1) THE "TECHUM" OF AN ITEM DEPOSITED WITH ANOTHER PERSON FOR SAFEKEEPING
QUESTION: The Gemara discusses the question of whose Techum an item acquires when the owner gives it to his friend for safekeeping before Shabbos or Yom Tov ("ha'Mafkid Peros Etzel Chaveiro"). Rav says that it acquires the Techum of the person who watches it, while Shmuel says that it acquires the Techum of the owner. Shmuel's reasoning for why the item acquires the Techum of the owner is because a person does not want his fruit to have someone else's Techum on Shabbos or Yom Tov.
The Mishnah earlier (37a), however, seems to contradict Shmuel's ruling. The Mishnah discusses the case of a person who gives his animal to a shepherd on Yom Tov. The Gemara says that the animal acquires the Techum of the shepherd. Similarly, the Mishnah (37a) states that when a person borrows a utensil from his friend on Erev Yom Tov, the utensil acquires the Techum of the borrower. Since a borrower (Sho'el) has the status of a Nifkad, one with whom an object is deposited for safekeeping, the case of the Mishnah there is the same as the case of the Gemara here. Why does Shmuel say that an item deposited with a Nifkad acquires the Techum of its owner, when the Mishnah says that it follows the Techum of the Nifkad?
ANSWER: In both of the earlier cases (the animal deposited with the shepherd, and the utensil in the possession of the borrower), the item moves with the person with whom it was deposited. The shepherd takes the animal to graze in the pasture, and the borrower takes the utensil to wherever he needs to use it. In such cases, the person who watches the item is expected to walk around with it, and thus the owner certainly intended that his item should acquire the Techum of that person (see Rashi here, DH k'Raglei ha'Ba'alim).
In contrast, in the case of the Mishnah here and in the case of the dispute between Rav and Shmuel, the object is merely deposited for safekeeping and is not moved from place to place. In such a case the owner does not want to relinquish his own Techum from the fruit because he might want to take the fruit to his home on Shabbos or Yom Tov and eat it. The owner does not expect the Nifkad to take the fruit with him anywhere, and he retains the option to take back the fruit on Shabbos or Yom Tov.
Rav, on the other hand, compares this case to the cases of the shepherd and the borrower. He maintains that since the owner knows that there is a possibility that the Nifkad will need to move the fruit and take it with him to some other venue, and since he has no plans to use the fruit on Shabbos himself, he allows the fruit to acquire the Techum of the Nifkad. Rav agrees, however, that in a case in which the owner clearly intends to take back his item on Shabbos the item retains the Techum of the owner (as in the cases discussed later in the Gemara).
2) ITEMS OF MUKTZAH ACCORDING TO REBBI SHIMON
QUESTION: The Gemara quotes Rebbi who disagrees with the Beraisa's definition of "Midbariyos" animals. The Gemara asks that Rebbi's statement here seems to contradict his statement elsewhere. Rebbi's statement here implies that he follows the view of Rebbi Yehudah who espouses the general concept of Muktzah (for this is the subject of the Mishnah which discusses Behemos Midbariyos). Elsewhere, however, Rebbi implies that he agrees with Rebbi Shimon who maintains that there is no general concept of Muktzah. Rebbi says that Rebbi Shimon agrees that Muktzah is prohibited only in the case of Grogeros and Tzimukim (figs and raisins set out to dry, which a person definitely intends not to use on Yom Tov).
The Gemara suggests in one of its answers that although Rebbi Shimon agrees with the concept of Muktzah only in the case of Grogeros and Tzimukim, Behemos Midbariyos are comparable to Grogeros and Tzimukim. RASHI explains that the reason why Rebbi Shimon agrees with the concept of Muktzah in the case of Grogeros and Tzimukim is because those items meet the two conditions necessary to be prohibited as Muktzah. First, the person consciously excluded them ("Docheh b'Yadayim") from use on Yom Tov by leaving them on the roof to dry. Second, when the owner took them to the roof he rendered them unfit for use on Yom Tov (since fruit that begins to dry is inedible). Rashi explains that Behemos Midbariyos are like Grogeros in this regard because the person actively excluded them from use on Yom Tov (see also Rashi in Shabbos 45b).
In what way did the person actively exclude ("Maktzeh b'Yadayim") the Behemos Midbariyos from use? In the case of Grogeros and Tzimukim, he placed the fruit on the roof and thereby actively excluded them from use. In the case of Behemos Midbariyos, what action did he do to the animals to show that he had no intention to use them on Yom Tov?
(a) The ME'IRI explains that the Gemara refers to Behemos Midbariyos which a person sent away from the town. Apparently, he did not want them to sleep in the town (perhaps because they have a bad smell or make loud noises).
(b) Perhaps Rashi relies on the logic he presents earlier (24b, DH Im Yesh). Rashi there writes that Rebbi Shimon agrees with the concept of Muktzah in the case of an object of Muktzah which is attached to the ground (such as fruits attached to a tree) because the fact that the person did not pick the fruit before Yom Tov indicates that he actively excluded it from being used on Yom Tov. Consequently, even if the fruit falls from the tree on Yom Tov it remains Muktzah and he may not eat it.
The only case in which Rebbi Shimon argues with Rebbi Yehudah and permits an object which is Muktzah Machmas Isur is a case like that of a candle which was aflame during Bein ha'Shemashos at the onset of Shabbos. Although the person intentionally left the flame kindled before Shabbos (a possible indication that he intended to exclude the oil in the lamp from use on Shabbos), Rebbi Shimon still permits him to take the oil on Shabbos (after the flame has gone out). The reason the person did not extinguish the candle before Shabbos was because he wanted it to give light during the night, and not because he intended to exclude the oil from use for all of Shabbos.
In contrast, an object forbidden at the onset of Shabbos which could have been prepared before Shabbos (but was not) is Muktzah even according to Rebbi Shimon. (This is what the Gemara in Shabbos (47b) means when it says that Rebbi Shimon permits Muktzah Machmas Isur only when one is "Yoshev u'Metzapeh" for the object to become permitted.)
The same reasoning applies in the case of Behemos Midbariyos. Corralling the animals involves considerable effort and trouble on Yom Tov (as Rashi says in Shabbos 45b). Since it is very difficult to corral the animals on Yom Tov, one should have arranged to bring them in before Yom Tov if he wanted to use them on Yom Tov. The fact that he did not arrange to bring them in before Yom Tov shows that he actively excluded them from use on Yom Tov.
The other opinions in the Gemara here -- which say that Behemos Midbariyos are not like Grogeros and Tzimukim -- maintain that even though corralling the animals involves considerable effort, one still is permitted to bring them in on Yom Tov. Consequently, the fact that he was not punctilious in bringing them in before Yom Tov does not show that he actively excluded them from use. In the case of fruit attached to the tree, Rebbi Shimon agrees that the fruit is Muktzah because there is no possible way to pick the fruit on Yom Tov. By not getting the fruit before Yom Tov, the person showed that he intended to exclude them from use on Yom Tov.