# dafyomi

lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection (Rav Ashi):</font></b> We could have made a valid
          inference if Rav Nachman had taught the following case:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Leah made Levi a Shali'ach to receive her Get, he
               told Yehudah 'I am a Shali'ach to bring her Get',
               and Yehudah said 'take it like she said';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Rav Nachman would say that she is divorced
                    when he gets it, this would prove that Yehudah
                    intends for what she said;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If Rav Nachman would say that she is divorced
                    when she gets it, this would prove that Yehudah
                    relies on what Levi said;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> However, we cannot learn from the case Rav Nachman
               actually taught. She is not divorced because Levi
               agreed only to be a Shali'ach to receive (which is
               more esteemed), but not to bring!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WORKERS WHO RETRACTED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Opinion #2:</font></b> In the Mishnah, the employer or workers
          retracted. The Tana calls this 'tricked'.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven hired workers and they tricked him
          or he tricked them, the hurt party has only complaints;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is when the workers did not go to the worksite,
               but if donkey-drivers or workers went and there was
               nothing to carry or the ground was wet and
               unworkable, the employer pays their full wage;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> However, there is a difference between carrying a
               burden and coming without a burden. They are paid
               like idle workers (what one would want to receive to
               consent to neglect his work and be idle).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	The deceived party has only complaints. This is if they
          did not yet begin working; but if they began, we estimate
          the value of what they did;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon was hired to harvest the crop or weave a
               garment for eight Dinarim, and he quit after doing
               half. If what he did is worth six Dinarim, he gets
               only four. He may finish the job to get eight.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If his work is worth four (Gra's text - two)
                    Dinarim, he gets two.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Dosa says, we evaluate the work remaining. If it
               will cost six Dinarim to finish, he gets only two.
               He may finish the job to get eight.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it will cost four (Gra's text - two) Dinarim
                    to finish, he gets four.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	This is the law when there is no loss (if the work is not
          finished immediately). If there is a loss, Reuven hires
          others for more (and Shimon must pay the excess), or he
          tricks Shimon.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> To trick him, he may say 'originally I promised one
               Sela. Now I offer you two' (but he will pay only
               one).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One may pay other workers an extra 40 or 50 at
               Shimon's expense.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This is if there are no other workers there (to
               finish the job for the proper wage). If there are
               other workers there, he hires them. He has only
               complaints against Shimon.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHEN THE EMPLOYER RETRACTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	A Chacham (reciting the above Beraisa):</font></b> He pays them
          their full wage...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rav:</font></b> I would pay them only like idle workers are paid!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa explicitly says that there is a
          difference between carrying a burden...!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #1 - Answer:</font></b> The Tana did not finish before Rav
          objected.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #2 - Answer:</font></b> The Tana finished. Rav said in the
          name of R. Chiya that he would not pay him anything.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa says that they are paid like idle
          workers!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> That is when the owner (Rambam; Rashi - the
          workers) did not see the worksite the night before (the
          employer should have told them not to come). Rav says
          that he would not pay them if he (or they) saw it (Rambam
          - then, he is blameless; Rashi - they should have
          realized that it will be wet and unworkable).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven hired workers to dig trenches and it
          rained (so this cannot be done), if he saw (Rashi -
          showed to them) the worksite the night before, it is
          their loss. If not, Reuven must pay them like idle
          workers.
<br>

<p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN THERE IS NO WORK TO BE DONE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven hired workers to irrigate a field, and
          it rained (so there is no need to water it), the workers
          lose;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 (Rashi):</font></b> If a river overflowed and
               irrigated it, Reuven must pay them like idle workers
               (he knows that this is prone to happen, so he should
               have told them).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2 (Rashba):</font></b> If a river overflowed and
               facilitated irrigating it, Reuven must pay them
               their full wage.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven hired workers to irrigate a field, and
          in the middle of the job, the river dried up:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is not prone to dry up, the workers lose;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it is prone to dry up, if the workers are from
               this city, the workers lose, for they should have
               known that the river is prone to dry up. If they are
               not from this city, Reuven pays them like idle
               workers, for he should have told them.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven hired workers for the day, and they
          finished the job in the middle of the day:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he had other work which is easier or just as
               hard, he may tell them to do it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the only other work he has is harder, he cannot
               force them to do it. He must pay their full wage.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> He should pay them only like idle workers
               (for the rest of the day)!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rava discusses workers who carry burdens.
               (They prefer not to be idle, for) if they are idle
               from work, they grow weak.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A WORKER WHO QUIT IN THE MIDDLE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> (If he quit after doing half) we estimate what
          he did. If is worth six Dinarim, he gets only four. He
          may finish the job to get eight.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim hold that workers have the upper hand.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> He may finish the job to get eight.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the price of labor increased. Shimon
          quit, and Reuven entreated him to finish.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that (since Chachamim say
               that workers have the upper hand) he agreed only for
               more wages. The Beraisa teaches that this is not so.
               Reuven can say, I agreed to feed you nicely.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If his work is worth four (Gra's text - two)
          Dinarim, he gets four (Gra - two).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, initially the price of labor was
          low. Shimon agreed to work for more than the normal wage,
          and later the price of labor increased.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that (since Chachamim say
               that workers have the upper hand) Shimon agreed only
               for more than the going wage. The Beraisa teaches
               that this is not so. Reuven can say that he agreed
               to give extra only when the price of labor was low.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa - R. Dosa):</font></b> We evaluate the work remaining. If
          it will cost six Dinarim to finish, he gets only two. He
          may finish the job to get eight.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He holds that workers have the lower hand.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> He may finish the job to get eight.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the price of labor decreased. Reuven
          cancelled the contract, and Shimon entreated him to let
          him finish.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that (since R. Dosa says that
               workers have the lower hand) he agreed only for a
               lower wage. The Beraisa teaches that this is not so.
               Shimon can say, I agreed to do very good work.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If his work is worth four (Gra's text - two)
          Dinarim, he gets four (Gra - two).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Rav Huna brei d'Rav Noson):</font></b> The case is,
          initially the price of labor was high. They agreed to
          work for less than the normal wage, and later the price
          of labor decreased.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that (since R. Dosa says that
               workers have the lower hand) they agreed for less
               than the going wage. The Beraisa teaches that this
               is not so. Shimon can say that he agreed to work for
               less only when the price of labor was high.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT IS THE HALACHAH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> The Halachah follows R. Dosa.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Contradiction:</font></b> Rav said that a worker can quit in the
          middle of the day!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps R. Dosa taught only about
               Kablanim (workers hired to do a specific task), but
               not about day laborers.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Beraisa):</font></b> If Reuven hired Shimon, and in
               the middle of the day, Shimon (heard that he) lost a
               relative, or he fell ill, if he is a day laborer, he
               is paid for the part of the day he worked. If he is
               a Kablan, he is paid for the part of the task that
               he finished.
<br>
<br>

sjt:
<font><b>1) AN AGREEMENT WITH UNSPECIFIED TERMS</b></font><b>
<br>QUESTION:</b> The Gemara discusses cases in which the standard wage of workers changed after the workers had been hired. In one case, workers were hired for the standard wage, and then the standard wage of workers increased. The workers quit without finishing the job. The employer persuaded them to continue working. The Gemara teaches that when they finish the job, the employer is obligated to pay them only the wage which they originally agreed to receive, and not the new, higher wage. We do not assume that when the employer persuaded them to continue working, he had in mind to pay them the higher wage.
</p><p>
The <b>RAMBAN</b> questions the ruling of the Gemara here from the Tosefta. The Tosefta in Kidushin (2:11) discusses a case in which a seller wants 200 Zuz for a certain object, and a buyer is willing to pay only 100 Zuz for it. They part company without coming to any agreement. They later meet again and conduct the sale without explicit agreement on a price. The Halachah is that the price that the buyer must pay depends on who approached the other and initiated the final transaction. The one who initiated the final transaction is assumed to have acquiesced to the price of the other party.
</p><p>
This contradicts the ruling of the Gemara. In the Gemara's case, the employer approached the workers and asked them to remain in his employ, and yet it is <i>not</i> assumed that the employer acquiesced to pay the new, higher wage of workers. According to the ruling of the Tosefta, the employer should be obligated to pay the higher wage; since he approached the workers, it is assumed that he acceded to their terms. Why does the employer pay only the original wage?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAN</b> answers that in the case of the Gemara, the workers made no mention of the higher wage when they quit the job. Since only one wage was mentioned between the workers and the employer (i.e. the original (lower) wage), we do not assume that the employer agreed to pay them the higher wage when he approached them and asked them to continue working for him. In contrast, in the case of the Tosefta, two prices were explicitly mentioned in the original negotiations, and thus we assume that the one who initiated the ultimate transaction acquiesced to the price of the other.
</p><p>
(b) In his second answer, the <b>RAMBAN</b> explains that even if the workers <i>did</i> mention the new, higher wage at the time that they quit, they still are not entitled to receive that wage from their employer when he persuades them to continue working for him. The reason for this is as follows. If the workers quit before they completed the job, and thereby breached their agreement, the employer is entitled to have complaints ('Ta'arumos') against them. Thus, when the employer approached them and persuaded them to continue working, we may assume that they agreed to continue working for the lower wage in order to avoid being the subject of 'Ta'arumos.' In contrast, in the case of the Tosefta, the seller and buyer never entered into any agreement previously and thus neither is entitled to have 'Ta'arumos' against the other. (This answer is cited by the <b>REMA</b> in Shulchan Aruch CM 221.) (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES A WORKER GET PAID WHEN ONES OCCURRED?</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'> 76b (Rava):</font></b> If Reuven hired workers to dig trenches
               and it rained (so this cannot be done), Sairuha (he
               or they saw) the worksite the night before, it is
               their loss. If not, Reuven must pay them like idle
               workers.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>(Rava):</font></b> If Reuven hired workers to irrigate a field,
               and in the middle of the job, the river dried up, if
               it is not prone to dry up, the workers lose;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If it is prone to dry up, if the workers are from
               this city, the workers lose, for they should have
               known that the river is prone to dry up. If they are
               not from this city, Reuven pays them like idle
               workers, for he should have told them.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 79a (Beraisa - R. Noson):</font></b> If Reuven rented Shimon's
               ship and it sank in mid-journey, if he already paid,
               he does not get his money back. If he did not yet
               pay, he does not pay.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> If he rented a ship to bring <i>this</i> wine,
               if he did not yet pay, he should pay! Shimon says,
               when you have the wine ready, I will supply a ship!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (Rav Papa):</font></b> The case is, he rented <i>this</i>
               ship to bring <i>this</i> wine. (Since neither side can
               fulfill the deal, whoever holds the money keeps it.)
               However, if he rented <i>a</i> ship to bring (any) wine,
               since both sides could fulfill the deal, he would
               pay half (whether or not he already paid).
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (49a):</font></b> If he rented a ship to bring <i>this</i> wine,
               even If he did not yet pay, he must pay. Shimon
               says, when you have the wine ready (obviously, you
               cannot retrieve it from the ocean floor), I will
               supply you a ship to bring it! Presumably, he
               deducts the amount of the price that is for the
               toil, like we say about workers who went to the
               worksite and there was nothing for them to do. (They
               receive only the amount a worker would accept to be
               idle.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rebuttal (Rosh 6:11):</font></b> The Rif holds that Reuven must
               pay (almost) the full wage. This is wrong. When an
               Ones occurred, and the employer was no more aware
               that it might occurr than the workers, the workers
               lose. Therefore, Reuven pays only for the half of
               the way that Shimon transported his wine.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> Rivan (this should say Rivam)
                    wrote similarly. When he hired a ship to bring
                    Stam wine, he is unsure whether Reuven pays
                    half or a quarter.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Drishah (2 DH v'Ayen):</font></b> Rivam obligates only
                    half if one hired a ship for <i>this</i> wine.
                    Therefore, if he hired it for Stam wine, we
                    divide, and he should pay only half of this.
                    Or, since Shimon took it half-way, and he can
                    take it the rest of the way, he must pay half
                    the full price.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 5:3):</font></b> If Reuven rented a
               ship to bring <i>this</i> wine, even If he did not yet
               pay, he must pay. Shimon says, when you have the
               wine ready, I will supply a ship! He deducts the
               amount of the price that is for the toil for half
               the journey, for conducting a ship is unlike being
               idle.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (9:4):</font></b> If the previous night Reuven saw that
               his property needs workers (and in the morning it
               did not), the workers get nothing. What could he
               have done?!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (CM 334 DH ha'Socher):</font></b> Rashi
                    explains that the owner is exempt if he showed
                    the worksite to the workers the previous night.
                    The Rambam explains that he is exempt if he
                    himself saw it
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (6):</font></b> If Reuven hired workers to irrigate a 
               field from a river, and it dried up during the day,
               if it is not prone to dry up, or it is prone to dry
               up and the workers are from this city and they know
               the river's nature, the workers get only for what
               they did. If it is prone to dry up and they are not
               from this city, Reuven pays them the full day's
               wages, for he should have told them.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rosh (6:3):</font></b> The owner knew that one cannot dig in
               his field after it rains. He should have told the
               workers in the morning to hire themselves elsewhere.
               They did not know the nature of his field, so he
               caused them to lose the day's wages. Alternatively,
               since he did not show the field to them the night
               before, they can say 'give us another field to
               plow.' If neither the employer or worker, or both of
               them, should have anticipated an Ones, the worker
               loses, for ha'Motzi mi'Chavero Alav ha'Re'ayah; he
               has the lower hand. If the river is prone to dry up,
               and the workers are not from this city, the employer
               loses, he should have stipulated. From here, R.
               Yo'el ruled that if one hired a teacher and the
               Talmid became sick, if this is rare, the teacher
               loses. If he often becomes sick and the teacher is
               often in the city and knows this, he loses. If the
               teacher is not often in the city, he receives his
               full wage, not just like an idle worker. People who
               learn Torah are like workers who carry burdens.
               Idleness is bad for them. It makes them forget and
               causes heaviness of limbs.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> Also Rabbeinu Meir said so in
                    the name of Rabbeinu Shmuel. This is
                    astounding! He can learn by himself or to
                    others for free, and not lose his own learning.
                    If so, he profits! If it rained while the
                    workers were working, he pays for what they
                    did, and he is exempt for the rest. He did not
                    need to know that rain would come.
<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 311:3):</font></b> If he rented a ship to
               bring <i>this</i> wine, even If he did not yet pay, he
               must pay. Shimon says, when you have that wine, I
               will supply you a ship to bring it! He deducts the
               amount that is for the toil for (the second) half of
               the journey, for conducting a ship is unlike being
               idle.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH ul'Inyan):</font></b> We do not rule like
                    the Rosh, who says that he pays for only half
                    the journey, for the Rif and Rambam disagree.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Keneses ha'Gedolah (brought in Hagahos Tur
                    ha'Shalem 2):</font></b> The Rivam (in Tosfos 79b DH Iy)
                    holds like the Rosh, so a Muchzak can say 'I
                    hold like the Rivam and Rosh', so he need not
                    pay more than half.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH Kosvu Talmidei):</font></b> Talmidei
                    ha'Rashba say that he must pay only if a Kinyan
                    was done. If not, he can retract whenever he
                    wants. Do not say that once he began working,
                    even without a Kinyan neither can retract. This
                    is an Ones like rain (which makes it impossible
                    to work). The workers lose in such a case.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that he pays the rental only for half
               the journey.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (5):</font></b> Tosfos (79b DH Iy) says that if Shimon
                    received the money, he need not return it, for
                    he is ready to fulfill the deal. The Shulchan
                    Aruch holds like the Rif and Rambam, who says
                    that this is unlike a normal worker, who loses
                    only wages for his toil. Here, Shimon lost his
                    entire ship, therefore, he gets like an idle
                    worker, since he can fulfill his side of the
                    deal.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (2):</font></b> The Rivan (in Tosfos 79a DH Ela)
                    defended the Rif. The workers get nothing, for
                    they lost only their toil. Here, Shimon lost
                    his ship. Also the Mordechai, Hagahos
                    Maimoniyos and Terumas ha'Deshen and others say
                    so. The opinion of the Rif and Shulchan Aruch
                    is primary.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (333:1):</font></b> If the previous night Reuven
               saw that his property needs workers (and in the
               morning it did not), the workers get nothing. What
               could he have done?!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (334:1):</font></b> If Reuven hired a worker to
               irrigate a field from a river, and in the middle of
               the day, the river dried up, if it is not prone to
               dry up, or it is prone to dry up and the worker is
               from this city and he knows the river's nature, the
               worker loses.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema:</font></b> Similar, the worker suffers every Ones,
               whether he and the owner both knew, or neither knew.
               If one rented a house to live in and died during the
               rental period, he (i.e. his heirs) must pay only for
               the amount he lived there. The owner is like a
               worker; he should have stipulated. However, some
               disagree, so if rent was paid, it is not returned.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Teshuvas Rema (20):</font></b> When due to Ones it is
                    impossible to do the work or live in the house,
                    the employer (or tenant) must pay only if he
                    was aware and the worker (or owner) was not.
                    This does not apply when the contract can be
                    fulfilled, just he did not intend to do so if
                    Ones will occur.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Mabit )2:205):</font></b> When Reuven rented a ship for this
               wine, the Ones is due to his Tanai (he cannot
               fulfill his side of the deal). When a tenant died,
               the Ones is not due to his Tanai. It is like a Stam
               ship and Stam wine. They divide the rental, even if
               the Ones occurred to only one of them. Here also,
               the owner receives rental for until death.
               Alternatively, this is like a worker hired to
               irrigate a field, and it rained. The employer loses
               only if he knew about the Ones more than the worker.
               The ship owner receives only because he lost his
               ship. Here, the house owner did not lose anything.
               The Rivam says that the ship owner gets only for
               half the journey. If so, all the more so the house
               owner gets rental only until death. Death is common,
               and the owner knew this no less than the tenant.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHAT IS THE LAW WHEN NEITHER SIDE CAN FULFILL THE CONTRACT? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Who is the Tana of the Beraisa?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it is Chachamim, why must it say that he
                    lost a relative or fell sick? Even without
                    Ones, if he quits in the middle, he has the
                    upper hand!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, it is R. Dosa. He taught about
               Kablanim and day laborers.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (and Answer #2 to Question #3 - Rav Nachman bar
          Yitzchak):</font></b> R. Dosa taught only about Kablanim, but not
          about day laborers;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Beraisa discusses a job that will entail a loss
               if it is not finished. All agree that he can quit
               only due to Ones.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection (Mishnah):</font></b> Anyone who deviates or retracts has
          the lower hand.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We understand 'anyone who deviates has the lower
               hand.' The Mishnah is R. Yehudah, who argues (78b)
               with R. Meir about a worker who deviated from what
               he was asked to do.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What does 'anyone who retracts has the
               lower hand' teach?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1:</font></b> It refers to a day laborer, according to
               R. Dosa!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, R. Dosa taught about Kablanim and day
          laborers;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav agrees with R. Dosa regarding Kablanim, he
               argues about day laborers.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3 (and Answer #2 to Question d:2):</font></b> (Really, R.
          Dosa taught only about Kablanim.) 'Anyone who retracts
          has the lower hand' teaches like the following.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven sold a field to Shimon for
               1000, and Shimon paid 200, if Reuven retracts,
               Shimon has the upper hand. He can demand his money
               back, or land worth 200;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Shimon may take Idis (best quantity land).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Shimon retracts, Reuven has the upper hand. He
               can return the money, or give land worth 200.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He may give Ziburis (worst quantity land).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Shimon ben Gamliel says, we teach them not to
               retract. Rather, they write a document saying that
               Shimon bought the field and still owes 800, which he
               may pay later.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Shimon may take the Idis (of Reuven's
          property).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question #1:</font></b> Shimon is a creditor! (He should get
          Beinonis!)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> A creditor collects Beinonis (middle
               quantity land).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question #2:</font></b> Shimon should take from the land he bought!
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	Answer #1 (to both questions - Rav Nachman bar Yitzchak):
          The Beraisa means that he collects from the Idis or
          Ziburis (in the Reisha and Seifa, respectively) of that
          field.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2 (Rav Acha brei d'Rav Ika):</font></b> To raise money to
          buy such an expensive land, Shimon probably had to sell
          his Metaltelim or small fields at a loss. Therefore,
          Reuven is considered a Mazik, who pays from Idis.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>A SELLER ANXIOUS FOR THE MONEY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa #1 - R. Shimon ben Gamliel):</font></b> We teach them not
          to retract. Rather, they write...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Inference:</font></b> Without writing this, Shimon would not acquire
          the field!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Contradiction (Beraisa #2 - R. Yosi):</font></b> If Levi gave Shimon
          a security, and said 'if I retract (from buying), you may
          keep this', and Shimon said 'if I retract, I will give
          double your security (worth of the sale item)', their
          Tanayim take effect;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like R. Yosi holds elsewhere, that Asmachta
               (an exaggerated promise) takes effect.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, he acquires only as much as the
               value of the security (and if the buyer retracts, he
               gets back his security);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Shimon ben Gamliel:</font></b> They argue when he said 'my
               security should acquire (like a security. It is not
               the beginning of payment)';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  However, if Levi bought land and paid half of
                    the price, he acquires it all immediately. The
                    rest of the money can be given years later.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> In Beraisa #1, the seller pursues the buyer to
          get the money. (This shows that he sold only because he
          needs the money. Since Shimon cannot pay the full amount,
          he does not acquire, unless they write...) In Beraisa #2,
          the seller does not show anxiety for the money (so Shimon
          acquires);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> If the seller shows anxiety for the money,
               the buyer does not acquire (unless he pays right
               away). If the seller does not show anxiety for the
               money, the buyer acquires.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven borrowed 100 Zuz and paid it back Zuz
          by Zuz, this is valid payment, but the lender may bear a
          grudge, for he loses small amounts.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	A case occurred in which Reuven sold a donkey to Shimon.
          He showed anxiety for the last Zuz.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> Does Shimon acquire?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Mordechai):</font></b> Rava taught that one Zuz is like
          many. He does not acquire.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rav Acha brei d'Rav Yosef):</font></b> People say in the
          name of Rava that he acquires!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> Rava said so when he sells his field
          due to its poor quality.
<br>

<p>

sjt:
</p><p>
<font><b>2) OUTSTANDING DEBT OWED FOR PARTIAL PAYMENT OF A PURCHASED OBJECT</b></font><b>
<br>QUESTION:</b> The Gemara quotes a Beraisa which discusses the case of a person who sells his field to a buyer for 1000 Zuz, and the buyer gives him 200 Zuz as a down payment, and then one of them retracts. Raban Shimon ben Gamliel states that Beis Din instructs the buyer and seller to conduct the transaction in such a way that neither will be able to retract. When the buyer gives the seller 200 Zuz as a down payment for the field, they should draw up a contract in which the seller writes that he has sold his field to the buyer for 1000 Zuz, that he has received 200 Zuz, and that the remaining 800 Zuz is a <i>loan</i> which the buyer owes him. Neither party may retract from the purchase since the entire purchase was consummated, and now there is merely an outstanding debt that the buyer (the borrower) owes to the seller (the lender).
</p><p>
The Gemara infers that only when the outstanding amount was explicitly converted into a loan is the sale final, but when it was not explicitly converted into a loan the sale is not final. The Gemara asks that this contradicts a different Beraisa in which Raban Shimon ben Gamliel states that the outstanding amount becomes a loan -- and the sale is final -- even without an explicit stipulation to that effect.
</p><p>
The Gemara answers that when the seller is not pressing the buyer for payment, it is assumed that he agrees that the outstanding amount should be converted to a loan, and the sale is final. When, however, he is pressing the buyer for payment, it is clear that he is in need of cash and he wants the sale to take effect only if he receives all of the money. If he receives only a partial payment, the sale is not valid since he had no intention that the sale should take effect unless he would receive all of the money.
</p><p>
This answer of the Gemara contradicts a ruling of the Gemara in Kidushin. The Gemara in Kidushin (26a) teaches that the giving of a bill of sale for the purchase of a field does not effect the Kinyan until the buyer pays the full amount that was agreed upon by the two parties. The Gemara there refers even to a case in which the seller is not pressing the buyer for payment. If the seller is not demanding payment, why does the buyer not acquire the field (and owe the money to the seller as a loan), as the Gemara here rules?
</p><p>
<b>ANSWER:</b> The <b>RAN</b> in Kidushin (10b of the pages of the Rif) explains that the buyer does not acquire the field until he pays the full amount only when the Kinyan being used is a Kinyan other than Kinyan Kesef, such as a Kinyan Shtar. When the giving of money is not the means of the Kinyan, but rather it is just restitution for the field, full payment is necessary in order to ensure the absolute agreement of the seller. In contrast, when the money <i>is</i> being used as the means of the Kinyan (such as in the case of the Gemara here), if the seller agrees to accept partial payment, the Kinyan is complete with partial payment, and the outstanding amount is considered a loan that is owed. (Y. Marcus)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A SELLER ANXIOUS FOR THE MONEY (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Obviously, if Reuven was trying to sell land for 100, and
          was able to sell only a larger land for 200, and he shows
          anxiety for the money, the buyer does not acquire.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> If Reuven was trying to sell land for 100, and
          had he tried harder, he could have sold it, but instead,
          he sold a land for 200, and shows anxiety for the money,
          what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Is this like one who sells land due to its poor
               quality?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This question is not resolved.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>LIABILITY OF ONE WHO RETRACTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven hired a donkey-driver or wagon-
          driver (who then retracted) ...he hires others for more
          or tricks them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> How much more may he pay others at the expense
          of the retractors?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> He may pay up to the wages (of what
          they already worked).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rava - Beraisa):</font></b> He may pay until 40 or 50 Zuz.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> That is when the workers left their
          work Kelim with the employer.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>FULFILLING THE OWNER'S WILL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven rented Shimon's donkey to use it on
          the mountain, and he used it in the valley (or vice-
          versa) for the same distance and it died, he is liable;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he rented it to use it on the mountain and he used it
          in the valley and it slipped, he is exempt. If it became
          overheated, he is liable;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If he rented it to use it in the valley and he used it on
          the mountain and it slipped, he is liable. If it became
          overheated, he is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it became overheated due to the ascent, he is
               liable.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If he rented a donkey and it Hivrikah (this will be
          explained) or was taken for the king's service, Shimon
          tells him, here is your animal (I need not supply you
          with another);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it died or became broken (broke a limb), Shimon
               must give him another donkey to use.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why do we distinguish between slipping
          and overheating in the Seifa, but not in the Reisha?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (d'Vei R. Yanai):</font></b> In the Reisha it died because
          it was unaccustomed to the air (whether he switched to
          the mountain or valley he is liable).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (R. Yosi bar Chanina):</font></b> In the Reisha it died
          from exhaustion (Shimon can say, this would not have
          happened had you taken it in the proper place).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #3 (Rabah):</font></b> In the Reisha a snake bit it.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #4 (R. Chiya bar Aba):</font></b> The Mishnah is R. Meir, who
          says that anyone who transgresses the owner's wishes is a
          robber.
<br>
<br>

sjt:
<font><b>1) HIRING NEW WORKERS AT THE EXPENSE OF THE WORKER WHO QUIT</b></font><b>
<br>QUESTION:</b> The Mishnah (75b) states that when a worker retracts from his commitment to the employer and other workers are not readily available for hire, the employer is entitled to hire new workers with the wages that he owes the worker who quit. Rav Nachman says that the employer may pay up to the full wage of the worker who quit, but he may not hold the worker responsible to pay more. The Gemara quotes a Beraisa which states that the employer may hire a new worker at the original worker's expense even for 'forty or fifty Zuz' (which is far more than the wage of the original worker). The Gemara explains that the Beraisa refers to a case in which the worker left his package of tools in the house of the employer.
</p><p>
Why does the fact that the worker left his package in the house of the employer entitle the employer to hire new workers at a much higher price?
</p><p>
<b>ANSWER:</b> Many Rishonim (see <b>ROSH</b> and <b>RAMBAN</b> in Kidushin 8a) infer from the Gemara that by merely handing over an object as collateral (Mashkon) one becomes obligated to pay the recipient of the Mashkon, even without making any other Kinyan. Since the worker gave his package as a Mashkon to the employer, he is obligated either to do the work or to pay the employer the value of the Mashkon.
</p><p>
Other Rishonim (see <b>TOSFOS</b> to Kidushin 8a, DH Manah) disagree and maintain that handing over a Mashkon does not effect any obligation. According to these Rishonim, the reason why the employer is entitled to hire new workers at an exorbitant price is because of the damage caused to him by the original worker. Since the original worker quit, the employer now must pay an exorbitant price to hire new workers. Since that loss was caused by the original worker, he is responsible to compensate the employer.
</p><p>
However, if the employer is entitled to hire new workers at the expense of the original worker at an exorbitant price because the original worker caused him damage, then why must he be in possession of the worker's package of tools? Even if he is not holding on to the worker's tools, the worker should still be obligated because of the damage that he caused to the employer! (<b>MA'AYANEI HA'CHOCHMAH</b>)
</p><p>
The <b>MA'AYANEI HA'CHOCHMAH</b> answers that it is very unlikely that the employer will not be able to find workers for hire for double the price of the original worker (in a case where the original worker quit after completing half of the job). Therefore, if the employer is not in possession of the worker's package of tools, he is not believed to claim that he cannot find workers at double the price of the original worker. If, however, the employer is in possession of the worker's package of tools, then he is believed to say that he cannot find workers even at double the price. The Ma'ayanei ha'Chochmah concludes that this is a Takanas Chachamim. (Y. Marcus)
</p><p>


<font><b>2) PAYING RENT FOR AN ANIMAL THAT DIED</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that if a person rents a donkey and stipulates that he needs it to carry a load over a mountain, and instead he uses it to carry a load in the valley and the donkey dies, he is obligated to pay the owner for the value of the donkey. Even though a renter normally is exempt from liability in the case of the death of the animal (a natural death, or death as a result of normal usage, is considered an Ones), when he misuses the animal he is liable.
</p><p>
In such a case, in which the renter must pay for the full value of the animal he rented because it died as a result of misuse, does the renter also have to pay the rental fee for the amount of time that he used the animal?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RITVA</b> cites in the name of his teacher ('Mori') that the renter is <i>not</i> obligated to pay the rental fee. His reasoning is that since the renter misused the object, he is comparable to a person who seized someone else's object and used it without permission ('Sho'el she'Lo mi'Da'as'). Such a case is discussed in Bava Kama (97a), where the Gemara concludes that the perpetrator's obligation is determined by the victim: he may demand to be paid for any damages that were caused or he may demand to be paid rent (but he may not claim both). Similarly, in the case of the Gemara here, if the owner of the donkey collects damages, he is not entitled to collect rent.
</p><p>
(b) The <b>RITVA</b> himself disagrees and maintains that the case of the Mishnah here is not comparable to the case in the Gemara in Bava Kama. In the case of the Gemara there, the object came into the hands of the person in an illegal way (by theft, since one who is 'Sho'el she'Lo mi'Da'as' is considered a Gazlan), and if he is obligated to pay for damages based on the theft, he is exempt from paying rent, because a thief is not obligated to pay rent for the object that he steals (he is obligated only to return the object or the object's value). In contrast, in the case of the Mishnah, the person acquired the object legally, through a rental agreement. As a renter, his obligation to pay for damages (i.e. for the death of the donkey) does not take effect until the donkey actually dies. Hence, he is obligated to pay rent for the use of the donkey from the time that he obtained it until its death. (Of course, even according to this opinion, he is obligated only to pay for the time that he used the animal and not the entire rental fee.) (See also <b>NESIVOS HA'MISHPAT</b> CM 309:1.)
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WORKERS WHO RETRACTED FROM DAVAR HA'AVUD</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'> 75b (Mishnah):</font></b> If Reuven hired a donkey-driver to
               bring flutes for a wedding or funeral, or workers to
               take soaking flax out of the water, or any Davar
               ha'Avud (he will lose if the job is not completed
               now), and they retracted, if there are no other
               workers there (to do the job for the contracted
               wage), he hires others for more (and those who
               retracted must pay the excess), or tricks the
               retractors.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 76b (Beraisa):</font></b> If it is Davar ha'Avud, Reuven hires
               others for more, or he tricks Shimon (the worker).
               To trick him, he says 'originally I promised one
               Sela. Now I offer you two' (but he will pay only
               one). One may pay other workers an extra 40 or 50 at
               Shimon's expense.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This is if there are no other workers there. If
               other workers are there, he hires them. He has only
               complaints against Shimon.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 78a (Rav Nachman):</font></b> He may pay others, at the expense
               of the retractors, up to the wages of the
               retractors.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (Rava - Beraisa):</font></b> He may pay until 40 or 50
               Zuz.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (Rav Nachman):</font></b> That is when the workers left
               their Klei Umnos (tools of their craft) with Reuven.
<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 (6:6):</font></b> If the workers did not leave
               their Klei Umnos with Reuven and he hired others for
               more than the value of what the first workers did,
               Reuven pays the excess.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> Rashi explains that Reuven may pay up to the
               wages of what the retractors already worked. Some
               say that he can pay double, just like 'until their
               value' regarding Mekach Ta'os refers to double. The
               Yerushalmi supports this. According to Rashi, if he
               already paid them for what they did, he cannot make
               them return it. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> If one said 'be Mekudeshes to me
                    for a Maneh', and he gave her a security, she
                    is not Mekudeshes (Kidushin 8b). Since the
                    Maneh is not here, the security takes no
                    effect. Similarly, if one promised to give a
                    certain amount and gave a security, there is no
                    lien on the security, unless he was Makneh
                    through a proper Kinyan and then gave a
                    security. It was said in the name of R. Tam
                    that if one gave a security on condition to
                    give a Maneh, the receiver may hold the
                    security until he gives it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 9:4):</font></b> If Reuven's workers
               retracted from Davar ha'Avud, whether he hired
               standard workers (e.g. by the day) or Kablanim (they
               accepted to do the task for a set wage), the workers
               can retract only if Ones occurred, e.g. illness or
               death of a relative. If they retracted without Ones,
               Reuven hires others for more at the expense of the
               retractors or tricks them. To trick them, he says 'I
               hired you for one. Take two, and finish the job',
               and he gives to them only what he initially
               promised. Even if he gave to them two, he takes back
               the addition. To hire others at their expense, he
               hires other workers to avoid a loss. Whatever he
               pays the latter workers more than he promised to the
               retractors, he takes from the retractors. If he had 
               money of the retractors, he may pay the latter
               workers up to 40 or 50 Zuz per day per worker, even
               though the worker received only three or four. This
               is when he cannot find other workers to finish the
               job for the initial wage. If such workers are
               available, he hires them and has only complaints
               against the retractors. For a standard worker, we
               estimate the value of what he did. If he was a
               Kablan, we estimate the value of what remains to be
               done.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rashba and Ramban hold that
                    when Reuven has their Kelim, he can hire others
                    at their expense even if it is not Davar
                    ha'Avud, but the price of labor rose. The
                    Rambam explains that the Beraisa permits 40 or
                    50 Zuz per day per worker; this is an
                    exaggeration (surely, one would not need to pay
                    so much, for workers normally get three or four
                    per day).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (2):</font></b> The Ra'avad derives that one may trick
               workers who retract even if they did not start yet.
               The Reisha says 'one who hired', and we established
               it to be before they went to work. Also the Seifa
               (which permits tricking workers) says 'one who
               hired'! The Beraisa says 'this is if there are no
               other workers there.' This is obvious! Why should
               Reuven be allowed to use their money to pay more
               than is needed? It seems that this refers to
               tricking them. If other workers were there and he
               tricked the retractors, he must pay what he
               promised.
<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 333:6):</font></b> To hire others at their
               expense, he hires others workers to avoid a loss.
               Whatever he pays the latter workers more than he
               promised to the retractors, he takes from the
               retractors up to their wages.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (25):</font></b> The Rosh and Tur explain that if the
                    worker was hired for two, he intends to give to
                    Reuven the same amount from his own money if he
                    will retract. Therefore, Reuven may hire others
                    for four. This is like one who agreed to buy
                    and gave a security, and the seller obligates
                    himself to return double if he will retract.
                    The Rambam and Shulchan Aruch cite the Gemara,
                    but they hold like the Rosh, for they say
                    'whatever he pays the latter workers more than
                    he promised to the retractors, he takes <i>from
                    the retractors</i>. This connotes that he takes
                    from their pockets, unlike Rashi who says that
                    he can only withhold what he owed to them.
                    Also, they do not distinguish between whether
                    or not he paid them yet.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (32):</font></b> The Magid Mishneh and Beis Yosef
                    hold that Rashi holds like the Rambam. This is
                    wrong. I do not know why R. Yerucham holds that
                    Rashi's opinion is primary, against R.
                    Yerucham's Rebbi (the Rosh), especially since
                    the Rosh's opinion is primary and the
                    Yerushalmi supports it!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Darchei Moshe (5):</font></b> Hagahos Maimoniyos (Hilchos
                    Sechirus 9:5) says that a teacher is like a
                    worker, unless he contracted to teach half a
                    Sefer (or something similar). Then, he is a
                    Kablan. The Mordechai (456) says that in either
                    case he is not a worker who can retract in the
                    middle of the day, for we cannot apply 'Bnei
                    Yisrael are My slaves, not slaves of slaves.'
                    If many, i.e. at least three, hired him, they
                    cannot retract even before he began, for acts
                    of the Rabim do not need a Kinyan.If there was
                    an Arev (guarantor), even without a Kinyan the
                    Arev is liable to pay, even if he did not yet
                    start working (and the employer retracted).
                    Since he cannot work elsewhere, it is as if he
                    started.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If he had their money, he may
               pay the latter workers up to 40 or 50 Zuz per day
               per worker, even though the worker only received
               three or four.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav ha'Ramban Zal):</font></b> The
                    Ramban (also Nimukei Yosef cited above) says
                    that if one paid 100, the retractors do not pay
                    this, for it is not a proper work contract.
                    Workers normally get only up to 40 or 50. It
                    seems that the Rambam disagrees. He holds that
                    it is an exaggeration. There is no difference
                    between 100 and 40 or 50!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (26):</font></b> The amount is what is normal to pay
                    for Davar ha'Avud. This can be more or less
                    than 40 or 50. It seems that the Rambam and
                    Shulchan Aruch mean this, unlike the Beis Yosef
                    and Darchei Moshe wrote.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (33):</font></b> The Shulchan Aruch says like the
                    Rambam and Semag. They do not say that the
                    workers's money was a security or that they are
                    Makneh it. This is explicit in Tosfos (Kidushin
                    8b DH Maneh) and Piskei Tosfos, and the Tur
                    connotes like this. Semag and Ri b'Rebbi
                    Yitzchak say that it is only they did a Kinyan
                    and stipulated that he can hire workers from it
                    if they will retract. The Mordechai says that
                    Rashi holds like Tosfos; this is primary.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (34):</font></b> The Shulchan Aruch says like the
                    Rambam and Semag. They do not stipulate that
                    the workers' money was their Klei Umnos. Also
                    the Tur and R. Baruch connotes that it can be
                    any money of theirs. The Mordechai says that
                    Rashi holds that it is only their Klei Umnos; I
                    disagree. Rashi merely says that this is a
                    typical case in which workers deposit their
                    tools with Reuven. I think that also R. Baruch
                    explains Rashi this way, just he disagrees (and
                    holds that the money <i>cannot</i> be their Klei
                    Umnos), for if so Meshichah was done on their
                    Kelim and they cannot retract! I say that Rashi
                    agrees that if Meshichah was done, they cannot
                    retract for any amount. Here they retract
                    against Reuven's will, and he cannot force
                    them, e.g. there is no Beis Din or they do not
                    heed Beis Din, or we discuss a worker (not a
                    Kablan).
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WORKERS WHO CUASED A LOSS BY RETRACTING </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Where did R. Meir say this?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1 (Mishnah - R. Meir):</font></b> If a dyer was told to dye
          wool red, and he died it black, or vice-versa, he pays
          the value of the wool he received;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah says, the owner pays the increased value
               or the dyer's expenses, whichever is smaller.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps R. Meir's reason is that the dyer
          acquires it through changing it!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2 (Beraisa):</font></b> Money collected (to give to the poor
          for the festive meal on Purim) must be given to the poor
          for Purim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Money collected for the poor of a city (Tosfos - for
               Purim) must be given to the poor of that city (some
               texts delete this clause). We are not concerned
               (Rashi - that this is too much for Purim, that some
               should be given for regular Tzedakah; Ritva - to
               check that the recipient is truly poor);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We may slaughter calves for the poor to eat on
               Purim; the extra meat (is sold, the money) goes to
               Tzedakah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Eliezer says, the poor people must use Purim
               money for the Purim meal. They may not use it to buy
               a shoe strap without stipulating in front of the
               people of the city.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> This (Maharsha - the entire Beraisa until now) was
               said in the name of R. Meir. (Perhaps, since he
               intends for Tzedakah, the only reason to forbid is
               because one who deviates is a robber. The Ra'avad in
               Shitah Mekubetzes says so regarding the next case.)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> R. Shimon ben Gamliel is lenient (the money may be
               used for other things).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Rejection:</font></b> There, the people gave the money only for the
          Purim meal. It belongs to the giver until it is used for
          the meal!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #3 (Beraisa - R. Meir):</font></b> If an Oni received money
          to buy a cloak, he may not use it for a different
          garment, for this deviates from the giver's intent.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps we are concerned lest the giver
          announced publicly that he will buy a cloak for the poor
          man, and they will suspect that he did not keep his
          promise.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Rejection:</font></b> If so, why does the Beraisa say 'for this
          deviates from the giver's intent'? It should say 'due to
          suspicion'!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, the reason is because one who deviates from
               the giver's intent is a robber.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHEN MUST THE OWNER SUPPLY ANOTHER DONKEY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he rented a donkey and it Hivrikah...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What does Hivrikah mean?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Chachamim of Bavel):</font></b> It is a speck in the eye.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> Worms (Avzakah) corroded its legs.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Some say that once a man was killed for saying that
               he saw moths in the king's linen garments. Moths eat
               woolen clothing, not linen.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Some say that he actually said that it was in the
               woolen clothing, and he was spared.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If it was taken for the king's service, Shimon
          tells him, here is your animal.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav):</font></b> This is only when the king returns the animals
          after using them. If not, Shimon must supply him with
          another donkey.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> Whether or not the king returns them, if it was
          taken in the same direction that Reuven was going, Shimon
          can say 'here is your animal.' If it was not taken the
          way Reuven was going, Shimon must supply another.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If he rented a donkey and it Hivrikah
          or went crazy, Shimon can say 'the animal is in front of
          you.' If it died or was taken for the king's service,
          Shimon must supply another.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This is when it was not taken in the
               direction that Reuven was going.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Seifa - R. Shimon ben Elazar):</font></b> If it was
               taken in the same direction that Reuven was going,
               Shimon can say 'the animal is in front of you.' If
               not, Shimon must supply another.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference:</font></b> The first Tana does not distinguish in
               which direction it was taken!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Shmuel holds like R. Shimon ben Elazar.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2:</font></b> The entire Beraisa is R. Shimon ben Elazar.
          The Beraisa is abbreviated, it should say as follows:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven rented a donkey and it Hivrikah or went
               crazy, Shimon can say 'here is your animal.' If it
               died or was taken for the king's service, Shimon
               must supply another;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is when it was not taken in the same direction
               that Reuven was going. If it was taken in the same
               direction, Shimon can say, here is your animal.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This is R. Shimon ben Elazar's opinion, who says
               that Shimon must supply another if it was taken in a
               different direction.
<br>

<p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN MUST THE OWNER SUPPLY ANOTHER DONKEY? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> We cannot say that the entire Beraisa is R.
          Shimon ben Elazar. He says that if Reuven rented a donkey
          to ride on and it Hivrikah or went crazy, Shimon must
          supply another!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rabah bar Rav Huna):</font></b> That is only when he rented
          it to ride on (for this can lead to mortal danger). The
          Beraisa discusses  one who rented it to carry a burden.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> If he needs it to carry glass Kelim,
               that is like riding (they will break if it drops
               them).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav):</font></b> If Reuven rented a donkey to ride on and it died
          in the middle of the way, he must pay for the rental
          until then. He has only complaints.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he can find other donkeys to rent, why does he
               have complaints?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he cannot find another donkey to rent, why must
               he pay?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, he cannot find another donkey to rent
          (for the same rate). He must pay, because he did benefit
          getting to here.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon said 'I rent a donkey to you', he must
               provide another!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said 'I rent this donkey to you', if Reuven
               can buy another donkey with the money of the
               carcass, he may!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he cannot buy another donkey with
          the money of the carcass.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If he can rent another donkey with the money of
          the carcass, he may!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> This is like Rav taught elsewhere, that we do not
          consume the principal.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rav):</font></b> If Reuven rented a donkey and it died in the
          middle of the way, if he can buy another donkey with the
          money of the carcass, he may. He may not use the money to
          rent a donkey.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> The money can be used even to rent another
          donkey.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CONSUMING THE PRINCIPAL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav holds that we do not consume the principal.
          Shmuel holds that we may consume the principal.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> (Reuven took Shimon's tree according
          to Mashkanta of Sura. I.e. Reuven eats the Peros, and
          after a set time, the tree goes back for free.) If the
          tree dried (and no longer gives fruit) or was cut,
          neither Reuven nor Shimon may use it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They should sell it and buy land. Reuven eats the
               Peros.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Since the land reverts to the owner in Yovel, the
               principal is consumed!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case is, the land was sold for 60 years.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> If one sells land for 60 years, it
               does not return in Yovel. 'Lo Simacher li'Tzmisus' -
               Yovel returns only land that would never return if
               not for Yovel.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> In any case, the land returns after 60 years,
          so the principal is consumed!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, The Beraisa discusses a time when
          Yovel does not apply.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Support:</font></b> If the Beraisa permitted consuming the
          principal, there would be no need to buy land. He could
          use the tree for firewood!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection:</font></b> Really, one may consume the principal. The
          Beraisa suggests buying land when the Mashkanta finishes
          before Yovel. This way, Shimon (the borrower) gets to use
          the land after the Mashkanta ends;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Alternatively, even if the Mashkanta ends after
               Yovel, Shimon might be able to repay the loan and
               redeem the Mashkanta before Yovel.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>USING A SHIP FOR HALF A JOURNEY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - R. Noson):</font></b> If Reuven rented Shimon's ship and
          it sank in mid-journey, if he already paid, he does not
          get his money back. If he did not yet pay, he does not
          pay.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he asked to rent this ship to bring wine, if he
               already paid, why doesn't he get his money back? He
               wants the ship to bring (different) wine, and Shimon
               cannot supply it!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, he rented a ship to bring this wine.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> If he did not yet pay, why doesn't he pay?
          Shimon says, when you have the wine ready (obviously, you
          cannot retrieve it from the ocean floor), I will supply
          you a ship to bring it!
<br>
<br>

sjt:
<font><b>1) THE BOAT THAT SANK WITH THE WINE</b></font><b>
<br>QUESTION:</b> The Gemara discusses a case in which a person rented a boat from a boat owner (without specifying any particular boat -- 'Sefinah Stam') to transport specific barrels of wine ('Yayin Zeh'), and the boat sank at sea with the wine. The renter is obligated to pay rent for the boat, because the boat owner may claim that he is willing to provide another boat to transport the wine. The renter must pay rent because it is <i>his</i> misfortune that he no longer has those specific barrels of wine to transport (since they sank).
</p><p>
Why does the renter have to transport those specific barrels of wine? Why can he not accept a different boat from the boat owner and transport different barrels of wine? The Gemara earlier (77a) quotes Rava who says that if an employer hired workers for one day to do a specific job and the workers finished the job by midday, the employer is entitled to give them other work to do (of an equivalent degree of effort as the first job). It is clear that an employer is entitled to substitute the specific work for which he initially hired workers to do for other work (as long as the new work is not more burdensome). The same should apply to a renter: he should be entitled to substitute the specific work for which he initially rented the boat for another form of work. Why, in the case of the Gemara here, may the renter not bring other barrels of wine to be transported, and demand that the boat owner provide him with another boat? (See <b>HAGAHOS ASHIRI</b> to <b>ROSH</b> 6:5.)
</p><p>
<b>ANSWER:</b> The <b>KETZOS HA'CHOSHEN</b> (311:1; see also <b>SHACH</b> 311:1) writes that there are a number of answers to this question, but that the most likely answer is that only in the case of the Gemara here can the owner of the boat limit the rental to the transport of the specific barrels of wine. Since he lost the boat in the process of transporting the wine, the renter is not entitled to demand another boat with which to transport other wine. Rather, the renter must pay the rental fee for the original boat. In contrast, in the case of the workers who finished the job early, the workers have not lost anything in the process of doing the original work, and therefore the employer is entitled to give them other work. (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT IS THE LAW WHEN NEITHER SIDE CAN FULFILL THE CONTRACT?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> If Reuven rented a donkey to ride on and it
               died in the middle of the way, he must pay for the
               rental until then.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is even if he cannot find another donkey to
               rent. He must pay, because he did benefit getting to
               here.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If Shimon said 'I rent <i>this</i> donkey to you', if
               Reuven can buy another donkey with the money of the
               carcass, he may! If he cannot buy another donkey, he
               may not ust the money to rent another donkey, Rav
               holds that we do not consume the principal.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Shmuel):</font></b> The money can be used even to rent another
               donkey.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Beraisa - R. Noson):</font></b> If Reuven rented Shimon's ship
               and it sank in mid-journey, if he already paid, he
               does not get his money back. If he did not yet pay,
               he does not pay.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> If he asked to rent <i>this</i> ship to bring
               wine, if he already paid, why doesn't he get his
               money back? He wants the ship to bring (different)
               wine, and Shimon cannot supply it!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, he rented a ship to bring <i>this</i>
               wine.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rejection:</font></b> If he did not yet pay, why doesn't he
               pay? Shimon says, when you have the wine ready
               (obviously, you cannot retrieve it from the ocean
               floor), I will supply you a ship to bring it!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #2 (Rav Papa):</font></b> Rather, he rented <i>this</i> ship
               to bring <i>this</i> wine. However, if he rented <i>a</i> ship
               to bring (any) wine, since both sides could fulfill
               the deal, he would pay half (whether or not he
               already paid).
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven rented Shimon's ship and
               unloaded his cargo in the middle, he pays the rental
               for as far as he went. Shimon has only complaints.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question:</font></b> If Shimon can find someone else to rent
               the ship for the rest of the way, why does he have
               complaints?
<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 (6:11):</font></b> We learn from this that if one
               rented <i>this</i> ship to bring Stam wine, even if he
               already paid, he gets his money back. He says 'bring
               the ship, and I will bring (different) wine', and
               Shimon cannot supply the ship, for it sank. If he
               rented <i>a</i> ship to bring Stam wine, Shimon can say
               'bring wine, and I will bring a ship', and Reuven
               can say 'bring a ship, and I will bring wine.' Since
               Shimon did not bring a ship, and Reuven did not
               bring wine', they are equal, therefore, they divide.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> When he rented <i>this</i> ship to bring <i>this</i>
               wine, Reuven need not pay for the transport of his
               wine half-way (if he did not yet pay), since it did
               not help him. It is unlike when the donkey died in
               the middle, for then the load is intact and he
               benefitted (it is halfway to his destination). When
               he rented <i>a</i> ship to bring (Stam) wine, if one of
               them brought his part of the deal, and the other did
               not, the latter loses. They divide when neither
               supplied his part. The one holding the money cannot
               say 'until you bring yours, we wil leave the money
               with me, for I need not pay until then', for the
               other can say 'I need not bring mine until you bring
               yours, for I do not believe that you will bring. I
               will toil and spend my money for nothing.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 5:3):</font></b> If Reuven rented
               Shimon's ship and it sank in mid-journey, if he
               rented <i>this</i> ship to bring Stam wine, even if he
               already paid, he gets his money back. He says 'bring
               the same ship I hired, for there is great Hakpadah
               (reason to be particular) about the ship, and I will
               bring different wine.' If he rented a ship to bring
               <i>this</i> wine, even If he did not yet pay, he must 
               pay. Shimon says, when you have the wine ready, I
               will supply you a ship! If he rented <i>this</i> ship to
               bring <i>this</i> wine, if he already paid, he does not
               get his money back. If he did not yet pay, he need
               not pay, for neither side can fulfill his side of
               the deal. If he rented <i>a</i> ship to bring Stam wine,
               they divide.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (4):</font></b> If Reuven rented Shimon's ship and
               unloaded his cargo in mid-journey, he pays the
               entire rental. If he can find someone to rent it for
               the rest of the way, he does, and Shimon has only
               complaints.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rambam (5):</font></b> I learn from here that a tenant
                    renting until a set time may rent to another
                    family no bigger than his own until the end of
                    the time. Some say that he cannot rent it to
                    another; I disagree.
<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 311:2):</font></b> If Reuven rented Shimon's
               ship and it sank in mid-journey, if he rented <i>this</i>
               ship to bring Stam wine, even if he already paid, he
               gets his money back. He says 'bring the ship, and I
               will bring different wine', for there is great
               Hakpadah about the ship.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (2):</font></b> The Shulchan Aruch teaches like the
                    Rosh (brought in the Tur below) that when the
                    load is here, there is no Hakpadah, and one may
                    change the ship (or load), even if he said
                    'this'. This is due to Midas Sedom (if one can
                    benefit another without losing, he must). The
                    Rambam (Hilchos Shechenim 2:1) says that if
                    brothers inherited a field of uniform quality,
                    and one of them owned a field bordering it, we
                    give to him a share bordering his field, die to
                    Midas Sedom. The Rosh (Bava Basra 1:46) says
                    that his brothers can say 'we hold that it is
                    worth more.' I.e. one can be Makpid when he
                    will gain through this. This is unlike those
                    who explain that here the Rosh allows Hakpadah,
                    for he suffered a loss (his wine sank). The
                    Ramban says that it is because here he will
                    gain. If Reuven unloaded his cargo in mid-
                    journey, if he can find someone to rent it for
                    the rest of the way, he does. The Rambam learns
                    from this that a tenant can rent to another
                    family no bigger than his own. A ship that sank
                    is different, for he cannot fulfill his Tanai.
                    Ir Shushan says that the Hakpadah is that the
                    ship was sturdier than others, or the wine was
                    lighter (has less dregs) or the barrels were
                    smaller than others. This is wrong. He cannot
                    claim this, for the ship sank!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (1):</font></b> The Ir Shushan just means that one
                    can give any reason he wants for his Hakpadah.
                    Surely, the Rambam means this. It does not
                    depend on whether or not the load is here.
                    There is no proof from one who unloaded in mid-
                    journey. Rather, there are two conditions to
                    have Hakpadah. (1) His ship sank (he lost), and
                    (2) the wine is not here, so there is no reason
                    to bring another ship. Ir Shushan (5) connotes
                    that both are needed. Therefore, if only the
                    wine sank, Reuven can bring other wine, even
                    though he hired a ship for <i>this</i> wine. There
                    is no reason to be more Makpid about changing
                    wine when the first wine sank than when it did
                    not. However, if he hired <i>this</i> ship for Stam
                    wine, perhaps even if the wine did not sink he
                    need not accept a different ship. It seems that
                    this is the Halachah.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (1):</font></b> The Halachah is the same even without
                    the Hakpadah for this ship (because it is
                    sturdy), e.g. in Sa'if 3, Shimon can refuse to
                    take different wine. Rather, this is letter of
                    the law.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If it is possible to take the ship from the
               water and rent another ship with the money or
               anything that pertains to the ship, he rents
               another, like we say about a donkey that died in the
               middle (310:2).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (4):</font></b> This means that Shimon cannot stop
                    Reuven from doing so. Shimon need not toil to
                    take the ship from the water.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (3):</font></b> If he rented a ship to bring 
               <i>this</i> wine, even If he did not yet pay, he must
               pay. Shimon says, when you have that wine, I will
               supply you a ship! He deducts the amount of the
               price that is for the toil for half the journey, for
               conducting a ship is unlike being idle.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tur:</font></b> The Ramah learns from here that if one
                    rented a donkey or ship to transport a specific
                    load, he cannot change to a different load even
                    if it is no heavier. Similar, if one rented a
                    (specific) donkey, the owner cannot change to a
                    different donkey or ship. Some say that
                    normally, one can change, for there is no
                    reason to object. Here, there is reason to
                    object! The Rosh holds like this.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (4):</font></b> If he rented <i>this</i> ship to
               bring <i>this</i> wine, if he already paid, he does not
               get his money back. If he did not yet pay, he need
               not pay, for neither side can fulfill his side of
               the deal.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (6):</font></b> The one holding the money can say
                    'your bad fortune caused this', so you suffer
                    the loss.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (5):</font></b> If he rented <i>a</i> ship to bring
               Stam wine, they divide, i.e. if neither wants to
               fulfill his side of the deal.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (7):</font></b> It seems that this is even if he did
                    not yet take it half-way, since they are
                    equally unable to fulfill the deal. However,
                    this is not necessarily so.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (3):</font></b> This is necessarily so.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If Reuven brought wine and
               Shimon did not bring a ship, even if Reuven paid he
               gets back his money.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (8):</font></b> When only one of them can fulfill his
                    side, he need not do so. He can say`'the other
                    cannot fulfill his side. I will not toil in
                    vain!'
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DOES A WORKER GET PAID WHEN ONES OCCURRED? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rav Papa):</font></b> The case is, he rented this ship to
          bring this wine. (Since neither side can fulfill the
          deal, whoever holds the money keeps it.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, if he rented a ship to bring (any) wine,
               since both sides could fulfill the deal, he would
               pay half (whether or not he already paid).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven rented Shimon's ship and unloaded
          his cargo in mid-journey, he pays the rental for the
          portion traveled. Shimon has only complaints.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon can find someone else to rent the ship for
               the rest of the way, why does he have complaints?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he cannot find someone else to rent it the rest
               of the way, Reuven should pay the full fare!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Really, he can find someone else to rent it.
          He has complaints due to the wear and tear on the ship
          through loading and unloading.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection:</font></b> If so, Reuven should have to pay for this!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, he added cargo along the way. (He had
          agreed to pay according to the load; he pays for the
          added cargo for the second half of the way.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Why does Shimon have complaints?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Shimon was expecting to go and return quickly.
          Reuven caused a delay.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Now Shimon must buy extra ropes (to pull it
          from the bank, since the ship is heavier and it must go
          in mid-river, where the water is deeper). Had Shimon
          known from the beginning, he would have brought enough
          ropes.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>ONE WHO RENTS A DONKEY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If one rents a donkey to ride on, he may put
          on it his garment, food and drink for this journey. The
          owner can stop him from putting any more on it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	The owner can put on it the donkey's food and his own
          food for one day. The renter can stop him from putting
          more than this.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they will be able to buy food on the way, also
               the owner should be able to limit the renter to one
               day's food!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If they will not be able to buy food on the way,
               also the owner should be allowed food for the whole
               journey!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> The case is, it is possible but hard
          to buy in between where they lodge at nights.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The owner is used to buying food this way, so he
               must do so;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A renter is not used to buying this way, so he may
               take food for the whole journey.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If one rented a donkey for a man to ride on,
          he may not have a woman ride on it (Rashba - if a woman
          rode, this is not negligence to be liable for Ones, but
          there are places where they charge more for women to
          ride);
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	If he hired it for a woman to ride on, he may have a man
          ride on it;
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	When he said that a woman will ride, she may be big or
          small, even pregnant, even nursing.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Version #1 (Rashi) Question:</font></b> If he may take a nursing
          mother (i.e. with her baby), all the more so he may take
          a pregnant woman!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> The Beraisa permits even a pregnant
          woman who is nursing.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Inference (Abaye):</font></b> (The Mishnah already taught a big
          woman, and also needed to teach a pregnant woman.) This
          teaches that a fish with a big stomach weighs more.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Version #2 (R. Tam) Question:</font></b> If he may take a pregnant
          woman, all the more so a nursing mother! (One who was
          born helps bear his own weight. Also, a pregnant woman
          has much blood inside.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> The Beraisa permits even a pregnant
          woman who is nursing.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Inference (Abaye):</font></b> We learn (from the fact that a
          pregnant woman is heavier than a nursing woman with her
          baby) that a fish with a big stomach weighs more. (end of
          Version #2)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> Why do we need to know this?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> It is useful for purchasing. (One should know
          that much of the weight of a fish with a big stomach is
          the innards, which people do not eat.)
<br>

<p>

sjt:
</p><p>
<font><b>2) PAYING FULL RENT FOR A BOAT THAT SANK</b></font><b>
<br>QUESTION:</b> The Gemara states in the name of Rebbi Nasan that in a case in which a person rented a specific boat ('Sefinah Zu') for the purpose of transporting specific barrels of wine ('Yayin Zeh'), and the boat sank after traveling only half of the distance for which it was rented, the law is that 'if he has already paid, then the money is not refunded, but if he has not yet paid, then he is exempt.'
</p><p>
Why, if he has already paid, does the renter not receive a refund for at least half of the cost of the boat? The boat transported his wine only half of the way! (<b>TOSFOS</b> DH Iy)
</p><p>
<b>ANSWER: TOSFOS</b> answers (as explained by the <b>KEHILOS YAKOV</b> 46:4) that there are two types of rentals. When one pays the entire sum of rent at the commencement of the rental term, the object (such as the boat) becomes completely his (he has temporary ownership) for the purpose for which he rented the object (in the manner of 'Dekel l'Perosav'). Hence, even if he did not succeed in using the object in the manner in which he intended (such as when the boat sank), he nevertheless is obligated to pay the entire rental fee because he acquired the object. If, however, the renter did not pay at the commencement of the rental term, the rental is viewed merely as a right to use the object of the other person (and not that the renter actually has ownership of it), and thus the renter pays only for as much use as he was able to obtain from the object.
</p><p>
Therefore, in Rebbi Nasan's case, if the renter has already paid the entire rental fee for the boat, then he has acquired the boat and is not entitled to a refund. If he has not yet paid the rental fee, then he has not acquired the boat and he is obligated to pay only for the amount of use that he obtained from the object. Since in this case the use of the boat was virtually worthless (the boat sank and did not accomplish anything), the renter is exempt. (Y. Marcus)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>BREACHES OF CONTRACT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven rented a cow to plow on the
          mountain, and he plowed in the valley, and the blade of
          the plow broke, he is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he rented it to plow in the valley, and he plowed
               on the mountain and the blade broke, he is liable.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he rented it to thresh legumes, and he threshed grain,
          he is exempt. If he rented it to thresh grain and he
          threshed legumes, he is liable, for legumes are slippery.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> If he did not deviate, which of the
          workers pays?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rav Papa):</font></b> The one holding the plow handle
          pays (he should have led it straight).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rav Shisha brei d'Rav Idi):</font></b> The one holding
          the blade pays (he inserted it too deeply in the ground.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	The Halachah follows Rav Shisha;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is known that it was a rocky area, they both
               pay (Rashi - either may have caused it to break;
               Tosfos - both were negligent).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> If Reuven sold a cow to Shimon, and said
          that it gores, bites, kicks, and crouches, and only one
          of these was true, this is a mistaken sale. (Since Shimon
          saw that the others were false, he assumed that Reuven is
          merely saying these so Shimon can have no complaints);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he mentioned the defect and another defect that
               is not true, the sale stands.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> Reuven sold a slave to Shimon, saying
          she is a lunatic, epileptic, crazy - if only one of them
          was true, this is a mistaken sale;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he mentioned the defect and another defect which
               is not true, the sale stands.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rav Acha brei d'Rava):</font></b> If it had all the
          defects, what is the law?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rav Mordechai):</font></b> Rava taught that the sale stands.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>OVERLOADING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven rented a donkey to bring wheat on it
          and he brought barley (of the same weight) he is liable
          (for any damage), for (added) volume is difficult
          k'Masa'uy (like added load, i.e. weight);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The same applies if he said that he would bring
               grain, and he brought straw.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he said he would bring a Lesech (15 Sa'im) of wheat
          and he brought a Lesech of barley, he is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he brought a larger volume, he is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> How much must he add to be liable?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Sumchus):</font></b> If he adds one Se'ah on a camel,
               or three Kavim (half a Se'ah) on a donkey, he is
               liable.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Abaye):</font></b> The Mishnah says that added volume is
          difficult k'Masa'uy (like added weight);
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rava):</font></b> It says that volume is difficult l'Masa'uy (for
          the load).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Abaye, volume is like weight. He is
               liable for three extra Kavim, even if the weight is
               less;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Rava, volume is difficult for the load.
               He is liable for three extra Kavim if the weight is
               the same.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (against Rava - Mishnah):</font></b> If he said he would
          bring a Lesech of wheat and he brought a Lesech of
          barley, he is exempt. If he brought a larger volume, he
          is liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He is liable if he added three Kavim
               (even though the entire load weighs less than what
               he said)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> No, he is liable if he added a Se'ah (together, a
          Lesech and a Se'ah of barley weigh as much as a Lesech of
          wheat).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Seifa):</font></b> How much must he add to be liable?
          Sumchus says, one Se'ah on a camel, or three Kavim on a
          donkey.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> It means, if he brought wheat (or barley) as he
          said, he is liable for adding one Se'ah on a camel, or
          three Kavim on a donkey.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (against Abaye - Beraisa):</font></b> If he said that he
          would bring a Lesech (15 Sa'im) of wheat and he brought
          16 Sa'im of barley, he is liable;
<br>
<br>

sjt:
<font><b>1) MISUSE OF A RENTED OBJECT</b></font><b>
<br>QUESTION:</b> The Gemara teaches that when a person rents a plow for use on mountainous terrain, and he uses it for that purpose and it breaks, the blame is placed on the workers and not on the renter, and thus he is exempt from liability. <b>TOSFOS</b> infers that if the renter misuses the plow (for example, he rents it for use in the valley, but he uses it for plowing on mountainous terrain), the renter is held accountable and the workers are exempt from liability. The reason why the workers are exempt is that they may claim that they accepted responsibility only if the plow was not being misused.
</p><p>
The <b>RAMBAM</b> (Hilchos Sechirus 4:1), however, rules that even in a case of misuse in which the renter is obligated to pay for the damages, the renter in turn may claim restitution from the workers.
</p><p>
According to the Rambam, why does the Gemara discuss the liability of the workers only in a case in which the plow was used for the purpose for which it was rented? According to the Rambam, the same liability (of the workers) applies in a case where the plow was misused!
</p><p>
<b>ANSWER:</b> The <b>NESIVOS HA'MISHPAT</b> (309:5) explains that even according to the Rambam, the workers are liable in a case of misuse only when the item broke as a result of a Peshi'ah, an act of negligence. The workers have the status of a Shomer Chinam because they are not paid in a case of misuse. In contrast, in the Gemara's case where the plow was used properly for the purpose for which it was rented, the workers have the status of a Shomer Sachar and are liable even for Aveidah. Therefore, the Gemara discusses a case in which the plow was used properly in order to teach a case in which the workers are liable even for Aveidah. (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN IS THE LAST DAMAGER LIABLE?</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> If the plow blade broke, which worker
               pays?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1 (Rav Papa):</font></b> The one holding the plow
               handle pays (he should have led it straight).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #2 (Rav Shisha brei d'Rav Idi):</font></b> The one
               holding the blade pays (he inserted it too deeply in
               the ground.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> The Halachah follows Rav Shisha. If it is known that
               it was a rocky area, they both pay (either may have
               caused it to break).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Bava Kama 10a (Rav Sheshes):</font></b> A case in which one
               responsible for part of the damage is responsible
               for all of it is adding bundles (on an animal, or to
               a fire).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> If it would not have gone (or spread)
               without the last, this is obvious!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it would have gone without it.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Objection:</font></b> If so, he did nothing!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If five sat on a bench, and a sixth sat
               on it, and it broke, he is liable.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rav Papa):</font></b> The sixth man was (fat) like Papa bar
               Aba.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question:</font></b> If it would not have broken without him,
               obviously, he is liable!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, it would have broken without him.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Objection:</font></b> If so, he did nothing!
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer #2:</font></b> Rather, without him, it would have broken
               in two hours. Because he sat on it, it broke in one
               hour. The others can say 'had you not sat on it, we
               would have left before it broke!'
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Objection:</font></b> He can say 'without the five of you, I
               would not have broken it alone!'
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> Answer #3:</font></b> Really, it would not have broken without
               him. The case is, he did not sit on it. He only
               pressed on the men sitting on it. One might have
               thought that his force is unlike (damage by) his
               body. The Beraisa teaches that this is not so. 
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Bava Metzi'a 49b):</font></b> In a rocky land both pay,
               for both were negligent.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Rif (Bava Kama 4b) brings the Gemara in Bava
               Kama.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Ihu):</font></b> Whenever it would not
                    have broken without the last, he is liable and
                    they are exempt. If it would have broken
                    without the last, they are liable and he is
                    exempt. The same applies to all cases of
                    negligence.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Chovel u'Mazik 6:14):</font></b> If five people
               put bundles on an animal, and the last put a bundle
               on and then it died, if it could walk with the first
               bundles, and after the last it stopped and did not
               walk, the last is liable. If from the beginning it
               could not walk, the last is exempt. If it is not
               known, all pay equally.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam's text said 'if it
                    would have gone without the last one, this is
                    obvious (that he is liable)! Rather, it did not
                    go even without his. If so, he did nothing! (He
                    is exempt.) Rashi and the Aruch had a different
                    text. The Rambam's text and Perush are primary.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (15):</font></b> If five men sat on a chair, and the
               last man sat, and it broke, he is liable for making
               it break sooner. They can say 'had you not pressed
               on us, we would have risen before it broke.' If they
               sat down together and it broke, all are liable. The
               same applies to all similar cases.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (Bava Kama 1:9):</font></b> The Halachah follows Rav
               Sheshes' teaching and Rav Papa's Beraisa.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> If it would not have broken
                    without the last, he is liable. If it would
                    have broken without him, they are all liable,
                    even though it broke sooner due to him. The
                    same applies to bundles. Even though it would
                    have spread without his, they are all liable.
                    The same applies to one who digs a pit 10
                    Tefachim deep, and another deepened it to 20.
                    They are all liable. However, why should one be
                    liable for adding one stick to a great bonfire?
                    This is like one who digs a pit 10 Tefachim
                    deep, and another deepened it to 11. The latter
                    is exempt.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rashba (10a DH Ha):</font></b> Indeed, the last is liable
                    only if his bundle could have spread the fire
                    to where it would damage even without the other
                    bundles.
<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 381:1):</font></b> If five men sat on a
               chair, and the last man sat on it, and pressed on
               them and did not allow them to rise, and it broke,
               since he made it break sooner, he is liable. They
               can say 'had you not pressed on us, we would have
               risen before it broke.' If they sat down together
               and it broke, they are all liable. The same applies
               to all similar cases.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (383:4):</font></b> If five people put bundles
               on an animal, and after the last put a bundle on it
               died, if it could walk with the first bundles, and
               after the last added his it stopped and did not
               walk, the last is liable. If from the beginning it
               could not walk, the last is exempt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (4):</font></b> The last cannot say 'you should have
                    removed your bundles when I put mine on', like
                    we say about five who sat on a bench. There,
                    even without the last one it would have broken
                    after a while. Therefore, he can say 'since you
                    needed to rise anyway, you should have risen
                    immediately.' This does not apply here, or
                    regarding loading a boat (380:4).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If it is not known, all pay
               equally.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (7):</font></b> If five sat on a chair and broke it,
                    all are liable (Tosefta 2:8). If it broke due
                    to the last, he is liable. This implies that
                    Stam, all are liable.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ketzos ha'Choshen (1):</font></b> Why do we make them pay
                    mi'Safek? The first ones can say that it is due
                    to the last, and he can say that it is due to
                    all of them! The Rambam learns from Bava
                    Metzi'a 80a. If we know that it was a rocky
                    area, they both pay. Rashi explains that they
                    should have been very careful. It is a Safek,
                    so both pay. Presumably, the same applies here,
                    when we are unsure who damaged. Tosfos argues,
                    for Sumchus says that we divide money in doubt,
                    but the Halachah follows Chachamim, who say
                    ha'Motzi mi'Chavero Alav ha'Re'ayah. Why do the
                    Tur and Shulchan Aruch rule like the Rambam,
                    against Tosfos? Further, even Rashi could agree
                    here. Surely the Halachah follows Chachamim,
                    but in some places Chachamim decided to divide
                    the money, like Sumchus. We say so only where
                    the Gemara said so. Perhaps we may learn from
                    plowers to all damages. However, Tosfos
                    disagrees. This requires investigation.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>Chidushei R. Meir Simchah (Bava Kama 10b):
                    Indeed, if we do not know whether the animal
                    walked after the first put their bundles on,
                    they are exempt, for ha'Motzi mi'Chavero Alav
                    ha'Re'ayah. They are liable when it stood
                    still. They should have removed their bundles,
                    lest it cannot walk with them, and he should
                    not have put his on, lest it could have walked.
                    Since all were negligent, they all pay.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHO IS LIABLE FOR BREAKING A BENCH? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> He is not liable for an extra half Se'ah!
               (We do not ask against Rava. He could say that this
               amount of barley weighs as much as 15 and a half of
               wheat. Above (f), the Gemara said that a Se'ah of
               barley weighs as much as three Kavim of wheat. Rava
               could argue.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Version #1 (Rashi) Answer (Abaye):</font></b> The Beraisa discusses
          16 Sa'im that were leveled off (this equals 15 and a half
          Sa'im unleveled).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Version #2 (Ge'onim) Answer (Abaye):</font></b> The Beraisa
          discusses 16 worm-eaten Sa'im (since they are much
          lighter then wheat, he is liable only for 16).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> The quantities of overloading are a Kav onto
          the load on a person, a Lesech on a small ship, a Kor (30
          Sa'im) on a normal ship, and three Korim on a large ship.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> A person should know if he is overloaded, and
          take off the extra!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> The case is, he fell before he had
          time to take it off.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> The Beraisa teaches that one who
          overloads this amount must pay extra.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #3 (Rav Ashi):</font></b> The carrier did not know that he
          was overloaded. He attributed his pain to weakness.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> The quantity is a Kor on a normal ship.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> (The quantity is always one part in 30.) We
          learn that a normal ship carries 30 Korim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is pertinent to commerce.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>LIABILITY OF CRAFTSMEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> All craftsmen are paid Shomrim.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Anyone who told the owner 'take your item and pay' is a
          Shomer Chinam (one who guards for free).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If Reuven told Shimon 'guard for me and I will guard for
          you', he is a Shomer Sachar (one who is paid to guard).
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If Reuven told Shimon 'guard this for me', and Shimon
          said 'leave it in front of me', he is a Shomer Chinam.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	If Reuven lent Shimon and took a security, he is a Shomer
          Sachar on the security;
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	R. Yehudah distinguishes:</font></b> he is a Shomer Chinam if he
          lent to him money, and he is a Shomer Sachar if he lent
          him to produce (for then he benefits; he is spared losses
          due to rotting).
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Aba Sha'ul says, a lender can rent out an Oni's security
          and deduct the money from the loan - this is like
          returning an Aveidah.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Gemara) Suggestion:</font></b> Our Mishnah is unlike R. Meir. (A
          craftsman is like a renter, for he benefits the owner and
          also he benefits (employment) from the object, and the
          Mishnah says that he is a Shomer Sachar).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> A renter is liable like a
               Shomer Chinam;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, he is liable like a Shomer Sachar.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> The Mishnah is even according to R. Meir. A
          craftsman is a Shomer Sachar because he is happy that the
          owner chose to hire him.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection:</font></b> If so, a renter should also be a Shomer
          Sachar, for he is happy that the owner chose to rent to
          him!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> The Mishnah is even like R. Meir. A
          craftsman is a Shomer Sachar because he is happy that the
          owner gave him a bit more than the usual wage.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Objection:</font></b> If so, a renter should also be a Shomer
          Sachar, when the owner rented to him for a bit less than
          usual!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Rejection #3:</font></b> The Mishnah is even like R. Meir. A
          craftsman is a Shomer Sachar because he benefits from
          having the object to be security for his wages.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Rejection #4:</font></b> The Mishnah is like R. Meir and unlike R.
          Yehudah, according to Rabah bar Avuha's text of the
          Beraisa;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah bar Avuha - Beraisa - R. Meir):</font></b> A renter is
               liable like a Shomer Sachar;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, he is liable like a Shomer Chinam.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Anyone who told the owner 'take your item and
          pay' is a Shomer Chinam.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven told Shimon 'send your animal (for
          me to borrow)' and it died on the way, Reuven is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Similarly, if Reuven sent it back and it died on the
               way, he is liable.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Rafram bar Papa):</font></b> This is only if he returned it within
          the time he borrowed it for. After this, he is exempt.
<br>

sjt:
</p><p>
<font><b>2) THE STATUS OF ONE WHO IS WATCHING A 'MASHKON'</b></font><b>
<br>QUESTION:</b> The Gemara teaches that a craftsman (Uman) is considered a Shomer Sachar because he receives benefit from holding the object upon which he worked -- the object serves as a security (Mashkon) for receiving his payment.
</p><p>
According to this reason, in every case of a loan with collateral the lender should have the status of a Shomer Sachar since he is holding the collateral and thus has a security for the repayment of the loan. The Gemara later (82a), however, gives different reasons for why a lender is considered a Shomer Sachar when he is holding an item of collateral. Why does the Gemara not give this reason?
</p><p>
<b>ANSWER: TOSFOS</b> answers that an ordinary lender is not considered a Shomer Sachar because he stands to gain nothing from the loan. Although by holding the collateral he is guaranteed to receive his money in return, he gains nothing as a result; he does not end up with anything more than he would have had in the event that he had not loaned any money in the first place. Hence, he is not considered a Shomer Sachar for the Mashkon. In contrast, the craftsman has much to gain -- the profits of his work -- and thus he is considered a Shomer Sachar for the Mashkon.
</p><p>
However, the <b>RITVA</b> (cited by the <b>NIMUKEI YOSEF</b> to Bava Kama, 39a of the pages of the Rif) records a ruling which seems to contradict the answer of Tosfos. The Ritva writes that one who inherits from his father a Mashkon that his father was holding for a loan that he had given is considered a Shomer Sachar for the Mashkon. Why is he considered a Shomer Sachar if he is not gaining anything from having the Mashkon? The <b>MAHARSHAL</b> (in Yam Shel Shlomo to Bava Kama 10:4) indeed writes that the Ritva argues with Tosfos.
</p><p>
The <b>SHACH</b> (CM 72:36), however, reconciles the ruling of the Ritva with the words of Tosfos. The Shach explains that there is a difference between a Mashkon taken at the time that the loan was given and a Mashkon taken after the loan was given. When Tosfos says that the lender gains nothing by having a Mashkon, he refers only to a Mashkon that was taken at the time of the loan. Tosfos agrees that a Mashkon taken later is considered a profit for the lender; since the loan has been given already, the taking of the Mashkon by the lender constitutes a clear benefit for him.
</p><p>
The Ritva, on the other hand, is discussing a case of a Mashkon that was taken after the loan was given. Therefore, he compares it to the Mashkon in the hands of a craftsman, and thus the lender is considered a Shomer Sachar.
</p><p>
The Shach adds that the son who inherits the Mashkon did not give a loan himself. Consequently, as far as he is concerned the Mashkon that he receives is pure profit (even if his father had received the Mashkon at the time the loan was given). (Y. Marcus)
</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN IS HE NO LONGER A SHOMER SACHAR?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Version #1 - Question (Rav Nachman bar Papa - Mishnah):
          Anyone who told the owner 'take your item and pay' is a
          Shomer Chinam.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> If he said only 'I finished it', he is
               still a Shomer Sachar.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> No. Rather, we infer that if he said 'pay me and
          take your item' (he keeps the item for security for his
          wages), he is a Shomer Sachar.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Can you say that if he said 'I finished it', he
          would be a Shomer Chinam?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If so, why does it teach that one who said 'take
               your item and pay' is a Shomer Chinam? It should
               teach that if he said 'I finished it', he is a
               Shomer Chinam, and all the more so if he said 'take
               your item and pay'!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> We must teach 'take your item and pay'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that he is not even a Shomer
               Chinam. The Mishnah teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Version #2 - Support (Rav Nachman bar Papa - Mishnah):
          Anyone who told the owner 'take your item and pay' is a
          Shomer Chinam.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The same applies if he said only 'I
               finished it.'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, 'take your item' is different.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Huna Mar bar Mereimar):</font></b> In our Mishnah, also if he said
          only 'I finished it', he is a Shomer Chinam.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Contradiction (Huna Mar - Mishnah):</font></b> If Reuven told Shimon
          'send your animal (for me to borrow)' and it died on the
          way, Reuven is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Similarly, if Reuven sent it back and it died on the
               way, he is liable. (We do not say that when he
               finishes using it he is only a Shomer Chinam!)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Huna Mar):</font></b> Rafram bar Papa taught that this is
          only if he returned it within the time he borrowed it
          for. After this, he is exempt.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Is he exempt from liability of a borrower and
          liable like a Shomer Sachar, or is he totally exempt?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Ameimar):</font></b> Presumably, he is liable like a Shomer
          Sachar, since he already benefited.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> Reuven took Kelim from a craftsman to
          send them to his father-in-law. He stipulated: if he
          likes them, I will buy them. If not, I will give you the
          benefit I got (from showing my father-in-law that I
          wanted to give him a gift). If Ones occurred on the way
          to his father-in-law, Reuven is liable. If Ones occurred
          on the way back he is exempt, for he is a Shomer Sachar.
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	Yehudah sold wine to Levi, who said that he will try to
          sell it in a certain place, and if he fails, he will
          return it. He failed to sell it; Ones occurred on the way
          back.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Levi is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Rava - Beraisa):</font></b> If Ones occurred on the
               way, he is liable. If Ones occurred on the way back
               he is exempt, for he is a Shomer Sachar.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav Nachman):</font></b> Here, even on the way back is
               like on the way, for he would sell it on the way
               back if he could.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>GUARDING FOR ONE'S EMPLOYEE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven told Shimon 'guard for me and I will
          guard for you', he is a Shomer Sachar.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> This is Shmirah b'Ba'alim (a Shomer of one's
          employee. Such a Shomer is exempt!)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> He said 'guard for me today and I will
          guard for you tomorrow.' When he was guarding, the owner
          was not guarding for him.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If one said 'guard for me and I will guard for
          you', 'lend to me and I will lend you', 'guard for me and
          I will lend to you', or 'lend to me and I will guard for
          you' each is a Shomer Sachar to the other.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> This is Shmirah b'Ba'alim!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> He said 'guard for me today and I will
          guard for you tomorrow'.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #1:</font></b> There were sellers of aloe who used to take
          turns baking for each other. One day, they asked Reuven
          to bake, and he asked them to guard his garment. They
          were negligent, and it was stolen.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Papa:</font></b> They are liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection (Rabanan):</font></b> This is negligence b'Ba'alim!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rav Papa was embarrassed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It was later found that Reuven was drinking
                    beer (not working for them) at the time of the
                    theft (so it was not Shmirah b'Ba'alim, and
                    they were truly liable).
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	This is like the opinion that negligence b'Ba'alim is
          exempt.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> According to the opinion that negligence
          b'Ba'alim is liable, why was Rav Papa embarrassed?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer - Version #2:</font></b> Rather, that day was not his day to
          bake. He agreed to bake if they would guard his garment
          to be wages for his baking. It was stolen (without
          negligence).
<br>
<br>

sjt:
<font><b>1) THE LIABILITY OF A POTENTIAL BUYER WHO EXAMINES AN OBJECT FOR SALE</b></font><b>
<br>QUESTION:</b> The Gemara discusses the liability of a buyer who makes a conditional purchase on a gift for his Kalah ('Arusaso'). The Gemara describes a case in which the buyer takes an object from a craftsman to send to his Kalah and stipulates that if she does not want the object, he will return it and pay a minimal sum for having taken the object on a trial basis. If the object is damaged or destroyed through an Ones on the way to the Kalah, the buyer is fully responsible to pay for it. If the Ones occurs during the return trip, however, he is exempt, because during the return trip he is only a Shomer Sachar (who is exempt from liability in cases of Onsin).
</p><p>
In two other places, the Gemara seems to give contradictory explanations as to why a potential buyer is liable for Onsin when he takes an object to check if he wants to keep it.
</p><p>
The Gemara in Nedarim (31a) understands that his liability is because he has the status of a <i>Sho'el</i>. The Gemara there says that he has the liability of a Sho'el because he, the potential buyer, is the sole beneficiary of the usage of the object ('Kol Hana'ah Shelo'). The Gemara posits that this Halachah makes a buyer liable only when he purchases an object that is in high demand and is easily sold, in which case the seller does not benefit from the fact that the buyer considers purchasing the object, because he can easily find another buyer. An ordinary Sho'el's liability also results from the fact that he is the sole beneficiary, and thus the potential buyer is comparable to a Sho'el.
</p><p>
However, the Gemara in Bava Basra (88a) gives an altogether different explanation for the potential buyer's liability. The Gemara there says that one who takes an object to examine it before buying it is liable for an Ones only when the object's price has been fixed. This implies that the liability for Onsin in a conditional purchase is a function of the person's status as a buyer. The fixed price causes him to be considered a buyer, because when he takes the object to examine it his actions indicate that he is definitely interested in buying it and is not concerned by the price; he merely wants to examine it to see if it is in good condition. The element of a fixed price, however, plays a role only in a <i>sale</i>, where one is interested in buying the object, but as far as a Sho'el is concerned the presence of a fixed price is totally irrelevant. The Gemara in Bava Basra cannot be understood to mean that a potential buyer becomes like a Sho'el, because the presence of a fixed price would not affect his status in that respect. Thus, the Gemara in Nedarim and the Gemara in Bava Basra seem to contradict each other as to whether the liability for Onsin is that of a buyer or that of a Sho'el.
</p><p>
<b>ANSWER:</b> The <b>SHITAH MEKUBETZES</b> here reconciles the two Gemaras and explains that both Halachos are correct. When a person takes an object with a fixed price to examine it, he is considered a buyer, in which case he is liable even if the object is not easily sold (and is not 'Kol Hana'ah Shelo'). If, on the other hand, no price has been fixed, he cannot be considered a buyer, but he might still be liable for Onsin as a Sho'el if the object can be sold easily and the sale is considered a favor for the buyer. In such a case, when the buyer takes the object to examine it, he is the only one who benefits ('Kol Hana'ah Shelo') and he is deemed a Sho'el and therefore is liable for Onsin. (See <b>NESIVOS HA'MISHPAT</b> 186:1 for further discussion of the answer of the Shitah Mekubetzes.) (Y. Marcus)
</p><p>


<font><b>2) DOES THE LOAN OF AN OBJECT CONSTITUTE 'BA'ALAV IMO'</b></font><b>
<br>OPINIONS:</b> The Gemara says that if two people give each other an object to guard on the same day, each Shomer is exempt from liability for Onsin because of the Halachah of 'Ba'alav Imo,' which states that when a Shomer watches an object while the owner is 'with him' (i.e. working for him), the Shomer is exempt (see Shemos 22:13-14). The Gemara explicitly says that when two people act as Shomrim for each other, this constitutes 'Ba'alav Imo.' What is the Halachah when two people <i>borrow</i> objects from each other? Does that also constitute 'Ba'alav Imo'?
</p><p>
(a) <b>RASHI</b> (DH Shemirah b'Ba'alim) maintains that when one person (Reuven) borrows an object from another person (Shimon), and then Reuven, the borrower, himself lends a different object to Shimon, the lender is not considered 'Ba'alav Imo.' That is, Reuven is not considered to be doing work with Shimon such that Shimon would be exempt from Onsin. Rather, they each have the full liability of a Sho'el.
</p><p>
(b) The <b>RAMBAM</b> (Hilchos Sechirus 10:2) maintains that when Reuven borrows an object from Shimon, and then Reuven himself lends a different object to Shimon, Reuven <i>is</i> considered 'Ba'alav Imo.'
</p><p>
The <b>S'MA</b> (CM 305:8) explains that the Rambam maintains that since a person who borrows an object is obligated to guard the object, he is considered to be working for the lender and is thus 'Ba'alav Imo.'
</p><p>
The <b>NESIVOS HA'MISHPAT</b> (305:2) writes that Rashi disagrees because he maintains that since a Sho'el is the sole beneficiary when he borrows an object ('Kol Hana'ah Shelo'), even his obligation to guard the object is considered to be for his own benefit. According to this explanation, Rashi might consider even a Socher to be 'Ba'alav Imo' to the owner of the object, because he is guarding the object for his own benefit (that is, he must keep it guarded in order to use it).
</p><p>
<b>RAV ELCHANAN WASSERMAN</b> Hy'd in <b>KOVETZ SHI'URIM</b> (Kesuvos 34b, DH Hani'ach Avihen) offers a different explanation for the opinion of Rashi. Since a Sho'el is obligated even for an Ones, the object is considered to be in his possession temporarily. Consequently, he has no obligation to the object's owner to guard it, but rather he must guard it for his own benefit, in order to be able to return it after the termination of the period of She'eilah. According to this explanation, in the case of a Socher -- who is not liable for Onsin -- the Socher's obligation to guard the object certainly would be for the benefit of the owner, and he would thus have the status of 'Ba'alav Imo' to the owner, even according to Rashi.
</p><p>
(The opinions of both Rashi and the Rambam are cited by the <b>SHULCHAN ARUCH</b> CM 305:6.) (Y. Marcus)
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>THE CHIYUV OF A SHOMER AVEIDAH</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'> 81b (Mishnah):</font></b> If Reuven lent to Shimon (relying) on
               a security, he is a Shomer Sachar on it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Our Mishnah is unlike R. Eliezer:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Eliezer):</font></b> If Reuven lent to
                    Shimon (relying) on a security and lost the
                    security, he swears (that he lost it) and
                    collects the debt.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Akiva says, he lent only due to the
                    security. If he lost it, he lost the loan.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 82a - Suggestion:</font></b> They argue about Shmuel's law,
               when the security is worth less than the loan.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Shmuel):</font></b> Reuven lent 1000 Zuz and took an axe
                    handle like a security; if he loses the handle,
                    he loses the whole loan. (R. Akiva holds like
                    Shmuel; R. Eliezer argues, the security was
                    only taken like a reminder of the loan.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> All disagree with Shmuel. In such a case,
               all agree that he can still collect. The Tana'im
               discuss a security taken at the time of the loan.
               They argue about whether a Shomer Aveidah is a
               Shomer Chinam or a Shomer Sachar.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Suggestion:</font></b> Rav Yosef's law is like R. Akiva, and R.
               Eliezer disagrees.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rejection:</font></b> No, all can agree with Rav Yosef. They
               argue about when the lender needs the security. R.
               Akiva says that we still consider the loan to be a
               Mitzvah, therefore he is a Shomer Sachar (for Rav
               Yosef's reason);
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Nedarim 33b - Version #1 (R. Ami or R. Asi):</font></b> If
               Shimon is Mudar Hana'ah from Reuven, he may not
               return an Aveidah to Reuven, for Shimon would save
               Perutah d'Rav Yosef due to Reuven:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Bava Kama 56b (Rabah):</font></b> A Shomer (one who guards
                    an) Aveidah is considered a Shomer Chinam (he
                    is exempt if it stolen or if he loses it);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Rav Yosef):</font></b> He is considered a Shomer Sachar
                    (and is liable for loss or theft).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>Rabah says he is considered a Shomer Chinam,
                    for he gets no benefit.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Version #1:</font></b> Rav Yosef considers him to be a
                    Shomer Sachar because it is a Mitzvah to guard
                    an Aveidah, and this Mitzvah exempts him from
                    giving bread to a poor person (who requests).
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Version #2:</font></b> Rav Yosef says that since the Torah
                    obligated him to guard the Aveidah, he is like
                    a Shomer Sachar. (end of Version #2)
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Nedarim 33b (The other of R. Ami and R. Asi):</font></b> Shimon
               may return to Reuven. It is rare that one saves
               money through Rav Yosef's law.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 34a - Version #2:</font></b> All agree that the Mudar may
               return Shimon's Aveidah. It is rare that one saves
               money through Rav Yosef's law, so we are not
               concerned for this;
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Gitin 74b:</font></b> (If a Get was given 'on condition that
               you return my garment', and it was lost, R. Shimon
               ben Gamliel and Chachamim argue about whether or not
               it suffices for her to return its value. If a
               sharecropper was asked to irrigate more than normal
               for extra wages, and rain came, eliminating the need
               for extra irrigation, Rabah and Rav Yosef argue
               about whether or not he gets the extra wage
               promised.)
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Suggestion:</font></b> Rav Yosef holds like Chachamim, and
               Rabah holds like R. Shimon ben Gamliel.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Rejection:</font></b> This cannot be! We hold that the Halachah
               follows Rabah, and here (in our Mishnah) we hold
               that the Halachah does not follow R. Shimon ben
               Gamliel!
<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 24a):</font></b> The Halachah follows Rav Yosef,
               for the Gemara in Bava Metzia (82a) and Shevu'os
               (44b) say that all hold like him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 13:10):</font></b> As long as the
               Aveidah is with the finder, if it was stolen or lost 
               he is liable. If Ones occurred, he is exempt. A
               Shomer Aveidah is like a Shomer Sachar. Since he is
               engaged in a Mitzvah, he is exempt from several
               Mitzvos Aseh as long as he is engaged in guarding
               the Aveidah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Kama 6:4):</font></b> Rav Yosef says that a Shomer
               Aveidah is like a Shomer Sachar because if an Oni
               will come while he is caring for the Aveidah, he is
               exempt from giving bread to him. Rabah holds that
               this does not suffice to make him a Shomer Sachar,
               for it is rare that an Oni comes while he is caring
               for the Aveidah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Bava Metzia 2:17):</font></b> BaHaG and R. Chananel rule
               like Rav Yosef, because in Nedarim it says that all
               agree that a Shomer Aveidah is exempt from Tzedakah.
               They only argue about whether or not it is common
               enough to forbid a Mudar Hana'ah. The Ri disagrees.
               Rabah agrees that Osek b'Mitzvah Patur Min
               ha'Mitzvah. He just says that this does not make him
               a Shomer Sachar. The Halachah follows Rabah against 
               Rav Yosef with only three exceptions. Some say that
               this refers only to Bava Basra; it seems that it
               applies to all of Shas. The Gemara (Gitin 74b) said
               'the Halachah follows Rabah, and here (in our
               Mishnah) the Halachah does not follow R. Shimon ben
               Gamliel! Had the Gemara meant 'here we hold that the
               Halachah follows Rabah', it would have said so, just
               like it said 'here the Halachah does not follow R.
               Shimon ben Gamliel!' There are proofs for both
               opinions.
<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 267:16):</font></b> As long as the Aveidah
               is with the finder, if it was stolen or lost he is
               liable, like a Shomer Sachar.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav b'Shem):</font></b> In a
                    Teshuvah, the Rosh rules like Rav Yosef. The
                    Tur says that he retracted in his Pesakim, and
                    rules like Rabah. This is not clear; he brings
                    both opinions in his Pesakim. In any case, we
                    follow the majority of Poskim, who rule like
                    Rav Yosef.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that he is like a Shomer Chinam. The
               law is the same as we wrote regarding a security
               (72:2).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (17):</font></b> Regarding a security the Rema rules
                    that some say that he is like a Shomer Chinam.
                    Due to the Safek we do not make him pay.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Yam Shel Shlomo (Bava Kama 6:9):</font></b> The conclusion
                    is like the latter version, in which Rav Yosef
                    agree that the exemption from Tzedakah does not
                    make one a Shomer Sachar. (Rather, it is
                    because the Torah obligated him to guard the
                    Aveidah.) We must say that the exemption from
                    Tzedakah suffices to forbid a Mudar Hana'ah to
                    return an Aveidah (according to the opinion
                    that forbids), but it is not enough to make one
                    a Shomer Sachar.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>Or Some'ach (Hilchos Sechirus 10:1 DH v'Hinei):
                    Everywhere, the Gemara holds like Version #1.
                    Perhaps Version #2 was an addition of the
                    Ge'onim. I would explain that it distinguishes
                    between a Shomer Aveidah and a Shomer Chinam.
                    The Magid Mishneh (Hilchos She'alah 7:11)
                    anything a Shomer Aveidah can retract in the
                    middle and force the owner to take back his
                    deposit, but a Shomer Chinam cannot. This is
                    because a Shomer Chinam merely needs to leave
                    the deposit in a guarded place. Regarding a
                    Shomer Aveidah it says 'Hashev Teshivenu'. If
                    he found an animal that does not work, he must
                    sell it. He must shake out a garment... He is
                    obligated to care for it like a slave,
                    therefore he can retract, because we are Avadim
                    only to Hash-m! Surely, this shows that he is
                    like a Shomer Sachar!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Question:</font></b> Perhaps we follow the first version,
                    in which Rav Yosef holds that the exemption
                    from Tzedakah makes him a Shomer Sachar!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer (Yam Shel Shlomo):</font></b> If so, all the more
                    so he holds that a Mudar Hana'ah may not return
                    an Aveidah. If so, surely the Halachah does not
                    follow Rav Yosef, for we permit a Mudar Hana'ah
                    to return an Aveidah! All the Ge'onim say so.
                    We permit to cover the blood (of a slaughtered
                    bird or Chayah) with dirt of an Ir ha'Nidachas.
                    Even though it is Asur b'Hana'ah, fulfilling
                    Mitzvos is not considered Hana'ah. A Shofar or
                    Lulav of an Ir ha'Nidachas would have been
                    Kosher if no Shi'ur were required. We do not
                    say that he benefits from Isurei Hana'ah by
                    being exempt from Tzedakah at the time he uses
                    until for a Mitzvah! The Halachah follows
                    Rabah.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Rebuttal (Shach 14):</font></b> The Rosh (it seems that it
                    should say 'Ran') in Nedarim 33b DH Perutah
                    says that a Mudar Hana'ah may return an Aveidah
                    because Perutah d'Rav Yosef is rare.
                    Nevertheless, it suffices to make him a Shomer
                    Sachar. Tosfos (Shevu'os 44b DH v'Rav) asked
                    about saving Perutah d'Rav Yosef while using
                    Isurei Hana'ah for Mitzvos. He answered that
                    Perutah d'Rav Yosef applies to an Aveidah or
                    security because one must regularly spread it
                    out (lest it get moldy), and an Oni might come
                    at such a time. One can arrange to blow a
                    Shofar (or immerse in a Mikveh) of Isurei
                    Hana'ah at a time when no Oni will come. (In
                    this way, he avoids getting Hana'ah.)
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Conclusion (Shach):</font></b> The Rema (72:2), <b>SMA</b> and
                    all the Acharonim say that it is a Safek if the
                    Halachah follows Rabah or Rav Yosef. If the one
                    who lost the Aveidah seized the money from the
                    finder, we do not force him to return it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (72:2):</font></b> If one lent on a security, he
               is a Shomer Sachar.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that he is only a Shomer Chinam.
               Since it is a Safek, we do not force one to pay.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>APPLICATIONS OF PERUTAH D'RAV YOSEF </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Papa:</font></b> They are liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection (Rabanan):</font></b> This is guarding b'Ba'alim!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rav Papa was embarrassed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It was later found that Reuven was drinking
                    beer at the time of the theft.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Reuven (a tall man) was riding on a donkey, wearing a
          linen garment. Shimon (a short man) was walking, wearing
          a wool coat. They came to a river; Shimon put his coat on
          the donkey (lest it become waterlogged). He borrowed
          Reuven's garment, and it got washed away.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rava):</font></b> Shimon is liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Objection (Rabanan):</font></b> This is guarding b'Ba'alim!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rava was embarrassed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It was later found that Shimon put his coat on
                    the donkey and took Reuven's garment without
                    asking.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A MIGO AGAINST WITNESSES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Reuven rented his donkey to Shimon, and warned him not to
          go near the Pekod river, for it is wet there. Shimon went
          there, and the donkey died.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Shimon:</font></b> It was dry there!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rabah:</font></b> We believe him. If he wanted to lie, he could have
          said that he did not go there!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> We do not apply Migo (to believe
          someone because if he wanted to lie, he could have lied
          better) against witnesses (we can testify that it is wet
          near the river).
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>ACCEPTING RESPONSIBILITY TO GUARD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven told Shimon 'guard this for me', and
          Shimon said 'leave it in front of me', he is a Shomer
          Chinam.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> If Shimon said 'leave it in front of yourself
          (i.e. guard it yourself)', he is neither a Shomer Chinam
          nor Shomer Sachar.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If he said only 'leave it', what is the law?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Mishnah):</font></b> If Reuven told Shimon 'guard this
          for me', and Shimon said 'leave it in front of me', he is
          a Shomer Chinam;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Had he not said 'in front of me', he
               would not be a Shomer at all!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> Rav Huna taught that if Shimon said 'leave it
          in front of yourself', he is neither a Shomer Chinam nor
          Shomer Sachar;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Had he not said 'in front of yourself',
               he would be a Shomer Chinam!
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	The inferences contradict each other. We cannot determine
          which is valid.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Tana'im argue about this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Shimon had permission to bring his
               Peros or ox into Reuven's Chatzer (and they were
               damaged), Reuven is liable;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rebbi says, in all cases one is liable only if he
               accepted responsibility for the other's property.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> Perhaps Chachamim say only regarding a
          Chatzer, in which things are easily guarded, that saying
          'come in' is acceptance to guard, but in the market,
          'leave it' means 'guard it yourself'!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> Perhaps Rebbi says only regarding a
          Chatzer, for which one needs permission to enter, that
          'come in' means 'you may enter, but guard it yourself',
          but in the market, 'leave it' means 'I will guard it',
          for we cannot say that he gives him permission to enter!
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>GUARDING A SECURITY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven lent to Shimon Al ha'Mashkon
          (relying on a security), he is a Shomer Sachar on it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Our Mishnah is unlike R. Eliezer:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Eliezer):</font></b> If Reuven lent to Shimon Al
               ha'Mashkon and lost the security, he swears (that he
               lost it) and collects the debt. (He is only a Shomer
               Chinam, because the security is not for collection.
               It is only a reminder of the loan.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Akiva says, he lent only due to the security. Now
               that he lost it, he lost the loan.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If there was also a loan document, all agree that
               the security was for collection. He is a Shomer
               Sachar; he lost the loan.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> Our Mishnah is like R. Eliezer. He
          discusses a security taken at the time of the loan;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Our Mishnah discusses a security taken after the
               loan was given. That is surely for collection!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection:</font></b> The Mishnah and Beraisa both say Al ha'Mashkon
          (which connotes at the time of the loan)!
<br>

<p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>GUARDING A SECURITY (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> In the Mishnah, Reuven lent Peros; in the
          Beraisa, he lent money.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Seifa - R. Yehudah):</font></b> If he lent to him money,
          he is a Shomer Chinam, If he lent to him Peros, he is a
          Shomer Sachar.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> The first Tana does not distinguish
               between lending Peros and money!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> The entire Mishnah is R. Yehudah. It is
          abbreviated, and it means as follows:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven lent to Shimon Al ha'Mashkon, he is a
               Shomer Sachar;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is if he lent Peros. If he lent to him money,
               he is a Shomer Chinam, for R. Yehudah says that if
               he lent to him money, he is a Shomer Chinam, and if
               he lent to him Peros, he is a Shomer Sachar.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection:</font></b> If so, the Mishnah is unlike R. Akiva!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, we must say that the Mishnah is unlike R.
          Eliezer. (We assume that an anonymous Mishnah is R. Meir,
          and is like his Rebbi, R. Akiva.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE ARGUMENT OF R. ELIEZER AND R. AKIVA</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Suggestion:</font></b> R. Eliezer and R. Akiva argue about Shmuel's
          law, when the security is worth less than the loan.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> If Reuven lent 1000 Zuz and took an axe
               handle for a security, if he loses the handle, he
               loses the whole loan. (R. Akiva holds like Shmuel.
               R. Eliezer argues, for the security was taken only
               for a reminder of the loan.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection:</font></b> All disagree with Shmuel's law. If the
          security is worth less than the loan, all agree that he
          can still collect (according to R. Akiva, he deducts the
          value of the security);
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Rather, they argue about R. Yitzchak's law, when the
          security is worth the amount of the loan.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yitzchak):</font></b> A lender acquires a security. We
               learn from 'u'Lecha Tihyeh Tzedakah';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he did not acquire it, returning it would
                    not be called Tzedakah (since it belongs to the
                    borrower. Some explain, the only reason
                    'u'Veracheka' (the borrower may bless the
                    lender, this is not Ribis of words) is because
                    the lender acquires the security and lends it
                    to the borrower. One may receive rental for
                    loans of objects.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> R. Yitzchak said so only about a security
          taken after the loan (which the verse discusses), but not
          about a security taken at the time of the loan!
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Rather, R. Eliezer and R. Akiva agree to R. Yitzchak's
          law. They argue about a security taken at the time of the
          loan, like the argument about a Shomer Aveidah (one who
          found a lost object, and guards it in order to return
          it).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah):</font></b> A Shomer Aveidah is a Shomer Chinam;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Yosef):</font></b> He is a Shomer Sachar (because guarding
               the Aveidah is a Mitzvah).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> (Rashi - Rabah must hold like R. Eliezer. He cannot
               explain R. Akiva's opinion. Tosfos -  Rabah can say
               that R. Eliezer and R. Akiva both hold like him, and
               argue about Shmuel's law.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Rav Yosef must admit that R. Eliezer and R.
          Akiva argue about his law (R. Akiva agrees to it, R.
          Eliezer argues with it).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, all can agree to his law;
<br>
<br>

sjt:
<font><b>1) THE DEGREE OF LIABILITY OF ONE WHO HOLDS AN OBJECT OF COLLATERAL</b></font><b>
<br>QUESTIONS:</b> Rebbi Yitzchak states that a Malveh who takes collateral as security for a loan 'acquires' it ('Ba'al Chov Koneh Mashkon'). <b>RASHI</b> (DH she'Koneh) writes that since the Malveh acquires the Mashkon, he is liable even for damages or destruction caused by Onsin.
</p><p>
The Rishonim have a number of difficulties with Rashi's opinion.
</p><p>
(a) <b>TOSFOS</b> and the <b>RAMBAN</b> challenge Rashi's opinion based on the fact that the Gemara here uses Rebbi Yitzchak's statement to explain the Mishnah (80b). The Mishnah states that the Malveh is considered only a <i>Shomer Sachar</i> for the Mashkon, and he is not liable in a case of Ones. Why, then, does Rashi say that the Malveh <i>is</i> liable if an Ones occurs?
</p><p>
(b) The <b>RAMBAN</b> quotes the Gemara in Bava Kama (36b) which states that if an ox (Shor Tam) causes damage and the victim seizes the ox as collateral for compensation, his liability for the ox is that of a Shomer Sachar. In that case, the Mashkon is seized <i>after</i> the time of the damage, when the Mazik has already incurred a debt (similar to the case of the Gemara here), and yet the Gemara there says the holder of the Mashkon has the liability of a Shomer Sachar and not the liability of a Sho'el. Why, then, does Rashi say that he is like a Sho'el?
</p><p>
<b>ANSWERS:</b> The <b>SHACH</b> (CM 72:9) points out that the wording of Rebbi Yitzchak's statement itself, 'Ba'al Chov <i>Koneh</i> Mashkon,' supports the view of Rashi. Since it is a <i>Kinyan,</i> it follows that all of the responsibility for the object rests upon him. The Shach offers the following answers to the Rishonim's questions on Rashi.
</p><p>
(a) The Shach answers that when Rashi says that the Malveh is liable for any Ones that occurs, this refers only to when the Mashkon was taken <i>after</i> the loan was given. In contrast, the Mishnah (80b) refers to a case in which the Mashkon was taken at the time of the loan, in which case even Rashi agrees that the Malveh has only the liability of a Shomer Sachar. The Gemara later says that Rebbi Yitzchak's statement refers only to a Mashkon that was taken <i>after</i> the time of the loan, in which case the Malveh is liable for Onsin. Rebbi Yitzchak's statement does not apply to a Mashkon taken at the time of the loan, and thus there is no source that indicates that the Malveh would be liable for an Ones that happens to such a Mashkon.
</p><p>
(b) The Shach answers that the Gemara in Bava Kama refers to a case in which the Mashkon that was seized was an ox, a Shor Tam. The owner of a Shor Tam is not obligated to pay for damages caused by his Shor Tam until Beis Din issues a verdict that he must pay. Hence, at the moment that the Nizak seized the Shor Tam, the Mazik was not yet obligated to pay for damages, even though the Shor Tam had already caused damage, since Beis Din had not yet issued a verdict obligating him to pay. When Rashi says that a Malveh acquires the Mashkon completely and is liable for Onsin, he refers only to a case in which the Malveh obtained the Mashkon as a payment for the loan. In the case of the Shor Tam in Bava Kama, though, the debt did not yet exist when the ox was seized, and thus it is obvious that the Mashkon cannot be considered payment for the debt. The Shor Tam is merely a Pikadon. It is similar to an item that a craftsman worked on and which he retains merely in order to ensure that he will be paid for his work. In such a case as well, the craftsman is considered a Shomer Sachar. (Y. Marcus)
</p><p>


<font><b>2) HALACHAH: ONE WHO IS INVOLVED IN A MITZVAH IS EXEMPT FROM OTHER MITZVOS</b></font><b>
<br>QUESTION: RASHI</b> (DH v'Hacha b'Shomer) explains that one who is watching an Aveidah is exempt from giving Tzedakah because of the principle of 'ha'Osek ba'Mitzvah Patur Min ha'Mitzvah' -- 'One who is involved in one Mitzvah is exempt from another Mitzvah.' Hence, in the case of the Gemara, the person who is involved in the Mitzvah of Hashavas Aveidah is exempt from the Mitzvah of Tzedakah.
</p><p>
If one is exempt from a Mitzvah while he is involved in the performance of another Mitzvah, then every man who wears Tzitzis or Tefilin should be exempt from all other Mitzvos! This certainly is not the Halachah, though. When exactly does involvement in one Mitzvah exempt a person from another Mitzvah? (<b>TOSFOS</b> Sukah 25a, DH Sheluchei Mitzvah)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> in Sukah answers that only when the second Mitzvah will interrupt one's performance of the first Mitzvah is one exempt from the second Mitzvah. If the fulfillment of the second Mitzvah will not interfere with one's performance of the first Mitzvah (such as in the case of the Mitzvah of Tzitzis or Tefilin), he is not exempt from the second Mitzvah.
</p><p>
The <b><b><b>OR</b></b> ZARU'A</b> questions the answer of Tosfos. It is obvious that one may not interrupt one Mitzvah in order to perform another. Why would one have thought that one Mitzvah takes precedence over another, had the verse not taught otherwise?
</p><p>
Perhaps Tosfos learns from the verse that one who is involved in one Mitzvah is exempt from other Mitzvos even in a case where the opportunity for the second Mitzvah will pass if it is not done right away. One might have thought that in such a situation, he should interrupt the performance of the first Mitzvah and fulfill the second Mitzvah. The verse teaches that even in such a case, one may not interrupt the first Mitzvah to perform the second. (M. Kornfeld)
</p><p>
(b) The <b>RASHBA</b> in the name of <b>RAV HAI GA'ON</b>, the <b>MAGID MISHNEH</b> (Hilchos Sukah 6:4) in the name of the <b>GE'ONIM</b>, and the <b><b><b>OR</b></b> ZARU'A</b> (Hilchos Sukah) explain that as long as a person is involved in the preparations for a Mitzvah, such as one who is traveling in order to perform a Mitzvah, he is not obligated by the Torah to perform other Mitzvos even if they do not distract him from the first Mitzvah. Hash-m does not expect a person to do two things at once.
</p><p>
Accordingly, with regard to Tzitzis and Tefilin, one has already done all that was necessary in order to prepare for the Mitzvah. The man who wears Tzitzis or Tefilin is now in the process of passively <i>fulfilling</i> the Mitzvah and not in the process of <i>preparing</i> to fulfill the Mitzvah. The exemption from other Mitzvos applies only when one has not yet fulfilled the first Mitzvah and is involved in the preparatory stages of fulfilling the Mitzvah.
</p><p>
(c) The <b>RAN</b> (Sukah 25a) suggests a compromise. He agrees with the Rashba that one is exempt from the second Mitzvah even if its performance does not distract him from the first Mitzvah. However, if there is a way for him to fulfill the second Mitzvah and still perform the first Mitzvah <i>in its normal manner</i>, then he is not exempt from the second Mitzvah (as the Ran writes, 'why not fulfill a Mitzvah if nothing is lost while doing so?'). Only when he must change the normal way in which he performs the first Mitzvah in order to fulfill the second Mitzvah is he exempt from the second Mitzvah.
</p><p>
(According to the Ran, it is possible that the obligation to do the second Mitzvah does not stem from the normal obligation to perform Mitzvos, but rather from the requirement that one avoid <i>disgracing</i> a Mitzvah. Technically, he may be exempt since he is involved in another Mitzvah, but in practice -- since he could perform the second Mitzvah without any deviation from his normal way of performing the first Mitzvah -- he must perform the second Mitzvah in order not to disgrace it. -M. Kornfeld)
</p><p>

<b>HALACHAH:</b> The <b>REMA</b> (OC 38:8) cites the opinion of the Ran as the Halachah. When there is a way to fulfill the second Mitzvah and still perform the first Mitzvah in its normal manner, he is not exempt from the second Mitzvah. If there is no way to fulfill the second Mitzvah and perform the first Mitzvah in its normal way, he is exempt from the second Mitzvah. (See also Insights to Berachos 11:1 and Sukah 25:2.)
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>IS ONE WHO TRIPS NEGLIGENT?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven was transporting a barrel, and
               broke it, whether he was a Shomer Chinam or a Shomer
               Sachar, he swears (and is exempt);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Elazar:</font></b> I heard that both are exempt. It is a
               wonder!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah):</font></b> A Shomer Chinam swears. A
               Shomer Sachar must pay.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Contradiction (Beraisa - R. Meir):</font></b> If Shimon's jug
               broke or his camel fell and he did not clear them
               from the Reshus ha'Rabim, he is liable for damage
               that results;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Chachamim exempt b'Yedei Adam, but obligate
                    b'Yedei Shamayim.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> We hold that they argue about whether or not
                    tripping is called negligence!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #1 (R. Elazar (the Amora)):</font></b> Tana'im argue
               about R. Meir's opinion.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> R. Yehudah holds that tripping is not negligence.
               Therefore, a Shomer Chinam is exempt, but a Shomer
               Sachar pays even if he was not negligent.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> R. Elazar (the Tana) heard that the Halachah follows
               R. Meir, and questioned this. A Shomer Sachar pays
               even if he was not negligent! And even a Shomer
               Chinam swears only if he fell on an incline. Falling
               on level ground is negligence!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #2 (R. Chiya bar Aba):</font></b> (R. Meir holds that
               one who trips is negligent.) Chachamim enacted that
               he may swear, lest no one agree to transport a
               barrel!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 83a (Rava):</font></b> He swears that he did not break it
               intentionally.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Bava Kama 31a (Mishnah):</font></b> If two potters were walking
               one after the other, and one tripped, and the other
               tripped over him, the first pays the damages.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (R. Yochanan):</font></b> Our Mishnah is even like Chachamim,
               who say that one who trips is not negligent, and is
               exempt. Here he is liable, for he should have gotten
               up.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Rava):</font></b> Reuven pays the damages to Shimon, both
               bodily damage and property damage. Shimon pays to
               Levi only bodily damage, but not property damage.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question:</font></b> If one who trips is negligent, Shimon
               should be totally liable! If one who trips is not
               negligent, Reuven should be totally exempt!
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer:</font></b> Reuven is certainly negligent (because he
               tripped on his own). Shimon is blameless for
               falling, but is liable for bodily damage, for he
               should have gotten up. He is exempt for property
               damage, for he can say 'I did not dig this pit.'
<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 (6:19):</font></b> R. Yochanan said that the oath
               is an enactment, lest no one agree to transport a
               barrel. Rava taught that he swears that he didn't
               break it b'Mezid. Presumably, he holds like R. Meir,
               that one who trips is negligent, and it is an
               enactment to swear. Chachamim would require him to
               swear that he was not negligent! The Halachah
               follows our Stam Mishnah, and the enactment.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Nizkei Mamon 13:8):</font></b> If two potters
               were walking one after the other, and Reuven tripped
               and fell, and Shimon tripped on Reuven, if Reuven
               could have stood, but did not, he is liable for
               damage to Shimon. Even though he was Anus at the
               time he fell, he was not Anus afterwards. He could
               have stood.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (10):</font></b> If Reuven tripped and fell, and Shimon
               tripped on Reuven, and Levi on Shimon, and each of
               them could have stood, Reuven pays the damages to
               Shimon's body, whether he was damaged on Reuven's
               body or Reuven's load. Shimon pays the damages to
               Levi's body due to Shimon's body. Shimon is exempt
               for damage due to his load, for Reuven made Shimon
               fall.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad:</font></b> This is astounding! The Sugya is like
                    R. Yehudah, who says that one who trips is
                    Ones. If so, the first one's load is not his
                    pit. Also the Rif says so. Rather, this is when
                    he was not Mafkir his load. R. Yehudah taught
                    that if he intended to keep the shards he is
                    liable, even if he fell b'Ones. One who is
                    Mafkir Nezakav due to Ones is exempt.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> The Rambam is like the Rif. He
                    ruled (Halachah 7) that tripping is Ones, and
                    one who is Mafkir Nezakav due to Ones is
                    exempt.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Lechem Mishneh:</font></b> The entire Sugya is even like
                    Chachamim, who say that one who trips is Ones.
                    He is negligent for not standing. The Tur says
                    that the Rif considers one's Kelim to be a pit
                    even after he was Mafkir them. This is
                    astounding! One who is Mafkir his Kelim after
                    falling b'Ones is exempt!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Bava Kama 3:9):</font></b> The primary Perush obligates
               Reuven for damages to the Shimon's body and Kelim.
               One who trips is negligent, so he is liable like one
               who damages. He is liable for damage due to his
               Kelim, even though he was Mafkir them, for he
               tripped through negligence. Shimon, who tripped on
               Reuven, is not negligent for falling. Even so, he is
               liable like one who damaged, for he should have
               stood or warned Levi. He is exempt for damage due to
               his shards, for presumably he was Mafkir them. To
               answer the Beraisa, we explain Rava differently,
               like Chachamim, who hold that one who trips is Ones.
               He was Mafkir his property after falling through
               Ones. Reuven is liable for damage due to his body,
               for he should have stood or warned. Shimon, who
               tripped on Reuven, is liable only for damage of his
               body. He is more Anus than Reuven. This is a poor
               answer; they are equally negligent for not standing
               or warning.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (Rosh citing Tosfos, according to Hagahos
               ha'Grif):</font></b> Here, Rava established the Mishnah like R.
               Meir, who says that one who trips is negligent. In
               Bava Metzia we rule like R. Yehudah, who says that
               one who trips is Ones!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (Rosh citing Tosfos):</font></b> Rava did not establish
               the Mishnah like R. Meir because he holds like him.
               Rather, Rava holds like Shmuel, that every obstacle
               is a pit. We cannot establish the Mishnah like this,
               for it obligates Reuven for damage to Shimon's
               Kelim. Shimon was partially negligent for tripping
               over Reuven. We join this to his negligence for not
               standing or warning, and he is like one who damaged.
               Chachamim hold that tripping is Ones, so Shimon is
               like a pit. R. Yochanan said that even Chachamim,
               who say that one who trips is Ones, obligate for not
               standing.
<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 413:1):</font></b> If Reuven tripped and
               fell, and Shimon tripped on Reuven, if Reuven could
               have stood, he is liable. If not, he is exempt, even
               though he could have warned Shimon, since he is
               distracted with himself. Shimon pays damages to
               Levi's body from Shimon's body, but not due to his
               load. Shimon can say 'I did not dig this pit (my
               load)', for Reuven made him fall.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Drishah (1 DH Hinei):</font></b> The Rif brought Rava's
                    teaching to be the Halachah. We conclude like
                    Rava's initial explanation. However, the Rosh
                    says that Rava established the Mishnah like R.
                    Meir, that one who trips is negligent,
                    therefore he is like one who damages, and his
                    load is like a pit. The Halachah follows
                    Chachamim, that one who trips is Ones. The Rif
                    explains that Chachamim agree that he is
                    negligent for not standing, even though
                    tripping is Ones. Therefore, the Halachah
                    follows Rava's initial explanation. The Tur
                    explains the Rif like this. The Rosh holds that
                    the Rif considers Reuven to be like one who
                    damages, but he is exempt for his load, since
                    one who trips is Ones. His negligence of not
                    standing does not obligate him for his load.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>LIABILITY OF ONE WHO TRIPPED </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue when the lender needs the security (Rashi
               - to use it; Tosfos - he would not lend without a
               security):
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Akiva says that even so the loan to be a
                    Mitzvah, therefore he is a Shomer Sachar;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Eliezer does not consider it to be a
                    Mitzvah, so he is a Shomer Chinam.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah - Aba Sha'ul):</font></b> A lender may rent out an Oni's
          security and deduct the money from the loan.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Chanan bar Ami):</font></b> The Halachah follows Aba Sha'ul.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Aba Sha'ul permits renting out only a security like
               a hoe or axe, which yields a sizeable rental fee and
               yet does not depreciate significantly due to usage.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>TRANSPORTING A BARREL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven was transporting a barrel, and broke
          it, whether he was a Shomer Chinam or a Shomer Sachar, he
          swears (that he was not negligent, and he is exempt);
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	R. Elazar:</font></b> I heard that in either case he is exempt. It
          is a wonder!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Beraisa - R. Meir):</font></b> If Reuven was transporting
          a barrel, and broke it, whether he was a Shomer Chinam or
          a Shomer Sachar, he swears;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Yehudah says, a Shomer Chinam swears. A Shomer Sachar
          must pay.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah - R. Elazar):</font></b> I heard that both are exempt. It
          is a wonder!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Does R. Meir really hold that tripping is not
          considered negligence?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Beraisa - R. Meir):</font></b> If Shimon's jug
               broke or his camel fell and he did not clear them
               from the Reshus ha'Rabim, he is liable for damage
               that results;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, Beis Din does not make him pay, but
               he is liable b'Yedei Shamayim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> We hold that they argue about whether or not
               tripping is considered negligence!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (R. Elazar (the Amora)):</font></b> Tana'im argue about R.
          Meir's opinion;
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	R. Yehudah holds that tripping is not considered
          negligence. Therefore, a Shomer Chinam is exempt. A
          Shomer Sachar pays even if he was not negligent.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	R. Elazar (the Tana) heard that the Halachah follows R.
          Meir, but he did not understand why.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Granted, tripping is not considered negligence, so a
               Shomer Chinam can swear. However, a Shomer Sachar
               pays even if he was not negligent!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Even regarding a Shomer Chinam, if he fell on an
               incline, this is Ones, but if he fell on level
               ground, this is negligence!
<br>

<p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>TRANSPORTING A BARREL (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Even on an incline, he can swear only if witnesses were
          not present. If witnesses were there, he must bring
          witnesses!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Isi ben Yehudah):</font></b> 'Ein Ro'eh, he will
               swear' - if people saw, he must bring witnesses to
               be exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #2 (R. Chiya bar Aba):</font></b> (All agree that R. Meir
          holds that one who trips is negligent.) It is a
          Rabbinical enactment that he may swear and be exempt.
          Otherwise, no one would agree to transport a barrel!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What does he swear?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> He swears that he did not break it
          intentionally;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	R. Yehudah says that a Shomer Chinam swears, but a Shomer
          Sachar must pay.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	R. Elazar says that he heard that both are exempt, but he
          does not understand why;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Granted, a Shomer Chinam can swear that he was not
               negligent, but a Shomer Sachar pays even if he was
               not negligent!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Even a Shomer Chinam is exempt only if he fell on an
               incline. If he fell on level ground, this is
               negligence!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Even on an incline, if witnesses were there, he must
               bring witnesses!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - Isi ben Yehudah):</font></b> 'Ein Ro'eh' - if
                    people saw, he must bring witnesses to be
                    exempt.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE HALACHAH FOLLOWS ISI</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Reuven was transporting a barrel of wine in the market of
          Mechuza, and it broke on a beam jutting out into the
          Reshus ha'Rabim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rava:</font></b> Many people are in the market. You must bring
               witnesses to be exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Yosef (Rava's son):</font></b> This is according to Isi!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rava:</font></b> Yes, the Halachah follows Isi.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Reuven asked Shimon to buy 400 jugs of wine. He did, and
          they all soured.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rava:</font></b> Such an occurrence would be known. Shimon must
               bring proof that he brought proper wine.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> This is according to Isi!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rava:</font></b> Yes, the Halachah follows Isi.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>LIABILITY FOR BREAKAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	R. Chiya bar Yosef enacted that people who carry on
          shoulder-poles (one burden in front of the person and one
          in back) must pay half if the load breaks.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> It is more than one person should carry, but it
          is not enough that people would hire two workers for it.
          It is between Ones and negligence.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	One who carries on a cross-poles (it straddles the
          shoulders, one burden on the right, one on the left) must
          pay fully if the load breaks. (This is a load fit for two
          people, it was negligence to carry it himself).
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Rabah bar bar Chanah hired workers to transport barrels.
          A barrel broke. He took their shirts to pay for it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav:</font></b> Give them back their shirts.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rabah:</font></b> Is that the Halachah?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav:</font></b> Yes! 'L'Ma'an Telech b'Derech Tovim' (you must
               go beyond the letter of the law).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> He returned their shirts. They petitioned 'we are
               poor. We worked all day, and we have nothing to
               eat!'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rav:</font></b> Pay their wages.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rabah:</font></b> Is that the Halachah?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rav:</font></b> Yes! 'V'Orchos Tzadikim Tishmor'.
<br>
<br><center><font color='ff0000' size='+1'><b>*****<b>PEREK HA'SOCHER <b><b>ES</b></b> HA'PO'ALIM</b>*****
</b></font></center><p><b>
<br><b></b><b><b><font color='blue'>4) </font></b><font color='blue'>ALL IS ACCORDING TO THE LOCAL CUSTOM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven hired workers and told them to start
          early and finish late, if this is not the local custom,
          he cannot force them;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Where the custom is to feed them, he must feed them.
          Where the custom is to supply relish with the bread, he
          must do so. all is according to the local custom.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	A case occurred in which R. Yochanan ben Masya told his
          son to hire workers. His son promised to feed them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yochanan:</font></b> They descend from Avraham, Yitzchak and
               Yakov. Even if you give them a banquet like of King
               Shlomo, this does not suffice! Before they start
               working, tell them that you promise them only bread
               and legumes.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Shimon ben Gamliel says, there was no need for this.
          All is according to the local custom.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> The first law is obvious!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he pays them more than the usual
          wage.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that this is in order that
               they will start early and finish late. The Mishnah
               teaches that this is not so. They can say, we get
               extra so we will work well.
<br>
<br>

sjt:
<font><b>1) AN 'ONES' THAT OCCURS TO AN OBJECT BEING GUARDED IN A PUBLIC PLACE</b></font><b>
<br>OPINIONS:</b> The Gemara quotes Isi ben Yehudah who rules that when a Shomer is guarding an object and an Ones happens to the object while in a public area, the Shomer must bring witnesses to attest that an Ones occurred. The Shomer cannot exempt himself from payment by merely making a Shevu'ah.
</p><p>
Does Isi ben Yehudah's ruling also apply when the fact that the Ones occurred in a public place is known only from the Shomer's admission? In such a case, is the Shomer required to bring witnesses in order to exempt himself? Perhaps in such a case the Shomer is believed -- without witnesses -- to say that an Ones happened, since he has a 'Migu': he could have claimed that the Ones happened in a non-public place, in which case he certainly would have been believed without witnesses.
</p><p>
(a) The <b>MAHARIT</b> (Teshuvos) maintains that when the Shomer has a Migu, he indeed is believed about the Ones and he does not need to bring witnesses.
</p><p>
(b) The <b>KETZOS HA'CHOSHEN</b> (294:2) disagrees based on a rule established by the <b>BA'AL HA'ME'OR</b> in Bava Basra (17a of the pages of the Rif). The Ba'al ha'Me'or rules that a claim is not believed based on a Migu alone if it is easy to bring witnesses to support the claim. In the case of an Ones that occurred in a public place, the Shomer easily can find witnesses to attest to his claim. Hence, once he has admitted that the Ones occurred in a public place he is required to bring witnesses and his Migu is not accepted, since witnesses are readily available. (The <b>NESIVOS HA'MISHPAT</b> (187:1) cites further support for the view of the Ketzos ha'Choshen.) (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO CARRIED A BARREL AND BROKE IT</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 82b (Mishnah):</font></b> If Reuven was transporting a barrel,
               and broke it, whether he was a Shomer Chinam or a
               Shomer Sachar, he swears (and is exempt);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Elazar:</font></b> I heard that both are exempt. It is a
               wonder!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Beraisa #1 - R. Meir):</font></b> A Shomer Chinam or a Shomer
               Sachar swears;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yehudah says, a Shomer Chinam swears. A Shomer
               Sachar must pay.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Contradiction (Beraisa #2 - R. Meir):</font></b> If Shimon's
               jug broke or his camel fell and he didn't clear them
               from the Reshus ha'Rabim, he is liable for resulting
               damage;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Chachamim exempt b'Yedei Adam, but obligate
                    b'Yedei Shamayim.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> We hold that they argue about whether or not
                    tripping is called negligence!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #1 (R. Elazar (the Amora)):</font></b> Tana'im argue
               about R. Meir's opinion.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> R. Yehudah holds that tripping is not negligence.
               Therefore, a Shomer Chinam is exempt. A Shomer
               Sachar pays even without negligence. R. Elazar (the
               Tana) heard that the Halachah follows R. Meir, and
               questioned this. A Shomer Sachar pays even if he was
               not negligent! And even a Shomer Chinam swears only
               if he fell on an incline. Falling on level ground is
               negligence!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #2 (R. Chiya bar Aba):</font></b> (R. Meir holds that
               one who trips is negligent.) Chachamim enacted that
               he may swear, lest no one agree to transport a
               barrel!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 83a (Rava):</font></b> He swears that he did not break it
               intentionally.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> R. Chiya bar Yosef enacted that people who carry on
               shoulder-poles (one burden in front and one in back)
               must pay half if the load breaks.
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> This is because it is more than one person should
               carry, but it is not enough that people would hire
               two workers for it. It is in between Ones and
               negligence.'
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> One who carries on a cross-poles (it straddles the
               shoulders, one burden on the right, one on the left)
               must pay fully if the load breaks.
<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 (6:19):</font></b> R. Yochanan said that the oath
               is an enactment, lest no one agree to transport a
               barrel. Rava taught that he swears that he didn't
               break it b'Mezid. Presumably, he holds like R. Meir,
               that one who trips is negligent, and it is an
               enactment to swear. Chachamim would require him to
               swear that he was not negligent! The Halachah
               follows our Stam Mishnah, and the enactment. If one
               carried on a pole (on his shoulder) and the load
               broke, he pays half. It is too big for one, and too
               small for two.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif:</font></b> If one carries on a lattice of poles (on his
               shoulders, and it broke), he pays everything.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 3:2):</font></b> If Reuven was paid to
               transport a barrel, and broke it, mid'Oraisa he must
               pay. This is not a big Ones. It is like theft or
               loss, for which he is liable. Chachamim enacted that
               he swear that he was not negligent. If he were
               obligated to pay, no one would agree to transport a
               barrel! Therefore, they considered the barrel
               breaking like an animal that died or was broken.
               They also enacted that if two carried it on a pole
               and it broke, they pay half. Since the load is too
               big for one and light for two, it is between Ones
               and negligence.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> Since the load is improper for
                    two, they should pay fully. They were
                    negligent; each should have carried a load
                    proper for one. Since it was light for two,
                    they should be exempt. Therefore, they pay
                    half.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (ibid.):</font></b> They pay half if witnesses say that
               they were not negligent. You learn from here that if
               one carried a big barrel that normally movers do not
               carry it (alone), he was negligent. If it broke, he
               pays everything.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> The Rambam holds that the
                    negligence was carrying a heavy barrel. I say
                    that the negligence is because it was light.
                    One who trips while carrying a light load is
                    negligent.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> Rashi, the Rashba and other
                    Meforshim explain that one person alone carried
                    the load (which was too much for one and too
                    little for two). Rashi says that it is
                    (somewhat) Ones because normally one does not
                    hire two for it, and one tries to carry it
                    himself. The Rashba says that it is because
                    tripping is like Ones. Whenever the load is too
                    small for two, Rashi and the Rashba obligate
                    half, the Rambam obligates fully, and the
                    Ra'avad totally exempts.
<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 304:1):</font></b> If Reuven was paid to
               transport a barrel, and broke it, mid'Oraisa he must
               pay. This is not a big Ones. It is like theft or
               loss, for which he is liable. Chachamim enacted that
               he swear that he was not negligent. If he were
               obligated to pay, no one would agree to transport a
               barrel! Therefore, they considered the barrel
               breaking like an animal that died or was broken.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH ha'Ma'avir):</font></b> The Tur says that
                    one who trips is negligent unless the ground
                    was inclined. This is how Rashi explains.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (1 and Drishah 1):</font></b> The Shulchan Aruch is
                    like the Rambam, Rif and Rosh, who do not
                    distinguish between level and inclined land.
                    The Tur holds that one who tripped on level
                    land was Vadai negligent. He should have been
                    more careful. R. Eliezer heard that one is
                    exempt even on level ground; he holds that even
                    on an incline, he was negligent and even a
                    Shomer Chinam should pay. We hold that
                    Chachamim did not enact to exempt one who Vadai
                    was negligent. However, it is a Mitzvah to go
                    beyond the letter of the law. The Rif, Rambam
                    and Rosh learn from R. Elazar that R. Meir and
                    R. Yehudah exempt even on level ground. Surely
                    the Halachah follows them. Why didn't the Beis
                    Yosef mention that the Tur is unlike all
                    Poskim?
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (1):</font></b> R. Yehudah holds that one who trips
                    is Ones, even on level ground. R. Elazar
                    himself disagrees.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> SMA (3):</font></b> Since it is like Ones, the Rambam, Tur
                    and Shulchan Aruch did not need to say that the
                    worker is paid.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> They also enacted that if two
               carried it on a pole and it broke, they pay half.
               Since the load is too big for one and light for two,
               it is between Ones and negligence.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (5):</font></b> The Ir Shushan says that the
                    negligence is that each relies on the other to
                    help. This is wrong. Rather, since it is not
                    normal for two to carry it, it is as if one
                    carries it, and it is too much for one.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (4):</font></b> You learn from here that if one
               carried a big barrel that normally movers do not
               carry it (alone), he was negligent. If it broke, he
               pays everything.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rema:</font></b> All this is from the Rambam. Some
                    disagree and hold that whenever the load is too
                    small for two, even though it is too much for
                    one, he is not totally negligent, and pays only
                    half.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>IS ONE WHO TRIPS NEGLIGENT? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> (The standard workday is from sunrise
          until dark, i.e. when stars are visible.) A worker goes
          home on his own time (he leaves at dark), and comes to
          work on his employer's time (he leaves his house at
          sunrise) - 'Tizrach ha'Shemesh... Yetzei Adam l'Fa'alo
          vela'Avodaso Adei Arev'.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> We should follow the local custom!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Reish Lakish's law is for a new city.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> We should follow the custom of the place
               the residents came from!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> They come from different places with
               different customs.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2:</font></b> He teaches about one who said 'I hire you
          according to Torah law.'
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>ELIMINATING THE WICKED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> 'Tashes Choshech vi'Yhi Laylah' refers to
          this world, which resembles night. 'Kol Chayso Ya'ar'
          refers to the wicked, who are like beasts of the forest.
          'Tizrach ha'Shemesh' - the sun will shine for the
          Tzadikim. 'Ye'asefun' - the wicked will be gathered to
          Gehinom. 'V'El Me'onosam Yirbatzun' - every Tzadik will
          have a place according to his honor;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Yetzei Adam l'Fa'alo' - the Tzadikim go to receive
               their reward. 'Vela'Avodaso Adei Arev' refers to one
               who finished his work before he died.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Elazar b'Rebbi Shimon found a king's official who used
          to seize thieves.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Elazar:</font></b> How do you catch them? The verse compares
               them to beasts! Perhaps you get Tzadikim instead!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> The official:</font></b> I must do what the king decrees!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Elazar:</font></b> Do the following. At the fourth hour of
               the day, see who is drinking wine in the store and
               dozing, and ask about him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he is a Chacham, he is tired because he rose
                    early to learn;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If he is a worker, he rose early to work;
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>If he works at night, he is tired from working
                    at night;
<br>             <b>  <b><font color='darkgreen'>iv. </font></b></b> If none of these apply, he is a thief. Seize
                    him!
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	The king heard about this. He appointed R. Elazar to
          seize thieves.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	R. Yehoshua ben Korchah (to R. Elazar):</font></b> Vinegar, son of
          wine (your father was a Tzadik, but you are not)! How can
          you deliver Hashem's people to be killed?!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	R. Elazar:</font></b> I am only eliminating the thorns from the
          vineyard!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	R. Yehoshua:</font></b> Let Hash-m remove them Himself!
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	One day a launderer called R. Elazar 'vinegar, son of
          wine'. R. Elazar reasoned that anyone so brazen must be
          evil. He had him seized.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Later, R. Elazar decided that the launderer was not
          worthy to die. He went to redeem him, but was unable to.
          He applied to him 'Shomer Piv u'Lshono Shomer mi'Tzaros
          Nafsho'. The launderer was hung; R. Elazar cried.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Onlookers:</font></b> Don't feel bad. He and his son had
               relations with a betrothed Na'arah on Yom Kipur!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Elazar was comforted. 'Even people I am unsure
               about deserve to die. All the more so, people I am
               sure about deserve to die! Worms will not consume my
               innards after death.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> He tested this. They removed fat from his stomach
               and put it in the hot sun; it did not rot.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Fat normally does not rot in the sun!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> If there is redness (of flesh) with it, it
               does. R. Elazar's did not rot, even though there was
               flesh with it - 'Af Besari Yishkon la'Vetach.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	A similar case occurred with R. Yishmael b'Rebbi Yosi.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Eliyahu:</font></b> How can you deliver Hashem's people to be
               killed?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Yishmael:</font></b> The king commanded. What can I do?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Eliyahu:</font></b> Your father fled to Asya. You can flee to
               Ludkiya!
<br>

<p>

sjt:
</p><p>
<font><b>2) BEING HANGED FOR A SIN OF 'SEKILAH'</b></font><b>
<br>QUESTION:</b> A certain launderer made an insulting remark to Rebbi Elazar b'Rebbi Shimon. Rebbi Elazar discerned from the person's conduct that he must be a Rasha, and he had him arrested by the king's men. Later, when he saw that the launderer was hanged, he began to regret what he had done and was concerned that he may have wrongly caused a Jew to be punished by the king. He was then told that this launderer and his son had committed a most serious transgression -- they had defiled a Na'arah Me'urasah on Yom Kippur. When Rebbi Elazar heard this, he was consoled.
</p><p>
Why was the launderer deserving of being hanged? His transgression was that of 'Bo'el Na'arah Me'urasah' which is punishable not by hanging but by Sekilah (stoning).
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> (DH Al Na'arah) answers that the body of any person punished with Sekilah is hanged afterward, as the Mishnah teaches in Sanhedrin (45b), and hence it was appropriate that the launderer was hanged.
</p><p>
The <b>RASHASH</b> here points out that Rashi's answer is true only according to the opinion of Rebbi Eliezer in the Mishnah in Sanhedrin there, who maintains that all sinners who are punished with Sekilah are hanged afterward. The Chachamim there, however, maintain that only a blasphemer (Megadef) and an idol-worshipper are hanged after they are executed, but all other sinners who are punished with Sekilah are not hanged. Rashi's answer does not resolve the question according to the view of the Chachamim.
</p><p>
(b) <b>TOSFOS</b> in Kesuvos (beginning of 30b) answers that the launderer committed the sin with the Na'arah Me'urasah <i>after</i> his son had committed the sin, and thus she was not a Besulah at the time that the launderer (the father) defiled her. Therefore, he was deserving of Chenek, the punishment for every other case of 'Bo'el Eshes Ish.' Hanging, which is a form of strangulation, is considered equivalent to the punishment of Chenek (see Kesuvos 30b).
</p><p>
(c) The text of the incident as recorded by the <b>TESHUVOS HA'BACH</b> (#70) (and as cited by the <b>BEN ARYEH</b> here) is not that '<i>they</i> said to him [that he and his son had relations with a Na'arah Me'urasah on Yom Kippur],' but rather '<i>he</i> said to him,' referring to the launderer himself who was still alive while he was hanging. This also seems to be the Girsa of Tosfos in Sotah (8b). The Bach there proves from this Girsa that the launderer was hanged by his hands, and not by his neck; this was the manner of criminal punishment of the governing authority during the time of the Tana'im. (According to our Girsa, however, there is no proof for this, as the Ben Aryeh points out.)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>PHYSICAL CHARACTERISTICS OF CERTAIN CHACHAMIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	R. Elazar b'Rebbi Shimon and R. Yishmael b'Rebbi Yosi
          were very fat. A Nochris taunted them 'surely, you
          (cannot have relations, and) did not father your wives'
          children.' They refuted her claim.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why did they answer her? 'Al Ta'an Kesil
          k'Ivalto (do not answer foolish words of a fool)!'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> They needed to avert any suspicion about their
          children.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	R. Yochanan:</font></b> R. Yishmael b'Rebbi Yosi's bicep (or thigh -
          Ritva; Rabeinu Peretz - daily food intake) was like a
          pouch of nine Kavim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan's and Rav Papa's were also big (but not
               as big).
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	R. Yochanan was a remnant of the beautiful people of
          Yerushalayim. (Tosfos - he lived long after the Churban!
          Rather, he remained from such a family. Others explain
          that he was born before the Churban and lived very long.
          He cites Halachos in the name of R. Shimon and other
          Tana'im.) One may get a taste of his beauty by seeing
          light reflecting off a new silver Kli.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> We learned that the beauty of Rav Kahana was a
          taste of the beauty of R. Avahu, whose beauty was a taste
          of the beauty of Yakov Avinu, whose beauty was a taste of
          the beauty of Adam ha'Rishon;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan was not listed!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> That is only because he lacked a beard (Rashi;
          Maharsha - he had a radiant countenance, but the shape of
          his face was not outstanding).
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	R. Yochanan used to sit by the Mikveh when women would
          return from immersing. They would see him, and this
          caused their children to be beautiful and learn Torah
          like him.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rabanan:</font></b> Aren't you afraid of Ayin ha'Ra'ah (harsh
          judgment due to envy)?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	R. Yochanan:</font></b> I descend from Yosef. Ayin ha'Ra'ah does not
          rule over his seed - 'Alei Ayin';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Avahu):</font></b> We read this 'Olei Ayin' (they rise
               above the (evil) eye).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Yosi bar Chanina):</font></b> We learn from 'v'Yidgu
               la'Rov' - just like Dagim (fish) are covered by
               water, they are not in eye's scope, similarly, the
               seed of Yosef are not in scope of Ayin ha'Ra.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HOW REISH LAKISH BECAME A GREAT CHACHAM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	One day R. Yochanan was bathing in the Yarden river.
          Reish Lakish (who was then a robber), struck by R.
          Yochanan's beauty, jumped across the river. R. Yochanan
          hoped to channel Reish Lakish's strength to Torah. He
          offered 'if you return to Torah, you may marry my sister,
          who is more beautiful than I.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Reish Lakish agreed. He was unable to leap across the
          river to get his Kelim (the acceptance to learn sapped
          his strength). R. Yochanan taught him, and he became
          great in Torah. One day they were learning about Tum'ah
          of Kelim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> When are a sword, knife, dagger, spear,
               and sickle considered finished, so that they receive
               Tum'ah?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1 (R. Yochanan):</font></b> It is when they are
               reheated in the furnace.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #2 (Reish Lakish):</font></b> It is when they are
               burnished in water.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> R. Yochanan:</font></b> A robber knows about robbers' tools!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Reish Lakish:</font></b> You did not help me. I am called Rebbi
               now, and also before (I learned from you) I was
               called Rebbi (of thieves! Maharsha - this is how R.
               Yochanan understood. Really, Reish Lakish meant that
               he was a Rebbi in Torah and knew about these Kelim
               even before he was a thief.)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> R. Yochanan:</font></b> I brought you under the wings of the
               Shechinah!
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Yochanan felt bad, and Reish Lakish fell sick. His
          wife asked R. Yochanan (her brother) to pray for Reish
          Lakish, if not for his sake, for her son or herself (that
          they not become an orphan or widow).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan refused - 'Azvah Yesomecha...
               v'Almenosecha Alai Tivtachu' (I  will care for you).
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Reish Lakish died; R. Yochanan missed him sorely. Rabanan
          sent R. Elazar to replace him, for he was very sharp.
          Whatever R. Yochanan said, he found a support for it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yochanan:</font></b> You are no replacement! Reish Lakish
               would ask 24 questions against whatever I said. I
               would give 24 answers, and learning increased;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> You only support me. I already know that I teach
               according to the Halachah!
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	R. Yochanan tore his clothing, cried and went crazy.
          Rabanan requested mercy for him, and he died.
<br>
<br>

sjt:
<font><b>1) THE SIZES OF THE CHACHAMIM</b></font><b>
<br>QUESTION:</b> Rebbi Yochanan stated that the 'Ever' (lit. 'limb') of Rebbi Yishmael b'Rebbi Yosi was like a flask the size of nine Kavim. Rav Papa stated that the 'Ever' of Rebbi Yochanan was like a flask the size of five Kavim (or, according to others, three Kavim). The Gemara continues and says that the 'Ever' of Rav Papa himself was like a Harpanian basket. (See <b>RASHI</b>. According to the <b>RITVA</b>, 'Ever' refers to the muscles of the upper arm or thigh, by which the size of a person is measured. <b>TOSFOS RABEINU PERETZ</b> explains that 'Ever' refers to the size of their meals, as in the word '[Se'udas] <i>Havra'ah</i>.')
</p><p>
Why are the holy Sages of the Gemara discussing the sizes of the 'Ever' of the Tana'im and Amora'im?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> here explains that these statements are recorded in the Gemara in order to teach that a person should not speak disparagingly about others who are of a portly size.
</p><p>
Perhaps the intention of Tosfos is as follows. The Gemara earlier relates that a certain noblewoman said to Rebbi Elazar b'Rebbi Shimon and to Rebbi Yishmael b'Rebbi Yosi that 'your sons are not yours.' She was insulting them, saying that they were so large that it was not possible that they could have had relations with their wives. They answered her insult and proved her to be wrong. This incident indicates that large people suffer from rumors that their sons are not their own. In order to counteract such rumors, the Gemara relates that some of the Tana'im and Amora'im were very large and still were able to have children.
</p><p>
Alternatively, perhaps Tosfos means simply that one should not insult others for being large, since the holy Tana'im and Amora'im were large.
</p><p>
(b) The <b>MAHARSHAL</b> (cited by the Chidushei Ge'onim in the Ein Yakov) and the <b>EIN YAKOV</b> explain this Gemara based on the principle, 'Kol ha'Gadol me'Chaveiro, Yitzro Gadol Heimenu' -- 'He who is greater than his fellow man, his Yetzer [ha'Ra] is greater than his [fellow man's].' The Gemara is not referring to the physical size of the 'Ever' of these Sages. Rather, it is referring to the strength of their desire which resulted from their greatness in Torah. The Gemara is emphasizing that even though their 'Yetzer' was so great, they were able to conquer it. (I. Alsheich)
</p><p>


<font><b>2) THE AMORA'IM WHO SAT NEAR THE MIKVAH WHILE WOMEN IMMERSED THEMSELVES</b></font><b>
<br>QUESTION:</b> The Gemara relates that Rebbi Yochanan used to sit next to the Mikvah so that the women would see his beauty when they came out and would have children as beautiful and as learned as he. The Rabanan asked him, 'Are you not afraid of the 'evil eye'?' Rebbi Yochanan answered that he was descended from Yosef, over whom the 'evil eye' had no power.
</p><p>
A similar practice is recorded in the Gemara in Berachos (20a) regarding Rav Gidal, who used to sit next to the Mikvah and instruct the women on how to immerse themselves. The Rabanan asked him, 'Are you not afraid of your evil inclination?' Rav Gidal answered, 'They (the women) appear to me like white geese.'
</p><p>
Why did the Rabanan not ask Rebbi Yochanan if he was afraid of his evil inclination, as they asked Rav Gidal?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>BACH</b> (Berachos 20a) and <b>ETZ YOSEF</b> answer that Rebbi Yochanan's eyelashes were so long that he could not see anything, as the Gemara relates in Bava Kama (117a). Therefore, Rebbi Yochanan could not see the women returning from the Mikvah, and the Rabanan were not concerned that his evil inclination might become aroused.
</p><p>
(b) The <b>RASHASH</b> (Berachos 20a) answers that since Rebbi Yochanan merely wanted the women to see his beauty as they came out, he sat at a distance from the Mikvah. Rav Gidal, however, had to sit close to the Mikvah in order to instruct the women how to immerse themselves properly.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>JUDGING WITHOUT WITNESSES</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'> 83b:</font></b> R. Elazar b'Rebbi Shimon found a king's
               official who used to seize thieves. The official
               confessed that he is not sure that he gets the
               thieves, but he must do what the king decrees.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Elazar:</font></b> Do thusly: at the fourth hour of the day,
               see who is drinking wine in the store and dozing.
               Ask about him;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he is a Chacham, he is tired because he rose
                    early to learn. If he is a worker, he rose
                    early to work. If he works at night, he is
                    tired from working at night. If none of these
                    apply, he is a thief. Seize him!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The king heard about this. He appointed R. Elazar to
               seize thieves.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> R. Yehoshua ben Korchah (to R. Elazar):</font></b> Vinegar, son
               of wine (your father was a Tzadik, but you are not)!
               How can you deliver Hashem's people to be killed?!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> R. Elazar:</font></b> I am only eliminating the thorns from the
               vineyard!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> R. Yehoshua:</font></b> Let Hash-m remove them Himself!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> One day a launderer called R. Elazar 'vinegar, son
               of wine'. R. Elazar reasoned that anyone so brazen
               must be evil. He had him seized.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> Later, R. Elazar decided that the launderer was not
               worthy to die. He went to redeem him, but was unable
               to. He applied to him 'Shomer Piv u'Lshono Shomer
               mi'Tzaros Nafsho'. The launderer was hung; R. Elazar
               cried.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Onlookers:</font></b> Don't feel bad. He and his son had
                    Bi'ah with a Na'arah Me'urasah on Yom Kipur!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> R. Elazar was comforted. 'Even people I am unsure
               about deserve to die. All the more so, people I am
               sure about deserve to die! Worms will not consume my
               innards after death.' He tested this. They removed
               fat from his stomach and put it in the hot sun; it
               did not rot.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> A similar case occurred with R. Yishmael b'Rebbi
               Yosi. Eliyahu protested, and suggested that he flee.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Sanhedrin 45b (Mishnah - R. Eliezer):</font></b> We hang a man
               facing people, we hang a woman facing the beam;
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> Chachamim say, we hang only men, but not women.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> R. Eliezer:</font></b> Shimon ben Shetach hung women in
               Ashkelon!
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Chachamim:</font></b> He hung 80 in one day, even though we do
               not judge two capital cases in one day (it was due
               to an urgent need, it was not according to
               Halachah).
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (4):</font></b> If Beis Din sees that people wantonly
               transgress a matter, they should fence and fix it as
               they see fit. Shimon ben Shetach once hung 80 women
               in one day in Ashkelon without proper interrogation
               of witnesses or warning or clear testimony. It was a
               Hora'as Sha'ah based on what he saw.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (ha'Ramach):</font></b> How could he kill them
                    without proper testimony?! The Gemara said that
                    it was Hora'as Sha'ah to kill different Misos
                    on the same day. If there was not proper
                    interrogation or warning or testimony, the
                    Gemara would have said so!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (5):</font></b> Beis Din can lash someone of ill repute
               if everyone says that he transgresses Arayos. This
               is if the reports do not cease and he does not have
               known enemies that might be starting the reports. We
               disgrace a person of ill repute and revile his
               parents in front of him.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Teshuvah 18:13):</font></b> A case occurred in which a
               widow became pregnant. There were unceasing rumors
               and circumstantial evidence that it was from a
               certain Nochri, but no witnesses. She herself
               admitted this. It caused a disgrace to Torah in the
               eyes of Nochrim. To prevent other women from doing
               similarly, they decreed to cut off her nose to mar
               the face that she prettied for the adulterer. I
               agree; it should be done immediately lest she
               frequent bad company. She should also be fined
               according to her wealth.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Bach (CM 2 DH v'Nir'eh) The episode with Shimon
                    ben Shetach is the source of the Rambam and
                    Rosh, who do not require proper testimony.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos Tur ha'Shalem (27):</font></b> The Gemara does not
                    say that Shimon ben Shetach acted without
                    testimony. Perhaps they learn from Yehoshua
                    (who killed Achan) and David (who killed the
                    Ger Amaleki based on the Ger's own admission).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> Perhaps they understand that there is not
                    time in one day to accept, interrogate and
                    deliberate 80 testimonies in one day. However,
                    the Gemara says only that they were not all the
                    same case. Perhaps two witnesses testified
                    against 40 women (e.g. they all did
                    witchcraft), and another two testified against
                    the rest (e.g. they served idolatry)!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Ritva (Bava Metzia 83b DH Omar):</font></b> R. Elazar
                    acted without witness or warning and when there
                    is no Beis Din. He was a Shali'ach of the king.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Birkei Yosef (CM 2 DH Shavti):</font></b> The Ritva
                    determined that he did not rely on the power of
                    Beis Din because he judged alone, based on
                    estimation. Also, it seems that R. Elazar did
                    so constantly, so it could not be a Hora'as
                    Sha'ah.
<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 2:1):</font></b> Any Beis Din, even if it is
               did not get Semichah in Eretz Yisrael, if it sees
               that people wantonly transgress a matter (and it is
               necessary at the time) they can impose death or any
               other punishment, even if there is not full
               testimony. All their actions must be l'Shem
               Shomayim. Only the Gadol ha'Dor may do so, or Tuvei
               ha'Ir (the governors of the city) if Beis Din
               authorized them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Source #1 (R. Yerucham 2:8:3), cited in Beis
                    Yosef (DH v'Nir'eh).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Source #2:</font></b> Rivash (251, also cited in Beis
                    Yosef DH v'Nir'eh): Beis Din can punish
                    according to the needs of the time, even
                    without proper testimony. However, we are more
                    apt to punish when there is greater testimony.
                    We would cause a murderer to die (by locking
                    him in a cell - Sanhedrin 81b) when there was
                    not sufficient testimony against him. Some say
                    that this is when the witnesses did not see
                    each other, or there was no warning, or the
                    witnesses disagreed about minor details. No one
                    says that we do so based on one witness or
                    women or Pesulim.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH v'Chosav ha'Rashba and DH
                    v'Gam):</font></b> The Rashba says that if the testimony
                    is clear, the judges can make a monetary or
                    bodily fine as they see fit. This sustains the
                    world. If we were limited to Torah law, and
                    required witnesses and warning for everything,
                    the world would be desolate. Yerushalayim was
                    destroyed because they stuck to Torah law.
                    Shimon ben Shetach hung 80 women, even though
                    the Torah does not allow hanging women or
                    killing different Misos on the same day. All
                    the more so judges authorized by the king may
                    do so, like R. Shimon ben Elazar did. However,
                    the judges must act l'Shem Shamayim and weigh
                    it carefully.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> SMA (6):</font></b> Just like testimony is not needed,
                    also warning is not needed. However, capital
                    cases require warning with the consent of the
                    city's Chachamim.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>JUDGING WITHOUT TWO WITNESSES </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'>R. ELAZAR B'REBBI SHIMON</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	In spite of the supports that R. Elazar b'Rebbi Shimon
          handed over only Resha'im (83b), he was concerned lest he
          handed over a Tzadik. He requested afflictions. At night
          they would put 60 felt blankets under him. During the day
          they would pour over him 60 basins of water. Blood from
          his boils would fill 60 basins. His wife would make for
          him 60 types of food from figs; he would recover. She
          would not let him go to the Beis Medrash, lest he be
          pressed (to answer questions, which could aggravate his
          condition).
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	At night he would invite the afflictions; in the morning
          he would expel them, lest they detract from his Torah.
          Once his wife heard this. She was outraged that he caused
          his own afflictions, which depleted her father's wealth.
          She rebelled against him and went to her father's house.
          Sailors (who were saved from mortal danger in his merit)
          gave him a gift of 60 slaves bearing 60 wallets of money,
          who prepared his special remedy.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	His wife asked her daughter to check on him. He told her
          'we (Chachamim) have more wealth than my wife's family -
          'mi'Merchak Tavi Lachmah''. He ate, drank and recovered
          and went to the Beis Medrash. Women came asking about
          blood stains of 60 different hues. He declared that all
          of them are Tahor.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rabanan were skeptical. He said 'if I am correct,
               all 60 women should have male children.' It was
               fulfilled, and they called the children Elazar.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa - Rebbi):</font></b> The evil kingdom (Romi) withheld
               the birth of many children by making R. Elazar seize
               thieves (and be absent from the Beis Medrash).
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Before he died, he told his wife 'I know that many
          Rabanan are angry at me (for handing over their
          relatives). They would not eulogize me properly. Leave me
          in the attic and do not worry.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rav Shmuel bar Nachmani:</font></b> I heard second-hand from his
          wife that he was there between 18 and 22 years. She would
          check his hair. When a hair was taken from him, he would 
          bleed. One day she saw a worm coming from his ear. That
          night, he explained to her in a dream that this was
          because once he heard a Chacham shamed and did not
          protest enough.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	People would come for judgment. They would state their
          claims, and a voice from the attic would give the
          verdict.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #1:</font></b> One day his wife quarreled with a neighbor.
          She was cursed 'you should be like your husband,
          unburied.' Rabanan heard, and decided that it is time to
          bury him.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Version #2:</font></b> R. Shimon (his father) came to Rabanan in a
          dream, telling them that it is time to bury his son.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	The people of his city would not allow the burial, since
          they were protected from beasts all the years he was in
          the attic. On Erev Yom Kipur they were busy, and people
          from a nearby village took the body. They brought him to
          the cave where his father was buried; a snake guarded it
          from outside. They asked permission to let the son come
          to his father; the snake allowed them.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	Rebbi inquired to marry his widow. She refused, because
          'you (Rebbi) are like Chulin compared to R. Elazar.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rebbi:</font></b> Granted, he was greater in Torah. Was he
               greater in deeds than me?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> His widow:</font></b> I did not know if he was greater in
               Torah, but I know that he was greater in deeds than
               you. He accepted on himself afflictions!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Why did Rebbi say that R. Elazar was greater
          than him in Torah?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> Rebbi and R. Elazar b'Rebbi Shimon used to sit on
          the ground in front of R. Shimon ben Gamliel and R.
          Yehoshua ben Korchah (and other Rabanan), who were on
          benches. Rabanan learned much from Rebbi and R. Elazar,
          they felt that they should also be on benches.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Shimon ben Gamliel:</font></b> Perhaps Ayin ha'Ra'ah will
               rule over my son (Rebbi)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Yehoshua ben Korchah:</font></b> We must also be concerned
               for R. Elazar!
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	R. Elazar was insulted by the idea that Rebbi was
          (equally important and therefore) prone to Ayin ha'Ra.
          Previously, R. Elazar used to support Rebbi's teachings;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Now, when Rebbi said that he had a question, R.
               Elazar would say 'this is what you want to ask; this
               refutes you. You have asked enough questions without
               substance!'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rebbi was dejected. His father consoled him:</font></b> do not
               expect to be as great as him. His father was a lion.
               Your father is a fox!
<br>

<p>

sjt:
</p><p>
<font><b>3) THE 'RESHA'AH'</b></font><b>
<br>QUESTION:</b> The Gemara quotes a Beraisa in which Rebbi declares, 'How much Piryah v'Rivyah did that evil one (Resha'ah) annul from the Jewish people!' <b>RASHI</b> explains that Rebbi was referring to the 'Malchus ha'Resha'ah,' the evil kingdom, which forcefully appointed Rebbi Elazar b'Rebbi Shimon to a position of law enforcement and thereby caused him to be absent from the study hall where he would have been able to rule on issues of Dam Nidah and permit many women to be with their husbands. Rashi cites an alternate explanation which says that Rebbi was referring to the <i>wife</i> of Rebbi Elazar, who prevented Rebbi Elazar from going to the study hall for many years.
</p><p>
According to the second explanation of Rashi, how could Rebbi call Rebbi Elazar's wife a 'Resha'ah'? After all, she was an 'Eshes Chaver,' the wife of a Talmid Chacham, and she certainly must have been a Tzadekes. Indeed, the Gemara later relates that Rebbi himself wanted to marry her after Rebbi Elazar died!
</p><p>
<b>ANSWER:</b> The <b>BEN YEHOYADA</b> explains that according to Rashi's second explanation, the word 'Resha'ah' does not mean 'wicked woman,' but rather means '[the one who causes] turmoil,' as in the verse, 'v'Hu Yashkit u'Mi <i>Yarshi'a</i>' -- 'When He grants tranquility, who can cause turmoil?' (Iyov 34:29). Similarly, when the verse describes the power of Sha'ul ha'Melech, it says, 'uv'Chol Asher Yifneh Yarshi'a' -- 'Wherever he turned, he caused upheaval' (Shmuel I 14:47; see also Koheles 7:17).
</p><p>
Accordingly, Rebbi meant that the wife of Rebbi Elazar caused great turmoil when she prevented her husband from going to the study hall. (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>REBBI'S AFFLICTIONS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Rebbi:</font></b> There were three humble people: my father (like we
          find in the above episode), Bnei Beseirah, and Yonason
          ben Sha'ul.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Bnei Beseira were the Nesi'im (leaders of Yisrael),
               and they appointed Hillel to be Nasi in their place.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Yonason (was the king's son, yet he) told David
               'Atah Timloch... Ehyeh Lecha l'Mishneh (I will be
               secondary to you).'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps that was not from humility,
               rather, because he saw that Yisrael supported David!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Also, perhaps Bnei Beseira did not appoint
               Hillel from humility, rather because they saw that
               he was greater (and they were embarrassed because
               they had to ask him questions)!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> We have no challenge to the proof of R. Shimon ben
               Gamliel's humility.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Rebbi saw the greatness of afflictions (they protected R.
          Elazar from decaying). He accepted six years of a kidney
          stone, and seven years of thrush (a mouth disease). Some
          say that it was vice-versa.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	The stable-boy who cared for Rebbi's horses became richer
          (from the manure) than Shevor Malka (a Persian king).
          When he would give fodder to the animals, their voices
          would be heard for three Mil. He would give when Rebbi
          went to relieve himself (to try to cover up Rebbi's
          pain). It did not help. Rebbi's voice was louder, and
          people going to sea would hear it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Still, R. Elazar's afflictions were greater than Rebbi's,
          for R. Elazar's came and left through love, and Rebbi's
          came and left through incidents. (Maharsha - R. Elazar's
          afflictions were of love. He requested that they come and
          leave at the proper times to avoid Bitul Torah. Rebbi's
          came due to an episode, and did not leave each morning
          due to his prayer, rather, due to another episode.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A calf was being taken to slaughter. It put its head
               under Rebbi's garment and cried.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rebbi:</font></b> Go! You were created to be slaughtered!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It was decreed in Heaven that since he was not
                    merciful, he will be afflicted. (Maharsha -
                    cattle were made for plowing, and to be
                    slaughtered only at the end of their lives.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> (This is the incident through which they left.)
               Rebbi's slave was cleaning the house; she was about
               to clear out some baby rats. Rebbi stopped her, for
               'v'Rachamav Al Kol Ma'asav.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It was decreed in Heaven that since he was
                    merciful, his afflictions will cease.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	All the years of R. Elazar's afflictions, no one died
          before his allotted years. All the years of Rebbi's
          afflictions, the world did not need rain.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah bar Rav Shila):</font></b> A rainy day is as harsh as a 
               day of judgment.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Ameimar):</font></b> If the world did not need rain so much,
               Chachamim would pray that it cease.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	In spite of the lack of rain, when a radish was uprooted,
          its cavity was full of water.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>TEACHING OTHERS' CHILDREN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Rebbi went to the city of R. Elazar b'Rebbi Shimon, and
          asked if he had left a son. He was told that he did, and
          the harlots would pay his son (more than they would
          charge)! Rebbi gave him the title of 'Rebbi', and asked
          R. Shimon ben Isi teach him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Every day the son wanted to return home. R. Shimon
               ben Isi told him 'they put a gold garment on you and
               call you Rebbi. How can you discuss going home?!'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The son swore not to ask to go home again.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> When he grew up, he sat in Rebbi's academy. Rebbi
               heard a voice similar to R. Elazar b'Rebbi Shimon's.
               They told him that it was his son.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rebbi:</font></b> 'Pri Tzadik Etz Chayim' refers to R. Yosi
               b'Rebbi Elazar b'Rebbi Shimon. 'V'Loke'ach Nefashos
               Chacham' refers to R. Shimon ben Isi.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	When the son died, they brought him to his father's cave;
          the snake was guarding it. They asked permission to let
          the son come to his father; the snake did not allow them
          in.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	People thought that this was because his father was
          greater. A voice from Heaven refuted this. Rather, it was
          because the father suffered being in a cave for 13 years
          (when the Romans sought to kill R. Shimon), but the son
          did not.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Rebbi went to the city of R. Tarfon, and asked if he had
          left a son (R. Tarfon used to swear 'I will kill my son
          if this is false'). He was told that he left no sons, but
          his daughter has a son, and the harlots would pay his son
          more than they would charge.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Rebbi offered to marry his daughter to him if he would
          repent; he did.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Some say that he married Rebbi's daughter, then
               divorced her. Others say that he never married her,
               lest people say that he repented just to marry her.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why did Rebbi take such pains for other
          people's children?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> Anyone who teaches Torah to
          another's child merits to sit in the Heavenly academy -
          'Lefanai Ta'amod';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Anyone who teaches Torah to an ignoramus' child,
               harsh decrees against him are torn up - 'Totzi Yakar
               mi'Zolel k'Fi Tihyeh' (if you take dearness from
               disgrace, you will be (able to nullify My decrees)
               like My mouth).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(R. Parnach):</font></b> If a Chacham's son and grandson are
          Chachamim, Torah will never cease from his seed -
          'mi'Picha umi'Pi Zar'acha umi'Pi Zera Zar'acha Omar
          Hash-m me'Atah v'Ad Olam.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Why does it say 'Omar Hash-m'?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Hash-m made himself a guarantor for this.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Why does it say 'me'Atah v'Ad Olam'?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (R. Yirmeyah):</font></b> From this point (when a man, his
          son and grandson are all Chachamim), Torah returns to its
          host.
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	Rav Yosef fasted 40 fasts in order that Torah should
          never cease from his seed. He was shown (in a dream) 'Lo
          Yamush mi'Picha';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He fasted another 40 fasts, and he was shown 'Lo
               Yamush mi'Picha umi'Pi Zaracha';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He fasted another 100 (Maharshal - 40) fasts, and he
               was shown 'Lo Yamush mi'Picha umi'Pi Zar'acha umi'Pi
               Zera Zar'acha '.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> I need not fast any more. From now on,
               Torah returns to its host.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	When R. Zeira came to Eretz Yisrael, he fasted 100 (or
          40) fasts in order that he should forget the
          (argumentative) Gemara he learned in Bavel, in order that
          it not distract him (from the more straightforward
          approach of Eretz Yisrael);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He fasted another 100 (40) in order that R. Elazar
               (ben Pedas) not die in R. Zeira's lifetime, lest
               communal concerns fall upon himself;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He fasted another 100 (40) in order that he not be
               subjected to the fire of Gehinom.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Every 30 days he would check if he is worthy of
               this. He would ignite a furnace and sit inside, and
               it did not harm him.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Once, Rabanan were envious, and this caused his
               garment to be burned.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>APPRECIATING TORAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> 'Al Mah Ovdah ha'Aretz' (why did the
          Churban come)? 'Mi ha'Ish he'Chacham' (Chachamim could
          not answer) 'va'Asher Diber Pi Hash-m Elav' (the prophets
          could not answer), until 'va'Yomer Hash-m Al Azvam Es
          Torasi Asher Nosati Lifneihem' (Hash-m explained, because
          they abandoned My Torah).
<br>
<br>

sjt:
<font><b>1) THE VOICE OF REBBI</b></font><b>
<br>QUESTION:</b> The Gemara relates that when Rebbi was ill, his cries of pain could be heard from a distance of more than three Mil, and they could be heard even by seafarers at sea. How, though, is it possible for a person's voice to be heard so far away?
</p><p>
<b>ANSWER:</b> The <b>BEN YEHOYADA</b> writes that Rebbi's voice could not have traveled so far naturally. Rather, Hash-m caused a miracle to happen so that the entire world would know of the afflictions that Rebbi was suffering (in the sense described in Yeshayah 53:4). (I. Alsheich)
</p><p>


<font><b>2) THE CALF THAT CRIED</b></font><b>
<br>QUESTION:</b> The Gemara relates the incident in which Rebbi became subject to immense suffering. A young calf was being led to be slaughtered, and it placed its head beneath the coattails of Rebbi and cried. Rebbi said to it, 'Go! It was for this that you were created.' Rebbi was punished with great suffering because he should have shown greater mercy to the animal.
</p><p>
How can an animal have the sense to attempt to flee its fate by placing its head beneath the coattails of Rebbi and crying?
</p><p>
<b>ANSWER: RAV YAKOV EMDEN</b> and the <b>BEN YEHOYADA</b> write that this calf had a reincarnated Neshamah (which, the Ben Yehoyada adds, was the Neshamah of a G-d-fearing Jew) which had been reincarnated in the form of a calf in order to effect a certain rectification (Tikun) of the soul. Hence, when the Neshamah within this calf saw that Rebbi was passing by, it cried before him in a plea to Rebbi to remove it from the calf through holy Kavanos (similar to the way that Rav Chaim Vital was able to extract Neshamos, the Ben Yehoyada points out) so that it would not have to be removed through Shechitah. (The Ben Yehoyada adds that perhaps the reason why the Neshamah did not want to be removed from the calf through Shechitah was not that Shechitah might cause pain, but that the animal might be fed to unfitting people who would not recite a proper blessing before eating, and thus the required Tikun of the Neshamah would not be achieved.)
</p><p>
Rav Yakov Emden says that this is why Rebbi was punished. He should have prayed for the Neshamah to be taken out of the animal and experience its necessary Tikun without Shechitah.
</p><p>
(The Ben Yehoyada writes that Rebbi's reason for not helping to extract the Neshamah was that if Hash-m had put the Neshamah into the animal that was being led to be slaughtered, that must have been part of the Tikun of the Neshamah, and Rebbi did not want to interfere. <b>RAV ELIYAHU DESSLER</b> in Michtav me'Eliyahu (3:103) writes that Rebbi saw with Ru'ach ha'Kodesh that the calf would fulfill its purpose by eventually being consumed by a righteous Talmid Chacham, and it would thereby be an instrument for that Talmid Chacham's Avodas Hash-m. Rav Dessler adds that if, indeed, the calf's purpose in being created was to be slaughtered and eaten by a Talmid Chacham, even though Rebbi was absolutely correct from a logical and intellectual standpoint, he nevertheless demonstrated a slight lack in the attribute of Chesed which is demanded from someone of his stature, and that is why he was punished.) (I. Alsheich)
</p><p>


<font><b>3) AGADAH: REBBI ZEIRA'S FASTS</b></font><b>
<br>QUESTION:</b> The Gemara relates that when Rebbi Zeira came to Eretz Yisrael from Bavel, he fasted for 100 days (or 40 days, according to the Girsa of the Maharshal and others) days in order to forget the Talmud ha'Bavli that he had learned so that he would be able to learn the Yerushalmi. He fasted an equal number of fasts in order that Rebbi Elazar not die and the communal responsibilities be passed to him. He fasted a third set of such fasts in order to be saved from the fire of Gehinom.
</p><p>
The conduct of Rebbi Zeira sheds light on a cryptic Gemara in Megilah (7b). The Gemara there relates that Rabah invited Rebbi Zeira to join him in his Purim Se'udah. During the Se'udah, 'Rabah arose and slaughtered Rebbi Zeira.' The next day, Rabah prayed to Hash-m to bring Rebbi Zeira back to life.
</p><p>
What is the meaning of this narrative? How could the great and righteous Rabah kill another Amora?
</p><p>
The Acharonim point out that the Gemara in Shabbos (156a) says that Rabah was born in the constellation (Mazal) of Ma'adim, and people born in that Mazal tend to have a violent nature. As long as Rabah was learning Torah, his violent nature was channeled for holy purposes. On Purim, however, while he was not learning, his violent nature manifested itself in the slaughter of his comrade. This does not suffice to explain, however, how a holy Amora could commit such a terrible act. (See Insights to Megilah 7:3.)
</p><p>
<b>ANSWER:</b> The <b>MAHARSHA</b> (in Megilah) writes that the Gemara does not mean that Rabah actually slaughtered Rebbi Zeira with a knife. Rather, the quantity of food and drink which Rabah gave to Rebbi Zeira was so great that he became deathly ill. Rabah wanted him to experience a sublime degree of Simchah and thus he encouraged Rebbi Zeira to continue drinking, until Rebbi Zeira's life was actually endangered. The next day Rabah prayed for Rebbi Zeira and he recovered.
</p><p>
The <b>CHAVOS YA'IR</b> (#152, cited at the end of Sefer Chafetz Chaim) suggests that different Amora'im had different approaches to serving Hash-m. He cites the Gemara in Berachos (30a) which relates an incident wherein Rebbi Yirmeyah looked too jovial, and Rebbi Zeira tried to sober him by mentioning the virtues of melancholy. Although this seems like a minor incident, it actually reflects two different approaches to life. Rebbi Zeira and Rebbi Yirmeyah each had a very different path in Avodas Hash-m.
</p><p>
Rebbi Zeira maintained that fasting and self-affliction is the correct way to serve Hash-m and to achieve holiness, as is evidenced by the Gemara here in Bava Metzia which relates that Rebbi Zeira would fast for long periods of time, and he would test himself with various forms of self-affliction to assess his total devotion to Hash-m. In contrast, Rebbi Yirmeyah maintained a jolly and cheerful attitude. He ruled that a person may not afflict himself beyond what the Torah requires. Indeed, Rebbi Yirmeyah says that a Nazir is considered a 'sinner' (Nedarim 9b) for accepting upon himself excessive suffering. The Gemara in Nidah (23a) relates how Rebbi Yirmeyah -- in accordance with his path in Avodas Hash-m -- would attempt to break Rebbi Zeira's somberness and get him to laugh, because he maintained that Rebbi Zeira's somber attitude was not the correct way to serve Hash-m. Conversely, the Gemara in Berachos (ibid.) relates how Rebbi Zeira tried (unsuccessfully) to temper Rebbi Yirmeyah's joyousness.
</p><p>
Similarly, Rabah served Hash-m through the attribute of Simchah. The Gemara relates that he would open his lecture with a 'Milsa di'Bedichusa' (Shabbos 30b), a humorous statement. Rebbi Zeira, as mentioned above, disagreed with Rabah's approach and maintained that one should serve Hash-m with solemnity. At his Purim Se'udah, Rabah saw that Rebbi Zeira was too solemn and was not experiencing the Simchah of Purim sufficiently, and thus he insisted that Rebbi Zeira eat and drink more. Rebbi Zeira could not refuse Rabah's request, because the Gemara in Pesachim (86b) teaches that 'whatever the host tells you to do, you must do' (see Insights there), and thus he continued to eat and drink. However, since he was accustomed to fasting (Bava Metzia 85a), it was unhealthy for him to eat so much and as a result he became deathly ill. Hence, Rabah needed to pray for Rebbi Zeira's recovery. (M. Kornfeld)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>BIRKAS HA'TORAH</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> 'Al Mah Ovdah ha'Aretz' (why did the
               Churban come)? 'Mi ha'Ish he'Chacham' (Chachamim
               could not answer) 'va'Asher Diber Pi Hash-m Elav'
               (the prophets could not answer), until 'va'Yomer
               Hash-m Al Azvam Es Torasi Asher Nosati Lifneihem'
               (Hash-m explained, because they abandoned My Torah).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> They did not bless before learning.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Berachos 11b (Rav Yehudah):</font></b> If one wakes up to learn
               before saying Keri'as Shema, he must bless (Birkas
               ha'Torah); if he already said Keri'as Shema, he does
               not bless, for Ahavah Rabah exempts him.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rav Huna):</font></b> One must bless for learning Mikra
               (Torah, Nevi'im or Kesuvim), but not for Midrash.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If one rises early and says requests,
               verses or Tehilim until dawn, must he say Birkas
               ha'Torah beforehand?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rambam, Pe'er ha'Dor 104; 25 in some
               versions):</font></b> Always, one must say Birkas ha'Torah
               before verses, even one verse. We do not distinguish
               whether it is in the way of supplication.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Berachos 1:13):</font></b> If one rose early to learn
               before going to the Beis ha'Keneses and blessed
               Birkas ha'Torah, he does not bless again when saying
               the Korbanos in the Beis ha'Keneses.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Teshuvah 4:1):</font></b> If one rises early to learn, he
               blesses all the Berachos until and including Birkas
               ha'Torah.
<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 46:9):</font></b> One may not say verses
               before Birkas ha'Torah, even in the way of
               supplication. Some say that one need not be
               concerned, since he says them in the way of
               supplication. It is good to be concerned for the
               first opinion.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> The custom is like the latter opinion, for
               during the days of Slichos we say Slichos, and
               afterwards Birkas ha'Torah with the other Berachos.
               Also every day we say verses and supplication when
               entering the Beis ha'Keneses, and afterwards Birkas
               ha'Torah. Our custom is to say Birkas ha'Torah right
               after Asher Yotzar. One should not deviate.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tur:</font></b> R. Yehudah ha'Chasid would say Kri'as
                    Shema in Korbanos... and Birkas ha'Torah before
                    Parshas ha'Tamid. I found this difficult, for
                    there are verses beforehand! I said it
                    immediately after Elokai Neshamah. I saw that
                    Sidur Rav Amram Gaon puts it after Eizehu
                    Mekoman and the Beraisa of R. Yishmael's 13
                    Midos.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Prishah (29):</font></b> He means that Rav Amram Gaon put
                    Ribon ha'Olamim (and Kri'as Shema)... after
                    Eizehu Mekoman, to avoid verses before Birkas
                    ha'Torah.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Magen Avraham (15, citing Levush (581:1):</font></b> Only
                    Ashkenazim, who normally say Birkas ha'Torah
                    after (some texts - before) Parshas ha'Tamid,
                    permit verses before Birkas ha'Torah. We who
                    say it right after Asher Yotzar must say Birkas
                    ha'Torah beforehand.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Magen Avraham (6:7):</font></b> The Darchei Moshe and
                    Maharil conducted like the Sefardi custom to
                    bless beforehand. However, a Shali'ach Tzibur
                    without said it at home may not repeat it for
                    the Tzibur, for everyone knows Birkas ha'Torah
                    and says it for himself.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Beis Yosef (DH v'Huksheh):</font></b> The Agur says that
                    Birkas ha'Torah is only when one intends to
                    learn, but not for verses said like
                    supplication. The Ra'avad and Maharil require
                    Birkas ha'Torah also for this, but in a
                    Teshuvah the Maharil said like the Agur. Orchos
                    Chayim says that when we say Slichos before
                    dawn, we say Birkas ha'Torah and learn a
                    Halachah, a Mishnah of Eizehu Mekomam or
                    another Mishnah, and afterwards Ashrei, for one
                    must bless on Tanach.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Mishnah Berurah (27):</font></b> Since our custom is to
                    say Birkas ha'Torah right after Asher Yotzar,
                    we hold that one may not say verses even in the
                    way of supplication beforehand. The same
                    applies during Slichos.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Kaf ha'Chayim (55):</font></b> The Shulchan Aruch is
                    stringent, like like the Rambam, Ra'avad,
                    Orchos Chayim, Tur and Maharil.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Kaf ha'Chayim (56):</font></b> One need not bless for a
                    words of a verse said merely for a nice
                    expression. The Shulchan Aruch (YD 284)
                    similarly permits writing words of a verse
                    without Sirtut if it is cited merely for a nice
                    expression.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Kaf ha'Chayim (57, 4:16, 8:6, 25:68):</font></b> Also the
                    following should not be said before Birkas
                    ha'Torah: 'va'Ani b'Rov Chasdecha' upon
                    entering the Beis ha'Keneses, 'Se'u Yedeichem
                    Kodesh' when lifting his hands after washing
                    them in the morning (unlike Sidur Ya'avetz),
                    'Borchi Nafshi...' when putting on the Talis,
                    and 'va'Aristich Li Le'olam...' when winding
                    the Tefilin strap around his finger.
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Birkei Yosef (46:16):</font></b> One who says 'Vihi No'am'
                    before every Mitzvah should not do so before
                    Birkas ha'Torah.
<br>             <b>  <b><font color='darkgreen'>xi. </font></b><font color='darkgreen'> Maharshal (Teshuvah 56):</font></b> Early Sidurim put
                    Birkas ha'Torah before Parshas ha'Tamid. The
                    Tur changed the previous custom needlessly. Do
                    not say that he is merely stringent to require
                    Birkas ha'Torah before verses said in the way
                    of supplication. If so, also Birkas Kohanim
                    does not require Birkas ha'Torah. If so, his
                    Berachah is Levatalah, for there is a large
                    interruption before ha'Tamid! The Rosh and Tur
                    require learning immediately after Birkas
                    ha'Torah, unlike the Mordechai.
<br>             <b>  <b><font color='darkgreen'>xii. </font></b><font color='darkgreen'>Yabi'a Omer (4 OC 7:1):</font></b> Tosfos, R. Yonah and
                    the Mordechai obligate learning immediately
                    afterwards only if he wants to be Yotzei
                    through Ahavah Rabah, but not if he says Birkas
                    ha'Torah. This is unlike Berachos on food, for
                    one is obligated to engage in Torah constantly.
                    Therefore, an interruption does not disqualify
                    the Berachah. Acharonim say that the Berachah
                    takes effect on Birkas Kohanim, for we say it
                    in the way of learning. The Maharshal holds
                    that it is conciliation and Berachah.
<br>             <b>  <b><font color='darkgreen'>xiii.</font></b><font color='darkgreen'>Yabi'a Omer (ibid. DH v'HAlom):</font></b> If one is in
                    Pesukei d'Zimrah and realized that he did not
                    say Birkas ha'Torah, Shulchan Melachim says
                    that he says it between Yishtabach and Yotzer
                    Ohr. Seemingly, one may not continue Pesukei
                    d'Zimrah until saying it! If he holds like
                    those who permit verses in the way of
                    supplication, this does not permit 'va'Yvarech
                    David' and Shiras ha'Yam! (We say them on
                    Tish'ah b'Av because they are part of Seder
                    ha'Yom, like Parshas ha'Tamid and Eizehu
                    Mekomam.) I say that he should immediately
                    bless Asher Bochar Banu. This permits to say
                    the rest of Pesukei d'Zimrah, and between
                    Yishtabach and Yotzer Ohr he says the other two
                    Berachos, Asher Kideshanu and v'Ha'arev Na.
                    This is not an interruption (in Pesukei
                    d'Zimrah), for it is necessary, like
                    interrupting between a Berachah on food and
                    eating to say 'prepare food for the ox'
                    (Berachos 40a).
               xiv. Yabi'a Omer (ibid. 3,6): The Mechaber brought
                    two opinions, and concluded that one should be
                    concerned for the first opinion. It was not a
                    clearcut ruling; it is <i>proper</i> to be concerned
                    for the first opinion. Usually, when he brings
                    an opinion, and 'some say...', the Halachah
                    follows the first opinion. Here is different,
                    for his final words show that it is a mere
                    stringency. Chikrei Lev and Aruch ha'Shulchan
                    say so, unlike the Birkei Yosef. When
                    necessarily, one may be lenient, e.g. to answer
                    to Kedushah before Birkas ha'Torah. Also,
                    She'alas Ya'avetz (81) holds that the Isur to
                    say verses by heart refers only to full verses.
                    Perhaps here also, the Isur is only for full
                    verses (in answering Kedushah, the only full
                    verse is 'Yimloch...'). However, some argue
                    with the Ya'avetz, and perhaps here is
                    different.
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>MAY ONE REQUEST FROM THE DEAD? </b></b>(</font><font color='darkblue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> They did not bless (thank Hash-m for the
          Torah) before learning (because they did not appreciate
          it properly - R. Yonah. Perhaps Birkas ha'Torah was not
          yet enacted. David had enacted to make 100 Berachos a
          day, but until the Great Assembly codified prayer, each
          person would decide what Berachos to make.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Chama):</font></b> 'B'Lev Navon Tanu'ach Chochmah' - Torah
          rests in the heart of a Chacham whose father was a
          Chacham (i.e., he does not flaunt it);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Uv'Kerev Kesilim Tivada' - if an ignoramus' son
               learns Torah, he glorifies himself.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Ula):</font></b> A lone coin in a flask makes noise (a flask
               full of coins does not).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (R. Yirmeyah):</font></b> What do we learn from 'Koton
          v'Gadol Sham Hu v'Eved Chofshi me'Adonav'? Obviously,
          great and small people go to the grave!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (R. Zeira):</font></b> Anyone who makes himself small in this
          world for the sake of Torah, he becomes great in the
          world to come;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Anyone who makes himself a slave in this world for
               Torah, he becomes free in the world to come.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>THE GREATNESS OF R. CHIYA</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Reish Lakish used to mark off graves of Chachamim (lest
          people unknowingly transgress laws of Tum'ah). At R.
          Chiya's gravesite, he could not find the place; he felt
          bad.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Reish Lakish:</font></b> Hash-m, didn't I delve in Torah like
               him?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> A voice from Heaven:</font></b> You delved in Torah like him,
               but you did not spread Torah like him.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	When R. Chanina and R. Chiya argued in Torah, R. Chanina
          said 'how do you argue with me? If Torah would be
          forgotten from Yisrael, I could return it through my
          analytical skills!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Chiya:</font></b> How do you argue with me? I ensured that
               Torah will never be forgotten from Yisrael!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Chiya planted flax, and wove traps from the flax.
               He caught deer, fed orphans the meat and made
               parchments from the skin. He wrote the five
               Chumashim and went to a city without teachers for
               children. He taught one Chumash to each of five
               children, and one order of the Mishnah to each of
               six other children. He told them to teach each other
               what each had learned. (Because everything was done
               for the sake of Torah, this ensured that it would
               never be forgotten.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rebbi:</font></b> How great are R. Chiya's deeds!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	R. Yishmael b'Rebbi Yosi:</font></b> Are they greater than yours?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rebbi:</font></b> Yes.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	R. Yishmael b'Rebbi Yosi:</font></b> Are they greater than my
          father's?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rebbi:</font></b> That is impossible!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	R. Zeira:</font></b> I saw R. Yosi b'Rebbi Chanina in a dream; I
          asked him from whom he learns in the world to come (and
          about his Rebbi...)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R.Yosi b'Rebbi Chanina:</font></b> I learn from R. Yochanan,
               who learns from R. Yanai, who learns from R.
               Chanina, who learns from R. Chiya.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Zeira:</font></b> Is R. Yochanan unfit to learn from R.
               Chiya?!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Yosi:</font></b> Where the fire is sufficient, who will
               bring in one to fan the fire! (R. Chiya ensured that
               Torah will not be forgotten. There is no need for R.
               Chanina, who could restore it if it would be
               forgotten, so his merit is not enough to bring R.
               Yochanan there.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	R. Chaviva:</font></b> Eliyahu used to speak with a certain Chacham.
          In the morning, the Chacham's eyes looked fine. In the
          evening, they looked singed. I asked about this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> The Chacham:</font></b> I asked Eliyahu to let me look at
               Chachamim going to the Heavenly academy. He
               permitted to look at all, except for the chair of R.
               Chiya.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> The Chacham:</font></b> What distinguishes it?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Eliyahu:</font></b> Angels must seat other Chachamim in their
               chairs. R. Chiya can go himself.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> The Chacham could not hold himself back; he looked,
               and two fiery sparks blinded his eyes. The next day,
               he prostrated near the cave in which R. Chiya was
               buried, and mentioned that he learns the Tosefta of
               R. Chiya (so R. Chiya would be more inspired to pray
               for him), and he was healed.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	Eliyahu was regularly in Rebbi's academy. One Rosh
          Chodesh he was late. He explained that he first had to
          wake Avraham, wash his hands, and lie him down again
          after he prayed. He then did the same for Yitzchak, and
          then the same for Yakov.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rebbi:</font></b> Why don't you wake them at the same time?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Eliyahu:</font></b> If they would pray at the same time, this would
          bring Mashi'ach prematurely.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Rebbi:</font></b> Is there anyone living today with such a power of
          prayer?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Eliyahu:</font></b> Yes, R. Chiya and his sons.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rebbi decreed a fast. He asked R. Chiya and his sons
               to lead the prayer. When they said 'Mashiv
               ha'Ru'ach', wind blew. When they said 'Morid
               ha'Geshem', rain fell. When they were about to
               conclude the Berachah 'Mechayeh ha'Mesim', the world
               shook. In Heaven, Eliyahu was lashed with fire for
               having revealed their power of prayer.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Eliyahu appeared to them like a bear of fire to
               distract them.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>THE BOOK OF ADAM HA'RISHON</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Shmuel was Rebbi's doctor. Rebbi had pain in one eye;
          Shmuel wanted to put a potion in the eye; Rebbi said that
          he could not bear it; Shmuel wanted to put something on
          the eye; Rebbi refused. Shmuel prepared a powerful potion
          that bored through from the back of his head until his
          eyes; he was cured.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rebbi was disturbed that he did not succeed in his
               plan to ordain Shmuel as 'Rebbi'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shmuel:</font></b> Don't feel bad. I saw the book of Adam
               ha'Rishon. There I am called only Chacham, not
               Rebbi. It says that I will heal you.
<br>

sjt:
</p><p>
<font><b>4) 'BECAUSE THEY ABANDONED MY TORAH'</b></font><b>
<br>QUESTIONS:</b> The Gemara relates that at the time of the Churban of the first Beis ha'Mikdash, none of the Chachamim or Nevi'im could explain why 'the land had been destroyed' ('Avdah ha'Aretz,' Yirmeyahu 9:11) and had suffered the catastrophe of the Churban, until Hash-m Himself explained it, as the verse says, 'Hash-m said, 'It is because they abandoned My Torah'' (Yirmeyahu 9:12). Rav Yehudah in the name of Rav explains that this means that they did not recite the blessing for learning Torah before they learned Torah.
</p><p>
(a) Why is the failure to recite the blessing for learning Torah such a severe sin that it warrants the most tragic punishment? Moreover, the Gemara implies that the people were learning Torah, and that they merely did not recite the blessing before learning. Why, then, did the merit of their learning not protect them?
</p><p>
(b) What is the connection between the transgression of failing to recite the blessing for learning Torah and the punishment of the destruction of the land? Why should the land be destroyed because the people did not recite the blessing before learning Torah?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> here, and the <b>RAN</b> in Nedarim (81a) in the name of <b>RABEINU YONAH HA'CHASID</b>, write that the people's failure to recite the blessing for learning Torah demonstrated that they did not feel that the Torah was a precious gift. Since they failed to appreciate the Torah, the Torah 'failed,' so to speak, to protect them. Rabeinu Yonah adds that their learning of Torah was not Lishmah, with pure motives, and as a result they scorned the blessing. For their sin of scorning the holiness of the Torah, they were punished with the Churban.
</p><p>
(b) The <b>SHITAH MEKUBETZES</b> cites the <b>TESHUVOS HA'RAMBAM</b> who says that the blessing which the people failed to recite was the blessing recited before Keri'as ha'Torah, the reading of the Torah. The Rambam explains that many of the people indeed were Talmidei Chachamim, but when they were called to read from the Torah they refrained because it was difficult for them to walk to the Torah. They were punished for their lack of respect for the Torah. (See Berachos 55a, where the Gemara says that a person's life is shortened as a punishment for not going to read from the Torah when he is called to read from the Torah.)
</p><p>
(c) The Rambam gives another explanation (see also <b>MAHARSHA</b> to Nedarim 81a). He says that although they <i>did</i> recite the blessings for Keri'as ha'Torah, they did not give the honor of reciting the first blessing to Talmidei Chachamim. Rather, they would call upon a Kohen who was an Am ha'Aretz to recite the first blessing, even though there were Talmidei Chachamim present. They were punished for this disgrace to the honor of the Torah.
</p><p>
The Rambam adds that this explanation is supported by the fact that it was Rav who made this statement. The Gemara in Megilah (22a) states that Rav maintained that a Talmid Chacham who is a Yisrael takes precedence over a Kohen who is an Am ha'Aretz for reciting the blessings of Keri'as ha'Torah.
</p><p>
(d) The <b>TAZ</b> (OC 47) writes that the people learned Torah solely for their enjoyment. They did not toil in Torah or involve themselves in the arduous process of in-depth analysis of their Torah learning. Since 'Torah is acquired only by one who kills himself over it,' their learning was essentially meaningless. This is what the Gemara means when it says that they did not recite the blessing for learning Torah, for the blessing says, 'Asher Kideshanu b'Mitzvosav v'Tzivano <i>la'Asok</i> b'Divrei Torah'; the term 'la'Asok' refers to toiling in Torah learning.
</p><p>
(e) The <b>BEN YEHOYADA</b> writes that the people learned Torah with the goal of becoming wise, and not with the goal of making themselves holy through the Kedushah of the Torah. They did not recite the blessing because the blessing -- 'Asher <i>Kideshanu</i>' -- implies that one learns in order to make himself holy with the Kedushah of Torah.
</p><p>
(f) The <b>MAHARAL</b> (Nesivos Olam, Nesiv ha'Torah 10) writes that when the Gemara says that the people did not recite the blessing for learning Torah, it means that they learned Torah out of love of the Torah's wisdom, and not out of love of Hash-m, the Giver of the Torah. They did not acknowledge the great kindness that Hash-m granted them by giving the Torah to the Jewish people. (I. Alsheich)
</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE BOOK OF ADAM HA'RISHON (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	(The book also said that) Rebbi and R. Noson are the end
          of the Tana'im, Rav Ashi and Ravina are the end of the
          Amora'im;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The latter is hinted at in 'Mikdashei Kel Avinah
               l'Acharisam (at their end).'
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE DEATH OF RABAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Kahana):</font></b> Rabah died due to fear of the king.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Someone informed on him that he causes thousands of 
               Yisre'elim to avoid taxes (because they gather to
               learn from him) for a month in spring and a month in
               fall. The king sent a Shali'ach to seek him; he did
               not find him. Rabah fled from Pumbadisa to Akra,
               then to a swamp, to Shechin, to a hut, to a spring,
               then back to Pumbadisa. They found him in Pumbadisa.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The king's Shali'ach came to lodge at the inn Rabah
               was in. They put food in front of the Shali'ach;
               they took it away after he drank two cups. (Drinking
               an even number made him vulnerable to a certain
               Shed.) His face went in back of his head. Rabah told
               them to give to him another cup, he was cured.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This made him realize that Rabah was there. He
               searched for him and found him. He said 'if they
               will kill me for not revealing where Rabah is, I
               will die, and not reveal. If they will torture me, I
               will reveal.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> He locked Rabah in a room. Rabah prayed for mercy,
               and the wall fell. He escaped to the swamp. He was
               sitting on a stump and learning.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> (Shitah Mekubetzes - Rabah dreamed that) the
               Heavenly academy was learning about Tzara'as:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If the Tzara'as (white appearance on the skin)
                    preceded the white hair, he is (absolutely)
                    Tamei; if the white hair came first, he is
                    Tahor (i.e. only quarantined);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If we are in doubt which came first, (Shitah -
                    a group of Chachamim close to) Hash-m said
                    Tahor, and the rest of the Heavenly academy
                    said Tamei. They decided that Rabah would
                    decide the matter.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> Rabah used to comment 'I am the most learned scholar
               alive in matters of Tzara'as and Tum'ah of an Ohel.'
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> The angel of death was sent to take him. He could
               not, for Rabah never ceased learning. A wind made a
               big noise among the reeds; Rabah thought it was a
               troop searching for him. Rabah preferred to die than
               to be taken by the kingdom. He died amidst saying
               'Tahor, Tahor.'
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> A voice from Heaven:</font></b> Happy is Rabah. His body is
               Tahor, and his soul left amidst saying 'Tahor'.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	In Pumbadisa, a note fell from Heaven that Rabah was
          taken to the Heavenly academy. Abaye, Rava and all the
          Rabanan wanted to bury him, but they did not know where 
          he was. They went to the swamp. They saw birds making
          shade over a certain place, and realized that is the
          place. They eulogized him for three days and nights. A
          note fell from Heaven excommunicating anyone who will
          leave.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	They eulogized him for seven days; a note fell from
          Heaven permitting them to go home.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	The day he died there was a terrible wind. A man riding a
          camel was blown across the Papa river. People told him
          that this was because Rabah died.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> The man:</font></b> Hash-m, You own the world, and You own
               Rabah. Granted, You love him. Will You destroy Your
               entire world due to him?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The wind abated.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	One day, R. Shimon ben Chalafta was hot. He sat on top of
          a mountain, and asked his daughter to fan him, and
          promised her loaves of spikenard. A wind came. He
          exclaimed 'how much I owe to the One who sent this wind!'
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>HOW MUCH WORKERS MUST BE FED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Everything is like the local custom.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What does this come to include?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #1 - Answer:</font></b> In a place where the custom is to
          eat bread and drink at sunrise, and then to go work, he
          cannot force them to eat earlier so they will start work
          earlier.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #2 - Answer:</font></b> In a place where the custom is to
          eat and drink in the employer's house and then to go
          work, he cannot tell them 'start working, and when the
          food is ready I will bring it to you.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A case occurred in which R. Yochanan ben Masya
          told his son to hire workers...
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> The case contradicts the law!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah is abbreviated. It should say as
          follows: if he promised to feed them, he must give more
          than the local custom;
<br>
<br>

sjt:
<font><b>1) THE DEATH OF RABAH BAR NACHMENI</b></font><b>
<br>QUESTIONS:</b> The Gemara relates that while Rabah bar Nachmeni was fleeing for his life from the Persian authorities, an argument was taking place in the Yeshiva in Shamayim. The argument involved the Halachah in the case of a white hair and a Baheres spot that appear on one's skin, but there is a doubt which appeared first. Hash-m, as it were, ruled that it is Tahor, while all of the members of the heavenly Yeshiva ruled that it is Tamei. They asked who could decide the matter conclusively, and they answered that Rabah bar Nachmeni could decide the matter since he was the greatest expert on Nega'im and Ohalos. They sent a Shali'ach to bring Rabah to them, but the Mal'ach ha'Maves could not take him from this world because he did not stop learning Torah. At that moment, a wind blew and made the reeds move and make noise. Rabah heard the noise and thought that the Persian legions were coming to kill him. He prayed that he should die at that moment rather than be taken by the authorities. At the moment that he died he declared, 'Tahor! Tahor!'
</p><p>
The Gemara's account of this incident raises several questions.
</p><p>
(a) How could the students in the Yeshiva of Shamayim argue with the ruling of Hash-m?
</p><p>
(b) If they did argue with Him, why did Rabah not rule in accordance with the majority opinion (in accordance with Shemos 23:2)?
</p><p>
(c) Why was it necessary for Rabah to be taken from this world in order to resolve the argument? Why could they not have asked him for his ruling while he was alive?
</p><p>
(d) The <b>RAMBAM</b> (Hilchos Tum'as Tzara'as 2:9) rules that in a case of a doubt about whether the white hair preceded the Baheres, the Nega is <i>Tamei</i>. Why does the Rambam rule against the opinion of Hash-m and against the conclusion of Rabah?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RABEINU CHANANEL</b> (as cited by the Shitah Mekubetzes) writes that the argument that occurred in the Yeshiva of Shamayim was shown to Rabah in a dream. The dispute actually took place between two groups of Tzadikim. The group closer to the radiance of the Shechinah ruled that the Nega is Tahor, and the group farther away from the Shechinah ruled that it is Tamei. This was shown to Rabah in a dream so that he would leave the world with a calm, settled spirit.
</p><p>
The <b>BEN YEHOYADA</b> gives a similar explanation, but he says that in the dream that was shown to Rabah, it indeed was Hash-m who ruled that the Nega is Tahor and not the group of Tzadikim closer to the Shechinah. He adds that this dream was shown to Rabah in order to show him the infinite pleasure that a Tzadik experiences in the World to Come, so that he would yearn to go there and agree to leave this world. The Ben Yehoyada adds that the reason why an argument was shown to Rabah (and not just the pleasure experienced by the Tzadikim in the World to Come) was so that Rabah would respond to the inquiry, 'Tahor,' and thus his soul would leave this world while he was teaching a Halachah and uttering the word 'Tahor.' This symbolized that his soul would cling to its holy Source above, which is completely Tahor.
</p><p>
<b>RAV YAKOV EMDEN</b> answers differently and explains that the students of the Yeshiva of Shamayim did not actually argue with Hash-m. They stated their opinion first, and only afterwards Hash-m stated His opinion. The Gemara here changes the order merely out of deference.
</p><p>
(b) The <b>MAHARSHA</b> (in <b>MAHADURA BASRA</b>) answers that the rule that the majority opinion must be followed applies only in this world. Therefore, Rabah did not follow the opinion of the majority in the Yeshiva of Shamayim.
</p><p>
(c) The <b>MAHARSHA</b> explains similarly that Rabah had to be taken from this world in order to issue his ruling on the matter because he could not have decided the matter in this world. Since the majority opinion must be followed in this world, his ruling would not have been accepted because it contradicted the majority opinion. Therefore, he had to be taken to the Yeshiva of Shamayim, where it is acceptable to rule against the majority.
</p><p>
(d) The <b>BEN YEHOYADA</b> explains that the Rambam rules that such a Nega is Tamei, in contradiction to the ruling of Hash-m Himself, because the Rambam understands this incident to be a dream that Rabah saw. Hence, there is no indication that in reality Hash-m ruled that it is Tahor.
</p><p>
The <b>KESEF MISHNEH</b> writes that even if the argument in Shamayim actually occurred, the Halachah does not necessarily follow opinions that are expressed in Shamayim, as the verse says, 'Lo ba'Shamayim Hi' (Devarim 30:12).
</p><p>
This, however, explains only why the Rambam rules against the ruling of Hash-m. How, though, could he rule against the ruling of Rabah?
</p><p>
The Kesef Mishneh answers that Rabah stated his ruling at the moment that his Neshamah left his body, and thus the rule of 'Lo ba'Shamayim Hi' applies to his ruling as well. (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MAY ONE PRAY IN ARAMAIC?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Avraham saw... Nitzavim Alav va'Yar va'Yaratz
               Likrasam' - at first, they stood over him; they saw
               his pain, and realized that it was not proper to
               remain there, so they distanced themselves.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 87a (R. Yosi):</font></b> The dots over the letters 'Aleph,
               Yud, Vov' of 'Elav' spells 'Ayo' (where). The angels
               knew where Sarah was. They asked only because it is
               proper conduct to inquire about the host's wife.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Sotah 33a (Mishnah):</font></b> Tefilah may be said in any
               language.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Since it is a request for mercy, one may pray like
               he desires.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Rav taught that one may not request his
               needs in Aramaic, and R. Yochanan taught that if one
               requests his needs in Aramaic, the angels do not
               deal with his prayer, for they don't recognize
               Aramaic!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> A Tzibur may pray in any language (Hash-m
               always accepts its prayer). An individual may not.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> The angels do understand Aramaic!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> Yochanan the Kohen Gadol heard a Bas
                    Kol (voice from Heaven) in the innermost part
                    of the Mikdash, saying (in Aramaic) that the
                    lambs (Kohanim) that went to battle defeated
                    the Yevanim;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Shimon ha'Tzadik heard a Bas Kol in the
                    Mikdash. It said (in Aramaic) that the army
                    destined to attack the Mikdash was canceled,
                    and the king of the Yevanim died, and his
                    decrees were canceled. They checked and found
                    that he died just when Shimon ha'Tzadik heard
                    the Bas Kol.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #1:</font></b> A Bas Kol is unlike angels (it is wont to
               give messages in various places, which mandates
               knowledge of all languages).
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #2:</font></b> Gavri'el said those voices, for he knows
               Aramaic;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Gavri'el taught Yosef the 70 languages before
                    Yosef came in front of Pharaoh.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Shabbos 12b (Rabah bar bar Chanah):</font></b> Sometimes, when
               R. Elazar visited a Choleh he said 'Hashem should
               bring Shalom upon you.' Sometimes he said 'Rachmana
               (the merciful one, in Aramaic) should guide you to
               Shalom.'
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question:</font></b> Rav and R. Yochanan taught that one may 
               not pray for his needs in Aramaic, for the angels do
               not deal with his prayer!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer:</font></b> This is permitted in front of a Choleh, for
               the Shechinah is with him:
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (Berachos 7a):</font></b> The Mishnah permits
               prayer in any language. This is with a Tzibur. Rav
               forbids praying for his needs in Aramaic. R.
               Yochanan says that the angels will not deal with the
               prayer, for they don't recognize Aramaic.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (R. Yonah DH Gemara, cited in Rosh Berachos
               2:2):</font></b> Why do women everywhere pray in other
               languages? They should pray in Hebrew!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1 (R. Yonah, citing Chachamim of France):</font></b> If
               an individual prays the same prayer as the Tzibur,
               this is like Tefilah b'Tzibur, and it may be said in
               other languages. Rav taught that an individual may
               not pray for his needs, e.g. a Choleh (sick person)
               or some affliction in his house, in Aramaic. One who
               prays a Tefilah known to the Tzibur can be Yotzei in
               other languages if he does not know Hebrew. A Tzibur
               can pray in any language because it does not need
               advocates. An individual does - 'Im Yesh Alav
               Mal'ach Melitz...' (Iyov 33:23).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #2 (Tosfos Shabbos 12b DH she'Ein, cited in
               Rosh):</font></b> Angels know even thoughts of people! Only
               Aramaic they do not deal with, for it is lowly in
               their eyes.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (OC 101:12):</font></b> A proof of this is the
                    Yerushalmi cited in Tosfos Rosh Hashanah 16b
                    (DH v'Iyun. The angels knew when R. Chiya had
                    intent in his prayer.) However, the Zohar
                    (Vayera 101b) says that in this world they know
                    only what is given to them to know. The Bavli
                    says that the angels knew where Sarah was, but
                    it agrees that angels do not know people's
                    thoughts. 'They don't recognize Aramaic'
                    connotes that they do not understand it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos (in Shulchan Aruch ha'Shalem, 17):</font></b> The
                    Chida explains the Zohar to mean that when sent
                    to this world they know only what is given to
                    them to know, but when they are in Shamayim
                    they know people's thoughts.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Ma'adanei Yom Tov (Berachos 2:6):</font></b> What is the
                    source that angels know thoughts? We find
                    Rivkah and Mordechai knew others' (Esav's and
                    Haman's) thoughts through Ru'ach ha'Kodesh.
                    Prophecy through an angel is a higher level,
                    and surely all the more so an angel himself
                    knows people's thoughts! However, Shlomo said
                    'You (Hash-m) alone know man's heart' (Melachim
                    1:8:39), and it says (Yirmeyahu 17:9,10) 'who
                    knows crookedness of the heart? I, Hash-m, who
                    scrutinizes the heart and kidneys...'
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Maskil l'David (on Rashi Bereishis 18:2):</font></b> Rashi
                    says that the angels knew that Avraham wanted
                    to greet them, i.e. this is why he was sitting
                    outside. They do not know people's thoughts -
                    'Hash-m alone discerns man's heart.' How can
                    Tosfos say otherwise? Mishnas Chachamim says
                    that angels know thoughts in the heart, but
                    only Hash-m knows thoughts that begin in the
                    kidneys. However, verses teach that even the
                    heart is known only by Hash-m!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b></b> R. Akiva Eiger on Gitin, Likutim Shabbos 12b -
                    they know thoughts in the brain, but not in the
                    heart
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Note:</font></b> In Zecharyah 4:5 (in the Haftorah for
                    Chanukah; also 4:13), the angel did not realize
                    that Zecharyah did not understand the olives on
                    the Menorah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rashi (Shabbos 12b):</font></b> Normally, angels must bring a
               Tefilah in front of Hash-m.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Ra'avad (Tamim De'im 186):</font></b> The angels understand
               other languages, all the more so Aramaic, which is
               close to Hebrew. They do not deal with it, lest
               Yisraelim pray in Aramaic and Amei ha'Aretz not
               learn Hebrew. The Gemara thought that a Bas Kol is
               an angel talking to itself. It answered that it is
               not an angel. Alternatively, if it is an angel, it
               is Gavriel. Alternatively, angels know only Hebrew.
               If so, they do not bring to Hash-m prayers of women
               who pray alone in other languages. However, one who
               prays with tears or due to affliction does not need
               angels, for these gates are never locked. Any
               Tefilah with great Kavanah is heeded even without
               angels. Menasheh prayed in Hebrew, and Hash-m
               accepted it against the angels' attempts to block
               his prayer (Devarim Rabah 2:20)!
<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 101:4):</font></b> Some say that even an
               individual praying for his own needs may pray in any
               language except for Aramaic, e.g. a Choleh or some
               affliction in his house. A Tzibur can pray in any
               language because it does not need advocates.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mishnah Berurah (19):</font></b> In a Tzibur, even Arami
                    is permitted, e.g. Yekum Purkan. One who prays
                    at home may not say it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Eshel Avraham (7):</font></b> Parshas Derachim says that
                    an individual in a Beis ha'Keneses may pray in
                    Aramaic, for the Shechinah is there.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kaf ha'Chayim (20):</font></b> Bitul Chametz and Kaddish
                    were enacted in Aramaic, lest angels understand
                    it and contest it.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Ma'adanei Yom Tov (Berachos 2:7):</font></b> Angels
                    despise Aramaic because it is a corruption of
                    Hebrew. The Rambam says the same about Arabic!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 335:5):</font></b> When one prays for a
               Choleh in front of him, he may pray in any language.
               If he is not in front of him, he prays only in
               Lashon ha'Kodesh.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (4):</font></b> Why does the Tur require (not in front
                    of him) only Lashon ha'Kodesh, unlike the Rosh,
                    who allows any language other than Arame'ic?
                    Since a Choleh needs more mercy, he is
                    stringent for all opinions.
<br><br><font color='blue'><i>See also:</i>
<br><b><b>MAY TEFILAH AND KRI'AS SHMA BE SAID IN OTHER LANGUAGES? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There was a case in which R. Yochanan ben Masya told
               his son to hire workers; his son promised to feed
               them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Yochanan:</font></b> They descend from Avraham, Yitzchak and
               Yakov. Even if you give them a banquet like
               Shlomo's, this does not suffice! Before they start
               working, tell them that you promise them only bread
               and legumes.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Inference:</font></b> Avraham served a larger meal than Shlomo.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> 'The daily food of Shlomo was 30 Kor (a Kor is
          the volume of 4320 eggs) of fine flour, 60 Kor of
          (regular) flour, ten fattened cattle, 20 cattle (that
          grazed), 100 flock, aside from deer, fallow deer and
          Barburim Avusim (this will be explained)';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Guryon ben Astiyon):</font></b> The verse gives only the
               amount of flour and fine flour to absorb the froth
               of the pots.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Yitzchak):</font></b> The verse gives only the amount of
               meat to make seasoned meat.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (R. Yitzchak):</font></b> Shlomo had 1000 wives. Each made such
               a meal for him every night in her house, hoping that
               he would eat with her that night.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Avraham served only 'Ben Bakar Rach va'Tov';
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Yehudah):</font></b> This teaches that he served
                    three animals.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Avraham served three bulls for three guests.
          Shlomo's meal was for all of 'Yehudah v'Yisrael Rabim
          ka'Chol Asher Al ha'Yam.'
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> What are 'Barburim Avusim'?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1 (Rav):</font></b> They are hens that we are Oves (force-
          feed, to fatten them).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2 (Shmuel):</font></b> They are chickens that were allowed
          to fatten themselves.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #3 (R. Yochanan):</font></b> They would bring to Shlomo's
          table cattle that never worked ('Bakar Re'i') and hens
          that were never set to raise chicks (the latter are
          'Barburim Avusim').
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> The choicest domestic animal is an
               ox; the choicest fowl is a hen. (This is why they
               only took 'spoiled animals' from these two
               categories.)
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Ameimar):</font></b> Barburim Avusim are black hens with big
          stomachs (alternately - that were fattened at home) that
          frequent the winepress at the time grapes are pressed
          (and eat the skins), and are too fat to step over a reed.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>THE HOSPITALITY OF AVRAHAM AVINU</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> 'Ben-Bakar Rach va'Tov' teaches that he
          served three bulls.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps it was only one. The verse teaches that
          it was tender and good!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> If so, it should have said 'Rach Tov.' 'Va'Tov'
          shows that it comes to teach about more animals.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> We should say that there were two, and 'Rach'
          means tender!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Since 'va'Tov' teaches another animal, also
          'Rach' does.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rabah bar Ula):</font></b> 'He gave to the lad, and he
          rushed to prepare Oso' (it, i.e. one animal)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> He gave each one to a different lad.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> It says 'u'Ven ha'Bakar Asher Osah (singular)
          and put in front of them.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> He served each one when it finished cooking.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Why did he need to serve three? One bull would
          suffice for three guests!!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rabah bar bar Chanah):</font></b> He wanted to serve each a
          tongue with mustard.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>THE ANGELS' VISIT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Tanchum bar Chanilai):</font></b> One should not deviate from
          the local custom. Moshe went to Heaven, and did not eat.
          Angels descended to earth, and ate (Avraham's food)!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Surely, they did not eat!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, they appeared to eat and drink.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> Everything that Avraham did himself for
          the angels (the first four matters listed below), Hash-m
          Himself did similarly for Avraham's children (in the
          wilderness). Everything that Avraham did through a
          Shali'ach (the fifth matter), Hash-m did for Avraham's
          children through a Shali'ach.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Avraham ran to the herd', and 'a wind came me'Es
               Hash-m (bringing meat, i.e. Slav)';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'He took butter and milk', and 'I will make bread
               (fall like) rain for you from Shamayim' (Maharsha -
               the manna tasted like 'Leshad ha'Shamen' (Bamidbar
               11:8), i.e.  milk (Yuma 75a));
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> 'He stood (watching) over them', and 'I will stand
               in front of you by the rock';
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> 'Avraham walked with them to escort them', and
               'Hash-m went in front of them'.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> 'Yukach (will be taken) a little water', and 'you
               (Moshe) will strike the rock and water will exude.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Rav Yehudah argues with R. Chama b'Rebbi Chanina.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chama b'Rebbi Chanina):</font></b> In the merit of three
               things that Avraham did, Yisrael merited three
               things from Hash-m (through Moshe and Aharon).
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The Mon was a reward for giving butter and
                    milk. The Amud Anan (the cloud that accompanied
                    Yisrael in the wilderness) was a reward for
                    standing over the angels while they ate. (This
                    is unlike Rav Yehudah.) The well of Miryam was
                    a reward for bringing water for them.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(R. Yanai b'Rebbi Yishmael):</font></b> Avraham said 'will be taken
          a little water, and you will wash your feet.' The angels
          rebuked Avraham 'you suspect we worship the dust of our
          feet?! (You fathered Yishmael, who does so)!'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What does it mean 'Hash-m appeared to him...
          k'Chom ha'Yom'?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (R. Chama b'Rebbi Chanina):</font></b> It was the third day
          from Avraham's circumcision. Hash-m came to visit him,
          and He made the sun extra strong so Avraham would not be
          bothered with guests;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Avraham sent Eliezer to look for guests; he did not
               find. Avraham did not trust him. This is like they
               say in Eretz Yisrael, that one cannot trust slaves.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Avraham went out and found Hash-m by the door. He
               asked 'do not pass from Your servant (while I go to
               invite guests).'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Avraham was untying and retying the bandage on the
               circumcision. Hash-m saw that it was not proper to
               remain there, so He left. (Also the angels went away
               for this reason;)
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  'Avraham saw... Nitzavim Alav va'Yar va'Yaratz
                    Likrasam' - at first, they stood over him. They
                    saw his pain, and realized that it was not
                    proper to remain there, so they distanced
                    themselves.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Who were the three 'men'?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Micha'el came to inform Sarah that she will have
          a son. Refa'el came to heal Avraham. Gavri'el was on his
          way to destroy Sedom.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> 'The two angels came to Sedom'!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> Micha'el also went, to save Lot.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Support:</font></b> It says 'va'Yahafoch' (singular).
<br>

<p>

sjt:
</p><p>
<font><b>2) AGADAH: THE FOOD OF ANGELS</b></font><b>
<br>QUESTION:</b> The Gemara relates that when the Torah says that the Mal'achim who visited Avraham Avinu ate the food that he served, it means only that they appeared as though they ate the food, but they did not actually eat it. If they did not actually eat the food, then why does the Torah refer to their act as 'eating'?
</p><p>
<b>ANSWER:</b> This question can be answered based on what the commentaries teach about the verse, 'Moshe, Aharon, Nadav, Avihu, and seventy of the elders of Yisrael climbed [Har Sinai].... They gazed at Hash-m and they ate and they drank' (Shemos 24:9-11). The Targum Onkelus there translates this verse as, 'They saw the Divine Glory, and when He accepted the offerings they brought to Him, they were as happy as if they had been eating and drinking.'
</p><p>
On this verse, Avos d'Rebbi Nasan (1:8) relates that 'they were nourished from the Divine Presence, just as the angels are.'
</p><p>
These sources indicate that the term 'eating' does not refer exclusively to a physical act. There is also a spiritual experience that is metaphorically described as 'eating.' When experiencing a 'meal' of this sort, the soul itself is nourished in much the same way that the body obtains nourishment from the food that one eats. This spiritual nourishment is received from the 'Ziv ha'Shechinah,' the Glory of the Divine Presence of Hash-m. The pleasure of this non-physical form of eating is an eternal one and can be experienced without a physical world. It is this experience that is involved in the eternal bliss of the World to Come, as the Gemara in Berachos (17a) says, 'In the world to come there is no eating and no drinking, no childbearing and no work, no jealousy, no hatred and no competition. Rather, the righteous sit with their crowns on their heads and enjoy the Glory of the Divine Presence, as it is stated, 'They gazed at Hash-m and they ate and they drank.''
</p><p>
This spiritual food can provide, at times, even physical sustenance. Moshe Rabeinu was in Shamayim for forty days at the time the Torah was given. He told the Jews, 'Bread I did not eat, water I did not drink' (Devarim 9:9). On what, then, did his body subsist? The Midrash (Midrash Agadah to Devarim 9:9; see also Rabeinu Bachye) answers that his <i>body</i> subsisted on the Glory of the Divine Presence.
</p><p>
Not only did Moshe Rabeinu have such an experience, but the entire Jewish nation had such an experience. For forty years, the Jews subsisted on the heavenly Man which Hash-m showered on the Jewish encampment in the wilderness (Shemos 16:35). What was the Man that had such remarkable nutritional qualities? Rebbi Akiva taught that 'it was the bread upon which the angels subsist' (Yoma 75b). Rebbi Yishmael objected and said, 'Go and tell Rebbi Akiva that he is making a mistake. Do angels eat bread? Even when Moshe, a human being, was in heaven, he did not eat or drink!' What indeed did Rebbi Akiva mean? Rebbi Akiva must have been referring to the phenomenon mentioned above. The 'bread' of the angels is the Glory of the Divine Presence, upon which they subsist. The Man that the Jews ate contained that quality. According to Rebbi Akiva, the Jews drew their physical sustenance from the Glory of the Divine Presence for forty years. (See Kli Yakar to Shemos 16:4.)
</p><p>
Similarly, the 'eating' that Moshe, Aharon, and the elders who accompanied them experienced was not the consumption of physical food. Rather, it was the spiritual dining of the angels in heaven and of the righteous in the World to Come.
</p><p>
This is why Avraham's visitors were able to 'eat' with him. Although it appeared as though they were eating the physical food, the angels were actually 'eating' spiritual, other-worldly food. This is why the Torah refers to what the angels did as 'eating.' The Mal'achim found their spiritual food in Avraham's house because, as Rashi (Bereishis 18:3) relates, the Divine Presence did not depart from Avraham's tent while he was serving his three guests. Hence, it is clear how the guests, who were actually Mal'achim, enjoyed the Glory of the Divine Presence while eating with Avraham. Hashem's Presence was right there with them, waiting for Avraham to finish serving his guests. In fact, this may be what the verse itself describes when it states, 'And he [Avraham] stood by them under the tree, and they ate.' The Midrash states that Hash-m appeared to Avraham in a <i>tree</i> (see Shemos 3:4). Perhaps the verse may be read, 'And He (Hash-m) stood by them under the tree, and [because of that] they (the angels) ate' -- that is, they received their spiritual nourishment from the Glory of Hashem's Divine Presence. (See Parshah Page to Parshas Mishpatim.)
</p><p>


<font><b>3) THE GIFTS GIVEN IN THE MERIT OF AVRAHAM AVINU</b></font><b>
<br>QUESTION:</b> The Gemara cites Tana d'Vei Rebbi Yishmael who states that in the merit of the three acts Avraham Avinu performed to serve his guests, the Jewish people merited to receive three gifts during their sojourn in the wilderness: the Man, the cloud that protected them, and the well of Miriam.
</p><p>
The Gemara here seems to contradict the Gemara in Ta'anis (9a) which says that the Man, the cloud, and the well were gifts to the Jewish people in the merit of Moshe, Aharon, and Miriam, respectively. The Gemara there does not mention that they were rewards for Avraham Avinu's deeds. Moreover, the Gemara here explicitly refers to the well as 'Be'erah Shel Miriam,' the well of Miriam, which clearly implies that the well was granted to them in the merit of Miriam. (<b>MAHARSHA</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARSHA</b> answers that the merit of Avraham Avinu's acts of kindness toward his guests would have provided the Jewish people with only a momentary miracle of the Man, cloud, and well. It was in the merit of Moshe, Aharon, and Miriam that these miracles continued for many years while the Jewish people sojourned in the wilderness. This is why the cloud departed when Aharon died, the well departed when Miriam died, and the Man stopped falling when Moshe died.
</p><p>
(b) The <b>BEN YEHOYADA</b> writes that Hash-m originally decreed that these three gifts -- the Man, the cloud, and the well -- would be given to the Jewish people in the merit of Avraham Avinu's deeds. The time came for the Jewish people to receive the gift of the cloud when they left Mitzrayim. However, they left Mitzrayim 'b'Yad Ramah' (Shemos 14:8), which can be translated as 'with a haughty spirit.' (This understanding is in stark contrast to the normal meaning of 'b'Yad Ramah,' and to the translation of the Targum Onkelus.) Consequently, they lost the merit to receive the protection of the cloud. When Hash-m <i>did</i> give them the cloud, it was in the merit of Aharon instead.
</p><p>
Similarly, the merit of Avraham Avinu was supposed to provide the gift of the Man when the food that they had brought with them from Mitzrayim was finished. However, they lost that merit when they sinned by complaining, 'You took us out into this wilderness to kill us with starvation!' (Shemos 16:3). Hence, they needed the merit of Moshe to receive the Man.
</p><p>
Similarly, the merit of Avraham Avinu would have provided the gift of the well when the people arrived at Refidim. However, the people sinned there as well when they complained to Moshe, and they lost that merit. However, Hash-m gave them the gift of the well in the merit of Miriam instead.
</p><p>
(c) <b>RAV CHAIM SHMUELEVITZ</b> zt'l (in Sichos Musar 5732, #8) answers this question with a parable. A small seed is able to sprout into a huge tree. However, the seed itself cannot sprout without external factors contributing to its growth, such as soil, water, and sunshine.
</p><p>
Rav Chaim explains that when the Gemara here says that the gifts of the Man, cloud, and well were granted in the merit of Avraham Avinu, it means that the merit of the Chesed of Avraham was like the 'seeds' of these gifts -- the initial reason for granting them. However, these 'seeds' needed additional factors to cause them to sprout and come to fruition, and that purpose was served by the merit of Moshe, Aharon, and Miriam. (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE ANGELS' VISIT (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Why did they immediately accept Avraham's offer
          to host them, but Lot had to insist?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> This teaches that we may refuse the offer of
          a small person, but not of a great person.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Avraham offered only bread, but he gave beef!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> This teaches that Tzadikim say little and do
          much.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The wicked say much and do not even do little!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We learn from Efron. At first, he said '(land worth
               four hundred silver Shekalim (is a small matter;
               take it for a free gift).' In the end, 'Avraham
               heard (the true desire of) Efron... 400 Shekel Kesef
               Over la'Socher (accepted by any merchant)';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Efron demanded 400 coins each worth 10,000
                    Dinarim. There are places where 10,000 Dinarim
                    is called 'Shekel'.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Avraham asked Sarah to take 'Kemach Soles.' Did
          he mean Kemach (regular flour) or Soles (fine flour)?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (R. Yitzchak):</font></b> This teaches that woman are
          stingier with guests than men are. (She wanted to give
          Kemach; he insisted on Soles.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Avraham asked her to make 'Ugos' (cakes of
          bread), but we do not find that he served them!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Efrayim Maksha'ah):</font></b> Sarah became Nidah that day,
          and Avraham used to eat even Chulin in Taharah. (The
          bread became Tamei. Maharsha - she was not yet Nidah when
          she laughed! Rather, Avraham ate Chulin with the
          stringencies of Kodshim. For Kodshim, a Nidah is
          retroactively Teme'ah 24 hours before she sees blood. The
          angels told Avraham that Sarah would become Teme'ah that
          day.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Avraham told them that Sarah is in the tent. This teaches
          that she was modest.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> Even though the angels knew this, they
          asked where Sarah was, to endear her to Avraham.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(R. Yosi bar Chanina):</font></b> They asked in order to send her to
          drink from the cup over which they said Birkas ha'Mazon.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(R. Yosi):</font></b> There are dots over the letters 'Aleph, Yud,
          Vov' of 'Elav'. This teaches that (they knew 'Ayo
          (where)' she was. They only asked because) it is proper 
          conduct to inquire about the host's wife.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Shmuel taught that we do not inquire about
          women at all!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> One may ask through her husband.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Rav Chisda):</font></b> 'Acharei Velosi Haysah Li Ednah' - after
          becoming wrinkled, her skin became smooth, and she
          returned to her beauty.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> She said 'va'Doni Zaken', but Hash-m told
          Avraham that she said 'va'Ani Zakanti'!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer (Tana d'Vei R. Yishmael):</font></b> Shalom is so important
          that Hash-m switched her words (so Avraham would not know
          that she called him 'old').
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>PUBLICIZING THE MIRACLE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Why does it say 'Heinikah Banim' (she nursed
          sons)? Sarah only had one son!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (R. Levi):</font></b> Avraham made a big banquet on the day
          he weaned Yitzchak (to publicize the miracle). Everyone
          was saying that Sarah did not bear Yitzchak, rather, they
          found and raised a deserted baby. To prove this, everyone
          brought a baby without anyone to nurse him, and asked
          Sarah to nurse him (one who did not give birth cannot
          nurse). Hash-m made a miracle that Sarah had enough milk
          to satisfy all the babies.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They were forced to admit that Sarah bore Yitzchak.
               They said, this is because she is only 90. Avraham
               is 100, so surely it is not his son! (Rather, she
               became pregnant from Avimelech, who took her for a
               night!)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Hash-m immediately made Yitzchak's face resemble
               Avraham's, forcing them to admit that 'Avraham
               fathered Yitzchak.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Until Avraham, there were no visible signs of old age.
          People who wanted to talk with Avraham sometimes talked
          to Yitzchak (and vice-versa, because they looked the
          same). Avraham prayed for a solution, and Hash-m agreed -
          'v'Avraham Zaken Ba ba'Yamim.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Until Yakov, there was no weakness (shortly before death.
          People did not know when to command or bless their
          children. Yitzchak blessed his sons 57 years before his
          death, for 'I do not know when I will die' (Bereishis
          27:2).) Yakov prayed for a solution, and Hash-m agreed -
          'va'Yomer l'Yosef Hinei Avicha Choleh.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Until Elisha, no one ever recovered from weakness (it
          came only shortly before death). He prayed, and
          recovered. 'Chalyo Asher Yamus Bo' implies that he was
          sick other times (and recovered).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE LOCAL CUSTOM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Before they start working, tell them that you
          promise them only bread and legumes.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rav Acha brei d'Rav Yosef):</font></b> Is the text of the
          Mishnah 'bread of legumes' or 'bread and legumes'?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> I swear, it is 'bread and legumes.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mishnah - R. Shimon ben Gamliel):</font></b> There was no need for
          this. All is like the local custom.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What does 'all' come to include?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> It includes the following case (R. Shimon holds
          like Chachamim. The custom overrides the rule that 'to
          take money from another, one must bring proof.')
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Yehoshua):</font></b> If one hires a worker 'like
               one or two of the people of the city', he gets the
               lowest wage people get;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, he gets the average of the highest
               and lowest wages (Rambam; Rashi -  he gets an
               intermediate wage).
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHEN WORKERS MAY EAT THE OWNER'S FOOD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one is working with finished food attached
          to the ground (Tosfos - it is ready to be harvested;
          Rashi - he is harvesting), or any labor with detached
          food that (needs further processing and therefore) is
          exempt from Ma'aser, he may eat;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If one is working with unfinished attached food, or with
          detached (finished) food that must be tithed (before
          eating), or with food that did not grow from the ground,
          he may not eat.
<br>
<br>

sjt:
<font><b>1) THE MAN IS MORE GENEROUS WITH GUESTS</b></font><b>
<br>QUESTION:</b> The Torah uses two terms in Avraham's request to Sarah to prepare bread for the guests: 'Kemach' (flour) and 'Soles' (fine flour), as the verse states, 'Avraham hurried to the tent, to Sarah, and said, 'Quickly prepare three Se'ah of Kemach, Soles.'' (Bereishis 18:6). The Gemara derives from the use of these two phrases that 'the wife is less generous with guests than is the husband.' <b>RASHI</b> explains that Soles is superior to Kemach, and that Sarah said that she would make breads of Kemach, and Avraham told her that she should make breads of Soles.
</p><p>
Where in the verse is there any indication that Sarah said that she would make breads of Kemach? In the verse it is Avraham who is speaking, and there is no quote from Sarah in the verse. If the Gemara's inference is from the repetitiveness of 'Kemach' and 'Soles' that Sarah spoke, how does the Gemara know that it was Sarah who said 'Kemach' and Avraham who said 'Soles'? Perhaps it was Sarah who said 'Soles' and Avraham who said 'Kemach'!
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARSHA</b> explains that it is not possible that Avraham would have told his wife to make breads of <i>Kemach</i>. Avraham certainly was not stingy when it came to serving guests, for the verses indicate (as the Gemara points out) that Avraham 'said a little and did a lot.' It certainly must have been Avraham who wanted to give the guests food made from the best type of flour, and therefore Avraham must have said only 'Soles.' Accordingly, it must have been Sarah who said 'Kemach.' It is not feasible to suggest that Avraham said 'Kemach' <i>because</i> he exemplified the attribute of 'saying little and doing much' and he merely said 'Kemach' but really planned to give Soles. The conduct of 'saying little and doing much' is appropriate only with regard to something that a person is going to do himself. It is not appropriate to 'say little' and then require someone else to 'do much' (in this case, Sarah).
</p><p>
(b) <b>RAV YAKOV EMDEN</b> writes that the Gemara understands the verse as follows. Avraham said, 'Quickly prepare three Se'ah!' Sarah asked, '[Shall I prepare the three Se'ah with] Kemach?' Avraham told her, '[No, prepare them with] Soles.' (I. Alsheich)
</p><p>


<font><b>2) MAY A MAN ASK ABOUT THE WELFARE OF ANOTHER MAN'S WIFE?</b></font><b>
<br>QUESTION:</b> Rebbi Yosi teaches that there are dots over the letters Alef, Yud, and Vav in the word 'Elav' (Bereishis 18:9) because the Torah wants to teach proper manners. The Torah is teaching that a man should inquire about the welfare of his host's wife. The Gemara asks that Shmuel rules that one may not inquire about the welfare of another man's wife at all. The Gemara answers that it is permitted when one asks her <i>husband</i> about her welfare.
</p><p>
The Rishonim ask that in the Gemara in Kidushin (70b), Shmuel explicitly states that inquiring about the welfare of a woman is prohibited even by sending the inquiry to the woman via her husband. How are these two contradictory Gemaras to be reconciled?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that the Gemara here does not mean that one is permitted to ask about the welfare of another man's wife. Rather, the Gemara permits merely asking <i>where</i> she is. (The Mal'achim asked Avraham, 'Where is Sarah your wife?' either in order to make her more beloved to her husband by emphasizing how Tzenu'ah she was, or because of the requirement to act with Derech Eretz and ask a man about his wife.) Asking about her welfare is prohibited.
</p><p>
(b) <b>TOSFOS</b> in Kidushin answers that the Gemara here <i>does</i> permit one to ask a husband about his wife's welfare, while the Gemara in Kidushin prohibits sending the woman a greeting of Shalom, even via her husband. This is also the view of <b>RASHI</b> here (DH Al Yedei Ba'alah).
</p><p>
It seems that Tosfos in Kidushin and Tosfos in Bava Metzia disagree about whether one is permitted to ask a husband about the welfare of his wife. Tosfos in Kidushin permits asking a husband about the welfare of his wife, while Tosfos here prohibits it.
</p><p>


<font><b>3) HALACHAH: ASKING ABOUT THE WELFARE OF ANOTHER MAN'S WIFE</b></font><b>
<br>OPINIONS:</b> Shmuel rules that one may not inquire about the welfare of another man's wife, even by sending the inquiry to the woman via her husband.
</p><p>
What is the reason for this prohibition? Are there circumstances in which one is permitted to inquire about the welfare of a woman?
</p><p>
(a) <b>RASHI</b> in Kidushin (70b, DH Ein Sho'alin b'Shalom Ishah Klal) writes that asking a woman about her welfare is prohibited because one thereby 'makes her heart and mind familiar with him' and creates a feeling of affection within the woman which could, Chas v'Shalom, lead to sin.
</p><p>
According to this reasoning, inquiring about a woman's welfare from her husband should be permitted because the woman herself is not aware of it and thus she will not feel affection towards the other man.
</p><p>
This seems to be the way Rashi here rules as well (DH Al Yedei Ba'alah). The Gemara explains that the reason why the Mal'achim were permitted to ask Avraham Avinu about the welfare of his wife is that they asked only her husband. Rashi explains that the prohibition applies only when one asks the woman <i>directly</i> about her welfare; it does not apply when one asks her husband about his wife's welfare. (For this reason, the <b>BACH</b> (EH 21, DH v'Ein) writes that one may ask about a woman's welfare from any other person and not only from her husband. The <b>CHELKAS MECHOKEK</b> (EH 21:7) disagrees and rules that one may ask only her husband, as the Gemara here implies, because her husband specifically avoids relating the man's inquiry to his wife, while any other person will not be so particular.)
</p><p>
(b) The <b>RITVA</b> in Kidushin, however, implies that the reason why a man may not inquire about the welfare of another man's wife is that the <i>man</i> will feel close to the woman and might, Chas v'Shalom, have sinful thoughts. (This also seems to be the view of the <b>ME'IRI</b>.) The Ritva writes that if a man knows that he has subjugated his Yetzer ha'Ra and is in complete control of his thoughts such that he never allows sinful thoughts into his mind, he is permitted to ask a married woman about her welfare. (The <b>PISCHEI TESHUVAH</b> (EH 21:4) quotes the <b>YAD EFRAIM</b> who explains that this is why Elisha was permitted to send a greeting of Shalom to the Ishah ha'Shunamis (Melachim II 4:26).)
</p><p>
According to the Ritva, the prohibition is because of the man's tendency to have sinful thoughts, and it is not because the woman will feel affection towards the man. Consequently, a man who is in complete control of his thoughts is permitted to ask a woman about her welfare. In contrast, according to Rashi, such a man still is prohibited from asking a woman about her welfare. On the other hand, according to the Ritva, a man is <i>not</i> permitted to ask a husband about his wife (even when his wife will not know about it), since there remains the concern that the man will have sinful thoughts.
</p><p>
How does the Ritva understand the Gemara here in Bava Metzia which states that the Mal'achim were permitted to ask Avraham Avinu about his wife? The <b>DIVREI SHALOM</b> (2:14) explains that the Ritva learns like <b>TOSFOS</b> here (DH Al Yedei). Tosfos explains that the Mal'achim were permitted to ask only 'where is Sarah' (in order to make her more beloved to her husband by emphasizing how modest (Tzenu'ah) she was, or because of the requirement to act with Derech Eretz and ask a man about his wife), but not to ask about her welfare.
</p><p>

<b>HALACHAH:</b> The <b>SHULCHAN ARUCH</b> (EH 21:6) rules like Shmuel who says that one may not ask a married woman about her welfare, even via a messenger, and even via her husband.
</p><p>
The Shulchan Aruch rules like Rashi's understanding of the Gemara here, that one is permitted to ask a husband about his wife's welfare. (See previous Insight.)
</p><p>
It is interesting to note the comments of the <b>BEN YEHOYADA</b> to the Gemara here. The Ben Yehoyada suggests that this prohibition applies only to a man who is completely unknown to the woman. By inquiring about her welfare, he creates a bond of affection. If, however, the man is a relative of hers or he is a frequent guest in her home, he is not prohibited from inquiring about her welfare. In such a case, it is clear that his intention is not to form a bond of affection but to express to her his gratitude for her hospitality. On the contrary, it is proper conduct of Derech Eretz to express concern about her welfare.
</p><p>
The <b>TAZ</b> rules that if the woman was ill or there were some other circumstances which would make it inappropriate <i>not</i> to ask about her welfare, then one may add in a letter written to her husband, 'Please inform me of the welfare of your wife.' (See also Insights to Kidushin 70:4.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>GEZEL 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'> 87b (Beraisa):</font></b> The Torah discusses 'b'Cherem
               Re'echa', but not in a Nochri's vineyard.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> According to the opinion that permits
               Gezel Nochri, what does the verse teach?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 111b (Beraisa):</font></b> 'Re'acha' excludes an Amaleki (or
               any Nochri).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> 'Achicha' excludes an Amaleki!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> One verse permits withholding his wages, and
               the other permits stealing from him.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Bava Kama 113b (Beraisa - R. Yishmael):</font></b> If a Yisrael
               and a Nochri [extortionist] came for judgment, If
               Torah law favors the Yisrael, we rule like Torah
               law. If Nochri law favors the Yisrael, we rule like
               Nochri law. If neither favors the Yisrael, we seek a
               ruse (to exempt the Yisrael);
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> R. Akiva says, we may not seek a ruse. This is not
               Kidush Hash-m (sanctification of His name)!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Inference:</font></b> If not for Kidush Hash-m, we could use a
               ruse!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> One may not steal from Nochrim!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Shimon citing R. Akiva):</font></b> The law
                    of a Yisrael slave sold to a Nochri teaches
                    that one may not steal from Nochrim. 'He will
                    have redemption' - we may not forcibly take him
                    without paying.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps he may trick him!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rejection:</font></b> 'V'Chishev Im Konehu' - he will
                    calculate with the buyer, i.e. precisely.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer (Rava):</font></b> One may not steal from a Nochri, but
               one may use a ruse to evade paying a debt to a
               Nochri.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question (Abaye):</font></b> One must pay the proper redemption
               to a Nochri, even though this is like a debt!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer:</font></b> Rava holds that a Yisrael slave is bodily
               owned by his master (for the period of service, so
               to forcibly take him is outright theft).
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> (Rav Huna):</font></b> We learn from 'you will consume all the
               Amim that Hash-m gives to you.' You are permitted
               (to steal from them) only when you they are given
               into your hand.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> (Rav Huna):</font></b> One may not steal from a Nochri. We
               learn from 'you will consume all those that Hash-m
               gives to you. You are permitted (to steal from them)
               only when you conquer them in war.
<br>        <b>  <b><font color='darkgreen'>15. </font></b></b> Rav Ashi was walking; he saw some grape clusters
               hanging on vines in an orchard. He told his servant
               'see who owns them. If it is a Kusi, bring them to
               me. If it is a Yisrael, do not.'
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> The owner (a Kusi):</font></b> May you steal from Kusim?!'
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> Rav Ashi:</font></b> (I did not want to take for free.) A Kusi
               would accept money for them, but a Yisrael would
               not.
<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 (10:12):</font></b> Gezel Nochri is forbidden.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> Rav Ashi intended to pay for the grapes from
               the beginning, for we do not find a Tana or Amora
               who permits Gezel or Geneivas Nochri.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 1:2):</font></b> Mid'Oraisa, one may
               not steal any amount or be Oshek even a Nochri
               idolator. If one did, he must return it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Kesef Mishneh):</font></b> It says 'Lo Sa'asok
                    <i>Re'echa</i>', to exclude a Nochri!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Kesef Mishneh):</font></b> The Rambam said
                    'forbidden', but did not say that there is a
                    Lav for Gezel Nochri, for it is not mid'Oraisa.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (CM 359:2):</font></b> The Rambam in Hilchos
                    Geneivah (1:1. below) connotes that it is a Lav
                    mid'Oraisa. Yam Shel Shlomo also says so, but
                    concludes like Rashi, that it is only
                    mid'Rabanan.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (Likutim on the Rambam, brought in Sedei
                    Eliyahu Bava Kama 113b):</font></b> An Aseh forbids Gezel
                    Nochri, 'you will consume all the Amim.'
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Radvaz (4:205):</font></b> The Rambam holds that whenever
                    there is a Lav to steal from a Yisrael, there
                    is a Lav of Gezel Nochri. However, it is not
                    'Lo Signov', for the Gemara needed to find
                    sources to forbid Gezel Nochri. Also, the Tana
                    who permits expounds the verses of R. Akiva and
                    Rav Huna differently. We do not ask from Lo
                    Signov. The Rambam did not distinguish, for in
                    any case there are no lashes. Rather, one
                    returns the theft.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (7:7):</font></b> One who swore (falsely to deny owing)
               to a Nochri pays only principal without Chomesh, for
               it says 'he denied his compatriot.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> This is a Beraisa (Toras Kohanim
                    Parshasa 12 Perek 22).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos Geneivah 1:1):</font></b> The Lav of Geneivah
               applies to stealing from a Yisrael or Nochri.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rambam (7:8):</font></b> If one did business with a Yisrael or
               Nochri idolator and measured or weighed too little,
               he transgressed a Lav and must return it.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rashi (Sanhedrin 57a DH Goi):</font></b> Geneivah and Gezeilah
               of a Nochri is permitted. It says 'Lo Sa'asok
               <i>Re'echa</i>', to exclude a Nochri. One opinion forbids
               mid'Rabanan, due to Chilul Hash-m.
<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 348:2):</font></b> The Lav of Geneivah
               applies to stealing from a Yisrael or Nochri.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Yam Shel Shlomo (10:20):</font></b> The Gemara said 'when
                    they are given into your hand.' This does not
                    mean that you conquered them, for R. Akiva
                    expounds a verse (about such a case) to forbid!
                    Also Tosfos (38a DH Omad) said that we
                    understand damages (a Yisrael is exempt if his
                    animal damaged a Nochri's, but vice-versa the
                    Nochri is liable) according to the opinion that
                    forbids Gezel Nochri, even though in any case
                    when we conquered them! Rather, they are given
                    into your hand, i.e. Hash-m commanded to fight
                    them, or (in an optional war) He permitted us
                    to fight them. After we conquered an Umah not
                    from the seven, one may not steal from them.
                    The Rambam, Semag and Tur say that Geneivah and
                    Gezeilah from a Nochri are like from a Yisrael.
                    This is astounding. The Torah was given to
                    Yisrael! The verse we expounded is a mere
                    Asmachta. Even if you will say that it is a
                    true Drashah, it is a mere Isur, but it is not
                    part of the Lav of theft. Rashi (Sanhedrin 57a)
                    explicitly says that it is only mid'Rabanan,
                    due to Chilul Hash-m. I disagree. Even without
                    Chilul Hash-m, one must distance from what is
                    repulsive, consume his own, and not accustom
                    himself to theft.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal #1 (R. Akiva Eiger, 369:1):</font></b> Surely R.
                    Akiva forbids mid'Oraisa. The Gemara (Bava
                    Metzia 87b) said 'this Drashah is like the
                    opinion that forbids Gezel Nochri. How does the
                    other opinion expound? This shows that they
                    argue mid'Oraisa! Also, the Gemara inferred
                    that R. Akiva forbids only due to Chilul
                    Hash-m, and rejected this!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal #2 (Chacham Tzvi 26):</font></b> Yes, the Torah
                    was given to Yisrael. Why does this connote
                    that it permits Gezel Nochri? Are Nochrim
                    commanded to allow Yisre'elim to steal from
                    them? We are commanded not to act lowly! One
                    may not steal in order to pay Kefel, i.e. to
                    help the victim, lest he accustom himself to
                    steal. Explicit Lavim forbid subjugating or
                    selling a Nochris (Eshes Yefas To'ar). When we
                    besiege a Nochri city, we must leave one
                    direction open for people to flee. Some say
                    that the Torah forbids paining animals. It
                    explicitly commands about Oso v'Es Beno and
                    Shilu'ach ha'Kan, and not to wastefully destroy
                    trees. All this is to make us acquire good
                    Midos. How can the Maharshal explain why it
                    must say 'Re'echa' according to the one who
                    permits Gezel Nochri?
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Defense (Panim Me'iros 1:27):</font></b> The Maharshal
                    means that the Torah does not punish Yisrael
                    for transgressions against Nochrim unless it
                    specifies. The Kesef Mishneh holds that
                    'Re'echa' is needed so that we will not say
                    that an Isur Aseh forbids Gezel Nochri; all
                    Tana'im forbid mid'Rabanan. Really, the Rambam
                    forbids mid'Oraisa.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Gra (8):</font></b> Bava Metzia 87b alludes to the
                    opinion that permits Gezel Nochri. Both
                    opinions in Bava Kama forbid! Rather, it is the
                    Tana in Bava Metzia 111b. Even he forbids
                    mid'Oraisa due to Chilul Hash-m! A Tosefta
                    (Bava Metzia 10:8) obligates returning Gezel
                    Nochri, and says that it is more severe than
                    Gezel Yisrael, due to Chilul Hash-m.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Shulchan Aruch (359:1):</font></b> One may not steal or be Oshek
               any amount, from a Yisrael or Nochri.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mishbetzos Zahav (604 Sof 1):</font></b> The law of Chamas
                    Nochri (forcing him to sell It) requires
                    investigation
<br>
<font color='blue'><i>See also:</i>
<br><b><b>MAY ONE SWINDLE A NOCHRI? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> 'B'Cherem Re'echa you may eat.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source to permit eating in places
          other than a vineyard?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1:</font></b> We learn from a vineyard. A worker may eat
          grapes in a vineyard; they grow from the ground and are
          finished. Also anyone working with finished food that
          grows from the ground may eat.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> We cannot learn from a vineyard. There,
          workers may eat, for the owner must also leave Olelos
          (deficient clusters) for the poor. (For other Peros,
          there is no law analogous to Olelos. Perhaps workers may
          not eat!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2:</font></b> We learn from Kamah (standing crop, i.e.
          grain).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the source that he may eat Kamah?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> 'B'Kamas Re'echa'.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection:</font></b> We cannot learn from Kamah, for Chalah must be
          separated (when making a dough) from it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the source that the verse
               discusses Kamah (of the five grains,) from which
               Chalah must be taken? Perhaps it discusses any
               standing crop!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> We learn a Gezeirah Shavah 'Kamah-Kamah'
               from the Omer offered on the second day of Pesach.
               Just like that discusses (barley,) something from
               which Chalah is taken, also here.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #3:</font></b> We learn from a vineyard that permission to
          eat does not depend on liability to take Chalah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> We cannot learn from a vineyard, for one
               must leave Olelos there!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> We learn from Kamah that permission to eat
               does not depend on Olelos.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The stringency of each is unlike the stringency
                    of the other. What is common to both is that
                    they grow from the ground, and when they are
                    finished, anyone working with them may eat
                    them. Likewise, anything that grows from the
                    ground, when it is finished, anyone working
                    with it may eat it.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection:</font></b> We cannot learn from the Tzad ha'Shavah, since
          (products of) both grapes and Kamah are offered on the
          Mizbe'ach!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Concession:</font></b> At least we can learn to olives, for its
               oil is offered on the Mizbe'ach.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> We need not learn olives from the Tzad
               ha'Shavah. An olive orchard itself is called a
               vineyard - 'Kerem Zayis'!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav Papa):</font></b> It is called 'Kerem Zayis', it is
               not called just 'Kerem'.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> We still have no source for foods not offered on the
               Mizbe'ach.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #3 (Shmuel):</font></b> 'V'Chermesh (and a scythe)' includes
          anything harvested with a scythe.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> That is needed to teach that one may eat
               only when he harvests them (Rashi; Tosfos - they are
               ready for harvesting) with a scythe!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> We learn that from 'v'El Kelyecha Lo Siten.'
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Objection:</font></b> This teaches only things harvested with a
          scythe. What is the source for things not harvested with
          a scythe?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #4 (R. Yitzchak):</font></b> 'Kamah' includes anything that
          stands (i.e. grows from the ground).
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b>  We proved that 'Kamah' only refers to things
          from which Chalah must be taken!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> That was before we expounded 'V'Chermesh';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Now that 'v'Chermesh' teaches anything harvested
               with a scythe, whether or not Chalah is taken from
               it, 'Kamah' is extra to teach everything that grows
               from the ground.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> Now that we learned everything from 'Kamah' and
          'v'Chermesh', why did the Torah have to write 'Kerem'?
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> It teaches about the special laws of a
          vineyard;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> It says 'Ki Savo' regarding eating in
               another's vineyard, and also regarding paying a
               worker the same day. Just like the latter discusses
               a worker, also the former.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Torah discusses 'b'Cherem Re'echa', but not in a
               Nochri's vineyard. (Rashi - there, you may even put
               into your Kelim; Ritva - there, you may not take at
               all.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> We understand this according to the opinion that
               forbids stealing from Nochrim.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> According to the opinion that permits
               stealing from them, (Rashi - the verse is not
               needed; Ritva surely it does not forbid a worker),
               what do we learn from the verse?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> You may eat 'b'Cherem Re'echa', but not in a
               Hekdesh vineyard.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> 'V'Ochalta' - you may eat, but you may not suck the
               juice and discard the skin;
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> You may eat 'Anavim', but not grapes and something
               else (to make them tastier);
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> You may eat 'k'Nafshecha' - the worker's law is like
               the owner's;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Just like the owner may eat without tithing (he
                    need not tithe until making wine), also a
                    worker.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> You may eat 'Savecha (to satiation)' one may not
               gorge himself.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> 'V'El Kelyecha Lo Siten' - you may eat only when you
               are putting in the owner's Kli (i.e. harvesting -
               Rashi; Tosfos - when they are ready to put in his
               Kli, i.e. fully ripe).
<br>

<p>

sjt:
</p><p>
<font><b>4) TAKING FRUIT FROM THE FIELD OF A 'KUSI'</b></font><b>
<br>QUESTION:</b> The Torah (Devarim 23:25) teaches that a hired worker may eat the fruits of the field in which he is working, but he may not place the fruits into his vessel (to save and bring home). The Gemara derives from the verse, 'Ki Savo b'Cherem <i>Re'echa</i>' -- 'When you enter the vineyard of <i>your friend</i>,' that this restriction applies only 'b'Cherem Re'echa,' in the vineyard of a Jew, but not 'b'Cherem Kusi,' in the vineyard of a Kusi (or a Nochri), in which a hired worker <i>may</i> collect the fruits and place them in his vessel to bring home.
</p><p>
The Gemara asks that according to the opinion (in Bava Kama 113a) that one is permitted to keep an object that was stolen from a Kusi, there should be no need for a verse to teach that a hired worker may take home fruit from the Kusi's field. The Gemara answers that according to that opinion, the verse indeed does not teach that one is permitted to take home fruit from a Kusi's field. Rather, the verse teaches that one may take fruit <i>only</i> from the vineyard of one's fellow man, but not from a vineyard of Hekdesh in which one was hired to work.
</p><p>
The Acharonim ask why the Gemara does not answer its question as follows. There is a view that maintains that even though Gezel Nochri is permitted, nevertheless when the object is in the possession of a Jew it does not have the status of 'Lachem,' of fully belonging to the Jew (this is the view of the <b>SEFER HA'YERE'IM</b> #421, as cited by the <b>MAGEN AVRAHAM</b> OC 633:3). According to this view, even if Gezel Nochri would be permitted, the verse still would be needed to teach that the fruit becomes the full possession of the Jew (so that if he takes an Esrog, it is considered to belong to him so that he may use it for the Mitzvah on Sukos). (See <b>MINCHAS CHINUCH</b> 558:3.)
</p><p>
<b>ANSWER:</b> The Acharonim answer that the Sefer ha'Yere'im indeed had a different Girsa in the Gemara. His Girsa was the same as that of the <b>RITVA</b>. In his text, the Gemara asks according to the opinion that maintains that one may keep an object stolen from a Kusi, 'Mai Ika l'Meimar?' That is, the Gemara does not ask that the verse would not be necessary to teach that a hired worker may keep the fruit, because the verse indeed <i>is</i> necessary to teach that the fruit that he takes belongs fully to him. Rather, when the Gemara says that 'b'Cherem Re'echa' excludes the vineyard of a Kusi, it means that a hired worker may <i>not</i> take <i>any</i> fruit from the field of a Kusi. The Gemara then asks that if Gezel Nochri is permitted, why may he not take any fruit? The Gemara answers that the verse indeed does not exclude a vineyard of a Kusi, but rather it excludes a vineyard of Hekdesh. (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>BEING KOVE'A FOR MA'ASER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Yanai):</font></b> There is no obligation to tithe Peros unless
          they entered through the door of the house - 'Bi'arti
          ha'Kodesh Min ha'Bayis';
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> Even entering a Chatzer is Kove'a Peros
          for Ma'aser (forbids eating them casually before tithing)
          - 'v'Ochlu vi'Sh'arecha'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What does R. Yochanan learn from 'Min
          ha'Bayis'?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> It teaches that a Chatzer is Kove'a only if it
          resembles a house, i.e. it is guarded.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What does R. Yanai learn from 'vi'Sh'arecha'?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> It teaches that a house is Kove'a only if it
          entered through the gate (the normal entrance), to
          exclude if it entered through the roof or Karfef (storage
          area).
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Question (against both - Rav Chanina Chuza'ah - Beraisa):
          'K'Nafshecha' - a worker is like the landowner. Just like
          the owner may eat without tithing, also a worker.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> A buyer must tithe before eating. (A sale
               is Kove'a, like final processing.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> This applies even in the field! (Rashi -
               final processing is Kove'a no less than a sale;
               Tosfos - the Amora'im said Stam that Peros are
               exempt until they enter the house or Chatzer, i.e.
               even if one bought them.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> No. The case is, a date tree is in a
          garden, and the foliage extends into a Chatzer (or
          according to R. Yanai, into a house).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> If so, also the owner must tithe before eating!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> No. The owner's primary concern is the tree
          itself. Since the tree is in the garden, the fruit is
          Kavu'a only when all of it is brought inside;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The buyer cares only about what he bought. Since
               that is in the Chatzer (or house), it is Kavu'a.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Mid'Oraisa, one need not tithe bought Peros!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> The stores of Beis Hino were destroyed
               three years before Yerushalayim because they stuck
               to Torah law (and neglected a Rabbinical enactment).
<br>
<br>

sjt:
<font><b>1) FRUIT HANGING INTO A HOUSE</b></font><b>
<br>QUESTION:</b> Rebbi Yanai maintains that fruit of Tevel becomes subject to the obligation to separate Ma'aser only when it enters one's house. Rebbi Yochanan maintains that entering the Chatzer is sufficient to render it subject to Ma'aser. The Gemara challenges both opinions from the Beraisa mentioned earlier. The Beraisa derives from a verse that a laborer is not required to separate Ma'aser from the fruit that he eats while he works in the field. Since the verse teaches this Halachah specifically with regard to a laborer, it implies that a purchaser who buys the fruit in the field is obligated to separate Ma'aser even though it has not yet entered a house or a Chatzer.
</p><p>
Rav Papa answers that the Beraisa refers specifically to a case in which the fruit tree grows in the garden but its fruit hangs into the Chatzer (according to Rebbi Yochanan) or into the house (according to Rebbi Yanai). Since the fruit is located in the Chatzer or house as soon as it is plucked, the purchaser must separate Ma'aser.
</p><p>
Why is there an obligation to separate Ma'aser from such fruit? Although the fruit is located in a Chatzer or house, it was not brought in through the gate, a necessary condition -- according to both Rebbi Yochanan and Rebbi Yanai -- for the fruit to be subject to Ma'aser. (Rishonim)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> cites an opinion (in the name of 'Yesh Mi she'Piresh') that in the case of the Beraisa, the trunk of the tree has grown through the gate of the Chatzer, and thus the fruit indeed has entered the Chatzer via the gate.
</p><p>
The Rashba cites the <b>RA'AVAD</b> who rejects this explanation. The Ra'avad contends that even if the tree grows through the gate (and is considered to have entered the Chatzer), the fruit would not be subject to the obligation of Ma'aser because the fruit itself entered the gate before it was picked (before the 'Gemar Melachah'). The fruit, therefore, is comparable to wheat that was brought into the Chatzer while still sheathed in its chaff, which is not subject to the obligation of Ma'aser.
</p><p>
(b) The <b>RAMBAN</b>, <b>RASHBA</b>, and <b>RAN</b> answer that the requirement that the fruit be brought through the gate applies only when the fruit grew outside of the Chatzer. Fruit that grew inside of the Chatzer (such as in this case, where the trunk of the tree was leaning into the Chatzer) is not subject to this requirement, and thus the obligation to separate Ma'aser takes effect without the fruit entering the Chatzer through the gate. They add that, on the contrary, this is the most ideal form of 'Re'iyas Penei ha'Bayis.'
</p><p>
(c) The <b>RITVA</b> writes that when the Gemara says that the trunk of the tree leans into the Chatzer, it means that it is <i>next to</i> the entrance to the Chatzer such that one can pick the fruit from the tree and bring it in without having to leave the Chatzer. Thus, when the fruit is brought into the Chatzer it passes through the gate and becomes subject to the obligation of Ma'aser. (Although this explanation is not given by any of the other Rishonim, the <b>MAHARSHA</b> asserts that this is also the view of <b>TOSFOS</b>, beginning of DH Ad she'Yir'eh.)
</p><p>


<font><b>2) FRUIT BROUGHT INTO SOMEONE ELSE'S HOUSE</b></font><b>
<br>QUESTION:</b> The Gemara teaches that once a laborer brings the fruit which he is allowed to eat into the Chatzer or house of his employer, it becomes subject to the obligation of Ma'aser. The <b>RASHASH</b> questions this from the Mishnah in Ma'aseros (2:2) which teaches (according to the Yerushalmi cited by the <b>RASH</b> there) that when a person brings his fruit into someone else's house the fruit does <i>not</i> become subject to the obligation of Ma'aser. The obligation of Ma'aser takes effect only when he brings the fruit into his <i>own</i> house. Why, then, does the laborer's fruit become subject to the obligation of Ma'aser when he brings the fruit into his employer's house or Chatzer?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHASH</b> gives an answer based on the words of <b>TOSFOS</b> (DH Tevu'as), who says that the laborer does not acquire the fruit until he eats it. Hence, at the time he picks the fruit it still belongs to the employer, and thus the fruit becomes obligated in Ma'aser when the laborer brings it into the employer's house.
</p><p>
(b) The <b>CHAZON ISH</b> (Ma'aseros 3:14) answers that the Rashash's understanding of the Mishnah in Ma'aseros is not accurate. The Rashash understands the Mishnah there based on the Yerushalmi which says that 'a Chatzer does not establish [the obligation of Ma'aser] except for the owner.' However, the Yerushalmi does not mean that fruit does not become obligated in Ma'aser when it is brought into someone else's Chatzer or house. Rather, the Yerushalmi means that entry into a Chatzer activates the obligation of Ma'aser only for someone who has a regular place ('Kevi'us Makom') in that Chatzer. He does not have to be the <i>owner</i> of the Chatzer, but he must be <i>like</i> an owner who has regular usage of the Chatzer. Therefore, the laborer -- who regularly uses the Chatzer where he eats the fruit that he picked -- becomes obligated to separate Ma'aser when he brings the fruit into the Chatzer of his employer. (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>THE HOUSE AND CHATZER ARE KOVE'A FOR MA'ASER</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yanai):</font></b> Produce need be tithed only once it sees
               (is brought in through) the opening of the house -
               'Bi'arti ha'Kodesh Min ha'Bayis.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> Even entering the Chatzer (yard)
               obligates tithing it - 'they will eat in your gates
               and be satiated.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yochanan learns from 'Bi'arti ha'Kodesh Min
               ha'Bayis' that a Chatzer is Kove'a (obligates
               tithing before eating) only if it resembles a house,
               i.e. it is guarded.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yanai learns from 'vi'Sh'arecha' that a house is
               Kove'a Peros only if they entered (normally) through
               the gate, but not if they entered through the roof
               or Karfef (storage area).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Question (Mar Zutra brei d'Rav Nachman - Beraisa):
               One who eats Tevel (untithed Peros) that is finished
               (after final processing) is liable. The final
               processing is Hachnasah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> Hachnasah means gathering it, even
                    in the field.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #1:</font></b> No, it is bringing it into the house.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #2:</font></b> R. Yanai said that entering the house is
               Kove'a only for grapes and olives, which have no
               Goren (threshing-floor to which they are gathered).
               For grain, the Torah explicitly says 'ka'Dagan Min
               ha'Goren' (Bamidbar 18:27)!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Gitin 81a (R. Yochanan):</font></b> Early generations brought
               their produce into the house through the Traksimon
               (gate), in order to obligate tithing it. Later
               generations bring their produce through the roof or
               yard in order to exempt it from tithes.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Ma'aser 3:3):</font></b> Any one of the
               following six things are Kove'a for Ma'aser: the
               house, a sale... They are Kove'a only finished
               Peros.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad:</font></b> The exceptions are grain, wine and
                    oil. The Torah says that final processing of
                    these is in the Goren and winepress.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Ri Korkus):</font></b> What is the Ra'avad's
                    source? R. Yanai's teaching is brought
                    throughout Shas, without saying that it does
                    not apply to grain, wine and oil! Bi'arti
                    ha'Kodesh Min ha'Bayis refers to grain, wine
                    and oil, and it is the source that the house is
                    Kove'a! Mishnayos (Ma'aseros 1:5-6) discuss
                    final processing of foods, including grain.
                    This connotes they are equal! Perhaps the
                    Ra'avad he learns from Bava Metzia. We said
                    that R. Yanai said that entering the house is
                    Kove'a only for grapes and olives, which have
                    no Goren, but not for grain. The Ra'avad
                    explains, like Rashi, that this discusses
                    grapes and olives for eating, but if they will
                    be squeezed, the winepress is their Goren. The
                    Rambam could explain like this, but he did not
                    rely on this answer, even though it is the
                    latter answer, because the Gemara in Pesachim
                    (9a) disagrees. (R. Oshaya exempts Peros in a
                    Goren in the house. Rashi (Bava Metzia 88b DH
                    Aval) says that he refers to any Peros, and he
                    argues with Answer #2 in Bava Metzia.)
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kesef Mishneh:</font></b> The Ra'avad learns from
                    '...Trumaschem ka'Dagan Min ha'Goren
                    vecha'Mle'ah Min ha'Yakev' that it is liable
                    from the Goren, even if he plans to take it to
                    the house. The Rambam holds that the verse
                    discusses one who plans to sell it in the
                    market, but not if he will take it to his
                    house. The Ra'avad holds that mid'Oraisa, only
                    grain, wine and oil are liable. If so, to what
                    do we apply to the verse that obligates when it
                    reaches the house?!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Note:</font></b> The verse can apply to when he did not
                    plan to squeeze grapes or olives (like Rashi
                    said - see Ri Korkus above).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (4):</font></b> If one plans to take Peros to the house,
               even if they were finished, he may eat Arai from
               them until bringing them into the house. After
               bringing them into the house they are Kove'a for
               Ma'aser, and he may not eat until tithing.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> The Rambam rules like R. Yanai
                    against R. Yochanan (who says that even the
                    Chatzer is Kove'a), for R. Yanai was R.
                    Yochanan's Rebbi. How can R. Yanai argue with
                    Mishnayos that say that the Chatzer is Kove'a!
                    Tosfos answers that he holds that it is Kove'a
                    mid'Rabanan. The Rambam (4:1) obligates
                    mid'Oraisa only when it enters the house.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Gra YD 331:139):</font></b> (The Kesef Mishneh
                    holds that the Rambam omitted Chatzer here
                    because it is not mid'Oraisa.) This is wrong.
                    The Rambam lists all six things that are
                    Kove'a, even though only the house is
                    mid'Oraisa! Really, the Rambam rules like R.
                    Yochanan, that the Chatzer is Kove'a mid'Oraisa
                    (see 4:7, below). He did not list it here
                    because it is Kove'a only if it is guarded.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> The Kesef Mishneh did not explicitly say
                    why the Rambam omitted Chatzer here. Perhaps
                    here he lists the six categories that are
                    Kove'a. Below, he explains that a guarded
                    Chatzer is (like, and is) included in 'house'.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Mishneh l'Melech:</font></b> The Yerushalmi says that R.
                    Yanai agrees that the Chatzer is Kove'a
                    mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (4:7):</font></b> Just like the house is Kove'a for
               Ma'aser, also the Chatzer. Once they enter the
               Chatzer through the gate they are Kavu'im, even
               though they did not enter the house.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (EH 331:83):</font></b> Any one of the following
               six things is Kove'a for Ma'aser: the house...
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> All of them are Kove'a only
               something that was finished. If one plans to take
               Peros to the house, even if finished, he may eat
               Arai from them until they enter his house.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (140):</font></b> The Yerushalmi says that his house
                    is Kove'a.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> After they entered his house
               they are Kove'a for Ma'aser, and he may not eat
               until tithing. Just like the house is Kove'a for
               Ma'aser, also the Chatzer. If they entered the
               Chatzer through the gate, they are Kavu'im, even
               though they did not enter the house. If he brought
               Peros into the house before final processing, he may
               eat Arai. If he began final processing after they
               entered the house, he must tithe all of them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (112):</font></b> Only the Chatzer and house are
                    Kove'a mid'Oraisa. Since Bi'ur is from the
                    house, we infer that they are Kavu'im only from
                    when they enter the house. 'They will eat in
                    your gates and be satiated' shows that the
                    Chatzer is Kove'a. The other four are Kove'a
                    only mid'Rabanan. We could learn a Kal
                    va'Chomer from the Chatzer to the house. The
                    Torah mentions a  house to teach that a Chatzer
                    is Kove'a only if it is guarded, like a house.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Question (Nekudas ha'Kesef (the Shach's son)):
                    The Levush and Shach rule that the Chatzer is
                    Kove'a mid'Oraisa. What is their reason? We
                    always follow R. Yanai against R. Yochanan, his
                    Talmid! The Yerushalmi says that even R.
                    Yochanan holds that the Chatzer is Kove'a only
                    mid'Rabanan!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Tzlach (Berachos 35b DH Derech):</font></b> Here, Rashi
                    says that Traksimon is a Chatzer. The text here
                    says that later generations entered Peros
                    through the Chatzer to exempt them! R. Yochanan
                    himself taught that a Chatzer is Kove'a! Rashi
                    can say that they later generations entered
                    through Chatzeros that are not guarded.
                    However, Tosfos (Bava Metzia 88a DH Ad) says
                    that R. Yochanan holds that such a Chatzer is
                    Kove'a mid'Rabanan! Perhaps this is only for
                    grain, wine and oil, for which Ma'aseros are
                    mid'Oraisa. 
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHAT IS KOVE'A FOR MA'ASER? </b></b>(</font><font color='blue'>


