because
          it does not connote Rechayim and Rechev, therefore it
          applies only to other Kelim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But once the Torah forbade eating the Pesach raw or
               cooked, we know that it must be roasted, so 'Ki Im
               Tzli Esh' must be an additional Lav!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> Even Rav Huna could agree to Abaye. Rav
          Huna obligated for 'Ki Nefesh Hu Chovel' only because it
          is extra, to forbid other Kelim, therefore it also
          applies to Rechayim and Rechev;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Ki Im Tzli Esh' is needed to teach the following:
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> The Isur of eating the Pesach raw applies
               only at the time there is a Mitzvah to eat it
               roasted.
<br>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>TAKING FOR A SECURITY A KLI USED WITH FOOD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Support (for Rav Yehudah - Beraisa #1):</font></b> If one takes for
          a security a pair of scissors or a yoke made of two parts
          (to harness cows), he is lashed twice, once for each
          part; (Tosfos - this is like Rav Yehudah, for Rav Huna
          would obligate three times; Rashi - the support requires
          the next Beraisa as well, which shows that the two lashes
          here are for Rechayim and Rechev, hence there are no
          lashes for 'Ki Nefesh Hu Chovel'.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he only takes one blade of the scissors or one
               part of the yoke, he is lashed only once.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa #2):</font></b> If one takes for a security a pair of
          scissors or a two-part yoke, one might have thought that
          he is lashed only once. Therefore, it says 'Lo Yachavol
          Rechayim va'Rachev';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like Rechayim and Rechev are two Kelim that do
               one task, and one is liable for each by itself, also
               any two Kelim that do one task, one is liable for
               each by itself.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	A case arose in which Reuven took a security from Shimon.
          It was a knife that butchers use to chop meat.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Abaye:</font></b> Since it is used for food, you must return it. You
          can claim your loan in Beis Din (if you have witnesses,
          or if Shimon will admit.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rava:</font></b> Since witnesses did not see Reuven take it, he need
          not return it until Shimon pays.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why does Abaye argue with Rava? This should be
          like the following case!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Some goats ate peeled barley in Neharde'a. The owner
               of the barley seized the goats, and was claiming a
               large loss.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Shmuel's father):</font></b> He can claim up to the goats'
               value.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Goats are not normally lent or rented, therefore
          the one who seized them has a Migo. He could have said
          that he bought them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A knife is normally lent or rented. Reuven has no
               Migo, for he would not be believed to say that he
               bought it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Huna bar Avin):</font></b> If an item is normally lent or
               rented, and Ploni holds it and claims that he bought
               it (if we know that it belonged to someone else), he
               is not believed.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Does Rava argue with this?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rava took shearing scissors and a Sefer of Agadic
               teachings from orphans, because these are normally
               lent and rented!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> A chopping knife can get blunted, so people do
          not normally lend or rent it.
<br>
<br>

sjt:
<font><b>1) THE FIELDOWNER WHO SEIZED THE GOATS</b></font><b>
<br>QUESTION:</b> The Gemara relates an incident in which one person's goats entered another person's field and ate a large amount of barley. The owner of the field seized the goats and claimed that they caused him a large loss. The father of Shmuel ruled that the fieldowner was believed to claim any amount up to the value of the goats because of a 'Migu' that he could have claimed that he actually owned the goats themselves.
</p><p>
Why was the fieldowner believed with this 'Migu'? Since he wanted to extract money from the owner of the goats with this 'Migu,' it is a 'Migu l'Hotzi.' Many Rishonim rule that Beis Din may not accept a 'Migu l'Hotzi' -- a 'Migu' used to extract money from someone (in contrast to a 'Migu' used to retain money already in one's possession). Why, then, was the field owner entitled to collect compensation based on this 'Migu'? (<b>RABEINU YONAH</b> to Bava Basra 33a)
</p><p>
<b>ANSWER: RABEINU YONAH</b> answers that since the fieldowner was entitled to seize the goats as collateral, the compensation for the damages was considered a debt for which the lender (in this case, the person who owned the field) had collateral. A person who has collateral on a debt is not considered a 'Motzi,' someone who is extracting money from someone else, but rather is considered 'Muchzak,' someone who is trying to retain what he is holding (the value of the damages).
</p><p>
<b>RAV SHMUEL ROZOVSKY</b> zt'l quotes the Gemara here to challenge Rabeinu Yonah's answer. The Gemara here compares the incident of the goats to an incident of a lender who seized a butcher's knife as collateral. In the case of the goats, the fieldowner was a Nizak (damagee) and was entitled to seize the goats; that is why the case could be viewed as a debt with legal collateral. In the case of the butcher's knife, however, the lender was not allowed to take such collateral in the first place (for such a knife is in the category of 'Kelim she'Osim ba'Hem Ochel Nefesh'). Since the knife was not considered legal collateral, the lender was considered to be 'Motzi' and not 'Muchzak,' and thus he should not have been entitled to collect based on a 'Migu' (because it should be considered a 'Migu l'Hotzi'). The Gemara, however, attempts to prove from the case of the goats that the lender who seized the butcher's knife should also have a 'Migu' that entitled him to collect. Rabeinu Yonah's answer, therefore, does not suffice, since according to his answer the Gemara should have answered that the case of the butcher's knife was a case of a 'Migu l'Hotzi.' (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SOMETHING NOT NORMALLY LENT OR RENTED</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven took a butchers' knife for a security from
               Shimon.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Abaye:</font></b> Since it is used for food, you must return
               it. You can claim your loan in Beis Din (if you have
               witnesses, or if Shimon will admit.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rava:</font></b> Since witnesses did not see Reuven take it, he
               need not return it until Shimon pays.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Abaye should agree to Rava like the
               following case!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Some goats ate peeled barley in Neharde'a. The
                    owner of the barley seized the goats, and was
                    claiming a large loss.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Shmuel's father):</font></b> He can claim up to the
                    goats' value.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Goats are not normally lent or rented, so
               one who seized is believed, Migo (since) he could
               have said that he bought them. A knife is normally
               lent or rented. One would not be believed to say
               that he bought it.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rav Huna bar Avin):</font></b> If Ploni holds an item normally
               lent or rented, and claims that he bought it (if we
               know that it was David's), he is not believed.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> Does Rava disagree?! Rava took shearing
               scissors and a Sefer of Agadata from orphans,
               because these are normally lent and rented!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> A butchers' knife can get blunted, so people
               do not normally lend or rent it.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Kesuvos 15b (Mishnah):</font></b> If Levi says to David 'this
               field belonged to your father and I bought it from
               him', Levi is believed. The one who forbids is
               believed to permit (without his admission, David had
               no claim);
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> If witnesses testify that the field belonged to
               David's father, and Levi says 'I bought it from
               him', he is not believed.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 84b:</font></b> A shepherd was watching cattle of orphans. A
               creditor seized a cow. He said that he seized it in
               the father's lifetime; the shepherd disagreed.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Rav Nachman:</font></b> If there are no witnesses of seizure,
               since he could claim that he bought it, he is
               believed to say that he seized in the father's
               lifetime.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question:</font></b> Reish Lakish taught that custody of an
               animal does not prove ownership! (Perhaps he found
               it wandering outside.)
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer:</font></b> He did not refer to animals being watched by
               a shepherd.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> If Ploni deposited or lent to Levi with
               witnesses, even if the deposit is something not
               normally lent or rented, Levi is not believed to say
               that he later bought it. We needed R. Chanina (our
               text - Rav Huna) bar Avin's law only for when it was
               deposited not in front of witnesses.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 8:3):</font></b> (If Ploni claims that
               Levi has his item,) Levi is believed to say that he
               bought it or took it for a security if it is
               something not normally lent or rented, such as
               clothing, Peros, house utensils and merchandise.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (10):</font></b> If a Kli could be rented out, but it is
               prone to depreciate more than the rental, and people
               are particular not to lend it, it is Muchzak not to
               be lent or rented, e.g. a knife for Shechitah.
               Therefore, even if witnesses testified that he lent
               or rented it, its Chazakah is intact. It is like all
               Kelim. A proof is that Rava took shearing scissors
               and a Sefer of Agadata from orphans, which are
               normally lent and rented. He would not have done so
               unless witnesses clarified that they are normally
               lent or rented. Other scissors and Seforim are not
               in this category, even though one could lent or
               rented them. This is a great general rule in
               monetary laws. It is reasonable; one may rely on it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam explains that Abaye
                    and Rava argue in any case when witnesses said
                    that the owner lends it. If not, Abaye would
                    not consider it something often lent or rented!
                    Rava holds that we do not alter its status
                    because the owner acted differently. He caused
                    his own loss! There is no proof from the Gemara
                    that Rava had a proof through witnesses.
                    Perhaps the Rambam had a different text.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Lechem Mishneh:</font></b> The Rambam learned from the
                    words 'Rava took scissors... from orphans, <i>in
                    things</i> normally lent.' It did not say
                    <i>because</i> these are normally lent. The wording
                    used teaches that witnesses can make something
                    considered a Kli normally lent or rented.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Bach (CM 72:13):</font></b> How can the Rambam say that
                    Chazakah overrides witnesses?! Perhaps he means
                    that even though witnesses testified that he
                    lent or rented it, presumably it was returned,
                    for it is not normally lent. Therefore, the
                    borrower can say that after returning it, he
                    bought it. All the Poskim are like the Rif and
                    Tur.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Shach 72:83):</font></b> The Rambam means that
                    witnesses testified that the owner once lent it
                    to <i>someone else</i>. The Magid Mishneh connotes
                    like this. All agree to this law.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Bava Metzia 9:48,49):</font></b> The Halachah follows
               Rava. If witnesses know that Ploni owned something
               often lent or rented and it was found in Levi's
               Reshus, or if Ploni deposited something not normally
               lent or rented with Levi in front of witnesses, Levi
               is not believed to say that he bought it or took it
               for a security if witnesses saw that he has it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> Ploni takes it without an oath.
                    This is only if he often lends, Levi often
                    borrows, and it depends on the level of love or
                    ill will between them, like the judges assess.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (ibid.):</font></b> If witnesses did not see that he has
               it, he is believed, Migo he could say that he
               returned it. Similar, if something is not normally
               lent or rented, and it was not deposited in front of
               witnesses, even if witnesses saw that Levi has it,
               he is believed to say that he bought it or took it
               for a security.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> If Levi died or sold it, we
                    claim for the heir or buyer that Levi bought
                    it, for Levi would have been believed to say
                    so. Even though Levi would have had to swear
                    Heses, the heir or buyer need not. R. Tam says
                    that if it was well-known that Levi has it, he
                    has no Migo to say that he returned it. The Ri
                    was astounded; this does not Mevatel the Migo.
                    However, if witnesses saw it, Reuven can take
                    his inheritance from Shimon. Even though Reuven
                    does not know if it was borrowed or bought, he
                    can Mevatel the Chazakah of the one who took
                    possession with a Vadai claim.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos Maimoniyos (Mishpatim, Teshuvah 32):</font></b> We
                    say in Kesuvos that if animals were not watched
                    by a shepherd, one would not be believed to say
                    that he seized in the father's lifetime, since
                    there is no Chazakah on them (for anyone can
                    take them.)
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (CM 72:88):</font></b> Another proof for the Ri is
                    from Kesuvos 15b. If witnesses testify that the
                    field belonged to David's father, and Levi says
                    'I bought it from him', he is not believed.
                    There is no reason to distinguish land from
                    Metaltelim that are normally lent or rented.
                    All the more so, if Reuven has witnesses that
                    his father lent to him, even though he does not
                    know whether or not he bought it later, if it
                    was now seen with Shimon, Reuven takes it from
                    him even if it is something not normally lent
                    or rented.
<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 72:18):</font></b> In any case when Reuven
               (the lender) could not claim 'I bought it (the
               security)' or 'it was never yours' or 'I returned it
               to you', Shimon (the borrower) swears that he
               borrowed only a Shekel, pays it, and takes his
               security. Regarding something not normally lent or
               rented, if there are no witnesses how it came to
               Reuven, he is believed to say that he bought it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (56):</font></b> This is even if witnesses saw Shimon
                    give it to Reuven, but they do not know if it
                    was a deposit, security, sale or gift.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> The same applies if witnesses
               saw Reuven borrow it, but did not see it now with
               him. He can say that he returned it, or 'nothing
               ever happened' if witnesses did not see Shimon give
               it to him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (85):</font></b> Since he could say that he returned
                    it or 'nothing ever happened', he is believed
                    through a Migo to say that it is a security for
                    a loan of such and such amount.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (86):</font></b> The Mordechai (Bava Basra 542) and
                    Terumas ha'Deshen (335) say that the Rif and
                    Rambam hold that he is not believed to say that
                    he returned to when there are witnesses that he
                    borrowed. Other Poskim, the Beis Yosef and
                    Magid Mishneh (Hilchos She'elah 6:4) say that
                    the RIf and Rambam agree (that he is believed). 
                    Even though the RIf and Rambam did not mention
                    that witnesses saw it now, I say that they
                    require it (to remove the Migo), for the Migo
                    'I returned it' is a proper Migo. Bedek
                    ha'Bayis (Siman 133:4) explains the Rif and
                    Rambam like this. This is the Halachah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (90:13):</font></b> One holding something not
               normally lent or rented is believed (to say that it
               is his) only if witnesses did not know that he
               initially borrowed or rented it. If they knew, he is
               not believed.
<br>

<p>


lvr: 42
dfh: b
trd:
<p>
</p><center><font color='ff0000' size='+1'><b>*****<b>PEREK HA'BAYIS VEHA'ALIYAH</b>*****
</b></font></center><p><b>
</b><b><b><font color='blue'>2) </font></b><font color='blue'>DIVIDING THE BUILDING MATERIALS OF A FALLEN HOUSE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven owned a house and Shimon owned its
          upper story and it fell, they divide the wood, rocks and
          dirt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If we estimate that the upper rocks would have
               broken, Reuven gets the whole rocks and Shimon takes
               an equal amount of broken ones.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If either recognizes some of his rocks, he takes
               them, and the other takes an equal amount of other
               ones.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Inference:</font></b> 'We estimate' implies that we can
          tell whether the bottom collapsed, or the attic broke;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why do they divide equally in the Reisha? The one
               whose dwelling broke should get the broken rocks!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> It fell at night, and no one saw how it fell.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> The next day we can determine how it fell!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, the rocks were cleared away.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> We can ask the people who cleared them
               away!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, we do not know them, and they
               left.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Whoever's premises the rocks are in, he is
          Muchzak. The other cannot take (whole rocks) from him
          without proof!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case is, the rocks are in their joint
          yard, or in the Reshus ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Even if the rocks are in the premises of one
          of them, partners freely lend their premises to each
          other (so the rocks are considered to be in the premises
          of both).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If either recognizes some of his rocks... (we
          shall call him Reuven).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What does Shimon claim?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he admits, the law is obvious!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he argues, why does Reuven keep the whole ones?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, he says that he does not know.
<br> <b>    <b><font color='darkgreen'>(j)</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 100 from
               Yehudah, and Yehudah does not know whether he owes,
               he must pay;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Yochanan and Rav Nachman):</font></b> He is exempt.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, the case is like Rav Nachman explained
          elsewhere;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> The case is, Yehudah was obligated to
               swear to Levi. (Since Yehudah does not know, he
               cannot swear, he must pay).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Here also, Shimon was obligated to swear!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case in which he was obligated to
          swear?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> Yehudah admitted that he owed 50, but he
          did not know about the other 50. Since he cannot swear,
          he must pay. (Here also, Shimon admits that half the
          rocks are not his.)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Shimon takes an equal amount of other ones.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Opinion #1 (Rava):</font></b> He takes an equal amount of broken
          rocks.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since he does not recognize his rocks, we assume
               that his are the broken ones.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> Just the contrary! Since Reuven
          recognizes only some of his rocks, we assume that his
          other rocks are broken, and the rest of the whole rocks
          belong to Shimon!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Opinion #2 (Abaye):</font></b> Rather, Shimon takes an equal amount
          of whole rocks.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Question:</font></b> If so, what does Reuven gain by recognizing
          some of his rocks?
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Some rocks are wider than others.
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  	Answer #2:</font></b> The mud of some bricks is kneaded better than
          that of others.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE OBLIGATION TO REBUILD AN UPPER STORY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Shimon was renting Reuven's Aliyah, and the
          floor fell in and Reuven does not want to fix it, Shimon
          may live in the house downstairs until Reuven fixes it;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yosi says, Reuven must supply the ceiling, Shimon
          supplies the plaster.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> How much of the floor must fall in
          (for the law of the Mishnah to apply)?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rav):</font></b> It must be the majority.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Shmuel):</font></b> It must be four Tefachim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav requires the majority. The law does not apply if
               only four Tefachim fell, for one can manage with
               part of his dwelling at a lower level.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Shmuel holds that four Tefachim suffices, for one
               cannot live if part of his dwelling is at a lower
               level.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What was the rental agreement?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he rented 'this Aliyah', it is no longer intact
               (he has no right to demand another)!
<br>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he rented 'an Aliyah', Reuven may find another
               Aliyah for Shimon to live in! (Why is Shimon
               entitled to dwell in Reuven's house?)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (Rava):</font></b> Reuven rented 'this Aliyah' to him, and
          said 'if it sinks, you may live in the house.'
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection:</font></b> If so, what is the Chidush?!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> Reuven rented 'this Aliyah on top
          of this house.' These words give Shimon a 'lien' on the
          house to support his Aliyah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Ravin bar Rav Ada:</font></b> A case occurred in which Levi
               sold to Yehudah 'the vine draped over this peach
               tree'; and the tree was uprooted. R. Chiya ruled
               that Levi must supply a peach tree to support the
               vine for the life of the vine.
<br>

<p>

sjt:
</p><p>
<font><b>2) A CLAIM OF STONES</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that when one person owns the lower story of a house and another person owns the upper story and the house collapses, the two owners divide the wood and stones between them. If one of them claims that he recognizes which stones are his, he may take them (and let the other owner take an equal amount of the other stones). The Gemara explains that this applies only if the other owner admits to part of the claim and says that he does not know with regard to the rest. (In that case, his partial admission obligates him to make a Shevu'ah of 'Modeh b'Miktzas,' but he is unable to swear because he does not know about the rest, and he therefore must pay). In a simple case, in which one owner claims certain stones as his and the other owner says that he does not know (and he does not admit to any of the rest of the claim), the owner who claims to recognize his stones may <i>not</i> take them. This is because of the principle of 'Bari v'Shema, Lav Bari Adif' -- in a case in which one litigant has a claim of certainty ('Bari') and the other has a claim of uncertainty ('Shema'), the one with the claim of certainty does not prevail.
</p><p>
<b>TOSFOS</b> (DH Leima) asks that the principle of 'Bari v'Shema, Lav Bari Adif' should not apply to this case, and the one who has a claim of certainty should prevail. The reason for the rule in general is that a claim of 'Bari' is not sufficient for Beis Din to extract an object or money from a 'Muchzak.' In the case of the fallen house, however, neither litigant is 'Muchzak,' because the stones are in a public domain and not in the domain of either of them. Why, then, is the one with the claim of 'Bari' not entitled to keep the stones that he claims are his?
</p><p>
<b>ANSWER: TOSFOS</b> answers that whenever there is an intrinsic doubt about who owns a disputed object or money (such as in this case), it is considered to be held by both litigants. Hence, the one who claims with certainty that he recognizes his stones is considered one who is 'Motzi' from someone who is 'Muchzak,' and therefore the normal principle of 'Bari v'Shema, Lav Bari Adif' applies.
</p><p>
The <b>SHA'AR HA'MISHPAT</b> (138:3) points out that the <b>RAMBAN</b> in Bava Basra (34b) disagrees. The Ramban states that in any case in which no one is the clear 'Muchzak,' such as in the case of two disputants holding a Talis (Bava Metzia 2a), a claim of 'Bari' prevails in court against a claim of 'Shema.' This opinion does not agree with the view of Tosfos here, who says that one <i>is</i> considered 'Muchzak' (and a 'Bari' claim will <i>not</i> work to extract an object from him) even when he is not physically holding the object. (For a possible reconciliation of Tosfos and the Ramban, see <b>KOVETZ SHI'URIM</b>.) (Y. Marcus)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>MUST ONE ACCEPT A CHANGE IN WAGES?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Continuation of Mishnah):</font></b> If Levi hired Yehudah to work
          with him collecting straw, he cannot insist that Yehudah
          take straw for wages;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Yehudah agreed, Levi cannot retract and give his
               wages and keep all his straw.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> How much of the garden must sink (for
          the law of the Mishnah to apply)?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav):</font></b> The majority must sink.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Shmuel):</font></b> Four Tefachim must sink.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav requires the majority, but not just four
               Tefachim, for one can plant part of his garden at a
               lower level;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Shmuel holds that four Tefachim suffice, for one
               cannot plant part of his garden at a lower level.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> They needed to argue here and above (regarding an
               Aliyah that sunk).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Had they argued only above, one might have thought
               that only regarding a dwelling Shmuel says that one
               cannot live at two levels, but one can manage with
               such a garden;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Had they argued only here, one might have thought
               that Rav admits that one cannot live in a dwelling
               at two levels.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If they gave him time...
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> How much time do we give him?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> We give 30 days.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Reuven's wall...
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Later the Mishnah mentions Shimon's
          expenditures, implying that he cleared the rocks away.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Had he not cleared them away, he did not
               acquire them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Why doesn't his field acquire for him?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Yosi b'Rebbi Chanina):</font></b> One's Chatzer
                    acquires for him without his knowledge.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> That is only when the person wants to acquire.
          Here, Shimon did not want the rocks.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WITH WHAT MAY ONE PAY A WORKER?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Levi hired Yehudah to work with him
          collecting straw...
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	We needed to teach this and the previous cases.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had we taught only about a wall, one might have
               thought that there Shimon need not take the rocks,
               because Reuven does not owe him, but an employer can
               pay his worker with anything he wants.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had we taught only about wages, one might have
               thought that there Levi cannot retract after Yehudah
               agrees, for Levi owes him, but regarding rocks,
               Reuven can retract even after Shimon agrees.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Levi cannot insist that Yehudah take straw for
          wages.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> Levi can insist.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Rav Nachman):</font></b> If Yehudah worked for Levi, Levi
          cannot insist. If Levi asked Yehudah to work for Shimon,
          Levi can insist.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection (Rabah):</font></b> When Yehudah worked for Levi, Levi
          cannot insist, because he must pay him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Also when Levi asked Yehudah to work for Shimon,
               Levi must pay him!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> If Yosef hired David to work on
                    Yosef's property, and set him to work on what
                    is really Moshe's property, Yosef pays David,
                    and can demand that Moshe pay him the benefit
                    he received.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Rav Nachman):</font></b> Rather, if Yehudah worked for
          Levi, Levi cannot insist. If Yehudah worked with Hefker
          property, Levi can insist.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection (Rava - Beraisa):</font></b> A worker keeps what he finds.
          This is only if the employer said 'weed (or another
          particular task) with me today';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'work for me today', the employer gets
               it. (Therefore, even if Yehudah worked with Hefker,
               Levi acquired it.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #3 (Rav Nachman):</font></b> In both cases, Yehudah worked
          with Hefker;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Yehudah picked it up, Levi acquired it, he cannot
               insist;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Yehudah only watched it, it is still Hefker, Levi
               can insist.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rabah):</font></b> Tana'im argue about whether or not or not
          looking at Hefker acquires it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> People guarding Sefichim (produce that
               grows by itself) in Shemitah (needed for communal
               Korbanos) are paid from Terumas ha'Lishkah (half-
               Shekalim used to buy the Korbanos);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yosi says, one who wants to guard for free
               volunteers his time.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Chachamim:</font></b> According to you, the Korban does not
               come from the Tzibur (rather from the individual who
               guarded it)!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> Chachamim hold that looking at Hefker
               acquires it. If the Shomer is not paid, the produce
               is his;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yosi holds that looking at Hefker does not
                    acquire it. It is not acquired until (a
                    Shali'ach of) the Tzibur takes it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Chachamim told R. Yosi, if we do like you say,
                    we hold that the Korban would belong to the
                    watcher!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Version #1 - Rejection (Rava):</font></b> No, all hold that looking
          at Hefker acquires it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue about whether or not or not we rely on
               the Shomer to properly give the produce to the
               Tzibur (perhaps he wants to retain ownership so the
               Korban will be his);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say that the Shomer watcher must be paid,
               we are concerned lest he not give it properly;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yosi says that the Shomer is not paid, we rely on
               him to give it properly.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Chachamim told R. Yosi, if done as you say, we
                    are concerned that the Korban would belong to
                    the Shomer.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Version #2 - Rejection (Rava):</font></b> All hold that looking at
          Hefker does not acquire it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue about whether or not or not we are
               concerned that if we do not pay the Shomer (to
               publicize that he is guarding for Hekdesh), others
               will forcibly take the produce themselves.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim hold that it was enacted to pay the Shomer
               four Zuz in order that others will not forcibly take
               the produce;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yosi holds that no such enactment was made.
<br>
<br>

sjt:
<font><b>1) THE REQUIREMENT TO PAY A WORKER WITH CASH</b></font><b>
<br>QUESTION:</b> The Gemara teaches that the general Halachah of 'Shaveh Kesef k'Kesef' does not to apply to a worker's wages. This means that although a person who is obligated to make a payment (such as to repay a loan or to compensate a Nizak for damage that he caused) is permitted to pay with other objects (of a value equal to the debt) instead of cash, a worker is entitled to insist that he be paid in cash.
</p><p>
Why does a worker have this special right to demand payment in cash?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> on the Mishnah (DH Ein Shom'in Lo) explains that this special right is derived from the verse that teaches the prohibition against withholding a worker's wages: 'Lo Salin Pe'ulas Sachir' (Vayikra 19:13). The verse implies that the employer must pay the worker the exact wage -- both in terms of the amount of payment and the <i>form</i> of payment -- that was initially stipulated.
</p><p>
The <b>RASHBA</b> questions Rashi's explanation. He argues that there is no indication from the wording of the verse that the employer must pay specifically with cash. Moreover, the Gemara earlier (112a) teaches that if an employer has no funds with which to pay his worker at the time that the payment is due, then he does not transgress the Isur of 'Bal Talin.' According to Rashi, who says that the employer's obligation to pay in cash is derived from the verse of 'Lo Salin,' if the employer has no cash with which to pay at the time that the payment is due, then just as the Isur of 'Bal Talin' does not apply the requirement to pay in cash should not apply, and he should be permitted to pay with other objects. The Gemara, however, implies that the employer always must pay in cash, regardless of whether the Isur of 'Bal Talin' applies (see <b>TOSFOS</b> to Bava Kama 46b, DH Hachi Garsinan).
</p><p>
(b) The <b>RASHBA</b> therefore gives a different reason for the employer's obligation to pay his worker in cash. He explains that there is an 'Umdena,' an unspoken but obvious understanding, that a worker commits himself to labor on the assumption that he will be paid in cash so that he can buy food. A worker would not agree to work if he knew he would receive as his payment an object which he would then have to bother to sell before he could buy food.
</p><p>
The <b>PISCHEI TESHUVAH</b> (CM 336:1) writes that there is a practical difference between the explanations of Rashi and the Rashba in a case in which an employer hired a worker through a Shali'ach. In such a case, the Isur of 'Bal Talin' does not apply, as the Gemara earlier (110b) teaches. According to Rashi, since the verse of 'Lo Salin' does not apply in such a case, the employer would not be obligated to pay his worker in cash. According to the Rashba's reasoning, the employer would still be obligated to pay in cash.
</p><p>
The <b>S'MA</b> (CM 336:3) and Pischei Teshuvah there cite the opinion of the <b>MORDECHAI</b> that an employer may pay his worker with edible objects, such as wheat or barley. This view is consistent with the reasoning of the Rashba who says that the reason cash must be paid is so that the worker will be able to buy food easily. The Rashba's reasoning would seem to permit paying with food items as well as with cash.
</p><p>
The <b>SHACH</b> (CM 336:2), however, disagrees with the Mordechai's opinion and maintains that the worker may refuse to accept wheat and barley as his payment and may demand cash. The <b>RASHASH</b> explains that the Shach maintains this position only with regard to wheat and barley, which are not yet fit to be eaten, but he would agree that if the employer wants to pay with a loaf of bread, then the worker must accept it. (Y. Marcus)
</p><p>


<font><b>2) GUARDING GRAIN OF 'SHEVI'IS' FOR THE SAKE OF 'HEKDESH'</b></font><b>
<br>QUESTION:</b> The Gemara cites the Mishnah in Shekalim (4:1) in which the Tana Kama maintains that the funds of the Terumas ha'Lishkah are used to pay people who guard produce that grows on its own during the Shevi'is year, such as wheat, which must be guarded so that it can be used for the Shtei ha'Lechem, or barley, which must be guarded to be used for the Minchas ha'Omer. Rebbi Yosi there maintains that the guards do not need to be paid at all.
</p><p>
<b>TOSFOS</b> earlier (58a, DH Lishmor) questions how it could be possible to bring a Korban, such as the Shtei ha'Lechem or the Minchas ha'Omer, from such produce. The law of 'Shamur' states that produce that was guarded during Shevi'is is prohibited to be eaten. There is another law (Pesachim 48a) which states that anything that may not be eaten by people may not be brought as a Korban. How, then, can grain that was guarded during Shevi'is be offered for the Shtei ha'Lechem or the Minchas ha'Omer?
</p><p>
The <b>CHAZON ISH</b> (Shevi'is 10:5) adds that even if the grain would not become prohibited to be eaten, there still is an Isur d'Oraisa to guard produce of Shevi'is.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TOSFOS HA'ROSH</b> here answers that the Isur to eat produce of Shevi'is that was guarded is only an Isur d'Rabanan. (It was instituted in order to prevent people from guarding the produce in the first place, which is an Isur d'Oraisa. The verse quoted by the Toras Kohanim (Vayikra 25:5) to prohibit eating such produce is only an Asmachta.) In cases of necessity -- such as for the sake of a Korban -- the Rabanan waived their enactment.
</p><p>
(b) The Tosfos ha'Rosh suggests further that even if the Isur to eat produce of Shevi'is that was guarded is an Isur d'Oraisa, the Isur would not apply to produce that belongs to Hekdesh. This also seems to be the answer of <b>TOSFOS</b> in Menachos (84a, DH Shomrei).
</p><p>
(c) The Tosfos ha'Rosh offers a third answer. The people who guarded the produce of Shevi'is on behalf of Hekdesh did not actually prevent anyone from taking the produce. Rather, they merely notified the public that the produce was intended to be used for Hekdesh, and people refrained from taking it out of their own sense of decency. Grain that was protected in such a way is not considered to have been <i>guarded</i> during Shevi'is. This is also the answer of Tosfos (58a) and other Rishonim.
</p><p>
Similarly, the <b>TOSFOS SHANTZ</b> (cited by the Shitah Mekubetzes on 58a), the <b>TOSFOS RABEINU PERETZ</b> (58a), the <b>RITVA</b> there, and <b>TOSFOS</b> in Rosh Hashanah (9a) answer that the guards did not stop people from taking the produce. Rather, they guarded the produce from birds and animals.
</p><p>
(d) The <b>RASHASH</b> and <b>CHAZON ISH</b> answer that it is prohibited only to guard one's own produce during Shevi'is. There is no Isur to guard the produce of another person or of Hekdesh. Since there is no Isur to guard it, the grain that is guarded does not become prohibited to eat. The Chazon Ish asserts that this is the intention of <b>TOSFOS</b> in Menachos (84a, DH Shomrei). (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>BUYING BACK LAND TAKEN BY A 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'> (Beraisa):</font></b> If Levi hired David to work for himself,
               and set him to work on what is really Reuven's
               property, Levi pays David, and can demand from
               Reuven the benefit Reuven received.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Gitin 58b (Beraisa):</font></b> The law of Sikrikon (that Levi
               can buy the land from the Nochri who took from
               Reuven and give Reuven a quarter of the price) does
               not apply to a Nochri who took Reuven's land for
               payment of a debt, or through Anperos (extortion
               (when there was no concern lest he kill Shimon);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Regarding Anperos, it must remain with the Nochri
               for 12 months. (If not, the land belongs to Reuven.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> We said that the law of Sikrikon does not
               apply to Anperos!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, the Beraisa means that regarding a
               Sikrikon, the land must stay with the Nochri for 12
               months.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rav Yosef):</font></b> There is no (law of) Anperos in Bavel.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> This is because there is an official with whom
               complaints may be filed. If Reuven did not complain,
               this shows that he pardons the land to the Nochri.
<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 27a and 5:17):</font></b> There is no law
               of extortion in Bavel, for there is an official. If
               Reuven did not complain, he pardoned the land to the
               Nochri.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 10:1):</font></b> If a powerful Nochri
               forcibly took Reuven's field because Reuven owed him
               money, or Reuven caused damage or a loss to him, and
               after he seized the field he sold it to Levi, Reuven
               cannot take it from Levi.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (2):</font></b> This is when Yisrael witnesses testify
               that the Nochri's claim was true, or Reuven admits
               to it. Or, it is even without witnesses or an
               admission, if there was a king or official who could
               have forced the Nochri in judgment, and Reuven
               didn't claim. Levi can say 'if he is a thief, why
               didn't you claim from him?'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Bava Kama 6:7):</font></b> R. Gershom ruled that if a
               Nochri forcibly took Reuven's house and Levi bought
               it from the Nochri, he need not return it for free.
               Rather, Reuven pays the amount Levi benefited him.
               Beis Din estimates how much he would pay to get his
               land back. This is like one (Levi) who hired a
               worker and told him to work in Reuven's field. Levi
               pays the worker his full wage, and Reuven pays Levi
               the benefit he received (Bava Metzi'a 118a). In
               Gitin, Rashi explained that if the Nochri took the
               field for a debt, or through extortion, Levi returns
               it for free. Reuven never intended to give it to the
               Nochri. Even if he had it for 12 months, Reuven
               merely had no opportunity to force him to return it.
               The Ri holds like R. Gershom. This is unlike
               Mavri'ach Ari (one who prevented potential damage,
               and is not compensated for what he spent). Even
               though he intended, since it came to the Nochri's
               Reshus, Reuven is unlikely to get it back for free.
               Levi is like one who saved from a lion. He receives
               the benefit he gave. He does not get everything he
               spent, like a shepherd who hired (others or) sticks
               to fight off a lion. There, he intended to help the
               owner of the flock. Here, he bought it for himself,
               so he gets only Reuven's benefit.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Ketzos ha'Choshen 236:1):</font></b> Teshuvas
                    ha'Rosh (95:2) says that R. Gershom obligates
                    giving all that Levi paid. This requires
                    investigation. We follow Piskei ha'Rosh against
                    his Teshuvah. If Levi intended to return the
                    field to Reuven, Piskei ha'Rosh agrees that he
                    gets all that he paid.
<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 236:7):</font></b> If a powerful Nochri
               forcibly took Reuven's field because Reuven owed him
               money, or for damage or a loss to him, and then that
               is Nochri sold it to Levi, Reuven cannot take it
               from Levi. This is when Reuven admits that the
               Nochri's claim was true, or there was an official
               who could have forced the Nochri in judgment, and
               Reuven didn't claim. This is even if Reuven does not
               admit to the Nochri's claim and there are no
               witnesses. Levi can say 'if he is a thief, why
               didn't you claim from him?'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (15 and Shach 3):</font></b> This is like the Rambam.
                    The Tur holds like the Rosh citing R. Gershom,
                    that Reuven gets it back. He owed only money to
                    the Nochri, so if he pays this to the buyer, he
                    gets back his land.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (8):</font></b> If a Nochri came with pretexts
               and took Reuven's land, but he could not have killed
               him, and the Nochri sold or gave it to Levi, Levi
               must return it to Reuven, even if he had it many
               years. We estimate how much Reuven would have wanted
               to pay the Nochri to get it back; he pays this to
               Levi.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Ba):</font></b> R. Gershom says that Levi
                    must return it to Reuven even if he had it many
                    years. The Mordechai says that Rashi disagrees,
                    but many hold like R. Gershom, and we rule like
                    them.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Drishah (4):</font></b> The Beraisa discusses a Nochri who
                    took land for a debt, or through mere
                    extortion. Rashi explains that he had no proof
                    that he was owed, like the case of Anperos
                    (extortion). The Rambam explains that the
                    Nochri has witnesses about the debt, or the
                    Yisrael admits. Anperos is similar, i.e. he has
                    witnesses that the Yisrael caused a loss or
                    damage to him. The Rambam must explain 'there
                    is no law of extortion in Bavel', i.e. Reuven
                    does not get his land back even if no witnesses
                    support the Nochri's claim. Perhaps Rashi and
                    the Rambam argue only about how to explain the
                    Beraisa, but l'Halachah they agree.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (19):</font></b> Reuven pays Levi only what Reuven
                    would have needed to pay.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (4):</font></b> If Levi intended to return it to
                    Reuven, Reuven must pay him as much as he paid,
                    up to its value.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If Levi spent to buy it in
               order to get it from the Nochri, Reuven returns to
               him up to the house's value. He need not pay him
               more than he paid, e.g. the Nochri liked Levi and
               sold to him cheaply, and Reuven could not have
               bought it for so little. If it was a gift, Reuven
               gets it for free.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav Adoni):</font></b> The Rosh (95:2)
                    says that Levi does not get more than he paid.
                    He cannot do business with another's property!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> This applies only to land, for people do not
               despair from it. People despair from Metaltelim, so
               Levi need not return to Reuven, except for Seforim.
               People do not despair from Seforim, for they are
               sold only to Yisre'elim.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 356:2):</font></b> If Levi bought from a
               known thief, there is no enactment. Reuven (the
               owner) takes his object back, and Levi claims from
               the thief.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that if Levi did not know that this
               item was stolen, there is an enactment (Reuven pays
               him what he paid, and Reuven claims from the thief).
               If Levi says 'I intended to help Reuven get back his
               item', he is believed. All agree that Reuven must
               pay him what he paid, even if Levi bought from a
               known thief.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tosfos (114b DH ha'Makir):</font></b> Even without an
                    enactment, Levi can get what he paid, for he
                    can say that he intended to save it (return it
                    to the owner)! We must say that the case is
                    that Reuven could have claimed from people who
                    lodged in his house (surely, they stole it),
                    even if no one bought it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ketzos ha'Choshen (3):</font></b> We learn from Tosfos
                    that if he did not intend to save, he is paid
                    only due to the enactment. When there is no
                    enactment, e.g. the thief is notorious, he is
                    not paid anything. However, it seems that even
                    then he gets what he benefited Reuven, for
                    Reuven could not have gotten back his item
                    otherwise. This is unlike Mavri'ach Ari, for he
                    saves him from loss. This is even if Levi
                    intended to buy for himself, and not to save.
                    However, when he intended to save he gets all
                    his expenses. When he intended to buy for
                    himself, he gets only what he benefited Reuven.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Nesivos ha'Mishpat (Urim, 236:7):</font></b> Here, when
                    Levi bought from a known thief, Reuven takes
                    his object back for free, unless Levi intended
                    to return it to the owner. In Siman 236, Levi
                    bought from a Nochri, and gets what he
                    benefited Reuven, regardless of his intent,
                    even though a Nochri is like a known thief! The
                    Ketzos ha'Choshen says that even here, Levi
                    receives what he benefited Reuven, regardless
                    of his intent. I say that also here, he is paid
                    only if he intended to return it, for then he
                    is like one who improved another's field
                    without permission. If Levi bought it for
                    himself, Reuven does not pay him, since Reuven
                    does not benefit from this (only his property
                    benefits). The Rema relied on what he wrote in
                    Siman 356 that he is paid only if he intended
                    to help Reuven. The Shulchan Aruch (236:8)
                    alluded to this by saying 'he spent money to
                    buy it in order to get it from the Nochri.'
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>CRAFTSMAN WHO DEVIATED </b></b>(</font><font color='darkblue'>


lvr: 42
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Chachamim told R. Yosi, if we do like you say,
                    four Zuz of Terumas ha'Lishkah really belongs
                    to the Shomer (he waived his right to take it).
                    Korbanos bought with those four Zuz belong to
                    the Shomer, not to the Tzibur!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Ravin):</font></b> R. Yochanan holds like Version #2.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DAMAGE TO THE RESHUS HA'RABIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One who takes dung (for fertilizer) to the
          Reshus ha'Rabim may not leave it there (he must
          immediately take it to his field or garden).
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	One may not soak mud or form bricks and leave them to dry
          in the Reshus ha'Rabim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One may knead mud to immediately put it in the
               building, but not to make bricks.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If one builds in the Reshus ha'Rabim, one person brings
          the rocks, and they must immediately be built into the
          building;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If someone is hurt, the builder must pay.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Gamliel says, one may prepare what he
               will need 30 days before he builds, and he is exempt
               for resulting damage.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Suggestion:</font></b> Our Mishnah is not like R. Yehudah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah):</font></b> When people normally put out
               dung, one may put dung in the Reshus ha'Rabim for 30
               days so that people and animals will trample on it.
               Yehoshua made this a condition for inheriting Eretz
               Yisrael.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> It is even like R. Yehudah. R. Yehudah admits
          that he is liable if it damages.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Mishnah - R. Yehudah):</font></b> (If a grocer left Ner
          Chanukah burning outside his shop, and this set fire to a
          load of flax on a passing camel, and the camel walked
          around, and set the whole building on fire,) the grocer
          is exempt, because he had permission to leave the lights
          burning.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Because he had permission of Beis Din,
               he is exempt!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> No, because it is a Mitzvah he is exempt.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	The following Beraisa shows that our Mishnah is not R.
          Yehudah.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Everyone who may ruin the Reshus ha'Rabim, if
          he damages, he is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah exempts.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Conclusion:</font></b> Indeed, our Mishnah is not R. Yehudah.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Abaye):</font></b> All the following hold that if one acted with
          permission, and he damaged, he is exempt: R. Yehudah
          (above), R. Shimon ben Gamliel and R. Shimon.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Shimon ben Gamliel):</font></b> One may prepare
               what he will need 30 days before he builds, and he
               is exempt for resulting damage.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Mishnah):</font></b> One may not set up a Tanur (oven) in his
               house unless there are four Amos above it. One may
               not set up a Tanur in an Aliyah unless there are
               three Tefachim of plaster below it;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  For a Kirah (an oven that does not get as hot),
                    one Tefach suffices.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If the oven caused damage, he must pay for it;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Shimon says, if he kept the proper distance, he
               is exempt.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a rock quarrier gave over the rocks to one
          who smoothes them, the smoother is liable (for any damage
          that results);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the rocks were passed on to a donkey-driver (to
               transport them), to one who carries them himself, to
               the builder, to the Adrichal (one who straightens
               out the rocks in the building), at any time, the
               last one who received them is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If a rock fell off the row being built - since its
               momentum did not come from the Adrichal, all share
               the liability.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> The last one is liable, and all
          previous ones are exempt.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> If they are paid wages (based on how long they
          work for), only the last is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they are Kablanim (they are hired to complete the
               job), all are responsible.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>PLANTS GROWING OVER ANOTHER'S PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Meir):</font></b> If Reuven owns a garden, and Shimon
          owns an adjacent garden on a mound, and plants growing on
          the side of the mound are over Reuven's garden, these
          plants belong to Shimon;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yehudah says, they belong to Reuven.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Meir:</font></b> If Shimon would take his dirt, they would
               not grow!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Yehudah:</font></b> If Reuven would fill his airspace with
               dirt, they would not grow!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Meir:</font></b> Since either could stop them from growing,
               they belong to the one from whose property they
               grow.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Shimon says, whatever Shimon can reach (from his
          property), he takes. The rest belongs to Reuven.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara - Rava):</font></b> All agree that the roots belong to
          Shimon. They argue only about the foliage;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir treats the foliage the same as the roots;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah does not treat the foliage the same as
               the roots.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa - R. Meir):</font></b> If Levi owned a tree in Yehudah's
          land, what grows out of the stump or roots belongs to
          Yehudah;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	R. Yehudah says, what grows out of the stump belongs to
          Levi. What grows out of the roots belongs to Yehudah.
<br>

<p>

sjt:
</p><p>
<font><b>3) VEGETABLES GROWING ON AN EMBANKMENT</b></font><b>
<br>OPINIONS:</b> The Tana'im in the Mishnah argue about the law in a case of vegetables that grow on a vertical strip of ground between two gardens, one of which is above the other. Rebbi Meir says that the vegetables belong to the owner of the upper garden since they grow from the ground beneath his property. Rebbi Yehudah says that they belong to the owner of the lower garden, since they grow in his air space, and he could fill up the space with dirt and prevent them from growing. Rebbi Shimon says that the owner of the upper garden has the right to the vegetables that grow on the precipice as far as his arm can reach, and the rest belong to the owner of the lower garden.
</p><p>
Both Rebbi Meir and Rebbi Yehudah give logical explanations for their rulings. What is the reasoning of Rebbi Shimon?
</p><p>
(a) <b>RASHI</b> explains that Rebbi Shimon essentially agrees with Rebbi Meir, that the vegetables belong to the owner of the upper garden since they grow from ground below his property. That is why he may take the vegetables which are within his reach. However, he may not take the vegetables that are beyond his reach because it is assumed that he was Mafkir them, since it is disgraceful for him to climb into the garden of his neighbor to pick his vegetables. Therefore, the owner of the lower garden may take those vegetables. This is also the explanation of <b>TOSFOS</b> earlier (107a, DH Ilan).
</p><p>
(b) The <b>RAMBAN</b> explains that Rebbi Shimon essentially agrees with Rebbi Yehudah, that all of the vegetables belong to the owner of the lower garden. However, the owner of the lower garden is assumed to be Mafkir the vegetables that grow higher up on the embankment (within his neighbor's reach) in order to remain on good terms with his neighbor. The lower neighbor would fear that if he is not Mafkir them, then the upper neighbor will remove his dirt and cause the vegetables to stop growing. This is also the way the <b>LECHEM MISHNEH</b> explains the ruling of the <b>RAMBAM</b> (Hilchos Shechenim 4:9).
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DUAL CLAIMS TO VEGETATION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Meir):</font></b> Orlah applies to what grows out of a
          stump or roots (whatever grows in the first three years
          is forbidden);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yehudah says, Orlah applies to what grows out of the
          roots, but not to what grows out of the stump.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	They needed to argue in both cases.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had they argued only about a tree in another's
               field, one might have thought that R. Yehudah argues
               only about money, but regarding Orlah, an Isur, he
               admits (that Orlah applies even to what grows from
               the stump);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had they argued only about Orlah, one might have
               thought that R. Meir only argues about an Isur, but
               regarding money he admits (that what grows from the
               stump belongs to the owner of the tree).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mishnah - R. Shimon):</font></b> Whatever Shimon can reach, he
          takes. The rest belongs to Reuven.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(D'Vei R. Yanai):</font></b> Shimon may not stretch more than
          normal.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Anan):</font></b> If he can reach the foliage but not
          the roots, or vice-versa, what is the law?
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	This question is not resolved.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Efrayim Sifra):</font></b> The Halachah follows R. Shimon.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	When Shevor Malka (the Persian king) heard this, he
          praised R. Shimon.
<br>
<br><b>TAM V'NISHLAM</b>, <b>B'EZRAS HA'TZUR</b>
<br>

sjt:
<font><b>1) WHICH VEGETABLES MAY THE OWNER OF THE UPPER GARDEN TAKE</b></font><b>
<br>QUESTION:</b> The Tana'im in the Mishnah argue about the law in a case of vegetables that grow on a vertical strip of ground between two gardens, one of which is above the other. Rebbi Shimon says that the owner of the upper garden has the right to the vegetables that grow on the precipice as far as his arm can reach, and the rest belong to the owner of the lower garden.
</p><p>
The Gemara asks whether the owner of the upper garden is entitled to the vegetables when he can reach the stalks growing out of the ground but he cannot reach the part of the embankment in which the vegetables have taken root. (That is, the stalks of the vegetables grow upwards and thus are closer to the upper garden than the roots are.) Similarly, the Gemara whether the owner of the upper garden is entitled to the vegetables when he can reach only the roots but he cannot reach the stalks. (That would occur when the stalks of the vegetables grow downwards and thus are farther away from the upper garden than the roots are.)
</p><p>
The <b>RAMBAN</b> and the <b>ROSH</b> (10:9) ask why the Gemara is unsure about this Halachah. <b>RASHI</b> (118b, DH veha'She'ar) explains that Rebbi Shimon essentially agrees with Rebbi Meir, that the vegetables growing on the embankment belong to the owner of the upper garden. That is why he may take the vegetables which are within his reach. However, he may not take the vegetables that are beyond his reach because it is assumed that he was Mafkir them, since it is disgraceful for him to climb into the garden of his neighbor to pick his vegetables. If, however, he can manage to pull out the vegetables by pulling at the stalks, he would not be Mafkir them, since he can pick them without entering his neighbor's property. If, on the other hand, he cannot pull out the vegetables by pulling at the stalks, and he must enter the lower garden to pick them, then he <i>would</i> be Mafkir them! What, then, is the Gemara's question?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>BEIS YOSEF</b> (CM 167) explains that the Gemara has a question because even if he <i>can</i> pull out the vegetables by grasping the stalks, he may be embarrassed to do so since the lower neighbor knows that he cannot reach the roots, and when he sees that the vegetables were picked he might think that the upper neighbor entered his garden without permission. Similarly, if the upper neighbor can reach the roots but not the stalks, he may be embarrassed to pick the vegetables because the lower neighbor might claim that they were growing within his domain since he knew that the upper neighbor could not reach the stalks. This is why the Gemara entertains the possibility that the upper neighbor may be Mafkir these vegetables.
</p><p>
(b) The <b>RAMBAN</b> (118b) rejects Rashi's explanation because of this question. He explains that Rebbi Shimon essentially agrees with Rebbi Yehudah, that all of the vegetables belong to the owner of the lower garden. However, the owner of the lower garden is assumed to be Mafkir the vegetables that grow higher up on the embankment (within his neighbor's reach) in order to remain on good terms with his neighbor. The lower neighbor fears that if he is not Mafkir them, then the upper neighbor will remove his dirt and cause the vegetables to stop growing. According to the Ramban, the owner of the lower garden is Mafkir the vegetables not because he cannot get to them, but out of goodwill. The Gemara here questions how far his goodwill extends. The Gemara entertains the possibility that he gives his neighbor the right to take even the vegetables that are only partially within the neighbor's reach.
</p><p>
(c) When one picks vegetables, he normally does not uproot the entire plant, since plants normally continue to bear fruit throughout their growing season. Instead, one cuts off the vegetables along with part of the stem, leaving the rest of the plant rooted. Different vegetables are cut from their roots with different amounts of the stems; some are cut close to the root, which regenerates and produces a new stem, while others are cut closer to the vegetable, leaving the stems attached to the root.
</p><p>
The first question of the Gemara (when the owner of the upper garden is able to reach the stem but not the roots) may refer to a vegetable that is normally cut close to the roots. The question of the Gemara is whether the owner of the upper garden, who cannot reach the place where the vegetable is normally cut, will instead pick the vegetable in an abnormal fashion (by cutting the stem near the vegetable, or by grabbing the stalk and pulling the roots out of the ground), or whether he will be embarrassed to do so and will be Mafkir it to the owner of the lower garden.
</p><p>
The second question of the Gemara (when the owner of the upper garden is able to reach the roots but not the stem) can be explained in a similar manner. This question may refer to the type of vegetable that is normally cut near the vegetable itself (where the owner of the upper garden cannot reach) and not near the roots. The Gemara's question is whether the owner of the upper garden will cut the vegetable in an abnormal fashion or whether he will be embarrassed to do so and will be Mafkir it for the owner of the lower garden. (M. Kornfeld)
</p><p>


<font><b>2) THE ROOT OF THE MATTER</b></font><b>
<br>OPINIONS:</b> Rebbi Shimon rules that when vegetables grow from the vertical surface of an embankment between two gardens, the owner of the upper garden is entitled to all of the vegetables that he can reach without overly stretching himself. The owner of the lower garden has the right to the rest.
</p><p>
To what extent does the lower neighbor have the right to the vegetables that the upper neighbor cannot reach? Is he entitled only to the stalks of the vegetables, or even to their roots? Both Rebbi Meir and Rebbi Yehudah -- who disagree with Rebbi Shimon in the Mishnah -- agree that the roots of the vegetables growing on the vertical embankment belong to the owner of the upper garden. Does Rebbi Shimon argue with both of them and say that when the owner of the upper garden cannot reach the vegetables, the lower neighbor has the right to take even the <i>roots</i> of the vegetables?
</p><p>
(a) The <b>ROSH</b> (cited in previous Insight) writes that if the owner of the upper garden cannot pull out the roots of the vegetables by tugging at their stalks, then it is obvious that he does not have the right to the vegetables, since he would need to enter the lower garden in order to take them. (The Rosh questions why the Gemara does not use this logic to determine the Halachah in a case in which the upper neighbor can reach the stalks but not the roots, or vice versa.) This implies that if the upper neighbor cannot reach the vegetables, then the lower neighbor is entitled to take even their roots. That is why it is so obvious to the Rosh that the upper neighbor has no right to the vegetables in such a case.
</p><p>
This is also the way the <b>DERISHAH</b> understands the Sugya. The Derishah (CM 167) explains that when the upper neighbor can reach only the foliage and not the roots, and he cannot pull out the vegetables by grasping their foliage, the roots belong to the lower neighbor, and the only matter in doubt is the ownership of the foliage.
</p><p>
According to this understanding, however, Rebbi Shimon's opinion is somewhat inconsistent with the other opinions mentioned in the Mishnah. The other opinions (Rebbi Meir and Rebbi Yehudah) debate only the ownership of the foliage, while Rebbi Shimon adds that the ownership of the roots is in doubt as well.
</p><p>
(b) The <b>RAMACH</b>, cited by the <b>SHITAH MEKUBETZES</b>, writes that even Rebbi Shimon agrees that the owner of the upper garden owns the roots of the plants growing on the vertical embankment. Only with regard to the ownership of the foliage does Rebbi Shimon distinguish between a case in which the upper neighbor can reach the plants and a case in which he cannot reach them.
</p><p>
Can this opinion be reconciled with Rashi's explanation of Rebbi Shimon? According to Rashi, Rebbi Shimon gives the lower neighbor possession of anything which the upper one cannot reach because the upper neighbor would be embarrassed to ask permission to enter the lower garden and pick the vegetables. That logic should apply to the roots of the plant as well.
</p><p>
Perhaps even Rashi agrees with the Ramach. The upper neighbor may be embarrassed to ask permission to pick the plants partly because the lower neighbor may believe that he has the right to the plants (since if he would have filled his garden with dirt, there would be no plants, as the Mishnah says). There is no logical reason, however, for the lower neighbor to believe that he is entitled to the roots. Since the roots are unquestionably the property of the upper neighbor, the upper neighbor would not be embarrassed to ask to enter the lower garden in order to collect his roots, any more than he would be embarrassed if his child's ball fell into the lower garden and he had to ask permission to enter to collect it. (M. Kornfeld)
</p><p>


<font><b>3) HADRAN: TEACHING TORAH TO KING SHEVOR</b></font><b>
<br>QUESTION:</b> Rashi and Tosfos explain that 'King Shevor' -- who praised the ruling of Rebbi Shimon in the Mishnah -- was the ruling monarch of the Persian Empire at the time.
</p><p>
Why was an Amora permitted to teach the monarch the Halachah of the Mishnah? The Gemara in Chagigah (13a) states that teaching Torah to a Nochri is prohibited! (<b>RAV YONASAN EIBESHITZ</b> in <b>YA'AROS DEVASH</b>, Derush #16; <b>MAHARATZ CHAYOS</b>)
</p><p>
<b>ANSWER: RAV YONASAN EIBESHITZ</b> and the <b>MAHARATZ CHAYOS</b> answer that it was permitted to teach him this Halachah, since this Halachah is a monetary law and therefore applies to Nochrim as well as Jews, because Nochrim are also commanded to adjudicate monetary laws ('Dinim').
</p><p>
This answer, however, is problematic. <b>RASHI</b> (118b, DH veha'She'ar) explains that the reason why Rebbi Shimon rules that the plants on the lower part of the vertical embankment belong to the owner of the lower garden is that the owner of the upper garden would be embarrassed to ask permission to enter the lower garden to gather those plants (see previous Insights). This logic does not seem to apply to Nochrim, who are not endowed with the same sense of modesty as Jews. As the Gemara teaches in Yevamos (79a), 'Baishanus' (natural modesty) is an identifying trait of Jews. Nochrim are not easily embarrassed, especially when collecting something that is rightfully theirs. Since a Nochri would not be ashamed to enter the lower garden and pick his plants, the Halachah with regard to Nochrim should differ from that of the Mishnah; all of the plants should belong to the upper owner. Why, then, was it permitted to teach King Shevor the Halachah of Rebbi Shimon?
</p><p>
The answer may be learned from the Gemara in Berachos (8b) which teaches that the nation of Persia-Mede differs from all other foreign nations. The people of that nation are outstanding in their modesty with regard to preserving their own privacy and that of others ('Tzenu'im... Yo'atzim ba'Sadeh'). That is why this Halachah indeed applied to the nation of King Shevor, and why it was permitted to teach it to him.
</p><p>
This also explains why the king praised this Halachah more than any other. Since it is a Halachah that is based on people's natural modesty, he, as a Persian, found it particularly appealing.
</p><p>
This explains why the order of the Mishnah continues with Maseches Bava Basra, which begins with the laws of building a dividing wall between two neighboring yards in order to protect the privacy of both parties. The Gemara debates whether it is <i>obligatory</i> to build such a wall, or it is only optional. According to both opinions, however, the parties discussed in the Mishnah would build such a wall between their yards in order to protect their privacy.
</p><p>
This concept also relates to the beginning of Bava Metzia. The Mishnah teaches that when two people who are both holding a Talis contest the ownership of the Talis, it is divided between them. The Talis is not placed in the custody of Beis Din until its ownership can be proven, as is done in the case of 'Manah Shelishi' (3a, in which two people contest who it was who deposited with a third person a two hundred Zuz cache of money). Beis Din also does not rule that 'the stronger one shall prevail' ('Kol d'Alim Gevar'), as is the Halachah in a case in which two people debate the ownership of a boat. Rashi there (2a, DH b'Mekach u'Memkar) explains that the Talis is divided between them because it is possible that each one genuinely believes that the Talis is his, and Beis Din cannot be certain that one of the parties is lying. That is, perhaps both noticed the Talis in the street and picked it up together. Each claimant may think that he picked it up a split second before the other, but in truth they both picked it up at the same time and they both own it. If, however, each one claims to have woven the Talis himself, one of them must be lying and the Talis would not be divided between them (Rashi, ibid.).
</p><p>
Accordingly, the Mishnah there (2a) teaches that a Jew should not be suspected of outright lying and seizing an item that belongs to another Jew. A Jew's natural trait of modesty causes him to be embarrassed to do something that does not look correct, and he would never act in such a manner. That is why each of the claimants receives part of the Talis, for it cannot be assumed that they are outright liars.
</p><p>
Accordingly, both in the beginning of the Maseches and in the end of the Maseches, and in the beginning of Bava Basra, the Mishnah teaches a law that is based on the praiseworthy trait of modesty that is a defining character trait of the Jewish nation. This is a most appropriate point to emphasize for Seder Nezikin, since an ingrained modesty will prevent a person from causing any damage to another person's property. (M. Kornfeld)
</p><p>
In the Zechus of the modesty of the Jewish nation, may we merit to see the Shechinah again rest upon the nation of Hash-m in Tziyon, in our days!
</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES ORLAH APPLY TO WHAT GROWS FROM ROOTS OR A STUMP?</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'> 118b (Beraisa - R. Meir):</font></b> If Levi owned a tree in
               Yehudah's land, what grows out of the stump or roots
               belongs to Yehudah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, what grows out of the stump belongs
               to Levi. What grows out of the roots belongs to
               Yehudah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Mishnah - R. Meir):</font></b> Orlah applies to what grows out
               of a stump or roots (whatever grows in the first
               three years is forbidden);
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yehudah says, Orlah applies to what grows out of
               the roots, but not to what grows out of the stump.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Had they argued only about a tree in another's
               field, one might have thought that R. Yehudah argues
               only about money, but regarding Orlah, an Isur, he
               admits (that Orlah applies even to what grows from
               the stump). Had they argued only about Orlah, one
               might have thought that R. Meir argues only about an
               Isur, but regarding money he admits.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Bava Basra 81a (Mishnah):</font></b> If Reuven bought two trees
               in Shimon's property, he did not acquire land (with
               them);
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> R. Meir says, he acquired land.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> Reuven owns whatever grows from the stump. Shimon
               owns whatever grows from the roots.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 82a (R. Yochanan):</font></b> Whatever is above the ground is
               considered the stump. Whatever is below the ground
               is considered the roots.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Gitin 22a (Abaye):</font></b> If the hole of a flowerpot is in
               Eretz Yisrael, and the foliage is in Chutz la'Aretz,
               we follow the hole (for Terumah, Ma'aser...)
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Rava):</font></b> We follow the foliage. (It is as if it it
               grows in Chutz la'Aretz.)
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> They argue only if the plant did not take root in
               the ground.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question:</font></b> Perhaps even if it took root, they argue
               like the following. Tana'im about whether we follow
               the roots or the foliage!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah - R. Meir):</font></b> If Kelim owns a hill, and
                    Shimon owns at the bottom, what grows on the
                    incline (the side of the hill) belong to Levi;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Yehudah says, they belong to Shimon.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer:</font></b> The Mishnah explains that they argue about
               something else. R. Meir says that Levi could remove
               his soil, so all that grows is due to him. R.
               Yehudah disagrees, for Shimon could fill his
               airspace with soil.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Ma'aser Sheni 10:19):</font></b> A tree that
               grows out of a stump is exempt from Orlah. Orlah
               applies to what grows out of the roots.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Ri Korkus, Kesef Mishneh, Kaftor
                    va'Ferach 54):</font></b> This is unlike the first Tana in
                    the Tosefta (Orlah 1:4), who obligates what
                    grows out of a stump or roots, and unlike R.
                    Yehudah, who obligates only what grows out of a
                    stump!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer #1 (Ri Korkus):</font></b> The Rambam learns from
                    Bava Basra that what grows out of a stump is
                    like the tree itself, so it belongs to the
                    buyer. What grows out of roots is like a
                    separate tree growing from the seller's ground.
                    The Rashbam explains like this.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer #2 (Kesef Mishneh):</font></b> The Rambam had a
                    different text in which the first Tana
                    obligates only what comes from the roots.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Machaneh Efrayim and Rashash, in
                    Likutim in Frankel Rambam):</font></b> Clearly, the Rambam
                    rules like R. Yehudah in Bava Metzia. We cannot
                    attribute this opinion to the first Tana!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Noda b'Yehudah (2 YD 185):</font></b> In the Tosefta, R.
                    Yehudah obligates what grows out of a stump. R.
                    Yeshayah Fik switched the text so that he
                    obligates what grows from the roots (like Bava
                    Metzia 119a), for this is more reasonable, and
                    challenged the Kesef Mishneh. I say that the
                    Kesef Mishneh held that the Rambam rules like
                    his text of the first Tana. We do not rule like
                    R. Yehudah against R. Meir when R. Meir's
                    opinion is taught Stam. In Bava Metzia R.
                    Meir's opinion is taught in his name, but
                    perhaps it is a different Beraisa. Do not say
                    that the Gemara did not bring the Tosefta for
                    it is unreliable. Rather, it brought the
                    Beraisa to show that R. Meir and R. Yehudah
                    argue in two places.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Rebuttal (Chazon Ish Orlah 2:8):</font></b> The Gemara
                    says that R. Meir and R. Yehudah argue about
                    this, so it is as if it explicitly ruled like
                    R. Yehudah, based on Eruvin (46b). Also, we do
                    not have a precise Tosefta. We rely on the
                    Gemara against the Tosefta. The Yerushalmi
                    supports it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Tosfos (Gitin 22a uved'Ashrush):</font></b> Abaye and Rava
               argue about whether the roots or foliage are
               primary. The Gemara should have said that they argue
               like R. Meir and R. Yehudah regarding Orlah!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Or Zaru'a (1:326):</font></b> The Tosefta exempts what grows
               out of a stump or roots, i.e. of a mature tree.
               Orlah applies to them if the tree is within three
               years.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Ra'avad (in Shitah Mekubetzes 118b DH Omar):</font></b> Really,
               R. Meir and R. Yehudah argue about whether Peros
               grow due to the roots or due to the air. Therefore,
               they argue about whether or not we attribute the
               Peros to the roots. Surely what grows from the roots
               is exempt from Orlah, for the years of Orlah already
               passed! R. Yehudah considers what grows from them to
               be like a new tree. In the Mishnah, R. Meir and R.
               Yehudah address each other according to the other's
               reasoning (granted, you argue about what makes Peros
               grow, but admit to me that nothing would grow
               without the soil/airspace).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Ramban (118b DH Ha):</font></b> All agree that nurturing
               depends on the roots. Rashi's text says that R. Meir
               obligates what comes out of a stump or roots. This
               is wrong, for the Gemara said 'one might have
               thought that R. Meir admits about Orlah, an Isur
               (and is stringent).' This shows that R. Meir is
               lenient.
<br><b><font color='darkgreen'> <b>    (c)</b>  Acharonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Lechem Mishneh (Hilchos Shechenim 4:9):</font></b> Regarding
               ownership of vegetation between two fields, the
               Rambam rules like R. Meir and R. Shimon, who
               attributed the Peros to the Ikar. How can he rule
               like R. Yehudah regarding Orlah, who exempts what
               grows from the stump? If Orlah (Isur) is different,
               we are <i>more</i> stringent to consider new growth like
               a new tree! The only difference the Gemara found was
               between money and Isur! We must say that the Rambam
               saw that the Gemara rules like R. Shimon regarding
               neighbors, but not for R. Meir's reason. He does not
               attribute Peros to the Ikar. Rather, it depends on
               who has more ability to prevent the Peros from
               growing.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Kehilas Yakov (27 (in old editions, 2:22)):</font></b> Omer
               ha'Shichechah asked why the Rosh, Tur and Shulchan
               Aruch omitted this. The Or Zaru'a rules like the
               first Tana according to the text of the Ra'avad and
               Ramban; he must hold like the Noda b'Yehudah.
               However, regarding money, a Stam Mishnah attributes
               whatever grows from the stump to the tree's owner,
               and whatever grows from the roots to the owner of
               the ground. The Or Zaru'a rules like this. The
               Gemara said that perhaps we are more stringent about
               Isur to consider new growth as if it were a new
               tree, even though for money it is not. All the more
               so, we must be stringent to say that Orlah applies
               to what grows from the roots, which even for money
               is like a new tree! This requires investigation.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Kehilas Yakov 27:2):</font></b> We count the years of
               Orlah from when the seed was planted. Even if what
               grows from the roots looks like a new tree, we
               should count from when the tree was planted! We must
               say what grows from a seed is different. It started
               to sprout from when it took root. However, the
               Yerushalmi says 'an exempt root exempts', e.g. if a
               tree was uprooted and even a thin root remained, or
               a tree is partially in Chutz la'Aretz. The Chazon
               Ish (2:8) said that the Yerushalmi exempts only a
               tree that nurtures from the exempt root and other
               roots. We do not partially obligate what grows. What
               sprouted from the root is totally liable, like a new
               tree. This is like Rashi, who says that what grows
               from the roots is like a new tree. The Ra'avad and
               Ramban say that R. Yehudah holds that it grows from
               the air. Since it nutures also from the roots, the
               Yerushalmi's exemption should apply!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Kehilas Yakov):</font></b> The fact that what grows
               from the roots is liable proves that nurturing from
               an old root does not exempt a tree less than three
               years old. Rather, all exempt what grows from the
               stump (according to the Ra'avad's text) for it is
               Tafel (secondary) to the stump. If not, Orlah would
               apply to new branches of old trees! The Ra'avad and
               Ramban explain why R. Yehudah holds that what grows
               from the roots is not considered secondary to the
               root.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Ya'aros Devash (2 Derush 16 DH Emnam):</font></b> R. Yehudah
               holds that most growth is from the air, but he
               admits that some is due to the roots. Regarding
               Orlah we follow the majority. We do not follow the
               majority regarding Ma'aser, for it is Yesh Lo
               Matirim, and not regarding money.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Chazon Ish (Orlah 1:19 DH v'Ha):</font></b> Toras Kohanim
               exempts what grows by itself, i.e. what grows out of
               a stump. A Stam Beraisa in Toras Kohanim is R.
               Yehudah. Orlah applies to what grows from a seed
               that fell. The Yerushalmi says that Orlah applies to
               a tree totally cut, but if something remained, what
               grows from it is exempt. This Toras Kohanim (brought
               in Perush ha'Mishnayos Orlah 1:5 DH Sipuk) is taught
               amidst laws of grafting and Havrachah (inserting
               vine ends into the ground to grow out). However,
               Perush ha'Mishnayos (1:2 DH veha'Oleh) says that
               'grows by itself' is what man did not plant.<p>


