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Bava Metzia 38



(a) The Tana Kama of our Mishnah forbids a Shomer of fruit (crops) to sell it even if it is deteriorating. By 'deteriorating, the Tana means - through mice or rotting.

(b) According to Raban Shimon ben Gamliel - he should sell it under the auspices of Beis-Din, because it is included in the Mitzvah of returning a lost article.

(c) Rav Kahana attributes the Tana Kama's ruling to the fact that a person prefers one measure of his own produce to nine measures of someone else's - because a person prefers what his own hands have produced.

(d) Rav Nachman bar Yitzchak ascribe the Tana Kama's ruling - to the suspicion that the owner may have declared the crops T'rumah and Ma'aser on other crops of his.

(a) The Tana of a Beraisa permits the owner of the deposited crops T'rumah and Ma'aser on other crops of his, seemingly reversing the cause and effect of Rav Nachman bar Yitzchak. According to the latter, it actually cuts both ways: the Mishnah forbids the Shomer to sell the crops in case the owner declared them T'rumah and Ma'aser, and as a result, the Beraisa permits the owner to subsequently declare them T'rumah or Ma'aser, should he so wish.

(b) Rabah bar bar Chanah Amar Rebbi Yochanan qualifies our Mishnah - by confining it to where the crops have deteriorated to the point that one would expect them so ('K'dei Chesronan', as specified by the following Mishnah). Should they continue to deteriorate ('Yoser mi'Ch'dei Chesronan'), the Tana Kama concedes that the Shomer may sell the crops.

(c) Rebbi Yochanan certainly argues with ...

1. ... Rav Nachman bar Yitzchak - in whose opinion it will never be permitted to sell any of the crops concerned, but not with ...
2. ... Rav Kahana - who will concede that whereas the owner wants his own crops back, there is a limit as to how much he is willing to lose in the process.
(d) When Rav Kahana referred to one measure of one's own against nine measures of someone else (which is way above the expected loss) - he was exaggerating.
(a) The Beraisa that we just quoted permits the owner of the deposited crops to declare them T'rumah and Ma'aser on other crops of his. Why are we not afraid that the crops deteriorated Yoser mi'Ch'dei Chesronan, and that the Shomer therefore sold it - because it is unusual for this to happen, so we do not contend with it.

(b) If the crops did reach Yoser mi'Ch'dei Chesronan, the Shomer is permitted to sell them. We do in fact contend with the possibility that the owner declared them T'rumah and Ma'aser on other crops of his - by restricting the sale to Kohanim, to whom the Shomer must sell them cheaply as if it was T'rumah.

(c) Rav Nachman bar Yitzchak does not permit this - because he is afraid that the crops reached that stage immediately. Consequently, if the Shomer was allowed to sell them, the owner, unaware of the sale, would declare the crops T'rumah and Ma'aser on other crops of his, which would effectively mean that he would be eating Tevel.

(d) Rabah bar bar Chanah (and Rav Kahana) nevertheless permit the sale - because, in their opinion, it is unusual for the crops to reach the stage of Yoser mi'Ch'dei Chesronan immediately. Consequently, (based on the fact that a person does not leave his crops in a state of Tevel for long) by the time they do deteriorate to that extent, the owner will have already declared them T'rumah and Ma'aser, and the Shomer can safely sell them to a Kohen.

(a) Rebbi Meir in a Beraisa, forbids the Shomer to sell fruit, wine, oil or honey that has gone bad - the Chachamim permit it.

(b) The Chachamim restrict the sale be permitting the Shomer them only to others - but not to himself.

(c) They impose a similar restriction on a Gabai Tzedakah - who is permitted to exchange copper P'rutos that are beginning to go moldy for silver coins, but only with other people's money, not with his own.

(d) This restriction also extends - to the Gabai of a soup-kitchen, who, in the event that there are no needy people available, may sell the food to others, but not to himself. All of this is based on the Pasuk in Matos "vi'Heyisem Neki'im me'Hashem u'mi'Yisrael" (the obligation to void doing things that look suspicious, even if one is innocent (in this case, to avoid being suspected of stealing).

(a) In spite of the fact that Rabah bar bar Chanah Amar Rebbi Yochanan unanimously permits the sale of fruit that has reached the stage of 'Yoser mi'Ch'dei Chesronan', Rebbi Meir in the Beraisa forbids the sale of the fruit that has gone bad - because there the Pikadon has gone off completely, and there is nothing to be gained by selling it.

(b) Raban Shimon ben Gamliel permits the sale of the four above-mentioned commodities that have gone bad.

1. Bad oil can be used - by leather-workers, and ...
2. ... bad honey - to soothe sores on a camel's back.
(c) The point of the sale according to the Rabbanan, Rav Ashi explains, is - to save the jars, which is what they are referring to when they say 'Oseh Lahem Takanah'.

(d) Rebbi Meir however, holds - that Chazal did not make a Takanah for such a small amount (as the barrel or 'K'dei Chesronan') only for big losses, such as Yoser mi'Ch'dei Chesronan.




(a) Rebbi Aba bar Ya'akov Amar Rebbi Yochanan rules like Raban Shimon ben Gamliel in our Mishnah ('Yimkerem be'Beis-Din'). Rava Amar Rav Nachman ' rules like the Chachamim ('Lo Yiga Bahem').

(b) We reconcile the above ruling of Rebbi Yochanan with that of Rabah bar bar Chanah Amar Rebbi Yochanan, who rules like Raban Shimon ben Gamliel whenever he appears in a Mishnah (rendering Rebbi Aba bar Ya'akov's ruling superfluous) - by establishing their respective opinions as a Machlokes Amora'im in Rebbi Yochanan.

(c) The three exceptions to Rabah bar bar Chanah's principle - are 'Arev', 'Tzidon' (both in Bava Basra) and 'Re'ayah Acharonah' (in Sanhedrin).

(a) We try and connect the Machlokes between Raban Shimon ben Gamliel and the Rabbanan with the She'eilah of whether 'Moridin Karov le'Nechsei Shavuy' or not - inasmuch as Raban Shimon ben Gamliel will hold 'Moridin ... ', and the Rabbanan, 'Ein Moridin ... '.

(b) We reject this explanation however. In fact ...

1. ... Raban Shimon ben Gamliel might hold 'Ein Moridin ... ', even though in our Mishnah he permits the Shomer to sell the Pikadon - because unlike the case in the Mishnah, the Keren (the field itself) is not in jeopardy of spoiling completely.
2. ... the Rabbanan might hold 'Moridim Shavuy ... ' even though in our Mishnah they permit the sale - because neither the reason of Rav Kahana ('Rotzeh Adam be'Kav she'Lo), nor that of Rav Nachman bar Yitzchak ('Shema As'an ha'Mafkid T'rumah u'Ma'aser al Makom Acher') apply there.
(c) We try (unsuccessfully) to prove from the fact that Shmuel rules both like Raban Shimon ben Gamliel, and also 'Moridin Karov le'Nechsei Shavuy' - that the two cases are really one and the same (as we originally suggested).

(d) We prove from two rulings of Rav Nachman that the two are separate issues - because on the one hand, he rules like the Chachamim, and on the other, 'Moridin Karov le'Nechsei Shavuy'.

(a) Rav holds 'Ein Moridin Karov le'Nechsei Shavuy'. We define 'Karov' as - the next of kin.

(b) Shmuel holds -'Moridin Karov ... '.

(c) Rav will concede 'Moridin ... ' in a case where they heard that the captive died.

(d) Rav is concerned that the Karov will spoil the field (in trying to procure short-term gains, without taking care to preserve the property). Shmuel counters this - by citing the ruling that the Karov receives part of the harvest (like an Aris). In that case, it would be to his disadvantage to do that.

(a) The Pasuk in Mishpatim writes "ve'Charah Api ve'Haragti Eschem". Rebbi Eliezer explains - that the continuation "ve'Hayu Nesheichem Almanos u'Veneichem Yesomim" (which appears to be redundant) refers to their wives and children being considered as Safek Almanos and Yesomim, inasmuch as they will want to go down to their captured husband/father's property, but will not be able to, because they will not know whether they are alive or dead.

(b) Rava reconciles Shmuel's opinion ('Moridin Karov ... ') with the Beraisa - by establishing the latter (not when they want to work in the fields, which they may, but) when they actually want to sell it.

(c) When a Karov wanted to go down to his captured relative's property in Neherda'a, Rav Sheishes stopped him due to the Beraisa of Rebbi Eliezer. Rav Amram said to him - precisely what Rava said ('Dilma Leired ve'Li'mkor T'nan').

(d) Rav Sheishes rejected Rav Amram's explanation - on the grounds that the Torah compares the children to the wives. Just as the wives have no authority to go down to the fields at all, neither do the children (Rabeinu Chananel).

(e) When he suggested that he was from Pumbedisa - Rav Sheishes meant that they used to squeeze an elephant through the eye of a needle (meaning that they would explain a Mishnah or a Beraisa in a way that is a Dochek ['pushed']).

(a) The Tana of the Beraisa rules 'ha'Yored le'Nechsei Shavuy (or Shevuyin)' by which he means a Shavuy whom they subsequently heard had died - 'Ein Motzi'in Oso mi'Yado'.

(b) And what's more, he adds - even if he then heard that his relative was on his way, and he quickly picked some fruit, he would be permitted to keep it.

(c) The Tana Kama holds 'ha'Yored le'Nechsei Netushin, Motzi'in Oso mi'Yado'. By 'Nechsei Netushin' he means - the property of a captive who as far as they know, is still alive (as we explained 'Nechsei Shavuy' until now).

(d) Raban Shimon ben Gamliel holds - that Nechsei Netushin are no different than Nechsei Shavuy, turning the Din of 'Moridin Karov le'Nechsei Shavuy' into a Machlokes Tana'im.

(a) The Beraisa says 'ha'Yored le'Nechsei Retushin, Motzi'in Oso mi'Yado'. 'Nechsei Retushin' is - where the owner left of his own accord and we do not know where he is.

(b) The Pasuk ...

1. ... "ve'ha'Shevi'is *Tishmetenah* u'Netashtah" helps us to define 'Nechsei *Netushin*' - inasmuch as it denotes that the field is left unworked by the king's command (against the owner's freewill, like Nechsei Netushin, which are left unworked because the owner was captured).
2. ... "Eim al Banim Rutshah" helps us to define 'Retushin' - inasmuch as it indicates that the men ran away, leaving their wives and children to the mercy of the enemy. Likewise "Nechsei Retushim' refers to property where the owner ran away of his own accord.
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