THOUGHTS ON THE DAILY DAF
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Bava Metzia, 10
1) APPOINTING A "SHALI'ACH" TO BE "TOFES L'BA'AL CHOV"
QUESTION: Rav Nachman rules that when a person finds a Metzi'ah and lifts it
up to be Koneh it on behalf of someone else, the other person is not Koneh
it, because the person picking it up is compared to one who is "Tofes
l'Ba'al Chov b'Makom she'Chav l'Acherim" -- one who seizes money from a
debtor on behalf of a creditor, when doing so will cause others (such as
other creditors of this debtor) to incur a loss. RASHI here (DH Tofes and DH
Lo Kanah) and in Gitin (11b, DH ha'Tofes) explains that "Tofes l'Ba'al Chov"
refers to a person who was not appointed as a Shali'ach to collect the debt.
Since he is not a Shali'ach, he has no right to cause other people to incur
a loss in order to help his friend get his money. It is implied in Rashi
that if the Ba'al Chov did appoint someone to seize the money for him, then
all would agree that the Shali'ach is able to be "Tofes l'Ba'al Chov."
How can Rashi explain that if a person is appointed a Shali'ach then there
is no problem of "Tofes l'Ba'al Chov b'Makom she'Chav l'Acherim?" Rav
Nachman originally attempted to prove from our Mishnah, which discusses a
case in which a person riding an animal told his friend to give him a
Metzi'ah, that one who lifts up a Metzi'ah for his friend is not Koneh. Rav
Nachman assumes that saying "give it to me" is the same as saying "be Zocheh
it for me," and thus the person riding the horse is appointing the person
near the Metzi'ah to be his Shali'ach, and nevertheless Rav Nachman assumes
that he is not Koneh for the person riding the animal! Similarly, in the end
of the Sugya, Rebbi Yochanan rules that a person who picks up a Metzi'ah for
his friend *is* Koneh for his friend, and because of that he is bothered by
our Mishnah -- why can the person who picked up the Metzi'ah for his friend
change his mind? Rebbi Yochanan answers that saying "give it to me" is not
like saying "be Zocheh it for me." This implies that according to those who
argue with Rebbi Yochanan (such as Rav Nachman), even if saying "give" is
like saying "be Zocheh," and the rider of the animal did appoint the other
person as his Shali'ach, nevertheless the Shali'ach will not be Zocheh it on
behalf of the rider. How, then, can Rashi write that the problem of "Tofes
l'Ba'al Chov" applies only when a person is not a Shali'ach? (RAMBAN,
RASHBA, ROSH 1:27, TOSFOS RABEINU PERETZ, and others)
(a) Rashi differentiates between a person who is collecting a loan on behalf
of a Ba'al Chov, and a person who is lifting a Metzi'ah on behalf of a
friend. Rashi states that appointing a Shali'ach will allow someone only to
collect for a Ba'al Chov, but it will not enable someone to be Koneh a
Metzi'ah on behalf of someone else.
The logic for this distinction is that the principle of "Shali'ach Shel Adam
Kemoso" ("a person's Shali'ach is considered like him") does not "convert"
one person into another person. Rather, it only allows an act that one
person does to take effect for another person, or an authority that one
person has to be transferred to another person. The Ba'al Chov owns a
Shi'abud in the property of the borrower. When he appoints a Shali'ach to
collect the debt, it is considered as though he is giving the authority over
the Shi'abud to the Shali'ach. The moment that the one who will be
collecting the loan receives this authority, he can be considered to be the
Shali'ach of the Ba'al Chov, even though he has not yet collected the money.
The principle of "Shali'ach Shel Adam Kemoso" teaches that he can collect
the debt just like the Ba'al Chov can collect it. In contrast, with regard
to a Metzi'ah, a person does not have any rights to a Metzi'ah before he
picks it up, and thus when he appoints someone to pick it up for him, the
Shelichus takes effect only at the moment that the appointee picks up the
object in order to acquire it on behalf of the one who appointed him.
However, at the moment that he picks up the Metzi'ah in order to perform the
Shelichus for which he was appointed, we tell him that he has no right to
make himself a Shali'ach of that person and thereby cause a loss to others.
Since he can just as well make himself a Shali'ach for other people, why
should he make himself a Shali'ach for this person? This is why it will not
help to appoint someone a Shali'ach in order to acquire a Metzi'ah. This
might be the intention of the GILYON cited by the Shitah Mekubetzes when
explaining Rashi. (See also "MOREINU HA'RAV" cited by the Shitah Mekubetzes,
PNEI YEHOSHUA, and BEIS HA'LEVI 3:44 who suggest other approaches to
understanding the words of Rashi.)
What is Rashi's source for differentiating between one who lifts up a
Metzi'ah for someone else and one who is "Tofes l'Ba'al Chov?" Perhaps Rashi
learned this from the word "Tofes," which implies that the person is seizing
the item without authority, in contrast to "ha'Magbi'ah" ("one who lifts")
or "ha'Zocheh l'Ba'al Chov" ("one who acquires for a Ba'al Chov").
TOSFOS (DH Tofes) challenges Rashi's explanation from a Gemara in Kesuvos in
which a person appointed as a Shali'ach to collect a debt was told by two
Amora'im that he could not collect the debt because of "Tofes l'Ba'al Chov
b'Makom she'Chav l'Acherim." In fact, Rashi himself in that Sugya (Kesuvos
84b, DH ha'Tofes) writes that "Tofes l'Ba'al Chov" applies even to a
Shali'ach who is "Tofes l'Ba'al Chov." How can that be reconciled with what
Rashi here writes?
The Gemara in Kesuvos concludes that Rava reprimanded the Amora'im who sent
away the Shali'ach. Although Tosfos seems to be learning that he reprimanded
them for what they did afterwards (they tried to collect the loan for
themselves even though it was the property (Metaltelin) of Yesomim), Rashi
might have learned that he also reprimanded them for misinterpreting Rav
Nachman's statement and applying it to a situation in which a Shali'ach was
appointed to collect a loan.
2) THE SOURCE THAT "KINYAN CHATZER" IS "MISHUM YAD"
QUESTION: The Amora'im argue whether the Chatzer of a Ketanah is Koneh for
her or not. Reish Lakish writes that she does not have a Kinyan Chatzer, and
Rebbi Yochanan holds that she does. The Gemara explains that according to
Reish Lakish, a Chatzer works to be Koneh through Shelichus, and a Ketanah
has no Shelichus. According to Rebbi Yochanan, Chatzer works through Yad,
and a Ketanah does have a Yad.
3) STEALING AN ITEM THROUGH "CHATZER"
RASHI (DH Mishum Yadah) explains that according to Rebbi Yochanan, we learn
that Chatzer works through Yad from the fact that the Torah says that the
Get should be placed "b'Yadah" (Devarim 24:1) and "Yadah" refers to any
property of a person and not specifically to a person's hand.
According to Rashi, it seems that Rebbi Yochanan and Reish Lakish are
arguing whether "Yadah" means hand or whether it means one's property in
Why does Rashi explain that Chatzer works through Yad because "Yadah" means
her property? Rashi himself (at the end of DH Talmud Lomar, and in Gitin
77a, DH Talmud Lomar).gives a different explanation for the source that
teaches that Chatzer works through Yad Rashi writes that if the verse meant
to limit giving the Get into the woman's hands, it should have said
"uv'Yadah Yitnenah." In fact, the wording of the Gemara implies that we do
not translate "Yadah" to mean property, as the TORAS CHAIM points out, since
it says "Chatzer is to be included (Israba'i) in the category of Yad,"
rather than "Chatzer is derived from the word 'Yadah' (m'Yadah Yalfinan)."
This implies that we are learning from a Ribuy that Chatzer is a type of
Yad, and we are not learning it from the actual meaning of the words.
(MAHARSHA in MAHADURA BASRA)
ANSWER: Rashi understood that at this point in the Gemara Rebbi Yochanan and
Reish Lakish are arguing even with regard to a Get and not just with regard
to other Kinyanim. This can be learned from the fact that they discuss a
Ketanah (who is the one who makes the Kinyan on a Get) and not a Katan. From
where does Rebbi Yochanan know that a Chatzer works through Yad? He must
have known the Derashah of the Beraisa (of "v'Nasan b'Yadah"). However, the
Gemara introduces that Derashah only later, and it uses it to refute the
opinion of Reish Lakish. If the Gemara already knew that Derashah earlier,
and yet it still accepted the view of Reish Lakish, then in what way does
the Beraisa refute the view of Reish Lakish? It must be that the Gemara
thought that Rebbi Yochanan has a different source to teach that Chatzer
works through Yad, and that source was that "Yad" means "Reshus"
In what way, though, does the Derashah of the Beraisa refute the view of
Reish Lakish any more than the Derashah that "Yad" means "Reshus?"
The answer is that the Beraisa makes it clear that an extra word was written
in the verse in order to show that a Chatzer is Koneh a Get. As Rashi
explains, we would know that a Chatzer is considered a Shali'ach based on
logic alone without any Ribuy (Rashi, DH Mishum Shelichus, and DH Talmud
Lomar; see Rashi 11b, DH Ela Amar Rav Ashi, and Insights there). Why, then
does the verse need to write an extra word to teach that Chatzer is Koneh?
It must be adding that Chatzer works not only as a Shali'ach but even as a
Yad. However, until the Gemara cites the Beraisa, the Gemara thought that no
extra words were written to teach that Chatzer is Koneh; rather, Rebbi
Yochanan maintained that the simple translation of the word "Yadah" includes
property and not just her hand. According to Reish Lakish, since "Yadah"
translates simply into "hand," there is no extra verse to teach that Chatzer
will be Koneh.
Why, then, did the Gemara not cite the same proof from the first Beraisa
which discusses the Kinyan Chatzer for Geneivah? According to Reish Lakish,
it should not be necessary for the Torah to include an extra word
("Timatzei") in order to teach that Chatzer is Koneh. In fact, according to
Rebbi Yochanan, also, it should not be necessary to add the word "Timatzei"
since "Yado" inherently means "his Reshus!"
The answer is that with regard to Geneivah, one might have thought that the
Chatzer cannot be Koneh through Shelichus, because "Ein Shali'ach l'Devar
Aveirah," and that is why the Torah must teach that Chatzer is Koneh through
Shelichus for Geneivah. (See Rashi 11a, DH u'Mar Savar.) According to Rebbi
Yochanan, too, perhaps the Gemara thought that since an Aveirah is involved,
even Rebbi Yochanan will not translate "Yado" as "his Reshus" had the Torah
not written the extra word ("Timatzei"). The Gemara eventually concludes
that with regard to Get as well Rebbi Yochanan would not have translated
"Yado" to mean "his Reshus" had the Torah not said "v'Nasan" (see MAHADURA
QUESTION: RASHI (DH Gago v'Chatzeiro) explains the manner in which a thief
is able to steal an object (an animal) with his Chatzer without doing any
action to the object itself. The act of theft occurs when the animal wanders
into the thief's Chatzer, and the thief locks the gate in order to prevent
it from leaving. Rashi offers a similar explanation in Gitin (77a) and later
in Bava Metzia (56b).
Why does Rashi write that the Ganav locks the gate? Why can he not steal the
animal merely by deciding in his mind to use the Kinyan Chatzer to steal it,
without having to lock the gate?
ANSWER: The KETZOS HA'CHOSHEN (189:1) explains that according to Rashi,
Geneivah requires an action. Thought alone cannot effect a Geneivah. Support
for this view can be found in the Mishnah later (43b) which teaches that
according to Beis Hillel, when a Shomer merely decides to steal a Pikadon
that was entrusted to him to watch, he is not considered to be "Shole'ach
Yad" until he does an action of stealing it. This is Rashi's source for
saying that the owner must lock the gate in order to be considered a Ganav.
(See MAHARIT, Choshen Mishpat #88.)
This is why we can learn from this verse that a Chatzer is Koneh an object
for a person even when the person does no action. The reason why an action
is required in the case of a Ganav is in order for his act to be considered
a theft, but the action is not required in order to effect the Kinyan.