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Bava Metzia 37

BAVA METZIA 37 - dedicated in honor of the birth of Miriam Breina Katz to Gidon and Rivka Katz of Bnei Brak.



(a) Rav Yehudah Amar Shmuel rules - like Rebbi Yossi in our Mishnah (that it is not feasible for the Socher to be allowed to make a profit on the owner's cow).

(b) Rav Shmuel bar Yehudah quotes Rav Yehudah Amar Shmuel as saying with regard to the previous Mishnah ('Shilem ve'Lo Ratzah Lishava') - that Rebbi Yossi argues with the Rabbanan there as well.

(c) He asked Rav Yehudah like whom the Halachah will be in the previous Mishnah, to which he replied - that there too, the Halachah is like Rebbi Yossi.

(a) Rebbi Elazar agrees with Rav Yehudah's opinion with regard to his previous ruling. According to Rebbi Yochanan - Rebbi Yossi concedes there that the Shomer receives the Kefel.

(b) He gives his reason as 'she'K'var Shilem', but this is unacceptable - in view of Rebbi Chiya bar Aba Amar, who quotes Rebbi Yochanan himself as saying that if the Shomer professes his willingness to pay, it is as if he has actually paid.

(c) So what Rebbi Yochanan really said was - 'Ho'il u'K'var Amar Hareini Meshalem'.

(a) Our Mishnah rules that if Reuven admits that ...
1. ... he stole from one of five men but doesn't know from which one - he must pay each one, and the same applies if ...
2. ... the father of one of them gave him a Pikadon to look after, and he cannot remember whose father.
(b) The Tana Kama holds that if Reuven and Shimon deposited by Levi, one of them, one Manah, the other, two, and later, each of them claims that *he* gave the two - each one receives one Manah and the third Manah is put away until Eliyahu comes.

(c) According to Rebbi Yossi - the entire three Manim should be put away until Mashi'ach, otherwise there is nothing to induce the swindler to admit his 'mistake'.

(d) They also argue in a case - where Reuven and Shimon gave Levi two vessels to look after, one of them a large vessel, the other, a small one. According to Rebbi Yossi, both vessels are put away, according to the Rabbanan, Levi gives the smaller vessel to one of them, and after breaking the second vessel in half, he gives one half to the other one, and puts the other half away.

(a) From our Mishnah, which obligates Reuven to pay both men, even though he only stole from one of them - we at first extrapolate the principle 'mi'Sefeika Mafkinan Mamona'.

(b) This seems to contradict the case in the Seifa, where two people deposited by a third, and where the Shomer puts the third Manah away, and is not obligated to give each one two Manah - from which we extrapolate 'Uki Mamona be'Chezkas Marei'.

(c) Initially, we draw a distinction between the Reisha, where we punish the Ganav for having stolen and make him pay each claimant, and the Seifa, where the Shomer did not sin, and to whom the principle 'Uka Mamona ... ' therefore applies.

(d) This answer is not adequate however, since the Reisha also cites a case of Pikadon. So we distinguish between the Reisha, where the fathers of the two men who deposited the Manah with Reuven did not see each other (which we consider as if they had handed the money to him in two separate bundles), and the Seifa, where Reuven and Shimon did (which we consider as if they had handed Levi the money in one bundle). Consequently - in the Reisha, the onus to remember whose father gave him the money lies on Reuven; whereas in the Seifa, the onus lies on Reuven and Shimon (and not Levi), because, Levi can argue, if they *trust* each other, why should he not trust them)?

(a) We also ask from Gezel on to Gezel. Rebbi Tarfon rules that if someone stole from one of five men, each one of whom claim from but he doesn't know from which one he stole - he places the money in front of them and leaves.

(b) We know that the author of our Mishnah is (or at least could be) Rebbi Tarfon - since Rebbi Tarfon specifically states there that he concedes to Rebbi Akiva that in the case in our Mishnah, the Ganav gives each one a Manah.

(c) We finally reconcile the two rulings - by establishing our Mishnah when he actually offers to fulfill his moral duty, whereas Rebbi Tarfon speaks when he refuses to pay more than the law requires.

(d) We support this answer from the words in our Mishnah - which concludes 'she'Hodeh mi'Pi Atzmo' (indicating that he wants to pay).

(a) Rav Yehudah Amar Rav establishes the case of the Mishnah in Yevamos where one stole from five, when the Ganav is silent. Rav Masna Amar Rav establishes it specifically when he denies that any of the claimants is the person from whom he stole.

(b) According to Rav Masna, the Ganav's silence would constitute admission (as it usually does). Rav Yehudah disagrees - on the grounds that his silence here stems from the fact that he simply doesn't know.




(a) We just cited Rebbi Tarfon who says 'Meni'ach Gezeilah Beinehem u'Mistalek'. We ask on this however, from Rebbi Aba bar Zavda Amar Rav, who holds - 'Safek Hinu'ach Lo Yitol, ve'Im Natal Lo Yachzir' (as we already learned in the second Perek).

(b) His reason for saying 've'Im Natal, Lo Yachzir' (meaning that he does not return it to anybody) - is because firstly, the article has no Si'man, and secondly, the owner might turn up with witnesses that he left it there.

(c) Rav Safra therefore interprets 'Meni'ach Gezeilah Beinehem' to mean - that he places the stolen object in front of them in Beis-Din, and withdraws from the Halachic obligation of returning it (because it remains a Safek). Then he puts it away until Eliyahu comes.

(a) Rebbi Akiva disagrees with Rebbi Tarfon in Yevamos. In his opinion, if the Ganav does not know from which of the five men he stole - he has no option but to pay all five.

(b) In the Mishnah in Bava Basra, the Tana discusses a case where a house fell on a man and his mother. Each one's heirs claim - that the other one died first (and that it is therefore their relative who inherited the property before dying).

(c) Both Beis Hillel and Beis Shamai (who argue on other cases there) agree that they divide the property. Rebbi Akiva says - 'Nechasim be'Chezkasan'.

(a) Rava reconciles the two seemingly contradictory rulings of Rebbi Akiva, by establishing his ruling in Bava Basra ('Uki Mamona be'Chezkas Marei') by 'Shema ve'Shema' (where neither party know for sure who died first), and his ruling in Yevamos ('mi'Sefeika Mafkinan Mamona') by 'Bari ve'Shema' (where each of the two men claim with certainty).

(b) We ask from this ruling from our Mishnah, where the Tana obligates the Ganav and the Shomer to pay both claimants even though that too, is a case of Shema ve'Shema. We know that ...

1. ... the author is Rebbi Akiva - because, as we learned earlier, Rebbi Tarfon concedes this case. Now to whom does he concede, if not to Rebbi Akiva, his disputant in the preceding case?
2. ... the Tana is speaking in a case of Shema ve'Shema - because a. the Tana makes no mention of a claimant, and b. Rebbi Chiya specifically establishes the Mishnah like that.
(c) We reconcile Rebbi Akiva's ruling in Bava Basra with the Reisha of our Mishnah, where the Gazlan has to pay both claimants, like we explained earlier according to Rebbi Tarfon - because the Tana speaks when the Gazlan wants to fulfill his moral obligation.

(d) Rava (or Rav Papa) state 'ha'Kol Modim bi'Shenayim she'Hifkidu Eitzel Ro'eh, she'Meni'ach Ro'eh Beinehem u'Mistalek', in spite of what we explained earlier that wherever the two depositors handed their deposits to the Shomer separately, the onus to remember who gave what lies on the Shomer - because they are speaking when both men placed the sheep in the shepherd's flock without his knowledge.

(a) Having taught us in the Seifa, that the Shomer is obligated to pay both claimants in the case of one Manah and two Manah, he nevertheless finds it necessary to repeat it in the case of a small vessel and a large one - to teach that even there, where it entails breaking the vessel, the Rabbanan retain their view and do not concede to Rebbi Yossi (that it is better to put both vessels away until Eliyahu comes).

(b) We cannot say that, having presented the case of the vessels, the Tana finds it necessary to add the case of the money to teach us that even there, Rebbi Yossi says 'ha'Kol Munach', even though the money remains intact - because since Rebbi Yossi's reason is in order to induce the swindler to confess, there would be no logical reason to confine his ruling to vessels.

(c) As a matter of fact, had the Tana begun with the case of vessels, he would have no reason to add the case of money. He made a point however, of beginning with the case of money, which is a smaller Chidush (as we just explained), and then (based on the principle 'Lo Zu Af Zu') added the case of vessels, which is a bigger Chidush.

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