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Bava Kama 96

BAVA KAMA 96 - in honor of the Bar Mitzvah of Mordechai Lamet of Brooklyn, NY, son of Yosi and Leah Lamet. May Mordechai always grow in Torah and the fear of Hashem and bring his parents true "Yiddishe Nachas." Dedicated by Celine and Shabsy Ledereich of Har Nof, Yerushalayim.



(a) Still in connection with Rebbi Shimon, Rava say 'Gazal ve'Hishbi'ach u'Machar, Gazal ve'Hishbi'ach ve'Horish - Mah she'Hishbi'ach Machar, u'Mah she'Hishbi'ach Horish' (and the purchaser or the heir will receive a half, a third or a quarter of the Sh'vach from the owner.

(b) On the other hand, he might be speaking even not according to Rebbi Shimon - but according to the Tana of our Mishnah, in which case, the purchaser or the heir will be able to retain the entire Sh'vach, on account of Takanas ha'Shavin.

(c) In a case where the purchaser from a Ganav improved the field - Rava concludes that seeing as the Ganav would have received a percentage, the purchaser, who bought all the rights from him, receives a percentage too.

(a) Rava asked what the Din will be if a Nochri improved the ground (whether the Din of Mechtzah ... will pertain to him, too) - to which Rav Acha mi'Difti asked Ravina in surprise as to how Chazal would make a Takanah for Nochrim.

(b) He even objected when Ravina tried to establish the case when the Nochri stole the field, improved it, and then sold the field to a Jew - because, as we just learned, a purchaser adopts all the rights of the seller (and conversely, any rights that the seller did not enjoy, the purchaser will not enjoy either).

(c) Ravina finally establishes Rava's She'eilah - by a case where a Jew stole the field and sold it to a Nochri, who improved the field and sold it to another Jew.

(d) The She'eilah is - whether, since it is a Jew who stole the field and a Jew who finally has it, Chazal included him in the Takanah, or whether, because the middle man is a Nochri, the Takanah does not apply. And the outcome is 'Teiku'.

(a) We might have thought that if Reuven steals Shimon's date-palm, cuts it down and moves it to his domain, he will acquire it (and may compensate the owner with cash) - because of Shinuy (since it has changed from a live tree to a dead one.

(b) Rav Papa actually says - that he does not acquire it, because no visible change has taken place (see Tosfos DH 'de'Gazal Dikla'), and like before, it has not changed its name either.

(c) Someone who steals and cuts up ... 1. ... a date-palm into logs - he is not Koneh it (because the logs are still referred to as logs of a date-palm, in which case the Shinuy is not yet complete).

2. ... logs into beams - he is Koneh.
3. ... large beams into small ones - he is not Koneh.
4. ... beams into planks - he is Koneh.
(a) Rava says that someone who steals ...
1. ... a Lulav-branch and pulls out the leaves - is Koneh.
2. ... Lulav-leaves out of which he makes a broom - is Koneh.
3. ... a broom made of Lulav-leaves and makes a rope - he is not Koneh.
(b) The basic difference between the two previous cases is - the fact that in order to make the broom, it was necessary to split the leaves into two, in which case *the Shinuy is not reversible*, whereas if one makes a rope out of the leaves of a broom, *it is*.
(a) Rav Papa asks what the Din will be if the Teyomes splits. 'A Teyomes' - is the middle leaf of a Lulav.

(b) The She'eilah is - whether a split Lulav is Pasul, in which case, in the realm of Kinyanim, it will be considered a Shinuy (on or just before Sukos), or not.

(c) We refute the proof from Rebbi Masun Amar Rebbi Yehoshua ben Levi, who says that a Lulav whose Teyomes is removed is Pasul - by differentiating between when the Teyomes has been removed (in which case the Lulav is Chaser [lacking]), and when it is split (when it is still complete).

(d) In the second Lashon, the proof is clear-cut. There, Rebbi Masun Amar Rebbi Yehoshua ben Levi says - Nechlekah ha'Teyomes, Na'aseh K'mi she'Nitlah, u'Pasul'. Clearly then, if the Teyomes splits, the Lulav is Pasul, and if a stolen Lulav splits on or just before Sukos, the Ganav acquires it.




(a) Rav Papa rules that someone who steals ...
1. ... dust and makes bricks out of them - is not Koneh, because a brick can easily be ground into dust; whereas someone who steals a brick and grinds it into dust is Koneh, because even if he were to manufacture a new brick, each individual brick is different.
2. ... a piece of silver and mints it into a coin - he is not Koneh, whereas someone who steals a coin and grinds it into silver is Koneh, because even if he were to re-mint the silver, each individual coin, like each individual brick, is different.
(b) Even though Rav Papa rules that someone who steals old clothes and bleaches them white, he is not Koneh them because they can easily be sullied again, nevertheless, in the reverse case, he is - because even if he bleaches them again, they will never be quite the same as new.
(a) We learned in our Mishnah 'Zeh ha'K'lal, Kol ha'Gazlanim Meshalmin ke'Sha'as ha'Gezeilah'. This come to include what Rebbi Ila'a said - 'Ganav T'leh ve'Na'aseh Ayil, Eigel, ve'Na'aseh Shor, Na'aseh Shinuy be'Yado, ve'Kan'o'.

(b) The immediate ramifications of this ruling (besides the fact that he is not obligated to return the animal) are - that should the Ganav then Shecht or sell the animal, he will be Patur from Daled ve'Hey, since he will have Shechted his own animal.

(c) When the case where Reuven stole a pair of oxen and plowed with them and sowed with them before returning them to Shimon came before Rav Nachman - he obligated Shimon to pay the Sh'vach (the amount that the oxen had improved because they had plowed Reuven's field).

(a) When Rava asked Rav Nachman 'Turi Ashbach, Ar'a Lo Ashbach', he meant to ask - why Rav Nachman had charged Reuven for the full Sh'vach, when surely, the land itself was partially responsible for the improvement ...

(b) ... to which Rav Nachman replied - that what he meant was that Shimon should pay half the Sh'vach (not all of it).

(c) Rav Huna said - that when Rav Nachman sat in judgment, he was like Shavur Malka (by whom he meant Shmuel, who was an expert in money-matters).

(d) When Rava then queried Rav Nachman from 'Kol ha'Gazlanim Meshalmin ke'Sha'as ha'Gezeilah', in which case, Reuven ought to have taken all the Sh'vach (as he had originally insinuated, he replied - that Reuven was an established Ganav, and he therefore saw fit to fine him.

(a) We have already discussed the Machlokes between Rebbi Meir and the Chachamim with regard to 'Gazal Beheimah ve'Hizkiynah, Avadim ve'Hizkiynu'. The Chachamim rule in both cases 'Meshalem ke'Sha'as ha'Gezeilah'. Rebbi Meir ...
1. ... agrees with the Rabbanan in the case of Beheimah - because he agrees that 'Shinuy Koneh'.
2. ... argues with them in the case of Avadim - because he holds that Avadim are compared to Karka in this regard.
(b) The Tana rules in the case of ...
1. ... 'Gazal Matbei'a ve'Nisdak, Peyros ve'Hirkivu, Yayin ve'Hichmitz - Meshalem ke'Sha'as ha'Gezeilah'.
2. ... 'Gazal Matbei'a ve'Nifsal, Terumah ve'Nitma'as, Chametz ve'Avar Alav ha'Pesach' - Omer Lo, Harei she'Lecha Lefanecha'.
(c) The basis for the difference between the two rulings is - that the depreciation in the first list is discernible (either by sight, by smell, or by taste), whereas the depreciation in the second list is not.

(d) If the animal which the Ganav stole is then used for sinful purposes, became disqualified from the Mizbe'ach or if it was actually being taken out to be stoned - the Ganav can say to the owner 'Harei she'Lecha Lefanecha', because the change is not discernible.

(a) Rav Papa interprets 'Hizkiynah' in our Mishnah to be 'La'av Dafka'. The Tana is also referring to 'Kachshah'. The reason that the Tana says 'Hizkiynah' is - to teach us that 'Hakchashah', like 'Hizkiynah', must be irreversible.

(b) When Mar Keshisha B'rei de'Rav Chisda quoted Rebbi Yochanan as saying that if the Ganav stole a lamb and it grew into a sheep ... he acquires it, Rav Ashi commented - that he had already instructed Mar Keshisha not to confuse names, and that he should have quoted Rebbi Ila'a, and not Rebbi Yochanan.

(c) Rav ruled like Rebbi Meir in our Mishnah, even though he is a minority opinion - because that is the opinion of the Rabbanan in a Beraisa.

(d) We ask why he opted to switch the opinions of the Mishnah on account of the Beraisa, and not vice-versa, and we give two answers, one of them, that he actually learned the opinions in our Mishnah the other way round too. The second answer is - that although he would not have switched the opinions in the Mishnah in face of one Beraisa, he switched them because he actually had two Beraisos that quote Rebbi as saying that Avadim are like Metaltelin and that the Ganav acquires them.

(a) The Tana in the Beraisa says 'ha'Mocher Shifchah', but 'ha'Machlif Parah ba'Chamor'. He does not say ...
1. ... 'ha'Mocher Parah' - because, unlike a Shifchah, one cannot acquire a cow with money.
2. ... 'ha'Moshech Parah' - because once he makes a Kinyan on the actual cow itself (i.e. in the presence of the cow), there is no room for doubt as to in whose domain the baby was born.
(b) In a case where the cow or the Shifchah gave birth, and the original owner of the cow or of the Shifchah claim that the baby was born whilst the mother was still in his domain, whereas the recipient doesn't know, he rules - that the original owner is believed ...

(c) ... due to the principle 'Bari ve'Shema, Bari Adif' (if one of the litigants does not know, we believe the one who does [see also Tosfos DH 've'Halah Shosek']).

(d) In a case where both litigants don't know when the baby was born - they divide it.

(a) If each litigant claims that the baby was born in his domain, *the seller* of the Shifchah must swear that it is as he says - because, in his capacity as the original owner, *he* is considered the defendant, and we learn from the Pasuk "ve'Lakach Be'alim ve'Lo Yeshalem" that it is always the defendant who swears.

(b) What makes this a Shevu'ah d'Oraysa is - the fact that the defendant admits to part of the claim (i.e. the Shifchah).

(c) If the defendant offers to pay the article that he admits he owes intact, this is known as 'Heilech' and he is Patur from a Shevu'ah. Nevertheless, despite the fact that the seller offers to give the purchaser the Shifchah, this is it not a case of Heilech - because it speaks when he broke the Shifchah's arm (in which case she is not intact).

(d) This is the opinion of Rebbi Meir. According to the Chachamim - a Shifchah is considered Karka, and one does not swear on Karka.

13) Even though Rebbi Yochanan also switched the opinions of Rebbi Meir and the Rabbanan in our Mishnah, he nevertheless said 'Halachah ke'Rebbi Meir' - because he was referring to those who had our version of the text.

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