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BAVA METZIA 6 - Dedicated by Dr. Chaim Bitton of Geneva Switzerland in gratitude to his parents, Shmuel and Rina Bitton, who raised him in the path of Torah and Mitzvot. May they be blessed with long life and good health and may they merit to see much Nachat from their children and grandchildren.

1)

(a)What do we finally prove from ...

1. ... Rav Nachman, who obligates every Kofer ba'Kol to swear a Shevu'as Hesses?

2. ... Rebbi Chiya's Beraisa of Chenvani al Pinkaso (where both the worker and the storekeeper swear and take from the Balabos)?

(b)And we draw the same conclusion from Rav Sheishes, who obligates a Shomer Chinam who claims that the article was stolen, to make three Shevu'os. Besides Shevu'as ha'Shomrim and a Shevu'ah that he does not have the article in his possession, which other Shevu'ah does he require him to make?

1)

(a)We finally prove both from ...

1. ... Rav Nachman, who obligates every Kofer ba'Kol to swear a Shevu'as Hesses, and from ...

2. ... Rebbi Chiya's Beraisa of Chenvani al Pinkaso (where both the worker and the storekeeper swear and take from the Balabos) that 'Migu de'Chashid a'Mamono, Lo Chashid a'Shevu'asa' (see Tosfos DH 'Ela').

(b)And we draw the same conclusion from Rav Sheishes, who obligates a Shomer Chinam who claims that the article was stolen to make three Shevu'os; Shevu'as ha'Shomrim, a Shevu'ah that he does not have the article in his possession and that he did take the article in order to use it.

2)

(a)According to Abaye, the reason for the Shevu'ah in our Mishnah is because we assume that the one who grabbed the Talis is claiming an old debt. On what grounds does Abaye disagree with Rebbi Yochanan? Why does he not want to ascribe it to the fact that Chazal instituted it in order to prevent people from grabbing other people's Taleisim?

(b)Why is claiming an old debt without the debtor's consent not also considered 'Chashid a'Mamona'?

(c)How do we amend Abaye's reason to explain why they do not then take half the Talis without a Shevu'ah?

(d)What is then the point of making him swear? What does Rav Shisha Brei de'Rav Idi say to explain why a person may be willing to take money that is perhaps not his, but will not wear on money that is perhaps not his?

2)

(a)According to Abaye, the reason for the Shevu'ah in our Mishnah is because we assume that the one who grabbed the Talis is claiming an old debt. He disagrees with Rebbi Yochanan, not wanting to ascribe it to the fact that Chazal wanted to prevent people from grabbing other people's Taleisim because he holds 'Migu de'Chashid a'Mamona Chashid a'Shevu'asa'.

(b)Claiming an old debt without the debtor's consent is not also considered 'Chashid a'Mamona' because everything that the debtor owns is actually Meshubad to the creditor, in which case claiming it in this way (which may not be the right thing to do, yet it) is not called theft.

(c)To explain why they do not then take half the Talis without a Shevu'ah we amend Abaye's reason from a definite debt to a Safek one (on the assumption that, if there was no debt, the oath will cause him to withdraw his claim).

(d)Despite his willingness to take money that is perhaps not his, we make him swear, says Rav Shisha Brei de'Rav Idi, and do not suspect that he will also swear that it is perhaps not his because even people who allow themselves to take money when in doubt (on the theory that money can always be returned), will not swear when in doubt (because a Shevu'ah cannot be withdrawn).

3)

(a)Rebbi Zeira asked what the Din will be if one of the two men holding the Talis grabbed it in front of Beis-Din. What will be the Din assuming the second man ...

1. ... remained silent?

2. ... immediately protested?

(b)Then what is Rebbi Zeira's She'eilah?

(c)The Beraisa establishes our Mishnah where the two men were actually holding on to the Talis, but not if one of them was holding it. Why is this obvious, the way it stands?

(d)How do we therefore establish the Mishnah? What do we prove by doing so?

3)

(a)Rebbi Zeira asked what the Din will be if one of the two men holding the Talis grabbed it in front of Beis-Din. Assuming the second man ...

1. ... remained silent it is obvious that (based on the principle 'Shesikah ke'Hoda'ah') his grabbing is effective.

2. ... immediately protested it is equally obvious that the grabbing is ineffective.

(b)Rebbi Zeira's She'eilah therefore is when he protested, but only after a few moments silence (because it seems likely that his initial silence was due to the fact that the Beis-Din witnessed the grabbing, and was not necessarily a sign of admission).

(c)The Beraisa establishes our Mishnah where the two men were actually holding on to the Talis, but not if one of them was holding it. This, as it stands, is obvious because of the principle 'ha'Motzi me'Chavero Alav ha'Re'ayah'.

(d)We therefore establish the Mishnah where they came into Beis-Din holding the Talis between them, and the one then grabbed it in front of the Dayanim, whilst the other one objected but only after remaining momentarily silent, a proof that the second man's initial silence is indeed construed as admission (thereby resolving our current She'eilah).

4)

(a)We refute this proof by re-establishing the Beraisa where they came into Beis-Din holding the Talis. Then after being told to divide it, they left, only to return a short while later with Reuven holding it. If he claims that Shimon had admitted that it belonged to him, what does Shimon now claim?

(b)On what grounds do we believe Reuven?

(c)How else might we interpret the Beraisa (to avoid establishing it where Reuven grabbed the Talis)?

(d)What do we mean when we say that even Sumchus will agree with this ruling?

4)

(a)We refute this proof by re-establishing the Beraisa when they came into Beis-Din holding the Talis. Then after being told to divide it, they left, only to return a short while later with Reuven holding it on his own, claiming that Shimon had admitted that it belonged to him. Shimon now claims that he rented his half of the Talis to Reuven.

(b)We believe Reuven because it is not feasible that Shimon, who only a few moments earlier, had accused Reuven of being a Ganav, should suddenly trust him in this way.

(c)Alternatively, we might establish the Beraisa where Reuven came into Beis-Din holding the Talis, with Shimon clinging on to it.

(d)When we say that even Sumchus will agree with this ruling, we mean that even Sumchus, who normally holds 'Cholkin be'Lo Shevu'ah', will agree that here, Shimon will not receive anything, even with a Shevu'ah (because clinging on to something is not a sign of ownership, holding it is!)

5)

(a)Assuming that, in the previous She'eilah, Reuven's grabbing is ineffective, what will be the Din if either before or after the grabbing, he declares it Hekdesh? Will the Hekdesh be valid?

(b)We ask what the Din will be if instead of grabbing it, Reuven declares it Hekdesh, assuming that grabbing would have been effective. Why might the Hekdesh ...

1. ... be valid?

2. ... not be valid?

5)

(a)Assuming that, in the previous She'eilah, Reuven's grabbing is ineffective, then it goes without saying that if either before or after the grabbing, he declares it Hekdesh his declaration is invalid.

(b)We ask what the Din will be if instead of grabbing it, Reuven declares it Hekdesh, assuming that grabbing would have been effective. The Hekdesh might ...

1. ... be valid on account of the principle 'Amiraso li'Gevohah ki'Mesiraso le'Hedyot' (declaring something Hekdesh has the same effect as giving it to a Hedyot).

2. ... be invalid because of the Pasuk in Bechukosai "ve'Ish Ki Yakdish es Beiso Kodesh", which teaches us that a person can only declare Hekdesh something that is actually in his possession (even though it belongs to him anyway).

6b----------------------------------------6b

6)

(a)To resolve the She'eilah, we cite the case of the bath-house over which two people were arguing. What did all the Rabbanan do when one of them declared it Hekdesh?

(b)Although Rav Oshaya instructed Rabah to ask Rav Chisda in Kafri what status the bathhouse had, whom did he ask when he stopped in Sura on his way to Kafri?

6)

(a)To resolve the She'eilah, we cite the case of the bath-house over which two people were arguing. When one of them declared it Hekdesh all the Rabanan stopped frequenting it.

(b)Although Rav Oshaya instructed Rabah to ask Rav Chisda in Kafri what status the bathhouse had, when he stopped in Sura on his way to Kafri he asked Rav Hamnuna the She'eilah.

7)

(a)Rav Hamnuna cited a Mishnah in Taharos. What does the Tana there say about a Safek Bechor? Is he referring to ...

1. ... a Bechor Adam or a Bechor Beheimah?

2. ... a Tahor Bechor or one that is Tamei?

(b)What is the case of ...

1. ... a Safek Bechor Beheimah?

2. ... a Safek Bechor Adam?

(c)How did Rav Hamnuna understand the Mishnah's ruling 'ha'Motzi me'Chavero Alav ha'Re'ayah'? To whom does it pertain?

(d)Seeing as it is a Safek B'chor, on what grounds would Beis-Din permit the Kohen to keep it?

7)

(a)Rav Hamnuna cited a Mishnah in Taharos. The Tana there rules with regard to a Safek Bechor 'ha'Motzi me'Chavero Alav ha'Re'ayah', irrespective of whether it is ...

1. ... a Bechor Adam or a Bechor Beheimah ...

2. ... a Tahor Bechor or one that is Tamei.

(b)The case of ...

1. ... Safek Bechor Beheimah is where the owner is uncertain whether the mother has given birth to any babies before.

2. ... Safek Bechor Adam is where the mother certainly gave birth before, only it is not certain whether she bore a baby that had the Din of a Bechor, or whether it was a 'Ru'ach', which is not considered a baby.

(c)Rav Hamnuna understood that the Mishnah's ruling 'ha'Motzi me'Chavero Alav ha'Re'ayah' pertains both to the Kohen claiming it from the owner, and the owner claiming it back from the Kohen ('Takfah Kohen, Ein motzi'in Osah mi'Yado').

(d)Beis-Din would permit the Kohen to keep the B'chor in a case where the owner was initially silent before objecting.

8)

(a)What did Rav Hamnuna then try to prove, based on the Beraisa which adds 'Asurin be'Gizah u'va'Avodah' (there where the Kohen did not take it)?

(b)How did Rabah refute Rav Hamnuna's proof? Why might there be no proof at all from 'Takfah Kohen' (by Bechor) for the case of the bathhouse?

8)

(a)Based on the Beraisa, which adds 'Asurin be'Gizah u'va'Avodah' (there where the Kohen did not take it), Rav Hamnuna tried to prove from here that whenever we say ' ... Ein Motzi'in mi'Yado', the claimant has the right to declare it Hekdesh (solving the current She'eilah).

(b)Rabah refuted Rav Hamnuna's proof however, seeing as the Kedushah there comes automatically, and would be in doubt even if we held 'Takfah Kohen Motzi'in Oso mi'Yado'. Whereas in the case of the bathhouse, where it is a question of validating the claimant's declaration of Kedushah, it may well be that even if we would hold 'Takfah Kohen Ein Motzi'in Oso mi'Yado', the Kedushah would not be valid there where the Kohen did not claim it.

9)

(a)The Mishnah in Bechoros states 'ha'Sefeikos Nichnasin le'Dir'. What does 'Sefeikos' refer to?

(b)How does Rav Chananyah prove Rabah (who assumes that 'Takfah Kohen Motzi'in Oso mi'Yado') right from this Mishnah?

(c)What does Abaye gain by establishing the Mishnah where the owner had only nine sheep besides the Safek?

(d)On what grounds does Abaye withdraw his rejection of Rav Chananyah's proof?

9)

(a)The Mishnah in Bechoros states 'ha'Sefeikos Nichnasin le'Dir' referring to Safek Pidyon Pe'ter Chamor (a lamb that one separated to exempt a Safek Bechor of a donkey, as we will establish later).

(b)Rav Chananyah proves Rabah (who assumes that 'Takfah Kohen Motzi'in Oso mi'Yado') right from this Mishnah because if we were to hold 'Ein Motzi'im Oso mi'Yado', how could the owner exempt animals that need to be Ma'asered, using a sheep that belongs to the Kohen.

(c)By establishing the Mishnah where the owner had only nine sheep besides the Safek Abaye refutes Rav Chananyah's proof, because 'Mah Nafshach', if the Safek is not a Pidyon Pe'ter Chamor, then there is no problem anyway, and if it is, then the owner has not exempted sheep that need to be Ma'asered.

(d)Abaye withdraws his rejection of Rav Chananyah's proof however, on the grounds that 'Mah Nafshach' would not apply in this case, because a Safek Mamon Kohen is simply not subject to Ma'aser Beheimah (reinstating Rabah's opinion [that 'Takfah Kohen, Motzi'in Oso mi'Yado']).

10)

(a)And he proves this from a Mishnah in Bechoros. What does the Tana there rule in a case where one of the counted sheep jump back into the pen, joining those waiting to be counted? How many sheep were already counted?

(b)Why do we exempt the sheep that ...

1. ... have not yet been counted from Ma'aser?

2. ... have already been counted? What is 'Minyan ha'Ra'uy'?

10)

(a)And he proves this from a Mishnah in Bechoros, where the Tana rules that in a case where one of the nine (maximum) counted sheep jump back into the pen, joining those waiting to be counted all the sheep are Patur from Ma'aser.

(b)We exempt the sheep that ...

1. ... have not yet been counted, from Ma'aser because of the one that has already passed, and the Torah says "Kol asher Ya'avor", 've'Lo she'Avar K'var' (and each one might be the one that passed already).

2. ... have already been counted, from Ma'aser because of Minyan ha'Ra'uy (meaning that the sheep that passed by the stick, were fit to make up a group of ten, to be exempted by the tenth sheep, when it joined them).

11)

(a)What does Rava mean when he says 'Minyan ha'Ra'uy Poter'? How many sheep were being counted and what happened to the one sheep?

(b)What happens to the three remaining sheep?

(c)How does Abaye now prove from the Mishnah in Bechoros that a Safek is not subject to Ma'aser?

(d)What makes all the un'Ma'asered sheep in the pen a Safek?

11)

(a)When Rava says 'Minyan ha'Ra'uy Poter' he is referring to a case where five say, of the owner's ten sheep have already passed by the stick, when the sixth one dies, leaving only three sheep in the pen ...

(b)... which the owner must then combine with the next pen-load of sheep to be born.

(c)Abaye now proves from the Mishnah in Bechoros that a Safek is not subject to Ma'aser because if it was, then why does the Tana exempt the remaining sheep from Ma'aser? Why does he not obligate them 'Mah Nafshach', on the grounds that each group of ten that does not include the one that already passed the stick is Chayav Ma'aser, and the Ma'aser is valid, whereas when one does, there is no harm in Ma'asering it, since they are all Patur anyway (because of Minyan ha'Ra'uy). What emerges is that there is no sheep that requires Ma'asering that remains un'Ma'asered.

(d)The fact that whichever of the ten the Patur sheep were to pass the stick, it would turn number ten into number nine renders all the sheep in the pen a Safek.

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