1) A GUARD'S RIGHT TO EAT
QUESTION: The Mishnah states that laborers working as guards for fruit may eat from the fruit only because it is the customary practice ("Hilchos Medinah"), but not because the Torah entitles them to eat. Rav and Shmuel argue about what type of guard the Mishnah is discussing. Rav says that the Mishnah refers to a guard of gardens and orchards (in which the produce still is attached to the ground); a guard of a winepress or of stacks of grain is entitled mid'Oraisa to eat the fruit. Shmuel argues and says that the Mishnah refers to a guard of a winepress or of stacks of grain. Shmuel maintains that such a guard is entitled to eat the fruits only due to Hilchos Medinah, while a guard of gardens or orchards may not eat at all, neither mid'Oraisa nor on account of custom.
The Gemara explains that the argument between Rav and Shmuel is based on the question of whether guarding is considered an action. Rav maintains that guarding is like an action, while Shmuel maintains that it is not like an action.
The verses which discuss a laborer's entitlement to eat, however, do not mention that only a laborer who does an action has the right to eat. Why does the Gemara understand that a guard's right to eat depends on whether or not his task is considered an action? After all, a guard has the same status as an ordinary laborer with regard to other Halachos (for example, with regard to the Isur of withholding a worker's wages). Why would a guard not be viewed like any other worker with regard to his right to eat from the fruit?
(a) The MA'AYANEI HA'CHOCHMAH and AYELES HA'SHACHAR answer that there is a logical reason to distinguish between a guard and other types of workers with regard to a worker's right to eat the fruit. It is obvious that any worker who happens to work in a vineyard on something unrelated to the vineyard itself (for example, one who is hired to fix an object in the vineyard) may not eat from the fruit of the vineyard. Only one who works with the fruit itself, or with the ground from which the fruit grows, may eat from the fruit. Similarly, if a guard's task is not considered an action, he would not be considered to be working with the fruit itself, and thus he would not have the right to eat it.
(b) The DARCHEI DAVID answers that Shmuel maintains that there is a Hekesh that links a "Chosem" (a person who muzzles) to a "Nechsam" (an animal which is muzzled). That Hekesh teaches that a laborer must do an action in order to be entitled to eat the fruits. A laborer is considered a "Chosem" because he is the one who would muzzle the ox, and the ox is the "Nechsam," that which is muzzled. The Halachah that prohibits muzzling an ox applies while the ox is threshing in the field, which is an action. Thus, the Hekesh teaches that the requirement to allow a laborer to eat also applies only when he is doing an action. (I. Alsheich)
2) THE DIFFERENCE BETWEEN A GUARD OF A WINEPRESS AND A GUARD OF AN ORCHARD
QUESTION: The Mishnah states that laborers working as guards for fruit may eat from the fruit only because it is the customary practice ("Hilchos Medinah"), but not because the Torah entitles them to eat. Shmuel says that the Mishnah refers to a guard of a winepress or of stacks of grain. Shmuel maintains that such a guard is entitled to eat the fruit only due to Hilchos Medinah, while a guard of gardens or orchards may not eat at all, neither mid'Oraisa nor on account of custom. The Gemara explains that Shmuel's position is that guarding the fruit is not considered like an action (see previous Insight).
The RA'AVAD (cited by the Shitah Mekubetzes) asks why the Chachamim differentiate between the guards of gardens or orchards and the guards of winepresses or stacks of grain. Shmuel maintains that a guard of winepresses or stacks of grain may eat from the produce due to "Hilchos Medinah," even though he is not considered to be doing an action, while a guard of gardens or orchards may not eat at all, even on account of "Hilchos Medinah." Why, though, is there a difference between the two types of guards if neither guard is considered to be doing an action?
The RASHBA also asks why the Halachah distinguishes between the two types of guards, but he does not ask why the Chachamim differentiate between them. The Rashba's question seems to be why the Minhag ha'Medinah differentiates between the two types of guards. (The Ra'avad seemingly understands that the Minhag ha'Medinah is an enactment of the Chachamim to allow this particular type of guard to eat (as the TOSFOS RID writes explicitly). The Rashba, on the other hand, seemingly understands that there is no such enactment of the Chachamim, and it is the custom alone which entitles the guard to eat, as implied by RASHI (DH me'Hilchos Medinah) and as the ME'IRI writes.)
(a) The RA'AVAD answers that "occasionally, a guard has to do an action." He seems to mean that the reason why the Chachamim allow a guard of winepresses or stacks of wheat to eat from the produce is that a situation might arise in which he has to do an action with the produce (in which case he would be entitled to eat mid'Oraisa). Since such a situation might arise, the Chachamim give him the right to eat even before he does an action (and even if, ultimately, he does not need to do an action). In contrast, if a need arises for a guard of gardens or orchards to do an action with the fruit that he is guarding, his right to eat the fruit still will be due only to "Hilchos Medinah" since the fruit is still attached to the ground. Since, in any event, he will not have a right mid'Oraisa to eat the fruit, the Chachamim did not institute that he may eat when he has not yet done any action.
(b) The RASHBA and RITVA answer that a guard of winepresses would have been entitled to eat mid'Oraisa if he had been doing an action, and he is therefore entitled to eat, due to "Hilchos Medinah," even if he does not do an action. A guard of gardens or orchards, though, would not have been entitled to eat mid'Oraisa even if he had been doing an action, and, therefore, since he is not doing any action he may not eat even due to "Hilchos Medinah." (I. Alsheich)
3) AN UNAVOIDABLE "ONES" THAT RESULTS FROM A "PESHI'AH"
QUESTION: The Gemara (93a) relates an incident in which a shepherd was grazing animals on the bank of the river and one of the animals fell into the water. Rabah ruled that the shepherd was exempt because he guarded the animals normally. Abaye questioned this ruling from a Beraisa which states that if a shepherd leaves his herd and enters the city and a wolf or lion attacks the herd, Beis Din evaluates whether he would have been able to protect the herd had he been there. If he would have been able to protect the herd, then he is Chayav, even though he guarded the herd in the normal manner, as he went into the city when people normally do so. Rabah answered that the Beraisa refers to a case in which the shepherd went into the city when people normally do not do so, and that is why he is Chayav. Abaye asked why, then, is the shepherd exempt if an evaluation shows that he would not have been able to protect the herd. Since he neglected his duties by entering the city, it is a case of "Techilaso b'Peshi'ah v'Sofo b'Ones," and he should be Chayav. The Gemara answers that the shepherd heard the ferocious roar of an approaching lion and therefore fled to the city, and thus he is exempt because there was nothing he could do.
This Gemara presents a difficulty to the opinion of the RIF, TOSFOS, and other Rishonim who maintain that the Chiyuv of "Techilaso b'Peshi'ah v'Sofo b'Ones" applies only when the eventual Ones occurs as a result of the initial Peshi'ah (for example, when the Ones would not have occurred had the Shomer not committed the Peshi'ah in the first place). An example of "Techilaso b'Peshi'ah v'Sofo b'Ones" is found in the Gemara (42a) which records an incident in which a person deposited money with a Shomer and the Shomer placed the money inside a hunter's hut for safekeeping. The hut provided adequate protection from thieves but not from a fire, so the Shomer's action was considered an appropriate act of Shemirah to prevent thieves from taking it, but it was an act of negligence (Peshi'ah) with regard to a fire. In the end, the money was stolen by thieves (an Ones). Although it was an Ones, the Ones would not have happened if the Shomer had not put the money in the hut. These Rishonim maintain that only in such a case -- where the Ones occurs as a result of the Peshi'ah -- is the Shomer Chayav because of "Techilaso b'Peshi'ah v'Sofo b'Ones."
The Rishonim ask that the Gemara here clearly contradicts this opinion. In the case of the Gemara, the eventual Ones -- that the herd was ravaged by a lion -- would have occurred even had the shepherd not been Poshe'a and had remained with the herd. The Ones cannot be attributed to the fact that the shepherd entered the city, yet the Gemara says that the shepherd would be Chayav because of "Techilaso b'Peshi'ah v'Sofo b'Ones." How can this Gemara be reconciled with this position of the Rishonim? (RIF and ROSH to 36b, TOSFOS to 78a, DH Huchmah)
(a) The RIF answers that this point is actually the subject of a Machlokes between Abaye and Rava earlier (36b). Rava maintains that a Shomer is Chayav because of "Techilaso b'Peshi'ah v'Sofo b'Ones" only when the Ones occurs as a result of the Peshi'ah having been done (as the Rif rules l'Halachah). Abaye, however, maintains that one is Chayav for "Techilaso b'Peshi'ah v'Sofo b'Ones" even when the eventual Ones is unrelated to the initial Peshi'ah. Abaye here is consistent with his view earlier (36b).
(b) TOSFOS earlier answers that here, too, the Ones can be viewed as related to the Peshi'ah, in one of the following ways.
1. Perhaps had the shepherd remained with the herd he would have brought it to a different grazing area before the danger arose in the present place, for shepherds normally move their herds to different grazing areas.
2. Alternatively, perhaps the lion would have been afraid to approach the herd if the shepherd had remained with it. Accordingly, the Peshi'ah of the shepherd leaving the herd resulted in the Ones of the herd being attacked by a lion.
3. In his third answer, Tosfos suggests that had the shepherd stayed with the herd the blessing of the verse, "Even the lion and the bear has your servant defeated" (Shmuel I 17:36), might have applied to him, and he indeed would have been successful in fighting off the lion. The RA'AVAD (cited by the Shitah Mekubetzes) adds that perhaps the blessing in the verse, "Fear of you and dread of you shall be upon all of the wild beasts of the earth" (Bereishis 9:2), would have applied to him and the lion itself would have been afraid. This is also the answer of the ROSH.
4. The TOSFOS RABEINU PERETZ (cited by the Ritva) answers that if the shepherd would have stayed with the herd, he would have been able to gather other shepherds to save the herd.
5. The RAMBAN (36b, and as cited by the Ritva here) explains that since the shepherd went into the city at a time when people normally do not go in, he could have brought the entire flock into the city with him, and he should not have left the sheep in the fields where they were vulnerable to attack. Hence, his initial Peshi'ah resulted in the Ones of the lion's attack. (I. Alsheich)