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Kollel Iyun Hadaf, Jerusalem

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Bava Metzia 6

BAVA METZIA 6 - Dedicated in honor of the Yahrzeit of Eliezer ben Reb Shraga Feivel Marmorstein (6 Kislev) by his nephew, whom he raised like his own child after the war, Mr. D. Kornfeld.



(a) We finally prove from ...
1. ... Rav Nachman, who obligates every Kofer ba'Kol to swear a Shevu'as Hesses - that 'Migu de'Chashid a'Mamono, Lo Chashid a'Shevu'asa' (see Tosfos DH 'Ela').
2. ... Rebbi Chiya's Beraisa of Chenvani al Pinkaso (where both the worker and the storekeeper swear and take from the Balabos) - that 'Migu de'Chashid a'Mamono, Lo Chashid a'Shevu'asa'.
(b) And we draw the same conclusion from Rav Sheishes, who obligates a Shomer Chinam who claims that the article was stolen to make three Shevu'os. Besides Shevu'as ha'Shomrim and a Shevu'ah that he does not have the article in his possession - he also swears that he did take the article in order to use it.
(a) According to Abaye, the reason for the Shevu'ah in our Mishnah is because we assume that the one who grabbed the Talis is claiming an old debt. He argues with Rebbi Yochanan, not wanting to ascribe it to the fact that Chazal wanted to prevent people from grabbing other people's Taleisim - because he holds 'Migu de'Chashid a'Mamona Chashid a'Shevu'asa'.

(b) Claiming an old debt without the debtor's consent is not also considered 'Chashid a'Mamona' - because everything that the debtor owns is actually Meshubad to the creditor, in which case claiming it in this way (which may not be the right thing to do, but it) is not called theft.

(c) We ask that if we assume that the one who grabbed the Talis to be claiming an old debt, then he ought to take half the Talis without a Shevu'ah, and we answer - by amending Abaye's reason from a definite debt to a Safek one (on the assumption that the oath will cause him to withdraw his claim).

(d) Despite his willingness to take money that is perhaps not his, we make him swear, says Rav Shisha Brei de'Rav Idi, and do not suspect that he will also swear that is perhaps not his - because even people who allow themselves to take money when in doubt (due to the fact that money *can always be returned*), will not swear when in doubt (because a Shevu'ah *cannot*.

(a) Rebbi Zeira asked what the Din will be if one of the two men holding the Talis grabbed it in front of Beis-Din. Assuming the second man ...
1. ... remained silent - it is obvious that (based on the principle 'Shesikah ke'Hoda'ah') his grabbing is effective.
2. ... immediately protested - it is equally obvious that the grabbing is ineffective.
(b) Rebbi Zeira's She'eilah therefore is - when he protested, but only after a few moments silence (because it seems likely that his initial silence was due to the fact that the Beis-Din witnessed the grabbing, and was not a sign of admission).

(c) A Beraisa establishes our Mishnah when the two men (Reuven and Shimon) were actually holding on to the Talis, but not if Reuven alone was holding it. Based on the principle 'ha'Motzi me'Chavero Alav ha'Re'ayah', this is obvious. So we assume that what the Tana means is that they came into Beis-Din holding the Talis and Reuven grabbed it in front of the Dayanim, resolving our She'eilah like the second option.

(a) We refute this proof by establishing the Beraisa when they came into Beis-Din holding the Talis. Then after being told to divide it, they left, only to return a short while later with Reuven holding it on his own, claiming that Shimon had admitted that it belonged to him. Shimon now claims - that he rented his half of the Talis to Reuven.

(b) We believe Reuven - because it is not feasible that Shimon, who only a few moments earlier, had accused Reuven of being a Ganav, should suddenly trust him in this way.

(c) Alternatively, we might establish the Beraisa when Reuven came into Beis-Din holding the Talis, with Shimon clinging on to it.

(d) When we say that even Sumchus will agree with this ruling, we mean that - even Sumchus, who normally holds 'Cholkin be'Lo Shevu'ah', will agree that here, Shimon will not receive anything, even *with* a Shevu'ah (because clinging on to something is not a sign of ownership, holding it is!)

(a) Assuming that, in the previous She'eilah, Reuven's grabbing is ineffective, then it goes without saying that if either before or after the grabbing, he declares it Hekdesh - his declaration is invalid.

(b) We ask what the Din will be if instead of grabbing it, Reuven declares it Hekdesh, assuming that grabbing would have been effective. The Hekdesh might ...

1. ... be valid - on account of the principle 'Amiraso li'Gevohah ki'Mesiraso le'Hedyot' (declaring something Hekdesh has the same effect as giving it to a Hedyot).
2. ... be invalid - because of the Pasuk in Bechukosai "ve'Ish Ki Yakdish es Beiso Kodesh", which teaches us that a person can only declare Hekdesh something that is actually in his possession.



(a) To resolve the She'eilah, we cite the case of the bath-house over which two people were arguing. When one of them declared it Hekdesh - all the Rabbanan stopped frequenting it.

(b) Although Rav Oshaya instructed Rabah to ask Rav Chisda in Kafri what status the bathhouse had, when he stopped in Sura on his way to Kafri - he asked Rav Hamnuna the She'eilah.

(a) Rav Hamnuna cited a Mishnah in Taharos. The Tana there says with regard to a Safek Bechor - irrespective of whether it is a Bechor Adam or a Bechor Beheimah, a Tahor Bechor or one that is Tamei - 'ha'Motzi me'Chavero Alav ha'Re'ayah'.

(b) The case of ...

1. ... Safek Bechor Beheimah is - when the owner is uncertain whether the mother had given birth to any babies before.
2. ... Safek Bechor Adam is - when the mother certainly gave birth before, only it was not certain whether she bore a baby that had the Din of a Bechor, or whether it was a 'Ru'ach', which is not considered a baby.
(c) The Beraisa adds 'Asurin be'Gizah u'va'Avodah'. Rav Hamnuna, who understand that the Mishnah's ruling 'ha'Motzi me'Chavero ... ' - pertains both to the Kohen claiming it from the Yisrael and to the Yisrael claiming it back from the Kohen, tried to prove from here that whenever we say ' ... Ein Motzi'in mi'Yado', the claimant has the right to declare it Hekdesh.

(d) Rabah refuted Rav Hamnuna's proof from 'Takfah Kohen', whose Kedushah comes automatically, and would be in doubt even if 'ha'Motzi me'Chavero Alav ha'Re'ayah' would pertain to the Kohen claiming it from the Yisrael exclusively (and not to the Yisrael claiming it back from the Kohen [because we held 'Takfah Kohen Motzi'in Oso mi'Yado']) - whereas in the case of the bathhouse, where it is a question of validating the claimant's declaration of Kedushah, it may well be that even if we would hold 'Takfah Kohen Ein Motzi'in Oso mi'Yado', the Kedushah would not be valid.

(a) The Mishnah in Bechoros states 'ha'Sefeikos Nichnasin le'Dir' - referring to Safek Pidyon Pe'ter Chamor (a lamb that one separated to exempt a Safek Bechor of a donkey).

(b) Rav Chananyah proves Rabah (who assumes that 'Takfah Kohen Motzi'in Oso mi'Yado') right from this Mishnah - because if we were to hold 'Ein Motzi'im Oso mi'Yado', how could the owner exempt animals that need to be Ma'asered, using a sheep that belongs to the Kohen.

(c) By establishing the Mishnah when the owner had only nine sheep besides the Safek - Abaye refutes Rav Chananyah's proof, because 'Mah Nafshach', if the Safek is not a Pidyon Pe'ter Chamor, then there is no problem anyway, and if it is, then the owner has not exempted sheep that need to be Ma'asered.

(d) Abaye withdraws his rejection of Rav Chananyah's proof on the grounds - that 'Mah Nafshach' would not apply in this case, because a Safek Mamon Kohen is simply not subject to Ma'aser Beheimah (reinstating Rabah's opinion [that 'Takfah Kohen, Motzi'in Oso mi'Yado'])

(a) And he proves this from a Mishnah in Bechoros, where the Tana rules that in a case where one of the nine (maximum) counted sheep jumped back into the pen, joining those waiting to be counted - all the sheep are Patur from Ma'aser.

(b) We exempt the sheep that ...

1. ... have not yet been counted, from Ma'aser - because of the one that has already passed, and the Torah says "Kol Asher Ya'avor", 've'Lo she'Avar K'var' (and each one might be the one that passed already).
2. ... have already been counted, from Ma'aser - because of Minyan ha'Ra'uy (meaning that the sheep that passed by the stick, were fit to make up a group of ten, to be exempted by the tenth sheep, when it joined them).
(a) When Rava says 'Minyan ha'Ra'uy Poter' - he is referring to a case where five say, of the owner's ten sheep had passed by the stick, when the sixth one died, leaving only three sheep in the pen ...

(b) ... which the owner must then combine with the next pen-load of sheep to be born.

(c) We prove from the Mishnah in Bechoros that a Safek is not subject to Ma'aser - because if it was, then why does the Tana exempt the remaining sheep from Ma'aser? Why does he not obligate them 'Mah Nafshach', on the grounds that each group of ten that *does not include* the one that already passed the stick is Chayav Ma'aser, and the Ma'aser is valid, whereas when one *does*, there is no harm in Ma'asering it, since they are all Patur anyway (because of Minyan ha'Ra'uy). What emerges is that there is no sheep that requires Ma'asering that remains un'Ma'asered.

(d) If a Safek is not subject to Ma'aser, because we Darshen "Asiri Vaday", 've'Lo Asiri Safek', what makes all the un'Ma'asered sheep in the pen a Safek is - the fact that whichever of the ten the Patur sheep were to pass the stick, it would turn number ten into number nine.

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