PAST DEDICATION
BAVA METZIA 38-40 (10 Sivan) - dedicated by Mrs. Rita Grunberger of Queens, N.Y., in loving memory of her husband, Reb Yitzchok Yakov ben Eliyahu Grunberger. Irving Grunberger helped many people quietly in an unassuming manner and is dearly missed by all who knew him. His Yahrzeit is 10 Sivan.

1) FRUITS THAT ARE ROTTING

QUESTION: The Tana Kama in the Mishnah states that when a person deposits fruit with a Shomer, the Shomer may not sell the fruit even if it is rotting. Rav Kahana in the Gemara explains that the reason is that "a person prefers a Kav of his own produce over nine Kavim of his friend's produce," and therefore even if the owner's produce is rotting, the Shomer may not sell it.

The Gemara earlier (28b), however, teaches that when a person finds a lost animal whose upkeep costs more than what the animal produces, the finder should sell the animal. He thus protects the assets of the owner, who otherwise would have to pay for the upkeep of the animal when he retrieves it. Here, too, the Shomer should sell the fruit to prevent the owner from suffering a loss. Alternatively, if the logic of "a person prefers a Kav of his own produce..." applies to this case, then it should apply to the case of the earlier Gemara as well, and the finder should not be allowed to sell the animal. What is the difference between the two cases? (Acharonim)

ANSWERS:

(a) The MAGEN GIBORIM answers that the Gemara earlier, which rules that a finder should sell an animal in order to protect the owner from a loss, refers only to an Aveidah. There is a special Halachah in the laws of Hashavas Aveidah that requires the finder to do whatever he can to prevent the owner from suffering further loss. This Halachah is derived from the verse, "va'Hashevoso Lo" (Devarim 22:2), which teaches that a person must do whatever he can to ensure that a lost object is returned to its owner without the owner incurring any further monetary loss. If a person finds an animal that is worth one Maneh, for example, he must ensure that one Maneh and not less is returned to the owner. This Gezeiras ha'Kasuv, however, applies only to an Aveidah and not to the case of the Mishnah here, which is a case of a Pikadon. In the case of a Pikadon, the Tana Kama reasons that "a person prefers a Kav of his own produce..." since there is no Gezeiras ha'Kasuv that teaches otherwise.

(b) The RASHASH answers that the Tana Kama's logic that "a person prefers a Kav of his own produce" applies specifically to a Shomer. He bases this assertion on the Mishnah later (40a) which teaches that when a person deposits his fruit with a Shomer, the Shomer deducts the "Chesronos" from the fruit when he returns it to the owner. The Gemara there explains that this Halachah applies when the Shomer places the other person's fruit together with his own, and they become mixed together. Since it is normal for a volume of fruit to decrease (due to rats and other factors), the Shomer may assume that some of the owner's fruit was depleted, and he therefore may deduct the standard amount of depletion from the fruit that he returns.

It is clear from that Sugya that a person who deposits fruit with a Shomer is fully aware that the volume of his fruit will decrease and he accepts that decrease. It can be assumed that the owner would prefer that his fruit be returned to him in its present state, even if it means that he will receive slightly less fruit, for, otherwise, he would have sold his fruit rather than leave it with a Shomer. Since he entrusted his fruit to a Shomer with the knowledge that it would decrease, it is clear that he "prefers a Kav of his own produce over nine Kavim of his friend's produce." (I. Alsheich)

38b----------------------------------------38b

2) "A PERSON PREFERS A KAV OF HIS OWN PRODUCE"

OPINIONS: Rav Kahana teaches the principle that "a person prefers a Kav of his own produce over nine Kavim of his friend's produce." RASHI explains that the reason is that the person "toiled for [his own produce]" and thus it is beloved to him.

Does Rashi mean that only fruits which a person toiled to produce (by plowing, sowing, irrigating, harvesting, etc.) are beloved to him, or does he mean that even fruits that a person did not personally toil to produce, but for which he paid money and worked hard to obtain, are also beloved to him?

(a) The RASHASH and others infer from Rashi's wording ("she'Amal Bahen") that only fruits which a person himself toiled to produce are especially beloved to him. (The Rashash concludes, however, that the logic for this is not clear and requires further elucidation.)

The RAMBAN also explains that a person prefers a Kav of his own produce over nine Kavim of someone else's produce because a person experiences great pleasure when he benefits from his own labor, as the verse states, "When you eat the labor of your hands, you are fortunate and it is good for you" (Tehilim 128:2). (See also MICHTAV ME'ELIYAHU, beginning of volume 3, and SICHOS MUSAR (5731:19 and 5732:22) of RAV CHAIM SHMUELEVITZ zt'l, as cited by YOSEF DA'AS here.)

(b) The RITVA at first writes that it appears that only produce from a person's own field is especially beloved to him. He concludes, though, that "perhaps even produce that did not grow in his own field is also beloved to him, because he toiled to obtain it and to purchase it."

(c) The MITZPEH EISAN, like the Rashash, interprets Rashi to mean that only fruits which a person himself toiled to produce are especially beloved to him. However, unlike the Rashash, he does not infer this from the wording of Rashi here ("she'Amal Bahen"). Rather, he explains that Rashi follows the teaching of Rav Papa in the Gemara in Yevamos (63a). Rav Papa says that "one should rather sow than buy," meaning that it is better to sustain one's family with the produce that one grows himself rather than to buy food in the market, because a blessing rests on produce that a person himself cultivates. Rashi there explains that a blessing is found in items that are not bought and that are not consumed quickly. Accordingly, only produce which a person himself cultivates would be especially beloved to him, because of the blessing which rests upon it.

However, the Mitzpeh Eisan's explanation does not seem consistent with the words of Rashi here. Rashi emphasizes that one's own fruits are beloved to him because he toiled to produce them. According to the Gemara in Yevamos, one's own fruits are beloved to him not because he toiled for them, but because whatever he himself cultivates (rather than purchases) contains a blessing. Moreover, the Gemara there does not state that home-grown produce is preferable because it is beloved to a person. The Gemara considers it preferable because a blessing rests upon it. Thus, according to the Gemara there, a person's single Kav of produce would be worth more to him because of the blessing upon it, not because it is beloved to him. Indeed, the Gemara here discusses a case of fruits that are rotting, which indicates that the blessing did not come to fruition. Therefore, it seems that the owner's preference for his own fruits is not because of the blessing on them, but rather because of the effort he expended to produce them. (I. Alsheich)

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