# dafyomi

lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>MONEY DEPOSITED WITH A MONEYCHANGER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven deposited coins with a moneychanger
          (Shimon):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they were wrapped, Shimon may not use them.
               Therefore (he is like a Shomer Chinam, so) if they
               were lost, Shimon is exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If they were loose, he may use it. Therefore (he is
               like a borrower, so) if they were lost, he is
               liable.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven deposited coins with a regular person (Levi),
          whether or not they were wrapped, Levi may not use them.
          Therefore (he is like a Shomer Chinam, so) if they were
          lost, Levi is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Meir says, a grocer has the law of a regular person;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Yehudah says, a grocer is like a moneychanger.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why is he forbidden to use them if
          they are wrapped?! (It is normal to do so. This does not
          show that he objects to Shimon using them more than when
          they are loose!)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rav Asi):</font></b> They are wrapped and sealed (such
          that it will be known if it was opened).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #1 - Answer #2 (Rav Mari):</font></b> They are tied in an
          unusual knot.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Version #2 - Question (Rav Mari):</font></b> What is the law if they
          are tied in an unusual knot?
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	This question is not resolved.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If the coins were loose, he may use it...
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> He is liable even for (loss through) Ones.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah obligates him only if it was lost!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> (Elsewhere,) Rabah said 'they were stolen' - by
          armed robbers. Similarly, we explain 'they were lost'
          (through Ones), e.g. his ship sank.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If it was Ones, he is exempt.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> You must hold that he is not a borrower.
          If so, he is not even a Shomer Sachar (he should be
          exempt even for loss)!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> He is a Shomer Sachar` because he
          benefits from the money (before using it). He knows that
          if a profitable purchase presents itself, he can use the
          money.
<br> <b>    <b><font color='darkgreen'>(q)</font></b></b>  	Question (against Rav Huna - Rav Nachman - Beraisa):
          Reuven (the treasurer of Hekdesh) deposited money (he
          forgot that it was Hekdesh) with a moneychanger (Shimon):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it was wrapped, Shimon knew he may not use it
               (even though he thought that it was Chulin).
               Therefore, if he uses it, Reuven did not transgress
               Me'ilah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it was loose, Shimon (thought he) could use it;
               therefore, if he used it, Reuven transgressed 
               Me'ilah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Summation of question:</font></b> If Shimon is liable for Ones,
               he is considered like a borrower. If so, the money
               left Hekdesh's domain (and Reuven transgressed
               Me'ilah) even before Shimon uses it!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer (Rav Huna):</font></b> Indeed, he is liable even before using
          it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Beraisa mentioned using it for parallel
               structure with the previous case.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>UNAUTHORIZED USAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - Beis Shamai):</font></b> If one was Shole'ach Yad in a
          deposit, he suffers to pay the decrease and increase in
          value (if he got rid of it at a later date, he pays its
          value then or when he first used it, whichever is 
          higher);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Beis Hillel say, he pays according to when he removed it;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Akiva says, he pays its value at the time he is
          brought to trial.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara - Rabah):</font></b> If Reuven stole a barrel of wine from
          Shimon, and originally it was worth one, and in the end,
          it was worth four, if he broke or drank it, he pays four.
          If it broke by itself, he pays one.
<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> If it would be intact, he would return it to
          Shimon. When he breaks or drinks it, he steals it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> All thieves pay like at the time of the
               theft.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rabah):</font></b> If it broke by itself, he pays one.
<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> Now, he did nothing to be liable for. His
          liability is for when he stole it. Then, it was worth
          one.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah - Beis Hillel):</font></b> He pays according to when he
          removed it.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> What does this mean?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is when he removed it from the world
               (e.g. ate it).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1:</font></b> It was worth less when he ate it than
               when he stole it
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> No one says so (that he pays the lower
               price at the end)!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> All thieves pay like at the time of
                    the theft.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #2:</font></b> It was worth more when he ate it than
               when he stole it.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rejection:</font></b> This is Beis Shamai's opinion!
<br>
<br>

sjt:
<font><b>1) THE LIABILITY OF A 'SHULCHANI'</b></font><b>
<br>QUESTION:</b> The Mishnah states that when a person leaves money with a Shulchani that is not wrapped and sealed, the Shulchani has permission to use the money. Therefore, if the money is lost, the Shulchani is obligated to compensate the owner, even if the Shulchani had not yet used the money.
</p><p>
In the Gemara, Rav Nachman says that until the Shulchani uses the money, he has only the status of a Shomer Sachar, who is Chayav for Geneivah v'Aveidah. If an Ones happens to the money, though, the Shulchani is exempt, because he is not considered a Sho'el (who is Chayav for Onsin) until he actually uses the money. Rava asks that if the Shulchani is not considered a Sho'el because he has not yet had any benefit from the money, then why is he considered a Shomer Sachar? What 'Sachar,' or benefit, has the Shulchani received from the money?
</p><p>
Rav Nachman answers that the Shulchani has indeed received benefit from the money, since he is permitted to use it if the opportunity to make a profit arises. The potential ability to use the money is enough of a benefit to make him a Shomer Sachar.
</p><p>
How does this explain why the Shulchani is not a Sho'el? Once he has permission to use the money, he should have the obligations of a Sho'el regardless of whether or not he uses the money, just as anyone who borrows an object is Chayav for Onsin right away, even before he uses the object.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>S'MA</b> (CM 292:16) writes, based on the <b>RA'AVAD</b>, that this form of 'usage' -- the right to use the money if an opportunity to profit arises -- is an inferior form of usage, because the Shulchani will be reluctant to use the money in case the owner suddenly comes and demands his deposit back. Therefore, before the Shulchani actually uses the money, he is not considered a Sho'el because a normal Sho'el is not reluctant to use the object that he borrowed, while the Shulchani is reluctant to use the money entrusted to him.
</p><p>
(b) The <b>LEVUSH YESHA</b> answers that in a normal case, a Sho'el borrows an object completely for his own benefit. Here, though, the Shulchani has received the money from its owner in order to do a service -- to guard the money -- for the owner. Therefore, even though the Shulchani has the right to use the money, he is not yet considered a Sho'el since the money was not given to him exclusively for his own benefit. (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SHALI'ACH L'DEVAR AVEIRAH FOR SHELICHUS YAD</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'> 10b (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'> 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'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Women and slaves are liable, just they
               cannot pay now. If the slave was freed or the woman
               became divorced, he or she must pay.
<br>       <b>   <b><font color='darkgreen'>4.  </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'>5.  </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'>6.  </font></b><font color='darkgreen'> 43b (Mishnah - Beis Shamai):</font></b> If one intended to be
               Shole'ach Yad in (make unauthorized use of) a
               deposit, he is liable (for any future Ones);
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> Beis Hillel say, he is liable only if he actually
               took it - 'Im Lo Sholach Yado'.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 44a (Beraisa):</font></b> Beis Shamai learn from 'Al Kol Devar
               Pesha.' Beis Hillel say, this teaches that he is
               liable even if his slave or Shali'ach used it on his
               command.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Kidushin 42b (Mishnah):</font></b> If Levi sent a fire with a
               deaf-mute, lunatic or minor, and they damaged, Levi
               is exempt b'Yedei Adam (Beis does not make him pay),
               but he is liable b'Yedei Shamayim. If he sent a
               proper adult, the adult is liable.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question:</font></b> Why don't we attribute the Shali'ach's
               action to Levi?
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer:</font></b> We do not say so about a Shali'ach to
               transgress. The Shali'ach should have obeyed Hash-m,
               not the one who sent him! (His authorization was
               invalid.)
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven sent Shimon to buy something,
               and he gave to him Hekdesh money, if Shimon
               fulfilled his mission, Reuven transgressed Me'ilah.
<br>        <b>  <b><font color='darkgreen'>13. </font></b></b> Normally, Ein Shali'ach l'Devar Aveirah. A Gezeirah
               Shavah 'Chet-Chet' teaches that just like one can
               make a Shali'ach for Terumah, also for Me'ilah.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Question:</font></b> Why don't we learn from Me'ilah to other
               Aveiros?
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Answer:</font></b> Me'ilah and Shlichus Yad are Shenei Kesuvim,
               therefore, we do not learn to other cases.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif and Rosh (3:28) bring the Gemara on 44a
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif and Rosh (Bava Kama 29a and 7:9):</font></b> In the entire
               Torah, Ein Shali'ach l'Devar Aveirah, except for a
               thief who made a Shali'ach to sell or slaughter.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 3:11):</font></b> If one was Shole'ach
               Yad in a deposit, himself or through his son, slave
               or Shali'ach, he is a thief and is liable for Onsim.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Me'ilah 7:2):</font></b> 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'>i. </font></b><font color='darkgreen'>  Maharit (Kidushin 42b DH ul'Devar):</font></b> Yesh
                    Shali'ach l'Devar Aveirah also for Shlichus
                    Yad! If a Shomer (Levi) told Ploni to be
                    Shole'ach Yad, Levi is liable for negligence,
                    not due to Shelichus. This is considered Shenei
                    Kesuvim, for if we could learn from Me'ilah, we
                    would not need a verse for Shlichus Yad.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Or Some'ach (Hilchos Geneivah 3:6 DH uv'Zeh):
                    The Ritva (Bava Metzi'a 35b DH ha'Socher) says
                    that if a Shomer (Levi) gave to another Shomer
                    (David), Levi is not liable for David's
                    Shelichus Yad, for Ein Shali'ach. Many ask that
                    Yesh Shali'ach for Shelichus Yad! This is when
                    the Shali'ach is Shole'ach Yad for the Shomer.
                    The Rambam means that the Meshale'ach is liable
                    for an Aveirah that the Shali'ach does for
                    himself only regarding Me'ilah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Tosfos Rid (Kidushin 42b DH Shilach):</font></b> Obviously, if
               an adult was sent to damage, he is liable. The
               Gemara asked why the Meshale'ach is exempt when the
               Shali'ach cannot pay.
<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 292:5):</font></b> If one was Shole'ach Yad
               in a deposit, himself or through a Shali'ach, he is
               a thief and is liable for Onsim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (10) and Prishah (6 DH v'Nor'eh):</font></b> This is
                    only if the Shali'ach did not know that it is
                    another's deposit, or he is not Bar Chiyuva, or
                    he lacks money to pay. If not, Ein Shali'ach
                    l'Devar Aveirah. It is difficult to say that
                    'Al Kol Devar Pesha' teaches that Yesh
                    Shali'ach here, for we can learn the smaller
                    Chidush that we make the Shomer pay when his
                    Shali'ach did not know.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal #1 (Bach 6 and Tosfos Yom Tov Bava
                    Metzi'a 3:12 DH Ad):</font></b> The Gemara asked why we
                    don't learn from Me'ilah that Yesh Shali'ach.
                    It answered that Me'ilah and Shelichus Yad are
                    Shenei Kesuvim. The verse teaches that here
                    Yesh Shali'ach, even if the Shali'ach is aware!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal #2 (Tosfos Yom Tov. Ibid.):</font></b> The Gemara
                    said that even though a woman cannot pay now,
                    since she can pay after she is divorced, she is
                    a Bar Chiyuva, and the Meshale'ach is exempt!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Defense (Shach 4):</font></b> The Tosfos Yom Tov could
                    have added that even if we would know that the
                    Shali'ach will never be able to pay, Ein
                    Shali'ach, for the Gemara did not say that
                    Ravina and Rav Sama argue about this. The Bach
                    and Tosfos Yom Tov misunderstood the <b>SMA</b>. My
                    Rebbi showed his genius and explained him. The
                    <b>SMA</b> himself brought the verse 'Al Kol Devar
                    Pesha.' Surely, it teaches that this is unlike
                    regular Shelichus. The <b>SMA</b> does not consider
                    one who cannot pay as if he is not a Bar
                    Chiyuva. Rather, he found it difficult why the
                    Shomer must pay. The Shali'ach should pay if he
                    has money! He cannot say 'I was sent to do
                    this', for Ein Shali'ach! Why does the verse
                    obligate the Meshale'ach? Poskim argue about
                    whether we say Yesh Shali'ach when the
                    Shali'ach was Shogeg, or when he is not Bar
                    Chiyuva. All agree that Ein Shali'ach when the
                    Shali'ach cannot pay. We need the verse to
                    obligate the Meshale'ach at least in this case.
                    Some (those who say Ein Shali'ach when the
                    Shali'ach is Shogeg or not Bar Chiyuva) need
                    the verse even for those cases. If the
                    Shali'ach knew, has money and is Bar Chiyuva,
                    all agree that he is liable, for Ein Shali'ach.
                    The verse obligates the Meshale'ach. It does
                    not exempt the Shali'ach. If the Meshale'ach
                    has no money, surely the owner may collect from
                    the Shali'ach! The Tosfos Rid says so. There is
                    no reason for the verse to obligate the
                    Meshale'ach, other than these three cases in
                    which the owner cannot collect from the
                    Shali'ach. It is difficult to say that the <b>SMA</b>
                    meant this, but it is a proper defense. In any
                    case, the law is true.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Rebuttal #1 (Gra 11):</font></b> The <b>SMA</b> is astounding.
                    This defense is difficult.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Rebuttal #2 (Ketzos ha'Choshen 1):</font></b> Regarding
                    Shelichus Yad, everyone is Bar Chiyuva, for he
                    would be liable if he were a Shomer. One who
                    cannot be liable, e.g. a minor or Nochri,
                    cannot be a Shali'ach at all. Why can't the
                    verse exempt the Shali'ach? Regarding Me'ilah,
                    a verse exempts him! The Maharit says that the
                    Chiyuv for Shlichus Yad is not due to
                    Shelichus. The <b>SMA</b> teaches that the Shomer is
                    liable even when the Shali'ach is not Bar
                    Chiyuva. However, Shlichus Yad applies only to
                    Shomrim. The Shali'ach can only be a thief,
                    which is different. Perhaps the <b>SMA</b> uses 'not
                    Bar Chiyuva' to refer to Shlichus Yad that does
                    not make the Shali'ach a thief.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Nesivos ha'Mishpat (5):</font></b> Shlichus Yad requires a
                    Kinyan. The Shomer acquires through his
                    Shali'ach. If the object changes, the Shomer
                    acquires (and owes its value). How can we
                    obligate the Shali'ach, who did not acquire? If
                    a Shali'ach took Hekdesh, the Meshale'ach
                    transgressed Me'ilah; if the Shali'ach
                    benefited afterwards, he benefits from the
                    Meshale'ach, not from Hekdesh! The same applies
                    here! It seems that the <b>SMA</b> discusses a
                    Shali'ach to eat the deposit. The Shomer
                    acquired it when the Shali'ach lifted it, and
                    the Shali'ach is like one who ate what a thief
                    stole. The owner can collect from either of
                    them, even if the Shali'ach can pay.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>R. Akiva Eiger (DH Al):</font></b> If one told a Nochri to
                    be Shole'ach Yad, he is liable. Commanding or
                    allowing another to be Shole'ach Yad is itself
                    Shelichus Yad! It does not depend on Shelichus.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DOES SHALI'ACH L'DEVAR AVEIRAH TAKE EFFECT? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, it means when he removed it from the
          owner's possession.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Objection:</font></b> If so, Rabah's holds like Beis Shamai!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #2:</font></b> (Really, Beis Hillel mean when he removed it
          from the world.) All agree about when the value increases
          (that he pays the higher value);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue about when it decreases in value (not
               about theft, rather, about Shlichus Yad);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Beis Shamai say that Shlichus Yad applies even
               without Chisaron. Therefore, he acquires liability
               for it like a Gazlan from when he took it. His
               object decreased in value;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Beis Hillel say that Shlichus Yad is only if there
               was Chisaron. He becomes a Gazlan only when he
               removed it. The owner's object decreased in value.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> If so, Rava's law (Shlichus Yad does not
          require Chisaron) is like Beis Shamai!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #3:</font></b> The case is, he moved it so that chicks will
          climb on it. They argue about whether or not one who
          borrows without permission is considered a Gazlan.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beis Shamai say that he is. He is a Gazlan from when
               he moved it, his object decreased in value;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Beis Hillel say that he is not a Gazlan. He did not
               become a Gazlan until (he removed it, when) it was
               worth less.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Objection:</font></b> Rava taught that one who borrows without
          permission is considered a Gazlan. This is like Beis
          Shamai!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer #4:</font></b> Rather, they argue about increased value due
          to changes in the item itself. Beis Shamai say that the
          owner receives it, and Beis Hillel says that the Gazlan
          gets it.
<br> <b>    <b><font color='darkgreen'>(s)</font></b></b>  	The following Tana'im also argue about this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> If Reuven stole a sheep and
               sheared it, and it gave birth, he pays it and its
               shearings and its offspring;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, he returns only the stolen object
               itself.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Support (Mishnah - Beis Shamai):</font></b> If one makes
               unauthorized use of a deposit, he suffers to pay the
               decrease and increase;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Beis Hillel say, he pays like when he removed it.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE OPINION OF R. AKIVA</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	R. Akiva says, he pays its value at the time he is
          brought to trial.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> The Halachah follows R. Akiva. R. Akiva
          admits when there are witnesses (who saw the theft and
          know what it was worth).
<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> It says 'b'Yom Ashmaso (the day of his guilt).'
          Since witnesses saw him use it, he immediately acquired
          it like a Gazlan does.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Oshiya):</font></b> R. Yochanan taught that R. Akiva argues even
          when there are witnesses.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> It says 'b'Yom Ashmaso', and Beis Din obligates
          him to pay.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(R. Aba bar Papa citing R. Yochanan):</font></b> The Halachah
          follows R. Akiva always.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> What does 'always' mean?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1 (Rav Ashi):</font></b> It is even when there are
          witnesses.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2:</font></b> This includes if he returned it to the place
          he took it from, and it broke later;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This teaches that the Halachah is unlike R.
               Yishmael, who does not require telling the owner.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rava):</font></b> The Halachah follows Beis Hillel.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>INTENT TO BE SHOLE'ACH YAD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - Beis Shamai):</font></b> One who (Tosfos - says that he)
          intends to be Shole'ach Yad is liable (for any future
          Ones);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Beis Hillel say, he is liable only if he actually took
          the object - 'Im Lo Sholach Yado'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he tilted a barrel and took a Revi'is from it,
               and it broke, he pays only for the Revi'is;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he lifted a barrel and took a Revi'is from it,
               and it broke, he pays for the whole barrel.
<br>

<p>

sjt:
</p><p>
<font><b>2) 'HA'CHOSHEV LI'SHLO'ACH YAD'</b></font><b>
<br>OPINIONS:</b> Beis Shamai and Beis Hillel disagree about the law in the case of a Shomer who 'thinks' about using a Pikadon for his personal use without permission of the owner, but who has not yet actually used it. Beis Shamai says that the Shomer is considered as though he was 'Shole'ach Yad' and he has the status of a Ganav, even though he has not actually used the object but merely 'thought' about using it.
</p><p>
Does Beis Shamai literally require only that the Shomer think about using the object, or must the Shomer do more than just think about using the object in order to become Chayav?
</p><p>
(a) <b>TOSFOS</b>, the <b>RAMBAN</b>, and the <b>RITVA</b> understand that it does not suffice for the Shomer merely to think about being 'Shole'ach Yad,' but rather he must <i>verbally state</i> his intentions in order to be Chayav. (This also seems to be the view of <b>RASHI</b> here. The <b>BACH</b>, however, points out that Rashi in Kidushin explains otherwise. See (b) below.)
</p><p>
Why, then, does Beis Shamai describe the case as one in which the Shomer 'thinks' about being 'Shole'ach Yad'? The Ramban explains that when a person says that he is going to do an action but has not yet actually done it, he is called one who 'thinks' of doing that action.
</p><p>
The Ritva explains that Beis Shamai uses this terminology because the Shomer does not have to verbalize his intentions specifically in front of witnesses in order to be Chayav. (Why, then, does Rashi here write specifically that he verbalizes his intentions 'in front of witnesses'? The <b>GILYONEI HA'SHAS</b> answers that Rashi adds this only for a practical reason. Since the Mishnah implies that Beis Din makes the Shomer liable, they need proof to make him liable. The witnesses serve as proof of what the Shomer said. Alternatively, the <b>NEFESH CHAYAH</b> writes that the Chiyuv of Shelichus Yad engendered by the Shomer's speech is -- according to Rashi -- a Chiyuv of Kenas, penalty, because no real action was done. In order to become Chayav for a Kenas, there must be witnesses.)
</p><p>
(b) <b>RASHI</b> in Kidushin (42b, DH l'Chayev Al ha'Machshavah) writes that if the Shomer 'said <i>or</i> thought' to be 'Shole'ach Yad,' he is Chayav. This is also the view of the <b>ROSH</b> (in Hilchos Ketanos, Hilchos Sefer Torah 3) in the name of <b>RABEINU BARUCH</b>.
</p><p>
The Ramban explains, according to this opinion, that even though the verse says, 'Al Kol <i>Devar</i> Pesha' (Shemos 22:8), implying that one is Chayav only when he uses speech to express his intentions, thought and speech are considered identical as long as no action has been done. (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>INTENT TO BE SHOLE'ACH YAD (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> What are the sources for their opinions?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Beraisa - Beis Shamai):</font></b> 'Al Kol Devar Pesha'
          obligates for intent like for action;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beis Hillel say, he is liable only if he actually
               took the object - 'Im Lo Sholach Yado.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Beis Shamai:</font></b> It says 'Al Kol Devar Pesha'!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Beis Hillel:</font></b> It says 'Im Lo Sholach Yado'!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What do Beis Hillel learn from 'Al Kol Devar
          Pesha'?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that he is liable only if
          he himself used it. 'Al Kol Devar Pesha' teaches that he
          is liable even if his slave or Shali'ach used it on his
          command.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>LIABILITY FOR WHAT HE DID NOT INTEND TO TAKE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he tilted a barrel...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rabah):</font></b> He is exempt on the rest only if the barrel
          broke, but if the wine soured, he is liable.
<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> Taking some causes it to sour quicker (because
          the barrel is no longer full).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he lifted a barrel and took...
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> He is liable for lifting it to take, even if he
          never took.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Shmuel holds that Shlichus Yad applies even
          without Chisaron.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. Here is different. Since the taker wants
          the rest of the barrel to help preserve the Revi'is he
          wants to take, he is considered a borrower.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> If one lifts a wallet to take a coin
          from it, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Wine needs other wine to preserve it. This does not
               apply to coins!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps he wants the coin to be guarded in the
               wallet. It is less likely to be lost than a loose
               coin!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This question is not resolved.
<br>
<br><center><font color='ff0000' size='+1'><b>*****<b>PEREK HA'ZAHAV</b>*****
</b></font></center><p><b>
<br><b></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT ACQUIRES WHAT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> (In a sale, one acquires, i.e. consummates the
          sale, through Meshichah (taking to one's premises) of the
          commodity being sold. Meshichah of the currency being
          paid for it does not acquire. If gold coins were traded
          for silver coins, gold is considered the commodity and
          silver is the currency. Therefore,) Meshichah of gold
          acquires silver (i.e. the gold is his, and he must pay
          silver in exchange for it). Meshichah of silver does not
          acquire gold;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	(Meshichah of) copper acquires silver, but silver does
          not acquire copper;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Bad coins acquire good coins, but not vice-versa;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	A blank coin (which hasn't been stamped) acquires coins,
          but not vice-versa;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Metaltelim acquire coins, but not vice-versa;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	All Metaltelim acquire each other.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	If Reuven did Meshichah on Shimon's Peros to buy them and
          did not yet pay, he (either one) cannot retract;
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	If Reuven paid for Shimon's Peros and did not yet do
          Meshichah, Shimon can retract. However, Chachamim said
          'He who punished the generations of the flood and the
          dispersion, He will punish one who does not honor his
          word.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	R. Shimon says, whoever is holding the money has the
          upper hand.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>GOLD VERSUS SILVER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Rebbi taught to his son R. Shimon 'gold acquires silver.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	R. Shimon:</font></b> In your youth, you taught that silver acquires
          gold!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What was Rebbi's reason in his youth, and in
          his old age?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> In his youth, he reasoned that gold is more
          important, therefore it is the currency. In his old age,
          he reasoned that silver is more accepted (by sellers), so
          it is the currency.
<br>
<br>

sjt:
<font><b>1) REPAYING A LOAN OF GOLD COINS WITH GOLD COINS</b></font><b>
<br>QUESTION:</b> The Gemara relates that Rav borrowed gold coins from the daughter of Rebbi Chiya. Later, when the value of gold appreciated in relation to the value of silver, Rav asked Rebbi Chiya if he was permitted to pay back the same number of gold coins that he borrowed. Rav's question was based on the issue of whether gold is considered a currency or a commodity. If it is considered a currency, it would be permitted to return the same number of coins, and such a repayment would not be considered Ribis. On the other hand, if gold is considered a commodity (merchandise), Rav would have been required to repay only the value of the gold coins in silver at the time they were borrowed. He would not have been permitted to return the same number of gold coins that he had originally borrowed; since those gold coins could be used to acquire more silver coins, returning the same number of gold coins would have constituted Ribis. Rebbi Chiya ruled that Rav may pay back the full amount of gold, because gold is considered currency in relation to silver.
</p><p>
Rav did not ask Rebbi Chiya whether he was permitted to borrow the gold coins in the first place with intent to pay back the same coins later. Only when it was time to pay back did he ask how he may pay back the loan. Why did Rav not ask Rebbi Chiya whether he was permitted in the first place to borrow the gold coins with intent to pay back the same coins later? Indeed, Rebbi Yochanan teaches (beginning of 45a) that one is prohibited even to <i>borrow</i> a gold coin with intent to pay the lender back with a gold coin!
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RITVA</b> cites his 'teacher's teacher' (the <b>RAMBAN</b>) who explains that Rebbi Yochanan does not mean that borrowing a gold coin with intent to return a gold coin is prohibited. Rather, his statement should be interpreted to mean that one is prohibited to borrow a gold coin <i>if</i> one pays back a gold coin after gold appreciates. The prohibition applies only at the time that the loan is repaid.

</p><p> The <b>HE'OROS B'MASECHES BAVA METZIA</b> adds that even if one normally is prohibited to borrow a gold coin with the explicit intention to pay back a gold coin, Rav might have permitted it in this case. This is because the prohibition to <i>pay back</i> a gold coin is mid'Oraisa, but the prohibition to <i>stipulate</i> that the loan will be repaid in gold (even if the market price of gold changes) is mid'Rabanan. Since Rav was unsure of whether or not gold is considered a commodity (in which case the laws of Ribis are applicable), he was lenient with regard to the Isur mid'Rabanan, and he asked Rebbi Chiya only for permission to repay when there was a possible Isur mid'Oraisa involved.
</p><p>
(b) The <b>RITVA</b> himself suggests that Rebbi Yochanan in fact <i>does</i> prohibit even borrowing a gold coin, but only if it is stipulated explicitly that the borrower will repay a gold coin even if gold appreciates. When Rav borrowed gold coins, he did not stipulate that he would pay back an equal amount of gold even if it would appreciate. Therefore, he was permitted to borrow the gold. His only question was how he should repay it after the gold appreciated. Although he did not stipulate that he would pay back an equivalent amount of gold coins, nevertheless if gold would have appreciated, it would have been prohibited for him to pay back gold coins that were worth more than the coins that he borrowed. (The <b>TAZ</b> (YD 162:103) and the <b>RASHASH</b> suggest the same answer.)
</p><p>
The Ramban, who does not accept this answer, might have reasoned that if Rav had not stipulated at the time of the loan that he would pay back the same number of gold coins, then he would have been permitted to pay back the lesser amount of silver when the price of gold fluctuated. From the fact that Rebbi Chiya told Rav to pay the full amount, it is clear that Rav in fact <i>did</i> stipulate that he would repay the same number of gold coins that he borrowed.
</p><p>
(c) The <b>RASHBA</b> writes that at the time that Rav borrowed the money, he was confident that gold was considered currency and not merchandise. Later, when the time came to repay, he had doubts, and therefore he went to ask Rebbi Chiya.
</p><p>


<font><b>2) THE CURRENCY OF PIDYON HA'BEN</b></font><b>
<br>QUESTION:</b> The Gemara discusses whether a gold coin, when compared with silver, is considered a currency or a commodity. The Gemara cites proof from a Beraisa which states that there are 25 Dinarim of silver in one Dinar of gold (that is, one Dinar of silver is worth 1/25th of a Dinar of gold). The practical ramification of this value is how much one must pay for Pidyon ha'Ben. The amount of money necessary for Pidyon ha'Ben is always linked to the value of gold and not to the value of silver. The Gemara proves conclusively from this Beraisa that gold is considered a currency, and if the value of silver changes in relation to gold, the value of gold determines the amount given to the Kohen for Pidyon ha'Ben.
</p><p>
How can the value of Pidyon ha'Ben be determined by the value of gold and not by the value of silver? The Torah specifically states that the amount that must be paid for Pidyon ha'Ben is 'Kesef Chameshes Shekalim b'Shekel ha'Kodesh, Esrim Gerah Hu' -- five <i>silver</i> Shekalim, which are twenty Gerah (Vayikra 18:16)! (<b>RITVA</b>)
</p><p>
<b>ANSWER:</b> The <b>RITVA</b> and <b>TOSFOS HA'ROSH</b> answer that if silver is considered merchandise and not currency in relation to gold, then it is logical to assume that the Torah would not link the value of Pidyon ha'Ben to the price of an entity with a fluctuating value (i.e. merchandise). Rather, the Torah mentions five Shekalim of <i>Kesef</i> only because that was the equivalent of four-fifths of a Dinar of <i>gold</i> at the time the Torah was given. The real price of Pidyon ha'Ben, however, is not five Shekalim of Kesef but the equivalent of that amount in gold, at the time of the giving of the Torah. The Chachamim had a tradition that the amount of gold equal to five Shekalim of silver was four-fifths of a Dinar of gold.
</p><p>
<b>TOSFOS RABEINU PERETZ</b> adds that this is what the Torah means when it links the Shekel of Pidyon ha'Ben to a Gerah (according to the opinion that gold is considered currency in relation to silver). The Gerah was a coin that was linked to the price of gold and not to the price of silver. The Torah is saying that the price of Pidyon ha'Ben is not really linked to the value of five silver Shekalim, but rather to the value of twenty Gerah. The <b>TARGUM ONKELUS</b> writes that twenty Gerah is twenty 'Ma'in,' but that is not meant as a literal translation of Gerah, because 'Ma'in' are silver coins. Rather, he converts the Gerah to a coin which was common in his time, which was made of silver and which was worth the same amount at that time.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>IS ONE CURSED FOR RETRACTING AFTER ONES OCCURRED?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 44a (Mishnah):</font></b> If Reuven paid for Shimon's Peros and
               did not yet do Meshichah, Shimon can retract.
               However, Chachamim said 'He who punished the
               generation of the flood... He will punish one who
               does not fulfill his word.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon says, whoever is holding the money has the
               upper hand.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 47b (R. Yochanan):</font></b> Mid'Oraisa, money acquires
               Metaltelim. Chachamim enacted that only Meshichah
               acquires, lest one sell something in his house, and
               then tell the buyer 'it burned in a fire through
               Ones. The seller will strive to save it only if it
               belongs to him (until Meshichah).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 49b:</font></b> A case occurred in which Reuven paid money for
               wine. He heard that a powerful official of the king
               was marrying off a child. (Surely, he would
               confiscate people's wine for this.) Reuven
               retracted.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rav Chisda:</font></b> Just like Meshichah was enacted for
               sellers (that they can retract until Meshichah is
               done), also for buyers.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 47b - Question:</font></b> According to R. Yochanan, what do
               Chachamim and R. Shimon argue about?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> Chachamim hold like Rav Chisda (also buyers
               can retract). R. Shimon disagrees.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Chulin 83a (Mishnah):</font></b> At four times in the year
               (when there is great demand for beef), one who paid
               for meat from an animal can force the butcher to
               slaughter it, even if he sold only a small amount.
               If the animal dies, the buyer loses what he paid
               (for he acquired part of the animal.) At other
               times, one cannot force the butcher to slaughter it,
               so if the animal dies, the butcher loses.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> In the Reisha, how did the buyer acquire
               without Meshichah?
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer (R. Elazar):</font></b> At these four times, Chachamim
               lifted their enactment, and allowed money to acquire
               (meat).
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Bechoros 13b (Beraisa):</font></b> If a Yisrael bought silver
               from a Nochri, and found idolatry among it, if he
               did Meshichah after giving the money, he must cast
               the idolatry to the Dead Sea (he acquired it, and
               may not benefit from idolatry)!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Question:</font></b> If money acquires from Nochrim, why does
               the Beraisa mention Meshichah? The Yisrael acquired
               through money alone!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Answer:</font></b> The case is, the Nochri agreed to conduct
               according to the law of Yisrael (only Meshichah
               acquires). The Beraisa teaches that even though he
               gave money, if he did not do Meshichah, he may
               return it.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Gitin 52a:</font></b> If orphans gave money to buy Peros, and
               the price went down, they are no worse than a
               commoner (before Meshichah, he could retract).
<br>        <b>  <b><font color='darkgreen'>15. </font></b></b> If the price went up, we should apply Rav Chanilai's
               law (orphans are like Hekdesh, and they acquire
               through money).
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> Rejection (Rav Shisha brei d'Rav Idi):</font></b> No, this
               would be bad for the orphans. If the sale were
               valid, and a fire erupted where the Peros are (in
               the seller's premises), the seller would not toil to
               save it, since it is the orphans' loss.
<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> R. Yochanan taught that Chachamim enacted that
               Meshichah acquires, lest a seller be sloth to save
               the item from a fire. This teaches that if one gave
               money but did not do Meshichah, and Ones occurred,
               the seller loses. The buyer can say 'give to me my
               purchase, or return my money.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ba'al ha'Ma'or):</font></b> Since money acquires
                    mid'Oraisa, the buyer can retract only as long
                    as the item exists in the world. We put the
                    item in the seller's Reshus so he will want to
                    save it, for perhaps the price will rise, and
                    he can retract and profit. The Gemara says that
                    Meshichah was enacted primarily of sellers, and
                    was extended also for buyers. The Ra'avad says
                    that the enactment was primarily for buyers! If
                    orphans gave money for Peros, they can retract
                    if the price changed, but not if the Peros
                    burned. Also, Reuven was able to retract before
                    the official took his wine. After it was taken,
                    he could not. If not, he should have waited
                    until it was taken! One could reject the proof
                    and say that Reuven happened to retract
                    immediately. However, if so the Gemara did not
                    need to bring the episode! In Chulin, we asked
                    why the sale stands even though there was no
                    Meshichah (even though once money was given,
                    one cannot retract after Ones!) This is because
                    there, the sale is still valid. The buyer
                    bought meat; Neveilah meat has the same form as
                    slaughtered meat. It is like a change of price.
                    Had the animal been totally lost, it would have
                    been clear why he cannot retract. I realize
                    that some Ge'onim disagree.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ra'avad (Kasuv Sham):</font></b> Initially, I held like
                    the Ba'al ha'Ma'or, but I retracted to agree
                    with the Rif. To induce the seller to save the
                    sale item, we enacted that it is in his Reshus
                    until Meshichah. Perhaps Reuven feared that he
                    would not get back what he paid for the wine
                    after Ones. The Gemara in Chulin does not say
                    that if it died, the buyer can retract. Rather,
                    it says that the seller loses (immediately),
                    for it is in the seller's Reshus until
                    Meshichah. There is no proof from orphans
                    buying Peros. Surely, the primary enactment was
                    for buyers; the enactment also helps sellers,
                    if the price rises. Since the Peros are in the
                    seller's Reshus, it suffices to allow him to
                    retract. This is R. Shimon's reason. Chachamim
                    hold that even so, we equate them. I say that
                    if the Peros were lost or burned, the buyer can
                    retract without a Mi she'Pora. He can say 'give
                    to me the Peros, and I will pay.' R. Shimon is
                    more lenient and allows retracting when the
                    price changed, all the more so (the law is more
                    lenient) when Ones occurred, and there is no Mi
                    she'Pora. Rav Chisda permitted to retract from
                    the purchase of wine due to Ones, and did not
                    mention Mi she'Pora.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Milchamos Hash-m:</font></b> R. Shimon holds that the
                    enactment was for the seller (to enable him to
                    retract). The Gemara asked, according to R.
                    Yochanan, why do Chachamim argue with R.
                    Shimon, and answered that they made a uniform
                    decree and allow also the buyer to retract.
                    Now, all the more so the seller will strive to
                    save it! It would be ludicrous to say that the
                    primary enactment was only to allow the buyer
                    to retract (since the Peros are not in his
                    Reshus). Both Tana'im agree that either can
                    retract if Ones occurs. R. Shimon holds that
                    only the seller can retract due to change of
                    price, since he suffers the loss if Ones
                    occurred. Chachamim hold that even though the
                    buyer can retract due to a change of price, it
                    is in the seller's Reshus for Ones. If not, he
                    would not toil to save it. He could profit
                    through retracting if the price rises, but he
                    is as likely to lose if the price drops and the
                    buyer retracts! Reuven just happened to retract
                    before the wine was taken. Some say that the
                    Gemara brought it to teach that there is no Mi
                    she'Pora. The Rif connotes like this. R.
                    Chananel and Ge'onim say that he must accept a
                    Mi she'Pora. The Gemara teaches that Rav Chisda
                    rules like Chachamim, and explains the Stam
                    Mishnah to teach that the buyer can retract.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (13,14):</font></b> When Reuven retracted out of fear lest
               his wine be confiscated, the Gemara did not say that
               he must accept Mi she'Pora, like it said in the
               previous cases. Rav Chisda ruled that Meshichah was
               enacted also for buyers, so he can retract. Mi
               she'Pora is only for one who retracts due to change
               of price, not if he fears lest he lose everything.
               The rule is, the curse is only if they agreed and
               money was given and he retracts due to a change in
               price. If he retracts to avoid a loss, e.g.
               confiscation of his wine, there is no Mi she'Pora.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 3:6):</font></b> If one gave the money
               for a purchase and Ones occurred before he took it,
               and he said 'give to me my puchase, or return my
               money', even though witnesses testify that it was
               lost due to Ones and the seller was unable to save
               it and did not slacken, he must return the money,
               because Chachamim enacted Meshichah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Tosfos (Bechoros 13b DH Hachi):</font></b> When the Yisrael
               found idolatry among what he bought from a Nochri,
               if he gave money without Meshichah, he can retract.
               There is no Mi she'Pora, for the Nochri agreed to
               conduct according to the law of Yisrael; Mi she'Pora
               is not a law. Alternatively, R. Tam explains that Mi
               she'Pora does not apply when there is a total loss.
<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 204:2):</font></b> If one gave the money for
               a puchase but Ones occurred before he took it, and
               he said 'give to me my puchase, or return my money',
               even though witnesses testify that it was lost due
               to Ones and the seller was unable to save it and did
               not slacken, he must return the money. Mi she'Pora
               does not apply here.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav ha'Ran):</font></b> The Ran (47b
                    DH Kach) says that the Ra'avad holds that if
                    one retracts due to fear of Ones, he does not
                    accept Mi she'Pora. The Ge'onim say so only if
                    the Ones already occurred, for he does not
                    receive anything. If he retracts before the
                    Ones, he accepts Mi she'Pora. R. Chananel and 
                    Rav Hai Ga'on and Ra'avan say so. Rashi holds
                    that one cannot retract if Ones occurred to
                    Metaltelim. The other Poskim say that he can
                    retract without a Mi she'Pora. Talmidei
                    ha'Rashba say that Ri Albargiloni holds like
                    the Ge'onim, and support them from the Gemara.
                    Rav Chisda allowed retracting because a buyer
                    can retract, not because it is in the owner's
                    Reshus for Ones. The Mordechai says that if one
                    retracts due to fear of Ones, nothing exempts
                    him from Mi she'Pora. Perhaps this is even if
                    the Ones already occurred, for the same reason.
                    The Rambam did not bring these laws at all.
                    This suggests that he obligates Mi she'Pora in
                    every case, even if Ones occurred, if he wants
                    back his money.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bedek ha'Bayis:</font></b> It is more reasonable to say
                    that he holds like the Ge'onim, for in Hilchos
                    Mechirah (3:6) he says that if Ones occurred,
                    the buyer can demand his money back (and did
                    not mention Mi she'Pora), like the Ge'onim
                    said. We can explain the Rif similarly, for he
                    wrote similarly.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (4):</font></b> The seller cannot say 'when Ones
                    occurs, I will return your money', but you
                    cannot retract until then. The buyer can say 'I
                    do not want the toil of going to Din. Also,
                    perhaps you will not be able to pay me.'
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (4):</font></b> The Mishnah in Chulin connotes that
                    there is no Mi she'Pora for retracting. This is
                    why it asks 'the buyer did not do Meshichah'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Some say that the same
               applies to one who retracts because he fears to lose
               the entire sale item.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (5):</font></b> Some say that the Shulchan Aruch
                    discusses a total loss, to exclude a partial
                    loss, e.g. he fears lest the wine sour.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (3):</font></b> The Bach rules like the latter
                    opinion.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (5):</font></b> This opinion learns from the case of
                    the official. The first opinion holds that he
                    must accept Mi she'Pora, just the Gemara only
                    asked about whether or not he can retract.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>HOW AND WHEN ONE IS CURSED FOR RETRACTING? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> Presumably, his first reason is correct, for
          the Mishnah continues 'copper acquires silver, but silver
          does not acquire copper';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If silver acquires gold, we understand why this was
               taught. Even though silver is the commodity with
               respect to gold, it is the currency with respect to
               copper;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> If gold acquires silver, why this was
               taught? If silver is the currency with respect to
               gold (even though gold is more important), all the
               more so it is currency with respect to copper (which 
               is less important and less accepted by sellers than
               silver)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection:</font></b> We needed to teach it. One might have thought
          that in places where copper is used, it is more accepted
          than silver, and it is the currency. The Mishnah teaches
          that this is not so, since there are places where it is
          not accepted.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	(We infer from the following that) also R. Chiya says
          that gold is the currency with respect to silver.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav borrowed gold coins from R. Chiya's daughter.
               Their value increased (with respect to silver). R.
               Chiya ruled that he returns coins like he borrowed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This ruling is fine if gold is the currency.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If gold is the commodity, this is like
               lending a measure of grain on condition to return
               the same measure, which is forbidden (lest grain
               rise in value. This is Ribis mid'Rabanan!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection:</font></b> Rav had gold coins at home. In such a case,
          one may lend measure for measure.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rava):</font></b> The following Tana holds that gold is the
          currency.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> A Perutah is an eighth of an Italian
               Isar. This is the amount needed to make Kidushin;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> An Isar is a 24th of a silver Dinar. This is
               pertinent to commerce;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> A silver Dinar is a 25th of a gold Dinar. This is
               pertinent to redemption of a firstborn son (which is
               five silver Shekalim, which equal 20 silver
               Dinarim).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> This is fine if gold is the currency, for then its
               value is considered fixed (and the redemption is
               always four fifths of a gold Dinar);
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> However, if gold is the commodity, why
               does the Tana gauge the redemption in gold? It
               fluctuates (the price of gold changes)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah #1 - Beis Shamai):</font></b> If one has silver Sela'im (a
          Sela equals four Dinarim) of Ma'aser Sheni, he may not
          make (i.e. convert) them to gold Dinarim;
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Beis Hillel permit this.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Version #1 (R. Yochanan or Reish Lakish):</font></b> They argue
          about converting Sela'im to gold Dinarim. Beis Shamai
          hold that gold is the commodity, and we do not redeem
          currency on commodities (only on food in Yerushalayim);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beis Hillel hold that gold is the currency. We may
               redeem commodities onto currency;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> All agree that we may redeem Peros onto gold
               Dinarim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Why do Beis Shamai agree? (They say that
               gold is the commodity!)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> This is for the same reason that Beis Hillel
               permit redeeming Peros onto silver. Even though
               silver is the commodity with respect to gold, it is
               the currency with respect to Peros;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Likewise, Beis Shamai agree that gold is
                    currency with respect to Peros.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(The other of R. Yochanan and Reish Lakish):</font></b> They argue
          even about redeeming Peros onto (gold) Dinarim. (Beis
          Shamai hold that gold is a commodity, so we do not redeem
          onto it).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> If so, the Mishnah should rather teach the
          argument about redeeming Peros onto Dinarim!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> If so, one might have thought that Beis Hillel
          agree that gold is the commodity with respect to silver,
          and silver may not be redeemed onto gold.
<br>

<p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>REDEEMING MA'ASER SHENI ONTO GOLD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Suggestion:</font></b> The following shows that R. Yochanan holds
          that Beis Shamai forbid redeeming Peros onto gold.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> One may not lend a Dinar for a Dinar
               (lest this lead to Ribis).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> To which kind of Dinarim does he refer?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> He forbids lending a silver Dinar
                    for a silver Dinar.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection:</font></b> Surely, all agree that silver is a
                    currency with respect to itself (and permit
                    this)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, he forbids lending a gold Dinar for
               a gold Dinar.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> According to whom is this forbidden?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It is not like Beis Hillel. They say that gold
                    is the currency!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it is like Beis Shamai. They must
               hold that it is never considered a currency 
               (therefore, they forbid redeeming Peros onto gold).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection:</font></b> Rather, R. Yochanan says that Beis Shamai
          permit redeeming Peros onto gold;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Loans are different. Since regarding commerce gold
               is the commodity (with respect to silver), we
               consider its value to fluctuate, therefore also
               regarding loans, one may not lend it Dinar for
               Dinar.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Support (Ravin citing R. Yochanan):</font></b> Even though one may
          not one may not lend a (gold) Dinar for a Dinar, one may
          use it to redeem Peros. (He explains the opinion of Beis
          Shamai, who forbid lending a (gold) Dinar for a Dinar.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	(We conclude that Reish Lakish says that Beis Shamai
          forbid redeeming Peros onto gold.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (against Reish Lakish - Mishnah #2 - Beis
          Shamai):</font></b> One may exchange a full Sela's worth of copper
          coins of Ma'aser Sheni for silver coins (to lighten his
          load for his trip to Yerushalayim);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beis Hillel say, he may exchange half for silver,
               half he must leave as copper (lest the demand for
               copper coins in Yerushalayim inflate their price,
               and the silver coins of Ma'aser Sheni will decrease
               in value).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Summation of question:</font></b> Beis Shamai permit redeeming
               (Peros) onto copper coins. All the more so, they
               permit redeeming onto gold!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> No. In places where copper is used, it is more
          accepted than gold.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #2 (R. Yochanan or Reish Lakish):</font></b> (In Mishnah
          #1,) Beis Shamai and Beis Hillel argue about converting
          Sela'im to gold Dinarim. Beis Shamai expound 'ha'Kesef' -
          the first money (on which Peros were redeemed) must be
          brought to Yerushalayim, not second money (on which the
          first money was redeemed);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beis Hillel hold that 'ha'Kesef' is an inclusion. It
               permits second money.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> All agree that we may redeem Peros onto (gold)
               Dinarim.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(The other of R. Yochanan and Reish Lakish):</font></b> They even
          argue about redeeming Peros onto Dinarim.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	(The following three questions are against the first
          opinion, which holds that they argue about second money.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question #1:</font></b> The Mishnah should rather teach that they
          argue about redeeming Sela'im onto Sela'im (both of
          silver)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> If so, one might have thought that they only
          argue there, but Beis Shamai admits that one may redeem
          Sela'im onto (gold) Dinarim, for gold is currency with
          respect to silver. The Mishnah discusses Sela'im onto
          Dinarim, to teach that this is not so.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question #2 (Mishnah #2 - Beis Shamai):</font></b> One may exchange
          a full silver Sela in Yerushalayim for (copper) Perutos;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beis Hillel say, he may exchange half for copper,
               but he must leave half in silver coins (lest he not
               spend all of it this festival, and incur a loss due
               to corrosion, or a second moneychanger's commission
               if he trades them back for silver).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Beis Shamai do not forbid exchanging silver for
               copper due to 'second money.' All the more so, they
               permit exchanging silver for gold, which is more
               important!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The law in Yerushalayim is different.
          There, 'v'Nosata ha'Kesef...' (you will spend the money
          on any food you desire. Perutos are useful for buying
          food!)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question #3 (Mishnah #3 - Beis Shamai):</font></b> One may exchange
          a full Sela's worth of copper coins of Ma'aser Sheni for
          silver coins (before going to Yerushalayim);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beis Hillel say, he may exchange half for silver,
               but he must leave half copper. (Beis Shamai do not
               forbid exchanging coins for coins due to 'second
               money.' This refutes the first opinion! Therefore,
               we reject Version #2.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ANOTHER EXPLANATION OF THE MISHNAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #3 (R. Yochanan or Reish Lakish):</font></b> (In Mishnah #1)
          they argue about converting Sela'im to gold Dinarim. Beis
          Shamai decree lest one delay bringing his Ma'aser money
          to Yerushalayim (until he has enough to redeem onto a
          gold coin);
<br>
<br>

sjt:
<font><b>1) PROOF FOR REBBI'S EARLIER OPINION</b></font><b>
<br>QUESTION:</b> The Gemara (44a) teaches that in his youth, Rebbi maintained that gold was considered currency with regard to silver and, therefore, a person who performs an act of acquisition on silver creates a Kinyan and obligates the buyer to pay gold. Later, Rebbi retracted this view and ruled that the opposite is true: silver is considered currency and gold is considered merchandise. The wording of the Mishnah reflects Rebbi's final ruling (even though the wording of the Mishnah in the Yerushalmi reflects his earlier ruling; indeed, the name of the Perek there is 'ha'Kesef' and not 'ha'Zahav').
</p><p>
All of the Rishonim rule like Rebbi's final decision, and in accordance with the text of the Mishnah. Although the Gemara (44b) concludes that there is proof from a Beraisa that gold is considered currency, nevertheless it is clear from a number of sources in the Gemara that the Gemara follows the view of Rebbi in his later years and considers gold to be merchandise in relation to silver.
</p><p>
The Gemara cites a Mishnah (Ma'aser Sheni 2:7) in which Beis Shamai and Beis Hillel argue as to whether one may redeem silver coins of Ma'aser Sheni with gold coins. Beis Shamai forbids it and Beis Hillel allows it. The Gemara explains this Mishnah in three different ways. According to all three explanations, Beis Hillel views <i>gold</i> as merchandise in relation to silver, as Beis Hillel permits one to redeem silver coins of Ma'aser Sheni with gold coins even though Ma'aser Sheni may be redeemed only with currency (outside of Yerushalayim) and not with Peros (merchandise). The view of Beis Hillel (whose view is almost always accepted as the Halachah) in this regard clearly conflicts with the ruling of all of the Poskim. Moreover, the could have cited Beis Hillel as proof for the ruling of Rebbi in his youth. Why is the opinion of Beis Hillel not a clear proof for the ruling of Rebbi in his youth, that silver is considered merchandise and gold is considered currency?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ROSH</b> (4:1, and in <b>TOSFOS HA'ROSH</b>) writes that according to Rebbi's later ruling, there is no such Mishnah in Ma'aser Sheni; Beis Shamai and Beis Hillel never argued over this point. According to Rebbi's later ruling, even Beis Hillel agrees that one cannot redeem silver coins of Ma'aser Sheni with gold coins.
</p><p>
The <b>RASHBA</b> and <b>TOSFOS RABEINU PERETZ</b> write that just as Rebbi reversed the phrase in the Mishnah here in his later years, he also reversed the opinions in the Mishnah in Ma'aser Sheni. Thus, Rebbi later maintained that it was <i>Beis Hillel</i> who <i>prohibited</i> redeeming silver with gold, and <i>Beis Shamai</i> who permitted it. (According to this opinion, it is not clear why this Mishnah was not included in the list of Chumros of Beis Hillel in the fourth chapter of Eduyos.)
</p><p>
(b) The <b>PNEI YEHOSHUA</b> proposes that the opinion of Beis Hillel as it appears in the Mishnah can be reconciled with Rebbi's later opinion, that silver is considered currency. Rebbi's later opinion maintains that silver is considered currency in the case of a purchase because silver is used more frequently as currency. Although gold is more important, the power to effect a Kinyan is determined by what is used more as a currency. In contrast, with regard to Ma'aser Sheni the primary factor that determines whether one object can be redeemed with another is the importance of the coin, not its ability to be used as currency. A coin made from a material that is more important can be used to redeem a coin of lesser importance. That is why Beis Hillel permits redeeming silver coins with gold coins.
</p><p>
The <b>BA'AL HA'ME'OR</b> uses similar logic to reconcile the Mishnah in Ma'aser Sheni with Rebbi's later opinion. (The Ba'al ha'Me'or writes that Beis Hillel is consistent with Rebbi's later opinion even if Beis Hillel permits one to redeem fruit with <i>gold</i> coins. Although gold is considered a currency with regard to Ma'aser Sheni, it is not considered a currency with regard to a purchase. The Pnei Yehoshua, however, argues that if Beis Hillel allows gold to be used to redeem fruit of Ma'aser Sheni, then he indeed argues with Rebbi's later ruling that gold is considered merchandise in relation to silver.)
</p><p>
(c) <b>TOSFOS RABEINU PERETZ</b> (also cited by the Ritva) makes a similar distinction between a purchase and the redemption of Ma'aser Sheni. He writes that even if gold is considered merchandise, the Chachamim permitted one to redeem Ma'aser Sheni with gold coins because they are easier to carry to Yerushalayim (since one gold coin is equivalent to several silver coins). (This is more easily understood according to the opinions of the Rishonim here who say that mid'Oraisa one is permitted to redeem Ma'aser Sheni with any non-consumable item. According to these Rishonim, the Torah prohibits redeeming Ma'aser Sheni with fruits only because they will spoil before the owner arrives in Yerushalayim. The requirement to redeem Ma'aser Sheni only with coins was instituted by the Chachamim to prevent a person from redeeming Ma'aser Sheni with fruit (see Ritva). Since that requirement itself is an enactment of the Chachamim, they provided an exception to their rule with regard to gold coins in order to facilitate carrying the Ma'aser Sheni to Yerushalayim.)
</p><p>
The Ritva explains that this is true only according to the opinion that maintains that Beis Shamai and Beis Hillel argue even with regard to redeeming fruit with gold coins. Although Beis Shamai prohibits redeeming fruit with gold coins, this is not because he equates the Halachos of redeeming Ma'aser Sheni with the Halachos of a purchase. Both Beis Shamai and Beis Hillel agree that gold is considered currency in relation to fruit, and therefore one <i>should</i> be permitted to redeem fruit with gold coins. Beis Shamai prohibits such a redemption because of the stringency of the Chachamim which was applied to Ma'aser Sheni. Just as Beis Shamai distinguishes between the laws of Ma'aser Sheni and the laws of a purchase by being stringent with regard to Ma'aser Sheni, Beis Hillel also distinguishes between them -- by being <i>lenient</i> with regard to Ma'aser Sheni.
</p><p>
(d) The <b>RAMBAN</b> writes that according to the last two explanations in the Gemara for the dispute between Beis Shamai and Beis Hillel, Beis Hillel permits redeeming silver coins of Ma'aser Sheni with gold coins because of the verse that teaches that one may redeem with 'Kesef Sheni,' a second set of coins to redeem the first. The Ramban explains that this verse teaches that not only may one redeem a coin of Ma'aser Sheni with a coin that is a more liquid currency, but one may even redeem a coin of Ma'aser Sheni on <i>any</i> coin, even one that is less liquid. Thus, although with regard to a purchase gold is considered merchandise in relation to silver, Beis Hillel still permits one to use gold to redeem a silver coin of Ma'aser Sheni, since gold has the status of a coin at least with regard to purchasing fruits. As long as it is considered a type of coin, the requirement of the verse is fulfilled.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>LENDING COINS WHEN THEIR VALUE COULD CHANGE</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'> 44b:</font></b> Rebbi taught to his son R. Shimon 'gold
               acquires silver.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> In his youth, he taught that silver acquires gold.
               He reasoned that gold is more important, therefore
               it is the currency. In his old age, he reasoned that
               silver is more accepted (by sellers), so it is the
               currency.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Ashi):</font></b> Presumably, his first reason is correct,
               for the Mishnah says 'copper acquires silver, but
               silver does not acquire copper. If silver acquires
               gold, this teaches that even though silver is the
               commodity with respect to gold, it is currency with
               respect to copper;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  However, if silver is the currency with respect
                    to gold (even though gold is more important),
                    all the more so it is currency with respect to
                    copper (which is less important and less
                    accepted by sellers than silver)!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> One might have thought that in places
               where copper is used, it is more accepted than
               silver, and it is the currency. The Mishnah teaches
               that this is not so, since there are places where it
               is not accepted.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Rav borrowed gold coins from R. Chiya's daughter.
               Their value increased (with respect to silver). R.
               Chiya ruled that he returns coins like he borrowed.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Inference:</font></b> Gold is the currency. If gold were the
               commodity, this would be like lending a Se'ah (a
               measure) of grain on condition to return a Se'ah,
               which is forbidden (lest grain rise in value. This
               is Ribis mid'Rabanan!)
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rejection:</font></b> Rav had gold coins at home. In such a
               case, one may lend Se'ah b'Se'ah.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> One may not lend a Dinar for a Dinar.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> He does not forbid lending a silver Dinar for a
               silver Dinar. Surely, all agree that silver is a
               currency with respect to itself (and permit this)!
               Rather, he forbids lending a gold Dinar for a gold
               Dinar. Since regarding commerce gold is the
               commodity (with respect to silver), we consider its
               value to fluctuate, therefore also regarding loans,
               one may not lend it Dinar for Dinar.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> 75a (Mishnah):</font></b> One may not say 'lend to me a Kor of
               wheat on condition that I will return a Kor after
               the harvest'. He may ask for a loan until his son
               comes or until he finds the key.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Mishnah):</font></b> Hillel forbids lending a loaf until
               setting a price for it, lest wheat rise in price and
               the borrower will return (a loaf worth more, which
               is) Ribis.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> Chachamim permit Stam.
<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> Since gold is the commodity with respect to
               silver, one may not lend a (gold) Dinar for (to pay
               back) a Dinar, lest he lend a Dinar worth 24 silver
               Dinarim, and at the time of payment it will be worth
<br>             <b>  <b><font color='darkgreen'>25. </font></b></b>We cannot say that silver decreased in value,
               for it is the currency! Rather, gold decreased
               (Hagahos Chavos Ya'ir - increased). Therefore, one
               may not lend a Dinar for a Dinar, just like one may
               not lend Se'ah b'Se'ah. Tana'im argue about which of
               gold and silver is the currency, and there was no
               explicit ruling. R. Yochanan holds that gold is the
               commodity, like Rebbi said in his old age, and no
               Amora argues.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Gemara):</font></b> Since gold is
                    currency with respect to Peros, Se'ah b'Se'ah
                    should be permitted. It is a mere stringency of
                    Ribis to forbid it, since it is the commodity
                    with respect to silver.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (4:1):</font></b> We hold like Rebbi's retraction in his
               old age, like our Stam Mishnah. Rav Ashi said that
               what he said in his youth is more reasonable, but
               this was rejected. R. Yochanan holds like Rebbi's
               old age, and forbids lending a Dinar for a Dinar. We
               must say that this refers to a gold Dinar.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Terumas ha'Deshen (54):</font></b> People lend gold for gold.
               The Ge'onim ruled that gold is the commodity, but
               Tosfos disagrees. Also, nowadays most people have
               Metaltelim worth gold, and if they wanted to sell
               them cheaply, if they could not sell them in this
               city, they could sell them elsewhere. This is like
               Se'ah b'Se'ah when the borrower has Mezumanim.
               Metaltelim worth coins are as good as coins. Even if
               he has only one gold coin, he may borrow many, like
               Se'ah b'Se'ah, other Metaltelim do not help, only
               coins, for Peros are normally sold only for coins.
               Metaltelim are sold for gold coins. Also, the Rosh
               says that silver is the currency with respect to
               gold because it is Charif (sellers accept it) and
               important. Nowadays, almost all our (silver) coins
               are mostly copper, and they are not important
               compared to gold, so gold is not the commodity. In
               the days of the Ge'onim, of Tosfos, and even 100
               years ago (i.e. in the middle of the 14th century)
               silver coins were very good and mostly silver.
               Perhaps people were stringent then (not to lend gold
               for gold).
<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 162:1):</font></b> One may not lend Se'ah
               b'Se'ah. This is even if he did not fix a payment
               date.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Bein):</font></b> If this were permitted
                    when a date was fixed, the Gemara would have
                    rejected the proof from Rav's loan by saying
                    that a date was fixed. Even though the Mishnah
                    forbids a loan 'until after the harvest', it
                    merely gives a typical case. Alternatively, it
                    is for parallel structure with the Seifa, which
                    permits 'until my son comes or until I find the
                    key.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> The same applies to
               everything, except for silver coins (currently)
               accepted for currency.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chen):</font></b> All silver coins are
                    permitted. Copper coins are forbidden, even
                    though they are the currency regarding
                    Metaltelim, for they are considered the
                    commodity with respect to silver. We forbid
                    lending gold coins for this reason, even though
                    they are the currency with respect to
                    Metaltelim. The Rif, Rosh and Nimukei Yosef say
                    so.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (3):</font></b> Even silver coins are forbidden if
                    they are not accepted now, e.g. they were
                    disqualified, even if they used to be accepted.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> We are concerned lest the
               commodity rise in price, and he pays back more than
               was lent. We permit only if a price is fixed; if the
               commodity will rise in value, he wil repay this
               amount. If one borrowed without fixing a price and
               the commodity rose in value, he pays back its value
               at the time of the loan. If the price decreased, he
               pays back a Se'ah, like he borrowed.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that nowadays gold coins are like
               silver and one may lend gold for gold. The custom is
               to be lenient. One should not protest, for they have
               whom to rely on.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH ha'Malveh):</font></b> If in the city there
                    is a market with a fixed price for gold
                    Dinarim, and at any time one can buy and pay
                    back, one may lend a gold Dinar for a gold
                    Dinar (Sefer ha'Terumos citing the Rif).
                    Terumas ha'Deshen permits even if there is no
                    fixed price and the borrower has no gold
                    Dinarim, as long as he has Metaltelim. Since he
                    could sell them and get gold coins, it is as if
                    he has gold coins. He also permits if silver
                    coins in the city are poor, and are mostly
                    copper.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (4):</font></b> In the days of the Gemara, silver
                    coins were good. Nowadays they are mostly
                    copper, so gold is the currency.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Taz (2):</font></b> This is because nowadays most people
                    own things worth gold, and they could sell them
                    cheaply if they wanted.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (R. Akiva Eiger):</font></b> If there is a fixed
                    price for Peros, Se'ah b'Se'ah is permitted
                    even if he has no coins. If there is no fixed
                    price, it is forbidden even if he has coins.
                    The same applies to lending coins! The Shach's
                    reason is valid.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Beis Lechem Yehudah:</font></b> In Polin, people lend
                    copper for copper. Granted, according to the
                    Taz, people could sell Metaltelim to get copper
                    coins. However, according to the Shach this is
                    forbidden! Since it is a Safek, the borrower
                    should make sure to have a few such coins. Beis
                    Hillel (the Posek) says that here, the number
                    of Shillings to buy a silver or gold coin
                    fluctuates, (but) we can say that there was a
                    fixed rate at the time of the loan.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Note:</font></b> The Terumas ha'Deshen and Rema permitted
                    gold coins. They did not mention a Heter for
                    copper, even though presumably, people owned
                    Metaltelim that they could sell for copper
                    coins!
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Beis Yosef (DH v'Zeh):</font></b> The Rashba says that if
                    a gold Dinar is spendable, surely one may lend
                    it to pay back the same. It did not rise in
                    price, rather, Peros declined. The Gemara said
                    that surely, one may lend silver Dinar for
                    Dinar, since it is currency with respect to
                    itself. Even if coins are not accepted for
                    payment, if there is a steady fixed price and
                    one can buy them at any time, it is permitted.
                    It is no worse than Peros in storehouses and
                    boats (once they reach the market, one may
                    contract for other Peros). Perhaps gold coins
                    are better, for they are currency with respect
                    to Peros. We permit Peros with a steady fixed
                    price. All the more so Dinarim are permitted!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> One may borrow Se'ah b'Se'ah if
               he has (even) a small amount of what he borrows.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (3):</font></b> Rav did not ask to borrow a Dinar for
                    a Dinar. He merely asked to borrow Dinarim. R.
                    Chiya's daughter did not know that Rav had
                    Dinarim. Therefore, Rav thought that he may not
                    return Dinarim, for they rose in value. R.
                    Chiya answered that it is as if his Dinarim
                    were acquired to her. This is a leniency of
                    Se'ah b'Se'ah.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>HETERIM FOR SE'AH B'SE'AH </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beis Hillel do not decree. One would (not delay; he
               would) take the silver coins.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> All agree that we may redeem Peros onto (gold)
               Dinarim. Since Peros rot, one would not delay until
               he has enough for a full Dinar.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(The other of R. Yochanan and Reish Lakish):</font></b> Beis Shamai
          decree even about redeeming Peros onto Dinarim.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Support:</font></b> According to Version #3, it is clear why Mishnah
          #1 says 'one may (or may not) convert' (l'Chatchilah),
          for mid'Oraisa, all agree that one may redeem. According
          to Versions 1 and 2, the Mishnah should say 'one can (or
          cannot) redeem' (for Beis Shamai say that even b'Di'eved,
          it is not redeemed)!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CAN MONEY BE USED FOR CHALIPIN?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav or Levi):</font></b> A coin can be used to do Chalipin (i.e.
          through transferring a coin, the seller or giver is
          Makneh his object to the buyer or receiver).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(The other of Rav and Levi):</font></b> It cannot be used to do
          Chalipin.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> The latter opinion disqualifies it because
          one relies on the mintage of a coin, and this is prone to
          be invalidated (the king may change the coins).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (against the latter opinion - Mishnah):</font></b> Gold
          acquires silver.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The Mishnah implies that gold acquires
               silver through Chalipin (for then, the silver is
               truly acquired through transferring the gold. If the
               Mishnah referred to Kinyan Meshichah, transferring
               the gold would obligate the buyer to pay silver, but
               would not actually acquire the silver for the
               seller.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> No, it acquires through Meshichah.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If so, it should rather say 'gold obligates
          silver'!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, that is the correct text of the Mishnah.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Support #1 (Reisha):</font></b> Silver does not acquire gold.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We understand if the Mishnah discusses Meshichah.
               Gold is the commodity and silver is the currency,
               therefore silver does not acquire gold.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But if the Mishnah means Chalipin, both should
               acquire each other!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Support #2 (Beraisa):</font></b> Silver does not acquire gold: if
          Reuven sold 25 silver Dinarim for a gold Dinar, even if
          Shimon did Meshichah on the silver, he does not acquire
          until Reuven does Meshichah on the gold.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We understand if the Beraisa refers to Kinyan
               Meshichah. Silver is the currency, therefore it does
               not acquire gold.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But if it means Chalipin, it should acquire!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Reisha):</font></b> Gold acquires silver. If Reuven sold a
          gold Dinar for 25 silver Dinarim, once Shimon does
          Meshichah on the gold, Reuven acquires the silver,
          wherever it is.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Granted, if it means Chalipin, he acquires the
               silver, wherever it is;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But if it means Kinyan Meshichah, why does it say
               'he acquires the silver, wherever it is'? Shimon
               merely owes him the silver!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> It refers to Kinyan Meshichah. It
          means that he acquires the silver, however they
          stipulated. If he agreed to give new coins, he cannot
          give old coins, even if they are better.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The seller can say that he needs new coins
               because he plans to keep them for a long time.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> Even according to the opinion that a coin
          cannot be used (given) to do Chalipin, it can be acquired
          through Chalipin;
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	This is like Rav Nachman says about Peros. It cannot be
          used to do Chalipin, but it can be acquired through
          Chalipin.
<br>

sjt:
</p><p>
<font><b>2) USING COINS FOR 'KINYAN CHALIPIN' BUT NOT FOR 'KINYAN KESEF'</b></font><b>
<br>QUESTION:</b> The Gemara discusses whether coins may be used to effect a Kinyan Chalipin.
</p><p>
It is clear from the Mishnah that coins cannot be used to acquire movable objects with a Kinyan Kesef. (According to Reish Lakish, the Torah recognizes only Meshichah, and not Kesef, as a valid Kinyan. According to Rebbi Yochanan, the Torah recognizes Kesef as a Kinyan but the Rabanan annulled it and instituted Meshichah in its place, as the Gemara will explain (46b).)
</p><p>
If coins may be used to effect a Kinyan Chalipin, what determines whether the coins were intended to be used for a Kinyan Chalipin (and thus they <i>do</i> acquire movable objects) or for a Kinyan Kesef (and thus they cannot acquire movable objects)? After all, both Kinyanim are done in the exact same manner. What is the difference between them?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> here (and in the end of the Mishnah) implies that the type of Kinyan one makes is determined by the wording he uses. If one explicitly states that he is giving the money to accomplish a Kinyan Chalipin, the money will be Koneh (if coins can accomplish Chalipin). If he does not make this statement, the money will not be Koneh. This also appears to be the opinion of the <b>RIF</b>.
</p><p>
(b) <b>TOSFOS</b> (46a, DH Shema Mina) and the <b>TOSFOS HA'ROSH</b> (ibid.) first explain like Rashi, and then they add that if the recipient of the coins immediately returns them, this act also may indicate that the coins were given for a Kinyan Chalipin. His act of returning the coins implies that the coins were like a Sudar, a cloth which is used for Chalipin and which is given to the seller only as a 'Matanah Al Menas l'Hachzir,' with the intent that it accomplish the Kinyan and then be returned (see Nedarim 48b).
</p><p>
(c) The <b>TOSFOS HA'ROSH</b> (46a) cites the <b>RIVAM</b> who offers another distinction between the two Kinyanim. The Rivam writes that coins can be considered Chalipin only when two conditions are fulfilled: the <i>buyer</i> mentions the Kinyan as he gives the coins to the seller (for example, he says, 'I am giving this amount of money in order to acquire this object'), and both the coins and the merchandise are present. In contrast, if the <i>seller</i> quotes a price at one point, and the buyer later hands over money without specifying why the money is being given, the transaction is considered Kinyan Kesef, which cannot be used to acquire movable objects.
</p><p>
(The Tosfos ha'Rosh objects to this explanation.)
</p><p>


<font><b>3) A MINTED COIN WILL EVENTUALLY BECOME INVALIDATED</b></font><b>
<br>QUESTION:</b> The Gemara teaches that coins cannot be used to accomplish a Kinyan Chalipin, because 'Tzurta Avida d'Batla' -- one who receives a coin 'has in mind the impression that was stamped on the coin, and the impression will eventually be invalidated' (when a new king comes to power and requires a new stamp, invalidating the old one).
</p><p>
How does this intention of the recipient of the coin explain why a coin cannot be used for Chalipin? Why does it matter if the impression will eventually become invalidated, if presently it is legal tender?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> (DH Mishum) explains that since a coin can become invalidated by a new king, it is considered an 'incomplete' item, a 'Davar she'Eino Mesuyam,' which may not be used to effect a Kinyan Chalipin. It is comparable to a slice of fruit, which cannot be used for Chalipin even according to those who normally permit the use of fruit to accomplish a Kinyan Chalipin.
</p><p>
The <b>RAMBAN</b> points out that this logic explains only why a coin cannot be used to <i>effect</i> a Kinyan Chalipin, but not why a coin cannot be <i>acquired through</i> a Kinyan Chalipin (for example, when one hands over a utensil in order to acquire another person's coins); no law states that only 'whole' objects can be acquired through Chalipin. The Gemara later, however, concludes that coins cannot be acquired through Chalipin just as they cannot accomplish Chalipin.
</p><p>
(The <b>MACHANEH EFRAIM</b> (Kinyan Chalipin #3) suggests that Rashi may agree with the <b>TESHUVOS HA'RASHBA</b> (1:1104), who writes that one cannot even <i>acquire</i> a 'Davar she'Eino Mesuyam' through Chalipin.)
</p><p>
(b) The <b>RAMBAN</b> and <b>RITVA</b> explain that the Gemara means that Chalipin can be accomplished only with an object that has value in its own right, and not simply because of international convention. Coins are not viewed by the buyer and seller as slabs of silver and gold, but as acceptable currency. Currency has no inherent value (like today's paper bills); as soon as a king changes the mintage, the old coins lose their value as currency. Therefore, coins cannot be used to accomplish a Kinyan Chalipin. They are similar to Shtaros, which the Gemara considers 'Ein Gufan Mamon' (Bava Kama 117b) -- items that have no inherent value but are attributed a value due to what is written in them (Ramban).
</p><p>
This point is derived from the fact that the Torah describes Chalipin as performed with a 'shoe' (see Gemara 47a). Just as a shoe has inherent value, any object used for Chalipin must have inherent value (and just as the field which was purchased with the shoe has inherent value, any object that is purchased with Chalipin must have inherent value) (Ritva).
</p><p>
Alternatively, this point may be derived from logic alone. People do not depend on something as 'inconstant' as a coin, and therefore they do not attach to it enough importance for it to accomplish, or be acquired with, a Kinyan Chalipin (<b>CHINUCH</b>, Mitzvah #336; see also <b>CHIDUSHEI HA'RITVA</b> Yeshanos here).
</p><p>
The Ramban adds that Rashi may agree with this analysis. Perhaps Rashi explains the Gemara differently only because <i>Rav Papa</i> is the author of the Gemara's statement that coins cannot be used for Chalipin, and Rav Papa himself says (shortly afterwards in the Gemara) that although coins cannot be used to <i>accomplish</i> Chalipin, they <i>can</i> be acquired through Chalipin. According to that view, Rashi's explanation is valid. However, according to the view (to which Rav Papa himself eventually subscribes) that coins cannot even be acquired through Chalipin, it is clear that coins are not just a 'Davar she'Eino Mesuyam.' Rather, they are considered to have no inherent value, and therefore they can neither effect Chalipin nor be acquired through Chalipin.
</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CAN COINS BE ACQUIRED THROUGH CHALIPIN?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If Reuven was in a granary, and he
          did not have coins (and wanted to evade the additional
          fifth that one who redeems his own Ma'aser Sheni must
          add), he tells Shimon 'my Ma'aser is given to you for a
          gift.' Reuven then redeems the Ma'aser on coins in his
          own house (and trusts that Shimon will return the Ma'aser
          to him).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> If Reuven had coins, it is better to give
               them to Shimon, and let Shimon redeem the Ma'aser
               (this is a less overt ruse to evade the fifth), for
               it is not Shimon's Ma'aser.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Summation of question:</font></b> If coins can be acquired
               through Chalipin, Reuven should give the coins in
               his house to Shimon through Chalipin!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he does not have a Kli with which to
          do Chalipin.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Reuven should give the coins to Shimon Agav
          (along with) land!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, Reuven does not have land.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> It says that he was standing in a granary. That
          is land!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, it belongs to someone else.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> This is unacceptable, to say that the Mishnah
          gives counsel for a man without clothes (who does not
          have anything with which to make Kinyan Sudar)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, coins cannot be acquired through Chalipin.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	The following shows that Rav Papa himself retracted.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Papa had 12,000 Dinarim in Bei Chuza'i. He gave
               them to Rav Shmuel bar Acha, Agav the corner of his
               house, in order that the Shomer would give them to
               Rav Shmuel (to return to Rav Papa). When Rav Shmuel
               was returning with the money, he went out to Tavech
               to meet him  (Rav Papa gave them Agav, and not
               through Chalipin, for he retracted from saying that
               Chalipin can acquire coins. Maharam Shif -
               presumably, he was Makneh the corner of the house
               through Chalipin. If he held that Chalipin acquires
               coins, there was no need for Agav. One may ask, he
               went to Tavech to meet him out of Simchah, for he
               had worried lest the Shomer in Bei Chuzai hold that
               Agav requires Tziburim (the Metaltelim must be on
               the land given; this was not obvious - see Kidushin
               26b-27a), and refuse to give them to Rav Shmuel.
               Perhaps Rav Papa did not retract. He did not use
               Chalipin, lest the Shomer hold that Chalipin does
               not acquire coins! However, if so he should have
               done both Kinyanim, lest the Shomer hold that only
               one of them works. We must say that he did not use
               Chalipin for he retracted, and did not want people
               to think that he still holds that it acquires coins
               - <b><b><b>PF</b></b></b>.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Ula, Rav Asi, Rabah bar bar Chanah):</font></b> Coins cannot be
          acquired through Chalipin.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (R. Aba - Beraisa):</font></b> If Reuven's workers were
          demanding payment from Reuven in the market, and he told
          a moneychanger 'give me a Dinar's worth of coins (to pay
          them), I will give you the value of a Dinar and an
          (extra) Trisis' this is permitted only if Reuven has the
          coins in his house.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If coins cannot be acquired through Chalipin, (even
               if he has coins in his house) this is a loan with
               Ribis!
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Ula was unable to answer.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1 (R. Aba):</font></b> Perhaps all the coins mentioned are
          blank, therefore they are considered commodities, not
          coins.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Support:</font></b> 'The value of a Dinar and a Trisis' suggests
          that they were not actual coins.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #2 (Rav Ashi):</font></b> True, the Beraisa discusses blanks,
          but we need not say that he acquired them through
          Chalipin;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since he had at home the same thing he borrowed, it
               is permitted. (Since he will return it very soon,
               this is unlike Ribis, which is payment for borrowing
               for a period of time.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CAN A COIN BE USED TO DO CHALIPIN?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> Whatever is (normally) made (given to
          be) payment for other things, once Reuven acquires it,
          Shimon is obligated to give what it was traded for.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The Mishnah discusses money, and it does
               Chalipin!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> No, it means anything that must be
          made into money (i.e. appraised). It refers to
          Metaltelim.
<br>
<br>

sjt:
<font><b>1) 'KINYAN CHALIPIN' WITH MONEY</b></font><b>
<br>QUESTION:</b> The Gemara attempts to prove from a Beraisa that coins may be used to <i>make</i> a Kinyan Chalipin and that they may be <i>acquired</i> through a Kinyan Chalipin. The Beraisa discusses the case of an employer who needs money to pay his workers, and he asks a Shulchani to lend him a Dinar with which to pay his workers. He says that he will pay back the Shulchani with a Dinar and some extra money which he has in his home. The Beraisa says that if, at that moment, he actually has the money in his home, such an exchange is permitted. This shows that a Kinyan Chalipin may be made with coins, since the Shulchani acquires the coins which the employer has in his home at the moment that he gives over the Dinar to the employer. If a Kinyan Chalipin cannot be made with coins, then the employer <i>owes</i> a Dinar to the Shulchani, and when he pays back a Dinar with extra money he transgresses the prohibition against Ribis.
</p><p>
Ula refutes the Gemara's proof from the Beraisa. He explains that the employer is not asking for a Dinar coin from the Shulchani and offering a Dinar coin in exchange. Rather, he is asking for 'Perotetos' (copper slugs) that are worth a Dinar, and he is offering more than a Dinar's worth of Perotetos in exchange. Since Perotetos are not used as currency, a Kinyan Chalipin can be made with them. The Gemara proves that this indeed is the intention of the Beraisa from the wording of the employer when he says, 'I will give you the <i>value of a Dinar</i> plus extra coins in exchange,' which implies that he is not promising to give an actual Dinar, but rather to give merchandise that is worth a Dinar.
</p><p>
Rav Ashi suggests another answer. Indeed, the Beraisa's case involves an exchange of Perotetos and not actual money (as implied by the wording of the Beraisa), but not with Kinyan Chalipin. Instead of transferring to the possession of the Shulchani the Perotetos in his home at that moment, the employer promises to give the Shulchani the Perotetos later. Even though the Shulchani does not acquire the Perotetos until later, it is not considered Ribis since the employer has the Perotetos in his possession in his home.
</p><p>
What does Rav Ashi gain with this new answer? He agrees that the Beraisa refers to an exchange of Perotetos and not real coins, and thus he should say that the employer made a Kinyan Chalipin which permits the exchange! What does he gain by saying that the exchange does not involve a Kinyan Chalipin? (<b>PNEI YEHOSHUA</b>)
</p><p>
Moreover, if the employer is permitted to pay back more than he receives because he has the money in his home as Rav Ashi says, then why does the Beraisa discuss a case in which the exchange is done with Perotetos? (<b>TOSFOS RABEINU PERETZ</b>, <b>TORAS CHAIM</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAN</b>, <b>RITVA</b>, and others explain that according to Rav Ashi, only the coins that the employer is giving to the Shulchani are Perotetos, as the Beraisa implies. The Shulchani, however, gives the employer an actual Dinar. Rav Ashi prefers this explanation since the employer is interested in borrowing <i>money</i> to pay his workers. A person normally pays his workers with coins that are legal tender and not with Perotetos (see <b>TOSFOS</b> DH Idi v'Idi). This is the reason why Rav Ashi rejects the answer of Ula.
</p><p>
Rav Ashi admits that exchanging a Dinar for a Dinar and extra coins is prohibited even when the employer has the money at home. It is only when the employer pays back with Perotetos that the Chachamim permit the exchange. When a person exchanges Perotetos for coins, he makes a <i>sale</i> and not a <i>loan</i>. In such a case, the Chachamim consider the Shulchani -- who has not yet acquired the Perotetos -- as though he has already acquired the Perotetos, so that the employer may receive his payment for the Perotetos now. If the employer would pay back with coins, then it would be a loan and it would be prohibited because of Ribis.
</p><p>
Rashi and Tosfos, however, do not seem to understand the Gemara this way. They apparently understand that Rav Ashi means that both the employer and Shulchani give Perotetos to each other. The Toras Chaim points out that this is implicit in the Gemara according to the Girsa 'l'Olam b'Perotetos' (which is the Girsa of Rashi and most Rishonim). The Gemara implies that Rav Ashi is saying that Perotetos are involved in the same way that they are involved in the previous answer ((Ula's). The Beraisa also implies that the 'Ma'os' which the employer gives to the Shulchani are the same type of 'Ma'os' that the Shulchani gives to the employer.
</p><p>
(b) The <b>PNEI YEHOSHUA</b> explains that according to Rashi's opinion earlier (45b, DH Mai Ta'ama), Rav Ashi's words may be understood as follows. Rashi writes that according to Rav Nachman only a Kli may be used for Chalipin, but not a coin or any other object that is not a Kli. Hence, Rav Nachman cannot explain that the Beraisa is discussing a case of Kinyan Chalipin. Perhaps Rav Ashi's intention is to suggest a new explanation of the Beraisa which can be used even according to Rav Nachman. Why, according to Rashi, does the Beraisa discuss a case in which both the Shulchani and the employer give Perotetos? If the reason why one is permitted to pay back with Perotetos is that it is considered like a purchase and not a loan (as mentioned above), then it certainly should be permitted when the Shulchani gives <i>money</i> and the employer gives back Perotetos! The answer is that Rashi explains why one is permitted to pay back with Perotetos in a different manner than the other Rishonim. Rashi explains that even if the employer would receive the money as a loan and not towards the purchase of Perotetos, he still would be permitted to pay back with more Perotetos than he received. The reason for this, as the <b>RITVA</b> writes in the name of the <b>RE'AH</b>, is that if the employer has money in his home, and the Shulchani saves him the trouble of going home and getting the money, the Shulchani is entitled to receive payment for saving the employer's time and effort. This is not considered Ribis because Ribis applies only to payment given in return for the right to retain the lender's money for a period of time. Why, then, must the Beraisa be discussing Perotetos? Even if the Shulchani gives money to the employer, the employer should be permitted to pay back with more money! Apparently, the Chachamim prohibited paying back more money in a money-for-money exchange because it looks like Ribis. When the Shulchani gives Perotetos, though, and the employer pays back with Perotetos, he is permitted to pay back more than he originally paid.
</p><p>
This explains why the Beraisa discusses a case in which both the Shulchani and the employer give Perotetos. When both of them give each other Perotetos, it is considered a loan and <i>not</i> a purchase, as <b>TOSFOS</b> (DH Na'aseh) implies. The Beraisa is teaching that even though the exchange is done in a manner similar to a loan, it nevertheless is permitted because the employer has Perotetos in his home. If the Shulchani gives money and the employer pays back with Perotetos, it certainly would be permitted because it would be like a purchase and not like a loan.
</p><p>
This answer, however, does not suffice to explain Tosfos. Tosfos (45b, DH Ein) explains that even according to Rav Nachman, Perotetos may be used for a Kinyan Chalipin. Moreover, Tosfos here (DH Na'aseh) explains that the Shulchani and the employer do <i>not</i> give the same type of Perotetos, but rather they give each other different types of Perotetos, and the exchange is considered a purchase and not a loan. Accordingly, both questions remain according to Tosfos.
</p><p>
(c) The answer to the first question (what does Rav Ashi gain by explaining that no Kinyan Chalipin was made) may be as follows. Perhaps Rav Ashi maintains that although Rav Nachman permits Chalipin with coins (if not for the problem of 'Tzurta Avida d'Batla'), nevertheless he does not permit Chalipin to be done with Perotetos. Tosfos explains that a coin may be used for Chalipin according to Rav Nachman since it is included in the category of a Kli, because it can be used as a weight or as a decorative pendant. Rav Ashi may maintain that this applies only to coins which are stamped and thus have a decorative appearance and can be used as a pendant. Perotetos, in contrast, are slugs which are not stamped and which have no set weight, and therefore Rav Ashi might not consider them a Kli (even though Ula <i>does</i> consider them a Kli). Therefore, Rav Ashi prefers to explain that the Beraisa is not discussing Kinyan Chalipin. This answers the first question.
</p><p>
The answer to the second question (why does the Beraisa discuss a case in which both the Shulchani and the employer give Perotetos to each other, and not a case in which the Shulchani gives coins and the employer gives Perotetos, which certainly is an exchange of a purchase and would be permitted) may be as follows. Tosfos writes that if the Shulchani and employer give the same type of Perotetos, the employer is prohibited from paying more than he received because the transaction is considered a loan, and paying back more than he received would be considered Ribis. The reason the Beraisa permits it is that the Shulchani and the employer use <i>different</i> types of Perotetos. Hence, the Beraisa might be teaching that even though both of them are giving Perotetos, it is not considered a loan since they are using different types of Perotetos. One might have thought that since both are giving objects in the category of Perotetos, it should be considered a loan and be prohibited. (M. Kornfeld)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SE'AH B'SE'AH IS PERMITTED WHEN THE BORROWER HAS SOME</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'> 44b:</font></b> Rav borrowed gold coins from R. Chiya's
               daughter. Their value increased relative to silver.
               R. Chiya ruled that he returns coins like he
               borrowed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav had gold coins at home. In such a case, one may
               lend Se'ah b'Se'ah (i.e. on condition to return the
               same amount of the commodity).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 46a (Beraisa):</font></b> If Reuven's workers demand payment
               from him, he may tell a moneychanger 'give to me a
               Dinar's worth of coins (to pay them), and I will
               give to you a Dinar and a Trisis' only if Reuven has
               the coins in his house.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> This is a loan with Ribis!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (Rav Ashi):</font></b> Since he had at home the same
               thing he borrowed, it is permitted. (Ribis is
               payment for borrowing for a period of time.)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 63b (Rav Nachman):</font></b> If wax sells for four cakes per
               Zuz, a seller may offer five if the buyer pays now
               and receives it later only if he has wax now.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> He teaches about a seller who already gave to Ploni
               money to receive wax. One might have thought that he
               is like one who borrows Se'ah b'Se'ah, and he
               already has it at home. Rav Nachman teaches that
               this is not so. Since he has not collected his wax,
               it is as if he does not have it.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 72b:</font></b> Rav Huna permitted Talmidim to borrow in
               Tishrei and repay Peros in Teves (at the cheaper
               price of Teves), because the money could be used now
               to buy Peros in Hini or Shili (other places)!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 75a (Mishnah):</font></b> One may not say 'lend to me a Kor of
               wheat on condition that I will return a Kor after
               the harvest.' He may ask for a loan until his son
               comes or until he finds the key (to get to wheat he
               has now);
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> Hillel forbids this.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Rav Huna):</font></b> One who has wheat may borrow the
               quantity he has.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (R. Yitzchak):</font></b> If one has a Se'ah, he may borrow
               very many Sa'im.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Support (for R. Yitzchak - R. Chiya - Beraisa):</font></b> One
               may not lend wine (or oil) when he does not have
               even a drop of wine (or oil);
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Inference:</font></b> If he has, he may borrow many drops.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> (Rav Nachman):</font></b> The Halachah follows Hillel.
<br>        <b>  <b><font color='darkgreen'>15. </font></b></b> The Halachah does not follow Hillel.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (45a):</font></b> The Halachah is, if one has a Se'ah, he
               may borrow very many Sa'im. Chachamim permit lending
               Stam (without fixing a price) and repay Stam. This
               is when there is a market price, like Rav Huna
               taught (72b), or when the borrower has some of that
               species, like R. Yitzchak. In such a case, it is
               like a loan until his son comes or until he finds
               the key.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 10:2):</font></b> if one has some of the
               species he wants to borrow, he may borrow Stam
               without fixing a time and repay Stam, even though
               there is no market price. Even if he had only one
               Se'ah, he may borrow many Sa'im. If he has a drop of
               oil or wine, he may borrow many barrels of wine and
               oil.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> We view it as if he borrowed one
                    corresponding to the one he has, and now he has
                    two, so he may borrow two corresponding to
                    them, and so on. Chachamim were lenient to say
                    so because there is no Isur mid'Oraisa.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (3):</font></b> One may not borrow a Kor of wheat in
               order to return a Kor after the harvest. One may
               borrow 'until my son comes or until I find the key.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (61):</font></b> One may lend on (condition to be paid
               with) Peros only if he has, even if there is a
               market price. That is unlike Se'ah b'Se'ah. Since he
               lent money, it looks like Ribis. Having money for
               Peros is like having Peros. This is only for Se'ah
               b'Se'ah, but not for other loans, because here there
               is another reason to permit: wheat rots in the
               storehouse (the borrower helps the lender). Even the
               Ra'avad (who says that the Heter to lend Se'ah
               b'Se'ah based on a market price is only when the
               borrower has money and could buy) agrees that if one
               has money for one Se'ah, he may borrow many.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (75):</font></b> The Mishnah forbids a loan 'until after
               the harvest', for typically that is when he will
               have wheat to pay back. The same applies if no time
               was fixed. It is permitted only if the borrower has.
               Rav Huna discusses when there is no market price.
               The Halachah follows R. Yitzchak, who permits
               borrowing any amount at once even if he has only a
               little.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tosfos (75a DH Leis):</font></b> Rivan says that even R.
                    Yitzchak does not permit giving at once more
                    than the borrower has now. However, he may give
                    it at once and say 'acquire one after the
                    other.' Surely, the lender may pour out wine
                    even when the borrower has only a drop!
<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 162:2):</font></b> if one has a small amount
               of a species, even if the key (to where it is) is
               not in his hand, he may borrow many Sa'im and repay
               Se'ah b'Se'ah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Loveh):</font></b> The Gemara says 'if he
                    has a Se'ah', but the same applies if he has
                    any amount. We find that one with a drop of
                    wine may borrow much.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (5):</font></b> It does not suffice for him to have
                    money (unless there is a market price).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If he wants to borrow
               something and has none of that species, the lender
               gives to him a bit of the species, or he lends to
               him, and afterwards lend to him many Sa'im.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Im Ein):</font></b> Talmidei ha'Rashba say
                    that if the borrower borrowed a Se'ah, he
                    cannot rely on it to borrow (Se'ah b'Se'ah).
                    This is because he borrowed it to spend (or
                    use) it. I do not understand this. All a
                    person's property is destined to be spent, yet
                    he may rely on it to borrow!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz (4):</font></b> Talmidei ha'Rashba permit if the
                    borrower previously borrowed a Se'ah. They
                    forbid only if the lender come to lend a Se'ah
                    now to permit lending more, for we cannot say
                    that this Se'ah will be used to repay the
                    others, since it is destined to be spent.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> He does not discuss why one would even
                    think that lending the first Se'ah (to permit
                    the others) is permitted! Perhaps the Hava
                    Amina was not to lend it Se'ah b'Se'ah, rather,
                    to fix a price for it.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (8):</font></b> The Bach rules like Talmidei
                    ha'Rashba. It seems that the Ateres Zahav does
                    also, and therefore he omitted 'or he lends.'
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Gra (8):</font></b> When the borrower has only a drop, it
                    is permitted because the next drop lent is
                    considered like the borrower's (and he may
                    borrow corresponding to it). This supports the
                    Beis Yosef.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> If the borrower had a little deposited with
               someone else, it is as if it is in his hand. If
               others owe to him, this is not called that he has.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Im Lo):</font></b> We learn from 63b. Rav
                    Nachman taught regarding contracting that if
                    one is owed, since it must be collected, it is
                    not as if he has. The same applies to Se'ah
                    b'Se'ah. It would have been a bigger Chidush to
                    teach so about a deposit. Since Rav Nachman did
                    not teach this about a deposit, we infer that a
                    deposit is considered to be ihh.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gidulei Terumah (46:5:2, brought in Hagahos Tur
                    ha'Shalem 5):</font></b> The Mishnah permits lending
                    'until my son comes', which is totally in his
                    Reshus. Why didn't it teach the bigger Chidush
                    of a deposit with someone else? Perhaps this is
                    because a deposit does not always permit, e.g.
                    if the Shomer denies it. The Tana would have
                    needed to distinguish between when the Shomer
                    admits and when he denies. He did not want to
                    do so.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema (ibid):</font></b> The same applies to if he has
               elsewhere, but the lender has no Derech l'Sham (a
               path to there).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Im, citing Mordechai 439):</font></b> If
                    he does not normally go there, this is not like
                    'until my son comes', rather, like one who is
                    owed, which is forbidden.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> Sometimes 'Derech l'Sham' connotes a
                    <i>possible</i> way to get to there (e.g. Rambam
                    Hilchos Malveh 4:12).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema (ibid.):</font></b> If the borrower says that he has some
               of the species, he need not bring a proof; the
               lender may lend to him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source:</font></b> Mordechai 432, brought in Beis Yosef DH
<br>                    mi'MAh
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rema (ibid.):</font></b> When he has some of the species, he
               may lend Stam. If the lender stipulates that if the
               price increases he will pay wheat, and if the price
               decreases he wil pay what it was worth at the time
               of the loan, it is forbidden, for the lender is
               close to gaining and far from losing.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>HETERIM FOR SE'AH B'SE'AH </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Support (Reisha):</font></b> How is this? If he exchanged an ox for
          a cow, or a donkey for an ox...
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> The one who made the above suggestion
          understood that the Mishnah discusses money. How did he
          understand this?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah (is abbreviated, it) means: Peros
          (i.e. Metaltelim that are not Kelim) also do Chalipin.
          How is this? If he exchanged an ox for a cow, or a donkey
          for an ox...
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Granted, Rav Sheshes can answer like this, for
          he says that Peros do Chalipin;
<br>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> How can we answer for Rav Nachman, who says that
               only Kelim can do Chalipin?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah (is abbreviated, it) means: There is
          a form of money that acquires like Chalipin (i.e. without
          moving the commodity). How is this? If he was owed money
          for an ox and exchanged (the debt) for a cow, or money
          owed for a donkey for an ox...
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Why does this work?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Nachman holds like R. Yochanan, that
          mid'Oraisa, (paying) money acquires Metaltelim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim enacted that Meshichah acquires (but money
               does not), lest someone sell something in his house
               (without giving it over immediately), and be
               slothful about saving it from a fire;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim decreed only in a common case. It is not
               common to buy with money owed from a sale (so this
               still acquires, like Torah law).
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	Reish Lakish says that mid'Oraisa, Meshichah acquires
          Metaltelim, but money does not. If he rules like Rav
          Sheshes (that Peros do Chalipin), he can explain the
          Mishnah like Rav Sheshes.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> If Reish Lakish rules like Rav Nachman (that
          only Kelim do Chalipin), how can he explain the Mishnah?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> We must say that Reish Lakish rules like Rav
          Sheshes.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DISQUALIFIED COINS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> All Metaltelim acquire each other.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> Even a wallet full of coins acquires a
          wallet full of coins.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Inference:</font></b> This can only be through Chalipin. We learn
          that coins can be acquired through Chalipin!)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rejection) (Rav Acha):</font></b> He refers to disqualified coins
          (they are commodities).
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	The law is the same whether they were disqualified in the
          whole kingdom, or one province ceased to accept them.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	He needed to teach both of these;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had he taught only when they were disqualified in
               the whole kingdom, one might have thought that when
               they are unusable only in one province, they are
               still considered currency, and are not acquired
               through Chalipin;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had he taught only when they are unusable only in
               one province, one might have thought that that is
               because they cannot be used (there) in public or
               private, but when they were disqualified in the
               whole kingdom, they can be used in private, they are
               still considered currency, and are not acquired
               through Chalipin.
<br>

<p>

sjt:
</p><p>
<font><b>2) THE USE OF VARIOUS TYPES OF OBJECTS FOR 'CHALIPIN'</b></font><b>
<br>QUESTIONS:</b> The Gemara discusses whether or not coins may be used for Chalipin. The Gemara implies that the only reason why coins may not be used is 'Tzurta Avida d'Batla' -- one who receives a coin 'has in mind the impression that was stamped on the coin, and the impression will eventually be invalidated' (when a new king comes to power and requires a new stamp, invalidating the old one).
</p><p>
The Gemara also discusses the use of an ox or a donkey for Chalipin. Later, the Gemara discusses the use of a wallet full of disqualified coins for Chalipin.
</p><p>
How are these Gemaras to be reconciled with the ruling of Rav Nachman (47a), whom the Halachah follows, who says that only a Kli may be used for Chalipin? (Rishonim)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> (45b, DH Mai Ta'ama, and 46b, DH Hachi Ka'amar) explains that a coin and an animal are considered Peros and not Kelim, and thus they may not be used for Chalipin according to Rav Nachman. According to Rashi, the Gemara is discussing the opinion of Rav Sheshes whenever it discusses Chalipin with an item that is not a Kli. (See previous Insight, answer (b).)
</p><p>
The <b>BA'AL HA'ME'OR</b>, who also follows this approach, points out that Reish Lakish who rules that a wallet full of coins may be exchanged for a wallet full of coins follows his own opinion expressed a few lines earlier, where the Gemara says that Reish Lakish rules like Rav Sheshes that even Peros may be used for Chalipin.
</p><p>
Reish Lakish discusses a Kinyan Chalipin done with a wallet full of coins in order to explain what the Mishnah teaches when it says that 'all Metaltelin may be used for Chalipin.' According to Rav Nachman who maintains that a wallet full of coins cannot be used for Chalipin, what is that line of the Mishnah teaching? (<b>RAMBAN</b> in Milchamos)
</p><p>
The answer may be found in Rashi's words on the Mishnah (DH Kol ha'Metaltelin). Rashi explains that the Mishnah is teaching that Metaltelin may be used not only to effect a Kinyan Chalipin, but they may be used even to effect a Kinyan Kesef (since it is unusual to make a Kinyan Kesef with Metaltelin). This is consistent with the way Rashi explains the opinion of Rav Nachman with regard to the Mishnah in Kidushin (28a). (See Rashi DH Keitzad and following Insight.) Rav Nachman allows such a Kinyan Kesef to take effect because he accepts the opinion of Rebbi Yochanan who says that a Kinyan Kesef is a valid Kinyan mid'Oraisa. Reish Lakish, who explains that the Mishnah is teaching that Chalipin may be done with wallets full of coins, is consistent with his own opinion that a Kinyan Kesef cannot be done with Metaltelin, and therefore the Mishnah must be referring to a Kinyan Chalipin. (M. Kornfeld)
</p><p>
Rashi (DH Hachi Ka'amar) omits the Girsa '<i>Basar</i> Shor' because of his opinion that a Shor and the meat of a Shor are both considered Peros. (Rashi in Kidushin 28b accepts the Girsa of 'Basar Shor' and explains that a Shor is more similar to a Kli than to the meat of a Shor, even though both are Peros.)
</p><p>
(b) The <b>RA'AVAD</b> (in Hasagos on the Rif here) and the <b>RIF</b> (in a Teshuvah cited by the Shitah Mekubetzes) explain that Rav Nachman does not require specifically a Kli for Chalipin. He uses the word 'Kli' merely to exclude Peros and other edible items, which Rav Sheshes permits for Chalipin. Hence, a coin or a live animal may be used for Chalipin even according to Rav Nachman.
</p><p>
The Ra'avad and other Rishonim cite proof for this from the way the Gemara explains the Mishnah in Kidushin according to Rav Sheshes. The Gemara explains that the first part of the Mishnah ('Kol ha'Na'aseh Damim b'Acher') is teaching that a coin may be used for Chalipin. The second part of the Mishnah ('Hichlif Shor b'Parah') is teaching that even Peros may be used for Chalipin. If a coin is considered Peros, then what is the second part of the Mishnah adding to what it teaches in the first part? The Mishnah already teaches that Peros may be used for Chalipin when it says that a coin may be used! (See <b>RAMBAN</b> in Milchamos.)
</p><p>
The answer to this might be that according to Rashi, the first part of the Mishnah does not permit using coins <i>l'Chatchilah</i>, but rather <i>if</i> they were used, then b'Di'eved the Chalipin is effective. The second part of the Mishnah is teaching that other types of Peros may be used for Chalipin even l'Chatchilah. (M. Kornfeld)
</p><p>
(c) <b>TOSFOS</b> (45b, DH Ein, and 46b, DH u'Peiri) writes that Rav Nachman indeed limits Chalipin to Kelim and not to all objects that are inedible. However, Rav Nachman considers a coin to be a Kli (because it can be used as a weight or a pendant). He also considers an ox or donkey to be a Kli while it is alive, because it can be used for carrying burdens or for plowing. A rock, however, may not be used for Chalipin according to Rav Nachman. In this way, Tosfos preserves the simple meaning of the words of Rav Nachman, and yet he does not need to say that all of the Gemaras that discuss Chalipin with coins and animals are in accordance only with the view of Rav Sheshes.
</p><p>
Perhaps proof for this approach may be adduced from the Gemara earlier (beginning of the Daf) that discusses a person who is standing in a threshing house without any object with which to use for Chalipin. If even a stone may be used for Chalipin, then how is it possible that he cannot find a stone to use for Chalipin?
</p><p>
Further support for this approach may be inferred from the Gemara later (47a) which teaches that a Kli may be used for Chalipin even if it is not worth a Perutah. It seems clear that the reason the Kli need not be worth a Perutah is that the very fact that it is a Kli gives it prominence. (See Tosfos to Kidushin 11b, DH v'Harei.)
</p><p>
Perhaps in truth the Ra'avad and others also agree that although Rav Nachman does not require specifically a Kli for Chalipin, he <i>does</i> require an object that people save and value, for otherwise it is considered a 'Davar she'Eino Mesuyam' (47a) which cannot be used for Chalipin.
</p><p>


<font><b>3) AN ACQUISITION MADE THROUGH AN EXCHANGE OF GOODS</b></font><b>
<br>QUESTION:</b> The Gemara explains how Rav Nachman understands the Mishnah in Kidushin (28a) which implies that a Kinyan Chalipin may be achieved with the transfer of a non-Kli object, contrary to the view of Rav Nachman. When the Mishnah says that when a person exchanges his ox for a cow the Meshichah of one effects the Kinyan of the other, it refers to a Kinyan <i>Kesef</i> and not to a Kinyan Chalipin. It means that there is a situation in which a Kinyan Kesef takes effect since it is done in a manner similar to Chalipin. That case is when the person exchanges the <i>value</i> of his cow for the <i>value</i> of an ox.
</p><p>
<b>RASHI</b> seems to give conflicting explanations for this statement. Rashi first explains (DH Keitzad) that the Kinyan is done after the owner of the ox already sold his ox to the owner of the cow, but the buyer did not yet pay for it but rather accepted upon himself the outstanding payment as a debt he owes to the seller. Later, the former owner of the ox agrees to cancel the debt in return for receiving the buyer's cow. At that point, the Kinyan takes effect. Later, however, Rashi explains the case differently. He explains that an ordinary barter is taking place, where the two animals are being exchanged based on their monetary value. What does Rashi mean to say?
</p><p>
<b>ANSWER:</b> The <b>MAHARAM SHIF</b> and <b>CHASAM SOFER</b> point out that Rashi indeed is presenting two different explanations. Apparently, Rashi originally understood the Gemara in one way, which was the way he explained it when he first wrote his commentary on Bava Metzia. Later, Rashi retracted his explanation and explained the Gemara in a different way. This second explanation is the way that Rashi explains the Sugya in Kidushin (28b). The <b>RAMBAN</b> mentions that the <b>RIF</b> also originally explained the Gemara in the same way as Rashi first explained it, and then explained the same as Rashi's second way (the second way is the explanation that appears in our text of the Rif). The two different approaches are as follows.
</p><p>
(a) Originally, Rashi and the Rif explained that according to Rav Nachman, if the owner of an ox decides on a set value for his ox, and the owner of the cow declares that his cow is worth that value and he wants to use it to purchase the ox, as soon as the owner of the ox performs Meshichah on the cow the owner of the cow acquires the ox through Kinyan Kesef. (The Kinyan is not described as a Kinyan Chalipin, since the owner of the cow intended to use the cow as <i>payment</i>, and not as an <i>exchange</i>, for the ox.)
</p><p>
(This explanation of Rashi begins from the words, 'v'Hachi Ka'amar.' The first part of Rashi's comment here is his later addition.)
</p><p>
Rashi's comment earlier (44a, DH Kol ha'Metaltelin) is consistent with this explanation.
</p><p>
The Ramban asks why this should be considered an unusual transaction. It appears to be an ordinary barter! He suggests that perhaps the owner of the cow originally intended to pay for the ox, and only later he decided to give the cow as payment. This is what differentiates this transaction from an ordinary barter.
</p><p>
The <b>ME'IRI</b> (Kidushin 28b) suggests (in one explanation) that the buyer did not actually own a cow. The seller wanted to receive a cow in return for his ox, and the buyer apologized for not having a cow to give him. He offered instead the <i>value</i> of a cow to the seller, so that the seller could use that money to purchase a cow in the market. This is why the transaction was unusual -- the payment was designated to be used for the purpose of buying a cow.
</p><p>
(b) Later, Rashi and the Rif retracted their original explanation. They decided that when two items are bartered, it indeed is considered a normal Kinyan Chalipin and the Kinyan takes effect (Ramban). Alternatively, they understood that if it is specified that the cow is given as payment and not as an exchange (Chalipin), then the Meshichah of the cow will not be Koneh, since it is a common form of Kinyan Kesef. Rather, they explained as follows. The owner of the cow already sold his cow in exchange for a set sum of money that was yet to be delivered to him. Afterwards, the buyer offered a cow in exchange for the sum that he owed. As soon as the seller agrees to be Mochel (pardon) what the buyer owes, he is Koneh the cow through Kinyan Kesef with the value he was Mochel. (The <b>RITVA</b> here cites a Yerushalmi that adds that the buyer had already appointed a storekeeper to pay back the seller at the buyer's expense.)
</p><p>
Why, though, should this be considered a Kinyan Kesef? The Gemara in Kidushin (47a) teaches that if a woman owes money to a man, he cannot be Mekadesh her with that money by being Mochel it to her. The Gemara implies that the same would apply to a purchase. Accordingly, the owner of the ox should not be able to acquire the cow by being Mochel the money that he is owed!
</p><p>
The Rishonim suggest several answers to this question.
</p><p>
1. <b>TOSFOS</b> (DH Yesh) answers that the owner of the ox specifies that he wants to be Koneh with the 'benefit of the Mechilah of the money owed,' referring to the benefit that the owner of the cow receives by not having to pay for the ox that he purchased. This type of benefit <i>is</i> valid to effect a Kinyan Kesef, as the Gemara says in Kidushin (6b).
</p><p>
2. The <b>RAMBAM</b> (Hilchos Mechirah 5:4 and 7:4; see <b>MAGID MISHNEH</b> there) seems to learn that the Gemara argues with the Gemara in Kidushin (47a) and distinguishes between a Kinyan Kesef of a purchase and a Kinyan Kesef of marriage. What distinction can be made if the Kinyan Kesef of Kidushin itself is <i>derived</i> from the Kinyan Kesef of a purchase (Kidushin 2a)? His logic may be as follows.
</p><p>
Kidushin has an additional requirement which is derived from Gerushin (divorce) through a Gezeirah Shavah: the husband must <i>give</i> something to the woman at the time of the Kidushin. Accordingly, the Kidushin is valid only if the husband gives either Kesef or Shaveh Kesef (or Hana'ah, which is like Shaveh Kesef) at the time of the Kidushin. Therefore, he cannot be Koneh her with a loan which was given at an earlier time. A purchase, in contrast, has no such requirement, and therefore it can take effect with the Mechilah of a loan.
</p><p>
3. The <b><b><b>RI</b></b> MI'GASH</b> (Teshuvah 113) distinguishes between an ordinary loan and a loan that comes about through the purchase of goods. A loan that comes about through the purchase of goods may be used as Kinyan Kesef. The <b>GILYON</b> cited by the Shitah Mekubetzes makes a similar distinction, pointing out that a loan normally is 'l'Hotza'ah Nitnah,' given for the sake of spending the money and paying back at a later time. However, the money that is owed for the purchase is supposed to be paid back as soon as the purchase is made, and therefore it never had a period which can be called 'l'Hotza'ah Nitnah,' and it is as if the money that is owed is present at the time that the loan is forgiven.
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CHALIPIN WHEN ONE IS PARTICULAR ABOUT THE VALUE OF THE ITEMS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rabah citing Rav Huna):</font></b> If Reuven held up money and said
          'sell me your item for this', and Shimon agreed (even
          though he could not see how much money it was), the
          acquisition works, and Shimon can claim the Ona'ah. (If
          the money is a sixth less than the item's value, Reuven
          must give the amount he underpaid.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The acquisition works, even though Reuven did not do
               Meshichah. Since Shimon was not concerned to see how
               much money was paid, this acquires, like Chalipin;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Shimon can claim the Ona'ah. Since he said 'sell',
               and not 'trade,' it is a sale (to which the law of
               Ona'ah applies), and it is not Chalipin.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Aba citing Rav Huna):</font></b> If Reuven held up money and
          said 'sell to me your item for this', and Shimon agreed,
          the acquisition works, and Shimon cannot claim the
          Ona'ah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Both agree that if the seller is not concerned to see how
          much money was paid, this acquires, like Chalipin.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the law of Chalipin when the seller is
          particular about how much money was paid? (Is it like a
          Kinyan Kesef, and it is not final until Meshichah is
          done?)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Ada bar Ahavah - Beraisa):</font></b> If Reuven wanted
          to exchange his cow for Shimon's donkey, and after asking
          each other the price, Shimon was Moshech the cow, and the
          donkey died before Reuven was Moshech it, the cow was not
          acquired.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This teaches that when the seller is concerned about
               how much money is paid, it is like a regular sale.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> People always care about the value,
          even in Chalipin!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Beraisa discusses when Shimon wanted a cow and a
               lamb for his donkey. Since he was Moshech only the
               cow, the acquisition was never completed.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> If Reuven held up money and said 'sell me
          your item for this', and Shimon agreed, the acquisition
          works, and Shimon can claim the Ona'ah.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Rav Huna (who says that he acquires because
          it is like Chalipin) says that coins can be acquired
          through Chalipin.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. Rather, he agrees with R. Yochanan, that
          mid'Oraisa, money acquires Metaltelim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim enacted that Meshichah acquires (and not
               money), lest someone sell something in his house and
               be slothful about saving it from a fire, for it
               already belongs to the buyer and he has nothing to
               gain by saving it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim decreed only in the usual case (when the
               seller is concerned about the money). In this case,
               we rule that the money acquires without Meshichah.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mar Huna brei d'Rav Nachman):</font></b> We learned that Rav Huna
          explicitly said that coins cannot be acquired through
          Chalipin.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE KELI FOR CHALIPIN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Whose Kli is used to do Chalipin?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rav):</font></b> The buyer's Kli is used. He wants the
          seller to get his Kli, in order that the seller will
          resolve absolutely that the buyer acquire the commodity.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Levi):</font></b> The seller's is used (we will explain
          why later).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Huna of Diskarta):</font></b> According to Levi, the
          seller gives land (through Chalipin) through giving a
          Kli. A Mishnah teaches just the contrary!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Metaltelim are acquired along with land.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The Kli does not acquire the land. Rather,
          with the pleasure the seller gets that the buyer accepted
          his Kli, he resolves to give the land.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Tana'im argue like Rav and Levi argue.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'Al ha'Ge'ulah... he gave his shoe to the
               other.' 'Geulah' refers to a sale; 'Te'udah' refers
               to Chalipin;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> 'Lekayem Kol Davar Sholaf Ish Na'alo' -
               who gave his shoe to whom?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1:</font></b> Bo'az (who acquired rights to redeem the
               field) gave to the (closer) redeemer.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #2 (R. Yehudah):</font></b> The redeemer gave to Bo'az.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A Kli does Chalipin, even if it is not worth a
          Perutah.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> That refers only to a Kli, but Peros do
          not work.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Sheshes):</font></b> Even Peros work.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What is Rav Nachman's reason?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The verse discusses a shoe (to show that a Kli is
          needed)!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> How does Rav Sheshes explain this?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> 'Na'alo' teaches that something specific must be
          used. This excludes half a fruit (when he did not specify
          which half).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (Rav Sheshes brei d'Rav Idi):</font></b> We write in
          documents '(we acquired) with a Kli proper to acquire
          with it.' Whom is this like?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> 'A Kli' excludes Rav Sheshes' opinion, that Peros
          make Chalipin. 'Proper' excludes Shmuel's opinion, that
          Maroka (Rashi - Kelim of dung; Tosfos - date pits) may be
          used;
<br>
<br>

sjt:
<font><b>1) HOW A 'KINYAN CHALIPIN' IS ACCOMPLISHED</b></font><b>
<br>QUESTIONS:</b> According to Levi, a Kinyan Chalipin is accomplished by the seller giving an object to the buyer. The Gemara explains that the pleasure that the seller receives as a result of the buyer's acceptance of his object causes the seller to have full intent (Gemiras Da'as) to transfer ownership of the second object to the buyer.
</p><p>
(a) The Gemara in Kidushin (7a) teaches that when a woman gives a present to a man who is an important person ('Adam Chashuv'), the pleasure that she receives from his acceptance of the present is worth a Shaveh Perutah and makes the Kidushin take effect. The Gemara in Kidushin clearly says that the woman becomes married only if she gives the present to an 'Adam Chashuv' and not to an ordinary man. The Gemara implies that the woman receives no pleasure when an ordinary man who is not an 'Adam Chashuv' accepts her gift. Why, then, does Levi consider the seller to be receiving Hana'ah even when he gives the object of the Chalipin to an ordinary person? (<b>TOSFOS</b> to Gitin 40a)
</p><p>
Moreover, if the mechanics of Chalipin, according to Levi, are based on the fact that the seller receives Hana'ah by giving an object to the buyer, then why should the seller not be able to accomplish a Chalipin by receiving an outright gift from the buyer? If the pleasure received when giving an object is considered enough to make him be Makneh, then the pleasure of receiving an object should certainly be enough to make him be Makneh!
</p><p>
(b) According to Rav, why must the seller <i>receive</i> an object? If the buyer is an 'Adam Chashuv,' it should suffice for the seller to <i>give</i> an object, since the seller receives pleasure by the buyer's acceptance of the object! If such a form of Hana'ah suffices to accomplish Kidushin, why should it not accomplish a Kinyan Chalipin? Even if there is some reason why it cannot accomplish a Kinyan Chalipin, it should work at least as Kinyan Kesef, since the buyer is giving the seller Hana'ah of value in return for the purchased item. At least with regard to land (which is acquired with Kesef), such a sale should take effect through Kinyan Kesef!
</p><p>
<b>ANSWERS:</b>
<br>(a) The Rishonim disagree about whether the Hana'ah of Kinyan Chalipin that Levi discusses is the same as the Hana'ah that the Gemara in Kidushin discusses.
</p><p>
1. <b>TOSFOS</b> writes that according to Levi, the Chalipin can be accomplished <i>only</i> with the seller's object and not with the buyer's. Even though the seller receives Hana'ah when the buyer gives him an object, the Torah states that Chalipin must be done through the seller giving an object to the buyer. In a similar manner, the Torah limits Kinyan Chalipin to a Kli, and it does not allow coins, or objects that are not whole, to be used for Chalipin. This is true even according to Levi, even though the seller receives Hana'ah when he gives such objects just as he receives Hana'ah when he gives a Kli.
</p><p>
The <b>RITVA</b> here and in Kidushin explains this further. The fact that the seller must give an object to the buyer in order to make a Kinyan Chalipin is a Gezeiras ha'Kasuv, because the seller does not really receive a Hana'ah worth a Perutah from giving something to an ordinary person, as the Gemara in Kidushin teaches. When the Gemara says that according to Levi, the seller receives Hana'ah by giving, it is merely presenting a partial logical basis ('Ta'ama Ketzas l'Kra') for the law of the Torah.
</p><p>
The Ritva's intention might be that the Gemara is explaining only why Chalipin is not comparable to Kinyan Agav according to Levi. The main focus of the Chalipin is on what the seller receives. However, the Torah limits how the seller may receive this Hana'ah when a Kinyan Chalipin is made; he may receive this Hana'ah only by giving a Kli.
</p><p>
2. The words of <b>RASHI</b> (DH Mi Savart) imply that Levi maintains that the Hana'ah which the seller receives by giving is what actually accomplishes the Kinyan, and it is considered as though the seller has received an object. It seems from Rashi's words that Levi certainly would consider the Kinyan to be a Kinyan Chalipin when the <i>buyer</i> gives an object to the seller. <b>TOSFOS RABEINU PERETZ</b> cites some Rishonim who say this explicitly. <b>TOSFOS</b> in Gitin also cites this opinion in the name of Rashi here.
</p><p>
According to Rashi, why should Kinyan Chalipin work when the seller gives an object to a person who is not an 'Adam Chashuv'? The <b>RAN</b> in Kidushin answers that Kidushin of a woman requires a Shaveh Perutah because it is disgraceful for a woman to become Mekudeshes with less than a Shaveh Perutah (as the Gemara in Kidushin (3b) says). A woman receives Hana'ah worth a Perutah only when she gives an object to an 'Adam Chashuv.' Chalipin, in contrast, can be done with a Kli even when the Kli is worth less than a Shaveh Perutah. This Hana'ah that the seller receives by giving is considered like a Kli, and therefore it can accomplish a Kinyan even though it is worth less than a Shaveh Perutah. That is why Chalipin can be done by giving an object even to a buyer who is not an 'Adam Chashuv.' (See (b) below, in the name of the Ketzos ha'Choshen.)
</p><p>
(According to Rashi, it is not clear whether Levi allows the seller to give <i>any</i> object for Chalipin, even a coin, or an object that is not a Kli or not whole, or whether Levi agrees that there is a Gezeiras ha'Kasuv which limits the manner in which the seller may receive Hana'ah from the buyer to giving certain types of objects.)
</p><p>
(b) The Rishonim also seem to disagree about whether Rav allows Chalipin or Kinyan Kesef to be made by having the seller give an object to a buyer who is an 'Adam Chashuv.'
</p><p>
1. The Ritva and Rishonim in Kidushin (7a) infer from <b>RASHI</b> there (DH v'Chen) that Rav does not consider it a Kinyan when a seller gives an object to a buyer who is an 'Adam Chashuv.' The Ritva explains that perhaps Rashi's reasoning is that giving to an 'Adam Chashuv' provides the requisite Hana'ah only when the giving accomplishes a Kidushin. In such a case the Hana'ah the woman receives from the man's acceptance of the object combines with the Hana'ah she receives from the fact that the recipient agrees to be Mekadesh her, and it therefore accomplishes the Kinyan of Kidushin. In contrast, when a seller gives an object to a buyer, that Hana'ah alone -- that the buyer accepts the object -- is not enough to accomplish the Kinyan.
</p><p>
Another possibility is that Rav does not consider the Hana'ah that a person experiences when he gives an object to someone who accepts it to be comparable to the Hana'ah a person experiences when he receives a Kli, or even Peros. Rather, such Hana'ah (that someone accepted his object) is like an object which is not a complete entity unto itself ('Davar she'Eino Mesuyam'), and that is why it cannot accomplish a Chalipin. (If the buyer specifies that he wants the Hana'ah to be Koneh through Kinyan Kesef, perhaps it will be Koneh when the item that is being purchased is land. It is only when the buyer gives the seller Hana'ah in order to effect Chalipin that the Kinyan will not work.) Levi either considers the Hana'ah of giving to be like giving a Kli, or he does not require a Kli or a 'Davar Mesuyam' (a complete object) to make a Kinyan Chalipin, according to Rashi (as mentioned above).
</p><p>
(The <b>KETZOS HA'CHOSHEN</b> (190:3-4) suggests that the Hana'ah of giving can be considered like a Kli only according to the <b>RIF</b> and others who maintain that anything which is lasting is in the category of 'Kli.' According to those who maintain that Rav Nachman allows Chalipin to be made <i>only</i> with a Kli, the Hana'ah of giving will not be able to effect a Kinyan. Consequently, according to Rashi -- who does not agree with the Rif (see Insights to 46:2) -- it is clear why the Hana'ah of giving cannot accomplish a Kinyan Chalipin according to Rav Nachman.)
</p><p>
2. The Ritva and other Rishonim, however, disagree with Rashi. They write that the Gemara in Kidushin implies that the Kinyan of the Hana'ah of an 'Adam Chashuv' also works for monetary transactions. They explain that the Gemara here, which says that the buyer must give an object to the seller according to Rav, is discussing a buyer who is not an 'Adam Chashuv,' or a seller who does not specify that he wants the Hana'ah of the gift being accepted to accomplish the Kinyan.
</p><p>
It is possible that Rashi in Kidushin is consistent with his opinion here. Rashi learns that according to Levi, the Hana'ah that the seller receives when he gives the buyer an object is a full-fledged Hana'ah that is able to accomplish a Kinyan. Levi would agree that if the buyer gives the seller an object it will also effect a Kinyan. Hence, Rav Nachman, who argues with Levi, rejects the Kinyan of 'Adam Chashuv' with regard to monetary transactions, since that is the Kinyan to which Levi refers. It must be that the pleasure of giving cannot accomplish a monetary exchange, according to Rav.
</p><p>
The Ritva and other Rishonim are consistent with their opinion that the Hana'ah to which Levi refers is not the same Hana'ah which the Gemara in Kidushin discusses, but rather the Kinyan is accomplished only by the Gezeiras ha'Kasuv. Hence, it cannot be proven from the Gemara here that the Hana'ah of 'Adam Chashuv' cannot accomplish a Kinyan Chalipin (or Kinyan Kesef).
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHO BENEFITS FROM A GIFT?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> The buyer's Keli is used to make Chalipin. He
               wants the seller to get his Keli, so that the seller
               will resolve absolutely that the buyer acquire the
               item.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Levi):</font></b> The seller's Keli is used.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rava):</font></b> Levi does not hold that the Keli acquires.
               Rather, with the pleasure the seller gets that the
               buyer accepted his Keli, he resolves to give the
               commodity.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Kidushin 7a (Rava):</font></b> If Leah told Reuven 'give money
               to Ploni, and I will be Mekudeshes to you', we learn
               from the law of an Arev (guarantor) that this works.
               An Arev obligates himself, even though he does not
               benefit. Likewise, Leah can acquire herself to
               Reuven without receiving the money.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> If one told Leah 'take this money and be Mekudeshes
               to Ploni', we learn from (redemption of) a Kena'ani
               slave that this works. When one pays a slave's
               master to redeem him, the slave acquires himself
               (his freedom), even though he does not pay.
               Likewise, Ploni can acquire a wife without paying.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> If Leah told Reuven 'give money to Ploni, and I will
               be Mekudeshes to him', we learn from the laws of an
               Arev and a slave that this works.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Mar Zutra):</font></b> If Leah told Reuven 'take this money,
               and I will be Mekudeshes to you,' she is Mekudeshes
               if he is esteemed. He gives her Hana'ah (pleasure)
               by accepting her gift. This Hana'ah is Mekadesh her.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Berachos 59b (Beraisa):</font></b> If one built a new house or
               bought new Kelim, he blesses Shehecheyanu.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> He blesses ha'Tov veha'Metiv only if he has a
               partner (who shares the benefit).
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rambam (Hilchos Ishus 5:21) If Leah told Reuven
               'give money to Ploni, and I will be Mekudeshes to
               him', Reuven gave, and Ploni said 'you are
               Mekudeshes to me with the Hana'ah of the gift that I
               received like you wanted, she is Mekudeshes.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> When she herself gives money to
                    Ploni, she is Mekudeshes only if he is
                    esteemed. If not, she received nothing! Here,
                    she loses no money, and benefits from
                    fulfillment of her command with others' money.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ran (Kidushin 3a DH vHani):</font></b> An esteemed person
                    does not normally take gifts. She would have
                    paid a Perutah to someone to appease him to
                    accept from her. She received this for free
                    (when he accepted from her), and was Makneh
                    herself.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Question (Ran):</font></b> In Bava Metzi'a, Rav holds that
                    a giver does not get Hana'ah when another
                    receives his gift. He did not distinguish 
                    whether or not the receiver is esteemed. Levi
                    holds that the giver always gets Hana'ah!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer (Ran):</font></b> Levi holds that there is always
                    Hana'ah, but if the receiver is not esteemed,
                    the Hana'ah is less than a Perutah. This helps
                    for Chalipin, which does not require a Perutah,
                    but not for Kidushin. Rav holds that when an
                    esteemed person receives a gift and will keep
                    it, the giver gets Hana'ah. Normally, one who
                    takes a Kli to do Chalipin gives it back.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (OC 223:5):</font></b> If one received a gift,
               he blesses ha'Tov veha'Metiv, for it is good for him
               and the giver.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magen Avraham (8):</font></b> The Rosh said that if the
                    recipient is poor, it is good for the giver. He
                    merited to do Tzedakah. If the recipient is
                    rich, the giver is happy that he accepted it.
                    However, there is Hana'ah (for Kidushin - EH
                    27:9) only if the recipient is esteemed! Many
                    rich people eagerly take gifts. The giver did
                    not benefit! We say similarly in Choshen
                    Mishpat (190:6).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (8):</font></b> See the [Ran in the] first Perek of
                    Kidushin.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Dameshek Eliezer and Taz (YD 160:8):</font></b> Kidushin
                    requires Kesef, i.e. a Perutah of Hana'ah;
                    ha'Tov veha'Metiv does not. If the recipient is
                    rich, there is some Hana'ah. It is Shavah
                    Perutah only if he is esteemed.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Machatzis ha'Shekel (DH v'Ayen):</font></b> The Magen
                    Avraham holds that one may not bless ha'Tov
                    veha'Metiv for a paltry Hana'ah worth less than
                    a Perutah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 160:15):</font></b> Some forbid to tell Levi
               'tell Ploni to give to you four Zuz, and I will lend
               to you.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Kosav Rabbeinu):</font></b> R. Yerucham
                    forbids. He learns from Kidushin. If Leah told
                    Reuven 'give money to Ploni, and I will be
                    Mekudeshes to him', we learn from the laws of
                    an Arev and a slave that this works. This case
                    is similar, so we forbid it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz (8):</font></b> We need not refute this explanation.
                    It is clearly wrong. The Bach says that we
                    cannot forbid when the borrower does not lose!
                    Rather, our text is mistaken. It should say
                    'tell Ploni to give to me four Zuz, and I will
                    lend to you.' I say that this is obvious; R.
                    Yerucham would not need to teach it. Rather,
                    his law is like Kidushin with the Hana'ah that
                    an esteemed man accepted her gift. She would
                    have paid someone to persuade him to accept. If
                    she tells Levi 'tell Ploni to give to you four
                    Zuz, and I will be Mekudeshes to you', she is
                    Mekudeshes, since Levi was her Shali'ach to
                    tell Ploni, and she wants this. If not for
                    Levi, she would have paid someone else a
                    Perutah to tell Ploni. She benefits from the
                    Shelichus. It is worth money; people do not
                    toil to speak (make such requests) to others
                    for free. This is even if Levi is not esteemed.
                    Surely we forbid her to marry without a Get. I
                    would not rely on this to be lenient, e.g. if
                    later David was Mekadesh her. The same applies
                    to Ribis. We forbid 'I will lend to you if you
                    accept a gift from me' only if the borrower is
                    esteemed and must be appeased to accept gifts.
                    If Levi said 'tell Ploni to give to you four
                    Zuz, and I will lend to you', Levi is happy
                    that he tells Ploni, and he would have paid a
                    Perutah for this, so this is absolute Ribis.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Gra 31):</font></b> We need not say like the
                    Taz. The Shulchan Aruch forbids a case like
                    'give money to Ploni, and I will be Mekudeshes
                    to him.' We learn from the laws of an Arev and
                    a slave that this works. (It is as if she
                    received.)
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Mishneh l'Melech (Hilchos Malveh 5:14 DH Kosav
                    Rabbeinu):</font></b> One may not say 'give money to
                    Ploni, and I will lend to you', even though the
                    lender does not receive. One may not tell David
                    'give money to Ploni, so he will lend to me',
                    for David is like the borrower's Shali'ach.
                    Just like we combine these laws regarding
                    Kidushin, also here. One may not tell David
                    'tell Reuven to give to Ploni, and I will lend
                    to you.' Ploni's receiving is as if the lender
                    received. Reuven's giving is as if David gave.
                    The Levush forbids to tell David 'give money to
                    Ploni, and I will lend to him', or to tell the
                    borrower (Levi) 'tell Ploni to give money to
                    you, and I will lend to you.' His first law is
                    wrong. There is no Ribis! Granted, in his
                    second law Levi's receiving is like the
                    lender's receiving. In the first case, it is as
                    if the lender received, but the borrower did
                    not lose. The Levush misunderstood the Beis
                    Yosef.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Mekor Mayim Chayim:</font></b> The Magid Mishneh says that
                    when she loses no money, she is Mekudeshes even
                    if he is not esteemed. Sha'ar De'ah says that
                    likewise here, the lender gets proper Hana'ah
                    when the borrower receives according to his
                    command, and it is forbidden due to Ribis. This
                    supports the Levush's first case! However, the
                    Shulchan Aruch brings only the second case.
                    This shows that he disagrees with the first.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Shach (20):</font></b> Since the lender wants the borrower
                    to get the gift, the borrower may not tell
                    Ploni, for his Shelichus benefits the lender.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHEN DOES ONE WHO GIVES A GIFT BENEFIT? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'To acquire' - not to make (the other) acquire (i.e.
               the Kli is of the one acquiring);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #1 (Rav Papa):</font></b> 'With it' excludes coins;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Zvid):</font></b> 'With it' excludes something forbidden
               to benefit from it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Version #2 (Rav Papa):</font></b> 'With it' excludes coins;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav Zvid):</font></b> 'Valid' excludes something forbidden to
               benefit from it;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Obviously, Maroka is invalid. The text need not
                    allude to it.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>AN ASIMON</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> An Asimon acquires coins...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is an Asimon?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav):</font></b> It is a coin given for a sign in the
          bathhouse (that one paid for a bath).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> We cannot redeem Ma'aser Sheni on an
          Asimon, nor on coins given like a sign in the bathhouse.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This shows that they are two different things!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> The Mishnah explains that an Asimon is a
               coin given for a sign in the bathhouse.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection (Mishnah - R. Dosa):</font></b> We can not redeem
               Ma'aser Sheni on an Asimon;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Chachamim say, we can redeem on it;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Both agree that we cannot redeem on coins given
                    for a sign in the bathhouse.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (R. Yochanan):</font></b> Rather, an Asimon is a blank
          coin.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	This is like R. Yochanan said elsewhere.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> R. Dosa (brought above) and R.
               Yishmael agree with each other.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa - R. Yishmael):</font></b> 'V'Tzarta ha'Kesef
               b'Yadecha' includes anything that may be Nitzrar
               (wrapped) in the hand;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Akiva says, this includes any coin that has a
               Tzurah (form, i.e. mintage).
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>ACQUISITION OF METALTELIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven made Meshichah on Shimon's Peros to
          buy them and did not yet pay, Shimon cannot retract...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> Mid'Oraisa, money acquires Metaltelim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim enacted that Meshichah acquires (and not
               money), lest one sell something in his house, and
               then tell the buyer 'it burned in a fire.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection:</font></b> The buyer will collect from the one
               responsible for the fire!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Retraction:</font></b> Rather, the concern is lest a fire erupt
               through Ones;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If the item belongs to the seller (until
                    Meshichah), he will strive to save it. If it
                    belongs to the buyer, he will not strive to
                    save it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> The Torah explicitly teaches that
          Meshichah acquires.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> 'Kanoh mi'Yad Amisecha' refers to something that
          is passed from hand to hand.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	R. Yochanan explains that 'mi'Yad' excludes land from the
          law of Ona'ah.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Reish Lakish:</font></b> To teach only that, it should have said
          'when you will sell mi'Yad Amisecha.' 'Oh Kano' is extra,
          to teach Meshichah.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What does R. Yochanan learn from 'Oh Kano'?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> 'V'Chi Timkeru Memkar... Al Tonu' would
          teach (forbid) only when the buyer was afflicted
          (overpaid);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Oh Kano... Al Tonu' includes when the seller was
               afflicted (the buyer underpaid).
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	Reish Lakish learns both laws from 'Oh Kano.'
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Question (against Reish Lakish - Mishnah - R. Shimon):
          Whoever is holding the money has the upper hand;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The seller can retract, but the buyer cannot.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Granted, if (mid'Oraisa) coins acquire, it sufficed
               to enact that the seller can retract (he will save
               the item in order to profit. If it rises in value,
               he will cancel the sale.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> But according to Reish Lakish, coins do not acquire
               (mid'Oraisa or mid'Rabanan). Why can't the buyer
               retract?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Reish Lakish):</font></b> Indeed, R. Shimon holds like R.
          Yochanan. I explain Chachamim.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> According to Reish Lakish, we understand the
          argument between Chachamim and R. Shimon;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to R. Yochanan, what do they argue about?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> They argue about Rav Chisda's law;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> Just like it was enacted that sellers
               can retract until Meshichah was done, also regarding
               buyers.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim hold like Rav Chisda, and R. Shimon does
               not.
<br>

<p>

sjt:
</p><p>
<font><b>2) THE TEXT OF A SHTAR FOR A 'KINYAN CHALIPIN'</b></font><b>
<br>QUESTION:</b> The Gemara explains the phrase commonly written in Shtaros, 'b'Mana d'Chasher l'Mikneya Bei.' The word 'b'Mana' ('with a utensil') teaches that a Kli must be used for Chalipin, in contrast to the view of Rav Sheshes who allows Peros to be used for Chalipin. The word 'Bei' teaches that a coin may not be used.
</p><p>
<b>RASHI</b> (45b, DH Mai Ta'ama) writes that since a coin is not considered a Kli, it is not valid for Kinyan Chalipin according to Rav Nachman. The Gemara earlier introduces a different reason for why a coin may not be used ('Da'ata a'Tzurta...') only according to Rav Sheshes who permits the use of Peros for Chalipin.
</p><p>
According to Rashi, why is it necessary to write in a Shtar the word 'Bei' to show that a coin cannot be used for Chalipin, if the word 'b'Mana' -- which teaches that only a Kli may be used for Chalipin -- is already written in the Shtar? A coin is not a Kli, and thus the Shtar's text ('b'Mana') already excludes it from Chalipin! (<b>TOSFOS</b> to 45b, DH In. Tosfos disagrees with Rashi based on this question and writes that a coin <i>is</i> considered a Kli. See Insights to 46:2.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>PNEI YEHOSHUA</b>, <b>RASHASH</b>, and <b>MAHARAM SHIF</b> (45b) explain that although Rashi does not consider a coin to be a Kli, nevertheless it resembles a Kli more than fruit does. Hence, if the Shtar said only 'b'Mana,' one might have thought that only fruit may not be used, but a coin, which is more similar to a Kli, may be used. The word 'Bei' was added to teach that even a coin may not be used.
</p><p>
The Rashash adds that Rashi in Kidushin (28b, DH Basar Shor) makes a similar point about a live ox. Even though it is not considered a Kli, Rashi writes that it resembles a Kli more than food resembles a Kli.
</p><p>
According to this approach, Rashi is consistent with his opinion expressed elsewhere. Rashi (47a) implies that according to Levi there are no limitations as to what type of object may be used for Kinyan Chalipin (see previous Insight, answers (a) and (b)). Why, then, is it necessary to write in a Shtar 'l'Mikneya' in order to exclude the opinion of Levi who allows Chalipin to be made by the seller giving an object to the buyer? It already says 'b'Mana,' which means that a Kli must be given, and the pleasure which a seller receives by giving something to the buyer is not a Kli! Accordingly, this pleasure of giving obviously cannot be used for Chalipin! The answer must be that although it is not necessary to explicitly state that the seller cannot give an object to the buyer as Chalipin, nevertheless it is written clearly in the Shtar so that people not mistakenly assume that Chalipin may be made in such a manner, and that the object discussed in the Shtar was transferred through such a Chalipin. This is known as 'Shufra d'Shtara' (Bava Basra 69b) -- writing in a Shtar details that are not necessary for the enhancement of the document (to make it more clear).
</p><p>
The same may apply with regard to the word 'Bei.' Although it is written in the Shtar that a Kli must be used for Chalipin ('b'Mana'), people do not automatically assume that a coin is not a Kli. Therefore, it is written explicitly in a Shtar that a coin may not be used for Chalipin so that no one will be able to claim that the Chalipin of the object of the Shtar was done in the wrong manner.
</p><p>
(b) Another answer may be suggested based on the following question. Why are no words written in the Shtar to show that a 'Davar she'Eino Mesuyam' may not be used for Chalipin? According to Tosfos and those who argue with Rashi, perhaps this is included in the word 'b'Mana,' which implies that not only must a Kli be used, but that a <i>whole</i> Kli -- and not a broken Kli -- must be used. Rashi may have learned that 'b'Mana' does not exclude a broken Kli. A broken Kli, or a 'Davar she'Eino Mesuyam,' is excluded by the word 'Bei.' When the Gemara writes that 'Bei' excludes a coin, it does not mean specifically a coin, but it means any object that is not a 'Davar Mesuyam' -- even a Kli, since Rashi (45b, DH Mishum) learns that the reason a coin may not be used is because it is a 'Davar she'Eino Mesuyam.'
</p><p>


<font><b>3) WHY 'KESEF' IS NOT 'KONEH'</b></font><b>
<br>QUESTION:</b> The Gemara teaches that according to Rebbi Yochanan, the Chachamim instituted that Meshichah must be done to an object after money is paid for it because of fear that the seller will see a fire approaching the merchandise and will not make any effort to save the merchandise, since he stands to lose nothing if the merchandise is destroyed (since it already belongs to the buyer). The Chachamim reasoned that if the merchandise is considered the seller's property even after he receives money for it, he will make a great effort to save it. If it is not considered to belong to him, he will not make any effort to save it.
</p><p>
Why does the Gemara find it necessary to emphasize that if the merchandise is considered to belong to the seller, he will make a great effort to save it? The primary reason why the Chachamim enacted that money does not finalize the Kinyan was to protect the buyer. If the seller is considered the owner of the merchandise until the buyer takes physical possession of it and removes it from the seller's domain, the buyer will not lose if the merchandise gets destroyed, whether or not the seller makes an effort to save it. The Gemara should say simply that if the merchandise belongs to the seller, the buyer will not lose as a result of the destruction of the merchandise! (See <b>PNEI YEHOSHUA</b>.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The words of <b>RASHI</b> (DH Kach Tiknu) imply that the buyer may withdraw from the sale only while the merchandise is still in existence. After the merchandise has been destroyed, the buyer may no longer withdraw from the sale. (See <b>BA'AL HA'ME'OR</b>.)
</p><p>
Accordingly, it is possible for the buyer to lose even after the Chachamim instituted that money is not Koneh. If fire destroys the merchandise, the buyer cannot withdraw from the sale and he loses his money. That is why the Gemara emphasizes that the Takanah that money is not Koneh will solve even this problem, because it will motivate the seller to make great effort and attempt to save the merchandise from being destroyed in anticipation of a potential profit. (<b>PNEI YEHOSHUA</b>)
</p><p>
(b) The Pnei Yehoshua suggests further that this wording may have been chosen in order to explain why the Chachamim instituted that money is not Koneh according to Rebbi Shimon. Rebbi Shimon rules that the buyer may <i>not</i> withdraw from the sale; only the seller may withdraw. According to Rebbi Shimon, if the merchandise is destroyed, the buyer certainly will lose. The reason why the Takanah d'Rabanan helps the buyer is that it gives the seller an incentive to prevent the merchandise from being destroyed.
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE CURSE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (against Reish Lakish - Mishnah):</font></b> ...However,
          Chachamim said 'He who punished the generations of the
          flood and the dispersion, He will punish one who does not
          honor his word.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If (mid'Oraisa) coins acquire, we understand why one
               who retracts is cursed this way.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But if coins do not acquire, one who retracts merely
               does not fulfill his word. Is he cursed for this?!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Shimon):</font></b> Chachamim said that a
                    garment acquires a Dinar, but a Dinar does not
                    acquire a garment, and they do not force the
                    seller to give it. However, Chachamim said, He
                    who punished the generations of the flood and
                    the dispersion, the people of Sodom and Amora
                    and the Miztriyim at the sea, He will punish
                    one who does not honor his word;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If one verbally agreed to buy or sell, this is
                    not a Kinyan. Chachamim are displeased with one
                    who retracts.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>(Rava):</font></b> There is no curse for this, just
                    Chachamim are displeased.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> If one verbally agreed to buy or sell, and money
          was given, and he retracts, he is cursed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one verbally agreed to buy or sell, but money was
               not given, and he retracts, he is not cursed.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> A verse and a Beraisa support Reish Lakish.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A verse supports him - 'and he will deny to his
               colleague a deposit, bi'Sshumes Yad... or Oshak...'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> 'Bi'Sshumes Yad' refers to a Kli that
               the borrower designated to be a security for a loan
               (a borrower brings a Korban for denying the loan and
               swearing falsely only if he designated a security);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  'Oshak' is a Kli that the employer designated
                    to be security for paying his worker.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> When the Torah discusses his admission, it says 'he
               will return... ha'Oshek...', but it does not mention
               Teshumes Yad!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> It omits this because the lender need
               not return it, for he never acquired it, for he
               never did Meshichah!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> Perhaps the Torah need not say that
          he returns it, because we learn from Oshek!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> We cannot learn from Oshek. The case of
          Oshek is when the worker took the Kli for a security, and
          returned it to the employer.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If so, it is a deposit! (The verses also
          discuss denying and returning a deposit.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The Torah discusses two kinds of deposits.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If so, the Torah should also mention returning
          Teshumes Yad, when the lender took the Kli for a security
          and returned it!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Had it done so, we would not know whether or not
          Meshichah is needed. Now that it is omitted, we learn
          that (sometimes one need not return it, for) Meshichah is
          needed.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> The Torah teaches about returning Teshumes Yad!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Shimon):</font></b> Everything mentioned
               (regarding the denial) is also alluded to in the
               verse of returning - 'Oh mi'Kol Asher Yishava Alav
               la'Sheker'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> This comes to include (that one must
               return) Teshumes Yad.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> In any event, it was not mentioned explicitly.
          (This teaches that it is only returned when it is like a
          deposit, i.e. the lender took it for a security, and
          returned it. This is because Meshichah is needed to
          acquire it.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Support (for Reish Lakish - Beraisa):</font></b> If b'Shogeg Reuven
          gave Hekdesh money to a bathhouse attendant (to pay for a
          bath that he will take), Reuven transgressed Me'ilah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> This refers only to a bathhouse attendant,
               for nothing requires Meshichah. When Meshichah is
               required, Me'ilah takes place only when he is
               Moshech (for this completes the transaction).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Beraisa #1):</font></b> If b'Shogeg Reuven gave
               Hekdesh money to a barber (so he will cut his hair),
               Reuven transgressed Me'ilah;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We should say that Me'ilah is only after he is 
                    Moshech the instruments used to cut!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The Beraisa discusses a Nochri barber, who
               does not acquire through Meshichah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Support (Beraisa #2):</font></b> If b'Shogeg Reuven gave
               Hekdesh money to a barber, shipdriver or any
               professional, he does not transgress Me'ilah until
               he makes Meshichah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> This contradicts Beraisa #1!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer:</font></b> Beraisa #1 discusses a Nochri barber.
                    Beraisa #2 discusses a Yisrael barber.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> Money acquires mid'Oraisa.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Levi (in his own Tosefta):</font></b> If b'Shogeg Reuven gave
          Hekdesh money to a wholesaler, Reuven transgressed
          Me'ilah.
<br>
<br>

sjt:
<font><b>1) THE STATUS OF 'KINYAN KESEF'</b></font><b>
<br>QUESTIONS:</b> The Gemara teaches that even if Kesef is not a valid Kinyan mid'Oraisa, the Chachamim instituted that a person who wants to retract from a purchase for which he has already paid must receive the curse of 'Mi she'Para.' This curse effectively prevents a person from retracting from a purchase once he has given the money to the seller.
</p><p>
<b>RASHI</b> (DH Kai) asks that according to this reasoning, what difference does it make whether Kinyan Kesef is mid'Oraisa or not? Even if Kinyan Kesef is not Koneh mid'Oraisa, a person may not retract from a purchase that was done with Kinyan Kesef! (Rashi may be following his opinion expressed elsewhere. Rashi always defines 'Kinyan' to mean that a person may no longer retract from the agreement. See Gemara 45b, and see Rashi to 45a.)
</p><p>
Rashi answers that the practical difference between whether or not Kesef is Koneh mid'Oraisa is with regard to Isurim. For example, 'if a person used it to be Mekadesh a woman,' according to Rebbi Yochanan (who says that Kinyan Kesef is valid mid'Oraisa) the Kidushin is valid, and according to Reish Lakish the Kidushin is not valid.
</p><p>
There are a number of important questions that may be asked on Rashi's explanation.
</p><p>
(a) Rashi implies that it is difficult to find a practical difference between the views of Rebbi Yochanan and Reish Lakish. There seem, however, to be a number of obvious differences which Rashi could have mentioned which are discussed explicitly in the Gemara.
</p><p>
1. The Gemara mentions several times that in unusual circumstances, Kesef <i>is</i> Koneh according to Rebbi Yochanan, since the Chachamim did not annul the Kinyan Kesef in situations which are very uncommon. For this reason, according to Rebbi Yochanan, a Kinyan Kesef takes effect when a person is Koneh a cow with the 'price,' or value, of an ox (meaning the money that he owes for the purchase of the ox) (46b), and a Kinyan Kesef takes effect when a person purchases an object with a lump sum of money and does not show concern about the exact amount (47a). Also, the Gemara (49b) teaches that when the merchandise purchased with Kesef is in the buyer's attic which is rented to the seller, the Kinyan takes effect right away because the buyer will protect the merchandise there since it is in his property (and there is no need to enact that Kinyan Kesef will not work in order to encourage the seller to save the merchandise). In all of these cases, the Kinyan is not valid according to Reish Lakish, but it is valid according to Rebbi Yochanan. (<b>PNEI YEHOSHUA</b>, <b>MAHARAM SHIF</b>. The <b>RITVA</b> indeed suggests that these are the practical differences between the views of Rebbi Yochanan and Reish Lakish.)
</p><p>
2. The Gemara later teaches that when a person pays money of Hekdesh to purchase food, according to Rebbi Yochanan he is liable for Me'ilah since the Kinyan takes effect mid'Oraisa, while according to Reish Lakish he is not liable for Me'ilah. (<b>PNEI YEHOSHUA</b>)
</p><p>
3. Rashi earlier (47b, DH Kach Tiknu) writes that if the buyer sees a fire approaching the merchandise for which he paid but which he did not yet take, he is able to retract from the purchase. Rashi's words imply that he agrees with the view of the <b>BA'AL HA'ME'OR</b> who rules that after the merchandise is destroyed, it is too late for the buyer to back out of the deal, according to Rebbi Yochanan. The loss must be suffered by the buyer since he was already Koneh the merchandise with Kinyan Kesef. Although the Chachamim said that a Meshichah must be done in order to finalize the purchase, they did not revoke the Kinyan Kesef. Rather, they instituted that even after the Kinyan Kesef, the buyer may retract while the merchandise is still in existence, as long as he did not do Meshichah. (See Insights to 47b.)
</p><p>
Accordingly, there is an important practical difference between Rebbi Yochanan and Reish Lakish. When the merchandise is destroyed before the Meshichah is done, according to Reish Lakish the loss is suffered by the seller, since the buyer never made a Kinyan on it. According to Rebbi Yochanan, the loss is suffered by the buyer, since he <i>did</i> make a Kinyan (with Kesef) but did not take advantage of the Takanah d'Rabanan that allowed him to retract from the Kinyan. (<b>MAHARAM SHIF</b>)
</p><p>
4. Another practical difference is the type of Kinyan that a <i>Nochri</i> may use to acquire an object. The Gemara in Bechoros (13a) teaches that whatever Kinyan the Torah prescribes for Jews, the opposite type of Kinyan must be used by a Nochri. Therefore, according to Rebbi Yochanan a Nochri can be Koneh only with Meshichah. According to Reish Lakish, a Nochri can be Koneh only with Kesef (the Chachamim did not change the Kinyan of a Nochri).
</p><p>
(b) Why should the Kidushin be valid according to Rebbi Yochanan? If the Chachamim annulled Kinyan Kesef, then the rule of 'Hefker Beis Din Hefker' should be applied to teach that the object does not belong to the buyer even though he made a Kinyan Kesef. If he uses it to be Mekadesh a woman, it should not be valid, since the Chachamim removed it from his possession! (<b>RITVA</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) Perhaps Rashi does not mention these other practical differences between the views of Rebbi Yochanan and Reish Lakish for the following reasons:
</p><p>
1. Rashi does not mention the cases which are not common because he wants to give a <i>common</i> practical difference. Perhaps the case in which the attic belongs to the buyer and is rented to the seller is also not common enough for Rashi to mention it. (<b>MAHARAM SHIF</b>)
</p><p>
Another possibility is that Rebbi Yochanan and Reish Lakish (on 47b) are arguing about the statement of the Mishnah (44a), 'Keitzad... Nasan Lo Ma'os....' Since the Mishnah states that the Kinyan is <i>not</i> valid, it obviously is not discussing any of the cases in which Rebbi Yochanan maintains that the Kinyan Kesef <i>is</i> valid.
</p><p>
2. Rashi <i>does</i> include Me'ilah as one of the practical differences between Rebbi Yochanan and Reish Lakish. This is what he means when he writes that the difference between them is with regard 'to Isurim.' He mentions Kidushin only as one example of an Isur, which can be derived from the Gemara's statement that the Isur of Me'ilah is a practical difference. (Rashi prefers Kidushin to Me'ilah as a practical difference because it applies even today, while objects subject to Me'ilah today are rare.)
</p><p>
3. Rashi wants to mention as a practical difference a case in which Reish Lakish would says that the Kinyan is not valid and 'Mi she'Para' will not apply (as mentioned above in the question). When Rashi writes that the buyer may retract when he sees a fire approaching the merchandise, he means that the buyer is not bound even by 'Mi she'Para' to continue with the deal, as <b>TOSFOS</b> says (47b, DH Iy). Since the buyer will suffer a significant loss by not retracting from the purchase, 'Mi she'Para' does not apply. Perhaps Rashi maintains that after the merchandise is destroyed, 'Mi she'Para' <i>would</i> apply, since the buyer -- by retracting -- will cause the seller a significant loss. It is only while the fire is approaching that he is permitted to retract, in order to motivate the seller -- who becomes the owner when the buyer retracts -- to do whatever he can to prevent the fire from harming the merchandise.
</p><p>
4. The <b>PNEI YEHOSHUA</b> writes that Rashi indeed could have mentioned the difference of whether a Nochri is Koneh with Meshichah or with Kesef.
</p><p>
Alternatively, Rashi might follow the opinion of <b>RABEINU CHAIM HA'KOHEN</b> (cited by Tosfos to 48b) who suggests that according to some Amora'im Kesef is Koneh for both a Jew and a Nochri.
</p><p>
Finally, the suggestion mentioned earlier (in answer 1 above) that Rashi wants to give a practical difference which applies to the case written in the Mishnah (44a) will also answer why Rashi does not mention the practical difference of how a Nochri is Koneh.
</p><p>
(b) The Acharonim suggest a number of reasons for why Rashi does not apply the rule of 'Hefker Beis Din Hefker' with regard to a purchase made with Kinyan Kesef.
</p><p>
1. The <b>AVNEI MILU'IM</b> (28:33) writes that according to Rashi, a Kinyan instituted by the Chachamim is not recognized on the d'Oraisa level. Consequently, with regard to Kidushin (which involves the creation of an Isur d'Oraisa), we are concerned only with who owns the object from a d'Oraisa point of view. Even though the Chachamim enacted that the buyer may back out of the purchase through 'Hefker Beis Din Hefker,' they cannot actually remove the object from the owner's possession. This means that through 'Hefker Beis Din Hefker' the Chachamim do not actually transfer the ownership of the object, but rather they instituted that it is to be treated as though another person owns it.
</p><p>
A question on this approach may be asked from the fact that Rashi does not mention as a practical difference a case in which the buyer did Meshichah but did <i>not</i> pay money. According to the Avnei Milu'im, in such a case Rebbi Yochanan and Reish Lakish would disagree; according to Rebbi Yochanan the Kidushin would not be valid. (See <b>TESHUVOS MAHARIL DISKIN</b> #5.) The answer might be that Rebbi Yochanan would agree that the Kidushin takes effect <i>mid'Rabanan</i> in such a case.
</p><p>
2. The <b>MACHANEH EFRAIM</b> (Kinyan Ma'os #11) and <b>REBBI AKIVA EIGER</b> explain that Rashi does not mean that the buyer may be Mekadesh a woman with the merchandise, according to Rebbi Yochanan. Rather, he means that the seller may be Mekadesh a woman with the money that he receives, according to Rebbi Yochanan. This is the way the <b>TUR</b> (CM 198) records this practical difference of Kidushin. Although our text of Rashi says that he 'used it' for Kidushin, implying that the buyer used the <i>merchandise</i>, the <b>RITVA</b> cites Rashi as saying that he 'used <i>them</i>' for Kidushin (i.e. the money), and he explains (like Rebbi Akiva Eiger) that the <i>seller</i> used the <i>money</i> for Kidushin in the case Rashi mentions.
</p><p>
Rashi may understand that the Chachamim indeed removed the merchandise from the possession of the buyer through 'Hefker Beis Din Hefker.' However, they did not remove the <i>money</i> which the seller received through 'Hefker Beis Din Hefker,' and they left it in his possession. Such an opinion is cited by <b>TOSFOS</b> (43a, DH Mai).
</p><p>
The Avnei Milu'im also mentions this possibility. (He does not accept that this is the opinion of Rashi, because the words of Rashi imply otherwise. Others, however, understand the words of Rashi differently and say that this is the opinion of Rashi.)
</p><p>
3. As mentioned above (a:3), Rashi maintains that the Chachamim did not revoke the Kinyan that takes effect with Kinyan Kesef. They instituted only that the buyer has the ability to revoke the Kinyan if he wants, as long as he has not yet done Meshichah. According to this opinion, it is clear that the Chachamim did not apply 'Hefker Beis Din Hefker' to a Kinyan Kesef, and therefore the Kidushin will be valid.
</p><p>
Proof for this approach may be inferred from what the Gemara says about Me'ilah. The Gemara teaches that when a person pays money of Hekdesh to purchase food, according to Rebbi Yochanan he is liable for Me'ilah since the Kinyan takes effect mid'Oraisa, while according to Reish Lakish he is not liable for Me'ilah. If the Chachamim instituted that 'Hefker Beis Din Hefker' removes the money from the possession of the seller, then the buyer should not transgress the Isur of Me'ilah when he gives the money to the seller, since the Chachamim did not let the seller acquire the money. (<b>PNEI YEHOSHUA</b>)
</p><p>
In fact, Tosfos in Avodah Zarah (63a, cited by <b>MAHARAM</b> here) indeed suggests that according to Rebbi Yochanan the buyer will not be liable for Me'ilah for this reason, according to the Gemara's conclusion.
</p><p>
In defense of the Rishonim who maintain that the seller does not retain ownership of the money (see beginning of Tosfos to 43a), one must explain that the Chachamim were Mafkir the money only <i>after</i> the seller took possession of it. They could not have been Mafkir it in a way that would prevent the seller from taking possession of it in the first place. (A similar concept may be found in Tosfos to 12a, DH Im Amart.) Therefore, the buyer transgresses the Isur of Me'ilah according to Rebbi Yochanan because of the brief moment at which the seller does own the money.
</p><p>


<font><b>2) MAKING A 'KINYAN' THROUGH THE FORGIVING OF A LOAN</b></font><b>
<br>QUESTION:</b> Rava cites proof for the opinion of Reish Lakish from the verse of Shevu'as ha'Pikadon. The omission of the words 'Tesumes Yad' implies that even when the borrower designates an object towards the repayment of the loan, if the lender does not do Meshichah on that object the borrower will not be liable to make a Shevu'as ha'Pikadon for denying the loan. This is because one is liable to make a Shevu'as ha'Pikadon only when he denies a specific object. Since Kesef is not Koneh, the object that was designated for the lender does not become the property of the lender until he does Meshichah.
</p><p>
It is clear from the Gemara that according to Rebbi Yochanan, the lender would acquire the object that was designated in place of the money that the borrower no longer needs to pay.
</p><p>
How can the lender acquire an object with Kinyan Kesef in such a manner? As mentioned earlier (see Insights to 46b), the Gemara teaches that a person cannot make a Kinyan Kesef through the pardoning of a loan ('Mechilas Milveh'). Rather, he must actually hand over money. Since the Gemara is discussing a case in which the borrower owes money to the lender, the lender should not be able to acquire with Kinyan Kesef what the borrower designates for him if he forgives the loan. (<b>RAMBAN</b> and Rishonim)
</p><p>
(According to the <b>RAMBAM</b> (cited in Insights to 46b) who writes that a Kinyan Kesef may be made with Mechilas Milveh, the Gemara is easily understood. According to the other Rishonim (cited in Insights there) who maintain that a Kinyan Kesef cannot be made with Mechilas Milveh, the Gemara is difficult to understand.)
</p><p>
<b>ANSWER:</b> The Rishonim answer that the verse implies that no Shevu'as ha'Pikadon is made, even when the borrower designates an object at the time that he receives the loan. At that time, a Kinyan Kesef <i>can</i> be made since the money is handed over to him at the same time that he gives the object to the lender in return for the money.
</p><p>


<font><b>3) 'ME'ILAH' WITH MONEY PAID FOR A SERVICE</b></font><b>
<br>QUESTION:</b> The second proof that Rava cites for the opinion of Reish Lakish is from the Mishnah in Me'ilah (20a). The Mishnah teaches that when a person gives money of Hekdesh to a bathhouse attendant for the use of the bathhouse, he is liable for Me'ilah. This implies that when he gives money to purchase any other object he is not liable for Me'ilah, since Kesef is not Koneh mid'Oraisa. It is only when he gives the money to a bathhouse attendant that the money is Koneh. This Mishnah is proof for Reish Lakish who maintains that the Torah authorizes only Meshichah as a valid Kinyan for Metaltelin, but not the giving of Kesef.
</p><p>
If, mid'Oraisa, Kesef is not Koneh according to Reish Lakish, then why is a person liable for Me'ilah when he gives money to a bathhouse attendant? Kesef should not accomplish a Kinyan in any case.
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Balan) explains that the money is given to the bathhouse attendant in order to rent the use of the bathhouse. Since the bathhouse is attached (Mechubar) to the ground, it is treated like land which <i>can</i> be acquired (or rented) mid'Oraisa with Kesef, even according to Reish Lakish.
</p><p>
<b>RASHI</b> (DH l'Balan), however, writes that the money is paid to the attendant in order to hire the attendant to wash him. Rashi clearly does not accept Tosfos' understanding that the money is being paid for the use of land.
</p><p>
(b) The <b>RITVA</b> explains that according to Rashi the money is a payment for the attendant's services <i>after</i> the bathing was finished. The Halachah is that money paid for hiring a worker must be paid only after the job is completed. At that time, the hired worker certainly is Koneh the money for the services that he rendered.
</p><p>
However, Rashi (DH Davka) writes that the money paid to the attendant is paid <i>before</i> the attendant does any work. The payment prevents him from retracting from the deal. The <b>MACHANEH EFRAIM</b> (Sechirus Po'alim #3) writes that it is evident from Rashi that although the wages of a hired worker must be paid only when the work is finished, nevertheless if the worker is paid before the work is done the money accomplishes a Kinyan and the worker cannot retract. (Although a worker (Po'el) who is hired for a specific amount of time may retract at any time, a <i>Kablan</i> who is hired for a specific task <i>cannot</i> retract.)
</p><p>
It is not clear, according to the explanation of the Machaneh Efraim, how Kesef accomplishes a Kinyan according to Reish Lakish if there is no Kinyan Kesef mid'Oraisa for Metaltelin.
</p><p>
Perhaps the Machaneh Efraim means that a hired worker has the status of an Eved, and Rashi maintains that even an Eved Ivri is comparable to Karka and can be acquired with Kesef. This is the opinion of the <b>RAMBAM</b> (Hilchos Mechirah 13:15). This seems to be the opinion of Rashi in Kidushin (28b; see Insights to Kidushin 28:1).
</p><p>
(c) The <b>MORDECHAI</b> (#301) cites the <b><b><b>RI</b></b></b> of <b>VIENNA</b> (the <b><b><b>OR</b></b> ZARU'A</b>) who infers from the Gemara that even Reish Lakish agrees that Kesef acquires mid'Oraisa in a situation in which Meshichah cannot be done (since there is nothing to pull). When a person hires a worker who has tools, he can do Meshichah on the tools in order to make a Kinyan. When he hires a bathhouse attendant who works without tools, Kesef is Koneh.
</p><p>
This seems to be the intention of Rashi (DH Davka). This is also the opinion of <b>TOSFOS</b> in Bechoros (13b, DH Devar Torah), who writes that for this reason Reish Lakish maintains that Kinyan Kesef is effective for the redemption of Hekdesh. Meshichah cannot be done to take an object away from Hekdesh, because wherever the object is, it is in the domain of Hekdesh. That is why the Torah allows Kinyan Kesef to be used to redeem Hekdesh. (See <b>PRI YITZCHAK</b> 1:47.)
</p><p>
Similarly, the Ri of Vienna infers from here that according to Rebbi Yochanan, Meshichah <i>is</i> a valid form of Kinyan mid'Oraisa when it is not possible to acquire with Kesef, such as in the case of an object of Hefker, or a gift (in which case no money is given). This is also the opinion of <b>TOSFOS</b> in Bechoros (13a, DH mi'Yad). (However, the <b>RAMBAN</b> here argues and writes that even a gift or Hefker cannot be acquired through Meshichah according to Rebbi Yochanan, but must be acquired through Kinyan Chatzer.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>HOW AND WHEN ONE IS CURSED FOR RETRACTING</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'> 43a (Beraisa):</font></b> If b'Shogeg Reuven gave Hekdesh money
               to a barber, he does not transgress Me'ilah until he
               makes Meshichah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Another Beraisa says that he is Mo'el before
               Meshichah! One Beraisa discusses a Nochri barber,
               and the other discusses a Yisrael barber.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 44a (Mishnah):</font></b> If one paid for Levi's Peros but did
               not do Meshichah, Levi can retract. However,
               Chachamim said 'He who punished the generations of
               the flood and the dispersion, He will punish one who
               does not fulfill his word.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Shimon says, whoever is holding the money has the
               upper hand.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 47b (R. Yochanan):</font></b> Mid'Oraisa, money acquires
               Metaltelim. Chachamim enacted that (only) Meshichah
               acquires, lest one sell something in his house, and
               a fire will erupt through Ones, and he will not
               strive to save it. If the item belongs to the seller
               (until Meshichah), he will strive to save it.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'>(Rav Chisda):</font></b> Just like it was enacted that sellers
               can retract until Meshichah was done, also regarding
               buyers.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> According to R. Yochanan, Chachamim hold like Rav
               Chisda, and R. Shimon does not.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 48a (Beraisa - R. Shimon):</font></b> Chachamim said 'He who
               punished the generations of the flood and the
               dispersion, the people of Sodom and Amora and the
               Miztriyim at the sea, He will punish one who does
               not honor his word.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 48b (Abaye):</font></b> Beis Din informs him that Hash-m will
               punish him.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rava):</font></b> Beis Din curses him.
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> Abaye holds that it is forbidden to curse him -
               'v'Nasi v'Amecha Lo Sa'or'! Rava says that that
               applies only to 'Amecha', one who acts like a
               Yisrael.
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> Rava learned from an episode in which people paid R.
               Chiya bar Yosef money to buy salt. Salt rose in
               price. R. Yochanan told him 'honor the sale. If not,
               you will accept on yourself 'He who punished...' If
               Beis Din merely informs him, there would be no need
               to inform R. Chiya bar Yosef!!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Objection:</font></b> R. Chiya would not accept a curse of
               Chachamim! Rather, they gave partial payment. R.
               Chiya thought that he is obligated to sell only as
               much as was paid. R. Yochanan told him that he must
               honor the entire sale.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> 49a:</font></b> A case occurred in which Reuven gave Shimon
               money for sesame, and the price went up. Shimon
               retracted and said 'I don't have sesame. Take your
               money back.' Reuven did not take his money; it was
               stolen.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rava:</font></b> Once he told you to take your money, he
                    is not a Shomer Sachar. He is not even a Shomer
                    Chinam! If Shimon will not give the sesame, he
                    must accept Mi she'Pora!
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Rav Tavos:</font></b> That story was not like reported! Rather,
               Reuven came to me just before Shabbos, and asked to
               buy sesame. I refused. He asked to deposit his money
               with me. I said 'put it in my house where you want.'
               He did, and it was stolen. Rava ruled that I was not
               even a Shomer Chinam!
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> (Rav):</font></b> Partial payment obligates the seller to give
               only the value of what was paid;
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> (R. Yochanan):</font></b> It obligates him to sell the entire
               object.
<br>        <b>  <b><font color='darkgreen'>18. </font></b><font color='darkgreen'> Question (against Rav - Beraisa - R. Shimon ben
               Gamliel):</font></b> R. Yosi and R. Yehudah argue about one who
               gave a security (to guarantee that he will buy a
               certain matter. However, if one was buying land and
               paid half the price, he acquires it all immediately.
               The rest of the money can be given years later.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> The same applies to Metaltelim.
                    Part of the money also 'acquires' all of them
                    (regarding Mi she'Pora) without any Tanai.
<br>        <b>  <b><font color='darkgreen'>19. </font></b><font color='darkgreen'> Answer:</font></b> No. Money truly acquires land, therefore,
               part of the money acquires all of it. Money
               'acquires' Metaltelim only to obligate the seller to
               suffer a curse if he retracts. Part of the money
               does not 'acquire' all the Metaltelim.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> The Halachah follows Rava, that Beis Din gives
               the curse. We learn that one who retracts is not
               considered one who acts like your nation. We cannot
               learn from the retraction from the sale of sesame,
               for it never happened.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif and Rosh (4:13):</font></b> Rav Hai Ga'on says that since
               the seller could use the money for anything, it is
               like a loan. Even if he told the buyer 'take back
               your money' and the buyer did not come, the seller
               is responsible. The buyer need not take back his
               money until the seller accepts Mi she'Pora for
               retracting. A case occurred in which one paid money
               for wine, then feared lest a Nochri take it. Rav
               Chisda ruled that Meshichah was enacted also for
               buyers, so he can retract.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (13):</font></b> Do not say that had the seller not said
               'take your money', he would be a Shomer Sachar, for
               he has the right to use them. This is wrong. He may
               not use them until the sale is finished. Rav Huna
               holds like R. Yochanan, who says that money, not
               Meshichah, acquires mid'Oraisa. He must establish
               the Beraisa (that says that Me'ilah is only after
               Meshichah) to discuss a Nochri. We do not say that
               he is Mo'el once he gives money, for the barbar may
               use it! One could say that a Yisrael is different.
               Since he acquires mid'Oraisa through money, even
               though Chachamim enacted Meshichah, he may use the
               money once he received it. However, for us it does
               not matter. R. Tam said that since most of our
               business is through lending to Nochrim with Ribis,
               we are like moneychangers; surely we may use the
               money.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 7:1):</font></b> If one gave the money
               but did not do Meshichah, even though he did not
               acquire the Metaltelim, if the buyer or seller
               retracts, he acted unlike a Yisrael, and he must
               accept Mi she'Pora. Even if he gave a mere Eravon
               (partial payment), one who retracts accepts Mi
               she'Pora.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah (7:2):</font></b> Beis Din curses him
               and says 'He who punished... He will punish one who
               does not fulfill his word.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rosh (4:10):</font></b> The Mishnah connotes that Beis Din need
               not inform or curse one who retracts; it just
               teaches that he will be punished. Even so, Abaye and 
               Rava hold that Beis Din informs or curses him to
               strengthen the matter, for the masses are unaware of
               the punishment and are wont to retract before a
               Kinyan was made. Beis Din curses <i>him</i> connotes that
               the judge says 'He who punished... He will punish
               <i>you</i> if you will not fulfill your word.' However,
               the Rambam says that he says 'He will punish <i>one</i>
               who does not fulfill his word.'
<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 204:1):</font></b> If one gave the money but
               did not do Meshichah, even though he did not acquire
               the Metaltelim, if the buyer or seller retracts, he
               acted unlike a Yisrael, and he must accept Mi
               she'Pora.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Bein):</font></b> Since
                    the curse is for not fulfilling his word, it
                    applies to the buyer or seller.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> R. Akiva Eiger:</font></b> If the seller said that the
                    buyer cannot retract, this is mere words and he
                    can retract. However, if the buyer said that he
                    will not be able to retract if the price drops,
                    the Pnei Yehoshua leans to say that it takes
                    effect. It is as if he said that if he
                    retracts, he pardons the money. See Rema 198:5
                    (who says that if they stipulate that money
                    will acquire, it acquires).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> This is even if he gave only
               some of the money.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Afilu):</font></b> R. Yochanan said that
                    Eravon acquires totally, for Mi she'Pora for
                    Metaltelim. We follow him against Rav
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (4):</font></b> Beis Din curses him and says 'He
               who punished the generations of the flood and the
               dispersion, the people of Sodom and Amora and the
               Miztriyim at the sea... He will punish one who does
               not fulfill his word.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (5):</font></b> The Bach rules like this, unlike the
                    Rosh.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (8):</font></b> The curse mentions those killed in the
                    flood and the Mitzriyim, for Hash-m punished
                    them through overt miracles and demonstrated
                    His supervision over the world.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that they say... He will punish you
               if you will not fulfill your word. Some say that
               they say this to him in public.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav, citing Talmidei
                    ha'Rashba):</font></b> The words of the Gemara 'we curse
                    <i>him</i>' connote that we curse him personally.
                    However, the Rashba says that we merely curse
                    Stam (one who does not fulfill his word). This
                    is like the Mishnah, which taught Stam.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 175:7):</font></b> If one gave money Stam
               (for Peros) and did not specify to receive at the
               cheap price, and the price dropped, he receives like
               the price at the time of the sale. One who retracts
               must accept Mi she'Pora.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>IS ONE CURSED FOR RETRACTING AFTER ONES OCCURRED? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> This contradicts Reish Lakish (he did not do
          Meshichah)!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> That teaching is like R. Shimon.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHO CURSES?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> However, Chachamim said, He who punished...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Abaye):</font></b> Beis Din informs him (the one who wants to
          retract) that Hash-m will punish him.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> Beis Din curses him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Abaye did not say they curse him, for this is
               forbidden - 'v'Nasi v'Amecha Lo Sa'or'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rava says that that applies only to 'Amecha', one
               who acts like a Yisrael.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Rava learned from an episode in which people paid R.
          Chiya bar Yosef money to buy salt. Salt rose in price.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yochanan:</font></b> Honor the sale. If not, you will accept
               on yourself 'He who punished...'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Beis Din merely informs him, there would be no
               need to inform R. Chiya bar Yosef!!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> If Beis Din curses him, could one imagine that
          R. Chiya bar Yosef would accept a curse of Chachamim?!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The case was, they gave partial payment. R. Chiya
          thought that he is obligated to sell only as much as was
          paid. R. Yochanan told him that he must honor the entire
          sale.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>PARTIAL PAYMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> Partial payment obligates the seller to give only
          the value of what was paid;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> It obligates him to sell the entire
          object.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (against Rav - Beraisa - R. Yosi):</font></b> If Reuven
          gave Shimon a security (to guarantee that he will buy a
          certain matter from Shimon) and said 'if I retract, you
          may keep this', and Shimon said 'if I retract, I will
          give double your security (worth of what he sells)',
          their Tanayim (stipulations) take effect;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like R. Yosi holds elsewhere, that Asmachta
               (an exaggerated promise) takes effect.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, Reuven acquires only as much as the
               value of the security (and if he retracts, he gets
               back his security);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Shimon ben Gamliel:</font></b> They argue about when he said
               'my security should acquire (like a security. It is
               not the beginning of payment)';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  But if Reuven was buying land and paid half the
                    price, he acquires it all immediately. The rest
                    of the money can be given years later.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Suggestion:</font></b> The same applies to Metaltelim.
                    (Money 'acquires' them, i.e. the seller cannot
                    retract without suffering the curse.) Part of
                    the money also 'acquires' all of them (like
                    land) without any Tanai.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> No, money 'acquires' only its own value of
          Metaltelim.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between land and
          Metaltelim?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Money truly acquires land, therefore, part of the
          money acquires all of it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Money 'acquires' Metaltelim only to obligate the
               seller to suffer a curse if he retracts. Part of the
               money does not 'acquire' all the Metaltelim.
<br>

<p>

sjt:
</p><p>
<font><b>4) A SECURITY FOR THE PURCHASE OF A FIELD</b></font><b>
<br>QUESTION:</b> Rebbi Yosi teaches in a Beraisa that when a person gives a security ('Eravon') to a seller for the purchase of a field and says, 'If I retract from the purchase, you can keep the security, and if you retract, you will have to pay me twice its value,' the conditions must be kept (because 'Asmachta Kanya'). Rebbi Yehudah argues and says that the security acquires only the amount of the field that corresponds to the value of the security.
</p><p>
Raban Shimon ben Gamliel says that this dispute applies only when the buyer says, 'Ervoni Yakun' -- 'let my security acquire.' When, however, a person submits a partial payment for the purchase of a field, everyone agrees that he is Koneh the entire field with that payment.
</p><p>
It is clear from the words of Raban Shimon ben Gamliel that the security mentioned in the first part of the Beraisa does not refer to an object given as a down payment for the field, and that is why it acquires only a corresponding value of the field. For what purpose, then, was it given? <b>RASHI</b> (DH bi'Zman) explains that it was given not as a partial payment but as a symbolic act of Kinyan which was intended to consummate the Kinyan on the entire field. Since the Torah does not consider such an act to be a Kinyan, it is not Koneh the field.
</p><p>
If the security was not given in a manner of Kinyan, then why does it acquire even an amount of the field equal to the value of the security? It should not acquire <i>any</i> of the field! (This question is included in the question of <b>TOSFOS</b> DH Echpol.)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> (DH Daiyo) implies that in fact a security is not Koneh anything for the buyer. Rather, the part of the condition that the buyer made which is not an 'Asmachta' must be honored. Therefore, if either the buyer or seller retracts, then the other party may take an amount equivalent to the value of the security from either the field (if the seller retracts) or from the security (if the buyer retracts).
</p><p>
Other Rishonim do not accept this explanation because Rebbi Yehudah says that the security is Koneh, which implies that it consummates the sale (of the amount of land that corresponds to the value of the security). Perhaps Rashi was not bothered by the usage of the word 'Koneh,' since Rashi always translates the word 'Koneh' to mean that neither party may retract from the deal (see beginning of Insight 48:1, above), and in the case of the security neither party may retract (for doing so will not save him from buying or selling at least the amount equal to the value of the security).
</p><p>
(b) The <b>RITVA</b> explains that 'Ervoni Yakun' means that the security does not cause any Kinyan to take effect now, but rather that it should make a Kinyan take effect if one of the parties retracts. Since the buyer does not specify that he wants to make a Kinyan now, the security is not Koneh the field for him.
</p><p>
The Ritva asks why the security should be Koneh even part of the field, and he answers that although the buyer does not specify that he wants any Kinyan to take effect now, we may assume that he wants to be Koneh now at least an amount equal to the value of the security, in order to prevent both himself and the seller from retracting from the sale of that amount. (This is not similar to a down payment, because here it is assumed that the buyer specifically wants to acquire only part of the field and not the entire field.)
</p><p>
(c) <b>TOSFOS</b> (DH Echpol, DH bi'Zman) explains that 'Ervoni Yakun' means that the buyer does want the security to acquire for him part of the field now. The security does not acquire for him the entire field because the words 'Ervoni Yakun' imply that he wants to acquire part of the field that is worth <i>twice</i> the value of the security; he is saying that he wants 'the security to acquire an amount equivalent to the value of the security, plus an amount equivalent to the value of the security.' According to Rebbi Yehudah, since an 'Asmachta' is not Koneh, the security can acquire only an amount equivalent to its value, but not more. (This is not similar to a down payment, because here the buyer specifically wants to acquire only part of the field and not the entire field.)
</p><p>
It is evident from the words of Rashi here (and on 45b, DH Matbe'a) that a Kinyan Kesef may be performed only with funds that are transferred for the sake of covering the cost of the field. A number of Acharonim explain that Tosfos (DH bi'Zman) argues with Rashi because he maintains that the Kesef does not have to be given specifically towards the cost of the field, but it can be given symbolically in order to effect the Kinyan (<b>EVEN HA'AZEL</b>, Hilchos Mechirah 1:4; <b>CHIDUSHEI REBBI SHIMON SHKOP</b>, Kidushin #3). However, according to the above explanation, Tosfos is rejecting Rashi's approach for a different reason (because of the original question: if the security was not given in a manner of Kinyan, then why does it acquire even an amount of the field equal to the value of the security?). Tosfos agrees that the money must be given for the purpose of paying for the cost of the field. Accordingly, this is the source for the ruling of the <b>S'MA</b> (CM 190:1) who writes that the Kinyan Kesef must be done with money paid specifically for the purchase.
</p><p>
The <b>TAZ</b> there argues and cites two proofs that the money does not have to be given with the intent that it cover the cost of the purchased item. His first proof is from the Gemara here that says that when the buyer says 'Ervoni Yakun,' the security acquires an amount of the field equivalent to the value of the security (according to Rebbi Yehudah), even though it was not given specifically as payment for part of the field. However, according to the above explanation, this is not a proof.
</p><p>
The Taz's second proof is from the Kidushin of a woman. Obviously, a man does not pay a Perutah to a woman in order to cover any 'cost' of the woman, and yet the Kinyan of Kidushin is learned from the Kinyan of a field (Kidushin 2a). It must be that just as the Kinyan Kesef of Kidushin involves merely a symbolic act of handing over money, so, too, the Kinyan Kesef of a field involves merely a symbolic act of handing over money.
</p><p>
Perhaps this proof may be refuted as follows. When a person hires a worker, even though the money that he pays to the worker does not correspond to the value of the worker himself, it <i>does</i> correspond to the value of the service that the worker performs. Similarly, the Kesef paid to the woman is paid for the Shibudim that the woman accepts upon herself to do for her husband in her role as his wife.
</p><p>
One might ask, however, that the husband gives only a Perutah, and what the woman does for her husband is certainly worth much more. The answer is that Rashi here writes that the money needs to be given only as 'Techilas Pira'on,' the first installment of the payment. In the case of Kidushin, the Perutah is the first installment, and the rest is paid through the obligations that the husband accepts to do for his wife in his role as husband. (M. Kornfeld)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HOW MUCH DOES A SECURITY ACQUIRE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Tana'im argue like Rav and R. Yochanan argue.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Shimon ben Gamliel):</font></b> If Reuven lent
               Shimon and he took a security at the time of the
               loan, and Shemitah came, even if the security is
               worth only half the loan, the loan is not cancelled;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rebbi says, the loan is not cancelled only if the
               security is worth the entire loan.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> R. Shimon said 'it is not cancelled.' What
               does this mean?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> The value of the security is not
                    cancelled.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection:</font></b> If so, Rebbi holds that even this is
                    cancelled. If so, why did he take a security?!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, R. Shimon says that the entire loan
               is not cancelled, and Rebbi says that the value of
               the loan above the security is cancelled.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Shimon holds that a security acquires fully,
                    and Rebbi holds that it only acquires according
                    to its value.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection:</font></b> Really, R. Shimon means that the value of the
          security is not cancelled.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If so, Rebbi holds that even this is cancelled.
          Why did he take a security?!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> It is a commemoration of the loan.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>KEEPING ONE'S WORD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Rav Kahana received partial payment for flax; the price
          went up.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rav:</font></b> You must give flax according to the money you
          received. The agreement to sell the rest is mere words.
          One who retracts is not considered unfaithful.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav):</font></b> One who retracts from an oral agreement is not
          considered unfaithful;
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> He is considered unfaithful.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Question (Beraisa - R. Yosi b'Rebbi Yehudah) Question:
          Why did the Torah need to write 'Hin Tzedek'? (Hin and
          Eifah are measures of volume. One's measures must be
          accurate, lest he use them to swindle when buying or
          selling.) It already says 'Eifah Tzedek'!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer (R. Yosi):</font></b> This teaches that your 'Hen' and
               'Lav' (when you say yes or no) must be just.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> R. Yosi forbids saying something that he
          does not intend to fulfill. (However, one who intended to
          fulfill his word need not do so if circumstances (e.g.
          prices) change.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Beraisa - R. Shimon):</font></b> Chachamim said that a
          garment acquires a Dinar and a Dinar does not acquire a
          garment, and they do not force the seller to give it.
          However, they said 'He who punished the generations of
          the flood and the dispersion, the people of Sodom and
          Amora and the Miztriyim at the sea, He will punish one
          who does not honor his word.'
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Tana'im argue about whether or not one must keep
          his word.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> A case occurred in which R. Yochanan ben
               Masya told his son to hire workers. His son promised
               to feed them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Yochanan:</font></b> They descend from Avraham, Yitzchak and
               Yakov. Even if you give them a banquet like Shlomo
               used to make, this does not suffice! Before they
               start working, tell them that you promise them only
               bread and beans.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If one who retracts is considered unfaithful, how
               could he tell his son to retract?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> That case is different. The workers themselves
          did not rely on the promise.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> They knew that the son did not promise to
               feed them himself, rather he relied on his father.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If so, why did he need to retract before
               they started?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> The workers would assume that the father
               heard his son's promise and agreed to fulfill it.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Did R. Yochanan really say that one who
          retracts from an oral agreement is considered unfaithful?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Rabah bar bar Chanah citing R.
               Yochanan):</font></b> If Reuven promised to give a gift to
               Shimon, he can retract.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection:</font></b> This is obvious!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Correction:</font></b> Rather, he is fully permitted to
               retract.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> R. Yochanan (permits retracting only
          from a large gift, for Shimon is not confident of
          receiving it. He) forbids retracting from a promise for a
          small gift.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Support:</font></b> R. Avahu cited R. Yochanan to say that if a
          Yisrael (Reuven) told a Levi (Moshe) 'I have a Kor of
          Ma'aser for you', Moshe may make it Terumas Ma'aser on
          other Ma'aser. (This is like a small gift, for Reuven
          owns only the right to give the Ma'aser to the Levi of
          his choice.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is reasonable if Reuven may not retract. But if
               he may retract, perhaps he retracted, and the
               Terumas Ma'aser is invalid, and Moshe will eat
               Ma'aser that is Tevel!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Rejection:</font></b> The case is, Moshe took the Ma'aser, and
          deposited it back with Reuven.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Objection:</font></b> R. Avahu's teaching continues 'if Reuven gave
          it to a different Levi, Moshe only has complaints against
          Reuven.' If Moshe took it, it is his!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Conclusion:</font></b> This is a proper support. Reuven may not
          retract.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHO CAN RETRACT FROM A SALE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	A case occurred in which Reuven gave Shimon money for
          sesame, and the price went up. Shimon retracted and said
          'I don't have sesame. Take your money back.' Reuven did
          not take his money; it was stolen.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rava:</font></b> Once he told you to take your money (and you
               left it with him), he is not a Shomer Sachar, so he
               is exempt. Further, he is not even a Shomer Chinam
               (he would be exempt even for negligence)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rabanan:</font></b> Shimon must accept the curse 'He who
               punished...'!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rava:</font></b> Indeed, if he will not give the sesame, he
               must accept it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rav Papi citing Rav Tavos:</font></b> I was the seller in that
          story, but it was not like reported. I would not retract
          my word for all the money in the world!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, Reuven came to me just before Shabbos, and
               asking to buy sesame. I refused. He asked to deposit
               his money with me, for Shabbos was coming. I said
               'you can put it anywhere in my house that you want.'
               He put it in the house, and it was stolen.
<br>
<br>

sjt:
<font><b>1) RETRACTING ONE'S WORD IN BUSINESS</b></font><b>
<br>OPINIONS:</b> Rav and Rebbi Yochanan disagree about one who retracts his word in a business transaction. Rav says that such a person is not considered untrustworthy. Rebbi Yochanan says that such a person is considered untrustworthy. In exactly what case do they disagree?
</p><p>
(a) <b>RASHI</b> (DH Shelo) explains that Rav maintains that when one commits to sell merchandise at a certain price, and the price of the merchandise rises, he is not obligated to supply the merchandise at the originally-stated price. Since he cannot purchase the merchandise for the low price, Rav says that he is not bound by his earlier price quote. This implies that Rebbi Yochanan maintains that even in this case a seller who retracts on a price quote is called untrustworthy. This is also the opinion of the <b>RASHBA</b>, <b>RAMBAN</b>, and other Rishonim.
</p><p>
(b) The <b>BA'AL HA'ME'OR</b> explains that the case of the Gemara is where the person who agreed on a price retracts his offer regardless of whether or not the price of the merchandise went up or down. Rav says that retracting a price does not make someone untrustworthy, while Rebbi Yochanan says that it does. The Ba'al ha'Me'or understands that even Rebbi Yochanan agrees that one who retracts because the price of the merchandise changed is <i>not</i> called untrustworthy.
</p><p>
These opinions similarly argue about the explanation of the previous Gemara. The Gemara relates that Rav Kahana agreed to sell flax to a buyer, who put down some money towards the purchase of the flax. Afterwards, the price of flax rose. When Rav Kahana went to Rav to ask whether or not he must honor the purchase agreement at the original price, Rav answered that only the merchandise corresponding to the money which was already paid needs to be given at the original price. The rest is only a verbal agreement which the seller may retract due to the rise in price. The Ba'al ha'Me'or learns that Rebbi Yochanan agrees with Rav in this case. Although the Gemara records the dispute between Rav and Rebbi Yochanan about retracting verbal agreements immediately after the case of Rav Kahana, they disagree only in a case similar, but not identical, to the case Rav Kahana. Some texts introduce the dispute between Rav and Rebbi Yochanan with the word 'Itmar' ('it was said'), which serves to separate the dispute between Rav and Rebbi Yochanan from the case of Rav Kahana, and it indicates that the two Gemaras are not discussing similar cases. This is in contrast to the text of 'd'Itmar' -- 'as it was said,' which indicates that the dispute is a continuation of the Gemara's discussion of the case of Rav Kahana, and which implies that Rebbi Yochanan argues with Rav's ruling in the case of Rav Kahana. The word 'd'Itmar' is the Girsa of our text, and it is consistent with the Rishonim who learn like Rashi and explain that Rav's ruling in the case of Rav Kahana is in opposition to the opinion of Rebbi Yochanan, who maintains that even if the price of the merchandise changes, a person is still called untrustworthy for retracting his word. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN MAY ONE DEMAND OR REFUSE RETURN OF A LOAN?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A case occurred in which Reuven gave Shimon money
               for sesame, and the price went up. Shimon retracted
               and said 'I don't have sesame. Take your money
               back.' Reuven did not take his money; it was stolen.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rava:</font></b> Once he told you to take your money, he
                    is not even a Shomer Chinam.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Tavos:</font></b> This is what really happened. Reuven
               asked to buy my sesame; I refused. He asked to
               deposit his money with me before Shabbos. I said
               'put it anywhere in my house.' Rava ruled that I was
               not a Shomer at all!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Bava Kama 118a (Mishnah):</font></b> If Reuven received a
               deposit or borrowed from Shimon in a Yishuv (settled
               area), he may not return to him in the Midbar
               (wilderness).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Contradiction (Beraisa):</font></b> A loan may be paid
               anywhere. An Aveidah or deposit may be returned only
               to its place.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (Abaye):</font></b> The Beraisa means that one may
               demand payment of a loan anywhere. One may demand an
               Aveidah or deposit only in its place.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (29b):</font></b> We cannot learn from the retraction from
               the sale of sesame, for it never happened.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif and Rosh (4:13):</font></b> Rav Hai Ga'on says that since
               the seller could use the money for anything, it is
               like a loan. Even if he told the buyer 'take back
               your money' and the buyer did not come, the seller
               is responsible. The buyer need not take back his
               money until the seller accepts the curse 'Mi
               she'Pora' for retracting.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rif (Bava Kama 44a):</font></b> We learn from the Mishnah and
               Beraisa that one who lent in a Yishuv may demand
               payment in the Midbar, against the borrower's will.
               However, the borrower cannot pay up in the Midbar
               against the lender's will. The money is in the
               borrower's Achrayus (he suffers any loss to it)
               until they return to the Yishuv. This refers only to
               a loan.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 13:8):</font></b> One may demand payment
               of a loan anywhere. If one lent in a Yishuv and
               demanded payment in the Midbar, the borrower cannot
               resist. He must pay him whenever he claims. If the
               borrower wants to pay in the Midbar, the lender may
               opt to receive, or to say 'I will be paid only in a
               Yishuv, just like I lent to you in a Yishuv.' The
               money is in the borrower's Reshus until he pays in a
               Yishuv.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (Gitin 7:7):</font></b> Obviously, a borrower can repay
               Bal Korcho of the lender. Only in the Midbar he
               cannot force him to accept payment.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Tosfos (Gitin 75a DH Michlal):</font></b> We learn this also
               from Bava Metzi'a 49a. Hillel needed to enact that
               payment Bal Korcho works for Bayis Ir Chomah, for
               there the buyer loses through it.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 74:1):</font></b> (One may demand payment of
               a loan anywhere,) even if David lent to Levi in a
               Yishuv, he can demand payment in the Midbar and
               force Levi to pay there, if Levi has enough to pay
               and return to the Yishuv. If David claims 'surely,
               he has enough for both', and Levi says 'I have
               enough only to return to the Yishuv', he swears
               Heses.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source (Tur, citing the Ramban):</font></b> Surely, if
                    David lent to Levi in a Yishuv and found him in
                    the Midbar, he cannot force him to pay there.
                    Who will finance Levi there?! If Levi says that
                    he has only enough money to return to the
                    Yishuv, he need not pay. Even in a Yishuv, we
                    are Mesader (leave a borrower with essentials)
                    and allow him food appropriate for him. Rather,
                    David said 'pay me here, for I know that you
                    have enough to pay me and for your food', and
                    Levi said 'I have enough only to return to the
                    Yishuv.' He swears Heses that he does not have
                    enough to pay the debt.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Drishah (1):</font></b> The Ramban (cited in Sefer
                    ha'Terumos 30:1:2) connotes that the difference
                    in the Beraisa between a loan and deposit is
                    that David cannot make Levi swear about a
                    deposit, for presumably he did not bring it.
                    This cannot be, for Shevu'as Heses was not
                    enacted until the Amora'im! (This is difficult
                    for the Tur; Sefer ha'Terumos did not say
                    Shevu'as <i>Heses</i>.) Further, surely he cannot
                    make him swear about a deposit if he is unsure
                    if he has it! Rather, David says 'in my
                    estimation, surely you have enough (or, my
                    deposit).' This does not suffice for a deposit,
                    for it is unlikely that Levi took it. The Tur
                    does not literally mean Heses, rather, an oath
                    less severe than other oaths of the Mishnah.
                    The Ran (Shevuos 31a) says that a Shevu'ah like
                    Heses applied in certain situations at the time
                    of the Mishnah.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (4):</font></b> We learned that he cannot demand
                    payment in the Midbar. This implies that he can
                    demand payment in a Yishuv, even if it was not
                    the place of the loan.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (1):</font></b> Shiltei ha'Giborim (Makos 1b:2) was
                    unsure if Levi must bring the money if David
                    claims it in a place that was not the place of
                    the loan, and Levi has no money there. I say
                    that surely, he need not.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Shach (3):</font></b> Shiltei ha'Giborim was unsure if
                    money owed for wages or a sale is like a loan,
                    or like a deposit. Surely, it is like a loan. A
                    deposit is different because the Shomer was
                    supposed to leave it in its place!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If Levi wants to pay in the
               Midbar, David may refuse to accept until reaching
               the Yishuv, just like he lent in a Yishuv. However,
               Levi can force him to accept in any Yishuv, even if
               it is not the residence of David or Levi, or the
               place of the loan, and even if David must pass
               several Midbaros until reaching his place.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (1):</font></b> Even though Levi cannot force David to
                    accept the money here, David has the upper hand
                    because he gave benefit to Levi.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (5):</font></b> Shiltei ha'Giborim says that if Levi
                    found David in a Yishuv outside of David's
                    residence, and wants to pay with the local
                    currency which is not accepted in David's home,
                    if there was no stipulation, David must accept
                    it.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (293:1):</font></b> Gidulei Terumah asks what is the
                    Chidush of the Mishnah. I say that the Chidush
                    is that even though the borrower cannot force
                    the lender to accept payment, the lender can
                    demand payment
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> A caravan is considered like
               a Yishuv.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source:</font></b> Tosefta 10:14, cited in Beis Yosef (3).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (4):</font></b> There is no danger of theft in a
                    caravan.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 120:1):</font></b> If Levi said 'take your
               money', and the lender refused, and he threw it to
               him in a proper place to pay, he is exempt, for one
               can pay a loan Bal Korcho. Similarly, if he said
               'your money is in my house. Take it', and the lender
               refused, he is exempt if it was lost without
               negligence.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Kosav):</font></b> The Mordechai (Gitin
                    394) and R. Yerucham say that one can pay a
                    debt Bal Korcho of the lender.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Darchei Moshe (2):</font></b> The Mordechai (Gitin
                    427,428) says that Riva and Avi ha'Ezri
                    disagree. Even the lenient opinion exempts only
                    when he has the money here, and the lender
                    refuses to accept it. However, the Ramban
                    exempts even if he said 'I will bring your
                    money' and the lender left.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (74 DH Motzasi):</font></b> Maharam says that
                    if the money was wrapped in the borrower's
                    house, he is liable, for if a good deal arose,
                    he would use the money. However, one is exempt
                    for a deposit once he says 'take your item.' I
                    obligate also for a deposit of coins, for he
                    can use them.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Question (Darchei Moshe 2):</font></b> Once he ceased to
                    guard them, why should he be liable against his
                    will?
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer (Hagahos Drishah 2):</font></b> If a grocer
                    accepted a deposit of coins (and they were not
                    wrapped in a special way), even if he did not
                    use the he is a Shomer Sachar because he could
                    use them (Bava Metzi'a 43a).
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Gra (6, b'Sof):</font></b> One is exempt for a deposit
                    once he says that he is ready to return it. One
                    is not exempt for a loan until he returns it.
                    However, payment Bal Korcho is valid.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Gra (5):</font></b> We follow Version #2 of Rava (Gitin
                    75a, who says that payment Bal Korcho is
                    valid). Rav Papa was uncertain, so we rely on
                    Rava, who was sure. The Rambam and Shulchan
                    Aruch are stringent about a Get, but not about
                    money. Tosfos proved that regarding a loan, all
                    agree that payment Bal Korcho is payment.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Rivash (197, cited in R. Akiva Eiger):</font></b> If Ploni
                    came to pay for Levi, and he was not his
                    Shali'ach, David need not accept from him.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema:</font></b> Some disagree (Mordechai Gitin 394).
<br>

<font color='blue'><i>See also:</i>
<br><b><b>WHEN AND WHERE MAY ONE RETURN A DEPOSIT? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rava ruled that not only I was not a Shomer Sachar,
               rather, I was not even a Shomer Chinam!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Rabanan said that 'he must accept the curse!'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Tavos):</font></b> They said no such thing.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah - R. Shimon):</font></b> Whoever is holding the money has
          the upper hand.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa - R. Shimon):</font></b> This is when the seller has the
          money and the Peros. If the seller has the money and the
          buyer has the Peros, he (the seller) cannot retract
          because his money is in his (the buyer's) hand.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What does this mean? The money is in the
          seller's hand!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> It means 'he cannot retract because what is in
          exchange for his money (i.e. the Peros) is in the buyer's
          hand.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection:</font></b> Obviously, he cannot retract! (Meshichah was
          done!)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The case is, the seller was renting the
          buyer's attic (where the Peros were. Rashi - therefore,
          the buyer did not acquire through his premises.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim enacted that Meshichah acquires (and not
               money), lest someone sell something in his attic, a
               fire will erupt, and he will not strive to save it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Here, the Peros are in the buyer's attic. If there
               is a fire, the buyer will strive to save them (so
               there is no need for the enactment)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	A case occurred in which Reuven paid money for wine. He
          heard that a powerful official of the king was marrying
          off a child. (Surely, he would confiscate people's wine
          for this.) Reuven retracted.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rav Chisda:</font></b> Just like Meshichah was enacted for sellers
          (that they can retract until Meshichah is done), also for
          buyers.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>ONA'AH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> (The threshold of) Ona'ah (the amount one must
          overpay to be able to force the seller to return the
          overcharge) is four Ma'os (one Ma'ah is a sixth of a
          Dinar) out of 24 Ma'os (a Sela), a sixth of the purchase;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	(The buyer) can demand (return of the overcharge) until
          the time needed to show what he bought to a merchant or
          relative (who would tell him that he overpaid. If he
          delayed longer than this, he pardoned the Ona'ah.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Tarfon ruled in Lud that (the threshold of) Ona'ah is
          eight Ma'os, i.e. a third of the purchase. The merchants
          rejoiced.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He told them that one may claim the Ona'ah the
               entire day. They reverted to conduct like Chachamim
               (regarding both the threshold of Ona'ah and the time
               to claim it).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara - Rav):</font></b> The Mishnah refers to a sixth of the
          value of the item sold;
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> It also refers to a sixth of the money paid.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	If the value was six, and it was sold for five or seven,
          all agree that (the law of) Ona'ah applies (the
          overcharge or undercharge must be returned). They argue
          when he paid six and it was worth five or seven.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shmuel holds that since the overcharge or
               undercharge is a sixth of the price, Ona'ah applies;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav holds that we always calculate based on the
               value of the item. If he paid six and it was worth
               five, (the overcharge is more than a sixth), so the
               sale is void. If he paid six and it was worth seven
               (he underpaid less than a sixth), so the undercharge
               is pardoned.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Shmuel says, the sale is void or the Ona'ah is
               pardoned only when it is not a sixth from either
               perspective.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (against Rav - Mishnah):</font></b> Ona'ah is four Ma'os
          out of 24, a sixth of the purchase;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He paid 24 for something worth 20.
               Ona'ah also applies to an overcharge that is a sixth
               of the price!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1:</font></b> No, he paid 20 for something worth 24.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection:</font></b> If so, the seller was underpaid. The Mishnah
          continues 'he told them that the Ona'ah can be claimed
          the entire day';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> This only refers to the buyer, but
               the seller can always claim the Ona'ah.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, he paid 28 and it was worth 24.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Support (for Shmuel - Beraisa):</font></b> Whoever was deceived has
          the upper hand:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the seller charged six for something worth five,
               the buyer has the upper hand. He can demand all his
               money back (voiding the sale), or the overcharge
               (and the sale stands).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he charged five for something worth six, the
               seller has the upper hand. He can demand the item
               back, or the undercharge.
<br>

<p>

sjt:
</p><p>
<font><b>2) 'UNTIL HE SHOWS IT TO A MERCHANT OR TO HIS RELATIVE'</b></font><b>
<br>OPINIONS:</b> The Mishnah teaches that a person has a certain amount of time to claim his money back when he was overcharged in a case of Ona'ah. That amount of time is the time it takes him to show the item to a merchant or relative, who will tell him the item's true value.
</p><p>
<b>TOSFOS</b> (DH Bichdei) asks what exactly constitutes this amount of time. Is it an objective, set amount of time, or does it depend on how far away the closest merchant or relative is located?
</p><p>
(a) <b>TOSFOS</b> explains that it is a standard length of time based on how long it <i>normally</i> takes for a person to show his merchandise to a merchant or relative. Even if a certain buyer does not have the ability to reach a merchant or relative in this average length of time, he may not withdraw from the sale once this time passes.
</p><p>
The <b>ZERA YITZCHAK</b> asks that Tosfos' question does not seem to begin. The Torah prohibits Ona'ah, cheating the other party in a sale. The Rabanan reasoned that when the cheated party does not claim that he was cheated after he has had time to have the item appraised, he must have forfeited any claim of Ona'ah. Why do the Rabanan need to have one uniform amount of time in which one must make a claim? Since one's right to claim Ona'ah depends on forfeiture, each case should be judged individually, based on whether or not the person had time to assess the item.
</p><p>
The Zera Yitzchak explains that Tosfos understands that the Mishnah here refers to a fixed amount of time because of the next part of the Mishnah. The Mishnah relates that the merchants of Lud did not want the amount of time in which a buyer could cancel the sale to be one day. If the amount of time depends on the person's ability to show his merchandise to a merchant or relative, it sometimes might take more than one day. Why, then, were the merchants of Lud unwilling to accept that the amount of time should be one day? It must be that there was a fixed amount of time in which a buyer was entitled to appraise the value of his purchase.
</p><p>
(b) The <b>TUR</b> (CM 227) quotes his father, the <b>ROSH</b>, who says that if one was lazy and did not bother to find out whether he was the victim of Ona'ah, he forfeits his right to withdraw from the sale. The Tur adds that this implies that if he was not lazy but was unable (beyond his control) to assess the value of his purchase, he retains the right to withdraw from the sale. This is the ruling of the <b>SHULCHAN ARUCH</b> (CM 227:7; see also 227:15).
</p><p>
Even according to Tosfos, it seems that in a place where the closest merchants who can assess the item are a very long distance away, the buyer has a longer period of time in which to claim Ona'ah. Such a case was presented to the <b>LECHEM RAV</b> (#226). The sale involved an expensive piece of jewelry, the price of which was set based on what jewelers charge in the large cities. Since there were no jewelers in the city in which the transaction took place, the Lechem Rav ruled that the buyer may wait longer than the amount of time it takes to go to a jeweler in the other city and back, as not everyone is able to run right away to another city and have his item appraised. The <b>MAHARSHAM</b> (3:307) agrees with the Lechem Rav in this case, but he adds that if the appraisal was available in the city, the regular amount of time would apply (according to Tosfos). (Y. Montrose)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN IS ONA'AH PARDONED?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> According to Chachamim, if the Ona'ah was less
          than a sixth, is it pardoned immediately, or in the time
          to show it to a merchant or relative?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If it is in the time to show it (to a
               merchant or relative), what is the difference
               between a sixth and less than a sixth?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> If it is a sixth, he has the upper hand. He
               can void the sale or demand the Ona'ah. If it is
               less than a sixth, he can only demand the Ona'ah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Mishnah):</font></b> They reverted to conduct like
          Chachamim. (We are thinking that any amount less than a
          third according to R. Tarfon is like less than a sixth
          according to Chachamim.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Granted, if Chachamim allow one to claim less than a
               sixth in the time to show it, and R. Tarfon allows
               the whole day, this is why they reverted to conduct
               like Chachamim;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But if Chachamim say that less than a sixth is
               immediately pardoned, and R. Tarfon says that less
               than a third is immediately pardoned, why did they
               revert? They would profit more according to R.
               Tarfon (when the Ona'ah was between a sixth and a
               third)!
<br>
<br>

sjt:
<font><b>1) PROOF FROM THE MISHNAH AND BERAISA ABOUT 'ONA'AH' OF LESS THAN A 'SHESUS'</b></font><b>
<br>QUESTIONS:</b> The Rabanan in the Mishnah (49b) state that a person is entitled to a refund of his money if he was overcharged a sixth ('Shesus') more than the value of the merchandise, provided that he claims the Ona'ah within the amount of time it takes to have a merchant or relative assess the merchandise that he bought. The Gemara here asks what the law is in the case of Ona'ah of <i>less</i> than a sixth. Do the Rabanan allow the buyer to claim a refund, within the given amount of time, also when the overcharge is less than a sixth, or do they maintain that when someone is overcharged less than a sixth he automatically forfeits the extra money he paid?
</p><p>
There seem to be two sources from which the Gemara easily could answer this question, but the Gemara makes no mention of them at all:
</p><p>
(a) The Mishnah (49b) states that a person is allowed to make a claim of Ona'ah when he was charged one-sixth more than the value of the item, as long as he makes the claim within the amount of time it takes to have a merchant or relative assess the value of the item. If this entitlement applies even when a person is overcharged less than a sixth, why does the Mishnah not say so?
</p><p>
(b) The Beraisa later (50b) states that when a buyer is overcharged less than a sixth, the sale is valid. This implies that the sale is valid and binding immediately and the buyer has no recourse. Why does the Gemara not answer its question from this statement in the Beraisa?
</p><p>
Moreover, the Beraisa continues and says that if the buyer is overcharged more than a sixth, the sale is invalid. If he is overcharged exactly a sixth, the sale is valid and the Ona'ah must be returned. The Beraisa concludes, 'Both this and this [may claim Ona'ah] within the amount of time it takes to show the merchandise to a merchant or relative.' 'Both this and this' refers to Ona'ah of a sixth and Ona'ah of more than a sixth. This implies that when the buyer is overcharged less than a sixth he has no recourse; he immediately forfeits the extra money that he paid. Why does the Gemara not answer its question from the Beraisa?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>SHITAH MEKUBETZES</b> answers that since there is no other source in the Mishnayos for what happens when a person is overcharged by less than a sixth, one may assume that the Mishnah here intends to include this Halachah in its words. Accordingly, it is unclear from the Mishnah alone whether Ona'ah of less than a sixth has the same law as Ona'ah of a sixth.
</p><p>
(b) The <b>RASHASH</b> offers two answers for why the Gemara does not answer its question from the Beraisa.
</p><p>
1. The Gemara later (51a) quotes Rabah who explains that Rebbi Nasan's opinion in the Beraisa is that in a case of Ona'ah of a sixth, the buyer has the option to receive the extra money back, or to cancel the sale in its entirety. Accordingly, there is no clear proof from the Beraisa that one may not get his money back in the case of Ona'ah of less than a sixth.
</p><p>
2. Alternatively, the Rashash suggests that the Gemara indeed answers its question from the Beraisa. When the Gemara quotes Rava's statement and then supports it with this Beraisa, it is proving from the Beraisa that one cannot claim money he was overcharged when the amount was less than a sixth. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHO MAY RETRACT WHEN THERE WAS ONA'AH?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim hold that if one overpaid a sixth, only
               the buyer can void the sale. If the Ona'ah more than
               a sixth, either one can void it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>(Rava):</font></b> The Halachah is, if the Ona'ah (undercharge
               or overcharge) is more than a sixth, the sale is
               void. If it is exactly a sixth, the Ona'ah is
               returned.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Support (Beraisa - R. Noson):</font></b> If the Ona'ah is more
               than a sixth, the sale is void. If it is exactly a
               sixth, the Ona'ah is returned;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Rebbi says, the seller (or buyer, whoever was
               deceived) has the upper hand. He can void the sale,
               or demand payment of the Ona'ah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 51a (Mishnah):</font></b> The victim has the upper hand. (E.g.
               if it was the buyer,) he can demand back his money,
               or to be paid back the Ona'ah.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Bava Basra 83b (Rav Chisda):</font></b> If Levi sold to David
               an item worth five (e.g. Zuz) for six, and its value
               rose to eight, David can retract, but Levi cannot,
               since David was overcharged. David can say 'had you
               not overcharged me, you could not retract. Now that
               you overcharged me, can you retract?!' If Levi sold
               an item worth six for five, and its value decreased
               to three, Levi can retract, not David, since Levi
               was underpaid. He can say 'had you not underpaid me,
               you could not retract. Now that you underpaid me,
               can you retract?!'
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Support (Mishnah):</font></b> If Reuven sold bad wheat, and it
               was found to be good, Reuven can retract.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> We already learn Rav Chisda's law from the
               Mishnah!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that either can
               retract in Rav Chisda's case (the price changed).
               The Mishnah teaches that the buyer can retract. One
               might have thought that 'Ra Ra Yomar ha'Koneh' (the
               buyer did not err; he always claims that the
               merchandise is poor).
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Bava Basra 42a):</font></b> A Ga'on says that Rav Chisda
               discusses accepting Mi she'Pora. I disagree. Rav
               Chisda is like the opinion that the victim of Ona'ah
               has the upper hand. We hold like Rava, who says that
               the sale is valid, and the Ona'ah is returned.
               However, we hold like Rav Chisda regarding Bitul
               Mekach. If one sold an item worth four for five, and
               before there was time to show it to a merchant or
               relative, the price rose to seven, only the buyer
               can retract. He can say 'had you not overcharged
               me... Now that you overcharged me, can you
               retract?!' Similarly, if one sold an item worth five
               for four, and the price dropped to three, only the
               seller can retract. He can say '... should you be
               able to retract because you underpaid me?!' The
               Gemara rejected the proof from the Mishnah for Rav
               Chisda, we do not reject his teaching, for his
               reasoning is sound.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Bava Basra 5:14):</font></b> Rav Chisda holds like the
               Stam Mishnah in Bava Metzia 51a. The Halachah does
               not follow him. We hold like Rava, who rules like R.
               Noson, that if the Ona'ah is exactly a sixth, the
               sale is valid and the Ona'ah is returned. However,
               we hold like Rav Chisda's primary Chidush: a seller
               cannot retract when the item later rose in value.
               Without Rav Chisda's teaching, one might have
               thought that even the seller can retract. All agree
               that one who overcharged cannot retract. One might
               have thought that here is different, for the price
               rose to the Shi'ur of Bitul Mekach regarding the
               seller before the sale was solidified, i.e. the time
               to show the item to a merchant or relative. Rav
               Chisda refutes this, for the buyer can say 'had you
               not overcharged me...' This does not apply to us,
               for we hold that if Ona'ah was a sixth, the sale
               stands. However, the Rif says that it applies to
               Bitul Mekach, e.g. one sold an item worth four for
               five, and before there was time to show it, the
               price rose to seven. When there is Bitul Mekach,
               either party can retract (Bava Metzia 50b). This is
               when the price was very far from the value, more
               than people err about. It is not called a sale at
               all. The Rivam says that when the Ona'ah is more
               than a sixth, the swindler can retract only if the
               victim claimed the Ona'ah. If he does not, he can
               say 'had you not swindled me...' If we would not say
               so, the swindler would have more rights when the
               Ona'ah was less than a sixth than when it is a
               sixth. Even though also now, when the Ona'ah is a
               sixth he returns it and cannot void the sale, this
               is reasonable, for this is not like a Bitul Mekach.
               When it is more than a sixth, he cannot retract if
               the victim pardons the Ona'ah, for Meshichah was
               done. R. Yonah challenged this, for the Gemara said
               Stam that when the Ona'ah is more than a sixth,
               either can retract. This cannot be when the victim
               claimed Ona'ah, for one cannot claim Ona'ah above a
               sixth, only Bitul Mekach! Also, claiming Ona'ah
               shows that he wants the sale to stand. It is
               unreasonable that the swindler can void the sale
               then. R. Yonah says that both can retract as long as
               the victim can retract. The sale is destined to be
               void, for the victim cannot claim the Ona'ah, and
               people do not pardon more than a sixth. If the
               victim wants the sale to stand, it stands. If the
               buyer overpaid and he waited longer than the time to
               show it, the seller cannot retract. We say that a
               seller can retract at any time when he was the
               victim. Perhaps the Rif agrees; we need not say that
               he allows the swindler to retract only when the
               victim claims the Ona'ah. If the price rose, some
               say that the buyer can claim the Ona'ah and validate
               the sale, for before the price rose, the seller
               needed to return the Ona'ah. R. Yonah says that he
               cannot, for Ona'ah is only at the time the sale is
               confirmed. Until now it was not, for he could have
               retracted, and now there is no Ona'ah. We do not say
               that once the price rose, surely he will not retract
               and the sale stands. This is why Rav Chisda said
               'had you not overcharged me...'; he did not just say
               that retroactively the sale stands from the
               beginning and the price rose in the buyer's Reshus.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ramban (83b DH Omar):</font></b> A Ga'on proved from the
                    Yerushalmi that Rav Chisda discusses Mi
                    she'Pora. This is wrong. Our Mishnah discusses
                    after Meshichah, and teaches that only the
                    victim can void the sale. In Rav Chisda's case,
                    the Mishnah would say that neither can retract,
                    just like they could not retract after
                    Meshichah. Rav Chisda holds that only the
                    victim can retract. What is his source? Perhaps
                    both may retract, for one need not fulfill his
                    word for a sale with Ona'ah! Also, the Gemara
                    should have said that this is Rav Chisda's
                    Chidush, and not 'Ra Ra Yomar...'? Also, If Rav
                    Chisda discussed when only money was given, he
                    would have specifed. The Rashbam and R.
                    Chananel explain that he teaches that even if
                    the price changed later, only the victim can
                    retract. This is difficult. Surely this Chidush
                    is not in the Mishnah. Also, change of price
                    after Meshichah is meaningless! Really, Rav
                    Chisda teaches that only the victim can
                    retract. It does not depend on change of price,
                    just normally, the swindler would not want to
                    retract otherwise. If the Ona'ah is more than a
                    sixth, the swindler can retract if the victim
                    claims the Ona'ah. If the Ona'ah is a sixth,
                    the swindler not retract in any case. There is
                    no difference between retracting after
                    Meshichah, after retracting without Mi she'Pora
                    after giving money.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 12:13):</font></b> If Levi sold to
               David an item worth four for five, the sale is
               Batel. If before there was time to show it, the
               price rose to seven, David can retract but Levi
               cannot. David can say 'had you not overcharged me...
               Now that you overcharged me, can you retract?!'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (14):</font></b> Similarly, if Levi sold an item worth
               five for four, and the price dropped to three, only
               Levi can retract. He can say 'because you underpaid
               me, will you retract?!'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (15):</font></b> If Levi sold an item worth five for
               six, and before there was time to show it, the price
               rose to eight, Levi must return the overcharge
               (one), for David acquired and the item rose in price
               in David's Reshus. Similarly, if he sold an item
               worth six for five, and the price dropped to three,
               David must return one, for he acquired and the item
               declined in price in his Reshus.
<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 227:10):</font></b> If Levi sold to David an
               item worth four for five, the sale is Batel. If
               before there was time to show it to, the price rose
               to seven, David can retract but Levi cannot. David
               can say 'had you not overcharged me... Now that you
               overcharged me, can you retract?!'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (21):</font></b> The Rema (Sa'if 4) brought an opinion
                    that the swindler can retract. Here all agree
                    that he cannot, for once the price rose,
                    presumably the buyer will not retract. If the
                    buyer wants, he can retract until the time to
                    show it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (11):</font></b> Similarly, if Levi sold an item
               worth five for four, and the price dropped to three,
               only Levi can retract. He say 'you underpaid me;
               this does not entitle you to retract.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (12):</font></b> If Levi sold an item worth five
               for six, and was unable to show it before the price
               rose to eight, Levi must return the one that he
               overcharged, for David acquired and the item rose in
               price in David's Reshus.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Heicha):</font></b> Even though the Rosh
                    connotes that he favors R. Yonah, who says that
                    he cannot claim the Ona'ah, the Tur rules like
                    the other opinion because he prefers its
                    reasoning.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (21):</font></b> The Ramban explains that Rav Chisda
                    teaches that the victim can claim the Ona'ah or
                    void the sale. If so, the Halachah follows Rav
                    Chisda.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (13):</font></b> Similarly, if he sold an item
               worth six for five, and the price dropped to three,
               David must return the one that he underpaid, for he
               acquired and the item declined in price in David's
               Reshus.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Bach (CM 227:7 DH Garsinan):</font></b> To answer the
                    contradiction between Rava and Rav Chisda, the
                    Ga'on said that Rav Chisda discusses when money
                    was given but there was no Meshichah. The
                    victim of Ona'ah can retract without a Mi
                    she'Pora. This is the Halachah. The Rif
                    disagreed only about Bitul Mekach. He holds
                    that either can retract only if the victim
                    claimed the Ona'ah. If not, the swindler cannot
                    retract. No one argues about Ona'ah of a sixth;
                    only the victim can retract without Mi
                    she'Pora.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 204:2):</font></b> The Bach misunderstood
                    the Rif. The Rambam explained well, and
                    rejected the Ga'on. Indeed, the Nimukei Yosef
                    connotes a bit like the Bach, but there is no
                    proof from his words.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>IS ONE CURSED FOR RETRACTING AFTER ONES OCCURRED? </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, R. Tarfon holds that between a sixth and a
          third is like Chachamim say about a sixth, i.e. the buyer
          can negate the sale or demand the overcharge.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why were they happy with R. Tarfon's
          first law? (Chachamim say, in that case the buyer has no
          choice; the sale is void!)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> We must say that Chachamim hold that when the
          sale is void (more than a sixth), the buyer can always
          retract (and the merchants assumed that R. Tarfon allows
          only the time to show it)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Therefore, they were happy at first. When they heard
               that the buyer can retract the whole day (even for
               less than a sixth), they reverted to Chachamim's
               opinion.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But if Chachamim allow retracting only within the
               time to show it even regarding a void sale, why were
               they originally happy?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection:</font></b> They were happy due to the law of exactly a
          sixth. Chachamim say that this is Ona'ah, and R. Tarfon
          says that he pardons it.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HOW LONG MAY ONE RETRACT OR CLAIM ONA'AH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> According to Chachamim, when the sale is void,
          can the buyer always retract, or only until the time to
          show it?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If it is only until the time to show it,
               what is the difference between a sixth and more than
               a sixth?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> If he overpaid a sixth, only the buyer can
               void the sale. If it was more than a sixth, either
               one can void it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Mishnah):</font></b> They reverted to Chachamim's opinion.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Chachamim allow only the time to show it, and R.
               Tarfon allows the whole day, we understand why they
               reverted to Chachamim's opinion.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But if Chachamim allow the buyer to retract forever,
               why did they revert? R. Tarfon gives the buyer only
               one day!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> Ona'ah large enough to void the sale is
          uncommon. (Therefore, they preferred Chachamim's opinion,
          that Ona'ah of a sixth can be claimed only within the
          time to show it.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rava):</font></b> The Halachah is: if the Ona'ah is less than a
          sixth, the sale stands. If it is more than a sixth, the
          sale is void. If it is exactly a sixth, the Ona'ah is
          returned;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the last two cases, the buyer has until the time
               to show it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Support (Beraisa - R. Noson):</font></b> If the Ona'ah is less than
          a sixth, the sale stands. If it is more than a sixth, the
          sale is void. If it is exactly a sixth, the Ona'ah is
          returned;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rebbi says, the seller (or buyer, whoever was
               deceived) has the upper hand. He can void the sale,
               or demand payment of the Ona'ah.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> He can claim until...
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> This refers only to the buyer, but the
          seller can always claim.
<br>

sjt:
</p><p>
<font><b>2) HALACHAH: 'ONA'AH' WHEN THE BARCODE PRICE IS MORE THAN THE PRICE TAG</b></font><b>
<br>QUESTION:</b> The Gemara presents the basic guidelines for Ona'ah. If a buyer is overcharged less than a sixth, the sale is valid. If he is overcharged more than a sixth, the sale is invalid. If he is overcharged exactly one sixth, the sale is valid and the Ona'ah must be returned. The Mishnah later (51a) teaches that the prohibition of Ona'ah also applies to a buyer, such as when he knowingly lets the seller sell him an item below its value and does not alert the seller that he is not charging the correct price. The guidelines of Ona'ah for a buyer are parallel to that of a seller (that is, if a seller is <i>underpaid</i> less than a sixth, the sale is valid, and so on).
</p><p>
Nowadays, many countries (including Israel) have a law which states that a store which lists prices on the items which it lays out for sale must honor those prices, even if the correct price (which is displayed on the computer screen after the item's barcode has been scanned) is higher. The author of <b>SEFER SHIMRU MISHPAT</b> (#37) writes that a man asked him about an incident which happened to him at an Israeli supermarket. He saw an item which was clearly marked incorrectly, with a price of 2.30 shekels. He brought a number of the items to the checkout counter to buy, and the scan of the barcode showed that the price was 12.30 and not 2.30. He insisted that the price marked on the tag be honored, and he cited the law that entitled him to that price. The store manager was called over to settle the dispute between the buyer and the cashier. The manager called the buyer unreasonable and insensitive, but said that if he insists he may buy the items at the lower price. Afterwards, the man asked a Rav whether the Halachah permits him to keep the items or whether he must pay back the difference.
</p><p>
<b>ANSWER:</b> The <b>SHIMRU MISHPAT</b> explains that most Poskim rule that in this type of case, the prevailing custom of merchants (or the law of the land) overrides the prohibition of Ona'ah. Accordingly, when an item was on sale and is still marked as such, the buyer is entitled to pay the price which is marked and not the price that appears when the barcode is scanned.
</p><p>
However, this ruling does <i>not</i> apply in this particular case. The logic behind this law is for the buyer's protection: a buyer should not be enticed to buy an item which is marked with a lower price when in fact he will be charged a higher price for it when the barcode is scanned. When a buyer sees that the price of an item clearly is in error, and it is clear to him that the item never sold for such a price, he may not insist on paying this price. This is certainly the case when the buyer can see the error, such as a digit that was accidentally left out of the price (the price was marked as 2.30 instead of 12.30). The Shimru Mishpat says that in this case there is no prevailing custom that requires that the store must honor the price as marked. The manager did not forgo the difference due to custom or law, but rather he did so out of pressure and to avoid further confrontation (see <b>REMA</b> CM 333:8). For this and other reasons, the Shimru Mishpat rules that the buyer must reimburse the store for the difference in price. (Y. Montrose)
</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE TIME TO CLAIM ONA'AH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Support (Mishnah):</font></b> They reverted to Chachamim's opinion.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Granted, if the seller can always claim, this is why
               they reverted to Chachamim's opinion (R. Tarfon
               gives them the same to claim as Chachamim, burned he
               gives more time to buyers than Chachamim do).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But if the buyer and seller have the same time, why
               did they revert? The extra time R. Tarfon gives (the
               whole day) helps also them!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection:</font></b> They reverted because they often overcharged,
          and rarely undercharged.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Rami bar Chama's host sold wine and was underpaid. He was
          sad, because the time to show it had elapsed. Rami sent 
          him to Rav Nachman, who ruled that the seller can always
          claim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The buyer holds the item. Wherever he goes, he
          can show it to people who will tell him if he erred;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The seller does not hold the item. He will not
               realize his mistake until another sale of that item
               arises.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>FROM WHOM CAN ONE CLAIM ONA'AH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Reuven was selling silk bands. He was asking for six, but
          they were worth five. If someone gave him five and a
          half, he would accept it. Shimon reasoned:</font></b> if I pay five
          and a half, I cannot claim the Ona'ah (it will be too
          little)! He paid six and claimed the Ona'ah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> One may claim Ona'ah only from a merchant, but
          not from a regular person selling his belongings. (It is
          known that one sells his belongings only for more than
          their value.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	A similar case occurred with a man selling noserings. Rav
          Chisda ruled like Rava; Rav Dimi and R. Elazar approved.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (the coming Mishnah):</font></b> Just like (one can claim)
          Ona'ah from a commoner, he can claim from a merchant.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> 'Commoner' refers to a regular person
               selling his belongings.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> The Mishnah discusses one selling
          hemp clothing, which is normally sold. The Kelim one uses
          are dear to him, and he sells them only for more than
          their value.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHO MAY CLAIM ONA'AH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Buyers and sellers are both forbidden to
          deceive. Just like Ona'ah applies to a commoner, it
          applies to a Tagar (professional merchant);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yehudah says, Ona'ah does not apply to a Tagar.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	The one who was deceived has the upper hand. (E.g. if it
          was the buyer,) he can demand back his money, or to be
          paid back the Ona'ah (what he overpaid).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> 'V'Chi Simkeru Memkar...  Al Tonu'
          teaches only when the buyer was deceived (overpaid);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Oh Kano... Al Tonu' includes when the seller was
               underpaid.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	The Torah must teach both.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had it commanded only the seller, one might have
               thought that this is because he knows the item well,
               but the buyer is not so aware, so he is not
               commanded;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it only commanded the buyer, one might have
               thought that this is because it is advantageous to
               buy, but selling is disadvantageous, so the seller
               is not commanded.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah - R. Yehudah):</font></b> Ona'ah does not apply to a Tagar.
<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 #1 (Rav Nachman):</font></b> R. Yehudah discusses a Tagar who
          constantly buys and sells. He knows the value well, and
          sometimes he intentionally undercharges, when he wants
          money for a good purchase.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	.Answer #2 (Rav Ashi):</font></b> R. Yehudah means that the law of
          Ona'ah (i.e. a sixth) does not apply to a Tagar. Rather,
          he can demand compensation for any amount he was
          underpaid.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Support (for Rav Nachman - Beraisa):</font></b> Ona'ah does not
          apply to a Tagar because he knows prices.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The one who was deceived has the upper hand.
          (He can demand back his money, or to be paid back the
          Ona'ah.)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Our Mishnah is not like R. Noson, nor like R.
          Yehudah ha'Nasi (in the Beraisa on 50b)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Our Mishnah says that the one who was deceived has a
               choice. This is unlike R. Noson. (He holds that if
               Ona'ah is more than a sixth, the sale is void. If it
               is exactly a sixth, the Ona'ah is returned);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Our Mishnah says that the buyer has the upper hand
               (when he was deceived). Rebbi says that the seller
               has the upper hand!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	R. Elazar:</font></b> I do not know who taught this clause of our
          Mishnah!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #1 (Rabah):</font></b> Really, it is R. Noson. Also the
          Beraisa should say that he can choose.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> Really, it is Rebbi. (He and our
          Mishnah both hold that whoever was deceived has the upper
          hand.) The Beraisa discusses the case that the Mishnah
          did not explain (when the seller was deceived).
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Support (Rav Ashi):</font></b> Our Mishnah says that the law is the
          same for the buyer and seller, but it illustrates only
          the buyer's claim.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>TANAYIM CONTRARY TO THE TORAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> If Reuven sold to Shimon 'on condition that you
          have no claim of Ona'ah against me', Shimon can claim the
          Ona'ah;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> He cannot claim the Ona'ah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Rav holds like R. Meir, and Shmuel holds like
          R. Yehudah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> If Levi told Leah 'you are
               Mekudeshes to me on condition that you have no claim
               against me for food, clothing and (standard
               frequency of) Bi'ah', she is Mekudeshes, and his
               Tanai is void;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, the Tanai is valid regarding
               monetary matters (food and clothing).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> Even R. Yehudah could hold like Rav. R.
          Yehudah said that the Tanai works only when she knows
          what she is losing, for she pardons him. In the sale,
          Shimon does not know that there is Ona'ah, so he does not
          pardon it!
<br>
<br>

sjt:
<font><b>1) WHICH SELLER IS A LOSER?</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that the prohibition of Ona'ah applies both to a seller (who may not overcharge) and to a buyer (who may not mislead the seller to undercharge). The Gemara derives this from the verse, 'And when you transact a purchase to your friend, or acquire from the hand of your friend, you shall not defraud one another' (Vayikra 25:14). The Gemara explains why it is necessary for the Torah to explicitly include both a seller and a buyer in this prohibition. Had the Torah taught only that a seller may not overcharge, one might have thought that the Isur of Ona'ah applies only to a seller because a seller knows the correct price of the merchandise he sells. A buyer, however, who is not familiar with the value of the merchandise perhaps is not prohibited from underpaying. On the other hand, had the Torah taught only that a buyer may not underpay, one might have thought that the Isur of Ona'ah applies only to a buyer, since every buyer gains when he purchases merchandise. A seller, in contrast, is considered as though he loses when he sells his object (because he receives in return cash, which will quickly be consumed by his expenses). The Torah therefore must teach that both a buyer and a seller are subject to the Isur of Ona'ah.
</p><p>
The <b>SHITAH MEKUBETZES</b> quotes the <b>RA'AVAD</b> who asks that the Gemara's statement that a seller always loses when he sells seems imprecise. Granted, a person who sells family heirlooms or items dear to him because of lack of funds feels a sense of loss when he sells his items. However, such a seller cannot be the subject of the Gemara here when it says that the verse is needed to teach that the Isur of Ona'ah applies to the seller, because the Gemara earlier states that when an ordinary layman (Ba'al ha'Bayis) sells his personal items, he is <i>not</i> bound by the laws of Ona'ah! The Gemara cannot be referring to all other sellers (i.e. ordinary merchants), because their business is to buy and sell constantly, and they feel no loss when they sell their wares. To whom does the Gemara refer when it says that the seller feels that he loses when he sells, and yet the Isur of Ona'ah still applies to him?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RA'AVAD</b> answers that the Gemara earlier does not mean that a Ba'al ha'Bayis is <i>allowed</i> to overcharge Ona'ah. It means merely that a Ba'al ha'Bayis is not required to give back the money he overcharged. The Gemara here addresses the case of the Ba'al ha'Bayis and says that without a verse explicitly stating that a seller cannot overcharge, one would have assumed that the Ba'al ha'Bayis who sells his possessions is not bound by the laws of Ona'ah at all and is permitted to overcharge.
</p><p>
(b) Alternatively, the Ra'avad answers that the Gemara refers to a Ba'al ha'Bayis who sells clothing which is made to sell (and not his precious possessions). The Gemara earlier quotes Rav Chisda who says that in such a case a Ba'al ha'Bayis also is prohibited from overcharging.
</p><p>
(c) The <b>CHESHEK SHLOMO</b> similarly answers that there are two different types of sales that a Ba'al ha'Bayis will make. One is a sale in which he merely wants to buy one item in order to receive money to buy a second item. Another type of sale is one in which a Ba'al ha'Bayis is in financial stress and he sells his possessions for cash. The Gemara earlier which says that Ona'ah does not apply when one purchases from a Ba'al ha'Bayis clearly refers to the first type of sale, in which the Ba'al ha'Bayis has the liberty to demand a lot of money for his possessions. As <b>RASHI</b> there (DH mi'Ba'al ha'Bayis) explains, everyone knows that a Ba'al ha'Bayis charges a lot of money for his precious possessions, and one who buys from him certainly knows that he is paying more than the actual value, and he does so with the unspoken condition that he will not claim Ona'ah. In contrast, in the second type of sale, a Ba'al ha'Bayis facing financial hardships will often accept less money for his possessions than they are actually worth, since he is desperate for money. No buyer will think that the Ba'al ha'Bayis is overcharging, and thus if he does overcharge the buyer has the right to claim Ona'ah and get his money back. It is this type of Ba'al ha'Bayis to whom the Gemara refers when it says that one might have thought that the seller is not bound by the prohibition of Ona'ah. The verse teaches that he, too, may not overcharge his buyer. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A TANAI THAT THERE WILL BE NO ONA'AH</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> If Reuven sold to Shimon 'on condition that
               you have no claim of Ona'ah (overcharging or
               undercharging) against me', Shimon can claim the
               Ona'ah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Shmuel):</font></b> He cannot claim the Ona'ah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rav holds like R. Meir, and Shmuel holds like R.
               Yehudah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Meir):</font></b> If Levi told Leah 'you are
                    Mekudeshes to me on condition that you have no
                    claim on me for clothing, food and Onah (Bi'ah
                    at the normal times)', she is Mekudeshes, and
                    his Tanai is void;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Yehudah says, the Tanai is valid for
                    monetary matters (clothing and food).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection #1:</font></b> Even R. Yehudah could hold like Rav.
               R. Yehudah validates a Tanai when she knows what she
               forfeits, for she pardons him. Shimon does not know
               about the Ona'ah in the sale, so he does not pardon
               it!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection #2:</font></b> Even R. Meir could hold like Shmuel.
               R. Meir invalidates a Tanai that definitely uproots
               Torah law. In the sale, perhaps there is no Ona'ah!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question (Beraisa):</font></b> If one says 'on condition that
               you have no Ona'ah against me', there is no Ona'ah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If both Tana'im can hold like Rav, like whom is
                    the Beraisa?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #1 (Abaye):</font></b> Indeed, we must say that Rav
               holds like R. Meir.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #2 (Rava):</font></b> The Beraisa is when he specified
               the amount of Ona'ah (the buyer knows and pardons
               it). Rav's law is when he said only 'on condition
               that...'
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Kesuvos 83b:</font></b> Rav holds that a stipulation against
               the Torah is void!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav):</font></b> If one says 'I sell this to you on
                    condition that you have no Ona'ah against me',
                    the buyer can claim Ona'ah.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Makos 3b (Shmuel):</font></b> If one lent 'on condition that
               Shemitah will not Meshamet (cancel) the loan',
               Shemitah is Meshamet;
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question:</font></b> Regarding a sale 'on condition that you
               have no Ona'ah', Shmuel invalidates a Tanai contrary
               to Torah!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer (Shmuel):</font></b> If he said 'on condition that <i>you</i>
               have no (claim of) Ona'ah against me', the Tanai is
               valid. If he said 'on condition that <i>there is no
               Ona'ah</i> in the sale', Shmuel agrees that this is
               contrary to Torah, so it is void.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Likewise, 'on condition that <i>you</i> will not
                    Meshamet me' is a valid Tanai, but not 'on
                    condition that <i>Shemitah</i>will not Meshamet' is
                    not.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (4:17):</font></b> If Reuven sold to Shimon 'on
               condition that you have no claim of Ona'ah against
               me', Rav says that Shimon can claim the Ona'ah.
               Shmuel says that he cannot. We challenge Rav, and
               answer that Rav's law is when he said only 'on
               condition that...', without specifying the amount of
               Ona'ah. If Shimon stipulated and said how much
               Ona'ah there is, Reuven cannot claim Ona'ah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Tosfos (51b DH ba'Meh):</font></b> Even though the Halachah
               follows Shmuel in monetary laws, R. Chananel rules
               like Rav, for the Halachah follows Rav in Isurim.
               This is difficult, for this is not a question of
               Isur. Surely it is forbidden to deceive. It is a
               monetary question, whether or not one must return
               the Ona'ah! The She'altos rules like Rav because the
               Beraisa supports him. Rav can say that the Beraisa
               is R. Yehudah. According to Shmuel, the Beraisa is
               not like R. Yehudah or R. Meir! The Rivan says that
               Shmuel can explain the Beraisa to mean that Stam is
               when he did not say 'on condition that', and
               'specified' means that he stipulated 'on condition
               that you have no Ona'ah against me', which is like
               saying 'I know that it is not worth the price.'
               Alternatively, one who says 'on condition that you
               have no Ona'ah against me' normally says 'I know
               that it is not worth...', even though he is unsure.
               It is even like R. Meir, for perhaps he does not
               uproot anything.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh:</font></b> R. Chananel holds that this is a question of
               Isur, whether one may stipulate and be exempt from
               Ona'ah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Gemara):</font></b> Levi can stipulate
                    that another will not claim from him (e.g.
                    Onah, or Ona'ah), but he cannot stipulate that
                    there will be no claim. A Tanai that the buyer
                    will not return land in Yovel is invalid, for
                    in Yovel the land is not his, it is 'Kodesh
                    la'Shem'.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 13:3):</font></b> If Reuven said to
               Shimon 'on condition that you have no Ona'ah against
               me', Shimon can claim the Ona'ah. This is Stam, when
               Shimon does not know how much Ona'ah there is to
               pardon it. All the more so, if he said 'on condition
               that there is no Ona'ah', for there is Ona'ah. he
               has Ona'ah. If he specified there is no Ona'ah, for
               every monetary Tanai is valid.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Question (Lechem Mishneh and Gra CM 227:30):
                    Regarding Shemitah, the Rambam rules like
                    Shmuel, that a Tanai 'on condition that <i>you
                    will not Meshamet me in Shemitah' is valid. The
                    Gemara equated these!.Also all the Poskim (CM
                    67:3) rule like the Rambam regarding both of
                    these!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Ketzos ha'Choshen 67:3, citing Keneses
                    ha'Gedolah):</font></b> We equated Ona'ah and Shemitah
                    according to Shmuel, who holds that a Tanai
                    that Vadai uproots Torah law is Batel. Rav
                    holds that the Tanai helps only if he knows to
                    pardon, i.e. for Shemitah, but not for Ona'ah.
<br><i><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 227:21):</font></b> If Reuven sold to Shimon
               'on condition that you have no Ona'ah against me',
               Shimon can claim the Ona'ah. This is Stam, when
               Shimon does not know how much Ona'ah there is to
               pardon it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mabit (2:126):</font></b> A case occurred in which one
                    stipulated that if the Ona'ah is at least a
                    quarter, there will be a claim of Ona'ah. The
                    Ona'ah was more than a sixth but less than a
                    quarter. Had he stipulated like the Beraisa and
                    Rambam say 'I know that there is Ona'ah...',
                    there would be no Ona'ah. However, the way he
                    stipulated was Asmachta, for he did not know
                    how much Ona'ah there is.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ketzos ha'Choshen (9 DH v'Chen):</font></b> When the
                    person does not know to pardon, even pardon of
                    the law is invalid. The buyer can demand the
                    Ona'ah. R. Yehudah holds that the sale is Batel
                    because the Tanai was not fulfilled.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (37):</font></b> The Ir Shushan says that the Tanai is
                    Batel because it is contrary to Torah. This is
                    wrong. Rather, even if he says that there is
                    Ona'ah, perhaps the buyer thinks that there is
                    only a little.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Defense (Ketzos ha'Choshen 8):</font></b> The Ir Shushan
                    holds like the Nimukei Yosef, who say that
                    since he does not know to pardon, the Tanai
                    cannot work (without pardon), for it is
                    contrary to Torah.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Nesivos ha'Mishpat (Urim 13):</font></b> If he stipulated
                    ''on condition that you will pardon the Ona'ah,
                    this is a proper Tanai. I.e., when he finds out
                    about the Ona'ah he will pardon it. If he does
                    not, the sale is Batel. This is not contrary to
                    Torah, for there is no Isur to pardon Ona'ah.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Machaneh Efrayim (Hilchos Ona'ah 15):</font></b> If he
                    stipulated 'on condition that you will not
                    claim the Ona'ah', and the other party did not
                    know about the Ona'ah to pardon it, he
                    stipulated contrary to the Torah. If he
                    stipulated 'on condition that you will pardon
                    the Ona'ah', even if the other party did not
                    know about the Ona'ah to pardon it, this is not
                    contrary to Torah. If he does not pardon, the
                    sale is void. The <b>SMA</b> explains that 'on
                    condition that you have no Ona'ah against me'
                    the latter way. This is difficult. Why is the
                    Tanai void, and he must return the Ona'ah? The
                    Tanai is not contrary to Torah. He should say,
                    since you do not pardon, the sale is void! The
                    Beis Yosef says that the Tanai is contrary to
                    Torah, and Kesuvos 83b explicitly says that Rav
                    holds that the Tanai is contrary to Torah!
                    Rather, the Tanai means 'on condition that you
                    will not claim it.' Rashi says that in Bava
                    Metzi'a, if he says 'on condition that there is
                    no Ona'ah' does not denote pardon. This does
                    not mean that 'on condition that you do not
                    have Ona'ah against me' means that you will
                    pardon it. Rather, you will not claim it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> All the more so, if he said
               'on condition that there is no Ona'ah', he has
               Ona'ah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (38):</font></b> The Tur rules like Rashi, that even
                    if the Ona'ah is exactly a sixth, the sale is
                    Batel. The Shulchan Aruch connotes that the law
                    is the same as when he said 'on condition that
                    you have no Ona'ah against me', which is as if
                    he did not stipulate. Ona'ah of a sixth is
                    returned, but the sale stands.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> However, if he said 'this is
               worth 100. I sell it to you for 200 on condition
               that you have no Ona'ah against me', or is Shimon
               said 'this is worth 200. I buy it from you for 100
               on condition that you have no Ona'ah against me', he
               has no Ona'ah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (39):</font></b> The Shulchan Aruch connotes that it
                    is not enough that he says that he knows that
                    there is Ona'ah. Rather, he must specify how
                    much is the Ona'ah. Even though we hold that
                    one can pardon something without a limit, in
                    any case like this (when the other party knows
                    the Ona'ah), he must specify. If not, the
                    victim can say 'I did not know that there is so
                    much Ona'ah to pardon it.
<br><i>
<font color='blue'><i>See also:</i>
<br><b><b>A TANAI THAT SHEMITAH WILL NOT MESHAMET </b></b>(</font></i><i><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> Even R. Meir could hold like Shmuel. R.
          Meir said the Tanai is void only when it definitely
          uproots Torah law. In the sale, perhaps there is no
          Ona'ah (so the condition is valid)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Anan citing Shmuel):</font></b> If he said 'on condition that
          you have no (claim of) Ona'ah against me', he cannot
          claim Ona'ah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'on condition that there is no Ona'ah',
               behold there is Ona'ah (he can claim it).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If one buys and sells be'Emanah
          (Reuven pays Shimon to sell Reuven's goods for as much as
          he can), or he says 'on condition that you have no Ona'ah
          against me', there is no Ona'ah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav said that both Tana'im hold like him. Like whom
               is the Beraisa?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> Indeed, we must say that Rav holds
          like R. Meir, Shmuel holds like R. Yehudah.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> We need not say so. Rather, the Beraisa
          discusses one who explicitly said how much Ona'ah there
          is (the buyers knows, and he pardons it). Rav's law is
          when he said only 'on condition that...';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> (Either side can claim Ona'ah) when no
               one specified. If the seller said 'it is worth 100.
               I sell it to you for 200, on condition that you have
               no Ona'ah against me', he cannot claim Ona'ah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Similarly, if the buyer said 'it is worth 200. I
               will buy it for 100, on condition that you have no
               Ona'ah against me', he cannot claim Ona'ah.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If one who buys and sells be'Emanah, the owner
          may not say 'buy the good merchandise for yourself at its
          price (for which you will pay me later), and sell the bad
          for me' (the loan is compensation for his work. This is
          Ribis!) There are two options:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shimon may buy both good and bad at its price (and
               keep the profits of what he sells);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, both are be'Emanah, and Reuven pays all Shimon's
               expenditures. He does not pay for Shimon's toil, for
               Shimon already received his full wage.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Where did he receive this?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rav Papa):</font></b> The Beraisa discusses selling
               hemp garments. The retailer normally keeps four
               percent of each sale.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>INCOMPLETE COINS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah) Question:</font></b> How much can a Sela lack, and one
          (who gives it for a Sela) does not transgress Ona'ah?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (R. Meir):</font></b> It can lack up to four Isarim, one
          Isar per Dinar;
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (R. Yehudah):</font></b> It can lack up to four
          Pundeyonim, one Pundeyon per Dinar.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #3 (R. Shimon):</font></b> It can lack up to eight
          Pundeyonim, two Pundeyonim per Dinar.
<br>

<p>

sjt:
</p><p>
<font><b>2) ONE WHO MAKES A CONDITION THAT THE LAWS OF 'ONA'AH' SHOULD NOT TAKE EFFECT</b></font><b>
<br>OPINIONS:</b> The Gemara teaches that if the seller says to the buyer, '[I am selling to you this object] on condition that you do not claim Ona'ah from me,' the buyer cannot claim Ona'ah. If he says, '... on condition that there is no Ona'ah in the object,' the buyer may claim Ona'ah.
</p><p>
What is the reason for the difference between these two cases?
</p><p>
(a) <b>RASHI</b> (DH she'Ein Bo) explains that 'there is no Ona'ah in the object' means that the buyer agrees that he will not claim Ona'ah because the price he is being charged is correct and he is not being overcharged. If he indeed is cheated, the law of Ona'ah applies because the seller's words were not true; there <i>was</i> Ona'ah in the object. The buyer may claim that the sale was a 'Mekach Ta'us' (mistaken sale) and he may cancel the sale. In contrast, when the seller says 'on condition that you do not claim Ona'ah from me,' the buyer consciously foregoes any monetary claims associated with being overcharged.
</p><p>
<b>TOSFOS</b> (DH Al Menas) questions this explanation from the Gemara in Makos (3b). The Gemara there compares the case of Ona'ah with a similar case of a loan, in which the lender tells the borrower, '[I am lending to you the money] on condition that you will not cancel the loan in Shemitah,' in which case the condition takes effect and the borrower must pay back the loan even after the Shemitah year has passed. If the lender says, '... on condition that the Shemitah year does not cancel the loan,' the condition does not take effect and the Shemitah year <i>does</i> cancel the loan. Tosfos points out that the reason for the difference in those two cases is that in the first case the lender asks the borrower to waive his right to cancel the debt, but in the second case the lender attempts to override the Torah's law and say that the Shemitah year will not cancel the debt. The fact that the Gemara there compares the cases of Shemitah with the cases of Ona'ah implies that a similar logic applies to both. However, the logic which Rashi presents here to explain Ona'ah does not apply at all to Shemitah. Why, then, does the Gemara in Makos compare the cases?
</p><p>
Tosfos answers that according to Rashi, the comparison is not in the logical reasoning, but rather the Gemara simply compares two topics with similar phraseology.
</p><p>
(b) Tosfos quotes the <b>RASHBAM</b> who explains that the cases of Ona'ah and Shemitah indeed are similar, both in their phraseology and in their logic. The condition of 'that there is no Ona'ah in the object' does not take effect because the Torah says that there is Ona'ah in an object when a person overcharges. The same reasoning explains why a lender cannot say to a borrower that he is lending money 'on condition that the Shemitah year does not cancel the loan.'
</p><p>
In the case of 'on condition that you do not claim Ona'ah from me,' the buyer does the same thing that the borrower does in the case of 'on condition that you will not cancel the loan in Shemitah.' Just as the borrower commits to pay back the loan even after Shemitah has cancelled the original loan, the buyer commits not to exercise his right to claim Ona'ah. The condition does not directly conflict with the word of the Torah. Rather, the buyer or borrower merely makes his own, personal monetary commitment. The Gemara in Makos compares these cases because they indeed are similar. This is also the explanation of the <b>NIMUKEI YOSEF</b>. (Y. Montrose)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>INCOMPLETE COINS (cont.)</font></b>

<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> (If a coin lacks too much), until when may one
          return it?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> In a big city (in which there are moneychangers),
          one may return it until the time needed to show it to a
          moneychanger;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In a village, one may return it until Erev Shabbos
               (when people buy needs of Shabbos, and would find
               that it is lacking).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If the one who gave the coin recognizes it, he should
          accept it even after 12 months. He only has complaints
          (this will be explained).
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	A deficient coin may be used to redeem Ma'aser Sheni,
          since a proper person accepts it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara) Contradiction (Beraisa):</font></b> Until how much can a
          Sela lack, and one who gives it transgresses
          Ona'ah?...(If it lacks exactly this amount, it is
          disqualified. Our Mishnah accepts it!)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> The Mishnah starts from below (a small
          lack is acceptable, until but not including she Shi'ur
          each Tana said, e.g. four Isarim). The Beraisa starts
          from above (a big lack is Ona'ah, until and including the
          Shi'ur).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Why do the Tana'im argue only about Ona'ah of a
          coin? They do not argue about a purchase (in the Mishnah
          49b)!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1 (Rava):</font></b> They argue also about a purchase. That
          Mishnah is R. Shimon, who says that one part in six is
          Ona'ah.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (Abaye):</font></b> Regarding a garment, one pardons up to
          a sixth. If needed, one overpays for clothing;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, if people will not accept a coin, one who
               received it is not appeased!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Beraisa - R. Meir):</font></b> A Sela can lack up to four Isarim,
          one Isar per Dinar, and one does not transgress Ona'ah;
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	R. Yehudah says, it can lack up to four Pundeyonim, one
          Pundeyon per Dinar.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	R. Shimon says, it can lack up to eight Pundeyonim, two
          Pundeyonim per Dinar.
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	If it lacks more than this, it is sold for its value.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> How much can a deficient coin lack, and one may
          keep it (we are not concerned lest it be used to
          deceive)?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> A Sela may lack up to a Shekel (half a Sela. If
          it lacks more than the permitted Shi'ur one may amount
          for a Sela, this is recognizable, but when it is less
          than a Shekel, others might think that it is a proper
          Shekel and accept it in place of a Shekel.) A Dinar may
          lack until Rova (a quarter).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> An Isar less than this, it is forbidden.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He may not sell it to a merchant, extortionist or
               murderer, for they will deceive others with it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rather, he should make a hole in it and let his
               child wear it like a necklace.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> Why may one keep a Sela until it lacks half,
          but one may keep a Dinar until it lacks a quarter?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> The Beraisa means that a Dinar can lack
          until a quarter of a Shekel, which is half a Dinar.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Support (Rava):</font></b> The Beraisa says 'Rova' (which can denote
          a quarter Dinar or a quarter Shekel).' It does not say
          'Revi'i (a quarter, which would clearly mean a quarter
          Dinar).
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Question:</font></b> Why does the Tana express the amount with
          respect to a Shekel? He should say 'until half (of its
          own value)'!
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  	Answer:</font></b> This teaches (concisely) that one may keep a
          deficient Shekel that now weighs a Dinar. This supports
          R. Ami.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Ami):</font></b> One may keep a deficient Shekel that now
               weighs a Dinar. One may not keep a deficient Sela
               that now weighs a Dinar (since it comes from a
               thick, wide coin, people might think that it is a
               Shekel).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>KEEPING DEFICIENT COINS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> An Isar less than this, it is forbidden.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What does this mean?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> If it lacks an Isar more than the
          allowed deficiency, one may not use it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> If it lacks anything more than the
          allowed deficiency, one may not use it!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> If a Sela lacks an Isar per Dinar, one
          may not use it. The Beraisa is R. Meir (in the previous
          Beraisa).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a Sela was disqualified and fixed to be 
          used for weighing, it receives Tum'ah (for it has been
          transformed into a Kli);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Until how much can a coin lack, and one may keep it?
               A Sela may be until two Dinarim (half a Sela). If it
               is less than this, he must cut it (in half).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> If more than two Dinarim remain, what is the
          law?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1 (Rav Huna):</font></b> Whether more or less than two
          Dinarim remain, he must cut it.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (R. Ami):</font></b> If less than two Dinarim remain, he
          must cut it. If more than two Dinarim remain, he may keep
          it.
<br>
<br>

sjt:
<font><b>1) HALACHAH: 'ONA'AH' FOR COINS</b></font><b>
<br>OPINIONS:</b> The Mishnah (51b-52a) discusses how much a Sela coin may be deficient in silver (as a result of constantly being handled) and not constitute a problem of Ona'ah. Rebbi Meir says that it may be lacking up to 1/24 of its proper weight in silver. Rebbi Yehudah says that it may be lacking up to 1/12. Rebbi Shimon says that it may be lacking up to 1/6, the same measure of Ona'ah for ordinary objects.
</p><p>
The Gemara asks why the Tana'im disagree only with regard to the Ona'ah of coins, but they do not disagree with regard to the Ona'ah of ordinary objects (such as a Talis). The Mishnah earlier (49b) clearly says that the Shi'ur of Ona'ah is 1/6, and no one argues.
</p><p>
Rava answers that there actually is no difference between ordinary objects and coins; the Tana'im disagree in both cases. The Mishnah earlier (49b) follows the view of Rebbi Shimon when it says that the Shi'ur of Ona'ah is 1/6.
</p><p>
Abaye answers that there indeed is a difference between merchandise and coins. A person is far more hesitant to accept coins that are deficient since he will not be able to spend them easily.
</p><p>
What is the Halachah?
</p><p>
(a) The <b>RIF</b> and <b>RAMBAM</b> (Hilchos Mechirah 12:9-10) rule in accordance with the view of Rebbi Shimon. Since Rava explains that the Mishnah earlier expresses the view of Rebbi Shimon without attributing any name to it (that is, it is a 'Stam Mishnah'), the Halachah presumably follows that view, both with regard to merchandise and with regard to coins.
</p><p>
The <b>NIMUKEI YOSEF</b> asks that although the Halachah normally follows the statement of a Stam Mishnah, it does <i>not</i> follow a Stam Mishnah when that Mishnah is followed by a Mishnah in which the subject is subject to a Machlokes, which indeed is the case here. Why, then, do the Rif and Rambam rule like Rebbi Shimon? The Nimukei Yosef answers that this rule applies only when an Amora does not explicitly rule like the Stam Mishnah. In this case, however, Rava (50b) explicitly rules like the Stam Mishnah. This is the Halachah as recorded by the <b>SHULCHAN ARUCH</b> (CM 227:16).
</p><p>
(b) The <b>ROSH</b> writes that there is apparently a mistake in our text of the Gemara. It is not Rava who says that the Mishnah earlier expresses the view of Rebbi Shimon, but rather <i>Rabah</i>. The Rosh proves that it must be Rabah from the fact that this opinion is quoted before that of Abaye, and nowhere in the Gemara is Rava ever quoted before Abaye. Since it was Rabah who gave this answer and Abaye argues with it, the Halachah should follow the view of Abaye, as Abaye was a later Amora. Accordingly, the three Tana'im in the Mishnah here agree that the Shi'ur of Ona'ah for merchandise is set at 1/6.
</p><p>
Whom does the Halachah with regard to the Shi'ur of Ona'ah for coins? The Gemara in Eruvin (46b) states a rule that the Halachah follows the view of Rebbi Yehudah over Rebbi Meir and Rebbi Shimon. The Rosh therefore rules that Ona'ah of coins is 1/12, not 1/6. This is also the opinion of the <b>RAMBAN</b> and the <b>REMA</b>. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO GAVE A DEFICIENT COIN</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'> 51b (Mishnah) Question:</font></b> How much can a Sela lack,
               and one (who gives it for a Sela) does not
               transgress Ona'ah?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1 (R. Meir):</font></b> It can lack up to four Isarim,
               one Isar per Dinar;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #2 (R. Yehudah):</font></b> It can lack up to four
               Pundeyonim, one Pundeyon per Dinar.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #3 (R. Shimon):</font></b> It can lack up to eight
               Pundeyonim.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> (If a coin lacks too much), in a big city (in which
               there are moneychangers), one may return it until
               the time needed to show it to a moneychanger. In a
               village, one may return it until Erev Shabbos.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> If the one who gave the coin recognizes it, he
               accepts it even after 12 months. He only has
               complaints.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> It may be used to redeem Ma'aser Sheni, for only an
               irritable person refuses to accept it.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> Why do the Tana'im argue only about Ona'ah
               of a coin? They do not argue about a purchase (in
               the Mishnah 49b)!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #1 (Rava):</font></b> They argue also about a purchase.
               That Mishnah is R. Shimon, who says that one part in
               six is Ona'ah.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer #2 (Abaye):</font></b> Regarding a garment, one pardons
               up to a sixth. If needed, one overpays for clothing.
               However, if people will not accept a coin, one who
               received it is not appeased!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Beraisa):</font></b> An Isar less than this, it is forbidden.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Abaye):</font></b> This means that if it lacks an Isar more
               than the allowed deficiency, one may not use it.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Rejection (Rava):</font></b> If it lacks anything more than the
               allowed deficiency, one may not use it! Rather, if a
               Sela lacks an Isar per Dinar, one may not use it.
               The Beraisa is R. Meir.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> The Halachah follows Rava, therefore, the
               Halachah follows R. Shimon regarding Ona'ah of a
               Sela, for the Stam Mishnah.of a Talis is like him.
               Also, Rava (50b) rules like R. Shimon regarding a
               Talis.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (CM 227:23):</font></b> The Halachah need not follow
                    the Stam Mishnah, for is followed by a Mishnah
                    in which Tana'im argue! We may learn from
                    Rava's ruling like R. Shimon.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (4:19):</font></b> We never find Rava's opinion before
               Abaye, for Abaye was Rosh Yeshivah before Rava, and
               he would begin (the discussion) in the Beis Medrash.
               We must say that the text says that Rabah argues
               with Abaye. The Halachah follows Abaye, for he is
               Basra.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Piplulei Charifta (6):</font></b> Abaye does not learn
                    Ona'ah of coins from a garment. The general
                    rule is, the Halachah follows R. Yehudah
                    against R. Meir or R. Shimon
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Prishah (CM 227:16):</font></b> Abaye holds like R.
                    Yehudah.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Hagahos Ashri:</font></b> The same applies to a (coin
                    called a) Pashut.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Question (Hagahos Eretz Tzvi):</font></b> What is the
                    Chidush? Why should we think that the Halachah
                    is different for different coins?!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (20):</font></b> This (a deficient coin may be used to
               redeem Ma'aser Sheni, since a proper person accepts
               it) is when it is accepted with difficulty.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 12:9):</font></b> If a gold Dinar was
               24 silver Dinarim, and one made a Dinar worth 20 or
               28 Dinarim, he returns the Ona'ah. If it was more
               than this, the mintage is Batel. If it was less, it
               is pardoned.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (10):</font></b> The same applies if a Sela was lacking
               a sixth, and one paid a fixed number of them, not
               for their weight. He returns the Ona'ah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> If one paid a fixed weight, he
                    returns a lack of any amount. The Ramban and
                    others say that the text says 'Rabah', and rule
                    like R. Yehudah, that one part in 12 in Ona'ah.
                    It is unlike Ona'ah of other things, like Abaye
                    explained.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rambam (11):</font></b> One may return a coin in a big city
               until the time to show it to a moneychanger. In a
               village one may return it until Erev Shabbos, for
               moneychangers are scarce and only they know a Sela
               and what it lacks.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rambam (12):</font></b> If Levi gave a deficient coin to Ploni
               and Levi recognizes it, he exchanges it even after
               12 months. If it could be spent with difficulty,
               Levi need not exchange it, unless he wants to
               fulfill Midas Chasidus.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam connotes that if it
                    cannot be spent even with difficulty, Levi is
                    obligated to exchange it even after the time.
                    The Gemara connotes that after the time, it is
                    always only Midas Chasidus.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Tosfos (51a DH Isar):</font></b> Even though any mistake about
               measure, weight or number is returned, the coin was
               given for a coin, not for its weight.
<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 227:16):</font></b> If a gold Dinar was 24
               silver Dinarim, and one made one of 20 or 28, he
               returns the Ona'ah. If it was more than this, the
               mintage is Batel. If it was less, it is pardoned.
               Likewise, a Sela lacked a sixth, and one paid a
               fixed number of them, not based on their weight, he
               returns the Ona'ah. If one bought for a fixed
               weight, he returns a lack of any amount.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (27):</font></b> For anything sold by measure, weight
                    or number, Ona'ah of any amount is returned.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that Ona'ah for coins is one part in
<br>             <b>  <b><font color='darkgreen'>12. </font></b></b>Less than this is pardoned; more is Bitul Mekach
               (the sale is void). Whenever it lacks an amount that
               is pardomed, one may spend it l'Chatchilah like a
               good coin (Sa'if 6).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tosfos (52a DH Omar):</font></b> Abaye/Rava explain the
                    Beraisa to forbid using coins missing an
                    Isar/any amount more than the Shi'ur Ona'ah,
                    even with intent to return the Ona'ah, for it
                    is a Mekach Ta'os. If it lacks the Shi'ur
                    Ona'ah, one may use it with intent to return
                    the Ona'ah if the other party will demand it
                    within the time. If it lacks less than the
                    Shi'ur Ona'ah, one may use it without intent to
                    return anything, for it is pardoned.
                    Alternatively, Abaye forbids even to spend it
                    for its value. Chachamim are not stringent for
                    a small loss up to an Isar. Rava disagrees.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (17):</font></b> One must exchange a Dinar or
               Sela that he gave in a big city until the time
               needed to show it to a moneychanger. In a village,
               moneychangers are scarce. One may return it until
               Erev Shabbos, when he comes to spend it, for only
               moneychangers know a Sela and what it lacks.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (30):</font></b> Even if one is rich and has other 
                    coins to spend, Chachamim did not give him more
                    time, for normally if one has coins that he is
                    unsure about, he spends them and saves the
                    coins that are surely good.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> After this time, the one who
               shortchanged need not exchange it. However, it is
               Midas Chasidus to return it even after this time if
               he recognizes it. This is only if it could be spent
               with difficulty.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (31 and Prishah DH u'Bilvad):</font></b> The last
                    words mean that if it cannot be spent even with
                    difficulty, one need not return it even for
                    Midas Chasidus. Even one who sold for twice the
                    value need not return the Ona'ah after the time
                    to show it to a merchant. Ir Shushan explains
                    that if it cannot be spent with difficulty, one
                    must even after a long time. This is wrong. The
                    Rambam connotes like this, but the Magid
                    Mishneh said that the Gemara connotes
                    otherwise. This is why the Shulchan Aruch did
                    not adopt the Rambam's words, like usual,
                    rather, the Tur's words. The Ir Shushan
                    explains the Tur like the Rambam; this is
                    wrong.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz:</font></b> The Ir Shushan is correct. The Seifa holds
                    that a proper person accepts the coin, i.e. for
                    one can spend it with difficulty. The Rambam
                    infers that the Reisha, which limits the time
                    to return it, also discusses such coins. The
                    Tur agrees that after the time it is Midas
                    Chasidus to accept it, but one must always
                    accept a coin that cannot be spent even with
                    difficulty. The Magid Mishneh holds that the
                    Mishnah discusses a coin that cannot be spent
                    even with difficulty, and even so it is only
                    Midas Chasidus to return it after the time.
                    This is no support for the <b>SMA</b>!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Gra (25):</font></b> The Rambam holds that the Seifa (a proper
               person would accept it) applies also to the Reisha
               (a coin missing the Shi'ur of Ona'ah). This is
               difficult, for one may not keep such a coin (Sa'if
               18)!
<br>

<p>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (against Rav Huna - Beraisa):</font></b> If more remains,
          he sells it for its value.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The case is, it lacks more than the
               amount of Ona'ah (he sells it according to its
               weight).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> No, it lacks less than the amount of Ona'ah (he
          sells it for its minted value, a Sela).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Until how much can a coin lack, and
          one may keep it? One may keep a Sela until a Shekel.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It decreases gradually, and one may keep
               it until it is less than a Shekel.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> No, it fell into a fire. The decrease came all at
          once.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> He makes a hole in it and his child wears it
          like a necklace.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> One may not use a deficient coin
          like a weight, nor throw it among his broken silver
          Kelim, nor make a hole in it to be a necklace for his
          child. Rather, he pulverizes it, melts it, cuts it or
          throws it in the Dead Sea.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> One may make a hole in the middle, but not in the
          side (lest a swindler even it out to make it look
          proper).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>RETURNING DEFICIENT COINS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> In a big city, he may return it until the time
          needed to show it to a moneychanger. In a village, he has
          until Erev Shabbos.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why does the time to return coins vary between
          cities and villages, but not for returning a purchase
          (the Mishnah 49b)?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> The Mishnah about a purchase teaches
          the law for cities (indeed, the law in villages is
          different)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> Everyone knows the value of a garment,
          but only moneychangers are proficient about coins;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In a city, one can show it to a moneychanger. In a
               village, he will find that it is lacking when he
               tries spending it Erev Shabbos, when people buy
               needs of Shabbos.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If the one who gave the coin recognizes it, he
          should accept it even after 12 months...
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Where does this apply?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In big cities, one has only the time to show a
               moneychanger!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> In a village, one has only until Erev Shabbos!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> The Mishnah discusses one who wants
          to go beyond the letter of the law.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah continues 'he only has complaints.'
          Rather than have complaints, he should (stick to letter
          of the law, and) not accept it!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> It means that if the one who gave it does not
          accept it back, the receiver has only complaints. (He
          caused his own loss by delaying.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> He may use it to redeem Ma'aser Sheni, for
          only a bad person refuses it.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Inference (Rav Papa):</font></b> One who does not accept deficient
          coins is a bad person.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if the coins are accepted (by most
               people).
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	This supports Chizkiyah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Chizkiyah):</font></b> If one exchanges a deficient coin
               (above the amount of Ona'ah) for Perutos, he
               exchanges according to its value (weight). He
               redeems onto it as if it were a good coin.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What does this mean? (The first law is
               obvious, from the Mishnah!)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1:</font></b> Even though if one exchanges a deficient
               coin for Perutos, he exchanges according to its
               value, one redeems onto it as if it were a good
               coin.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Objection:</font></b> Here, Chizkiyah is lenient about Ma'aser
               Sheni;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Contradiction (Chizkiyah):</font></b> If Ma'aser Sheni is
                    worth less than a Perutah, he redeems it and
                    its Chomesh onto prior coins (coins already
                    used to redeem Ma'aser), for surely he was not
                    exact (the prior coins were worth more than the
                    Ma'aser he redeemed on them, and can redeem
                    also this Ma'aser. Since Chizkiyah requires
                    using coins worth more than the Ma'aser, surely
                    he does not allow redeeming on deficient coins
                    as if they were good!)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #2:</font></b> Rather, Chizkiyah says 'he redeems onto
               it like a good coin', i.e. no more than it is
               definitely worth;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We allow only one leniency (we do not consider
                    it an Asimon that is invalid for redemption).
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>REDEEMING MA'ASER WORTH LESS THAN A PRUTAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Chizkiyah):</font></b> (One who redeems his Ma'aser Sheni must add
          a Chomesh, i.e. a quarter of the principal.) If Ma'aser
          Sheni is worth less than a Perutah, one may redeem it and
          its Chomesh on prior coins (i.e. Ma'aser was previously
          redeemed on them), for surely he was not exact (the coins
          were worth more than the Ma'aser he redeemed on them and
          its Chomesh).
<br>

<p>

sjt:
</p><p>
<font><b>2) REDEEMING 'MA'ASER SHENI' WITH A DEFICIENT COIN</b></font><b>
<br>OPINIONS:</b> The Mishnah (51b-52a) discusses how much a Sela coin may be deficient in silver (as a result of constantly being handled) and not constitute a problem of Ona'ah. The Mishnah concludes that 'one may give such a coin to Ma'aser Sheni and not worry.' When the Mishnah says that one may give such a coin to Ma'aser Sheni, does it refer specifically to a coin which is deficient more than Ona'ah, exactly Ona'ah, or less than Ona'ah?
</p><p>
(a) <b>TOSFOS</b> (DH Nosnah) says that the Mishnah refers to a coin which is deficient by the exact Shi'ur of Ona'ah.
</p><p>
When the Mishnah says that one may give such a coin to Ma'aser Sheni, it adds that a person who refuses to accept such a coin is considered a 'bad soul.' Why is this relevant to Ma'aser Sheni? The Torah states that the sanctity of Ma'aser Sheni may be redeemed only onto coins, and not onto other objects (see 54a). Since these coins are still normally accepted, one is allowed to redeem the Kedushah of Ma'aser Sheni onto these coins. The Gemara quotes Chizkiyah who explains that one is allowed to redeem the Ma'aser Sheni 'b'Toras Yafah' -- 'in a way that it is good.' According to Tosfos, Chizkiyah means that the coin is used for Ma'aser Sheni according to its actual value, and not for the value of an actual Sela. The <b>PNEI YEHOSHUA</b> understands that this is also the opinion of <b>RASHI</b> (DH Mai Ka'amar).
</p><p>
(b) The <b>RIVAN</b> (quoted by Tosfos) also understands that the Mishnah refers to a coin which is deficient by exactly the amount of Ona'ah, but he understands that the coin is used for Ma'aser Sheni as though it has the value of a regular coin.
</p><p>
The <b>RAMBAN</b>, <b>RASHBA</b>, and others have difficulty with this explanation. If the coin is lacking the Shi'ur of Ona'ah, why does the Mishnah say that a person who does not take such a coin is called a 'bad soul'? One is forbidden to keep such a deficient coin!
</p><p>
(c) Tosfos quotes the <b>RIVAM</b> who explains that the Mishnah refers to a coin which is only slightly deficient (less than Ona'ah). The Rivam says that this explanation is more accurate, because 'b'Toras Yafah' literally means that it is considered a good coin. Just as one normally redeems onto a good coin an amount of Ma'aser Sheni which is slightly less than the coin's total value, one may also act this way with a coin which is slightly deficient. This is also the opinion of the <b>ROSH</b>.
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(d) The <b>RAMBAN</b>, <b>RASHBA</b>, and others also understand that the Mishnah refers to a coin which is missing less than a Shi'ur of Ona'ah of its value, but they maintain (like the first explanation of Tosfos) that 'b'Toras Yafah' means that the coin is used for Ma'aser Sheni according to its actual value. (Y. Montrose)
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