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Bava Basra, 87

1) LEFTOVER LIQUID IN A BARREL

QUESTION: The Mishnah teaches that when a person purchases a barrel of wine (or oil), the seller must let three drops of the liquid drip into the buyer's vessel after emptying its contents. Any leftover liquid that collects at the bottom of the vessel of the seller when the seller tilts his vessel belongs to the seller.

Rebbi Elazar asks why should this case be different than the case involving Terumah? The Mishnah in Terumos (11:8) says that when a person empties a barrel of Terumah and then tilts the barrel so that liquid collects on the bottom, the liquid that collects is also Terumah. If we apply the logic of our Mishnah to the case in Terumos, the liquid left in the barrel should be Chulin! How can Rebbi Elazar compare the laws of purchases (Mekach u'Memkar) to the laws of Terumah? Even if a buyer foregoes (he is Mochel) the liquid that is left after the three drops are allowed to drip out, when a person who fills a barrel with Terumah, obviously the liquid that is left in the barrel is also Terumah! Although this distinction is expressed by the Gemara's answer, what was the Gemara's question in the first place (when it says that a purchase is different because the buyer is Mochel what is left)? Why did Rebbi Elazar not make such a distinction? (RAMBAN and Rishonim)

ANSWER: The Gemara initially thought that liquid being purchased, and liquid of Terumah, are comparable, because the Mishnah there in Terumos states that when a person pours out Terumah into the Kohen's vessel and lets three drops drip out, he may then fill his empty vessel with a liquid of Chulin and he does not have to reckon with whatever small amount of Terumah is left in the vessel. This implies that the Halachah of Terumah is indeed similar to that of purchasing. However, this point itself needs clarification; why should it be sufficient to let only three drops drip out after emptying the Terumah from the vessel? Why is it permitted to mix Chulin into the vessel afterwards?

The Rishonim answer that the Mishnah does not permit a person to *drink* what is left in the barrel (of Terumah) after three drops have dripped out; it only permits mixing Chulin into the barrel and being Mevatel the Terumah. Although it is normally Asur to be Mevatel an Isur knowingly, l'Chatchilah, that prohibition is only mid'Rabanan (according to most Rishonim). After a person lets three drops of Terumah drip out of the barrel, the Rabanan permits him to be Mevatel the rest l'Chatchilah.

According to this, the Rishonim suggest two ways to explain the comparison of our Gemara between purchasing and Terumah.

(a) The RITVA explains that the Gemara initially thought that the Mishnah in Terumos is discussing a situation in which the owner originally declared the contents of the barrel to be Terumah by specifying that "this barrel shall be Terumah." (He did not separate Terumah by hand and then pour it into the barrel.) The Gemara thought that the reason it is not necessary to let more than three drops of Terumah drip out is for the same reason that the seller does not have to let more than three drops drip out into the buyer's vessel. When a buyer asks to buy a barrel, he does not have intention to acquire the liquid that collects on the bottom of the seller's vessel after three drops have been allowed to drip out. Similarly, when a person declares the contents of his barrel as Terumah, he intends only to make the contents of the barrel that come out right away, plus three drops, Terumah, but not the remaining contents of the barrel. (The Gemara was assuming that the Mishnah maintains "Yesh Bereirah," and that it is possible to designate retroactively which wine comes out easily and which collects in the barrel after three drops have dripped out.) Therefore, the Gemara asks why should the wine that collects in the barrel afterward be considered Terumah if, in the case of Mekach u'Memkar, the wine that collects afterward is not considered the buyer's. The Gemara answers that the Mishnah is not discussing a case in which the person declares the barrel's contents to be Terumah. The reason why it is not necessary to let more than three drops drip out is *not* related to the intention of the owner in declaring the contents Terumah. Rather, all of the wine in the barrel is Terumah, but the Rabanan permitted the owner to be Mevatel the leftover Terumah after the first three drops have dripped out.

The RAMBAN rejects this explanation based on the implication of the Mishnayos in Terumos. However, the Ritva defends this explanation and accepts it.

(b) The CHIDUSHEI HA'RAN explains that the Gemara thought that we do not require the seller to let more than three drops drip out because of a Takanah d'Rabanan that was enacted for the benefit of the seller. The Rabanan did not require the seller to trouble himself to tilt the barrel until more than three drops come out. The Gemara thought that for the same reason, the Rabanan did not trouble the owner of Terumah to tilt his barrel and wait until more than three drops come out. That is why they permitted the owner of the Terumah to mix Chulin into the barrel after he let three drops drip out. The Gemara's question is that just as the Takanah of our Mishnah applies even when the seller, on his own, tilts the barrel to let the wine collect (and the Takanah teaches that he does not have to give that wine to the buyer), similarly, when the owner of Terumah tilts his barrel to let the wine of Terumah collect at the bottom of the barrel, it should still be permitted for him to mix Chulin into the barrel and be Mevatel the Terumah that collected at the bottom. However, the Mishnah teaches that he may *not* do so; why not? The Gemara answers that the reason why the seller does not need to let more than three drops drip out in the case of our Mishnah is not because of a Takanah for the benefit of the seller, but rather because the buyer was Mafkir everything in the barrel that is left after three drops drip out, because he does not want to wait around for more. With regard to Terumah, though, the reason it is not necessary to let more than three drops drip out is indeed because of a Takanah d'Rabanan which was enacted so in order not to overburden the owner of the wine. Since the Takanah was made only to ease the burden of the owner of the Terumah, if the owner tilts the barrel and allows wine of Terumah to collect at the bottom such that it is easy to pour out that wine, the Rabanan did not apply their Takanah, but rather they applied their Isur not to be Mevatel Terumah l'Chatchilah.

87b

QUESTION: The Mishnah discusses a case in which a person sends a flask with his young child to a storekeeper in order to buy oil. The storekeeper takes the flask from the child, fills it with oil, and sends it back with the child to the buyer. The Tana Kama rules that if the flask breaks while the child is carrying it back to his father, the storekeeper is obligated to pay the father for the flask (and the oil).

The Gemara questions why the storekeeper should be obligated to pay for the flask. Since the buyer sent it with his young child, it should be considered an "Aveidah mi'Da'as," something that a person willingly lost or destroyed. The father knowingly gave the flask to a young child and he was aware of the significant risk that the child might break the flask. The storekeeper, therefore, should be exempt.

The words "Aveidah mi'Da'as" imply that the father made the flask Hefker by giving it to the child. By putting the flask in a situation where it could be easily lost or broken, it is as if the father renounced his ownership of it. This can be inferred from the Gemara in Bava Metzia (21b) which says that if a person -- after collecting the grain from his granary -- leaves over a small amount of grain that is spread over a large area (Kav b'Arba Amos), that grain is considered an "Aveidah mi'Da'as" and we assume that the owner was Mafkir it for all to take (see Gemara there, 21a, and Rashi there, 21b, DH d'Aveidah mi'Da'as).

If being an Aveidah mi'Da'as means that the owner made the object Hefker, then how are we to understand the answers that the Gemara suggests to why the flask is not considered an Aveidah mi'Da'as? The Gemara suggests that the storekeeper is obligated to pay the father because he accepted responsibility for the flask either by intending to purchase it or by using it without permission. If the flask is Hefker, though, because it is an Aveidah mi'Da'as, then the storekeeper has permission to take it for himself without obligating himself in any payment to the father! Why, then, should he be obligated to pay the father (when the flask breaks in the hands of the child) just because he used it without permission? No permission is necessary to use it! (See SHACH, CM 261:3.)

ANSWERS: It is clear that the Gemara is using the words "Aveidah mi'Da'as" with a different meaning in the context of this case. Although the Gemara in Bava Metzia (21b) says that the words "Aveidah mi'Da'as" mean that the owner made the object Hefker by knowingly and willingly leaving it behind, in our Gemara those words mean merely that the owner placed the object in a precarious position, and, as a result of his action, there is no obligation for anyone else to save it or return it to him. The owner's action of relative irresponsibility with his object exempts others from the Mitzvah of Hashavas Aveidah. It does *not*, however, make the object Hefker and permit others to use it without permission. (They are exempt from Hashavas Aveidah because the owner knows where it is and he put it into that place or into that situation, and thus it is not considered an "Aveidah" which needs to be returned.)

How do we determine which type of Aveidah mi'Da'as the owner makes Hefker, and which type of Aveidah mi'Da'as is not Hefker (but rather merely does not have to be returned to the owner with the Mitzvah of Hashavas Aveidah)? We find the words "Aveidah mi'Da'as" in the Gemara in Bava Metzia (23b) applied to an object that a person leaves in a place that is not safe; the Gemara calls a barrel of wine that was left open in a place where crawling creatures can enter it an "Aveidah mi'Da'as." The Gemara there (25b) calls an object left in a garbage heap which is emptied often an "Aveidah mi'Da'as." In addition, the Gemara there (31a) says that if a person's animal wanders into the field of a Nochri who warns the owner that he is going to kill the animal if it is not removed immediately, and the owner still does not remove the animal, it is called an "Aveidah mi'Da'as." In such situations, does the object become Hefker? There seem to be two opinions in the Rishonim.

(a) The RAMBAM (Hilchos Gezeilah 11:11) writes that if someone knowingly places his money in a position where, in all likelihood, it will become lost (for example, he throws his wallet into the area of Reshus ha'Rabim), there is no Mitzvah for others to return it to him, but it is still not permitted for others to take it, because it is not Hefker. The Rambam seems to understand that most cases of Aveidah mi'Da'as are not cases of Hefker, like the case in our Gemara. Why, then, in the case in Bava Metzia of the grain left in the granary, is the grain considered Hefker?

The Rambam understands that the case there is different, because in that case there is strong reason to assume that the owner does not have any intention to gather the leftover produce for himself. It is inconvenient for him to collect it because of the combination of its low value and the trouble involved in gathering it. In contrast, when a person acts in a seemingly illogical manner by not taking care of his possessions, since we have no rational explanation for his behavior, we assume that he was temporarily mentally disoriented but that he eventually he will regain his faculties and will return to collect his money. We assume that in the back of his mind he wants to come and collect it at a later time, and therefore he is not making it Hefker now. (TAZ and NESIVUS in Choshen Mishpat 261)

(b) The TUR argues with the Rambam. He writes that an Aveidah mi'Da'as is generally Hefker, as the words themselves imply. (According to the Rambam, the Gemara here should have said simply that "it is not an Aveidah" (and that is why the storeowner should be exempt), instead of saying that it is an "Aveidah mi'Da'as.") Our Gemara is borrowing the term "Aveidah mi'Da'as" and using it with a different meaning. What, then, is the reason we do not assume that the father is making his object Hefker in the case of our Gemara, if an Aveidah mi'Da'as is normally Hefker?

The reason might be that in the case of our Gemara there is a clear purpose for which the father is entrusting the flask to the child: he wants the flask to reach the storekeeper in the most convenient way for him to get it there. We assume that the father considered the advantages and disadvantages of sending the flask with the child, and decided that it is worthwhile to send it with the child despite the risks involved. There is no reason to assume that he is making his flask Hefker. In contrast, if a person places his money into a position where it can become lost with no apparent gain, then we assume that he does not care if it becomes lost and that he is making it Hefker.