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1)

(a) In a case where someone says 'Ish P'loni Yirshani' when he has a daughter, or 'Biti Tirshani' when he has a son, our Mishnah rules 'Lo Amar K'lum' - on the basis of the principle 'Kol ha'Masneh al Mah she'Kasuv ba'Torah, Tena'o Bateil'.

(b) Rebbi Yochanan ben Berokah says - Im Amar al Mi she'Ra'uy le'Yorsho, Devarav Kayamin ... '.

(c) We can extrapolate from the words of the Tana Kama - that if he would have bequeathed his property to 'Ben Bein ha'Banim', his words would have taken effect.

(d) The problem with this is - that it seems to tally with what Rebbi Yochanan ben Brokah says in the Seifa, so what are they arguing about?

(a) We object to the answer that when Rebbi Yochanan ben Berokah says 'Ra'uy le'Yorsho', he means 'Acher' (Ach) be'Makom Bas' and 'Bas be'Makom Bein' (and not Ben Bein ha'Banim) on the basis of a Beraisa in which Rebbi Yishmael B'no shel Rebbi Yochanan ben Berokah comments - that his father and the Chachamim argue over Ben Bein ha'Banim and Bas Bein ha'Banos, but not over Acher be'Makom Bas and Bas be'Makom Banim (because there, his father concedes to the Chachamim).

(b) In view of Rebbi Yishmael B'no shel Rebbi Yochanan ben Berokah, we initially establish the Machlokes in our Mishnah - as we suggested, on the grounds that the Chachamim of Rebbi Yishmael B'no shel Rebbi Yochanan ben Berokah disagree with him (and according to them, Rebbi Yochanan ben Berokah argues by 'Acher be'Makom Ben, and Bas be'Makom Banim as well).

(c) We could explain that in the previous Mishnah, the Tana presents the case of Ben Bein ha'Banim, and in this Mishnah, that of Bas be'Makom ha'Ben ... , in keeping with the principle 'Zu ve'Ein Tzrich Lomar Zu'. Alternatively (and preferably) we can explain that in the previous Mishnah, the Tana taught us the extent of the Tana Kama (that even Ben Bein ha'Banim does not acquire), and in this Mishnah, that of Rebbi Yochanan ben Berokah (that even Bas be'Makom Ben does).

(d) In a case where someone bequeaths his property to his uncle, there where he has a daughter and a brother, Rebbi Yochanan will concede to the Chachamim - that his words are invalid (and they are only valid when he bequeaths the one who directly follows the next of kin.

4)

(a) Rav Yehudah Amar Shmuel rules like Rebbi Yochanan ben Berokah. Rava - agrees.

(b) This ruling is confined to Ben Bein ha'Banim, and does not extend to Bas be'Makom Ben (as is evident from our final version of the Mishnah a little earlier) as well as from Shmuel himself, who ought otherwise to given an indication to that effect, and from Abaye earlier, who explicitly equates the Din of Rebbi Yochanan ben Berokah with 'Ben Bein ha'Banim'.

(c) Nor does it make any difference whether he bequeaths half his property to one of his sons ...

1. ... or all of it - either way, his words are valid.
2. ... orally or in writing - either way, his words are valid.

(d) We reconcile this ruling with Shmuel, who will rule later, that someone who writes all his property to his wife or to one of his sons, he merely appoints them as an Apotropus - by establishing the latter when the father (or husband) gave the property as a Matanah (since the position of Apotropus is also a gift), but *we* are speaking when he bequeathed it as a Yerushah (which we cannot construe the position of Apotropus as being).

(a) Rava learns from the Pasuk "ve'Hayah be'Yom Hanchilo es Banav" - that a father may bequeath to any one of his sons (of the next of kin, whoever they may be), like Rebbi Yochanan ben Berokah.

(b) Abaye queries Rava, because he learns it from the Pasuk "Lo Yuchal Le'vaker" - implying that a father cannot deprive the Bechor of his Cheilek Bechorah, but a Pashut of his Cheilek Pashut, he may.

(a) Rava answers by quoting a Beraisa, where Aba Chanan Mishum Rebbi Eliezer learns from "Lo Yuchal Le'vaker" - that the father cannot deprive the Bechor of his Cheilek Bechorah.

(b) We have thought otherwise - because we would have learned from a Pashut (in which connection we Darshen "va'Hayah be'Yom Hanchilo es Banav", as we just explained) from a 'Kal va'Chomer, that if a father can deprive a Pashut of his Cheilek Pashut, 'Kal va'Chomer' a Bechor of his Cheilek Bechorah.

(c) The 'Kal va'Chomer' of Bechor from Pashut is - from the fact that a Pashut inherits from his father even what is Ra'uy, whereas a Bechor does not (as we have learned above), giving the Cheilek Pashut an advantage over the Cheilek Bechorah.

(d) We have now refuted Abaye's Kashya - because we see from the Beraisa that "Lo Yuchal Le'vaker" is needed for itself, to preclude a Bechor from the 'Kal va'Chomer', in which case, we cannot Darshen anything from it.

7)

(a) Now that the Torah has written "Lo Yuchal Le'vaker" the Beraisa asks, why does it need to add "ve'Hayah be'Yom Hanchilo es Banav"? - meaning why can we not simply extrapolate from the Pasuk which forbids a father to deprive a Bechor of his Cheilek Bechorah, that he is permitted to deprive him or any of his other sons of their Cheilek Pashut?

(b) The Tana answers - that if not for "ve'Hayah be'Yom Hanchilo es Banav", we would rather have learned a 'Kal va'Chomer' from Bechor (who does not inherit Ra'uy) on to Pashut (who does), than preclude it from an inference.

(a) Rebbi Z'rika ... Amar Rebbi, Halachah ke'Rebbi Yochanan ben Berokah. Rebbi Aba comments on this - that Rebbi did not just rule theoretically like Rebbi Yochanan ben Berokah, but he did so practically in a case that was brought to him.

(b) The basis of their Machlokes is - which of the two is stronger, Halachah (because by Horeh, one can never be sure that one understands the circumstances of the ruling), or Horeh (because based on the principle 'Ma'aseh Rav', one never knows for sure that a theoretical ruling is not confined to one's learning, but that if a practical case occurred, the Rebbe might rule differently).

(c) The Beraisa says 'Ein Lemeidin Halachah Lo mi'Pi Limud ve'Lo mi'Pi Ma'aseh', incorporating the two cases that we just discussed. One can only rely on a ruling - where the Rebbe specifically states that his ruling is 'le'Ma'aseh' (to act upon).

(d) The Beraisa actually states two cases 'Ad she'Yomru Lo Halachah le'Ma'aseh; Sha'al ve'Amru Lo Halachah le'Ma'aseh, Yeilech ve'Ya'aseh Ma'aseh'. The difference between them is - that whereas in the former case, the Rebbe needs to specifically authorize the Talmid to act on his ruling, in the latter this is not necessary because it is obvious.

(a) In a Mishnah or Beraisa (which we have basically been discussing until now) - 'Halachah' is not the last word, and therefore requires the Gemara's backing before it can be accepted; whereas 'Halachah' in the Gemara is final.

(b) The reason for this distinction is - due to the fact that firstly a ruling in the former is often subject to further Machlokes, whereas the rulings of Rav Ashi in the Gemara were meant to be the last word for all times.

(c) When Rebbi Asi asked Rebbi Yochanan whether they could learn from his theoretical rulings, he replied - that they should not do so until he told them that it was Halachah le'Ma'aseh.

(d) This would fall away after his death - because the reason for his ruling (that he might change his mind) was no longer applicable then.

(a) When the Tana then continues 'u'Vilevad she'Lo Yedameh', he cannot be generalizing - because that is the way Torah is learned (applying the Halachah from one case to another, which requires the attribute of 'Binah').

(b) Rav Ashi therefore ascribes it - to the area of T'reifos, where only those T'reifos listed by Chazal are forbidden ...

(c) ... because, as the Beraisa explains, there are limbs (such as the junction of nerves) which render the animal T'reifah, if they are severed at a certain point, but Kasher if they are cut to the bone a little higher up (even though more of the limb has been cut off).

(a) Rava instructed Rav Papa and Rav Huna B'rei de'Rav Yehoshua, in the event that they found an error in a ruling of his ...

1. ... during his lifetime - not to tear it up but to bring it to him, and he would either resolve their problem or concede that they were right.
2. ... after his death - neither to tear it up (in case he was right), nor to abide by his ruling (because a Dayan can only go by what he sees ['Ein le'Dayan Ela Mah she'Einav Ro'os']).

(b) He was referring to a ruling that he had written and handed to a litigant, who asked for a written proof of the ruling. Otherwise, the oral Torah was not transcribed.

(c) When Rebbi changed his ruling from the night to the morning, he exclaimed that *maybe* he had erred. It was not obvious that he had - because in matters that depend on Shikul ha'Da'as (human judgment), there are sometimes two sides to the coin, either of which may be right.

(d) We learn from the Pasuk "ve'Imachem bi'Devar ha'Mishpat" - the principle 'Ein le'Dayan Ela Mah she'Einav Ro'os'.