THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
Ask A Question about the Daf
1) WHERE "HA'MOTZI ME'CHAVEIRO ALAV HA'RA'AYAH" DOES NOT APPLY
QUESTION: The Beraisa discusses a situation in which a person gives money to
a Shali'ach and instructs him to buy a certain item, and the seller gives
the Shali'ach a good deal and sells him more of the item than the amount of
money usually buys. Who profits from the seller's beneficence, the Shali'ach
or the buyer who sent him? Rebbi Yosi rules that it depends upon whether the
purchased item is a type of item that always has a set price, or a type of
item for which the price varies from item to item. If the item has a set
price, then the Shali'ach and the sender split the gain. If the item does
not have a set price, then the buyer who sent the Shali'ach with the money
to buy the item keeps everything.
RASHI explains that the reason for this distinction is as follows. If the
item has no set price, then whatever the seller gave is considered to have
been worth the money given. If, on the other hand, the item has a set price,
then when the seller threw in extra items knowing that the money paid is not
enough to cover the extra items, he must have thrown them in as a gift --
either as a gift to the Shali'ach or to the one who sent the Shali'ach.
Since we are not sure to whom the gift was sent, they split it.
Why should this uncertainty be reason to split the extra items? Normally, in
a case of doubtful ownership, the rule is that "ha'Motzi me'Chaveiro Alav
ha'Ra'ayah," and thus the Shali'ach -- who is presently in possession of the
extra items -- should be able to keep them! (MITZPEH EISAN)
(a) Most Rishonim suggest a different explanation for why the gain is
divided between the Shali'ach and sender. We do not consider the extra
merchandise to be a gift intentionally given to either the sender or the
Shali'ach, but rather it is either a mistake of the seller or the seller
simply decided to give them an unusually good deal. If such is the case, it
is justified to split the money between the Shali'ach and the sender
because, as the RIF writes (cited by the ROSH 11:15 and others, and based on
the words of the Yerushalmi in Demai 6:9), they are both responsible for the
profit -- the Shali'ach because he negotiated the deal with the seller, and
the sender because it was his money with which the deal was made.
In a similar vein, the MORDECHAI cited by the HAGAHOS ASHIRI writes in the
name of his father that the reason the money is divided is because the
seller either made a mistake or decided to give them an unusually good deal.
If so it was neither the sender's money that made the profit nor the
Shali'ach's skills of negotiation, but rather just plain luck. The combined
luck of the Shali'ach and the sender is assumed to have caused the gain, and
therefore they split it since they both have a part in causing it.
However, this does not clarify Rashi's explanation.
(b) The principle of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" is not an
absolute rule. There is a Machlokes between the Chachamim and Sumchus (Bava
Kama 46a) regarding whether, in a case of monetary dispute, we rule
"ha'Motzi me'Chaveiro Alav ha'Ra'ayah," or we rule "Cholkin" (divide the
money between the two). Although Tosfos (Bava Basra 35a, DH u'Mai) and other
Rishonim rule that the Halachah does not follow Sumchus, some Rishonim do
seem to rule like Sumchus, at least in certain situations. They rule like
this because in many places, the Gemara seems to rule like Sumchus, that
money in dispute is divided. This appears to be the opinion of the RASHBAM
(Bava Basra 63a DH Tenu), who rules "Cholkin" like Sumchus at least in some
cases, as Tosfos (ibid.) says.
According to this, it could be that Rashi holds that the Shali'ach and the
sender divide the gain because of the ruling of Sumchus (i.e., since there
is no clear Chazakah here, because we are in doubt whether the Shali'ach was
given the object to *hold for the sender* or *to hold for himself*, we rule
like Sumchus in such a case).