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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 111



(a) Rebbi Yehudah states in the Beraisa 'Nasan Asham li'Yehoyariv, ve Kesef Li'Yedayah, Yachzir Kesef Eitzel Asham'. The Chachamim say - 'Yachzir Asham Eitzel Kesef'.

(b) The Beraisa cannot be speaking when the Gazlan gave the Asham to Yehoyariv during their Mishmar and the money to Yeda'ayah during their Mishmar - because then each one would acquire what he has (and admittedly, the Rabbanan would penalize Yehoyariv, as we learned in our Mishnah, but there would be no reason for Rebbi Yehudah to penalize Yedayah).

(c) Rava therefore establishes the Beraisa when he gave both during the Mishmar of Yehoyariv. If the Chachamim's reason is because Yehohariv should not have accepted the Asham before the Gazlan had returned the money (as we learned in our Mishnah in a case where he gave the money to Yedayah during their Mishmar), Rebbi Yehudah's reason is - because Yedayah should not have accepted the money outside the time of their Mishmar.

(a) Rebbi in a Beraisa states that if, in the above case, Yehoyariv atually brought the Asham before Yedayah returned the money to them - then the Gazlan is obligated to bring a second Asham which he gives to Yedayah, and Yehoyariv may keep the Asham that they have.

(b) When Rebbi says that Yehoyariv may keep the Asham that they have - he is referring to the skin.

(c) Rebbi Yehudah says 'Yachzir Kesef Eitzel Asham' - if Yehoyariv claimed the money. Rebbi speaks when they did not. His Chidush is that seeing as they did not claim it, they have been Mochel.

(a) In a second Beraisa, Rebbi states that, according to Rebbi Yehudah, if the Asham is still alive, 'Yachzir Asham Eitzel Kesef' (meaning that Yehoyariv must give the Asham to Yehoyada to bring. When Rebbi Yehudah said 'Yachzir Kesef Eitzel Asham' - that was Lechatchilah, meaning that Yehohariv is entitled to claim the money from Yedayah. Rebbi however, is speaking when they had failed to do so by the time their Mishmar ended, a sign that they were Mochel the money.

(b) In yet another Beraisa, Rebbi states that, according to Rebbi Yehudah, if the Asham is still alive, 'Yachzir Kesef Eitzel Asham'. That is not what Rebbi Yehudah said - because Rebbi Yehudah is speaking when Yehoyariv claimed the money during the duration of their Mishmar (as we just explained); whereas Rebbi is speaking when neither they claimed the money from Yedayah, nor did Yedayah claim the Asham from them during the duration of their Mishmar.

(c) Rebbi is coming to teach us - that we do not say now that both Mishmaros were Mochel, and that each one keeps what it has, but that, seeing as Yedayah did not claim the Asham either, the Din reverts to the original ruling, and Yedayah must give the money to Yehoyariv ...

(d) ... who will bring the Asham - when their turn comes round next.

(a) Rava learns from the Pasuk "ha'Asham ha'Mushav la'Hashem la'Kohen, mi'L'vad Eil ha'Kipurim Asher Yechaper Bo Alav" - that a Gazlan must first return what he stole, and only then bring his Asham.

(b) Assuming that Rava learns this from "mi'L'vad Eil ha'Kipurim"' which, he maintains, implies that the Asham comes later, this poses a Kashya on the Pasuk "mi'L'vad Olas ha'Boker Asher le'Olas ha'Tamid", which is written immediately after the Korban Musaf - yet we know that it is the Tamid which precedes the Musaf, and not vice-versa?

(c) In fact, it is Rava himself who Darshens from the word "ve'Arach Alehah *ha'Olah*" (written in Vayikra, in connection with the Korban Tamid) - that the Olas Tamid comes before all other Korbanos.

(d) Rava really learns that the Gazlan must return the Gezel ha'Ger before bringing the Asham - from the words "Asher Yechaper Bo Alav", which by virtue of the future tense, implies that at the time that he brings the money, he has not yet brought his Korban.

(a) The Torah writes in Vayikra, in connection with Me'ilah (the misappropriation of Hekdesh) "ve'ha'Kohen Yechaper Alav be'Eil ha'Asham ve'Nislach Lo". "ha'Asham refer to" - the Keren.

(b) Consequently, the Beraisa learns from ...

1. ... "be'Eil ha'Asham ve'Nislach Lo" - that someone who is Mo'el does not attain forgiveness until he both pays the Keren (that he used of Hekdesh) and brings his Korban (Asham Me'ilos).
2. ... the order of the words "be'Eil ha'Asham" (implying that he had already paid the money when he brought the Asham) - that he must pay the money first and bring his Korban afterwards.
(c) The Chomesh is not Me'akev, too - since the Torah only mentions the Keren and the Asham (in connection with the Mechilah).
6) The Tana concludes that we learn Hekdesh from Hedyot (the Parshah of Me'ilah from that of Gezel ha'Ger), and vice-versa. We learn ...
1. ... by Hekdesh from Hedyot - that "Asham" refers to the Keren (as we learned earlier in the Sugya).
2. ... by Hedyot from Hekdesh - that the Chomesh is not Me'akev (as we just saw).
***** Hadran Alach ha'Gozel Eitzim *****



***** Perek ha'Gozel u'Ma'achil *****


(a) Our Mishnah exempts the heirs of a Gazlan who fed them or left them what he stole. The Tana concedes however, that they will be Chayav - if it was a 'Davar she'Yesh Bo Acharayus'.

(b) Rav Chisda states that if someone eats what a Gazlan stole before the owner has been Meya'esh - then the owner has the right to claim from whichever one he chooses.

(c) The reason for this is - because before Yi'ush, the object remains in the owner's domain. Consequently, the moment the second person ate it, he too, stole it.

(d) Rav Chisda therefore establishes our Mishnah, which exempts the heirs who ate what their father left them from paying - after Yi'ush (because they are then Koneh it with Yi'ush and Shinuy Reshus).

(a) Rami bar Chama extrapolates from the previous statement of Rav Chisda (from the fact that the heirs acquire the object with Yi'ush and Shinuy Reshus) - that 'Reshus Yoresh ki'Reshus Loke'ach Dami' (an heir is considered a third person [just like a purchaser] with regard to Shinuy Reshus).

(b) We are clearly assuming that Yi'ush alone is not Koneh. This must be what the Tana of our Mishnah holds - because otherwise, the Tana would have exempted the Gazlan himself from paying.

(a) Rava interprets our Mishnah differently. According to him, the heirs are Patur from paying (even if we were to hold like Rav Chisda's basic Halachah) - because he holds 'Reshus Yoresh La'av Loke'ach Dame' (an heir is not considered a third person with regard to Shinuy Reshus).

(b) The heirs can only be Patur, according to Rava, if they ate the stolen object after their father's death. If the object was still available - they would be obligated to return it, seeing as they did not acquire it.

(c) Our Mishnah concludes 've'Im Hayah Davar she'Yesh Bo Acharayus, Chayavin Le'shalem', which we currently interpret to mean - that they are obligated to pay if the stolen object is something that is easily recognizable as being the owner's.

(d) In that case, it seems that the Reisha speaks when the stolen object is still available (but is not one that is easily recognizable [a Kashya on Rava]). Rava therefore fuses the middle section of the Mishnah ('ve'Hini'ach Lifneihem') with the Seifa, which he now amends to read 'Im Hini'ach Lahem Avihem Acharayos Nechasim, Chayavin Le'shalem'.

(a) We ask on this however, from a statement of Rebbi, who explained to Rebbi Shimon his son - that 'Davar she'Yesh Bo Acharayus' does not mean Karka (like Rava just explained) but an object that is easily recognizable as belonging to the original owner (as we explained earlier), such as a cow with which he plows, or a laden donkey with which he travels.

(b) In response, Rava said that when he dies, Rebbi Oshaya will come out to greet him. He said that - because he establishes the Mishnah like him rather than like Rebbi.

(c) Rebbi Oshaya interprets ...

1. ... 'Hini'ach Lahem Avihem, Peturim mi'Le'shalem' to read - 'Gezeilah Kayemes, Chayavin Le'shalem, Ein Gezeilah Kayemes, Peturin'.
2. ... 've'Im Hayah Davar she'Yesh Bo Acharayus, Chayavin Le'shalem' to read - 'Im Hini'ach Lahem Avihem Acharayos Nechasim, Chayavin Le'shalem' (as we just explained according to Rava).
(a) We just established our Mishnah according to Rebbi Oshaya to read 'Gezeilah Kayemes, Chayavin Le'shalem. Ein Gezeilah Kayemes, Peturin'.
1. Rav Chisda, who learned earlier that the third person (who ate the object) is Chayav - will establish 'Ein Gezeilah Kayemes, Peturin' after Yi'ush (whereas he speaks before Yi'ush).
2. Rami bar Chama, who holds 'Reshus Yoresh ki'Reshus Loke'ach Dami' - will establish 'Gezeilah Kayemes, Chayavin Le'shalem' before Yi'ush.
(b) We have proved from here - that Rami bar Chama (who holds 'Reshus Yoresh ki'Reshus Loke'ach') does not hold like Rav Chisda.

(c) The Gazlan's heirs are not Koneh the Gezeilah anyway, according to Rami bar Chama, because of Shinuy Reshus - because Shinuy Reshus is not Koneh without Yi'ush.

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