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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 118



(a) Our Mishnah rules that if Reuven steals from Shimon in an inhabited area, he cannot force him to accept payment in the desert - because it is an unguarded place.

(b) If he borrowed from him or received an article for safekeeping -the Din will be the same.

(c) The Beraisa '*Milveh Mishtalemes be'Chol Makom*, Aveidah u'Pikadon Ein Mishtalmin Ela bi'Mekoman' appears to clash with our Mishnah. According to Abaye - the Beraisa is not speaking from thr point of view of the Ganav, but from that of the owner, and is teaching us that whereas in the case of a loan, the creditor has the upper hand and is authorized to claim his money anywhere, the owner of a lost article and of a Pikadon can only claim their article in the location where it is known to be.

(d) Our Mishnah concludes 'al-M'nas la'Tzeis ba'Midbar, Yachzir Lo ba'Midbar', which is obvious. So we establish it to mean - that if a guardian, who was given an article for safekeeping because the owner was going on a journey through the desert, accepted, but added that he too, was traveling through the desert, it is as if he made an express condition to return the article in the desert, should he so wish, and he is subsequently permitted to do so.

(a) In a case where Reuven ...
1. ... admits to having stolen from Shimon, but he cannot remember whether he paid him back or not - the Tana of our Mishnah rules that he is liable to pay.
2. ... is not even sure whether he stole from Shimon in the first place - he exempts him from paying.
(b) If Reuven claims a Manah from Shimon, and Shimon cannot remember whether he owes him or not ...
1. ... Rav Huna and Rav Yehudah - based on the principle 'Bari ve'Shema, Bari Adif' obligate him to pay.
2. ... Rav Nachman and Rebbi Yochanan disagree - based on the principle 'Uki Mamona be'Chezkas Marei', exempt him from paying.
(c) Even though the latter opinion exempts him from paying, he is nevertheless obligated to swear (a Shevu'as He'ses - mi'de'Rabbanan) - that he does not know.
(a) Initially, we establish the Seifa of our Mishnah (where Reuven is not even sure if he stole ... from Shimon or not, when Shimon claimed from him, because of the Reisha (when he admits to having stolen ... ), which we think, must be speaking when Shimon claimed from Reuven - because otherwise, why would he be Chayav?

(b) This poses a Kashya on Rav Nachman and Rebbi Yochanan, who exempt him from paying is such a case.

(c) To conform with Rav Nachman and Rebbi Yochanan - we establish the Mishnah when the owner did not claim, and the 'defendant' is admitting because he wants to fulfill his moral obligation to return the money.

(d) Rebbi Chiya bar Aba Amar Rebbi Yochanan corroborates this interpretation of our Mishnah.

(a) If Reuven returned the sheep that he stole to the pen from which he stole it, but without informing the owner, the Tana of our Mishnah obligates the Ganav to pay, should the animal die or is stolen - because when he stole it he acquired it, and until he informs the owner that he has returned it, he has not fulfilled the Mitzvah of Hashavah.

(b) He would nevertheless be Patur - if the owner would count his sheep and find their numbers intact (though this is subject to interpretation, as we shall now see).

(c) When Rav says 'le'Da'as Tzarich Da'as; she'Lo le'Da'as, Minyan Poter', he means - that if the owner was aware that a sheep had been stolen, then the Ganav has to inform him when he returns it; counting them will only suffice if he did not know that the sheep had been stolen. According to Shmuel - counting, either way, will suffice.

(d) The ramifications of their Machlokes is spelled out in how they interpret 'u'Manu es ha'Tzon' in our Mishnah - according to Rav, it pertains to the Seifa only, whereas according to Shmuel, it pertains to the Reisha as well.

(a) Rebbi Yochanan is the most lenient of all. He says 'le'Da'as Minyan Poter' (even if the owner was not informed of the sheep's return). If he stole it she'Lo le'Da'as - neither Da'as nor Minyan is required.

(b) According to him, 'u'Manu es ha'Tzon' pertains - to the Reisha.

(c) Rav Chisda learns the exact opposite to Rav. The reason, says Rava, that Rav Chisda, in contrast to all the other opinions, is more stringent by she'Lo le'Da'as than by le'Da'as, is - because, having tasted the taste of freedom, the animal will continue to try and escape. Consequently, it is essential for the owner to know that the animal was stolen and returned, in order to take special steps to prevent it from escaping again. And that is why merely counting the sheep will suffice only if he knows that it was missing, but not if he doesn't.

(d) According to Rav Chisda, 'u'Manu es ha'Tzon' pertains - to the Reisha (like it does according to Rebbi Yochanan).




(a) If Reuven spotted Shimon stealing a sheep from his flock and chased him away, but he does not know whether Shimon returned the sheep or not, Rava rules - that Shimon is liable for O'nes and Geneivah.

(b) We establish the case according to Rava - when Reuven had not counted the sheep; otherwise, Shimon would be Patur.

(c) When Rav ruled "Hechziro la'Eder sheba'Midbar, Yatza," - he was referring to a stolen sheep that was marked, e.g. spotted, in which case the shepherd would have known exactly when it was stolen and when it was returned, thereby conforming with his ruling "le'Da'as Tzarich Da'as."

(a) According to Rebbi Yishmael in a Beraisa, someone who steals a lamb from the flock or a Sela from the purse simply returns it to the location from where he stole it - Rebbi Akiva requires the knowledge of the owner.

(b) We assume that both Tana'im hold like Rebbi Yitzchak that a person tends to check his purse at regular intervals. The basis of their Machlokes in the case of the Sela from the purse - is the same as that of Rav and Shmuel; Rebbi Yishmael holds that, since he certainly knew about the theft, counting it will suffice (like Shmuel); whereas Rebbi Akiva holds 'le'Da'as Tzarich Da'as' (like Rav).

(c) And assuming that the case of the lamb from the flock speaks when it was stolen without the owner's knowledge, the basis of their Machlokes there is - the same as that of Rebbi Yochanan and Rav Chisda; Rebbi Yishmael holds that since he did not know about the theft, not even counting is required (like Rebbi Yochanan); whereas Rebbi Akiva holds 'she'Lo la'Da'as Tzarich Da'as' (like Rav Chisda).

(d) Rav Z'vid in the name of Rava however, concludes that even Rebbi Yishmael holds like the opinion of Rav Chisda (that 'she'Lo le'Da'as Tzarich Da'as). And they argue in the case of a Shomer who stole the animal from his own Reshus. According to ...

1. ... Rebbi Akiva, he is Chayav - because the owner no longer trusts him, his Shemirah has terminated, and his knowledge is no different than that of a stranger. Consequently, since the owner did not know of the theft, the Ganav is obligated to pay; whereas, according to ...
2. ... Rebbi Yishmael, he is Patur - because in spite of his having stolen the animal, the owner retains his services and the fact that *he* (the Shomer) knows about the theft will suffice to exempt him.
(a) One Beraisa rules that if Reuven stole from Shimon, and repaid him by slipping extra coins into a payment he subsequently made against something that he purchased from him, he has fulfilled his obligation of Hashavah. Another Beraisa rules that he hasn't. Assuming that both Tana'im hold like Rebbi Yitzchak, who says that a person tends to check his purse at regular intervals, the basis of the Machlokes will be - whether (assuming that the owner knows of the theft) counting exempts the Ganav (the first Beraisa [like Shmuel]), or not (the second Beraisa [like Rav]).

(b) They might also be arguing over Rebbi Yitzchak's Din (with which the first Tana agrees, but not the second). Alternatively, both Tana'im hold like Rebbi Yitzchak in principle, and the basis of their argument might depend on where the Ganav placed the money, or on whether there was other money in the purse. If the Machlokes is a matter of ...

1. ... where the Ganav placed the money - then the second Tana speaks when the Ganav initially counted out the money into the owner's hand (and not into his purse), in which case, the owner may not have placed the money into his purse at all.
2. ... whether there was other money in the purse - then he speaks when there was, in which case the owner may well not have known how much it was.
(a) The Tana of our Mishnah prohibits purchasing ...
1. ... from a shepherd - wool, milk and kid-goats.
2. ... from a guardian of an orchard - wood and fruit.
(b) One is permitted to purchase woolen garments from women in Yehudah (because that is their specialty, and they sell with their husbands' consent) ...
1. ... in the Galil - linen garments.
2. ... and in the Sharon - calves.
(c) 'be'Sharon' probably refers to an area where calves are reared - but it might also mean 'to sell openly'.

(d) One may not purchase any of the above - if the seller tries to hush-up the sale.

(a) Our Mishnah - permits the purchase of eggs and chickens anywhere.

(b) The Beraisa - prohibits purchasing goats, kid-goats, shearings of wool and small strips of wool from shepherds.

(c) He permit purchasing from a shepherd ...

1. ... sewn woolen garments - because even assuming that they were sewn without the owner's consent, the shepherd acquires them with Shinuy Ma'aseh.
2. ... milk and cheese in the desert - because the owner does not generally go there, so he allows the shepherd to take them for himself.
(a) The Tana of the Beraisa also permits the purchase of four or five sheep and four or five shearings of wool. Correspondingly - he prohibits the purchase of two.

(b) Rebbi Yehudah has a different criterion. He permits the purchase of 'home-sheep', and forbids that of 'desert-sheep'.

(c) The guiding principle behind these Halachos is - that if the owner is bound to notice the theft, then it is permitted to buy from him, otherwise not.

(d) According to one opinion, Rav Chisda explains the four or five sheep or shearings permitted by the Tana to mean four out of five (which is so blatant that the owner could not fail to notice it. According to others, what Rav Chisda said was - 'four from a small flock, five from a large one'.

(a) The Seifa of the Beraisa, which implies that the purchase of three sheep is permitted - speaks about healthy sheep (which is permitted because the owner will notice the absence of three sheep from the flock), whereas the Reisha, which implies that it is forbidden, speaks about weak ones (which is forbidden because he won't).

(b) Rebbi Yehudah permits the purchase of 'home sheep', but forbids 'desert sheep'. We are not initially sure whether he is referring to the Reisha, where the Tana Kama permits four or five sheep (in which case Rebbi Yehudah is coming to be stringent); or to the Seifa, where the Tana Kama forbids the purchase of two sheep (in which case he is coming to be lenient).

(c) In another Beraisa which permits the purchase of 'home-sheep' and forbids the purchase of desert-sheep', but which concludes by permitting the purchase of four or five sheep anywhere - is a clear proof that Rebbi Yehudah refers to the Seifa of the Tana Kama, and is coming to be lenient.

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