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Bava Kama, 102


QUESTIONS: The Gemara explains that even wood which is used as a torch for making light does not have Kedushas Shevi'is, because the primary use of most wood (including this wood) is fuel, which is not "Hana'asan u'Vi'uran Shaveh" -- items which are consumed before the benefit is derived from them.

Rav Kahana states (according to Rashi's Girsa here) that the Tana'im argue with regard to the general purpose of wood (whether or not "Stam Etzim l'Hasakah"); they argue whether the primary use of an item determines whether it has Kedushas Shevi'is or not.

The Gemara then quotes a Beraisa in which the Tana Kama prohibits using wine of Shevi'is for soaking or washing clothes, and Rebbi Yosi permits it. RASHI explains that Rebbi Yosi permits using wine for soaking or washing when the grapes were picked for that purpose, because he maintains that they do not obtain Kedushas Shevi'is when picked in that manner (i.e. for the purpose of using the wine for soaking or washing). Even though the main use of grapes is for making wine for drinking, nevertheless, the intention of the one who gathers the grapes can determine whether Kedushas Shevi'is takes effect on them or not. Similarly, when a person gathers wood in order to use it as a torch (which is "Hana'asan u'Vi'uran Shaveh"), it will have Kedushas Shevi'is. The Tana Kama maintains that the main use of the produce determines whether it has Kedushah or not, regardless of the intention of the one who gathers the produce. Therefore, wine is Kadosh and may not be used for soaking clothes (which is not "Hana'asan u'Vi'uran Shaveh"), even when it is picked with that intention. Similarly, wood which is used as a torch is not Kadosh even when it is cut in order to be used for that purpose.

The Gemara cites as a source for the Tana Kama's ruling the word "l'Ochlah" ("... the produce of the year of the Sabbath of the land shall be for you *to eat*," Vayikra 25:6). Rebbi Yosi learns from the word "*Lachem* l'Ochlah" that produce of Shemitah can be used for any purpose, even for soaking. The Gemara asks how Rebbi Yosi understands the word "l'Ochlah." The Gemara answers that he derives from "l'Ochlah" that one may not use produce of Shevi'is for "Melugma," a bandage or poultice.

According to this way of learning, there are a number of difficulties with understanding the Gemara.

(a) Why does the Gemara ask what Rebbi Yosi learns from "l'Ochlah?" He can learn the same thing as the Tana Kama -- that fruit of Shevi'is must be used for a purpose that is "Hana'asan u'Vi'uran Shaveh" (as the Gemara says at the end of 101b)! The only reason why Rebbi Yosi permits washing clothes with wine is because the grapes were picked for the purpose of using them for washing, and thus they have no Kedushas Shevi'is. Had they been picked for the purpose of eating (or drinking), then even Rebbi Yosi would agree that they cannot be used for washing clothes! (MAHARSHA in Mahadura Basra, PNEI YEHOSHUA, MAR'EH KOHEN)

(b) How can Rebbi Yosi learn from the word "*Lachem* l'Ochlah" that the wine may be used to wash clothes? That verse refers to fruit that has Kedushas Shevi'is (as we see from the Gemara at the end of 101b) and which must be used in a manner which is "Hana'asan u'Vi'uran Shaveh." How, then, can we learn from this verse that wine may be used for soaking clothes because it has *no* Kedushas Shevi'is? (MAHARSHA in Sukah 40a, PNEI YEHOSHUA here) Rashi in Sukah (40a, DH v'Etzim) suggests an entirely different explanation for our Gemara, adding that the explanation and the Girsa which he records here are untenable, and that he "toiled to answer this Girsa in his youth in any possible way but without success." Rashi might have been bothered by the questions we have asked.

(a) The Gemara understands that according to the Tana Kama, the word "l'Ochlah" is referring to *all* of the produce of the Shemitah land. Obviously, it is not referring to items that cannot be consumed in a manner of "Hana'asan u'Vi'uran Shaveh," because "l'Ochlah" means that it *is* consumed in a manner that is "Hana'asan u'Vi'uran Shaveh." However, the verse *is* referring to any item that is *possible* to be consumed in a manner that is "Hana'asan u'Vi'uran Shaveh." The Gemara's question on Rebbi Yosi's view, then, is why does he limit "l'Ochlah" to fruit that was picked with *intention* to use them in a manner that is "Hana'asan u'Vi'uran Shaveh?" If those products do not have Kedushas Shevi'is, then the Torah should have said "l'Ochlah" in a context which does not refer to all of the produce of Shemitah! The Gemara answers that the Torah wants to teach that if something is used only for purposes that are not "Hana'asan u'Vi'uran Shaveh" by a limited number of people, then even if a person from that group picks it to use for his purposes, we ignore his intentions and the fruit is Kadosh with Kedushas Shevi'is. For this reason, if a person picks fruit of Shevi'is for "Melugma," the fruit retains Kedushas Shevi'is and it is prohibited to use the fruit for "Melugma." (See Pnei Yehoshua.)

(b) Rebbi Yosi is learning that "Lachem" limits the meaning of the word "l'Ochlah." "Lachem" teaches that sometimes the fruit of Shemitah *may* be used for purposes that are not in the category of "l'Ochlah" (i.e. that are not "Hana'asan u'Vi'uran Shaveh"), because they *lose* their Kedushas Shevi'is. This applies when the fruit is picked for a secondary usage, such as grapes picked for making wine in which to soak clothes. The verse now reads that the produce of Shemitah should be available for any use (meaning that it is not Kadosh), but usually it should be used "l'Ochlah" (meaning that it must be consumed in a manner that is "Hana'asan u'Vi'uran Shaveh" when it is picked for its primary usage, or when it is picked for the usage of a very limited number of people). (See Pnei Yehoshua.)


OPINIONS: The Gemara discusses a situation in which a person gives money to another person for the sake of investing it by buying wheat, with the intention of splitting the profits of the resale of the wheat. The Shali'ach then purchases barley, and not wheat, with the money. The Gemara cites a Machlokes Tana'im regarding whether they split the profits when the Shali'ach makes a profit by not following the instructions of the sender, or whether the Shali'ach keeps all of the profit. According to Rebbi Yochanan, Rebbi Yehudah maintains that they split the profit, since the Shinuy, the change, that the Shali'ach did does not acquire for himself the produce that he bought, but rather it still belongs jointly to him and to the one who gave him the money. Rebbi Meir says that the Shali'ach acquires the barley through the Shinuy, and thus the profit belongs to him.

The Gemara relates that in Eretz Yisrael, they rejected the logic of Rebbi Yochanan, because when the Shali'ach does not invest the money in the commodity that he was instructed to buy, he no longer is considered a Shali'ach. Since he is no longer a Shali'ach, even if he intends to acquire the barley for the sender, the sender does not acquire the barley that he buys, because the seller thought that he was selling it to the Shali'ach (who was no longer a Shali'ach with the status of "Shali'ach Shel Adam Kemoso"). The Gemara goes on to discuss whether the seller needs to know who is receiving the goods (as those in Eretz Yisrael hold) or not (as Rebbi Yochanan holds). What is the Halachah?


(a) The RIF and ROSH rule like Rebbi Yochanan, who maintains that the seller does not have to know who is receiving the goods. The Rosh, however, points out that it seems from the lengthy discussion in the Gemara that follows that when a person buys clothing for his wife, it does not become the property of his wife until the husband gives it to her. Since the Gemara discusses this at length, it appears to be the Halachic ruling. Why do we not apply to that case the ruling of Rebbi Yochanan, that as long as the husband intends for the clothing to go to his wife, it becomes hers? The Rosh answers that the husband bought clothing with *his* money, and therefore it first becomes his until he gives it his wife (since there is no reason for us to assume that he intends for his wife to acquire it immediately). In the case of the Shali'ach who buys barley instead of wheat, he is using the sender's money, and therefore it belongs to the sender whether or not the seller knows who the real buyer is.

The HAGAHOS ASHIRI argues and writes that the Gemara's lengthy discussion is not following the Halachic ruling.

A practical difference between the Rosh and the Hagahos Ashiri is whether the husband can sell clothing that he bought for his wife. According to the Hagahos Ashiri, he cannot sell such clothing, since it already belongs to his wife. According to the Rosh, he can sell it, since it is considered his wife's property only with regard to one who is Makdish his property, as the Gemara says.

(b) The RAMBAM (Hilchos Sheluchim 1:5) seems to rule in a manner similar to the Rosh, saying that if a Shali'ach buys barley instead of wheat, the sender acquires the barley whether the Shali'ach purchases the barley to eat or whether he purchases it to resell. Elsewhere, however, the Rambam writes (5:2) -- with regard to a partner who used money owned by the partnership for a purpose other than that for which it was intended -- that if the partner purchased the merchandise in order to resell, then the other partner acquires it even though it was the incorrect merchandise that was purchased. The Rambam's words imply that if the partner who misused the money purchased barley for eating, then his partner would not acquire it. The difference between purchasing it for eating and purchasing it for reselling is that when one purchases it for reselling it is not considered a Shinuy, changing the purpose of the money by buying the wrong product, as long as the purchased item can be resold. However, when one intends to purchase the product in order to eat it, if the wrong product is purchased it is considered a misuse of the money, as the Gemara explains. However, if the Rambam rules like the Rosh, it should make no difference whether the partner used the money for the right purpose or for the wrong purpose; as long as the partner intends to acquire the barley for the other partner, then the other partner should acquire it regardless of whether or not the seller knows of the buyer's intentions!

The Rambam seems to rule that the seller must know the buyer's intentions. However, this contradicts the first ruling of the Rambam that we cited, in which the Rambam rules that when a Shali'ach purchases the wrong product, even for the purpose of eating, the sender acquires the product!

The VILNA GA'ON (Choshen Mishpat 176:64) explains that the Rambam indeed rules contrary to the ruling of the Rosh, and like the people of Eretz Yisrael who rejected Rebbi Yochanan's view and ruled that the seller must know to whom he is selling the merchandise. However, the Rambam understands that this applies only to a partner, who is not sent specifically as a Shali'ach of the other partner. A Shali'ach, in contrast, who misuses money given to him always acquires for the sender what he purchases, even if the seller does not know the Shali'ach's intentions, since a Shali'ach is considered to be the same as the sender even when he misuses the money. The Vilna Ga'on adds that this explains why Rebbi Yehudah rules in the Mishnah that the person who gives wool to a dyer retains his wool and the dyes on the wool, even when the person who dyes it uses the wrong dye.

HALACHAH: The SHULCHAN ARUCH (CM 176:11 and 183:5) rules like the Rambam. The REMA (CM 183:5) rules like the Rosh, who rules that the sender acquires the produce both in the case of a partner and in the case of a Shali'ach (when it is the sender's money that is used).
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