1)

DEALINGS WITH NOCHRIM (cont.)

(a)

This applies only to one witness, but not to two witnesses.

1.

Even regarding witness, this is only in village courts. Government courts do not make someone pay according to one witness. They only require him to swear, like we do.

(b)

Question (Rav Huna): If people rely on a great man like two witnesses, do we say that since they make someone pay according to his testimony, he may not testify?

1.

Or, since he is a great man, he cannot evade them, so he may testify?

(c)

This question is unsettled.

(d)

(Rav Ashi): If a Yisrael sold land, bordering on a Yisrael's land, to a Nochri, we excommunicate him.

(e)

Question: What is the reason?

1.

Suggestion: It is due to the law of a neighbor (his neighbor should have first option to buy the land).

2.

Rejection: This law does not apply to one who buys from or sells to a Nochri.

(f)

Answer: Rather, it is because he brings damage to the Yisrael;

1.

He is excommunicated until he accepts to pay for any damage that will result.

2)

RECOVERING LOST PROPERTY

(a)

(Mishnah): If tax collectors or Listim (thieves) took Reuven's donkey or garment and gave him a different one, Reuven may keep it, because the owner despairs.

(b)

If one saved property from a river, troop (some texts - Nochrim) or robbers, if the owner despaired, he may keep it.

(c)

Similarly, if the owner of a swarm of bees despaired, the finder may keep it.

(d)

R. Yochanan ben Berokah says, a woman or child is believed to say that a swarm of bees passed this way; the owner may enter his neighbor's field to save them;

1.

If he damaged, he pays for the damage.

(e)

He may not cut off the branch on which they made their hive with intent to pay for it;

(f)

R. Yishmael, son of R. Yochanan ben Berokah permits this.

(g)

(Gemara) Version #1 (Beraisa): If a tax collector or thief took Reuven's donkey or garment and gave him a different one, Reuven must return it to the original owner.

(h)

The Tana holds that one does not acquire through despair alone.

(i)

Version #2: If Reuven wants to return it, he returns it to the original owner.

(j)

Question: What is the reason?

(k)

Answer: The Tana holds that one acquires through despair alone, but one who does not want others' property, he returns it to the original owner.)

(l)

Version #1 (Mishnah): He may keep it because the owner despairs.

(m)

(Rav Asi): This applies only to Nochri thieves, but not to Yisrael thieves.

1.

When Yisraelim took it, he does not despair. He intends to recover his loss in Beis Din.

(n)

Objection (Rav Yosef): To the contrary! Nochri courts use physical force to carry out their rulings, so the victim of a Nochri thief does not despair;

1.

Beis Din merely tells people whom they must pay. The victim of a Yisrael thief despairs.

(o)

Version #2 (Mishnah): If one who saves from Nochrim (some texts - a troop) or thieves, if (we know that) the owner despaired, he may keep it.

(p)

Inference: Normally, we assume that the owner did not despair.

(q)

(Rav Asi): This applies only to Nochri thieves, but not to Yisrael thieves.

1.

Nochri courts use physical force to carry out their rulings, so the victim does not despair;

2.

Beis Din merely tells people whom they must pay, so the victim despairs.

3)

WHICH THIEVES ACQUIRE THROUGH DESPAIR?

(a)

(Mishnah): Hides of a Ganav (he stole them covertly) can receive Tum'ah through his intent (to use them without further improvement. He is considered the owner.) Hides of a Gazlan (open robber) are not Mekabel Tum'ah through intent.

(b)

R. Shimon says, hides of a Gazlan are Mekabel Tum'ah through his intent. Those of a Gazlan are not, because the owner did not despair.

(c)

(Ula): They argue about when we did not hear whether or not the owner despaired. If we know that he despaired, all agree that one acquires through despair alone.

(d)

(Rabah): They argue even about when we know that he despaired.

(e)

Question (against Rabah - Abaye - Mishnah): (They are not Mekabel Tum'ah) because the owner did not despair.

1.

Inference: Had the owner despaired, it would belong to the thief!

(f)

Answer (Rabah): The Mishnah means 'because despair of the owner has no effect.'

(g)

(Mishnah): If tax collectors or Listim (...returned a different donkey, he may keep it, because the owner despaired).

(h)

Question: Who is the Tana of the Mishnah?

1.

If it is Chachamim, why do we assume that the owner despaired regarding (a tax collector, who is) a Gazlan?

2.

If it is R. Shimon, why do we assume that the owner despaired regarding Listim (Ganavim)?

(i)

Answer #1: According to Ula, we can explain as both Tana'im. The case is, we heard that the owner despaired.

1.

However, Rabah holds that they argue even when we heard (each Tana holds that despair does not help in one case). How could he answer?

(j)

Answer #2: It is like R. Shimon. The Mishnah discusses Listim Mezuyan (armed robbers).

(k)

Question: It already discusses (a tax collector, who is) a Gazlan!

(l)

Answer: It lists two kinds of Gazlanim.

(m)

(Beraisa): If a Ganav, Gazlan, or extortionist made what he stole Hekdesh, Terumah or Ma'aser, it takes effect.

(n)

Question: Who is the Tana of the Beraisa?

1.

If it is Chachamim, why does Hekdesh (or Terumah...) of a Gazlan take effect? (We do not assume that the owner despaired!)

2.

If it is R. Shimon, why does Hekdesh of a Ganav take effect?

(o)

Answer #1: According to Ula, we can explain like both Tana'im. The case is, we heard that the owner despaired.

1.

However, Rabah holds that they argue even when we heard. How could he answer?

(p)

Answer #2: It is like R. Shimon. The Ganav of the Beraisa is an armed robber. (He is called a Ganav because he hides from people.)

(q)

Question: It already discusses a Gazlan!

(r)

Answer: It lists two kinds of Gazlanim.

(s)

Answer #3: The Mishnah is like Rebbi;

1.

(Beraisa - Rebbi): A Ganav is like a Gazlan.

114b----------------------------------------114b

2.

We hold that Rebbi means 'like a Gazlan according to R. Shimon' (he acquires through the owner's despair).

4)

WHICH THIEVES ACQUIRE THROUGH DESPAIR?

(a)

(Beraisa - Rebbi): A Ganav is like a Gazlan.

(b)

Question: Does he mean 'like a Gazlan according to Chachamim (who does not acquire)', or 'like a Gazlan according to R. Shimon (who acquires)?'

(c)

Answer #1 (Mishnah): If tax collectors or Listim (...returned a different donkey, he may keep it).

1.

Question: Who is the Tana of the Mishnah?

i.

If it is Chachamim, why do we assume that the owner despaired regarding (a tax collector, who is) a Gazlan?

ii.

If it is R. Shimon, why do we assume that the owner despaired regarding Listim (Ganavim)?

2.

Answer #1: If Rebbi means 'like a Gazlan according to R. Shimon' we can say that it is Rebbi;

i.

But if Rebbi means 'like a Gazlan according to Chachamim', like whom is the Mishnah?

(d)

Rejection (and Answer #2 to Question (1)): It is like R. Shimon. The Mishnah discusses Listim Mezuyan.

(e)

Question: It already discusses (a tax collector, who is) a Gazlan!

(f)

Answer: It lists two kinds of Gazlanim.

(g)

Answer #2 (Beraisa): If a Ganav, Gazlan, or extortionist made what he stole Hekdesh, Terumah or Ma'aser, it takes effect.

1.

Question: Who is the Tana of the Beraisa?

i.

If it is Chachamim, why does Hekdesh (or Terumah...) of a Gazlan take effect?

ii.

If it is like R. Shimon, why does Hekdesh of a Ganav take effect?

2.

Answer #1: If Rebbi means 'like a Gazlan according to R. Shimon' we can say that it is Rebbi;

i.

But if Rebbi means 'like a Gazlan according to Chachamim', like whom is the Beraisa?

(h)

Rejection (and Answer #2 to Question 1): It is like R. Shimon. The Ganav of the Beraisa is an armed robber. (He is called a Ganav because he hides from people.)

(i)

Question: It already discusses a Gazlan!

(j)

Answer: It lists two kinds of Gazlanim.

(k)

Answer #3 (Rav Ashi): Rebbi taught that the Mishnah refers not only to land. Even if he stole an animal to work with it, they must return it, due to their father's honor (lest it remind people of the theft).

1.

Inference: If not for the honor of their father, they would be exempt!

2.

Conclusion: Rebbi means 'like a Gazlan according to R. Shimon.'

5)

OWNERSHIP OF BEES

(a)

(Mishnah): Similarly, if a swarm of bees...

(b)

Question: Why does it say 'similarly'?

(c)

Answer: This teaches even about bees, which one owns only mid'Rabanan (he may keep them only if (we know that) the owner despaired).

1.

One might have thought that since he only owns them mid'Rabanan, we may assume that the owner despaired. The Mishnah teaches that this is not so.

(d)

(Mishnah - R. Yochanan ben Berokah): A woman or child is believed...

(e)

Question: Women and children are invalid witnesses!

(f)

Answer (Rav Yehudah): The case is, the owner was chasing after them. The woman or child said Lefi Tumo (i.e. unaware of the consequences) that the swarm passed this way.

(g)

(Rav Ashi): Lefi Tumo is valid only in testimony that a man died (to permit his wife to remarry).

(h)

Question (Ravina): It is believed about a swarm of bees!

(i)

Answer (Rav Ashi): That is different, since ownership of bees is only mid'Rabanan.

(j)

Question: It is believed also for mid'Oraisa matters!

1.

(Rav Yehudah): A man innocently recounted how his father undressed him and immersed him in order to eat Terumah at night;

2.

(R. Chanina): He also mentioned that his friends avoided touching him, and they called him 'Yochanan, who eats Chalah (what one separates from the dough and gives to Kohanim, like Terumah)';

3.

Based on this, Rebbi established him to be a Kohen!

(k)

Answer: He authorized him to eat only Terumah mid'Rabanan.

(l)

Question: We do rely on Lefi Tumo for mid'Oraisa matters!

1.

(Rav Dimi): A case occurred in which a child recounted Lefi Tumo how he was captured with his mother, and was constantly with her. Based on this, Rebbi permitted her to a Kohen.

(m)

Answer: Chachamim were lenient about a captured woman (because mid'Oraisa, Chazakah permits her to a Kohen).

(n)

(Mishnah): He may not cut the branch...

(o)

(Beraisa - R. Yishmael, son of R. Yochanan ben Berokah): The following are enactments of Beis Din:

1.

If Reuven's bees settled on a branch in Shimon's field, Reuven may cut off the branch to retrieve his bees and pay for the branch;

2.

(Reuven was carrying a barrel of honey and it broke; Shimon was carrying a barrel of wine, which is cheaper than honey.) Shimon should spill out his wine to save the honey; Reuven pays him the value of his wine.

3.

(Reuven's donkey, which was carrying flax, died; Shimon's donkey was carrying wood, which is cheaper than flax.) Shimon should dump his wood and load the flax on his donkey; Reuven pays him the value of his wood.

i.

Yehoshua made the inheritance of Eretz Yisrael conditional on these enactments.

6)

GETTING BACK WHAT WAS STOLEN

(a)

(Mishnah): If Reuven recognized his Kelim and Sefarim with Shimon, and there were rumors that Reuven was robbed, Shimon swears how much he paid, and Reuven pays this and takes them back from Shimon.

1.

If not for the rumors, Reuven cannot force Shimon to sell them. Perhaps he sold them to the one who sold them to Shimon!

(b)

(Gemara) Question: Why should we rely on the rumors? Perhaps Reuven sold them, and he started the rumors!

(c)

Answer #1 (Rav Yehudah citing Rav): The case is, people were in Reuven's house at night; Reuven shouted that his Kelim were stolen.

(d)

Objection: Perhaps this was just a pretext to buy them back!

(e)

Answer #2 (Rav Kahana citing Rav): A tunnel was dug going out from the house. People who had spent the night by Reuven left with bundles of Kelim on their shoulders, and people were saying 'Reuven's Kelim were stolen!'

(f)

Question: Perhaps they stole only Kelim, but not Sefarim!

(g)

Answer (R. Chiya bar Aba): People were saying 'Reuven's Kelim and Sefarim were stolen!'

(h)

Question: Perhaps they stole only small Sefarim, but Reuven claims big Sefarim!

(i)

Answer (R. Yosi bar Chanina): They were saying which Sefarim were stolen.

(j)

Question: Perhaps they stole old Kelim, but Reuven claims new ones!

(k)

Answer (Rav): The case is, people were saying 'these are Reuven's Kelim and Sefarim!' (they recognized that they are new).

(l)

Question: Rav cannot establish the Mishnah to be when thieves left through a tunnel!

1.

(Rav): If a thief tunneled into a house and took Kelim, he may keep them.

2.

Question: What is the reason?

3.

Answer: When he was in the tunnel, he forfeited his life (anyone may kill him, for we assume that he is ready to kill the owner of the house. One need not pay for anything he does at a time that he is liable to die).

(m)

Answer: That applies only to a thief who tunnels into a house, for he is prepared to confront and kill the owner (therefore, he forfeits his life). Here, the thieves only left through the tunnel.

(n)

(Rava): The above answers refer to a man who sometimes sells his Kelim. If he does not, people need not see so precisely what was stolen.

(o)

Question: Perhaps he needed money and sold his Kelim (even though he normally does not)!

(p)

Answer (Rav Ashi): There are rumors that he was robbed (so we are not concerned lest he sold them).

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