# dafyomi

lvr: 43
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rather, it should say 'if someone makes a claim
                    against a judge and wins, that judge is
                    disqualified.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> They appended to the sign 'however, the Chacham
               of Yisrael says....
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	R. Bana'ah saw written 'every death is due to too much
          blood. Wine gives life to all who drink it.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Bana'ah:</font></b> You cannot say that one who fell from
               the roof or a tree died of too much blood! Also, if
               one is about to die, wine will not keep him alive!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rather, it should say 'every sickness is due to
                    too much blood. Wine (drunk properly) cures all
                    maladies'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> They appended to the sign 'however, the Chacham
               of Yisrael says....
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> In a place without wine, they must make
               medicines.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Version #1 (Rashbam):</font></b> The following three measures are
          the same: Anpak, Anvag, and Antil.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Each is a Revi'is.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Version #2 (Tosfos):</font></b> One should drink an Antil's worth
          of Anpak or Anvag (Aspargus) to be cured;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> An Antil is a Revi'is.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A CHAZAKAH FOR A GUTTERPIPE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	One does not get a Chazakah for a Marzev (a small pipe
          at the end of the large gutter pipe, if it drips water
          into his neighbor's Chatzer), but he gets a Chazakah for
          its place (this will be explained);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One gets a Chazakah for a Mazchilah (large gutter
               pipe).
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	One does not get a Chazakah for a Mitzri ladder (it is
          small, so people do not object);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One gets a Chazakah for a Tzuri ladder (which is
               big).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	One does not get a Chazakah for a Mitzri window (it is
          small, so people do not object);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One gets a Chazakah for a Tzuri window (which is
               big).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A Mitzri window is one which a person's head does
               not fit.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yehudah says, if it has a frame, even a small
               window gets a Chazakah.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What does it mean 'one does not get
          a Chazakah for a Marzev, but he gets a Chazakah for its
          place'?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah):</font></b> One does not get a Chazakah to
          leave it in its position, but he gets a Chazakah to have
          it at one of the ends of the Mazchilah on this side of
          the house (from either, the water falls into his
          neighbor's Chatzer).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (R. Chanina):</font></b> One does not get a Chazakah to
          leave it as long as it is (if it is longer than
          necessary, and occupies his neighbor's airspace); his
          neighbor can force him to shorten it. He gets a Chazakah
          to leave it in its position.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #3 (R. Yirmiyah bar Aba):</font></b> One does not get a
          Chazakah to prevent the owner of the Chatzer from
          building underneath it, but he gets a Chazakah to leave
          it in its position.
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CHAZAKAH FOR A GUTTERPIPE (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> One gets a Chazakah for a
          Mazchilah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We understand according to the first two opinions
               (the neighbor cannot ask him to alter the
               Mazchilah);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to R. Yirmiyah, why can't the neighbor
               build on his property under the Mazchilah?!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, it is a stone Mazchilah. Building
          underneath it might make it break.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Yehudah and R. Oshaya):</font></b> If Reuven's pipe drips
          water into Shimon's Chatzer, Reuven may not close it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like Reuven acquired the right to have water
               from his roof drip there, Shimon acquired the right
               to receive the water.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Chama):</font></b> Reuven may close it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	R. Bisa settled the issue, and said that he may not
          close it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Veha'Chut ha'Meshulash Lo vi'Mherah Yinasek' -
               R. Oshaya was the son of R. Chama, who was the son
               of R. Bisa. (After three generations of Chachamim,
               Torah will never cease from the family.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CHAZAKAH FOR LADDER AND WINDOWS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One does not get a Chazakah for a Mitzri
          ladder.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is considered a Miztri ladder?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (D'Vei R. Yanai):</font></b> It has less than four rungs.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One does not get a Chazakah for a Mitzri
          window...
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Why did the Mishnah explain what is a Mitzri
          window, but not what is a Mitzri ladder?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The Tana needed to explain the window in order
          to teach R. Yehudah's opinion.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(R. Zeira):</font></b> If Reuven's (Rashbam - Tzuri; R. Tam -
          Miztri) window is less than four Amos above the ground,
          he gets a Chazakah. The neighbor can protest (before
          Reuven gets a Chazakah);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is more than four Amos above the ground, he
               does not get a Chazakah, and the neighbor cannot
               protest.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(R. Ila'i):</font></b> Even if it is higher than four Amos, he
          does not get a Chazakah and the neighbor can protest.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Suggestion:</font></b> They argue about whether or not Kofin Al
          Midas Sedom (we force one to let another person benefit,
          if he himself will not lose). R. Zeira holds that we
          force, and R. Ila'i holds that we do not.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, all agree that Kofin Al Midas Sedom;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This case is different, for sometimes Reuven
               stands on a bench and sees through the window.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	David came in front of R. Ami (to request to build a
          window above four Amos, against his neighbor's protest).
          R. Ami sent him to R. Aba bar Mamal, and instructed R.
          Aba to forbid him, like R. Ila'i.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> A window made for light (surely, it is meant
          to be permanent) gets a Chazakah regardless of its size.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CHAZAKAH OF A LEDGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a ledge extending from Reuven's wall into
          Shimon's Chatzer is at least a Tefach, it gets a Chazakah
          (after three years), and he can protest (Shimon, within
          three years - Rashbam; Tosfos - and after three years,
          Reuven can protest to stop Shimon from using it. Rambam -
          it gets a Chazakah if Shimon does not protest
          immediately; Reuven can protest, i.e. to stop Shimon from
          building under it within 10 Tefachim.)
<br>
<br>

sjt:
<font><b>1) A WINDOW WHICH OPENS INTO A NEIGHBOR'S PROPERTY</b></font><b>
<br>QUESTION:</b> Rebbi Zeira states that a person is permitted to make a window in his wall that faces his neighbor's Chatzer, provided that he builds the window more than four Amos high, in which case he cannot peer out of it and cause Hezek Re'iyah to his neighbor. The Gemara says that the owner of the Chatzer is not entitled to stop the owner of the house from building the window, because of the principle of 'Kofin Al Midas Sedom' -- Beis Din forces a person not to act in the way that the people of Sedom acted. Since the owner of the Chatzer loses nothing by his neighbor having a window there, he cannot stop his neighbor from building the window. Rebbi Ila'a argues and says that the owner of the Chatzer <i>is</i> entitled to stop the owner of the house from making the window. The Gemara initially assumes that the reason why Rebbi Ila'a maintains that the owner of the Chatzer may prevent his neighbor from building the window is that he maintains 'Ein Kofin Al Midas Sedom' -- Beis Din may <i>not</i> force a person to allow others to benefit when he loses nothing as a result.
</p><p>
In what way is the window in the wall related to Midas Sedom? Midas Sedom applies to a situation in which others benefit from one person's property in a way that the owner of the property loses nothing. In such a case, it is possible that the owner may be entitled to stop the others from deriving benefit from his property even though it is not proper for him to do so. In contrast, in the case of the window, the person who makes the window derives <i>no</i> benefit from the property of the owner of the Chatzer. Why should the owner of the Chatzer be entitled to stop him from making the window, even if the Halachah is 'Ein Kofin Al Midos Sedom'? (<b>KETZOS HA'CHOSHEN</b> 154:1)
</p><p>
<b>ANSWER:</b> The <b>KETZOS HA'CHOSHEN</b> and <b>REBBI AKIVA EIGER</b> (Teshuvos 1:141) answer that the Gemara views the airspace of the Chatzer as the property of the owner of the Chatzer. If a person uses that airspace by looking out of a window through the Chatzer, or by receiving the air or light that comes through the Chatzer, it is considered a use of the Chatzer itself. This reasoning is expressed by the <b>RASHBA</b> earlier (17b).
</p><p>
<b>RAV SHACH</b> zt'l in <b>AVI EZRI</b> (Hilchos Shechenim 3:3) and the <b>BIRKAS AVRAHAM</b> ask how can airspace be considered <i>owned</i> by the owner of the Chatzer? If the air blows through the Chatzer, it does not become the property of the owner of the Chatzer. Beis Din certainly does not say that when air blows through the Chatzer into the window of the owner of the adjacent house, or when the light shines through the Chatzer into the window, that the air or light becomes the possession of the owner of the Chatzer.
</p><p>
Perhaps the Rashba and the Acharonim mean that deriving benefit from the fact that the Chatzer has open space is considered usage of the Chatzer, since this is the purpose for which the Chatzer was built. If not for the rule of 'Kofin Al Midos Sedom,' a person who did not build a Chatzer should not be able to derive benefit from the Chatzer that his neighbor built unless he receives permission from the owner of the Chatzer. That is why the Gemara needs the principle of 'Kofin Al Midos Sedom' in order to permit it.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>FOR WHICH WINDOWS DOES ONE GET A CHAZAKAH?</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'> 58b (Mishnah):</font></b> One does not get a Chazakah for a
               Mitzri window. One gets a Chazakah for a Tzuri
               window. A Mitzri window is one which a person's head
               does not fit.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, if it has a frame, even a small
               window gets a Chazakah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 59a (R. Zeira):</font></b> If Reuven's window is less than four
               Amos above the ground, he gets a Chazakah. The
               neighbor can protest (before Reuven gets a 
               Chazakah). If it is more than four Amos above the
               ground, he does not get a Chazakah, and the neighbor
               cannot protest.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (R. Ila'i):</font></b> Even if it is higher than four Amos, he
               does not get a Chazakah and the neighbor can
               protest.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Suggestion:</font></b> They argue about whether or not Kofin Al
               Midas Sedom (we force one to let another person
               benefit, if he himself will not lose). R. Zeira
               holds that we force, and R. Ila'i holds that we do
               not.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rejection:</font></b> No, all agree that Kofin Al Midas Sedom.
               Here is different, for sometimes Reuven stands on a
               bench and sees through the window.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> David came in front of R. Ami (to request to build a
               window above four Amos, against his neighbor's
               protest). R. Ami sent him to R. Aba bar Mamal, and
               instructed R. Aba to forbid him, like R. Ila'i.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Shmuel):</font></b> A window made for light (surely, it is
               meant to be permanent) gets a Chazakah regardless of
               its size.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 59b (Mishnah):</font></b> Reuven may not open a window into a
               jointly owned Chatzer.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Beraisa):</font></b> A case occurred in which Reuven opened a
               window into a joint Chatzer. R. Yishmael b'Rebbi
               Yosi said that he has a Chazakah. R. Chiya ordered
               him to close the window.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Rav Nachman):</font></b> If Shimon built a wall blocking light
               from entering Levi's window, Shimon is immediately
               Muchzak. If Levi was truly Muchzak in his window, he
               would never allow someone to block it.
<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 (3:73,75):</font></b> The Halachah follows R.
               Ila'i and R. Chiya.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> The Rashbam explains that R. Zeira and R.
               Ila'i discuss a Tzuri window. The Gemara connotes
               like this. The Mishnah taught that a Tzuri window
               has a Chazakah, and they qualify when this is true.
               The Gemara did not say 'we learned only...' because
               this would imply that R. Zeira's primary Chidush is
               that above four Amos, he has no Chazakah. This is
               not true. His primary Chidush is that above four
               Amos, one cannot protest. R. Ila'i argues about
               this. R. Tam says that they discuss a Mitzri window.
               A Tzuri window is fixed, and even above four Amos it
               he has a Chazakah, even if it is not for light. Even
               though one cannot fit his head in a Mitzri window,
               when he passes by he sees what his neighbor does in
               the Chatzer, and there is Hezek Re'iyah (loss of
               privacy). R. Tam brought a proof from the Mishnah
               that says that a window above four Amos has a
               Chazakah. This is no proof. It discusses a window in
               an Aliyah (upper story), or when a document says
               that the window is for light. Also R. Yosef says
               that they discuss a Mitzri window. R. Yonah proves
               this, for right after this, the Gemara brings
               Shmuel's law that a window made for light, of any
               size, gets a Chazakah. If R. Zeira discussed a
               Mitzri window, Shmuel's law, which discusses a
               Mitzri window, should have been brought beforehand!
               Also, before R. Zeira, the Gemara discusses why the
               Mishnah defines a Mitzri window. If R. Zeira
               discussed a Mitzri window, the Gemara should have
               cited this from the Mishnah before R. Zeira's
               Halachah!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Shechenim 7:5):</font></b> If Reuven wants to
               open a window to Shimon's Chatzer, be it big or
               small, above or below, Shimon can stop him. He can
               say 'you will harm me through seeing. Even if it is
               high, you will climb on a ladder and look.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (6):</font></b> If Reuven opened a window to Shimon's
               Chatzer and Shimon pardoned this, Reuven has a
               Chazakah for the window. Shimon cannot later demand
               that he close it. What is the law of the window he
               wants to open? If a person's head fits inside, or it
               was less than four Amos (above the ground) even if
               one's head does not fit inside, Shimon may not build
               opposite it or to the side, unless he distances four
               Amos.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> I do not agree to the
                    Rambam or his Rebbi about this. The Gemara
                    distinguished between a Chazakah above and
                    below four Amos only for a Tzuri window. There
                    is never a Chazakah for a Mitzri window! All my
                    Rebbeyim agreed.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (7):</font></b> If one's head does not fit inside and it
               is more than four Amos (above the ground), Shimon
               may build opposite it or to the side. He can say 'I
               allowed you to build it only because it is small and
               high. I did not grant you a Chazakah to forbid me to
               build near it.' This is when he opened it for use or
               air. If he opened it for light even if it is very
               small and high, since Shimon did not protest, Reuven
               has a Chazakah. Shimon may not build opposite it or
               to the side, unless he distances four Amos, lest he
               dark Reuven's house. He pardoned to him regarding
               light. Similarly, if Levi had a Chazakah for a
               window, and David built opposite it or to the side,
               or sealed the window, and Levi was quiet, he cannot
               later demand to open the window or distance the
               building. Since he was silent, he pardoned. If one's
               light is removed, he is not silent unless he
               pardoned.
<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 154:6):</font></b> If Reuven wants to open a
               window to Shimon's Chatzer, be it big or small,
               above or below, Shimon can stop him. He can say 'you
               will harm me through seeing. Even if it is high, you
               will climb on a ladder and look.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Mi):</font></b> R. Yonah and the Rosh agree
                    with R. Tam. It seems that the Rambam agrees.
                    The Nimukei Yosef says that R. Tam says that
                    the Rashbam later retracted. The Rashba says
                    that the custom is to rely on R. Tam.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH ul'Divrei):</font></b> R. Zeira and R.
                    Ila'i argue about a small window below four
                    Amos. Even though there is no Hezek Re'iyah, he
                    can say 'I do not want you to get a Chazakah
                    against me.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (10):</font></b> If he wants to open a window
               such that a person's head fits inside, or it was
               lower than four Amos even if one's head does not fit
               inside, Shimon may not build opposite it or to the
               side, unless he distances four Amos, like we will
               explain (Sa'if 21). If one's head does not fit
               inside and it is higher than four Amos, Shimon may
               build opposite it or to the side. He can say 'I
               allowed you to build it only because it is small and
               high. I did not grant you a Chazakah to forbid me to
               build near it.' This is when he opened it for use or
               air. If he opened it for light, even if it is very
               small and high, since Shimon did not protest, Reuven
               has a Chazakah. Shimon may not build opposite it or
               to the side, unless he distances four Amos, lest he
               make it dark for Reuven. He pardoned to him
               regarding light.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav Nimukei):</font></b> The Nimukei
                    Yosef says that it has a Chazakah only if it
                    has Tzuras ha'Pesach (sticks on both sides, and
                    one on top) or a frame. If not, it is like an
                    opening made by mice, and it has no Chazakah,
                    even for light. I say that he learned this from
                    a Tosefta in which R. Meir requires this. Our
                    Stam Mishnah is R. Meir. Perhaps the Rif,
                    Rambam and Rosh did not write this because a
                    Stam window has Tzuras ha'Pesach or a frame.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bedek ha'Bayis:</font></b> R. Tam says that if it is for
                    light, there is no Shi'ur, even if it is less
                    than a Tefach. It seems that the Rambam agrees.
                    This connotes that it does not need Tzuras
                    ha'Pesach or a frame, for normally one does not
                    make them for a window smaller than a Tefach.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH v'Chen):</font></b> The Rashbam explains
                    that since it is a constant matter, for one
                    needs light every day, Shimon should have
                    protested. Since he did not, we can say that
                    Reuven had permission. The Nimukei Yosef
                    connotes that it must have Tzuras ha'Pesach or
                    a frame. The Rambam disagrees.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Beis Yosef (DH v'Yesh and DH v'Zeh):</font></b> The Ba'al
                    ha'Itur (cited in Teshuvos Maimoniyos Mishpatim
                    71) proves from the Yerushalmi (which equates
                    this law to Tum'ah) that it must be at least a
                    Tefach. The Ramban learns from the Yerushalmi
                    that the Shi'ur is the same as for Tum'ah, i.e.
                    the width of a drill, which equals the width of
                    the hole in a plow.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> The judge uses his judgment to determine if it
               was made for light. It depends on the kind of
               window.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Zeh):</font></b> The Ramban says that a
                    window made for light is wider on the inside
                    than the outside (also Teshuvos Maimoniyos
                    above says so), or the house needs light. The
                    Rambam connotes that it depends on the intent
                    of the one who made the window.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH Kosav, citing the Rashba
                    (3:182)):</font></b> A window made for light is one that
                    illuminates a dark place. The custom is that
                    one may stop a neighbor from building near any
                    window that light comes through, even if there
                    are other such windows. It depends on what Beis
                    Din decides.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>CAN ONE GET A CHAZAKAH FOR HEZEK RE'IYAH? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is less than a Tefach, it does not get a
               Chazakah, and he cannot protest.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - R. Asi):</font></b> If Reuven got a Chazakah for a
          Tefach, this is a Chazakah for four.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What does this mean?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> If Reuven got a Chazakah for a ledge a
          Tefach wide for the length of at least four Tefachim,
          this is a Chazakah to widen the ledge to four Tefachim.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If it is less than a Tefach, it does not get
          a Chazakah, and he cannot protest.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> This means that Reuven (who extended a
          ledge from his roof) cannot protest if Shimon wants to
          hang things from it (because this does not damage Reuven.
          Shimon cannot see Reuven when he uses it. Reuven does not
          lose use of the area, for Shimon could demand that Reuven
          remove the ledge at any time). Shimon can protest against
          Reuven (extending or using a ledge, for he sees Shimon
          then).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> Also Shimon cannot protest.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Suggestion:</font></b> They argue about whether loss of privacy is
          considered damage.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, all agree that it is considered damage;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Yehudah says that Reuven can say 'it is
               useful only for hanging things. I will look the
               other way!'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Huna says, Shimon can object 'you could
               always look and claim that you were afraid of
               falling.'
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>OPENING INTO A JOINTLY OWNED CHATZER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Reuven may not open a window to (facing) a
          jointly owned Chatzer;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he bought a house in another Chatzer, he may not
          make an entrance to the (joint) Chatzer;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If he built a second story onto his house, he may not
          make an entrance to the Chatzer;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He may add an interior room or a second story
               onto his house, and make the entrance to his house.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why does the Reisha discuss a
          jointly owned Chatzer? The same applies to a private
          Chatzer!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah teaches a bigger Chidush. He may
          not open not only to a private Chatzer, but even to a
          Chatzer in which he is a partner;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that he can tell them
               'even without the window you do not have privacy';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Mishnah teaches that this is not so. The
               window decreases their privacy even in their houses.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A case occurred in which Reuven opened a
          window to a joint Chatzer.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yishmael b'Rebbi Yosi:</font></b> This makes a Chazakah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Chiya:</font></b> You must close the window (if they
               object, since you do not yet have three years of
               Chazakah).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If Shimon built a wall blocking light
          from entering Levi's window (even if the window was there
          for three years), Shimon is immediately Muchzak;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Levi was truly Muchzak in his window, he would
               never allow someone to block it.
<br>

<p>

sjt:
</p><p>
<font><b>2) THE TIME NEEDED FOR MAKING A CHAZAKAH ON THE USAGE OF SOMEONE'S PROPERTY</b></font><b>
<br>OPINIONS:</b> The Beraisa discusses a case in which a person builds windows into his wall that open into the Chatzer of his neighbor. Rebbi Yishmael rules that the owner of the windows has a Chazakah if his neighbor is silent and does not protest immediately. Rebbi Chiya argues and says that a person cannot make a Chazakah by doing an act that could inconvenience someone else, even if the other person does not protest immediately. The <b>RASHBAM</b> explains that Rebbi Chiya requires a Chazakah of three years in order to support the claim of the Machzik that he received permission to make windows that open into his neighbor's property.
</p><p>
The Halachah follows the view of Rebbi Chiya. Accordingly, it seems that just as a Chazakah which proves the ownership of property requires three years of occupancy on the property, a Chazakah for <i>using</i> another person's property requires three years of usage. However, the Gemara earlier (6b) teaches that if a person rests his beams on his neighbor's wall for thirty days, he makes a Chazakah for using his neighbor's wall in such a way. The Gemara there continues and says that if the beams support the Sechach of his Sukah, then even after seven days he has a Chazakah. The Gemara there clearly implies that it is <i>not</i> necessary to have three years of usage in order to make a Chazakah. What is the difference between these Halachos?
</p><p>
(a) Although the <b>RASHBAM</b> here writes that three years are necessary in order to make this Chazakah, the Rashbam earlier (6a) writes (in a Hagahah in Rashi) that the Chazakah for using another person's property takes effect immediately. The <b>TUR</b> (CM 153) explains that the Rashbam maintains that when one gives permission to someone else to use his property for small forms of usage, it is not the practice to write a Shtar. Therefore, the Chazakah takes effect immediately if the owner does not protest, and the person using the property is believed to claim that he bought the rights to use the property for that purpose. In contrast, it <i>is</i> the practice to write a Shtar for <i>large</i> forms of usage, such as those mentioned in the Mishnah. Therefore, the Machzik may claim that he bought the rights to that usage only after he has used the property for three years; within three years the owner can demand to see the Shtar (see also Insights to 57a).
</p><p>
(b) The <b>BA'AL HA'ME'OR</b> maintains that three years are required to make any type of Chazakah, even a Chazakah of usage of another person's property. He explains that the Gemara earlier (6b) means that a person must use the property for thirty days <i>in addition</i> to three years.
</p><p>
Alternatively, the Gemara there is not discussing an actual Chazakah, but rather it is discussing the question of when the usage of a wall is considered proof that a person paid his share in building the wall, as <b>RABEINU TAM</b> explains (cited by Tosfos 6b, DH Hai). This is also the opinion of <b>TOSFOS</b> earlier (23a, DH v'Ha) and the <b>ROSH</b> there. (The <b>RIVAM</b> cited by Tosfos adds that it is not necessary for one to present any claim after he uses someone else's property for three years. The other Rishonim, however, do not accept this opinion. They require that the person present a claim (for example, that he bought the rights to use the property, or that the owner allowed him the usage of the property).)
</p><p>
(c) The <b>GE'ONIM</b> cited by the <b>RAMBAN</b> (Milchamos to 6a, and in Chidushei ha'Ramban to 57a and 59b) explain that the Chazakah for using someone else's property does not require three years (as the Gemara earlier (6b) implies). Even though Rebbi Chiya rules that the Chazakah is not immediate, he does not say that three years are necessary. Rather, as soon as the usage has been continued long enough that it would be expected for the owner to protest, the Machzik has made a Chazakah. In the case of the beam (6b), using the neighbor's wall for thirty days proves that he has permission to use the wall.
</p><p>
The Ge'onim add that it is not necessary to present a claim of purchase or a claim of Mechilah, in contrast to the opinion of the Rashbam. According to the Ge'onim, the Chazakah of usage inherently differs from a Chazakah of ownership. A person is more willing to be Mochel <i>usage</i> of his object than to be Mochel <i>ownership</i> of his object. The Chazakah required to <i>use</i> a person's object is necessary to prove that the owner presumably was Mochel since he owner did not complain. Therefore, the Machzik is not expected to have a Shtar, and he does not need three years for his Chazakah.
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>INCREASING TRAFFIC IN THE CHATZER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he bought a house in another Chatzer, he
          may not make an entrance to the joint Chatzer.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> This would cause more people (i.e. those of the
          other Chatzer, who now have a shorter path) to walk
          through the joint Chatzer.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Seifa):</font></b> He may add an interior room or a
          second story onto his house, and make the entrance to his
          house.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This will cause more people (tenants in the added
               room) to walk through the joint Chatzer!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Huna):</font></b> He did not build onto his house, he
          merely split an existing room into two (an inner and
          outer room, or he built a ceiling at half the height of
          the room, splitting the room into a lower room and an
          upper story).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>OPENINGS THAT REDUCE PRIVACY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One may not open a door opposite a door in a
          joint Chatzer, nor a window opposite a window;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He may not make an opening larger, nor split it
               into two.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	One may open a door opposite a door across a Reshus
          ha'Rabim, or a window opposite a window;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He may make an opening larger, or split it into
               two.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is the source (of the first
          law)?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> 'Va'Yar Es Yisrael Shochen
          li'Shvatav' - Bilam saw that the openings of their tents
          do not face each other;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This shows that they are worthy for the Divine
               Presence to rest on them.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> He may not make an opening larger.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rami bar Chama):</font></b> This means, he may not enlarge an
          opening of four Amos to eight, for this would entitle him
          to a larger share of the Chatzer (when they will divide
          it, one gets an area (for unloading) for each opening,
          (no less than four Amos, up to) the length of the
          opening), but he may enlarge an opening of two Amos to
          four (since in any case he gets four Amos for it).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> No. The partners in the Chatzer can
          say 'a larger opening decreases our privacy.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> He may not split it into two.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rami bar Chama):</font></b> This means, he may not split an
          opening of four Amos into two openings of two each, for
          this would entitle him to a larger share of the Chatzer,
          but he may split an opening of eight Amos into two
          openings of four each.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> Even though is forbidden. The
          partners in the Chatzer can say 'more openings decreases
          our privacy.'
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One may open a door opposite a door across a
          Reshus ha'Rabim, or a window opposite a window.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	This is because in any case they have no privacy, for
          people are always walking by.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DAMAGE TO THE RESHUS HA'RABIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One may not make a pit under a Reshus
          ha'Rabim;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Eliezer permits this, if the cover can support a
          wagon laden with rocks.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	One may not extend ledges or balconies into a Reshus
          ha'Rabim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He may recess his house from the Reshus ha'Rabim,
               and extend them up to the Reshus ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If one buys a Chatzer with ledges or balconies
          extending into the Reshus ha'Rabim, he has a Chazakah
          that these were built properly (according to the above
          law).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara):</font></b> The first Tana argues with R. Eliezer, for
          sometimes the cover will get weaker, and he (one who
          passes over) will not know (and it will collapse under
          him).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One may not extend ledges or balconies into
          a Reshus ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	R. Ami had a ledge extending into a Mavoy (alleyway).
          Ploni had a ledge extending into the Reshus ha'Rabim.
          People complained that Ploni's ledge was impeding them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Ami:</font></b> You must remove it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Ploni:</font></b> Also you have a ledge that juts out!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Ami:</font></b> My ledge extends into a Mavoy, and the
               people pardon it. Yours extends into a Reshus
               ha'Rabim. How will you get everyone's pardon?!
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	R. Yanai had a tree whose foliage hung over a Reshus
          ha'Rabim. Also Almoni had such a tree. People complained
          that Almoni's tree was impeding them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yanai told Almoni to return tomorrow. That
               night, R. Yanai cut his foliage.
<br>
<br>

sjt:
<font><b>1) ADDING ROOM IN A HOUSE</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that a person who lives in a jointly-owned Chatzer may not make additions to his house, but he may build a room within his house or an attic atop his house. The Gemara explains that he may build the room only by dividing a pre-existing room but not by adding an additional room. The attic, or upper story ('Aliyah'), may be built with an 'Apsa' (an apse). The <b>RASHBAM</b> explains that an Apsa refers to a small room on the side of a house with a roof lower than the roof of the rest of the house. His source is the Mishnah later (61a) which implies that an Apsa is a 'Yatzi'a,' a side-room. How, though, is this related to an upper story? The Rashbam explains that when the Mishnah says that one may build an upper story on his house, it refers back to the previous sentence which says that one may build an additional room by dividing a pre-existing room into two (with a vertical partition). The Mishnah means that after he divides a room into two, he may divide the additional room (that he has just made) with a horizontal partition, thus making a two-story Apsa.
</p><p>
Why does the Rashbam explain that the person divides only the back room? He should be permitted to make a second story with the entire house! The Rashbam apparently derives this from the Gemara which explains that the Aliyah is over the Apsa, but not over the entire house. The question, however, may be asked on the Gemara: why does the Gemara itself allow only a division over the Apsa? (<b>MAHARSHA</b>, <b>RASHASH</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>YISHUV DA'AS</b> (of Rav Chaim Kanievsky shlit'a, in <b>KOVETZ MEFARSHEI MAHARSHA</b>) explains that it is true that the Halachah of the Mishnah applies even if the person divides the height of his entire house. However, a person does not normally lower the ceiling of his living quarters, because the ceiling was not built higher than necessary in the first place. A person divides only the ceiling of the extra room that he built for guests (which is considered temporary quarters) and which can be used even with a lower ceiling.
</p><p>
The <b>ARUCH</b> (Erech 'Apsa') and the <b>RASHBA</b> explain that when the Gemara mentions 'Apsa,' it <i>does</i> refer to a second story (a normal Aliyah). This is also the meaning of the word 'Apsa' as mentioned later (61a; see <b>RABEINU GERSHOM</b> there).
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>PLASTERING ONE'S HOUSE</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one buys a Chatzer with ledges
               extending into the Reshus ha'Rabim, he has a
               Chazakah that these were built properly.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Huna):</font></b> If the ledges fell, he may rebuild them.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Beraisa #1):</font></b> Nowadays (after the Churban),
               we may not plaster, do Kiyur or Piyu'ach (apply very
               white plaster, or pictures) or make pictures on the
               walls. If one bought a plastered or pictured
               Chatzer, he may keep it that way. If it fell, he may
               not rebuild it like it was.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> That is an Isur; it is different.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Beraisa #2):</font></b> One may not plaster his house. If he
               mixed in sand or straw, it is permitted.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> R. Yehudah says, if he mixed in sand, this is
               Trachsid (cement), and it is forbidden. If he mixed
               in straw, it is permitted.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Beraisa #3):</font></b> After the Churban, many Perushim
               (pious people) abstained from meat and wine. R.
               Yehoshua dissuaded them.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> R. Yehoshua:</font></b> We must mourn, but we should not mourn
               too much. 'Ba'Me'erah... Kove'im ha'Goy Kulo' - we
               do not make decrees that the congregation cannot
               endure. Chachamim said that one may plaster his
               house, but he leaves a small amount unplastered.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Yosef):</font></b> He leaves a square Amah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Rav Chisda):</font></b> He leaves it opposite the
                    entrance.
<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 (Ta'anis 10b and 4:36) bring from
               our Gemara the obligation to leave an Amah without
               plaster.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Ta'anis 5:12):</font></b> After the Churban,
               Chachamim of that generation decreed never to build
               a plastered building with pictures on the walls like
               kings build. Rather, he plasters his house, but he
               leaves unplastered a square Amah opposite the
               entrance.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Tur OC 560):</font></b> R. Yehudah taught that
                    if he mixed in sand, this is cement, and it is
                    forbidden. If he mixed in straw, it is 
                    permitted. We conclude that any plaster is
                    permitted, as long as he leaves a square Amah
                    unplastered opposite the entrance!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Beis Yosef DH v'Tamahni):</font></b> Beraisa #3 is
                    not the conclusion of the Sugya. It is an
                    independent Beraisa! Even if you will say that
                    it argues with Beraisa #3, perhaps the Halachah
                    follows Beraisa #2. The fact that Beraisa #3
                    was brought last does not mandate that the
                    Halachah follows it. Also, perhaps the Beraisos
                    do not argue. Beraisa #2 discusses a Heter
                    through mixing in sand or straw, and Beraisa #3
                    discusses a Heter through leaving a place
                    without plaster! According to the Tur, which
                    plaster is like kings use and the Rambam
                    forbids it, and which does the Rambam permit
                    for one's house? Rather, the Rambam does not
                    distinguish between kinds of plaster. Beraisa
                    #1 forbids pictures made on plaster. Without
                    plaster, they are not beautiful, and it is
                    permitted. Alternatively, commoners put mud,
                    and then plaster. Kings use only plaster. The
                    Rambam says 'one may <i>never</i> build... like
                    kings build', for there is no Heter for this,
                    even through leaving a remnant. He holds that
                    Beraisos 2 and 3 discuss Heterim through mixing
                    in sand or straw, and leaving a remnant. In the
                    Tur's text of the Rambam, the Rambam rules like
                    R. Yehudah. In our text, he rules like
                    Chachamim, and he did not need to mention sand
                    or straw, for cement is always permitted! The
                    Rif and Rosh omitted Beraisa #1. Perhaps they
                    hold that since normal plaster requires a
                    remnant, surely plaster like kings is forbidden
                    even with a remnant! Or they hold that a
                    remnant permits even this. The Ran (10b DH
                    Garsinan) brings Beraisa #1, and connotes that
                    the Rif rules like it, like my first
                    explanation. Also the Ramban brings it.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Taz (560:1):</font></b> The Tur holds that the three
                    Beraisos do not argue. The Rambam explains that
                    Beraisa #1 forbids plaster, unless there is mud
                    underneath. People will know that there is mud
                    underneath only if he leaves a remnant. A
                    remnant without mud does not permit, for people
                    will think that he will finish it later. The
                    Tur argues, for just like Beraisa #2 gives a
                    Heter without mud, also Beraisa #3! Rather,
                    Beraisa #1 forbids plastering the entire house.
                    It does not discuss Heterim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (ibid):</font></b> If one bought a plastered or pictured
               Chatzer, it has its Chazakah. He need not peel the
               plaster off the walls.
<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 560:1):</font></b> After the Churban,
               Chachamim of that general decreed not to build a
               plastered building with pictures on the walls like
               kings build. Rather, he plasters his house, but he
               leaves unplastered a square Amah opposite the
               entrance.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magen Avraham (3):</font></b> Some people make the square
                    Amah black. This is improper. Also this is a
                    picture! Those who hang embroidered garments
                    around the walls should leave a remnant of a
                    square Amah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishnah Berurah (3):</font></b> The remnant should be
                    visible immediately when one enters. Some put
                    it above the door opening, and one who enters
                    does not see it. Perhaps this is so the Ba'al
                    ha'Bayis, who sits near the wall opposite the
                    opening, will always see it. Some make the
                    square black and write on it 'a remembrance of
                    the Churban.'
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kaf ha'Chayim (8):</font></b> Blackening an Amah is
                    improper. This beautifies the house! It does
                    not help to write on it 'Zecher l'Churban.'
                    Perhaps only black paint is forbidden, but one
                    may simply blacken it.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Kaf ha'Chayim (10):</font></b> Mishbetzos Zahav requires
                    that the remnant be square. He says that it is
                    <i>near</i> the doorway. Sha'arei Teshuvah says that
                    it is opposite the doorway. People have become
                    very lenient. This law is almost forgotten;
                    there is no justification for this. Every house
                    that fulfills this will last forever, and also
                    those who live in it
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Mishnah Berurah (1):</font></b> The custom is like the
                    Tur, that leaving a remnant of a square Amah
                    permits even if there is no mud.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Mishnah Berurah (2):</font></b> If sand was mixed with the
                    plaster, this permits through a remnant of a
                    square Amah. Some say that it permits without a
                    remnant. Nowadays people do not leave a
                    remnant. Perhaps they rely on the latter
                    opinion. However, people use pure plaster
                    (without sand)! Perhaps our plaster is
                    permitted because it is not so white. This is
                    difficult. What do people rely on? If one used
                    only mud, all agree that no remnant is needed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If one bought a plastered or
               pictured Chatzer, it has its Chazakah. He need not
               peel the plaster off the walls.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (1):</font></b> The Beis Yosef says that the Rambam
                    did not need to teach that if one bought a
                    plastered or pictured Chatzer, and it fell, he
                    may not rebuild it, for this is obvious. This
                    is astounding. The Tana held that it must be
                    taught! The Gemara challenged another opinion
                    from this clause! Rather, the Rambam's final
                    words ('it has its Chazakah. He need not peel
                    off the plaster') are redundant, i.e. to teach
                    that he is exempt only from the toil of peeling
                    off the plaster, but if it fell, he may not
                    plaster it again. The Tur did not bring the
                    Heter of one who bought a plastered Chatzer,
                    for the Chazakah is that one may assume that it
                    was built b'Heter before the Churban. The Tur
                    brings only laws that often apply nowadays; the
                    Rambam brings even what does not apply
                    nowadays.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magen Avraham (4):</font></b> One may assume that it was
                    built b'Heter, i.e. before the Churban or
                    through Nochrim. If one knows that it was built
                    b'Isur, he must peel it off.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kaf ha'Chayim (2):</font></b> One may totally plaster a
                    Beis ha'Keneses or Beis Medrash. It seems that
                    the same applies to a Sukah during Sukos. If he
                    sits in it at other times, he should be
                    stringent.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Kaf ha'Chayim (5):</font></b> Some say that one must leave
                    a remnant in every room. Others exempt; one who
                    is stringent need not leave a full Amah.<p>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Yanai (the next day):</font></b> You must cut the
               foliage.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Almoni:</font></b> Also you have such a tree!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> R. Yanai:</font></b> If mine is cut, also you must cut
               yours.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Originally, R. Yanai did not cut his tree.
          Why did he change his mind?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> At first, he thought that people preferred the
          shade. When he heard that it impedes people, he cut it.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't he tell Almoni immediately to cut
          his tree?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> This was due to Reish Lakish's teaching;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Reish Lakish):</font></b> 'Hiskosheshu va'Koshu' - first
               fix yourself, then correct others.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>ONE WHO RECESSED HIS HOUSE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> He may recess his house from the Reshus
          ha'Rabim, and extend (a ledge...)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> If he recessed his house and did not extend,
          may he extend it later?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #1 - Answer #1 (R. Yochanan):</font></b> He may.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Reish Lakish):</font></b> He may not.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #2 (R. Yakov):</font></b> All agree that he may extend.
          They argue whether he may return the walls (of his house)
          until the original border (between his property and the
          Reshus ha'Rabim).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (R. Yochanan):</font></b> He may not.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Reish Lakish):</font></b> He may.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan holds like Rav Yehudah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> One may not ruin a path in which
               the public was Machazik.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Reish Lakish says that this does not apply here,
               for there enough room for people will remain (like
               before he recessed).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one buys a Chatzer with ledges and
          balconies extending into the Reshus ha'Rabim, he has a
          Chazakah that these were built properly.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> If the ledges fell, he may rebuild them.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Due to mourning over the Churban,
          we may not plaster, or make pictures on the walls;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one bought a plastered or pictured Chatzer, he
               may keep it that way. If it fell, he may not rebuild
               it like it was.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> That is an Isur; it is different. (The buyer
          must conduct like a mourner. A ledge is a monetary
          question. Since we assume that the seller recessed, the
          property belongs to the buyer).
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>MOURNING OVER THE CHURBAN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> One may not plaster his house. If he mixed
          in sand or straw, it is permitted.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yehudah says, if he mixed in sand, this is Trachsid
          (cement), and it is forbidden. If he mixed in straw, it
          is permitted.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> After the Churban, many Perushim (pious
          people) abstained from meat and wine.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yehoshua:</font></b> Why are you abstaining from meat and
               wine?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Perushim:</font></b> How can we eat them? They used to be
               offered on the Altar, and now they are not!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Yehoshua:</font></b> Nor should we eat bread! Also
               Menachos were offered, and now they are not!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Perushim:</font></b> Indeed, we will not eat bread! We will
               eat other Peros to survive.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> R. Yehoshua:</font></b> Nor should we eat fruits (of the
               seven species)! Bikurim were offered from them, and
               now they are not!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Perushim:</font></b> Indeed, we will not eat fruits of the
               seven species.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> R. Yehoshua:</font></b> Nor should we drink water! Water was
               offered on Sukos and now it is not!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> The Perushim had no answer.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	R. Yehoshua:</font></b> We must mourn, but we should not mourn too
          much;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Ba'Me'erah... Kove'im ha'Goy Kulo' - we do not
               make decrees that the congregation cannot endure.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	R. Yehoshua:</font></b> Chachamim said that one may plaster his
          house, but he leaves a small amount unplastered.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> How much must he leave?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rav Yosef):</font></b> He leaves a square Amah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> He leaves it opposite the entrance.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	One may make a lavish banquet, but he omits a small
          thing (that otherwise he would have served).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What does he omit?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rav Papa):</font></b> He omits fish fried in its oil
               with flour.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	A woman may apply all her cosmetics, but she omits
          something small.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What does she omit?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rav):</font></b> She does not apply plaster to her
               temples (to make the hair fall out - Rashbam; Rambam
               - she omits one ornament).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What does 'Im Eshkachech Yerushalayim... Al
          Rosh Simchasi' refer to?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (R. Yitzchak):</font></b> A Chasan puts ashes on his head.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> Where on the head does he put
          them?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> He puts them in the place where Tefilin
          are worn - 'Pe'er Tachas Efer.'
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	Everyone who mourns over Yerushalayim will merit to see
          its Simchah - 'Simchu Es Yerushalayim... Kol
          ha'Mis'abelim Aleha.'
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Beraisa - R. Yishmael ben Elisha):</font></b> After the Churban,
          we should have decreed not to eat meat and wine, but we
          do not make decrees that the congregation cannot endure;
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	Romi seized power, and makes evil harsh decrees against
          us, impeding our Torah and Mitzvos. They do not let us go
          to circumcisions (some say - Yeshu'a ha'Ben (Aruch -
          redemption of a firstborn));
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	Due to this, we should have decreed not to marry or
          have children, but then the seed of Avraham would die
          out;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It is better that Yisraelim not realize that it
               is improper to marry and have children, than that
               they should know and intentionally transgress.
<br>

sjt:
</p><p>


<font><b>2) MOVING ONE'S WALL AWAY FROM 'RESHUS HA'RABIM'</b></font><b>
<br>QUESTION:</b> Rebbi Yochanan rules that if a person's wall was adjacent to Reshus ha'Rabim and he moved it away from Reshus ha'Rabim into his own property, he may not move it back to its original location. Rebbi Yochanan reasons that the public has already attained the right to walk through that area, and, consequently, it has become public property. However, he <i>is</i> allowed to extend protrusions ('Zizim') from his wall into the area on which the wall used to stand. The Gemara implies that even if he did not build these Zizim originally, he is allowed to add them even after the public has started walking over that area.
</p><p>
If the public already attained the right to the area by walking through it, why is the owner permitted to extend Zizim from the wall into the public property? (<b>KOVETZ SHI'URIM</b>)
</p><p>
<b>ANSWER:</b> The <b>KOVETZ SHI'URIM</b> answers that when a person withdraws his wall into his own property, his act is akin to making a declaration that the public may acquire only what he wants to offer to them. It is assumed that the person was offering the public only the right to walk in that area, but not the right to prevent him from extending his Zizim into that area. (It seems that one is permitted to add protrusions only above the height of a walking person, so that those who walk in that area will not be impeded by the Zizim.)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT IS INCLUDED IN A HOUSE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one sells a house, the following are not
          included:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Yatzi'a (a type of room), even if it opens into
               the house;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> An inner room (for storing valuables);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The roof, if it has a Ma'akeh (protective
               railing) 10 Tefachim tall around it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yehudah says, if the Ma'akeh has a doorframe,
               even if it is not 10 Tefachim, it is not included.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is a Yatzi'a?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Chachamim of Bavel):</font></b> It is a lean-to (a low
          house next to or in back of a house).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rav Yosef):</font></b> It is a lean-to with many
          windows.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	The first opinion agrees that if it has windows, (all
          the more so) it is not sold (since it is for beauty, it
          is not primarily for dwelling);
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	The second opinion says that if it has no windows, it
          is sold (since it is for dwelling).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> Yatzi'a, Tzela and Tei (the names of
          chamber rooms surrounding the Heichal) are all the same;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It says 'ha'Yatzi'a ha'Tachtonah Chamesh
               ba'Amah...', 'veha'Tzela'os Tzela Al Tzela...' and
               'veha'Ta Kaneh Echad Orech...'.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mar Zutra):</font></b> The Yatzi'a is excluded only if it is at
          least four Amos.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Ravina - Mishnah):</font></b> A pit or cistern is not
          included, even if he wrote (that he sells) 'the depth and
          height';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Will you say that if they are less than four
               Amos, they are included?!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Mar Zutra):</font></b> Those are different, for they do
          not serve the same purpose as a house;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Yatzi'a is for dwelling. If it is large, it is
               important by itself, so it is not included with the
               house;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it is small, it is not important by itself,
               and it is included.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> An inner room (for storing valuables).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> If the Yatzi'a is not included (even though
          it is for dwelling), there is no need to teach about the
          inner room!
<br>
<br>

sjt:
<font><b>1) IS THE ATTIC INCLUDED IN THE SALE OF A HOUSE?</b></font><b>
<br>OPINIONS:</b> The Mishnah discusses various parts of a house which are not automatically included in the sale of a house, such as the antechamber and the storage room. The roof of the house is the subject of a Machlokes between the Tana Kama and Rebbi Yehudah. The Tana Kama maintains that the roof is not included in the sale when it has a railing ten Tefachim high. Rebbi Yehudah maintains that even if it does not have a railing ten Tefachim high, it is not included in the sale if it has a Tzuras ha'Pesach.
</p><p>
What is the law with regard to an attic? Is an attic included in the sale of a house?
</p><p>
(a) The <b>TOSFOS YOM TOV</b> writes that the answer to this question is an explicit Mishnah in Nedarim (56a). The Mishnah there records a Machlokes between Rebbi Meir and the Chachamim, who argue about the law in the case of one who makes a Neder not to benefit from any houses. According to Rebbi Meir, one who makes such a Neder <i>may</i> benefit from the attic of a house. The Chachamim rule that he may <i>not</i> benefit from the attic of a house, 'because an attic is called a 'house'.' Since the Halachah always follows the view of the Chachamim when they argue with Rebbi Meir, the Halachah in this case follows the Chachamim. Hence, one who sells a house automatically sells the attic as well.
</p><p>
The Tosfos Yom Tov writes that he does not know the basis for the opinion quoted by the <b>TUR</b> (CM 214) that says that the attic is <i>not</i> included in the sale of a house.
</p><p>
(b) The <b>RASHASH</b> writes that he does not understand the Tosfos Yom Tov. The <b>RIF</b> and <b>RAMBAM</b> discuss the Halachah that the attic is part of the house. They stipulate that the attic is part of the house only when the attic is connected to the house by way of a skylight, but not if it has a separate entrance.
</p><p>
The Rashash asks further that the Tosfos Yom Tov's proof from the Mishnah in Nedarim is problematic. The Mishnah there says that an attic is considered part of a house only with regard to one who makes who a Neder not to benefit from houses. This does not mean that an attic is included in the <i>sale</i> of a house. Perhaps an attic has independent significance and is considered a separate house, and it is not included in the sale of the lower section of the house.
</p><p>
The <b>CHIDUSHEI MAHARI'ACH</b> gives a similar argument against the Tosfos Yom Tov's ruling. He explains that the Gemara in Nedarim explains that if one person says to another person that he will sell him a house, he may give him an attic since an attic is called a house. If the seller may give the buyer an attic as a 'house,' why should someone who sells a house be obligated to give both the house and the attic? He should be obligated to give only the attic! It must be that the attic is not included in such a sale. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHICH ROOMS ARE INCLUDED IN THE SALE OF A HOUSE?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one sells a house, the following are
               excluded: a Yatzi'a (a type of room), even if it
               opens into the house; an inner (storage) room...
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Chachamim of Bavel):</font></b> A Yatzi'a is an Ofta (this
               will be explained).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Yosef):</font></b> It is Bodka Chalila (a lean-to, i.e. a
               low house next to or in back of a house with many
               windows).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> The first opinion agrees that if it has windows,
               (all the more so) it is not sold. The second opinion
               says that if it has no windows, it is sold.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav Yosef):</font></b> Yatzi'a, Tzela and Tei (chambers
               surrounding the Heichal) are all the same. It says
               'ha'Yatzi'a ha'Tachtonah Chamesh ba'Amah...',
               'veha'Tzela'os Tzela Al Tzela...' and 'veha'Ta Kaneh
               Echad Orech...'
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'>(Mar Zutra):</font></b> The Yatzi'a is excluded only if it is at
               least four Amos.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question (Ravina - Mishnah):</font></b> A pit or cistern is not
               included, even if he wrote (that he sells) 'the
               depth and height';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Are they are included if they are less than
                    four Amos?!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer (Mar Zutra):</font></b> Those do not serve the same
               purpose as a house. A Yatzi'a is for dwelling. If it
               is large, it is important by itself, so it is not
               included with the house If it is small, it is not
               important by itself, and it is included.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Mishnah):</font></b> An inner room (for storing valuables).
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question:</font></b> If the Yatzi'a is not included (even
               though it is for dwelling), there is no need to
               teach about the inner room!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer:</font></b> It teaches that even if the seller
               delineated boundaries that include the room, it is
               not included.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> 65b (Beraisa):</font></b> If one sells a house, he sells the
               door, latch... but not the key; a mortar affixed to
               the wall, funnel, Tanur, Kirayim or millstone.
<br>        <b>  <b><font color='darkgreen'>13. </font></b></b> If he said 'the house and everything inside', all
               these are included;
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b> In any case, he did not include a pit, cistern or
               Yatzi'a.
<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> An Ofta is an attic over a house. It has no
               opening to the outside. Its only opening is a hole
               in the roof of the house, which is its floor. People
               enter and leave through it. It is not for dwelling.
               This is why one may build it without consent of
               members of the Chatzer, for it does not lead to
               increased traffic. Rav Yosef excludes a room outside
               the wall of the house, like the cells around the
               Heichal. Some make it in the thickness of the wall.
               The Sugya is like Rav Yosef.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (61a DH Mai, citing the Rashba):</font></b> On 65b, a
                    Beraisa excludes only a Yatzi'a. If he did not
                    delineate the outer borders, even a room is
                    excluded! If he delineates the borders, even a
                    Yatzi'a is included! We must say like the Rif,
                    that a Yatzi'a is an attic. Therefore, the
                    borders do not indicate whether or not he
                    included it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 25:1):</font></b> One who sold his
               house did not sell the Yatzi'a around it, even if it
               opens to the house, i.e. if the Yatzi'a is four Amos
               or more. If it is less, it is included in the house.
               Similarly, an Aliyah that opens to the house through
               a hole in the roof is included with the house.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (2):</font></b> One who sold his house did not sell the
               inner room, even if he delineated the outer borders.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (4:1):</font></b> The Sugya is like Rav Yosef.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Piplulei Charifta (2):</font></b> Perhaps this is because
                    Rav Yosef taught that Yatzi'a, Tzela and Tei
                    are all the same. However, 'Sugya' connotes
                    that the support is not from what Rav Yosef
                    himself taught.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (CM 214:3):</font></b> There is no support from Rav
                    Yosef himself. They learn from 63b, which asks
                    from the roof, but not from the Yatzi'a. In any
                    case, the Rif and Rosh always rule like the
                    latter opinion.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (ibid):</font></b> Mar Zutra taught that the Yatzi'a is
               excluded only if it is at least four Amos. One may
               ask whether or not a room less than four Amos is
               excluded. Perhaps Mar Zutra taught about a Yatzi'a
               because a room need not be four Amos. Or, since we
               asked from a pit, and answered that it is excluded
               even if it is not four Amos because its use is very
               different than a house, we infer that a room, which
               is used like the house, is excluded only if it is
               four Amos. A room is excluded even if the seller
               delineated boundaries that include the room. One may
               ask whether or not the same applies to a Yatzi'a.
               Perhaps a room was taught 'needlessly', i.e. to
               teach that it is excluded even if it is within the
               boundaries, and the same applies to a Yatzi'a. Or,
               perhaps only for a room, which is important, we say
               that he merely gave known boundaries! Presumably, we
               do not distinguish.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (CM 214 DH v'Al Mai):</font></b> The Tur says
                    that the Rosh equates a room to a Yatzi'a. He
                    learns from the continuation of the Rosh, which
                    says that delineating borders does not help for
                    a room, and discusses whether it helps for a
                    Yatzi'a. He concludes that we do not
                    distinguish. The Tur understands that this
                    refers also to the previous question about four
                    Amos. The Ran says that a room is not sold even
                    if it is less than four Amos. A Yatzi'a that is
                    four Amos is not sold, and a room is even more
                    important even if it is less than four Amos.
                    This is why Mar Zutra did not teach about a
                    room. It seems that the Rif and Rambam agree.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH u'Mah she'Chosav v'Lo):</font></b> The Rif
                    and Rambam hold that delineating the borders
                    does not help only regarding an inner room, but
                    it could help for a Yatzi'a.
<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 214:1):</font></b> One who sold his house
               did not sell the Yatzi'a around it, even if it opens
               to the house.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (2):</font></b> I.e. even though it opens only to the
                    house, it is not Batel to the house.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH ha'Mocher):</font></b> The Rashbam explains
                    that Ofta is a low house next to or in back of
                    a house. The Aruch explains like the Rif and
                    Rambam, that Bodka Chalila is a balcony in back
                    of the wall, above. The Rif, Rambam and Rosh
                    rule like Rav Yosef. According to the Rashbam,
                    any small building next to or in back of the
                    house is included. According to the Rif and
                    Rambam, it is not sold. The Rif and Rambam hold
                    that an Aliyah on top of a house with an
                    opening only to the house is sold with the
                    house. It is not clear what the Rashbam holds
                    about this. The Tur is very vague. He concludes
                    'the Rambam wrote that if the Aliyah is open to
                    the house...', which connotes that also the
                    Tur's initial words are like the Rambam. If so,
                    he should have taught that a Yatzi'a, i.e. a
                    small building near the house with windows for
                    beauty, is not sold, but if it lacks windows,
                    it is sold.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH u'Mah she'Chosav Al):</font></b> The Tur
                    cites an opinion that an Aliyah is not included
                    in a house. I did not find anyone say so
                    explicitly. Perhaps he holds that the Rashbam
                    holds like this, even though the Rashbam did
                    not specify.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that this is even if he delineated
               the outer borders.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> This is if the Yatzi'a was
               four Amos or more. If it was less, it is included in
               the house (Rema - even if it is not open to the
               house.)
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (2):</font></b> If it were excluded only when it is
                    open to the house, the Gemara could not have
                    asked from a pit or cistern.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Similarly, the Aliyah on the
               house that opens to the house through a hole in the
               roof is included with the house.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Al Mah):</font></b> The Ramban did not
                    decide whether or not delineating the borders
                    helps for a Yatzi'a. The Nimukei Yosef says
                    that the Ramban concluded like R. Yonah, that
                    it does not. The Rif and Rambam mention
                    delineating the outer borders only for a room,
                    but not for a Yatzi'a. This connotes that they
                    hold that it would help for a Yatzi'a.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> One who sold his house did not
               sell the inner room, even if he delineated the outer
               borders.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH uv'Mai):</font></b> The Rashbam explains
                    that the inner room is not used like the house.
                    It is for storing things, like a box,
                    therefore, is not included with the house. We
                    say that he delineated larger borders for he
                    thought that people do not recognize the
                    precise borders.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (6):</font></b> The inner room is not for living,
                    therefore, some say that even if it is not four
                    Amos it is not sold. A Yatzi'a less than four
                    within the borders is sold. The Rema is like
                    the Rosh and Tur, who equate them.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that this is only if the room is four
               Amos wide.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (5):</font></b> The Gemara asked that if a Yatzi'a is
                    excluded, we need not teach about an inner
                    room. We did not say that we must teach about
                    an inner room less than four Amos.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (6):</font></b> The Yerushalmi says that it must be
                    four by four.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHAT IS INCLUDED IN A SALE OF A HOUSE? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> It teaches that even if the seller delineated
          boundaries that include the room, it is not included.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>SELLING ONE UNIT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If one sold a house in a big Birah (a
          building through which people pass, many houses are open
          to the Birah), even if he delineated boundaries of the
          entire Birah, he merely gave boundaries that people
          recognize.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If people call the house a house, and the Birah a
               Birah, this is obvious!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If people call also the Birah a house, he sold
               the whole Birah!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Most people call the house a house, and the
          Birah a Birah. Some people also call the Birah a house;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that he sold the whole
               Birah. Rav Nachman teaches that this is not so. Had
               he sold it, he would have written 'I do not omit
               anything from this sale.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If one sold a field in a big valley,
          even if he delineated boundaries of the entire valley, he
          merely gave boundaries that people recognize.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If people call the field a field, and the valley
               a valley, this is obvious!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If people call also the valley a field, he sold
               it all!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Most people call the field a field, and the
          valley a valley. Some people also call the valley a
          field;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that he sold it all. Rav
               Nachman teaches, this is not so. Had he sold it, he
               would have written 'I do not omit anything from this
               sale.'
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Rav Nachman needed to teach both cases;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had he taught only about the house, one might
               have thought that he did not sell the whole Birah,
               because it does not serve the same purpose as the
               house, but he sold the whole valley, because it
               serves the same purpose as the field.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had he taught only about the field, one might
               have thought that he did not sell the whole valley,
               because the only way to give the borders was to say
               whose fields surround him, but he sold the whole
               Birah, because had he sold only the house, he would
               have specified its borders.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Mari, son of Shmuel's daughter):</font></b> One who sells
          something must write 'I did not omit anything from this
          sale.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like Rav Nachman.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT IS INCLUDED IN A SALE OF LAND</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Reuven sold to Shimon 'the land of Bei Chiya.' He owned
          two lands of that name.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> He said that he is selling only one land;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he sold 'the lands of Bei Chiya', this
               connotes at least two;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he sold 'all his land', this includes all his
               land, except for gardens and vineyards;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he sold his 'Zihara (inheritance)', gardens
               and vineyards are included, but houses and slaves
               are not;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> If he sold 'his property', even houses and slaves
               are included.
<br>

<p>

sjt:
</p><p>
<font><b>2) PAYING FOR A PALACE AND GETTING A HOUSE</b></font><b>
<br>QUESTION:</b> Rav Nachman discusses the case of a contract that was written for the sale of a house, which included a drawing of the boundaries of a palatial complex. The palatial complex comprised many houses which surrounded a large central building (called a 'palace'). It is assumed that the contract reflected the sale of a house alone, and not the entire complex. Although all of the borders of the palace were drawn, this was done probably because the person did not know how to draw a picture of his house without drawing the details of the entire complex (and he also forgot to include in the sketch any mention that he intended to sell only this particular house). The Gemara concludes that Rav Nachman's ruling applies only in an area where most people call a house a 'house' and a palace a 'palace,' yet some people call a palace a 'house.' Rav Nachman teaches that even though some people call a palace a 'house,' it is assumed that the person sold a house, not a palace.
</p><p>
<b>TOSFOS</b> (DH Shema Mina) asks that the Gemara oddly omits mention of a Halachic principle which should help solve the doubt in this case in a different manner. The Mishnah later (77b) quotes Rebbi Yehudah who states 'Damim Modi'im.' This means that the amount of money paid for a sale often may be used as evidence as to which item was bought. The Mishnah there discusses the case of a person who buys a yoke, and it asks whether the team of oxen attached to the yoke are included in the sale. Rebbi Yehudah says that the doubt may be resolved based on the price that was paid. For example, if the price paid was 200 Zuz, this indicates that the oxen <i>were</i> included in the sale, because a yoke certainly does not cost that much by itself. If the price was in the reasonable range of the prince of a yoke, then this indicates the sale included only the yoke. Why does the Gemara here not utilize this principle to determine, based on the price paid, whether the entire palace was purchased or only a house?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that Rav Nachman follows the view of the Rabanan who do not follow the principle of 'Damim Modi'im.'
</p><p>
(b) Alternatively, Tosfos quotes the <b><b><b>RI</b></b></b> who answers that the Gemara indeed may follow the view of Rebbi Yehudah. However, even Rebbi Yehudah agrees that 'Damim Modi'im' does not apply to the sale of land, since it is common for people to pay far more for a piece of land than its fair market value.
</p><p>
(c) Tosfos quotes <b>RABEINU SHMUEL</b> who answers 'Ein Ona'ah l'Karka'os' -- 'there is no law of Ona'ah (overcharging or underpaying) for land.' The Ri understands that Rabeinu Shmuel means that because the Halachah states that the sale of land is valid and binding even when the buyer pays more money than the land is worth, perhaps in the case of Rav Nachman the buyer purchased only the house and not the palace, and he merely overpaid. This would not be the case for Metaltelin, where the sale would be invalid (if one overpaid more than a sixth).
</p><p>
However, the Ri rejects this answer. He writes that the laws of Ona'ah do not apply to Hekdesh as well, even though the logic of 'Damim Modi'im' would apply if the object involved was not Hekdesh (such as in the case of the yoke and the oxen). The fact that there is no Ona'ah for land is a Gezeiras ha'Kasuv, and therefore Beis Din still should be able to determine which object was purchased based on 'Damim Modi'im.' (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>POORLY DEFINED BORDERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	David sold a field to Moshe. He defined one border
          (e.g. the western) to be longer than the opposite
          (eastern) border.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav):</font></b> Moshe acquires only what faces the smaller
          border (David found it easiest to define the western
          border by extending it).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Kahana and Rav Asi):</font></b> He should acquire
          everything within the diagonal (between the long and
          short borders)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Rav was silent. (He admitted to them.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	(Even before this question,) Rav admitted that if
          David's sold a field that borders fields of Reuven and
          Shimon on the east one side, and fields of Levi and
          Yehudah on the west, and in the document he wrote
          'Reuven's and Shimon's fields are to the east, and Levi's
          field is to the west', that he sold only within the
          diagonal. (Had he sold the entire rectangle, he would
          have mentioned Yehudah's field, also - R. Tam.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	If Reuven owned the fields to the east and west of
          David's, and Shimon owned on the north and south sides,
          David must write 'bounded by Reuven's property in two
          directions and by Shimon's in two directions'.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> If David only gave the borders in four
          corners, what is the law (does he acquire the entire
          enclosed area, or only thin strips connecting the
          corners)?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If David only defined the borders as two 'L'-
          shapes in two opposite corners, what is the law (does he
          acquire the entire enclosed area (if one extends the 'L'-
          shapes until they cross), or only the land between the
          'L'-shapes themselves?
<br>
<br>

sjt:
<font><b>1) ONE WHO SELLS 'NECHASI'</b></font><b>
<br>OPINIONS:</b> The Gemara discusses various vague terms that a person might use in a sale and what they mean. One of the terms discussed is 'Nechasi' -- 'my property.' When a person says, 'I sell you Nechasi,' he means that he is selling all of his possessions that are included in the category of land, including his houses and slaves. Movable objects (Metaltelin) are not included in the sale of 'Nechasi,' as the <b>RASHBAM</b> (DH v'Iy) explains.
</p><p>
<b>TOSFOS</b> (DH v'Iy) asks that this ruling seems to contradict the Gemara later (150b) which states that when a person says that 'my property' should be given to another person, he includes even his shirt in this wording. A shirt clearly is Metaltelin, and yet the Gemara there says that it is included in the term 'my property.' How are the two Gemaras to be reconciled?
</p><p>
(a) <b>TOSFOS</b> answers that the exact term used in the Gemara there is not 'Nechasi' (with one Yud) but 'Nechasai' (with two Yuds). Although the two words mean the same thing, the word, 'Nechasai' implies an inclusion of more possessions than the word 'Nechasi.'
</p><p>
The <b>RASHBA</b> gives a similar answer, but in his text of the Gemara later the word 'Nechasai' is spelled not with two Yuds at the end, but with an Alef and a Yud at the end.
</p><p>
(b) In his second answer, Tosfos explains that the Gemara there is discussing a case of a <i>present</i>, while the Gemara here is discussing a <i>sale</i>. When one gives a present, he gives generously -- 'ha'Nosen Matanah b'Ayin Yafah Hu Nosen.' In contrast, when one sells an object, he does not sell generously -- 'ha'Mocher b'Ayin Ra'ah Hu Mocher.' Therefore, it is assumed that he did not mean to include his Metaltelin in the sale.
</p><p>
(c) The Rashba quotes another explanation. When the Gemara says that a seller includes even houses and slaves when he says 'Nechasi,' it merely intends to contrast this case with the previous case in which a person does not receive houses and slaves. The Gemara does not mean that 'Nechasi' excludes Metaltelin. Rather, the Gemara simply wants to emphasize that houses and slaves are not included, in contrast to the previous case. Accordingly, the Gemara here agrees with the Gemara later (150b).
</p><p>
Although this is the explanation of the <b>RAMBAM</b>, the Rashba concludes that the first explanation is the correct one. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SHUDA</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 Nachman):</font></b> If Reuven and Shimon each claimed 'I
               inherited this land (or ship) from my fathers', Kol
               d'Alim Gavar.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why is this different than two documents
               with the same date? There, Rav says that the bearers
               split the property, and Shmuel says that we apply
               Shuda (it is left to the judges' discretion)!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesuvos 93b:</font></b> Rav holds like R. Meir, who says
                    that the signatures on a document empower it
                    (it does not matter which was given first).
                    Shmuel holds like R. Elazar, who says that the
                    witnesses who see a document given to the
                    recipient empower it. (The first one given is
                    valid.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> There, we will never know which document was
               given first. Here, perhaps one will bring witnesses
               later (we do not want to give a ruling that might be
               overturned later).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Why is this different than the following?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If Levi traded sold his slave to
                    Shimon (in her absence), and they argue about
                    whether she gave birth before or after the
                    sale, they divide the value of the child.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 62b (Rav):</font></b> If the seller defined the borders in
               three directions, the buyer acquires everything
               between them, but not the fourth border;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Shmuel):</font></b> He also acquires the fourth border.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> Some say that Rava ruled that he acquires the fourth
               border. Some say that he rules that he does not get
               it. These versions argue about  when the fourth
               border is between the other borders, and there are
               date trees on it or it is nine Kavim; or, if the
               fourth border is not between the other borders, and
               there are not date trees on it and it is not nine
               Kavim. We apply Shuda of judges.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Kesuvos 93b:</font></b> Rami bar Chama's mother wrote her
               property to him in the morning. In the afternoon,
               she wrote it to Mar Ukva bar Chama. Rami went to Rav
               Sheshes, who gave the property to him. Mar Ukva went
               to Rav Nachman, and he ruled in his favor.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Rav Sheshes:</font></b> I gave it to Rami because his document
               was earlier.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Rav Nachman:</font></b> This matters only in Yerushalayim
               (where they write the hour in the document)! The
               Halachah is Shuda. I ruled based on my Shuda.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Rav Sheshes:</font></b> My ruling may also be considered Shuda!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Rav Nachman:</font></b> No. I am a judge, but you are not.
               Also, your ruling was not intended to be Shuda.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Gitin 14b (Beraisa - Chachamim of Bavel):</font></b> If Reuven
               said 'take 100 Zuz to Ploni', and Ploni died before
               the Shali'ach arrived, and Reuven died, the
               Shali'ach does what he wants (he gives it to
               Reuven's heirs or Ploni's heirs).
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b> They hold that the best solution is Shuda of the
               Shali'ach.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Kidushin 74a (Beraisa):</font></b> If the parties are no longer
               in front of the judge, he is not believed to say who
               won the case and who must pay.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> Question:</font></b> He should judge them again!
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> Answer:</font></b> The case is, the verdict was based on Shuda.
<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 (Kesuvos 53b and 10:13):</font></b> Rav and Shmuel
               discuss documents for land, e.g. purchases or gifts.
               If they were admissions or loans, a Mishnah (93b)
               teaches that they divide the money.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ran 53b DH Aval):</font></b> Perhaps Shuda
                    applies even to loans. The Stam Mishnah is R.
                    Meir, therefore it says they divide! Also, the
                    Mishnah does not discuss Shuda at all. It
                    teaches only how to divide, e.g. in a case when
                    all agree that Shuda does not apply and they
                    divide, e.g. they are for the same hour, or a
                    Shali'ach acquired at once for many recipients!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif and Rosh (Kesuvos 45b and 9:11):</font></b> Regarding sales
               and gifts, the Halachah follows Shmuel (Shuda).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> Some suggested using Shuda when
                    there is a Machlokes. They should not. Shuda
                    applies only to an expert judge who is Gadol
                    ha'Dor. Rav Nachman said that Rav Sheshes is
                    not qualified! We apply Shuda only where the
                    Gemara said. Where it was not said, ha'Motzi
                    mi'Chavero Alav ha'Re'ayah. However, R. Baruch
                    said that Rav Nachman said 'since I was
                    authorized by the Reish Galusa, your Shuda is
                    invalid in place of mine.' Otherwise, any judge
                    can use Shuda.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Zechiyah 5:6):</font></b> If there are two sale
               or gift documents for a field, and the dates are the
               same, if it is not the practice to write the hour on
               the document, it is left to the judges' discretion.
               Whomever they lean to leave the field with, he keeps
               it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (10:13 and Bava Basra 3:23):</font></b> The Rashbam says
               that Shuda is giving to whom it seems that the giver
               wanted to give it to. R. Tam says that the judge
               gives it to whomever he wants, without any reason,
               as long as he does not benefit. If he benefits, he
               is not a judge. He learns from Gitin. The Shali'ach
               gives it to whom he wants, and the Gemara calls this
               Shuda of judges. (see ozvh Bava Basra Note: our
               Gemara says just 'Shuda'.) Another proof is from
               Kidushin. If Shuda were based on reasons, the judge
               could judge them again and reach the same decision!
               Rather, it is the judge's whim without any reason.
               Perhaps before he wanted to give it to Ploni, and if
               he judges again, he will decide to give it to
               Almoni. Also, in Kesuvos, Rav Nachman did not accept
               Rav Sheshes' Shuda. If it depends on reasons, surely
               Rav Sheshes could judge this! Rather, it is the
               judge's whim, and Rav Nachman was an expert judge
               appointed by the exilarch, so he could give to whom
               he wants. The Yerushalmi says so.  R. Chananel cites
               a tradition that Shuda applies only to land, and to
               expert judges. Rav Nachman said that Rav Sheshes
               cannot judge by Shuda, even though he was a great
               Chacham. It seems that it applies also to
               Metaltelim, like the case of the Shali'ach, which
               our Gemara calls Shuda. Presumably, R. Chananel
               refers to Shuda <i>of judges</i>, but Shuda of a
               Shali'ach applies even to Metaltelim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> Nowadays, division is better,
                    like Rav. We do not do Shuda.
<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 240:3):</font></b> If there are two sale or
               gift documents for a field, and the dates are the
               same, it is left to the judges' discretion. Whomever
               they lean to leave the field with, he keeps it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Shnei and DH u'Mah she'Chosav
                    Rabeinu v'Chosav):</font></b> Rashi says that Shuda is
                    estimating to whom he wanted to sell the
                    property. R. Tam says that the judges give it
                    to whomever they want. The Rosh (107:6 DH Od)
                    supports this from the Yerushalmi (10:4).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Darchei Moshe (3):</font></b> Moharam (241) says that
                    Shuda applies only to an expert judge who is
                    Gadol ha'Dor, and only when the Gemara said so.
                    When it did not say so, ha'Motzi mi'Chavero
                    Alav ha'Re'ayah. The Ran (Shevuos 13b DH Tanya)
                    and Nimukei Yosef (Bava Basra 18a) say that
                    some texts say <i>Shochda</i> of judges, for they
                    may take a bribe, since it is left to their
                    desire. This is like Tosfos. Rashi holds that
                    they must determine to whom the giver wanted to
                    give it, so it is like other judgments.
                    However, Tosfos says that if he took a bribe,
                    his ruling is invalid.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (12):</font></b> The Shulchan Aruch means 'whomever
                    the judges think that he wanted to give or sell
                    the property.' This is why the Rema calls this
                    Shuda of judges.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (4):</font></b> Also the Tur explained like Rashi.
                    Why did he go against the Rosh, who holds like
                    R. Tam? Surely, the Ran and Nimukei Yosef do
                    not permit taking a bribe. It is an
                    exaggeration They merely mean that this is
                    <i>like</i> a bribe The Ramban (35a) explicitly says
                    so.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that Shuda of judges applies only to
               expert judges, and regarding land. Some say that it
               applies even to Metaltelim, if no one is Muchzak in
               them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (5):</font></b> This requires investigation
                    nowadays. (The Rema (3:2) says that nowadays
                    there is no expert judge who may judge alone.)
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (17):</font></b> The Rashbam (Sof 35a) explains that
                    the Gemara asked why Rav Nachman's law is
                    unlike the sale of the pregnant slave. Had it
                    challenged Shmuel, the Gemara in Kesuvos would
                    have challenged him, for that is the primary
                    place he said his law. It did not challenge
                    Shmuel because Shuda applies only to land
<br>
<font color='blue'><i>See also:</i>
<br><b><b>TWO DOCUMENTS FOR THE SAME DAY </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> If David defined the border in each direction
          to be half of a side of a rectangle in an alternating way
          (i.e. no two borders touch), what is the law (does he
          acquire the entire rectangle, or only the triangles
          between the borders and the center)?
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	These questions are not resolved.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rav):</font></b> If the seller defined the borders in three
          directions, the buyer acquires everything between them,
          but not (a furrow's width of land that is) the fourth
          border;
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> He also acquires the fourth border;
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Rav Asi):</font></b> He acquires only a furrow's width of land on
          the three borders.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Asi agrees with Rav, that his omission of the
               fourth border shows that he did not sell it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Since he retained land on a border, we say that
               he kept also the land inside the borders.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Version #1 (Rava):</font></b> The Halachah is, he acquires
          everything except for the fourth border;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if the fourth border lies outside
               the ends of the opposite borders (of the three), but
               if it lies between them, it is included;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Even if the fourth border lies outside, this is
               only if there is a row of date trees on it, or if it
               is (big enough to sow) nine Kavim (of seed). If not,
               it is not important, and it is included in the sale.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference:</font></b> If the fourth border lies between the
               other borders, even if there is a row of date trees
               on it or it is nine Kavim; it is included in the
               sale.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Version #2 (Rava):</font></b> The Halachah is, he acquires
          everything, including the fourth border;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if the fourth border lies between
               the other borders. If not, it is not included;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Even if the fourth border lies inside, if there
               is a row of date trees on it, or if it is nine
               Kavim; it is not included in the sale.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference:</font></b> If the fourth border is not between
               the other borders, even though there is not a row of
               date trees on it and it is not nine Kavim; it is not
               included.
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	In both versions, Rava says that everything in the
          field itself is sold;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the fourth border is between the other
               borders, and there is not a row of date trees on it,
               and it is not nine Kavim, it is included in the
               sale;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the fourth border is not between the other
               borders, and there is a row of date trees on it or
               it is nine Kavim; it is not included in the sale.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The two versions argue in a case when the
                    fourth border is between the other borders, and
                    there are date trees on it or it is nine Kavim,
                    or if the fourth border is not between the
                    other borders, and there are not date trees on
                    it and it is not nine Kavim. The judge uses his
                    discretion (Rashbam - whether he thinks that it
                    was sold; Tosfos - to who, he wants to give
                    it).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONE WHO SOLD HALF</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rabah):</font></b> If Reuven and Shimon were partners in a field,
          and Reuven sold to Levi 'the half that I have', Levi
          acquires Reuven's half of the field;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he sold 'half of what I have', Levi acquires a
               quarter of the field.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> What is the difference between the
          two expressions?
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Rabah did not answer.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Abaye:</font></b> I thought that Rabah admitted to me. I was
          wrong!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Cases occurred, and Rabah ruled like he said.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rabah):</font></b> If David sold part of his field to Moshe,
          delineated the borders and said 'I sell half (on border
          Ploni),' he sold half;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he sold 'a piece cut off (from my field)', he
               sold only (the area to sow) nine Kavim (the minimum
               size fit to be called a field).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> What is the difference between the
          two expressions?
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Rabah did not answer.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Rabah agreed that in either case, he sold
          half.
<br>

<p>

sjt:
</p><p>
<font><b>2) A SPECIAL 'SHUDA D'DAYANEI'</b></font><b>
<br>OPINIONS:</b> The Gemara discusses a case in which a person draws three boundaries of the field that he is selling, but he does not include the fourth boundary. The Gemara presents two versions of Rava's position on the matter. According to both versions, if the fourth boundary is 'Muvla' -- 'absorbed' (see sketch in <b>RASHBAM</b> DH v'Lo Amaran) and there is no important piece of property in the area of the fourth boundary (meaning that there are no planted trees or an area of nine Kav), the area is included in the sale. In the opposite case, where the fourth boundary is not Muvla and the area is important, it is assumed that it is not included in the sale. The difference between the two versions is in a case in which only one of the two factors is present (it is Muvla but the area is important, or the area is not important but it is not Muvla). The Gemara concludes that the Halachah is 'Shuda d'Dayanei.'
</p><p>
The Rishonim explain that although 'Shuda d'Dayanei' usually means that the judges of the Beis Din may do whatever they see fit without any reason or proof for their decision (according to <b>RABEINU TAM</b>; see <b>TOSFOS</b> to 35a, DH Shuda, for other explanations, and Background to the Daf there), the application of 'Shuda d'Dayanei' in this case is different. The Rishonim quote a tradition, which some say dates from the <b>RABANAN SAVORA'I</b>, that although in such a case the Halachah should follow the second version of Rava, or the Halachah should be 'ha'Motzi me'Chaveiro Alav ha'Re'ayah,' the ruling of 'Shuda d'Dayanei' here is 'an logical decision' by the judges. What does this mean?
</p><p>
(a) The <b>ROSH</b> explains that Rava actually said <i>both</i> statements quoted in his name. How, though, could he have said two contradictory statements? The Rosh explains that Rava's two statements are not contradictory; the Halachah may differ depending on the details of the specific case (see <b>KIKAYON D'YONAH</b> who proves this at length). The judges should assess the mindset of the seller, the mindset of the buyer, the local custom, and the amount of money paid in the sale. Only then should they make a decision, which could follow either statement of Rava, depending on the details of the case.
</p><p>
(b) The <b>NIMUKEI YOSEF</b> similarly mentions that the mindset of the seller and the amount of money paid is a factor in the decision of the judges, although he does not mention the mindset of the buyer and the local custom. It is unclear whether his view differs from that of the Rosh.
</p><p>
The <b>PILPULA CHARIFTA</b> notes that the Rosh and Nimukei Yosef certainly take into account that the Halachah follows the Chachamim (76b) who do not apply, in most situations, the principle of 'Damim Modi'im' to decide a case. However, in this case, in which the ruling is 'Shuda d'Dayanei,' the Chachamim directed the Beis Din to utilize all means possible to determine the correct verdict.
</p><p>
(b) The <b>RASHBAM</b> (DH Ika d'Amri) writes that the judges should assess the intentions of the seller, and based on that assessment they should decide what to do. The <b>RAMBAM</b> (Hilchos Mechirah 21:15) similarly states that the intention of the seller is the only factor taken into account, in contrast to the view of the Rosh and Nimukei Yosef who write that the amount of money paid should also be taken into account. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>IMPRECISE EXPRESSIONS ABOUT HOW MUCH ONE SOLD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Rejection:</font></b> Rav Yemar bar Shalmiyah said in the name of
          Abaye that no matter which expression he used, if he
          added (the extra words) 'these are the borders', he sold
          half. If not, he sold only nine Kavim.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Obviously, if Reuven said 'Ploni will divide
          my property', he gets half;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'give to him a portion of my
               property', what is the law?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Ravina bar Kisi - Beraisa - Sumchus):</font></b> If Shimon
          said 'give to Ploni a portion in the pit', he gets a
          quarter. (We are unsure if he gets half, or an
          arbitrarily small share. Sumchus holds that when we are
          in doubt, we divide.) If he said 'for the barrel' (to
          give to his animals to drink), he gets an eighth. (Half
          is needed for the animals. We are unsure if he meant half
          of the half (a quarter), or an arbitrarily small share,
          therefore he gets half of a quarter.) If he said 'for the
          pot' (for food preparation, for which a third is proper.
          Perhaps he meant half of this, therefore), he gets one 
          part in 12. If he said 'for the pitcher (for people to
          drink, for which a quarter is proper)', he gets one part
          in 16.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a Levi sold his field to a Yisrael
          (Yehudah), and said 'on condition that the Ma'aser
          remains mine', he keeps the Ma'aser;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said '(the Ma'aser is) mine and my son's',
               if he died, the Ma'aser belongs to his son.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said 'as long as you have the field', and
               Yehudah sold it and bought it back, the Levi has no
               more claim to the Ma'aser.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Why does the stipulation work? One cannot
          acquire something (e.g. the Ma'aser) that is not yet in
          the world!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Through saying 'on condition that the Ma'aser
          remains mine', he kept the Ma'aser for himself.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> This (Beraisa) teaches that if one
          sells a house and stipulates 'on condition that the top
          is mine', the top is his.
<br>
<br>

sjt:
<font><b>1) THE REASONING OF SUMCHUS IN THE CASE OF THE WELL</b></font><b>
<br>OPINIONS:</b> The Gemara quotes a Beraisa which discusses a case in which a person said, 'Give a portion of my well to Ploni.' Sumchus rules that Ploni receives at least one quarter of the well. If the giver says, 'Give a portion of my well for filling up a barrel,' Ploni receives no less than one eighth; 'for a pitcher,' he receives no less than one twelfth.
</p><p>
What is the reasoning behind Sumchus' ruling?
</p><p>
(a) The <b>RASHBAM</b> (DH Sumchus) says that Sumchus here is consistent with his well-known ruling (see Bava Kama 46a) that 'Mamon ha'Mutal b'Safek Cholkin' -- when the ownership of money or property is in doubt, it is divided between the disputants. The word 'portion' may mean 'half,' but it may also mean a tiny amount. Accordingly, when the owner of the well says, 'Give a portion of my well to Ploni,' there is a doubt about what he meant. Did he mean to give <i>half</i> of his well to Ploni, or a tiny portion of his well to Ploni? Since there is a doubt between a half and a bit, Sumchus applies his rule of 'Mamon ha'Mutal b'Safek Cholkin' and Ploni receives one quarter of the well.
</p><p>
The Rashbam (DH l'Chavis) explains that this is the reasoning behind the other cases mentioned in the Beraisa. For example, in the case of 'filling up a barrel,' only one half of the standard-sized well is needed to fill up a barrel. Accordingly, there is a doubt whether the owner meant to give <i>half</i> of that amount, which is one quarter of the well, or whether he meant to give only a tiny portion. Sumchus rules that he receives one eighth of the well, or half of the amount in doubt. The Rashbam adds that this is also the understanding of <b>RABEINU CHANANEL</b>.
</p><p>
<b>TOSFOS</b> earlier (35a, DH u'Mai) writes that according to the Rashbam, the Gemara here implies that the Halachah follows the view of Sumchus. The Gemara here mentions the words of Sumchus as the answer to a question, and it gives no other opinion. The <b>ROSH</b> also says that the Rashbam rules like Sumchus. Tosfos cites many proofs, however, that that the Halachah does <i>not</i> follow the view of Sumchus. How, then, does Tosfos understand the reasoning for Sumchus' ruling in the Beraisa?
</p><p>
(b) <b>TOSFOS</b> explains that Sumchus' statement in the Beraisa here is unrelated to his ruling of 'Mamon ha'Mutal b'Safek Cholkin.' Rather, the reasoning behind his ruling here is that when a person uses the word, 'Chelek' ('portion'), he presumably refers to one quarter of the maximum possible quantity being discussed. Therefore, when one says that Ploni should receive a 'portion' of his well, he means one quarter. When he says that Ploni should receive 'a portion of my well for filling up a barrel,' he means a quarter of the portion of the well which fills up a barrel. Since half of the well fills up a barrel, a quarter of that amount if one eighth. This is also the opinion of the <b>RIF</b>.
</p><p>
(c) The <b>ROSH</b> agrees with the Rashbam that Sumchus here is consistent with his ruling of 'Mamon ha'Mutal b'Safek Cholkin.' Although this implies that the Halachah should follow the view of Sumchus, the Rosh agrees with Tosfos' proofs that the Halachah follows the view of the Rabanan who argue with Sumchus. However, in contrast to Tosfos, who says that the Rabanan agree with the ruling of the Gemara here, the Rosh says that because the Gemara here follows the opinion of Sumchus, its ruling cannot be the Halachah. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO GAVE AN UNSPECIFIED SHARE</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Obviously, if Reuven said 'Ploni will divide my
               property', he gets half.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> If he said 'give to him a portion of my
               property', what is the law?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Ravina bar Kisi - Beraisa - Sumchus):</font></b> If
               Shimon said 'give to Ploni a portion in the pit', he
               gets a quarter. If he said 'for the barrel', he gets
               an eighth. If he said 'for the pot', he gets one
               part in 12. If he said 'for the pitcher', he gets
               one part in 16.
<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> We learn from the Beraisa that if one said
               'give to Ploni a portion of my property', he gets a
               quarter, like when one said Stam (without
               specifying) 'give to Ploni a portion in the pit.'
               People do not say 'a portion' for less than a
               quarter. It refers to a pit of water. We do not know
               the reasons why one who was given a portion for the
               barrel, pot or pitcher gets an eighth, 12th or 16th,
               therefore, we do not learn from them to other laws.
               Some explain differently; what I wrote is correct
               without any doubt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ramban (63a DH ha'Omer):</font></b> Perhaps the Gemara
                    knew that it is normal for eight people to
                    divide a pit for barrels, and 12 to divide for
                    pots, and 16 to divide for pitcers, and this
                    suffices. We do not distinguish based on the
                    size of the pit.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> They must say that the Gemara brought the
                    Seifa to teach these laws, even though they are
                    not relevant to the question.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Zechiyah 11:7):</font></b> If a Shechiv Mera
               said 'Ploni will divide in my property', he gets
               half. If he said 'give a portion to Ploni in my
               property', he gets one part in 16. Some say that he
               gets a quarter.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad:</font></b> The Rif says that he gets a quarter.
                    This is primary.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> Some say that when he said Stam
                    'give a portion', he gets the smallest portion
                    (that the Beraisa mentions), one in 16. The
                    Ga'on says that he gets a quarter. The Rif says
                    that this is primary.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (4:6):</font></b> A Tosefta (7:5) teaches that if he said
               'give a portion to Ploni in my property', he
               inherits with (i.e. like one of) the sons. It refers
               to a Shechiv Mera. Our Gemara discusses a healthy
               giver. The Rashbam (63a DH Sumchus) says that we are
               unsure if 'portion' refers to half, or an
               arbitrarily small share. Sumchus holds that when we
               are in doubt, we divide the money. The Halachah
               follows Sumchus, for Stam Mishnayos (Bava Kama 46a,
               Bava Metzia 100a) are like him. The Ri rules like
               Chachamim, who say that ha'Motzi mi'Chavero Alav
               ha'Re'ayah, for Rav Nachman holds like them (Bava
               Metzia 102a), and the Halachah follows Rav Nachman
               in monetary laws. Even though R. Shimon ben Gamliel
               holds like Sumchus in the Mishnah (100a), and there
               are only three cases in which the Halachah does not
               follow R. Shimon ben Gamliel in Mishnah (and this is
               not one of them), this rule does not override a
               ruling of Amora'im. Also the Rif rules like
               Chachamim. He explains that the Gemara resolves its
               question from Sumchus because it is not due to
               Safek. Rather, people do not say 'a portion' for
               less than a quarter. However, the Rif could not
               explain why one who was given a portion for the
               barrel, pot or pitcher gets an eighth, 12th or 16th.
               Therefore, the Rashbam's Perush is primary. All the
               Shi'urim are due to Safek. In any case, this does
               not prove that the Halachah follows Sumchus. The
               Gemara brought Sumchus' Beraisa to teach that there
               is a Safek about what he meant. We know that the
               Halachah follows Chachamim, and ha'Motzi mi'Chavero
               Alav ha'Re'ayah (perhaps he meant a very small
               amount).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rashbam (63a DH Tenu):</font></b> A Tosefta (7:5) teaches that
               if he said 'give a portion to Ploni in my property',
               he inherits with (i.e. like one of) the sons. Our
               Gemara discusses when the giver has no sons. Even if
               he has other heirs, one is not concerned for other
               heirs as much as for his sons. Alternatively, Ravina
               discusses one who said 'give to Ploni my son a
               portion in my property, and Almoni will get the
               rest.' Alternatively, the Gemara did not know the
               Tosefta. Had it known it, it would have brought it.
               One can say that the Tosefta is like Chachamim, who
               argue with Sumchus. Alternatively, the Gemara knew
               the Tosefta, but we hold like Sumchus.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Tosfos (63a DH Ein):</font></b> Surely, even if he means 'any
               amount', he gives a gift of some worth, e.g. a
               Revi'is. The Gemara did not bother to mention 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 253:24):</font></b> If a Shechiv Mera said
               'give a portion to Ploni in my property', he gets
               one part in 16. Some say that he gets a quarter.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Zeh Lashon ha'Ran, citing the
                    Ran):</font></b> The Rambam says that he gets one part in
<br>                  <b>  <b><font color='darkgreen'>16. </font></b></b>Since for other matters we are unsure,
                    Ploni receives the smallest amount, like one
                    who received for a pitcher.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (52):</font></b> The Rambam explains that Ravina
                    settled the question from the Seifa. Even
                    though we do not learn from these matters to
                    other things, we never find that 'a portion'
                    ever refers to less than a 16th, so he receives
                    a 16th. The other opinion in the Rambam learns
                    from the Reisha that he receives a quarter.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If a Shechiv Mera was dividing his estate
               among his sons, and said 'Ploni will receive a
               portion in my property', he gets like one of the
               sons.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (49):</font></b> This is like both answers of the
                    Rashbam (to resolve the Tosefta with the
                    Gemara). L'Halachah, both answers are one.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Drishah (40):</font></b> Surely the Tosefta discusses a
                    Shechiv Mera, for it mentions inheritance. A
                    healthy person would not say that Ploni should
                    <i>inherit</i> him. We must say that he specified
                    that the rest go to his sons (or Almoni), for
                    if a Shechiv Mera gave only some of his
                    property, it is like a gift of a healthy
                    person.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (25):</font></b> If a Shechiv Mera said 'give to
               Ploni a portion in my pit of wine', he gets a
               quarter. If he said 'give to him a portion for the
               barrel', gets an eighth. If he said 'give to him a
               portion for the pot, he gets a 12th. If he said
               'give to him a portion for the pitcher, he gets a
               16th, for he showed that he intended for a small
               gift. We do not learn from these Shi'urim to other
               matters.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (50):</font></b> The Rif holds that the laws are not
                    due dividing the money when in Safek, for
                    Sumchus says so only when the property is in a
                    Simta (neither's Reshus) or the Muchzak is
                    unsure.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that in all these cases, he has an
               arbitrarily small share. This applies only to a
               gift.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (52):</font></b> This is the Rosh's opinion, who holds
                    that he receives an arbitrarily small share.
                    Ravina learned from the Beraisa either because
                    he holds like Sumchus, or he holds like
                    Chachamim and learns about their opinion from
                    Sumchus. The Rema said 'he <i>has</i> an arbitrarily
                    small share.' To be precise, he should have
                    said 'he <i>gets</i> an arbitrarily small share',
                    i.e. because we are unsure how much he has! Ir
                    Shushan says that the Rema does not refer to
                    Sa'if 24. This is wrong. This opinion holds
                    that he always gets an arbitrarily small share.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema:</font></b> For such cases of sales, the price reveals how
               much he sold.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Zeh Lashon Rav, citing the
                    Rashba):</font></b> R. Chananel says so. Also the Gaon in
                    Sefer ha'Mekach says that in a sale, he
                    acquires a portion exactly according to the
                    price.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH v'Zeh Lashon ha'Ran, citing the
                    Ran):</font></b> The Tosefta says that 'a portion' refers
                    to a quarter regarding a sale! These Ge'onim
                    must hold that the Gemara changed the text of
                    the Tosefta to discuss a gift because the
                    Gemara holds that this is only for a gift (but
                    in a sale, the money determines how much was
                    sold).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Tosfos (92a DH v'Lichzi):</font></b> Even Chachamim say
                    that the money does not determine how much was
                    sold only when this opposes a majority and a
                    Chazakah.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Beis Yosef (DH v'Zeh Lashon Nimukei, citing the
                    Ritva):</font></b> The Tosefta discusses a sale, i.e. when
                    the price does not reveal how much he sold,
                    e.g. he said that three experts assess it and
                    set the price..
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Note:</font></b> We could also say that it was sold
                    together with something without a precise
                    market price, e.g. a city, land of
                    extraordinarily high or low quality, something
                    sometimes sold for three and sometimes for
                    four, or one who sells at a discount for he
                    needs money immediately.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What law do we learn from this?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (Rav Zvid):</font></b> He may extend ledges from it.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (Rav Papa):</font></b> He may build another story on top
          of it.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> According to Rav Zvid, we understand why
          Reish Lakish said 'this teaches that', for we would not
          know it without the Beraisa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But according to Rav Papa, even without the
               Beraisa, we would learn this from his extra words!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is left difficult.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ACQUIRING THE HEIGHT AND DEPTH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Dimi of Neharda'a):</font></b> If Reuven sells his house to
          Shimon (and wants to include the pit and cistern), it is
          not enough to write 'the depth and height.' He must write
          also 'from the Tehom (the depth below the earth) to the
          sky.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Stam (without specifying), the buyer does not
          acquire the depth and height (the seller could dig
          underneath, and retains a roof if it has a Ma'akeh);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Therefore, if he wrote only 'the depth and
               height', this includes only the depth and height;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He must write also 'from the Tehom to the sky' to
               include the pit, cistern and tunnels.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Support (Mishnah):</font></b> The buyer does not acquire the pit
          and cistern, even if the seller wrote 'the depth and
          height.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If you will say that Stam, the buyer acquires the
               depth and height, writing 'the depth and height',
               should include the pit, cistern and tunnels!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, the Mishnah discusses when he did not
          write 'the depth and height'.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> It says 'even if the seller wrote 'the depth
          and height'!'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> No.  It means, even if the seller did not write
          'the depth and height', it is as if he wrote it (to
          include the depth and height);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> To include the pit, cistern and tunnels, he must
               write 'the depth and height.'
<br>

<p>

sjt:
</p><p>
<font><b>2) THE STIPULATION THAT THE SELLER MAKES TO KEEP THE 'DIYUTA ELYONA'</b></font><b>
<br>QUESTION:</b> The Gemara earlier (63a) quotes Reish Lakish who says that when a person sells a house and stipulates that the 'Diyuta Elyona' ('roof') remains his, the condition is valid. The Gemara asks, what is the Halachic significance of this statement? Even without such a stipulation, the upper level of the house is not included in the sale, as the Mishnah (61a) clearly states. It must be that the seller intends to retain some additional right for himself by making the apparently superfluous stipulation that the 'Diyuta Elyona' remains his. What is that extra right? Rav Papa explains that the seller means that he reserves the right to build on top of the roof.
</p><p>
The Rishonim explain that Rav Papa does not mean that the seller reserves the right to build another floor on top of the attic, but rather that he reserves the right to rebuild the roof in case it (or the house) collapses.
</p><p>
The <b>RASHBAM</b> (DH Rav Papa) asks that this seems to contradict the Mishnah in Bava Metzia (117a) which clearly implies that a person who owns an upper floor of a house has the right to rebuild it if it collapses. Accordingly, Rav Papa has not answered the question of what the seller adds with his extra stipulation.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBAM</b> answers that in the case in Bava Metzia, two people divided a house which contained a ground floor and an upper floor, and they made an agreement that the owner of the ground floor will always have to let the owner of the upper floor rebuild in case his penthouse collapses. The Rashbam adds that even if they did not make an explicit condition to this effect, whenever two people divide a house in such a manner this condition is an inherent part of the division, even if it is not specified. In contrast, the case of the Gemara here involves a sale. In the case of a sale the seller of the house does not retain such a right towards the roof unless he explicitly specifies this condition. (A similar explanation is given by the <b>RITVA</b>.)
</p><p>
(b) <b>TOSFOS</b> (DH she'Im) answers that there is a difference between a 'Diyuta' and an 'Aliyah.' The Gemara here refers to a Diyuta, roof, which is not so important. The owner of the roof does not have the automatic right to rebuild his Diyuta. The Mishnah in Bava Metzia refers to an Aliyah, an upper floor, which is important, and thus the owner automatically retains the right to rebuild.
</p><p>
<b>RABEINU YONAH</b> points out that there are two versions of Rav Papa's opinion in the Gemara. In the text of the Gemara used in Spain, the Gemara says that if he wants to build 'an <i>Aliyah</i>' atop the house, he may do so. This text implies that the owner reserves the right to rebuild a top floor. According to this text of the Gemara, an Aliyah is the exact same thing as a Diyuta. This text effectively eliminates the answer of Tosfos. However, the text of the Gemara commonly used in France says only that if he wants to build on top of the house he may do so, and it does not mention the word 'Aliyah.' This text leaves room for Tosfos' interpretation that a Diyuta is not a top floor. (Rabeinu Yonah, however, agrees with the Rashbam's answer.) (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ACQUIRING THE HEIGHT AND DEPTH (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Support (for Rav Dimi - Mishnah):</font></b> The roof (is not
          included) if it has a Ma'akeh 10 Tefachim tall.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the depth and height are included even though
               he did not write them, even if it has a Ma'akeh of
               10 Tefachim, it should be included!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection:</font></b> A roof with a Ma'akeh 10 Tefachim tall is
          important, so it is not included.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Ravina):</font></b> We may learn from (what Rav Papa said in) the
          above discussion!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Reish Lakish):</font></b> This (Beraisa of Ma'aser) teaches
               that if one sells a house and stipulates 'on
               condition that the top is mine', the top is his.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What law do we learn from this?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1 (Rav Zvid):</font></b> He may extend ledges from
               it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #2 (Rav Papa):</font></b> He may build another story
               on top of it.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> If the depth and height are included in the sale
               when he did not write them, the seller would not
               need to write them!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection (Rav Ashi):</font></b> He must write them to secure the
          right to rebuild it if it falls.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DOES ONE SELL GENEROUSLY OR STINGILY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Akiva):</font></b> If Reuven sold his house to
          Shimon; Shimon does not acquire the pit and cistern, even
          if Reuven wrote 'the depth and height';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (If Reuven wants to use them) he must buy the
               rights to a path to them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Chachamim say, (he may use them, and) he need not buy a
          path.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Akiva admits, if Reuven sold his house 'except for
          the pit and cistern', he need not buy a path.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Akiva says, if Reuven sold his house to Shimon, and
          the pit and cistern to Levi, Levi need not buy a path;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Chachamim say, he must buy a path.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Gemara - Ravina) Question:</font></b> Why must the Mishnah teach
          both a pit and cistern?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rava Tofa'ah - Beraisa):</font></b> A pit and cistern are
          essentially the same. A pit is merely a hole; a cistern
          is a building (of stones) inside a pit.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah - R. Akiva):</font></b> Reuven must buy a path;
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Chachamim say, he need not...
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Suggestion:</font></b> R. Akiva holds that one sells generously
          (he does not retain a path for himself), and Chachamim
          hold that one sells stingily.
<br>
<br>

sjt:
<font><b>1) WHAT IS INCLUDED IN THE SALE OF A HOUSE?</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that when one sells a house, the wells in the house are not included in the sale, even when the seller mentions that he is selling the 'depth and height' of the house. How, though, does the seller access the well which he retained for himself? Rebbi Akiva rules that he must purchase a path from the new owner if he wants to gain access to his well. The Chachamim rule that the seller reserved the right to use a path through the house to his well when he sold the house. Since he left the well for himself, he must have also left a way of getting to it. Rebbi Akiva agrees that when the seller explicitly states that the well is not included in the sale of the house, he retains a path to his well.
</p><p>
What is the basis behind the dispute between Rebbi Akiva and the Chachamim?
</p><p>
<b>ANSWER:</b> The <b>RASHBAM</b> (DH v'Tzarich, DH bi'Zman) explains, based on the Gemara, that Rebbi Akiva and the Chachamim disagree about a fundamental point: does a person who sells an item intend to sell only the basic item, or also any extras that accompany the item? The Chachamim maintain that a person sells only the exact item mentioned in the sale. Since a well is not part of the description of a house, it is not included in the sale of the house. Rebbi Akiva maintains that a person sells his item 'generously,' and therefore the path to the well is included in the sale of the house, and the seller must buy it back if he wants access to his well. Rebbi Akiva agrees that when the seller states explicitly that the well is not included in the sell, he retains the path to himself; since it was not necessary for him to exclude the well from the sale, he must have intended to exclude the path from the sale.
</p><p>
The <b>CHIDUSHIM</b> U'VI'URIM questions the notion that a seller intends to retain something for himself even when he makes no mention of it. If the seller really intended to retain a path to his wells, why did he not specify it in the contract? The Chidushim u'Vi'urim suggests instead that Rebbi Akiva actually agrees with the Chachamim that a person who sells a house does not include the well <i>or</i> the path to that well in the sale, since he needs to retain the path for himself so he can get to his well. However, when there is no mention of any exclusion (well or path) in the contract, Rebbi Akiva maintains that it cannot be assumed that the seller excluded the path from the sale, since he sold the entire house to the buyer. When, however, there is any mention whatsoever about a well, Rebbi Akiva agrees that the seller also left for himself the path.
</p><p>
The <b>KESEF KODSHIM</b> discusses a similar case in which two parties conducted a quick sale of a property without first writing a legal document, and they did not specify the details of the sale. The owner of a house sold his house, which happened to contain a wine cellar. Did he include the wine cellar in the sale? The Kesef Kodshim suggests that a wine cellar in a house has the same status as a well, and thus it is not included in the sale of a house. However, the Kesef Kodshim points out that nowadays things such as wine cellars are customarily included in sales of houses. Even though no details were specified, it may be assumed that the transaction was done according to the standard sale of a house today. The <b>ARUCH HA'SHULCHAN</b> (CM 214:1) also writes in the name of the <b>RAMBAM</b> that the custom of what is included in sales of houses constantly changes, and that the custom takes precedence over the Halachah stated by the Gemara. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES ONE SELL GENEROUSLY REGARDING DAMAGES?</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'> 18a (Mishnah):</font></b> We distance soaking water (of flax)
               from vegetables, and leeks from onions, and mustard
               from bees.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Mishnah and Beraisa - R. Yosi):</font></b> One may plant
               mustard near his neighbor's bees. He can say 'rather
               than tell me to distance my mustard, distance your
               bees, for they eat the stems of my mustard plants!'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If one must distance damagers from the
               border, both of them must distance themselves!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rav Papa):</font></b> When Reuven set up the soaking
               pit, leeks or mustard, he owned the adjacent field.
               Later, he sold it.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> If so, why do Chachamim say that he must
               distance himself? Also, why does R. Yosi agree about
               water and leeks?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 22b (Rav Ashi):</font></b> R. Yosi admits regarding Giri
               ('arrows', i.e. damage that comes directly from the
               person's hand);
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 25b (Mishnah):</font></b> Reuven must distance his tree 25 Amos
               from Shimon's pit. If the tree was there before the
               pit, he may not cut the tree.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> R. Yosi says, even if the pit preceded the tree, he
               may not cut it. Just like Shimon may dig in his own
               property, Reuven may plant in his own property!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 64a (Mishnah - R. Akiva):</font></b> If Reuven sold his house
               to Shimon; Shimon does not acquire the pit and
               cistern. (If Reuven wants to use them,) he must buy
               the rights to a path to them.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> Chachamim say, (he may use them, and) he need not
               buy a path.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Suggestion:</font></b> R. Akiva holds that one sells generously
               (he does not retain a path for himself), and
               Chachamim hold that one sells stingily.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (13b):</font></b> We establish the Mishnah (of bees) when
               one bought half the field.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rebuttal (Rosh 2:3):</font></b> It is unreasonable to obligate
               one to distance his mustard if he was allowed to
               plant it! This is like a tree (one may keep it if it
               preceded the pit). Rather, the text says that Rav
               Papa's answer was rejected.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Shechenim 2:12):</font></b> If two bought a
               field from one seller, neither has any rights in the
               other's portion. He may seal the windows.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (1:20):</font></b> The Ri says that if partners divided
               and received houses, one may build a wall even if it
               diminishes the light of the other's house. Even
               according to the Ri, if the only window of each
               house overlooks the other's property, surely they
               did not intend to get dark, useless houses.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (CM 154:28):</font></b> The Rosh says so only about
                    partners who divide, but if one sold to two, we
                    are not concerned if the house will not have
                    any light.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Nimukei Yosef (13a DH Masnisin (2), citing R.
               Yonah):</font></b> Because R. Yosi agrees about Giri, if one
               bought a house with a window overlooking the
               seller's Chatzer, he must seal the window. Even
               though the window was made with permission, and even
               though we hold that one sells generously, one does
               not acquire rights to damage. Regarding the damages
               in the Mishnah (25b), if the seller put them near a
               wall and sold the Chatzer with the damager, the
               buyer need not distance the damager. He did not put
               it close! Hezek Re'iyah (loss of privacy) is
               different, for he constantly damages through
               looking. This is when there was damage at the time
               of the sale. If one sold a house with a window
               overlooking a ruin, and later the seller built the
               ruin, the buyer need not close his window. This is
               like the Mishnah (25b) says, that if a tree preceded
               the pit, we do not cut the tree.
<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 154:28):</font></b> If Reuven gave or sold
               at the same time a house to Shimon and the Chatzer
               to Levi, and there were windows in the house open to
               the Chatzer, Levi may build in front of them.
               Likewise, if he gave or sold the Chatzer to Levi and
               kept the house for himself, Levi may build in front
               of the windows (Rema - some say that he cannot
               build) unless he distances four Amos.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Kosav Rabeinu):</font></b> R. Yerucham
                    (31:6 191b) says regarding a soaking pit near a
                    vegetable patch that the seller must distance
                    himself, even if the damage was there at the
                    time of the sale. If so, if one had a house
                    with a window overlooking a Chatzer, and he
                    sold the Chatzer, he must close the window.
                    Even R. Yosi, who says that the victim must
                    distance himself, agrees regarding Giri that
                    the damager must distance himself. One sells
                    generously. Some say that the same applies when
                    two bought from one seller. Some disagree.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (65):</font></b> When he gave or sold at once, all
                    agree that Levi may build in front of the
                    windows. Meforshim argue about when he sold one
                    after the other, which is like when he sold the
                    Chatzer and kept the house. He sold all his
                    rights.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH Kosav ha'Rivash):</font></b> The Rivash
                    (517) says that if Yakov sold a house to
                    Reuven, and later sold the roof to Levi, and
                    Reuven objects to rainwater that flows off the
                    roof, he can say that Yakov sold all his rights
                    in the house. Surely, one sells generously.
                    However, all Meforshim agree that Reuven cannot
                    force Levi to remove the damage. Rather, Reuven
                    may build in his property what is needed to
                    prevent damage to himself. Likewise, when we
                    say that David does not have window rights
                    against Aharon, it means that he cannot stop
                    Aharon from building within four Amos of
                    David's window, lest he block the light. Aharon
                    may build anywhere on his property, but he
                    cannot force David to close his window to
                    prevent Hezek Re'iyah. However, the Rambam says
                    that he can force David to close his window,
                    because Hezek Re'iyah is Giri. Dripping
                    rainwater is not Giri. It is from Shamayim.
                    Reuven may stop up the drain pipe if it is in
                    his Reshus, but Levi is not responsible if this
                    causes damage to the Reuven's roof. Levi just
                    needs to fix it like anyone else who owns an
                    Aliyah roof over another's house.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> SMA (66):</font></b> The Mechaber (Sa'if 27) holds that
                    Levi cannot force Shimon to close the windows.
                    The Rema there brought that some say that he
                    can force him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If one sold a house and kept the Chatzer for
               himself, some say that he cannot seal the windows,
               for one sells generously. The same applies to one
               who gives. Some disagree. See 155:25
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Kosav ha'Rashba):</font></b> A case
                    occurred in which Yakov sold a house and kept a
                    garden for himself. Shimon later bought the
                    garden, and claimed that surely Yakov did not
                    sell in a way that leaves Hezek Re'iyah for the
                    garden (i.e. if the buyer has rights to have
                    windows from which he can see in). The Rashba
                    (3:161) said that if windows from the house
                    were open to the garden and Yakov sold the
                    garden, surely he did not keep window rights,
                    for one sells generously. However, when he sold
                    the house and kept the garden, one could say
                    that since the windows were opened with
                    permission, and one sells generously, he sold
                    window rights. However, my Rebbi, R. Yonah,
                    agreed that even if he sold the house and kept
                    the garden, he did not sell window rights. We
                    hold that regarding damage of Giri, the damager
                    must distance himself. Hezek Re'iyah is Giri.
                    Presumably, he sold on condition to remove the
                    windows. A person does not sell damage (to
                    himself) of Giri!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz:</font></b> Why do some say that he cannot build? One
                    sells generously! We must say that this is like
                    Tosfos (the Ri in the Rosh above), and we
                    discuss closing the only window.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema (155:25):</font></b> If Reuven sold his house to Levi and
               his garden to Moshe, Moshe need not distance his
               trees even if Reuven sold the house first. We do not
               say that one sells generously.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (61):</font></b> Even though the roots of the trees go
                    under the walls of the house and harm it, the
                    Halachah follows R. Yosi who allows one to
                    plant in his own Reshus.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (62):</font></b> He need not teach about trees that
                    were already planted. Moshe bought them just
                    like they were Muchzak to Reuven. Rather, Moshe
                    may plant new trees.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> See above 154:28.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (63):</font></b> There, the Rema cites an opinion that
                    if one sold a house and kept the Chatzer for
                    himself, he cannot seal the windows, for one
                    sells generously. There is different, for to
                    (build and thereby) seal windows overtly
                    damages now. Planting does not damage, just the
                    roots that come later damage.
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>WHAT IS INCLUDED IN A SALE OF A HOUSE? </b></b>(</font><font color='darkblue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In many places, we say that R. Akiva holds like
               this. Our Mishnah is the source!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps R. Akiva holds that one does not pay
          for a house on condition that others will have rights to
          walk through it (therefore we assume that the seller did
          not retain a path);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim hold that (a seller) would not take
               money and lose all access to his property (that he
               retained).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Suggestion:</font></b> From the Seifa, we may derive their
          opinions about selling generously or stingily.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Seifa - R. Akiva):</font></b> If Reuven sold his house to
               Shimon, and the pit and cistern to Levi, Levi need
               not buy a path;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, he must buy a path.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps R. Akiva holds that (Levi's)
          objection to not having access to his pit overrides
          (Shimon's) objection to people walking through his house
          (therefore, Reuven gives Levi a path), and Chachamim hold
          the opposite.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Suggestion:</font></b> We may derive their positions from another
          Mishnah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Akiva):</font></b> One who sells a field does
               not sell the pit, winery or dovecote, whether these
               are barren or full. He must buy a path to them;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, he need not buy a path.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If their reasons are like above (one's
               insistence that others not walk through his
               property, or having access to his property), we
               already know this from our Mishnah. Why was the
               argument repeated?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, we must say that R. Akiva holds
               that one sells generously, and Chachamim hold that
               one sells stingily.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps we must teach the argument about a
          house and about a field;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had we taught only about a house, one might have
               thought that only in a house (R. Akiva says that)
               privacy (of the buyer) is the greater concern;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had we taught only about a field, one might have
               thought that only there (R. Akiva says that the
               seller does not keep a path because) trampling on
               the field harms the field.
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	Rather, we may derive their positions from the Seifa;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Seifa - R. Akiva):</font></b> If Reuven sold his field to
               Shimon, and the pit, winery or dovecote to Levi,
               Levi need not buy a path;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, he must buy a path.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If their reasons are like above (they
               argue about which is stronger, one's insistence that
               others not walk through his property, or having
               access to his property), we already know this from
               the Seifa of our Mishnah. Why was this repeated?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> We conclude that R. Akiva holds that one
               sells generously, and Chachamim hold that one sells
               stingily.
<br>

<p>

sjt:
</p><p>
<font><b>2) DOES A PERSON LEAVE OVER A PATH TO ACCESS HIS WELL?</b></font><b>
<br>OPINIONS:</b> The Mishnah teaches that when one sells a house, the wells in the house are not included in the sale, even when the seller mentions that he is selling the 'depth and height' of the house. How, though, does the seller access the well which he retained for himself? Rebbi Akiva rules that he must purchase a path from the new owner if he wants to gain access to his well. The Chachamim rule that the seller reserved the right to use a path through the house to his well when he sold the house. Since he left the well for himself, he must have also left a way of getting to it. Rebbi Akiva agrees that when the seller explicitly states that the well is not included in the sale of the house, he retains a path to his well.
</p><p>
Rebbi Akiva and the Chachamim disagree about whether the seller leaves for himself a pathway to access his well in the house. The Gemara explains that according to the Chachamim, who say that the seller <i>does</i> leave for himself a pathway to his well, maintain that a seller generally sells in a parsimonious fashion, and thus he presumably left for himself a way to get to his well. Rebbi Akiva says that a seller sells in a generous fashion, and thus he presumably did not leave himself a pathway (unless he specified either that he is leaving himself a pathway or the well; see Mishnah).
</p><p>
The Gemara proposes that perhaps this is not the basis of the argument. Perhaps both Rebbi Akiva and the Chachamim maintain either that a seller sells in a stingy way or in or in a generous way. Rather, they argue about whether a buyer agrees to give money for property only to have it trampled by others (Rebbi Meir), or whether a seller does not agree to take money only to have to fly to access the property he retained for himself. What is the reasoning behind their argument?
</p><p>
(a) The <b>RASHBAM</b> (DH mi'Mai, DH v'Rabanan) explains that the argument between Rebbi Akiva and the Chachamim is which possibility is more unreasonable -- the possibility that a buyer would let someone constantly trample through his house to get to his well, or the possibility that a seller would retain possession of a well when he has no way to access it.
</p><p>
The <b>RASHBA</b> has difficulty with this explanation. He points out that the Gemara says that according to the Chachamim, a person 'does not want to take money and have to fly in the air.' According to the Rashbam's understanding, why does the Gemara need to say that a person does not want to 'take money' and have to fly? The Gemara should say merely that according to the Chachamim, a person does not want to have to fly. Why does it mention taking money?
</p><p>
(b) The <b>RASHBA</b> understands the proposed argument in a different way. Rebbi Akiva maintains that although it indeed is unreasonable to assume that a seller would sell a house and have to fly to his well, he assumes that because the buyer does not want someone constantly trampling through his house, <i>and</i> the seller was desperate to conclude the sale, that the seller decided to take the money and deal with the problem of getting to his well at a later time. The Chachamim argue that even if the seller needs money desperately, he is not so desperate that he will conclude a sale and exclude an asset from the sale which he has no way of accessing. This explanation is consistent with the Gemara's statement that the Chachamim maintain that a person would not 'take money' and have to fly.
</p><p>
Perhaps the Rashbam understands that the phrase 'take money' is mentioned only to parallel the wording in Rebbi Akiva's reasoning, that a person does not want to <i>give money</i> and have his house trampled. The Gemara merely seeks to use parallel terminology in its explanation of the Chachamim's opinion. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE HALACHAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Huna citing Rav):</font></b> The Halachah follows Chachamim.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yirmiyah bar Aba citing Shmuel):</font></b> The Halachah
          follows R. Akiva.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	R. Yirmiyah bar Aba:</font></b> Many times I said in front of Rav
          that the Halachah follows R. Akiva, and he did not
          respond!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rav Huna:</font></b> How do you learn the argument?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	R. Yirmiyah:</font></b> R. Akiva says that one sells stingily, and
          Chachamim say that one sells generously.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rav Huna:</font></b> He did not respond, for the Halachah is that
          one sells stingily. According to your version of the
          argument, the Halachah follows R. Akiva.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Suggestion (Ravina):</font></b> Rav and Shmuel hold like they
          taught elsewhere. (It seems that Ravina and Rav Nachman
          hold that Rav and Shmuel argue, i.e. also Shmuel had our
          text of the Mishnah.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Nachman citing Shmuel):</font></b> Brothers who divide
               an inheritance (are like buyers and sellers; they)
               do not have rights to walk over each other's
               property (even if one can only get to his property
               through his brother's, for they sell generously),
               and they have no rights to set up ladders or have
               windows (to prevent the other from building near it)
               or run an irrigation ditch through the other's
               property;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav):</font></b> They have all these rights against each
               other.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	They must argue in both cases.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Had they argued only about brothers, one might have
          thought that Rav's reason is that the heirs are entitled
          to live like their father did - 'Tachas Avosecha Yihyu
          Vanecha', but normally, Rav holds that one sells
          generously;
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	Had they argued only about a regular sale, one might
          have thought that Shmuel would agree about brothers
          ('Tachas Avosecha...')
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Rav Nachman, to Rav Huna):</font></b> Is the Halachah
          like us (Shmuel and his Talmidim), or like you (and Rav)?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Huna):</font></b> It is like you, for you are close to
          the Reish Galusa and see how the judges rule. (According
          to Rav Huna, Rav and Shmuel argue only about brothers.
          Alternatively, Rav Huna answered 'if you are right (and
          R. Yirmiyah is wrong), and Shmuel rules that people sell
          generously, the Halachah follows him in both cases.)
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	Reuven owned an inner house and an outer house. If he
          sold or gave (at the same time) the inner house to Shimon
          and the outer house to Levi, neither has rights to walk
          through the other, and all the more so if he gave the
          outer house and sold the inner house (since he gave the
          gift to Levi, this shows that he favors him).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Also if he gave the inner house and sold
          the outer house, neither has rights to walk through the
          other.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Rejection:</font></b> That is wrong.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> This applies to a sale, but one who
               gives (a gift) gives everything.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Inference:</font></b> One gives generously.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Also regarding the houses, Reuven gives
               generously to Shimon, and included a path.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHAT IS INCLUDED IN A HOUSE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one sells a house, he sells the door, but
          not the key. He sells a mortar attached to the floor, but
          not an unattached mortar. He sells the fixed frame around
          a millstone, but not the funnel, nor Tanur or Kirayim
          (types of ovens);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'the house and everything inside',
               they are all included.
<br>
<br>

sjt:
<font><b>1) TWO BROTHERS WHO DIVIDE PROPERTY, AND ONE TAKES THE INNER FIELD AND THE OTHER TAKES THE OUTER FIELD</b></font><b>
<br>QUESTION:</b> Rav Nachman rules that if brothers who inherit property divide their father's fields by selling their portions to each other, with one brother taking an inner field and one taking an outer field, the brother who takes the inner field does not have automatically have the right to a path through his brother's outer field unless this was specified in the division. Since, according to Rebbi Akiva, a person who sells property does so 'b'Ayin Yafah' -- 'in a generous manner,' when the brother sells his portion in the outer field to the other brother, he sells his brother <i>all</i> of the outer field, including any possible path that he might have had to access his inner field. This is why he does not have a path through the outer field.
</p><p>
The Rishonim ask the obvious question. The Gemara's case involves <i>two</i> 'sales.' One brother, Reuven, sells his portion in the outer field to his brother, Shimon. Shimon in turn sells his portion in the inner field to Reuven. This leaves Reuven with the inner field and Shimon with the outer field. Since both brothers sold the fields, why does Rav Nachman say that the brother that owns the inner field has no path? Even though Reuven sold his portion of the outer field to Shimon, Shimon also sold his portion of the inner field to Reuven with similar generosity of 'Ayin Yafah,' and thus his sale <i>should</i> include a pathway for Reuven! Why does Rav Nachman consider only the generosity of the sale of the brother who owns the inner field, and not the generosity of the brother who owns the outer field?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBAM</b> (DH Ein Lahen) explains that Rebbi Akiva's principle of 'Ayin Yafah' means only that a person <i>sells</i> with generosity, and not that he <i>buys</i> with generosity. Since the brother with the outer field just bought his brother's portion in that field, it is assumed that he did not have in mind to leave a path for his brother through his field which he just bought.
</p><p>
(b) The <b>TOSFOS RID</b> quotes <b>RABEINU TAM</b> who says that the 'Ayin Yafah' element of two sales cancel each other out. When each brother sells a portion of his field to the other brother, he wants the buyer to have complete ownership of the field. Rabeinu Tam says that the seller's desire that the buyer own the entire field gives the sale the status of 'b'Ayin Yafah.'
</p><p>
The Tosfos Rid takes issue with these explanations. The brother's sale of his portion in the inner field means that he is totally withdrawing from that field, regardless of whether a seller sells 'b'Ayin Yafah' or not 'b'Ayin Ra'ah.' The only thing that 'b'Ayin Yafah' adds to this sale is the fact that the seller gives a path to his brother who acquires the inner field, in order that he can have access to his field. If that is not included in the sale, in what way is the field being sold 'b'Ayin Yafah'?
</p><p>
(c) The Tosfos Rid therefore offers a different explanation. He explains that, technically, the brother who is selling his portion of the inner field <i>does</i> leave his brother a pathway, as this is the definition of 'Ayin Yafah.' However, his brother also sells him his portion of the outer field 'b'Ayin Yafah,' which means that he does not want to take the pathway which he has been offered. What is the Halachah when one person wants to give a gift but the intended recipient refuses to accept it? It stays in the possession of the original owner. Accordingly, the path through the outer field which the owner wanted to give to his brother (the owner of the inner field) remains in his possession.
</p><p>
The Tosfos Rid proves this from the Gemara in Bava Kama (35b) which says that when one person claims that another person owes him wheat, and that person says that he owes no wheat but <i>does</i> owe barley, he is not obligated to give even barley, since the claimant contradicts his claim that he owes him barley. Similarly, the brother who owns the inner field rejects the path offered to him through his sale of his portion of the outer field. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ATTACHED THINGS ARE INCLUDED IN A SALE OF A HOUSE</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one sells a house, he sells the door,
               but not the key. He sells a mortar fixed (in the
               ground), but not a movable mortar. He sells the
               fixed frame around a millstone, but not the funnel,
               Tanur or Kirayim (types of ovens);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said 'the house and everything inside', they
               are all included.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Our Mishnah is not like R. Meir, who
               says that one who sells a vineyard includes
               everything needed for the vineyard.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> Our Mishnah is even like R. Meir. R. Meir
               includes only things that are stationary. Our
               Mishnah excludes only things that are moved.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Objection:</font></b> The key is not sold, and presumably, it
               is like the door (with which it is taught), i.e. it
               is fixed!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Conclusion:</font></b> Indeed, the Mishnah is not like R. Meir.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If one sells a house, he sells the door,
               the latch (fixed in the wall), and the lock (fixed
               in the door), but not the key;
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> He sells a mortar that is carved into the wall, but
               not one that was affixed. He sells the frame around
               a millstone, but not the funnel, Tanur, Kirayim or
               millstone;
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> R. Eliezer says, anything fixed to the ground is
               like the ground.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> If he said 'the house and everything inside', all
               these are included;
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 69a - Question (R. Elazar):</font></b> Are Malbenos (frames or
               pillars) of doorways sold?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If they are fixed with plaster, surely they are
                    included. He asks about when they are on pegs.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> This question is not resolved.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Question (R. Zeira):</font></b> Are Malbenos of windows
               included?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Do we say that they are just for decoration, so
                    they are not included? Or, since they are
                    fixed, they are included?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> This question is not resolved.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question (R. Yirmeyah):</font></b> Are Malbenos of legs of a
               bed sold?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If they are fixed, surely they are included. He
                    asks about when they are not fixed.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> This question is not resolved.
<br>
<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 (4:9) bring the Mishnah and
               Beraisa.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 25:5):</font></b> If one sells a
               house, he sells the Tanur and Kirayim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam's text said that they
                    are sold. Surely this is only when they are
                    fixed. If not, they are no better than a key,
                    which is not sold!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (ibid):</font></b> He sells Malbenos of doorways that
               are fixed with plaster.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Ri mi'Gash explains that
                    these are wooden pillars. The Rashba explains
                    that they are doorframes. The Rambam said that
                    they are fixed, for the question about Malbenos
                    on pegs was unsettled, so the buyer would not
                    get them.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (ibid):</font></b> He sells the door, latch, and lock,
               but not the key. He sells a fixed mortar, but not a
               movabe mortar. He sells the fixed frame around a
               millstone, but not the Kli into which the flour
               falls, which is like a wooden basket. He did not
               sell Malbenos of bed legs, and not of windows, even
               if they are fixed with plaster, for they are just
               for decoration. If he said 'the house and everything
               inside', all these are included.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> The Gemara says that even a
                    fixed key is not sold. The Rashbam explains
                    that this is because it is easy to move, and
                    sometimes people move it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> The Rambam holds like the Ri
                    mi'Gash, that we asked whether fixed Malbenos
                    of bed legs are sold with the house. The
                    question was unsettled, so the buyer does not
                    get them. The Rashbam explains that they are
                    pieces of wood put under the legs to prevent
                    the legs from sticking to the floor. We asked
                    whether or not they are sold with the bed. The
                    Rambam explains that we asked only about fixed
                    Malbenos of windows. The Rashba holds that the
                    question was even when they are on pegs. The
                    Rashbam holds that the question was only when
                    they are on pegs, for if they are fixed, surely
                    they are acquired. I do not know what forced
                    them to explain this way.
<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 214:11):</font></b> If one sells a house, he
               sells everything fixed, e.g. the door, the latch,
               the lock, the frame around a millstone, the fixed
               mortar, the Tanur, Kirayim and millstone if they are
               fixed, and Malbenos of doorways that are fixed with
               plaster.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Din):</font></b> The Rashbam explains
                    that if they are on pegs they are easy to
                    remove, and they are not needed so much for the
                    doorway.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (42,43):</font></b> Even though the Beraisa says that
                    R. Eliezer says that he sells a mortar was
                    affixed, and Chachamim (the first Tana)
                    disagree, we follow our Stam Mishnah. We say
                    that a Stam Mishnah is an individual's opinion
                    (and the Halachah does not follow it) only when
                    the Gemara says so. Likewise, since our Mishnah
                    is R. Eliezer, a fixed oven is sold.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that if they are fixed through pegs,
               this is not considered fixed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (45):</font></b> No one argues with this! It is
                    difficult to say that he refers to the Rashbam,
                    who says that R. Zeira asked 'if you will say
                    that Malbenos of doors, (even) when on pegs,
                    are sold, what is the law of Malbenos of
                    windows?' (This implies that the Halachah is
                    that Malbenos of doors (on pegs) are sold.) If
                    so, the Rema should have said 'some say that if
                    they are fixed through pegs, this <i>is</i>
                    considered fixed', for the Mechaber rules that
                    they are not fixed! Also, the rule that the
                    Halachah follows every 'if you will say
                    that...' does not apply when the Gemara said
                    that the law is not resolved! I say that 'some
                    say that' should be deleted from the text of
                    the Rema. He comes to explain the Mechaber. One
                    might have thought that pegs make a better
                    connection than plaster; the Rema teaches that
                    this is not so. Perhaps the letters 'Yud
                    Aleph', which designate Sa'if 11, became
                    mistaken for 'Yesh Omrim.' Alternatively,
                    sometimes the Rema says 'some say that' even
                    when no one disagrees.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> He did not sell the key, even
               if it is fixed in the door, nor a moveable mortar or
               funnel, nor Malbenos of bed legs or of windows, even
               if they are fixed with plaster, for they are just
               for decoration. If he said 'the house and everything
               inside', they are all sold.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah):</font></b> The Tur did not
                    understand the connection of Malbenos of bed
                    legs to sale of a house. According to the
                    Rambam and Ri mi'Gash, we can say that since
                    they are not moved with the bed, they are Batel
                    to the ground and are sold with the house.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (46):</font></b> Even if Malbenos of bed legs are
                    fixed, since they pertain to the bed and not to
                    the ground, they are not sold. Ir Shushan says
                    that we discuss Malbenos that are not fixed.
                    This is wrong. The Magid Mishneh says that we
                    asked about fixed Malbenos. Even though the
                    Rashbam says that we asked about Malbenos that
                    are not moved with the bed, we cannot infer
                    that they are fixed. Presumably he agrees that
                    they are not sold even if they are fixed, for
                    they do not pertain to the house. The Tur did
                    not say that the Rambam needed to teach about
                    when they are fixed.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> The Rashbam (69a DH Malbenos) explained
                    that we asked whether Malbenos of bed legs are
                    sold with the <i>bed</i>!
<br>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Our Mishnah is not like R. Meir, for he
          says that one who sells a vineyard includes everything
          needed for the vineyard.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> Our Mishnah is even like R. Meir. R. Meir
          includes only things that are stationary. Our Mishnah
          excludes only things that are moved.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection:</font></b> The key is not sold, and presumably, it is
          like the door (with which it is taught), i.e. it is
          fixed!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Conclusion:</font></b> Indeed, the Mishnah is not like R. Meir.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If one sells a house, he sells the door, the
          latch (fixed in the wall), and the lock (fixed in the
          door), but not the key;
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	He sells a mortar that is carved into the wall, but not
          one that was affixed. He sells the frame around a
          millstone, but not the funnel, Tanur, Kirayim or
          millstone;
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	R. Eliezer says, anything attached to the ground is
          like the ground.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	If he said 'the house and everything inside', all these
          are included;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In any case, he did not include a pit, cistern or
               Yatzi'a.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT IS CONSIDERED LIKE LAND</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a pipe was hollowed out and then attached
          (it is considered a Kli), it disqualifies a Mikvah. (If
          three Lugim of water from it fall into an incomplete
          Mikvah, the Mikvah is disqualified, even when it will
          have enough water);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it was attached and then hollowed out, it does
               not disqualify a Mikvah (for it is not considered a
               Kli).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa is not like R. Eliezer, nor like
          Chachamim!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What did R. Eliezer say that is unlike
               this Beraisa?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> His opinion about the house
                    (anything attached to the ground is like the
                    ground) is unlike the Beraisa.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection:</font></b> Perhaps he holds that one sells
                    generously (but not everything attached is
                    considered like the ground), and Chachamim hold
                    that he sells stingily!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1:</font></b> R. Eliezer's opinion about a beehive
               (coming up) is unlike the Beraisa.
<br>

sjt:
</p><p>
<font><b>2) WHAT PARTS OF A HOUSE ARE NOT INCLUDED IN THE SALE OF A HOUSE</b></font><b>
<br>OPINIONS:</b> The Gemara quotes a Beraisa which discusses whether various parts of a house are included in the sale of a house. The Rabanan list many parts that are not included in the sale. Rebbi Eliezer argues that parts of the house that are connected to the ground are considered part of the ground. In exactly what respect does Rebbi Eliezer argue with the Rabanan? What parts does Rebbi Eliezer maintain are included in the sale of the house which the Rabanan maintain are not included in the sale?
</p><p>
(a) The <b>RASHBAM</b> (DH Rebbi Eliezer) explains that Rebbi Eliezer argues with the Rabanan only with regard to one item: an affixed mortar (which was constructed first and then attached to the ground). The Rabanan maintain that only a mortar which is carved out of the stone of the ground is included in the sale of the house, but not a mortar that was affixed to the house. When Rebbi Eliezer says that anything attached to the ground is like the ground, he means that whatever is attached -- whether it was carved out of the ground or whether it was attached to the ground -- is now considered part of the house. Rebbi Eliezer agrees, however, that the ovens and mills are not considered part of the house, even though they are attached, since they are weaker.
</p><p>
The <b>RASHASH</b> writes that this also seems to be the view of the <b>ROSH</b>. The Rosh mentions the Halachah with regard to a mortar only when he discusses the Mishnah. He does not mentioned the discussion about the mortar when he quotes the Beraisa, even though he <i>does</i> quote the rest of the Beraisa without mentioning Rebbi Eliezer's opinion. The Rosh apparently understands that the rest of the Beraisa is not subject to dispute.
</p><p>
(b) The <b><b><b>RI</b></b> MI'GASH</b> explains that Rebbi Eliezer argues with regard to ovens and mills as well, and he maintains that as long as they are connected to the ground they are considered part of the house. This is also the view of the <b>TUR</b> (CM 214) who rules that when one sells a house he includes in the sale all ovens and mills that are connected to the ground.
</p><p>
The Rashash questions how the Tur can rule against his father, the Rosh, whose opinion he almost always follows (and when he rules differently, he mentions his father's opinion). The Rosh clearly maintains that only the ovens and mills that were carved out from the ground are sold together with the house, and not ovens and mills that were formed and later attached.
</p><p>
Perhaps the Tur had a different text of the Gemara. There is a variant Girsa which says that the oven is sold with the house. Even though the same text (see <b>BACH</b> CM 214) says that the mill is not sold, it is possible that when the Tur says that these items are sold when they are 'connected to the house,' he means that even a mill is considered connected to the house, unlike the case mentioned in the Gemara in which the mill is not considered connected to the house. (Y. Montrose)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT IS CONSIDERED LIKE LAND? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Eliezer):</font></b> A beehive is like land:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We may write a Pruzbul on it (a lender may
               empower Beis Din to collect money owed to him by
               people who own land. This prevents the debts from
               being cancelled in Shemitah);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It is not Mekabel Tum'ah in its place;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If one took honey from it on Shabbos (b'Shogeg)
               he is Chayav Chatas, for this is like reaping.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Chachamim say, it is not like land. We may not write a
          Pruzbul on it. It is Mekabel Tum'ah in its place. If one
          took honey from it on Shabbos he is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection (of Answer #1, Sof 65b):</font></b> This does not show
          that R. Eliezer argues with the Beraisa;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Elazar):</font></b> R. Eliezer learns from 'va'Yitbol
               Osah b'Ya'aros ha'Devash'. Just like uprooting from
               a forest is a Melachah, also taking honey from a
               hive is a Melachah (since the Torah considers it to
               be attached).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (to Question 3:b:1, 65B):</font></b> R. Eliezer's
          opinion about a baker's board is unlike the Beraisa:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Eliezer):</font></b> If a baker's board was
               fixed into the wall, it cannot become Tamei;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, it can become Tamei.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Summation of question (3:b, 65b):</font></b> The Beraisa is not
          like R. Eliezer. He considers attached Kelim like land,
          even if they were made and later attached;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Also, it is not like Chachamim. They consider
               attached Kelim to be like Metaltelim (movable
               objects), even if they were made after they were
               attached!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Really, the Beraisa is R. Eliezer. He is
          more lenient about the board because wooden Kelim that
          without a container are Mekabel Tum'ah only mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> This implies that Mayim She'uvim
               (water that was in a Kli) disqualifies a Mikvah
               mid'Oraisa!
<br>
<br>

sjt:
<font><b>1) DOES 'MAYIM SHE'UVIM' DISQUALIFY A MIKVAH MID'ORAISA OR MID'RABANAN?</b></font><b>
<br>OPINIONS:</b> Rebbi Eliezer says that a board used by bakers which was later attached to a wall is Tahor. The Gemara asks whether Rebbi Eliezer agrees with the law in the Beraisa (65b) which discusses the status of a pipe attached to a Mikvah. The Beraisa states that only if the pipe was fashioned into a pipe <i>before</i> it was attached to the Mikvah does it render the Mikvah invalid through the Pesul of Mayim She'uvim (water drawn by a vessel). If the pipe was fashioned into a pipe only <i>after</i> it was attached to the Mikvah, it does not have the status of a vessel and water that passes through it is not considered Mayim She'uvim. Does Rebbi Eliezer, who says that the baker's board can be attached to the wall and still be Tahor, argue with the Beraisa?
</p><p>
The Gemara explains that Rebbi Eliezer agrees with the Beraisa. The reason why he says that that the baker's board is Tahor is that it can only become Tamei mid'Rabanan at most, because it is 'Peshutei Kli Etz,' a wooden vessel with no receptacle ('Beis Kibul'), which cannot become Tamei mid'Oraisa. Rebbi Eliezer agrees that a pipe, which can become Tamei mid'Oraisa, renders water drawn with it Mayim She'uvim which can invalidate a Mikvah.
</p><p>
The Gemara asks that this implies that Mayim She'uvim involves a Halachah mid'Oraisa, but it is known that the Pesul of Mayim She'uvim is only mid'Rabanan.
</p><p>
Is the Pesul of Mayim She'uvim indeed mid'Rabanan, as the Gemara assumes?
</p><p>
(a) <b>TOSFOS</b> (66a, DH Michlal) quotes the <b>RASHBAM</b> and <b>RABEINU TAM</b> who maintain that Mayim She'uvim can invalidate a Mikvah mid'Oraisa. They quote the Toras Kohanim which derives from a verse that a person may not use a Mikvah filled with Mayim She'uvim. Rabeinu Tam cites further proof from the Mishnah in Mikva'os (2:4) which says that if the first Revi'is of water in a Mikvah is a Revi'is of Mayim She'uvim, the Mikvah is invalid. However, if the first Revi'is of water is valid water for a Mikvah, it requires three Lugin to invalidate it. The Mishnah implies that the first Halachah is mid'Oraisa, and the second Halachah is mid'Rabanan. (See <b>MAHARSHA</b> who explains how Rabeinu Tam and the Rashbam understand the Gemara here.)
</p><p>
However, Tosfos quotes the <b><b><b>RI</b></b></b> who refutes these proofs. The Toras Kohanim quotes the verse only as an Asmachta. The Mishnah in Mikva'os may mean that since a Revi'is of water is enough for the immersion of small vessels (such as needles), the Rabanan considered it an important amount of water because it can be used as a Mikvah for small vessels. This is why they enacted that a Mikvah which starts with this amount of Mayim She'uvim is invalid mid'Rabanan.
</p><p>
(b) The Ri, as quoted by Tosfos, maintains that the concept of Mayim She'uvim is almost entirely mid'Rabanan (with the exception of immersing in Mayim She'uvim placed in containers). This means that if a person fills up a pit in the ground (and not a vessel) with Mayim She'uvim, water drawn with vessels, it is a valid Mikvah mid'Oraisa (and it is Pasul only mid'Rabanan). The <b>RASHBA</b> supports this explanation by quoting the Gemara in Yevamos (82b) which states that a Mikvah which contains forty Se'ah of valid water (the minimum amount necessary for a valid Mikvah) no longer can become Pasul, unless one takes out a Se'ah of water and replaces it with a Se'ah of Mayim She'uvim, and he does this until most of the water of the Mikvah is Mayim She'uvim. The Mikvah water becomes Batel b'Rov and thus the Mikvah becomes Pasul. (The Rashba maintains that this is not an ordinary case of Batel b'Rov, but rather a 'Mar'is ha'Ayin' form of Batel b'Rov; that is, it <i>looks</i> like there is no longer a majority of valid Mikvah water.) (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>THE PESUL OF MAYIM SHE'UVIM IS MID'RABANAN</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'> 65b (Beraisa):</font></b> If a pipe was hollowed out and then
               attached (it is considered a Keli), (so) it
               disqualifies a Mikveh. (If three Lugim of water from
               it fall into a Mikveh with less than 40 Se'ah of
               water, the Mikveh is disqualified even when it will
               have enough water)l
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it was attached and then hollowed out, it does
               not disqualify a Mikveh. (It is not considered a
               Keli.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> This is unlike R. Eliezer, and unlike
               Chachamim!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah - R. Eliezer):</font></b> If a baker's board was
                    fixed into the wall, it cannot become Tamei;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Chachamim say, it can become Tamei.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>R. Eliezer considers attached Kelim like land,
                    even if they were made and later attached.
                    Chachamim consider attached Kelim like
                    Metaltelim, even if they were made after they
                    were attached!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #1:</font></b> The Beraisa is R. Eliezer. He is more
               lenient about the board, for Tum'ah of wooden Kelim
               without a receptacle is only mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Objection:</font></b> This implies that Mayim She'uvim (water
               that was in a Keli) disqualifies a Mikveh
               mid'Oraisa. We hold that it is a Pesul mid'Rabanan!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2:</font></b> Really, the Beraisa is Chachamim. They
               are lenient about the pipe because Mayim She'uvim
               disqualifies a Mikveh only mid'Rabanan.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it was hollowed out and then attached they
                    are stringent, for it was a Keli before it was
                    attached.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Shevu'os 5b):</font></b> Three Lugim of She'uvim
               disqualify an incomplete Mikveh. One may add
               She'uvim to a complete Mikveh, or to an incomplete
               Mikveh through Hamshachah (pouring on the ground,
               and it flows into the Mikveh).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Mikva'os 4:1,2):</font></b> Mid'Oraisa one may
               be Tovel in 'Mikve Mayim' of 40 Sa'im, whether or
               not it is She'uvim. Mid'Rabanan, Mayim She'uvim is
               Pasul for Tevilah. Further, three Lugim of She'uvim
               disqualifies a Mikveh. Even though it is
               mid'Rabanan, it is learned from a Hekesh. 'Ach Mayan
               u'Vor Mikve Mayim Yihyeh Tahor' - Mikveh is written
               between a spring, which is totally natural, and a
               pit, which is filled totally by man. A Mikveh may
               not be totally Mayim She'uvim like a pit, nor must
               it be totally natural like a spring.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Mikva'os 1):</font></b> R. Tam says that it is a
               tradition from Sinai that three Lugim of She'uvim
               disqualify a Mikveh at the beginning. If three Lugim
               of She'uvim fall into an incomplete Mikveh, they
               disqualify it mid'Rabanan. He learns from R.
               Eliezer's law, that if the first Revi'is of water in
               a Mikveh was She'uvim, it disqualifies it. If three
               Lugim of Mayim She'uvim fall into an incomplete
               Mikveh, they disqualify it. Surely, he is more
               stringent about Mayim She'uvim at the beginning
               because it is mid'Oraisa!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rejection (Rosh citing the Ri):</font></b> No, R. Eliezer
                    is more stringent about Mayim She'uvim at the
                    beginning because it is a full Pasul Mikveh. A
                    Revi'is is the Shi'ur Mikveh for Tevilas Kelim.
                    We never find a tradition from Sinai about
                    Mayim She'uvim. Even if we did, sometimes we
                    say so about a mid'Rabanan law that is as clear
                    as a tradition from Sinai.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Rashbam (66a DH u'Masmah, according to Rashash):
               Mid'Oraisa, a Mikveh must begin with (40 Sa'im of)
               water that is not She'uvim. If Mayim She'uvim falls
               in later, it is Batel. Yevamos 82b teaches that if a
               majority of She'uvim falls in, it disqualifies
               mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Tosfos (66a DH Michlal):</font></b> The Rashbam and R. Tam say
               that if the entire Mikveh is Mayim She'uvim it is
               Pasul mid'Oraisa.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Source #1 (Toras Kohanim Shemini Parashah 9:1):
                    Had it said 'Mikve Mayim Yihyeh Tahor', we
                    would have thought that one may pour water to
                    make a Mikveh. Therefore, it says 'Mayan (u'Vor
                    Mikve Mayim...)' to teach that a Mikveh must be
                    like a spring, i.e. it is totally bi'Yedei
                    Shamayim.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection (Tosfos ibid.):</font></b> Perhaps this is only
                    an Asmachta.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Tosfos (ibid.):</font></b> The Ri says that even if the entire
               Mikveh is Mayim She'uvim it is Pasul only
               mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Source #1 (Tosefta Mikva'os 2:1):</font></b> If one left a
               Mikveh empty and later found it full, it is Kosher,
               for this is a Safek about Mayim She'uvim. Surely, we
               are lenient about the Safek because even all Mayim
               She'uvim is Pasul only mid'Rabanan!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps initially there was water
                    inside that was not She'uvim.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rejection:</font></b> It does not say that the Mikveh was
               <i>lacking</i>, rather, that it was empty!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (and counter-proof - Rashba in Tosfos
                    ibid.):</font></b> The Tosefta says that the Mikveh is
                    Kosher because the Chazakah is that Mikva'os
                    are Kesherim, i.e. people make Mikva'os for
                    Tevilah, so we may assume that it was not
                    filled with She'uvim. If all Mayim She'uvim was
                    Pasul mid'Rabanan, we would be lenient even
                    without the Chazakah!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Support #1 (Seifa of the Tosefta):</font></b> If there is
                    a Keli near where water flows from a pipe
                    (which is not a Keli) into a Mikveh, and we are
                    unsure whether the water went directly from the
                    pipe or if it went through the Keli, the Mikveh
                    is Pasul, for the Pesul (the Keli) is evident.
                    If the majority was Kosher water, the Mikveh is
                    Kosher.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rashba:</font></b> We are stringent when it is possible
                    that the majority was She'uvim for this is
                    Pasul mid'Oraisa!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Support #2 (Tosefta Mikva'os 2:5):</font></b> If there
                    were two Mikva'os, one Kosher and one of
                    She'uvim, and one does not know in which he was
                    Tovel from Tum'ah mid'Oraisa and he touched
                    Taharos, they are Safek Temei'im.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Rashba:</font></b> We are stringent because it is a Safek
                    mid'Oraisa!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Source #2 (for Ri - Pesachim 17b):</font></b> Liquids (water)
               of Beis Mitbechai (the place where Korbanos are
               rinsed) in Kelim are Temei'im. If they are in the
               ground, they are Tehorim. In the ground is Tahor
               only if there is a Revi'is, for [mid'Oraisa] it is a
               valid Mikveh to be Tovel small Kelim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The Gemara is Metaher even Mayim She'uvim, for
                    it contrasts water in the ground to water in
                    Kelim. Also, Stam liquids of Beis Mitbechai are
                    She'uvim.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Rejection #1 (Rashba in Tosfos ibid.):</font></b> Indeed, the
               Tosefta discusses only liquids that are now in the
               ground; it is Metamei if they <i>were once</i> in Kelim,
               and is Metaher if they were never in Kelim.
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> Rejection #2 (R. Moshe of Pontiza in Tosfos ibid.):
               Even though Mayim She'uvim disqualifies a Mikveh
               mid'Oraisa, water in the ground is Tahor because
               this was through Hamshachah, i.e. when water falls
               on level ground it spreads out. A Mikveh made
               totally from Mayim She'uvim via Hamshachah is Kosher
               mid'Oraisa.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Question:</font></b> Only the minority may be from Mayim
               She'uvim via Hamshachah (Temurah 12a)!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Answer:</font></b> That is mid'Rabanan.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Question:</font></b> If a Mikveh of all Mayim She'uvim is Pasul
               mid'Oraisa, we understand why three Lugim are Posel
               mid'Rabanan. People used to Tovel in stinking water
               in caves. Afterwards, they would pour three Lugim of
               She'uvim on their heads. People used to say that the
               Mikveh is not Metaher, only the Mayim She'uvim are
               (Shabbos 14a), so Chachamim decreed that three Lugim
               are Posel. However, if all She'uvim is Kosher
               mid'Oraisa, why is there any decree about Mayim
               She'uvim?
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Answer:</font></b> It is a decree lest people immerse in a
               Keli. The Torah requires a Mikveh resembling a
               spring, i.e. in the ground.
<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 201:3):</font></b> The 40 Sa'im of a Mikveh
               may not be She'uvim. If they are, it is Pasul.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If the entire Mikveh is She'uvim it is Pasul
               mid'Oraisa. We must be stringent about a Safek. If
               the majority is Kosher and a minority is She'uvim,
               it is Pasul mid'Rabanan, so we are lenient about a
               Safek.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH veha'Ran):</font></b> The Ra'avad holds
                    that She'uvim is Pasul mid'Oraisa if one poured
                    the water in. If by itself the water came from
                    the Kelim to the Mikveh, it is Pasul
                    mid'Rabanan. R. Shimshon holds that She'uvim in
                    a Keli that is Mekabel Tum'ah is Pasul
                    mid'Oraisa. If the Keli is not Mekabel Tum'ah,
                    e.g. it is of stone, the Mikveh is Pasul
                    mid'Rabanan.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>IS THE PESUL OF MAYIM SHE'UVIM EVER MID'ORAISA? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection #1:</font></b> The Halachah is, it disqualifies a
               Mikvah only mid'Rabanan!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection #2:</font></b> R. Yosi ben R. Chanina taught that
               R. Eliezer and Chachamim argue about a metal board!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, the Beraisa is Chachamim. They are
          lenient about the pipe because Mayim She'uvim
          disqualifies a Mikvah only mid'Rabanan.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If so, they should be lenient even if it was
          hollowed out and then attached!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> They are stringent then, for it was considered
          a Kli before it was attached.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>OTHER LAWS SPECIAL TO LAND</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav Yosef):</font></b> If one intended that rain water
          wash the frame around a millstone, (is this like
          intention for something detached, i.e.) does the water
          now Machshir (enable) Peros to become Tamei? (Water is
          Machshir only if one intended to use to wash an object
          that was detached.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to R. Eliezer, anything attached to the
               ground is like the ground, so surely the water is
               not Machshir;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The question is according to Chachamim (Rashbam -
               of our Mishnah; Tosfos - in the Mishnah of the
               board).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This question is not resolved.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Rav Nechemyah brei d'Rav Yosef instructed Rabah bar Rav
          Huna to authorize a certain girl to collect a tenth of
          her father's estate (for her dowry), even from the frame
          around a millstone. (This is like R. Eliezer, who
          considers it like land.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> In Rav Kahana's academy, we collected even
          from rental of houses.
<br>

<p>

sjt:
</p><p>
<font><b>2) WHY 'MAYIM SHE'UVIM' INVALIDATES A MIKVAH</b></font><b>
<br>OPINIONS:</b> Rebbi Eliezer says that a board used by bakers which was later attached to a wall is Tahor. The Gemara asks whether Rebbi Eliezer agrees with the law in the Beraisa (65b) which discusses the status of a pipe attached to a Mikvah. The Gemara concludes that the Beraisa follows the view of the Chachamim who argue with Rebbi Eliezer and maintain that a baker's board is Tamei. If the Beraisa follows the view of the Chachamim, then why does it say that if the pipe was fashioned into a pipe only after it was affixed to the ground, the water that flows through it does <i>not</i> invalidate the Mikvah? The Gemara answers that Mayim She'uvim is only a Pesul mid'Rabanan.
</p><p>
If the Pesul of Mayim She'uvim is only mid'Rabanan, then why do the Chachamim rule that water that comes into a Mikvah through a pipe which was fashioned into a pipe and then affixed to the Mikvah invalidates the Mikvah? If the Pesul of Mayim She'uvim is only mid'Rabanan, they should be lenient in such a case. The Gemara answers that the Chachamim maintain that if something was made into a vessel and only afterward affixed to the ground, it retains its status of a vessel.
</p><p>
What is the Gemara's main point? Is the Gemara's intention to teach that the Chachamim maintain that the Pesul of Mayim She'uvim is mid'Rabanan, or is the Gemara's intention to teach that the Chachamim maintain that a vessel fashioned before it was affixed to the ground remains Tamei?
</p><p>
(a) The <b>RASHBAM</b> (DH Iy Hachi) explains that the Gemara's intention is to teach that the Chachamim maintain 'Kol ha'Mechubar l'Karka Eino k'Karka' -- 'anything attached to the ground is <i>not</i> like the ground.' However, they do not apply this law to Mayim She'uvim since it is only a Pesul mid'Rabanan. The Gemara asks that according to the Chachamim, even something which was attached to the ground after it was formed into a pipe should pose no problem of Mayim She'uvim. The Gemara answers that such a vessel is not considered part of the ground, but rather a vessel, even after it is attached to the ground.
</p><p>
The <b>TORAS CHAIM</b> asks that this does not seem to be the flow of the Gemara. The Gemara makes a point of saying that the Pesul of Mayim She'uvim must be mid'Rabanan, and it implies that this is relevant to the opinion of the Chachamim. Why, though, does it make a difference whether or not the Pesul is mid'Oraisa or mid'Rabanan? Even if the Chachamim maintain that the Pesul of Mayim She'uvim is mid'Oraisa, they still may rule that a pipe that was fashioned into a vessel before it was attached to the ground is always considered a vessel, while something that was first attached to the ground and only afterwards fashioned into a vessel is not a vessel. This explains both the Beraisa about the baker's board and the Mikvah, and there is no need to discuss whether the Pesul of Mayim She'uvim is mid'Rabanan or mid'Oraisa. Why does the Gemara discuss this point at all?
</p><p>
(b) The <b>TORAS CHAIM</b> therefore gives a different explanation for the Gemara. He explains that when the Gemara says that the Pesul of Mayim She'uvim is mid'Rabanan, it means that even an object that was attached to the ground and only afterwards made into a vessel retains the Halachic status of a vessel. However, Mayim She'uvim that was transported through such a vessel invalidates a Mikvah only due to a decree of the Rabanan. The Rabanan decreed that three Lugin of Mayim She'uvim invalidates a Mikvah, in order to prevent a person from immersing in a vessel or in a Mikvah filled only with Mayim She'uvim (both of which are invalid according to Torah law; see previous Insight). When a vessel is fashioned from an object already attached to the ground, the Rabanan did not apply their Gezeirah because the reasons for the Gezeirah are not applicable. A person who immerses in a valid Mikvah, into which water was brought via a pipe that was fashioned only after it was attached to the ground, will not mistakenly think that he may immerse himself in a vessel. Since the pipe is firmly attached to the ground, he would not confuse it with immersing in a vessel. The Gemara asks that if the reason why the Gezeirah does not apply is that the pipe is attached to the ground, then a pipe that was fashioned into a pipe before it was attached to the ground also should not invalidate a Mikvah, since it is also presently attached to the ground. The Gemara answers that because the pipe was called a vessel before it was attached, the Gezeirah applies. However, in both cases (a pipe attached before or after it was fashioned), the Rabanan maintain that the vessel is not deemed attached to the ground. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT IS INCLUDED IN A CHATZER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one sells a Chatzer, he sells the houses,
          pits and caves, but not Metaltelim;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he said 'it and everything inside', all these are
          included;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	In any case, he did not sell the bathhouse or olive-
          press;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Eliezer says, one who sells a Chatzer sells only the
          level ground (but not houses or pits).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> If one sells a Chatzer, he sells
          the outer and inner houses and sand patches;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Stores that open to it are included, but not stores
          that do not open to it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Stores that open to it and to another Chatzer are
               sold.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Eliezer says, one who sells a Chatzer sells
               only the ground.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa said that stores that open to it
          and to another Chatzer are sold. R. Chiya taught that
          they are not sold with it!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> They are sold only if most of their use is in
          the Chatzer that was sold.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> R. Eliezer says, one who sells a Chatzer
          sold only the level ground.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Version #1 (Rava):</font></b> If he called it 'Dirta' (a
          dwelling), all agree that houses are included;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue when he called it 'Darta' (the Aramaic
               translation of Chatzer). R. Eliezer says, this
               connotes the level ground;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, it connotes houses.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Version #2 (Rava):</font></b> If he called it 'Darta', all agree
          that houses are included;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> They argue when he called it 'Chatzer':</font></b> R.
               Eliezer says that Chatzer connotes the level ground;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, this is like the Chatzer of the
               Mishkan (which included the Mishkan).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Version #1 (Rava):</font></b> If one sells a sand patch and
          property by the river (from which one gets gold or
          silver, or fish), a Chazakah in one does not acquire the
          other.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Shmuel taught that if Reuven buys 10 fields
          in 10 countries from Shimon, once he makes Chazakah in
          one of them, he acquires all of them!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> There, since they all serve the same purpose,
          and all land is connected, one Kinyan suffices;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, they serve different purposes, so they are
               not acquired together.
<br>
<br>

sjt:
<font><b>1) THE STATUS OF A HOUSE</b></font><b>
<br>QUESTION:</b> The Gemara discusses whether an Itzteruvil (see Background to Bava Basra 65:11) -- which was formed into a Kli before it was attached to the ground -- is considered like Talush (detached from the ground) or Mechubar (attached to the ground). According to the <b>RASHBAM</b>, the Gemara is addressing the opinion of the Rabanan who rule that when a person sells a house, the Machteshes Kevu'ah -- which was formed into a Kli and then attached to the ground -- is not included in the sale of the house. The Gemara is asking whether the Rabanan maintain that an object that was not attached and then was attached to the ground is considered Talush, and that is why it is not sold with the house (because only objects that are attached are sold with the house), or whether they maintain that such an object <i>is</i> considered Mechubar but it is not sold with the house because a seller sells with an 'Ayin Ra'ah.'
</p><p>
The Rashbam asks how the Gemara could entertain the possibility that the Rabanan maintain that an object that was fashioned into a Kli and then attached to the ground ('Talush v'liv'Sof Chibro') is considered Talush. The Rabanan themselves say that an Itzteruvil <i>is</i> sold with a house, even though it is a utensil which is 'Talush v'liv'Sof Chibro.'
</p><p>
The Rashbam answers that the Itzteruvil is made with the primary intention of being attached to the house, and therefore it is considered part of the house with regard to the sale of the house. It is no different from the walls of a house which certainly are sold with the house, even though they are considered Talush with regard to the law of Hechsher Zera'im.
</p><p>
The Rashbam implies that the walls of the house are judged like every other object which is 'Talush v'liv'Sof Chibro.' Why, then, does the Halachah state that when a person finds a house on the property of a Ger who died without heirs and he draws pictures on its wall, he acquires the house through a Kinyan Chazakah? Why should he acquire the house with a Chazakah? If the walls of a house are 'Talush v'liv'Sof Chibro' and thus are considered Talush, then a Kinyan Chazakah should not be a valid Kinyan.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>REMA</b> (CM 95:1) cites a dispute with regard to whether or not 'Talush v'liv'Sof Chibro' is considered like Talush or Mechubar (Karka). He cites the <b>RASHBAM</b> and <b>RABEINU CHANANEL</b> who rule that it <i>is</i> considered Mechubar. He then cites the <b>BA'AL HA'ITUR</b> who rules that a pipe that was attached after it was carved out is not considered Mechubar. The <b>SHACH</b> asks that the <b>SHULCHAN ARUCH</b> in a number of other places assumes that a house is considered Mechubar and has the status of Karka. The Shulchan Aruch (CM 227:32) rules that the law of Ona'ah does not apply to money paid for the rent of land, because such money is considered like land (as the Gemara here says), and Ona'ah does not apply to land. The Shulchan Aruch continues and says that even if a person rents a large palace for a single Dinar per year, or a small barn for a Dinar per day, there is no Ona'ah. The Rema should point out that according to the Ba'al ha'Itur there <i>is</i> Ona'ah, since the money was paid for the use of the house (which is not considered Karka) and not only for the use of the land!
</p><p>
The <b>SHACH</b> concludes that even the Ba'al ha'Itur might agree that parts of a house (such as a wall), which were attached after they were fashioned, differ from a Kli. Since a house is made to shelter the ground that it covers and to serve the people who inhabit it, it is considered Mechubar according to all opinions. This explains why a house may be acquired through a Kinyan Chazakah. Similarly, a creditor may appropriate a house as repayment for a loan (made with a Shtar) from those who purchased the house from the debtor; the house is Meshubad to the loan just like land. The Shach points out that Tosfos writes that a house is considered Mechubar with regard to several laws, such as the Shevu'ah of a Shomer and a Shomer's liability (Tosfos to Shevuos 42b, DH Shomer Chinam), and Ribis (Tosfos to Bava Basra 61a, DH Im Eino).
</p><p>
(b) The <b>KETZOS HA'CHOSHEN</b> points out that the Rashbam here clearly disagrees with this approach. The <b>MAGEN AVRAHAM</b> (OC 637:7) also disagrees with the Shach and writes that the proof from Kinyan Chazakah is weak, because the Chazakah is made on the <i>land</i> and the house is acquired only through Kinyan Agav (or, in the case of land that is Hefker, through Kinyan Chatzer, as the Ketzos ha'Choshen adds). Tosfos, who writes that a house is considered Mechubar, rules like Rabeinu Chananel who says that an object which is 'Talush v'liv'Sof Chibro' is considered like Karka.
</p><p>
With regard to a Shibud, it is possible that one may collect a house as repayment for a loan even if 'Talush v'liv'Sof Chibro' is not considered like Karka, because a Shibud depends on Semichus Da'as; a person feels confident in his ability to collect a house as repayment for his loan, since a house is not dismantled and moved like Metaltelin. (The Rabanan gave a special status to Karka in most Halachos d'Rabanan because of Semichus Da'as, and not because it is an essentially different form of property than Metaltelin. See Insights to Bava Kama 12:1. The Ketzos ha'Choshen gives a different reason for why the Halachah of Shibud might differ from other Halachos with regard to houses.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>FROM WHAT DO WE COLLECT PARNASAH?</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'> 66b:</font></b> Rav Nechemyah brei d'Rav Yosef instructed Rabah
               bar Rav Huna to authorize a certain girl to collect
               a tenth of her father's estate (for her dowry), even
               from the frame around a millstone. (It is considered
               like land.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Ashi):</font></b> In Rav Kahana's academy, we collected
               even from rental of houses.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Kesuvos 50b (R. Chiya bar Yosef):</font></b> Rav was Zan from
               <i>Aliyah</i> wheat.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Possibility #1:</font></b> 'Zan' refers to Parnasah (dowry).
               'Aliyah' refers to the estimation of how much the
               father would have given, like Shmuel;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Shmuel):</font></b> We assess the father's generosity to
                    determine how much Parnasah to give to his
                    daughters (from his estate after he died).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Possibility #2:</font></b> 'Zan' literally means fed. 'Aliyah'
               refers to nice teachings said in the attic:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Yitzchak bar Yosef):</font></b> In the attic, they
                    enacted that daughters be fed (also) from
                    Metaltelim.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 69b (Rava):</font></b> The Halachah is, food for a widow and
               daughters, a Kesuvah, and Parnasah are collected
               only from land, but not from 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 and Rosh (Kesuvos 30b and 6:19):</font></b> The Halachah
               is, Kesuvah, food and Parnasah are taken only from
               land, but not from Metaltelim. Nowadays, Chachamim
               of the Yeshivos enacted to collect the Kesuvah even
               from Metaltelim, so also food is collected from
               Metaltelim, for we hold that Tanai (stipulations of
               the) Kesuvah are like the Kesuvah. Parnasah is not a
               Tanai Kesuvah, so its initial law remains (it is
               collected only from land).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (DH Bas):</font></b> When we assess the father's
                    intent, it is based on his land and Metaltelim.
                    Even when we do not assess, we give a tenth of
                    all property, including Metaltelim. There is no
                    reason to give a tenth only of land, but to
                    allow paying with money or land. Rather, the
                    orphans owe a tenth of all his property, but
                    they pay only from land. Why does the Rambam
                    say that it is a tenth only of the land?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> Rebbi taught that we collect food from
               Metaltelim, and all the more so we collect Parnasah
               from Metaltelim. That is letter of the law. Nowadays
               we collect from Metaltelim only due to an enactment.
               This is only for what was enacted. However, if a man
               married off a daughter in his lifetime and gave to
               her Metaltelim, we assess his intent and give to
               other girls from Metaltelim. 'Parnasah is collected
               only from land' does not mean that she gets only a
               tenth of the land. Rather, she gets a tenth of all
               the property. One normally gives a dowry according
               to (all) his wealth, i.e. land and Metaltelim. The
               debt is paid only from land, like the Kesuvah and
               food.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tiferes Shmuel (2):</font></b> I say that since Chachamim
                    enacted the Shi'ur (of a tenth), even though it
                    is not Tanai Kesuvah, and we see that Chachamim
                    were stringent to collect it from sold
                    property, without concern for buyers, all the
                    more so Ge'onim enacted to collect from
                    Metaltelim also for Parnasah, without concern
                    for heirs. Tosfos (51a DH mi'Mekarka'i) says
                    so.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Ishus 20:2):</font></b> The tenth for a dowry
               is not a Tanai Kesuvah, so even after the
               Acharonim's enactment, it is collected only from
               land.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> It is a tenth only of the land.
                    For Parnasah, we ignore Metaltelim. This is
                    clear from Halachah 12. The Ramban and Rashba
                    hold that when we assess the father's intent,
                    it is based on his land and Metaltelim. This is
                    like Rav in Kesuvos 50b. It seems that the
                    Rambam agrees, for he distinguishes land from
                    Metaltelim only regarding a tenth.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (ibid):</font></b> It can be collected from rental of
               land. If the brothers wanted to give to her money in
               place of a tenth of the land, they may.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rashba says that presumably,
                    we collect from rental of land when the father
                    rented it out and died before the rental was
                    due. Since rental is due only at the end, it is
                    like land, like the house itself. The father
                    already acquired rental for the time that the
                    tenant lived there, just it is not due until
                    the end. This is why it says <i>even</i> rental.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rambam (12):</font></b> If an orphan girl's mother or
                    brothers married her off and gave to her 100
                    Zuz, when she matures they must pay proper
                    Parnasah, either our estimate of her father's
                    intent, or a tenth of the land.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>Nimukei Yosef (Bava Basra 35b DH Garsinan):
                    Rental is like land when the father rented out
                    land and died before it was due at the end of
                    the year. It is like Peros that must remain
                    attached to the land a while longer. If the
                    heirs rented it out after the father died, this
                    is Ra'uy (destined to be collected). Kesuvah
                    and Parnasah are not collected from Ra'uy. If
                    the father rented out land and payment was due
                    before he died, this is like Metaltelim!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Tosfos (50b DH Mai):</font></b> We estimate to give less
                    than a tenth, but not more. Our estimate can
                    help the girl only to collect from Metaltelim.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (EH 113:2):</font></b> Parnasah is not a Tanai
               Kesuvah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Chelkas Mechokek (1 and Beis Shmuel 5):
                    Therefore, if a woman pardoned her Kesuvah, her
                    daughter did not lose Parnasah, even according
                    to the Rambam, who says that she lost food.
                    Also, a man can command not to give it, for it
                    is not his obligation. It is his sons'
                    obligation, provided that their father was
                    silent.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Therefore, even after the
               enactment of Rishonim and Acharonim, it is collected
               only from land.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav b'Shem):</font></b> Sefer
                    ha'Terumos and Tosfos (51a DH mi'Mekarka'i) say
                    that nowadays even Parnasah is collected from
                    Metaltelim. We can testify that a man wants to
                    marry off his daughter from Metaltelim. This is
                    like when we know a man's nature. Rava says
                    that the Halachah follows R. Yehudah then (that
                    we give based on our estimation). The Rif and
                    Rambam say that Parnasah is only from land, but
                    perhaps they merely gave the law according to
                    the Gemara.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Darchei Moshe 6):</font></b> Since the Rif and
                    Rambam did not distinguish like they
                    distinguished other Tanai Kesuvah, this shows
                    that they hold that it is not collected from
                    Metaltelim even nowadays.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Chelkas Mechokek (7):</font></b> They did not enact for
                    Parnasah, therefore, there is no lien on the
                    orphans' Metaltelim. The girls collect only
                    from land, even though they are like creditors
                    of the boys.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> It can be collected even from
               rental of land (Rema - if the orphans did not yet
               collect it) and from what is Ra'uy.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chelkas Mechokek (8):</font></b> Obviously, it is
                    collected from rental after the father died,
                    for once he died there was a lien on all his
                    land. Rather, even what was owed (for the time
                    the tenant lived there, if payment was not due
                    yet) is like Peros still need the land, which
                    are like land. If the time (for payment) passed
                    in the father's lifetime, the rent owed is not
                    like land. The Rema means that it was not
                    <i>suitable to be</i> collected yet.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Shmuel (8):</font></b> Once payment was due, the owed
                    rental is Metaltelim. The Rema means that if
                    they collected for the first part of the year,
                    even though it was not due until the end, still
                    it becomes Metaltelim. The Nimukei Yosef says
                    that girls do not collect from what they rented
                    out after he died, for it is Ra'uy. The Rosh
                    and Mordechai say that they collect from Ra'uy.
                    The Mordechai says that a creditor collects
                    from Ra'uy. Chachamim were lenient about
                    Kesuvah and food, but not for Parnasah. The
                    Rosh holds that a creditor does not collect
                    from Ra'uy. Parnasah is different, for the
                    brothers owe her and they are alive. Maharam
                    Lublin (15) says that the Rosh holds that a
                    creditor collects from Ra'uy. This is
                    astounding!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Chelkas Mechokek (9):</font></b> If the father owed to
                    her, she would not collect from Ra'uy, e.g.
                    property that was later inherited from her
                    father's father. Rather, her brothers owe her,
                    therefore she collects from it. However, she
                    gets only a tenth of what her father had when
                    he died.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If the brothers wanted to
               give to her money in place of a tenth of the land,
               they may.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema:</font></b> It is collected only from land, but when
               assessing the property to calculate a tenth, we
               assess also Metaltelim and collect a tenth from
               land. This is only when we give to her a tenth. When
               we assess the father's intent, we give according to
               our estimation from Metaltelim and from land. Some
               say that even when we assess his intent, we give
               only from land.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (12):</font></b> Kesuvos 50b shows that Metaltelim
                    affect the amount given only when we assess the
                    father's intent. One could say that Rava argues
                    with Shmuel, but there no source for this
                    (Ran).
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>CAN ONE CHAZAKAH ACQUIRE MULTIPLE FIELDS? </b></b>(</font><font color='darkblue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Version #2 (Rava):</font></b> If one sells a sand patch and
          property by the river, a Chazakah in one acquires the
          other.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Objection:</font></b> This is obvious! Shmuel taught that if
          Reuven buys 10 fields...
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that there, since they
          all serve the same purpose, and all land is connected,
          one Kinyan suffices, but here, they serve different
          purposes, so they are not acquired together. Rava teaches
          that this is not so.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONE WHO SELLS AN OLIVEPRESS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one sells an olive-press, this includes
          the Yam, Mamal and Besulos (these will be explained), but
          not the Avirim, wheel or beam;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he said 'it and everything inside', all these are
          included.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Eliezer says, (even without saying this) the beam is
          included.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara):</font></b> 'Yam' is the tub;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Aba bar Mamal):</font></b> Mamal is the rock with a
               cavity in which the olives are pressed;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> Besulos are the poles that support
               the beam.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Avirim are planks placed on the grapes when they are
          pressed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The wheel is used to lift and lower the beam;
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If one sells an olive-press, this includes
          the planks, Yamim, Mamalim and bottoms of the millstones,
          but not the tops;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'it and everything inside', all the
               tops are included.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> In any case, he did not sell the Avirim or sacks.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	R. Eliezer says, the beam is included. The beam makes
          it an olive-press!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT IS INCLUDED WITH A BATHHOUSE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one sells a bathhouse, the planks, basins
          and curtains (or towels) are not included;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he said 'it and everything inside', all these are
          included.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	In any case, he did not sell springs that supply water,
          nor the storehouses of wood.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> If one sells a bathhouse, this
          includes the adjoining rooms where the planks, turbans,
          basins and curtains are stored;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He did not sell the planks, turbans basins or
               curtains themselves.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	If he said 'it and everything inside', all these are
          included.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In any case, the springs that supply water are
               not sold, not in summer or winter (Rashbam; Tosfos
               ha'Rosh - springs that supply water in both summer
               or winter are excluded);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said 'the bathhouse and everything that
               serves it', all are included.
<br>

<p>

sjt:
</p><p>
<font><b>2) SELLING THE 'ACHIRIM' WITH THE OIL-PRESS</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that when a person sells an oil-press and specifies that he is selling 'the press <i>and all that is in it</i>,' the 'Achirim' (slats that cover the olives being pressed; see Graphics) are included in the sale of the press.
</p><p>
However, the Gemara cites a Beraisa which seems to contradict this. The Beraisa teaches that whether or not one says that he is selling 'the press <i>and all that is in it</i>,' the Achirim are <i>not</i> sold with the press. How can the Beraisa be reconciled with the Mishnah?
</p><p>
This question is strengthened according to the Girsa of the Rishonim (Rif, Rosh, Ramah, and others) who quote the Beraisa as saying that even when one specifies 'all that is in it,' the 'Achirim, <i>Galgal, or Korah</i>' are <i>not</i> sold. The Mishnah, however, states that all three <i>are</i> sold when one specifies 'the press <i>and all that is in it</i>'!
</p><p>
<b>ANSWER:</b> The <b>ROSH</b>, <b>RITVA</b>, and other Rishonim explain that the Beraisa disagrees with the Mishnah with regard to Achirim, Galgal, and Korah. The Halachah follows the opinion of the Mishnah, in accordance with the rule that a Mishnah's teaching always takes precedence over that of a Beraisa.
</p><p>
Accordingly, the Rosh wonders why the <b>RIF</b> cites the Beraisa as quoted by the Gemara, if it is not the Halachic opinion. The Rif usually cites only the Halachic portions of the Gemara. The <b>NIMUKEI YOSEF</b> explains that the Rif agrees with the other Rishonim who say that the Halachah does not follow the Beraisa with regard to the Achirim, Galgal, and Korah. He mentions the Beraisa only because of the other points that the Beraisa makes which do not contradict the teachings of the Mishnah.
</p><p>
(See also <b>RASHASH</b>, <b>RAV SIMCHA MI'DESVI</b>, and the <b>PNEI SHLOMO</b> who add that the words of the Rashbam in DH Machar Es ha'Nesarim imply that the Rashbam did not have these problematic words in his text of the Beraisa in the first place.)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THINGS THAT SERVE THE BATHHOUSE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Reuven said 'I sell to you an olive-press and
          everything that serves it.' There were stores outside of
          it (that mainly sold bread and wine, but were also used)
          for drying sesame (to make oil).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yosef - Beraisa):</font></b> If he said 'the bathhouse
               and everything that serves it', all are included.
               (The same applies here.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> R. Chiya taught that they are
               not all sold!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav Ashi):</font></b> If he said 'the bathhouse and
               everything that serves it', and delineated the
               borders and the springs and storehouses are within
               the borders, they are included. If not, they are not
               included.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHAT IS INCLUDED WITH A CITY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one sells a city, this includes the
          houses, pits, bathhouses, dovecotes, olive-presses and
          Beis ha'Shelachin (even if it is outside the city);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Metaltelim are not included.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If he said 'it and everything inside', even animals and
          slaves are included.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Shimon ben Gamliel says, if one sells a city, the
          Santar (this will be explained) is included.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara - Rav Acha brei d'Rav Avya):</font></b> This implies that
          slaves are Metaltelim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they were like land, they should be included
               with the city!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If they are like Metaltelim, why does the
          Mishnah say 'even slaves are included'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> You must say that we distinguish between
               Metaltelim that move (by themselves) and those that
               do not;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Likewise, we can say that they are like land, and
               distinguish between land that moves and land that
               does not!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah - R. Shimon ben Gamliel):</font></b> If one sells a city,
          the Santar is included.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is a Santar?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (Chachamim of Bavel):</font></b> It is a slave appointed
          over the boundaries (whose field belongs to whom -
          Rashbam; R. Chananel - it is the city watchman).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (Shimon ben Avtulmus):</font></b> It is fields around
          the city.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first opinion holds that all the more so, the
               fields are included;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The second opinion holds that the slave (or
               watchman) is not included.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> ...Olive-presses and Beis ha'Shelachin.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	Version #1 (We are thinking that 'Shelachin' means
          fields, like it says 'v'Shole'ach Mayim Al Penei
          Chutzos.')
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> We understand the first opinion. The first
          Tana includes fields, and R. Shimon ben Gamliel also
          includes the slave;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, according to the second opinion, R.
               Shimon ben Gamliel repeats what the first Tana said!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, 'Shelachin' means gardens -
          'Shelachayich Pardes Rimonim.'
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	Version #2 (We are thinking that 'Shelachin' means
          gardens.)
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> We understand the second opinion. The first
          Tana includes gardens, and R. Shimon ben Gamliel includes
          even fields;
<br>
<br>

sjt:
<font><b>1) HALACHAH: SELLING THE CITY 'SENTAR'</b></font><b>
<br>OPINIONS:</b> The Mishnah discusses what the sale of a city includes. Raban Shimon ben Gamliel says that the sale of a city includes its Sentar. This implies that the Tana Kama maintains that the Sentar is <i>not</i> included in the sale.
</p><p>
What is a Sentar? The Gemara cites two opinions. According to one view, a Sentar is a 'Chavanisa.' According to the other view, a Sentar is 'Bagei.' What do these terms mean?
</p><p>
(a) The Rishonim give three definitions for 'Chavanisa.'
</p><p>
1. <b>RABEINU GERSHOM</b> says that the Chavanisa is the person who has the city records, who knows how much taxes have been paid and by whom. He also knows the various properties and fields and their owners.
</p><p>
2. The <b>RASHBAM</b> (DH Bar mei'Chavanisa) explains that the Chavanisa is the public servant who knows exactly where all of the borders of the various properties in the city are found.
</p><p>
3. The Rashbam (ibid.) quotes <b>RABEINU CHANANEL</b> who says that the Chavanisa is the public servant who guards the city.
</p><p>
(b) The <b>RASHBAM</b> (DH Bagei) explains that 'Bagei' refer to the outlying fields of a city.
</p><p>

<b>HALACHAH:</b> Does the Halachah follow the view of Raban Shimon ben Gamliel, such that a 'Sentar' is included in the sale of a city?
</p><p>
(a) The <b>RIF</b> rules that the Halachah does <i>not</i> follow the view of Raban Shimon ben Gamliel.
</p><p>
The <b>ROSH</b> questions the Rif's ruling from the Rif's own words in Gitin. In Gitin, the Rif records the statement of Rebbi Yochanan that the Halachah always follows the view of Raban Shimon ben Gamliel (with the exception of three cases). Why, then, does the Rif here write that the Halachah does not follow the view of the Raban Shimon ben Gamliel?
</p><p>
1. The Rosh suggests that when the Rif in Gitin quotes Rebbi Yochanan's rule, he is referring to one of the three cases in which the Halachah does <i>not</i> follow the view of Raban Shimon ben Gamliel ('Tzidon'). The Rif cites Rebbi Yochanan's rule there to show that the Halachah does not follow Raban Shimon ben Gamliel in that case, despite the fact that no one explicitly argues with Raban Shimon ben Gamliel there. However, it is possible that the Rif does not mean that the first part of the rule (that the Halachah <i>always</i> follows Raban Shimon ben Gamliel) is true in other cases. Indeed, the students of Rebbi Yochanan disagree about whether Rebbi Yochanan ever said such a rule (see Kesuvos 77a).
</p><p>
2. The <b>SHACH</b> (CM 215:1) says that the question is not on the Rif, but on the Rosh. Another common rule states that when an Amora lists a number of Tana'im who rule in a certain way, this shows that the Halachah does <i>not</i> follow their view. The Rosh himself quotes this rule. Later in the Gemara (78b), Abaye presents a list of Tana'im who rule that when an object is sold, the object and all of its subsidiary functions included in the sale. His list includes Raban Shimon ben Gamliel, who says that the Sentar is included in the sale of a city. Accordingly, the Rif is justified in saying that the Halachah does not follow Raban Shimon ben Gamliel in this case, and the Rosh's question seems to have no basis. (Perhaps the Rosh understood the former rule as more absolute, although it is not clear why that should be so.) (Y. Montrose)
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT IS INCLUDED WITH A SALE OF A FIELD?</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'> 68b (Mishnah):</font></b> If one sells a field, this includes
               rocks needed for the field, sticks needed for a
               vineyard, Chitzas ha'Kanim (a cluster of sticks)
               less than Beis Rova (the amount of land in which a
               quarter of a Kav of seed is sown);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It does not include rocks and sticks not needed for
               the field. If he said 'it and everything inside',
               all these are included. In any case, he did not sell
               Chitzas ha'Kanim that is Beis Rova.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Which rocks are needed for the field?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #1 (Chachamim of Bavel):</font></b> They are rocks that
               hold down sheaves left to dry so they will not be
               blown away.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  (R. Meir considers more things to be needs of a
                    vineyard than Chachamim do (78b).) R. Meir
                    includes rocks prepared for this, even if Lo
                    Machtan (they are not placed). Chachamim
                    include them only if Machtan.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #2 (Ula):</font></b> They are rocks arranged like a wall
               around the field.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Meir includes them if they are prepared,
                    even if they are not arranged. Chachamim
                    include them only if they are arranged.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'>(D'Vei R. Yanai):</font></b> Sticks needed for a vineyard are to
               support vines.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Meir includes if they are smoothed out, even
                    if they are not inserted in the ground.
                    Chachamim include them only if they are
                    inserted.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Mishnah):</font></b>  Chitzas ha'Kanim that is less than Beis
               Rova (is sold).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> This is even if they are strong.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Mishnah):</font></b> It does not include rocks not needed for
               the field.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Meir excludes rocks that were not prepared.
                    Chachamim exclude rocks (even if they were
                    prepared) if Lo Machtan.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Ula says that the rocks are for a wall. R. Meir
                    excludes them if they are not prepared.
                    Chachamim exclude them if they are not
                    arranged.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Mishnah):</font></b> Nor sticks not needed for a vineyard.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Meir excludes them if they are not smoothed
                    out. Chachamim exclude them if they are not
                    inserted in the ground.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Mishnah):</font></b>  Chitzas ha'Kanim that is Beis Rova is
               not sold.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is even if the sticks are small.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (R. Chiya bar Aba):</font></b> Not only clusters of sticks, but
               even a small spice patch, if it is called by its own
               name, is not included.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> (Rav Papa):</font></b> This is only if it is called 'Ploni's
               spice-patch'.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> 78b (Abaye):</font></b> The following Tana'im all say that when
               one sells something, he includes everything used
               with it: R. Eliezer, R. Shimon ben Gamliel, R. Meir,
               R. Noson, Sumchus, and Nachum ha'Midi.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Meir):</font></b> If one sells a vineyard,
                    everything needed for it is included.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif's text of the Mishnah said Mechitzas
               ha'Kanim. (Usually, 'Mechitzah' is a wall.)
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (CM 215:30):</font></b> Also Mechitzas ha'Kanim is
                    like the Rashbam explained Chitzas ha'Kanim (a
                    cluster of sticks).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif and Rosh (40a and 5:8):</font></b> Several Tana'im say that
               one who sells something includes everything used
               with it. They are a Shitah. The Halachah does not
               follow any of them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (36b DH v'Lo Es ha'Kanim):</font></b> Even
                    if the sticks were fixed to support vines,
                    since they were not put under the vines, they
                    are not Batel to the vineyard.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 26:2):</font></b> One who sells a
               field includes rocks arranged for a fence, and rocks
               resting on sheaves, for they are needed for the
               field.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam rules like Ula and
                    Chachamei Bavel. Both of their answers are
                    true; they do not argue.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (ibid):</font></b> He sold the smooth sticks placed
               under vines to hold up the vineyard, for they are
               needed for it. He sold Mechitzas ha'Kanim less than
               Beis Rova, even if the sticks are thick and strong.
               He did not sell rocks not arranged for a fence, and
               rocks not resting on sheaves, even if they were
               prepared for this. He did not sell sticks not under
               vines, even if they are smooth and prepared for
               this. It does not include rocks and sticks not
               needed for the field. If he said 'it and everything
               inside', all these are included.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (3):</font></b> In any case, he did not sell Mechitzas
               ha'Kanim that is Beis Rova, even if the sticks are
               thin and small. He did not sell a small spice patch,
               if it is called by its own name, e.g. it is called
               'Ploni's spice-patch.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rashbam explains that these
                    are like independent fields. This is like one
                    who had a field in between two fields. If he
                    sold the two and everything in them, he did not
                    sell the middle field.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rosh (Teshuvah 75:3):</font></b> A case occurred in which parts
               of Reuven's house fell. He did not rebuild the
               fallen rocks and beams. He gave half his house to
               his daughters, and the other half and his Metaltelim
               to his wife. The rocks and beams are considered like
               the house. Since they are in his Reshus and he did
               not sell them, this shows that he planned to rebuild
               them if he will have the opportunity. This is like
               we say in Bava Basra, that one who sells a field
               sells the rocks and sticks needed for it. All the
               more so, one who gives a house includes the rocks
               and sticks needed for it, for people give more
               generously than they sell.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Tosfos (69a DH v'Hu):</font></b> It is unreasonable to require
               that the rocks are now on the sheaves, since the
               sheaves themselves are Metaltelim and they are not
               sold! Rather, they are included if they were once on
               the sheaves.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Tosfos (69a DH Mechulakim):</font></b> 'Smooth' means that the
               outer layer was peeled off, so they will not get
               wormy.
<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 215:5):</font></b> One who sells a field
               includes rocks arranged for a fence or resting on
               sheaves, for they are needed for the field.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav v'Es):</font></b> The
                    Rashbam explains that even though the rocks are
                    used for a non-stationary usage, since they
                    never leave the field, they are considered to
                    be attached.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH v'Chosav):</font></b> The Tur says that
                    only rocks on sheaves are sold. He holds that
                    Ula holds that rocks arranged for a fence are
                    sold, and all the more so rocks on sheaves.
                    Chachamei Bavel hold that rocks on sheaves are
                    sold, but not rocks arranged for a fence. He
                    rules like the more lenient opinion, for
                    ha'Motzi mi'Chavero Alav ha'Re'ayah.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Bach (DH u'Mah she'Chosav v'Hu):</font></b> The Rashbam
                    explains that rocks in the field are included,
                    even if they were never on the sheaves.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (10):</font></b> We rule like Chachamim against an
                    individual. Also, we established R. Meir to be
                    part of a Shitah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> He sold the smooth sticks
               placed under vines to hold them up.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (29):</font></b> The Tur requires that they were once
                    put under the vine, for designation is not
                    significant.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> He sold Mechitzas ha'Kanim
               less than Beis Rova, even if the sticks are thick
               and strong. He did not sell rocks not arranged for a
               fence, and rocks not resting on sheaves, even if
               they were prepared for this.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that if the rocks were once on the
               sheaves, they are sold.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Rabeinu):</font></b> The
                    Tur says that the rocks were placed once on the
                    sheaves, so they will not blow away. This is
                    like Tosfos. The Rambam connotes that they are
                    now on the sheaves.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> He did not sell sticks not
               under vines, even if they are smooth and prepared
               for this. If he said 'it and everything inside', all
               these are included. In any case, he did not sell
               Mechitzas ha'Kanim that is Beis Rova, even if the
               sticks are thin and small. He did not sell a small
               spice patch, if it is called by its own name, e.g.
               it is called 'Ploni's spice-patch.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Lo Es Chitzas):</font></b> He did not sell
                    a patch even if it is less than Beis Rova, if
                    it is called by its own name. The Gemara
                    mentioned a spice-patch, for it typically has a
                    name. The Shi'ur applies only to Chitzas
                    ha'Kanim, for it has a name only if it is Beis
                    Rova.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, according to the first opinion, the
               first Tana includes gardens (and excludes fields).
               Why does R. Shimon ben Gamliel include the slave,
               and not mention that (all the more so) he includes
               fields?!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, 'Shelachin' means fields, like it says
          'v'Shole'ach Mayim...';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first Tana includes fields, but not the
               slave. R. Shimon ben Gamliel includes also the
               slave.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Question (against the second opinion - Beraisa - R.
          Yehudah):</font></b> The Santar is not sold. The Ankulmus (the
          scribe who records who paid the tax) is sold.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like the Ankulmus is a person, also the
               Santar!
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer:</font></b> We need not say that they are the same. The
          Ankulmus is a person, but the Santar is not.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT IS INCLUDED WITH A CITY? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Seifa of the Beraisa):</font></b> He did not sell
          Sheireha, the surrounding villages, its Muktzah forests
          (specific to the city), or the habitats of Chayos, birds
          and fish.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What are Sheireha?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> They are Bizli.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What are Bizli?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (R. Aba):</font></b> They are pieces of fields
               (separated from the city by rocky areas).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Inference:</font></b> These pieces are not sold, but fields
               themselves are sold!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> We must switch the Beraisa to say 'R. Yehudah
          says, the Santar is sold, but the Ankulmus is not sold.''
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> That is like R. Shimon ben Gamliel. R.
          Yehudah holds like Chachamim, and not like R. Shimon!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Seifa of the Beraisa):</font></b> He did not sell Sheireha,
               nor the surrounding villages...
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Gamliel says that the villages are
               sold!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> The surrounding villages are not
                    old;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Shimon ben Gamliel says, they are sold.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Yehudah holds like R. Shimon ben Gamliel
          regarding the Santar, but not regarding the villages.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> He did not sell the habitats of Chayos,
          birds and fish.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> If there were villages, they
          are not included;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If part of the city was on the sea and part on
               the land, the minority is (Rashbam; Rambam - not)
               sold with the city;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The sale includes habitats of Chayos, birds and
               fish.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> If the opening of the habitat faces the city,
          it is included. If not, it is not.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> He did not sell its Muktzah forests
          (specific to the city, even though they face it).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Here, Muktzah means that they are set off from
          it (and face away).
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHAT IS INCLUDED WITH A FIELD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one sells a field, this includes rocks
          needed for the field, reeds needed for a vineyard,
          attached grain, clusters of reeds that are less than Beis
          Rova (the amount of land in which a quarter of a Kav of
          seed is sown, about 104 square Amos), a guardhouse that
          is not plastered, a young carob tree that has not yet
          been grafted, and a sycamore tree that has not yet been
          pruned;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	It does not include rocks and reeds not needed for the
          field, or detached grain;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If he said 'it and everything inside', all these are
          included.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	In any case, he did not sell a thicket of reeds that is
          more than Beis Rova, a guardhouse that is plastered, a
          grafted carob tree, or a pruned sycamore tree.
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT IS INCLUDED WITH A FIELD (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Which rocks are needed for the
          field?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Chachamim of Bavel):</font></b> They are rocks that
          hold down sheaves left to dry so they will not be blown
          away.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Ula):</font></b> They are rocks arranged like a wall
          around the field.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> R. Chiya taught a Beraisa that says that they
          are rocks gathered near the wall (even of they are not
          arranged like a wall)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> We must change the text of the Beraisa to say
          arranged like a wall.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Chachamim of Bavel):</font></b> They are rocks that hold down
          sheaves.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to R. Meir (78b, who considers more
               things to be needs of a vineyard than Chachamim do),
               rocks prepared for this are included, even if they
               are not in the field;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Chachamim, they are included only if
               they are in the field.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Ula):</font></b> They are rocks arranged like a wall around the
          field.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to R. Meir, they are included if they
               are prepared, even if they are not arranged;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Chachamim, they are included only if
               they are arranged.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Reeds needed for a vineyard.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Why are reeds needed for a vineyard?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (d'Vei R. Yanai):</font></b> They are to support the vines.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to R. Meir, they are included if they
               are smoothed out, even if they are not inserted in
               the ground;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Chachamim, they are included only if
               they are inserted in the ground.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Attached grain.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	This is even if it is ready to be harvested.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Mishnah):</font></b>  Clusters of reeds that are less than Beis
          Rova.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	This is even if they are strong.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A guardhouse that is not plastered.
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	This is even if it is fixed in the ground.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A young carob tree that has not yet been
          grafted, a sycamore tree that has not yet been pruned.
<br> <b>    <b><font color='darkgreen'>(r)</font></b></b>  	This is even if they are strong.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHAT IS NOT INCLUDED WITH A FIELD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> It does not include rocks not needed for the
          field.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to R. Meir, the rocks were not
               prepared;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Chachamim, (even if they were
               prepared), if they are not in the field they are
               excluded.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> According to Ula, who explained that the rocks
               are to make a wall, according to R. Meir, they are
               excluded if they are not prepared;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> According to Chachamim, they are excluded if they
               are not arranged.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Nor reeds not needed for a vineyard.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to R. Meir, they are excluded if they
               are not smoothed out;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Chachamim, they are excluded if they
               are not inserted in the ground.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Nor detached grain.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	This is even if it must remain on the ground (to dry
          out).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah):</font></b>  Nor clusters of reeds more than Beis Rova.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	This is even if the reeds are small.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(R. Chiya bar Aba):</font></b> Not only clusters of reeds, but
          even a small spice patch, if it is called by its own
          name, is not included.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> This is only if it is called 'Ploni's
          spice-patch'.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Nor a guardhouse that is plastered.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	This is even if it is fixed in the ground.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (R. Elazar):</font></b> Are frames around the door
          (Tosfos - of the guardhouse; Rashbam - of a house that is
          sold) included?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they are attached with plaster, surely they
               are included;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He asks about when they are on pegs.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This question is not resolved.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (R. Zeira):</font></b> Are frames around the window
          included?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we say that they are just for decoration, so
               they are not included?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since they are attached, they are included?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This question is not resolved.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (R. Yirmiyah):</font></b> Are tiles placed under legs of
          a bed (to prevent the legs from rotting) sold (with the
          bed)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they are attached, surely they are included;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He asks about when they are not attached.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This question is not resolved.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHEN ARE TREES INCLUDED?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Mishnah):</font></b> Nor a young carob tree that has not yet been
          grafted, nor a sycamore stump.
<br>
<br>

sjt:
<font><b>1) 'MELABNOS SHEL PESACHIM'</b></font><b>
<br>OPINIONS:</b> The Gemara asks what the Halachah is in the case of 'Melabnos Shel Pesachim.'
</p><p>
What are 'Melabnos Shel Pesachim'?
</p><p>
(a) The <b>RASHBAM</b> (DH Ba'i Rebbi Elazar) explains that the Mishnah, which discusses the sale of a field and what is included in such a sale, mentions that a guard-hut not made from clay is included in the sale of the field. The Gemara digresses and asks if the stakes that are part of the doorway are included in the sale of the doorway of a house.
</p><p>
(b) <b>TOSFOS</b> asks that it is unlikely that the Gemara should make such a digression. He therefore explains that the Gemara's question involves the guard-hut which is sold with the field. Are the stakes within the doorpost sold as well, or are they not included in the sale of the field?
</p><p>


<font><b>2) THE 'MELABEN' OF THE BED</b></font><b>
<br>OPINION</b>: The Gemara asks what the Halachah is in the case of the 'Melabnos' of the legs of the bed. Are they included in the sale of a bed or not? The Gemara explains that the question applies only to Melabnos that are not attached to the bed in such a manner that they could be carried with the bed. The question applies only to Melabnos that are carried separately from the bed. What is a 'Melaben'?
</p><p>
(a) The <b>RASHBAM</b> (DH Melabnos) explains that a Melaben is a piece of wood placed under the leg of a bed in order to prevent the leg from rotting from the moisture on the ground.
</p><p>
(b) The <b>SHITAH MEKUBETZES</b> quotes the <b>RA'AVAD</b> who explains that a Melaben is the rim of a bed, raised slightly from the surface of the bed, in order to prevent the sheets from slipping off the bed. The Ra'avad explains that there are different types of bed rims. Some bed rims are built as part of the bed, and some are separate pieces of wood which are pressed against the bed in order to ensure that the sheets do not fall off the bed. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A SALE OF A FIELD AND DATE TREES</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven sold 'my land and date trees', if he has
               date trees, he gives two. If he has no date trees,
               he buys two and gives them. If a creditor has a lien
               on the trees, he must redeem them (pay their value
               to the creditor to release the lien on them).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven sold 'my land with date trees', if it has
               date trees, he gives them (Bach's text - the sale is
               valid). If it has no date trees, the sale is void.
<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 (4:12):</font></b> Some learn from our Gemara that
               if one sells something that is easily bought, even
               if the seller does not have it, he is obligated to
               (buy and) give it. I disagree. If he does not have
               it, it is Davar she'Lo Ba l'Olam (and there is no
               Kinyan on it)! Rather, the seller has Reshus to buy
               them (to validate the sale). If the seller offers to
               buy them, the buyer cannot say 'I will take only a
               field with date trees.' Rather, the buyer must
               accept the land even though it itself has no date
               trees.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos ha'Bach:</font></b> An old text of the Rif holds
                    like the first opinion that he rejected. The
                    Ra'avad (and Magid Mishneh below) had the old
                    text of the Rif.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> Anything not in one's Reshus is Davar she'Lo
               Ba l'Olam, e.g. 'I sell to you what I will inherit
               from my father.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 24:13):</font></b> If Reuven sold to
               Shimon 'my land and date trees', even if it had no
               date trees, if Reuven wants to buy two date trees,
               the sale is valid and Shimon cannot say 'I will take
               only a field with date trees.' However, if he sold
               'my land <i>with</i> date trees', if it had no date
               trees, this is a Mekach Ta'os and Shimon can
               retract.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad:</font></b> The Rif obligates Reuven to buy two
                    trees for Shimon.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> The Rif learns from our Gemara
                    that if one sells something that is easily
                    bought, even if the seller does not have it, he
                    is obligated to (buy and) give it. We hold that
                    one may contract (to supply Peros) based on a
                    market price, even if the seller has none. A
                    Tosefta teaches that if Reuven sold to Shimon
                    with the understanding that Reuven has, and it
                    is found that he does not have, he cannot
                    uproot Shimon's rights. This is like the
                    Ra'avad. Ba'al ha'Itur says in the name of
                    Rabbeinu Nisim that Davar she'Lo Ba l'Olam
                    applies only in a case such as dates that will
                    grow on a tree, for both parties know and
                    stipulate about Davar she'Lo Ba l'Olam.
                    However, if the seller stipulates about
                    something that is in the world, and the buyer
                    gave money for it with this intent, the seller
                    is obligated to fulfill his stipulation. The
                    Tosefta (Bava Metzia 4:1) and Yerushalmi
                    (Terumos 6:2) say so. Some explain like the
                    Rambam, that the seller need not buy two trees;
                    he may do so to validate the sale. Some ask,
                    since the sale was Davar she'Lo Ba l'Olam,
                    either can retract! Since it was not in the
                    seller's Reshus at the time of the sale, it is
                    as if it is not in the world. They also ask
                    that this was two sales: a field and trees.
                    Even if there are no trees, the field is sold.
                    It does not depend on the sale of the trees!
                    This is not necessarily so. What is the source
                    that if one sold two things for one price,
                    without setting a price for each, and he has
                    only one, that the buyer must buy the one he
                    has? He can say, I did not want one without the
                    other! The Rashbam explains the Gemara to mean
                    that he buys two trees lest he be unfaithful.
                    His sale was a stipulation to buy two trees for
                    the buyer, or return the money for two trees.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (CM 216:8):</font></b> Even though one may contract
                    based on a market price, even if the seller has
                    none, this is unlike Davar she'Lo Ba l'Olam.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Kesef Mishneh:</font></b> The Rambam is like our text of
                    the Rif. If we will say that since the trees
                    were not in Reuven's Reshus, it is like Davar
                    she'Lo Ba l'Olam, when Reuven buys two trees,
                    why can't Shimon retract? If we will say that
                    since date trees were in the world, it is as if
                    they were in Reuven's Reshus (so it is Ba
                    l'Olam), Reuven should be obligated to fulfill
                    the contract! It seems that there are two
                    aspects to this law: regarding the seller it is
                    Lo Ba l'Olam, and regarding the buyer it is Ba
                    l'Olam. This is because when the seller buys
                    the trees, he fulfills his stipulation, even
                    though at the time of the sale it was not in
                    his Reshus, so the buyer must fulfill his
                    obligation. If the seller does not buy them, he
                    says that he did not own trees at the time of
                    the sale and also now he does not own, so there
                    was no Kinyan. We do not obligate him to buy to
                    make it Ba l'Olam.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Taz (CM 216:5):</font></b> We must say that date trees are
                    available for sale. If not, it is not a sale at
                    all (CM 211:1). We must say that they are not
                    very available, for if so, Reuven would be
                    obligated to buy and fulfill the sale.
<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 216:5):</font></b> If Reuven sold to Shimon
               'land and date trees', even if Reuven had no date
               trees, if Reuven wants to buy two date trees, the
               sale is valid. Shimon cannot say 'I will take only
               land with date trees.' However, if he sold 'land
               with date trees', if it had two date trees, he
               acquired. If not, this is a Mekach Ta'os and he can
               retract.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (14):</font></b> This is like the Rambam. He holds
                    that if there are date trees in the field, he
                    need not buy others. Even though even without
                    specifying, the sale included date trees in the
                    field, he said 'and date trees' because we
                    discuss when he did not show the land to Shimon
                    at the time of the sale. This is unlike Ir
                    Shushan, who says that even the Rambam
                    obligates giving another two trees. However, if
                    there are no date trees in the land, the buyer
                    cannot say that he will retract because it is a
                    Mekach Ta'os, for he expected to get land with
                    date trees in it. Rather, as long as he did not
                    say land <i>with</i> date trees, the seller may give
                    land without date trees and two date trees from
                    elsewhere. The Rambam holds that if he does not
                    give two date trees from elsewhere, the buyer
                    can totally retract. The Tur explains the
                    Rambam like this.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (1):</font></b> The <b>SMA</b> argues with Ir Shushan
                    because the Rambam did not mention giving
                    another two date trees. I say that one cannot
                    say that he acquired all the date trees. The
                    Gemara says that if he has, he gives to him
                    two! The Rashbam and Tosfos say that he gives
                    only two, like the Gemara says, just the
                    Rashbam says that he gives from elsewhere, and
                    Tosfos says that he gives only from this field.
                    Even though normally, he sold all the date
                    trees, here he did not, since he mentioned
                    (only two) date trees. The Ir Shushan is
                    correct: The Rambam agrees with the Rashbam
                    that he gives to him two date trees from
                    elsewhere. Since he wrote that if he wants he
                    may buy, we learn that if he has, he must give
                    them. Further, this is obvious according to the
                    Rambam. His primary Chidush is that if the
                    seller buys from elsewhere, the buyer must
                    fulfill the sale. However, the Rambam is unlike
                    Tosfos. If he held that the extra words reduce
                    the buyer's rights, he would have specified.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that if he sold 'land and date
               trees', even if there are date trees in the field,
               if Reuven has other date trees elsewhere, he must
               give two. If he does not have, he need not buy. In
               any case Shimon gets the land, for these are two
               (independent) sales, of land and date trees.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Omarm citing the Rashbam):</font></b> When
                    he sold 'land and date trees', the Gemara says
                    that if he has date trees elsewhere, he must
                    give two, in addition to all date trees in the
                    land sold. Some texts say 'If <i>it</i> (the land)
                    has date trees, he gives two, even if it has
                    many. This is wrong. Without specifying, the
                    sale included date trees in the field. The
                    extra words 'and date trees' give the buyer
                    more rights. He should be no worse than when he
                    did not say these words!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (14):</font></b> This opinion argues with the Rambam
                    about two things. This opinion holds that there
                    are two independent sales. The buyer gets the
                    land as it is, with or without date trees. 'And
                    date trees' is a separate sale of two date
                    trees from elsewhere. If he has them, he must
                    give them. If he does not have them, it is good
                    for him to buy from elsewhere in order to
                    fulfill his word, but we do not force him to do
                    so. Since it is not in his Reshus, it is like a
                    sale of Davar she'Lo Ba l'Olam, which does not
                    acquire. The sale of the land remains; he
                    deducts the value of two date trees.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Taz (CM 216:5):</font></b> A case occurred in which Ploni
                    sold two places in the Beis ha'Keneses, and it
                    was found that he owned only one. The Rambam
                    and Rashbam argue about this. We cannot force
                    the buyer to pay unlike the Rambam's opinion;
                    the sale is Batel. CM 182:8 is like this.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> 'V'Chol ha'Etz... Asher b'Chol
          Gevulo' - trees that need a border around them (because
          they are unimportant, people could contest them) are
          included;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Important trees are known (to whom they belong).
               They do not need a border, and they are not
               included.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Mesharshiya):</font></b> This is the source that one who buys
          a field also acquires the border.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If one sells land, he must write
          'acquire it and the date trees (of various types) and
          saplings';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even though he acquires them if this was not
               written, one should write the document so that no
               Beis Din could err.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	If Reuven sold 'my land and date trees', if he has date
          trees, he must give two. If he has no date trees, he must
          buy two and give them. If a creditor has a lien on the
          trees, he must redeem them (pay their value to the
          creditor to release the lien on them).
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	If Reuven sold 'my land with date trees', if it has
          date trees, he gives them (Bach's text - the sale is
          valid). If it has no date trees, the sale is void.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	If he sold 'my  land Bei Dikli (of date trees)', if it
          has no date trees, he meant 'that is fitting to grow date
          trees' (the sale is valid).
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	If he sold 'except for Dekel Plonis (a particular date
          tree)', if it is a good tree, he excluded only it. If it
          is bad, all the more so he excluded the good date trees!
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	If he sold 'except for trees', if it has (regular)
          trees, he excluded them. If it has only date trees, he
          excluded them. If it has no trees, only vines, they are
          excluded.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it has trees and vines, the trees are
               excluded. If it has trees and date trees, only the
               trees are excluded. If it has date trees and vines,
               the vines are excluded. (Rashbam - they are
               considered trees more than date trees are.)
<br>

<p>

sjt:
</p><p>
<font><b>3) TREES INCLUDED IN THE SALE OF LAND</b></font><b>
<br>OPINIONS:</b> The Gemara teaches that when a person sells land and says that he is selling a parcel of land and trees, the seller must give the buyer two trees (besides those included in the sale of the land). If he does not own any other trees, the seller must purchase two trees and give them to the buyer, since he said that he would include trees in the sale. In the event that the seller has no other trees and he refuses to purchase two trees for the buyer, is the entire sale invalidated, or does the sale remain valid but the buyer has a claim against the seller (that he owes him two trees)?
</p><p>
(a) The <b>RASHBAM</b> (DH Zavin) says that the trees and the land are two distinct parts of the sale, and one has no bearing on the other. If the seller decides not to provide trees, the sale of the land remains valid. The seller is obligated to supply the buyer with two trees, or to give him back the value of two trees.
</p><p>
The Rashbam writes that the seller is deemed 'untrustworthy' if he does not supply the trees. Why does the Rashbam not say that he is simply a thief? The <b>ROSH</b> explains that he is not considered a thief because he did not have the trees in his possession at the time he sold them, and thus the trees are considered a 'Davar she'Lo Ba l'Olam,' an item not presently in the world, which one cannot sell. According to the letter of the law, the seller is not bound to supply the trees. However, since selling something which one does not have is a deceitful thing to do, the Chachamim decreed that the seller is obligated to supply the buyer with trees. Accordingly, the sale of the trees does not affect the sale of the land.
</p><p>
(b) The <b>RIF</b> explains that the land and trees are considered one unit. If the seller fails to supply the trees, it is considered as though he fails to supply the land, and the sale is invalid.
</p><p>
How can failure to deliver the trees invalidate the sale if they are considered a 'Davar she'Lo Ba l'Olam'?
</p><p>
The Rif quotes an opinion which states that an object is considered a 'Davar she'Lo Ba l'Olam' only when it is not widely available for purchase. Trees, however, are almost always available for purchase, and thus they are not considered a 'Davar she'Lo Ba l'Olam,' and a commitment to sell trees is binding even when the seller is not in possession of the trees at the time of the sale. (See <b>HAGAHOS HA'BACH</b> on the Rif.)
</p><p>
The Rif explains that the trees are not merely another item in the sale, but are considered a <i>condition</i> for the sale of the land. It is as if the buyer stated, 'I will buy this land from you on condition that you eventually give me two trees' (even if those two trees will be designated only later).
</p><p>
(c) The <b>RASHBA</b> rejects the reasoning of the Rif. The Gemara implies that the sale is of two items, not one item which is conditional on the other. The Rashba quotes the <b>BA'AL HA'ITUR</b> who explains that the reason why the trees are not considered a 'Davar she'Lo Ba l'Olam' is that the buyer <i>did not know</i> that the seller did not have the trees when he agreed to the sale. (This is also the explanation of the <b>RAN</b>.) However, after much discussion the Rashba concludes that the correct explanation of the Gemara is that of the Rashbam. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHICH TREES ARE EXCLUDED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> He excludes only trees so tall that one needs a
          rope to climb up (to harvest it).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Judges of Bavel):</font></b> Only trees that impede a plowing ox
          from passing by are excluded.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	They do not argue. Rav discusses date trees, and judges
          of Bavel discuss other trees.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #1 - Question (Rav Acha bar Huna):</font></b> If he sold
          'except for carob (or sycamore) Ploni (a mature tree, it
          would be excluded anyway)', what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Is that the only (mature) carob excluded, or are
               all excluded (as if he kept quiet)?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Sheshes):</font></b> He does not acquire the others.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If he sold 'except for carob (or
          sycamore) Ploni', he does not acquire.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This means that he does not acquire
               it, but he acquires the others.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> No, he does not acquire the others.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Support:</font></b> If he said 'I sell to you my field, except for
          field Ploni', does he acquire all the fields except for
          Ploni?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Surely, he does not. Also here, he does not
               acquire the others.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Version #2 - Question (Rav Acha bar Huna):</font></b> If he sold
          'except for half of carob (or sycamore) Ploni', what is
          the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Surely, the others are excluded. Does the buyer
               get the other half of carob Ploni, or not even that?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rav Sheshes):</font></b> He does not acquire.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If he sold 'except for half of
          carob (or sycamore) Ploni', he does not acquire.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This means that he does not acquire
               the others, but he acquires half of Ploni.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> No, he does not acquire even half of
               Ploni.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Support:</font></b> If he said 'I sell to you my field, except for
          half of field Ploni', does he acquire half of field
          Ploni?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Surely, he does not. Also here, he does not
               acquire the other half.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A MIGO AGAINST A DOCUMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav Amram):</font></b> If Reuven deposited (something)
          with Shimon with a document, and Shimon claims 'I
          returned it to you', what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we say that since Shimon would be believed to
               claim 'it was lost through Ones', he is believed to
               say 'I returned it'?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since Reuven still has the document, this
               proves that he did not return it?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> Shimon is believed.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Amram):</font></b> If he returned it, why does
          Reuven still have the document?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> (Shimon returned it even though
          Reuven said that he lost the document. He was not afraid
          lest Reuven later claim with the document, for) if Shimon
          would say that it was lost through Ones, the document
          would not disprove this!
<br>
<br>

sjt:
<font><b>1) A 'MIGU' AGAINST A 'SHTAR'</b></font><b>
<br>QUESTION:</b> Rav Amram discusses a case in which a person deposits an object with a Shomer to watch, and he writes a Shtar attesting to the deposit of that object with the Shomer. Rav Amram asks what the Halachah is when the owner of the object presents the Shtar and asks the Shomer to return the object to him, and the Shomer says that he already returned it. Is the Shomer believed (with a Shevu'ah) since he has a Migu that he could have exempted himself by claiming (with a Shevu'ah) that the object was lost through an Ones, or does the fact that the Mafkid is holding a Shtar override the Migu, because the Shtar is tantamount to testimony that the object was not yet returned?
</p><p>
Rav Amram does not ask what the Halachah is in a case in which a person who <i>borrowed</i> money claims that he paid back the loan. It is obvious to Rav Amram that the borrower is not believed because he has no Migu, and because the lender is holding a Shtar. Why, though, does Rav Amram not ask what the Halachah is in a case in which the borrower claims that he paid back the loan, and the Shtar is not Mekuyam? The same question should apply in the case: is the borrower believed with a Migu that he could have said that the Shtar is forged, thereby requiring the lender to be Mekayem the Shtar, or does the fact that the lender is holding a Shtar override the Migu?
</p><p>
The Halachah in this case is actually a Machlokes Tana'im (Kesuvos 19a), and the Halachah is that the borrower <i>does</i> have a Migu. Since Rav Amram does not discuss that case, he presumably agrees with the ruling in Kesuvos that the borrower is believed with a Migu, despite the fact that the lender is holding a Shtar.
</p><p>
What, then, is the difference between the case of a borrower and the case of a Shomer? If Rav Amram considers possession of a Shtar to be powerful enough to override a Migu in the case of a Shomer, then possession of a Shtar should also override a Migu in the case of a borrower! (<b>TOSFOS</b> DH O Dilma)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that the presence of a Shtar is a stronger proof in the case of a deposit than in the case of a loan. A borrower sometimes repays a loan without demanding the return of the Shtar, but a Shomer never returns a deposit without demanding the return of the Shtar. Tosfos gives several reasons for this difference. First, the borrower feels grateful and beholden to the lender for the favor that he did by lending money, and thus he does not want to press him for the Shtar. Second, the borrower is obligated to pay for the writing of the Shtar, since the loan is to his benefit. If the lender paid for the writing of the Shtar (thereby making the payment of the scribe's wage an additional loan (Ba'al Peh) to the borrower), he has the right to withhold the Shtar -- even after the borrower pays back the loan -- until the borrower also pays for the writing of the Shtar. Therefore, it is possible for the lender to be in possession the Shtar even though the loan has been repaid. These reasons do not apply to a deposit. The Shomer is the one who does the Mafkid a favor by watching his object for him, and the Shomer does not pay for the Shtar that is written. Accordingly, the presence of a Shtar in the hands of the Mafkid is a greater proof that the deposit was not returned.
</p><p>
(b) The <b>RAMBAN</b> and <b>RASHBA</b> explain that the difference between a loan and a deposit is not that the presence of a Shtar is stronger proof that the deposit was not returned, but that the <i>Migu</i> of the Shomer is <i>weaker</i> than the Migu of the borrower. They explain that in the case of a deposit, the Shtar that the Mafkid presents is unquestionably valid. The only way the Shomer can exempt himself from paying the amount written in the Shtar is by making a counter-claim that cannot be refuted by the Shtar (i.e. he must claim that the deposit was lost through an Ones). As long as it is possible to make such a claim, the Shomer has a Migu to exempt himself from paying. In contrast, in the case of a loan, when the lender presents a Shtar that is not Mekuyam, the Shtar is not worth more than any other piece of paper until the Shtar becomes Mekuyam. It is only because the borrower admits that the Shtar was not forged that it is considered valid. Therefore, as long as the borrower has the ability to claim that the Shtar is forged, he not only has a Migu that gives credence to his claim, but he also has a 'Peh she'Asar' -- that is, the entire proof against the borrower rests on the borrower's own word (that the Shtar is not forged), and not on the Shtar. Since he is the one who creates the evidence against himself, he also can limit the evidence against himself and say that although the Shtar is not forged, it was repaid, and he is believed through a 'Peh she'Asar' which is a stronger argument than a Migu.
</p><p>
Perhaps Tosfos does not accept this answer because he maintains that even if the Shtar is not Mekuyam, it is considered a valid proof. The Shtar is invalidated only when the borrower claims that it is forged. As long as he makes no such claim, the Shtar is presumed to be valid. (See <b>TOSFOS</b> to Kesuvos 19a, DH Modeh.) Therefore, the borrower's claim is a Migu (and not a 'Peh she'Asar'), like the claim in the case of the Shomer.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>IS A MIGO BELIEVED AGAINST A DOCUMENT?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Rav Amram):</font></b> If Reuven has a document
               saying that he deposited with Shimon, and Shimon
               claims 'I returned it to you', what is the law?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Do we say that since Shimon would be believed
                    to claim 'it was lost through Ones', he is
                    believed to say 'I returned it'?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Or, since Reuven still has the document, this
                    proves that he did not return it?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rav Chisda):</font></b> Shimon is believed.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Rav Amram):</font></b> If he returned it, why does
               Reuven still have the document?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rav Chisda):</font></b> (Shimon returned it even though
               Reuven said that he lost the document. He was not
               afraid lest Reuven later claim with the document,
               for) Shimon could say that it was lost through Ones,
               and the document would not disprove this!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (Rav Amram):</font></b> Shimon would have to swear
               (that it was lost through Ones)!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (Rav Chisda):</font></b> I meant that Shimon is believed
               if he swears (that he returned it).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Shevuos 45b (Shmuel):</font></b> If there are no witnesses that
               a worker was hired, the employer is believed, Migo
               he could say that he never hired him.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Objection (Rava):</font></b> If such a Migo exempts from
               swearing, when did the Torah obligate Shomrim to
               swear?! Since a Shomer is believed (without
               swearing) to say that he never received the deposit,
               he is believed to say that it was lost through Ones!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer (Rami bar Chama):</font></b> The case is, the depositor
               has a document that the Shomer received the deposit.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Inference:</font></b> He and Rava hold that if a document was
               written, he must return the deposit with witnesses
               (or take back the document).
<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 Metzia 25b):</font></b> If Reuven has a document
               saying that he deposited with Shimon, and Shimon
               claims that he returned it, since Shimon would be
               believed to claim that it was lost through Ones, he
               is believed to say that he returned it. In either
               case Shimon must take a severe oath while holding a
               (Kodesh) item.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 2:12):</font></b> If Reuven has a
               document saying that he deposited with Shimon, and
               Shimon claims 'I returned it to you', Shimon is
               believed, but he must swear while holding an item.
               Since a Shomer Chinam would be believed to claim 'it
               was lost or stolen', and a borrower could say 'it
               died while working', he is believed to say 'I
               returned it.' Just like if he claimed that Ones
               occurred he would need to swear mid'Oraisa while
               holding an item, if he claims that he returned it,
               he must swear like a mid'Oraisa oath, since the
               claimant has a document. This is when Shimon could
               have exempted himself without a proof of his claim.
               However, if he would have needed a proof for his
               claim, like we will explain, he is not believed to
               say that he returned it. Rather, Reuven swears while
               holding an item that he did not return it, and
               Shimon pays.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Gemara did not distinguish
                    between whether or not witnesses are found, but
                    it is clear, for there is no Migo.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ra'avad:</font></b> This is if Shimon asks him to swear.
                    L'Chatchilah, we tell Shimon to pay.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Magid Mishneh:</font></b> The Ra'avad equates this to a
                    borrower who claims that he paid. We tell him
                    to pay, and if he asks the lender to swear, the
                    lender must swear, like the Rambam says in
                    Perek 14 of Hilchos Malveh. This is correct.
                    The Rambam did not elaborate here.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (ibid):</font></b> A Shomer against a document is the
               only case in which one swears because he could have
               claimed differently and sworn while holding an item.
               All others who swear due to a Migo swear only Heses.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Shevuos 7:2):</font></b> R. Tam says that the Halachah
               does not follow Rami bar Chama and Rava. Rather, we
               hold like Rav Chisda, that even if a document was
               written, one may return without witnesses. He is
               believed through an oath to say that he returned it.
               According to R. Tam, we can explain here that one
               must return with witnesses in order to be exempt
               from swearing. Also R. Yosef ha'Levi says that this
               (Rami bar Chama's opinion) is not the Halachah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Piplulei Charifta (6):</font></b> The latter words of R.
                    Tam contradict his initial words! Tosfos cites
                    only the latter words in the name of R. Tam.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Tosfos (45b DH bi'Shtar):</font></b> When there is a
                    document, he should be exempt through a Migo
                    that Ones occurred, like in Bava Basra! R. Tam
                    says that he must return with witnesses to
                    exempt himself from swearing. The Riva says
                    that here there is no reason to leave the
                    document with the depositor. Regarding an
                    investment, the borrower can say that the
                    lender kept the document until the borrower
                    will pay the cost of the document.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (CM 296:4):</font></b> The Ge'onim say that the
                    Halachah does not follow the Sugya in Shevuos.
<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 296:2):</font></b> If Shimon says 'you did
               not deposit with me, lend or rent to me', or 'you
               deposited with me, but I returned it', he swears
               Heses and he is exempt. Even if Reuven has a
               document saying that he deposited with Shimon, if
               Shimon claims 'I returned it to you', he is
               believed, but he must swear while holding an item.
               Since he would be believed to claim that it was
               stolen, i.e. if he is a Shomer Chinam, or that Ones
               occurred if he is a Shomer Sachar, or that it died
               while working if he is a borrower, he is believed to
               say that he returned it. Just like if he made one of
               the former claims he would need to swear mid'Oraisa
               while holding an item, if he claims that he returned
               it, he must swear like a mid'Oraisa oath.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (3):</font></b> Even though a Migo does not exempt
                    from a Shevu'ah mid'Oraisa, Shevu'as ha'Shomrim
                    does not apply here. However, if Reuven has a
                    document, Shimon must swear mid'Oraisa, just
                    like he would swear mid'Oraisa that there was
                    Ones to exempt himself against a document.
                    Shimon was not particular to get back the
                    document, for he knew that he can exempt
                    himself through a Migo.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bach (2):</font></b> The Tur, Rif and Rambam say that he
                    must swear mid'Oraisa. This is unlike Tosfos
                    (70b DH Sof), who say that the oath is
                    mid'Rabanan, but it was enacted before Heses.
                    Tosfos says so only according to the opinion
                    that Shevu'ah ha'Shomrim is mid'Oraisa only
                    when there is partial admission. We hold that
                    it is mid'Oraisa even without partial
                    admission.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (3):</font></b> The Bach understands that they (and
                    Ir Shushan) literally mean a Shevu'ah
                    mid'Oraisa. I say that it is only <i>like</i>
                    mid'Oraisa, i.e. while holding an item. Surely
                    the Torah obligated a Shevu'ah only when he
                    claims Ones, lest everyone claim this, for the
                    depositor does not know whether or not he is
                    lying. When he claims 'I returned it to you',
                    the depositor knows whether he lies, and there
                    is no Shevu'ah mid'Oraisa. Tosfos and the RIf
                    agree. R. Shimshon in Sefer ha'Krisos
                    explicitly says that it is mid'Rabanan. The
                    Ba'al ha'Ma'or (37a) and Tosfos (34a DH
                    Mechuyav) agree; therefore, we do not obligate
                    him if he cannot swear. Also, a mid'Rabanan
                    oath differs regarding taking his property,
                    reversing the oath and one who is suspected to
                    swear falsely.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (4):</font></b> The Rosh (Bava Metzia 1:3) says that
                    if one witness supports Shimon, he is exempt
                    from swearing. This contradicts the Rema
                    (87:6)/
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (3):</font></b> This is when Shimon could have
               exempted himself without a proof of his claim.
               However, if he would have needed a proof for his
               claim, e.g. in a place where witnesses are found, he
               is not believed to say that he returned it. Rather,
               Reuven swears while holding an item that he did not
               return it, and Shimon pays. This is if Shimon asks
               him to swear. L'Chatchilah, we tell Shimon to pay.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (4):</font></b> The Torah says 'if no one sees, he
                    will swear.' If others see, he is not believed
                    to swear. The Rambam and Tur connote that in a
                    place where witnesses are found, surely
                    witnesses would have seen the Ones. This
                    implies that Stam (if we do not know that
                    witnesses are found) he need not bring a proof.
                    The Shulchan Aruch holds like the Ramah, that
                    Stam he must bring a proof.<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rav Amram):</font></b> Shimon would have to swear (that
          it was lost through Ones)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> I meant that Shimon is believed if
          he swears (that he returned it).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Rav Amram and Rav Chisda argue like the
          following Tana'im:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - judges of Bavel):</font></b> If Levi brought a
               Shtar Kis (document of a business venture) against
               orphans, he swears (that their father never paid)
               and collects it all;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Judges of Eretz Yisrael say, he swears and
               collects half.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> All agree with Chachamim of Neharda'a, that Shtar
               Kis is half a loan, and half a deposit;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> Judges of Bavel say that since Levi
               has the document, this proves that he was not paid;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Judges of Eretz Yisrael say that their father
                    would be believed to say that the money (or
                    merchandise) was lost through Ones, which would
                    exempt him from paying half (the deposit),
                    therefore he would also be believed to say 'I
                    returned it';
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Therefore, we claim on behalf of the
                    orphans, that perhaps their father paid half.
                    (They swear that they do not know that their
                    father still owed.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, all agree with Rav Chisda (the Migo is
          believed against the document);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Judges of Bavel say that had he paid half, he
               would have told his children;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Judges of Eretz Yisrael hold that perhaps he died
               suddenly, and was unable to tell them.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Huna bar Avin):</font></b> If Reuven deposited with Shimon with a
          document, Shimon is believed to say 'I returned it';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Levi brings Shtar Kis against orphans, he
               swears and collects it all.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection:</font></b> These laws contradict each other!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> No. Had the father paid half, he would have
          told his children.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rava):</font></b> The Halachah is, he swears and collects half.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Mar Zutra):</font></b> The Halachah follows the judges of Bavel.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Ravina:</font></b> Rava said that he collects only half!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Mar Zutra:</font></b> Our text of the Beraisa switches the
               opinions. Judges of Bavel say that he collects half.
<br>

sjt:
</p><p>
<font><b>2) CLAIMING A DEPOSIT FROM 'YESOMIM'</b></font><b>
<br>QUESTION:</b> The Gemara records a dispute about the law in a case in which a person presents a Shtar to Yesomim attesting that he gave their father a sum of money, half of which was a loan and half of which was a deposit. Dayanei Golah rule that he may collect the entire amount. Dayanei Eretz Yisrael rule that he may collect only the half that is a loan; he may not collect the half that is a deposit, because Beis Din claims on behalf of the Yesomim that perhaps the half that was a deposit was already returned. Had the father made such a claim, he would have been believed with a Migu that he could have said that the money was lost through an Ones (and he would have been exempt). Beis Din may submit, on behalf of the Yesomim, any claim that the father could have used to exempt himself.
</p><p>
Why do Dayanei Golah not accept this argument? The Gemara explains that Dayanei Golah maintain that even the father would not have been believed to say that he returned the deposit, as long as the Mafkid is in possession of a Shtar. The presence of the Shtar overrides the Migu.
</p><p>
However, even if Dayanei Golah maintain that Beis Din does not claim for the Yesomim that the deposit was returned, they should at least agree that Beis Din may claim for the Yesomim than an Ones occurred to the deposit and therefore they are exempt from returning it! The fact that the Mafkid has a Shtar does not refute the claim that an Ones occurred to the deposit. Since the father would have been believed to say that an Ones happened, the Yesomim should be exempt because Beis Din should claim on their behalf that an Ones occurred. (<b>TOSFOS</b> DH Man d'Amar)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>BA'AL HA'ME'OR</b> cites Rishonim who suggest a simple answer. The Gemara assumes from the beginning that had the father been exempt from returning the deposit, he should have told his children before he died that he is exempt from returning it. The father's silence proves that he still owes money to the Mafkid. However, the Gemara thought that the father would feel a responsibility to tell his children that he is exempt only if an Ones occurred to the deposit, since the Mafkid would not be aware of the Ones and would certainly try to collect the deposit from the Shomer's children. If the father does not tell his children about the Ones, then they are bound to lose money. The Gemara thought that if the father <i>returned</i> the deposit to the Mafkid, he would not feel a responsibility to tell his children that the deposit was returned since he would not suspect the Mafkid of willfully collecting the deposit a second time. That is why the Gemara thought that Beis Din claims for the Yesomim only that their father returned the deposit and did not tell them, and not that an Ones occurred to the deposit and their father did not tell them about it.
</p><p>
(According to the <b>RASHBAM</b> (end of 70b), the silence of the father is a factor in determining that the deposit was not repaid only when there is a second element that disproves the claim of the Yesomim, such as the presence of a Shtar. According to his approach, the silence of the father never can prove that no Ones occurred, since it is not corroborated by any additional proof that no Ones occurred. The Ba'al ha'Me'or, on the other hand, apparently learns like Tosfos (in DH d'Im) and not like the Rashbam. However, even according to the logic of Tosfos there, it is not clear that the father would feel responsible to tell his children that an Ones occurred to the deposit, since he assumes that they will make that claim on their own. He will tell his children only that he paid back the deposit, since he assumes that his children will think that it is not repaid if a Shtar is presented to them.)
</p><p>
(b) <b>TOSFOS</b> (DH Man d'Amar) and the Ba'al ha'Me'or explain that Beis Din does not submit for Yesomim a claim that is unusual. It is not expected for a deposit to be lost through an Ones, and therefore Beis Din does not claim that an Ones occurred. On the other hand, it is expected that a deposit will be returned, and therefore Beis Din claims that it was returned.
</p><p>
The <b>RAMBAN</b> (in Milchamos) questions this approach (and the previous approach). If the Yesomim cannot claim that the object was lost through an Ones, then how can they claim that the object was returned? A person is believed to say that a deposit was returned only with a Migu that he could have said that it was lost through an Ones, but the Yesomim do not have that Migu since they are not believed to say that an Ones occurred!
</p><p>
Tosfos addresses this question and explains that it makes no difference whether the Yesomim themselves have a Migu. As long as the <i>father</i> would have had a Migu with such a claim, Beis Din may present that claim for the Yesomim; Beis Din may present for the Yesomim any normal claim that the father could have presented.
</p><p>
It seems that the Ramban and Tosfos disagree about how a claim can be presented by Beis Din on behalf of Yesomim. According to Tosfos, Beis Din says that 'perhaps the father would have made this claim.' According to the Ramban, Beis Din says that 'we shall treat the uncertain claim that the Yesomim are making and saying that it might be true, as if they are saying that that they <i>know</i> that it is true.' Since, ultimately, the claim is coming from the Yesomim, if they have no Migu themselves their uncertain claim cannot be made into a claim of certainty.
</p><p>
The <b>NETZIV</b> points out that the Rashbam has another answer to the question posed by the Ramban on Tosfos. According to the Rashbam (end of 70a), the Shomer is believed to say that the object was returned without having to rely on a Migu. Rather, Beis Din assumes that the Shomer did not reclaim the Shtar upon payment, because he knew that the Mafkid would not be able to collect a second time with the Shtar since he could always exempt himself by saying that an Ones occurred (and swearing that the object was lost through an Ones).
</p><p>
(c) The <b>RAMBAN</b> himself (in Milchamos) does not accept the previous answers. He explains that according to Dayanei Eretz Yisrael, the Yesomim are exempt from returning the deposit because they can say either that they returned it, <i>or</i> that it was Ne'enas. This is also the opinion of the <b>RIF</b> (Bava Metzia 62a) and the <b>RASHBA</b> (Bava Basra 33a). Why, according to the Dayanei Golah, does Beis Din not submit, on behalf of the Yesomim, the claim that the deposit was Ne'enas to exempt the Yesomim from paying? The Ramban answers that the same Chazakah (the fact that the Mafkid is holding the Shtar) that prevents the Yesomim from claiming that the deposit was returned also prevents the Yesomim from claiming that an Ones occurred. Had an Ones occurred during the lifetime of the father, the father certainly would have told the Mafkid about the Ones immediately and reclaimed the Shtar. Since he did not reclaim the Shtar before his death, it is clear that the deposit was not lost through an Ones before his death, just as it is clear that the deposit was not returned before his death.
</p><p>
(d) The <b>RA'AVAD</b> (cited by the Rashba and the Ba'al ha'Me'or) explains that the Gemara here is discussing <i>adult</i> Yesomim whose admission can obligate them to pay. The Yesomim are presenting a claim of certainty ('Ta'anis Bari') that their father told them that he returned the deposit. By claiming that the deposit was returned, it is as if they are admitting that the object was <i>not</i> lost through an Ones. Consequently, Beis Din cannot claim for them that the object was Ne'enas.
</p><p>
The Gemara concludes that even if the father is believed to claim that he returned the deposit, the Yesomim are not believed to say that their father <i>told</i> them that he returned the deposit. Had he really returned the deposit, the father would have told the children <i>in front of witnesses</i> that it was returned (and not in private).
</p><p>
The Rashbam might be alluding to this answer (in DH Shtar Kis) when he suggests, as an alternate explanation to the case of the Gemara, that the Yesomim are presenting a Ta'anas Bari that the object was returned.
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT IS INCLUDED WITH  A FIELD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Akiva):</font></b> (If one sells a field,) he does
          not sell the pit, winery or dovecote, whether these are
          barren or full. He must buy a path to them;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Chachamim say, he need not buy a path;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Akiva admits that if he said 'except for
               these', he need not buy a path.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Akiva says, if Reuven sold his field to Shimon, and
          the pit, winery or dovecote to Levi, Levi need not buy a
          path;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Chachamim say, he must buy a path.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	This refers to one who sells, but one who gives a gift
          gives all of them.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Brothers who divide an inheritance acquire all of these
          with a field.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	If one makes Chazakah to acquire a (Hefker) field of a
          convert (who died without heirs), he acquires all of
          them.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	If one is Makdish a field (gives it to Hekdesh), they
          all become Hekdesh;
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	R. Shimon says, (of all these things,) only grafted
          carob and sycamore stumps are Hekdesh.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONE GIVES GENEROUSLY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why is a sale different than a gift?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Yehudah ben Nekusa):</font></b> The giver explicitly said
          that he gives all. The seller did not.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> Neither of them was explicit!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, the giver did not need to be explicit
          (all know that one gives generously). The seller needed
          to be explicit (normally, one sells stingily).
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Reuven said 'give to Ploni a house that can hold 100
          barrels', and it was found that Reuven owns a house that
          holds 120.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Mar Zutra):</font></b> Reuven wanted to give a house holding 100
          barrels, but not a bigger house.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection (Rav Ashi - Mishnah):</font></b> This refers to one who
          sells, but one who gives a gift gives all of them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> One gives generously;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Also here, Reuven gives generously. He is happy
               for Ploni to get a bigger house!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>KEEPING LAND FOR TREES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one is Makdish a field, they all become
          Hekdesh.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> Even though if Reuven buys two trees in
          Shimon's property, he does not acquire land with them
          (between or around them, or the right to plant others if
          these will die or dry up), if Reuven sold his property
          and kept two trees for himself, he keeps land with them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even R. Akiva says that one sells generously only
               regarding pits and cisterns, which endure;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Trees weaken. If he would not retain land, the
               buyer could tell him 'uproot your trees and leave'
               (when they dry up).
<br>
<br>

sjt:
<font><b>1) ONE WHO SELLS TWO TREES, AND ONE WHO RETAINS TWO TREES FOR HIMSELF</b></font><b>
<br>QUESTION:</b> Rav Huna states that 'even though' the Rabanan rule that one who purchases two trees does not acquire the property on which the trees stand (unless he specifies otherwise), one who sells his property but keeps two trees for himself retains the right to the property on which the trees stand. The Rishonim ask that the words 'even though' in Rav Huna's statement seem inappropriate. The reason why a person does not receive the land when he buys two trees is 'ha'Mocher b'Ayin Ra'ah Mocher' -- 'a seller sells with a bad eye (stingily),' and thus the seller does not include the land in the sale of the trees. For this reason, when he sells his property and keeps two trees, it is logical that he keeps the land under the trees for himself, since he sells stingily and does not give anything that he does not need to give. Why does Rav Huna say 'even though' a seller does not sell the land when he sells two trees, when he sells everything besides two trees he keeps the land? The second Halachah is <i>because</i> of the first Halachah and not <i>despite</i> the first Halachah!
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> quotes some who answer that the Halachah that land is not sold with two trees is not based on the concept of 'ha'Mocher b'Ayin Ra'ah Mocher.' Rather, it is based on whether or not the land is considered a 'Sedeh Ilan' -- a 'tree field.' If it has the title of a 'tree field,' the land is sold with the trees. The Rabanan determined that a 'tree field' is comprised of at least three trees. Accordingly, one who sells two trees does not sell the land since it is not considered a 'tree field.' However, this should mean that one who leaves himself two trees does <i>not</i> leave himself the land on which they stand, since he has not left himself enough trees to have the land considered part of the trees. This is why Rav Huna says that despite the fact that a purchaser of two trees does not receive the land on which the trees stand, one who leaves himself two trees does leave himself that land despite the fact that it is not a 'tree field.' This is because he does not want to have a conflict with the owner of the land who might not want the seller's trees on his field. The Rashba says that this answer is correct. This is also the opinion of the <b>RA'AVAD</b>.
</p><p>
(b) The <b>RAN</b> answers that the words 'even though' refer to the second part of Rav Huna's statement, in which he says that this ruling is true even according to Rebbi Akiva. Rav Huna is saying that one who sells two trees sells them without the land beneath them, and, accordingly, when one keeps two trees for himself when he sells his property, he also keeps the land on which the trees stand. This seems to be based on the Rabanan's statement that a seller sells stingily. Rav Huna says that <i>even though</i> this second Halachah seems to be only in accordance with the view of the Rabanan, Rebbi Akiva actually agrees with it as well. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A GIFT UNLIKE THE GIVER SAID</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 said 'give to Ploni
               a house that can hold 100 barrels', and it was found
               that Reuven owns a house that holds 120.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Mar Zutra):</font></b> Reuven wanted to give a house holding
               100 barrels, not a bigger house.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection (Rav Ashi - Mishnah):</font></b> This refers to one
               who sells, but one who gives a gift gives all of
               them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Inference:</font></b> One gives generously;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Also here, Reuven gives generously. He is happy
                    for Ploni to get a bigger house!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Gitin 13a (Rav):</font></b> If a Shechiv Mera said 'give 100
               Zuz of my property to Ploni', and he did not specify
               which money, we do not give. Perhaps he referred to
               a deposit of Ploni that is buried somewhere.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> The Halachah is, we are not concerned lest he
               referred to buried money.
<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 Rav Ashi. One gives
               generously. (Ploni gets the big house.)
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Gemara):</font></b> The Ritva says that
                    we cannot learn from here to other matters.
                    Even here, if the house held more than 120, we
                    cannot say so (that Ploni gets it). I do not 
                    understand. What was Rav Ashi's source to learn
                    from the Mishnah that he acquires only when it
                    holds up 120 precisely?! We do not say that he
                    can buy a house that holds 100 and give it (in
                    place of the house of 120), because 'give'
                    connotes 'from my property', if possible. The
                    Gemara in Gitin connotes like this.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Zechiyah 11:22):</font></b> A case occurred in
               which Reuven said 'give to Ploni a house that can
               hold 100 barrels', and we found that Reuven's house
               holds 120. Chachamim said that Ploni acquires the
               house. It seems that he intended for this, for one
               gives generously. The same applies to all similar
               cases.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The Rosh (4:16) brings the Gemara.
<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 253:14):</font></b> If a Shechiv Mera
               (Reuven) said 'give to Ploni a house that can hold
               100 barrels', and we did not find a house of Reuven
               that holds less than 120, Ploni acquires the house
               that holds 120.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Shechiv):</font></b> The Rashbam explains
                    that Mar Zutra held that Ploni receives five
                    sixths of the house that holds 120. Reuven
                    thought that the house does not hold more. He
                    said 'a house that holds 100' to show that he
                    gives a big house. It seems that this is only
                    when it was found that Reuven owns a house that
                    holds 120, for people can err between 100 and
                    120. We would not say so if it held more than
                    120. In the Tur, it says that it holds 150. It
                    seems that this is a printing mistake. Even if
                    the Tur held that the same applies even if it
                    holds more than 120, he should have cited the
                    Gemara like it says, and said that the same
                    applies to 150. Also, if the same applies to
                    150, what is the source to say only until 150?
                    Perhaps the same applies to 160 or 180 or more!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bach (DH Shechiv):</font></b> I say that the same applies
                    even if Reuven had another house that holds
                    only 100, but he said 'house Almoni', and house
                    Almoni holds 120. We do not say that he mixed
                    up the houses. Rather, he thought that it does
                    not hold more than 100. People err about such
                    things.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (33):</font></b> We do not that Ploni receives only an
                    area that holds 120, and the rest is for the
                    heirs. Rather, he said 100 to show what an
                    important gift he gives. He was not precise,
                    for he had no smaller house.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Taz:</font></b> The Tur connotes that if Reuven had
                    another house we would say that he intended for
                    it, and ha'Motzi mi'Chavero Alav ha'Re'ayah.
                    When he has no other house, why don't we say
                    that it was a mistake? If one said 'take this
                    wallet full with 10 gold coins', and he erred
                    and it really has 15 gold coins, will we say
                    that he must give all 15?! I say that here
                    Ploni receives the entire house because it is
                    not normal to leave over the minority. Rather,
                    he gives everything generously, just like (when
                    one gives, he does not keep) a path. Reuven
                    said what a big gift he gives, according to his
                    knowledge. Had he known how big it really is,
                    he would have (given it all and) said that he
                    gives an even bigger gift. A wallet is
                    different. It has no Shi'ur. It was a mistaken
                    gift, therefore, Ploni gets only 10 coins.
                    Therefore, even if the house is bigger than
                    120, Ploni gets it. The Gemara discusses a case
                    that occurred. If not (rather, it teaches the
                    limit), it should have said that said that he
                    does not acquire a bigger house, since the law
                    was taught like an episode. I say that even if
                    it was found that he had a house smaller than
                    100, he may give it, for we can say that he
                    erred, and ha'Motzi mi'Chavero Alav ha'Re'ayah.
                    'One gives generously' helps only when the
                    house is more than 100, to teach that we do not
                    say that he gets only 100. Even if he knows
                    that the house is less than 100, we can say
                    that he intended for it, and he means that it
                    is as good as a house of 100. We find this even
                    regarding a sale (CM 218:16), but there the
                    buyer must know how big it really is, and here
                    the recipient need not know.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Mishneh l'Melech (Hilchos Zechiyah 10:1):</font></b> If a
                    Shechiv Mera had two bundles, each with 120
                    coins, and he said 'give to Ploni the bag of
                    100', are we concerned lest he refers to a bag
                    that was buried? Or, does he get exactly 100?
                    We can compare this to the gift of a house that
                    holds 100 barrels. We conclude that one gives
                    generously, so he gets it all. Do not say that
                    this is when he said 'this house', for the
                    Rashbam said that the case is that he has no
                    other house. If he said 'this house', Ploni
                    would get it even if Reuven had others! If we
                    would be concerned lest the Shechiv Mera had a
                    wallet with 100 and it was lost, we should be
                    concerned lest Reuven has a house overseas that
                    holds 100!
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Rebuttal (Nesivos ha'Mishpat Bi'urim 11):</font></b> These
                    are different! The gift of the house connotes a
                    full house. If he gives only the area of 100
                    barrels, he did not give the entire house!
                    Therefore, we say that he erred, and thought
                    that it holds only 100. Had he known that it
                    holds 120, he would have given it all. There is
                    no reason to say that he did not intend to give
                    100 coins out of 120. Since he said 100,
                    presumably this is what he wants to give.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'> R. Akiva Eiger:</font></b> Even if it was found that he
                    had a house that holds 80 or 90, we say that he
                    erred, and he thought that it holds 100.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>R. Akiva Eiger (Teshuvos 1:16-118):</font></b> A case
                    occurred in which David commanded to give a Get
                    to his wife, Bas Shimon ha'Levi, and it was
                    found that her father was not a Levi. The Beis
                    Meir says that we can give the Get. I disagree.
                    At least there is concern lest people say that
                    the Get was Pasul. If it was through a
                    Shali'ach, I say that there is concern
                    mid'Oraisa that a different man (whose father-
                    in-law was a Levi) sent it.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Ohr Some'ach (Hilchos Gerushin 1:1 DH v'Hinei
                    b'She'alos):</font></b> A similar case occurred in which
                    David authorized a Get for Bas Yehudah, and
                    this was not her father's name, and they were
                    concerned lest David was merely jesting, or
                    that he had another wife. I say that we learn
                    from Bava Basra. Even Mar Zutra was not
                    concerned lest he had another house, just he
                    holds that Ploni does not receive more than
                    Reuven said. Also in the Mishneh l'Melech's
                    case of the wallet, we are not concerned lest
                    he merely intends to jest. Even though we do
                    not learn Isur from monetary laws, in pressed
                    circumstances we are more lenient about Gitin,
                    and we are not meticulous about the Get of a
                    Shechiv Mera. All agree that the concern is
                    only mid'Rabanan, so we attribute it to an
                    error.
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Note:</font></b> Seemingly, regarding Gitin there is
                    concern lest he intends to taunt her. If a
                    healthy man said 'write a Get to my wife' (he
                    did not say to give it), he is only teasing her
                    (Gitin 66a). If a man sent a Get and was
                    Mevatel it, the Gemara was concerned lest he
                    just seeks to pain her (Gitin 32a). If the
                    husband was often with his father-in-law, and
                    frequently heard people call him by his name,
                    it seems unlikely that he would err about this,
                    unless his mind was weak due to illness.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If one was Makdish a field, (of all the things that
          would not included in a sale,) only grafted carob and
          sycamore stumps are Hekdesh. (Other trees are included even
          in a sale, so surely they are Hekdesh.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa - R. Shimon):</font></b> This is because they nurture
          from the surrounding Hekdesh land. (He does not want to
          benefit from Hekdesh.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (against Rav Huna):</font></b> If one leaves land for his
          trees, they nurture from his own property!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1:</font></b> R. Shimon holds like R. Akiva (that one
          sells generously. Likewise, one is Makdish generously).
          Rav Huna's law is like Chachamim (one sells stingily. We
          retracted from what we said above, that Rav Huna's law is
          even like R. Akiva. Another answer will be given on Daf
          72b.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> Chachamim say that one keeps a path to his
          pit. We need not say that he keeps land for his trees!
          (If Rav Huna does not teach even according to R. Akiva,
          what is his Chidush?)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> He teaches that if they fall, he may plant new
          trees.
<br>

<p>

sjt:
</p><p>
<font><b>2) 'TAKE YOUR TREES AND LEAVE'</b></font><b>
<br>OPINIONS:</b> Rav Huna states that even though the Rabanan rule that one who purchases two trees does not acquire the property on which the trees stand (unless he specifies otherwise), one who sells his property but keeps two trees for himself retains the right to the property on which the trees stand. Rav Huna continues and says that this ruling is true even according to Rebbi Akiva. Even though Rebbi Akiva maintains that 'Mocher b'Ayin Yafah Mocher' -- 'a seller sells with a good eye (generously),' and thus it is reasonable to assume that the seller sold all of the land (even the land under his trees), in this case it must be that he left land for himself. Since trees weaken the land on which they stand, if he does not leave himself the land the buyer may tell him, 'Uproot your trees, take them, and leave.'
</p><p>
What is the nature of this claim that the buyer could make? Does it mean that the buyer may tell the seller to take his trees and leave immediately, or only after a certain amount of time has passed?
</p><p>
(a) The <b>RASHBAM</b> (71a, DH Hani Mili) writes that the buyer may tell the seller to take his trees only after they die.
</p><p>
<b>TOSFOS</b> (DH Leima) asks that this logic cannot be the reason why Rebbi Akiva agrees that the seller must have left land for himself. Perhaps the seller does not mind that he will have to leave after the trees die, because that could be a very long time from now.
</p><p>
(b) Tosfos quotes the <b><b><b>RI</b></b></b> who says that if the seller does not leave himself land, the buyer may demand that the seller immediately remove his trees and leave.
</p><p>
This opinion is difficult to understand. According to the Rabanan, when one buys two trees he does not acquire the land beneath them, and yet he may keep his trees there until they die. Why is the law different for one who sells his property and leaves two trees for himself? The <b>RASHBA</b> explains that when a person buys two trees in his friend's field, it is assumed that he also purchased the rights for his trees to grow on the property. Since he purchased trees and not wood, he obviously wants to keep the trees attached to the ground. However, when one sells all of his property except for two trees, the buyer might think that since the seller has received his money from the sale of the field, he is keeping the two trees only for their wood, and thus he is entitled to demand that the seller leave the property immediately. The law therefore teaches that since the seller is not interested in leaving the property, it is assumed that he left for himself not only the right to let the trees grow, but also the right to the land around the trees. According to the Ri, the seller may even plant other trees in the place of these trees if they die. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>IS LAND INCLUDED WITH TREES?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Objection:</font></b> R. Shimon does not hold like R. Akiva!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If one was Makdish three trees spaced
               out like 10 trees spread over a Beis Kor (an area in
               which 30 Sa'im of seed are sown, i.e. 75,000 square
               Amos), he includes the land and trees between them;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Therefore, he redeems them (with the land)
                    according to the fixed rate for redemption of
                    land, 50 silver Shekalim for a Beis Kor.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If they are spread out more or less densely, or
               if he did not Makdish all three at once, he did not
               Makdish the land and trees between them. Therefore,
               he redeems them according to their value.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Even if he later was Makdish the land and trees
                    between them, he redeems the (first) trees
                    according to their value, and the land
                    according to 50 Shekalim for a Beis Kor.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Who is the Tana of this Beraisa?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It is not R. Akiva. He says that one sells
                    generously, and all the more so he is Makdish
                    generously (the land would be Hekdesh even if
                    he did not Makdish all three at once)!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> It is not Chachamim. They say that one
                    sells stingily, but they admit (in the Mishnah)
                    that he is Makdish generously!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> It must be like R. Shimon.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> What is R. Shimon's opinion about
               selling?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It is not like R. Akiva, for if so, all the
                    more so he is Makdish generously!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> He must hold like Chachamim, that one
               sells stingily;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Shimon says that also he is Makdish
                    stingily, and keeps land for himself.
<br>
<br>

sjt:
<font><b>1) ONE WHO CONSECRATES THREE TREES TO HEKDESH</b></font><b>
<br>OPINIONS:</b> The Gemara quotes a Beraisa which discusses the case of a person who is Makdish trees and the land upon which they stand. If he is Makdish three trees, which are somewhat close to each other, at one time, the land beneath them also becomes Hekdesh, just as the land is included in the sale of three trees. Accordingly, one who wants to redeem the property must redeem the trees and the land together, as one unit. In contrast, if he is Makdish trees at separate times, one after the other, Hekdesh does not acquire the land and the trees are considered individual units when one redeems them. The Gemara adds that even if the trees were made Hekdesh and then the land was made Hekdesh, the land must be redeemed separately from the trees. (This increases the redemption-value of the trees.)
</p><p>
To what exactly does last case in the Beraisa refer? Does it refer to one who is Makdish three trees at the same time or independently?
</p><p>
(a) The <b>RASHBAM</b> (DH v'Lo Od) explains that the Beraisa refers to one who is Makdish the trees separately. Apparently, the Rashbam's reasoning is that if all of the trees are made Hekdesh together, the land also should become Hekdesh, and the trees and the land should be considered one unit with regard to their redemption.
</p><p>
The <b>RASHASH</b> asks that if this is what the Beraisa means, then it should not have presented this case as a separate case, but it simply should have added to the previous case and said that the law applies even when the owner makes the land Hekdesh as well. Why does the Beraisa need to state a new case?
</p><p>
(b) The Rashash therefore explains that the Beraisa refers to a case in which the owner makes the trees Hekdesh all at once, and in the same statement he proclaims the land Hekdesh as well. The fact that the owner says that the land is Hekdesh implies that he did not include the land in his original statement that the trees are Hekdesh. Accordingly, his two statements of Hekdesh are two separate declarations. The Beraisa is teaching that in such a case the trees and land are viewed as separate units of Hekdesh, and thus they must be redeemed separately. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ONE GIVES MORE GENEROUSLY THAN HE SELLS</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'> 65a:</font></b> Reuven owned an inner house and an outer house.
               If he sold or gave (at the same time) the inner
               house to Shimon and the outer house to Levi, neither
               has rights to walk through the other, and all the
               more so if he gave the outer house and sold the
               inner house. (Since he gave the gift to Levi, this
               shows that he favors him.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Also if he gave the inner house and sold
               the outer house, neither has rights to walk through
               the other.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection (Mishnah):</font></b> This applies to a sale, but one
               who gives (a gift) gives everything.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This shows that one gives generously. Also
                    regarding the houses, Reuven gives generously
                    to Shimon, and included a path.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 71a (Mishnah - R. Akiva):</font></b> (If one sells a field,) he
               keeps the pit, winery or dovecote, whether these are
               barren or full. He must buy a path to them;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Chachamim say, he need not buy a path;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> This refers to one who sells, but one who gives a
               gift gives all of them. If one is Makdish a field
               (gives it to Hekdesh), they all become Hekdesh;
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> R. Shimon says, (of all the things that would not be
               included in a sale,) only grafted carob trees and
               sycamore stumps are Hekdesh.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Rav Huna):</font></b> Even though if Reuven buys two trees in
               Shimon's property, he does not acquire land with
               them (between or around them, or the right to plant
               others if these will die or dry up), if Reuven sold
               his property and kept two trees for himself, he
               keeps land with them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Even R. Akiva says that one sells generously
                    only regarding pits and cisterns, which endure.
                    Trees weaken. If he would not retain land, the
                    buyer could tell him 'uproot your trees and
                    leave' (when they dry up).
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> In a Beraisa, R. Shimon explains that one
               is Makdish carob and sycamore with a field, lest
               they nurture from the surrounding Hekdesh land. If
               one leaves land for his trees, they nurture from his
               own property!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer:</font></b> R. Shimon holds like R. Akiva (that one
               sells, and is Makdish, generously). Rav Huna's law
               is like Chachamim (one sells stingily).
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 72b:</font></b> R. Shimon addresses Chachamim according to
               their reasoning. I (R. Shimon) say that just like
               one sells stingily, he is Makdish stingily, and
               keeps land for himself. You may say that he is
               Makdish more generously than he sells, but admit
               that he (is stingier than one who gives. He) is
               Makdish only grafted carob trees and sycamore stumps
               (lest they nurture from Hekdesh, but not pits...)
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> Chachamim hold that he is Makdish as generously as
               he gives.
<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 (35a and 4:9) brings the Gemara on
               65a.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif and Rosh (38a and 4:17):</font></b> The Halachah follows R.
               Akiva, that one sells generously.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 25:4):</font></b> If Reuven owned an
               inner house and an outer house, and he sold or gave
               both of them to different people, neither has rights
               to walk through the other, and all the more so if he
               gave the outer house and sold the inner house. If he
               gave the inner house to Levi and sold the outer
               house, Levi has rights to walk through the outer
               house, for one gives more generously than he sells.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Ri mi'Gash says that this is
                    when he was Makneh (transferred ownership) of
                    them at once. If he sold the inner house, and
                    afterwards sold the outer house, the first
                    recipient immediately acquired a path, for we
                    hold like R. Akiva, that one sells generously,
                    and one who buys a pit gets a path to it.
                    Similarly, if first he sold the outer house,
                    and then gave the inner house, the latter
                    recipient did not acquire a path, for the owner
                    did not keep one for himself. We rule like R.
                    Akiva, that one who keeps a pit must buy a path
                    to it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (4:17):</font></b> The Halachah follows R. Akiva, that one
               sells generously.
<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 214:9):</font></b> If Reuven owned an inner
               house and an outer house, and he sold or gave both
               of them to different people, neither has rights to
               walk through the other, and all the more so if he
               gave the outer house and sold the inner house
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Mi):</font></b> When he sold or gave both,
                    surely he was not generous to one and stringy
                    to the other. Rather, he gave the entire outer
                    house to one, and the entire inner house to the
                    other.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (37,38):</font></b> The only exit of the inner house
                    is through the outer. He gave also to Shimon
                    generously, that no one has rights to pass
                    through. Levi must appease Shimon, so he will
                    allow him to pass through.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (39):</font></b> Even though we hold like R. Akiva,
                    that one sells generously, and Chachamim hold
                    that one one gives stingily, one gives more
                    generously than he sells.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Mabit (2:65):</font></b> A case occurred in which Reuven
                    gave to his wife, for Tosefes Kesuvah, the
                    house in which he lived and the house under it
                    and the pit in front of it and the pantry.
                    Before his death, he wrote to his relative the
                    middle house between the two Aliyos, and he
                    also wrote to his wife what he already wrote in
                    the Kesuvah. The relative's house was between
                    the wife's house and another house on the
                    north. A Chatzer separated this house from the
                    wife's house, in which were the pit, pantry,
                    oven and a Beis ha'Kisei. The relative wanted
                    rights to pass through the Chatzer, and rights
                    to also use the oven and Beis ha'Kisei, which
                    werd not mentioned in the gift to the wife. The
                    wife says that the pantry is in the east, and
                    the opening of her house is in the middle, so
                    she received it all. Also, the main opening of
                    the relative's house opens to another Chatzer,
                    so she does get rights to pass through this
                    Chatzer. I say that the relative would have no
                    rights to pass through even if she had no other
                    opening, like one who received an inner house.
                    The Chatzer was included in what he wrote to
                    his wife, for it is called 'Dirah (dwelling)'.
                    Even a city is called Dirah! When he wrote to
                    his wife, he did not mention the oven and Beis
                    ha'Kisei, for they are Tefel to (secondary to
                    and included with) the Chatzer, which is
                    included with the house. The relative would not
                    have rights to pass even if the gifts came
                    together, and all the more so in this case,
                    when the other house was already written to the
                    wife in her Kesuvah. The relative gets an
                    opening through the other Chatzer, which was
                    not given at all, and was left for the
                    husband's heir. Also the lower house that the
                    wife received was given with a path.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If he gave the inner house to
               Levi and sold the outer house to Shimon, Levi has
               rights to walk through the outer house, for one
               gives more generously than he sells.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (39):</font></b> Since he gave a gift to Shimon,
                    surely he loves him more, and gave to him the
                    best rights.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (10):</font></b> This is when he was Makneh of
               them at once. If he sold or gave the inner house to
               Levi, and afterwards sold or gave the outer house to
               Shimon, Levi immediately acquired a path, and he
               does not lose this afterwards. Similarly, if first
               he sold the outer house to Shimon, and then gave the
               inner house to Levi, Levi did not acquire a path.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (40):</font></b> We hold that one sells all rights
                    that he has (Bava Kama 8b).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Prishah (16 DH u'Mah):</font></b> This is only when the
                    original owner said only that he gives or sells
                    the inner house (and automatically, he keeps
                    the outer house). If he explicitly mentioned
                    that he keeps the outer house, he did not give
                    a path.
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