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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Kesuvos 31

KESUOVS 31 (25 Nisan) - dedicated by Sandy and Les Wiesel in memory of Les's father, Menachem Yehuda ben Avigdor Yosef Wiesel, who perished in the Holocaust.



(a) Rav Avin rules that if someone fires an arrow four Amos on Shabbos, and the arrow tears someone's clothes in its flight, he is Patur from paying, despite the fact that the damage to the clothes preceded the Chilul Shabbos - because when he picked-up the arrow to throw it, he was already involved in the Chilul Shabbos (seeing as 'Akirah Tzorech Hanachah' - the Akirah [picking it up] is an intrinsic part of the Hanachah [the placing]).

(b) Rav Chisda, who, maintains that even according to Rebbi Nechunya ben ha'Kanah, someone who steals Cheilev and eats it will be *Chayav* to pay, because the theft preceded the eating, (as we just saw) appears to clash with Rav Avin - because otherwise, he should have ruled that he is *Patur* (for the same reason as Rav Avin).

(c) We conclude however, that Rav Chisda may well agree with Rav Avin's ruling, on the grounds that whereas, in Rav Avin's case, it would have been impossible to place the arrow without picking it up, this is not the case by Cheilev, where it is possible to eat the Cheilev without picking it up, by bending down and eating it where it is. Alternatively - in the case of the arrow, he *could not have retrieved it*, once it left his hand, whereas in the case of the purse, he *could* (in which case, the Akirah and the Hanachah are unconnected).

(d) The difference between the two answers is - when someone carries a knife four Amos in the street, and cuts clothes whilst he is walking. On the one hand, he would not be able to put the knife down without picking it up, but on the other, he could still retract, and not conclude the act of carrying.

(a) The Beraisa speaks about someone who steals a purse on Shabbos. The Tana makes a distinction between whether the thief picked it up - in which case he will be Chayav to pay, because the theft precedes the Chilul Shabbos; or whether he dragged it out of the owner's property - in which case he will be Patur, because the two will occur simultaneously.

(b) This Beraisa poses a Kashya on Rav Avin - according to whom he ought to be Patur in the Reisha too, because 'Akirah Tzorech Hanachah'.

(c) We reject the suggestion that the Beraisa speaks when the thief picked up the purse having in mind to hide it (in the owner's domain), but then changed his mind to take it out (in which case, the Akirah [the picking-up] cannot be deemed part of the carrying out), on the basis of a statement by Rebbi Yochanan - who says that someone who picks-up an article to move from one corner to another, and then decides to carry it out is Patur, because the initial Akirah was not performed in order to carry.

(d) So we establish the Beraisa when he did indeed pick up the purse with the intention of carrying it out. However, as he was walking with the purse, he stopped, not in order to adjust the purse - because that would be considered a natural part of the carrying process, but in order to rest (breaking the initial act of carrying).




(a) Based on the Seifa of the Beraisa, which refers to when he dragged the purse out of the owner's domain, we reject the previous explanation (that the Tana speaks when he stopped to rest) - on the grounds that, if the Reisha speaks when the thief stopped to rest, then he should have rather concluded that if he stopped to adjust the purse, he is Patur.

(b) So we establish the Beraisa like ben Azai - who says 'Mehalech ke'Omed Dami' (that each step that a person takes is like a new undertaking, a new Akirah and a new Hanachah). Consequently, he acquires the purse when he picked it up, whereas the Chiyuv Shabbos came only when he puts his foot down after having taking it out.

(c) Had the thief thrown the purse instead of carrying it - he would have been Chayav, because the first Akirah would have covered both the theft and the Isur Shabbos (according to Rav Avin).

(d) Nevertheless, the Tana prefers to move on to a case of dragging rather than throwing - to teach us that dragging is considered a conventional way of carrying.

(a) Having concluded that the Tana chose to speak about dragging the purse in the Seifa, because it is a bigger Chidush than throwing - he must be speaking about a medium size purse, because if it was a large purse, it would be natural to drag it and there would be no Chidush in the Seifa; and if it was a small one, then dragging it would certainly not be considered conventional.

(b) The problem if the domain into which he dragged the purse was ...

1. ... a Reshus ha'Rabim is - that then there is an Isur Shabbos, but no theft (since one cannot acquire in a Reshus ha'Rabim).
2. ... a Reshus ha'Yachid - then he will acquire it, but he will not be Chayav for Shabbos.
(c) So he must have dragged the purse into the side of the Reshus ha'Rabim, which has a dual status.

(d) This can only go according to Rebbi Eliezer, but not according to the Rabbanan, who do not consider the side of the Reshus ha'Rabim to be a Reshus ha'Rabim. Rebbi Eliezer considers the sides of the Reshus ha'Rabim like a Reshus ha'Rabim, but only as regards Shabbos, because people tend to push their way past the stone or wooden buffers that divide that area from the rest of the street; as far as Kinyanim goes, he concedes that it is like a Reshus ha'Yachid, just like a Simta (a narrow side-street).

(a) According to Rav Ashi, he actually drags the purse into the Reshus ha'Rabim with one hand - where he drops it into his other hand at a height of less than three Tefachim from the ground, in which case he will acquire the purse (for the purposes of theft).

(b) This is Rav Acha's version of Rav Ashi's explanation. Ravina's version is even more radical. In his opinion, Rav Ashi explains that he even acquires the purse by dragging it into the street, because he holds that a Kinyan Meshichah acquires even in the Reshus ha'Rabim.

(c) The Mishnah in Bava Kama states (regarding a thief stealing an animal from the owner's flock) 'Hayah Moshcho ve'Yotz'ei u'Meis bi'Reshus Ba'alim, Patur. Higbi'ho O she'Hotzi'o, Chayav'.

1. Ravina extrapolates from the Reisha - 'Hayah Moshcho ve'Yotz'ei u'Meis bi'Reshus Ba'alim, Patur', but if he had taken it into the street (which is not the owner's domain), he would have been Chayav.
2. Rav Acha extrapolates from the Seifa - 'Higbi'ho O she'Hotzi'o, Chayav', implying that 'Hotzi'o' like 'Higbi'ho', speaks when he took the animal into his personal domain (but not into a Reshus ha'Rabim), so does 'Hotzi'o'.
1. Rav Acha reconciles his explanation with the Reisha - by pointing out that as long as he has not actually taken the animal into his personal domain, the Tana refers to it as the owner's domain.
2. Ravina reconciles his with the Seifa - because he does not hold of the theory that 'Hotzi'o' must be like 'Higbi'ho'.
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