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Kesuvos, 98


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).

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