Rabbi Tendler's Shiur Notes

Bava Kama

Note: I take no responsibility for any errors in these notes including transliterations.

If you find any, please let me know so that I may correct them.

jyuter@ymail.yu.edu

Monday January 25

First Perek 14b-15a

Case: Knasot When do we evaluate by people grabbing. In Bava Metzia we have kol dalim gavar - whoever is the strongest wins. By a barge in an ocean, 2 claim it as "My father had it," Beit Din can't decide says whoever gets there first takes it. Where Beit Din has no authority to rule, they cannot.

Knas - not related to loss of money, not essential to the community, therefore, we don't enforce it. Also, lacking confiscatory powers e.g. of Hefker Beit Din hefker.

Gemara 15b

It was said: A tam ox pays ½ nezek. Q: Is it nezek or knas? A: depends on if it is to make him shalem is the goal to make the tashlumin. Therefore, if more or less then the original value, it is a knas not tashlumin.

A Tam pays ½ Nezek

Rav Pappa: Mamon - The increases in technology (in this case the ox to pull the plow) come with a responsibility to accept the dangers that come with it. You can't assume an ox is docile, you took a mazik into your property and therefore you are obligated to pay. But we are lenient with a Tam that he only pays half. Society approves of the ox - it is a desirable advance that society benefits from, therefore, society shares its burden. Even though you are taking in a potential mazik, we say that society shares the burden and it is still mamon. Once it becomes a mu'ad, it is no longer accepted by society - it is a complete danger.

Rav Huna: K'nas - An ox is not an inherent potential damage. You are not really responsible, it is an act of god like a bolt of lightning. You did nothing wrong, there is no liability. But, hashem wanted to teach a lesson in "frumkeit" that it is assur to cause damage to someone else. The issue is how careful do you have to be in order to prevent the issur. A halacha in shimirat hamitzvot. You shouldn't feel guiltless that someone got hurt even though it is not in the letter of the law, it is in the "spirit" of the law, and therefore a knas.

Tnan: nizak and mazik in tashlumin - the nizak also has to help out by accepting some loss so that he is whole again at a lower price. Ok according to Rav Pappa because since you are responsible the nizak will be mohel a little for being a member of the society which accepts it. Q: But according to Rav Huna, what tashlumin is being done? He is not taking that belongs to him, he is taking windfall money because he is not entitled to the money that he lost. There is no tashlumin involved. A: Case of nizak and mazik in tashlumin does not apply to tam, but to the case of dragging the nevailah - during that time, the value of the animal decreases, and that loss of value is incurred by the nizak.

Q: But we already covered that case

A: Same halacha but under different circumstances. The halacha of pahat neveilah applies to both tam and mu'ad. You need both cases for it because 1) If only said by tam, I might think that by mu'ad the mazik must pay for the entire value including the pahat. 2) If only mu'ad, I would think that we are lenient on the mazik by mu'ad that he doesn't have to pay because he is already paying the full amount. But by tam, we would make him pay the pahat nevailah.

Braita: Differences between tam and mu'ad 1) Quantity - half vs. whole 2) Method of payment - gufo (maximum value is that of the ox that was mazik) vs. aliyah(complete value of ox that was damaged).

Q: If modeh in knas, you are patur, then the braita should have listed that in the differences - that if you are modeh in a tam you are patur since it is a knas, if you are modeh by a mu'ad you are hayyav for mamon. Therefore must be that tam pays mamon not knas.

A: No, the Tana does not have to list everything.

Q: If there is only one omission, then that does not work. What else did you leave out

A: Kofer - Mu'ad pays kofer if kills, Tam does not pay kofer.

Tosafot: Ha - Kofer is general rule that a tam pays ½ of mu'ad

Ta Shema: Man comes in and says his animal killed someone's ox. Talking about a mu'ad

Gemara is trying to push for mamon in the past arguments to show the conclusion that it is knas not mamon.

Ta Shema: The general rule is this: If you pay more than the damage, you do not pay if you come forward. Therefore if it is less and you come forward, you would not pay as well. Therefore, ½ nezek is not a knas but mamon.

A: No - whenever payment != damage is a knas! - T'yuvta

Halacha is that it is a knas. Q: But have a t'yuvta and pasken the opposite? A: Look at the t'yuvta it is that it should have said more. It is not clear that less payment of the damage to be knas because t'zrorot is ½ and still is mamon.

Halacha is binding even in the presence if error.

Now that we know a tam pays knas, if a dog attacked a big sheep or a cat that attacks a big chicken, it is meshuna - different, therefore a tam of keren, and Beit Din in Bavel does not collect. This only with big sheep or chickens if smaller, then pays from shen. But if the nizak grabbed (anything) in Bavel, he keeps it in lieu of payment.

Tosafot: Ve'i - Ain Danin Knasot in Bavel cannot mean for people to take from others and Beit Din sits back. We are talking about jurisdiction. Do you have jurisdiction. Once Beit Din has no jurisdiction, it cannot rule in any case. Therefore, it must me limited to davar hamazik. Meaning you cannot take more than the item which did the damage - you cannot take a sheep for a sheep since it is not a law in tashlumin. Once this animal enters my r'shut, it forfeits is life to the nizak.

Rashi: Whatever he grabs, he grabs.

But the question is then will Beit Din step in to make sure the nizak doesn't become a thief?

Tosafot cont: In Keitzad HaRegel, we have a case of a donkey that ate up a basket of bread and chewed up the basket. The bread is shen, the basket is keren therefore ½ nezek. Q: But that case was in Bavel! Keren is ½ therefore knas, and if in Bavel, how could he charge? A: Either he grabbed and you able to get ½ nezek or he forced the mazik to pay by forcing him to go to Israel where they could collect the knas. Issue of Beit Din's jurisdiction. Jurisdiction comes from the claim. Once you admit he caused damage, and the other one is taking this in lieu of payment. Not a claim of geneivah, but of nezek.

Gemara cont: Order him a set time to go to Israel, if the mazik doesn't go, we put him in herem. This is no longer a din in knas, but the right of Beit Din. The right of the plaintiff to demand justice. So you should not think that Beit Din is out of the picture. They are not involved in the payment but in the social welfare. As we learn from Rav Natan, you cannot harbor a threat to society from "lo tasim damim b'vatecha."

Q: Where does Tosafot know that you can only collect from the mazik animal?

Nimukei Yosef 8a in Rif: (Regarding the gemara Tosafot quoted) Since eating baskets is not normal, it is a knas. Must be that the nizak grabbed. The Ramah writes that he can only grab that which in Israel the Beit Din would award you - i.e. the animal that was mazik. Therefore Tosafot now makes sense that he only collects the mazik animal because that's all he has the right to collect since Tam pays gufo not aliyah. Note that Tosafot does not include the Ramah's proof that you can only collect gufo and this is a d'oraita not a kula on the mazik.

Rosh 123a, Siman 20: Can't understand Tosafot. If the nizak took more than the appropriate value, Beit Din can still get it back. Also, you can collect from anything. (Like Rashi).

Tuesday January 26

Rosh cont: Problem of Dayanut with Tosafot. Not arguing on if he took, he keeps it. It does not mean that it is out of Beit Din jurisdiction - either way Beit Din does not deal with knasot. However, once you go beyond the value of the knas, you are now in geneivah and that is under Beit Din.

Hagahot HaAshri: Violent Gezailah has no recourse to din since it is such a rare occurrence under these circumstances. Geneivah or non-violent gezaila is a common occurrence, and therefore has Beit Din.

Problem (with Hagahot HaAshri) is that Beit Din's rulings are necessary for the economic stability.

Rosh cont: 2 laws in out gemara. 1) put in herem until he kills the ox 2) put in herem until goes to Israel for Din there. Here (in Rosh's location) say that the Beit Din has no authority to force to pay knas. They urge the man to pay out of the goodness of the heart. If he does not give (no goodness of the heart) they put him in herem for that. Moral iniquity.

The Rosh does not like the circumvention of Torah law. You can force him the mazik to go to Israel, but not the nizak. Also, they did collect knasot in Bavel - no greater knas than putting someone in herem.

Kehilat Ya'akov: Tosafot say only take davar hamazik, Rosh says take anything and if take too much, give it back. Q: on Rosh (Tosafot has small problem because in the end comes out like the Rama) that Israel doesn't help since can only collect from gufo. A: Once the ox does damage, the mazik doesn't own it anymore, the nizak does - see the nizak can be makdish the ox. Tosafot in 33 points out that when knas doesn't exist by virtue of the verdict not the act. By Tam, since it is in the Torah, it does not need to come to court. The Rosh is correct as is the Ramah. You only pay gufo and you can take anything. No knasot in Bavel, but the Torah said that it is his ox. The Claim is that the mazik stole the ox that rightfully belongs to the nizak, and therefore he can take anything he wants not from the hezek but from the genava of the nizak's ox. Collecting an ox in payment not the ox of damage. Q: on Ramah - Why does he not say this? A: If there is a gezairah of him taking the ox, then it should also be applicable in Bavel. Nobody says that the ox is his automatically. Need amada in din to start this by Beit Din ruling that is his mamon. Therefore, he can't just go and take it, and Beit Din won't rule because we are now dealing with knas.

There is another Mahloket. Rosh - knas ordered by Torah is his already. Ramah - that's only if you are getting back a loss. Otherwise, you need Beit Din to rule on it.

Really both are right. Rosh holds that knas is yours because the Torah says so. Beit Din is necessary if there is a dispute on the facts. The Hiyuv is there right away. Since modeh in knas is patur, you need to wait for Amada b'din before you collect to eliminate the possibility of modeh in knas.

Wednesday January 27

Mishna 15b

Nature vs Nurture

5 behaviors of an ox for which he is hayyav nezek shalem, 5 are ½ nezek. The first 5 are instinctive and therefore hayyav. Behama is not mu'ad for goring, body checking, squatting, and kicking. All unusual behavior of an ox. Shen is hayyav if used for eating what it is normal for it to eat. Regel is muad for damaging as it walks. Once it does it 3 times, it loses its Tam status. If the locale of the damage is in the r'shut of the nizak, there is no din of Tam at all (R. Tarfon) - always hayyav b'nizko. Once you made the nezek possible not through lack of watching, but by taking it out into someone else's property. And Man is always muad - no Tam. Wolves, lions, bears, and snakes are always mu'ad - no reason to make any allowance. If Tam is a shared obligation, then there is no willingness to share the responsibility. R. Elazar says that if they are domesticated, then they too have a din of Tam - i.e. nature can be overcome.

Gemara

Since the Mishna does not specify the locale of the damage, it must be talking about the same locale for each case. If you tell me shen is hayyav, it is patur in r'shut harabim. If talking about r'shut hanizak, then it must be according to rabbanim who say that keren pays ½ independent of where the damage occurred. Q: But the seifa said ox tam that is in r'shut hanezek. Like R. Tarfon. The reisha would be like rabbanan and the seifa is R. Tarfon. A: So it is.

R. Elazar - no really all according to R. Tarfon. The reisha is dealing with a case of a joint hatzer designated or one person's ox and the other's fruits. Not r'shut harabbim for peirot (hayyav) but not hatzer hanizak since both have a right to be there (patur). Rav Kahana says he repeated this solution to the authorship question to Rav Z'vid and he asked how could you think that Rav Tarfon is the author of the whole mishna? We have the case where the cow eats bread and basket. We said he pays full for the bread and ½ for the basket, but according to Rav Tarfon, he would pay full for the basket also, not for keren but for keren birshut hanizak. A: The girsa is wrong. Really 5 Tamim and these 5 muadim are muad in r'shut hanizak. The first statement concerns a different locale. Keren loses tammut not by locale, but by repetition. Shen and regel must be in hatzer hanizak. Problem: The Mishna is now repetitive with a later mishna. Therefore fill in the conjunctions and now it fits...5 tamim that became a muad or shen and regel which are already muad. Then muad without repetition (bear). Then argument between R Tarfon and Rabbanan on locales of muad.

16a

No squatting

R. Elazar - Squatting is only keren if it's a big vessel. Little utensils comes under regel since that is normal. Keren is something that is abnormal.

Missing - How do you know what's big or small? Talking about probability. When you are motzi mammon, you need certitude. If small, regel and in r'shut harabbim, patur. If large, then it is keren and hayyav. The burden of proof is now on the nizak because you can only collect if there is certitude that it was a large vessel.

Fox, lion etc.

Q: What is a "Bardalus?" (Polecat, coyote, cheetah)? A: Confusing Aramaic definitions. Ayin Sham.

Don't know p'shat. Not literal. Transmutation is not uncommon since Hazal did not know the biology.

16b

"Darco" must be in the normal method of damage. "Dores" refers to holding the animal, then killing it then eating it - not just eating it. The way an animal eats is different then the way an animal merely attacks. The method of eating shows the nature of eating. Some animals will attack anything that moves and not get any benefit.

Thursday January 28 Parashat B'shalah

16a

Tosafot: Nahash - The animals mentioned are not muad for all aspects of nezek. A lion is not muad for all forms of toref. Tosafot poses a problem: do you have a shen that is not hanaah l'hezeika? A nahash that bites would be patur from shen because it doesn't eat what it kills. A: A snake biting is regel since it is darco b'kach to go and damage. A nahash bites in r'shut harabbim, has intent to do damage, it should be hayyav in r'shut harabbim since it is always keren. Therefore have a 3rd case of shen: 1) Normal - bread 2) Abnormal - basket 3) Shen as regel and patur in r'shut harabbim. In r'shut harabbim there is mutual watching - the mazik on not doing damage and the nizak to watch against his own damage.

R. Tendler - Problem: Regel means inadvertent - therefore you can protect yourself from that damage.

16b

A lion in r'shut harabbim that is dores and ochel (strangles then kills the animal - does not eat it alive) he is patur since it is a normal method of eating, it has a din of shen which is patur in r'shut harabbim; if the lion is toref (ate animal while it was alive) the animal, the owner is hayyav since it is not a normal way for a lion to eat, it has a din of keren which is hayyav in r'shut harabbim.

Q: But is it abnormal for an lion to be toref? Lashon used in pasuk - a lion is toref to feed its children and mate. A: That's for not eating now, but for putting it away for later. Q: How do you know what the lion had in mind - to eat now or to save it? A: We don't know, therefore we learn this as an either or - either toraf or dores.

Tosafot: R. Elazar - Q: How can you say that the lion can be domesticated and therefore pay ½ nezek? We learned in sanhedrin that if you walk down with a tiger, and according to R. Elazar you are supposed to kill it. A: Ri - not a contradiction: there are 2 R. Elazar's. Our R. Elazar lived before R. Meir, the other one lived after R. Akiva. Q: We have here a consensus that nahash cannot be a domesticated animal, but Reis Lakish says that we have a snake you cannot go and kill him . A: 1) There is a difference when the snake is in a restrained environment, and when it is open. 2) difference between society requirements and obligation for damages.

If it is a danger to society and if it does damage are two separate cases.

Monday February 1

16b

Mishna

What is the difference between Tam and muad? Tam pays ½ gufo, muad pays full aliyah.

Gemara

What does "Aliya" mean? Gufo means you pay at most the value of the assets of the mazik. R. Elazar: he pays from the best. As it says he was buried next to the m'ulah - David and Shlomo.

Tosafot: V'halo - 36,000 for Hizkiyahu and same for Ahav - Q: Why did Ahav have so many people mourn for him - it even says that people were rejoicing when he died? A: The r'shaim mourned for him, the tzaddikim rejoiced. Also, Ahav was a zahir in adam l'haveiro.

Tosafot: Ela - Even though assur to put sefer torah with a dead person, Hizkiya was a great person.

Tosafot: V'haomer - Rashi - ma'ase is greater than limud. Q: R. Tam - limud is greater than ma'ase there is no limud without kiyum. A: Limed has a 2nd concept - it's a different level of lamad. To study in order to teach, you need to have a superior level of clarity.

PEREK MERUBAH

Tuesday February 2

62b

Mishna

"Different" in kefel from 4 and 5. Kefel is more universal than 4 and 5. Kefel you pay for personal iniquity, 4 and 5 is a payment for loss. 4 and 5 only for live animals - and only ox and sheep. If you steal from a thief, you don't pay 4 and 5 or kefel.

Gemara

New concept of Geneivah - if you took an object legally as a shomer and then decide to steal it, you are still hayyav. It came to you legally - lacking the invasion of privacy of going into his r'shut. In either case, he is a hiyyuv. Q: Since the Mishna didn't say this distinction, it proves that R. Hiyah is right - from the absence of the distinction of 4 and 5 for the shomer case, then the laws must be the same and if a shomer keeps an ox or sheep, he in fact pays 4 and 5. A: No - you can't infer that because it says "m'rubah" not giving a list. It learns one thing and leaves out the other, therefore this is not a proof.

Tosafot: - M'rubah. Had it said "ein bein" a limiting language, then you can infer that these are the only differences and no more. Q: The Ri from Orleans: In megila it says "ein bein" a neder and nedavah is that in one you say harei alai, the other you say harei zeh. You see that there are other differences between neder and nedavah even though it said "ein bein." Therefore, "ein bein" is not an exclusive term. A: "Ein Bein must" be used in context. If it's talking about how long you have to pay the debt (the case in the gemara) then there is no difference. "Ein bein Yom Kippur and Shabbat" one is issur karet vs. death - talking about punishment not 5 inuyim. Here the Mishna has no focus, therefore ein bein in this case would be all inclusive.

Kefel is payed by living and non-living stolen things...

Q: How do we know this? A: Pasuk says "on everything" klall, "on ox, donkey, sheep, coat" prat, "on all losses (modeh b'miktzat)" klall. Klall ufrat uklall you extend the prat to all that is similar to it. Here the prat teaches m'taltilin - i.e. not land, and something which has intrinsic value. Excluding land, slaves (treated like land), and contracts which have no intrinsic value. It also excludes hekdesh since it says "rai'ahu." It excludes birds also since it doesn't become tamei unlike the other animals. Q: But it says coat - also not m'tamei? A: There are two categories - alive and not. If it is alive, it has to follow the patterns of the other live animals.

If it just said ox, then it would be too specific - only animals worthy of going to the mikdash. After donkey to teach that 1st born is not important. Sheep is a kosher animal. But says "kol" an inclusion. Q: Why need Kol if its everything? A: Need prat to exclude land, slaves, contracts, and davar sheaino messuyam - need a gemirat da'at on the items. E.g. all the grain in a silo - no good. All grain until 3rd line, good. Here, if don't know how much stole, don't pay kefel.

Rashi - it has simanim on it. If there are no identifications, there is no hashava.

Wednesday February 3

62b

Tosafot: Yatz'u Karkaot - Q: Why do you need another limud for land? The Mishna has ganav and toen ta'anat ganav - which means in Beit Din with a sh'vua. Since you don't swear on land, the specific exclusion of land is superfluous. Although you have kofetz v'nishba - you swore anyway, it's not a valid sh'vua for toen ta'anat ganav in Beit Din. A: You may need to swear for a sh'vuat gilgu - once you are making sh'vuot in Beit Din, you make more e.g. swear you are not my slave. Once you initiate the sh'vua process, you can make him swear on anything, even land by toen ta'anat ganav. Q: How do you possibly have a toen ta'anat ganav on land in the first place? You hid the land and it was found in your possession??? A: 1) Hasagat g'vul 2) Stealing things that are attached to the ground e.g. vines or a pot with holes which is considered m'hubar l'karka.

Tosafot: Yatz'u Sh'tarot - Q: Why do you need a pasuk to say that they are exempt from kefel when if you destroyed it, you don't even pay the keren since we don't learn dina d'garmi - indirect damage? Implicit - a thief is a mazik it is irrelevant if I took it or my profit, what matters is that you lost it therefore they should have the same law. Even if you say you do say hayyav garmi, you say that it is only hayyav as a knas. A: There is a difference between a mazik and a thief. A mazik has no hiyyuv hashava - obligation to return - he just has to pay the value of the damage. The thief has to give back the actual object he stole. Hiyyuv gavra vs. hiyyuv heftza. Therefore need a pasuk to tell you that a ganav is patur for kefel on sh'tarot even though you pay back the actual contract.

Q: On Tosafot - it would depend on the kind of paper. If the paper is not worth a p'ruta, you have no hiyyuv to return it. A: The reason we have no theft by less than a p'ruta is that there is an implied mehila on it. If the contract is worth a lot of money, there would be no mehila.

63a-63b

Tosafot: Davar - According to Rashi, you need a siman in order to have hashava Q: But that's for hashavat aveida where there is a question of ownership. Here, no one is doubting the ownership.

Gemara

"Kol Aveida" the halacha of Hiya Bar Abba that you pay kefel for toen ta'anat ganav by an aveida. There are two ways to get on object - legally and illegally. Here, there is an obligation to take the object. Different level of acquisition. Kefel is a knas - no rational expectation to have a knas - special command of Beit Din. Therefore you can't learn from one case to the next.

Tnan: If someone asks for an object back, and he responds that it was lost. He swore and it turned out that he ate it. If he is modeh, he pays keren + 1/5 and asham. If witnesses come, he only pays keren. If he claimed it was stolen, if he admits, he pays 1/5 and asham, if witnesses come, he pays kefel. But he only pays kefel by a) claiming it was stolen - since it came to him legally and b) need a swear in Beit Din.

Thursday February 4 Parashat Yitro

63b

Gemara

Q: How do you know this that a toen ta'anat ganav is only hayyav only after he swears and not if claims aveida? A: If he claims that a ganav stole you look for a ganav. You assume the worst because he said so. If you don't find that he is telling the truth - that he himself is the ganav, you pay kefel. Q: Then why need sh'vua? A: He said "shlihut yad" by shomer and ganav, just by shomer, we know it means sh'vua by ganav. Q: One person says you need two p'sukim to say toen ta'anat ganav pays kefel - why need two? A: It means exclusive - only the case of ganav and nothing else i.e. claiming that it was lost.

Monday February 8

63b

The gemara had said a hiddush that toen ta'anat ganav 1) needs a sh'vua to be hayyav kefel and 2) toen ta'anat avad is different. Can't just be found in his possession to be considered to be a thief that is hayyav for kefel.

Shmot 22:3 - "Im Himatzai, Timatzai b'yado hag'naivah" 22:6 - "In yimatzai HaGanav, yishalaim sh'naim." 22:6 can't be talking about paying kefel, because we know the ganav pays from 22:1 with the mahteret. Therefore it must be talking about a shomer hinam who is toen ta'anat ganav and he is hayyav kefel. Here we have a s'michut not a real hekesh for kefel and 4 and 5. A hekesh has to have a tradition to it - don't ask on a hekesh.

Tuesday February 9

63b-64a

Q: Ok according to the one who says that one pasuk is for a ganav and the other is for toen ta'anat ganav, but according to the one who says that both are referring to toen ta'anat ganav, how do we know that a ganav himself has to pay kefel? If you say a kal v'homer from toen ta'anat ganav, then you are stuck with a sh'vua - that a ganav has to swear in order to pay kefel. A: We know a ganav pays kefel from the teaching of Hezkiah - from the pasuk, you would say that is only applies to live objects, ox and sheep. The pasuk he is quoting does not have salma - therefore can say only dealing with things that can be a korban - (the donkey is brought as a sheep)

Rashi - that he learns from ganav himself - from the pasuk we only know things for a korban, and Hezkiah extends to everything. Need Hezkiah to expand on the pasuk.

The first klall is a miut - the pra't uklall is the expansion from the second klall. In this case, we are including the inanimate objects.

...

64b

Since we had to manipulate the premise too much, it does not stand up. Therefore, it's no good and we drop that whole logic. We'll now switch - not a klall ufrat u'kall, but a ribui, umiut, uribui. The rule is "mayim bamayim" regarding the kashrut of fish. There is a prat after it.

I got lost in Shiur at this point. I will now try to give an outline of the complete sugya starting from 62b, despite the repetition. This is pretty much a translation with some explanation.

"Midat Tashlumei Kefel Noheget etc."

Q: How do we know this - that the ruled of paying kefel apply to living and non-living things?

A: From the pasuk in Sh'mot 22:8; "Al kol d'var pesha" = klall, "al shor, al hamor, al seh, v'al salmah" = prat, "al kol aveida" = klall. We now have a klall ufrat uklall, which means that we can only extend the statement to things which are similar to the specific items mentioned in the verse. Had it been a simple klall ufrat, we could not extent the law beyond the specific cases mentioned. Therefore, just as the items mentioned in the prat - the ox, donkey, sheep, and coat - are examples of things which are m'talt'lin - moveable objects - and have intrinsic monetary value, then we can extend the pasuk to include all moveable objects with intrinsic value. This excludes land, slaves (which are treated like land), and contracts (which have no intrinsic monetary value), and hekdesh since it says "rayahu."

Hava Amaina: But you could also make the following correlation between the pratim: just as the items mentioned are m'tamei if you touch their dead bodies, then the rules of kefel should only apply to things that are m'tamei b'maga umasa, and therefore exclude birds.

Q: Who says this is the correlation? One of the items mentioned is clothing, and thus not comparable to the others.

A: We compare the living things in the verse to each other - that they have the same characteristics of not being m'tamei, and thus birds would be excluded.

Q: If so, the Torah should have only mentioned one animal.

A: Which animal could the Torah have mentioned? If it would have only said ox, I would think that the rules of kefel would only apply to animals which can be brought as a korban. If it would have only said donkey, I would think that it only applies to animals whose first born is kadosh.

Q: Then it should have just said ox and donkey, whose unique traits offset each other. Why would I need sheep?

A: To include birds.

We now digress into the discussion of ribui

Q: Say that it only applies to tahor birds, not tamei birds - like the sheep which is tahor and us m'tamei clothing.

A: Since it says "kol," an inclusive term, we do not make those types of distinctions. We have a new category of inclusions, ribui.

Q: But is every place it says "kol" really used as an inclusive term? We see by ma'aser that it says "kol" in a klall ufrat. That we learn just as the prat explains fruits from fruits and other things that grow from the ground, then everything that grows from the ground is included. We learn ma'aser using a klall ufrat uklall, not a ribui even though it says "kol?"

A: Then it says "B'kol" as it does be ma'aser, then it is a klall. When it just says "kol" like it does here, it is a ribui. If you say that "kol" is a lashon of klall, maybe here this "kol" is a ribui. Since it says "ki yiten ish" - klall, "kesef or keilim" - prat, "lishmor" - klall. An if you think that "al kol davar pesha" is to teach klall ufrat, then the Torah should have written the pratim by the klall. Therefore, the "kol davar pesha" must mean inclusion.

Q: If it's an inclusion, why do you need the pratim?

A: One to exclude land, slaves, and contracts, with clothing excluding things with no definitive measurements.

"Al kol aveida" - like R. Hiya bar Abba - toen ta'anat ganav by an aveida pays kefel.

We learn over there, if the owner asks for his object back from the person who has his object, and he replies that it was lost, swears on it and the owner says amen, witnesses come and say that he ate it, he pays keren. If he came forth and admitted, then he pays keren + 1/5 + asham.

However, if he says it was stolen...and witnesses come, he pays kefel, if he admits then he pays keren + 1/5 + asham. We learn that a toen ta'anat ganav pays kefel, but a toen ta'anat avad does not. Furthermore, the toen ta'anat ganav only pays kefel is there is a swearing and the response of amen.

Wednesday February 10

65a

Rav: The keren you pay is what the value is at the time of judgement.

R. Sheshet: But we learn that if the animal was skinny and after it was stolen it got fat, The ganav can answer I made it fat and you charged me?

Where it says 4 and 5 is based on the time you stole, it's when the ganav fattened up the animal by feeding it extra. If it grew naturally, then we hold the ganav responsible for the end result. Concept: a ganav who was not koneh the animal through a shinui r'shut or in the object, like the cow, anything that happens, normal growth really happened in the r'shut if the ba'alim, we have a 2nd act of genaiva by killing it and changing it. But once the ganav made a shinui, the ba'alut stops. You are in effect koneh with the shinui.

Q: On Rav Ta Sh'ma: The animal was fat and the ganav worked the animal such that it became skinny, he pays kefel and 4 and 5 based on what he stole at the time he stole.

A: You killed a whole vs. a part of the animal. Rashi: the reason why you pay at the time you stole, is from the first moment he stole it, he mistreated the animal. The killing process began. Therefore, we charge him from the beginning of the sh'hita.

When it comes to keren, you have to pay shaveh kesef because the animal isn't there. The 4 and 5, you have a new hiyyuv for the new act of tavach umachar. Therefore, it is at the time of judgement.

Aruch HaShulhan Siman 354:

1 - The Tur writes that if you steal a pregnant cow, the calf belongs to the ganav. He must pay the value of a cow in the nth month of its pregnancy as opposed to the owner. The ganav keeps it because it is no longer the cow which was stolen - a shinui - with which the ganav was koneh. Even if the ganav was caught while the cow was still pregnant, the child still belongs to the owner. Therefore, the birth and shearing are irreversible shinui, even though it can happen again, it is not the same. Even though the calf grew, it was internally - must be a significant anatomical change.

2 - Do not ask according to this that shinui is pregnant to not....Don't argue business logic - only 2 prices, time stolen and when in Beit Din. When the animal is there, it must be returned. Once it becomes yours and the original animal is changed, have a hov, not just a stolen object. The halacha is to return the stolen object as when you stole it. Meaning that if it not returnable - not the same object, you owe the value of the object. 2 hiyyuvim. Heftza - as long as it exists, it must be returned. Gavra - if it no longer exists, he bays tashlumin.

3,4 - Mahloket if birth and shearing are considered to be shinuim. If you shear an animal, shinui. If it grew wool, not a shinui.

6 - Rambam has a completely different view. Whose animal is it? Why if he fattened the cow before yaiush, then that value belongs to the ganav. The increment is not what he added, but the change in the cow. Not because now it belongs to the ganav - it still belongs to the owner. Shinui is absolute and does not require yaiush. If you gave up on it, adjusted to the loss, you're in good shape, after yaiush, no longer any loss. Therefore, the takanah to return was made only after yaiush.

Mahloket - if a shinui of birth, and growing wool is considered a shinui.

Thursday February 11 - Parashat Mishpatim

Siman 353

If the object changed, the ganav is koneh through it. 3 types of shinuim: 1) ma'aseh 2) shem 3) r'shut. The owner wants the object back, and if the shinui caused a loss and the owner is willing to deal with it, he can't collect it. Once it is changed, the ganav owes the value, not the object. Putting a hole in wood is not an adequate shinui. Shem and ma'aseh can happen in the r'shut of the ba'al. R'shut when it goes out of his r'shut. If after yaiush the takanah is activated.

Therefore of a sheep changed into an ayil, that is already a change in the name. An irreversible change makes the hashiv et asher gazal takes it out of the r'shut of te ba'alim so the pasuk does not apply. Question is how do you measure shinui shem, by what people say in which you have a difference in different societies, or is there a quantifiable measure to judge. He says that it goes by what people say - what is nireh by the eyes. When you know it was stolen as a calf, a shinui must happen at some point in the r'shut of the ganav. There was a knowledge that Beit Din is mehalek. Just like a shinui ma'aseh is a break, a shinui shem is also a break, albeit an unknowing one. Yaiush by itself is not koneh - pure unaided yaiush. If someone stole a ring, the regular yaiush is not koneh, but there is according to Tosafot that according to rabbanan since have the takanah that you can keep it - that you have to be hoshesh for a kiddushin with it. Ba'alut is a utilitarian concept. If it is has no value, it doesn't matter why, still not worth anything.

Monday February 16

65b

Rav - keren from the time you stole, kefel from the time you were brought to court. Talking about change in market price. What is the reason of Rav? Because it says Hayyim and Genaiva. Knas is a yesh me'aiyn. Only when Beit Din rules, does the hiyyuv take place. See that can be modeh in knas, only Beit Din creates the knas and does so with the present worth of the animal. The gemara doesn't like that sevara because the defects are that hiyyuv knas begins with haamada b'din. But the hiyyuv geneivah starts when he took it out - stole it. When the Torah talks about 4 times the value, must be the value of something. The gemara doesn't want to distinguish the knas from the payment of the keren.

Rav Sheshet: But we have a b'raita. Note - that Rav was considered to be a tana and therefore technically not bothered by a b'raita. That if the ganav made a skinny cow fat, he pays the value of the time when he stole. But that is because he could say that "I made it fat and you profited?" If you can show that the effort you put into the animal, you cannot claim that had anything to do with your animal. I don't have to pay 4 and 5 for my efforts. According to this answer, Rav is modeh to the braita. Q: It was fat and it became skinny (through neglect or overworking). A: That's because of the direction of the fluctuation. The animal was losing value because of the ganav's killing of the animal - the animal begins to die. Rav is talking about a normal price fluctuation. Q: But according to Rava, if someone stole a barrel of wine, and it went up from 1- 4, and he broke it willfully or drank it. There is an unspoken klall that there was nothing that made this barrel the property of the ganav - need something to happen by way of a shinui. He has an obligation to be mashiv the object. The obligation begins when you take it out of the rshut. It is the kinyan geneivah. Then you have after the shinui only the hiyyuv to return the value - not the object. A: Rav would say that we are dealing with a case of natural price fluctuation - the wine was initially worth 4 and at the end was worth 1. Therefore, the keren he pays 4, and the knas pays 1.

R. Hannina came to bring a proof to Rav that knas is a new thing that never was and therefore assessed at the time of amada b'din. Talking about someone who stole, denied, made to swear and found to be telling a lie. If modeh before edim came, no knas. Homesh has nothing to do with money. Homesh has to do with getting rid of the sin - different category, not monetary, like the ½ shekel - for kapparah. Pays keren and 1/5 no matter what, because have a blemish on soul that has to be cured. If modeh after eidim came, now has knas. Hava ameina that the homesh was covered by the kefel - have to go through the ritual to go above and beyond returning the geneivah, giving 20% more. If a homesh is not like ma'aser. Can't give more than 10% ma'aser. Can't make more ma'aser. When it comes out that kefel = homesh, only if the base for kefel is lower and the homesh is higher, must be that one goes on the keren, the other on the time of amada b'din. Therefore must be that Rav is right - that there is a difference in assessing.

Tosafot : mahloket on the kind of shinui - whether or not a shinui that happens on its own is a valid shinui. Whether it is a shinui that a ganav made. Why does any kinyan work? Every kinyan works because it shows a change of state, a change of ownership.

February 17

65b

The gemara asks that there is a halacha of shinui hashem - is there a shinui hashem when the animal grows up and changes its name. Rava - no shinui shem, a one day old ox is still called an ox. Q: on R. Elaie - that is the name hasn't changed then nothing has happened. A: Rav Sheshet Beit shamai says that shinui is not koneh. If it isn't koneh, then the hiyuv geneivah freezes time. Shinui doesn't do anything. Shinui has a place where the halacha says that if it changes then the halacha changes.

Rashi: even if it changed, it doesn't take it out of the r'shut of the ba'alim.

A shinui can prevent something from happening after. The hiyuv didn't include money since it was still in the r'shut of the ba'alim,

Q: How big of a shinui do you need? What is the degree its status changes - e.g. achilat kelev? In Issur v'heter if you plant a davar assur, and change it for money is it tofes damav? Gemara asks if there is s a shinui with a common denominator.

2 halachot: 1 - return the object if it's here, and 2 - if not here, than as if it was stolen. See that makes sense because that's what it was worth at the time of the geneivah. Hiyyuv in the time of stealing.

65a

We are not translating amada b'din accurately - at the time he went to court, were does the trial begin? When the court starts its investigation, it begins at the time of shehita and mechira.

Tosafot: Gufa - a few lines down, the gemara backs off from the change in the animal itself, maybe it was an unnatural change. Means clearly that c'ein sheganav deals with fluctuating market price. Q: If that is what Rav is trying to tell you, we learned that already in a mishna regarding fluctuating prices. A: The first part Rav that keren pays at the time it was stolen is not original. The hiddush is in the kefel paying at the time of amada b'din. Rav is saying what we don't see in the pasuk - emphasizing only keren we pay by first method, all others by the Beit Din.

Thursday February 18 Parashat Terumah

Tosafot: Gufa - Tosafot poses a question why rav tells you something in an explicit mishna. It's a mishna later on in gozel eitzim that a thief pays from the time he stole. We say that the point of Rav was because of the ruling of kefel. When the gemara asks what is the Reason of Rav, it is discussing the rule of kefel. Q: But the gemara seems to be asking on the keren - hayyim, which means that Rav discussing keren not kefel. A: Saying why does Rav tell you the gemara - part of the gemara is missing. Paying 4 and 5 not mentioned in that pasuk - only keren is. Therefore, the gemara asks why do I have 4 and 5, because God took time to write pasuk about kein sheganav not 4 and 5. Is no hiyyuv hashava on less than a p'ruta - only a hiyyuv gezaila. The hiyyuv hashava has to do with the object, not money. If there was a hiyyuv hashava, if what you have less. Q: But then why don't we bring the proof from that mishna in gozel eitzim? A: The p'shat is if there is a hiyyuv hashava. Tosafot says that the gemara really wants to know if he still has it. Did the object have value at the time he had to make hashava. The hiyyuv gavra comes from mazik. The hiyyuv hashava comes because you have the object. If at the time of the gezaila, there was no hiyyuv hashava. By the bushels if it was not, wouldn't have to return it. Now, when it is not around, also wouldn't have to return it.

My hiyyuv tashlumin comes from a hiyyuv hashava. When you can't be mashiv it, it becomes a hiyyuv tashlumin. There would not be a hiyyuv hashava that imposes on me a hiyyuv gavra because not worth a p'ruta. The object has to be returned, because the hiyyuv hashava leads to the hiyyuv gavra. If it went down in price to less than a p'ruta, do you have to return it? Doesn't bring a proof from gezaila. Because if that one aggudah was around, it wouldn't be mehayyav be to pay money. If it were around, have to return it. If not around, wouldn't have to pay. Hiddush - when an object when it exists has no value, but if around, charge price of sha'at hagezeila. E.g Hametz she'avar alav pesach, is assur hanah. If you have it, return it even if no value. If you don't, you pay the value kein shegazal. Ownership and measurements requires utility. Mehda shiura = no value, no measure. Therefore if you steal something with no value, there is a hiyyuv hashava on that object, makes you a hiyyuv gavra to return a pound. Do you translate volume into value. Go with value not with volume.

When you learn, you can't switch direction - if one is mahmir, keeps that status throughout the gemara.

Tosafot: D'tania - Gemara: Rav Sheshet had a problem with Rav - that is if the animal got fat, he pays Kein sheganav. Tosafot - Q: How could Rav Sheshet have misunderstood Rav because you would have changed directions because when you quoted the pasuk the connotation of ahyey make it live again comes to say that keren you pay l'humra, 4 and 5 no - would be lenient. Know what Rav said and what he wanted to do. Rav Sheshet comes and asks that you are mahmir by 4 and 5. Rab would be saying pay the fat and skinny price not 4 and 5 - keren he will make pay top price. But in case of getting skinnier he would say pay the skinny price? How did you make the mistake that Rav was talking about skinny vs. fat since he is concerned with making it alive again. Don't make Rav a mekil if he is mahmir. A: Ahya means make it whole again - doesn't speak of better or worse. Ahya without explanation - make believe it was as before it was alive. Could be whole again with one or four dollars.

Monday February 22

66a

Q: R. Yosef (Yaiush (kdi-Alone) not even koneh drabannan - need yaiush with some form of shinui - even one that is hozer) to Rabbah (who said based on a pasuk and braitot that only if the object is in the same state do you have a hiyuv hashava and Yaiush is also koneh) - If you steal hametzs she'aver alav pesach - if the thief comes to return it, if you say yaiush is koneh, the the ganav was koneh, and you don't care if it was hametz sheavar alav pesach. It isn't my hatmetz anymore, its worthless.

A: When does it work - if one was m'yaish and the other wanted it. Every mechira is the push/pull theory. Involves a moher and a lokeah. The rshut is relinquished and taken. Hefker and yaush is only a giving away of rshut, still need a taking - anyone can pull. Yaiush is an act of kinyan and there is no act of kinyan without gemirat da'at. The ma'aseh kinyan is irrelevant. Both parties have to know that a kinyan is being done.

Q: Abaye to Rabbah - says korbano and not the korban that you stole. If this is before yaiush, I don't need a pasuk, if after yaiush proves that it doesn't work - but for only this case, otherwise, is koneh. God doesn't like stolen goods. For m'kadesh isha, it's good, need specifically for korban.

A: Where a man is a zav - av hatuma, requires tvilah, if a zav sits on an object, that object becomes an av hatuma, not a halacha of touching of tamei since if he sits on your sofa and then you sat on it, you are ok since the sofa is only an av hatuma. But his sofa becomes an av - mishkavo, not mishkav shel aheirim. Deals with possession. Therefore, if a mishkav of a zav becomes an av, but if it was stolen, it isn't, then if he stole the wool and made a blanket, is it not a shinui that it becomes his? You Abaye have the same problem. Therefore, must be when he stole the korban of his haver, before yaiush, but it has the kedusha of a korban since it was already designated it.

Tosafot: Shma - in Succah, we use this to discuss mitzvah habah b'aveira. Q: Why is that not mentioned here? A: Because if yaiush would be koneh, it still wouldn't be mitzvah habah b'aveira since need simultaneous action to have it - they must be done at the same time.

Tuesday February 23

66b

At what point do we say he a ganav? When he has made it ritually his - made some form of change or demonstration of ba'alut.

Halachot that need ba'alut for a ritual halacha act. "Ki Yutan mayim al zera" you need ratzon baalim for a hechsher tuma to occur. Also, you can't make someone else's thing avoda zara by bowing down to it. In para aduma, only of the owner put on it a yoke. Here, we have the case o of the zav. If have tanned leather, leather skin can be used for many things, and keilim are only mekabel tuma when thy are finished or at least have mahshava to use it for a specific object. Need "oleh b'mahshava" to be mkabel tuma.

Q: Abaye to R. Yosef - the mahshava of a ganav by leather is mtamei, the gazlan is not - because it was koneh only in yaiush. When a ganav took it and you realize it was stolen, you have yaiush. By Gazlan, he cam bhozek yad, then his mahshava doesn't work because it isn't his. Even though the gazlan decided to use it for something, because with gezaila, the owner is not m'yaish on it. R. Shimon - you have it reversed. A gazlan - e.g. someone who takes with force, therefore yaiush since he has no hope to get it back. A ganav have better chance of getting back. Which condition makes yaiush is irrelevant, the mahloket is in m'tziut for sociological reasons. At any rate all agree that yaiush is koneh when there is a case of yaiush.

A: That's dealing with a case of a shinui maaseh of trimming it.

Q: Dealing with a hunk of leather that is a completed unit as is. A: This question that how did you learn p'shat in this mishna about the hunk of leather that it is not mkabel tuma was discussed. A change of name is the change as a shinui ma'ase. The fact is at first it was called a hide. Then we called it a tablecloth. Therefore, yaiush alone is not koneh. If it was just yaiush, it would not be koneh. Once you have a shinui with it, then the yaiush is good. Here we have a yaiush with a shinui shem.

Tosafot: K'gon - with yaiush it helps, but the cutting is not a shinui ma'ase. Must be a significant shinui that is irreversible.

Here we have a case of halachik synergism. Neither shinui ma'se nor yaiush work; need both together to get a kinyan.

Q: The Gemara's definition of a hide of leather by its definition is unchanged natural leather. Can't learn cut - violates definition; can't learn wasn't cut - no yaiush. A: There was a shinui shem - changed from hide to picnic blanket - the shinui shem is koneh. Q: Shinui shem = shinui ma'ase. Here, the shinui shem is now called something else, just as a shinui ma'ase changes the object. What made this shinui shem is location. But if you have it elsewhere, it will be a piece of leather. A: R. Yosef - It is because the beam is still a beam.

Tosafot: Shinuu - shinui shem is what really made the kinyan.

3 kinyanim for a ganav. Shinui shem with yaiush, shinui ma'ase with yaiush, and a shinui that can stand by itself.

Wednesday February 24

At the beginning of Bava Kama, we mentioned the ways a person can do tashlumin. If ba'al hov does not have kesef or m'taltilin, you collect best, then beinoni etc. A worker, must get paid in kesef, to the point where he must sell the objects and give money. Ganav and Gazlan we don't assess - on 11a, according to Rashi, he pays back either the actual object or kesef. Concept of equivalency. Money is equivalent, nothing else is. Wheat may be equal in value, but not identical. By ganav, have a hiyyuv heftza on the object - can't get away with just paying the money because that's lo tahmod.

R. Hayyim: If you steal on object and it breaks, he pays the value in money, don't assess it in other items. Rambam: Also includes lo niha li b'takanat rabbanan - that the owner can claim the broken object + the difference. If it's for the owner's benefit, he can modify the deal. Q: The Hagahot Maimonit says that you can't have it both ways - if it was broken, shinui ma'ase and it becomes his to the point that he can marry a woman. Then how can you still say that the owner can still claim it? A: If an object gets a scratch or a dent, it is not a shinui that is koneh, but it is a loss in the object and it becomes devalued. Rambam didn't say there was a shinui, there was a p'hat - a loss then broken. Therefore it wasn't a damage that can be koneh, so the owner has the choice. Q: 1) Still not a good answer because if it's the object is not in the possession of the thief, then he would have to return the object as is and not give the ganav the choice to return the object or money since he has the hiyyuv hashava. Q: 2) If it is a little off, it is still like the original one. If you don't call it a shinui, there is a dual role - the owner can say it's damaged, but if it wasn't a real shinui the ganav has no choice. Basically, it is either a shinui or it isn't. If it is a shinui, the ganav has the option to return the object or the money. If it isn't, the owner gets the object and there are no other options. Therefore you have to define what shinui is koneh.

If you stole a coin and it became defaced, it loses its intrinsic value, you pay the value of what he stole. But if the currency itself became devalued, the ganav can return what he stole as long as it hasn't been changed. "Asher Gazal" teaches us two halachot - 1) if unchanged, return it 2) if not, have the option. A: You can't say harei shelach if it isn't yours i.e. after a shinui - he was koneh. Or because since it was not like what it was that you can say harei shelach. Harei shelach means it's the same thing - has to do with the identity of the object. Shinui is a kinyan and it needs to be a significant kinyan. Harei shelach is a special gezairat hakatuv of K'ein shegazal - identically as I took it. If it is a little off, doesn't apply. But kinyan requires a more significant shinui - for something to become his such that the ba'alim can't demand the object. There is a shinui that doesn't let you say Harei Shelach - which is a privilege to the ganav - but does not grant the ganav ownership. Therefore, the ba'al can demand the object back. Seems that both are right 1) that because shinui - but not necessarily a shinui for kinyan - can't say Haei shelach and 2) Because not on same state, can't say K'ein sheganav. If there was a change in the object and you gave it back, you cannot fulfill the mitzva of v'heishiv since it is no longer k'ein shegazal. But, you are forcefully paying the object back to the owner since have hiyyuv gavra of tashlumin even if the ba'al doesn't want the object back. 2 hiyyuvim - return the object and return the value.

Thursday February 25 Parashat T'zaveh

R. Hayyim cont.

In Bava Kama 97a, someone who stole a sailboat and there was a deterioration of the boat. Rav -The owner can demand the rental fee or can demand the repair of the damage Shmuel - can only charge loss of value. Q: The Rishonim - Shitta M'kubetzet- say what does this do? If there was a sufficient change, he has to return the boat. Why pay the loss value at all - if the damage was less than a shinui, it's nothing. A: There are 2 kinds of gazlan. A shoel shelo mida'at is treated like a gazlan, but in actually is not. There is no ma'aseh kinyan because there is no gemirat da'at. Why isn't shoel a gazlan? R. Hayyim - not a gazlan, but has the hiyyuvim of the gazlan and pay whatever he has to pay. Even though he has no da'at he is still treated as a gazlan. The pahat is inconsequential. In every gezaila there is a hiyuv mazik - therefore, the hiyuv by a small damage comes from mazik not gezaila.

67a

Halacha of R. Zeira - a shinui that can go back to its original form and name, is not considered a shinui. A beam in a ceiling has a shinui shem, but that alone is not good enough to be koneh because it is a returnable shinui. If you visualize what would it be called without the roof, it is still a beam.

Purim

Wednesday March 3

66b

Yaiush is relinquishing ownership and ownership cannot be against your will. We will now deal with cases where ba'alut determines halacha.

Case of the mahshava and the leather - mahloket about ganav or gazlan's mahshava. Whose mahshava makes it a kli - who has the right to turn it into an object that can be mtamei. New halacha that yaiush with shinui maaseh and yaiush alone is not koneh, and yaiush with shinui shem is kosher.

Q: A beam that is put into a ceiling - it changes names but not the physical object - is that Shinui shem a valid shinui when by takanat hashavim it doesn't work? A: R. Yosef, a meirash didn't change its name - even if it's still in the ceiling, it still has the same name. R. Zeira - It will have the same name if you take it apart - a shinui shem that is reversible is not a shinui that can be koneh. Q: But does a permanent shinui count? See from case in mikva about a pipe that was first called a log, now a pipe, and we learned that if it was hollowed and then put into the ground, it is a kli. A shinui shem means it has it's own identity as a kli. Yet, it doesn't invalidate the mikva - because it is the absence of a kli if it is underground even though the kli itself still exists. A: Mayim sheuvim of this kind is only a drabbanan. A: There while it was not mehubar l'karka the rabbanan were not gozer. By definition a kli must not be mehubar l'karka.

Tosafot: Tzinur - The kli has a rim on all 4 sides -

_______| or something like that. Because otherwise not a Beit kibul - a collecting pipe.

_______|

They dug out holes to filter out stones and dirt for residual buildup. Mahshava also counts for whether or not it is a kli that is talush. The shem kli comes in later. If there is a kli that was never meant to be talush - it never had that utility - it is considered mehubar.

Thursday March 4 Parashat Ki Tisa

67a

In the sugya of yaiush koneh or not. Diversionary sugya of shinui shem. Main point is if yaiush is koneh, whether there is a concept of relinquishing ownership.

Q: A ganav, gazlan, and Ones can be makdish, give Terumah and ma'aser - all of which needs ba'alim. How do you validate such ownership - must be yaiush is koneh. A: Here there is a shinui shem. Before it was hol, now it is hekdesh. Mishna 114a - a corrupt tolltaker - power to do what he wants - takes a donkey and gives another one in return (of less value) which he probably took from someone else. He can keep the 2nd donkey because the owner has yaiush. Rashi - also koneh in shinui rshut. Rashi - assume the owner has yaiush. If you take from the river or armed robbers, if there was yaiush then he is koneh - but here you need explicit yaiush. A swarm of bees than land on someone's tree from someone else's hive. If the owner makes yaiush, then you can keep them. Halacha that we believe a woman or katan to say we saw the bees go from one place to the next. Allowed to cause damage and pay for it because of my potential loss.

Gemara - If you take that donkey, and you can identify the original owner you have to return it because plain yaiush isn't koneh. Yaiush with shinui rshut doesn't work - the tolltaker didn't do anything - because nothing changed to take away the issur from it. When you go to a non-Jewish courts, have confidence will get object back. In Jewish courts, will get an argument. Ula - regarding our mahloket of the leather - if you know he is m'yaish, you are koneh. Rabbah - even if you know there is yaiush, still a mahloket. Q: R Eger - Why does the Abaye ask on R. Yosef from the braita when the mishna on 114 seems to agree with R. Yosef. This is because of the word "aitivai" he should have put it in the form of a statement.

Tosafot: Amar - Seems that according to Ula, yaiush is not koneh. Q: R. Tam - seems that when there you know there is yaiush, he is koneh. A: Yaiush is koneh, by korban doesn't work because of mitzva haba B'aveira.

ba'alut is an active process. It exists as long as you affirm it; the moment you relinquish it, it is no longer yours. Hefker is a silug of genaiva not of ba'alut. Yaiush is a silug of ba'alut.

We have the maskana that yaiush kdi is not koneh. Rashi: Only place where yaiush is koneh where there is a shinui rshut. Tosafot: When not dealing with korban a yaiush is good. Korban no good because of mitzvah that comes from an aveira.

Monday March 8

According to R. Tam - yaiush with shinui rshut is koneh all over. By Korban, only have problem of mitzva habah b'aveira.

Back to the gemara

67a

Ula - How do we know that yaiush is not koneh? A: A korban that was stolen, limping, and sick is not kosher for a korban. Just like a blind animal has a mum that cannot be fixed, so to a stolen animal has a mum that cannot be fixed. Since it does not distinguish between before or after yaiush, cannot be before yaiush because then don't need a pasuk, therefore after yaiush and must be that yaiush is not a factor - therefore not koneh.

67b

If you steal a shor or seh, you pay 5,4 respectively. Why? Essential animals for life - clothing and plowing. Q: But why only shor or seh? Just as your shor and hamor by working on Shabbat are both required to rest - why not infer here applies to all animals? A: Rava - pasuk says shor and seh twice - meaning shor and seh and nothing else. Q: Which time is the repeated phrase? If you say that the 2nd one is extra, and the Torah should have just written shor and seh at the beginning and that you pay 5 shor and 4 seh. A: Then you would think that you would have to pay 9 animals back.

But it also says "tahtav" twice - must come to teach something else -

Someone who steals from a thief does not pay kefel. Rav - this is only when it is before yaiush. After yaiush, you are stealing it from the original owner - in this case the ganav. R. Sheshet - Rav must have been sleeping - Why did the Torah say you pay 4 and 5? Because he sank roots in his sin - he stole and had no second thoughts and no remorse to the extent that he was tavach umachar. If there was no yaiush, then there is no other action because not his. If you say that yaiush is koneh, why does he pay 4 and 5 because he is only doing it to his own animal. When he takes what is not legal and turns it into something legal by selling it, that is entrenching in sin.

Tuesday March 9

Tosafot: Amar - Ula is coming down as the author that yaiush is not koneh.

Kesef Nifra- 33b - Ula no difference if you know or don't know there was yaiush - not koneh. Really is shouldn't be a korban, but the kohanim would eat the hatat - therefore they exempted the person from bringing another korban hatat so as not to disturb the kohanim. Under category of tereifa - something out of place - from the "sadeh" anything not in its place is considered a tereifa. Anyway dealing with yaiush and shinui shem.

Tosafot: cont. - Q: We have the mahloket where a person is more likely to have yaiush - ganav or gazlan. According to Ula that is only when you don't know - presumed yaiush. If you know that he is m'yaish, all agree that yaiush would be koneh. A: R. Tam - Yaiush is koneh, korban doesn't work because of mitzvah habah b'aveira. By a woman, need a halot kinyan in order for kiddushin to work. Therefore if she is married, she is not a pnuya and therefore cannot do kiddushin with someone else. Your ba'alut cannot take affect if there is another ba'alut. Whoever has the right to use it has the title of ba'al. A Shoel is a ba'al - will suffer loss if something happens, and has full rights of use. Yaiush takes away your ba'alut, therefore Yaiush is koneh because in possession of someone else. Have din of hazaka. The ganav has a constant da'at to be koneh. Therefore, R. Tam has no problem that yaiush kdi is koneh. There is no ba'alut over something that is assur in hana'ah because there is no utility. Bitul takes away the value, therefore another way to make it ownerless. The problem with the korban is that it is stolen. Proof: How does Ula say that yaiush is koneh, then how could you have kodshim bahutz because you cannot make it hekdesh if it isn't yours. Two things are affected by hekdesh 1) shechting outside the mikdash and 2) doesn't pay 4 and 5. Before we got to the point of being hayyav karet for eating it outside. If it wasn't koneh, he couldn't be makdish it for both the issur karet, and also the ptur for 4 and 5. There is the earlier test if he pays 4 and 5 - don't need the karet part. Since you say that the punishment is karet, you are saying that it is raui to be in the mikdash. For 4 and 5, it is hekdesh. For korban it is not. Therefore, see that the kinyan was good, but for a separate reason mitzvah habah b'aveira, it can't be a korban. Another proof: From lulav hagozel - a stolen lulav is pasul on yom tov shenei even though you don't need the requirement of it being yours - because of mitzvah haba b'aveira. R. Yohanan - it doesn't matter before or after yaiush. According to Ula, yaiush is koneh. However, mitzvah habah knocks out the resultant of yaiush. However, it will invalidate the mitzvah.

Q: 1) The Ri - if so, when Abaye asks Rava about korban on 66b about yaiush not being koneh therefore the korban is no good must be asking after yaiush. Rava could say that yaiush was koneh but mitzvah haba b'aveira. Abaye holds that there is no such thing as mitzvah habah b'aveira - man is imperfect to begin with and because he does one sin does not pasul subsequent aveira. But Abaye must agree that there is a mitzvah habah b'aveira because m'tziut is not that yaiush isn't koneh - yaiush comes with shinui shem and shinui rshut. Therefore Abaye must hold mitzvah habah b'aveira so the question of the Ri stands. Q: 2) when someone is makdish an animal according to Ula, then what is the question in the gemara regarding the ownership of the children and the shearrings - should automatically belong to the ganav?

A: The Ri - Ula says yaiush is NOT koneh. Because that's what our gemara says - how do we know that yaiush is not koneh. Not like R. Tam - how do we know that yaiush is not koneh for korban. The Ri must then answer the contradiction to Gitten - that case in Gitten is when there was yaiush and shinui shem. Not koneh by korban because mitzvah habah b'aveira, but different concept - it is my animal and I want to make a korban. It's an aveira you couldn't accomplish without the mitzvah - when are you liable for geneivah - when it becomes yours. You did something to make the sin rooted. In this case, you make the shinui shem of making it hekdesh, therefore, the hekdesh is an accomplice to your aveira by completing the action of the sin through the shinui shem of the mitzvah. This is the mitzvah habah b'aveira according to the Ri. The Ri's hiddush is when the mitzvah assisted in the performance of the aveira.

Third category: B'racha - someone steals wheat, how do you say a b'racha on being mafrish hallah. B'racha is different. How can you say asher kiddishanu when you know what you did. Problem in the b'racha not in the mitzvah. According to the Ri, can use the wheat for matza, just cannot say a b'racha.

Wednesday March 10

67b

Someone who steals from a ganav does not pay kefel. Rav - only before yaiush. After the initial yaiush, pays kefel because he holds that yaiush kdi is koneh. R. Sheshet - Rav was sleeping. R. Akiva - you pay because nistaresh b'hete - sank roots in sin. He took posession and he got away with it. An assumption of Rav Sheshet that he needs a successful sale. How could you say that the first ganav becomes a ba'al? The literal meaning of Umachar - he sold it not me almost shechted and sold, he actually sold it.

Yam shel Shlomo

Tuesday March 16

67b

Steals from a ganav if patur in kefel - probably because no ba'alut - bo gavan mibeit ha'Ish. Rav - yaiush alone is koneh. R. Sheshet - have a braita that contradicts. He can't ask a question on Rav because Rav is a tana, not in the form of a question. R. Akiva - since it says 4 and 5 as a punishment for adding to injury, when is this nishtaresh in sin - before or after yaish? Must be after yaiush - but then s tavach umachar his own animal - why pay 4 and 5? Up until that point, it was still in the owner's rshut, therefore it was the ma'ase of the tavach umachar that made him a ganav not the yiush. A: Rava - before yiush and he pays because he was rooted in sin - punishment for insult to injury. Universal ethic of "just not right." Don't worry about the legalisms, he kept up the sin that he did.

Still looking for the full impact of yaiush kdi

Ta Shema - When do you have a michira that is irreversible? A: If before yiush, obvious because it isn't yours to sell. Therefore, must be after yiush with a shinui rshut. Q: But if you tell me that the gavan was koneh with yiush alone, why would he pay 4 and 5? Therefore, see yiush not koneh and Rav is wrong. A: Here an irreversible mechira after yiush because - before yiush, don't have real genaiva - braita is talking about a mechira that is not a temporary one i.e. renting he would not be obligated to pay 4 and 5 for that.

Maitivei - 1) Ganav stole and was stolen from him, the 2nd ganav pays keren. 2) If the ganav stole and machar (shinui rshut) and a ganav stole from the lokeach, the first pays 4 and 5 to the original, the second one pays kefel to the lokeach since it was from beit ha'ish. 3) Stole, shechted and someone stole that meat, the 1st pays 4 and 5 and the 2nd one only pays keren to the 1st ganav.

Note the middle case: Q: 1) Must be after yiush because otherwise not the ganav's to sell, but then why is the 1st one hayyav to pay 4 and 5 because he is selling his own animal. Q: 2) In the first case, the 2nd one pays keren also dealing with after yiush, if yiush is koneh, then the second ganav should pay kefel since ganav from the beit ha'ish.

Qasha to Rav.

R. Tendler - Q: Why is this more a problem than the others? A: Elaboration of the mishna and not an isolated braita - it's relly a question from a mishna on Rav not a Braita.

Rava - Is that really the braita - you're content with this braita? Look at the braita itself. What did the person in the third case steal? Is there any doubt that the ganav was koneh after yiush especially with the shinui ma'ase. Must be all are before yiush. But then no one is koneh anything. In the 2nd case he pays kefel to the original ba'alim but no yiush. Say the cases are the same but switch the halachot of the 2nd and 3rd case which makes stole from ganav umachar pay keren because no yiush, and therefore not the owner, but stole meat from ganav vtavach pays kefel because koneh with shinui ma'ase.

R. Papa - The 3rd case is Beit Shammai who says just shinui doesn't make a kinyan, need yiush with it. Q: If so, question on the first and second case A: R. Zvid - all before yiush. If stolen from first ganav after yiush would pay kefel, since not only pays kefel to ba'alim.

Itmar: If you sell it before yiush, The penalty comes with the act not the ma'ase kinyan.

68b

...

By kidnaping, don't lose the ba'alut after selling the person. Possible for avdut to exist if he renounces his own ba'alut. Need a gezaira for an eved. Before yiush 4 and 5, but maybe you hold like Rav that you are koneh in yiush.

Tosafot: Mah - According to R. Elazar with Tvicha it instantly becomes his because by ganav has instant yiush. Who says you're koneh with just a shinui ma'ase and no yiush? What do you mean mechira is immediate? What are we contrasting? How can you have an automatic yiush? Yiush should also be automatic as soon as its stolen. A: Tevicha is also not immediate. He is koneh with a kinyan genaiva.

Wednesday March 17

Nishtaresh b'hete: Same action - transferred the money legally. A second action that removes the ba'alut and transfers to someone else.

Shana b'hete: Tried and didn't succeed, just did more sin.

68b

Have a clear proof that mechira does not mean one action because gonev ish can't mean sells successfully because no ba'alut. R. Yohanan, lifnei yiush is hayyav not because you succeeded, but because you did another bad action. But what about after yiush? R. Yohanan - hayyav after yiush also.

Reish Lakish - koneh after yiush and therefore patur live Rav.

Both agree that shana in sin that before yiush pay 4 and 5, mahloket is after yiush. Both disagree with R. Sheshet.

Tosafot: Geneiva - Q: Maybe kidnaping is different because there is no comparable tvicha? A: Here there is also no comparison - not darshan semuchim. If the mechira is by the teviha, then it means the same action. If it is alone, it means a stam ma'ase. Learning from where the statements are. Not that all mechirot are successful, but use the mechira in its contexts. R. Yohanan says compare the two mechirot and that since in kidnaping it isn't a successful sale, here too not a successful sale, but go through the motions.

Tosafot: Rabbi Yohanan - Q: Already established that according to Raba, Yiush kdi is koneh (At least according to R. Tam) and now caught in rules of psak that we follow R. Yohanan and he is hayyav 4 and 5 after yiush when he would normally be patur for shechting his own animal. A: Maybe not established that we follow R. Yohanan. Only if Reish Lakish so we say that, or only here do we follow Raba. Since many ahaonim argue on these points.

Q: R. Yohanan to R. Lakish - ganav and makdish the animal and was tavach pays kefel and not 4 and 5 because not reiahu. How could he me makdish it if it isn't his therefore must be after yiush but then if yiush is koneh, why does he pay 4 and 5? A: Dealing when the ba'alim made it hekdesh after it was stolen. Q: Who makes it hekdesh, it must also be in the ba'al's rshut for him to make it hekdesh. The only reason patur is because hekdesh is raihu therefore see not because of his therefore see the yiush is not koneh - were he not makdish, he would be hayyav 4 and 5. But the animal is still the ganav's and the ganav makes it hekdesh. According to R. Lakish, how is the case of ganav constructed. A: Issue of ba'alim is like tznuin. Have problem of orlah that you can't do anything with it. People were stealing neta' r'vai. The tznuim didn't want their field to cause someone else's aveira. Therefore, can't be podeh the fruits while they are on the tree. They said that any apples that are taken goes on this money and therefore they are not taking neta' r'vai. Therefore, see don't really need it to be in your rshut - hillul has the same impact as hekdesh. Since you can be m'hullal something not in your rshut so to you can be makdish something not in your rshut and the ba'alim are making it hekdesh. Q: But the ganav and hikdish pays kefel to the owners. If you say that the ba'alim were makdish then no one gets kefel. You are returning the hekdesh to the non-owner. A: The case is where they caught the ganav and the court said you have to give it back. That means that the ganav now owes to the original owners, then he kills it, he doesn't pay 4 and 5. Hayyav money because Beit Din says you are hayyav. Q: Which part of amada b'din? If "pay man" then why is he patur because of hekdesh, is patur anyway since they paskened the case, have a new law of gezaila where 4 and 5 is patur anyway. A: don't care why you owe money, only care that you owe money. The old hiyyuv disappeared. The hiyyuv to pay comes from Beit Din. But if what you did now is overt, since the trial isn't finished then the old behavior of why you have to pay is still here. The case was not finished, just said hayyav and pays because of ganav anyway.

Thursday March 18 Parashat Vayikra

Mahloket R. Sheshet and Rav, R. Yohanan and Reish Lakish whether you need ahanu ma'asav in order to incur the punishment of 4 and 5.

Tosafot: Mah - Ties into basic halacha of stam genaiva tied into one action. R. Elazar, stam yiush with shinui rshut works. Shinui rshut can only occur if there is silug ba'alut from the original owner. Q: To the Rashbam - see from another gemara that even a shinui is not koneh - the deterioration of the animal is the problem of the nigzal not the gazlan. Therefore, see according to R. Elazar that shinui ma'ase is not koneh. A: No one holds shinui is not koneh, but there is a difference that is the ganav himself effected the shinui, it is a kinyan. A shinui that happens on its own is not koneh.

R. Tendler: Who is the ganav to make a shinui? Why is his making the shinui more significance since it's a shinui without yiush. A: 1) R. Hayyim - can only change nezek without yiush. Ganav isn't a hiyyuv until you justify shinui rshut. Mazik works when you take it away, and that can only be hayyav for mazik with his own hands. 2) Holek on the first answer. If you hold that shinui isn't koneh, then you need successful action. By teviha, all hold it was successful, why not say koneh? By mechira, nothing happens to the physical animal, only to the ownership, therefore, pay 4 and 5 because you actually did something. Not a legal ownership, still hayyav punishment.

Monday March 22

69a

Shelo = legal ownership. Birshuto = who is able to make use of the object.

Tosafot: Hayyav - Hayyav does not mean a gmar din until Beit Din says "give it to him." Q: But see in Sanhedrin that there is a case where Beit Din says "hayyav" the din is ordered and is done. A: When it comes to when they can offer compromise, Beit Din cannot offer compromise when they know who will win.

Gemara - Q: Gufa - R. Yohanan said that if it was stolen and there was no yiush, he cannot make it hekdesh since it is not in his posession. But did R. Yohanan actually say this - we learned that R. Yohanan says that the halacha is always like the stam mishna and we learn that there is a stam mishna that says that is someone had a field and it was the 4th year of o'rla, they would identify the field by putting around clods of earth around the field. It was a way of showing that this friut was like the earth. Just as you can have use of the earth and get benefit but you need to work at it, you can get benefit from this fruit, but you have to redeem it in order to get hanaah. If it was in the first 3 years, they would surround it with broken shards - can't make use of the fruits. If you decided to bury someone, they would mark it with white sid - there is something as white as dead bones. Rav Shimon Ben Gamliel - not worried about people...

The tznuin would say that anyone who takes the fruits is taking from hullin and it's automatically nifdeh.

Q: There is a mishna that says that Rav Shimon Ben Gamliel says that you can be podeh something not in your rshut - only upset with motivations. And if halacha is like Rav Shimon Ben Gamliel according to R. Yohanan, it must be that R. Yohanan hold that you can be podeh and therefore makdish something not in your rshut.

Tuesday March 23

69a

Since R. Yohanan held like the tzniun, then R. Yohanan should also hols that you don't need rshut, only shelo. Therefore, R. Yohanan changes the position from whatever was picked to whatever will be taken is now hallal. But now have a psul heftza that we don't know what the object is. You cannot make kinyanim on what you don't know about and you can't have gemirat da'at if you don't know on what you are having da'at. R. Dosa said that the tznuin said nilkat not mitlaket. Prove that R. Yohanan held that the tznuin hold they take from what was taken, but R. Dosa was referring to making things hefker at night for the poor people who took too much. Rule of kinyan: Can be koneh and makneh something that is yours and in your rshut. R. Dosa holds like the tznuin - therefore, change the names around for R. Dosa and R. Yohanan. Q: Why change R. Dosa and R. Yehuda when your problem is with R. Yohanan - why not say that R. Yohanan held like the tznuin who held like R. Yehuda (instead of holding like R. Dosa). Can remove the contradiction by changing R. Yehuda and R. Dosa - in which case you change 2 people, here we are suggesting you only change R. Yohanan. A: It will not satisfy you - you will have another problem in that you will now have a contradiction in R. Yehuda since R. Yehuda holds that "b'reira" is not good elsewhere, and here you are saying that R. Yehuda holds that there is b'reira. If there is b'reira - no other person, then if you don't want to be the cause for someone stealing, you are mohel them - what they took and what they will take. Remember, coming from case of yiush koneh or not. Why are you not relinquishing ownership in the same way. Whatever he chose, that's what I meant - a retroactive gemirat da'at.

Rashi: Maybe they won't pick more than halacha allows.

Two Sefeikot 1) Don't know which ones will be hefker. 2) Don't know if there will be a hefker Rashi seems to require that you need validity, certainty - may be nothing at all.

Where did R. Yehuda have b'reira? Mishna: If one takes wine from cutim (100 lugs) on erec shabbat and he has no time to make are real ma'aser - and says that 2 lugs are for terumah, 10 are for ma'aser rishon, 9 for ma'aser sheni and he is mehallel the ma'aser sheni right away R. Meir - he can drink right away, and according to R. Yehuda, R. Yosi and R. Shimon prohibit is because they are opposed to b'reira. Therefore, we cannot have R. Yehuda contradicting himself as well, so we are back to R. Yohanan contradicting himself. A: Say that R. Yohanan said mitlaket not nilkat. Q: But we still have a problem with R. Yohanan - because we have another stam mishna that says that sons who inherit land from their father go back at yovel and we don't say that SEE RASHI. A: He holds nilkat - and R. Yohanan has another stam mishna. R. Yehuda only worried about maybe the barrel will break. If it does, you never gave the b'reira and retroactively, you drank tevel because you never game ma'aser.

Tosafot: Kriah - from the fact that you can be mehallel hashem's grain proves that it belongs to you or that even if you don't own it, you can still be mehallel it - why need the whole thing with the homesh. A: The fact is that you can't be podeh someone else's ma'aser because there is someone else who objects to it. There are two halachot in terms of what is yours. Ma'aser sheni is both hashem's and mine. Two kinds of ownership 1) mine 2) not yours. The homesh proves it is not yours. My "mine" is more than yours because I give a homesh.

Wednesday March 24

...

70a

In n'harda'a, don't write a shtar harshaah on mtaltilin - a power of attorney, can act in place of a person. Problem of kinyan - who is responsible to make a deal - 1 not shelo, one not birshuto. Therefore can't make a real kinyan or a harshaah.

Tosafot: Lo - only on mtaltlin where the person who has it, you are saying he stole it. If it is a pikadon, then you can write a shtar sharshaah because a shomer is considered birshuto.

Monday April 12

70a

Mishna

The same witnesses that say a person stole can testify that a person killed or sold it, or you can have 2 new witnesses for the other act. If ganav umachar on shabbat, to avoda zara, ganav tavach on yom kippur where only a hiyyuv karet (doesn't incur a hiyyuv because the hiyyuv mita occupies all hithayavut – patur from all other hiyyuvim) stole from father, tavach umachar and the father dies (maybe have a hiluk if he is the only child or maybe owes the father such that if he dies it goes up the line of yorshim to the grandfather and grandfather's brother) all cases pay 4 and 5 since no reason to be patur. Difficult concept of ganav and tavach for refuah or to give to dogs, or he shechted it and it was found to be a tereifa or in the azara and therefore is assur in hanah still pays 4 and 5. Don't care why or what happens to the animal. R. Shimon argues and says that if found to be a tereifa (matir something in achila and here not a valid for achila therefore patur) or in the azara is patur. Tavach matirs achila and is motzi from being a neveila. Really a gezeirat hakatuv in that tavach is only a kosher shehita. If the shehita does not let you eat it, then it isn't really tavach.

Gemara

Say that this mishna is not like R. Akiva. We are dealing with knas and exact protocol must be followed. If it's R. Akiva – davar and not ½ davar – then this mishna cannot be. Davar and not ½ davar, Beit Din is not mekabel eidut unless a witness has something to say – a whole testimony and not part of it. By issurim, Beit Din will accept the eidut of even one person. Here, 2 eidim say he stole, 2 more said he was tavach umachar. According to R. Akiva, Beit Din has to know what to do after one set of eidim – the only way you know the ganav did something wrong by killing the animal is if you have the previous testimony. Beit Din cannot accept testimony if it is dependent on previous witnesses. It is a hisaron in kabbalat eidut. As we see that this mishna is not like our mishna because in our mishna, it is a dependent testimony and therefore not meaningful to Beit Din. R. Yosi – eidim saw that a person ate from a field in year. Other sets saw him eat from a field for the next two years. According to R. Yosi, it is a valid hazaka therefore the field is his. R. Akiva disagrees since none of the testimony is complete: davar v'lo hatzi davar. Abaye – no in that case R. Akiva would agree because is 2 say that someone is a married woman and 2 say that she had biah, R. Akiva won't say she goes free. The Eidei keddushin made a full testimony that she is married. The biah testimony also stands alone and is considered a separate davar. Since the first testimony is not dependent on anything after it, then when the second eidim come, they come about this woman who has a record and are testifying about an aishet ish and have a full testimony of their own. In the case of the hazaka, each is dependent on the other and therefore Beit Din will not accept it. The mishna that we have could be according to R. Akiva since Beit Din could have accepted it. The rabbanan call a ½ davar if in a case when you want to know if a girl is a na'ara two doctors testify they saw a hair one place and another saw someplace else. Since need 2 hairs, neither testified a full testimony. If you put together both testimonies, that is ½ davar. Also, each doctor could have testified on the whole thing.

Tosafot: Limutei - Q: Why did rabbanan not say ½ davar by hazaka? Rif - only testifying that 1 ate someone's peirot and if he cannot prove that he ate his own peirot then he owes someone else money. But a trial must only be dealing with relevant testimony. In a case of shana rishona, the rabbanan hold that the witnesses made a full supportive testimony – there is nothing wrong with their service as witnesses and it becomes significant as a composite. In the case of the hairs, each one could have been a full testimony if they had been more astute.

Tuesday April 13

Ba'al Hamaor: The Raavad says that the one who says that she has one hair is a testimony of a kitana. If you are saying that the man testified irrelevantly i.e. not significant like tavach by itself without ganav. Therefore according to Raavad ½ davar is a testimony that doesn't change any facts. Ba'al Hamaor: There is a limited number of people to be involved in eidut. Therefore, you testified that there was one hair, but should have realized that 2 is more significant. That is a hisaron in the quality of the eidut.

Ramban: The hisaron of the eidut is false eidut. When you say there was one hair in one place, that implies and no place else. Therefore have 2 conflicting witnesses. By the 3 years, not a ½ davar since each one testified something. By the hairs, not a full testimony.

70b

Gemara

Stole and sold on shabbat pay 4 and 5 since he didn't do anything that makes him have a hiyyuv mita. Q: Didn't we learn that it is patur? A: That was the case were the man said take some fruit for me in payment for taking a few dates. (Where the dates would be with halipin or a down payment). In which case, when the ganav takes the fruit off of the tree is not hayyav mita. Q: What if the ganav didn't deliver the animal? Beit Din won't force the ganav to give him the animal and since at the time he pulled the fig he was hayyav mita, he has no more obligations. That being the case, it isn't a good mechira since because it has to be a successful act which is defined as being held up in court and therefore, the ganav would be patur anyway since he never sold it. A: Case: When he says "throw the genaiva from your rshut to the next" in the inevitable conclusion of the whole event – when you throw something into r'shut hayahid into r'shut harabbim the issur starts when it lands – the kinyan starts when it passes into the airspace of the r'shut therefore dealing with case where he says that he won't be koneh until it lands. A: 2) Rava – really like Rami Bar Hama who does not define mechira by its ability to be enforced. Mechira by definition means a transfer of rshut. Who says enforcement is the criteria is for determining if an act occurred?

Tosafot: B'omer - Proposes a concept concerns what was your purpose with akutz t'eina Q: If the ganav delivered the cow and is in the hatzer of the lokeach, then what is the point of taking the fruits? You need a ma'ase kinyan – want to be able to have proof that you have the cow. Proof of gemirat da'at on the parts of ganav and lokeach. The fruits is only showing but not the ma'ase kinyan itself – the hatzer is what is koneh and under those conditions why would it not be a good sale. Must be then that the cow was in the r'shut of the ganav. But how was the kinyan made? You would then have to have the pulling of the fruit be a valid kinyan. Which one? Halipin. But Halipin can't be done with fruit. There are 2 types of halipin. 1) barter system of equality and really paying shave kesef 2) symbolic – kinyan sudar. A: R. Tam - halipin for fruits only doesn't work by 1 not by 2. Ri - there wasn't a ma'ase mechira because you can't say go pay but rather a matana. But the braita said machar explicitly and must also have a hiyyuv mita.

Wednesday April 14

Tosafot: K'man – Q: According to R. Akiva if you throw with a trajectory then when it goes over the walls, it is koneh for shabbat and not for kinyan therefore no simultaneous occurrence of kinyan and mita. Only if the mehitzot are higher than the rooftop mehitzot. This geneiva will have an issur mita preceding issur mammon. Kam lei midrabba minei only if they happen simultaneously. A: There was no trajectory /\ but straight — through the mehitza and therefore both hiyyuvim occur simultaneously. Q: In gitten it is in the name of Rebbi and here in the name of R. Akiva? A: Here it says R. Akiva because dealing with a hatzer that does not have a roof because by a non roof hatzer, Rebbi does not say that the airspace is koneh.

Tosafot: L'inyan – According to rabbanan, the hiyyuv won't occur until it lands. Q: Confusing two things. One is the halacha of mita - won't happen until it lands on the ground for kinyan shabbat. This does not take into account concept called "process." Since the kinyan will happen between the akira and hanacha and akira needs the hanacha from the case of an arrow going through the garment and killing someone is also kam lei midrabba minei. If it is part of the process then it is equal at all stages of the process. A: Ri - to answer the teretz, don't want to get involved with the mahloket if the akira is like the hanacha. But yes, even according to rabbanan, that would be a valid answer but the one who asked it must not have held of it.

Rava: Why assume the mechira must be a valid mechira? Only need the ma'ase of the mechira not the kinyan of the mechira. See that if the son gave the object to his mother it still is a good kinyan even though it is not enforceable.

71a

Gemara

Stole and Sold on Yom Kippur

Q: But you get malkut with karet which is considered a little mita therefore why are you hayyav to pay 4 and 5? If you say that this is according to R. Meir then he should be hayyav for everything. A: With an exception – ganav and then gave to a shochet to shecht it. Q: But what's the hava amaina that you should be hayyav? A: Because just as you have another person involved in the mechira, you may think you can have another person involved in the tevicha. Or to include the shaliach. Here special gezeirat hakatuv that there is a shaliach for an aveira. Q: Mar Zutra - View the shaliach as an automaton. Assume that the shaliach would not do anything that would incur more debt on the ba'al more than the ba'al himself. Here, since done by a shaliach, hayyav 4 and 5. If the ba'al did it himself he would be patur because of kam lei midrabba minei. A shaliach cannot be more indebting than the ba'al himself. A: R. Ashi not that the ba'al is not hayyav but kam lei midrabba minei he is patur.

R. Tendler: But we have been saying that all along! Therefore is it that you never had the hiyyuv mammon or a halacha in Beit Din enforcing the debt. Beit Din cannot give two punishments. Therefore, R. Zeira says you payed your debt of mammon by dying so the shaliach cannot incur more monetary debt for you than you would yourself because you were never hayyav in mammon at all and R. Ashi says you still owe tashlumin, but you are not punished for it.

Thursday April 15 Parashat Tazria/Metzora

70b

Tosafot: Etnan – Q: How do we know this? – What if you give someone money to have relations with an animal instead of giving animal for relations. Maybe kam lei midrabba minei is a ma'ase in hiyuv mita, and a generic hiyyuv mita and an issur zona. Don't want any record of man's degradation (zona) on the mizbeiach. On this "ze lo yavo lbeit hashem." Dealing with a class: Etnan zona did not exclude issur mita. Who says the zona is an aishet ish? It seems that the pasuk didn't differentiate between mita. Class of zona. Bestiality was also excluded since says mechir kelev not etnan kelev. Not that the hiyyuv mita takes away from mita but takes away from arayut. Etnan kelev is included. A:

Q: Maybe since the passuk is oser etnan ... A: Ri - Can't set up hachi timtza in a pasuk, have a hiyyuv to learn according to peshat.

Tosafot: Eilu – Gemara said that mechira does not mean that there was a kinayn or a completed successful action because if she demands and he refuses to pay, Beit Din won't enforce it yet the object is still called an "etnan." Tosafot - 1) etnan is even though he has the gdi in her hatzer so her hatzer will be koneh, since the etnan deal is not enforceable, then the kinyan is not the kinyan that came from the act of relations. If the hatzer is koneh, then it is not in return for relations. The ma'ase issur must make the kinyan. If the ma'ase kinyan is not enforceable because in this case it's ba'al imo, the fact that her hatzer is koneh, then it becomes enforceable. Enforceability is not the definition of etnan or machar need the kinyan to be resulting of the act. 2) There is a moral law that you still have to pay. Ethical behavior requires you to pay even though the act should not be done.

Monday April 19

71a

Tosafot: V'ha - Q: Who says that knas and tashlumin are the same? Knas is a fine by Beit Din without a rational basis for it. Why is kam lei midrabba minei a poter from the knas as well as the tashlumin. His act led to a certain tashlumin. While he incurs the death penalty, it is irrational that he pays a monetary penalty. But knas comes from Beit Din not from his own actions. We also said that kam lei midrabba minei only applies when the acts occur simultaneously.

Gemara

R. Meir doesn't hold malkut is patur 4 and 5 because shechted by another person. Q: So why are the rabbanan mehuyyav the ganav if shechted by someone else? A: The hachamim - R. Shimon who holds that the shehita does not accomplish what it's supposed to – i.e. shehita for eating. If you can't eat it, then it isn't a real tavach. Q: But on shabbat, even if someone shechted and animal on shabbat, it is a kosher shehita A: R. Shimon holds like R. Yohanan haSandler – if it was done in shogeg, it is allowed for others after shabbat, but assur for him. If done on purpose, not allowed for anyone at all....

Q: Why would rabbanan say that he is patur 4 and 5 on a p'sul drabbanan? A: According to this person who says it's drabbanan, then he would be hayyav and rabbanan only said patur for avoda zara and shor haniskal.

71b

Kam lei midrabba minei only applies as a simultaneous action. Therefore, if you shecht on shabbat, the shehita is the mehayyev for both. Q: But according ro R. Meir, why is a shohet for avoda zara hayyav in 4 and 5 since he holds that a shehita that is not raui is still a good shehita. A: The hiyyuv does not occur at the same time – the issur of avoda zara is enough by bloodletting, shehita comes after you cut all the way through. Q: But once it's avoda zara, you change ownership since you are not shechting the animal of someone. A: You say that you are only doing the avoda zara when you finish the shehita.

Q: Whose animal is it if niskal? A: It's the ba'al's animal even though it's assur in hanaah. Case: gave animal to a shomer, and it killed a man, the ganav stole the animal and sold it. Stole a shor haniskal from a shomer. The shomer has to return it to the owner. If you have it, the shomer can no longer return it. It's a hanaah that has ba'alim.

Tuesday April 20

Tosafot: V'ha – Motzi shem ra is a knas and learn from the case of motzi shem ra that that you are lokeh and still pay. Q: Therefore, why does the gemara say not pay and get malkut? A: The reason we don't learn from motzi shem ra is that you have a contradiction between that and edim zomemim. I wanted to prove that you don't get malkut and you pay. Could bring a proof from edim zomemim. When you try to bring a proof from motzi shem ra, know that you are bringing a case from knas. Therefore, you cannot use that as a basis for a general case. From edim zomemim, can't say you are talking about knas – but mammon. Therefore, since the motzi shem ra was only on knas and edim zomemim not limited to knas, we have no proof from either.

Tosafot: B'Toveach – Q: There is another person who says that even mita doesn't patur from tashlumin, what does he do with out mishna. Gemara concludes toveach from other person such that R. Meir agrees. According to Rabba who holds that no kam lei midrabba minei, how do you learn the mishna? A: What paturs you from kam lei midrabba minei – once killed, not shayach to give another punishment. That's if you get killed. What if you did it in shogeg? There is no mita. Mahloket – if it's the punishment of Beit Din or Hashem saying "this is the punishment." And the nafka mineh is if you cannot enforce Beit Din decision. Shogeg is a hiyyuv mita – but there is no onesh.

Tosafot: Bishlama – Q: How is it possible to have a shehita for avoda zara? Whose animal would he shecht? The ganav cannot be m'aser the animal if it isn't his. A: You cannot dedicate or bow down to your animal to make it avoda zara. If you do a ma'ase to the animal then it becomes avoda zara, similar to making a shinui ma'ase to the animal to make it yours.

Tosafot: You didn't want to allow the process of shehita. If you are going to do that, then there is never a tavach umachar because as soon as he shechts a little bit, you have a shinui ma'ase, it becomes his. Avoda zara it is, shinui ma'ase it is not.

Wednesday April 21

Gemara

71b

Q: Rava - steal a shor owned by 2 people and killed it, and was modeh that he killed shimon's ox, not Reuven. Since you were modeh that you were hayyav to ½ do you say that you are patur because you only pay the full knas or that you are hayyav A: Knas is hiddush and therefore must be exact.

Q: Steal from father who dies and then kills he pays to the estate and gets some back. What if he is modeh that he stole from himself. We don't go back to the original, only to ma'ase Beit Din.

Thursday April 22 Aharei-Mot

The hiyyuv is only on the object. Since this a knas, only have hiyyuv under certain conditions, therefore maybe patur by case of dual ownership. Q: What's the question? We have case of if the father dies. He's only going to pay to one son. He's patur for ½ the tashlumin because part goes back to himself. A: Cannot bring proof from mishna because I can say that is was amad bdin. Once it's at that point, you pay because of order of the court and not because of knas.

Tosafot: Tavach – stam admitting doesn't mean anything because you can't make yourself a rasha. Therefore need eidim to come afterwards to testify on the stealing and then he'll be patur.

No amada in din, doesn't pay 4 and 5. Have hiluk where the hiyyuv is there – stole before father died but no amada in din. I could have said it differently, but this way is fine for the structure of the mishna. This was a question that Rava asked Rav Nahman. He answered him that we don't pay ½ bakar but you pay because of amada b'din. In the morning, R. Nahaman gave a different answer. The real answer is that when you steal from 2 people, He killed the animal that was entirely assur. If it's the case of when the father died, he killed ½ and animal that belonged to him. Not in the ½ tashlumin, but in ½ the issur.

Tosafot: Seifa – What about kefel? Seems that kefel you would be hayyav because since even though not amada bdin and even 4 and 5 hayyav. Who says yerusha applies to knas? Knas is not part of an estate, as it is not awarded yet.

Monday April 26

Gemara

72b

Need a shehita with heter achila. Therefore, if you shecht and it's found to be a tereifa, R. Shimon is matir from the 4 and 5.

R. Habibi – see there is no halachik concept of shehita until the end. Shehita requires rov simanim – when you move from 50% to 51%. Rov is kasher, less is neveila, that is the ma'ase shehita. What was before was preliminary. When it says tavach umachar, it refers to the last, the end, the ma'ase shehita. If shem shehita applies to each millimeter from the beginning, then the moment he cuts a little bit, he does a ma'ase shehita and therefore he would be shechting in the azara and it will be assur in achila and therefore has no ba'alut so he is not shechting the owner's animal. Q: How do you infer from here whether shehita is at the beginning or the end. Whatever you call shehita for one, I'll call shehita for the other. R. Shimon is poter because it's not a valid shehita. But if it is shehita, it is tevicha. A: Tevicha means you shecht the whole thing and here you don't have it because a little but may be a shehita. A little shehita is good for karet, a little tevicha is not. Q: So then why hayyav 4 and 5 because there is no complete tevicha? The Tana Kama should also say you are patur because not shechting the animal of the original owner. A: You did it on the border such that at the last second, you moved the animal into the azara. Some learn it in a different q and a. If you hold that it is d'oraita, then as soon as he starts it, he is hayyav on hanaah on that instance. Left out mahloket on if shehita is upon completion or not. Both cases introduce an unusual circumstance and therefore doesn't apply to either one.

Tosafot: D'i – Seems that it's drabannan. From here, we have to assume that takrovet of avoda zara is assur in hanaah. When something is assur in hanaah, don't care why, it just is. Whether it is assur drabbanan or d'oraita in hanaah is irrelevant.

72b

Mishna

Rashi – first, they edim zomemim found that the 4 and 5 were edim zomemim and then the ones who testified genaiva were edim zomemim. They testified that the person shechted someone else's animal.

Tuesday April 27

It must be that the Tana Kama holds the maaseh shehita is once you move from 50-50.1%. That segment is maaseh shehita. For if maaseh shehita happens immediately, he is guilty of shehita hulin outside of the azara which makes it assur in hanaah.

Mishna

Two witnesses testified on the ganav and the tavach. If they are found to be edim zomemim, they pay the full 4 and 5. If two say he stole, and two others say tavach umachar and both sets are edim zomemim, the first 2 pay kefel and the second set pay 3x. If just 1of the second is a zomem, the 2nd edut is batel. If one of the 1st set is zomem, the 2nd set goes away also. No eidut, and no hazama because there is no legal way to catch them because the 2nd group has no eidut at all because all they said was that the guy shechted it.

What if not a case of zomem, because reuven was with us (not the eidim – hakrasha). If it's 2 against 2, throw out the case, but someone is lying and both have a hezkat kashrut. If one of each of those sets combine to form another set later, certainly one of them is a liar. Reuven and Shimon come to testify. 2 others come in and say that they are pasul for eidut. In the second case, Reuven and Shimon are not witnesses, they are accused.

Gemara

Itmar – Mahloket Abaye: an eid zomem is nifasal retroactively. Rava: From now on. From the day he testified, he became a rasha. Rava – Ed zomem is a hiddush – why believe the second set over the first? Or some say that Rava holds like Abaye, but what would happen – the hezkat kashruts would be uprooted all over.

Wednesday April 28

Rava – No reason to believe the second set over the first, therefore we can only invalidate them from now on. And the halacha is like Abaye.

Tosafot: Ein – (10 lines from bottom) Q: What's is the hiddush that you believe the second set? If they pasul the first set that they stole, then they are no longer eidim because they are now ba'alei davar. Why then by hakrasha so we not believe the second set and we throw them both out. Beit Din wants to determine who's lying and one of the ways to do that is by 2 witnesses. Or, Beit Din could determine who is telling the truth. Say that the second set are better because of migo because he could also say the first are pasul for eidut instead of hazama. They are better off because it accomplishes the same thing without leaving the first open for hazama themselves. A: Migo is good only for a single individual. Once dealing with two witnesses, no inyan of migo because in order for Beit Din to evaluate 2 people, can't count on them to have the same initial thought and better to lie in this way. This comes up under the stress of cross examination. Can't say that the second set are better than the first set because of migo, migo doesn't substitute for the claim, it only add veracity to the claim. A second set can't bring anything else to increase their believability.

R. Tendler: Q: But what's the question of Tosafot because it should be rhetorical because you can't add on to testimony? A: The one who asked held that migo is better than 2 eidim. The issue starts off with eidut and Tosafot asks that there is also an issue of dayanut. For the dayanut aspect, migo is better since looking at the personality of the eidim is a psychological proof may be good enough. But Tosafot says that it is unreliable.

73a

Gemara

Tnan – 2 witnesses testified to genaiva and tevicha pay all 4 and 5. The assumption is that ganav tavach umachar was not instantaneous. Must be 2 separate testimonies separated by time. Have a double hazama separated in time. If you say that edim zomemim can nifsal retroactively. When they were classifying as edim zomemim on the first testimony, the second one is invalid. Why do they pay 4 and 5 because their testimony was pasul and therefore are not under ka'asher zamman. If you hold like Abaye, then that case cannot occur. A: in that case, you wouldn't charge them for the tevicha. The case here is that they testified at the same time on the genaiva and tevicha. Therefore, there was no before and after since the 1st set testified toch kdei dibbur.

Thursday April 29 Parashat Emor

72b

Tosafot: Mikan – Seems that if the shtar was not seen until after the hazama, Rava will admit that we don't check up on it – this star is pasul even though it was written before eidim came and testified that the signers were zomem. Because we don't know if the date on the shtar was forged. You don't have a date that fixes anything therefore can't testify that the shtar was before a zman. When you came to Beit Din to affirm the shtar, you can't accept the date of the shtar. This hakira allows for the date – when did it happen – since lying about the incident, could be lying about the date.

73a

Tosafot: Mishum – Some say we are only concerned with p'seida dl'kuchot when eidim testify to the validity of the case as well. Not the problem with the action, but with the edim zomemim. Then the maase is true, the claim to be witnesses is false. Try to minimize the danger that indeed all other shtarim they signed on were hired witnesses. I don't agree because why would the gemara ask mai benaihu? Since there would be a great difference between the two answers.

Tosafot: Dasidu – Says two against one, not 4 against 2 – because 2 = 100 and here. Gemara won't say 4 against 2, but 2 on 1 and 2 on one because the two come and testify against one separately. That's the hiddush of the gemara since the other eid can't support him. Or only if they are eidim do you listen to the second ones. Once eidim come in and say that the first set are ganavim, there is no hiddush because normal for 2 to invalidate 1 since no longer involved in eidut because the first set are now ba'alei davar.

Tosafot: E – You can't take away a man's hezkat kashrut because two people say so because according to Rava goes retroactively. The gemara in Sanhedrin that even if the psul is genaiva, he isn't modeh. A: If the reason is pseida, they are pasul and the shtar is pasul because a ganav is certainly pasul.

Tosafot: V'huzmu – Q: If you can't prove it was stolen, the testimony regarding the tevicha is irrelavant. A: If second set say we were all together, the first edim and the victim, have hachhasha and hazama simultaneously but they are mutually exclusive. Therefore by saying there was no genaiva doesn't take away the hazama of the tevicha since part of one story.

Monday May 3

73a

On bvat ahat. The time unit is not simultaneous. It is within the period of time in which you can reverse yourself. It is a hagaddah bvat ahat. This is not unique to eidut. The gemara asks earlier that maybe maaveh is mayim – when you flood something. Tosafot cites the the difference between when it is the initial force that kills someone or it is an aftershock. R. Feinstein – you know the difference when the amount of water that goes out during the time that the man can close the gate. An action which you can undo is like it hasn't been done yet. Therefore, bvat ahat is the time in which you can still change your mind – if you can do an undo, it's considered one unit. Therefore eidim can change their mind during "toch k'dei dibbur."

R. Yosef – it doesn't matter which ½ of the eidut was invalid, if any part is invalid, the whole testimony is invalid.

Tosafot: Sheheidu – Since the two testimonies happened at once, I cannot isolate the two parts of the testimony because since it's toch k'dei dibbur, they can still reverse themselves at that point. You don't have a partial eidut because there was no haggadah on the tevicha or on the genaiva.

One's learns retroactive psul since psul on the gavra. Now on is a psul on the eidut. If bvat ahat, he lied on everything that was pasul in that one testimony. Now on pasuls the testimony. Retroactively pasuls the person.

Tuesday May 4

Maybe the mahloket between Rava and Abaye is a mahloket tanaim – Rabbanan: if the same eidim testified on genaiva and tevicha and were found guilty of being zomemim on the tevicha, the eidim pay 3 and the ganav pays 2. R. Yosi – that only applies when there are 2 testimonies. When there is only one testimony, there is no testimony because batla miktzata batla kula.

That you won't listen and be mehayyev the accused – he goes off free because if huzmu on the genaiva, the tevicha is irrelevant. Difference is regarding the eidim paying for their own zomem. Otherwise, the second haggadah is no haggadah – it's not a maaseh of Beit Din.

What is the difference between 2 eidut and 1 eidut. If you say it means 2 sets or one set of two, then how could you have the same two people testifying on the tevicha, where did you come to knock out the eidut on the genaiva – they came in to testify more. Therefore, must mean 2 eidut in one testimony like 2 eidut. Must be one after the other and not bvat ahat because toch kdei dibbur is like one dibbur. R. Yosi – pasul retroactively since the moment they testified initially, they became pasul. The gavra became pasul – and at the moment they spoke on the tevicha, they were mutzam on the genaiva as well as the tevicha since they are established liars. Therefore, R. Yosi would hold retroactive psul. When dealing with now on – psul on the eidut and it doesn't affect the individual. Therefore according to R. Yosi, even if the zomem testimony goes on the tevicha, it still pasuls the first eidim retroactively from testifying on the genaiva.

They said no – I don't see the Rabbanan arguing with R. Yosi if toch kdei dibbur. At that time, there were eidim psulim talking. But they argue if toch kdei dibbur is one haggadah or not. Mahloket is if two unrelated incidents make it into a composite testimony or not.

Tosafot: Nimlach – Toch kdei dibbur is called "mefaresh devarav." R. Yosi said no since dvarim kayamim.

Tosafot: Kdei – According to gemara in brachot, you don't give shalom to a rebbi. But that's when you great the rebbe like your friend.

Wednesday May 5

73b