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Bava Kama 69



(a) In a Mishnah in Ma'aser Sheini, the Tana describes how they used to mark different areas with different markings to warn different people to keep away. They would mark ...
1. ... a Kerem Reva'i by surrounding it with clods of earth - because just as one could derive benefit from a clod of earth, so too, was one permitted to derive benefit from a Kerem Revai (by redeeming the fruit).
2. ... a Kerem of Orlah by surrounding it with broken pieces of tiles - because the latter, like the former, was not subject to benefit.
3. ... a grave by surrounding it with lime - because the white lime was reminiscent of the dead bones.
(b) Before applying the lime - they would add water, to increase its whiteness.

(c) Raban Shimon ben Gamliel restricts these practices to the Sh'mitah year - when people were permitted to enter the fields and the vineyards to take fruit, but not to other years, where entry into private fields was forbidden, and those people who did enter and help themselves were Resha'im who did not deserve assistance to prevent them from sinning.

(d) The Tzenu'in - used to put down a sum of money and declare that whatever had already been picked was redeemed on that money.

(a) This S'tam Mishnah poses a Kashya on Rebbi Yochanan - because in his opinion, one cannot declare Hekdesh an article that is not in one's jurisdiction. Therefore, bearing in mind that Rebbi Yochanan always follows the opinion of a S'tam Mishnah, the owner should not be able to redeem Revai fruits which are currently in the Ganav's jurisdiction.

(b) We refute the answer that the author of the Mishnah is Raban Shimon ben Gamliel (in which case it is no longer a S'tam Mishnah but a minority opinion) - because even if it is, Rebbi Yochanan tends to follow the opinion of Raban Shimon ben Gamliel, when it appears in a Mishnah.

(c) In fact, only three cases in the whole of Shas is the Halachah not like Raban Shimon ben Gamliel ('Arev', 'Tzidon' and 'Re'ayah Acheronah').

(d) Initially, in order to accommodate Rebbi Yochanan, we amend the Mishnah - from 'Kol ha'Nilkat' to 'Kol ha'Mislaket' (which means that the owner is declaring whatever is going to be picked redeemed on the designated money, in which case the fruit *is* still in his juristiction (See Tosfos DH 'Eima').

(a) According to Rebbi Yehudah in a Beraisa, the owner would declare Hefker each morning 'Kol she'Yilketu' (all Leket that the poor would collect in the course of the day). This was necessary - because, even though all Leket is Hefker anyway, that only pertains to *two* grains that the man collects finds. Three is not Hefker, and it is to prevent a poor man, who unwittingly picked up three grains together (or even one of three), that the owner would declare them Hefker. The sin of course, is that believing the grains to be Hefker, he would eat them without Ma'asering them.

(b) According to Rebbi Dosa, the owner would say (not 'Kol she'Yilketu' each morning, but) 'Kol ha'Nilkat' in the evening (pertaining to whatever the poor had already picked that day).

(c) Rebbi Yochanan said that the Tzenu'in and Rebbi Dosa were of the same thing ('Kol ha'Nilkat'), refuting our amendment of the Mishnah in Ma'aser Sheini (which changed 'Kol ha'Nilkat' to 'Kol ha'Mislaket').

(d) We answer that the Beraisa too, needs to be amended, and that we must switch the opinions of Rebbi Dosa and Rebbi Yehudah (in which case Rebbi Dosa and the Tzenu'in both hold 'Kol she'Yilketu' [which is the equivalent of 'Kol ha'Mislaket']). We query this answer however, on the grounds that - in that case, why do we not rather amend Rebbi Yochanan's statement to read that 'the Tzenu'in and Rebbi Yehudah (and not Rebbi Dosa) say one and the same thing (rather than emend two Beraisos)?

(a) We reply that in any event we are forced to switch the opinions of Rebbi Yehudah and Rebbi Dosa, because the stated opinion of Rebbi Yehudah with regard to 'Bereirah' creates a problem with another statement of his in another Beraisa. If, as we initially quoted him, Rebbi Yehudah holds 'Kol she'Yilketu', then he automatically holds 'Yesh Bereirah'.

(b) Rebbi Meir holds that if someone buys wine from a Kuti late on Friday afternoon, he declares Terumah, Ma'aser and Ma'aser Sheini in advance of the actual separation. Sure it will be a matter of Bereirah when he later separates them - but Rebbi Meir holds 'Yesh Bereirah'.

(c) The owner separates from a hundred Lugin of wine ...

1. ... two Lugin for Terumah ...
2. ... ten Lugin (in reality, 9.8 will suffice) for Ma'aser Rishon ...
3. ... and nine, for Ma'aser Sheini.
(d) Rebbi Yehudah, Rebbi Yossi and Rebbi Shimon - forbid him to do this, because we currently believe, they hold 'Ein Bereirah'.



(a) We may have now resolved Rebbi Yehudah's statements, concluding that he holds 'Ein Bereirah'. But we are still faced with a contradiction in Rebbi Yochanan (in whose opinion both the Tzenu'in and Rebbi Dosa hold 'Yesh Bereirah') because Rav Asi says in his name - that if brothers divide their deceased father's property, they are like purchasers from one another (since he holds 'Ein Bereirah'), and the property must be redistributed in the Yovel.

(b) We finally conclude - that Rebbi Yochanan holds 'Kol ha'Mislaket' ...

(c) ... despite the Tzenu'in who hold 'Kol ha'Nilkat - because Rebbi Yochanan has the support of none other than our Mishnah (as we shall now see).

(a) Rebbi Yochanan extrapolates from our Mishnah 'Ein ha'Gonev Achar ha'Ganav Meshalem Tashlumei Kefel' that the owner cannot declare Hekdesh an article over which he has no jurisdiction (i.e. he is not currently considered the owner) - from the fact that otherwise, granted he is exempt from paying Kefel to *the Ganav* (due to the Pasuk "ve'Gunav mi'Beis ha'Ish"), but why is he Patur from paying the owner?

(b) We reconcile Rebbi Yehudah (whose initial statement of 'Kol she'Yilketu' we have reinstated) with his opinion in the Beraisa in D'mai, where he forbids the owner to declare Ma'aser on Erev Shabbos and to Ma'aser it after he has drunk it (not because he holds 'Ein Bereirah', as we thought until now, but) - because of a decree in case the jar which contains the Tevel, breaks before he has managed to Ma'aser the contents, in which case all those who drank from the wine will have drunk Tevel retroactively.

(c) Rebbi Yochanan extrapolate the opinion of our S'tam Mishnah (rather than the S'tam Mishnah of Tzenu'in) from the Pasuk "ve'Ish Ki Yakdish es Beiso Kodesh" - 'Mah Beiso bi'Reshuso' (because of the principle 'Karka Einah Nigzeles'), Af Kol bi'Reshuso' (preculding the possibility of declaring Hekdesh, Metaltelin over which he has no jurisdiction).

(a) Abaye points out that had Rebbi Yochanan not equated the opinion of the Tzenu'in with that of Rebbi Dosa, he would have said that Rebbi Dosa (who talks about the poor collecting Leket), disagrees with the Tzenu'in (who talk about a Ganav picking fruit from a Kerem Revai) - because it is one thing to make a Takanah on behalf of poor people who inadvertently collect what they are not entitled to, but quite another, to make one on behalf of thieves.

(b) The Tzenu'in, on the other hand, agree wholeheartedly with Rebbi Dosa - because if they hold that Chazal made a Takanah on behalf of thieves, then they certainly made one for the poor.

(a) In similar style, Rava points out that, were it not for Rebbi Yochanan's statement, he would have established the Tzenu'in like Rebbi Meir, who holds 'Ma'aser Mamon Gavohah Hu'. And we subsequently learn from the Pasuk "ve'Im Yig'al Ish mi'Ma'asro" - that even though the Ma'aser belongs to Hekdesh and not to the owner, the Torah considers him the owner (by differentiating between him and someone else who comes to redeem it).

(b) Rava then connects the Tzenu'in with Rebbi Meir via the Pasuk (in connection with Neta Revai) "Kodesh Hilulim", by means of the 'Gezeirah-Shavah' "Kodesh" and "ve'Chol Ma'aser ha'Aretz ... *Kodesh*", to teach us that Neta Revai, like Ma'aser Sheini, is considered the owner's, even though it is not under his jurisdiction.

(c) The Tzenu'in would then hold - that in the case of Rebbi Dosa (who says 'Kol ha'Nilkat ... '), the owner would not have the power to declare his crops Hefker, once they have been picked.

(d) Rebbi Yochanan therefore informs us that this is not so, but that 'Tzenu'in ve'Rebbi Dosa Amru Davar Echad', because these Tana'im hold that one never needs one's articles to be in one's jurisdiction to be considered the owner. Consequently, it even extends to declaring Hefker the Leket which the poor had already collected, too (provided the owner has not despaired from retrieving it).

9) And in similar style again, Ravina states that, if not for Rebbi Yochanan, he would have established the author of the Beraisa of Tzenu'in as Rebbi Dosa. What he would have gained by doing so is - that the Mishnah of Tzenu'in would no longer be a S'tam Mishnah, but an individual opinion, in which case the original Kashya we asked on Rebbi Yochanan would fall away.

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