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Bava Kama 115



(a) If Shimon sold to Levi what he stole from Reuven, Rav quoting Rebbi Chiya rules 'ha'Din Im ha'Rishon' - meaning that Reuven can only claim from Shimon, and not from Levi. Should he claim from Levi, he will have to recompensate him.

(b) According to Rebbi Yochanan quoting Rebbi Yanai - he can claim from Levi, should he so wish.

(c) Rav Yosef reconciles the two opinions - by establishing Rav after Yi'ush (when Levi bought the object after Reuven had been Meya'esh, in which case, Levi acquired it), and Rebbi Yochanan, when he bought it before Yi'ush (in which case, Yi'ush is not effective).

(d) When Rav Yosef adds that both opinions hold like Rav Chisda, he is referring to Rav Chisda's ruling - 'Gazal ve'Lo Nisya'ashu ha'Ba'alim, Ratzah mi'Zeh Govah, Ratzah, mi'Zeh Govah'.

(a) We reconcile Rav Chisda's ruling with 'Takanas ha'Shuk', which authorizes the purchaser from the Ganav to reclaim what he paid for the article from the owner - by confining that Takanah to when the Ganav is as yet unknown, but once he has been discovered, then the owner claims his article from the purchaser, should he so wish, and the onus of claiming from the Ganav lies on the purchaser.

(b) Abaye queries Rav Yosef's view (that Rav concedes that before Yi'ush, the Ganav can claim his article from Levi) from the Mishnah in Chulin. The Tana states that in a case where someone buys ...

1. ... the entire stomach of a cow, which still contains the Keivah (one of the Matanos) - the purchaser is obligated to hand the Keivah to the Kohen and he cannot claim compensation from the seller.
2. ... parts of the cow by weight, including the stomach - he is obligated to hand the Keivah to the Kohen and he may claim compensation from the seller.
(c) Rav qualifies this Mishnah - by restricting it to when the purchaser helped himself to the stomach, but where the butcher (Shochet) took it and gave it to him, then the onus of paying lies with the butcher (who is the first Ganav).

(d) Based on the fact that the Tana is speaking before Yi'ush (since there is no owner there to be Meya'esh), Abaye extrapolates from there that Rav argues with Rebbi Yochanan even before Yi'ush.

(a) We reconcile Rav Yosef with Rav's statement in Chulin - by amending Rav's statement 'ha'Din Im ha'Tabach' - to read 'Af ha'Din Im ha'Tabach', but he can certainly claim from *the purchaser*, seeing as there has been no Yi'ush.

(b) The Chidush then is - that the Kohen is permitted to claim from the butcher. Because we might otherwise have thought that Matanos (which are a Divinely-inspired gift for the Kohanim) cannot be stolen, and that wherever they are, they belong to the Kohen. Consequently, the Kohen would have to claim from the purchaser, since they are now in his possession, and not from the butcher.

(c) According to Abaye, Rav argues with Rebbi Yochanan - with regard to Rav Chisda's Din, with which Rav disagrees.

(d) Rav Z'vid establishes Rav and Rebbi Yochanan when the owner was Meya'esh after the purchaser had already bought the article. The basis of their Machlokes will then be - whether Yi'ush after Shinuy Reshus is Koneh (completely - Rav), or not (Rebbi Yochanan.

(a) According to Rav Papa, Rav agrees that the purchaser must return the article, in the event that the owner asks him for it. He interprets ...
1. ... Rav's ruling 'ha'Din Im ha'Rishon' - to mean that the purchaser claims his money from the Ganav, and not from the owner (because they did not decree Takanas ha'Shuk there where the Ganav's identity is known).
2. ... Rebbi Yochanan ruling 'ha'Din Im ha'Sheini' - that he claims his money from the owner (because even then, they decreed Takanas ha'Shuk).
(b) According to both Rav Z'vid and Rav Papa, Rav and Rebbi Yochanan hold like Rav Chisda.

(c) The ramifications of Rebbi Yochanan ruling like Rav Chisda (according to whom the purchaser cannot say 'I did not steal from you. Go and claim from the Ganav!', seeing as the owner is obligated to pay him anyway are - in a case where a third person ate the stolen article, in which case the purchaser is obligated to pay the owner, but Takanas ha'Shuk does not apply.

(a) Chanan Biysha stole a coat and sold it. Rav told the owner - to redeem it (because of Takanas ha'Shuk).

(b) This poses a Kashya o Rav, who, we just saw, does not hold of Takanas ha'Shuk when the Ganav's identity is known, and Rav Huna was Rav's Talmid.

(c) Rava rules that the Chachamim did not decree Takanas ha'Shuk in the case of a well-known Ganav - because then the purchaser should not have bought the article in the first place.

(d) Rav Huna nevertheless applied Takanas ha'Shuk in the case of Chanan Biysha - because, although he was infamous for his wickedness, he was not known to be a Ganav.

(a) Chazal did not decree Takanas ha'Shuk in the case of Reuven who borrowed money from Shimon or who bought from him on credit, and he subsequently paid off his debt with an object that he stole - because the money that the creditor lent the debtor was not given against the stolen object.

(b) If Reuven gave Shimon a stolen article worth two hundred Zuz as a security against a loan of a hundred Zuz, the Chachamim did decree Takanas ha'Shuk (since the money was in fact given against the object). But if the security was worth a hundred Zuz, says Ameimar, they did not (even though Mar Zutra disagrees) - because it is so unusual to take a security that is worth only as much as the loan, that we presume that Shimon actually lent Reuven the money on trust, and not on account of the security.

(c) According to Rav Seishes, if Reuven sells Shimon an article worth a hundred Zuz for two hundred, they did not decree Takanas ha'Shuk, (even on the second hundred [although Rava disagrees]) - because just as the second hundred is a gift, so is the first.

(d) The Halachah in all of the above cases is - that Takanas ha'Shuk does apply in spite of the objections, except for the case of Reuven who borrowed money from Shimon or who bought from him on credit, and he subsequently paid off his debt with an object that he stole.

(a) When Avimi bar Nazy (Ravina's father-in-law) lent a certain man four Zuz - the latter promptly went and stole a coat to pay back his debt.

(b) When, after Avimi made him a second loan, the Ganav was discovered, Ravina ruled that whereas the first loan was a case of 'Ganav u'Para be'Chovo', the second, was made against the stolen coat, and that the owner was therefore obligated to pay Avimi when he retrieved it. Rebbi Avahu however, ruled like Rav Kohen - who says that the first loan was indeed a case of 'Ganav u'Para be'Chovo', but that the second loan was made independent of any payment, just as the first one was, and that consequently, Takanas ha'Shuk did not apply in this case at all.

(c) A Narsha'ah stole a Sefer which he sold to a Papuna'ah for eighty Zuz, and the Papuna'ah then sold it to a Mechuza'ah (all place names, like saying 'a Yerushalmi' or 'a New Yorker') for a hundred and twenty Zuz. Then the Ganav was discovered. Rava's objection to Abaye's ruling, that the owner should pay eighty Zuz to the bar Mechuza'ah for his coat, and the bar Mechuza'ah then had to reclaim the remaining forty from the Papuna'ah - was that if Chazal decreed Takanas ha'Shuk on behalf of the first purchaser, then they would certainly have decreed it on behalf of the second one.

(d) Rava therefore ruled - that the owner had to pay the bar Mechuza'ah a hundred and twenty Zuz, and it was he who has to reclaim forty Zuz from the Papuna'ah and eighty from the Narsha'ah.




(a) If Reuven, who is transporting a barrel of wine, collides with Shimon who is transporting a barrel of honey, the honey begins to spill through a crack in the barrel, and Reuven pours out his wine in order to save Shimon's honey - according to the Tana of our Mishnah, he is only entitled to claim from Shimon the remuneration for his work.

(b) He would however, be entitled to recoup his entire loss - if he specifically stipulated that before pouring out his wine.

(c) The other case cited by the Tana which has the equivalent Halachah - is where Reuven allows his donkey, worth a Manah (a hundred Zuz) to drown, in order to save Shimon's which is worth two.

(a) If someone is carrying jars of wine or oil when he notices that they are breaking and that all the contents are about to spill - the Beraisa forbids him to declare them Terumah and Ma'aser on fruit that he has at home, and that if he did, his declaration would be invalid.

(b) This indicates that, in such a case, the contents of the container are considered Hefker. In that case, the owner of the wine in our Mishnah should be permitted to keep the honey. The reason that he is not, is because of Rebbi Yirmiyah, who establishes a similar Beraisa - when a creeper from the oil-press was wound round the jar (and the honey was only dripping out very slowly), as we shall soon see.

(a) Another Beraisa prohibits a traveler who sees a robber coming towards him, from transferring the Kedushah of Ma'aser-Sheini fruit that he has at home on to the money that he has with him. If he did - the transfer would be valid.

(b) We account for the fact that the Tana in the previous Beraisa disqualifies the Ma'asros that the owner designated, even Bedi'eved - by establishing it when the loss is certain, whereas the current Beraisa speaks when he is able to save the fruit from the robber albeit with difficulty.

(c) The Tana of another Beraisa - permits someone who notices that one of ten barrels of wine of Tevel Tamei that he is transporting is breaking or became uncovered, to declare it Terumas Ma'aser on the other nine barrels.

(d) Rebbi Yirmiyah reconciles this Beraisa with the previous Beraisa, which forbids the transfer of Kedushas Ma'aser-Sheini on to the money that is being threatened by the approaching robber - by establishing it when a creeper from the oil-press is wound round the jar (and the wine is only dripping out very slowly, as we explained earlier).

(a) Wine that is spilling is fit to be used for Ziluf (as an aromatic). We have a problem however, with wine that became uncovered, which we substantiate with a Beraisa, where the Tana - forbids water that became uncovered to be poured out in the street, mixed with cement, used to sprinkle in the house to settle the dust or to feed to an animal (one's own or anybody else's).

(b) We answer the Kashya by establishing the Beraisa like Rebbi Nechemyah - who permits the use of uncovered wine that has been strained.

(c) The Tana Kama forbids an uncovered strainer outright (because the snake venom slides through anyway). Rebbi Nechemyah permits it as long as the bottom section is covered (because then the snake's venom remains floating on top).

(d) Rebbi Si'mon Amar Rebbi Yehoshua ben Levi did indeed forbid a strainer even according to Rebbi Nechemyah, there where someone mixed them (because then, the snake's venom might slide through the strainer with the wine). However - it is possible to get round that by straining slowly and placing a cloth over the strainer as he pours.

(a) The Tana Kama of a Beraisa permits Ma'asering from Tahor on to Tahor, Tamei on to Tamei and Tahor on to Tamei. Rebbi Nechemyah - forbids Ma'asering from Tamei on to Tamei, unless the Tevel is D'mai (whose obligation to Ma'aser is only a Chumra to begin with, since the majority of Amei ha'Aretz do take Ma'aser).

(b) Consequently, when we establish the Beraisa which permits Ziluf by uncovered wine, bearing in mind that the Tana is talking about Ma'asering Tevel Tamei onto Tevel Tamei - we will also have to establish the Beraisa by Tevel of D'mai.

(c) The same Tana who permits Ma'asering the wine of Tevel Tamei, forbids it if the barrels contain oil - because the oil can be used for lighting or for fuel, and declaring the broken barrel Ma'aser will cause the Kohanim a big loss.

(d) This does not mean that Ziluf is not important and is therefore not considered a loss to the Kohen - for Shmuel said in the name of Rebbi Chiya that if one is willing to pay a Sela to purchase a Log of wine to drink, he should pay two for wine for Ziluf.

(a) We therefore establish the Beraisa by new wine that is not so good for Ziluf. It is not possible to wait until the wine becomes old - because we are concerned about Takalah (that whilst waiting for the wine to age, he may forget and drink it).

(b) We are not similarly afraid of Takalah in the case of oil - because one can place the oil in a dirty vessel (to ensure that one does not use it together with food).

(c) If one can place oil in an old vessel, one cannot do the same with wine - because then it will become smelly and unfit for Ziluf.

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