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Beitzah 38

BEITZAH 36-40 (Siyum!) - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim, for the benefit of Klal Yisrael.


QUESTION: The Gemara says that according to Rebbi Oshaya, Bereirah does not work for anything which is mid'Oraisa. Therefore, in a case of a Mes inside out a house, when there is a doubt through which doorway the Mes will be removed, all of the doorways become Tamei. It cannot be determined retroactively which doorway was the one that the Mes was going to go through because this is a question of Tum'ah d'Oraisa, and Bereirah does not work for a d'Oraisa. RASHI writes that this Tum'ah is d'Oraisa because it is a Halachah l'Moshe mi'Sinai.

However, earlier Rashi explained that this Tum'ah is only a Gezeirah d'Rabanan (RASHI 10a, DH Kulan Temei'in)! How can Rashi contradict the Gemara here, which says explicitly that it is d'Oraisa? (SHITAH MEKUBETZES, 10a)

ANSWER: RAV SHLOMO KLUGER (in BIGDEI YOM TOV) answers that in the Gemara earlier (10a), Rashi is explaining the opinion of Rava, who says that the argument between Beis Shamai and Beis Hillel concerning the Tum'ah of entranceways involves Tum'ah l'Mafrei'a. Beis Hillel maintains that it is possible to show retroactively which doorway was Tamei to begin with by opening it later, thus being Metaher all of the other doors retroactively (this is not like our Sugya here learns the argument). Rava certainly would not argue with the conclusion of our Gemara that Bereirah does not work for a Halachah d'Oraisa, so he must have held that this Tum'ah is only mid'Rabanan.

Our Sugya (Rebbi Oshaya), though, maintains that the Tum'ah is d'Oraisa. (The SHA'AR HA'MELECH gives a similar approach, explaining that *Rava* holds that the Tum'ah is d'Rabanan.)

OPINIONS: Shmuel says that the ox of a butcher ("Shor Shel Patam") has the Techum of "every person." This means that the animal acquires the Techum of whoever buys it on Yom Tov. The ox of a shepherd ("Shor Shel Ro'eh"), on the other hand, acquires the Techum of "the residents of the town." Since a shepherd raises his animals for himself, and occasionally sells them to the residents of his town, the animal acquires the Techum of the townspeople; if, however, someone from another city buys the animal from the shepherd, the buyer cannot take it back to his city.

What is the difference between the animal of a butcher and the animal of a shepherd?

(a) RASHI and the RAMBAM says that the animals of a butcher are definitely going to be sold on Yom Tov (or at least he expects them to be), and therefore, before Yom Tov, he had in mind for the animal to acquire the Techum of the buyer. (It seems that it works because of Bereirah.) In contrast, a shepherd does not have buyers from different towns, but only from his neighbors in his town. Therefore, he has in mind that his animal should have the Techum of the people of his town, and not his own Techum (if it differs from the Techum of the town).

The RAMBAN and RAN ask why should Bereirah work in the case of a Shor Shel Patam? Shmuel holds that Bereirah does not work, even for a Halachah d'Rabanan like Techumim (37b)!

The BA'AL HA'ME'OR answers that the reason Shmuel holds that Bereirah does not work in the case of a barrel of wine owned by partners (37b) is because it is not known for sure that they will divide the barrel on Yom Tov. In the case of the butcher's ox, the butcher knows for sure that he will sell the animal on Yom Tov, the only question is to whom he will sell it. Since it is known that the animal will not have the owner's Techum on Yom Tov, and the only question is whose Techum it will have, in such a case even Shmuel agrees that Bereirah works.

The RA'AVAD (Hilchos Yom Tov 5:15) answers that Shmuel holds that Bereirah does not work only in a case of partners who own something together. Since they are strict about each other's portion, each wants his own portion to go with him, to where his Techum is. Therefore, they cannot determine later which portion each one owned at the onset of Yom Tov. In the case of a butcher's ox, though, the salesman does not want the ox to have his Techum. To the contrary, he wants Bereirah to work so that the buyer can take the animal home.

(b) The RAMBAN and RAN explain that a butcher's ox is like an animal of Hefker; the butcher removes his own ownership from it as far as the Techum is concerned. In contrast, the shepherd gives his ox to the townspeople so that they all have joint ownership of it. As such, it is limited to their common Techum (and if two people in the town have Techumim in opposite directions, the ox may not be moved at all on Yom Tov). (The RASHBA suggests that this rule that the butcher's ox is considered like Hefker might be a Takanah d'Rabanan for the benefit of the wholesale butcher, so that he will have buyers and be able to sell his animals.)

Since, l'Halachah, we hold that Bereirah works for Halachos d'Rabanan, in both cases (Shor Shel Patam and Shor Shel Ro'eh), the animal acquires the Techum of the buyer, even if he is from a different town.

(c) The BA'AL HA'ME'OR, in the name of Yesh Mefarshim, says that when the Gemara says that the ox of a butcher acquires the Techum of "every person," it does not mean that it acquires the Techum of the person who buys it. Rather, it means that it is considered to have the Techum of *every* person who could possibly buy it, and therefore the animal cannot be moved at all outside of the city.

When the Gemara says that the ox of a shepherd has the Techum of "the residents of the town," it again means that since there is no Bereirah it has the Techum of all of the people of the city. Because Bereirah does not work, according to Shmuel, everyone is a possible owner since it is not known who will buy the animal. Therefore, it has the Techum of everyone, and as such it cannot be moved at all if some of the people have Techumim in opposite directions.

(This question, of whether the ox follows *everyone's* Techum if Bereirah does not work, depends on a basic understanding of what it means that Ein Bereirah -- does it mean the Bereirah does not work at all, or that we cannot determine who the true owner is retroactively, but one of the possible purchasers was indeed the owner. See Insights to Eruvin 37:1.)


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