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Bava Metzia, 88

BAVA METZIA 88 (6 Adar) - dedicated by the Feldman family in memory of their father, the Tzadik Harav Yisrael Azriel ben Harav Chaim (Feldman) of Milwaukee.


QUESTION: Rebbi Yanai maintains that Tevel only becomes subject to Ma'aser once it enters the house. Rebbi Yochanan maintains that entering the Chatzer is sufficient to render it subject to Ma'aser. The Gemara challenges both of these opinions from a Beraisa mentioned earlier. The Beraisa derives from a verse that a laborer is exempt from the obligation to separate Ma'aser from the fruit that he eats while working in the field. This implies that a purchaser who buys the fruit in the field is obligated to separate Ma'aser -- even though it has not yet entered the house or the Chatzer!

Rav Papa answers by establishing that the Beraisa is referring to a specific case in which the base of the fruit-tree is growing in the garden, but the fruit of which overhangs into the Chatzer (according to Rebbi Yochanan) or the house (according to Rebbi Yanai). Since the fruit has entered the Chatzer or house already, the purchaser must separate Ma'aser.

Why is their an obligation to separate Ma'aser from such fruit? The fruit was not brought into the Chatzer or house through the gate, which is a requirement in order to be subject to Ma'aser according to both Rebbi Yochanan and Rebbi Yanai! (RISHONIM)


(a) The RASHBA cites a view (in the name of "Yesh Mi she'Piresh") that explains that the trunk of the tree has actually grown through the gate of the Chatzer, and thus the fruit indeed has entered the Chatzer via the gate. The Rashba cites the RA'AVAD, though, who rejects this explanation. Even if the tree entered the Chatzer by growing through the gate, the fruit will not be subject to the Chiyuv of Ma'aser because the *fruit* itself is considered to have entered through the gate before it was picked (before the "Gemar Melachah"), such as wheat that was brought through the gate into the Chatzer while still sheathed in its chaff, in which case the Chiyuv of Ma'aser does not take effect.

(b) The RAMBAN, RASHBA, and RAN answer that the requirement that the fruit be brought into the Chatzer through the gate applies only when the fruit grew outside of the Chatzer. Fruit that was grown inside of the Chatzer (such as in this case, where the trunk of the tree was leaning into the Chatzer), though, is not subject to this requirement and thus the obligation to separate Ma'aser takes effect without the fruit entering the Chatzer through the gate. On the contrary, they write, this is the most ideal form of "Re'iyas Penei ha'Bayis."

(c) The RITVA writes that when the Gemara says that the trunk of the tree is leaning into the Chatzer, it means that it is *next to* the entrance to the Chatzer, such that when one picks the fruit from the tree he can stand inside the Chatzer and bring the fruit in without having to leave the Chatzer. When he brings the fruit into the Chatzer, it passes through the gate and comes into the Chatzer and thus becomes subject to the Chiyuv of Ma'aser. (While no other Rishon seems to explain the Gemara in this way, the MAHARSHA asserts that this is also the view of TOSFOS (beginning of DH Ad she'Yir'eh).)

QUESTION: The Gemara teaches that once the laborer brings the fruit which he is allowed to eat into the Chatzer or house of his employer, it becomes subject to the Chiyuv of Ma'aser. The RASHASH questions this from the Mishnah in Ma'aseros (2:2) which teaches, according to the Yerushalmi cited by the Rash there, that when a person brings his fruit into someone else's house, the fruit does *not* become subject to the Chiyuv of Ma'aser! The Chiyuv of Ma'aser takes effect only when he brings the fruit into his *own* house! Why, then, does the fruit of the laborer become subject to the Chiyuv of Ma'aser when the laborer brings the fruit into his employer's house or Chatzer?


(a) The RASHASH gives an answer based on TOSFOS (DH Tevu'as), who says that the laborer does not acquire the fruit for himself until he eats it. Hence, when he picked the fruit, the fruit still belonged to the employer, and thus the fruit became Chayav in Ma'aser when the laborer brought it into the employer's house.

(b) The CHAZON ISH (Ma'aseros 3:14) answers that the Rashash's understanding of the Mishnah in Ma'aseros as based on the Yerushalmi is not accurate. The Yerushalmi is not saying that fruit does not become Chayav in Ma'aser when it is brought into someone else's Chatzer or house. Rather, the Yerushalmi says merely that "a Chatzer does not establish [the obligation of Ma'aser] except for the owner," meaning that the Chatzer does not make the fruit obligated in Ma'aser except for someone who has a regular place ("Kevi'us Makom") in that Chatzer; he does not have to be the *owner* of the Chatzer per se, but rather he must be *like* an owner who has a regular place and regular usage in the Chatzer. Therefore, the laborer -- who has a regular usage in the Chatzer where he eats the fruits that he picked -- becomes obligated to separate Ma'aser when he brings the fruit into the Chatzer of his employer. (I. Alsheich)


QUESTION: The Gemara says that the prohibition of "Lo Sachsom," the prohibition against muzzling an animal and preventing it from eating while it is working, does not apply to a hired laborer. The Gemara asks that we should derive through a Kal v'Chomer from an animal that the Isur *does* apply and that an employer is prohibited from preventing his hired laborer from eating while he works. If the owner of an ox has no obligation to ensure that it stays alive, and yet he is prohibited from muzzling the ox, then certainly an employer -- who is obligated to ensure that his fellow man stays alive -- should be prohibited from preventing his laborer from eating! The Gemara answers that we derive from the verse of "ke'Nafshecha" (Devarim 23:25) that just like the employer himself may choose not to eat, he is exempt if he prevents his laborer from eating.

What is the Gemara's initial assumption when it asks that we should derive the Isur of "Lo Sachsom" of a laborer from the Isur of "Lo Sachsom" of an ox? We know that there is a rule that "Ein Mazhirin Min ha'Din" -- we cannot derive an Isur which is punishable with Malkus through a Kal v'Chomer (Yevamos 22b, Makos 17b)!

We cannot answer that the Gemara is not trying to derive that one will receive Malkus for preventing his laborer from eating, but only that there is an Isur involved, because even without a Kal v'Chomer we know that there is an Isur involved, because of the verse itself! When the verse (Devarim 23:25-26) gives permission to the laborer to eat from the fruits of the field in which he is working, it is teaching that there is an obligation on the field owner to allow the laborer to eat. Since the verse obligates the owner with a Mitzvas Aseh to allow him to eat, then it must be that if he prevents the laborer from eating, he transgresses an Isur Aseh (as the SEFER HA'CHINUCH writes in Mitzvah 576). It must be, therefore, that the Gemara is trying to learn through the Kal v'Chomer that there is an Isur that is punishable with Malkus. (MISHNEH LA'MELECH, Hilchos Ma'achalos Asuros 2:1)


(a) The MISHNEH LA'MELECH answers based on the words of the MAGID MISHNAH that in a situation where there exists an Isur even without the Kal v'Chomer, then a Kal v'Chomer *can* be used to teach that there is Malkus, and the principle of "Ein Mazhirin Min ha'Din" does not apply.

(b) The SHA'AR HA'MELECH explains that the Gemara indeed is asking only that we should learn through the Kal v'Chomer that there is an Isur, but not that the Isur is punishable with Malkus. Even though we would know, without the Kal v'Chomer, that it is Asur because of the Isur Aseh (as the Mishneh la'Melech says), nevertheless the Gemara wants to derive that there is also an Isur *Lo Ta'aseh* (albeit without a Chiyuv of Malkus) of preventing one's laborer from eating the fruits in the field while he works.

(The YOSEF DA'AS asks that if one will not receive Malkus for transgressing this Isur of Lo Ta'aseh, then what difference does it make if there is one Isur (an Isur Aseh) or two Isurim? He answers, based on the RITVA later (94a), that if there is no Lo Ta'aseh in the Torah, then when the Torah commands the employer with an Isur Aseh to permit a laborer to eat, it is establishing the right of the laborer. The laborer, however, is entitled to forego his right and accept upon himself not to eat, letting the employer prevent him from eating. If, however, the Torah commands the employer with a Lo Ta'aseh to permit the laborer to eat, then the laborer cannot agree to let the employer prevent him from eating.) (I. Alsheich)

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