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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 114

BAVA KAMA 114 (3 Kislev) - has been dedicated by Family Posen of Jerusalem & London to honor the Yahrzeit of their father, Reb Moshe ben Yehoshua (Frank) Posen Z"L, who completed Shas learning Dafyomi. He insisted on continuing with his Kevi'us until his very last day.



(a) When Rava says 'de'Salkin le'Eila u'de'Nachsin le'Tata' - he means that those who are going from Bavel to Eretz Yisrael and vice-versa should all listen to what he is about to say.

(b) Rava prohibits a Jew from testifying in a Nochri court- because they extract money through only one witness.

(c) He permits it however - in the high court, where they obligate a Shevu'ah when there is only one witness (just like a Beis-Din does),

(d) Rav Ashi asked about a distinguished witness whose testimony even the Nochri high-courts accept like that of two witnesses. Nevertheless, he might be permitted to testify even against a fellow Jew - on the grounds that, due to his importance, he cannot really get out of testifying.

(a) Diyna de'bar Metzra - is the prohibition for Reuven to sell property bordering Shimon's, to Levi, without first offering it to Shimon.

(b) Diyna de'bar Metzra does not apply in any way to the property of a Nochri - so that Levi may purchase from a Nochri land bordering Shimon's, and Reuven may sell a Nochri land bordering Shimon's field without first offering it to Shimon.

(c) Rav Ashi declares a Cherem on anyone who sells a Nochri a field next to that of a Yisrael - because the Yisrael can accuse him of placing a lion on his borders.

(d) The purpose of the Cherem is - to force the seller to offer to compensate the Yisrael for all losses caused by his Nochri neighbor.

(a) The Tana of our Mishnah permits someone to accept a donkey or a garment from a tax-collector in exchange for the one that he took - on the grounds that the owner has probably been Meya'esh (in which case the recipient acquires the article with Yi'ush and Shinuy Reshus).

(b) Our Mishnah says that if someone saves something ...

1. ... from the river, from a troop of soldiers or from a band of robbers - he may keep them, provided the owner was Meya'esh.
2. ... from a swarm of bees - he may keep them, under the same condition.
(c) The Tana permits a woman or a child to testify - from where the swarm of bees flew before settling on the neighbor's branch (to corroborate the owner's claim).

(d) The Tana permits entering a neighbor's field to retrieve his swarm of bees that settled on a branch of his tree, and he is obligated to pay for all damages. The Tana Kama - forbids cutting off the branch of the tree on which his bees have settled, to avoid taking them one by one; Rebbi Yishmael B'no shel Rebbi Yochanan ben Berokah permits it (provided he pays for the branch).

(a) The Tana of the Beraisa obligates someone who received a donkey or a garment from the tax-collector in exchange for his own to return it to its original owner - because he holds that Yi'ush (together with Shinuy Reshus - see Shitah Mekubetses quoting the Rashba) is not Koneh.

(b) Others say - that in reality, he acquires the object, but it is Midas Chasidus to return it, since he received it be'Isur.

(c) Rav Asi establishes our Mishnah, which holds that the owner of the donkey ... is Meya'esh, by a Mo'ches Nochri, but not by a Mo'ches Yisrael - because he thinks that tomorrow, he will take the Jew to Beis-Din ad retrieve his donkey or garment.

(d) Rav Yosef says the opposite. According to him - it is by a Mo'ches Yisrael that he is Meya'esh, because Beis-Din only ask the defendant to pay, but do not use force (alternatively, they will not even obligate him to pay without hard evidence), whereas a Nochri court will force him to return his donkey by hook or by crook (even if the evidence is not foolproof).

(a) So Rav Yosef switches Rav Asi's inverted comment to the Seifa, which reads 'ha'Matzil min ... ha'Gayas O min ha'Listim, Im Nisya'ashu ha'Ba'alim, Harei Eilu she'Lo', implying - that S'tam, the owner is not Meya'esh.

(b) He now qualifies this - by confining it to a Listim Nochri, because the owner expects to retrieve his animal, but in the case of a Listim Yisrael, he is Meya'esh S'tam, because of the softer methods employed by Beis-Din (as we just explained).

(a) When the Tana in the Mishnah in Keilim says 'Oros shel Ba'al ha'Bayis Machshavah Metam'asan' - he means that as soon as the owner of the completed skins decides to use the skins as a table, say (which requires no more work), they are subject to Tum'ah.

(b) This is not the case with regard to the skins of a tanner - because even if he himself intends to use the skins for a specific purpose, whoever purchases them from him might decide to use them to make shoes for example (which still need to be cut), and unfinished materials are not subject to Tum'ah.

(c) The same factual distinction exists between skins of a Gazlan and those of a Ganav. The Tana Kama rules 'Machshavah Metam'asan' by those of a Ganav, but not by those of a Gazlan - because in the case of the former, the owner, not knowing from whom to claim, is Meya'esh, whereas the latter, whom he knows, he intends to take to Beis-Din.

(d) Rebbi Shimon says - the opposite, because (the owner thinks) seeing that the Gazlan won the first round face to face, he will probably win the second round, too, whereas the Ganav, whom he does not know, he intends to find and take to Beis-Din.

(a) Ula establishes the Machlokes between Rebbi Shimon and the Tana Kama by S'tam. If the owner was specifically heard being Meya'esh Ula holds - 'Yi'ush K'di Koneh'.

(b) Rabah says - that even then, the Tana'im argue whether that Yi'ush is genuine or not.

(c) Abaye proves Ula right from our Mishnah 'Natlu Listim es Kesuso ... Mipnei she'ha'Ba'alim Misya'ashim Meihen' - implying S'tam, but that if the owner was actually heard being Meya'esh, it would be considered Yi'ush.

(d) Rabah amends the Mishnah to read - 'L'fi she'Ein Yi'ush Ba'alim'.

(a) In view of the Machlokes between Rebbi Shimon and the Rabanan, the problem with our Mishnah, which presents the two cases of Muchsin and of a Listim who took one's donkey ... and concludes 'Mipnei she'ha'Ba'alim Misya'ashin Meihen' is - that, seeing as a Mo'ches is definitely a Gazlan, we assume a Listim to be a Ganav, in which case, the Tana does not differentiate between a Ganav and a Gazlan regarding Yi'ush (conforming neither with the opinion of Rebbi Shimon nor with that of the Rabbanan)?

(b) Ula will establish the Mishnah by 'Yadu'a', where we heard the owner being Meya'esh (and where both Tana'im agree). Rabah (who makes no distinction between S'tam and Yadu'a) - explains Listim to mean an armed robber, who is a Gazlan, and establishes the Mishnah like Rebbi Shimon.

(c) In fact, according to Rabah, there is no basic difference between a Mo'ches and a Listim - only the Tana decided to list two different kinds of Gazlan.

(d) Ula and Rabah establish the Beraisa 'ha'Ganav, ve'ha'Gazlan ve'ha'Anas Hekdeishan Hekdesh ... ' in the same way as they just established our Mishnah, each one according to his way of thinking. The difference between a Gazlan and an Anas is - that the latter pays for the article that he 'robs', whereas the former of course, does not.




(a) Ula and Rabah just established the Beraisa 'ha'Ganav, ve'ha'Gazlan ve'ha'Anas Hekdeishan Hekdesh ... ' in the same way as they established our Mishnah, each one according to his way of thinking. Alternatively, we establish the Beraisa like Rebbi. When Rebbi says 'Ganav ke'Gazlan', he means - that the owner is Meya'esh by both a Ganav and a Gazlan, like the Gazlan of Rebbi Shimon.

(b) He must be referring to the Gazlan of Rebbi Shimon, and not to the Gazlan of the Rabbanan - because then Rebbi would be saying that a Gazlan like a Ganav, does not acquire the object, because there is no Yi'ush. In that case, why would the recipient be permitted to accept the donkey ... from the Muchsin?

(c) We have already cited Rebbi, who told his son Rebbi Shimon, that when the Tana (in connection with ha'Gozel u'Ma'achil es Banav') says 've'Im Hayah Davar she'Yesh Bo Acharayus, Chayavin Le'shalem', he means something that is easily recognizable. The heirs are therefore obligated to return the object - because of Kavod Avihen (to prevent a situation occurring, where people see the object and accuse their father of being a Ganav).

(d) We prove from here - that Rebbi must be referring to the Gazlan of Rebbi Shimon, because if he meant the Gazlan of the Rabbanan, who hold that the owner is not Meya'esh, then the heirs would be obligated to return any object that their father stole, even without the reason of 'Kavod Avihen'.

(a) Despite having taught us that someone who saves an object from a river or from robbers may keep it provided the owner is Meya'esh, the Tana nevertheless needs to add 've'Chein Nechil shel Devorim'. Otherwise. we might have thought that, based on the fact that the Kinyan on bees (like that on doves) is only mi'de'Rabbanan, we will automatically assume the owner to have been Meya'esh, even if we did not hear him doing so.

(b) Our Mishnah believes the testimony of a woman or a child, who corroborate the owner's claim that the bees that have settled on the neighbor's branch are his. Seeing as normally, the testimony of a woman or a child is not accepted, Rav Yehudah Amar Shmuel establishes the case when a. the owner was seen running after his bees, which already lends credence to his claim, and b. when the woman and the child do not actually testify in Beis-Din, but express the evidence in innocent speech ('Masi'ach L'fi Tumo').

(c) Rav Ashi has stated that 'Mesi'ach L'fi Tumo is only acceptable with regard to the testimony of a woman whose husband died'. He reconcile his statement with Rav Yehudah Amar Shmuel - by confining his own statement to cases of d'Oraysa, whereas the case of the bees is only de'Rabbanan (as we already explained).

(d) A possible case of 'Masi'ach L'fi Tumo' of a child by Eidus Ishah - is if one child told another of how he attended the burial of such and such a person (who happens to be the husband of the woman who is waiting for news about her husband).

(a) Rav Yehudah Amar Shmuel relates the story of a man who recalled how, as a small child, he would ride on his father's shoulders. He remembered how once, when he came out of school - they removed his clothes and Toveled him in the Mikvah, and how after nightfall, he ate Terumah.

(b) Rebbi Chanina added - that his friends kept their distance from him and referred to him as 'Yochanan Ochel Chalos'.

(c) Nevertheless, Rav Ashi is perfectly justified in restricting Masi'ach L'fi Tumo to cases that are mi'de'Rabbanan - because this case too, is speaking about Terumah mi'de'Rabbanan (such as Terumah nowadays, according to those who hold 'Kedushah Sheniyah Lo Kidshah le'Asid La'vo'.

(a) Rav Acha from Carthage told the story of Rebbi Yehoshua ben Levi or Rebbi, who permitted a captured woman to return to her husband who was a Kohen, on the basis of her young son - who testified, 'Masia'ch L'fi Tumo', that he constantly kept an eye on his mother, even when he went to draw or chop wood (and it is from his testimony, that we extrapolate that she was not abused by her captors).

(b) We reconcile Rav Ashi with Rebbi, who permitted the boy's mother to return to her husband, who was a Kohen - by applying the principle 'bi'Shevuyah Heikilu', which automatically sets the Din of a captured woman apart from other cases of d'Oraysa (due to the fact that the initial Chumra, based on the Isur of Zonah, is no more than a Safek).

(c) Rebbi Yishmael B'no shel Rebbi Yochanan ben Berokah in our Mishnah even permits Shimon, the owner of the bees, to cut off the branch of Reuven's tree to retrieve his bees - one of three conditions of Beis-Din cited by him. In a case where ...

1. ... Reuven, who is transporting a barrel of wine, collides with Shimon who is transporting a barrel of honey, and the honey begins to spill through a crack in the barrel - he obligates Reuven to pour out his wine (if need be) in order to spare Shimon an excessive loss.
2. ... Shimon's donkey which is laden with flax, dies just as Shimon is passing with his donkey which is laden with wood - he obligates Reuven to unload his wood and to leave it there (if necessary) in order to spare Shimon an excessive loss.
(d) In each of these three cases - Shimon is obligated to reimburse Reuven his losses.
(a) The Tana of our Mishnah permits Reuven, who recognizes his Sefarim and objects in somebody else's possession, to swear and take them, on condition - that this is accompanied by a rumor that he had a break-in.

(b) He cannot just take them anyway - because we suspect that he may have sold them to someone from whom the current owner purchased them.

(c) Even if we heard him shouting in the night that he had been burgled, we still suspect that it was nothing more than a ruse to start the rumor rolling that would later enable him to swear and retrieve the things that he had previously sold. In addition - to substantiate his claim, Rav Yehudah Amar Rav requires a tunnel to have been dug leading from his house, guests (who had been staying with him) must have been seen leaving with bundles of Sefarim and vessels on their shoulders and people must be saying that his Sefarim and vessels were stolen.

(d) We know that Sefarim as well vessels were stolen, because that is what the people are saying. And we know that the vessels that he is claiming are the identical ones that were stolen, and not that they stole ...

1. ... old ones, and he is claiming new ones - because the people are listing them.
2. ... small ones, and he is claiming big ones - because it speaks when they actually recognize them.
(a) Rav states that if Reuven digs his way into Shimon's house and steals vessels - he is Patur from returning the vessels, because the Torah permits the owner to kill him if he discovers him in the act, and we have a principle 'Kam Lei bi'de'Rabah Minei' (which exempts him from paying once he is Chayav Miysah).

(b) The reason that the owner is permitted to retrieve his vessels n our Sugya is - because Rav's concession for the Ganav to keep the vessels only applies when he dug the tunnel in order to enter the owner's house and steal, but not when he entered as a guest, and dug the tunnel only as an escape route.

(c) Rava does not require the owner to describe the stolen objects in detail - in the event that the owner is not in the habit of selling his personal belongings (see also Rambam).

(d) We do not suspect that perhaps he just happened to need money, and that he sold them in spite of his regular habit - because the rumor that he had a break-in will suffice to dispense with that suspicion.

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