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Beitzah 39

1) SALT AND WATER MIXED WITH DOUGH

QUESTION: Rav Ashi says that the spices that go into a food and the salt and water that go into dough are not Batel to the food or dough on Yom Tov. Therefore, the Techum of their owner is not Batel to the Techum of the owner of the food or dough. The reason is because it is a "Davar she'Yesh Lo Matirin," since one can wait until tomorrow to bring it out of the Techum of the owner of the dough, or one can stay within the present Techum and eat the food on Yom Tov.

There is a general rule that the principle of "Davar she'Yesh Lo Matirin" applies only in the case of a mixture of two of the same type of food (Min b'Mino). When, then, does Rav Ashi say that this principle applies in this case, where the mixture is comprised of *different* types of food (Min b'sh'Eino Mino), as the salt and water are different than the dough? In this case, the salt and water should indeed be Batel to do the dough!

ANSWERS:

(a) TOSFOS (DH Mishum) answers that the laws of Techumim are more stringent than other Isurim since there is a monetary element involved (and money, or ownership, cannot become Batel to someone else's ownerhsip). This is because the Techum, to a certain extent, stems from the ownership of the object (the food item has the Techum of its owner). Even though the Gemara rejected Rav Aba's reasoning (38b) that the reason the Techum of the salt and water is not Batel to the Techum of the dough is because ownership cannot become Batel, Rav Ashi accepts that reasoning when there is the additional reasoning of "Davar she'Yesh Lo Matirin."

(b) TOSFOS further answers that since the salt and water are so essential to the making of the dough, and the spices are so basic to the taste of the food, therefore they are considered to be one type of food with the dough. (That is, we view the completed spices and salt in its new form as a completed food item, and therefore it, too, is "a piece of dough" and not just flour, water and salt.)

(c) The RAN in Nedarim (52a) explains the reason why Davar she'Yesh Lo Matirin is not Batel in a novel manner, which answers why Rav Ashi applies the rule of Davar she'Yesh Lo Matirin to two different Minim as well. The reason an item of Isur becomes Batel when mixed with items of Heter is that when opposites combine, their contrast serves to be Mevatel each other (whichever one is the majority is Mevatel the one which is the minority). However, when like items combine, they cannot be Mevatel one another.

When something that is *Asur* becomes mixed with *Heter*, one is Mevatel the other. Even though the two items are the same type of food (Min b'Mino), they contrast because one is Asur and one is Mutar; they are opposites. However, if something is Asur now and will become Mutar later, it is not Batel because there is not enough opposition; it is as if the item of Isur which will later become Mutar is Mutar, to a certain extent, right now.

In such a case, if the mixture is Min b'sh'Eino Mino (two different types of foods), even if the Isur will later become Mutar, there is still enough opposition to be Mevatel it, due to the different nature of the objects themselves. Only if the mixture is Min b'Mino, and the only opposition is the fact that one item is Asur and the others are Mutar, will a "Davar sh'Yesh Lo Matirin" not offer enough opposition to become Batel to the other objects.

However, in the case of Isur Techumim, not only is the Isur a Davar she'Yesh Lo Matirin, it is even a Davar ha'*Mutar*. It is permitted to use the dough right now, in Yom Tov, as long as one keeps it within the range of its Techum (as opposed to a normal Davar she'Yesh Lo Matirin, which only becomes Mutar at a later time). We are trying to be Mevatel "Heter b'Heter." In this case, the opposition between the two different types of food alone is not enough to cause Bitul to take place. Even the objects are Min b'she'Eino Mino, no Bitul will occur, since the objects are both Heter and cannot cancel each other out through Bitul.

39b

OPINIONS: The Gemara says that the water in a public pit acquires the Techum of each person who takes the water from there. Rav Nachman and Rav Sheshes argue about the water that one person fills up for his friend from the public pit. Rav Nachman says that it has the Techum of the one for whom it was filled. Rav Sheshes says that it has the Techum of the one who took it from the pit. The Gemara concludes that their argument is based on whether one who finds an object and lifts it up with intention to make an acquisition on it on behalf of his friend is Koneh for his friend or not ("Magbi'ah Metzi'ah l'Chaveiro").

How does the question of "Magbi'ah Metzi'ah l'Chaveiro" affect which person's Techum the water follows?

(a) RASHI explains that both Rav Nachman and Rav Sheshes hold that one who finds an object *cannot* be Koneh it for his friend. When one lifts up the object, his friend is not Koneh it. (Indeed, this is Rav Nachman's express opinion in Bava Metzia 10a.) The question is whether the *first* person, i.e. the one who picks it up, is Koneh it when he picks it up for his friend. Rav Nachman says that he is not Koneh the object, because he did not have any intention to be Koneh it. Rav Sheshes says that since the second person is not Koneh the object, the first person is Koneh it.

TOSFOS asks, according to Rav Sheshes, how can the first person be Koneh the object? He had no intention to be Koneh it for himself! (We find in Bava Metzia (10a) that even though a person can be Koneh an object with the Kinyan of "Arba Amos," if he finds an object and falls on it with intention to be Koneh it in that manner, since he does not intend to be Koneh it with his "Arba Amos" but rather by falling on it -- which is not an act of Kinyan -- he is not Koneh the object at all.)

Rashi might hold that the person who picked it up does not mind being Koneh it himself, and knows that he is able to be Koneh it for himself. The only reason he does not intend to be Koneh it is because he thinks that he can be Koneh it directly for his friend. Had he known that he could not be Koneh it for his friend, and that the object he picked up is still Hafker, he would have been Koneh it for himself (so that nobody could take it from him) and then he would have given it to his friend. Since he would have wanted to be Koneh it himself had he known that he cannot be Koneh it directly for his friend, and since he does not have specific intention *not* to be Koneh it for himself, he therefore is Koneh it for himself. (In the case of the person who fell on an object to be Koneh it in that manner, the person does not know that he can be Koneh from Hefker with Arba Amos in the first place, so he cannot be Koneh it with Arba Amos. If he does know that it is possible to acquire an object with the Kinyan of Arba Amos, he has demonstrated that he does *not want* that Kinyan to take effect, by falling on the object.)

(b) TOSFOS cites the RASHBAM who explains the Gemara differently. Rav Sheshes holds "*Lo* Kanah Chaveiro," and that is why he says that the water follows the Techum of the person who took it out of the pit. Rav Nachman, though, holds that when he originally picked it up for his friend his friend was Koneh it, because "ha'Magbi'ah Metzi'ah l'Chaveiro *Kanah* Chaveiro" -- one who lifts a found object for his friend *can be* Koneh it for his friend.

How could Rav Nachman hold that "Kanah Chaveiro?" He himself maintains in Bava Metzia 10a that *Lo Kanah Chaeiro*! The Rashbam explains that the case of our Gemara is an exception to the rule. We are not discussing a single lost object which, when one finds and lifts up with intention for his friend to be Koneh, can no longer be acquired by anyone else. Rather, there is enough water in the pit for others, even after one takes water out for his friend. Therefore, by taking water out for his friend, he has not caused a loss to others, and therefore his friend is Koneh.

RABEINU CHANANEL (Bava Metzia 10a) and the RASHBA here say, similarly, that in this case Rav Nachman holds that his friend *is* Koneh -- but not because this case is different. Rather, Rav Nachman changed his mind about the Halachic ruling, and now holds that "ha'Magbi'ah Metzi'ah l'Chaveiro *Kanah* Chaveiro."

(c) RABEINU TAM says that Rav Nachman is consistent with his opinion that "ha'Magbi'ah Metzi'ah l'Chaveiro *Lo* Kanah Chaveiro." Why, then, does Rav Nachman say that the water has the Techum of the person for whom it was lifted? Rav Nachman means that *when it comes into the hands* of the second person, then he is Koneh it and it acquires his Techum, because the first person never intended to be Koneh it for himself.

Rav Sheshes, on the other hand, holds that "ha'Magbi'ah Metzi'ah l'Chaveiro *Kanah* Chaveiro." Nevertheless, the water has the Techum of the person who took it out of the pit. Why is that? Because the reason one can be Koneh something on behalf of his friend is through the logical principle of a "Migu d'Zachi l'Nafshei" -- since he could be Koneh the item for himself, he is therefore able to be Koneh it for his friend. Since his ability to be Koneh it for his friend stems from his ability to be Koneh it for himself, he cannot be Koneh for his friend to give it a different Techum than had he been Koneh it for himself, and therefore it has his Techum (even though it belongs to his friend).