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Bava Metzia 2

BAVA METZIA 2 - sponsored by Jeff Ramm (Atlanta/Jerusalem/Florida), an avid Dafyomi learner and a loyal supporter of Kollel Iyun Hadaf. May he and his wife always have much Nachas from their wonderful children and grandchildren!

***************GIRSA SECTION********************
We recommend using the textual changes suggested by the Bach, Rav B. Rensburg and the parenthetical marginal notes of the Vilna Shas. This section is devoted to any *OTHER* changes that we feel ought to be made in Gemara, Rashi or Tosfos.)

[1] Rashi 2b DH v'Lechezei Zuzei mi'Man Nakat
The words "Liheyos Nizhar"
should be "Liheyos Nizkar" (RASHASH)

*1*) [line 1] SHNAYIM OCHAZIN B'TALIS - our Mishnah is referring to a case where the lost object does not have to be returned, i.e. a city where there is a majority of Nochrim (ROSH)

2) [line 2] TALIS - cloak
3) [line 18] LISNI CHADA! CHADA KETANI... - let the Mishnah write one [phrase with all the words of each claimant recorded separately. The Gemara answers: the *intent* of the Mishnah is just that.] One phrase is recorded in the Mishnah, [stated by each claimant separately, as follows...]

4) [line 26] "U'METZASAH" - "[In like manner shall you do with his donkey; and so shall you do with his garment; and with every lost thing of your brother's, which he has lost,] and you have found, [shall you do likewise; you may not hide yourself.]" (Devarim 22:3)

5) [line 29] ANA ASHKACHIS - I found it
6) [last line] V'AMRI LAH KEDI - (a) and some say it was [asked by a sage named] Kedi (MAHARSHAL citing RASHI, possibly referring to Gitin 85b DH v'Lurchei #2, but see YOSEF DA'AS); (b) and some say it was asked without a specific sage's name being mentioned (ibid.)


7) [line 2] MORI V'AMAR... - he rationalizes to permit his actions by saying...

8) [line 3] CHAVRAI LAV MIDI CHASER BAH - my friend will lose nothing [if I take the Metzi'ah] since he did not pay for it

9) [line 3] EIZIL ATPIS V'ISPELIG BA'HADEI - I will go and grab it and split it with him

10) [line 8] ASHKELEI ANA - I will take it
11) [line 10] V'LECHEZEI ZUZEI MI'MAN NAKAT - Let us see from whom the seller took the money

12) [line 12] BA"K - b'Al Korchei, against his will
13) [line 12] V'LO (YEDANA) [YAD'INAN] - we do not know

(a) Ben Nanas and the Rabanan disagree over whether it is permitted for Beis Din to have claimants make Shevu'os that openly contradict each other.
(b) The example given is as follows: A person owes his workers money. In lieu of paying them cash, he gives the amount he owes them to a local storekeeper who will supply them with goods from his store without payment, up to the value of their wages. Later, the storekeeper claims that he paid the workers but did not yet receive compensation from their employer, while the workers claim that they received neither goods from the storekeeper *nor* wages from their employer. According to the Rabanan, the storekeeper swears that he *did* pay the workers by was not compensated by the employer and the workers swear that they did *not* receive goods from the storekeeper, nor were they compensated by their employer, even though their Shevu'os openly contradict each other. After swearing, they both collect from the employer. According to Ben Nanas, they collect without swearing, since Beis Din does not make claimants swear contradictory Shevu'os in court.

(a) Sumchus maintains that when the ownership of property is in doubt, it is divided among the claimants.
(b) Even according to Sumchus, when a person possesses a certain object, and another person claims that it is his, they do not divide the object between them; rather, we rule "ha'Motzi me'Chaveiro Alav ha'Re'ayah" and allow the object to remain in his possession. Sumchus' ruling applies in a case where Beis Din has reason to doubt the ownership of the object even before hearing the claims of the litigants. For example, one case in which Sumchus' ruling is applied is when a bull gores a cow and a dead calf is found next to the dead cow such that we do not know whether the calf was killed by the bull or whether it was born and died before the goring. Sumchus rules Mamon ha'Mutal b'Safek Cholkin, and the owner of the bull pays for half of the calf.
(c) According to the Rabanan who disagree with Sumchus, as long as one of the claimants has a Chazakah (i.e. evidence of prior ownership) over the property in dispute, he need not pay until his opponent brings a proof of his claim using witnesses. A Chazakah, with regard to this Halachah, can mean either Chezkas Mamon, (the object is currently in his possession) or Chezkas Marei Kama (he has evidence that he was once the owner of the object, and nobody can show that it left his ownership since that time).

16) [line 20] HMA"H - HA'MOTZI ME'CHAVEIRO ALAV HA'RE'AYAH - the burden of proof rests upon the claimant
According to the Chachamim who disagree with Sumchus, the general rule in monetary claims is that the burden of proof rests with the one who wishes to extract payment or items of value from his opponent. Hence, when there is a doubt, the money remains with the one who has possession of it currently. A claim is not honored unless the claimant brings testimony to court to support his claim. (Sumchus, who argues, maintains that when Beis Din is in doubt with regard to a monetary claim, they divide the money among the claimants (see previous entry)).

17) [line 21] IA"B - IY AMART BISHLAMA - It is well if you say [the following...
18) [line 27] SHEMA V'SHEMA - (lit. perhaps and perhaps) one litigant claims, "Perhaps the case occurred as follows" and his opponent counters with a plea of "Perhaps the case occurred in a different fashion"

19) [line 30] DERARA D'MAMONA - (a) a loss of money (RASHI); (b) even without the claims of the litigants, Beis Din has a doubt as to the outcome of the case (TOSFOS DH v'Yachaloku -- this is what Derara d'Mamona usually means elsewhere)

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