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Rosh Kollel: Rabbi Mordecai Kornfeld

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Bava Kama 70


(a) [Version #1 (Chachamim of Nehardai): Reuven cannot write an Orkesa (power of attorney) on Metaltelim (movable objects).
(b) Question (Rav Ashi): Why is this?
(c) Answer (Ameimar): Because of R. Yochanan's law.
1. (R. Yochanan): Something was stolen, the owner did not despair - neither the thief nor owner can make it Hekdesh;
2. The thief cannot, for it is not his; the owner cannot, for it is not in his domain!]
(d) [Version #2 (Chachamim of Nehardai): Reuven may not write an Orkesa on disputed Metaltelim.
(e) Inference: This is only because it appears as falsity (since another disputes this) - if there would be no dispute, we may write!]
(f) (Chachamim of Nehardai): An Orkesa that does not say 'Go claim and acquire for yourself' - it is void.
(g) Question: Why is this?
(h) Answer: The one he claims from (Shimon) can say 'You have no claim against me'.
(i) (Abaye): If it says that the bearer (Levi) receives a percentage of the property - since he has a claim on his percentage, he can argue the case for all the property.
(j) (Ameimar): If Levi seized the property (and refuses to return it to Reuven; some explain, if he seized from Shimon with an invalid Orkesa), he keeps it.
(k) [Version #1 (Rav Ashi): No - since he writes "All (Me'iri - gains or) losses you incur, is upon me', Levi is merely an agent.]
(l) [Version #2: He is a partner.]
(m) Question: What difference does it make if he is an agent or partner?
(n) Answer: Whether he may keep half for himself.
(o) The law is, he is an agent.
(a) (Mishnah): Reuven stole in front of 2 witnesses, and slaughtered or sold in front of them or 2 other witnesses - he pays 4 and 5;
(b) In all these cases he pays 4 and 5: he stole and sold on Shabbos, or to idolatry;
1. He stole and slaughtered on Yom Kipur;
2. He stole from his father and slaughtered or sold, and then his father died;
3. He stole and slaughtered and then made it Hekdesh.
4. He stole and slaughtered for medicinal needs, or to feed to dogs;
5. He stole and slaughtered in the Mikdash; or, the animal was found to be Treifah.
6. R. Shimon exempts by slaughter in the Mikdash or if it is found to be Treifah.
(c) (Gemara) Suggestion: The Mishnah is not as R. Akiva, for he holds that testimony must be on a full matter.
1. (Beraisa - Aba Chalifta and R. Yochanan ben Nuri): Three different pairs of witnesses saw Reuven living on Shimon's land, each for 1 year - this is a Chazakah;

2. R. Akiva says it is not - witnesses must testify to a "Matter", not half a matter (1 year of living on Shimon's land has no significance).
(d) Rejection (Abaye): R. Akiva can agree to our Mishnah!
1. He surely agrees, if 2 witnesses saw David Mekadesh Leah, and 2 others saw Menasheh have relations with her, even thought the latter testimony has no significance without the former, since the first witnesses do not need the latter, all the testimony stands;
2. Here also, even though the latter witnesses (on the slaughter) need the former witnesses (on the theft), since the former do not need the latter, all the testimony stands!
(e) Question: What testimony do Chachamim invalidate from the verse ("Matter", not half a matter)?
(f) Answer #1: One witness saw that a girl has 1 hair (of the 2 needed to make her a Na'arah) on her back, 1 witness saw 1 hair on her front.
(g) Rejection: That is half-testimony (only 1 witness saw each hair)!
(h) Answer #2: Two witnesses saw 1 hair on her back, 2 witnesses saw 1 hair on her front.
1. This is a half-matter, since each pair of witnesses testifies that she is still a minor!
(a) (Mishnah): If he stole and sold on Shabbos...
(b) Contradiction (Beraisa): He is exempt!
(c) Answer (Rami bar Chama): The Beraisa is when Levi (the buyer) told Reuven (the thief) 'Pick a date from my tree as payment for the stolen item'.
(d) Rejection: Since Levi cannot force Reuven to give him anything (since Reuven is liable to die for breaking Shabbos), this is not a sale at all!
(e) Answer #2 (Rav Papa): The Beraisa is when Levi told Reuven 'Throw the stolen item into my yard so I will acquire it'.
(f) Suggestion: This is as R. Akiva, who says that an airborne object is (in law) as if it rests on the ground below. (The item is acquired when it enters the airspace of Levi's yard; that is also when Reuven is liable for breaking Shabbos.)
1. According to Chachamim, also the item is acquired when it enters Levi's airspace; but Reuven is not liable until it lands.
(g) Rejection: It is even as Chachamim - the case is, Levi said 'I do not want to acquire until it rests on the ground'.
(h) (Rava): Rami bar Chama's answer is also good!
1. The Torah forbade the wages of a harlot (as a sacrifice), even for a man who paid his mother for relations with her;
2. Even though Beis Din cannot make him pay what he promised her (since he is liable to die for relations with her), if he pays, it is considered a harlot's wages.
3. Here also - even though Beis Din cannot force Reuven to give Levi the animal (for which Levi paid a date), if Reuven gives it, it was a sale.
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