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Bava Metzia 11

BAVA METZIA 11-17 - This study material has been produced with the help of the Israeli ministry of religious affairs.



(a) According to the Tana of our Mishnah, if someone sees people running after a deer or fledglings, and, as they enter his field, he declares 'Zachsah Li Sadi' he will acquire them - if the deer has a broken leg and the fledglings cannot fly, but not if the deer's legs are in order and the fledglings are able to fly (or even if they are not, if he is unable to catch them [see Tosfos DH 'Hayah']).

(b) The reason for this distinction is - because in the former case, they are guarded, whereas in the latter case, they are not.

(c) Rebbi Yossi b'Rebbi Chanina states - that a person's Chatzer acquires for him even without his knowledge.

(d) And the reason that Rav Yehudah Amar Shmuel requires the owner of the field to be standing beside his field, before he will acquire the deer or the fledglings is (not because he needs to know about the Kinyan, but) because whereas Rebbi Yossi b'Rebbi Chanina is speaking about a guarded Chatzer, our Mishnah is speaking about an unguarded one (seeing as the animals are able to enter it).

(a) The Beraisa, discussing the case of an owner who declares in town that the sheaves which he knows his workers forgot in the field should not be Shikchah, states 'Yachol Lo Yehei Shikchah, Talmud Lomar "ve'Shachachta Omer ba'Sadeh", 'ba'Sadeh ve'Shachachta, ve'Lo Ba'Ir'. What is strange about this Beraisa is - that after insinuating that we have a Pasuk which proves that even in town the Shikchah of the owner should be Shikchah, the Tana concludes that it is not Shikchah.

(b) We resolve this apparent contradiction - by establishing the Beraisa by Zachur ve'li'Besof Shachu'ach (when the owner remembered the sheaves which his workers subsequently forgot); the 'Reisha' is speaking in the field, where this is not considered Shikchah, and the 'Seifa', in town, where it is.

(c) Establishing the Beraisa by am unguarded field, the distinction between the 'Reisha' and the 'Seifa' lies in the fact that in the 'Reisha', the owner is guarding his field, whereas in the 'Seifa', he is not - a proof that if the owner is not standing by his unguarded field, his ownership is not effective with regard to Kinyanim.

(d) After changing the text to ('Yachol Yehei Shikchah' - see Tosfos DH 'Dilma') we ask that perhaps what the Beraisa means is that once the owner reaches town, the Din of Shikchah simply does not apply. We refute this suggestion however, on the basis of the Pasuk "Lo Sashuv Le'kachto" - which comes to include Shikchas ha'Ir.

(a) Despite the fact that we need the Pasuk "Lo Sashuv Le'kachto" for a La'av, we also use it to include Shikchas ha'Ir - from the extra word "Lo *Sashuv* Le'kachto" (since the Torah could have written "Lo Sikachenu").

(b) We persist however, in discarding this Pasuk citing a Mishnah in Pe'ah, which learns from "Lo Sashuv Le'kachto" - that only Shikchah that is behind the harvester (i.e. that he has already passed) is considered Shikchah, but not Shikchah that is in front of him.

(c) Rav Ashi finally solves our problem, by learning Shikchas ha'Ir (not from "Lo Sashuv Le'kachto", but) from "la'Ger ... *Yihyeh*".




(a) Ula and Rabah bar bar Chanah too, agree with Rav Yehudah Amar Shmuel and require the owner to stand beside his unguarded field in order to acquire. Rebbi Aba queries Ula from a Beraisa, which relates an episode that occurred whilst Raban Gamliel was traveling with the elders in a boat. The problem that faced Raban Gamliel was - that he had forgotten to separate Ma'asros before leaving on what was presumably a sudden and urgent trip.

(b) It seems that he had already separated Terumah Gedolah, and he decided to give his Ma'aser Rishon to Rebbi Yehoshua. We know that Rebbi Yehoshua was a Levi - from the Sugya in Erchin which describes how, when he went to help Rebbi Yochanan ben Gudgoda to close the gates, the latter told him to desist, because singers and gatekeepers are forbidden to switch jobs. And the Sifri adds that a Levi who does is Chayav Misah.

(c) He chose to give his Ma'aser Ani to Rebbi Akiva - because he was a Gabai Tzedakah.

(d) He was taking Ma'aser Ani and not Ma'aser Sheini - because it was the third or the sixth year of the cycle, when Ma'aser Ani replaces Ma'aser Sheini.

(a) Bearing in mind that the produce was not in front of them, Raban Gamliel was Makneh the respective Ma'asros to the two men - by renting them the land on which the Ma'aser was lying.

(b) Rebbi Aba queried Ula from this Beraisa - from the fact that Rebbi Yehoshua and Rebbi Akiva were not standing next to the storehouse that held the Ma'asros (though it is not clear how we know that the storehouse was unguarded).

(c) Ula however - was unimpressed with Rebbi Aba's Kashya, though he did not explain why.

(d) When Rebbi Aba arrived in Sura however, they explained to him that it was - because, according to Ula, Raban Gamliel had been Makneh the Ma'asros using, not a Kinyan Chatzer, but a Kinyan (Metaltelin) Agav (Karka), which does not require the owner to be standing beside his property.

(a) Although Rebbi Zeira accepted this explanation, Rava agreed with Rebbi Aba, who did not - because 'Tovas Hana'ah' (the right to give it to whichever individual one decides) which is what Raban Gamliel owned in the Ma'asros, cannot be acquired through a Kinyan Agav.

(b) He based this on the fact that Raban Gamliel did not use Kinyan Sudar (which follows Kinyan Chatzer in this regard). The advantage that Kinyan Sudar would have had over Kinyan Agav is - that it would have obviated the need for Rebbi Yehoshua and Rebbi Akiva to pay rental for the Karka.

(c) With this - Rava has reinstated Rebbi Aba's Kashya on Ula (proving that an unguarded Chatzer does not require the owner to stand beside it in order to acquire from Hefker.

(d) But Rava (and Rebbi Aba) is wrong - because, based on the fact that the Torah writes (with regard to Matnos Kehunah) "ve'Nasata la'Levi ... ", Matnos Kehunah require 'Nesinah, and Kinyan Agav fulfills that requirement, whereas Kinyan Sudar (which is basically an act of swapping), does not.

(a) According to Rav Papa, Raban Gamliel may well have employed Kinyan Chatzer, in spite of Ula and the other Amora'im, who require the owner to stand beside an unguarded field. That would not have been necessary in this case however - because it is only with regard to acquiring from *Hefker* that the owner needs to stand beside his field, not when he acquires the object from an owner (as was the case with Raban Gamliel).

(b) We prove this distinction from Rebbi Aba bar Kahana, who supported Rebbi Yirmiyah's distinction between Hefker and a gift. This is based on a statement by Rebbi Yirmiyah Amar Rebbi Yochanan, who said in the case in our Mishnah, when the owner of the field spied people chasing a deer or fledglings which entered his field - that he is Koneh only if, were he to run after the animals, he would be able to catch them.

(c) Rebbi Yirmiyah then asked Rebbi Yochanan - whether this would also be necessary if the animals were being given to him as a Matanah.

(d) Rebbi Aba bar Kahana concludes - that Rebbi Yirmiyah was right in his suggestion that Matanah is different than Hefker in this regard, and that in fact, it would not be necessary to have to be able to catch the animal in the case of Matanah.

(a) Rav Shimi asked Rav Papa from Get, which the woman receives from her husband, yet Ula requires her to be standing next to her field when he throws the Get into it - to which Rav Papa replied that Get is different, inasmuch as it can be given to the woman against her will.

(b) Rav Sheishes Brei de'Rav Idi refutes Rav Papa's reply however - on the grounds that the reverse would be more to the point. Because if even when the recipient's consent *is not needed*, 'he' is required to stand next to his field, how much more so when it *is*.

(a) Rav Ashi too, bases the difference between Get and Matanah on the fact that Get is 'Ba'al Korchah', but from a totally different perspective. He first of all points out that although we learn Kinyan Chatzer from Yad, as we explained earlier - it is nevertheless no worse than Shelichus (and will acquire under the circumstances that Shelichus would).

(b) Consequently, in the case of ...

1. ... Get, which a woman receives against her will, her Chatzer can act as a Yad, but not as a Sheli'ach (since there is no Shelichus without the consent of the Meshale'ach), in which case, she must be standing beside her field (like Yad).
2. ... Matanah - this is not necessary, because the Chatzer acts as a Sheli'ach, which requires neither the consent, nor the presence, of the owner.
(c) We are justified in applying 'Anan Sahadi' and in assuming that a person wants his field to acquire a Matanah on his behalf, in spite of the Pasuk "Sonei Matanos Yichyeh", which refers to a person who says as much (and is not an assumption that everyone holds by it).

(d) The S'vara by Matanah will not apply to when one acquires from Hefker - where neither the Meshale'ach nor the Sheli'ach are aware of the transaction. Consequently, when it come to Matanah, Chatzer can only be because of Yad.

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