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Kollel Iyun Hadaf, Jerusalem

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Bava Kama 103



(a) We just explained the Reisha of the Beraisa to mean that if Reuven purchases a field in the name of the Resh Galusa, the seller is not obligated to provide him with a new Sh'tar. We have thought that he is - because it is self-understood that the buyer would not throw out his money for the Resh Gelusa's benefit, and that he expects a fresh Sh'tar from the seller.

(b) In fact, the seller counters this argument - that the buyer's business with the Resh Galusa is not his concern, and that he should now go and work it out with him.

(c) And we explained the Seifa to mean that if the buyer stipulated that the seller should write him a Sh'tar, then he is obligated to do so. This too, is not obvious at all - because it speaks when he made the stipulation to the two witnesses, but in the presence of the seller. And we may have thought that the latter can claim that he believed that the stipulation of writing the Sh'tar pertained, not to him, but to the Resh Galusa ...

(d) ... to which the buyer replies that from the fact that he told the witesses in front of him, he should have understood that he menat him, and not the Resh Galusa.

(a) The flax for hich Rav Kahana paid, but had not yet received - went up in price and was sold by the seller.

(b) Rav Kahana's problem was (not a difference of opinion between Rav Kahana and the seller, who actually intended to hand over the money to him, but) a question of Ribis, seeing as he would receive more than he had paid for the flax.

(c) Rav ruled - that he was permitted to take the excess of what he had paid provided the seller specifically stated, at the time of the sale that the flax belonged to Rav Kahana; otherise, not.

(d) When we suggest for a brief moment, that Rav holds like the B'nei Ma'arva, who say 'Mi Hodi'o le'Ba'al Chitin' - we mean that only then, would the one who purchased the flax have given the seller the money on behalf of Rav Kahana; otherwise, the money would belong to the seller, and returning it to Rav Kahana would constitute Ribis.

(a) We immediately repudiate this suggestion however - due to the fact that it was not money that Rav Kahana was due to receive, but the flax, which was his anyway (though it is not clear why, seeing as no mention is made here of any Kinyan).

(b) Rav Kahana was entitled to receive the full value of the flax - because, selling it was therefore an act of Geneivah, and we have already learned 'Kol ha'Gazlanim Meshalmin ke'Sha'as ha'Gezeilah'.

(c) We conclude that the transaction of the flax had been in the form of an Amanah - which means that the purchaser paid money at the cheap price, for which the seller, who did not have flax at the time, undertook to provide him with flax when he obtained it, even though the price would have gone up.

(d) Rav therefore forbade taking the higher price - because the fact that he paid less and received more resembled Ribis. He would have permitted it however, had the seller given him goods rather than money (based on the fact that the price was already out and the flax available at the time that he paid the money).

(a) The Tana of our Mishnah learns from the Pasuk in Vayikra "La'asher Hu Lo" - that a Ganav who stole a P'rutah, swore that he was innocent, and then admitted that he was guilty is obligated to pay directly to the person from whom he stole, and not to his son or Sheli'ach.

(b) He may however, give it to the Sheli'ach Beis-Din - because of (another branch of) Takanas ha'Shavim, which the Chachamim issued, for fear that, due to excessive traveling expenses, the Ganav may refrain from doing Teshuvah and admitting that he had stolen and sworn falsely.

(c) If, in any of the above cases, the owner dies - the Ganav pays his heirs.

(d) Bearing in mind that the Ganav owes the owner the principle plus a Chomesh, if all that he still needs to pay is ...

1. ... the Chomesh - he doess not need to travel to Madai.
2. ... a P'rutah of the principle - he does.
3. ... less than a P'rutah of the principle - he does not.
(a) The Tana says that if a Ganav who, after having admitted that he swore falsely, paid the Keren and claimed that he had already paid the Chomesh - he must pay a Chomesh fine on the Chomesh, provided that is, that he the admitted that he had sworn falsely.

(b) This can go on (i.e. he can go on paying a fifth on the fifth), for as long as the fifth amounts to a P'rutah.

(c) The same, says the Tana, applies to a Pikadon and to an Aveidah, a well as to ...

1. ... 'Sesumes Yad' - meaning a loan.
2. ... 'Oshek' - meaning withholding a worker's wages.
(d) In all these cases, besides the Keren and Chomesh - the Ganav must fulfill the obligation - of bringing a Korban Asham.



(a) If someone steals from one of five people and he doesn't remember from which one, Rebbi Tarfon in a Beraisa rules that, in the event that all five claim from him, he places the money in front of them and leaves (see Tosfos). Rebbi Akiva - obligates him to pay each one, in order to fulfill the Mitzvah of Hashavah.

(b) We base our premise that the author of our Mishnah is neither Rebbi Tarfon nor Rebbi Akiva - on the fact that neither Tana appears to make a distinction between a Ganav who swore and one who did not.

(c) We initially try to establish our Mishnah like Rebbi Akiva by restricting his stringent opinion to where the Ganav had sworn and then admitted (but otherwise, he concedes that it is not necessary to pay each claimant) - because of the principle that every S'tam Mishnah goes like Rebbi Akiva.

(d) Rebbi Tarfon is nevertheless lenient with the Ganav even in the case where the Ganav swore - due to Takanas ha'Shavin, as Rebbi Elazar b'Rebbi Tzadok in a Beraisa taught us with regard to paying the money to a Sheli'ach Beis-Din (as we already saw in our Mishnah).

(a) Rebbi Akiva concedes to Rebbi Elazar b'Rebbi Tzadok the concept of Takanas ha'Shavin in the case of a Ganav who stole from one person, where he will definitely fulfill the Mitzvah of Hashavah - but not where he stole from five people and did not know from whom he stole - because by placing the object in front of them, he will not have fulfilled the Mitzvah of Hashavah.

(b) In another Beraisa, Rebbi Shimon ben Elazar draws a distinction between someone who *purchased* something (and doesn't know to whom to pay) - where even Rebbi Akiva agrees that one places the object in front of them and departs, and someone who *stole* something from five people - which is where he obligates him to pay each one.

(c) We disprove our previous interpretation of the Machlokes ...

1. ... from here, says Rav Huna bar Yehudah - because if they were speaking when the Ganav swore and admitted, why would Rebbi Akiva concede by a purchaser, who by virtue of his oath, is obligated to fulfill the Mitzvah of Hashavah no less than a Ganav?
2. ... from the story of a Chasid who bought an article from one of two people ... and Rebbi Tarfon and Rebbi Akiva repeated their argument, says Rava - because a Chasid does now swear falsely.
(d) With regard to the previous Kashya, how do we know that the Chasid did not become a Chasid only after the above incident - by virtue of the fact that 'ha'Hu Chasid' throughout Shas refers to either Rebbi Yehudah ben Bava or Rebbi Yehudah b'Rebbi Ila'i (S'tam Rebbi Yehudah), both of whom had always been Chasidim.
(a) It is clear now that Rebbi Akiva obligates the Ganav and the purchaser to pay all five people even if he did not first swear - and that Rebbi Tarfon argues with him specifically in a case where he did not.

(b) The author of our Mishnah must therefore be - Rebbi Tarfon, who concedes that where the Ganav swears, he becomes obligated to pay to the owner himself, because of the Pasuk "la'Asher Hu Lo Yitnenu".

(c) Rebbi Tarfon rules in a Beraisa - 'ha'Omer li'Shenayim Gazalti me'Echad Mikem Manah ve'Eini Yode'a Eyzeh Mikem, Nosen la'Zeh Manah ve'la'Zeh Manah'.

(d) The problem this poses on our current contention (that the author of our Mishnah is Rebbi Tarfon) is - why Rebbi Tarfon then needed to mention a Shevu'ah in the Mishnah, seeing as he also concedes that whoever admits, needs to pay all claimants, and there must have been an admission in our Mishnah, because whenever there is a Shevuah, there must be an admission?

(a) We finally establish the Machlokes between Rebbi Tarfon and Rebbi Akiva - irrespective of whether the Ganav swore or not. As long as the Ganav does not admit, Rebbi Tarfon permits him to place the money before the claimants (even if he swore), and Rebbi Akiva requires him to pay each one (even if he did not).

(b) Rava establishes our Mishnah - like both Tana'im ...

(c) ... and what makes our Mishnah different than the case over which they argue is - the fact that the Ganav knows to whom to pay.

(d) The reason that our Mishnah needs to speak about a case where he swore is - because that is when he is obligated to pay immediately in order to obtain a Kaparah (even to travel to Madai if necessary); whereas when he did not swear, it is sufficient if he sets the money aside, and treats it as a safekeeping until the owner returns.

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