ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf 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
(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
(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
(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
(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.
(d) In all these cases, besides the Keren and Chomesh - the Ganav must
fulfill the obligation - of bringing a Korban Asham.
2. ... 'Oshek' - meaning withholding a worker's wages.
(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
(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?
(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.
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.
(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.