There seems to be 2 approaches in the Rishonim as to what time period we're discussing at the stage of the Gemara when Rami Bar Chamah asks his question: "How can the Baal be Makneh something that doesn't exist yet!"

Tosfos, for technical reasons ("Maos Ainan Konos") and the language of the Gemara on 34a ("Who says it WILL get stolen"), learn that we're discussing the Baal being Makneh the Parah for the Keifel, already back at Shaas Mesirah, yet it would still be considered something that doesn't exist yet, because it's not an eventuality (Avidi D'Asu).

Other Rishonim, who don't have Tosfos' questions, maintain that at this stage of the Gemara, after the Tzrichusa, we're discussing the Baal being Makneh just the Keifel, AFTER the Geneivah, to which Rami Bar Chamah asks: "How can the Baal be Makneh something that doesn't exist yet!"

My question:

Do we not already see by this stage of the Gemara, i.e. after the Tzrichusa that explains why we need both the cases of Beheimah and Keilim in the Mishnah (because if we only had one, we'd think the Baal does not intend to be Makneh in the other circumstance) that:

a) we MUST be discussing the time period of Shaas Mesirah (i.e. like Tosfos and NOT like the other Rishonim), because the very fact that we need clarification of the Baal's Daas shows us that we're going back in time...In other words, if the Kinyan is happening at the time the Shomer pays, wouldn't the Baal articulate what he intends his arrangement to be with the shomer? Where is there room for question?

b) Even if the Kinyan IS taking place at Shaas Mesirah (Parah L'Kefeyla, like Tosfos learns), we already MUST be discussing some type of Umdena of the Baal's Daas at that time (like the Gemara says in its Maskana, "Naaseh K'Omer...."). Again for the same reason, the very fact that we needed clarification of the Baal's Daas, i.e. under what circumstances he intends to Makneh the Keifel, indicates that it was not articulated at Shaas Mesirah.

c) If so, then the only thing that really changes between Rami Bar Chamah's Hava Amina and Rava's answer is what the Baal is actually Makneh to effect the Kinyan, but NOT the "Naaseh", i.e. the implicit Umdena of the Baal's Daas at Shaas Mesirah?

In other words, is it true that even Rami Bar Chamah was learning, NAASEH K'OMER LO "Parah L'Kefeyla"? (according to Tosfos).

Daniel Steinberg, Columbus, OH 43209

1. Tosfos' (d.h. "K'gon) Hava Amina in the Gemara's initial assumption (i.e. prior to Rava's answer of "Naaseh K'Omer Lo...") of how the Baal HaPikadon is Makneh Keifel to a Shomer is that after the Parah is stolen, the Shomer pays the Baal for the Keren. This procedure of Kinyan is what prompts Rami Bar Chamah to ask - but the Keifel does not exist yet in the world!

2. For technical reasons ("Maos Ainan Konos", etc.), Tosfos falls off his pshat of: after the Parah is stolen, the Shomer pays the Baal for the Keren, and instead Tosfos explains the Gemara's initial assumption is that the Baal is Makneh the "Parah for the Keifel", back at Shaas Mesirah, and that procedure of Kinyan is what prompts Rami Bar Chamah to ask his question.

3. Rami Bar Chamah's question comes AFTER we have already been told that the Chiddush of teaching Beheimah AND Keilim in the Mishnah is to inform us under what circumstances the Baal intends to be Makneh Keifel.

4. My question is: where is there room for Tosfos Hava Amina, that at this stage of the Gemara, the initial assumption is that the Baal HaPikadon is Makneh the Keifel to the Shomer after the Parah is stolen?

The Gemara just told us one line ago that the appearance of the cases of Beheimah and Keiliim in the Mishnah exist solely to clarify for us under what circumstances the Baal intends to be Makneh Keifel. Therefore, that Chiddush precludes the possibility of Tosfos' Hava Amina, that at this stage of the Gemara we're thinking that the Baal is Makneh the Keifel after the Parah is stolen.

That time period of Kinyan would leave no room for ambiguity, because if the Baal is Makneh the Keifel after the Parah is stolen, he would clearly articulate his intentions through his words and actions whether he wants, or does not want, to still be Makneh the Keifel in cases of Beheimah or Keilim.

In other words, Tosfos' Hava Amina of what the Gemara's initial assumption of the procedure of Kinyan is, by this stage of the Gemara, runs contrary to the Chiddush of the cases of Beheimah and Keilim in the Mishnah!

Warm regards,

-Daniel Steinberg

Thank you.

So if I understand correctly, you are saying that even in the Gemara's initial assumption (i.e. pre-Rava) of the procedure of the Kinyan, according to Tosfos' Hava Amina, that the Baal is Makneh the Parah at Shaas Tashlumin (i.e. before he comes on to the Pshat of 'Parah L'Kefeyla''), we would STILL have a need for the Chiddush cases of Beheimah and Keilim in the Mishnah to clarify for us under what circumstances the Baal would want to be Makneh - when he did not articulate what he intended to do at Shaas Tashlumin?

Is the entire Chiddush then (if the Kinyan is occurring at Shaas Tashlumin), that if the Baal accepted the Shomer's payment of Keren, and nothing was ever articulated between them, were it not for the Mishnah teaching both Beheimah AND Keilim, we would have thought that the Baal could claim 'I never meant to Makneh you the Keifel when I accepted your payment of the Keren for the Beheimah (or the Kli)'?

Warm regards,

-Daniel Steinberg