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Kollel Iyun Hadaf, Jerusalem

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Bava Metzia 32



(a) Our Mishnah rules that someone who finds an animal in ...
1. ... a stable - is not obligated to return it.
2. ... the street - is.
(b) The Tana learns from the Pasuk "Azov Ta'azov *Imo*" - that if the owner indicates that since it is not his Mitzvah, he will leave it to the person whose Mitzvah it is to fulfill it, the latter is Patur.

(c) This will not apply - in a case where the owner is old or sick, and does not help because he is unable to.

(d) We have already discussed the Machlokes between the Rabbanan and Rebbi Shimon regarding P'rikah and Te'inah. Rebbi Yossi Hagelili - exempts one from helping to reload an animal that has been overloaded.

(a) Rava explains that the stable in our Mishnah is not ...
1. ... completely unguarded - because, if it were, why would the Tana exempt him from returning it (i.e. or at least from locking the door)?
2. ... firmly locked - because if it was, we would need the Mishnah to teach us that he is Patur.
(b) Rebbi Yitzchak confines 'Matz'ah be'Refes Eino Chayav' to a stable that is inside the T'chum (Shabbos). We extrapolate from there - that if he were to find it in the Reshus ha'Rabim, he would be obligated to return it even inside the T'chum (see Tosfos Yom-Tov).

(c) In the second Lashon, he confines the Seifa 'bi'Reshus ha'Rabim Chayav Bah' to where he finds it outside the T'chum, from which we extrapolate that if he were to find it in a stable, he would be Patur even outside the T'chum.

(a) Our Mishnah forbids a Kohen to obey his father if he orders him to enter a Beis ha'Kevaros to return an Aveidah, or even a Yisrael if his father orders him not to return an Aveidah that he comes across. The Tana of the Beraisa learns this from the Pasuk in Kedoshim - "Ish Imo ve'Aviv Tiyra'u, ve'es Shabsosai Tishmoru, Ani Hashem", obligating the parents to honor Hashem no less than the children (implying that He does not forego His Kavod when it clashes with that of one's parents).

(b) Despite the fact that both Tum'as Kohen and not returning an Aveidah involve an Asei and a Lo Sa'aseh, it is not obvious that we apply the principle 'Ein Asei Docheh Lo Sa'aseh va'Asei' - because elsewhere, the Torah compares the Kavod of one's parents to that of Hashem Himself (by using the expression "Kabeid es ... " by both).

(c) The Tana Kama of our Mishnah states 'Mitzvah min ha'Torah li'F'rok Aval Lo Li't'on'. This cannot be taken literally in light of the Pasuk "Hakem Takim". So the Tana must mean - 'Mitzvah min ha'Torah Li'f'rok be'Chinam Aval Lo li'T'on be'Chinam Ela bi'S'char'.

(a) We have already explained why P'rikah is more obvious than Te'inah (and we will shortly elaborate further). The Tana Kama interprets ...
1. ... "Rovetz Tachas Masa'o" to mean - that the animal is laden and needs to be unloaded.
2. ... "Noflin ba'Derech" - that it has fallen in the street and so has its baggage, so that both now need to be loaded.
(b) Had the Torah only written "Hakem Takim", we would have thought - that P'rikah, like Te'inah, may be done for remuneration (see Maharsha).

(c) This is not so obvious according to Rebbi Shimon, since he interprets "Noflin ba'Derech" to mean - that the animal fell with its load still on its back. Consequently, both Pesukim refer to P'rikah.




(a) Rava tries to extrapolate that Tza'ar Ba'alei is d'Oraysa from ...
1. ... the Tana Kama of our Mishnah, who learns that P'rikah is 'better' than Te'inah that Tza'ar Ba'alei Chayim is d'Oraysa - because otherwise, what would be the advantage of Perikah over Te'inah?
2. ... Rebbi Shimon, even though he does not differentiate between them - since even Rebbi Shimon agrees that if the Pesukim were clear, he too, would give Perikah over Te'inah.
(b) We refute the 'Kal va'Chomer' however, by applying it to something else. In fact, the 'Kal va'Chomer' is (not because of Tza'ar Ba'alei Chayim, but) - because of Chesaron Kis involved (the financial loss that one automatically sustains in the case of P'rikah due to the depreciation of the animal), which does not apply by Te'inah.

(c) We refute this Pircha however, concluding that the 'Kal va'Chomer cannot be because of Chesaron Kis - because Te'inah too, involves Chesaron Kis, in two ways: firstly, in work-losses (since the owner is unable to go to work until his animal has been loaded; and secondly, because the situation attracts Ganavim.

(d) We try to prove further from the Rabbanan of Rebbi Yossi Hagelili in our Mishnah ('Im Hayah Alav Yeser al Masa'o ... ') and the Rabbanan that Tza'ar Ba'alei Chayim must be d'Oraysa. We ...

1. ... attempt to prove it from there - from the fact that, in spite of the Pasuk "Tachas Masa'o" (which precludes an overloaded animal from the obligation), the Rabbanan obligate one to help unload it, clearly, we presume, because of Tza'ar Ba'alei Chayim.
2. ... refute the proof however, on the grounds - that the Rabbanan's reason is (not because of Tza'ar Ba'alei Chayim at all, but) because they disagree with Rebbi Yossi Hagelili's D'rashah of "Tachas Masa'o". According to them "Tachas Masa'o" implies any burden.
(a) We then try to prove from the Seifa of our Mishnah, which precludes an animal whose owner refuses to help unload his animal from the Mitzvah - that Tza'ar Ba'alei Chayim must be de'Rabbanan. Otherwise, why would he not be obligated to help, come what may?

(b) And we refute this proof, too - by interpreting Patur to mean that he is exempt from unloading free of charge, but Chayav to unload for remuneration.

(a) The Beraisa which obligates helping unload the animal of a Nochri also implies that Tza'ar Ba'alei Chayim is d'Oraysa. We refute this proof too however - by establishing the reason because of 'Eivah' (Darkei Shalom, which is de'Rabbanan).

(b) We even prove from the Seifa, which exempts helping the same animal if it is laden with wine, that Tza'ar Ba'alei Chayim cannot be d'Oraysa. Neither does 'Eivah' apply there - because one can always explain that his refusal to help is based on the prohibition of benefiting from forbidden wine (and not on personal bias).

(c) To refute this proof that Tza'ar Ba'alei Chayim is only de'Rabbanan - we amend the Beraisa to a case of Te'inah, rather than P'rikah.

(a) The Beraisa cites "ve'Chadalta" in a case where the animal belongs to a Nochri and the load to a Jew, absolving one from the obligation of helping him. To repudiate the proof that Tza'ar Ba'alei Chayim is de'Rabbanan - we establish this Beraisa too, by Te'inah.

(b) Nevertheless, the Tana continues "Behemas Yisrael, u'Mas'uy Oved-Kochavim, "Azov Ta'azov" ' - because the Seifa speaks when the driver is a Jew, whom one is obligated to help.

(c) One is not Chayav in the Reisha for the same reason - because the Reisha speaks when the driver is a Nochri.

(d) The basis for such a distinction is the fact - that it is natural for the owner to accompany his own animal.

(a) We totally reject the current interpretation of the Beraisa (establishing it by Te'inah) on the grounds that both Pesukim quoted by the Tana ("ve'Chadalta" and "Azov Ta'azov") are written in connection with P'rikah and not Te'inah.

(b) After reinstating the Beraisa by P'rikah - we re-learn it by establishing the author as Rebbi Yossi Hagelili in our Mishnah, who exempts one from helping to unload an overloaded animal, indicating that he holds Tza'ar Ba'alei Chayim is not d'Oraysa.

(c) The Beraisa rules that someone who loves loading but detests unloading and who now comes across one person whose animal needs to be loaded, and another whose animal needs to be unloaded - should rather help to load.

(d) This is not a proof that Tza'ar Ba'alei Chayim is not d'Oraysa - because even if it is, the Mitzvah of overcoming one's Yetzer-ha'Ra takes precedence.

(a) The Pasuk which discusses P'rikah specifically refers to the donkey belonging to someone whom one hates. According to our initial understanding of a second Beraisa, when the Tana says 'Sonei Yisrael, ve'Lo Sonei Oved-Kochavim' he means - that if one comes across the donkey of a Nochri whom one hates, he is Patur from helping him unload his animal.

(b) We attempt to prove from here - that Tza'ar Ba'alei Chayim is not d'Oraysa.

(c) To refute this proof, we establish the case of 'Sonei' in the Beraisa - by the hater referred to in the previous Beraisa, one who hates to load, who, the Tana is now saying, should not give precedence to loading the animal if the owner is a Nochri, but should rather unload the animal of the Jew.

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