THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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BECHOROS 18 (11 Tamuz) - Dedicated in memory of Mordechai ben Avraham
Pinchas (Mr. Morris Pogrow), by her granddaughter, Chani Shaw and family.
1) ACHIEVING PERFECT PRECISION IN HUMAN ACTIONS
OPINIONS: Rebbi Yosi maintains that it is possible for natural occurrences
to achieve perfect precision ("Efshar l'Tzamtzem bi'Yedei Shamayaim"), and
certainly it is possible to achieve perfect precision in human actions
("bi'Yedei Adam"). Why is it easier to achieve perfect precision in human
(a) RASHI (17b, DH v'Chol she'Ken) explains that human actions are more
likely to achieve perfect precision because they involved a concentrated
effort to achieve an exact measure or timing. In contrast, natural
occurrences involve no concentrated effort to achieve precision.
(b) TOSFOS (17b, DH Efshar) explains that it is possible to accurately
measure the size or timing of a planned, human action. In contrast, a
natural event occurs spontaneously, and thus it cannot be measured
According to Tosfos, even when natural events happen spontaneously, it is
possible that there will be an exact measure. For example, it is possible
for two animals to born at the same time. However, we will never know for
sure that they were born at once, because we cannot measure the timing of
such a fleeting and unplanned event. (See also Rashi to 17b, DH Efshar
2) RESOLVING A DOUBTFUL OWNERSHIP
OPINIONS: The Mishnah (17b) discusses a case in which a sheep gave birth to
twin males, and it is not known which was born first, and one of them dies
before the owner gave one to the Kohen as the Bechor. Rebbi Tarfon maintains
that the owner must share the living lamb with the Kohen, while Rebbi Akiva
maintains that the owner may keep the lamb until the Kohen brings proof that
it is the firstborn (ha'Motzi me'Chaveiro Alav ha'Re'ayah).
3) MAKING A "KINYAN" WITHOUT AN ACT OF "KINYAN"
The Gemara quotes Rebbi Chiya who says that Rebbi Tarfon's opinion can be
compared to a case in which two people gave animals to a shepherd to tend.
One of the animals died, and it is not known which one (RASHI DH
l'Shenayim). The law is that the shepherd must place the living animal in
front of the disputants and then be "Mistalek" -- remove himself, taking no
further part in the dispute. In this case, neither owner can demand that the
other one bring proof that the animal is his, because the animal is not in
the possession of either of them. Rashi (DH she'Meni'ach) explains that the
Mishnah, in which Rebbi Tarfon says that the owner of the living lamb must
split its value with the Kohen, is similarly referring to a case in which
the doubtful lamb had been deposited with a shepherd, so that the owner and
the Kohen must both approach the shepherd, and neither one may demand proof
of ownership from the other, since the lamb is not in the possession of
What is the meaning of "Mistalek" in the case in which one animal died in
the possession of the shepherd?
(a) TOSFOS (DH she'Meni'ach) suggests that "Mistalek" means that the two
disputants divide the remaining animal between themselves (like a ruling of
"Yachloku"). Accordingly, the law is exactly the same as Rebbi Tarfon's
ruling in the Mishnah (where he says that the Yisrael and the Kohen divide
the living lamb).
(b) Alternatively, Tosfos explains that "Mistalek" means that the shepherd
leaves and the principle of "Kol d'Alim Gavar" takes effect -- whichever one
of the two disputants is stronger is allowed to seize and keep the animal
(see Insights to Bava Basra 35:1).
Tosfos writes that if this is the meaning of "Mistalek," then the comparison
between this case and the case of Rebbi Tarfon in the Mishnah is that in the
same way that we do not say, in this case, that one must produce proof in
order to receive the animal (since whoever is stronger prevails), similarly
in the Mishnah the Kohen is not required to produce proof in order to
receive half of the living lamb.
The CHIDUSHEI REBBI AKIVA EIGER suggests that the two explanations in Tosfos
depend on a dispute between the RIVA and RABEINU TAM cited by Tosfos in Bava
Basra (34b, DH Hayu). The Gemara there states that when two people dispute
the ownership of a ship anchored in the river, the Halachah is "Kol d'Alim
Gavar." The Rishonim ask why is that case different than the case of the
Mishnah in the beginning of Bava Metzia (2a), in which two people are
grasping a garment, in which the Halachah is "Yachloku" (they divide it).
The Riva explains that the case in Bava Metzia, we do not know for certain
that one of the two disputants is a liar. It is possible that they both
found and picked up the garment at the same time, and each one deserves half
of it. In contrast, in the case of the boat on the river, one of the
disputants is certainly a liar; the ship cannot belong to both of them.
Therefore, the Halachah is not that they divide it (because this would not
result in a just ruling), but rather that the stronger one prevails (and
thus it is possible that the rightful owner will receive it; see Insights to
Bava Basra 35:1).
Rabeinu Tam explains that the difference between the case of the garment and
the case of the boat is as follows. When a person is holding onto an object,
this is considered proof that he has some ownership in it. Therefore, when
two people are grasping a garment, each one's grasp tells us that he has
ownership of the garment, and thus they split it. In the case of the boat,
no one is holding onto the boat, and therefore they do not split it, but
rather "Kol d'Alim Gavar."
In the case of the Gemara here, where two people deposited their sheep with
a shepherd and one of the sheep died, there is no definite liar among the
disputants, because no one knows for certain whose animal is the one that
died. However, this case is also not a case in which the disputants both
have possession of the object in doubt, because it is the shepherd who is
holding onto the sheep. Therefore, according to the Riva, they should divide
the sheep, because there is no definite liar among the disputants, even
though neither one has the sheep in his possession. This is the view that
the first explanation in Tosfos follows.
According to Rabeinu Tam, since the sheep is not in the possession of either
of the disputants, the law is "Kol d'Alim Gavar." This is the view that the
second explanation in Tosfos follows. (D. Bloom)
QUESTION: The Gemara explains that Rebbi Tarfon and Rebbi Akiva argue about
the law in a case in which a Kohen is the shepherd for a Yisrael's animals
on the Yisrael's premises. Rebbi Tarfon says that when the Yisrael's animal
is about to give birth for the first time, he can be Makneh part of his
Chatzer to the Kohen so that the Kohen will acquire the Bechor when it is
born. RASHI (DH Aknuyei) explains that the owner of the animals does this
because he wants the merit of having the Kohen use his land to raise the
animals that belong to the Kohen (such as the Bechor).
The Gemara does not say that the owner or Kohen performs an actual Ma'aseh
Kinyan, an act of acquisition, in order to transfer ownership of part of the
Chatzer to the Kohen. How does the Kohen acquire the land without a Ma'aseh
Kinyan? (TOSFOS DH Aknuyei)
(a) TOSFOS answers that a person is able to transfer his property to another
person when he has full and unconditional intent, even without a Ma'aseh
The RASHASH adds that we find in a number of places that a Kinyan can take
effect even without a Ma'aseh Kinyan, when the Makneh is receiving some form
of benefit in return for transferring the ownership of his property. The
Gemara (Gitin 14a and elsewhere) says, "In return for the benefit that he
receives, he has full intention to transfer ownership of his property."
Here, too, the owner of the animals is receiving the pleasure of helping the
Kohen to perform a Mitzvah by raising the Bechor.
(b) Tosfos answers further that the Kohen (the shepherd) frequently opens,
and then locks, the door to the property of the owner. This action serves as
an act of acquisition (Gitin 77b).
The Rashash, however, questions this answer. The Kohen is not aware that he
is performing an act of Kinyan at the time that he opens or locks the door
to the property. An act of Kinyan is not effective when done unknowingly
(Yevamos 52b). How, then, can the Kohen acquire a portion of the Chatzer by
unknowingly doing a Ma'aseh Kinyan?
The Rashash answers that the rule that a Ma'aseh Kinyan is not effective
when done unknowingly applies only when the one performing the Ma'aseh
Kinyan knows that there is an object present, but he does not know that the
object is Hefker (and available to be acquired). When, however, he does not
know that there is an object present (for example, the Kohen shepherd does
not know that a Bechor was born in the Yisrael's herd), and had he known
that the object was present he *would* have had intention to acquire it, he
indeed is Koneh it even without his knowledge (TOSFOS to Bava Basra 54a, DH
The Rashash adds that according to the RA'AVAD (quoted by the NIMUKEI YOSEF
in Bava Basra 41a), a Ma'aseh Kinyan done unknowingly works when an object
is being *given* to a person. It is only when one is acquiring an object
from *Hefker* that it does not work. The Makneh's intention suffices to
transfer ownership of the object to the recipient (see Bava Metzia 11b,
"Da'as Acheres Makneh").