# dafyomi

lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ACQUISITION OF A METZI'AH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Reuven and Shimon are holding a garment.
          Reuven says 'I found it', and so does Shimon; Reuven says
          'it is mine', and so does Shimon. Each swears that he
          does not own less than half, and they divide it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven says 'it is all mine' and Shimon says 'it is
          half mine', Reuven swears that he does not own less than
          three quarters, and Shimon swears that he does not own
          less than one quarter. Each gets like he swore.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If two men are riding on an animal, or one is riding and
          the other is leading it, and each says 'it is mine', each
          swears that he does not own less than half, and they
          divide it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When they admit, or when they have witnesses, they
               divide without an oath.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why must the Mishnah say 'Reuven says
          'I found it', and so does Shimon; Reuven says 'it is
          mine', and so does Shimon'? It suffices for each to make
          one claim!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Indeed, each makes one claim. Each says 'I
          found it, and it is mine.'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> It should suffice to teach 'I found it.' We
          would know that he claims 'it is mine'!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Had it taught only 'I found it', one might have
          thought that this means 'I saw it', and he acquires
          through seeing alone. Therefore, it teaches 'it is mine'
          to teach that one does not acquire through seeing alone.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> One could not have thought that 'I found it'
          means that he merely saw it!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Ravnai):</font></b> 'And you will find it' connotes that it
               came to your hand.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, in the Torah 'and you will find it'
          connotes that it came to your hand. The Tana speaks like
          people do;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> People say 'I found it' once they see it.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> It should suffice to teach 'it is mine'!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The Tana wanted to teach that one does not
          acquire through seeing alone;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He teaches 'I found it' and additionally 'it is
               mine' to teach that mere finding (seeing) does not
               acquire.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ARGUING ABOUT A SALE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Objection (to Answer #1):</font></b> We cannot learn to say that
          each makes one claim. The Mishnah says 'Reuven says 'I
          found it' and Shimon says 'I found it'. Reuven says 'It
          is mine'...!'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #2 (Rav Papa):</font></b> The Mishnah teaches two cases. 'I
          found it' refers to an argument about a Metzi'ah. 'It is
          mine' refers to an argument about who bought an item.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	It needed to teach both cases:
<br>
<br>

sjt:
<font><b>1) TWO PEOPLE HOLDING ON TO A GARMENT</b></font><b>
<br>QUESTION:</b> The Mishnah states that when two people are holding on to one garment, and each person claims that the entire garment belongs to him, each claimant must swear that he does not own less than half of the garment, and then each receives half of it.
</p><p>
Why does the Mishnah specifically mention that both are holding the garment? The Halachah apparently would be the same even if they were not holding the garment.
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH v'Yachloku) explains that the Halachah indeed would be different if they were not holding the garment. Tosfos bases this assertion on the Gemara in Bava Basra (34b) which teaches that when two people come to Beis Din with a dispute about the ownership of a boat, Beis Din rules 'Kol d'Alim Gavar' -- whoever is stronger prevails. Beis Din does not rule that the two litigants split the boat. Tosfos explains that since neither claimant is in physical possession of the boat, there is no positive proof that the boat belongs to one of them. In such a case, Beis Din prefers to let the stronger one prevail, rather than to give half of the boat to each person, a ruling which might cause the rightful owner to lose his boat.
</p><p>
The <b>ROSH</b> (1:1) elaborates on this. Beis Din does not have to prevent one of the claimants from taking the boat for himself, since no proof has been brought that it does not belong to him, and the person who prevails and takes it claims that it belongs to him. Therefore, Beis Din allows the one who takes the boat for himself (either with testimony or through force) to prevail, and it is assumed that since he put forth so much effort into taking possession of the boat he most likely is the true owner. This is a more just way of handling the case than splitting the boat between the two of them.
</p><p>
In the case of the Mishnah, however, this ruling ('Kol d'Alim Gavar') is not an option since each of the claimants is holding on to the disputed object. Each claimant's physical possession of the object constitutes proof that the garment belongs to him (as the Gemara on 3a says, 'Anan Sehadi d'Mai d'Tafis Hai, Didei Hu'). Since Beis Din is faced with two opposing claims supported by proof, Beis Din cannot ignore one person's proof and allow the other to take the garment. Therefore, Beis Din's only option is to split the garment between the claimants. (Even splitting it is not an option when the claimants are holding on to the object and it is not possible that the object actually belongs to both of them, because Beis Din certainly will be doing an injustice by splitting the object. In such a case, Beis Din rules 'Yehei Munach,' it remains in escrow until someone brings proof of ownership, as the Gemara later (3a) mentions. However, in the case of the Mishnah here, since it is possible that both claimants picked up the garment together and it indeed belongs to both of them, Beis Din divides the garment between the two of them.) This is the way Tosfos explains the Mishnah.
</p><p>
<b>RASHI</b> at the beginning of the Mishnah (DH Shenayim) writes 'Davka Ochazin,' which implies that if the two claimants are not holding the garment the Halachah would be different, as Tosfos says. This indeed is the way some Rishonim (<b>RADVAZ</b> cited by the Shitah Mekubetzes, <b>HAGAHOS MORDECHAI</b> (second set), <b>HAGAHOS MAIMONIYOS</b>, Hilchos To'en v'Nit'an 9:7) understand the intention of Rashi here.
</p><p>
(b) The <b>RIVA</b> (cited by Tosfos to Bava Basra 34b, DH ha'Hu, and by the Tosfos ha'Rosh here) explains that the Halachah of the Mishnah applies even when the claimants are not holding on to the garment. In the case of the Gemara in Bava Basra in which two people claim ownership of a boat, the reason why Beis Din does not split the boat is not that the claimants are not in physical possession of the boat. Rather, in that case one of the claimants clearly is lying intentionally, and therefore Beis Din does not want him to give him half of the boat and thereby allow him to benefit from lying. In contrast, in the case of the Mishnah here, it is possible that both claimants think that they are telling the truth and have no intention to lie; each one thinks that he picked up the object first (or that the seller intended to sell the object to him). Therefore, it is appropriate to split the garment, since splitting is the best compromise when there are conflicting claims.
</p><p>
In fact, Rashi also may understand that it is not necessary for both claimants to be holding on to the garment. In his comments to the beginning of the Mishnah (DH Shenayim), although Rashi begins by saying that the Mishnah applies specifically when they are holding on to the garment, Rashi concludes by saying that since they are both holding it, neither one has a greater claim to the object than the other. Had only one been holding it, the garment would have been given to him. The end of Rashi's comment seems to be an explanation for why both claimants need to be holding it, as opposed to only <i>one</i> of them holding it, in order for the Halachah of 'Yachloku' to apply, and not why both must be holding it as opposed to <i>neither</i> of them holding it. (<b>NACHALAS DAVID</b>)
</p><p>
This interpretation of Rashi is consistent with the words of Rashi later (DH b'Mekach u'Memkar), where Rashi explains, like the Riva, that when it is known that one of the two claimants is lying intentionally, Beis Din does not divide the disputed object between them, but rather Beis Din rules 'Yehei Munach.' Accordingly, the Gemara in Bava Basra is no proof that Beis Din does not divide the garment when the claimants are not holding on to it, since the reason the boat is not divided in that case is that one of the claimants is lying intentionally, as the Riva writes. (<b>PNEI YEHOSHUA</b>)
</p><p>
Therefore, it appears that when Rashi states (at the beginning of his first comment on the Mishnah) that the Mishnah applies specifically to when both are holding the garment ('Davka Ochazin'), he means something else. The Gemara later (7a) explains that the Halachah of the Mishnah applies only when both parties are holding on to the <i>fringes</i> of the garment, but not to the garment itself. If either one of them is holding on to the garment itself, the portion of the garment which he is holding is given to him right away, without the need for a Shevu'ah. Perhaps Rashi means to say that the Mishnah alludes to this condition by using the word 'Ochazin,' which means that they are grasping the garment by holding on to the fringes at the edge, rather than using the word 'Adukin' (as the Beraisa and Gemara (7a) use), which means that they are holding on to the garment itself, and rather than omitting mention of who is holding the garment altogether. (See <b>CHESHEK SHLOMO</b>. See also <b>MAHARAM SHIF</b> to Rashi here.)
</p><p>
Rashi means to say that the Mishnah is discussing the specific case of two people who are holding on to the fringes <i>as opposed to the garment itself</i>, because it is in this way that they split the entire garment. Had one of them been holding the garment itself, the part in his hands would have been declared to belong to him because of the principle of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah,' and they would have split only the remaining part of the garment.
</p><p>
This interpretation is supported by the words of Rashi on the Rif. Rashi there writes not that 'they are both Muchzakim and one does not have more than the other,' but that 'they are both Muchzakim and one does not have <i>in his hand</i> more than the other.' This implies that Rashi's point is that neither claimant is holding the actual garment in his hand, but rather both are holding only the fringes. (See also the wording of the <b>NIMUKEI YOSEF</b>.) This is also how the <b>RADVAZ</b> and <b>RASHBATZ</b> (cited by the Shitah Mekubetzes) explain these words in Rashi (although they do not attribute this meaning to Rashi's opening words).
</p><p>
According to the Riva and Rashi, why does the Mishnah mention that both claimants are holding on to the garment, if the Halachah would apply even when they are not holding on to it? Perhaps the Mishnah means to teach that <i>even</i> when they are holding on to the garment, Beis Din still splits the garment between them, with a Shevu'ah, and does not rule 'Yehei Munach' (or split the garment between them without a Shevu'ah), which is a possibility the Gemara considers (2b; see Rashi there, DH Alav ha'Re'ayah).
</p><p>


<font><b>2) WHEN THE TWO CLAIMANTS CLAIM TO HAVE WOVEN THE GARMENT</b></font><b>
<br>QUESTION:</b> Rav Papa explains that the Mishnah discusses two different cases: in one case, two people claim to have found a garment, and in the second case, two people claim to have bought a garment. <b>RASHI</b> (DH b'Mekach u'Memkar) points out that the Halachah of the Mishnah would apply only in these situations but not in a situation in which the two people each claim that they <i>wove</i> the garment.
</p><p>
Apparently, Rashi is bothered by a question on the Gemara. Why does the Gemara say that the second case involves two people who each claim to have bought the garment? Perhaps each claims to have <i>made</i> the garment! Rashi answers that if each claims to have woven the garment, the Halachah of the Mishnah would not apply.
</p><p>
Why does Rashi not suggest a simpler answer? The Gemara is looking for two cases, each of which teaches a Chidush which cannot be learned from the other case. The Gemara must say that the second case is where each claims to have bought the garment. Had the Mishnah taught only that case, one would not have known that both claimants must swear when they each claim to have <i>found</i> the garment, since one would have thought that only when each claims to have <i>bought</i> the garment does Beis Din administer a Shevu'ah, since each one paid money and would find grounds to be 'Moreh Heter' (see Rashi and Tosfos, 2b). Therefore, the Mishnah teaches that Beis Din administers a Shevu'ah even when both claim to have <i>found</i> the garment.
</p><p>
Had the Gemara said that the second case is one in which each of the claimants claims that he wove the garment and nevertheless both must swear, it would not have been necessary for the Mishnah to teach that they both swear in a case in which each claims to have <i>found</i> the garment. That would be obvious; Beis Din administers a Shevu'ah even in a case in which each claims to have woven it, where there is no reason to be 'Moreh Heter.' (<b>RASHASH</b>)
<br><b>ANSWER:</b> The <b>MAHARAM SHIF</b> explains that Rashi is bothered by another question on the Gemara. Rashi does not mean to ask that the <i>Gemara</i> should have said that the Mishnah refers to a case in which each claimant says that he wove the garment. Rather, Rashi means that the <i>Mishnah</i> should have taught a single case in which each party claims that he wove the garment, and then the Mishnah would not have needed to teach a second case; it is already clear that each claimant must swear even when he cannot be 'Moreh Heter.' In fact, had the Mishnah said only the second case (of 'Kulah Sheli'), one would not have thought that it refers specifically to a case in which each claimant says that he bought it. 'Kulah Sheli' applies even to a case in which each claimant says that he wove it, and thus it is not necessary to teach a second case in which they swear when they both claim to have found it.
</p><p>
Rashi answers that when each one claims that he wove it, the garment is <i>not</i> divided among them. (See the discussion of the <b>TIFERES SHMUEL</b> on Rashi's comment.)
</p><p>
As mentioned earlier (see previous Insight), <b>TOSFOS</b> (DH v'Yachloku) maintains that the garment is divided even when it is clear that one of the claimants is lying, because there is a possibility that they both own the garment. Therefore, the question remains unanswered according to Tosfos: why does the Mishnah not mention a case in which each claimant claims that he wove the garment? Tosfos deals with this question (2b, DH Iy Tana) by offering a different explanation for the Gemara's discussion of the necessity to teach each of the two cases in the Mishnah.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN MAY WE TAKE THROUGH A MIGO?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If two are holding a garment, and each
               claims 'it is mine', each swears that he does not
               own less than half, and they divide it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven says 'it is all mine' and Shimon says 'it
               is half mine', Reuven swears that he does not own
               less than three quarters, and Shimon swears that he
               does not own less than one quarter. Each gets like
               he swore.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Bava Basra 32a:</font></b> Reuven challenged Shimon 'what are
               you doing on my field?' Shimon showed his document
               of purchase. Reuven said 'it is a forgery!' Shimon
               whispered to Rabah (who was judging the case)
               'indeed, it is a forgery, but I had a proper
               document and lost it.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rabah:</font></b> Shimon is believed. If he wanted to lie, he
               could have insisted that it is a proper document!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> We cannot rule in Shimon's favor due to
               the document, for we now know that it is a forgery!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> (In another case,) Levi asked Yehudah to pay the
               money he owes, and showed the loan document. Yehudah
               said that it is a forgery. Levi whispered to Rabah
               'indeed, it is a forgery, but I had a proper
               document and lost it.'
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rabah:</font></b> Levi is believed, for he could have insisted
               that it is a proper document!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> We cannot rule in his favor because due
               to the document, for we now know that it is a
               forgery!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Rav Idi bar Avin):</font></b> The Halachah follows Rav Yosef
               regarding money. We leave the money where it is
               (with Yehudah). The Halachah follows Rabah regarding
               land. Shimon is now on the land, so we leave him
               there.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> 134b (Rav Yosef):</font></b> Rav Yehudah taught that if one
               said 'this is my son', he is believed to exempt his
               wife from Yibum, Migo he could exempt her by
               divorcing her. Therefore, a man is believed to say
               that he divorced his wife, because he could divorce
               her.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Kesuvos 15b (Mishnah):</font></b> R. Yehoshua agrees that if
               Reuven says to Shimon 'this field was your father's;
               I bought it from him', he is believed. The one who
               forbids is believed to permit (without his
               admission, Shimon had no claim);
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Mishnah - R. Gamliel and R. Eliezer):</font></b> A Kalah was
               found to have no Besulim (tokens of virginity). She
               says that she was raped after Kidushin. He says that
               (perhaps) she had Bi'ah before the Kidushin, and
               does not have a Kesuvah of 200. She is believed;
<br>        <b>  <b><font color='darkgreen'>13. </font></b></b> R. Yehoshua says, she is not believed (even though
               she has a Migo, to say that she is a Mukas Etz (she
               lost her Besulim through an injury).
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b> He accepts the Migo about the field, for there, the
               ox is not slaughtered in front of you (Shimon had no
               claim until Reuven spoke up; Alternatively, Reuven
               did not need to say that Shimon's father once owned
               it.)
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Shevuos 42a:</font></b> Reuven claimed a Maneh from Shimon, and
               showed the loan document. Shimon claimed that he
               paid him. Reuven said 'that was Sitrai (you paid a
               different debt).'
<br>        <b>  <b><font color='darkgreen'>16. </font></b></b> The Halachah is, if he paid without witnesses, Migo
               that Reuven would be believed to say that he was not
               paid, he is believed to say that he collected a
               different debt.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif (Bava Metzi'a 1a) brings our Mishnah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Bava Basra 3:13):</font></b> Rivam says that one cannot
               take with a Migo. This is true, but the Gemara
               connotes that this was not Rav Yosef's reason.
               Rather, Rav Yosef holds that if one must lie first,
               this is not a Migo. We can resolve the Rivam with
               the text of the Gemara. Rav Yosef asked 'do you
               consider Shimon to be Muchzak due to the Migo? You
               cannot rely on the document, for it is worthless. We
               do not use a Migo to take!' The Halachah follows
               Rabah regarding land. Once he said that it is a good
               document, he was Muchzak in the land. After he
               admitted, the Migo keeps the land in his Chazakah.
               Regarding money, even after his initial claim he was
               not Muchzak in it, for he still needed to collect
               it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 9:8):</font></b> If Reuven says 'it is
               all mine' and Shimon says 'it is half mine', Reuven
               swears that he does not own less than three
               quarters, and Shimon swears that he does not own
               less than one quarter. Each gets like he swore.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Tosfos (Bava Basra 32b DH v'Hilchesa):</font></b> The Rashbam
               says that we are in doubt whom the Halachah follows
               (so we leave the land where it is). He must
               distinguish between a Safek due to contradictory
               testimony, and a Safek whom the Halachah follows.
               When witnesses argue about whether or not the seller
               was sane at the time, the testimonies cancel each
               other and we leave the property with the original
               owner. Here, it is unreasonable to say that since we
               are unsure, the original owner keeps it and the
               Machazik (who entered the land) must leave. This is
               difficult. Also, 'the Halachah is' connotes an
               absolute ruling, not merely how we conduct due to
               Safek. Even if one ruled like Rav Yosef (regarding
               land), we overturn the ruling. The Ri says that we
               follow Rabah regarding land because a Migo helps to
               keep land in the possession of its current owner.
               Normally, we do not take through a Migo.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Ramban (Bava Basra 32b DH Amai):</font></b> Why isn't one
               believed to claim verbally, since he could (forge a
               document and) claim with a document? We say a Migo
               even if one must do an act first, e.g. divorce
               (134b)! Some say that one may not take through a
               Migo, and here Reuven had a Chazakah from his
               fathers. Rabah holds that this is not called taking
               through a Migo, for Shimon was in the land.
               Alternatively, Shimon was already there for three
               years, but if his document was invalidated, his
               Chazakah would be invalid. This is wrong. If so,
               surely this is a Chazakah to keep what he has, and
               he is believed. Rather, Shimon was there for less
               than three years. Those who say that one may not
               take through a Migo y learn from two holding a
               Talis. If Reuven claims all of it, and Shimon claims
               half, he gets only one quarter. He is not believed
               to get half, Migo that he could have claimed all of
               it. How will Rabah explain this? I say that it is no
               proof, for he is believed to receive only half of
               what he claims. However, we believe a woman to
               collect a Kesuvah of 200, Migo she could say that
               she is Mukas Etz.
<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 82:12):</font></b> If the borrower says that
               they stipulated that he will be exempt if he
               fulfills a certain Tanai, and the lender agrees but
               says that he did not fulfill it, the lender must
               bring a proof. If he cannot, the borrower swears
               Heses and is exempt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (44):</font></b> The Rivash (336) says that even the
                    opinion that does not allow taking through a
                    Migo, says Migo against land. We do not say
                    that land is in the Chazakah of its owner.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (45):</font></b> This is from Sefer ha'Terumos. He
                    applies Migo (to take) only when the claimant
                    has a good document. The lender admits that
                    there was a Tanai, and if the Tanai was
                    fulfilled, the document is invalid, so it is
                    not a proper document. This is like one who
                    admitted that his document was forged. One with
                    a proper document can take through a Migo, e.g.
                    Sitrai. Sefer ha'Terumos and the Shulchan Aruch
                    say that one cannot take through a Migo because
                    he considers a proper document as if it was
                    already cld, so this is not called 'to take.'
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Bach (19 DH v'Kashya):</font></b> R. Gamliel believes a
                    woman to say that she was raped and her Kesuvah
                    is 200, Migo she could say that she is a Mukas
                    Etz! Perhaps that is because she is Vadai, and
                    her husband is not. Why didn't the Gemara say
                    that R. Yehoshua admits about the field,
                    because that Migo is only to keep? Perhaps it
                    could have answered this also.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (Dinei Migo, Sof Siman 82, 1):</font></b> Even R.
                    Yehoshua would allow taking through a Migo when
                    she is certain and he is Safek, if not that the
                    ox is slaughtered in front of you.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> SMA (46):</font></b> The Rivash (336) says that all the
                    Acharonim say that we say Migo to take. Why did
                    the Shulchan Aruch (some texts - Ir Shushan)
                    omit this?
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Rebuttal (Shach 28):</font></b> Also the Tur says so, but
                    I disagree. The lender says that the document
                    is Kosher! This is like Sitrai. Even the
                    opinion that does not allow taking through a
                    Migo, agrees that one may take through Sitrai.
                    Amanah (the lender received the document before
                    lending) is invalid (CM 83:4) only if he did
                    not lend. If he says that he lent, he collects.
                    Amanah is the ultimate Tanai! It is worse than
                    a Tanai, for we believe witnesses who say that
                    the document had a Tanai, but not if they say
                    that it was Amanah. The Ramban and Rashba say
                    that one is believed through a Migo even if he
                    admits that his document is Pasul.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shach (Dinei Migo, Sof Siman 82, 15):</font></b> The Mordechai
               learns from Kesuvos that we may take through a Migo
               when there is a Vadai claim (against a Safek claim).
               Why is this a proof? Perhaps there we may take
               because there is a Kesuvah document! Surely he
               agrees that one with a document may take through a
               Migo, like Rishonim proved from Sitrai. Even if she
               has no Kesuvah document, an act of Beis Din is as if
               one has a document. It seems that a lender may take
               through a Migo when he has a document and he knows
               that the borrower has his money. She never lent to
               her husband. Therefore, if he were Vadai, she would
               not collect through a Migo. Even if he wrote a
               Kesuvah, he could say that he mistakenly thought
               that she was a Besulah. The Migo would not help her,
               since he owed her only due to the Kesuvah.
               Therefore, this is a proper source that a Vadai may
               take from a Safek through a Migo.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Gra (38):</font></b> She does not take through a Migo due to
               the document. Since he claims that she was not a
               virgin, it is as if there is no Kesuvah, like we say
               regarding a Tanai in a document.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> The lender is not believed with a Migo (that
               he could have denied that there was a Tanai), for we
               do not take money with a Migo. Some disagree and say
               that we take through a Migo.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>MAY ONE WITH A DOCUMENT COLLECT THROUGH A MIGO? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had it taught only about a Metzi'ah, one might have
               thought that only there Chachamim imposed an oath on
               them, because one justifies (to himself) grabbing a
               Metzi'ah and claiming it (in order to receive half),
               since the other person did not toil for it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had it taught only about a purchase, one might have
               thought that only there Chachamim imposed an oath on
               them, because one justifies claiming what was sold
               to another person;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He reasons 'we both paid for it. I need it, so
                    I will take it. He can get his money back and
                    buy another.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why must they swear about a purchase? Surely,
          it was sold to the one who paid!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the seller received money from both
          of them. He took from one willingly, and the other forced
          the money into his hand. We do not know from whom he
          accepted willingly.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>LIKE WHOM IS THE MISHNAH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	(If Reuven told Shimon to pay Reuven's workers, Shimon
          says that he paid, and the workers deny this, Reuven must
          pay Shimon and the workers - Shevu'os 48a.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Our Mishnah is not like Ben Nanas, for (in
          the above case) he says that we do not tell both parties
          (Shimon and the workers) to swear, for surely one of the
          oaths would be false. (In our Mishnah, both swear even
          though one of them is a false oath!)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> Our Mishnah can be like Ben Nanas. He said
          only there that both do not swear, for both oaths cannot
          be true;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, perhaps both oaths are true! If they picked it
               up at the same time, each acquired half!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Our Mishnah is not like Sumchus, for he holds
          that when in doubt about money, we divide it without an
          oath.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> It is not like Chachamim, either! They say
               that one cannot take money from another without
               proof!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It can be like Chachamim. They require a
               proof only to take from one who holds it (or has a
               Chazakah on it) by himself;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Here, both are holding it, so they swear and
                    divide it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Sumchus holds that even when one person holds it,
               they divide it without swearing. All the more so
               when both are holding it, they divide it without
               swearing!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> Our Mishnah can even be like Sumchus. He said
          that they divide it without swearing only when both
          parties are unsure. Here both parties make definite
          claims, so they swear and divide it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Rabah holds that Sumchus says that they divide
          without swearing even when both make definite claims. Can
          he establish the Mishnah like Sumchus?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Yes. Sumchus said that they divide it without
          swearing only when there is Drara of money. Here, there
          is no Drara. (Rashi - Drara is a loss of money. Not
          acquiring a Metzi'ah is not considered a loss. Tosfos -
          Drara is when even without their claims, Beis Din had a
          doubt. Here, the doubt is due to their claims. Ramban -
          it is a claim based on an undisputed Chazakah.)
<br>

<p>

sjt:
</p><p>
<font><b>3) ACQUIRING MORE THAN HALF OF AN ITEM IN A JOINT ACQUISITION</b></font><b>
<br>QUESTION:</b> The Gemara explains that even according to Ben Nanas who does not allow conflicting Shevu'os to be made in court, the two Shevu'os required by the Mishnah may be made since it is possible that both Shevu'os are true. Perhaps the two claimants picked up the garment together and both acquired it (and each owns half of the garment). It is clear from the Gemara that it is not enough for there to be a possibility that each one owns half of the garment. There also must be a possibility that each one's alleged ownership of half of the garment came about in a manner which matches his claim.
</p><p>
How does the Gemara understand the second case of the Mishnah, in which one person claims that the <i>entire</i> garment belongs to him, and the other claims that <i>half</i> of the garment belongs to him? In that case, the first person must swear that not less than three-fourths of the garment belongs to him, and the second person must swear that not less than one-fourth belongs to him. Their Shevu'os cannot both be true; even if they picked it up together, one claimant would not have more ownership than the other (because picking it up together gives each person ownership over half). (<b>TOSFOS HA'ROSH</b>)
</p><p>
<b>ANSWER:</b> The <b>TOSFOS HA'ROSH</b> answers that perhaps one of the two claimants picked up three-fourths of the garment in his hand and not just the fringes, while the other picked up only the fringes, and in that manner they lifted it up together. Each person immediately acquires for himself the part that is in his hands, and only the part in between their hands do they own together. (See also Tosfos to 8a, DH Ela.)
</p><p>
The Tosfos ha'Rosh points out that according to the Gemara later (8a), this part of the Mishnah might not be discussing a Metzi'ah (an object that was found) altogether. Rather, it might be discussing a case of two people who attempted to purchase a garment. In such a case, it is possible that the seller had intention to sell three-fourths to one buyer and one-fourth to the other buyer.
</p><p>


<font><b>4) THE TANA OF THE MISHNAH</b></font><b>
<br>QUESTION:</b> The Gemara suggests that the Mishnah does not conform with the opinion of Sumchus, who says that when the ownership of an object is in doubt, Beis Din divides it between the claimants and does not require the claimants to swear. The Mishnah, however, states that Beis Din divides the object between the two claimants only after the claimants swear. The Gemara immediately responds that the Mishnah also does not conform with the opinion of the Rabanan who argue with Sumchus, because they maintain that when an object's ownership is in dispute, Beis Din rules 'ha'Motzi me'Chaveiro Alav ha'Re'ayah,' which is not the ruling of the Mishnah.
</p><p>
The Gemara answers that the Mishnah's ruling <i>is</i> consistent with the opinion of the Rabanan, because the Rabanan apply 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' only when the object is not in the physical possession of both claimants. In the case of the Mishnah, both claimants are holding on to the object, and therefore they split it only after they both swear.
</p><p>
In what way does the ruling of the Mishnah contradict the principle of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' according to the Gemara's initial assumption (in its question)? Moreover, according to the Gemara's answer, how exactly is the Mishnah's ruling consistent with the principle of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah'?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> (DH Alav ha'Re'ayah) explains that the Gemara's question is that the Rabanan normally require a claimant to bring witnesses as proof in order to receive anything in court, but in the case of the Mishnah each claimant receives half without bringing any witnesses. Rashi apparently understands that the question of the Gemara is that neither party should receive any of the garment until he brings proof that it belongs to him.
</p><p>
Rashi seems to understand that since both parties are holding on to the garment, both are considered to be 'Muchzak.' Therefore, neither claimant can take away the garment from the other claimant who is also 'Muchzak' in the garment.
</p><p>
(The words 'with a Shevu'ah,' which appear in our text of Rashi, imply that the question of the Gemara is: why is it necessary to make a Shevu'ah in the case of the Mishnah? The object should be split without a Shevu'ah (as the other Rishonim understand the Gemara, as will be explained below). However, this phrase appears in none of the manuscripts or early printings of Rashi. It is clear from the Rishonim (as cited by the Shitah Mekubetzes) that they did not have this phrase in their text of Rashi. It is also evident from Rashi's words at the beginning of this comment and in an earlier comment (DH Tarvaihu) that Rashi understands that the Gemara initially assumes that the rule of 'ha'Motzi me'Chaveiro' should apply to prevent either party from receiving any of the garment.)
</p><p>
According to Rashi, it is clear that the Chazakah of each claimant extends to the entire garment and not just to the half he receives, and each person's Chazakah can prevent the other person from receiving any of the garment.
</p><p>
The Gemara answers that the case must be viewed differently. The case is viewed as though each claimant <i>does</i> have a Chazakah on the entire garment, and therefore he should be able to receive all of the garment for himself without a Shevu'ah. However, the Chazakah of his opponent reduces the power of his Chazakah because it is 'Mechusar Guvaina' -- something prevents it from being used by this claimant. In order to counter that weakness in each claimant's Chazakah, the Mishnah requires that they both make a Shevu'ah.
</p><p>
(b) The <b>RASHBA</b> and <b>TOSFOS HA'ROSH</b> (see also <b>TORAS CHAIM</b>) explain that the Gemara's question is: why is it necessary to make a Shevu'ah in the case of the Mishnah, according to the Rabanan? Since the Rabanan rule 'ha'Motzi me'Chaveiro Alav ha'Re'ayah,' the garment should be split without a Shevu'ah since each of the two claimants is 'Muchzak' in half of the garment. (The Gemara later on 5b indeed asks such a question.)
</p><p>
The Rashba explains that each of the two claimants has a Chazakah on only half of the garment and, therefore, Beis Din should give half of the garment to each claimant without requiring any further proof.
</p><p>
This is consistent with the Gemara later (3a, 4a) which teaches that according to Rebbi Chiya, each claimant has a Chazakah on half of the garment which serves in place of testimony (or admission from the opposing claimant) that half of the garment belongs to him. (See Rashi to 3a, DH Anan Sehadei.) This is also the opinion of Tosfos (2a, DH v'Yachloku).
</p><p>
Rashi apparently learns that the Gemara does not accept the approach of Rebbi Chiya, but rather it maintains that each claimant has a Chazakah on the <i>entire</i> garment. The Gemara itself (4a) retracts its explanation of the Mishnah according to Rebbi Chiya and maintains that each claimant are <i>not</i> viewed as though he has testimony supporting his claim (or an admission from the opposing party) that half of the garment is his. According to Rashi, at that point the Gemara maintains that each of the two claimants does not have even a separate Chazakah on each half of the garment, but rather together they have a mutual Chazakah on the entire garment.
</p><p>
According to the Rashba, the Gemara answers that although each one has a Chazakah on half of the garment, each one's Chazakah is weakened by the fact that the opposing claimant is holding on to the other part of the garment. (The words of the <b>RITZBASH</b> in the Shitah Mekubetzes imply that the answer of the Gemara, according to the Rashba, is based on the same logic of 'Mechusar Guvaina' that Rashi mentions.) This also seems to be the intention of the <b>RIVAM</b> (cited by Tosfos to 2a, DH v'Zeh) who writes that splitting the garment is considered an act of taking away an object from one who is 'Muchzak.' (See, however, <b>KOVETZ SHI'URIM</b> 2:9:14.)
</p><p>
The Rishonim (cited by the Shitah Mekubetzes) cite proof to the approach of the Rashba from the specific wording of the Gemara's answer. According to Rashi's explanation that the Gemara asks why Beis Din splits the garment, it should answer that Beis Din splits it because both claimants have a Chazakah. The Gemara should not need to mention the Shevu'ah of the Mishnah, since its question did not involve the Shevu'ah. However, the Gemara says in its answer that since they are both holding it, they split it 'with a Shevu'ah.' This implies that the Gemara's question was why is there a Shevu'ah in the case of the Mishnah, as the Rashba explains.
</p><p>
It seems that Rashi learns the Gemara's answer the same way as the Rashba, as explained above. The Gemara is explaining not only why the garment is divided, but it is explaining also why the garment is divided with a Shevu'ah. Why, then, does Rashi explain that the question of the Gemara did not involve the Shevu'ah of the Mishnah?
</p><p>
Perhaps Rashi infers from the Gemara's question that the Gemara assumed that the ruling of the Mishnah is more problematic according to the Rabanan than according to Sumchus, since the Gemara did not phrase its question by saying, 'According to the Rabanan <i>also</i> the Mishnah is problematic.' According to the Rashba's understanding, the question on Sumchus and the question on the Rabanan are the same: a Shevu'ah should not be necessary. Rashi therefore explains that the Gemara initially thought that according to the Rabanan, the garment should not even be divided.
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LIKE WHOM IS THE MISHNAH? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Objection:</font></b> This is illogical! If they divide without
          swearing when there is Drara, and it surely belongs to
          one, all the more so when there is no Drara, and perhaps
          it belongs to both! (Rashi - here, perhaps no one loses
          when we divide it. Tosfos - here, the doubt is due to
          their claims. Had they kept silent, one could have said
          that each owns half. All the more so they should divide
          without swearing! (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Sumchus can agree here. The oath of our
          Mishnah is only mid'Rabanan;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> The oath of our Mishnah is an
               enactment mid'Rabanan, to deter people from grabbing
               others' property and claiming it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Our Mishnah is not like R. Yosi:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Yosi):</font></b> (Reuven and Shimon deposited
               money by Levi, who forgot who gave which amount;
               each claims the larger amount.) We must force the
               liar to lose (so he will be induced to admit).
               Therefore, neither side gets any of the money until
               Eliyahu comes and resolves the matter (or one side
               admits).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> The Mishnah is also unlike Chachamim!
               (They say that each side receives the smaller
               amount, but) they agree that neither side gets any
               of the contested money (the rest) until Eliyahu
               comes;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Here, the entire garment is contested!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The Mishnah can be as Chachamim. There, all
               the contested money belongs to one of them, so we
               leave it (until Eliyahu comes);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Here, perhaps each owns half, they swear and
                    divide it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> However, R. Yosi says that we leave even the smaller
               amount, which surely each side is entitled to. Here,
               perhaps one side is not entitled to anything, all
               the more so he would say that we leave it!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> Our Mishnah can be like R. Yosi.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Explanation #1:</font></b> R. Yosi's law is when one party is surely
          lying;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, perhaps neither intends to lie. Perhaps they
               picked it up at the same time (and each thinks that
               he picked it up first)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Explanation #2:</font></b> R. Yosi's law is when the liar loses by
          waiting until Eliyahu. This entices him to admit;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, (even if there is a definite liar,) the liar
               doesn't lose anything, so he will never admit. There
               is no reason to leave the garment until Eliyahu!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> This applies to a Metzi'ah. When both paid for
          the same item, R. Yosi should say that we leave it (and
          the money) until Eliyahu!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Conclusion:</font></b> We must rely on Explanation #1.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> When Shimon claims that he paid workers (like
          he was asked), and the workers say they were not paid,
          both R. Yosi and Chachamim should say that we leave the
          money until Eliyahu, for one side is surely lying!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> There, Shimon can tell Reuven 'I paid them like
          you asked me, so you must repay me. I do not accept the
          workers' oath!'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The workers can tell Reuven 'we worked for you, so
               you must pay us. We do not accept Shimon's oath'!
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Therefore, both sides collect from Reuven.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CAN WITNESSES OBLIGATE AN OATH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Chiya - Beraisa):</font></b> If Reuven told Shimon 'you owe me
          100', Shimon denied the entire claim, and witnesses
          testify that he owes 50, he pays 50 and swears that he
          owes no more.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> His own admission should not be stronger than
               witnesses (one who partially admits to a claim must
               swear about the rest), for there is a Kal va'Chomer
               (this will be explained)!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Support (Mishnah):</font></b> Reuven and Shimon are holding a
          garment; Reuven says 'I found it'...
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since each is holding half the garment, we are
               (like) witnesses that each owns what he holds
               (contradicting the other's claim that he owns it
               all).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What does it mean 'his own admission should not
          be stronger than witnesses, for there is a Kal
          va'Chomer'?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Do not say that the Torah imposes an oath only
          when he admits, due to Rabah's reason (but not when
          witnesses say that he owes part);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah):</font></b> The Torah obligates a borrower to swear
               (when he partially admits to the claim) because
               there is a Chazakah (of human nature) that a
               borrower is not brazen enough to (fully) deny the
               lender's claim;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If not for this, he would deny the entire
                    claim.
<br>
<br>

sjt:
<font><b>1) THE CASE OF 'MANEH SHELISHI'</b></font><b>
<br>QUESTION:</b> The Gemara cites a Mishnah in which Rebbi Yosi and the Rabanan disagree about the law in the case of 'Maneh Shelishi': A Shomer was given two separate bundles of money to watch by two people. One person gave him 100 Zuz (one Maneh), and the other gave him 200 Zuz (two Manehs). Later, each depositor claimed that he was the one who gave 200 Zuz to the Shomer. Rebbi Yosi rules that all of the money is placed in escrow -- 'Yehei Munach' -- until one of the depositors brings proof to his claim. The Rabanan rule that 100 Zuz is given back to each of them, and only the third Maneh ('Maneh Shelishi') is left in escrow.
</p><p>
The Gemara questions why the Rabanan do not rule that the Maneh Shelishi is also divided between the claimants. The Gemara answers that in the case of the Mishnah, it is possible that the garment belongs to both claimants, and therefore it is divided in court. In contrast, in the case of Maneh Shelishi, the third Maneh certainly belongs to only one of the claimants.
</p><p>
Why does the Gemara assume that the Maneh Shelishi cannot belong to both claimants? Perhaps the one who gave 200 Zuz gave half of a Maneh, or 50 Zuz, to the other person, who gave only 100 Zuz to the Shomer. Even though neither claimant makes such a claim, the possibility certainly exists that such a thing occurred. In fact, it is for this reason, as <b>TOSFOS</b> (2a, DH v'Yachloku) explains, that when a lender and a borrower come to Beis Din holding on to a Shtar together, Beis Din splits the debt written in the Shtar and requires the borrower to pay only half (and Beis Din does not rule 'Yehei Munach'), since it is possible that the borrower indeed paid half of the money, even though neither the lender nor the borrower makes such a claim (but rather each one claims that the money is completely his).
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (2a, DH v'Yachloku) answers that it is not common for a person to give to someone else part of his money or item that is in the hands of a Shomer.
</p><p>
(b) The <b>ROSH</b> (1:1) writes that the reason Beis Din does not split the Maneh Shelishi according to the Rabanan is that the Shomer knew that the Maneh belonged to only one of them before the claimants brought the matter to court. According to the Rosh, the Gemara does not mean that it is impossible for both claimants to own the third Maneh, but rather there exists prior knowledge attesting to the fact that only one of them owns it. In the case of the Shtar held by both the lender and the borrower, there is no reason to assume that the Shtar definitely was paid or was not paid before the claimants brought the matter to court. It was possible that the Shtar was paid in half. This also seems to be the way the <b>RAMBAN</b> (2b, end of DH u'Lefikach) explains the Gemara. (See, however, the <b>TUMIM</b> 138:2, who understands the Rosh differently.)
</p><p>


<font><b>2) THE POSSIBILITY THAT BOTH CLAIMANTS ARE TELLING THE TRUTH</b></font><b>
<br>QUESTION:</b> After the Gemara explains how the Rabanan who disagree with Rebbi Yosi could agree with the ruling of the Mishnah, the Gemara asks whether or not Rebbi Yosi can agree with the ruling of the Mishnah. Rebbi Yosi rules, in the case of Maneh Shelishi, that all three Manos are taken away and put in escrow, since one of the two claimants definitely is lying. In the case of the Mishnah, Rebbi Yosi should rule that the garment is not divided between the two claimants.
</p><p>
The Gemara answers that Rebbi Yosi could agree with the Mishnah since it is possible that neither claimant is intentionally lying, but rather they both picked up the garment together, simultaneously.
</p><p>
At the time the Gemara asked its question according to Rebbi Yosi, it knew already that it was possible that the claimants picked up and acquired the garment together. It was for that reason that the Gemara said that the Rabanan agree with the ruling of the Mishnah that the garment should be split. Why, then, does the Gemara assume that it is less likely for Rebbi Yosi to agree with the ruling of the Mishnah than for the Rabanan to agree with it? (<b>RASHBA</b>)
</p><p>
<b>ANSWER:</b> The <b>RASHBA</b> answers that the difference between Rebbi Yosi and the Rabanan is as follows. The Rabanan are concerned only that the true owner not incur a definite loss. Rebbi Yosi, on the other hand, is interested in seeing that the liar ('Ramai') incurs a definite loss.
</p><p>
Therefore, according to the Rabanan, even though there might be a liar involved in the case of the Mishnah, nevertheless it is possible that there is no liar and the garment belongs to both of them, and neither one is losing. However, according to Rebbi Yosi -- who is interested in having the liar incur a loss -- even though it is possible that there is no liar, it is also possible that there is a liar and by splitting the garment Beis Din helps him gain. The Gemara answers that even Rebbi Yosi may agree with the ruling of the Mishnah since there is no certainty that there is a liar, but only a suspicion to that effect. Rebbi Yosi requires only that the object in doubt be taken away when it is known for certain that there is a liar among the claimants, but not when there is a doubt whether there is a liar.
</p><p>
It is evident from this explanation that the Rabanan are not concerned about whether or not there is a liar, but whether or not the true owner is incurring a loss. Even if one of the claimants certainly is a liar, Beis Din would divide the item if it is possible that the true owner is not sustaining a loss (for example, when each one claims that he <i>made</i> the entire garment Beis Din would split it, because perhaps they really own the garment together and not like either of them claims). This is the ruling of most Rishonim. However, <b>RASHI</b> (2a, DH Mekach u'Memkar) rules that when it is known that there is a liar, Beis Din does not split the garment. Rashi's words seem to be in accordance with the opinion of Rebbi Yosi and not that of the Rabanan!
</p><p>
The <b>NACHALAS DAVID</b> answers that Rashi maintains that according to the Gemara's conclusion, the Gemara no longer differentiates between whether or not it is possible that both claimants own the garment, according to the Rabanan. Rather, the Rabanan also are interested in ensuring that the liar does not gain (and not that the true owner does not lose), and the reason they divide the garment in the case of the Mishnah is that there is no certainty that there is a liar.
</p><p>
Support for this approach may be found in the words of the Gemara later on this Daf. The Gemara asks that according to both Rebbi Yosi and the Rabanan, Beis Din should rule 'Yehei Munach' in the case of 'Chenvani Al Pinkaso,' because 'there certainly is a liar.' This implies that both Rebbi Yosi and the Rabanan determine whether or not to rule 'Yehei Munach' based on whether or not there certainly is a liar.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>TWO WHO DEPOSITED TOGETHER</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 - R. Yosi):</font></b> (If Reuven accepted deposits
               from two people, and forgot who gave which amount;
               and each claims the larger amount.) We must force
               the liar to lose (to induce him to admit).
               Therefore, neither side gets any of the money until
               Eliyahu comes (and resolves it, or one side admits).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 37a (Mishnah):</font></b> If Reuven told two people 'I stole
               from one of you, and I don't know from which', or
               'one of your fathers deposited money with me, but I
               don't know which', he pays both, because he admitted
               by himself.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If one person deposited 100 Zuz with Reuven, and
               another person deposited 200, and each claims that
               he gave 200, and Reuven does not know who gave
               which, he gives each 100. We leave the rest until
               Eliyahu comes;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yosi says, if so, the swindler does not lose!
               Rather, all the money is left until Eliyahu comes.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Inference:</font></b> The Reisha teaches that when in doubt, we
               make someone pay. We do not say 'to take money from
               another, one must bring proof';
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Contradiction:</font></b> In the Seifa, Reuven does not pay due
               to his doubt!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> If one stole, Chachamim fined him to pay out
               of doubt. They did not fine one who accepted
               deposits.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Contradiction:</font></b> Sometimes one who takes deposits is
               fined. When one of the fathers deposited money,
               Reuven pays both!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer (Rava):</font></b> Reuven is liable for forgetting who
               deposited when it is as if two deposited money, each
               wrapped by itself. Reuven is exempt when two people
               deposited in front of each other, for this shows
               that they trust each other. He need not ensure that
               he remembers who gave which. It is like two people
               who deposited one bundle of money wrapped together.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Contradiction:</font></b> In our Mishnah, a thief is fined. In
               another Mishnah, he leaves in front of them what he
               stole, and walks away!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer:</font></b> In that Mishnah, they claim from him. Letter
               of the law, he leaves in front of them what he stole
               and walks away. In our Mishnah, Reuven wants to
               fulfill his obligation b'Yedei Shamayim, so he pays
               each.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> 37b Question (Ravina):</font></b> Did Rava really say that when
               two depositors gave money in two bags, the Shomer
               must remember who gave which?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Contradiction (Rava - some say, Rav Papa]):</font></b> All
                    agree that two people who deposited (different
                    numbers of) animals with a shepherd, the
                    shepherd leaves the animals in front of them.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Answer (Rav Ashi):</font></b> That is when they deposited the
               animals in his herd without his knowledge.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> The Shomer must pay in the Reisha, for he was
               negligent for not writing how much each gave. In the
               Seifa, they deposited together in one bundle.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos She'elah 5:4):</font></b> If two deposited
               together 300 in one bundle, and each claims that he
               gave 200, Reuven gives to each 100. We leave 100
               with Reuven forever, or until one of them admits.
               Reuven can say 'I saw that you are not suspicious of
               each other and deposited in one bundle, so I did not
               toil to know and always remember who gave 100 and
               who gave 200.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Lechem Mishneh and Gra CM 300:3):</font></b> Why
                    do the Magid Mishneh (Hilchos Mechirah 20:2)
                    and Shulchan Aruch (222:2, brought below) say 
                    (regarding a purchase) that we leave the rest
                    in Beis Din?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (3:8):</font></b> The Gemara said that another Mishnah
               teaches that letter of the law, a thief may leave in
               front of them what he stole and walk away. In our
               Mishnah, he wants to be Yotzei b'Yedei Shamayim.
               This also answers the contradiction about deposits!
               The Gemara did not say 'Ela' (a retraction). This
               shows that we still must distinguish between
               depositing together and separately. Also, later the
               Gemara asks from a teaching of Rava in which
               depositors gave separately, and the Shomer need not
               remember who gave which. This shows that we still
               hold that when they deposited together, the Shomer
               is exempt even b'Yedei Shamayim, and if they
               deposited separately, the Shomer is liable if they
               claim from him. (If they do not claim, he is
               exempt.) When Ploni claims from David, and David is
               unsure, he must pay to be Yotzei Yedei Shamayim.
               Here is different, for each is sure.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Note:</font></b> Piplulei Charifta (400) explains that the
                    Shomer is sure that he received a total of 300.
                    The Bach (6) says that the text should say
                    'each is <i>unsure</i>'.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (ibid):</font></b> When they deposited separately, Reuven
               is liable when both claim Vadai from him. They swear
               and collect like they claim. If they do not claim,
               he is liable b'Yedei Shamayim. If they deposited in
               front of each other, Reuven is exempt (b'Yedei Adam)
               when both claim from him. If they do not claim, he
               is exempt even b'Yedei Shamayim.
<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 (300:1):</font></b> If two deposited together
               300 in one bundle, and each claims that he gave 200,
               Reuven gives to each 100.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (5):</font></b> The text of the Rif and Rambam says
                    that they gave in one bundle. They hold that if
                    they did not give in one bundle, even if they
                    deposited in front of the other, it is as if
                    they deposited at different times, and he
                    should have been careful. The text of Rashi,
                    Tosfos, the Rosh and Tur is 'if they deposited
                    in front of each other, he owes only 100 to
                    each. He can say 'I was not careful, for I saw
                    that you do not suspect each other.'
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (7,8):</font></b> This is even if they claimed, and
                    all the more so if they did not claim.
                    Alternatively, if they do not claim at all, the
                    last 100 is split among them. We do not divide
                    the money when there is a Vadai liar.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> We leave 100 with Reuven
               (Rema - some say that it is left in Beis Din)
               forever, or until one of them admits to the other.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Darchei Moshe (2):</font></b> The Mordechai (274) says
                    that we do not leave the rest with Reuven, lest
                    Reuven scheme to say that he does not remember,
                    in order that the rest will remain with him.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (10):</font></b> Many say that we leave the rest
                    with Reuven. The Mordechai cited the Rambam so
                    say that it is left with Beis Din, but the
                    Rambam does not say so! The Mordechai says that
                    Reuven will scheme to say that he does not
                    remember. The depositors caused their own loss
                    by depositing together! They are scheming, for
                    each claims 200! Since one of them schemes, we
                    are not concerned lest Reuven schemes. In any
                    case it seems that Reuven must swear Heses that
                    he is unsure. He must swear even if he wants to
                    leave the rest in Beis Din.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (8):</font></b> If they agree to split the rest, we
                    give it to them, like the Shulchan Aruch (Sa'if
                    4) says about animals.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Reuven can say 'I saw that
               you are not suspicious of each other and deposited
               in one bundle, so I did not toil to know and always
               remember who gave 100 and who gave 200. He is exempt
               even b'Yedei Shamayim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (11,12):</font></b> This is like the Nimukei Yosef,
                    Semag, Tosfos, Ramban and Rashba. The Tur and
                    Rosh disagree. The Shulchan Aruch in Siman 222
                    (brought below) is difficult.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that if they claimed from him, to be
               Yotzei Yedei Shamayim he is liable even in such a
               case.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 222:2):</font></b> If one does not know from
               which of five he bought and each claims from him, he
               hands over the money between them and leaves. Beis
               Din holds it until they admit or until Eliyahu
               comes. A Chasid pays each to be Yotzei Yedei
               Shomayim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Shach 6):</font></b> Regarding a (blameless)
                    Shomer, the Shulchan Aruch does not require
                    paying each to be Yotzei Yedei Shomayim!
                    Perhaps the Shulchan Aruch distinguishes a
                    buyer from a Shomer. However, it explains that
                    the buyer is blameless!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Ketzos ha'Choshen 5):</font></b> Often the
                    Shulchan Aruch teaches liability b'Yedei
                    Shomayim. He teaches that a Chasid must pay
                    each to be Yotzei Yedei Shomayim; others need
                    not.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rema (Sof 49:7):</font></b> If two people in a city have
               identical names, and Ploni admits that he owes to
               one of them, but neither has a document, they can
               force him to pay only through a Harsha'ah (power of
               attorney).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tumim (16):</font></b> The same applies to two who
                    deposited together, and afterwards each claims
                    that he deposited 200. The Ritva holds that the
                    Shomer holds the money until Eliyahu. According
                    to the opinion in the Rema that the money is
                    left in Beis Din, also here Ploni should give
                    it to Beis Din! Why didn't the Rema say so
                    here?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gilyon Maharsha (CM 138:1 DH Zeh Omer):</font></b> When
                    two are holding a Talis and each says 'I wove
                    it', Rashi says that since there is a Vadai
                    liar, we leave it. The Tur says that the Ramban
                    agrees. However, Shitah Mekubetzes (DH v'Zeh)
                    cites the Ramban to say Kol d'Alim Gevar
                    (whoever overpowers will take it) is Beis Din's
                    withdrawal from the case. It is just like
                    leaving it (but 'we leave it' only when a
                    Shomer already holds it).
<br>
<font color='blue'><i>See also:</i>
<br><b><b>ONE WHO DOES NOT KNOW WHO GAVE WHICH DEPOSIT </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Because borrowers are not brazen, he would like to
               admit to the full claim;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He denied part of it to stall until he has the
                    money to pay the loan.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The Torah imposed the oath on him to make him admit
               to the full claim.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> One might have thought that since this does not
               apply when witnesses testify, so he does not swear.
               A Kal va'Chomer teaches that this is not so.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE KAL VA'CHOMER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> What is the Kal va'Chomer?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1:</font></b> One's admission does not obligate him to pay
          money, yet it obligates him to swear. Witnesses can
          obligate him to pay, all the more so they obligate him to
          swear!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Admission obligates one to pay. It is like 100
          witnesses!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The 'money' referred to is a fine.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Admission does not obligate one to pay fines, yet it
               obligates him to swear. Witnesses can obligate him
               to pay fines, all the more so they obligate him to
               swear!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Admission can obligate one to bring a Korban.
          We cannot learn to witnesses, who cannot obligate him to
          bring a Korban!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Chiya holds like R. Meir who says that
          witnesses can obligate him to bring a Korban.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Meir):</font></b> If two witnesses told Reuven
               'you ate Chelev' and he said 'I did not eat', he
               brings a Korban (Chatas);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, he does not bring.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Meir:</font></b> If testimony of two witnesses can cause him
               to be killed, all the more so it can obligate him to
               bring a Korban!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Chachamim:</font></b> He could say 'I ate b'Mezid, therefore I
               do not bring a Korban.'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Admission obligates one to bring a Korban
          Asham. We cannot learn to witnesses, who do not!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The same answer we gave for a Korban (Chatas)
          applies to an Asham.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Admission obligates one (who swore falsely to
          deny a debt) to pay Chomesh (an added quarter of the
          principal). We cannot learn to witnesses, who do not!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Chiya holds like R. Meir. Just like he learns
          from a Kal va'Chomer that witnesses obligate him to bring
          a Korban, he learns that they obligate him to pay a
          Chomesh.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection:</font></b> Admission cannot be contradicted or Huzam
          (e.g. if Reuven admitted that he saw his ox damage at a
          certain time and place, and witnesses testified that he
          was not there at that time, his admission stands). We
          cannot learn to witnesses, who can be contradicted or
          Huzmu!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2 (to Question (a)):</font></b> Rather, R. Chiya learns a
          Kal va'Chomer from one witness. One witness does not
          obligate one to pay money, yet he obligates him to swear
          (if he does not agree to pay). Two witnesses can obligate
          him to pay, all the more so they obligate him to swear!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Objection:</font></b> One witness makes him swear about what the
          witness testifies about. We cannot learn that two
          witnesses make him swear about what they do not testify
          about!
<br>

<p>

sjt:
</p><p>
<font><b>3) REQUIRING A PERSON TO SWEAR WHEN HE IS SUSPECTED OF STEALING</b></font><b>
<br>QUESTION:</b> Rebbi Chiya maintains that when the lender claims that the borrower owes him 100 Zuz, and witnesses testify that the borrower owes 50 Zuz, and the borrower denies owing anything, the borrower must pay 50 and swear that he does not owe the other 50, similar to the Shevu'ah of 'Modeh b'Miktzas.'
</p><p>
Rebbi Chiya derives this Halachah through a Kal va'Chomer: if Hoda'as Piv (one's own admission) requires a person to swear, certainly witnesses require a person to swear.
</p><p>
The Gemara explains that had there been no Kal va'Chomer, one would have thought that only Hoda'as Piv requires the borrower to swear, but not the testimony of witnesses. The reason for this is that when a person is 'Modeh b'Miktzas,' it is possible that he denies owing the second half only in order to delay the repayment of the second half but not because he wants to default entirely on the loan. He intends to repay as soon as he has the money. It is for this reason that he admits to owing the first half. However, when he denies owing anything and witnesses testify that he owes half, Beis Din must assume that he has no intention to pay back the other half at all, and he is not merely trying to gain more time. For this reason, Beis Din should not force the borrower to swear, since once it is known that he is suspected of stealing someone else's money, he is also suspected of swearing falsely and his Shevu'ah will not clarify the matter (as Rashi explains in DH d'Leika).
</p><p>
Rebbi Chiya learns from a Kal va'Chomer not to follow this logic, but rather that the borrower must swear when witnesses testify that he owes half.
</p><p>
If the logic to exempt the borrower from a Shevu'ah is that since he is ready to steal he presumably is also ready to lie and swear falsely ('Migu d'Chashid a'Mamona, Chashid a'Shevu'asa'), then how can a Kal va'Chomer teach that the borrower must swear? Even if the testimony of witnesses is stronger proof than a person's own admission, the testimony of witnesses should not require the borrower to swear since he is assumed to be a thief! Only when a person's own admission makes him obligated to pay half should he be required to swear, since there is reason to assume that he is not a thief but that he merely is trying to gain more time in order to repay. (<b>RAMBAN</b> and Rishonim cited by the Shitah Mekubetzes)
</p><p>
<b>ANSWERS:</b>
<br>(a) Many Rishonim disagree with Rashi's explanation of the Sugya for this reason. <b>TOSFOS</b> (DH b'Chulei) explains that even when a person is suspected of stealing, he is <i>not</i> suspected of swearing falsely. According to Tosfos, when the Gemara concludes that Rebbi Chiya's ruling is based not on a Kal va'Chomer but on a Tzad ha'Shaveh from Hoda'as Piv and Ed Echad, the Gemara's intent is to prove from Ed Echad that even when a person is suspected of stealing, Beis Din makes him swear in order to clarify whether or not he stole, for even a thief will not swear falsely. (In the case of Ed Echad, since the defendant denies the entire loan, there is no reason to assume that he merely is trying to gain time, but rather that he has no intention of ever paying back.)
</p><p>
When the Gemara initially assumed that Rebbi Chiya derives his ruling through a Kal va'Chomer from Hoda'as Piv and not from Ed Echad, why did the Gemara not immediately question the Kal va'Chomer that when witnesses testify against the borrower, he should not swear since he is suspected of being a thief and a thief might swear falsely? At that stage, the Gemara based the Kal va'Chomer on Hoda'as Piv, in which case the borrower simply may be stalling for time and is not a thief.
</p><p>
<b>TOSFOS</b> (DH Aval) and the <b>TOSFOS HA'ROSH</b> answer that the Gemara indeed could have rejected the Kal va'Chomer for this reason, but it provided a better reason for rejecting the Kal va'Chomer.
</p><p>
Rashi, however, does not accept this approach. Rashi writes that one who is suspected of stealing <i>is</i> suspected of swearing falsely. (See Rashi here, DH v'Hai; 2b, DH Aval Mekach u'Memkar; 4a, DH Tomar; see Tosfos here, DH b'Chulei.) According to Rashi, the reason why a person swears against an Ed Echad is that before a thief is caught lying in court, there still is a possibility that he will refrain from lying because of the need to make a Shevu'ah. In the case of Rebbi Chiya, since the thief was already caught lying with regard to the first fifty, he should not be believed with regard to the second fifty. (See <b>TOSFOS</b> here, DH d'Chashid, in the name of Rebbi Yehudah ha'Chasid.)
</p><p>
(b) The <b>RAMBAN</b>, <b>RASHBA</b>, and <b>RITVA</b> also disagree with Rashi. They write that a thief is not suspected of swearing falsely. The Gemara means that without a Kal va'Chomer, Beis Din would believe the borrower when he says that he does not owe the other fifty because of a Chazakah that 'Ein Adam Me'iz Panav Bifnei Ba'al Chovo' -- a person is not so brazen to deny owing money to the person who did him the favor of lending him money. Rebbi Chiya learns from a Kal va'Chomer that if Hoda'as Piv can require the borrower to swear, then certainly witnesses can require the borrower to swear.
</p><p>
The <b>CHEMDAS SHLOMO</b> asks that this answer does not seem to address the question. How can a Kal va'Chomer from Hoda'as Piv teach that the borrower must swear? In the case of Hoda'as Piv, there is no Chazakah that the person will not be brazen; he might be denying the debt simply because he wants to gain more time to pay it all back. In contrast, when witnesses obligate a borrower to pay half, there is no basis to assume that the borrower is just stalling for time (since he did not admit that he owes half), and thus there should be a Chazakah that he is telling the truth. (This should be a Pircha on the Kal va'Chomer.)
</p><p>
From the words of the Ramban and Rishonim it seems that they answer this question as follows. In truth, even when a person is 'Modeh b'Miktzas,' he should be believed because a person would not be so brazen to deny owing the lender. The only reason why he is not believed is that since there is strong evidence (i.e. the Hoda'as Piv) which supports part of the claim of the lender, the Chazakah of the borrower is weakened and thus Beis Din looks for a way to circumvent the Chazakah. The Chazakah is bypassed by reasoning that since the borrower admitted to owing part, perhaps he merely is stall for time. Accordingly, from a Kal va'Chomer it can be derived that when two witnesses testify that a person owes half of the money, their testimony certainly should weaken the Chazakah, and Beis Din certainly should look for a way to bypass the Chazakah. In this case, Beis Din cannot bypass the Chazakah by saying that the borrower is stalling. Instead, Beis Din bypasses the Chazakah by saying that since the witnesses proved him to be a liar with regard to the first half of the money, he probably is lying with regard to the second half as well. Therefore, Beis Din makes the borrower swear.
</p><p>
(c) The <b>RITVA</b> explains how Rashi may understand the Kal va'Chomer. He suggests that the Kal va'Chomer teaches that although a person who lied in Beis Din is normally suspected that he might swear falsely, when a person denies a loan and the lender brings testimony that the person owes the money (or part of it), he is <i>not</i> suspected that he might swear falsely. The reason for this is that no one of sound mind would deny a loan when he knows that the lender has witnesses who will contradict his claim and force him to pay. Beis Din therefore must assume that the borrower is simply stalling for time ('Ishtamutei'), even though Beis Din normally assumes that a person who is 'Kofer ba'Kol' is not 'Ishtamutei.' Rashi's assertion that one who is suspected of stealing is suspected of swearing falsely applies only to a person who attempted to steal when there were no witnesses who could contradict his claim (such as a case of 'Kofer ba'Kol' where the lender has no witnesses, as Rashi mentions on 3b, DH v'Hai). This is also the way the <b>RA'AVAD</b> (cited by the Shitah Mekubetzes on 6a) explains (see Insights to 6:1 and 4:1:b). When a person is forced by witnesses in court to pay back a loan, Beis Din assumes that he was just stalling for time and that is why he is not suspected of swearing falsely.
</p><p>
According to this approach as well, the Kal va'Chomer must be understood the way the Ramban and Rishonim understand it (as explained in (b) above). The Kal va'Chomer is that once reason is found to assume that the borrower will not swear falsely because of Hoda'as Piv, certainly there should be reason to assume that the borrower will not swear falsely because of testimony of witnesses.
</p><p>
(d) <b>TOSFOS RABEINU PERETZ</b> answers that the Gemara means to say as follows. Without a Kal va'Chomer, Beis Din would not make a person swear because of testimony of witnesses; Beis Din would make a person swear only when there is strong reason to assume that the threat of a Shevu'ah will make him admit to the truth. Examples of this are 'Modeh b'Miktzas' (where the person likely will admit since he merely is stalling for money) and a case of an Ed Echad (where the person likely will admit since the witness contradicts his statement). However, in the case of two witnesses who do not contradict him with regard to the other half of the money, there is no reason to assume that he will admit to the truth. The Kal va'Chomer teaches that, nevertheless, Beis Din must make the borrower swear because of the testimony of witnesses -- because they provide a stronger proof than Hoda'as Piv.
</p><p>
According to Tosfos Rabeinu Peretz, it is clear that the Gemara cannot ask a Pircha on the Kal va'Chomer from this logic.
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE TZAD HA'SHAVAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #3 (Rav Papa):</font></b> Rather, the Kal va'Chomer is from
          one witness, who obligates an oath of Gilgul (once a
          defendant must swear to contradict a witness, the
          claimant can make him include other matters in the oath).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> One witness obligates an oath about what he
          testifies about. Then, the law of Gilgul obligates
          swearing about other matters;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We have no source that two witnesses obligate any
               oath!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> We learn from admission. It obligates one to
          swear about a claim not supported by an admission or
          testimony!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Admission cannot be contradicted. We cannot
          learn to witnesses!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> We learn from one witness, who can be
          contradicted, yet he obligates him to swear.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> One witness makes him swear about what the
          witness testifies about. We cannot learn that two
          witnesses make him swear about what they do not testify
          about!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> We learn from admission. It makes him swear about
          a claim not supported by an admission or testimony!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The stringencies of admission and one witness are
               different. The Tzad ha'Shavah (common side) is that
               through claim and denial he must swear. The same
               applies to witnesses!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> In both sources (of the Tzad ha'Shavah), the
          defendant was not established to be a liar. We cannot
          learn to two witnesses, who establish him to be a liar
          (perhaps we do not believe his oath)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Two witnesses do not establish him like a liar;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Idi bar Avin):</font></b> One who (falsely) denies a loan
               is not disqualified from testifying. (Perhaps he
               intends to repay it, and he merely stalls until he
               can do so.) One who denies a deposit is disqualified
               from testifying. (If he intended to return it, he
               would do so now!)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> In both sources, there is no law of Hazamah (to
          pay for false testimony). We cannot learn to two
          witnesses, who pay if they are Huzmu!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Chiya does not consider this a refutation of
          the Tzad ha'Shavah (since Hazamah applies to one witness
          to invalidate his testimony).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Objection:</font></b> How can R. Chiya support himself from our
          Mishnah? It is unlike his case!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In his case, only the lender is supported by
               witnesses. If witnesses supported the borrower, R.
               Chiya would not obligate him to swear!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> In the Mishnah, we are witnesses for both sides
               (that each owns half)!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Retraction:</font></b> Rather, R. Chiya brought our Mishnah to
          support a different law.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HEILACH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Chiya):</font></b> If Reuven told Shimon 'you owe me 100', and
          Shimon said 'I owe only 50. Heilach (Rashi - take back
          your loan, I never spent it; Ran - we discuss a deposit)'
          and returned 50, he must swear about the other 50.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason? (We should say that they
          argue only about the other 50, and he totally denies it!)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Even when he says 'Heilach', he admits to part of
          the claim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Support (Mishnah):</font></b> If Reuven and Shimon are holding a
          garment...
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We are witnesses that each owns half (and he must
               give up the other half. This is like Heilach), and
               still they swear!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Sheshes):</font></b> One who partially admits to a claim and
          says 'Heilach' is exempt from swearing.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah shows that he must swear!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah is only an enactment mid'Rabanan
          (lest people grab others' garments and claim them).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Chiya admits that the Mishnah is an enactment
               mid'Rabanan. However, Chachamim enact only what is
               similar to Torah law;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Heilach were exempt, they would not enact an oath
               unlike Torah oaths.
<br>
<br>

sjt:
<font><b>1) 'HUCHZAK KAFRAN'</b></font><b>
<br>QUESTIONS:</b> Rebbi Chiya teaches that one is obligated to swear when witnesses testify that he owes half of the amount of money that his opponent claims. The Gemara derives Rebbi Chiya's ruling from a Tzad ha'Shaveh from Hoda'as Piv and Ed Echad. The Gemara asks that Rebbi Chiya's ruling should not be derived from this Tzad ha'Shaveh, since neither Hoda'as Piv nor Ed Echad makes the defendant 'Huchzak Kafran,' whereas when two witnesses testify that he owes half of the claim he is 'Huchzak Kafran.'
</p><p>
The Gemara answers that even when two witnesses contradict his word regarding the loan (and he is a 'Kofer b'Milveh'), he retains the status of a valid witness. Therefore, even when witnesses testify against him he is not 'Huchzak Kafran.'
</p><p>
There are a number of questions on this Gemara.
</p><p>
(a) Why does the Gemara state that the person is not 'Huchzak Kafran' when he is contradicted by an Ed Echad? Obviously, since Beis Din makes the defendant swear, Beis Din suspects that he is lying and anticipates that the fear of a Shevu'ah will motivate him to admit the truth. Accordingly, it is clear that Beis Din suspects him of lying and nevertheless requires him to swear! Why is this different from a case in which he is contradicted by the testimony of two witnesses?
</p><p>
(b) <b>RASHI</b> himself writes at the beginning of the Sugya (3b, DH d'Leika l'Meimar Hachi) that a person who is 'Kofer ba'Kol' (denies owing everything) is suspected of stealing, and therefore Beis Din cannot make him swear because he may swear falsely. The same logic should apply to a person who is contradicted by an Ed Echad: since he was 'Kofer ba'Kol,' Beis Din should suspect him of stealing because he is not merely stalling for time, and therefore Beis Din should not be able to accept his Shevu'ah! Not only is the Gemara difficult to understand (because it says that an Ed Echad does not make him 'Huchzak Kafran'), the Halachah of the Torah that an Ed Echad makes the defendant swear is difficult to understand if every 'Kofer ba'Kol' is suspected of swearing falsely! (<b>MAHARI KATZ</b>, 3b)
</p><p>
(c) The Gemara concludes that when two witnesses obligate a person to pay half of the claim, the defendant is not 'Huchzak Kafran' because every person who denies owing a loan ('Kofer b'Milveh') retains his status as a valid witness to testify in other cases ('Kasher l'Edus') since he might merely be stalling for time. Accordingly, if witnesses testify in court about an object that the defendant is holding and they say that half of it belongs to someone else, the defendant should not be able to make a Shevu'ah since he is 'Kofer b'Pikadon.' One who denies owing a Pikadon is disqualified from giving testimony, and he may not make a Shevu'ah. However, the case in the Mishnah from which Rebbi Chiya derives his ruling discusses just such a situation: the 'Anan Sehadei' testifies that half of the garment that a person is holding does not belong to him! How, then, can the defendant swear in such a situation? (<b>PNEI YEHOSHUA</b>, <b>NACHALAS DAVID</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) There are two types of people who are 'Chashid a'Mamona,' suspected of stealing money. The first type is a person suspected of stealing a particular object for which he is brought to court to swear in order to attest to his ownership. Such a person has never been caught stealing an object in the past. Beis Din makes him swear now simply because he is suspected of trying to steal this object. This type of suspicion is the subject of the Gemara's discussion later (5b) regarding whether or not a person who is 'Chashid a'Mamona' is also 'Chashid a'Shevu'asa,' and this is the type of person to whom Rashi refers (on 3b) when he writes that a person who is 'Chashid a'Mamona' is also 'Chashid a'Shevu'asa.'
</p><p>
The second type of 'Chashid a'Mamona' is a person who has been proven in the past to have attempted to take an object that was not his, such as when two witnesses testified that the person denied a loan or stole money in the past. Since it has been confirmed that this person is a thief, Beis Din has greater reason to suspect that he will steal again, and that he will even swear falsely to attain his goals. It is to such a person that the Gemara refers when it uses the words 'Huchzak Kafran.'
</p><p>
The Rishonim (<b>RABEINU YEHUDAH HA'CHASID</b> cited by Tosfos to 5b; see also <b>TOSFOS RABEINU PERETZ</b> here) explain that a person in this second category is suspected of swearing falsely even according to those who maintain that one who is 'Chashid a'Mamona' is <i>not</i> 'Chashid a'Shevu'asa.' The reason for this is that a person who has not yet stolen money might refrain from stealing for the first time because of the fear of making a false Shevu'ah. Once a person has already stolen (even if he was forced by Beis Din to return what he stole), he is more brazen and might even swear falsely in order to steal again. This is why the Gemara states that a person who is contradicted by an Ed Echad is not 'Huchzak Kafran,' while a person who is proven by witnesses to have lied with regard to half of a loan is 'Huchzak Kafran' and should not be allowed to swear with regard to the second half of the loan.
</p><p>
(b) Although Rashi rules that a person who is 'Chashid a'Mamona' <i>is</i> 'Chashid a'Shevu'asa' (see Insights to 3b), at this point the Gemara assumes that the Tzad ha'Shaveh can prove that anyone who is 'Chashid a'Mamona' is <i>not</i> 'Chashid a'Shevu'asa.' This is why the Gemara suggests that until a person is 'Huchzak Kafran' Beis Din allows him to swear even though he is 'Chashid a'Mamona.'
</p><p>
According to Rashi, the Gemara concludes that a person who is 'Chashid a'Mamona' indeed is 'Chashid a'Shevu'asa.' However, if witnesses prove a person guilty of lying in court when he was 'Kofer ba'Kol,' Beis Din does not consider him 'Chashid a'Mamona,' since he might merely be stalling for time (see <b>MAHARI KATZ</b>, 3b). (This logic applies only when witnesses obligate him to pay, according to Rashi; if Beis Din does not know that there are witnesses, Beis Din considers a person who is 'Kofer ba'Kol' to be 'Chashid a'Mamona,' as explained in Insights to 3b in the name of the Ritva.)
</p><p>
According to Rashi, an Ed Echad also can make a person swear only where the person is not 'Chashid a'Mamona' and where he might be stalling for time, such as when he was guarding an object for someone and the object was lost (see Insights to 6a).
</p><p>
According to the first answer of <b>TOSFOS</b> (5b, DH d'Chashid), even if a person is 'Huchzak Kafran' for lying in the past, he still is permitted to swear mid'Oraisa. According to Tosfos, it is not clear why the Gemara assumed that when two witnesses testify against the defendant and make him 'Huchzak Kafran' that he should not be able to swear mid'Oraisa.
</p><p>
It seems that according to Tosfos, the Gemara simply is suggesting a Pircha for the Tzad ha'Shaveh, saying that Ed Echad and Hoda'as Piv have something in common which the testimony of two witnesses does not have, and therefore those two Halachos cannot teach that a person must swear when two witnesses testify that he is obligated to pay half of the claim. (<b>MAHARI KATZ</b> cited by the Shitah Mekubetzes to 3b; see Tosfos to 5a, DH Iy Isa.)
</p><p>
(c) The straightforward answer seems to be that the Gemara indeed could have asked such a question to refute Rebbi Chiya's source from the Mishnah. Instead, it refutes Rebbi Chiya's assertion of his source from the Mishnah by pointing out that in the case of the Mishnah, the testimony shows not only that each claimant does not own the other half of the garment, but that each <i>does</i> own the half he is holding. (The <b>RASHBA</b> (3a) offers a similar answer to another question he asks on how the Mishnah can serve as the basis for Rebbi Chiya's ruling.)
</p><p>
Some Acharonim answer that although the each claimant's grasp of half of the object is equivalent to the testimony of witnesses that each owns half ('Anan Sehadei') with regard to the Halachah of 'Modeh b'Miktzas,' nevertheless it is not strong enough to give the other claimant the status of a liar ('Huchzak Kafran'). The 'Anan Sehadei' is not as strong as actual testimony of witnesses who testify against a person's claim. Therefore, in the case of the Mishnah, the claimants are not 'Huchzak Kafran.'
</p><p>
Although the claimants in the case of the Mishnah are not 'Chashid a'Mamona' to the extent that a person against whom witnesses testified is 'Chashid a'Mamona,' nevertheless Rebbi Chiya proves from the Mishnah that a person may make a Shevu'ah when witnesses testify against him. His proof is that since, in the case of the Mishnah, Beis Din does not give the claimants the status of 'Huchzak Kafran' because the 'Anan Sehadei' is not strong enough proof against each one, Beis Din also does not the status of 'Huchzak Kafran' to a person who denies owing a loan when witnesses testify against him, since it is possible that he merely is stalling for time. (<b>PNEI YEHOSHUA</b>, <b>NACHALAS DAVID</b>)
</p><p>
Alternatively, the Gemara earlier (2b) explains that even when a person is not suspected of stealing, he <i>is</i> suspected of making a claim to a lost object that his friend found. The reason for this is that he might be 'Moreh Heter,' allowing himself to seize the item from his friend's possession, saying that since his friend did not pay anything for the item, he may take it. Similarly, when his friend <i>bought</i> a garment, a person who is not a thief might be 'Moreh Heter' and take a garment that his friend bought when both he and his friend paid the seller and the seller agreed to sell it to his friend. He will allow himself to take it, saying that he is entitled to it since he paid money for it, even though the seller agreed to sell it to his friend. He reasons that his friend can go and buy another one from someone else. Perhaps the Gemara understands that when a person steals by being 'Moreh Heter,' he is <i>not</i> 'Chashid a'Shevu'asa' (see Insights to 5b). That is why the claimants in the case of the Mishnah are not considered 'Huchzak Kafran' even though each one denies his friend's ownership of the part of the object that is in his hands.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES HEILACH EXEMPT FROM SWEARING?</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. Chiya):</font></b> If Reuven told Shimon 'you owe me 100',
               and Shimon said 'I owe only 50. Heilach (take it)
               and returned 50, he must swear about the other 50.
               This is considered admission to part of the claim.
               (We do not say that they argue only about the other
               50, and he totally denies it!)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Support:</font></b> In the Mishnah, Reuven and Shimon are
               holding a garment... We are witnesses that each owns
               half (and he must give up the other half. This is
               like Heilach), and still they swear!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Sheshes):</font></b> One who partially admits to a claim
               and says 'Heilach' is exempt from swearing.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> He holds that the Mishnah is only an enactment
               mid'Rabanan (lest people grab others' garments and
               claim them). R. Chiya agrees that the Mishnah is an
               enactment. However, Chachamim enact only what is
               similar to Torah law. If Heilach were exempt, they
               would not enact an oath unlike Torah oaths.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'>Question:</font></b> According to Rav Sheshes, who exempts
               Heilach, why do we need a verse to exempt land from
               oaths? Every admission of land is Heilach!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> We need the verse for when he damaged the
               land (and must pay. This is not Heilach.)
               Alternatively, we need the verse for an admission of
               Kelim (in a case that is not Heilach) and denial of
               land.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rami bar Chama):</font></b> The four Shomrim swear only when
               they partially deny and partially admit to the
               claim.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Suggestion:</font></b> He said 'Heilach' (and he swears)!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Rejection:</font></b> No. Reuven said that he deposited three
               cows and all died through negligence. Shimon said
               that he deposited only two; one died through Ones,
               and one through negligence, and he owes for one.
               This is not Heilach.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> 97a (Mishnah):</font></b> If Reuven borrowed Shimon's cow for
               one day and rented it for the next day, and Shimon
               claims that it died on the day it was borrowed, and
               and Reuven is unsure, he must pay.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 98a:</font></b> We can establish the Mishnah when Reuven
               borrowed and rented two cows. Shimon claims that
               both died on the day that they were borrowed. Reuven
               admits about one, and he is unsure about the other.
               Since Reuven must swear and he cannot, he must pay.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> 100a (Mishnah):</font></b> If Reuven had two slaves (or
               fields), one big and one small, and Shimon says 'I
               bought the big one', and Reuven says 'I sold the
               small one', Reuven swears that he sold the small
               one.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question:</font></b> Why does he swear? His admission was not
               part of the claim, and it is Heilach, and we do not
               swear about slaves (or land)!
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer (Shmuel):</font></b> They argue about the clothing of a
               big or small slave, or the piles of grain of a big
               or small field.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Shevuos 43a (Mishnah):</font></b> If Reuven claimed 'I
               entrusted you with a house full (e.g. of grain) and
               Shimon said 'I don't know how much it was, take what
               is there', he is exempt. If Reuven claimed 'it was
               full up to the ledge and Shimon said 'it was up to
               the window', he is liable.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> Bava Kama 105b (Beraisa):</font></b> Yehudah had Levi's ox, but
               denied that he stole it. He swore 'I am a Shomer
               Chinam', and later admitted. He does not swear, for
               'he denied it' excludes one who admits from the
               beginning.
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> (Rabah):</font></b> The Beraisa discusses a case of Heilach. I
               obligate (in a case of similar claims) when the
               animal is in the swamp.
<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 (1:5):</font></b> The Sugya is like Rav Sheshes.
               On 100a, we asked that one should be exempt because
               it is Heilach.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ba'al ha'Ma'or (1a DH Heilach):</font></b> The Gemara
                    tried to prove that Heilach is liable from the
                    Mishnah of two holding a Talis. In the Mishnah,
                    he does not admit! The Ra'avad says that even
                    if one party agrees to let the other take half
                    without an oath, he himself must swear. I say
                    that since the Talis is here ready to be
                    divided, it is like Heilach. R. Chiya holds
                    that if Heilach were exempt, Chachamim would
                    not enact an oath in this case.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> The Gemara (98a) established the Mishnah to be
               a case of two cows, so it would not be Heilach. In
               Shevuos, we obligate one who says 'it was up to the
               window.' This is when the Peros rotted due to his
               negligence and he owes for them, so it is not
               Heilach.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> It is Heilach only when he
                    returns the same coins that he lent to him or
                    the same deposit. If he says 'I owe you only
<br>                  <b>  <b><font color='darkgreen'>50. </font></b></b>Heilach', and he gives other coins, this is
                    not Heilach and he must swear even according to
                    Rav Sheshes. Rashi connotes like this.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Nimukei Yosef (57b DH Masnisin):</font></b> Shmuel said that
               they argue about the clothing of a big or small
               slave. Since it is not specific (he must cut a small
               garment from a big one), it is not Heilach.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (Shevuos 17b DH Garsinan):</font></b> Rashi connotes
                    that if he gives to him different coins, even
                    if he gives to him in Beis Din, it is not
                    Heilach. If so, Heilach applies only to a
                    deposit. Even if one returns the same coins of
                    a loan, he cannot say 'the coins are yours
                    wherever they are.' We hold that Kidushin with
                    a loan is invalid, for it is in the Reshus of
                    the borrower, not of the lender, regarding
                    retracting the loan and responsibility for
                    Ones. This is unlike the Ge'onim, who say that
                    Heilach applies to a loan or deposit, whether
                    he returns the same coins he lent or others.
                    Regarding a deposit, as long as he admits, even
                    if it is not in his hand, rather, in the swamp,
                    it is Heilach, for wherever it is, it is in the
                    owner's Reshus. A proof for this is Bava
                    Metzi'a 5b. We asked that according to Rami bar
                    Chama, who requires Modeh b'Miktzas for
                    Shevu'as ha'Pikadon, it is Heilach. If Heilach
                    is only when he returns the deposit
                    immediately, what was the question? Also, why
                    did we need to answer that he said one died
                    through negligence and he owes for it? We can
                    say that it is in the swamp! Rather, any
                    admission to an (intact) deposit is Heilach.
                    Only a loan must be in his hand and ready to
                    return to be considered Heilach.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 1:3):</font></b> If Reuven claimed
               Metaltelim from Shimon, and Shimon admitted to part
               and immediately gave them and said 'this is all I
               owe you; Heilach', he is exempt from swearing
               mid'Oraisa.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (3:15):</font></b> If Reuven claimed 100 Zuz and a Kli,
               and Shimon said 'I owe you only a Kli. Here it is',
               he is exempt and swears Heses. If Reuven says 'this
               is not my Kli', and Shimon admitted that he switched
               his Kli for another, he must swear mid'Oraisa. If
               Reuven says 'this is not my Kli', and Shimon
               admitted that he switched his Kli for another, he
               must swear mid'Oraisa.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam connotes that even
                    regarding a deposit, if he does not say
                    'Heilach', even if it is intact, this is Modeh
                    b'Miktzas. The Ramban proved otherwise from
                    Bava Metzi'a 5a, for wherever it is, it is in
                    the owner's Reshus.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rosh (Kesuvos 2:1):</font></b> When a divorcee claims that her
               Kesuvah was 200, and he claims that her Kesuvah was
               100, he need not swear mid'Oraisa. This is like
               denial of a debt with a lien on land. Even after it
               was enacted to collect from Metaltelim, since Beis
               Din enacted that every woman has a Kesuvah of at
               least 100, he could not claim 'I paid.' Therefore,
               the 100 he admits to is Heilach, since he could not
               have evaded it, and he denied the rest.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Bedek ha'Bayis (CM 87:5):</font></b> This is unlike the
                    Poskim who say that Heilach is only when he
                    gives the money immediately. However, the law
                    is true, for Modeh b'Miktzas is only when he
                    could have denied.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 87:1):</font></b> Even if Shimon admitted to
               part of the claim, if he said 'here is the part I
               admit to'; he swears only Heses. Heilach is only if
               the part he admits to is ready in his hand in front
               of Beis Din to give to him immediately, but not if
               he said 'it is in my house and I will give it to
               you.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (8):</font></b> Since he gives what he admits to,
                    regarding the rest, he totally denies.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 2):</font></b> The Tur and Shulchan Aruch
                    connote that Heilach applies whenever he has
                    the money in Beis Din and is ready to return
                    it, even before he returned it, like the Ran
                    says.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH v'Afilu):</font></b> The Ramban and Rashba
                    hold like the Ran. The Magid Mishneh says that
                    the Rambam holds like Rashi. Perhaps there the
                    Rambam said 'Heilach' to exclude when the
                    deposit was lost or burned. However, in
                    Halachah 1:3 the Rambam exempts 'if he
                    immediately gave what he admits that he owes.'
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (3):</font></b> Most Poskim exempt a deposit no
                    matter where it is, even if in the Shomer's
                    house. The Gemara mentioned the swamp for this
                    is normal for a cow. All the more so it is
                    Heilach if it is in his house. The Ra'avad
                    challenged this from Shevuos 43a. If every
                    deposit is Heilach, granted, we can say that
                    Peros rotted, but how can we answer why one
                    swears about coins?
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Gra (10):</font></b> Bava Kama 105b proves that an animal
                    in the swamp is not Heilach. This refers to a
                    loan, but a deposit is Heilach even if it is in
                    the swamp. This is why we needed to give a
                    different answer in Bava Metzi'a 5a.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>IS GIVING A SECURITY CONSIDERED HEILACH? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa - R. Shimon ben Elazar):</font></b> A loan document says
          'Dinarim', without specifying an amount. The lender says
          that he lent five and the borrower admits to three. Since
          he admitted to part of the claim, he swears;
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	R. Akiva says, he is like a Meshiv Aveidah (one who
          returns a lost object, i.e. he could have said two
          easily), and he is exempt.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Version #1 - Question (against R. Chiya):</font></b> R. Shimon ben
          Elazar obligates an oath when he admits to three. Had he
          admitted to only two, he would be exempt (since clearly,
          the document means at least two, and there is a lien on
          his land to pay two). This is like Heilach, therefore he
          is exempt!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1:</font></b> No, R. Shimon obligates even when he admits to
          two;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He taught about three to teach that he argues with
               R. Akiva, and does not exempt him like a Meshiv
               Aveidah.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Objection:</font></b> If so, why did he say 'since he admitted to
          part of the claim, he swears'? He should say 'even in
          this case he swears!'
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, R. Shimon exempts him when he admits
          to two, even though Heilach is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Explanation #1:</font></b> When he admits to two, the document
               supports him, therefore he is exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Explanation #2:</font></b> When he admits to two, there is a
               lien on his land to pay the entire admission;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Just like we do not swear about denial of debts
                    that have a lien on land, also we do not swear
                    due to admission of such debts.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Version #2 - Question (against Rav Sheshes):</font></b> R. Akiva
          exempts him only because he is like a Meshiv Aveidah. Had
          he only admitted to two, he would be liable, even though
          (there is a lien on land to pay two, and) it is like
          Heilach!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> Even if he admitted to two he would be exempt.
          The Beraisa discusses three to teach the argument about
          three;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon obligates because he partially admits, and
               R. Akiva exempts like a Meshiv Aveidah.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Support:</font></b> This must be correct. If R. Akiva obligated an
          oath regarding two, why would he exempt him when he says
          three? He will scheme to say three to avoid swearing!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> Since we must say that R. Akiva exempts
          regarding two, this refutes R. Chiya! (He is not a Meshiv
          Aveidah. The exemption must be due to Heilach!)
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer #1:</font></b> When he admits to two he is exempt because the
          document supports him.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer #2:</font></b> When he admits to two there is a lien on his
          land to pay this, and we do not swear due to such
          admissions.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>SWEARING ABOUT KELIM AND LAND</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Mar Zutra brei d'Rav Nachman - Mishnah #1):</font></b> If
          Reuven claimed Kelim and land from Shimon and Shimon
          admitted to either one and denied the other, he is exempt
          from swearing;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he partially admitted to the claim of land (and
               denied all the Kelim), he is exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he partially admitted to the claim of Kelim, he
               must swear.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference:</font></b> He is exempt (in the first two clauses,
               in particular, when he admitted to land and denied
               Kelim) only because we do not swear about land;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In a corresponding case of two claims of Kelim
                    (the Kelim he admits to are in front of him,
                    like land) he would be liable.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Suggestion:</font></b> Even though he says Heilach, he is
                    liable!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> No. In a corresponding case of two claims of
          Kelim, he is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah discusses Kelim and land to teach that
               when he partially admits to the Kelim, he must also
               swear about the land.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Another Mishnah teaches this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah #2):</font></b> (Land has Acharayus, i.e. one may
               collect a loan document from land that the borrower
               sold after the loan. Metaltelim (movable objects)
               have no Acharayus. An obligation to swear about)
               property without Acharayus forces one to swear also
               about property with Acharayus.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Mishnah #1 is the primary place the law is
          taught. Mishnah #2, which teaches laws of (acquisitions
          of) land and Metaltelim, merely taught the law in
          passing.
<br>

<p>

sjt:
</p><p>
<font><b>2) PROOF FOR THE HALACHAH OF 'HEILACH'</b></font><b>
<br>QUESTIONS:</b> The Gemara records a dispute between Rebbi Chiya and Rav Sheshes regarding whether one is obligated to swear in a case of 'Heilach,' where one admits that he owes part of a loan and pays it in court at the time of the claim. Is such a case considered a normal case of 'Modeh b'Miktzas,' and the defendant must swear about the part that he denies owing, or is the part that he paid now ('Heilach') considered no longer part of the claim, and it is now considered as though he is 'Kofer ha'Kol'?
</p><p>
The Gemara cites proof for the view of Rav Sheshes that 'Heilach' is exempt from a Shevu'ah. If a person shows a Shtar which states that someone borrowed from him 'a number of Sela'im' but the number is not specified, and the lender claims that he lent five and the borrower claims that he borrowed only three, Rebbi Akiva exempts the borrower from a Shevu'ah of 'Modeh b'Miktzas' since he could have exempted himself from a Shevu'ah by saying that he owes only two. Rebbi Shimon ben Elazar disagrees and maintains that the borrower still must swear because it is still considered an ordinary case of 'Modeh b'Miktzas.'
</p><p>
Why does Rebbi Shimon ben Elazar exempt the borrower from a Shevu'ah when he claims that he owes only two? It must be that those two Sela'im are considered 'Heilach' since they are written in the Shtar, and what is written in the Shtar is considered as though it is being paid outright (since a person's land is Meshubad to pay it).
</p><p>
<b>RASHI</b> (DH Eino Ela) explains that according to Rebbi Akiva, the reason why the borrower is exempt from a Shevu'ah when he claims that he owes only two is that the Shtar supports his claim, since had he borrowed more than two the amount would have been written explicitly in the Shtar.
</p><p>
Why does Rashi explain that the reason why Rebbi Akiva exempts the borrower from paying when he says that he owes two is that the Shtar supports his claim? He should explain that the reason the borrower is exempt is that when he says that he owes two, it is considered 'Heilach,' as the Gemara explains according to Rebbi Shimon ben Elazar! (<b>PNEI YEHOSHUA</b>)
</p><p>
Also, why does Rashi explain that Rebbi Akiva exempts the borrower from a Shevu'ah because the Shtar supports his claim? When the Gemara rejects this proof that 'Heilach' is exempt, it offers two reasons to exempt the borrower from a Shevu'ah when he says that he owes two -- either because the Shtar supports his words, or because a Shtar is considered like Karka (land) and one does not make a Shevu'ah on Kefiras Shibud Karka'os. Why does Rashi not say that Rebbi Akiva exempts the borrower from a Shevu'ah either because the Shtar supports him or because it is a Kefirah of a Shibud Karka'os?
</p><p>
Finally, if the Gemara knew that Rebbi Akiva exempts the borrower from a Shevu'ah when he says that he owes two because the Shtar supports his claim, then why did the Gemara think that Rebbi Shimon ben Elazar exempts the borrower, when he admits to owing two, from a Shevu'ah for a different reason -- because it is 'Heilach'? Perhaps he, too, exempts the borrower because the Shtar supports his claim, as the Gemara itself concludes when it rejects the proof from Rebbi Shimon ben Elazar's view! (<b>RAMBAN</b>)
</p><p>
<b>ANSWER:</b> Rashi indeed could have explained that Rebbi Akiva exempts the borrower from a Shevu'ah when he admits that he owes two because of 'Heilach.' However, that would not suffice to explain why Rebbi Akiva exempts the borrower from a Shevu'ah when he admits to owing <i>three</i>, for a number of reasons:
</p><p>
1. If 'Heilach' is exempt from a Shevu'ah, then why does Rebbi Shimon ben Elazar not exempt the borrower from a Shevu'ah when he admits the he owes three because of a 'Migu' of 'Meshiv Aveidah,' as Rebbi Akiva rules?
</p><p>
Two approaches to this question are given by the Rishonim. <b>TOSFOS</b> (4a, DH u'Shema Mina) explains that if 'Heilach' is exempt from a Shevu'ah because 'Heilach' is tantamount to 'Kofer ha'Kol,' then the borrower must be very brazen in order to claim that he owes only two, as in every case of 'Kofer ha'Kol.' For this reason, when the borrower admits that he owes three, he does not have a 'Migu' that he could have claimed that he owed only two, as in every case of 'Modeh b'Miktzas.'
</p><p>
<b>TOSFOS RABEINU PERETZ</b> does not seem to accept the logic of Tosfos. Even though 'Heilach' is judged by Halachah as 'Kofer ha'Kol' and is exempt from a Shevu'ah, the claim of 'Heilach' does not require the gross brazenness of a person who is 'Kofer ha'Kol.' Why should it take more brazenness to <i>pay</i> the amount that he admits that he owes, than to <i>owe</i> the amount that he admits that he owes (<b>NACHALAS DAVID</b>)? Even if admitting to two is considered 'Heilach,' when the borrower admits that he owes three he should be considered 'Meshiv Aveidah.'
</p><p>
Tosfos Rabeinu Peretz therefore explains that when the lender brings proof (witnesses or a Shtar) that the borrower owes part of the loan, it requires brazenness for the borrower to admit only to what was proven. Therefore, admitting that he owes only two -- after the lender brought a Shtar to court to that effect -- requires brazenness, just as 'Kofer ha'Kol' requires brazenness. That is why Rebbi Shimon ben Elazar does not exempt the borrower from a Shevu'ah when he admits that he owes three, for he is not considered 'Meshiv Aveidah.' (Tosfos (4b, DH l'Olam) also gives this explanation according to the Gemara's conclusion.)
</p><p>
According to both of these explanations, Rebbi Shimon ben Elazar has strong reason for not considering the borrower to be 'Meshiv Aveidah' when he admits that he owes three. Why, then, does Rebbi Akiva argue and consider the borrower to be 'Meshiv Aveidah'? It must be that Rebbi Akiva maintains that it does <i>not</i> require brazenness on the part of the borrower to admit that he owes only two. Rashi explains that admitting to two does not require the borrower to be brazen because the Shtar supports his claim, making it appear as though he is telling the truth.
</p><p>
2. Another reason for why it would not suffice for Rashi to write that 'Heilach' exempts the borrower from a Shevu'ah when he admits that he owes two is that there is a point in the Sugya at which the Gemara thinks that according to Rebbi Shimon ben Elazar the borrower is <i>obligated</i> to make a Shevu'ah when he admits that he owes two, and nevertheless Rebbi Akiva exempts him from a Shevu'ah when he admits to three because he is 'Meshiv Aveidah.' Why should he be considered 'Meshiv Aveidah' if he would have been obligated to swear had he admitted to two? (It does not seem plausible to suggest that Rebbi Akiva argues with Rebbi Shimon ben Elazar at this point in the Sugya and maintains that the borrower is exempt because of 'Heilach' when he admits to two, because that would mean that Rebbi Shimon ben Elazar and Rebbi Akiva argue about the Halachah of 'Heilach.' The Gemara, though, does not introduce this Sugya by saying 'Leima k'Tenai,' that the Tana'im argue about the Halachah of 'Heilach,' which implies that the Gemara wants to prove that all of the Tana'im maintain either that 'Heilach' is obligated or that 'Heilach' is exempt. (<b>RITZBASH</b>, cited by the Shitah Mekubetzes))
</p><p>
This explains why Rashi finds it necessary to explain that Rebbi Akiva considers the borrower to be 'Meshiv Aveidah' when he admits that he owes three; he could have admitted to only two, in which case his claim would have looked more believable because of the Shtar that supports his claim. Although he would have been required to had he admitted to two, nevertheless a borrower still prefers to make such a claim because it gives him the support of the Shtar, as the Gemara suggests in its second version of the proof with regard to 'Heilach.'
</p><p>
This also explains why Rashi does not write explicitly that Rebbi Akiva exempts the borrower from a Shevu'ah when he admits that he owes <i>two</i>. Even if Rebbi Akiva maintains that the borrower <i>does</i> swear when he admits to two, he is exempt from a Shevu'ah when he admits to <i>three</i> because the Shtar supports his claim (<b>RITZBASH</b>).
</p><p>
This approach also answers the second question. Rashi does not suggest that Rebbi Akiva exempts the borrower from a Shevu'ah when he admits that he owes two because the Shtar has a Shibud on Karka'os, because that reasoning does not reduce the brazenness required for the borrower to deny owing all but two Sela'im. Therefore, it would not explain why the borrower is 'Meshiv Aveidah' when he admits that he owes three.
</p><p>
The third question was that if the Gemara already knew that the Shtar supports the claim of the borrower when he admits that he owes two, then why did the Gemara not assume that this (and not 'Heilach') is the reason for why the borrower is exempt from a Shevu'ah when he admits to two? The <b>RAMBAN</b> answers that the Gemara knew at this point that the Shtar makes it <i>easier</i> for the borrower to admit to only two and to deny the rest, since it supports his claim. However, the Gemara did <i>not</i> know that the proof of the Shtar is so strong that it is able to exempt the borrower from making a Shevu'ah on the rest of the money. Therefore, the Gemara thought that what exempts the borrower from a Shevu'ah is the reasoning of 'Heilach.' The Gemara concludes that although the Shtar does not say explicitly that the borrower did not borrow more than two, nevertheless it is strong enough evidence to support the borrower's claim and exempt him from a Shevu'ah on the rest of the money.
</p><p>
The Ramban points out that this answer is implicit in the words of Rashi. In the Gemara's question, Rashi (DH Eino Ela) explains that the Shtar merely shows 'strong evidence' ('Nikarim ha'Devarim') that only two Sela'im were borrowed. In the Gemara's conclusion, Rashi (DH v'Shani Hacha) writes that the witnesses who signed the Shtar 'testify to the claim' of the borrower that he owes only two.
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DOES HEILACH EXEMPT FROM SWEARING?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> According to Rav Sheshes, who exempts Heilach,
          why do we need a verse to exempt land from oaths? Every
          admission of land is Heilach!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1:</font></b> We need the verse for when he damaged the land
          (and must pay. This is not Heilach.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2:</font></b> We need the verse for an admission of Kelim
          (in a case that is not Heilach) and denial of land.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rami bar Chama):</font></b> The four Shomrim, i.e. one who guards
          something for free, or for pay, a borrower, and a renter,
          swear only when they partially deny and partially admit
          to the claim.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Suggestion:</font></b> He said 'Heilach (here is what you deposited
          with me).'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. Reuven said 'I deposited three cows by
          you, and all died through your negligence.' Shimon said
          'you deposited only two. One died through Ones (beyond my
          control) and the other died through negligence. I owe you
          for the latter.' This is not Heilach.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (against R. Chiya's first law (Daf 3a, 2:a) - R.
          Aftoriki's father - Beraisa #1) Suggestion:</font></b> If Reuven
          told Shimon 'you owe me 100', and Shimon denied the
          entire claim, and witnesses testified that he owes 50,
          perhaps he must swear about the rest!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rejection 'That he will say 'this is it'' - one
               swears due to his own admission, but not due to
               witnesses.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Chiya is a Tana. He argues with Beraisa #1.
          (According to our text (on 3a), R. Chiya cited a Beraisa.
          Perhaps our Gemara means that he cited a Tana, who can
          argue with Beraisa #1.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> A verse supports Beraisa #1!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The verse teaches that he swears only when he
          partially admits to the claim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Tana #1 (of Beraisa #1) learns both laws, for it
               says 'this' and 'is it'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Chiya learns the following two laws:</font></b> (1) one
               swears only for partial admission; (2) the admission
               must be of the same Min (type) as the claim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Tana #1 holds like R. Gamliel, that the admission
               need not be of the same Min as the claim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If Reuven claimed wheat from Shimon
                    and Shimon admitted that he owed to him barley,
                    Shimon is (totally) exempt;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Gamliel says, he must swear.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>MAY SHEPHERDS SWEAR?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Reuven was a shepherd. Every day people used to deposit
          animals with him, with witnesses. One day they gave to
          him without witnesses. He denied receiving the animals.
          Witnesses testified that he ate two of the animals.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	R. Zeira:</font></b> If we hold like R. Chiya's first law, Reuven
          must swear about the rest.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Abaye:</font></b> He is a thief, so we do not let him swear!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	R. Zeira:</font></b> I meant, (because he cannot swear,) those who
          claim from him swear and receive.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Even if we do not hold like R. Chiya's first
          law, he should be obligated to swear due to Rav Nachman's
          law!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Levi claimed 100 from Shimon and
               Shimon denied it, he need not swear.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> We make him swear Heses (an oath that
               is Mesis (entices) him to admit. This was enacted
               after the Mishnah.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Shevu'as Heses is a Rabbinic enactment. We do not
          apply an enactment (that if the defendant cannot swear,
          the claimant swears and collects) to an enactment.
<br>
<br>

sjt:
<font><b>1) THE SHEPHERD WHO DENIED RECEIVING THE SHEEP</b></font><b>
<br>QUESTION:</b> The Gemara relates an incident in which a shepherd denied that he had received any sheep from the owner, and later witnesses testified that he ate two of the sheep that were deposited with him. The Gemara says that according to Rebbi Chiya -- who maintains that the testimony of witnesses is equivalent to Hoda'as Piv (his own admission) -- the shepherd must make a Shevu'ah of 'Modeh b'Miktzas' that he did not receive the rest of the sheep. Abaye asks, why is the shepherd trusted to swear if he has been proven by the witnesses to be a thief? The Shevu'ah of a thief is not accepted! (See <b>TOSFOS</b> to 5b, DH d'Chashid, and 3b, DH b'Chulei.) The Gemara answers that indeed the thief is not trusted and does not swear. Instead, Beis Din allows the claimant to swear that his claim is true and to collect from the thief. This follows the enactment of the Chachamim that whenever a Shevu'ah needs to be administered to a thief, Beis Din is to transfer the Shevu'ah to the claimant and allow him to swear and collect the money he claims.
</p><p>
How does this enactment of the Chachamim apply in the case of the shepherd? The Gemara earlier (4a) explains that Rebbi Chiya cannot derive from his Kal va'Chomer (or Tzad ha'Shaveh) that witnesses force a person to make a Shevu'ah of 'Modeh b'Miktzas' when the person is 'Huchzak Kafran.' The Kal va'Chomer teaches only that when the defendant is not 'Huchzak Kafran' he must make a Shevu'ah. Accordingly, Rebbi Chiya should have no source that a Shevu'ah of 'Modeh b'Miktzas' should be made by the shepherd in this case, since he is 'Huchzak Kafran' (witnesses testified that the shepherd willfully denied the claim in order to avoid returning an object that was entrusted with him). Since there is no source for such a Shevu'ah, there should be no source to allow the claimant to make a Shevu'ah and collect. (<b>TOSFOS</b> DH Iy, according to <b>MAHARAM</b> and <b>SHITAH MEKUBETZES</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that since a Kal va'Chomer teaches that one must make a Shevu'ah when witnesses testify that he owes part of a loan, the same should apply to a Pikadon (deposit). There should be no reason to distinguish between a loan and a Pikadon.
</p><p>
The words of Tosfos are difficult to understand. There is a clear distinction between a loan and a Pikadon. For the case of witnesses who testify about a loan, a Kal va'Chomer teaches that the defendant must swear. For the case of witnesses who testify about a Pikadon, there is no source for the Shevu'ah! (The principle of 'Lo Pelug' normally does not apply to laws learned from the Torah.)
</p><p>
Perhaps Tosfos means that the Chachamim instituted that Beis Din should allow the claimant to make a Shevu'ah and collect even in the case of a Pikadon since, when witnesses testify about a loan, they obligate the defendant to make a Shevu'ah d'Oraisa, and if the defendant is 'Huchzak Kafran' the Chachamim allow the claimant to make a Shevu'ah and collect. Even though the Chachamim do not give the claimant the right to make a Shevu'ah and collect when the Shevu'ah is only mid'Rabanan, in this case the Shevu'ah was never placed on the defendant and then reversed onto the claimant. Rather, the Chachamim instituted in the first place that the claimant make a Shevu'ah and collect.
</p><p>
(b) Other Rishonim do not ask the question of Tosfos. Perhaps they understand that 'Huchzak Kafran' is not actually used as a Pircha to the Tzad ha'Shaveh in the Gemara earlier (4a). Rather, the Gemara means that even if a Tzad ha'Shaveh could teach that two witnesses can require a person to make a Shevu'ah of 'Modeh b'Miktzas,' the defendant should be exempt from a Shevu'ah if he is 'Huchzak Kafran' simply because he is not trusted to swear. (Although the Gemara uses the words 'Mah l'ha'Tzad ha'Shaveh...' which imply a Pircha, its intention is to say simply that a liar cannot swear, as Rashi and the Ritva explain. See <b>MAHARAM</b> and <b>TORAS CHAIM</b>, who ask why the Gemara does not say outright that a liar cannot swear.) Accordingly, the Gemara clearly is justified in saying that the defendant really should swear because of the Tzad ha'Shaveh, but since he is unable to swear the Chachamim reverse the Shevu'ah and allow the claimant to make the Shevu'ah and collect.
</p><p>
There is strong reason to suggest that 'Huchzak Kafran' is not a Pircha: it is not consistent with the logic of a normal Pircha. Normally, a Pircha shows that the cases from which the Halachah is being derived (Ed Echad and Hoda'as Piv, in the case here) are more Chamur than the case to which the Halachah is applied (Hoda'as Edim), and therefore the Halachah cannot be derived from these two cases. 'Huchzak Kafran,' however, does not weaken the power of the witnesses. On the contrary, it is because of the power of witnesses that they are able to make the defendant a 'Kafran.' Rather, 'Huchzak Kafran' introduces an entirely new reason to exempt the defendant from a Shevu'ah in the case of witnesses (Hoda'as Edim). This cannot be used as a Pircha on a Tzad ha'Shaveh. (<b>RITVA</b>, 4a)
</p><p>
Tosfos understands the Gemara literally, that it is asking a Pircha from 'Huchzak Kafran,' because he follows his own opinion as expressed elsewhere. Later (5b), Tosfos (DH d'Chashid) writes (in his first answer) that mid'Oraisa even a thief is trusted to swear. As such, 'Huchzak Kafran' cannot provide grounds to disallow a thief from making a Shevu'ah. Rather, it must be a Pircha on the Tzad ha'Shaveh. (See Insights to 4a.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>THE OATH TO DIVIDE SOMETHING THAT TWO ARE HOLDING</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 2a (Mishnah):</font></b> Reuven and Shimon are holding a
               garment. Reuven says 'I found it', and so does
               Shimon; Reuven says 'it is mine', and so does
               Shimon. Each swears that he does not own less than
               half, and they divide it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven says 'it is all mine' and Shimon says 'it
               is half mine', Reuven swears that he does not own
               less than three quarters, and Shimon swears that he
               does not own less than one quarter. Each gets like
               he swore.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 5b (Mishnah):</font></b> Reuven swears that he does not own
               less than half...
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> He should swear about what he owns, not
               about what he does not own!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (Rav Huna):</font></b> He swears that he owns part of
               it, and that he does not own less than half.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> He does not swear that he owns all of it (like he
               claimed), for then it would seem improper that Beis
               Din gives to him only half. He does not swear that
               he owns half, for that would seem like a retraction
               of his claim that it is all his.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> The text of the oath of the Mishnah is
               also like a retraction!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> The actual text is 'it is all mine. Since
               you do not believe me about this, I swear that I own
               part, and I do not own less than half.'
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> Since each is holding half, why do they
               swear?
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer (R. Yochanan):</font></b> The oath of our Mishnah is a
               Rabbinical enactment, to deter people from grabbing
               others' property and claiming it.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 6a (Beraisa):</font></b> The case is, both are holding it. If
               one holds it alone, ha'Motzi me'Chavero Alav
               ha'Re'ayah (the other must bring a proof to take
               it).
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Question:</font></b> If only one holds it, obviously, it is
               his!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Answer:</font></b> Reuven was holding the garment itself, and
               Shimon was holding onto the fringes. Even Sumchus,
               who holds that when in doubt, we divide the money
               without an oath, admits that holding onto the
               fringes is insignificant.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> 7a (Rav Tachlifa bar Ma'arava - Beraisa):</font></b> If two are
               holding a garment, each gets up to where he is
               holding, and they divide the rest evenly.
<br>        <b>  <b><font color='darkgreen'>15. </font></b></b> R. Avahu gestured to him that they must swear.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> Question:</font></b> The Mishnah says that they divide
               (equally). It does not say that each gets up to
               where he is holding. What is the case?
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> Answer (Rav Papa):</font></b> Each is holding it by the
               fringes.
<br>        <b>  <b><font color='darkgreen'>18. </font></b><font color='darkgreen'> Inference (Rav Mesharshiya):</font></b> If one grabs three by
               three of a garment (given for Kinyan Chalipin), this
               fulfills 'he gave to his fellowman' (he acquires),
               for it is as if the garment is cut (and he owns what
               is in his hand).
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif (3a) brings the Gemara on 7a.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos To'en 9:7):</font></b> If two were holding one
               Kli, and each says 'it is mine', each swears while
               holding a (Kodesh) Chefetz (e.g. Sefer Torah or
               Tefilin) that he does not own less than half, and
               they divide it. The oath is a enactment, lest one
               grab another's garment and receive (half) without
               swearing.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (9):</font></b> If two are holding a garment, and each
               says 'it is all mine', each gets up to where he is
               holding, and they divide the rest evenly after
               swearing. Each can force the other to swear, through
               Gilgul, that he deserved all that he received.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam explains that each
                    receives what is under his hand without an
                    oath. R. Avahu teaches that they swear about
                    what is in the middle. Gilgul always applies.
                    Rav Hai Gaon and Bahag agree. The Ra'avad
                    explains that they must swear even to receive
                    what they are holding. The Ramban and Rashba
                    agree.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (13):</font></b> When they are holding in the middle of
               the garment, each gets up to where he is holding,
               and they divide the rest evenly. Each must swear
               even about the part under his hand, lest people grab
               others' property and claim it. If not, R. Avahu
               taught no Chidush (that each swears about the
               remainder in the middle that they divide). Our
               Mishnah teaches this! The Mishnah discusses when he
               is holding less than three by three at the end. It
               is not important enough to receive before (swearing
               and) dividing the rest.
<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 138:1):</font></b> If two were holding one
               Kli, and each says 'it is mine', each swears (while
               holding a Chefetz) that he owns (at least) part, and
               he does not own less than half, and they divide it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Nimukei Yosef 2b DH Zeh, citing the
                    Ran):</font></b> Why did the Rif and Rambam omit the text
                    that the Gemara concluded?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer #1 (Beis Yosef DH Shnayim):</font></b> The Rambam
                    and Tur hold that the Gemara explains the
                    meaning of the oath, but the text is like the
                    Mishnah said.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Drishah (1):</font></b> Rashi explained that the Gemara
                    asked that the text of the oath allows Rama'os
                    (swindling). I say that the Rif, Rambam and Tur
                    hold that it asked only that it is more
                    reasonable to swear about what one owns.
                    Alternatively, Rashi agrees that the Gemara did
                    not fix the text of the oath. It merely teaches
                    that they swear in a way that does not
                    contradict their claims and leaves no room for
                    Rama'os. The Rambam and Tur already explained
                    that one swears according to the Da'as
                    (understanding) of Hash-m and Beis Din. The Rif
                    requires him to say before swearing that he
                    owns the entire item, so there is no concern
                    for Rama'os, for we make him swear according to
                    Hashem's Da'as.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Bach (1):</font></b> Hagahos Alfasi, citing R. Yeshayah,
                    says that even though one swears according to
                    the Da'as of Beis Din, a judge should be
                    stringent to make the oath explicit to exclude
                    any possible Rama'os. The Nimukei Yosef (1a DH
                    she'Ein) holds that we use the text of the
                    Gemara.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (3):</font></b> This is when they hold the
               garment by the end; neither holds three by three
               (fingers).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (4):</font></b> Since less than three by three is
                    not important, it is improper to say that he
                    receives it before dividing. However, if he
                    wants to, he may. The Rosh connotes like this.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> R. Akiva Eiger:</font></b> It seems that the Prishah (3,
                    who says that seizure does not apply to less
                    than three by three) and Ir Shushan disagree.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If each holds part in his
               hand, and says 'it is all mine', each gets up to
               where he is holding, and they divide the rest evenly
               after swearing, like we said. Each can force the
               other to swear, through Gilgul, that he deserved all
               that he received.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Aval):</font></b> The Tur holds like the
                    Ra'avad, that each must swear to get even what
                    he is holding.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (11):</font></b> Why did the Shulchan Aruch and Rema
                    not bring the opposing opinion? It is the
                    majority (four, including the Tur), and they
                    are Basra (lived later than Rav Hai Gaon, Bahag
                    and the Rambam)!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'> Toras Chayim (Bava Metzi'a 7a DH Hachi):</font></b> The
                    text says 'they divide <i>the rest</i> with an
                    oath.' Tosfos deleted these words. If so, why
                    did the Gemara ask in what case they divide and
                    each swears about half? They do so whenever
                    they hold equal amounts! The Beraisa teaches
                    about when one holds more than the other. Even
                    though the oath is to deter people from
                    grabbing others' property (and it should apply
                    to what each holds), what each holds is as if
                    it was cut off, and each wants to take it from
                    the other. The oath of our Mishnah was not
                    enacted for this. The Gemara said that if one
                    holds all of it, ha'Motzi mi'Chavero Alav
                    ha'Re'ayah. Also the Nimukei Yosef connotes
                    like this. The Gemara asked, for they cannot
                    hold equal amounts, for if so the Mishnah
                    should have taught that each receives what he
                    holds without an oath. Rather, the Mishnah
                    connotes that no one gets anything without
                    swearing (i.e. when they hold the fringes). The
                    Rambam and Shulchan Aruch say that each gets
                    what is in his hand without swearing.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Shach 5):</font></b> Also the Bach rules like
                    this. The primary Perush of the Gemara is like
                    most Poskim say, that each must swear to get
                    what he holds. Tosfos says that this is to
                    deter people from grabbing others' property and
                    claiming it. The Rosh and Rashba say that
                    surely R. Avahu did not teach only that each
                    swears about the remainder, for the Mishnah
                    teaches this! The Gemara asked why the Mishnah
                    did not teach that each (swears and) receives
                    what he holds, and they divide the rest. This
                    would include the case when they hold the
                    fringres. We cannot say that they hold equal
                    amounts, for then the law would be different in
                    the Seifa (when one claims only a quarter). If
                    the other holds three quarters, he would get it
                    even if he claiimed only three quarters! Rav
                    Hai Gaon wrote that each must swear to get what
                    he holds. Later, he wrote 'and they divide the
                    rest through an oath.' I.e., the entire
                    division depends on swearing. Bahag does not
                    connote like the Rambam. He just cites the
                    Gemara!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Gra (12):</font></b> The Rambam learns from 6a and Rav
                    Mesharshiya (7a), who derived that what is
                    under one's hand, it is as if he alone holds
                    it.
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>MODEH B'MIKTZAS </b></b>(</font><font color='darkblue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Why did Abaye say that he cannot swear because
          he is a thief? No shepherd may swear!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> A Stam shepherd (we do not know about
               him) is disqualified (from testimony and swearing).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> That refers to shepherds who tend their own
          animals (they graze them in others' fields). One who
          tends others' animals is not suspected.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Support:</font></b> If not, we could not give animals to shepherds
          to guard, due to 'do not put a stumbling block in front
          of a blind person (cause someone to transgress)'!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, they are not suspected. There is a Chazakah
               (established nature of people) that one does not sin
               solely for someone else's benefit.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE TEXT OF THE OATH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Reuven swears that he does not own less than
          half...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> He should swear about what he owns, not about
          what he does not own!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Huna):</font></b> He swears that he owns part of it, and
          that he does not own less than half.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> He should swear that he owns all of it (like he
          claimed)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> If so, it would seem improper that Beis Din gives
          to him only half.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> He should swear that he owns half!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> That would seem like a retraction of his claim
          that he owns it all.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> The text of the oath of the Mishnah is also
          like a retraction!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The actual text is 'it is all mine. Since you do
          not believe me about this, I swear that I own part, and I
          do not own less than half.'
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Since each is holding (and is Muchzak in) half,
          why do they swear?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1 (R. Yochanan):</font></b> The oath of our Mishnah is a
          Rabbinic enactment, do deter people from grabbing others'
          property and claiming it. (Another answer is given on
          6a.)
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>PEOPLE SUSPECTED OF STEALING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Since he is suspect that he is trying to steal,
          we should be concerned lest he swear falsely!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> We do not suspect one to swear falsely just
          because we suspect that he tries to steal.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Support:</font></b> If we would suspect that such one may swear
          falsely, one who partially denies a claim should not
          swear!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> There we do not suspect that he tries to
          steal. He merely wants to stall until he can pay, like
          Rabah taught (4a).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Support (of Rejection):</font></b> Rav Idi bar Avin taught that one
          who denies a loan is not disqualified from testifying.
          (We assume that he merely wants to stall.) One who denies
          a deposit is disqualified from testifying (surely he
          intends to steal it).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rami bar Chama's Beraisa):</font></b> The four Shomrim,
          i.e. one who guards for free or for pay, a borrower and a
          renter, swear only when they partially deny and partially
          admit to the claim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why don't we say that since (he denies a deposit
               and) he is suspected to steal, he is suspected to
               swear falsely!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> There he is not suspected of stealing. He merely
          wants to stall until he finds the thief (if it was
          stolen) or finds the animal (if it was lost).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why is one who denies a deposit
          disqualified from testifying? Perhaps he is just
          stalling!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> He is disqualified only when witnesses testify
          that when he denied it he knew that it was in his house,
          or he was holding it.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Rav Huna taught that if a Shomer (one guarding
          a deposit) says that the deposit was stolen and he wants
          to pay, he must swear that it is not in his premises (we
          suspect that he wants to pay for it and keep it).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since we suspect him of stealing, we should be
               concerned lest he swear falsely!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> He does not consider this to be theft. He
          justifies himself, for he will pay for it.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Rav Acha mi'Difti):</font></b> He transgressed 'do not
          covet' (this should disqualify him from swearing)!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> People think that that is only when one
          tries to take the object without paying.
<br>

sjt:
</p><p>
<font><b>2) ONE WHO FALSELY DENIES THAT HE OWES A LOAN</b></font><b>
<br>QUESTION:</b> The Gemara teaches that a person who is found to be Kofer b'Pikadon -- who falsely denies that an object was deposited with him to watch -- becomes Pasul l'Edus, disqualified from serving as a witness. He becomes Pasul l'Edus, however, only when witnesses testify that the Pikadon was in his possession at the time he denied it.
</p><p>
In contrast, one who is found to be Kofer b'Milveh -- who denies that he owes a loan -- remains a valid witness. Presumably, this is true even when witnesses testify that a sum of money equal to the amount of the loan was in his possession at the time he denied it.
</p><p>
Why should he be eligible to give testimony if he has the money with which to pay and yet still refuses to pay? Even though he is denying only a loan and not a Pikadon, he still should be Pasul l'Edus since it is clear that he is not merely stalling for time but that he has no intention to pay back at all! (<b>RITVA</b>)
</p><p>
<b>ANSWER:</b> The <b>RITVA</b> answers that even when a person has the amount of money equal to the amount of the loan, it is assumed that he owes an equal amount to another creditor, and that other creditor is pressing him harder for the repayment of the loan (or, alternatively, it is assumed that he needs the money for any other, more pressing purpose). Therefore, it is assumed that he is merely stalling for time and he indeed intends to pay back the loan.
</p><p>
In contrast, when one denies that he owes a Pikadon, since he is not permitted to use the Pikadon for his own personal use he is presumed to be a thief and has no intention to pay it back at all. (See also <b>SHITAH MEKUBETZES</b> in the name of '<b>MORI</b>.')
</p><p>


<font><b>3) ONE WHO FALSELY DENIES THAT HE OWES A 'PIKADON'</b></font><b>
<br>QUESTIONS:</b> The Gemara teaches that one who is shown to be Kofer b'Milveh -- who denies that he owes a loan -- remains a valid witness and may give testimony. In contrast, one who is found to be Kofer b'Pikadon -- who falsely denies that an object was deposited with him to watch -- becomes Pasul l'Edus, disqualified from serving as a witness. <b>RASHI</b> explains that when a person denies that he owes a Pikadon, it cannot be assumed that he is merely stalling for time ('Mishtamet') and that he intends to pay back later, because one is not permitted to use a Pikadon for his own personal use.
</p><p>
Rashi is bothered by a question: When the Shomer denies owing the Pikadon, perhaps he indeed is stalling for time. Perhaps the Shomer lost the Pikadon through his own negligence and thus is obligated to reimburse the owner with money, and he is stalling for time since he presently has no money with which to pay. Rashi (DH b'Pikadon) answers that if the Pikadon was lost (through Peshi'ah, his own negligence), the Shomer would not stall for time, but he would exempt himself from liability by claiming that the loss was not due to any negligence on his part. Since he did not claim that the Pikadon was lost but rather he denied that he ever received the Pikadon, it is assumed that he intends to steal the Pikadon and keep it for himself. (Although Rashi refers to a Shomer Chinam who is exempt from liability in cases of Geneivah v'Aveidah, the same logic applies to a Shomer Sachar and a Sho'el. When they lose the item and want to delay paying the owner, they should claim that the item was lost through 'Ones,' or that it was 'Meisah Machmas Melachah,' rather than claiming that they never received the item in the first place.)
</p><p>
(a) If a Shomer is considered Kofer b'Pikadon when he denies that he received the item since he did not claim that it was lost, why does the Gemara say later that one who is Kofer b'Pikadon is Pasul l'Edus only when witnesses testify that the item is in his possession? He should be Pasul l'Edus even when the item is <i>not</i> in his possession since he denied the entire Pikadon!
</p><p>
(b) Why would the Shomer consider it an option to claim that the object was lost, in place of denying that he ever received it? If he claims that it was lost, he must make a Shevu'as ha'Shomrim and swear that he was not negligent in watching it. In contrast, if he claims that he never received it, he is Kofer ha'Kol, and one who is Kofer ha'Kol (who denies owing anything) is exempt from making any Shevu'ah! (Otzar Mefarshei ha'Talmud in the name of <b>YAD SHEL SHLOMO</b>.)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI's</b> intention is to explain what the Gemara assumed before it concluded that the witnesses must testify that the Pikadon is in the Shomer's possession in order to make him a Kofer b'Pikadon. At this point in the Gemara, the Gemara still assumed that one who is Kofer b'Pikadon is Pasul l'Edus even when it is not known that the Pikadon is in his possession. For some reason, it is not assumed that he is trying to stall for time. Why did the Gemara assume that he is not trying to stall for time? Rashi explains that the Gemara thought that if he was trying to stall for time, he would not have denied the entire Pikadon, but he would have exempted himself in another way, such as by saying that the item was destroyed in a manner for which he is not liable.
</p><p>
The Gemara rejects this explanation because of Rami bar Chama's Beraisa which teaches that if a Shomer denies owing part of a Pikadon, he must make a Shevu'ah of 'Modeh b'Miktzas' in order to support his claim. The Gemara proves from here that although the Shomer denies ever receiving that portion of the Pikadon, he is still suspected of merely stalling for time so that he can repay his debt eventually. From this ruling it is clear that there is no reason to assume that the Shomer would have claimed that he lost it had he planned on eventually paying it back. Because of this, the Gemara concludes that one who is Kofer b'Pikadon is Pasul l'Edus only when witnesses testify that the Pikadon is in his possession. (This also seems to be the way the <b>RAMBAN</b> here understands the words of Rashi.)
</p><p>
(b) Rashi's explanation follows the position of Rami bar Chama, which the Gemara cites shortly. According to Rami bar Chama, if the Shomer claims that the entire Pikadon was lost, he does <i>not</i> have to make a Shevu'ah. He makes a Shevu'ah only if he claims that part of it was lost and part of it was never given to him. The Gemara proves from a Beraisa that even according to Rami bar Chama, it is assumed that one who is Kofer b'Pikadon is attempting to stall for time unless it can be proven that the Pikadon was in his possession at the time he denied having it. (M. Kornfeld)
</p><p>
The <b>YAD SHEL SHLOMO</b> answers differently. He explains that Rashi is consistent with his opinion expressed in Bava Kama (107a, DH Me'iz u'Me'iz), where he writes that even if a Shomer of a Pikadon is Kofer ha'Kol he still makes a Shevu'ah <i>mid'Oraisa</i>. Hence, the Shomer gains nothing by denying the entire Pikadon, because even if he denies it he still must make a Shevu'ah mid'Oraisa.
</p><p>
However, it is not logical to assume that Rashi requires every case of a Shomer to make a Shevu'ah when denies that he owes a Pikadon and is Kofer ha'Kol. Why should Beis Din believe the claimant's own word that there was a Pikadon in order to require the defendant to make a Shevu'ah? Rather, it appears that Rashi refers to a situation in which both the claimant and the defendant agree that there was a Pikadon, but the defendant claims that the object was lost (or destroyed through 'Ones' or 'Meisah Machmas Melachah') and that he therefore is exempt from any payment. In such a case, those who argue with Rami bar Chama require the defendant to make a Shevu'ah d'Oraisa (Shevu'as ha'Shomrim) that he was not negligent with the object. It is to this Shevu'ah which Rashi refers when he says that the Shevu'ah applies even to a case of Kofer ha'Kol, unlike Rami bar Chama. However, in the case of the Gemara here, when the defendant denies that he ever received a Pikadon, he does not have to swear.
</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>PEOPLE SUSPECTED OF STEALING (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> If one suspected of stealing is suspected to
          swear falsely, why are the following three oaths given?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> One (who fully denies a claim) must
               swear Heses.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Chiya's Beraisa):</font></b> Both the grocer and the
               workers swear and collect from the employer.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Sheshes):</font></b> (If a Shomer who guards for free says
               that the deposit was stolen,) he must make three
               oaths: that he was not negligent, that he did not
               take the deposit for his own use, and that it is not
               in his premises.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Even if we suspect someone of stealing, we are
          not concerned lest he swear falsely.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (to Question 3:j, 5b - Abaye):</font></b> (In our Mishnah,
          even though each is Muchzak in half,) they swear because
          we are concerned lest one of them grabbed the Talis in
          order to collect an old debt (the Talis' owner forgot
          about it and denies it).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If this is the concern (he really is entitled
          to collect), each should get half without an oath!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, we are concerned lest one grabbed it
          to collect a Safek old debt. (Since he himself is unsure,
          he should not collect.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Since we suspect that one grabbed another's
          property to collect mi'Safek (even though this could be
          theft), we should be concerned lest he swear mi'Safek 
          (that he owns, i.e. is entitled to collect half)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Shisha brei d'Rav Idi):</font></b> One will not swear if
          he is unsure, but he does not refrain from taking
          property (to collect his Safek debt).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> If he later realizes his mistake, he can return
          the property. One cannot retract a false oath.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>IF SOMEONE GRABBED THE GARMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (R. Zeira):</font></b> (In our Mishnah) if Reuven grabbed
          the garment in front of Beis Din, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Shimon kept quiet, he admits that it is
                    Reuven's!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If Shimon protested, (this is not admission;)
                    what else could he do?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, he was silent, then protested.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Was his initial silence an admission?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Or, does his protest reveal that his initial
                    silence was only because he felt no need to
                    protest, since Beis Din sees what happened?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Nachman - Beraisa):</font></b> The case is, both are
          holding it. If one holds it alone, ha'Motzi me'Chavero
          Alav ha'Re'ayah (the other must bring a proof to take it
          from him).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If we understand simply that one holds it,
                    obviously, it is his (unless the other brings
                    proof)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, (both were holding it, and)
               Reuven grabbed it in front of Beis Din (and Shimon
               was initially silent, then protested).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection #1 (and Answer #2 to Question 1):</font></b> No. Both were
          holding it, and we told them to split it. They left, and
          came back with Reuven holding it. Reuven says that Shimon
          admitted to him; Shimon says that he rented his half to
          Shimon.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shimon is not believed. He claims that Reuven is a
               thief. Surely he would not rent to him without
               witnesses!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection #2 (and Answer #3):</font></b> When they entered Beis Din,
          Reuven was holding the garment itself, and Shimon was
          holding onto the fringes.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even Sumchus, who holds that when in doubt, we
               divide the money without an oath, admits that
               holding onto the fringes is insignificant.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>MAKING DISPUTED PROPERTY HEKDESH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	If you will say that if when Reuven grabs it in front of
          Beis Din, we take it back (and Shimon gets half), if
          Reuven was Makdish it (declared it Hekdesh), it (Shimon's
          half; some explain, the entire garment) is not Hekdesh;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> If you will say that if when Reuven grabs it in
          front of Beis Din, he keeps it, if Reuven was Makdish it
          without grabbing it, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since a declaration to Hekdesh is like an
               acquisition to a person, this is like grabbing it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since he did not grab it, it is not in his
               Reshus (jurisdiction), it does not become Hekdesh.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  'If a man will make his house Hekdesh' - just
                    like his house is in his Reshus, one can be
                    Makdish only things in his Reshus. This
                    excludes cases like this (a disputed garment).
<br>
<br>

sjt:
<font><b>1) PROPERTY SEIZED IN FRONT OF WITNESSES</b></font><b>
<br>OPINIONS:</b> Rebbi Zeira asks what the Halachah is in the case of two people who come to Beis Din arguing about the ownership of a certain item, and one forcibly removes it from the other's hands in front of Beis Din. The Gemara asks, what exactly is Rebbi Zeira's case? If the person from whom the item was taken remained silent, his silence is a clear indication that he admits it is not his. If he protested, his protest clearly shows that he had no other course of action, and the forced removal of the item from his hands should be inconsequential. The Gemara concludes that Rebbi Zeira refers to a case in which he was silent at first and then protested. Is his original silence an indication of admission, or does his eventual protest show that the only reason why he was silent at first was that he did not realize that the removal of the item from his hands would effect the ruling, since the judges of the Beis Din saw that his opponent grabbed the item out of his hands?
</p><p>
Does Rebbi Zeira's question apply only in a case in which the item was seized from one person's hands in front of Beis Din, or does it apply even when the item was seized from his hands outside of Beis Din (in the presence of witnesses)?
</p><p>
(a) The <b>RAMBAN</b>, <b>RITVA</b>, and others write that Rebbi Zeira's question applies specifically in front of Beis Din. If the item would be seized from him only in front witnesses and he would not protest immediately, his initial silence unquestionably would be a show of admission. This is evident from the Gemara's suggestion that the only reason why he was quiet at first was that the <i>judges</i> saw what happened, which implies that if only witnesses saw what happened, he would not have been silent (unless he admits that the item is not his).
</p><p>
(b) The <b>RASHBA</b> takes the opposite approach. Since the person claims ownership in Beis Din, if the item is seized from his hands and he does not protest, he shows that he forfeits his claim. However, when only witnesses saw the object seized from him (outside of Beis Din), not only is his initial silence not a sign of admission, but even if he remains silent <i>the entire time</i> and does not protest at all, his silence is not a sign of admission. He reasons that since he is not in front of Beis Din, there is no point in protesting.
</p><p>
(c) The <b>SHACH</b> (CM 138:6) seems to present a third opinion. After he cites the other opinions, he concludes that when the item is taken in front of witnesses, the Halachah is the same as when the item is taken in front of Beis Din.
</p><p>
The <b>TUMIM</b> (CM 138:5) does not understand how the Shach can cite the Rishonim and then take a third approach. The Tumim himself rules like the Ramban. (Y. Montrose)
</p><p>


<font><b>2) PROOF THAT ONE WHO IS 'CHASHID A'MAMONA' IS ALSO 'CHASHID A'SHEVU'ASA'</b></font><b>
<br>QUESTIONS:</b> The Gemara proves that one who is 'Chashid a'Mamona' (suspected of stealing) is not 'Chashid a'Shevu'asa' (suspected of swearing falsely) from the fact that Beis Din makes a person swear a Shevu'as Heses even when he is Kofer ha'Kol and is suspected of lying and trying to steal. The Gemara cites further proof from the ruling of Ben Nanas in the case of 'Chenvani Al Pinkaso,' in which the storekeeper and the workers both must swear and collect from the employer, and from the Halachah of Shevu'as ha'Shomrim.
</p><p>
(a) How can the Gemara prove from Shevu'as Heses that one who is 'Chashid a'Mamona' is not 'Chashid a'Shevu'asa'? The Gemara earlier teaches that when a person is Kofer ha'Kol in the case of a Milveh, he remains eligible to serve as a witness (and certainly for making a Shevu'ah) since it is assumed that he merely is stalling for time ('Mishtamet'), and he is not 'Chashid a'Mamona.' (<b>TOSFOS</b> DH Ela)
</p><p>
(b) Why does the Gemara not prove that 'Chashid a'Mamona' is not 'Chashid a'Shevu'asa' from the Shevu'ah d'Oraisa of Ed Echad, which a person must make when he is Kofer ha'Kol (and suspected of stealing, similar to a case of Shevu'as Heses)? (<b>MAHARAM SHIF</b>, <b>MEROMEI SADEH</b>)
</p><p>
(c) The Gemara's second proof is from the Shevu'ah that the Rabanan instituted in the case of 'Chenvani Al Pinkaso,' in which the storekeeper and the workers both collect money on the basis of their Shevu'os. Since the Shevu'os in that case are not merely to retain money but rather to collect money from someone else, the claimants are considered to be 'Chashid a'Mamona,' since the logic of 'Mishtamet' applies only when one is trying to refrain from paying and not when one attempts to take someone else's money.
</p><p>
Why does the Gemara prove that one who is 'Chashid a'Mamona' is not 'Chashid a'Shevu'asa' from this specific case of Shevu'ah? The Mishnah in Shevuos (44b) provides an entire list of Shevu'os that a person swears in order to collect money from someone else. The Gemara should prove from all of those Shevu'os that a person may make a Shevu'ah even when he is 'Chashid a'Mamona'! (<b>TZELACH</b>, <b>TUMIM</b> 91:3)
</p><p>
<b>ANSWERS:</b>
<br>(a) The Rishonim propose a number of answers to this question.
</p><p>
1. The <b>RASHBA</b> writes that the proof from Shevu'as Heses is not a strong proof, and indeed the Gemara could have refuted it in this manner. However, the Gemara knew that there were better proofs, such as the one from Shevu'as ha'Shomrim, and therefore it did not bother to refute this one.
</p><p>
2. <b>TOSFOS</b> and the <b>RAMBAN</b> explain that the Gemara had a tradition that Rav Nachman requires a Shevu'as Heses even in a case where a person denies owing a Pikadon that is in his hands. (Tosfos points out that this seems to contradict the Gemara in Shevuos 40b).
</p><p>
3. The <b>RAMBAN</b> answers further that even though a person does not become Pasul l'Edus when he denies owing a Milveh, perhaps he should become Pasul for making a Shevu'ah on the money that he denies owing. The reason for this is as follows. When a person is prepared to lie in order to stall for time ('Mishtamet'), he also will be willing to swear falsely or testify falsely regarding the payment of that loan. Even if a person who is Kofer ha'Kol is trying to be 'Mishtamet,' he cannot be trusted to make a Shevu'ah that he does not owe that money, since he might swear falsely in order to delay the payment. Nevertheless, a person who is Kofer b'Milveh is allowed to testify that somebody else owes money, because he is not suspected of lying in order to cause money to be taken away from its rightful owner. The logic of 'Mishtamet' only gives a person a reason to refuse payment of something, but not to cause a person who does not owe money to have to pay money (as mentioned in the third question above).
</p><p>
4. <b>RASHI</b> (DH Neima Migu) does not seem to follow any of these approaches. He writes merely that a person who is Kofer ha'Kol is not being 'Mishtamet,' and is therefore 'Chashid a'Mamona.'
</p><p>
How is Rashi's comment to be reconciled with the Halachah that one who is Kofer b'Milveh is a valid witness? The <b>RA'AVAD</b> explains that according to Rashi, when two witnesses testify that a person owes money and he pays the money based on their testimony, he is not considered 'Chashid a'Mamona.' It is only when a person denies money and there are no witnesses to prove him guilty that he is considered 'Chashid a'Mamona' if he is lying. (The <b>RAMBAN</b> also mentions this logic in the name of 'Yesh Mefarshim.')
</p><p>
This is consistent with the explanation of the <b>RITVA</b> cited earlier (see Insights to 3b and 4a). The Ritva explains that a person will deny a loan that he borrowed in front of witnesses only if he plans to delay the repayment and eventually to pay when the witnesses come to testify against him. Therefore, if witnesses testify that he owes money, it may be assumed that he was only stalling for time. However, if there are no witnesses who prove that the borrower was only stalling, it is likely that the borrower indeed is a thief, since he was brazen enough to deny the entire loan. Therefore, it can be proven that one who is 'Chashid a'Mamona' is not 'Chashid a'Shevu'asa' from the Halachah of Rav Nachman who says that one who is Kofer ha'Kol must make a Shevu'as Heses even when no witnesses are present.
</p><p>
(b) The <b>MAHARAM SHIF</b> explains that according to Tosfos, the answer is simple. The case of Shevu'as Heses proves that one who is 'Chashid a'Mamona' is not 'Chashid a'Shevu'asa' only because the Gemara had a tradition that a Shevu'as Heses is made even when a person denies that an object that is known to be in his possession is a Pikadon. Since the object is known to be in his possession, the person who denies it is not stalling for time ('Mishtamet'), and nevertheless he makes a Shevu'ah. However, with regard to Shevu'as Ed Echad, the Torah never specifies that a person must make such a Shevu'ah even when the witness testifies that an object that is known to be in the possession of the defendant is a Pikadon. Perhaps no Shevu'ah is made in such a case because the defendant is 'Chashid a'Mamona,' and one makes a Shevu'ah only when the Ed Echad claims that he owes money due to a <i>loan</i>. Since a person can be 'Mishtamet' when he owes money of a loan, this case does not serve as proof that one who is 'Chashid a'Mamona' is also 'Chashid a'Shevu'asa.'
</p><p>
However, this answer is valid only according to the first two answers to the previous question. According to the answers of the Ramban and Rashi to the previous question, even a person who denies a loan is 'Chashid a'Mamona.' Consequently, whether the Ed Echad makes a person swear that he does not owe money, or whether he makes him swear that an object of his is not a Pikadon, the defendant is 'Chashid a'Mamona' since he was Kofer ha'Kol. The Gemara should be able to prove from Shevu'as Ed Echad that one who is 'Chashid a'Mamona' is nevertheless able to make a Shevu'ah!
</p><p>
The answer to this question seems to be that even according to Rashi, there are times at which a person who is Kofer ha'Kol is not 'Chashid a'Mamona.' Rashi writes that a person who is Kofer ha'Kol is 'Chashid a'Mamona' only because he was brazen enough to deny the entire loan, and therefore he cannot possibly be stalling for time (see Gemara, end of 3a). However, the only reason why denying a charge is considered brazen is that the lender did a favor for the borrower and therefore the borrower should feel guilty denying that he ever borrowed. When a Shomer watches a Pikadon for someone, the owner did no favor for him by giving him the Pikadon, and therefore it does not take brazenness to deny receiving the Pikadon, as Rashi writes in Bava Kama (107a, DH Aval b'Pikadon and DH Me'iz). Therefore, if an Ed Echad testifies that a person received a Pikadon and he does not testify that the Pikadon is presently in the possession of the Shomer, the Shomer is not 'Chashid a'Mamona' and might simply be trying to stall for time in order to pay back the Pikadon that was lost through his negligence (Peshi'ah). It is for this reason that one who is Kofer b'Pikadon is not Pasul l'Edus when witnesses do not testify that the Pikadon was in his possession at the time he denied it. Perhaps it is in only this case that the Torah requires a Shevu'ah to counter the Ed Echad, but not in the case of Kofer b'Milveh.
</p><p>
(In practice, even Rashi will agree that a person must make a Shevu'ah to counter a single witness who testifies that he owes money due to a loan, because the Rabanan instituted that a Kofer ha'Kol is not 'Chashid a'Mamona'; see following Insight. Perhaps such a Shevu'ah even has the severity of a Shevu'ah d'Oraisa, since it is 'k'Ein d'Oraisa.' This would answer the question of Tosfos to 3b, DH b'Chulei.)
</p><p>
(c) The <b>MAHARAM SHIF</b> answers that the Gemara prefers to prove that one who is 'Chashid a'Mamona' is not 'Chashid a'Shevu'asa' from the Shevu'ah of 'Chenvani Al Pinkaso,' and not from the other cases of Shevu'os ha'Nishba'in v'Notlin, because in this case not only is one party suspected of stealing, but there is <i>certainty</i> that one of the two parties is stealing.
</p><p>
The <b>TORAS CHAIM</b> offers a similar answer and adds that this is the reason why Rashi (DH Neima) points out that in this case one of the defendants is <i>certainly</i> ('Vadai') 'Chashid a'Mamona.'
</p><p>


<font><b>3) WHY WOULD A PERSON SUSPECTED OF STEALING <i>NOT</i> BE 'CHASHID A'MAMONA'?</b></font><b>
<br>QUESTIONS:</b> Rebbi Yochanan (5b) maintains that one who is 'Chashid a'Mamona' (suspected of stealing) is not 'Chashid a'Shevu'asa' (suspected of swearing falsely). The Gemara here cites support for his view from the law of Shevu'as Heses: Beis Din makes a person swear a Shevu'as Heses even when he is Kofer ha'Kol and there is suspicion that he might be lying and trying to steal.
</p><p>
Abaye disagrees with Rebbi Yochanan and says that even if one who is 'Chashid a'Mamona' is 'Chashid a'Shevu'asa,' the Shevu'ah of the Mishnah is still appropriate since it may be assumed that the person who seized the Talis intends to collect it as payment for an old loan that he thinks the other person owes him ('Safek Milveh Yeshanah'), and he has no intention to steal it (and therefore he will not swear falsely).
</p><p>
(a) Why does the Gemara prove from the law of Shevu'as Heses that one who is 'Chashid a'Mamona' is not 'Chashid a'Shevu'asa' when it could prove the same thing from the Mishnah itself? The Mishnah states that a person must swear that the Talis belongs to him, which shows that a person suspected of taking a Talis that is not his is trusted to make a Shevu'ah.
</p><p>
One might suggest that the Gemara prefers to prove that he is not 'Chashid a'Shevu'asa' from the case of Shevu'as Heses since the Shevu'ah of the Mishnah might be due to the concern of 'Safek Milveh Yeshanah' as Abaye suggests, and not because he is 'Chashid a'Mamona' and suspected of attempting to steal. However, this answer does not suffice because Abaye's reasoning also explains why Beis Din administers a Shevu'as Heses and does not suspect that the person is trying to steal. The person who denies the claim might have taken the object as payment for an old loan, as <b>TOSFOS</b> (DH Safek) explains. What, then, does the Gemara prove from Shevu'as Heses that it could not prove from the Mishnah?
</p><p>
(b) According to both Rebbi Yochanan and Abaye, it is clear that a person may make a Shevu'ah that he did not take unjustly what is not his. Rebbi Yochanan allows a Shevu'ah because one who is 'Chashid a'Mamona' is not 'Chashid a'Shevu'asa,' and Abaye allows a Shevu'ah because the defendant might be taking the object as payment for a 'Safek Milveh Yeshanah' and he is not 'Chashid a'Mamona.' (Abaye's logic seems to apply to any case in which a person takes money from someone else.)
</p><p>
Why, then, does <b>RASHI</b> write in a number of places (3b, DH v'Hai; Gitin 51b, DH uv'Chulei) that a person cannot make a Shevu'ah to deny a claim that he is taking money unlawfully, since one who is 'Chashid a'Mamona' is 'Chashid a'Shevu'asa'? Rashi writes this not only as the Havah Amina of the Gemara (see Tosfos to 3b, DH Aval) but even according to the Gemara's conclusion (and the Halachah)! (<b>TOSFOS</b> 3b, DH b'Chulei)
</p><p>
<b>ANSWERS:</b>
<br>(a) The Mishnah does not provide conclusive proof that one who is 'Chashid a'Mamona' is not 'Chashid a'Shevu'asa.' The Gemara earlier (2b) explains that in both cases of the Mishnah -- the case of Metzi'ah and the case of a sale (Mekach u'Memkar) -- it is possible that the defendant is taking what is not his because he is Moreh Heter. Since he is not committing an outright act of stealing, there is no reason to suspect that he will swear falsely.
</p><p>
Rashi alludes to this when he writes (5b, DH v'Neima) that the Gemara infers that one who is 'Chashid a'Mamona' is not 'Chashid a'Shevu'asa' from the wording of Rebbi Yochanan and not from the Mishnah. This rule is not evident from the Mishnah itself because, in the case of the Mishnah, the claimants might not be 'Chashid a'Mamona.' (See <b>SHITAH MEKUBETZES</b> in the name of <b>MAHARI ABUHAV</b> and <b>MORI HA'RAV</b>; see also <b>RAN</b> and <b>RAMBAN</b> to 2b.)
</p><p>
(b) As Tosfos implies there (3b, DH b'Chulei), Rashi maintains that although mid'Oraisa a person is not trusted to swear when he is 'Chashid a'Mamona,' nevertheless the Chachamim did permit him to make a Shevu'ah d'Rabanan. There are two possible reasons for this. One possibility is that the Chachamim saw that in later days people recognized the severity of swearing falsely more than they recognized the severity of stealing and therefore they may be trusted to swear. Alternatively, according to Abaye, the Chachamim took into account the minute possibility that the suspected thief is not really a thief but is merely attempting to reclaim a 'Safek Milveh Yeshanah.'
</p><p>
All of the proofs cited by the Gemara to show that a person may swear even when he is 'Chashid a'Mamona' are from Shevu'os which the Rabanan instituted and which the Torah does not require: the Shevu'ah of the Mishnah, a Shevu'as Heses, Shevu'os of Nishba'in v'Notlin, and the Shevu'ah of a Shomer who swears that the item is not in his possession.
</p><p>
Tosfos there rejects Rashi's approach for two reasons. He proves from the Gemara in Shevu'os that the Chachamim may apply Halachos which normally apply only to Shevu'os d'Oraisa when an Ed Echad testifies that the object that a person is holding belongs to someone else. (This question on Rashi is addressed earlier in Insights to 5b.)
</p><p>
Tosfos also challenges Rashi's approach from the Shevu'ah of a Shomer who swears that he was not 'Shole'ach Yad b'Pikadon,' which is a Shevu'ah d'Oraisa. Rashi (here, DH she'Lo Shalachti, and on 5a, DH v'ha'Gazlan) answers this question by pointing out that 'she'Lo Shalachti Bo Yad' does not mean that 'I did not take the Pikadon for myself' (or that 'I did not eat it,' as Rabeinu Tam explains in Tosfos DH Shevu'ah). Rather, it means that 'I did not use the Pikadon without permission.' If the Shomer uses the Pikadon without permission, then even if he returns it to its former place he becomes obligated from that point on to pay for any damage, even if the object becomes damaged by an Ones. Therefore, the only practical difference between when a Shomer is Shole'ach Yad and when he is not exists when the object is destroyed by an Ones. If he was Shole'ach Yad, he must compensate the owner even though he is a Shomer Chinam (or Shomer Sachar). However, if the Shomer denies owing compensation to the owner for an Ones, he might be attempting to stall for time ('Mishtamet'), since the payment that he owes is like a debt and not a specific object, and thus he is considered to be denying a debt and not a specific object.
</p><p>
Why, though, does he not become 'Chashid a'Mamona' at the moment at which he used the Pikadon and was Shole'ach Yad? At that moment, he certainly was stealing, and thus he should be 'Chashid a'Mamona.'
</p><p>
The <b>RAMBAN</b> here answers that a Shomer's misappropriation of a Pikadon does not make him 'Chashid a'Mamona' because he is Moreh Heter and says that he will return it to its place as soon as he is finished using it.
</p><p>
<br>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> A case occurred in which Reuven and Shimon were
          fighting over a bathhouse. Each said 'it is mine.' Reuven
          was Makdish it. R. Chananya, R. Oshaya and all the
          Chachamim stopped using it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Oshaya asked Rabah to ask Rav Chisda about it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Hamnuna:</font></b> A Mishnah teaches the law!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If there is a Safek Bechor
                    (firstborn male) person or animal, whether
                    Tahor or Tamei (there is a Mitzvah to redeem a
                    Bechor donkey), ha'Motzi me'Chavero Alav
                    ha'Re'ayah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Beraisa):</font></b> One may not shear or work with a
                    Safek Bechor.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>If a Kohen took a Safek Bechor, we do not force
                    him to return it, for ha'Motzi me'Chavero Alav
                    ha'Re'ayah (perhaps it is truly a Bechor). Even
                    if he did not take it, one may not shear or
                    work it!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection (Rabah):</font></b> Perhaps we force a Kohen who took a
          Safek Bechor to return it. A Safek Bechor is forbidden
          because Kedushas Bechor comes automatically. (However,
          one can be Makdish a bathhouse only if it is in his
          Reshus.)
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>MA'ASER OF ANIMALS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Support (for Rabah - R. Chananya - Beraisa):</font></b> Sefekos
          (perhaps they are exempt  from Ma'aser, e.g. they belong
          to a Kohen) are tithed with other animals.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a Kohen who took a Safek may keep it, how could
               the Yisrael make it Ma'aser? He exempts his
               obligation with the Kohen's property!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection (Abaye):</font></b> Perhaps a Kohen who took a Safek he
          must return it. The case is, there are only nine other
          animals. In any case, there is no problem:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the Safek really belongs to the Yisrael, it can
               truly be Ma'aser;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it really belongs to the Kohen, the Yisrael has
               no obligation to take Ma'aser!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Retraction (Abaye):</font></b> I erred. A Safek is not tithed:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If an animal already counted (during
               tithing) jumped back into the pen and was mixed with
               the uncounted animals, they are all exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Sefekos could be tithed, we would be able to
               tithe without any problem:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If 10 animals leave the pen and none of them
                    were counted before, the 10th is truly Ma'aser;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If one of them was already counted, the 10th is
                    not really Ma'aser, but all are exempted due to
                    Minyan ha'Ra'uy (they were counted when there
                    were 10 animals in the pen that needed to be
                    tithed).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>(Rava):</font></b> Minyan ha'Ra'uy exempts (even if 
                    Ma'aser is not taken, e.g. the tenth animal
                    died before it was called Ma'aser).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Conclusion:</font></b> Rather, we must say that the Torah
               requires a definite tenth. A Safek (perhaps it was
               already counted) cannot be Ma'aser (even if really,
               it was not already counted);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Also a Safek (perhaps it is the Kohen's) cannot
                    be Ma'aser (even if in truth it is the
                    Yisrael's)!
<br>

<p>

sjt:
</p><p>
<font><b>4) THE PROOF OF THE GEMARA FROM THE CASE OF 'SAFEK BECHOR'</b></font><b>
<br>QUESTION:</b> The Gemara asks what the Halachah would be when one of two people holding on to a Talis is Makdish the Talis. If the law in a case in which one person grabs the Talis away from the other permits him to keep the Talis (because the silence of his opponent is considered admission that the Talis is not his), what is the Halachah when one of the contestants is Makdish the Talis? Is this considered like grabbing it away (such that the silence of his opponent is considered admission that it is not his) or not?
</p><p>
The Gemara (7a) asks a similar question about a bathhouse over which two people were quarreling, and one of them was Makdish it. Is it Kadosh or not? Rav Hamnuna attempts to prove that it <i>is</i> Kadosh from a Mishnah that states that a Safek Bechor is Kadosh and therefore is Asur b'Gizah v'Avodah, because if a Kohen would seize it he would be permitted to keep it. (The Gemara assumes at this point that the Kedushah of a Bechor stems from the fact that it belongs to the Kohen and is his property.) The Gemara rejects this proof and says that the Kedushah of a Bechor is independent and is not related to the Kohen.
</p><p>
When the Gemara says that when one of the claimants grab the Talis from the other (and the other is silent at first and then later protests), he is allowed to keep it, the Gemara explains that the silence of the opponent at the time the Talis was seized from him is considered an admission to the fact that the Talis is not his. (Some Rishonim understand that his silence is not an admission that the other person owns it, but it is a sign of agreement to give it to him <i>from now on</i>.)
</p><p>
Presumably, when the Gemara says that declaring the Talis as Hekdesh is comparable to physically grabbing the Talis, it is also addressing the question of whether or not the silence of the opponent is considered an admission. The Gemara is discussing a situation in which the opponent was silent at first and then protested. How, then, can the Gemara prove from the case of a Safek Bechor that silence to a declaration of Hekdesh is considered an admission that the Talis does not belong to him? In the case of a Safek Bechor, neither the Kohen nor the Yisrael knows whether the animal is Kadosh or not (see Rashi, DH Echad Bechor Adam)! In such a case, the silence of the Yisrael cannot be an admission that the animal does not belong to him! Moreover, in the case of a Safek Bechor, the animal is Kadosh even if the Kohen never says a word, and even if the Yisrael protests the Kedushah. How, then, can the Yisrael's silence be considered an admission?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (6a, DH Hikdishah) explains that although the case of 'Hikdish Talis' involves only a question of whether Hekdesh is like Hoda'ah, admission, the case of the bathhouse which one of the claimants was Makdish involves an additional question. When two people argue over the ownership of a bathhouse, the Halachah is 'Kol d'Alim Gavar' (the stronger one prevails), according to Tosfos, since neither one is in physical possession of the disputed bathhouse. Therefore, even if the silence of the opponent is not considered an admission, perhaps the act of making it Hekdesh is considered a way of overpowering the other party. For that reason, just as when one of the claimants takes possession of the bathhouse for himself it is considered fully his and he may be Makdish it, so, too, when he is Makdish it without grabbing it, it is considered fully his and it becomes Kadosh. (The act of grabbing and the Kedushah are considered to occur simultaneously, 'Ba'in k'Achas'; see <b>RITVA</b>, end of DH Im Timtzi Lomar.)
</p><p>
It is this question which the Gemara attempts to resolve from the Halachah of Safek Bechor. The Gemara thinks that the Kedushah of the Bechor stems from the ownership of the Kohen, and since if the Kohen overpowers the Yisrael and takes the Bechor it becomes his, therefore even if he does not physically overpower the Yisrael to take the Bechor, the Bechor becomes Kadosh because of the Kohen's rights to ownership.
</p><p>
How is this related to the question of the Gemara in the case of one who is Makdish the Talis? Tosfos explains that the Gemara's proof, that one's silence when his opponent makes the Talis Hekdesh is considered an admission, is from the Gemara's conclusion (7a) in the case of the bathhouse. The Gemara there concludes that the bathhouse does not become Kadosh. From this ruling two things are evident: First, making something Hekdesh is not considered a form of overpowering one's opponent, even where the Halachah is 'Kol d'Alim Gavar.' Second, the silence of one of the claimants is not considered an admission when the other party is Makdish the object.
</p><p>
(b) The <b>RITVA</b> writes that the Gemara intends simply to prove whether a declaration of Hekdesh has the same power as an act of physically grabbing the item. Although, with regard to the Safek Bechor, Hekdesh cannot prove the ownership of the Kohen in the same way that it can prove the ownership of one of the claimants of the Talis, nevertheless it is clear from the case of Safek Bechor that in a situation where seizure can acquire an object for someone, Hekdesh also can take effect. Similarly, with regard to an object in doubtful ownership such as the Talis, if grabbing the object can determine the ownership of the object, then so, too, Hekdesh can effect. (The proof is not absolute, but rather 'Dumya b'Alma Nakat,' as the Ritva writes.)
</p><p>
(c) The <b>CHIDUSHEI HA'RAN</b> explains that if an act of grabbing the Talis can determine the ownership of the Talis, this shows that even an act which does not provide clear proof of ownership (since the opponent, although silent at first, eventually protested) can determine the true owner of the Talis. The fact that one's act of grabbing the Talis determines that he is the rightful owner demonstrates that when the two claimants entered Beis Din holding a Talis together, their joint possession of the Talis was not taken as an indication that each of the parties definitely owns half of the Talis (as the Gemara mentions on 3a; see Insights to 2b). Rather, when two people enter Beis Din holding a Talis together, the ownership of the entire Talis is in question in the eyes of the court. Since it is possible that the entire Talis belongs to the one who later grabs it, the questionable proof of silence in the face of seizure suffices to determine that the one who seized it is the true owner.
</p><p>
The Gemara therefore asks what the Halachah will be if one of the claimants holding the Talis is Makdish it. Does the Hekdesh take effect out of doubt (mi'Safek) because the one who was Makdish it is a Safek owner, and once it takes effect mi'Safek it must be removed from the hands of the opponent since it might be Kadosh? Perhaps, on the contrary, since the one who was Makdish it is not a true owner and could not prove in court that the Talis belongs to him, it is considered 'Eino b'Reshuso' and the Hekdesh does not take effect at all. (This is consistent with the Girsa in our text of the Gemara at the end of 6a which says that one can be Makdish only something that is 'b'Reshuso,' in his possession. Many of the Rishonim do not have this Girsa.)
</p><p>
According to this explanation, the proof from Safek Bechor is clear. In that case, the Kohen has a Safek ownership of the animal, and yet the animal can become Kadosh mi'Safek by virtue of his rights of ownership (even though his ownership cannot be proven in court).
</p><p>
This also seems to be the approach of <b>RASHI</b> (see Rashi to 6b, end of DH l'Olam, and DH ha'Motzi me'Chaveiro).
</p><p>


<font><b>5) IS A 'ROV' CONSIDERED DEFINITE?</b></font><b>
<br>QUESTION:</b> The Gemara discusses a case in which an animal which was already designated as Ma'aser Behemah jumped back into the pen of uncounted animals and became lost among them. In such a case, all of the animals are exempt from Ma'aser Behemah because the Torah requires that the animal of Ma'aser be Ma'aser Vadai, definite Ma'aser. The <b>SHITAH MEKUBETZES</b> explains that one might have thought that the owner may rely on the 'Rov' and continue to count the animals and designate every tenth animal as Ma'aser, since all but one of the animals were not counted yet. The Shitah Mekubetzes adds that whenever the Halachah <i>requires</i> that something be definite, one may not rely on the Rov. A Rov does not establish fact; it merely tells one to conduct himself in a case of doubt.
</p><p>
The Gemara in Kidushin (73a) discusses the Torah's prohibition against a Mamzer joining the Jewish people, the 'Kahal Hash-m' (Devarim 23:3). The Gemara explains that the Torah prohibits a Mamzer from marrying into a 'Kahal Vadai,' a 'definite congregation' (a reference to a Jew of pure lineage, excluding a Shetuki and others of questionable lineage; see Kidushin there). Since the identity of a person's father is always based only on Rov and is never known for certain, it is apparent that the condition of 'Kahal Vadai' means a congregation of people who are from the definite congregation of Hash-m as <i>based on the Rov</i>.
</p><p>
The <b>SHEV SHEMAITSA</b> (2:15) asks that the Gemara in Kidushin contradicts the explanation of the Shitah Mekubetzes here. According to the Shitah Mekubetzes, how can there ever be a 'Kahal Vadai' if paternal lineage is established only based on Rov?
</p><p>
<b>ANSWERS:</b>
<br>(a) The Shev Shemaitsa answers that the statement of the Shitah Mekubetzes was said only with regard to a 'Ruba d'Isa Kaman.' 'Ruba d'Isa Kaman' refers to a situation in which the Rov is physically in our presence. For example, when one piece of Tereifah meat became mixed up with two pieces of kosher meat, the Rov is in front of us. Similarly, when there is a doubt about whether the animal being counted as Ma'aser is from those not yet counted or from those already counted, the Rov cannot determine from which set this animal comes. Both possibilities are equally likely. This is in contrast to a 'Ruba d'Leisa Kaman.' A 'Ruba d'Leisa Kaman' refers to a majority in <i>frequency</i>; something usually occurs in this manner. There is no tangible item in front of us, however, which presents that Rov. For example, there is a Rov that 'most animals are not Tereifos.' This Rov is not related to any tangible item in front of us; rather, this Rov states a fact in the frequency of the occurrence of mortal blemishes in animals (i.e. that most animals are born healthy). In such a case, the Shitah Mekubetzes would agree that the Rov establishes the reality, and therefore a 'Kahal' can be a 'Kahal Vadai' based on such a Rov.
</p><p>
The <b>KEHILOS YAKOV</b> (#7) writes that he never understood the logic behind the Shev Shemaitsa's answer. The reality of a 'Ruba d'Isa Kaman' is the same as the statistics of a 'Ruba d'Leisa Kaman.' Both have the same chance of happening. Why should there be a difference between a situation which has a physical representative of the statistical probability ('Isa Kaman') and one that is purely statistical in nature ('Leisa Kaman')?
</p><p>
<b>RAV ELIMELECH KORNFELD</b> shlit'a suggests that the Shev Shemaitsa means that there is a fundamental difference between the two types of Rov. In the case of the animal of Ma'aser Behemah (Ruba d'Isa Kaman), it is known <i>as a fact</i> that an animal that was already counted jumped back into the herd. The fact that most of the animals were not yet counted does not remove the doubt that each animal may be the one that was already counted. However, in the case of 'Kahal Vadai' (Ruba d'Leisa Kaman), there is no evidence that the man assumed to be one's father is not really his father. In a case where no doubt presents itself in front of us, the Shitah Mekubetzes would agree that a Rov creates a situation of 'Kahal Vadai.'
</p><p>
(b) <b>REBBI AKIVA EIGER</b> (Teshuvos, 2:108) answers that the Shitah Mekubetzes agrees that when a Rov has already been used to determine other Halachic matters that do not need a definite status (for example, in the case of the Rov that tells us that a father is the real parent of his son, the Rov also tells us that the father is obligated to perform a Bris Milah for his son, and that the son is obligated to honor his father, etc.), the Rov becomes a certainty. He proves this from the case of Ma'aser Behemah itself. According to the Shitah Mekubetzes, how can one ever perform the Mitzvah of Ma'aser Behemah when it is possible that there is an animal among those counted which is a Tereifah? The answer is that there is a Rov that most animals are not Tereifos. The fact that we rely on this Rov, despite the fact that Ma'aser Behemah needs to be Ma'aser Vadai, shows that even the Shitah Mekubetzes himself agrees that a Rov which establishes itself once turns into a Vadai.
</p><p>
A similar explanation is given by the <b>HAFLA'AH</b> in Kesuvos (15a). Rov is not applied to cases of monetary judgments ('Ein Holchin b'Mamon Achar ha'Rov'; see Bava Kama 27b). However, there are many monetary cases which apparently do follow a Rov. One example is the case of Ones u'Mefateh (rape and seduction), where the guilty man must pay a fine to the father of the girl involved. Since it is known that the girl's father is her real father only because of a Rov, why does the criminal not invoke the principle that Rov does not apply to monetary judgments and say that he does not owe money to the person who claims, based on Rov, to be the girl's father? The Hafla'ah explains that apparently once a Rov is used, it is considered factual. However, the Hafla'ah adds that it appears that the Rishonim do not agree with this approach. (See Hafla'ah at length. See also Kehilos Yakov 7:3 for an additional answer.) (Y. Montrose)
</p><p>



</p><p>

loi:
<b>
<br></b><b><b><font color='blue'>1) </font></b><font color='blue'>SAFEK BECHOR BEHEMAH</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 Hamnuna):</font></b> If a Kohen took a Safek Bechor, we do
               not force him to return it, for ha'Motzi mi'Chavero
               Alav ha'Re'ayah (perhaps it is truly a Bechor).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Rabah):</font></b> Perhaps we force the Kohen to
               return it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Support (R. Chananya - Beraisa):</font></b> (A Seh used to
               redeem) a Safek (Peter Chamor, i.e. firstborn
               donkey) is tithed with other animals.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If a Kohen who took a Safek may keep it, how
                    could a Yisrael make it Ma'aser? He exempts his
                    obligation with the Kohen's property!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection (Abaye):</font></b> Perhaps if a Kohen took a Safek
               he must return it. The case is, there are only nine
               other animals. Even if the Safek really belongs to
               the Kohen, the Yisrael has no obligation to take
               Ma'aser!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Retraction (Abaye):</font></b> This is wrong. A Safek is not
               tithed.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 102b:</font></b> A case occurred in which Levi rented a
               bathhouse to David for 12 Dinarim for the year, a
               Dinar per month, and it became a leap year. R.
               Shimon ben Gamliel and R. Yosi ruled that David pays
               half for the added month.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'>(Shmuel):</font></b> This is when they come to Beis Din in the
               middle of the 13th month. If Levi said at the
               beginning of the month 'you must pay extra for this
               month', David must pay for the entire month. If Levi
               did not claim until the end of the month, David is
               exempt.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> Shmuel is unsure whether the latter phrase is
               binding, so we follow Chazakah. Levi is Muchzak in
               his property. David cannot use it without proof.
               David is Muchzak in his money. He need not pay for
               what he used without proof.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> Levi is Muchzak in his land (even if
               Levi claims at the end of the month, David must
               pay).
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Kesuvos 19b (Beraisa):</font></b> If David and Levi signed a
               document and died, and two witnesses recognize the
               signatures but say that David and Levi were coerced,
               children or invalid witnesses at the time, they are
               believed.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question:</font></b> Why do we rely on David and Levi more than
               the latter witnesses?
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer (Rav Nachman):</font></b> The latter witnesses counter
               the former two, and we leave the money (or property)
               in its Chazakah with its current owner.
<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 Bechoros 2:6):</font></b> If a cow gave birth
               to what resembles a horse or camel, even if it has
               some signs of a cow, it is a Safek Bechor.
               Therefore, the owner eats it. If the Kohen seized
               it, we do not take it from him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> Rav Hamnuna said that if the
                    Kohen seized it, we do not take it from him. If
                    the Kohen did not seize it, one may not shear
                    it or work with it. However, Rabah rejected
                    this, and Rav Chananya supported him from a
                    Beraisa! It seems that the Rambam explains that
                    Rabah gave a mere Dichuy (he showed that one
                    <i>could</i> explain differently; he does not
                    necessarily disagree). The support is not so
                    solid. Even though we do not take it from him,
                    since it is in the Yisrael's Reshus and
                    ha'Motzi mi'Chavero Alav ha'Re'ayah, it is
                    considered the Yisrael's money, and he can
                    exempt himself through it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ri Korkus (DH Od):</font></b> Rabah gave a mere Dichuy. He
                    was unsure, so we rely on Rav Hamnuna, who was
                    sure. We do not rely on Rav Chananya's support,
                    for it is not so solid.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rashba (1:311):</font></b> The Gemara connotes that the
                    Halachah follows Rabah, but we must strive to
                    defend the Rambam. The Gemara concludes that
                    ha'Motzi mi'Chavero Alav ha'Re'ayah. This
                    connotes that either side can be Muchzak, like
                    it says in Kesuvos (76b). The Yisrael is
                    Muchzak. Rabah gave a mere Dichuy; he did not
                    say 'there, if the Kohen takes...', rather,
                    'really, I can say...' He shows that the Isurim
                    of shearing and working with it do not depend
                    on whether or not we take it from a Kohen who
                    seized it. Rav Chananya surely holds that we
                    take it from the Kohen, but the Halachah
                    follows Rav Hamnuna against Rav Chananya.
                    Firstly, the Mishnah connotes like him. Also,
                    whenever Amora'im argue and the Gemara did not
                    resolve it, we do not take from one who seized.
                    Rav Hamnuna can reject the proof from the
                    Beraisa, for an automatic Kedushah is
                    different. Even though the Yisrael owned the
                    mother, he is no more Muchzak in the child than
                    the Kohen is. This is like one who traded a cow
                    for a donkey (through Chalipin), and we do not
                    know if the cow gave birth before or after the
                    sale. However, there both have Drara d'Mamona.
                    Here neither has Drara d'Mamona, therefore, Kol
                    d'Alim Gevar (whoever overpowers will take it).
                    However, regarding a Safek Peter Chamor
                    (firstborn donkey), the Kohen has no rights in
                    it itself. The Seh used to redeem it is Muchzak
                    to the Yisrael, so if the Kohen seized it, we
                    take it from him. Abaye retracted to say that
                    there is no support for or question against Rav
                    Hamnuna. Therefore, the Halachah follows Rav
                    Hamnuna.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Lechem Mishneh:</font></b> The Rambam learns from Kesuvos
                    20a. When two pairs of witnesses contradict
                    each other, we leave the property in its
                    Chazakah. Rashi says that we do not tear the
                    document, for if one seized, he keeps it.
                    Tosfos asked why this is different than a Safek
                    Bechor; if the Kohen seized it, we take it from
                    him. Tosfos gave a weak answer. Due to this
                    question, the Rambam concluded that we do not
                    take it from the Kohen.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (5:3):</font></b> Any Safek Bechor should graze until it
               gets a Mum, and the owner eats it. If the Kohen
               seized it, we do not take it from him. 
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Bikurim 11:19):</font></b> If there is a Safek
               whether or not a person must be redeemed, he is
               exempt, for ha'Motzi mi'Chavero Alav ha'Re'ayah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Radvaz:</font></b> Regarding Safek Bechor Behemah, the
                    Rambam rules that if a Kohen seized it, we do
                    not force him to return it. The conclusion in
                    Bava Metzi'a connotes that we force him to
                    return it, and Tosfos and the Rosh rule like
                    this; elsewhere, I defended the Rambam. The
                    Rambam did not say whether or not we force him
                    to return Safek redemption of Bechoros of
                    people and donkeys. It seems that he agrees
                    regarding people, for the Kohen did not seize
                    the matter about which there is a Safek.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Machaneh Efrayim (Zechiyah u'Matanah 8):</font></b> The
                    Rambam rules that if a Kohen seized a Safek
                    Bechor Behemah, we do not force him to return
                    it because he holds that Tovas Hana'ah (the
                    right to choose to which Kohen he will give) is
                    not Mamon (a monetary privilege of the giver).
                    We do not force him to return it only regarding
                    Terumah and Matanos Kehunah, for once they are
                    separated they are property of Kohanim. The
                    five Sela'im for Pidyon ha'Ben are the father's
                    money until he gives them. The Kohen has no
                    rights to them, just there is a lien on the
                    father's property. If he seized them, it is
                    theft. The father can say that he will give to
                    another Kohen. If a Kohen seized Safek Matanos
                    Kehunah, he can say that he seized money of
                    Kohanim. If the Yisrael wants to take it back,
                    he is ha'Motzi mi'Chavero Alav ha'Re'ayah (he
                    must prove that they are not Matanos).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Bava Metzi'a 1:13):</font></b> Really, if a Kohen took a
               Safek he must return it. Seizure helps only for one
               who has a definite claim. Rav Nachman rules (when
               there is a Safek about the extra month) that seizure
               does not help because the one who seizes is unsure.
               Even the opposing opinion does not say that seizure
               helps. Rather, being quiet until the end of the
               month is admission that he rented it for the entire
               year.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (Bechoros 1:15):</font></b> The Gemara did not resolve
               whether one may redeem a Peter Chamor with a baby
               that does not resemble its mother. If the (baby)
               donkey died before giving it to the Kohen, he is
               exempt. If he gave it to the Kohen and then the
               donkey died, the Kohen keeps it, for ha'Motzi
               mi'Chavero Alav ha'Re'ayah. We do not take from one
               who seized b'Reshus (with permission), but seizure
               (without Reshus) by force does not help.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Ramban (Hilchos Bechoros 3a):</font></b> We concluded in Bava
               Metzi'a that if the Kohen seized a Safek Bechor, we
               take it from him.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 315:1):</font></b> One need not give a Safek
               Bechor to a Kohen. The owner keeps it until it gets
               a Mum, and eats it. One may not shear it or work
               with it. If the Kohen seized it, we do not take it
               from him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that we take it from him. This is the
               Halachah. Even if the Yisrael gave it mistakenly,
               e.g. he thought that he is obligated to give it, and
               later found out that he did not need to, the Kohen
               must return it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (1):</font></b> The Kohen's seizure does not help, for
                    he was not allowed to seize it due to the
                    Safek.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (2,3):</font></b> The first opinion holds that after
                    seizure, the Kohen is Muchzak and the Yisrael
                    is ha'Motzi mi'Chavero. The latter opinion
                    holds that the Yisrael was Muchzak in Tovas
                    Hana'ah, i.e. to give it to any Kohen he
                    wanted, therefore, he is Muchzak in the animal,
                    wherever it is, and the Kohen is the Motzi.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (2):</font></b> Most Poskim hold that we take it from
                    the Kohen. Some say that the Hava Amina in Bava
                    Metzi'a was that we discuss a Safek Bechor, but
                    the conclusion is that we discuss a Safek Peter
                    Chamor. The Kohen has no rights in the donkey,
                    and the Seh used to redeem it is Muchzak to the
                    Yisrael, so if the Kohen seized it, we take it
                    from him him. The Rambam holds that ha'Motzi
                    mi'Chavero Alav ha'Re'ayah applies to all
                    Sefekos. After one seized, the other is
                    ha'Motzi. Bava Metzi'a 105b proves this. Rav
                    Nachman disagrees only due to the Chazakah of
                    land. The Rambam's opinion is primary.
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>ONE MAY TAKE THE LAW INTO HIS OWN HANDS </b></b>(</font><font color='darkblue'>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE DOUBTFUL CASES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav Acha mi'Difti):</font></b> What are the Sefekos (in
          the above Beraisa)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They are Safek Bechoros.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> '(The tenth) will be Kodesh.' If it is
               already Kodesh, it cannot become Ma'aser!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, they are animals designated to redeem
          Safek Bechor donkeys.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> If a Yisrael has 10 Safek Bechor
               donkeys, he sets aside 10 sheep or goats and tithes
               them. They all belong to him.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CAN ONE BE MAKDISH PROPERTY NOT IN HIS RESHUS?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> What was the conclusion about the bathhouse?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (R. Chiya bar Avin):</font></b> If one was Makdish property
          that he cannot obtain through Beis Din, it is not
          Hekdesh.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Inference:</font></b> If he can obtain it through Beis Din, he can
          be Makdish it, even before receiving it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> R. Yochanan taught that if property was stolen
          and the owner did not despair, neither the owner nor the
          thief can make it Hekdesh;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The thief cannot, because it is not his. The owner
               cannot, because it is not in his Reshus (even though
               he can obtain it through Beis Din)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The bathhouse is not movable. Rather, it is land.
          If one can obtain land through Beis Din, it is as if it
          is in his Reshus.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>HOW WE SPLIT THE GARMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Tachlifa bar Ma'arava - Beraisa):</font></b> If two are holding
          a garment, each gets up to where he is holding, and they
          divide the rest evenly.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Avahu gestured to him that they must swear (Tosfos -
          to receive at all; Rambam - to divide the rest).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah says that they divide (equally). It
          does not say that each gets up to where he is holding
          (and they divide the rest). What is the case?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> Each is holding it by the fringes.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Inference (Rav Mesharshiya):</font></b> If one grabs three fingers
          by three fingers of a garment (given for Kinyan
          Chalipin), this fulfills 'he gave to his fellowman' (he
          acquires), for we consider the garment to be cut (and he
          owns what he is holding).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why is this different than Rav Chisda's law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> If a man gave a Get to his wife, but
               he is holding a string attached to it, she is
               divorced only if he is unable to pull it out of her
               hands.
<br>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Divorce requires 'Kerisus (separation).' If he
          can retrieve it, he is still clinging;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chalipin requires giving. This was done.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rava):</font></b> If they hold a golden garment, we divide it.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the gold is in the middle.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Still, this is obvious!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, it is closer to one than to the
          other.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that we cut the garment
               widthwise (i.e. along the middle between where they
               are holding);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rava teaches that this is not so. The one further
               from the gold can suggest we cut it lengthwise. (The
               Gemara at the top of Daf 8a suggests another answer
               to this question.)
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>TWO HOLDING A DOCUMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa #1 - Rebbi):</font></b> If a lender and borrower are
          holding the loan document, and each claims 'I dropped
          it', we validate the document;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Shimon ben Gamliel says, they divide it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If it came to the judge, he never gives it back;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Yosi says, it remains in its Chazakah.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Rebbi said 'we validate the document.' This implies that
          the lender collects the full value.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Does Rebbi argue with our Mishnah (which says
          that they divide it)?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> If the document was validated, all agree
          that they divide it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue about a document that was not validated.
               Rebbi says that if a borrower admits that a document
               was written for a loan (but claims that he paid it),
               the lender must validate the document;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  (Since they both hold it), after it is
                    validated, he collects half;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question:</font></b> Why must he validate it?
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer:</font></b> An invalidated document is worthless.
                    If our only source to accredit it is the
                    borrower, he says that it was paid!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Gamliel holds that if the borrower
               admits that the document was written properly, the
               lender need not validate it. (Since both hold it, he
               collects half.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa says that if it came to the judge,
          he never gives it back. Why is it different in this case?
<br>
<br>

sjt:
<font><b>1) PROOF THAT 'SAFEK D'ORAISA L'CHUMRA' IS 'MIN HA'TORAH'</b></font><b>
<br>QUESTION:</b> The Gemara earlier quotes a Beraisa which states that the 'Sfeikos' ('doubtful ones') go into the pen to be counted for Ma'aser Behemah. The Gemara now seeks to clarify exactly what kind of doubtful animal the Beraisa discusses. The Beraisa cannot be referring to doubtful firstborn animals (Safek Bechor), because the verse, 'Yiheyeh Kodesh' -- 'it will be holy' (Vayikra 27:32), teaches that only an animal which can become Kadosh as Ma'aser is counted towards Ma'aser Behemah, and not an animal which may already be holy, such as a Safek Bechor.
</p><p>
The <b>SHEV SHEMAITSA</b> (1:3) writes that the Gemara here seems to support the view of the <b>RAMBAN</b> and <b>RASHBA</b> in their famous argument with the <b>RAMBAM</b> with regard to the status of the principle of 'Safek d'Oraisa l'Chumra.' This principle states that in situations of doubt about a Torah law, one must conduct himself stringently (l'Chumra). Is the principle of 'Safek d'Oraisa l'Chumra' a Halachah d'Oraisa (i.e. the Torah mandates that the doubt be treated stringently) or is it a Takanah d'Rabanan (i.e. the Rabanan enacted that one act stringently in a case of doubt, while mid'Oraisa one may act leniently)? (See Insights to Kidushin 73:1 and Chulin 11:3.)
</p><p>
The Rambam (Hilchos Tum'as Mes 9:12, Hilchos Avos ha'Tum'ah 16:1) rules that the general rule of 'Safek d'Oraisa l'Chumra' is only mid'Rabanan. The Torah itself permits an item that is not certainly forbidden, but about which there is a doubt. The Chachamim, however, enacted a decree that whenever there is a doubt about an Isur d'Oraisa, one must conduct himself stringently.
</p><p>
The Ramban and Rashba maintain that the principle of 'Safek d'Oraisa l'Chumra' is a Torah law. The Shev Shemaitsa points out that the Gemara here supports their opinion, because it says that the verse of 'Yiheyeh Kodesh' excludes a Safek Bechor from being counted towards Ma'aser Behemah since it is already Kadosh. The only way that a Safek Bechor can have Kedushah is if the Torah itself rules 'Safek d'Oraisa l'Chumra.' According to the Rambam, how can the Torah consider a Safek Bechor to be Kadosh? Since 'Safek d'Oraisa l'Chumra' is only a Takanah d'Rabanan, by Torah law the animal is not Kadosh at all.
</p><p>
<b>ANSWER:</b> The <b>RASHASH</b> in Yevamos (13a) writes that there is no question on the Rambam's opinion from this Gemara. Although the Rambam rules that the animal is permitted to be used for ordinary purposes, it still has some element of Kedushah (its Eimurim are placed on the Mizbe'ach, even according to the opinion that Kodshim Kalim are 'Mamon Ba'alim'). Accordingly, it is appropriate for the Torah to call the animal 'Kevar Kodesh.' One who eats the animal is considered to have eaten something forbidden.
</p><p>
The <b>KEHILOS YAKOV</b> (#8) cites proof for the Rashash's assertion from the Gemara in Kidushin (57b) in which Rava says that the bird which is sent away during the purification process of a Metzora is permitted to be eaten, since the Torah would not command that one send away a bird of Kodshim if someone might chance upon it and eat it. The Kehilos Yakov points out that if the one who finds the bird does not know that it was a Korban, why is Rava's teaching necessary? The person who finds it may assume that it is an ordinary bird, since most birds in the wild have not been consecrated for the process of purification of a Metzora! It must be that without Rava's teaching one might have thought that although the person is not forbidden from eating the bird that he finds, when he eats the bird sent away by the Metzora it is considered as though he has eaten Isur and not Heter. (Y. Montrose)
</p><p>


<font><b>2) TWO PEOPLE HOLDING ON TO A 'SHTAR CHOV'</b></font><b>
<br>QUESTION:</b> The Beraisa discusses a case in which two people, a Malveh and Loveh (lender and borrower), are holding on to a Shtar. The Malveh claims that it fell from him and it was not yet paid. The Loveh claims that it was he who dropped it and it was paid already. Rebbi rules that the Malveh may collect the debt with the Shtar after he is Mekayem it. Raban Shimon ben Gamliel rules that the Malveh and the Loveh split the value of the loan of the Shtar ('Yachloku').
</p><p>
The Gemara asks why Rebbi allows the Malveh to collect with the Shtar if they are both holding on to it. Does he disagree with the ruling of the Mishnah (2a) that says that the Talis is divided between the two claimants when they are both holding it? The Gemara answers that Rebbi agrees that the value of the loan is split, but only after the Malveh is Mekayem the Shtar, because until he is Mekayem the Shtar the Loveh is believed to say that he paid it. (This is because Rebbi rules that 'ha'Modeh b'Shtar she'Kesavo Tzarich l'Kaimo').
</p><p>
Why does the Gemara question Rebbi's statement based only on the ruling of the Mishnah? Even without the Mishnah, Rebbi's statement seems logically unsound. If both the Malveh and Loveh are holding the Shtar, why should the Malveh's rights to the Shtar be honored more the Loveh's rights?
</p><p>
Perhaps the Gemara means that Rebbi's ruling can be defended on the logical basis cited later by the Gemara which discusses 'Lo Chaishinan l'Pira'on' -- we do not take into account the possibility that the Loveh paid back the loan that is written in the Shtar (since the moment a Loveh pays the loan, he tears up the Shtar; see Rashi to 7b, DH v'Rebbi Yosi). Therefore, Beis Din honors the Malveh's claim and does not accept the Loveh's claim that the Shtar was paid. However, if this is correct, why should the ruling of the Mishnah be relevant to the case of two people holding a Shtar? A Shtar is different from a Talis; the Shtar's very existence proves that the Shtar was not paid and that the Malveh's claim is true!
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARI KATZ</b> (cited by the Shitah Mekubetzes) explains that if the Shtar was found entirely in the hands of the Loveh, then even those who are of the opinion that we are not 'Chaishinan l'Pira'on' agree that we would accept the Loveh's claim that the Shtar was paid. (This would apply even if the Loveh would not have a 'Migu' to say that he could have destroyed the Shtar, such as when witnesses saw the Shtar in his hands before he came to court.) The reason for this is that the fact that the Loveh is holding the Shtar is proof that it was paid, which counteracts the Chazakah that says that a Loveh normally destroys a Shtar as soon as it is paid.
</p><p>
In Rebbi's case, the Loveh's grasp of half of the Shtar should be viewed as a 'half-proof' that the Shtar was paid, and the Loveh should be required to pay only half of the loan. (See also <b>MAHARAM SHIF</b>.)
</p><p>
If not for the ruling of the Mishnah, one might have thought that when two people are holding a Shtar, Beis Din should rule 'Yehei Munach' (the Shtar should be left in escrow) and neither of them may keep it. Consequently, the Malveh would be able to collect the entire loan, as Rebbi rules, based on the fact that the Shtar is not destroyed, since there no longer is any proof to counteract it. However, since the Mishnah says 'Yachloku,' Rebbi also should rule 'Yachloku.'
</p><p>
(b) The <b>RITVA</b> makes a cryptic statement which seems to be intended as an answer to this question. The Ritva implies that even if the existence of the Shtar proves that the loan was not paid back, nevertheless when the Loveh is holding on to the Shtar he should be given half of it. What difference does it make if he owns a whole Shtar or half a Shtar, if in either case the loan will be collected? The difference is that the loan will not be collected from Nechasim Meshubadim. (Also, sometimes it is beneficial for the Loveh not to have a Shtar attesting to the loan in the hands of the Malveh; see Tosfos to Kidushin 27a, DH Chozer.)
</p><p>
The ruling of Rebbi might apply in a case in which the Malveh lost the Shtar and gave up hope of ever finding it. Consequently, the Shtar becomes Hefker, like the Talis in the case of the Mishnah. The Loveh and the Malveh are now arguing over who keeps the Shtar itself (that is, who keeps the piece of paper). The loan, however, must be paid in any case, since we know that it was not paid (because the Shtar would have been torn up had it been paid).
</p><p>
Accordingly, the Gemara is asking that Rebbi should mention not only whether the Loveh must pay the loan, but also what is done with the Shtar (is it given to the Malveh or to the Loveh). Since he makes no mention of who gets the Shtar, he implies that he maintains that it should be left in escrow, 'Yehei Munach,' in contrast to Raban Shimon ben Gamliel's ruling of 'Yachloku.' The Gemara therefore asks how Rebbi can argue with the Mishnah that rules 'Yachloku.'
</p><p>


<font><b>3) COMPARING A DISPUTE OVER A 'TALIS' TO A DISPUTE OVER A 'SHTAR'</b></font><b>
<br>QUESTION:</b> The Beraisa discusses a case in which two people, a Malveh and Loveh (lender and borrower), are holding on to a Shtar. The Malveh claims that it fell from him and it was not yet paid. The Loveh claims that it was he who dropped it and it was paid already. Rebbi rules that the Malveh may collect the debt with the Shtar after he is Mekayem it. Raban Shimon ben Gamliel rules that the Malveh and the Loveh split the value of the loan of the Shtar ('Yachloku').
</p><p>
The Gemara concludes that the reason why Rebbi does not say 'Yachloku' is that the Loveh is believed to say that he paid back the loan written in the Shtar with a 'Migu' that he could have said that the Shtar is forged. Once the Malveh is Mekayem the Shtar and proves that it is not forged, Rebbi agrees with Raban Shimon ben Gamliel that the Shtar is divided ('Yachloku').
</p><p>
<b>RASHI</b> (2a, DH b'Mekach u'Memkar) that when each of the claimants holding a Talis claims that he is the one who wove the Talis, it is not divided among them because it is clear that one of them certainly is a liar ('Ramai'). Rather, the law is 'Yehei Munach' and the Talis is left in escrow. (See Insights to 2:1.)
</p><p>
According to Rashi, why does the same Halachah not apply in the case of a Shtar Chov in the hands of both the Malveh and Loveh? Since one claims that it was not paid and the other claims that it was paid, clearly one of them is a Ramai! Hence, the Halachah should be 'Yehei Munach'! (<b>ROSH</b> 1:1; see <b>TOSFOS</b> to 2a, DH v'Yachloku.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> (2a; see also <b>PNEI YEHOSHUA</b> here) answers that in the case of the Shtar, 'Yehei Munach' is not an option since, if the Shtar is put in escrow, the Loveh effectively will be meritorious in the case since he will not have to pay the loan.
</p><p>
Perhaps Tosfos and the Rosh do not accept this argument because Beis Din still can rule 'Yehei Munach' by requiring the Loveh to pay the money of the loan to the court which will then be placed in escrow, and neither the Loveh nor the Malveh will receive the money.
</p><p>
However, the Rashba (2b) responds to this argument by saying that if the money is taken away from the Loveh and put in escrow, then the Loveh has entirely <i>lost</i> the case, because once the money is no longer in his possession it makes no difference to him whether the money is given to the Malveh or not. Therefore, it is not fair to take the money from the Loveh even if it is not given to the Malveh.
</p><p>
(b) The <b>PNEI YEHOSHUA</b> answers further that Rashi's ruling applies only when two people are holding the fringes of the Talis ('Ochzin') and not when they are holding the Talis itself. When two people are holding the Talis itself ('Adukin'), the Beraisa rules that each claimant receives a share of the Talis until the point at which his hand reaches. This ruling applies even when there is a definite Ramai.
</p><p>
The Beraisa does not discuss two people who are '<i>Ochzin</i> b'Shtar,' but rather two people who are '<i>Adukin</i> b'Shtar' -- they are holding the Shtar itself in their hands (as the Gemara on 7b points out when it discusses the Halachah in a case in which one claimant is holding the Tofes and the other is holding the Toref of the Shtar). Therefore, the Shtar is split even though there is a definite Ramai. This might also be the intention of the <b><b><b>RI</b></b> MI'GASH</b> in Tosfos in Bava Basra (34b, DH ha'Hu).
</p><p>
However, Tosfos in Bava Basra there asks that according to this explanation, why does the Gemara here question Rebbi's ruling from the Mishnah and say that he should rule 'Yachloku'? The ruling of the Mishnah is not relevant in a case in which the two claimants are holding on to the Shtar! The Gemara should have questioned Rebbi from the Beraisa which discusses two people who are 'Adukin b'Talis' and not from the Mishnah which discusses two people who are 'Ochzin b'Talis,' where the Halachah does not apply when there is a definite Ramai.
</p><p>
Perhaps the answer to this question may be derived from the first words of Rashi on the Mishnah. According to the way we explained Rashi's words (see Insights there), Rashi explains that the word 'Ochzin' in the Mishnah is meant to imply that the Talis is divided between them only when both claimants are holding the fringes. However, if either of the claimants is holding part of the body of the Talis itself, that part is not split but rather it is given to the person who is holding it. Accordingly, the Halachah of 'Adukin' may be learned through inference from the words 'Shenayim Ochzin' in the Mishnah. When the Gemara asks that Rebbi should agree with the Mishnah, it means that he should agree that when the claimants are not merely 'Ochzin' but are holding the object itself, the part that each one is holding is given to him because he is considered to be Muchzak and 'ha'Motzi me'Chaveiro Alav ha'Re'ayah,' as the Beraisa here teaches. Hence, the Gemara indeed is asking from the Halachah of the Beraisa and not from the Halachah of the Mishnah.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DO HEKDESH OR ANIYIM ACQUIRE DAVAR SHE'LO BA L'OLAM?</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'> 6b:</font></b> Reuven and Shimon were fighting over a
               bathhouse. Each said 'it is mine.' Reuven declared
               it Hekdesh.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 7a (R. Chiya bar Avin):</font></b> If one was Makdish property
               that he cannot obtain through Beis Din, it is not
               Hekdesh.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference:</font></b> If he can obtain it through Beis Din, he
               can make it Hekdesh, even before receiving it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> R. Yochanan taught that if property was
               stolen and the owner did not despair, neither the
               owner nor the thief can make it Hekdesh;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The thief cannot, because it is not his. The
                    owner cannot, because it is not in his domain
                    (even though he can obtain it through Beis
                    Din)!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> The bathhouse is not movable, rather, it is
               land. If one can obtain land through Beis Din, it is
               as if it is in his domain.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 9b (Mishnah - R. Eliezer):</font></b> If Levi gathered Pe'ah
               and said 'this is for Ploni the Oni', he acquired
               for him;
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> Chachamim say, he must give it to the first poor
               person he finds.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> They argue about when Levi is poor.
               R. Eliezer holds that Migo (since) Levi could
               acquire it for himself, he may acquire it for
               another Oni. Chachamim disagree with the Migo.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Bava Kama 36b:</font></b> A man hit Reuven. Rav Yosef ruled
               that he receives a half-Dinar. Reuven did not want
               it, and said 'give it to the poor'. He later
               retracted and asked 'give it to me. I will use it to
               make myself healthy.'
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Rav Yosef:</font></b> You cannot retract, for the poor already
               acquired it. Even though there are not poor people
               here, we are a Yad (power of acquisition) on behalf
               of poor people elsewhere.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Rosh Hashanah 6a:</font></b> 'B'Ficha' teaches that Bal
               Te'acher (the Isur to delay bringing Korbanos)
               applies to Tzedakah.
<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 18b):</font></b> Rav Yosef meant 'Aniyim are no
               less than others. Even though there are not Aniyim
               here, we are Yad Aniyim to acquire for them through
               Ma'amad Sheloshtam (a special Kinyan in which David
               tells Levi, in front of Moshe, 'give the money you
               have of mine to Moshe'). If one said about money in
               his possession 'it is for Aniyim', they acquire
               immediately, due to 'b'Ficha'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Bava Kama 4:3):</font></b> 'B'Ficha' does not teach that
               his Dibur obligates him, for one cannot be Makdish
               or give to Tzedakah a Davar she'Lo Ba l'Olam.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 22:15):</font></b> The law of Hekdesh,
               Aniyim and Nedarim is unlike that of regular people.
               If one said 'all offspring of my animal will be
               Hekdesh to Bedek ha'Bayis' or 'forbidden to me' or
               'for Tzedakah', even though it does not become
               Kodesh because it is Lo Ba l'Olam, he is obligated
               to keep his word, due to 'k'Chol ha'Yotzei mi'Piv
               Ya'aseh.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (16):</font></b> Therefore, if a Shechiv Mera commanded
               'give to Aniyim all produce of my tree' or 'all
               rental of this house', the poor acquired them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Maharit 2 CM 50):</font></b> His vow does not
                    obligate his heirs! We do not force heirs to
                    pay their father's debt from property other
                    than land (Kesuvos 91b)! One who took usury
                    must return it due to 'V'Chai Achicha Imach',
                    but heirs need not return it (Bava Metzi'a
                    62a)!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Maharit):</font></b> It is a special law of
                    Matanas Shechiv Mera that the Aniyim acquire,
                    since he himself would be obligated due to his
                    vow. Alternatively, it is a Mitzvah to fulfill
                    the words of the deceased. Normally, this is
                    only if he gave the money to a third party.
                    Here is different, for he himself could not
                    have retracted had he lived, for he must
                    fulfill his vow.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (17):</font></b> Some Ge'onim disagree and say that
               Aniyim acquire like all other people, therefore they
               do not acquire Davar she'Lo Ba l'Olam. I disagree.
               One is not commanded to make Kiyanim, but he is
               commanded to fulfill his words to Tzedakah or
               Hekdesh, just like he must fulfill a vow.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad:</font></b> The Rif said that one can be Makneh a
                    Davar she'Lo Ba l'Olam to Aniyim through
                    Ma'amad Sheloshtam. The Rambam says that Aniyim
                    acquire it (even without Ma'amad Sheloshtam)! I
                    say that if he said 'I will give', he obligated
                    himself and he must give. If he said that it
                    'will be given', or he commanded his sons to
                    give, the Aniyim did not acquire, like the Rif
                    says.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> All agree that one cannot be
                    Makdish Davar she'Lo Ba l'Olam. The Rambam
                    merely says that he must fulfill his vow.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kesef Mishneh:</font></b> The Rambam agrees that Aniyim do
                    not acquire a Davar she'Lo Ba l'Olam. He
                    teaches that if one said 'the fruits of this
                    tree are to Aniyim', they did not acquire. If
                    he said 'I will give', he vowed and he must
                    fulfill his vow.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Question:</font></b> Why do his words obligate his
                    children? They did not vow!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer #1 (Kesef Mishneh):</font></b> Perhaps because his
                    heirs heard and did not protest, they accepted
                    his words and it is as if they themselves
                    vowed.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Answer #2 (SMA CM 212:19):</font></b> It is as if he gave
                    the house or tree to Aniyim until they receive
                    all the rental or fruits. His children do not
                    inherit until they fulfill the vow.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rambam (Hilchos Erchin 6:31):</font></b> One cannot be Makdish
               a Davar she'Lo Ba l'Olam, but if he said 'it is upon
               me to be Makdish it', he must fulfill his vow. If he
               did not, he transgressed 'Lo Te'acher' and 'Lo
               Yachel' and 'K'Chol ha'Yotzei mi'Piv Ya'aseh', like
               other vows.
<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 212:7):</font></b> The law of Hekdesh,
               Aniyim and Nedarim is unlike that of regular people.
               If one said 'all offspring of my animal will be
               Hekdesh to Bedek ha'Bayis' or 'forbidden to me' or
               'for Tzedakah', even though it does not become
               Kodesh because it is Lo Ba l'Olam, he must keep his
               word, due to 'k'Chol ha'Yotzei mi'Piv Ya'aseh.'
               Therefore, if a Shechiv Mera said 'give to Aniyim
               all produce of my tree or all rental of this house',
               the poor acquired them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav Od):</font></b> The Tur says that
                    the Rosh holds like the Ge'onim who argue with
                    the Rambam. There is no Kinyan on Davar she'Lo
                    Ba l'Olam, just he must fulfill his vow.
                    Really, the Rambam holds like the Rosh. The
                    Ge'onim say that since there is no Kinyan,
                    there is no vow.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (18):</font></b> The Tur says that the Rambam
                    obligates even when he said 'give', and in this
                    case the Rosh argues. All agree that if he said
                    'I will give', this is a vow and he must
                    fulfill it.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (20):</font></b> We find many who vowed about what
                    they will receive. Yakov vowed to tithe what he
                    will get, Yisrael vowed that if they within the
                    war, they will make the cities Cherem (Bamidbar
                    21:2), and Chanah vowed that if she will have a
                    son, she will give him to (serve) Hash-m.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Ketzos ha'Choshen (4):</font></b> The Mishnah in Pe'ah
                    (4:9) supports the Rambam. If one collected
                    Pe'ah and said 'it is for Ploni the Oni',
                    Chachamim say that he gives it to the first Oni
                    he finds. This is when Levi is poor. Chachamim
                    do not say Migo (since) Levi could acquire it
                    for himself, he can acquire it for another Oni.
                    Why must he give it to the first Oni he finds?
                    According to the Rambam, it is due to his vow.
                    Perhaps the Rosh holds like he says in Nedarim
                    (34b DH Lehorisho), that one can be Makdish a
                    Hefker loaf if no one else is near it. It is
                    not Davar she'Lo Ba l'Olam, for he could
                    acquire it himself. Such a vow takes effect
                    only if he acquires it in the end. Therefore,
                    he cannot keep the Pe'ah himself, lest his vow
                    take effect.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Note:</font></b> This does not explain why he must give it
                    to the first Oni. Perhaps this is a decree,
                    lest he wait for a particular Oni and come to
                    acquire it for himself.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DO ANIYIM ACQUIRE LIKE HEKDESH? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The Beraisa means that if one finds a
          document that came to a judge, he never gives it back.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case (in which he knows that it
          came to a judge)?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> It has been validated;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Beraisa teaches that 'he never gives it back.'
               This is not only when it is not validated, for
               perhaps it was never given;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rather, even if it was validated (surely it was
               given), he does not return it, lest the loan was
               paid.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Beraisa - R. Yosi):</font></b> It remains in its Chazakah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He is not concerned lest it was paid.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> R. Yosi is concerned lest a document was paid!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #2):</font></b> If a Kesuvah was found in the market,
               if the husband admits (that his wife lost it), we
               return it to her;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he does not admit, we do not return it to
                    either of them;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yosi says, if she is still married, we return it
               to her. If she was widowed or divorced, we do not
               return to either of them.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #1A:</font></b> The opinions in Beraisa #1 must be switched.
          R. Yosi says 'he never gives it back', and Chachamim say
          'it remains in its Chazakah.'
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> If so, Chachamim contradict themselves!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Yosi taught all of Beraisa #2. It is
          abbreviated, and means as follows: ...if he does not
          admit, we do not return it to either. This is when she
          was widowed or divorced;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If she is still married, we return it to her, for R.
               Yosi says that if she is still married, we return it
               to her, but if she was widowed or divorced, we do
               not return it to either.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer #2 (Rav Papa):</font></b> We need not switch the opinions. In
          Beraisa #2, R. Yosi addresses Chachamim's opinion:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> I say that even if she was widowed or divorced, we
               do not suspect that he paid it. You are concerned
               for this, but you should admit to me that if she is
               still married that we return it to her, for the
               husband would not pay her during the marriage!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim are concerned lest he gave her money to
               hold, so that when she is entitled to her Kesuvah,
               she will not have problems collecting it.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer #1B (Ravina):</font></b> Really, we switch the opinions in
          Beraisa #1. In Beraisa #2, Chachamim are concerned lest
          two Kesuvos were written. R. Yosi is not concerned for
          this.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>HOW WE SPLIT THE DOCUMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> In Beraisa #1, R. Shimon ben Gamliel said
          that they divide equally. This is only when both are
          holding the Toref (the vital information particular to
          this document) or both are holding the Tofes (the
          standard text that is the same for all loan documents);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one holds the Toref and the other holds the
               Tofes; each gets what he is holding.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> They always divide equally, even if one
          holds the Tofes and one the Toref.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Each gets what he is holding.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the Toref is in the middle.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If so, obviously gets half. How else could we
          divide it?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the Toref is closer to one than the
          other. One might have thought that we divide the document
          widthwise (i.e. the one closer to the Toref gets the
          Toref);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Beraisa teaches that this is not so. The one
               further away can suggest we divide it lengthwise.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Acha mi'Difti):</font></b> R. Elazar says that one
          gets the Toref and the other gets the Tofes. What are
          they good for (by themselves)? Will he use it to cork a
          bottle?!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> (A document with a date is worth more
          than one without a date, since it can be used to collect
          from land that the borrower sold after he borrowed.) The
          one holding the Toref (which includes the date) gets this
          difference. The rest they split equally (since the other
          vital information particular to the document appears also 
          in the Tofes).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Support:</font></b> Also when it says that two holding a garment
          divide it, this means the value. If they would cut the
          garment, this would ruin it!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, the halves would be fit for children.
<br>

<p>

sjt:
</p><p>
<font><b>4) THE 'TOFES' AND THE 'TOREF'</b></font><b>
<br>OPINIONS:</b> The Beraisa earlier (7a) discusses a case in which two people, a Malveh and Loveh (lender and borrower), are holding on to a Shtar. The Malveh claims that it fell from him and it was not yet paid. The Loveh claims that it was he who dropped it and it was paid already. Rebbi rules that the Malveh may collect the debt with the Shtar after he is Mekayem it. Raban Shimon ben Gamliel rules that the Malveh and the Loveh split the value of the loan of the Shtar ('Yachloku').
</p><p>
Rebbi Elazar says that the argument between Rebbi and Raban Shimon ben Gamliel applies only when both claimants are holding the Tofes and the Toref of the Shtar. When one is holding only the Tofes and the other is holding only the Toref, each one takes the part he is holding (either the Tofes or the Toref). Rebbi Yochanan disagrees with Rebbi Elazar and asserts that Rebbi and Rebbi Shimon ben Gamliel argue even in the latter case as well.
</p><p>
What exactly are the Tofes and Toref?
</p><p>
(a) <b>RASHI</b> (DH u'Sheneihem) explains that the Toref is the place in the Shtar in which the names of the lender and borrower, the amount of money borrowed, and the time of payment are written. The Tofes is the rest of the Shtar. Rashi later (DH Shtara) writes that the Tofes in fact also contains the names of the lender and borrower and the amount of money borrowed, but not the time of payment. The <b>SHITAH MEKUBETZES</b> explains that Rashi's explanation is consistent with the Gemara in Bava Basra (165b) which discusses the case of a Shtar which records 'above' the figure of 'one hundred,' but records 'below' the figure of 'two hundred.' 'Above' and 'below' refer to the Toref and Tofes of the Shtar, respectively. This is also the opinion of the <b>ARUCH</b>.
</p><p>
The <b>RITVA</b> questions this explanation. The Gemara later asks (according to some texts) that according to Rebbi Elazar's ruling that the person who is holding the Tofes takes the Tofes, there seems to be no benefit in receiving just the Tofes. What is the Gemara's question? If, as Rashi writes, all of the details of the Shtar (except for the time of payment) are repeated in the Tofes, there clearly is a benefit in receiving the Tofes. If the lender receives the Tofes he will be able to collect money from the borrower!
</p><p>
The Ritva answers for Rashi that the Gemara means to ask how the Tofes is a benefit to the <i>borrower</i> if he is the one holding the Tofes. Since the lender is holding the Toref which has all of the information of the loan, the lender can collect the loan from the borrower, and the borrower's possession of the Tofes is immaterial.
</p><p>
(b) The <b>MAGID MISHNEH</b> (Hilchos Malveh v'Loveh 14:14) gives a different explanation. He writes that the Toref is the place in the Shtar in which almost all of the details of the loan, including the names of all the people involved (the lender, borrower, guarantor, and witnesses) are recorded. The Tofes is the date of the loan which is normally written in the beginning of the Shtar. (Y. Montrose)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HOW WE SPLIT THE DOCUMENT (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Rava said that they divide a golden garment.
          What would the halves be fit for?
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	They are fit for children of kings.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Support (Mishnah):</font></b> If two were riding on an animal...
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> How can they divide it? Regarding a Tahor
               animal, they can split the meat, but splitting a
               Tamei animal is a great loss!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> We must say that they split the value.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Likewise, they split the value of the document.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CAN ONE PICK UP A METZI'AH FOR ANOTHER?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rami bar Chama):</font></b> We learn from our Mishnah that if one
          picks up a Metzi'ah (something Hefker) to acquire for
          another, it works. If not, it would be as if each holds
          half, and the other half is on the ground (and he does
          not acquire! The Gemara will discuss which part of the
          Mishnah teaches this.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> Really, if one picks up an object to
          acquire for another, it does not work. Here, Migo (since)
          he can acquire for himself, he can acquire for another.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Support:</font></b> If Reuven told a Shali'ach 'steal for me',
          Reuven is exempt, but partners who steal are liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The reason is, Migo (since) each can acquire for
               himself, he can acquire also for his partner.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rava):</font></b> Since we say Migo, if a Cheresh (deaf-mute, who
          cannot acquire) and a Pike'ach (healthy person) lifted a
          Metzi'ah, since the Cheresh acquires, also the Pike'ach
          does.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> We understand how the Cheresh acquires.
          (Chachamim enacted that he acquires what he finds, and) a
          Pike'ach lifts the other half for him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, how does the Pike'ach acquire?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, the Cheresh acquires, but the
          Pike'ach does not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> How does this rely on Migo?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Migo that two Chereshim who picked up a
               Metzi'ah together would acquire, a Cheresh acquires
               also when he picks it up with a Pike'ach.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> Even if you will say that one can pick up a
          Metzi'ah to acquire for another, that is only if he
          intends for the other to acquire. Here, the Pike'ach
          wants to acquire for himself, but he does not acquire.
          Does he intend to acquire for someone else?!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, since the Pike'ach does not acquire,
          the Cheresh does not, either.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Why is this different than two Chereshim that
          pick up together? They acquire!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> That is an enactment to avoid quarrels. Here, the
          Cheresh realizes that the Pike'ach does not acquire, so
          he does not expect that he should acquire.
<br>
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Rav Acha brei d'Rav Ada):</font></b> What was Rami bar
          Chama's source (that two people who pick up a Metzi'ah
          together acquire)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He learns from the Reisha, in which two
               are holding a garment.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> There, each claims that he picked it up
               himself!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, it says 'Reuven says 'it is all mine.'
          Shimon says 'it is all mine.'' This is extra, to teach
          that one can pick up a Metzi'ah to acquire for another.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Objection:</font></b> We established that 'I found it' discusses a
          Metzi'ah, and 'it is all mine' discusses a bought object.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, he learns from the Seifa. Reuven says
          'it is all mine.' Shimon says 'half is mine';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is extra, to teach that one can pick up an
               object to acquire for another.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Objection:</font></b> Perhaps also the Seifa discusses a bought
          object, and not a Metzi'ah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, what is the Chidush?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that since Shimon
               claims only half, he is like Meshiv Aveidah (one who
               returns a lost object), and he is exempt from
               swearing. The Mishnah teaches that this is not so.
               Perhaps he schemes to avoid swearing. He knows that
               if he claims the entire object, he must swear, so he
               claims only half to be like Meshiv Aveidah.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #3:</font></b> Rather, he learns from the third clause: if
          two people were riding...
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is extra, to teach that one can pick up a
               Metzi'ah to acquire for another.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Objection:</font></b> Perhaps this teaches that also riding
          acquires!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer #4:</font></b> Rather, he learns from the last clause: when
          they admit, or have witnesses, they divide without
          swearing'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it refers to a bought object, this is
                    obvious!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it refers to a Metzi'ah (that they
               picked up together). It teaches that one can pick up
               an object to acquire for another.
<br> <b>    <b><font color='darkgreen'>(s)</font></b></b>  	Rava holds that we cannot learn from here. Migo (since)
          he can acquire for himself, he can acquire for another.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ACQUIRING AN ANIMAL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If both were riding...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> Shmuel taught Rav Yehudah that riding or
          leading acquires, but the other does not.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Yehudah):</font></b> Which one acquires?
<br>
<br>

sjt:
<font><b>1) THE 'KINYAN' OF RIDING AN ANIMAL</b></font><b>
<br>QUESTION:</b> The Gemara asks why it is necessary for the Mishnah to teach that when two people are riding an animal and both claim to have found it, the animal is divided between them. Why can this law not be derived from the first case of the Mishnah, in which two people are holding on to a Shtar? The Gemara answers that the Mishnah may intend to teach that a person can acquire an animal by riding it.
</p><p>
<b>RASHI</b> explains that the Gemara means that riding an animal may be a valid Kinyan even when the rider does not use his feet to cause the animal to move ('Manhig b'Raglav') and thus his act does not qualify as 'Meshichah.'
</p><p>
Rashi's explanation is necessary since there are other sources that teach that Meshichah is Koneh (see Rashi to 8b, DH Manhig), and therefore it would not be necessary for the Mishnah here to teach that it is Koneh.
</p><p>
However, the Gemara later (8b) cites a Machlokes between Rebbi Meir and the Rabanan with regard to whether a person acquires an animal by riding it. Rebbi Meir rules that even one who is sitting on the animal without holding on to the reins as a rider does still acquires it. The Rabanan maintain that a person who is riding an animal does not acquire the animal unless he is Manhig b'Raglav and uses his feet to make it move. The Gemara there says that the Mishnah does not follow the opinion of Rebbi Meir, because if it did it would not have to say that a <i>rider</i> is Koneh, for even one who is sitting on an animal is Koneh. Rather, the Mishnah must follow the view of the Rabanan, and thus it refers to a person who is riding the animal and causing it to move with his feet. Why, then, does the Gemara here say that the Mishnah refers to an act of riding an animal without being Manhig b'Raglav? (<b>ROSH</b> 1:16)
</p><p>
Moreover, why does the Mishnah teach two cases of riding an animal -- one case in which when both claimants are riding (Rochev) the animals, and one case in which one claimant is riding (Rochev) the animal and the other is guiding (Manhig) the animal?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ROSH</b> disagrees with Rashi and explains the Chidush of the Mishnah differently. The Mishnah <i>is</i> discussing a rider who causes the animal to move. The Chidush of the Mishnah is that even when <i>two</i> people are riding an animal and are causing it to move, the one sitting farther back is also Koneh. Without the Mishnah, one might have thought that the rider sitting in front is considered the primary rider who causes the animal to move, while the one sitting behind him does not cause the animal to move in a normal manner and thus he should not be Koneh the animal.
</p><p>
The case in which one is riding (Rochev) and the other is guiding (Manhig) the animal teaches that even when the rider is Manhig b'Raglav and therefore is doing more than the one who is Manhig alone, both the rider and the Manhig are Koneh the animal.
</p><p>
(b) Rashi understands that according to the Gemara's conclusion (8b), the main point of the Mishnah is to teach that when one claimant is Rochev and one is Manhig, neither one's act overrides the other's, and they are both Koneh. This teaching applies both according to the Rabanan (who say that the person who is riding is also Manhig b'Raglav), and according to Rebbi Meir (who says that the person is riding it without using his feet to make it move).
</p><p>
The Mishnah mentions the first case, in which both are riding it, only in order to lead into the second case, in which one is riding and one is pulling the animal, and it is not intended to teach something new.
</p><p>
How, though, can the Mishnah be discussing a rider who is not Manhig b'Raglav and be following the opinion of Rebbi Meir? The Gemara asks (8b) that if the Gemara is following the opinion of Rebbi Meir, the Mishnah should not discuss only Rochev, since even one who is Yoshev is Koneh. The Mishnah should mention Yoshev as well!
</p><p>
Rashi answers this question (8b, DH Rachuv Mibayei) by explaining that the Gemara is not asking that the Mishnah should have discussed Yoshev rather than Rochev (see <b>MAHARI ABUHAV</b> and <b>RASHBA</b>, cited by the Shitah Mekubetzes). As the Gemara points out, holding on to the reins does not make any difference with regard to Kinyan, and therefore Yoshev and Rochev are identical. The Gemara's question is only that it would not be necessary for Rebbi Meir to teach a second time that Rochev is Koneh, since he already taught that Halachah in Maseches Kil'ayim.
</p><p>
The Gemara answers that even according to the Rabanan, the Mishnah is not teaching a new Halachah when it discusses two people riding an animal, since it refers to two people who are both Manhig b'Raglav, which is a normal form of a Kinyan Meshichah. Rather, according to both Rebbi Meir and the Rabanan, the case of two people riding the animal was mentioned in order to lead into the Halachah that when one of them is riding and one is guiding (Manhig), they are both Koneh, as the <b>MAHARSHA</b> writes. (According to Rebbi Meir, they are Koneh even when the rider is not Manhig b'Raglav, and according to the Rabanan, only when the rider is Manhig b'Raglav is he Koneh it.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>CAN ONE ACQUIRE A METZI'AH ON BEHALF OF ANOTHER?</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'> (Rami bar Chama):</font></b> We learn from the Mishnah (2a; we
               will explain this below) that one can pick up a
               (Hefker) Metzi'ah to acquire for another. If not, it
               would be as if each holds half, and the other half
               is on the ground!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Rava):</font></b> Really, one cannot acquire a
               Metzi'ah for another. Here, Migo (since) he can
               acquire for himself, he can acquire for another.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Support:</font></b> If Reuven told a Shali'ach 'steal for me', 
               Reuven is exempt, but partners who steal are liable.
               Migo (since) each can acquire for himself, he can
               acquire also for his partner.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Rami bar Chama learns from the Seifa of the Mishnah.
               When they admit, or have witnesses, they divide
               without swearing. If this refers to a bought object,
               this is obvious! Rather, it refers to a Metzi'ah
               (that they picked up together). It teaches that one
               can pick up an object to acquire for another.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Rava holds that we cannot learn from here. Migo he
               can acquire for himself, he can acquire for another.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 9b (Mishnah #1):</font></b> If Reuven was riding on an animal
               and saw a Metzi'ah, and told Shimon 'give it to me',
               if Shimon took it and said 'I acquired it myself',
               he acquired it. If he said this after giving it to
               Reuven, Reuven acquired.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Ula citing R. Yehoshua ben Levi):</font></b> In a Mishnah
               (#2), Tana'im argue about whether Levi can acquire
               Pe'ah for an Oni (Ploni). The case is, Levi is rich.
               R. Eliezer holds that Migo (since) if Levi would
               make his property Hefker, Pe'ah would be fitting for
               him (to take), even when he is rich, it is fitting
               for him. Migo he could acquire it for himself, he
               may acquire it for an Oni. Chachamim hold that he
               cannot acquire for Ploni, for we may use Migo only
               once';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In Mishnah #1, Shimon said before picking it up
                    that he picks it up for himself.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 10a (Rav Nachman and Rav Chisda):</font></b> If Shimon picked
               up a Metzi'ah for Reuven, Reuven does not acquire.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> This is like one who seizes property (from a
               borrower) for a creditor when this harms others
               (other creditors would have wanted to seize the
               property). He does not acquire. (Here, others would
               have wanted to take the Metzi'ah.)
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question (Rava - Beraisa):</font></b> A worker keeps Metzi'os
               that he finds. This is only if the employer hired
               him for a particular job, e.g. 'weed for me today.'
               If he said 'work for me today', the employer gets
               it.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer (Rav Nachman):</font></b> A worker is different. His Yad
               (power of acquisition) is like the Yad of his
               employer (he acquires for his employer).
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (R. Chiya bar Aba citing R. Yochanan):</font></b> If Shimon
               picked up a Metzi'ah for Reuven, Reuven acquires.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question:</font></b> In the Mishnah, Reuven does not acquire
               (even if Shimon did not say that he picks it up for
               himself until later)!
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer (R. Chiya bar Aba):</font></b> In the Mishnah, Reuven
               asked Shimon to <i>give</i> it to him. He never asked him
               to <i>acquire</i> it for him.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Beitzah 39a (Mishnah):</font></b> The Techum of (extent to
               which one may take on Yom Tov) water from a pit for
               Olei Bavel (people ascending to Yerushalayim for the
               festival) is like the Techum of the one who drew the
               water.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> (Rav Nachman):</font></b> If David drew water for Levi, it has
               the Techum of Levi.
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> (Rav Sheshes):</font></b> It has the Techum of David.
<br>        <b>  <b><font color='darkgreen'>18. </font></b><font color='darkgreen'> 39b:</font></b> They argue about whether Levi acquires when
               David picks up a Metzi'ah for him.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> If Shimon picked up a Metzi'ah for Reuven,
               Reuven acquires. In the Mishnah, Reuven asked Shimon
               to <i>give</i> it to him, not to <i>acquire</i> it for him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 17:2):</font></b> If Reuven was riding
               on an animal and saw a Metzi'ah, and told Shimon
               'give it to me', if Shimon took it, and after giving
               it to Reuven he said 'I acquired it myself', Reuven
               acquired it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (3):</font></b> If Shimon picked up a Metzi'ah for
               Reuven, Reuven acquires, even if Shimon did not say
               anything. If two pick up a Metzi'ah together, they
               acquire.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (CM 269:1):</font></b> According to Tosfos (Beitzah
                    39b DH Hacha), also Rav Sheshes holds like R.
                    Yochanan. Also, the Halachah always follows R.
                    Yehoshua ben Levi, and he holds like R.
                    Yochanan.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (1:16):</font></b> If Shimon picked up a Metzi'ah for
               Reuven, Reuven acquires. All the more so, if two
               pick up a Metzi'ah together, they acquire.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (27):</font></b> The Gemara connotes that one can acquire
               a Metzi'ah for another only if one can seize for a
               creditor when this harms others. However, R.
               Yochanan holds that one can acquire a Metzi'ah for
               another, but one cannot seize for a creditor when
               this harms others! R.Tam answered that regarding a
               Metzi'ah, Migo (since) he could acquire for himself,
               he can acquire for others. The Halachah follows R.
               Yochanan, for Rami bar Chama and Ula hold like him.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Ramban (Bava Basra 53a DH No'al):</font></b> A Tosefta teaches
               that if one locked and one fenced, it is not a
               Chazakah. If both of them locked and fenced, it is a
               Chazakah. Some explains that if each of two people
               wanted to acquire the property of a convert (who
               died without heirs), and one locked and one fenced,
               neither acquires, for each weakens the other's
               Chazakah. If both of them locked or fenced together,
               even though each wanted to acquire by himself, since
               they made the same Chazakah, one does not Mevatel
               the other. The same Min (type) does not Mevatel
               itself. Each acquires half, for each helps the
               other's Chazakah. If this is correct, one may not
               rely on the Tosefta, for it is unlike Bava Metzi'a
               (8b), in which we say that one riding and one
               leading acquire. Even though they are different
               Kinyanim, they do not Mevatel each other. I say that
               the text should say 'if one locked and one fenced,
               it <i>is</i> a Chazakah', for each did a complete act
               that helps. If both of them locked or fenced it is
               not a Chazakah. This is when each built half a
               fence. Neither's act helped without the other's. The
               Sugya about picking up a Metzi'ah for another
               supports this.
<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 269:1):</font></b> If Shimon picked up a
               Metzi'ah for Reuven, Reuven acquires. He acquires
               even if he did not say anything.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (1):</font></b> This means that if Shimon said that he
                    picks it up for Reuven, Reuven acquires, even
                    if Reuven did not say anything.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 1):</font></b> It is even if Shimon did
                    not say anything, just he admits that he picked
                    it up for Reuven. The Poskim connote like this.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH u'Mah she'Chosav Afilu):</font></b> The
                    Rambam says that Reuven acquires, even if he
                    did not request this. The Gemara connotes like
                    this.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Chidushei Hagahos (in Tur, 1):</font></b> He refers to 8a,
                    in which we say that two who picked up a
                    Metzi'ah together acquired. Surely they did not
                    say that they acquire for one another, for each
                    says that he acquired it alone!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> R. Akiva Eiger:</font></b> The Ran (Nedarim 34b DH Omar)
                    says that if a Metzi'ah fell within four Amos
                    of a person, and he said that Ploni should
                    acquire it, Ploni acquires it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> If two pick up a Metzi'ah
               together, they acquire.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (3):</font></b> Even Rava agrees in this case.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (2):</font></b> This is whether they picked it up at
                    the same time, or if one picked up one end, and
                    later the other picked up the other end.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (3):</font></b> One acquires by himself only what is
                    in his hand, since he does not lift the entire
                    object. We assume that each consents to be a
                    Shali'ach for the other, in order that each
                    will acquire half. Therefore, it is as if each
                    totally lifted it, and they are partners in it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (6):</font></b> If Reuven was riding on an
               animal and saw a Metzi'ah, and told Shimon 'acquire
               it for me', once Shimon picks it up, Reuven
               acquires, even before it gets to his hand.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (8):</font></b> This is when Shimon picked it up Stam
                    (without specifying for whom he takes it). If
                    Reuven did not request, Shimon must say that he
                    acquires for Reuven. If not, he can retract.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 3):</font></b> Even if Reuven did not
                    request, and Shimon did not say anything, if he
                    intended to acquire for Reuven, he cannot
                    retract.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Shimon is not believed to say that he acquired
               it for himself even while it is in his hand.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (9):</font></b> If Reuven did not request this, and
                    Shimon himself said (afterwards) 'I will picked
                    it up for Reuven', if later he says that he was
                    joking or did not want people to think that he
                    is wealthy, he is believed. Also the Tur says
                    so.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (3):</font></b> It is unreasonable to believe that
                    he was joking. The Tur does not mention this.
                    The <b>SMA</b> was forced to say this, for he explains
                    that Shimon verbalized his intent.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Nesivos ha'Mishpat (Urim 5):</font></b> If Reuven did not
                    request this, there is no rationale to say that
                    Shimon was joking! Surely, there is a printing
                    mistake in the <b>SMA</b>. It should say that Shimon
                    said <i>beforehand</i> that he picked it up for
                    Reuven. Therefore, he needs to explain that he
                    was joking.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DOES SHELICHUS ALLOW SEIZURE FOR A CREDITOR WHEN THIS HARMS OTHERS? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If one person rides or leads alone, would
                    anyone say that leading does not acquire?!
                    Surely, he would know that leading acquires!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, Shmuel discusses leading while
               another is riding. Rav Yehudah was unsure if riding
               is better, for he holds the animal himself (Rashi;
               Tosfos - he holds the halter);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Or, perhaps leading is better, for he causes
                    the animal to go.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #1 - Answer (Rav Yehudah - Mishnah):</font></b> If one is
          leading two different species of animals pulling a wagon,
          and one sits in the wagon, both are lashed (for working
          with Kil'ayim);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir exempts the one in the wagon.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shmuel:</font></b> The opinions must be switched. Chachamim
               exempt the one in the wagon.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference (Rav Yehudah):</font></b> Shmuel holds that riding
               alone does not acquire, and all the more so riding
               when another is leading.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rav Yosef):</font></b> How can you learn about riding from
          sitting in a wagon? One who sits does not hold the
          Mosirah (halter)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> Both Rav and Shmuel say that
          holding the halter does not acquire a Hefker animal.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #2:</font></b> Rav Yosef resolved from the Mishnah, like
          above.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> How can you learn about riding from
          sitting in a wagon? One who sits does not hold the
          halter!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rav Yosef):</font></b> Idi recited a Beraisa that says that
          holding the halter does not acquire a Hefker animal. (end
          of Version #2)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(R. Chelbo):</font></b> Taking the halter from the seller acquires,
          but this does not acquire a Hefker animal.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> What is the significance of the word 'Mosirah'?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Idi):</font></b> This is like one who is Moser (hands over)
          something to another person.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This applies to buying, but no one gives over
               Hefker!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If both were riding on an animal...
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Who is the Tana of the Mishnah?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> It is R. Meir (according to Shmuel,
                    who switched the opinions in the above
                    Mishnah).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection:</font></b> He holds that even sitting in the
                    wagon acquires! (He would not need to teach an
                    extra clause here to teach that riding
                    acquires.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it is Chachamim. This shows that
               riding acquires!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah discusses one who conducts it with
          his legs.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> The Reisha says that one was riding and one was
          leading. (If he conducts with his legs, both lead it!)
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah discusses two kinds of leading.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that riding is better,
               because he both leads and holds the animal. The
               Mishnah teaches that this is not so.
<br>

<p>

sjt:
</p><p>
<font><b>2) ACQUIRING AN ANIMAL THROUGH 'YOSHEV,' 'ROCHEV,' OR 'MANHIG'</b></font><b>
<br>QUESTION:</b> The Gemara attempts to prove from the Mishnah that one who is riding (Rochev) an animal acquires the animal even though he is not using his feet to cause the animal to move (Manhig b'Raglav), according to the Rabanan who disagree with Rebbi Meir. Although one does not acquire the animal by sitting on it (Yoshev), he does acquire it by riding it because he holds on to the reins.
</p><p>
The Gemara proves this from the Mishnah's ruling in the case of two people who are riding an animal, or where one is riding it and one is guiding it (Manhig), and each one claims that the animal is his. The Mishnah rules that they split the animal ('Yachloku').
</p><p>
The Gemara says that the Mishnah does not follow the opinion of Rebbi Meir, because if it did it would not have to say that a <i>rider</i> (Rochev) is Koneh, for Rebbi Meir maintains (Kil'ayim 8:3) that even Yoshev is Koneh (see previous Insight). Rather, the Mishnah must follow the view of the Rabanan, and it teaches that Rochev is Koneh even though Yoshev is not Koneh.
</p><p>
The Gemara concludes that the Mishnah indeed follows the view of the Rabanan, but it refers to a person who is both Rochev and Manhig b'Raglav (he uses his feet to cause the animal to move). The primary Chidush of the Mishnah is not that one who is Rochev and Manhig b'Raglav is Koneh the animal (see <b>MAHARSHA</b>), but rather that when one person is Rochev and one is Manhig, they split the animal even though the one who is Rochev is doing more than the Manhig is doing (since the Rochev is riding and guiding the animal with his feet, and he is also holding on to the animal by the reins).
</p><p>
Why does the Gemara not answer that the Mishnah follows the opinion of Rebbi Meir, and that the reason why the Mishnah writes specifically that Rochev is Koneh as opposed to Yoshev is that when one person is Manhig and one person is Yoshev, the Yoshev is <i>not</i> Koneh since his act of Kinyan is overpowered by that of the one who is Manhig? (<b>RAMBAN</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TOSFOS HA'ROSH</b> answers that the Gemara takes it for granted that holding on to the reins does not improve the act of Kinyan of one who is Rochev. Therefore, if the claimant who is Rochev receives half of the animal when the other claimant is Manhig, then one who is Yoshev also should receive half in such a situation. Only according to the Rabanan is it possible that holding on to the reins might improve his act of Kinyan -- that is, when the rider is doing everything that the Manhig is doing, and in addition he is holding on to the reins. In such a case, one might have thought that the act of the Manhig is insignificant, and thus the Mishnah teaches that the Manhig is Koneh nevertheless. (See <b>TOSFOS</b> DH Mahu d'Teima, and <b>MAHARSHA</b> in <b>MAHADURA BASRA</b>.)
</p><p>
(b) The <b>RAMBAN</b> writes that if an act of Yoshev alone is Koneh, then a person who is Rochev certainly will be Koneh even when another person is Manhig the animal, since the rider's act of Kinyan cannot be worse than that of a person who is sitting with no one else leading the animal.
</p><p>
(c) The <b>RIVAN</b> cited by the Tosfos ha'Rosh answers that the Mishnah in Kil'ayim in which Rebbi Meir says that one who is Yoshev is considered to be moving the animal refers to a situation in which someone else is leading the animal at the same time. The Mishnah there is not giving two different cases -- one case in which a person is leading the animal and another in which a person is sitting in the wagon. Accordingly, the Mishnah in Kil'ayim teaches that Yoshev is considered an act of Kinyan even when someone else is Manhig, and thus certainly Rochev is considered an act of Kinyan.
</p><p>
(d) According to the way we explained the Gemara according to Rashi (see previous Insight), the Gemara is not asking that the Mishnah should have said 'Yoshev' instead of 'Rochev' according to Rebbi Meir. Rather, the Gemara is asking what the Mishnah teaches when it says that two people riding an animal split it. According to Rebbi Meir, this Halachah (that Rochev is Koneh) is already taught in the Mishnah in Kil'ayim. It must be that the Mishnah here intends to teach that even according to the Rabanan, Rochev is Koneh, and Yoshev is not Koneh.
</p><p>
The Gemara answers that the Mishnah's case of two people riding an animal indeed teaches no new Halachah. Rather, the Halachah that the Mishnah teaches is that when one person is Rochev and one is Manhig, they split the animal. This Halachah is a Chidush both according to the Rabanan (because it teaches that Rochev who is Manhig b'Raglav does not overpower one who is Manhig) and according to Rebbi Meir (because it teaches that Manhig does not overpower the act of a person who is merely Rochev or Yoshev on the animal without being Manhig b'Raglav).
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DOES RIDING ACQUIRE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #1 - Support (Beraisa):</font></b> If two people were
          pulling a camel or leading a donkey, or one was pulling
          and one was leading, in this way, they acquire;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah says, only Meshichah (pulling) acquires a
               camel, only leading acquires a donkey.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #1:</font></b> The Beraisa mentions pulling and
               leading, but not riding. (This shows that riding
               does not acquire!)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection:</font></b> Really, also riding acquires. It mentions only
          pulling and leading, for the Tana'im argue about these.
          The first Tana says that either animal is acquired
          through either of them.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If so, the Beraisa should teach them together!
          If two people were pulling or riding, whether a camel or
          donkey...
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> One of the two methods does not acquire one of
          the two animals.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Some say that pulling does not acquire a donkey.
               Others say that leading does not acquire a camel.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #2 - Support (Seifa):</font></b> ... In this way, they
          acquire. (Usually, 'Mosiv' is a question, but here it is
          not - Rivan, in Shitah Mekubetzes.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What does this exclude?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> It excludes riding.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, it excludes pulling a donkey or leading a
          camel.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> That is R. Yehudah's opinion!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The first Tana holds that one of these (pulling a
          donkey, or leading a camel) acquires. R. Yehudah holds
          that neither acquires.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven was riding a donkey; and
          Shimon was holding the halter, Reuven acquires the
          donkey, Shimon acquires the halter.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This shows that riding acquires!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Here also, he conducts it with his legs.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> If so, he should also acquire the halter!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Indeed, (the Beraisa means that) Reuven
          acquires the donkey and half the halter, and Shimon
          acquires half the halter.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Objection:</font></b> Granted, Reuven acquires half the halter, for
          (it is like part of the donkey, and) also the other half
          is held by one who is able to acquire (Shimon);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, Shimon holds only half (and the donkey
               holds up the other half). How can he acquire?!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Indeed, Reuven acquires the donkey and the
          entire halter, except for the part in Shimon's hand,
          which Shimon acquires.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Objection:</font></b> Even if you will say that if Levi lifts a
          Metzi'ah for Yehudah to acquire, Yehudah acquires, that
          is only if Levi intends for Yehudah to acquire;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, Shimon holds the halter only to acquire it
               himself. If he does not acquire (any part of what is
               outside his hand), will Reuven acquire through
               Shimon's holding?!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #3 (Rav Ashi):</font></b> Indeed, Reuven acquires the donkey
          and the part of the halter in the donkey's mouth. Shimon
          acquires the part he holds. Neither acquires the rest of
          the halter.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer #4 (R. Avahu):</font></b> The Beraisa is like the simple
          meaning. Shimon acquires the entire halter; because he
          could yank it and it would come to him.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Rejection:</font></b> This is wrong!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it were true, if a garment were half on the floor
               and half on a post, and David picked up the part on
               the floor, and then Moshe picked up the part on the
               post, would David acquire it all, because he could
               yank it?! (When two pick up a Metzi'ah, we do not
               distinguish whether one end was higher than the
               other!)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ABNORMAL ACQUISITION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Beraisa - R. Eliezer):</font></b> Riding in a field or
          leading in a city acquires.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> There also, he conducts with his legs.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question #1:</font></b> If so, that is also leading!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa discusses two kinds of leading.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question #2:</font></b> If so, why doesn't riding in a city acquire?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rav Kahana):</font></b> It is abnormal to ride in the
          city.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> (Rav Ashi): If so, one who picks up a wallet
          on Shabbos does not acquire, for it is abnormal to do so!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> That is not so. What he did, he did (and he
               acquires). The same applies here!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> The Beraisa discusses buying. The
          case is, the seller told him to acquire like people
          normally do.
<br>
<br>

sjt:
<font><b>1) FURTHER PROOF THAT ONE ACQUIRES AN ANIMAL THROUGH RIDING IT</b></font><b>
<br>QUESTION:</b> The Gemara cites a Beraisa which teaches that if one person is riding an animal and another person is holding the reins (but not causing it to walk), the person riding it acquires the animal and the person holding the reins acquires only the reins. The Gemara attempts to prove from here that a person can acquire an animal by riding it ('Rochev').
</p><p>
<b>RASHI</b> (DH Shema Minah) explains that the Gemara intends to prove that when a person is riding (Rochev) an animal and no one else is leading it (Manhig), he acquires the animal. Since he acquires the animal when no one is Manhig, when someone else <i>is</i> Manhig at the same time that he is Rochev, each person acquires half of the animal.
</p><p>
Where does Rashi see this? The Beraisa teaches only that the person riding the animal acquires it. It makes no mention of a person leading the animal at the same time. The Gemara earlier (8b) explains that even if a person can acquire an animal by riding it, when someone else is leading it at the same time, only one of them, either the Rochev alone or the Manhig alone, acquires it. What forces Rashi to explain that the Gemara here abandons that logic? (<b>MAHARSHA</b>; see also <b>RAMBAN</b>, <b>RASHBA</b>, and <b>RAN</b>.)
</p><p>
<b>ANSWER:</b> The <b>TOSFOS HA'ROSH</b> explains that when the Gemara (at the end of the previous Daf) attempts to prove from the Mishnah that one who is Rochev is Koneh, it abandons the earlier logic of Rav Yehudah (beginning of 8b) who suggests that when one person is Rochev and one is Manhig, one Kinyan overrides the other. The Gemara infers this from the fact that the Mishnah says that the Rochev and Manhig split it and neither Kinyan overrides the other.
</p><p>
<b>TOSFOS</b> (DH O Dilma, and DH Mahu d'Teima) discusses how the ruling of the Mishnah can be reconciled with Rav Yehudah's logic that one Kinyan overrides the other. Tosfos and other Rishonim explain that Rav Yehudah's ruling applies when two people attempt to acquire an animal from Hefker at the same moment -- one by riding it and one by leading it. In such a case, only one of the Kinyanim takes effect. The ruling of the Mishnah, in contrast, applies when the Rochev and the Manhig come before Beis Din together and each one claims that he took the animal entirely by himself before the other person performed any act of Kinyan on it. In such a case, one Kinyan cannot override the other, since only one of them performed a Kinyan; the doubt is merely which one performed the Kinyan. The act of riding or leading the animal tells Beis Din that each of these claimants is Muchzak in the animal. Although with regard to making a Kinyan, one act of Kinyan can override another act of Kinyan, with regard to an act's ability to have the status of a Chazakah the Chazakah of the Rochev cannot override the Chazakah of the Manhig, and vice versa. According to Tosfos, the only time that one Chazakah might override another Chazakah is when one person is Manhig and the other person is both Rochev and Manhig b'Raglav (using his feet to make the animal move). In such a case, the Rochev is doing everything that the Manhig is doing, plus more, and therefore his Chazakah might override the Chazakah of the Manhig.
</p><p>
Rashi, as the Tosfos ha'Rosh explains, does not learn the Sugya this way. Rashi understands that just as the Chazakah of one who is Rochev does not override the Chazakah of one who is Manhig, similarly -- with regard to a Kinyan -- when one is Rochev and one is Manhig they split the animal. Therefore, the Gemara attempts not only to prove from the Mishnah that Rochev is a Kinyan, but also that Rav Yehudah's logic is incorrect and that the Kinyan of a Rochev does not override that of a Manhig, and vice versa. Consequently, when the Gemara here proves from the case in which one person is riding an animal while another person is holding the reins that the Rochev is Koneh the animal, Rashi explains that the Gemara reverts to the logic which it attempted to prove from the Mishnah -- that is, first, that Rochev is Koneh, and, second, that Rochev and Manhig are equal Kinyanim and they split the animal when done together.
</p><p>
This is also the way that the <b>MAHARSHA</b>, <b>PNEI YEHOSHUA</b>, and '<b>MORI HA'RAV</b>' cited by the Shitah Mekubetzes explain Rashi's words. However, the Maharsha and others attempt to reconcile this with the logic of Rav Yehudah (8b), whereas the Tosfos ha'Rosh writes simply that Rav Yehudah's logic was forced, and therefore Rashi preferred to adopt the approach (i.e. that Rochev and Manhig are Kinyanim of equal strength) which the Gemara takes when it asks its question from the Mishnah.
</p><p>
Why does Rashi not explain this point when the Gemara (8b) originally proves from the Mishnah that Rochev is Koneh? Moreover, what forces Rashi to choose sides about whether Rav Yehudah is correct or whether Rochev and Manhig are equal Kinyanim?
</p><p>
The Rosh writes that Rashi does not mention this earlier when the Gemara proves the Halachah from the Mishnah since it was obvious that the point of the Gemara is to prove that Rochev and Manhig are equal.
</p><p>
The <b>MAHARI ABUHAV</b> (cited by the Shitah Mekubetzes) explains that Rashi infers his explanation from the fact that the Gemara uses the introductory phrase 'Ta Shema' and not 'Meisivei,' the phrase that it uses when it asks from the Mishnah. Rashi learns from this that the Gemara is not presenting a new question on Rav Yehudah, but rather it is strengthening the question that it asked on Rav Yehudah from the Mishnah. (However, the Gemara often introduces its first question with the word 'Meisivei' and then introduces its second question with the words 'Ta Shema.')
</p><p>
The most straightforward explanation for Rashi's words, however, is what the Rosh later adds when he writes that he found manuscripts in which the Gemara here says that the Beraisa maintains that 'Rochev <i>too</i> is Koneh.' (This is also the Girsa of a number of manuscripts cited by the <b>DIKDUKEI SOFRIM</b>.) Accordingly, Rashi is explaining why the Gemara says that Rochev is also Koneh when it should have said that <i>even</i> Rochev is Koneh. Rashi explains that the Gemara means that even when one is riding the animal at the same time that the other person is leading it, the Manhig is not the only one who is Koneh the animal, but the Rochev is also Koneh it, as the Gemara earlier attempts to prove from the Mishnah.
</p><p>
(See also the <b>GILYON</b> cited by the Shitah Mekubetzes who suggests another approach, and see <b>KETZOS HA'CHOSHEN</b> 269:4.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES SHELICHUS ALLOW SEIZURE FOR A CREDITOR WHEN THIS HARMS OTHERS?</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'> 9b (Mishnah):</font></b> If Reuven saw a Metzi'ah and told
               Shimon 'give it to me', if Shimon took it and said
               'I acquired it myself', he acquires it. If he said
               this after giving it to Reuven, Reuven acquires.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Mishnah - R. Eliezer):</font></b> If Levi gathered Pe'ah
               (produce left for the poor) and said 'this is for
               Ploni the Oni (poor person)', he acquired for him;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim say, he must give it to the first Oni he
               finds.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'>(Ula):</font></b> R. Eliezer and Chachamim argue in the case
               when Levi is rich. R. Eliezer holds that Migo if
               Levi would make his property Hefker, he (would be
               poor and) could take Pe'ah for himself, and Migo he
               could acquire it for himself, he may acquire it for
               an Oni. Chachamim hold that we may use only one
               Migo.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  All agree that an Oni may acquire for another
                    Oni. Migo he could acquire it for himself, he
                    may acquire it for another.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (Rav Nachman):</font></b> They argue in the case when
               Levi is poor! Everyone is like an Oni regarding a
               Metzi'ah (he may take it). In our Mishnah, Reuven
               told Shimon 'give it to me' and if Shimon says that
               he took it for himself, he acquires it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If they argue about an Oni, our Mishnah is
                    Chachamim (therefore, Reuven does not acquire).
                    But if all agree that an Oni can acquire for
                    another Oni, our Mishnah is not like either
                    Tana!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (Ula):</font></b> Shimon said before picking it up that
               he picks it up for himself.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rav Nachman and Rav Chisda):</font></b> If Shimon picked up a
               Metzi'ah for Reuven, Reuven does not acquire.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> This is like Tefisah l'Ba'al Chov (seizing property
               for a creditor) when this causes a loss to others.
               (Here also, others would have wanted to take the
               Metzi'ah.)
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question (Rava - Beraisa):</font></b> A worker keeps Metzi'os
               that he finds. This is only if the employer hired
               him for a particular job, e.g. 'weed for me today'.
               If he said 'work for me today', the employer gets
               it.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer (Rav Nachman):</font></b> A worker is different. His Yad
               (power of acquisition) is like the Yad of his
               employer (he acquires for his employer).
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (R. Yochanan):</font></b> If Shimon picked up a Metzi'ah for
               Reuven, Reuven acquires.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Question:</font></b> In the Mishnah, Reuven does not acquire
               (even if Shimon did not say that he picks it up for
               himself until later)!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Answer (R. Yochanan):</font></b> In the Mishnah, Reuven asked
               Shimon to <i>give</i> it to him, he never asked him to
               <i>acquire</i> it for him.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Kesuvos 84b:</font></b> Ploni owed money to Yeimar bar Chashu.
               Ploni died and left a boat. Yeimar made a Shali'ach
               to seize it for him; the Shali'ach did so. Rav Papa
               and Rav Huna brei d'Rav Yehoshua (who were also
               creditors of Ploni) saw him.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Rav Papa and Rav Huna:</font></b> You seize for a creditor in a
               case where it harms others. R. Yochanan says that
               such seizure is invalid.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Gitin 4b):</font></b> Tefisah l'Ba'al Chov does not
               acquire when this harms others.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 20:2):</font></b> If someone else seized
               the borrower's property on behalf of one of the
               creditors, it does not help. Anyone who seizes for a
               creditor when the borrower also owes others did not
               acquire.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (ibid.):</font></b> If Ploni seized property from a
               borrower on behalf of a creditor when this harms
               others, he did not acquire. This is even if the
               creditor made him a Shali'ach, like it says in
               Kesuvos. Normally, one's Shali'ach is like himself.
               However, one cannot make a Shali'ach to harm others.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Bava Metzi'a 1:27):</font></b> Rav Nachman and Rav Chisda
               hold that if Shimon picked up a Metzi'ah for Reuven,
               Reuven does not acquire. This is like one who seizes
               property for a creditor when this causes a loss to
               others. He did not acquire, even if he was made a
               Shali'ach with Harsha'ah (power of attorney). An
               Apotropos (overseer) acquires, for he is like the
               Yad of the owner. It is as if it does not harm
               others. We learn from Kesuvos, and also in our
               Mishnah; Reuven made Shimon a Shali'ach, but it does
               not help. The Mishnah does not prove otherwise. One
               who says 'give' means 'acquire for.' We infer that
               if one seized for a creditor when it does not harm
               others, he acquired.
<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 (ibid.):</font></b> If one seized for creditor
               when this harms others, he did not acquire, even if
               he was made a Shali'ach with Harsha'ah. An Apotropos
               acquires, for he is the Yad of the owner.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH ha'Tofes):</font></b> Rashi says that if a
                    Shali'ach seized for creditor when this harms
                    others, he acquired. Tosfos, the Ran and R.
                    Yerucham prove from Kesuvos that he does not.
                    The Rosh says that even a Harsha'ah does not
                    help.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bach (DH ha'Tofes):</font></b> If Levi merely told a
                    Shali'ach to seize for him, Levi could retract
                    at any time, therefore the Shali'ach cannot
                    seize and harm others (perhaps Levi retracted).
                    If Levi made a Harsha'ah, he cannot retract.
                    The Shali'ach acquired a gift, and he is like a
                    creditor and can seize! Rashi discusses this
                    case. The Rosh learns from Yeimar bar Chashu
                    and Metzi'ah that even a Harsha'ah does not
                    help. What is the source that there was a
                    Harsha'ah there?! Perhaps the Rosh infers from
                    R. Chananel, who says that an Apotropos is like
                    the owner. If a Shali'ach with a Harsha'ah were
                    like an owner, he would have taught this bigger
                    Chidush.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Shach 1):</font></b> The Rosh learned from
                    Metzi'ah, to which Harsha'ah does not apply.
                    Also, Harsha'ah is only so the borrower cannot
                    say 'you have no claim against me.' This does
                    not apply here (for the borrower does not claim
                    this).
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Defense (Tumim 2):</font></b> Tosfos Chitzoniyos (in
                    Shitah Mekubetzes 10a DH uv'Tosfos) says that
                    when there is a Harsha'ah, it is not called
                    Tefisah l'Ba'al Chov. According to one version
                    in Rashi (Bava Kama 70a DH Kivan), Tefisah
                    l'Ba'al Chov of a Shali'ach does not work
                    without a Harsha'ah. The Nimukei Yosef also
                    brings this. It seems that this applies to
                    loans, for which Harsha'ah works properly. It
                    is only an enactment that Harsha'ah helps for
                    other matters. Then, it does not give any extra
                    power to a Shali'ach.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Shach:</font></b> Mahara Sason (67) says that the Ritva
                    holds like Rashi; he made a Shali'ach with
                    witnesses. One can say 'Kim Li (it is clear to
                    me) that the Halachah follows Rashi and the
                    Ritva.'
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Rebuttal (Shach):</font></b> Surely, witnesses do not
                    change anything. Also, it seems that Yeimar bar
                    Chashu was appointed with witnesses!
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Question (Pnei Moshe 1:91):</font></b> Only a litigant can
                    say 'Kim Li.' One who will not benefit from
                    this cannot say so on behalf of another, i.e. a
                    Shali'ach for the creditor! Rather, we follow
                    the majority opinion. However, I defer to
                    Mahara Sason, especially for an Apotropos, for
                    his Yad is like the orphans' Yad.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Shach:</font></b> In Bava Metzi'a, Rashi said that
                    Shelichus helps. He did not say so in the
                    primary Sugya in Gitin. Surely, mere speech
                    does not make a Shali'ach, like it says in Bava
                    Metzi'a. He must hire him. We find that a
                    worker's Metzi'os go to his employer. I think
                    that all Poskim agree that a hired Shali'ach
                    can seize even when it harms others, like we
                    find in Bava Metzi'a.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b></b> Question (Hafla'ah, Kuntres Acharon EH 93:28):
                    An employer gets Metzi'os that his worker finds
                    only if he said 'work for me today', for then
                    he is like his slave, but not if he hired him
                    for a particular job. The Yad of a Shali'ach
                    hired only to seize is not like the creditor's
                    Yad!
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Gra (2,3):</font></b> Gitin 52a says that an Apotropos can
                    claim to benefit orphans. In Bava Metzi'a, it
                    says a worker can acquire for his employer, for
                    his hand is like his employer's hand.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (EH 93:28):</font></b> If a widow seized
               Metaltelim from the estate to be fed from them, we
               do not take them from her.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> This is only if she herself seized. Seizure by
               a Shali'ach does not help.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>TOFES L'BA'AL CHOV WHEN THIS DOES NOT HARM OTHERS </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	In the following cases, it is normal to ride, and he
          would acquire:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He is on a public road (in the city), he is a
               distinguished person (it does not befit him to lead
               it), the buyer is a woman (she is too weak to lead
               it), he is lowly (he rides anywhere. Average people
               prefer to lead it, for riding is immodest.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (R. Elazar):</font></b> If Reuven told Shimon 'Meshoch
          (take to your Reshus) this animal (with intent) to
          acquire the Kelim on it', what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Objection:</font></b> Reuven did not say that he transfers
               ownership! (His words suggest only that Shimon
               should intend to acquire.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Correction:</font></b> Rather, if he said 'Meshoch this animal
               and acquire the Kelim on it', what is the law?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Does pulling the animal acquire the Kelim? (The
                    Gemara never answers the question.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> R. Elazar asked only about acquiring
          only the Kelim. This implies that had he said 'acquire
          the animal and acquire the Kelim', he would acquire;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> An animal is (like) a moving Chatzer, which is
               invalid for Kinyan Chatzer
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps the case is that the animal
               stood still!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> Anything that does not acquire if it
               moves, it does not acquire if it stands still.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the animal was tied up and could not
          move.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (against Rava - Rav Papa and Rav Huna brei d'Rav
          Yehoshua):</font></b> If fish jumped into a ship, would you say that
          the ship does not acquire them because it is a moving
          Chatzer?!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The ship is not a moving Chatzer. It
          stands still, and the water moves it.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> If a woman was walking in the Reshus
          ha'Rabim, and her husband threw a Get in her garment or
          basket, would she not be divorced?!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> The basket stands still, and she moves
          it.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>TAKING PE'AH FOR AN ONI</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven was riding on an animal and saw a
          Metzi'ah, and told Shimon 'give it to me':
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon took it and said 'I acquired it myself',
               he acquired it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said this after giving it to Reuven, Reuven
               acquired.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Mishnah - R. Eliezer):</font></b> If Levi gathered Pe'ah
          and said 'this is for Ploni the Oni', he acquired for
          him;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Chachamim say, he must give it to the first poor person
          he finds.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Ula):</font></b> They argue about when Levi himself is rich:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Eliezer holds that Migo (since) if Levi would
               make his property Hefker, Pe'ah would be fitting for
               him (to take), even when he is rich, it is fitting
               for him;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Migo he could acquire it for himself, he may
                    acquire it for an Oni.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim hold that we may use only one Migo.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> All agree that an Oni may acquire for another Oni.
               Migo he could acquire it for himself, he may acquire
               it for another.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rav Nachman):</font></b> Rather, you should say that they
          argue about when Levi is poor!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Everyone is like an Oni regarding a Metzi'ah (he may
               take it). In our Mishnah, if Reuven told Shimon
               'Give it to me' and Shimon says that he took it for
               himself, he acquires it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Granted, if they argue about an Oni, our Mishnah is
               Chachamim (therefore, Reuven does not acquire);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> But if all agree that an Oni can acquire for another
               Oni, our Mishnah is not like either Tana!
<br>

<p>

sjt:
</p><p>
<font><b>2) PULLING AN ANIMAL IN ORDER TO ACQUIRE THE ITEM ATOP IT</b></font><b>
<br>QUESTIONS:</b> Rebbi Elazar asked what the Halachah is in the case of a person who tells his friend, 'Do Meshichah on this animal to acquire the Kelim that are on it.' The Gemara immediately asks that he certainly should not acquire the Kelim, because the owner told him merely to 'do Meshichah <i>to</i> acquire' and not 'do Meshichah <i>and</i> acquire.' It must be that Rebbi Elazar's question was whether one acquires the Kelim when the owner tells him to 'do Meshichah <i>and</i> acquire the Kelim.'
</p><p>
(a) Why should the recipient not acquire the Kelim when the owner says 'do Meshichah <i>to</i> be Koneh'? What else could he possibly mean other than that he wants the recipient to acquire the Kelim?
</p><p>
(b) Does the Gemara here imply that if a person sells an object to a buyer and says, 'Do Meshichah <i>to</i> acquire this object,' that the recipient does not acquire it when he does Meshichah?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ROSH</b> (1:24) explains that when the person says, 'Do Meshichah <i>to</i> acquire,' he might mean to say it rhetorically. He is saying, 'Do you think you will acquire the Kelim by pulling the animal? Go and do Meshichah and see if you can acquire the Kelim!'
</p><p>
(b) The Rosh explains that normally the giver is not suspected of having such intentions. However, in the case of the Gemara, the giver certainly is not interested in giving away his animal, and there is a doubt as to whether he wants to give away his Kelim. In such a case, since the primary object (the animal) which is being pulled is not being given, there is reason to suspect that the secondary object (the Kelim) is not being given either. However, when the giver is <i>only</i> giving the animal and tells the recipient to do Meshichah on the animal, even when he tells the recipient to 'do Meshichah <i>to</i> acquire' the recipient still acquires the animal.
</p><p>
The <b>RITVA</b>, however, writes that even though '<i>to</i> acquire' implies that the person is giving away the Kelim, nevertheless since it is not completely clear the Kinyan does not take effect. A Kinyan requires wording which is absolutely clear.
</p><p>
The Ritva implies that the wording 'to acquire' does not suffice even to acquire the animal itself (in contrast to the view of the Rosh).
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>PICKING UP A METZI'AH FOR ANOTHER PERSON</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer (Ula):</font></b> In our Mishnah, Shimon said before picking
          it up that he picks it up for himself.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Support (Seifa):</font></b> If after giving it to Reuven, he said 'I
          acquired it for myself first', Reuven acquired it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Obviously, he means that he acquired for
               himself first (when he picked it up). Why does it
               say 'first'?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> This teaches that in the Reisha, (he did not
               need to say 'first' because) he said before picking
               it up that he picks it up for himself.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Rav Nachman says that it says 'first' only in the Seifa
          to teach that in the Reisha, even though he does not say
          'first' (i.e. that he intended for himself when he picked
          it up), he acquires.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Nachman and Rav Chisda):</font></b> If Shimon picked up a
          Metzi'ah for Reuven, Reuven does not acquire.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> This is like one who seizes property (from a
          borrower) for a creditor when this causes a loss to
          others (other creditors would have wanted to seize the
          property); he does not acquire. (Here also, others would
          have wanted to take the Metzi'ah.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rava - Beraisa):</font></b> A worker keeps Metzi'os that
          he finds. This is only if the employer hired him for a
          particular job, e.g. 'weed for me today';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'work for me today', the employer gets
               it.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> A worker is different. His Yad
          (power of acquisition) is like the Yad of his employer
          (he acquires for his employer).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Rav taught that a worker can quit his
          job in the middle (this shows that he is not a mere Yad
          of his employer)!!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> Until he quits, his Yad is like his
          employer's Yad;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He can quit because 'to Me Bnei Yisrael are slaves'
               - they are not slaves to slaves.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(R. Chiya bar Aba):</font></b> If Shimon picked up a Metzi'ah for
          Reuven, Reuven acquires.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> In the Mishnah, Reuven does not acquire (even
          if Shimon did not say that he picks it up for himself
          until later)!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (R. Chiya bar Aba):</font></b> In the Mishnah, Reuven asked
          Shimon to give it to him, he never asked him to acquire
          it for him.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A PERSON'S FOUR AMOS ACQUIRE FOR HIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven saw a Metzi'ah and fell on it, and
          Shimon grabbed it, Shimon keeps it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Reish Lakish):</font></b> In every place, the four Amos
          around a person acquire for him.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Chachamim enacted this to avoid fights (to grab
          Metzi'os).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question #1 (R. Chiya bar Yosef - Mishnah):</font></b> If Levi took
          some Pe'ah and threw it on the rest, this does nothing;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he fell on it or threw his garment on it, others
               may take the Pe'ah from him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The same applies to a forgotten sheaf (Shichchah).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Summation of question:</font></b> If the four Amos around a
               person acquire for him, he should keep what he fell
               on!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case is, he did not say that his four Amos
          should acquire for him.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> If Chachamim enacted, he should not need to say
          anything!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Abaye):</font></b> By falling on it, he shows that he
          wants to acquire by falling, not through his four Amos.
<br>
<br>

sjt:
<font><b>1) APPOINTING A 'SHALI'ACH' TO BE 'TOFES L'BA'AL CHOV'</b></font><b>
<br>QUESTION:</b> Rav Nachman rules that when a person finds a Metzi'ah and lifts it up with intention to acquire it on behalf of someone else, the other person does not acquire it. The person who lifts it up is comparable to one who is 'Tofes l'Ba'al Chov b'Makom she'Chav l'Acherim' -- one who seizes money from a debtor on behalf of a creditor, when doing so causes a loss to others (such as other creditors of this debtor). <b>RASHI</b> here (DH Tofes and DH Lo Kanah) and in Gitin (11b, DH ha'Tofes) explains that 'Tofes l'Ba'al Chov' refers to a person who was not appointed as a Shali'ach to collect the debt. Since he is not a Shali'ach, he has no right to cause other people to incur a loss in order to help his friend get his money. Rashi implies that if the Ba'al Chov <i>did</i> appoint someone to seize the money for him, everyone agrees that the Shali'ach is able to be 'Tofes l'Ba'al Chov.'
</p><p>
This implication of Rashi (that when a person is appointed as a Shali'ach there is no problem of 'Tofes l'Ba'al Chov b'Makom she'Chav l'Acherim') is problematic. Rav Nachman originally attempted to prove from the Mishnah -- which discusses a case of a person riding an animal who tells his friend to give him a Metzi'ah on the ground -- that one who lifts up a Metzi'ah for his friend is not Koneh. Rav Nachman assumes that saying 'give it to me' is the same as saying 'be Zocheh it for me,' and thus the person riding the horse effectively appoints the person near the Metzi'ah to be his Shali'ach, and nevertheless Rav Nachman assumes that he is not Koneh for the person riding the animal! Similarly, in the end of the Sugya, Rebbi Yochanan rules that a person who picks up a Metzi'ah for his friend <i>is</i> Koneh for his friend, and he addresses the problem to his ruling posed by the Mishnah -- why can the person who picked up the Metzi'ah for his friend change his mind? Rebbi Yochanan answers that saying 'give it to me' is not like saying 'be Zocheh it for me.' This implies that according to those who argue with Rebbi Yochanan (such as Rav Nachman), even if saying 'give' is like saying 'be Zocheh,' and the rider of the animal <i>did</i> appoint the other person as his Shali'ach, nevertheless the Shali'ach will not be Koneh it on behalf of the rider. How, then, can Rashi write that the problem of 'Tofes l'Ba'al Chov' applies only when a person is not a Shali'ach? (<b>RAMBAN</b>, <b>RASHBA</b>, <b>ROSH</b> 1:27, <b>TOSFOS RABEINU PERETZ</b>, and others)
</p><p>
<b>ANSWERS:</b>
<br>(a) Rashi differentiates between the case of a person who collects a loan on behalf of a Ba'al Chov and the case of a person who picks up a Metzi'ah on behalf of a friend. Rashi states that appointment as a Shali'ach allows one only to collect for a Ba'al Chov, but it does not enable one to be Koneh a Metzi'ah on behalf of someone else.
</p><p>
The logic for this distinction is that the principle of 'Shali'ach Shel Adam Kemoso' ('a person's Shali'ach is considered like him') does not 'transform' one person into another person. Rather, it merely allows one person's act to take effect for another person, or an one person's authority to be transferred to another person. The Ba'al Chov owns a Shibud in the property of the borrower. When he appoints a Shali'ach to collect the debt, he gives the authority over the Shibud to the Shali'ach. The moment the person who will collect the loan receives this authority he is considered the Shali'ach of the Ba'al Chov, even though he has not yet collected the money. The principle of 'Shali'ach Shel Adam Kemoso' teaches that he may collect the debt just as the Ba'al Chov may collect it. In contrast, in the case of a Metzi'ah a person has no rights to a Metzi'ah before he picks it up, and thus when he appoints someone to pick it up for him the Shelichus takes effect only at the moment that the appointee picks up the object on behalf of the one who appointed him. However, at the moment he picks up the Metzi'ah to perform the Shelichus for which he was appointed, he has no right to make himself a Shali'ach of that person and thereby cause a loss to others. Since he could be a Shali'ach for any other person, why should he make himself a Shali'ach for this person? Accordingly, the appointment of a Shali'ach to acquire a Metzi'ah on one's behalf is not effective. This might be the intention of the <b>GILYON</b> cited by the Shitah Mekubetzes in his explanation of Rashi. (See also '<b>MOREINU HA'RAV</b>' cited by the Shitah Mekubetzes, <b>PNEI YEHOSHUA</b>, and <b>BEIS HA'LEVI</b> (3:44) who suggest other approaches to understanding the words of Rashi.)
</p><p>
What is Rashi's source for differentiating between one who picks up a Metzi'ah on behalf of someone else and one who is 'Tofes l'Ba'al Chov'? Perhaps Rashi derives this from the word 'Tofes,' which implies that the person seizes the item without authority, in contrast to 'ha'Magbi'ah' ('one who lifts') or 'ha'Zocheh l'Ba'al Chov' ('one who acquires for a Ba'al Chov').
</p><p>
<b>TOSFOS</b> (DH Tofes) challenges Rashi's explanation from the Gemara in Kesuvos in which a person who was appointed as a Shali'ach to collect a debt was told by two Amora'im that he may not collect the debt because of 'Tofes l'Ba'al Chov b'Makom she'Chav l'Acherim.' In fact, Rashi himself there (Kesuvos 84b, DH ha'Tofes) writes that 'Tofes l'Ba'al Chov' applies even to a Shali'ach who is 'Tofes l'Ba'al Chov.' How is the Gemara there to be reconciled with the words of Rashi here?
</p><p>
The Gemara in Kesuvos concludes that Rava reprimanded the Amora'im who sent away the Shali'ach. Although Tosfos seems to understand that he reprimanded them for what they did afterwards (they tried to collect the loan for themselves even though it was the property (Metaltelin) of Yesomim), Rashi may understand that he also reprimanded them for misinterpreting Rav Nachman's statement and applying it to a situation in which a Shali'ach was appointed to collect a loan.
</p><p>


<font><b>2) MAY A JEW SIGN A CONTRACT OF EMPLOYMENT?</b></font><b>
<br>OPINIONS:</b> Rav rules that a hired laborer may quit his job even in the middle of the day. The Gemara explains that Rav's source is the verse, 'For the Jewish people are My servants' (Vayikra 25:55). The Jewish people are servants only to Hash-m and not to other servants, and thus a Jew who is working for another Jew may stop at any time.
</p><p>
This verse is also the source for the prohibition against selling oneself as a slave. Although the Torah allows a person to sell himself as a slave (Eved Ivri) under certain circumstances (see <b>SHACH</b> CM 333:16), one who does so transgresses this verse, as Rebbi Yochanan teaches in Kidushin (22b).
</p><p>
To what extent does this prohibition apply? Does the Gemara mean that a Jew is not allowed to hire himself out as a worker at all?
</p><p>
(a) <b>TOSFOS</b> (DH Ki Li) writes that one may hire himself out as a worker. Only one who sells himself as an Eved Ivri -- who is bound to servitude and cannot leave voluntarily before the time is up -- is in violation of the verse. Since an ordinary laborer may cancel his employment at any time he is not in violation of the verse.
</p><p>
(b) The <b>HAGAHOS MORDECHAI</b> (Bava Metzia, ch. 6) proposes that a person may not hire himself out as a worker for more than three years at a time. The Gemara in Kidushin (15a) infers from the verse, '[It shall not be difficult in your eyes when you send him free,] because double that of a hired worker did he work for you for six years' (Devarim 15:18), that the Eved Ivri's normal term of servitude is defined as double the maximum term of an ordinary laborer, which is three years. It follows that a person who hires himself out for more than three years is not called a laborer. Although he is not an Eved who works for six years, he also is not classified as the type of worker the Torah permits, which is one who hires himself out for up to three years at a time. Therefore, a teacher, Sofer, or other type of worker who hires himself out in a permanent manner for more than three years to be 'dependent on the table' of the employer transgresses the verse of 'Avadai Hem' -- 'for the Jewish people are My servants.' The <b>REMA</b> (CM 333:3) rules in accordance with the Hagahos Mordechai. (The commentaries on the Rema point out that there is a printing mistake in the text of the Rema. The words 'three years' should read instead 'more than three years,' as the Mordechai writes.)
</p><p>
The <b>CHASAM SOFER</b> (Teshuvos CM 172) discusses why a community is permitted to hire a Rav for more than three years at a time. In those days (and in some places today), the Rav was supplied with all of his basic needs and a salary in exchange for serving as the spiritual leader of the community. The Chasam Sofer concludes that in order to avoid violating the verse of 'Avadai Hem,' the Rav's contract should include an explicit stipulation that the Rav may stop serving as the Rov whenever he wants, as long as he does not leave this community for a different community (in which case he must pay the community a certain amount of money. Since the Rav may leave his job whenever he wants, he is not in violation of 'Avadai Hem.'
</p><p>
The <b>PISCHEI CHOSHEN</b> (Hilchos Sechirus 7:1) points out that this Halachah applies only to one who hires himself out for more than three years in a permanent manner, where he is dependent on the table of the employer (as the Hagahos Mordechai writes). This means that he not only works for the employer during the day, but he also resides and eats under the auspices of his employer. Although the Hagahos Mordechai specifically mentions a teacher and Sofer, professionals who do not seem to work for more than a few hours during the day, apparently in the times of the Mordechai a teacher and Sofer stayed in the home of the employer and ate at his table. Accordingly, today a teacher or Sofer certainly may sign a contract of employment for more than three years, even according to the Mordechai. (See notes on Pischei Choshen there at length.) (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES SHALI'ACH L'DEVAR AVEIRAH TAKE EFFECT?</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'> (Ravina):</font></b> Ein Shali'ach l'Devar Aveirah only when
               the Shali'ach is Bar Chiyuva (liable for
               transgressing).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Sama):</font></b> Ein Shali'ach l'Devar Aveirah only when
               the Shali'ach can choose whether or not to comply.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> They argue about a Kohen who told a Yisrael 'be
               Mekadesh a divorcee to me', or a man who told a
               woman 'cut a boy's sideburns for me.' Rav Sama
               exempts the Meshale'ach, and Ravina obligates him.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Kidushin 42b - Question:</font></b> Yesh Shali'ach l'Devar
               Aveirah for Me'ilah. Why don't we learn from Me'ilah
               to other Aveiros?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #1:</font></b> Me'ilah and Shlichus Yad are Shenei
               Kesuvim, therefore, we do not learn to other cases.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2:</font></b> According to Beis Shamai (who disagree
               about Shelichus Yad), Me'ilah and selling or
               slaughtering a stolen animal are Shenei Kesuvim.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #3:</font></b> According to the opinion that that Shenei
               Kesuvim teach to other places, Beis Shamai learn
               from Shechutei Chutz (slaughtering Kodshim outside
               the Mikdash), it says 'to that man', not to his
               Shali'ach. (An extra verse teaches that we learn to
               all other Aveiros!)
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Gitin 40a (Rav Dimi):</font></b> If one said before he died
               that his heirs should not make his Shifchah work, we
               force them to free her.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Objection (R. Ami and R. Asi):</font></b> (If she is not
               freed,) her children are slaves. Why must the heirs
               free her? (It suffices that they not make her work!)
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Sotah 44a (Beraisa):</font></b> 'He did not (yet) marry her'
               teaches that one who was Mekadesh a forbidden wife,
               e.g. a widow to a Kohen Gadol, fights in war.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Suggestion:</font></b> This is unlike R. Yosi ha'Glili, who
               says that the softhearted person who returns is one
               who is afraid of his sins.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Rejection:</font></b> It is even like R. Yosi ha'Glili. Rabah
               taught that a Kohen Gadol who was Mekadesh a widow
               is not liable (for lashes) until he has Bi'ah with
               her.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (Kidushin 16b and 2:2):</font></b> Actions of
               David's Shali'ach are attributed to David, unless he
               was told to do an Aveirah. Then, we say that he
               should have listened to Hash-m, not to David.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Me'ilah 7:1):</font></b> If Reuven told Shimon
               'give one piece of meat to each guest,' and Shimon
               told the guests 'I allow you to take two each', and
               the guests took three each (and the meat was found
               to be Hekdesh), all were Mo'el.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (2):</font></b> This refers to meat of Bedek ha'Bayis.
               If the meat was of an Olah, only the ones who ate
               transgressed Me'ilah, for there was another Isur in
               addition to Me'ilah. In the entire Torah, Ein
               Shali'ach l'Devar Aveirah, except for Me'ilah with
               no other Isur involved.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Question (Tosfos Bava Metzi'a 10b DH d'Omar):
               According to Rava, even if Yesh Shali'ach l'Devar
               Aveirah, a Kohen is not lashed for Kidushin, until
               Bi'ah!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answers (Tosfos):</font></b> If Yesh Shali'ach, after Bi'ah he
               is lashed also for the Kidushin. Alternatively, if
               Ein Shali'ach, the Kidushin is invalid.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Question (Maharsha (Kidushin 43a DH Gemara):
                    Why was an extra verse needed to teach not to
                    learn Yesh Shali'ach l'Devar Aveirah from
                    Me'ilah and Shechitah? If we learned this, we
                    would not need verses to teach about Shelichus
                    for divorce and Kidushin!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer #1 (Maharsha):</font></b> We would not learn
                    Mitzvos from Aveiros. Perhaps it is a fine that
                    Yesh Shali'ach l'Devar Aveirah.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (and Answer #2 - Noda bi'Yehudah EH
                    75):</font></b> Surely, it is not a fine regarding
                    Me'ilah. The Meshale'ach is liable without
                    Shelichus! Rather, we asked that the Shali'ach
                    should be liable, and the Meshale'ach should be
                    exempt. Surely, Shelichus l'Devar Aveirah has
                    no Chalos (the Kinyan or Kidushin does not take
                    effect). We needed verses to teach that
                    Shelichus for divorce and Kidushin is Chal. Ein
                    Shali'ach l'Devar Aveirah connotes that it is
                    void. Ran and Answer #2 in Tosfos say so. The
                    Rambam must agree, for he (Hilchos Isurei Bi'ah
                    17:3) rules unlike the first answer. Answer #1
                    agrees that the Shelichus is not Chal. It holds
                    that since there was no Aveirah in the Kidushin
                    itself, it is Chal, even though Bi'ah forbids
                    the Kidushin retroactively. We asked (Kidushin
                    42b) why we don't learn from divorce to
                    obligate a Meshale'ach for an Aveirah. If we
                    could distinguish Chiyuv from Chalos, perhaps
                    we only learn from divorce that it is Chal, but
                    there is no source to obligate the Meshale'ach!
                    Rather, he is obligated if and only if his
                    Shali'ach is considered like him. The Rambam
                    says that Yesh Shali'ach l'Devar Aveirah only
                    regarding Me'ilah, i.e. only there we need to
                    say that it is Chal. Shechitah and Shelichus
                    Yad (use of a deposit) do not require
                    Shelichus.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Maharit:</font></b> Beis Hillel use the Drashah to
                    obligate for Shechitah or selling via one who
                    cannot be a Shali'ach. Beis Shamai use it for
                    Shenei Kesuvim, and obligate only via a
                    Shali'ach. Perhaps we conclude that they
                    obligate via anyone, and learn Ein Shali'ach
                    l'Devar Aveirah from Shechutei Chutz.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Ha'Makneh (Kidushin 42b DH Divrei):</font></b> According
                    to Answer #2 in Tosfos, when Ein Shali'ach, the
                    action (e.g. Kidushin) is not Chal. What is his
                    source? Perhaps Ein Shali'ach merely exempts
                    the Meshale'ach! It seems that he learns from
                    the Tosefta that the Rambam brought. If the
                    meat was an Olah, only the one who ate was
                    Mo'el, for the only Shali'ach l'Devar Aveirah
                    is Me'ilah with no other Isur involved. It
                    seems that the other Aveirah cancels the
                    Shelichus, even regarding Me'ilah. The Rambam
                    holds that Me'ilah is a Chidush, for only there
                    one benefits and another is lashed. If so, we
                    cannot learn from Me'ilah that another
                    Shelichus l'Devar Aveirah is Batel due to
                    another Aveirah. Sotah 44a supports Tosfos. We
                    thought that R. Yosi would disqualify one who
                    was Mekadesh a forbidden wife, for the Kidushin
                    was forbidden. If Ein Shali'ach does not
                    Mevatel the Chalos, perhaps he was Mekadesh her
                    through a Shali'ach! However, perhaps it is
                    Chal; the Mekadesh does not fight because a
                    Meshale'ach is liable b'Yedei Shamayim.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Ha'Makneh:</font></b> The Rema (YD 160:16, citing Rashi)
                    permits to tell Levi 'lend to me Moshe's money,
                    with Ribis', because Ein Shali'ach. He must
                    hold that the Shelichus is Batel. If not, the
                    borrower pays Ribis to the lender! The Taz (11)
                    rejects this, for a Madir (one who vowed not to
                    benefit Ploni) may not send to Ploni via a
                    Shali'ach. Ein Shali'ach exempts the
                    Meshale'ach only from Kares or lashes, but it
                    is forbidden. Rashi can say that Ein Shali'ach
                    does not apply here, for the Isur (to benefit)
                    applies only to Ploni (Ran Nedarim 15b). Even
                    though Lifnei Iver applies, Tosfos says that we
                    do not say Ein Shali'ach due to Lifnei Iver.
                    However, the Rambam holds that the Madir is
                    lashed. He holds that the Shelichus is Batel
                    only regarding Me'ilah. A support is a Get to
                    free an Eved Kena'ani. The master transgresses
                    'l'Olam Bahem Ta'avodu' (Gitin 38a), yet the
                    Shelichus is Chal! However, the primary Isur is
                    neglecting to make the slave work, and this the
                    master does himself.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Note:</font></b> What is the source that the primary Isur
                    is not making the slave work? Heirs must free a
                    Shifchah if their father commanded that they
                    not make her work. Tosfos (38a DH Kol) explains
                    that since they cannot make her work due to the
                    Mitzvah to fulfill the deceased's request,
                    there is no Isur to free her. Tosfos did not
                    ask why it is a Mitzvah to fulfill this
                    request! Many do not require Shelichus to write
                    a Get (Tosfos Gitin 22b DH v'Ha). Signing
                    requires Shelichus, but surely this is not
                    Shelichus l'Devar Aveirah if Edei Mesirah are
                    always required (Tosfos Gitin 4a DH d'Kaima)
                    and they are primary.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>SHALI'ACH L'DEVAR AVEIRAH MID'RABANAN </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #3 (Rav Papa):</font></b> Chachamim enacted four Amos in
          public areas, not in a private field.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even though the Torah allows poor people to enter
               the field, this is only to take the Pe'ah, but it is
               not considered their field.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question #2 (Rav Idi bar Avin - Mishnah):</font></b> If Reuven saw
          an Aveidah and fell on it, and Shimon grabbed it, Shimon
          keeps it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the four Amos around one acquire for him, he
               should keep what he fell on!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case is, he did not say that his four Amos
          should acquire for him.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> If Chachamim enacted, he should not need to say
          anything!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2:</font></b> By falling on it, he shows that he wants to
          acquire by falling, not through his four Amos.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #3 (Rav Sheshes):</font></b> Chachamim enacted four Amos only
          in a Simta (a corner next to Reshus ha'Rabim, where
          people make transactions), where it is not so crowded;
          but not in the main road.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> Reish Lakish said that in every place, a
          person's four Amos acquire!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> 'In every place' comes to include the sides of a
          Reshus ha'Rabim.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ACQUISITION THROUGH ONE'S CHATZER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> A (minor) girl does not acquire through
          her Chatzer, nor through her four Amos.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> She acquires through her Chatzer and her
          four Amos.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Yochanan holds that the Torah teaches that a
          Chatzer acquires like one's hand. Just like she has a
          hand (to acquire a Get), she has a Chatzer;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reish Lakish holds that the Torah says that a
               Chatzer acquires like a person's Shali'ach. Just
               like a Shali'ach does not acquire for her (minors
               cannot make Sheluchim), her Chatzer does not acquire
               for her.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Does anyone hold that a Chatzer acquires like a
          person's Shali'ach?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa) Question:</font></b> A thief is liable if the stolen
               object 'is found in his hand.' What is the source to
               include his roof, Chatzer or storage area?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The doubled verb 'Himatzei Simatzei'
               includes them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If they acquire (theft) like Sheluchim, they
                    would be Sheluchim for an Aveirah. We hold that 
                    Ein Shali'ach l'Devar Aveirah!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Ravina):</font></b> Ein Shali'ach l'Devar Aveirah only
          when the Shali'ach is liable for transgressing. A Chatzer
          is not liable, so (it can be a Shali'ach l'Devar Aveirah,
          and) the person is liable for what the Chatzer acquires.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, if Reuven told a (married) woman or
               a slave to steal, is Reuven liable because they are
               exempt?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Women and slaves are liable, just they
               cannot pay now;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If the slave was freed or the woman
                    became divorced, he or she must pay.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Rav Sama):</font></b> Ein Shali'ach l'Devar Aveirah only
          when the Shali'ach can choose whether or not to comply. A
          Chatzer has no choice, so (it is a Shali'ach, and) the
          person is liable.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between the two answers?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> They argue about a Kohen who told a Yisrael 'be
          Mekadesh a divorcee to me', or a man who told a woman
          'cut a boy's sideburns for me';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since they can choose whether or not to obey, Rav
               Sama exempts the Meshale'ach (the one who told them)
               for the Shali'ach's actions;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Since they are not liable for these actions, Ravina
               obligates the Meshale'ach for the Shali'ach's
               actions.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Does anyone hold that a Chatzer does not
          acquire like a person's hand?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa) Question:</font></b> It says '(and he will give a
               Get) in her hand.' What is the source to include her
               roof, Chatzer or storage area?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> 'And he will give' (is written before 'her
               hand', suggesting that he can put it in other places
               as well).
<br>

sjt:
</p><p>
<font><b>3) WHEN DOES 'EIN SHALI'ACH L'DEVAR AVEIRAH' APPLY?</b></font><b>
<br>QUESTION:</b> The Gemara discusses the concept of 'Ein Shali'ach l'Devar Aveirah.' Ravina says that this concept applies only when the Shali'ach himself is obligated to obey the act in question. Rav Sama says that this concept applies only where the Shali'ach may choose whether or not to do the sin. The Gemara explains that the practical difference between the two opinions is a case in which a Yisrael is appointed by a Kohen to betroth a divorcee on his behalf. According to Ravina, the Shelichus should take effect since the Shali'ach himself is not prohibited from marrying a divorcee. According to Rav Sama, the Shelichus should not take effect since a person may not act as an agent for a sin.
</p><p>
<b>TOSFOS</b> (DH d'Amar) explains that this difference does not seem practical. Even if Ravina maintains that the Shelichus works in such a case, the Halachah follows the view of Rava in Kidushin (78a) who says that when a Kohen is Mekadesh a divorcee he is not punished with Makos. He receives Makos only if he has relations with the divorcee. Accordingly, what practical relevance is there between Ravina and Rav Sama with regard to whether or not the Kidushin takes effect?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that according to Ravina, the Kohen will receive two sets of Makos when he has relations with the divorcee -- one for the act of Kidushin, and another for the act of relations. According to Rav Sama, he will receive only one set of Makos (for the act of relations).
</p><p>
(b) Alternatively, Tosfos answers that even according to Rava there is a practical difference. If the Shelichus works, then the Kidushin takes effect, and if the Shelichus does not work, then the Kidushin does not take effect. What exactly does Tosfos mean? The <b>SHA'AR HA'MELECH</b> (Me'ilah, ch. 7) explains that if the Shelichus works, the Kidushin takes effect and the divorcee becomes the legal wife of the Kohen, but if the Shelichus does not work, the Kidushin does not take effect and she is not the wife of the Kohen.
</p><p>
If there is no Makos due to the Kidushin, why should the Kidushin not be valid? What sin did the Kohen (or his Shali'ach) do through the act of Kidushin such that it should be invalid?
</p><p>
1. The <b>NODA B'YEHUDAH</b> (EH 1:75) explains that the second answer of Tosfos agrees that the Kohen is liable for Makos when he has relations with the divorcee, because he also performed an act of Kidushin. How does this answer differ from the first answer of Tosfos? According to Tosfos' second answer, the fact that the act of Kidushin may <i>lead</i> to an obligation of Makos (in the event that the Kohen has relations with the divorcee) gives the Kidushin the status of a sin now, even before the obligation of Makos actually takes effect.
</p><p>
2. The <b>MINCHAS CHINUCH</b> (#266) writes that Tosfos understands that there is a Torah prohibition against a Kohen betrothing a divorcee, whether or not he ends up having relations with her. Only his culpability for Makos depends on whether or not he has relations with her. Therefore, according to Ravina, who says that the Shelichus works, the Kohen transgresses a Torah prohibition. (Y. Montrose)
</p><p>


<font><b>4) THE SOURCE THAT 'KINYAN CHATZER' IS 'MISHUM YAD'</b></font><b>
<br>QUESTION:</b> The Amora'im argue about whether the Chatzer of a Ketanah acquires for her or not. Reish Lakish rules that a Ketanah has no Kinyan Chatzer. Rebbi Yochanan rules that she does. The Gemara explains that according to Reish Lakish, a Chatzer functions as an effective form of Kinyan through Shelichus, and a Ketanah has no Shelichus. According to Rebbi Yochanan, Kinyan Chatzer functions through Yad, and a Ketanah does have a Yad.
</p><p>
<b>RASHI</b> (DH Mishum Yadah) explains that according to Rebbi Yochanan, the source that Kinyan Chatzer works through Yad is the fact that the Torah says that the Get should be placed 'b'Yadah' (Devarim 24:1); 'Yadah' refers to any property of a person and not specifically to a person's hand.
</p><p>
According to Rashi, it seems that Rebbi Yochanan and Reish Lakish disagree about whether 'Yadah' means specifically 'hand' or whether it means one's property in general.
</p><p>
Why does Rashi explain that Chatzer works through Yad because 'Yadah' means her property? Rashi himself (end of DH Talmud Lomar, and in Gitin 77a, DH Talmud Lomar) gives a different source that Chatzer works through Yad. Rashi writes that if the verse had intended to limit the giving of the Get into the woman's hands, it should have said 'uv'Yadah Yitnenah.' In fact, the wording of the Gemara implies that the word 'Yadah' does not 'property,' as the <b>TORAS CHAIM</b> points out, since it says that 'Chatzer is to be included (Israba'i) in the category of Yad,' rather than 'Chatzer is derived from the word 'Yadah' (mi'Yadah Yalfinan).' This implies that a Ribuy teaches that Chatzer is a type of Yad, and not that it is learned from the actual meaning of the words. (<b>MAHARSHA</b> in <b>MAHADURA BASRA</b>)
</p><p>
<b>ANSWER:</b> Rashi understands that at this point in the Gemara, Rebbi Yochanan and Reish Lakish disagree even with regard to a Get and not only with regard to other Kinyanim. This is implied by the fact that they discuss a Ketanah (who is the one who makes the Kinyan on a Get) and not a Katan. From where does Rebbi Yochanan know that a Chatzer works through Yad? He must have known the Derashah of the Beraisa (of 'v'Nasan b'Yadah'). However, the Gemara introduces that Derashah only later, when it uses it to refute the opinion of Reish Lakish. If the Gemara knows already that this Derashah is Rebbi Yochanan's source and yet it still accepts the view of Reish Lakish, in what way does the Beraisa refute the view of Reish Lakish? It must be that the Gemara assumes that Rebbi Yochanan has a different source to teach that Chatzer works through Yad, and that source is that 'Yad' means 'Reshus' ('property').
</p><p>
In what way, though, does the Derashah of the Beraisa refute the view of Reish Lakish any more than the Derashah that 'Yad' means 'Reshus' refutes his view?
</p><p>
The answer is that the Beraisa makes it clear that the verse includes an extra word in order to teach that a Chatzer acquires a Get. As Rashi explains, one would know that a Chatzer is considered a Shali'ach based on logic alone without any Ribuy (Rashi, DH Mishum Shelichus, and DH Talmud Lomar; see Rashi to 11b, DH Ela Amar Rav Ashi, and Insights there). Why, then, does the verse need an extra word to teach that Chatzer acquires? It must be adding that Chatzer works not only as a Shali'ach but even as a Yad. However, until the Gemara cites the Beraisa, the Gemara assumes that no extra words are written in the verse to teach that Chatzer acquires; rather, Rebbi Yochanan maintains that the simple translation of the word 'Yadah' includes property and not just her hand. According to Reish Lakish, since 'Yadah' translates simply into 'hand,' there is no extra verse to teach that Chatzer will acquire.
</p><p>
Why, then, does the Gemara not cite the same proof from the first Beraisa which discusses the Kinyan Chatzer for Geneivah? According to Reish Lakish, it should not be necessary for the Torah to include an extra word ('Timatzei') in order to teach that Chatzer acquires. In fact, according to Rebbi Yochanan as well, it should not be necessary to add the word 'Timatzei' since 'Yado' inherently means 'his Reshus'!
</p><p>
The answer is that with regard to Geneivah, one might have thought that the Chatzer cannot acquire through Shelichus because 'Ein Shali'ach l'Devar Aveirah,' and that is why the Torah must teach that Chatzer is Koneh through Shelichus for Geneivah. (See Rashi to 11a, DH u'Mar Savar.) According to Rebbi Yochanan as well, perhaps the Gemara assumes that since an Aveirah is involved even Rebbi Yochanan would not have translated 'Yado' as 'his Reshus' had the Torah not written the extra word ('Timatzei'). The Gemara eventually concludes that with regard to Get as well Rebbi Yochanan would not have translated 'Yado' to mean 'his Reshus' had the Torah not said 'v'Nasan' (see <b>MAHADURA BASRA</b>).
</p><p>


<font><b>5) STEALING AN ITEM THROUGH 'KINYAN CHATZER'</b></font><b>
<br>QUESTION: RASHI</b> (DH Gago v'Chatzeiro) explains the manner in which a thief is able to steal an object (an animal) with his Chatzer without doing any action to the object itself. The act of theft occurs when the animal wanders into the thief's Chatzer, and the thief locks the gate in order to prevent it from leaving. Rashi offers a similar explanation in Gitin (77a) and later in Bava Metzia (56b).
</p><p>
Why does Rashi write that the thief locks the gate? Why can he not steal the animal merely by deciding in his mind to acquire it with a Kinyan Chatzer it, without having to lock the gate?
</p><p>
<b>ANSWER:</b> The <b>KETZOS HA'CHOSHEN</b> (189:1) explains that according to Rashi, Geneivah requires an action. Thought alone cannot effect a Geneivah. Support for this view may be found in the Mishnah later (43b) which teaches that according to Beis Hillel, when a Shomer merely <i>decides</i> to steal a Pikadon that was entrusted to him to watch, he is not considered 'Shole'ach Yad' until he performs <i>an act</i> of stealing it. This is Rashi's source that the owner of the Chatzer must lock the gate in order to be considered a thief. (See <b>MAHARIT</b>, CM #88.)
</p><p>
Accordingly, the verse teaches that a Chatzer acquires an object for a person even when the person does no action. In contrast, in the case of a Ganav, an act is required in order that his act be considered one of thievery. No act is required in order to effect the Kinyan.
</p><p>


