[2a - 38 lines; 2b - 33 lines]

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We recommend using the textual changes suggested by the Bach, Rav B. Rensburg and the parenthetical marginal notes of the Vilna Shas. This section is devoted to other recommended changes in the Gemara, Rashi, or Tosfos.

[1] Rashi 2b DH v'Lechezei Zuzei mi'Man Nakat - The words "Liheyos Nizhar" should read "Liheyos Nizkar" (RASHASH)

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1)[line 1]אוחזיןOCHAZIN- holding onto

2)[line 7]משלשה חלקיםSHELOSHAH CHALAKIM- three quarters

3)[line 11]מנהיגMANHIG- directing the animal (while standing alongside or behind it)

4)[line 14]שהם מודיםHEM MODIM- they admit [that half belongs to the other]. The Gemara (8a) explains why this seemingly obvious ruling is included in our Mishnah.

5a)[line 17]ליתני חדא!LISNI CHADA!- teach one [case, since the other would then be obvious]!

b)[line 18]חדא קתני!CHADA KETANI!- (the Gemara answers) [only] one case is taught (as the Gemara proceeds to explain)!

6)[line 20]ואנא ידענא ד"כולה שלי"VA'ANA YADANA D"CHULAH SHE'LI"- and I would know [that his claim implies] that "it is all mine"

7)[line 22]דלא אתאי לידיהLO ASA'I L'YADEI- it never reached his hand

8)[line 22]בראיה בעלמא קניB'RE'IYAH B'ALMA KANI- he is able to acquire it with sight alone [since it is ownerless]

9)[line 23]ומי מצית אמרת...?MI MATZIS AMRAS...?- are you able to suggest...?

10)[line 25]"[...וְכֵן תַּעֲשֶׂה לְכָל-אֲבֵדַת אָחִיךָ אֲשֶׁר-תֹּאבַד מִמֶּנּוּ] וּמְצָאתָהּ ...""…V'CHEN TA'ASEH L'CHOL AVEIDAS ACHICHA ASHER TOVAD MIMENU] U'METZASAH..."- "[...and so shall you do for any lost item lost by your brother] that you have found; [you may not hide from returning it]." (Devarim 22:3) Ravina derives from the words "your brother" that one is not obligated to return a lost item to a Nochri (Bava Kama 113b).

11)[line 25]דאתאי לידיה משמעD'ASA'I L'YADEI MASHMA- implies that it reached his hand [and he still need not return it to the Nochri]

12)[line 25]איןIN- indeed

13)[line 27]תנא לישנא דעלמא נקטTANA LISHNA D'ALMA NAKAT- [I might have assumed that] the author of our Mishnah used (lit. seized) the vernacular (lit. the terminology of the world)

14)[line 27]ומדחזי ליהMID'CHAZI LEI- from when he saw [the Talis]

15)[line 28]אנא אשכחיתANA ASHKACHIS- I found it!

16)[line 32]בעלמאB'ALMA- generally; i.e., in other Mishnayos

17)[line 33]והדרHADAR- subsequently

18)[line 37]ואיתימאITEIMA- some say

19)[last line]ואמרי לה כדיAMRI LAH KEDI- some say it [in the name of a sage named] Kedi (see RASHI TO Gitin 85b DH v'Lurchei #2, and YOSEF DA'AS ibid.)

20)[last line]במקח וממכרB'MEKACH U'MEMKAR- [describes a case] in which [two people each claim to have] purchased [the same Talis, in which case they divide both the Talis and the money after their respective oaths] (the Gemara discusses more details of this case on 2b)

21)[last line]וצריכאU'TZERICHA- and [both the case of a lost Talis and that of a purchased Talis] are necessary

2b----------------------------------------2b

22)[line 2]דרמוRAMU- they placed

23)[line 2]דמוריMORI- he may well rationalize

24)[line 3]איזל אתפיס ואתפליג בהדיהEIZIL ATPIS V'ISPELIG BA'HADEI- I will go, grab it, and divide it with him

25)[line 5]אימא לאEIMA LO- I would say [that the Rabanan did] not [require a Shevu'ah of him, since he must truly believe that he was the one who purchased it, and as such will not hesitate to swear to what he believes to be the truth] (TOSFOS DH Iy)

26)[line 7]דמי קא יהיבDAMEI KA YAHIV- gave money [to the seller]

27)[line 8]אשקליה אנאASHKELEI ANA- I will take it

28)[line 9]לטרח ליזבןLITRACH LIZVIN- he can expend effort and purchase [a similar Talis from a different seller]

29)[line 9]מציאה דליכא למימר הכיMETZI'A D'LEIKA L'MEIMAR HACHI- a lost item, regarding which such rationalization is not possible [since a lost item, by definition, is stumbled upon]

30)[line 10]מקח וממכר? ולחזי זוזי ממאן נקט!MEKACH U'MEMKAR? V'LECHEZEI ZUZEI MI'MAN NAKAT!- [why is there uncertainty regarding the case in which a Talis was] purchased? Let us see from whom [the seller] received money [by asking a) the seller (RASHI, first explanation of TOSFOS DH v'Lechezei); b) the litigants (R"I cited by TOSFOS DH v'Lechezei)]

31a)[line 11]מדעתיהMI'DAITEI- willingly

b)[line 12]בע"כBA"K = B'AL KORCHEI- unwillingly

32)[line 12]ולא ידענאV'LO YEDANA- (a) according to the Girsa V'LO YAD'INAN - we do not know [and we do not believe the seller even if he claims to remember] (RASHI, based upon Kidushin 73b); (b) [the seller] does not know [since if he did, only he whom the seller claims forced money upon him must take a Shevu'ah] (first explanation of TOSFOS DH v'Lechezei)

33)[line 14]כיצד אלו ואלו באין לידי שבועת שואKEITZAD ELU V'ELU BA'IN LI'YEDEI SHEVU'AS SHAV? (CHENVANI AL PINKASO - The Case of a Storekeeper and his Ledger)

(a)Ben Nanas and the Rabanan disagree over whether Beis Din may require Shevu'os from each of two litigants when their claims are contradictory. The Rabanan rule that Beis Din does require such oaths; Ben Nanas rhetorically asks, "How can Beis Din require two oaths when one of them will be a false oath?"

(b)The Mishnah (Shevuos 45a) records this Machlokes regarding a case in which one instructed a storekeeper to give goods equal to a set value to his workers as their pay, after which he would reimburse him. Subsequently, the storekeeper reports that he has fulfilled the instructions of the contractor. The workers, however, maintain that they received nothing. The Rabanan rule that each may swear that their claim is true, and they may each collect from the contractor. Ben Nanas maintains that they should each receive their due without an oath, so as to avoid a false oath.

34)[line 19]ממון המוטל בספק חולקין בלא שבועהMAMON HA'MUTAL B'SAFEK CHOLKIN B'LO SHEVU'AH - The Opinion of Sumchus in a Monetary Dispute

(a)Sumchus rules that under certain circumstances, when a dispute arises over the ownership of an item, it is divided among the claimants.

(b)All opinions agree that if one claims that that which is in the possession of another belongs to him, then the Halachah follows the axiom of "ha'Motzi me'Chaveiro Alav ha'Re'ayah" - "the burden of proof lies with he who wishes to extract the object" (see next entry). If, however, it is unclear to Beis Din to whom the money belongs even without a claim, then Sumchus rules that the money is divided without either litigant being required to swear (as indeed they cannot). The Rabanan, however, still maintain that the money remains with he who is currently in possession of it. The classic case in which this Machlokes applies is one in which one person's ox gores and kills a cow belonging to another. Next to the cow lies the dead body of a newly born calf. It is unclear whether the calf was born and then killed by the ox, or if the cow miscarried before it was gored and the owner of the ox is not responsible for the death of the calf. Sumchus rules that the owner of the ox must pay half the value of the calf to the owner of the cow; the Chachamim maintain that he is exempt from payment unless there are witnesses who testify that the ox indeed killed the calf (Bava Kama 46a).

35)[line 20]המע"הHMA"H = HA'MOTZI ME'CHAVEIRO ALAV HA'RE'AYAH - The Burden of Proof Lies with he who Wishes to Extract Money from Another

(a)When a dispute arises over the ownership of an item, the Chachamim rule that the first axiom to follow is "ha'Motzi me'Chaveiro Alav ha'Re'ayah." This means that the burden of proof lies with he who wishes to extract the object from the other, and not upon he who holds the item or money in his possession (or he who was last proven to have owned the item). Hence, in cases of doubt, all items or money remain in the possession of he who holds them.

(b)Under certain circumstances Sumchus disagrees and rules that disputed money is divided among the claimants (see previous entry).

36)[line 21]האי מאי?HAI MAI?- what [kind of comparison] is this?

37)[line 21]אא"בAA"B = IY AMART BISHLAMA- if you say [the following], it is acceptable

38)[line 21]דלא תפסי תרוויהוLO TAFSEI TARVAIHU- they are not both in possession [of the value of the dead calf; rather, the owner of the ox is]

39)[line 23][פלגי] לה בשבועה[PALGEI] LAH BI'SHEVU'A- [they should divide] it through [each taking] an oath [since it is impossible to prove one way or the other]

40a)[line 27]שמא ושמאSHEMA V'SHEMA- lit. perhaps and perhaps; i.e., a case in which neither is sure of his claim

b)[line 27]ברי ובריBARI U'VARI- lit. certain and certain; i.e., a case in which both are sure of their claim

41)[line 30]דררא דממונאDERARA D'MAMONA- (a) a [certain] loss of money [since either the owner of the cow has lost the value of his calf, or the owner of the ox has unfairly paid for it] (RASHI); (b) a state of uncertainty as to the owner of the item under dispute even before the claims of the litigants (TOSFOS DH Hasam)

42)[line 32]קל וחומרKAL VA'CHOMER - An A Fortiori Argument

In a Beraisa found in the introduction to the Sifra (the Halachic Midrash on Vayikra), Rebbi Yishmael lists the thirteen methodologies employed by Chazal when determining Halachah from the verses of the Torah. One of these is Kal va'Chomer. This is a logical argument in which proof of a law is shown by means of an already proven stronger law. A Kal va'Chomer can be applied to permit (i.e., something must be permitted since that which is more likely to be forbidden is already permitted) as well as to forbid (i.e., something must be forbidden since that which is more likely to be permitted is already forbidden). Because a Kal va'Chomer is based upon pure logic, one need not have a tradition in order to apply it. In this, a Kal va'Chomer differs from the other thirteen methodologies found in the Beraisa.

43)[line 32]דאיכא דררא דממונא למר ואיכא דררא דממונא למרD'IKA DERARA D'MAMONA L'MAR V'IKA DERARA D'MAMONA L'MAR- (a) that there is a [potential] loss of money for both of them (RASHI); (b) according to the Girsa D'IKA DERARA D'MAMONA - that there is a state of uncertainty as to the owner of the item under dispute even before the claims of the litigants (see TOSFOS DH u'Mah)

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