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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Kama 70



(a) Accordng to the Neherda'a, one is not permitted to write an Urch'sa - a power of attorney, on Metaltelin.

(b) Ameimar explained to Rav Ashi that the reason for this is the statement by Rebbi Yochanan - 'Gazal ve'Lo Nisya'ashu ha'Ba'alim, Sheneihem Einan Yecholim Le'hakdish ... ve'Zeh Le'fi she'Eino bi'Reshuso' (denying the owner authority over Metaltelin on which he has no jurisdiction).

(c) The ramifications of the Neherda'a's ruling are - that should the Sheli'ach lose the article, the owner may reclaim it from the guardian (see also Tosfos DH 'Lo Kasvinan').

(d) The second Lashon qualifies the statement, limiting it to Metaltelin which the guardian denied - since such a document then appears false (as if the Sheli'ach was claiming the article on behalf of someone who does not really own it).

(a) The Neherda'a also insist that an Urch'sa must contain the statement 'Zil Don ve'Zachi ve'Apich Lenafshech' - because otherwise (if the Sheli'ach claims the article purely on behalf of the owner), the guardian can refuse to give it to him, on the grounds that he (the Sheli'ach) did not give him the article, and that the claim is therefore none of his business.

(b) Abaye validates the Urch'sa even if the owner restricted this to a half, a third or a quarter - because of the principle of 'Migu' (meaning that once he has the authority to claim part for himself, he can extend the claim to the part that belongs to the owner as well).

(c) According to Ameimar, if he seized the article, he is permitted to retain it. This appears to pertain to the Sheli'ach who claimed the article on behalf of the owner, even though the owner had failed to add the required wording on the Sh'tar. The preferred explanation however is - that it refers to a Sheli'ach who decides to keep the article for himself.

(d) Rav Ashi disagrees with Ameimar in this point. According to him, since the owner also adds in the Sh'tar Harsha'ah that he undertakes to reimburse all the Sheli'ach's expenses, he clearly appoints him a Sheli'ach, and nothing more.

(a) According to others, the owner makes him a partner - in which case, he would be authorized to keep half for himself.

(b) The Halachah is - that he makes him a Sheli'ach.

(a) A Ganav who Shechts or sells a sheep or an ox pays Daled ve'Hey - irrespective of whether the witnesses who testify that he Shechted or sold the animal are the same ones who testified that he stole it, or different ones.

(b) Our Mishnah says that ...

1. ... 'Ganav u'Machar be'Shabbos', 'Ganav u'Machar la'Avodah-Zarah', Ganav mi'shel Aviv ve'Tavach u'Machar, ve'Achar-Kach Meis Aviv' - are all obligated to pay Daled ve'Hey'.
2. ... 'Ganav ve'Tavach, ve'Achar-Kach Hikdish - Meshalem Tashlumei Arba'ah va'Chamishah'.
(c) According to the Tana Kama, the Ganav is also obligated to pay Daled ve'Hey in the following cases 'Ganav ve'Tavach li'Refu'ah O li'Kelavim', 'ha'Shochet ve'Nimtza'as T'reifah' and 'ha'Shochet Chulin ba'Azarah'. Rebbi Shimon exempts the last two cases in this list from Daled ve'Hey.

(d) The basis for the Halachic distinction between the first two cases in the list and the last two is - that whereas in the former, one is permitted to eat them, in the latter, one is not.

(a) Aba Chalafta was the father of Rebbi Yossi.

(b) When Aba Chalafta went to learn by Rebbi Yochanan ben Nuri, or vice-versa, what did they unanimously agreed - that if someone ate one year's produce in a field over which he was making a (three-year Chazakah) in front of one set of witnesses, a second year's produce in front of a second set and a third year's produce in front of a third set it was a Chazakah.

(c) He quoted Rebbi Akiva, who disagreed - on the basis of the Pasuk in Shoftim "Yakum Davar", from which he Darshened "Davar", 've'Lo Chatzi Davar'.

(d) This prompt us to suggest that the author of our Mishnah cannot be Rebbi Akiva - who, by the same token, ought to require the same witnesses for the Shechitah or the sale as testified on the theft.




(a) We answer this Kashya by citing a case where one set of witnesses testify that a woman is betrothed and a second set, that she is married. We take for granted that Rebbi Akiva will agree that this case is not one of Chatzi Eidus - because the first testimony is independent (since it establishes that she is betrothed, forbidding her to the whole world), unlike the case of Chazakah, where the first set of witnesses only testified in order to combine with the two subsequent sets.

(b) We compare our case (of Eidei Geneivah) to that case - because here too, the testimony that the Ganav stole is independent of the Shechitah, since it obligates him to pay Kefel.

(c) Initially, we try to say that Aba Chalafta and Rebbi Yochanan ben Nuri use "Davar" to preclude where one witness testifies that a girl has one hair on the back of her hand, and another, that she has one on her stomach. We refute this suggestion however - on the grounds that, in addition to being 'Chatzi Davar', it is also Chatzi Eidus. seeing as there are not even two witnesses on one of the hairs, and one witness is not even valid when it comes to a complete Eidus.

(a) The Rabbanan therefore learn from "Davar" - that if two witnesses testify on each hair, the testimony is considered 'Chatzi Davar', seeing as each one testifies that she is a Ketanah.

(b) What makes this case worse than that of Chazakah is - the fact that each set of witnesses did not testify on all that it could have done at that moment, unlike the case of Chazakah, where each set did (see Tosfos DH 'Lim'utei').

(a) We learned in our Mishnah 'Ganav u'Machar be'Shabbos, Chayav Daled ve'Hey', Rami bar Chama reconciles this with a Beraisa which exempts him - by establishing the Beraisa when the purchaser acquired the animal through the Ganav picking a fig from his fig-tree. Consequently, the Ganav is Chayav Miysah and due to the principle 'Kam Leih bi'de'Rabah Mineih, he is Patur from paying Daled ve'Hey.

(b) Initially, we reject this explanation, on the grounds - that in such a case, the sale would not be valid (because the Ganav is Chayav Miysah for picking the fig, and will therefore not be obligated to return the fig or its value to the purchaser), in which case, he would not be obligated to pay Daled ve'Hey anyway.

(a) Rav Papa establishes the Beraisa when the buyer instructed the Ganav to throw the animal into his Chatzer on Shabbos - and there is no reason why the buyer's Chatzer should not acquire the animal for him, even though the Ganav is Chayav Miysah for his deed.

(b) We try to establish the Beraisa like Rebbi Akiva - who says 'K'lutah ke'Mi she'Hunchah Dami', meaning that the moment the animal enters the air space of the buyer, it is as if the animal was lying on the ground, and he has transgressed the Isur of Shabbos, at exactly the same moment as the buyer acquires it (which explains why he is Patur from Daled ve'Hey due to 'Kam Leih bi'de'Rabah Mineih'.

(c) The problem with establishing the Beraisa like the Rabbanan of Rebbi Akiva would be - that, according to them, the buyer would acquire the animal immediately it enters his air-space, whereas the Ganav would not transgress the Isur of Shabbos until it landed in the buyer's Chatzer (in which case, 'Kam Leih ... ' would not apply).

(d) We finally establish the Beraisa even like the Rabbanan however - in a case where the buyer specifically stated that he only wished to acquire the animal after it landed in his Chatzer, in which case, both the Chilul Shabbos and the Kinyan would take place at the same moment.

(a) Rava concurs with Rami bar Chama, and he answers the Kashya we asked (from the fact that the sale is not valid anyway) by saying 'Esnan Asrah Torah, va'Afilu Ba Al Imo' - meaning that the Torah forbids an Esnan Zonah, not necessarily because the gift is valid (seeing as if the Zonah happened to be his mother, she would render him Chayav Miysah, and he would be Patur from paying what he promised her. The torah forbids an Esnan because one attempted to give her the article as a gift, irrespective of whether the gift was actually valid.

(b) Likewise in our case. The Torah obligated Daled ve'Hey for attempting to sell a sheep or a cow, even if the sale is not valid. Consequently, he will be Chayav even if the sale comes into effect through his picking a fig on Shabbos, automatically invalidating it, and exempting him for paying for it.

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