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Bava Kama, 101

1) A THIEF WHO STEALS WOOL AND DYE

QUESTION: The Gemara asks whether there is "Shevach Samanin Al ha'Tzemer" or not. Is the dye on the wool considered to be in existence in its original form, or is it considered to be consumed by the wool? The Gemara explains that the practical difference is in a case where a thief stole dye and wool from one person, and then he colored the wool with the dye. If the dye is considered to be present, then the thief can simply return the dyed wool in its present state, and it is considered as though he is returning both the dye and the wool. If the dye is not considered to be present, then the thief must return the wool plus the value of the dye which is no longer present.

The Gemara asks what is the difference if he must return the value of the dye? Since the wool is now dyed, it is worth more than it was worth when he stole it, and therefore the thief -- by returning the dyed wool -- has returned both the wool and the value of the dye!

The Gemara answers that the market price of dyed wool depreciated, so that dyed wool is not worth as much as wool that is not dyed, since people are using dye only on finished garments and not on wool. Therefore, if the thief must return the value of the dye, then he must add some money to the dyed wool that returns.

RASHI explains that had the only use of dye been for dying wool, the thief would not have been required to add the value of the dye to the dyed wool that he returned. However, since there exists the option to use dye for dyeing garments -- a use which would not cause the dye to depreciate in value -- the thief must return to the owner the full value of the dye that he stole because of this loss that he is causing to the owner. This is also the way the ROSH and NIMUKEI YOSEF explain the Gemara.

REBBI AKIVA EIGER (in Gilyon ha'Shas) asks why Rashi needs to explain that the dye would not lose value by being used to dye a garment. The Gemara can be understood just as well even if the dye depreciated in value (after the thief dyed the wool) and any use that it has will not add up to the value that the dye originally was worth. Even though the dye has depreciated in value, if we consider the dye to be consumed by the wool, then the thief must return the value of the dye that it was worth at the time that he applied it to the wool, and not its present value. This is the way we always treat a stolen item that is being repaid! If the dye is considered to be present, then the thief can return the colored wool in its present form.

ANSWER: Rebbi Akiva Eiger seems to be understanding the words "Zol Tziv'a" ("the dyed wool depreciated") to mean that after the wool was dyed, dye went down in value, so that it was no longer worth as much as it was worth at the time that the thief applied it to the wool. This is indeed the way the RAMBAN (in Milchamos) explains these words.

However, as RABEINU MOSHE KAZIS explains, Rashi seems to be understanding these words differently. Rashi seems to be explaining that the price of dye did not change from the time that the thief stole it until the time that he returned it. Rather, dyed wool was *always* low in value, in contrast to dye, or dyed garments, which are worth more than dyed wool. This is why Rashi adds the words that dyed wool "depreciated in value *in the world*," meaning that the low price was due to the nature of the world and not due to fluctuations in the market.

Since, according to Rashi, the Gemara is not discussing a case where there was a depreciation in the value of the dye, then even if the dye is not considered to be present, the thief will not have to pay more than the present value of the dye.

Why, though, does Rashi explain the Gemara this way? Why does he not explain that the value of the dye depreciated, like the Ramban explains? Perhaps Rashi infers this from the fact that the Gemara makes no mention of the fact that if the dye is not considered present then the thief will have to pay based on the original value of the dye and not based on the present value. Until the Gemara gives this answer, and in its following answer (that the thief dyed a monkey with the dye), the Gemara is assuming that the thief must pay the present value of the dye. If the whole point of this answer is that the thief must pay a different value, then the Gemara would have said so explicitly. This is why Rashi learns that the Gemara means simply that dyed wool is less valuable than wool alone and dye alone. (Even the Ramban might not be saying that the Gemara means the value of dye depreciated, but rather he is saying that the Rif is referring to a case where the value of dye depreciated. The Ramban writes this in order to answer the question of the Ba'al ha'Me'or.)

Why, though, does the Gemara itself not suggest that the practical difference is in a case where the dye depreciates in value after it is stolen? Rabeinu Moshe Kazis points out that the Gemara indeed could have used this as a practical difference. Perhaps the Gemara does not use this as a practical difference because it wants to keep the case simple. The Gemara was looking for a way to make the thief pay if the dye is not considered present, simply because he did not return the full value of the dye, and not because he acquired it with a Shinuy and must return the original value of the dye (its value at the time that it was stolen).

101b

OPINIONS: The Gemara quotes a Beraisa which teaches that if a person dyes clothing with the dye from fruit of Shevi'is, the clothing must be burned.

Why must the clothing be burned? It is apparently because of the Halachah of Bi'ur, which requires that in the Shemitah year, after the time that a fruit is no longer available in the field, a person must be Meva'er (destroy) that fruit. (TOSFOS RABEINU PERETZ, ME'IRI; according to the RASHASH, this is also the intention of RASHI DH Yesh Lahen Bi'ur; see next Insight.)

It seems from this Beraisa that Bi'ur means the destruction of produce (as in "Bi'ur Chametz"). However, the Tosefta (Shevi'is 8:4) states that at the time of Bi'ur, a person must take the Shevi'is fruit into the street and make it Hefker so that anyone may take it, and afterwards he may bring it back into his home and eat it until it is finished. This implies that Bi'ur means simply taking the fruit out of one's home (and making it Hefker), as in "Bi'ur Ma'aseros" (which is done in the fourth and seven year).

What is the true meaning of Bi'ur?

(a) The RAMBAM (Hilchos Shemitah 7:1-3) explains that Bi'ur means that the produce becomes prohibited to be eaten and it must be burned or destroyed. This is also seems to be the view of Rashi here (and in Yevamos (122a) and in other places), where Rashi writes that produce of Shevi'is is destroyed at the time of Bi'ur. How does Rashi, though, understand the Tosefta?

Rashi in Pesachim (52b, DH Mishum she'Ne'emar) explains that the fruit is destroyed by placing it in a place that is Hefker, where it will be trampled by animals. (See also Rashi in Nidah 51b, DH Kol she'Yesh Lo, who explains that Bi'ur means to remove the fruit from one's home.)

Why, then, does the Beraisa here teach that the produce must be burned at the time of Bi'ur? Perhaps Rashi holds that it is only a garment that must be burned, since it is not ruined by the trampling of animals. Fruit, on the other hand, can simply be placed in a public area where it will be trampled.

(b) TOSFOS in Pesachim (52b, DH Misba'arin), the RAMBAN (Vayikra 25:7), and the RASH (Shevi'is 9:8) explain that there is no requirement to burn or destroy produce of Shemitah at the time of Bi'ur. One must simply be Mafkir the produce so that anyone may take it, and afterwards even the owner may reclaim it for himself and eat it for as long as he wants. The Ramban proves this from the Tosefta mentioned above, and from the fact that produce of Shemitah does not appear in the list -- at the end of Maseches Temurah -- of Isurei Hana'ah that are either buried or burned.

According to these Rishonim, why does clothing dyed with the produce of Shemitah need to be burned? (MELECHES SHLOMO, Shevi'is 7:1)

The Ramban answers that if the owner was not Mafkir the produce before the time of Bi'ur, then the produce becomes Asur (perhaps only mid'Rabanan).

Alternatively, it could be that the Beraisa is discussing produce of Shemitah which the owner was not Mafkir, and treated like the produce of other years. According to RABEINU TAM (cited by Tosfos in Sukah 39b, DH ba'Meh Devarim Amurim), such produce becomes Asur mid'Oraisa. According to the Ramban (Vayikra 25:5), it becomes Asur mid'Rabanan.

(c) The RA'AVAD (Hilchos Shemitah 7:3) writes that both opinions are correct. There are two different types of Bi'ur that must be done with fruits of Shevi'is. When fruit of Shevi'is is no longer available in one particular city or location, any person living in that location must be Mafkir the fruit that is in his possession, or bring it to Beis Din to distribute. However, when a particular fruit is no longer available in one of the three regions of Eretz Yisrael (Yehudah, Galil, and Ever ha'Yarden; Shevi'is 9:2), the fruit must be destroyed.

QUESTION: The Gemara quotes a Mishnah which states that the Halachos of Shevi'is and the Halachos of Bi'ur apply to Sefichei Satis, plants from which dyes are made (see Background to the Daf, Bava Kama 101:20), and to the money that is paid for them.

Rashi explains that when the Gemara says that the Halachos of Shevi'is apply to them it means that one may not do business (Sechorah) with them, because the Torah says "l'Ochlah," implying that the fruit must be eaten and not traded. Therefore, it is not permitted to use these fruits for dye because that is considered Sechorah. However, it is permitted to burn them before the time of Bi'ur, because that is a use that is similar to eating, "l'Ochlah."

Rashi's words here are perplexing. Why should dyeing a garment with fruit of Shevi'is be considered Sechorah, if one is doing it for his own personal use? Moreover, the Gemara a few lines later teaches that it *is* permitted to use dyes of Shemitah for dyeing clothing, since they are considered "Hana'asan u'V'i'uran Shaveh" -- items which are consumed before the benefit is derived from them (see Rashi DH Yatz'u Etzim)! (When the Beraisa, at the end of 101a, teaches that clothing dyed with Shemitah produce must be burned, it is referring to *after* the time of Bi'ur has passed.)

In addition, how can Rashi permit burning fruit that has Kedushas Shevi'is before the time of Bi'ur because it is similar to eating? The Gemara, a few lines later, teaches that burning wood is *not* similar to eating fruit (and it therefore should be prohibited)! (REBBI AKIVA EIGER, MAR'EH KOHEN, YEFEH EINAYIM, MIKDASH DAVID Zera'im 59:4)

A similar question may be asked on Rashi (beginning of 102a, DH Stam) who writes that Sefichei Satis, which have Kedushah, may not be used after the time of Bi'ur even for burning as firewood. This implies that before the Bi'ur they *may* be used for firewood, which contradicts the Gemara! (RASHASH, MAHARSHA in Mahadura Basra)

ANSWER: It seems clear that the words in Rashi here were reversed. The words of Rashi should read that "it is not permitted to *burn* plants of Shevi'is because it is considered Sechorah, and it *is* permitted to dye with plants of Shevi'is, because dyeing is similar to eating (as the Gemara explains)." (The Mar'eh Kohen makes a different emendation in the words of Rashi.)

The cause for this error was probably the comment of Rashi earlier (end of 101a). When the Beraisa teaches that a garment dyed with Shemitah produce must be burned, Rashi writes that "it is prohibited to do Sechorah with fruit of Shevi'is," implying that dyeing clothes is similar to Sechorah. What does Rashi mean by that? In addition, according to our emendation in the words of Rashi, Rashi considers burning firewood to be similar to Sechorah; in what way is it similar to Sechorah?

The answer is that Rashi understood that the Isur of Sechorah is directly related to the Halachah of Bi'ur. When the Torah says, "l'Ochlah," it means that Shemitah produce must be eaten before the time of Bi'ur, and it is for that reason that one may not do business with fruits of Shevi'is, since one is benefiting from them without destroying them and might come to use them after the time of Bi'ur. For this reason, Rashi puts into the category of Sechorah any use of Shemitah fruit which is either after the time of Bi'ur, or which is before the time of Bi'ur but one derives benefit from the fruit at a different time than the fruit is consumed. This is clear from Rashi later (102a, DH le'Toch) who writes that washing clothes with wine of Shevi'is is prohibited because of Sechorah. Why does Rashi not write that it is prohibited because it is not "Hana'asan u'Vi'uran Shaveh," as the Gemara explains (REBBI AKIVA EIGER)? The answer is that Rashi puts anything which is not "Hana'asan u'Vi'uran Shaveh," into the category of Sechorah, because it might cause a person to benefit from the fruit of Shevi'is after the time of Bi'ur. This is also clear from Rashi in Sukah (see Insights to Sukah 40:2).

Accordingly, this is what Rashi means here when he writes that it is prohibited to burn wood of Shevi'is because of Sechorah (according to our emendation). This is also what Rashi means earlier (101a) when he writes that one must burn a garment dyed with Shevi'is fruit after the time of Bi'ur because one may not do Sechorah with the fruit of Shevi'is.

In short, the Isur of Sechorah is the source for all of the Halachos of Bi'ur of fruits of Shemitah.

What does Rashi later (beginning of 102a) mean when he writes that dye plants of Shevi'is cannot be burned as firewood after Bi'ur, implying that before Bi'ur they may be used in such a manner? It seems clear from Rashi that the words "even for fuel" are out of place, and they belong three words earlier. Rashi is saying that plants which are normally used to produce dyes are Kadosh with Kedushas Shevi'is to the extent that even if they are picked with the intention to use them as fuel, they still retain the Kedushah of Shevi'is and cannot be used after the time of Bi'ur. This is the context in which these words appear in Rashi. (M. Kornfeld)