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Bava Metzia, 9


QUESTION: The Gemara cites a Beraisa which teaches that if one person is riding an animal and another person is holding the reins (but not causing it to walk, -Rashi), the person riding it acquires the donkey and the person holding the reins acquires only the reins. The Gemara attempts to prove from here that a person can acquire an animal by riding it ("Rochev").

RASHI (DH Shema Minah) explains that the Gemara intends to prove that when a person is riding an animal and no one is leading it ("Manhig"), he is Koneh the animal. Since he is Koneh the animal when no one is Manhig, when someone else *is* Manhig at the same time as the other is Rochev, each person is Koneh half of the animal.

Where does Rashi see this? The Beraisa can only prove that the person riding the animal is Koneh it, since it makes no mention of a person leading the animal at the same time. The Gemara earlier (8b) explains that even if a person can be Koneh an animal by riding it, when someone else is leading it at the same time, either the Rochev alone or the Manhig alone is Koneh it. What forced Rashi to explain that the Gemara here abandons that logic? (MAHARSHA, and RAMBAN, RASHBA, and RAN)

ANSWER: The TOSFOS HA'ROSH explains that when the Gemara (at the end of the previous Daf) attempted to prove from our Mishnah that one who is Rochev is Koneh, it abandoned the earlier logic of Rav Yehudah (beginning of 8b), who suggested that when one person is Rochev and one is Manhig, one Kinyan overrides the other, since our Mishnah says clearly that the Rochev and Manhig split it and neither overrides the other.

TOSFOS (DH O Dilma, and DH Mahu d'Teima) discusses how the ruling of our Mishnah can be reconciled with Rav Yehudah's logic that one Kinyan overrides the other. Tosfos and other Rishonim explain that Rav Yehudah's ruling applies when two people are attempting to be Koneh an object from Hefker at the same moment -- one by riding it and one by leading it. In such a case, only one of the Kinyanim will take effect. The ruling of the Mishnah applies when the Rochev and the Manhig come before Beis Din, and each one of them claims that he took it entirely by himself before the other person performed any act of Kinyan on the animal. In such a case, one Kinyan cannot override the other, since only one of them performed a Kinyan, and the doubt is merely which one performed the Kinyan. Instead, the act of riding or leading the animal tells Beis Din that each of these claimants is Muchzak in the animal. Although with regard to making a Kinyan, one act of Kinyan can override another act of Kinyan, with regard to being considered a Chazakah the Chazakah of the Rochev cannot override the Chazakah of the Manhig, and vice versa. According to Tosfos, the only time that one Chazakah might override another Chazakah is when one person is Manhig and the other person is both Rochev and Manhig b'Raglav (using his feet to make the animal move). In such a case, the Rochev is doing everything that the Manhig is doing, plus more, and therefore his Chazakah might override the Chazakah of the Manhig.

However, Rashi, as the Tosfos ha'Rosh explains, did not learn the Sugya this way. Rashi learned that just as the Chazakah of one who is Rochev does not override the Chazakah of one who is Manhig, similarly -- with regard to a Kinyan -- when one is Rochev and one is Manhig they split the animal. Therefore, the Gemara was not only trying to prove from our Mishnah that Rochev is a Kinyan, but also that Rav Yehudah's logic is incorrect and that the Kinyan of a Rochev does not override that of a Manhig, and vice versa. Consequently, when the Gemara here proves from the case in which one person is riding an animal while another person is holding the reins that the Rochev is Koneh the animal, Rashi explains that the Gemara is reverting to the logic that it attempted to prove from our Mishnah -- that is, first, that Rochev is Koneh, and, second, that Rochev and Manhig are equal Kinyanim and they split the animal when done together.

This is also the way that the MAHARSHA, PNEI YEHOSHUA, and "MORI HA'RAV" cited by the Shitah Mekubetzes explain Rashi's words. However, the Maharsha and others attempt to reconcile this with the logic of Rav Yehudah (8b), whereas the Tosfos ha'Rosh writes simply that Rav Yehudah's logic was forced, and therefore Rashi preferred to adopt the approach that the Gemara takes when it asks from our Mishnah -- that is, that Rochev and Manhig are Kinyanim of equal strength.

Why did Rashi not explain this point when the Gemara (8b) originally proved from our Mishnah that Rochev is Koneh? In addition, what forced Rashi to choose sides about whether Rav Yehudah is correct or whether Rochev and Manhig are equal Kinyanim?

The Rosh writes that Rashi did not mention this earlier when the Gemara proved the Halachah from our Mishnah, since it was obvious that the point of the Gemara was to prove that Rochev and Manhig are equal.

The MAHARI ABUHAV (cited by the Shitah Mekubetzes) explains that Rashi inferred his explanation from the fact that the Gemara uses the introductory phrase "Ta Shema" and not "Meisivei," the phrase that it uses when it asks from the Mishnah. Rashi learns from this that the Gemara is not presenting a new question on Rav Yehudah, but rather it is strengthening the question that it asked on Rav Yehudah from our Mishnah. (However, we often find that the Gemara introduces its first question with the word "Meisivei" and then introduces its second question with the words "Ta Shema.")

The most straightforward explanation for Rashi's words, however, is what the Rosh later adds, when he writes that he found manuscripts in which the Gemara here states that we see from the Beraisa that "Rochev *too* is Koneh." (This is also the Girsa of a number of manuscripts cited by the DIKDUKEI SOFRIM.) Accordingly, Rashi is explaining why the Gemara says that we see that Rochev is also Koneh, when it should have said that *even* Rochev is Koneh. Rashi explains that the Gemara means to stay that even when one is riding the animal at the same time that the other person is leading it, the Manhig is not the only one who is Koneh the animal, but the Rochev is also Koneh it, as the Gemara earlier attempted to prove from our Mishnah.

(See also the GILYON cited by the Shitah Mekubetzes who suggests another approach, and KETZOS HA'CHOSHEN 269:4.)


QUESTIONS: Rebbi Elazar asks what is the Halachah when a person tells his friend, "Do a Meshichah on this animal in order to be Koneh the Kelim that are on it." The Gemara immediately asks that he should certainly not be Koneh the Kelim, since the owner told him merely to "do a Meshichah *to* be Koneh," and not "do a Meshichah *and* be Koneh." It must be that Rebbi Elazar's question was when a person tells his friend to "do a Meshichah *and* be Koneh the Kelim."
(a) Why should the recipient not be Koneh if the giver says "do a Meshichah *to* be Koneh?" What else could he possibly mean other than that he wants the recipient to be Koneh?

(b) Can we learn from here that if a person sells an object to a buyer and says, "Do a Meshichah *to* be Koneh this object," that the recipient is not Koneh it?

(a) The ROSH (1:24) explains that when the person says, "Do a Meshichah *to* be Koneh," we say that he might mean to say it rhetorically. He is saying, "Do you think you will be Koneh the Kelim by pulling the animal? Go and do Meshichah and see if you are Koneh the Kelim!"

(b) The Rosh explains that normally we do not suspect the giver of having such intentions. However, in the case of the Gemara, the giver is certainly not interested in giving away his animal, and we are in doubt as to whether or not he wants to give away the Kelim. In such a case, since we know that the main object (the animal) which is being pulled is not being given, we have reason to suspect that the minor object (the Kelim) is not being given either. However, when the giver is *only* giving the animal and tells the recipient to do a Meshichah on the animal, even when he tells the recipient to "do a Meshichah *to* be Koneh," the recipient will still be Koneh the animal.

The RITVA, however, writes that even though "*to* be Koneh" implies that the person is giving away the Kelim, nevertheless since it is not completely clear, it does not suffice to for the Kinyan to take effect. A Kinyan requires an absolutely clear wording.

It seems from the Ritva that the wording "to be Koneh" will not suffice even to be Koneh the animal itself (in contrast to the view of the Rosh).

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