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BAVA KAMA 12 - Ari Kornfeld has generously sponsored the Dafyomi publications for this Daf for the benefit of Klal Yisrael.

[12a - 41 lines; 12b - 28 lines]

1)[line 2]אשתמטין עולאISHTAMTIN ULA- Ula is avoiding me, lest I refute him

2)[line 3]בנהרדעאNEHARDE'A- a town in Babylon, seat of the Yeshiva founded by Shmuel

3)[line 3]ואגבו דייני דנהרדעאV'AGVU DAYANEI D'NEHARDE'A- the court judges in Neharde'a collected Avadim from orphans

4)[line 4]בפומבדיתאPUMBEDISA- the location of a great Yeshiva in Bavel (lit. Mouth of Bedisa, a canal of the Euphrates)

5)[line 6]מגבינן לכו לאפדנייכוMAGVINAN LECHU L'APADNAICHU- or I will confiscate your (a) mansion; or (b) courtyard (both sources ARUCH) from you

6)[line 10]פרוזבולPRUZBUL - (A document allowing the collections of loans after Shemitah)

(a)The Torah requires that all loans shall be canceled every seventh year, as it states in Devarim 15:2, "Shamot Kol Ba'al Masheh Yado" - "Every creditor who lends anything to his neighbor shall release it." To demand payment of a loan after the Shemitah year is a violation of the prohibition of "Lo Yigos Es Re'ehu v'Es Achiv" - "He shall not exact it of his neighbor or of his brother" (ibid.). Most Rishonim rule that the Shemitah year cancels loans at the end of the year, on the last day of the month of Elul. (RAMBAM Hilchos Shemitah v'Yovel 9:1-4).

(b)Hashmatas Kesafim applies mid'Oraisa only when the Yovel year is in practice. Mid'Rabanan it applies today, whether inside or outside of Eretz Yisrael.

(c)Hillel the Elder saw that people stopped giving loans when the Shemitah year was approaching out of fear that that they would not get their money back because the debt would be annulled by the Shemitah year. By doing so, they were transgressing an express command of the Torah not to refuse to lend money prior to Shemitah (Devarim 15:9). Hillel therefore instituted the "Pruzbul" (from the Greek "Pruz" = benefit, "Buli" = [for] the rich), effectively creating a way to avoid having Shemitah annul one's debts, as long as the borrower owns some land (Shevi'is 10:3,6).

(d)In a Pruzbul document, one files a contract with Beis Din, before the end of the Shemitah year, stating that he is placing all debts owed to him into the hands of the Beis Din to collect them for him (Shevi'is 10:4). By doing this, the creditor will not transgress the prohibition of "Lo Yigos" when he collects the loan after Shemitah, since he will not have to approach the borrower to collect the loan; Beis Din will take care of the collection and he will approach Beis Din. Beis Din, too, does not have to approach the borrower to collect the loan, since Beis Din can simply collect it themselves using their power of "Hefker Beis Din Hefker" (RASHI to Kesuvos 89a DH Pruzbul, to Gitin 32b DH Mosrani, and to Bava Basra 27a DH Pruzbul). A Pruzbul only allows a person to collect the loan after Shemitah if the borrower has land. It is unusual for a person to lend money to a person without land, and the Rabanan did not institute the use of Pruzbul for unusual loans (RASHI to Gitin 37a DH Ela, and to Bava Basra 27a DH Pruzbul). Alternatively, Pruzbul permits a person to collect a loan after Shemitah because the moment one allows Beis Din to collect his loans, it is as if they are already collected, and in his possession, immediately (since nothing can stop Beis Din from collecting the loan). This is also the reason the borrower must own land in order for Pruzbul to permit the collection of the loan. It is only if he has land that Beis Din can easily collect the loan. If the borrower only has movable possessions, it is possible for him to prevent Beis Din from collecting them by hiding them from Beis Din. Therefore, they are not considered to have entered the creditor's possession until they are actually collected as payment. (RASHI to Bava Kama 12a DH Chal)

7)[line 11]מטלטלין נקנין עם הקרקעMETALTELIN NIKNIN IM HA'KARKA (KINYAN AGAV - the transfer of ownership by means of [the transfer of land])

(a)According to Torah law, certain modes of transferring ownership (Kinyanim) are effective only for land (Mekarka'in), while others are effective only for mobile objects in general (Metaltelin) or for specific mobile objects such as slaves (see next entry). Kinyan Agav is effective for the transfer of mobile objects in general.

(b)A Kinyan "Agav Karka" is a "package deal" wherein when land is transferred through one of the modes of transferring land one automatically transfers mobile objects as well. For example, if a person is interested in selling a parcel of land and also a cow, when the buyer pays for the land, thereby acquiring it through Kinyan Kesef, he immediately acquires the cow as well. This Kinyan is learned from the verse in Divrei ha'Yamim II 21:3 (Gemara below).

(c)The Gemara (Kidushin 26a) discusses whether the mobile object that one transfers with Kinyan Agav must be located in the parcel of land that is being transferred or not. This is known as "Tzevurin." The Gemara (ibid. 27a) concludes that it is not necessary for the mobile objects to be Tzevurin.

8)[line 13]החזיקHECHEZIK (KINYAN CHAZAKAH)

(a)When a person buys an object, he must make a Ma'aseh Kinyan, a formal Halachically-binding act denoting his acquisition of the object, in order for the sale to be irrevocably binding. Depending on what object one is acquiring, different Kinyanim are used, as follows.

(b)The forms of Kinyan that may be used for the acquisition of Metaltelin (mobile items) are:

1.Hagbahah, i.e. lifting the item;

2.Meshichah, i.e. pulling the item or causing it to move;

3.Mesirah, i.e. handing over the reins of an animal or the tie lines of a boat, or a bill of debt (Shtar Chov);

4.Chatzer, i.e. bringing the item into one's private domain;

5.Chalipin (exchange or barter), i.e. taking another object to demonstrate one's consent for the Kinyan (or for an agreement).

6.Agav, i.e. acquiring the movable object automatically upon the acquisition of land.

(c)The forms of Kinyan that may be used for the acquisition of land are:

1.Kesef, i.e. paying at least a Perutah's worth of money for the land;

2.Shtar, i.e. receiving a legal document containing the details of the sale;

3.Chazakah, i.e. performing an act that is normally performed only by an owner;

4.Chalipin (as mentioned above, b:5)

(d)Examples of Chazakah for real estate are Na'al (locking), Gadar (fencing in), and Paratz (making a breach in a fence to create an entrance) or any act that is done to enhance the land, such as digging to improve a field and the like (MISHNAH Bava Basra 42a).

(e)A normal adult slave, although mobile, is compared to real estate with regard to the type of Kinyan that is required for his purchase (Kidushin 22b, based on Vayikra 25:46). As such, a slave may be purchased with Kesef (paying money), Shtar (handing over a contract), or Chazakah (having the slave perform an act for his intended master that demonstrates their impending relationship, with the intention of buying him).

(f)Examples of Chazakah for slaves are taking off his master's shoes, following his master to the bathhouse carrying a change of clothing for him, undressing his master, washing him, etc. (Kidushin ibid.).

9)[line 24]"[יתן להם אביהם מתנות רבות לכסף ולזהב ולמגדנות עם] ערי מצרות ביהודה""[VA'YITEN LAHEM AVIHEM MATANOS RABOS L'CHESEF UL'ZAHAV UL'MIGDANOS IM] AREI METZUROS BIYEHUDAH..."- "And their father gave them many gifts of silver and gold and of precious things, with fortified cities in Yehudah..." (Divrei ha'Yamim II 21:3)

10)[line 24]דלא ניידיD'LO NAIDEI- that do not move

11a)[line 25]נכסים שאין להם אחריותNECHASIM SHE'EIN LAHEM ACHRAYUS- mobile goods such as money

b)[line 26]נכסים שיש להם אחריותNECHASIM SHE'YESH LAHEM ACHRAYUS- immobile goods such as land

12)[line 25]נכסים שאין להם אחריות נקנין עם נכסים שיש להם אחריות בכסף בשטר ובחזקהNECHASIM SHE'EIN LAHEM ACHRAYUS NIKNIN IM NECHASIM SHE'YESH LAHEM ACHRAYUS B'CHESEF BI'SHTAR UV'CHAZAKAH

(a)When a person purchases Nechasim she'Yesh Lahem Achrayus (immobile goods such as land) along with Nechasim she'Ein Lahem Achrayus (mobile goods such as a flowerpot), as soon as he makes a Kinyan of Kesef (paying money), Shtar (handing over a contract), or Chazakah (enhancing the land with the intention of buying it) on the land, he concurrently buys the mobile goods as well (Kidushin 26a and RASHI ibid.).

(b)The word Achrayus in this context means that people will trust a borrower who owns land since they can expect to extract payment from the land should the borrower not have the money to pay back his loan (RASHI ibid.).

13)[line 32]בעודן עליוB'ODAN ALAV- while they are upon the slave

14)[line 33]חצר מהלכת היאCHATZER MEHALECHES HI

(a)When a person acquires an object, he must make a Ma'aseh Kinyan (a formal Halachically-binding act denoting the change in ownership). See above, entry 8.

(b)The Kinyan of Chatzer works only when the Chatzer is a stationary domain. If the Chatzer is a moving domain ("Chatzer Mehaleches" - lit. "a walking Chatzer"), then the Chatzer is not effective to make a Kinyan. Hence, an object placed on a person's slave cannot be acquired through Kinyan Chatzer (even though the slave is considered the person's domain), because the slave is a moving Chatzer.

15)[line 35]בכפותB'KAFUS- bound

12b----------------------------------------12b

16)[line 1]דלא בעינן צבוריןLO BE'INAN TZEVURIN- Kinyan Agav does not require that the Metaltilin be on the land with which it is being acquired

17)[line 5]סדנא דארעא חד הואSADNA D'AR'A CHAD HU- the block of the earth is a single entity

18a)[line 8]קדשים קלים / קדשי קדשיםKODSHIM KALIM / KODSHEI KODASHIM

(a)The term Kodshei Kodashim refers to the Korbenos Olah, Chatas, and Asham (and Menachos), which have a greater degree of sanctity. They may be slaughtered only in the northern part of the Azarah and may be eaten only in the Azarah by Kohanim.

(b)The term Kodshim Kalim refers to the Korbenos Shelamim, Todah, Ma'aser Behemah, Pesach, and Bechor, which have a lesser degree of sanctity. They may be slaughtered in the entire Azarah (and not only in its northern part) and may be eaten in the entire city of Yerushalayim by men or women.

b)[line 9]ממון בעלים הואMAMON BE'ALIM HU

(a)As soon as a person dedicates any article of his property to Hekdesh, it leaves his possession and enters the possession of Hekdesh. Therefore, the person may no longer sell it or give it as a present as a normal owner would.

(b)However, Rebbi Yosi ha'Glili rules that this law only applies to Kodshei Kodashim (see Background to Pesachim 82:8b) and to Kodshei Bedek ha'Bayis (objects that are dedicated to Hekdesh not as a sacrifice - see Background to Me'ilah 12:8), which are considered Mamon Gavo'ah (property of Heaven) as soon as they are dedicated. Kodshim Kalim remain the property of their owner in all respects until they are slaughtered, except for the fact that they must be offered on the Mizbe'ach to fulfill his pledge. Therefore, according to Rebbi Yosi ha'Glili, a person may use Kodshim Kalim to betroth a woman; likewise, he may sell them or give them as a present.

19a)[line 9]"ומעלה מעל בה'""U'MA'ALAH MA'AL BA'SH-M"- "[If a person sins,] and commits treachery against HaSh-m, [and lies to his neighbor about an object that was delivered to him to guard, or about [money given to him as] a fellowship, or about an object taken away by force, or he has defrauded his neighbor.]" (Vayikra 5:21)

b)[line 10]לרבות קדשים קליםL'RABOS KODSHIM KALIM (ASHAM GEZEILOS)

(a)When a person steals money from a fellow Jew (see previous entry), swears in Beis Din that he holds no such money, and later admits his sin, he must return what he stole, pay a fine of Chomesh, and bring a Korban Asham Vadai to receive atonement (Vayikra 5:20-26). The Korban Asham Gezeilos is a ram that costs at least two Sela'im.

(b)Since the verse states, "v'Kichesh ba'Amiso" - "and [he] lies to his neighbor" (ibid. 5:21), objects of Hekdesh are excluded from this Korban. Rebbi Yosi ha'Glili, however, learns from the words "u'Ma'alah Ma'al ba'Sh-m" (ibid.) that Kodshim Kalim are considered the personal property of their owner. As such, a person could betroth a woman with them, and stealing Kodshim Kalim could lead to a Korban Asham Gezeilos.

20)[line 11]המקדש בחלקוHA'MEKADESH B'CHELKO- a Kohen who betroths a woman with his share of the Korbanos of the Beis ha'Mikdash

21)[line 16]משלחן גבוה קא זכוMI'SHULCHAN GAVO'AH KA ZACHU- the Kohanim receive the portion of the Korbanos from "HaSh-m's table"; they do not have any monetary rights to it, but merely a Zechus to eat it

22)[line 17]בכורBECHOR (BECHOR BEHEMAH TEHORAH)

(a)The Kedushah of Bechor rests on every firstborn male of an ox, goat, or sheep when it comes out of its mother's womb. Nevertheless, there is a Mitzvah for a person to sanctify it himself (Erchin 29a, based on Devarim 15:19). He must then give it to a Kohen; it may not be redeemed.

(b)If the animal has no Mum (blemish), the Kohen must bring it as a Korban during its first year. After its blood and Emurim (see Background to Yevamos 7:8 and 100:9) are offered on the Mizbe'ach, its meat is eaten in Yerushalayim during the following two days and the intervening night. If the animal has or develops a Mum, it must be slaughtered and eaten during its first year. If it developed a Mum after the first year, it must be slaughtered and eaten within thirty days. The Kohen can give it away or sell it, even to a non-Kohen. However, it may not be sold in a meat market or weighed in the usual manner.

(c)Now that there is no Beis ha'Mikdash, a Kohen must care for a Bechor until it develops a Mum. Alternatively, he can sell it, even if it has no Mum, to a non-Kohen, who may eat it after it develops a Mum. It may not be sold in a meat market in the usual manner, or bought in order to resell for a profit (Sefer ha'Chinuch #393, #445). The Chachamim penalized a person who intentionally inflicts a Mum in a Bechor, that the animal may never be slaughtered (Bechoros 34a).

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