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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.
If someone gives produce to a Shomer the Tana Kama holds even if the produce is rotting the Shomer shall not touch them. (1)
R. Kahana says the Shomer shall not sell the rotting produce because a person prefers one Kav of his own produce rather than nine Kavim of his friend's produce.
R. Nachman Bar Yitzchak says the rotting produce shall not be sold because of the concern that the owner will separate Terumah and Ma'aser from it after it is sold. (2)
Now that the Chachamim said that the Shomer may not sell the produce even if it is rotting the owner may separate and Ma'aser from the produce that is in the hands of the Shomer.
Rabah Bar Bar Chanah says if the produce is rotting more than the usual the Shomer may sell it; however he must sell it to Kohanim for the price of Terumah. (3)
According to R. Nachman Bar Yitzchak even if the produce is rotting more than the usual it shall not be sold because of the concern that after it is sold the owner will separate Terumah and Ma'aser from it. (4)
If someone gives fruit to a Shomer and it is rotting or wine and it turned into vinegar or oil and it spoiled or honey and it congealed, the Shomer shall not sell it according to R. Meir. (5)
The Chachamim hold we make a Takanah for the owner and we sell it in Beis Din. (6)
When a Shomer sells rotting produce, or when a charity collector changes money of Tzedakah, or sells food of Tzedakah he shall sell it to others or change the money to other but not to himself. (7)
R. Yochanan says the Halachah is like R. Shimon Ben Gamliel every time he is mentioned in the Mishnah with three exceptions.
If a person is captured and we hear that he died we allow the relatives to work the property. (8)
If we didn't hear that the captive died according to Rav the relatives may not work the field because of the concern that they will ruin it.
Shmuel holds that we allow the relatives to work the field, since they are given a share like a sharecropper if the owner returns they will not ruin the field.
If the owner of the field was not captured but he traveled overseas and we don't know where he is everyone agrees that the relatives may not work on the field and if they do they are evicted.
A BIT MORE
1. R. Shimon Ben Gamliel holds that he shall sell them in Beis Din because it is Hashavas Aveidah to the owner.
2. If the owner separates Terumah and Ma'aser after it is sold it is not valid since it is no longer in the possession of the Shomer and the owner will be eating Tevel
3. Rabah Bar Bar Chanah holds like R. Kahana that the reason the produce shall not be sold is because a person prefers his own Kav, however it is a an exaggeration that a person prefers his own Kav more than nine Kavim of his friend's and therefore if the produce is rotting fast it shall be sold. However, it must be sold to Kohanim because the owner is permitted to separate Terumah and Ma'aser from it.
4. R. Nachman Bar Yitzchak holds that it is common for produce to rot more than the usual and it could happen quickly and therefore there is a concern that after it has been sold the owner will separate Terumah from it and therefore it may not be sold.
5. Even though according to Rabah Bar Bar Chanah R. Meir agrees if it is spoiling faster than usual it shall be sold however in this case the wine oil and honey are already spoiled and will not get any worst therefore there is no point in selling it according to R. Meir.
6. R. Meir holds that we are not concerned for the small loss of produce that is rotting at a normal pace, or a jar that will be ruined if the rotting produce is kept in the jar, while the Chachamim hold we are concerned for a small loss and therefore it shall be sold.
7. We do not want people to think that he sold it to himself for less than it is worth, or changed the money for himself for less than the going rate and therefore he must sell it to others or change the money with others.
8. If it turns out that the rumor was false and he didn't die the relatives may keep any produce they already ate and even if they heard that the owner is about to come back they may grab the produce that is in the field and eat it before the owner arrives. Regarding the produce that they did not eat yet by the time the owner arrives they take a share from the produce like a sharecropper.
Rabah Bar Bar Chanah says if produce is rotting more than the usual it may be sold to Kohanim for the price of Terumah. The Gemara asks the reason for R. Nachman Bar Yitzchak who holds that it may not be sold even if it is rotting more than the usual and the Gemara answers because of the concern that R. Nachman Bar Yitzchak holds it may quickly rot more than usual and the owner will separate Terumah from it after it is sold. Tosfos asks why the Gemara assumes that R. Nachman Bar Yitzchak argues with Rabah Bar Bar Chanah and holds that it may not be sold even if it is rotting more than usual maybe in truth R. Nachman Bar Yitzchak agrees that it may be sold in such a case. Tosfos answers that the Mishnah which states that the produce may not be sold is referring even to produce such as flax and produce that the Terumah and Ma'aser was already separated from it. If so, why may it not be sold? It must be that everyone agrees with the reason of R. Kahana that a person prefers one Kav of his own produce. If everyone agrees with the reason of R. Kahana why does R. Nachman Bar Yitzchak give a different reason? It must be he gives a different reason to teach us that even if it is rotting more than usual it may not be sold.
TAKANAH FOR THE OWNER
If someone is Mafkid produce with his friend and it is rotting or he was Mafkid honey and it was getting ruined, or wine and it was turning into vinegar a Takanah shall be done for the owner if he is not in town and it shall be sold even if it has already depreciated and it is not depreciating further because the basket or jar may also get ruined. (Shulchan Aruch CM 292:16)
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