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Bava Metzia 48



(a) Rebbi Shimon states in a Beraisa that although a Talis acquires a Dinar Zahav, a Dinar Zahav does not acquire a Talis, adding - that if the seller retracts, he receives a 'Mi she'Para'.

(b) Besides the Dor ha'Mabul and the Dor Haflagah mentioned by the Tana of our Mishnah in connection with the 'Mi she'Para' - Rebbi Shimon adds the inhabitants of S'dom and the drowning of the Egyptians at the Reed Sea.

(c) And he says that, if a transaction is concluded with words alone - it is not Koneh and the Chachamim are not pleased with the one who subsequently retracts ...

(d) ... on which Rava comments - that the Chachamim are displeased with him, but there is no 'Mi she'Para'.

(a) Rava's comment does not clash with Resh Lakish, who just stated that the Mi sha'Para according to Rebbi Shimon, is for retracting from one's promise, and not because of a Kinyan - because Resh Lakish concedes that unless money has passed hands, there is no 'Mi she'Para' for breaking one's word alone.

(b) The ramifications of the Machlokes between Rebbi Yochanan and Resh Lakish, seeing as both agree that money does not acquire, will be - when the purchaser uses the purchased object to betroth a woman (where the betrothal will be valid according to Rebbi Yochanan [since money acquires min ha'Torah], but not according to Resh Lakish).

(a) The Pasuk writes in Vayikra "ve'Chichesh ba'Amiso be'Pikadon, O bi'Sesu'mes Yad, O be'Gazel O Ashak es Amiso". The Pasuk is talking about a case - where after denying the object concerned and swearing accordingly, the defendant admitted that he swore falsely, for which he now has to pay a fifth and bring an Asham Gezeilos.

(b) 'Sesu'mes Yad' refers to the denial of a loan, and 'Oshek' to the denial of an employee's wages, which Rav Chisda explains to mean - that the owner designated an object with which to pay the creditor or the employee, before denying it.

(c) The borrower or the employer would otherwise not be Chayav a Korban Shevu'ah for denying the loan or the worker's wages - because in both cases, the money that he is denying came to him lawfully (and can in no way be construed as stealing).

(a) From the fact that, when the Torah goes on to speak about returning the objects, it does not mention Sesu'mes Yad - Rava proves that Meshichah is Koneh min ha'Torah, and not Kesef (like Resh Lakish), because the fact that the creditor did not make a Meshichah will explain why the borrower is not Chayav.

(b) Rav Papa asked Rava why, seeing as the case of Oshek too (which the Torah does repeat), speaks when the employee did not acquire the article, as we explained earlier, why we cannot learn that Sesu'mes Yad does not require Meshichah (like Rebbi Yochanan), from Oshek. Rava replied - that the Torah speaks when the employee actually took the designated article before handing it to the employer for safekeeping.

(c) Had the Torah *repeated Sesu'mes Yad* (like it repeats Oshek), Rava concedes that he would not have been able to prove anything. Now that it does *not*, he extrapolates - that it is coming to teach us that Sesu'mes Yad is not Chayav, because the creditor did not make a Meshichah on the designated object.

(a) Rav Nachman Amar Rabah bar Avuhah Amar Rav explains that the Pasuk writes "O mi'Kol Asher Yishava Alav la'Shaker" - in order to include 'Sesu'mes Yad' in the Chiyuv, together with the other three.

(b) In spite of the fact that the Torah *does* repeat Sesu'mes Yad, Rava's proof remains intact - because the Torah only hinted it, declining to mention it specifically (like it did in the case of Oshek).

(c) We have now proved - Resh Lakish right from a Pasuk.

(d) Rava also proves Resh Lakish right from a Mishnah. The Tana states that if the treasurer of Hekdesh mistakenly gave a P'rutah of Hekdesh to a bath-attendant for a bath, he is Mo'el immediately. Rav comments on this - that this Din is confined to a bath-attendant (where the money constitutes the complete Kinyan - see Tosfos DH 'Balan'), but any other professional, where a Meshichah is still required (and without which they would still be able to retract), he would not be Mo'el.

(a) We reconcile this with the Beraisa which states that if the treasurer gave a P'rutah to a barber for a haircut he is Mo'el, even though there are scissors with which to make a Meshichah - by establishing this Beraisa in the case of a Nochri, who acquires with money and not with Meshichah.

(b) We prove this by citing another Beraisa, which states that if the treasurer gave a P'rutah to a barber, a sailor or to any other professional - he would not be Mo'el until he made a Meshichah.

(c) And we reconcile the two Beraisos - by establishing the former Beraisa by a Nochri (as we explained), and the latter, by a Jew.

(a) Rav Nachman too, holds that money is Koneh. Levi proves this from the Beraisa, 'Nasnah le'Siton, Ma'al'. A Si'ton is a wholesaler, who sells to retailers, who pay him in installments as they sell. Their initial down-payment serves as a security for the rest.

(b) Levi proves from here - that money is Koneh (mi'd'Oraysa), and not Meshichah, since the treasurer is Mo'el, even though he could not possibly have made a Meshichah on the large amount of fruit that he bought.

(c) Resh Lakish reconciles his opinion with this Beraisa - by establishing the author as Rebbi Shimon (whereas he follows the opinion of the Rabanan, as we learned above).




(a) According to Abaye, Beis-Din do not immediately pronounce the Mi sha'Para on the one who wants to retract, but they warn him that they will if he persists. He learns this - from the Pasuk in Mishpatim "ve'Nasi be'Amcha Lo Sa'or" (the prohibition of cursing a fellow Jew).

(b) Whereas Rava extrapolates that one pronounces it immediately - from the word "be'Amcha" ('be'Oseh Ma'aseh Amcha [when he behaves like a Jew]), which teaches us that the prohibition does not extend to a Jew who does not behave like one.

(c) Rava derives his opinion from an incident that took place with Rebbi Chiya bar Yosef, who wanted to retract from the sale of salt for which he had already received payment - because the price of salt had gone up. But Rebbi Yochanan ruled - that if he did, he would receive a 'Mi she'Para'.

(d) Rava attempts to extrapolate his ruling from this incident - because Rebbi Chiya bar Yosef was a Talmid-Chacham and would hardly need to be informed that someone who retracts is subject to a 'Mi she'Para'.

(a) We counter Rava's proof - by pointing out that by the same token, Rebbi Chiya bar Yosef would not readily accept a 'Mi she'Para' either. Consequently, there must be more facts to the case.

(b) So we conclude that Rebbi Chiya bar Yosef had received an Eravon - which means a down payment for the salt, the rest to be paid later.

(c) Rebbi Chiya bar Yosef thought - that the down payment acquired the amount of salt that it covered (at least as far as the 'Mi she'Para' was concerned), and what he wanted to do was to give that amount to the purchasers, and retract from the rest.

(d) Rebbi Yochanan therefore informed him - that the Eravon acquired the entire amount of salt, and that he would therefore be subject to a 'Mi she'Para' on the entire amount.

(a) In a Machlokes with Rav, Rebbi Yochanan maintains that an Eravon acquires the entire amount, but only as regards a 'Mi she'Para'. It would fully acquire the entire amount - in a case of Karka (since money acquires Karka, even mi'de'Rabbanan).

(b) Rav says - that either way, the Eravon only acquires as much as it is worth (like Rebbi Chiya bar Yosef thought earlier).

(c) The Beraisa discusses a case where one of two men entering into a business deal, hands his friend a security, assuring him that, should he retract from the deal, he will forego the security. His friend - promises for his part that, if *he* retracts, he will pay back double.

(d) Rebbi Yossi rules that the agreement is valid - because he holds 'Asmachta Kanya', meaning that an exaggerated stipulation must be taken seriously, and is valid.

(a) Rebbi Yehudah qualifies Rebbi Yossi's ruling - restricting it to the value of the security (because he holds 'Asmachta Lo Kanya').

(b) Raban Shimon ben Gamliel qualifies Rebbi Yehudah's ruling, restricting it to the case of a security (as we explained) - but if the purchaser hands the seller a down payment, then even S'tam (without any stipulation, he acquires the entire piece of land that he is buying.

(c) We try and prove Rebbi Yochanan's previous ruling from here - by extending Raban Shimon ben Gamliel's ruling to a case where the purchaser stands to receive a 'Mi she'Para'.

(d) We counter this however, by differentiating between a S'tam Eravon by Karka and a S'tam Eravon by Metaltelin - because it is a S'vara that only where the Eravon acquires fully, does it acquire the entire amount, but not when it only renders the purchaser subject to a 'Mi she'Para' (although Rebbi Yochanan will not agree).

(a) The Beraisa cites Raban Shimon ben Gamliel, who rules that if Reuven lends Shimon money against a security which is worth only half the loan, Sh'mitah does not cancel the loan - because once the creditor has a security, he no longer needs to claim his debt (in which case the La'av of 'Lo Yigos' no longer applies).

(b) Rebbi Yehudah ha'Nasi says - that Raban Shimon ben Gamliel's ruling only holds true if the value of the security is equivalent to the full amount of the debt, but not if it is not.

(c) Raban Shimon ben Gamliel cannot mean that the security is effective only concerning as much of the loan as it is worth - because Rebbi would then hold that it is not effective at all, giving rise to the question what would be the point of the security.

(a) So Raban Shimon ben Gamliel must mean - that the security prevents the entire debt from being canceled.

(b) This is - because it covers the full amount of the loan (like Rebbi Yochanan); whereas Rebbi is speaking about the half of the loan not covered by the security, but he concedes that the half that is, is indeed not canceled by Sh'mitah, because he holds that a security covers as much of the loan as it is worth (like Rav).

(c) We refute this interpretation however, and revert to the original suggestion. Consequently Rebbi will hold - that the security does not even prevent half the debt from being canceled, and the debtor gives it to the creditor merely to strengthen his claim.

(d) According to this explanation - Rav will hold like Raban Shimon ben Gamliel, and Rebbi Yochanan, like neither Tana.

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