Monday, October 29, 2007

רוכב ברה"ר (Bava Metzia 9b)

The Gemara says that someone who rides an animal in the רה"ר is קונה in certain circumstances. The Gemara says that the case is מנהיג ברגליו meaning that the קנין is משיכה. Both the קצות and רעק"א ask that the din is that משיכה does not work ברה"ר it only works in a סימטא or צידי רה"ר, if so how can the rider here be קונה in the רה"ר with a קנין משיכה?

תופס לבע"ח במקום שחב לאחריני by a שליח (Bava Metzia 9b)

Rashi (Bava Metzia 10a) states explicitly that there is no problem of תופס לבע"ח במקום שחב לאחריני if the person is a שליח of the one who is owed the money.

Akiva pointed out this morning that this seems to be against the Gemara in כתובות פד where the simple reading of the Gemara is that תופס לבע"ח במקום שחב לאחריני applies even to a שליח.

In fact, Tosafos (both in כתובות and in ב"מ) points this out and holds that there is a problem of תופס לבע"ח במקום שחב לאחריני even by a שליח.

In Shulchan Aruch (ח"מ סימן ק"ה) the Shulchan Aruch paskens like Tosafos (against Rashi) that תופס לבע"ח במקום שחב לאחריני is a problem even if he appoints a שליח. The ש"כ wants to explain that Rashi only said a שליח works where he pays the שליח. Since he is paying him he becomes like a פועל and therefore ידו כיד בעל הבית. See also the נתיבות there who has a long discussion about Rashi.

One suggestion I saw is that Tosafos holds that זכייה is מטעם שליחות and therefore there is no difference between a שליח and anyone else while Rashi may hold that זכייה works מטעם יד and therefore there is room to differentiate between a שליח and someone else.

Wednesday, October 24, 2007

מגביה מציאה לחבירו and the proof from the Mishna (Bava Metzia 8a)

The Acharonim ask the very obvious question, how can the Gemara think to bring a proof from the Mishna, the Mishna is clearly not a case where you are picking it up for your friend. There seems to be 2 fundamental approaches:
1. The פני יהושע says that אין הכי נמי. The רישא in the Mishna is not מגביה מציאה לחבירו because you are not picking it up for him. The Gemara could have asked this and deflected all the proofs from the Mishna. However, the Gemara had other answers to deflect the proofs. למסקנה that we learn out from the last case, there is no problem since they both agree they picked it up together.
2. A person is assumed to have the necessary כוונא in order to acquire the object. Therefore, if in the mishna he needs כוונא for his friend then we ascribe that כוונא to him.

There is a מחלוקת the סמ"ע and the ש"ך and the קצות and the נתיבות whether by מגביה מציאה לחבירו the person who picks it up needs to verbalize his intent for the other person. The סמ"ע and the קצות both say that if Reuven is picking up for Shimon, Reuven needs to verbalize that he is picking up for Shimon when he picks up the object. The ש"ך and נתיבות disagree. It is pretty clear that the סמ"ע and the קצות need to learn the Gemara like the פני יהושע. If they hold in a regular case you need to verbalize, they would clearly hold in the Mishna's case that it doesn't work.

According to everyone the pshat in the Gemara's deflection from the רישא is as follows:
There is no proof from the רישא because maybe מגביה מציאה לחבירו לא קנה חבירו, however the din in the mishna will still be יחלוקו. Since they are both holding it and they both claim it is theirs, there are 3 possibilities:
1. It is Reuven's
2. It is Shimon's
3. They picked it up together and it is neither one's because מגביה מציאה לחבירו לא קנה חבירו

We will not let a third party take it because maybe it is one of their's and therefore the din is יחלוקו

The Gemara however, does not deal with the issue that how is this מגביה מציאה לחבירו if he didn't have כוונא to pick it up for him.

Monday, October 22, 2007

מחוי ליה ר' אבהו ובשבועה (Bava Metzia 7a)

Is the שבועה on the whole thing (including what he holds) or is the שבועה only on the rest (what he is not holding)?

Tosafos (ד"ה מחוי) states that the שבועה is on all of it. The Rambam holds that the שבועה is only on the rest. The Rambam would seem to be supported by the Gemara. Since what you are holding is כמאן דפסיק דמי then why should you need to take a שבועה on it it is yours?

שנים אדוקים בשטר (Bava Metzia 7a)

The Rishonim point out that this case shows that even by a ודאי רמאי you say יחלוקו. By שנים אדוקים בשטר one of them is definitely lying, he either paid off the loan or he didn't and yet the din is יחלוקו. However, the חלוקה can be אמת as it is possible that he paid off half the loan. This very much ties into a previous post Does everyone hold from the סברא of ודאי רמאי? (Bava Metzia 2a-3a)

Wednesday, October 17, 2007

Does אביי hold חשיד אממונא חשיד אשבועתא? (Bava Metzia 6a)

This is a מח' הראשונים.

Rashi understands that אביי has a fundamental argument with ר' יוחנן and that אביי holds חשיד אממונא חשיד אשבועתא. He explains the Mishna that שמא יש לו עליו מלוה ישנה. The Rishonim explain according to Rashi that all the proofs that were brought are answered this way as well. In those cases also we say שמא יש לו עליו מלוה ישנה. If so why is הכופר בפקדון פסול? The Rishonim explain that when all we have is a suspicion that you stole something the claim of שמא יש לו עליו מלוה ישנה can take care of that. But by הכופר בפקדון where we know that you took money, then שמא יש לו עליו מלוה ישנה is not strong enough and we say חשיד אממונא חשיד אשבועתא.

The Ramban and the Ran offer an alternative pshat. They say that אביי agrees that we don't say חשיד אממונא חשיד אשבועתא. He only argues with ר' יוחנן on the reason for the שבועה in the Mishna. אביי says that the חכמים would not be מתקן a שבועה because we are worried about people attacking each other on the streets. We should not assume that people will just go ahead and attack people on the street and grab for no reason. Rather, the reason for the שבועה in the Mishna is because שמא יש לו מלוה ישנה and that is why he grabbed. However, in any case even if he is חשיד אממונא he is not חשיד אשבועתא and like all the proofs that the Gemara brought that חשיד אממונא לא חשיד אשבועתא.

Tuesday, October 16, 2007

An alternative pshat in ההוא רעיא (Bava Metzia 5a)

The Gra (ח"מ סי' פ"ז ס"ק מ"ו and in much more detail in the שנות אליהו ליקוטים at the end of זרעים) offers a completely different pshat in the sugya of ההוא רעיא.

The Gra is bothered by a number of questions:
1. The Gemara says לסוף אמר להד"ם, what is the לשון of לסוף? What is this at the end of? This is the רועה claim in Beis Din.
2. Why doesn't the Gemara ask right away from the din of שבועת היסת? As soon as ר' זירא said that if we hold like ר' חייא the רועה would be חייב a שבועה the gemara should have asked even without ר חייא the רועה is חייב a שבועת היסת? Why does the Gemara wait until after we are מהפך the שבועה, it makes more sense earlier?
3. The Gemara asks at the end, ותיפוק ליה דהוי רועה? Rashi explains that this is a question on אביי, that even if he is not a גזלן he is still פסול because he is a רועה, so why did אביי ask from גזלן? However this is very difficult as גזלן is more חמור then רועה (it may be דאורייתא while רועה is for sure only דרבנן).

Based on this the Gra adopts the גירסא of the רי"ד that changes the placement of the word לסוף. Their גירסא is אמר להד"ם ולסוף אתו סהדי. The pshat in the gemara is as follows.

The רועה and the owner come into Beis Din. The owner says I gave you 5 sheep and the רועה says להד"ם. The רועה then takes a שבועת היסת like every כופר הכל. Then לסוף, after he has already taken a שבועת היסת , then 2 עדים come and say that we saw him give you 2 sheep. This answers question 1. The לשון of לסוף makes perfect sense, it means at the end after he already took a שבועת היסת the עדים came. ר' זירא then says, if we hold like ר' חייא the רועה would be חייב a שבועה דאורייתא and even though he took a שבועת היסת he would need to take the שבועה דאורייתא because it is more חמור. This answers question 2. Now we understand why we can't ask from שבועת היסת, he already took one. It is only after אביי says that he is a גזלן and therefore the owner swears that we can ask from שבועת היסת. The question is, since he is a גזלן the original שבועת היסת that the רועה took is null and void so let the owner swear and collect. To that the Gemara answers תקנתא לתקנתא. The Gemaras last question is not on אביי, but rather how could we have given the רועה the original שבועת היסת, he should have been פסול. This answers question 3.

The Gra points out that with this pshat we understand where the שו"ע got the din that is mentioned in סי' פ"ז סע' י"ד from. The שו"ע writes that if a person is כופר בכל and takes a שבועת היסת and then an עד א comes and is מחייב a שבועה דאורייתא he has to take the שבועה דאורייתא. The Rama then comments that if he takes a שבועה and it turns out that he was פסול the שבועה is null and void and he must pay. The באר הגולה and others cannot find a source in Shas for these. The Gra says that based on his pshat both of these dinim are explicit in our Gemara.

Saturday, October 13, 2007

Is there הזמה by an עד אחד? (Bava Metzia 4a)

The (קצות (סימן ל"ח ס"ק ה points out that we see from Tosafos (ד"ה עד אחד יוכיח) that there is הזמה by an עד אחד as Tosofaso says that the girsa of ובהזמה is correct. Tosafos explains that the fact that he doesn't pay money is just because he is not מחייב money. The קצות says that the נפקא מינא would be in a case where he is מחייב money such as where he is מחייב a שבועה that the person can't take and the person then has to pay. In that case if he is מוזם the עד would need to pay. The קצות ends off that he is not sure that there is הזמה by an עד אחד.

The Minchas Chinuch (מצוה ל"ז), points out that the Rambam (הל' עדות פרק כ"א הל' ה) says explicitly that there is הזמה by an עד אחד by a Sota:
"בא עד אחד והעיד שזינת אחר הקינוי והסתירה, ונמצא אותו העד זומם--משלם כתובתה ..."

And therefore the Michas Chinuch is surprised why the קצות said he is not sure that there is הזמה by an עד אחד.

The fact is that there are different נוסחאות in the Rambam whether it should say עד א or not and therefore the proof from the Rambam can be disputed (עיין חזו"א שם).

Tuesday, October 9, 2007

Does everyone hold from the סברא of ודאי רמאי? (Bava Metzia 2a-3a)

From the gemara on 3a it would seem that even the רבנן hold that you don't say יחלוקו if there is a ודאי רמאי because the Gemara asks on both ר' יוסי and the רבנן from חנוני על פנקסו that in that case there is a ודאי רמאי.

However, in fact, this is a מח' ראשונים. The last Rashi on 2a states that whenever you have a ודאי רמאי you say יהא מונח, the simple understanding of Rashi is that this is even according to the רבנן. A נפקא מינה is the case of זה אומר אני ארגתיה וזה אומר אני ארגתיה where Rashi says the din is יהא מונח because there is a ודאי רמאי. However, Tosafos (2b ד"ה אי תנא מציאה) as well as the Rosh in סימן א both disagree and say that even in the case of זה אומר אני ארגתיה וזה אומר אני ארגתיה where there is a ודאי רמאי, you say יחלוקו. They hold that the סברה of ודאי רמאי was only said for ר' יוסי. They bring a proof from the Gemara later (7a) from the case of שנים אדוקים בשטר where there is a ודאי רמאי and still the din is יחלוקו. Tosafos and the Rosh explain that according to the רבנן there is a different סברה, that the חלוקה יכולה להיות אמת. What this means is that we don't look at their claims whether they are lying or not but rather we look at the psak din, can the psak din be correct. In the case of זה אומר אני ארגתיה וזה אומר אני ארגתיה the answer is yes, it is possible that both of them own it and the correct psak is יחלוקו.

What do Tosafos and the Rosh do with the Gemara (3a) that we started with where the Gemara seems to assume the סברה of ודאי רמאי even according to the רבנן? The answer is that although the Gemara uses the language of ודאי רמאי that is לפי ר' יוסי, however according to the רבנן the question really is that by חנוני על פנקסו the psak din cannot be correct. Reuven owes his worker Levi $100 and tells him to collect from Shimon. Both Levi and Shimon now come to collect from Reuven. Reuven only owes $100 yet the psak din is to make him pay $200, $100 to Levi and $100 to Shimon. Even according to the רבנן that is a problem because the חלוקה cannot be אמת.

To sum up, Rashi holds that the סברא of ודאי רמאי is accepted by the רבנן as well and therefore in a case such as זה אומר אני ארגתיה וזה אומר אני ארגתיה the din is יהא מונח. Tosafos and the Rosh hold that the רבנן do not accept the סברא of ודאי רמאי, rather they have a different סברא, that the חלוקה יכולה להיות אמת. Therefore they hold that in the case of זה אומר אני ארגתיה וזה אומר אני ארגתיה the din would be יחלוקו בשבועה.

Monday, October 8, 2007

What is the ka mashma lan for Mekach Umemkar being in the mishna?

By Ari Shapiro

The gemara says that we need both cases because if I only had 1 I would think that you take a shevua because you are moreh heter but the other one where there is no moreh heter you would not take a shevua, ka mashma lan the second case in the mishna that you do swear. The question is, why do you swear in the second case?

The Ran offers 2 pshatim.
1. Ka mashma lan that in both cases there is moreh heter. In other words the shevua is because you are moreh heter in both cases. The Ran points out that this is very difficult. If so, what is the gemara's question on Sumchus and what is the answer? Why didn't the gemara answer that the mishna could be like Sumchus and there is a big distinction between the 2 cases. In our mishna he is moreh heter and therefore he swears while in the case of Sumchus there is no Moreh heter and therefore there is no
shevua. Also, why does R' Yochanan have to come on to a new reason for the shevua (that we don;t want people attacking other people on the street), we already have a reason for the shevua in the mishna, moreh heter. Based on this he offers another pshat
2. Ka mashma lan that even where there is no moreh heter you swear because even though he is chashud to steal he is not chashud to lie with a shevua. This answers both questions. There is no simple distinction between our Mishna and Sumchus because even in our Mishna you swear even when there is no moreh heter. This also explains why R' Yochanan had to come up with a new reason for the shevua because until we haven't yet offered a reason for the shevua in the Mishna.

What does ochazin mean in the Mishna?

By Ari Shapiro

Rashi on the Mishna doesn't explain but the Rambam in the peirush Hamishnayos (Bartenura and others) explain based on the Gemara on 7a that it means that they are holding the fringes of the garment. If they were holding a part of the garment then the din is that each one gets what they are holding and the rest they would split. The next case in the mishna where 1 claims the whole thing and 1 claims half is a machlokes rshonim whether it is the same case, they are holding only the fringes (Tosafos Harosh) or whether the person saying kula sheli is actually holding half (see Shita Mekubetzes).

Sheyesh lahem eidim there is no shevua

By Ari Shapiro

What exactly are the eidim saying?

The Rambam in the Peirush Hamishnayos explains that 2 witnesses come and testify that they saw the 2 of them lift up the object together. The problem with the Rambam is what is the chidush? We always believe 2 eidim.

R' Akiva Eiger on Mishnayos offers a different pshat. He says that if you hold that 1 witness can exempt you from an oath then the case here is that each person has 1 witness testifying that they picked it up alone. The problem with this is that since the witnesses contradict each other we should just throw them out.

The Rashash offers a similar pshat. He says each one has 2 witnesses testifying that they picked it up alone. He asks, but when 2 sets of witnesses contradict each other we throw them out so we should be back to square one and they should need to swear? He answers that since the shevua is only a takana d'rabbanan, in this case the chachamim were not mesaken a shevua.