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Bava Metzia, 10

1) APPOINTING A "SHALI'ACH" TO BE "TOFES L'BA'AL CHOV"

QUESTION: Rav Nachman rules that when a person finds a Metzi'ah and lifts it up to be Koneh it on behalf of someone else, the other person is not Koneh it, because the person picking it up is compared to one who is "Tofes l'Ba'al Chov b'Makom she'Chav l'Acherim" -- one who seizes money from a debtor on behalf of a creditor, when doing so will cause others (such as other creditors of this debtor) to incur a loss. RASHI here (DH Tofes and DH Lo Kanah) and in Gitin (11b, DH ha'Tofes) explains that "Tofes l'Ba'al Chov" refers to a person who was not appointed as a Shali'ach to collect the debt. Since he is not a Shali'ach, he has no right to cause other people to incur a loss in order to help his friend get his money. It is implied in Rashi that if the Ba'al Chov did appoint someone to seize the money for him, then all would agree that the Shali'ach is able to be "Tofes l'Ba'al Chov."

How can Rashi explain that if a person is appointed a Shali'ach then there is no problem of "Tofes l'Ba'al Chov b'Makom she'Chav l'Acherim?" Rav Nachman originally attempted to prove from our Mishnah, which discusses a case in which a person riding an animal told his friend to give him a Metzi'ah, that one who lifts up a Metzi'ah for his friend is not Koneh. Rav Nachman assumes that saying "give it to me" is the same as saying "be Zocheh it for me," and thus the person riding the horse is appointing the person near the Metzi'ah to be his Shali'ach, and nevertheless Rav Nachman assumes that he is not Koneh for the person riding the animal! Similarly, in the end of the Sugya, Rebbi Yochanan rules that a person who picks up a Metzi'ah for his friend *is* Koneh for his friend, and because of that he is bothered by our Mishnah -- why can the person who picked up the Metzi'ah for his friend change his mind? Rebbi Yochanan answers that saying "give it to me" is not like saying "be Zocheh it for me." This implies that according to those who argue with Rebbi Yochanan (such as Rav Nachman), even if saying "give" is like saying "be Zocheh," and the rider of the animal did appoint the other person as his Shali'ach, nevertheless the Shali'ach will not be Zocheh it on behalf of the rider. How, then, can Rashi write that the problem of "Tofes l'Ba'al Chov" applies only when a person is not a Shali'ach? (RAMBAN, RASHBA, ROSH 1:27, TOSFOS RABEINU PERETZ, and others)

ANSWERS:

(a) Rashi differentiates between a person who is collecting a loan on behalf of a Ba'al Chov, and a person who is lifting a Metzi'ah on behalf of a friend. Rashi states that appointing a Shali'ach will allow someone only to collect for a Ba'al Chov, but it will not enable someone to be Koneh a Metzi'ah on behalf of someone else.

The logic for this distinction is that the principle of "Shali'ach Shel Adam Kemoso" ("a person's Shali'ach is considered like him") does not "convert" one person into another person. Rather, it only allows an act that one person does to take effect for another person, or an authority that one person has to be transferred to another person. The Ba'al Chov owns a Shi'abud in the property of the borrower. When he appoints a Shali'ach to collect the debt, it is considered as though he is giving the authority over the Shi'abud to the Shali'ach. The moment that the one who will be collecting the loan receives this authority, he can be considered to be the Shali'ach of the Ba'al Chov, even though he has not yet collected the money. The principle of "Shali'ach Shel Adam Kemoso" teaches that he can collect the debt just like the Ba'al Chov can collect it. In contrast, with regard to a Metzi'ah, a person does not have any rights to a Metzi'ah before he picks it up, and thus when he appoints someone to pick it up for him, the Shelichus takes effect only at the moment that the appointee picks up the object in order to acquire it on behalf of the one who appointed him. However, at the moment that he picks up the Metzi'ah in order to perform the Shelichus for which he was appointed, we tell him that he has no right to make himself a Shali'ach of that person and thereby cause a loss to others. Since he can just as well make himself a Shali'ach for other people, why should he make himself a Shali'ach for this person? This is why it will not help to appoint someone a Shali'ach in order to acquire a Metzi'ah. This might be the intention of the GILYON cited by the Shitah Mekubetzes when explaining Rashi. (See also "MOREINU HA'RAV" cited by the Shitah Mekubetzes, PNEI YEHOSHUA, and BEIS HA'LEVI 3:44 who suggest other approaches to understanding the words of Rashi.)

What is Rashi's source for differentiating between one who lifts up a Metzi'ah for someone else and one who is "Tofes l'Ba'al Chov?" Perhaps Rashi learned this from the word "Tofes," which implies that the person is seizing the item without authority, in contrast to "ha'Magbi'ah" ("one who lifts") or "ha'Zocheh l'Ba'al Chov" ("one who acquires for a Ba'al Chov").

TOSFOS (DH Tofes) challenges Rashi's explanation from a Gemara in Kesuvos in which a person appointed as a Shali'ach to collect a debt was told by two Amora'im that he could not collect the debt because of "Tofes l'Ba'al Chov b'Makom she'Chav l'Acherim." In fact, Rashi himself in that Sugya (Kesuvos 84b, DH ha'Tofes) writes that "Tofes l'Ba'al Chov" applies even to a Shali'ach who is "Tofes l'Ba'al Chov." How can that be reconciled with what Rashi here writes?

The Gemara in Kesuvos concludes that Rava reprimanded the Amora'im who sent away the Shali'ach. Although Tosfos seems to be learning that he reprimanded them for what they did afterwards (they tried to collect the loan for themselves even though it was the property (Metaltelin) of Yesomim), Rashi might have learned that he also reprimanded them for misinterpreting Rav Nachman's statement and applying it to a situation in which a Shali'ach was appointed to collect a loan.

10b

QUESTION: The Amora'im argue whether the Chatzer of a Ketanah is Koneh for her or not. Reish Lakish writes that she does not have a Kinyan Chatzer, and Rebbi Yochanan holds that she does. The Gemara explains that according to Reish Lakish, a Chatzer works to be Koneh through Shelichus, and a Ketanah has no Shelichus. According to Rebbi Yochanan, Chatzer works through Yad, and a Ketanah does have a Yad.

RASHI (DH Mishum Yadah) explains that according to Rebbi Yochanan, we learn that Chatzer works through Yad from the fact that the Torah says that the Get should be placed "b'Yadah" (Devarim 24:1) and "Yadah" refers to any property of a person and not specifically to a person's hand.

According to Rashi, it seems that Rebbi Yochanan and Reish Lakish are arguing whether "Yadah" means hand or whether it means one's property in general.

Why does Rashi explain that Chatzer works through Yad because "Yadah" means her property? Rashi himself (at the end of DH Talmud Lomar, and in Gitin 77a, DH Talmud Lomar).gives a different explanation for the source that teaches that Chatzer works through Yad Rashi writes that if the verse meant to limit giving the Get into the woman's hands, it should have said "uv'Yadah Yitnenah." In fact, the wording of the Gemara implies that we do not translate "Yadah" to mean property, as the TORAS CHAIM points out, since it says "Chatzer is to be included (Israba'i) in the category of Yad," rather than "Chatzer is derived from the word 'Yadah' (m'Yadah Yalfinan)." This implies that we are learning from a Ribuy that Chatzer is a type of Yad, and we are not learning it from the actual meaning of the words. (MAHARSHA in MAHADURA BASRA)

ANSWER: Rashi understood that at this point in the Gemara Rebbi Yochanan and Reish Lakish are arguing even with regard to a Get and not just with regard to other Kinyanim. This can be learned from the fact that they discuss a Ketanah (who is the one who makes the Kinyan on a Get) and not a Katan. From where does Rebbi Yochanan know that a Chatzer works through Yad? He must have known the Derashah of the Beraisa (of "v'Nasan b'Yadah"). However, the Gemara introduces that Derashah only later, and it uses it to refute the opinion of Reish Lakish. If the Gemara already knew that Derashah earlier, and yet it still accepted the view of Reish Lakish, then in what way does the Beraisa refute the view of Reish Lakish? It must be that the Gemara thought that Rebbi Yochanan has a different source to teach that Chatzer works through Yad, and that source was that "Yad" means "Reshus" ("property").

In what way, though, does the Derashah of the Beraisa refute the view of Reish Lakish any more than the Derashah that "Yad" means "Reshus?"

The answer is that the Beraisa makes it clear that an extra word was written in the verse in order to show that a Chatzer is Koneh a Get. As Rashi explains, we would know that a Chatzer is considered a Shali'ach based on logic alone without any Ribuy (Rashi, DH Mishum Shelichus, and DH Talmud Lomar; see Rashi 11b, DH Ela Amar Rav Ashi, and Insights there). Why, then does the verse need to write an extra word to teach that Chatzer is Koneh? It must be adding that Chatzer works not only as a Shali'ach but even as a Yad. However, until the Gemara cites the Beraisa, the Gemara thought that no extra words were written to teach that Chatzer is Koneh; rather, Rebbi Yochanan maintained that the simple translation of the word "Yadah" includes property and not just her hand. According to Reish Lakish, since "Yadah" translates simply into "hand," there is no extra verse to teach that Chatzer will be Koneh.

Why, then, did the Gemara not cite the same proof from the first Beraisa which discusses the Kinyan Chatzer for Geneivah? According to Reish Lakish, it should not be necessary for the Torah to include an extra word ("Timatzei") in order to teach that Chatzer is Koneh. In fact, according to Rebbi Yochanan, also, it should not be necessary to add the word "Timatzei" since "Yado" inherently means "his Reshus!"

The answer is that with regard to Geneivah, one might have thought that the Chatzer cannot be Koneh through Shelichus, because "Ein Shali'ach l'Devar Aveirah," and that is why the Torah must teach that Chatzer is Koneh through Shelichus for Geneivah. (See Rashi 11a, DH u'Mar Savar.) According to Rebbi Yochanan, too, perhaps the Gemara thought that since an Aveirah is involved, even Rebbi Yochanan will not translate "Yado" as "his Reshus" had the Torah not written the extra word ("Timatzei"). The Gemara eventually concludes that with regard to Get as well Rebbi Yochanan would not have translated "Yado" to mean "his Reshus" had the Torah not said "v'Nasan" (see MAHADURA BASRA).

QUESTION: RASHI (DH Gago v'Chatzeiro) explains the manner in which a thief is able to steal an object (an animal) with his Chatzer without doing any action to the object itself. The act of theft occurs when the animal wanders into the thief's Chatzer, and the thief locks the gate in order to prevent it from leaving. Rashi offers a similar explanation in Gitin (77a) and later in Bava Metzia (56b).

Why does Rashi write that the Ganav locks the gate? Why can he not steal the animal merely by deciding in his mind to use the Kinyan Chatzer to steal it, without having to lock the gate?

ANSWER: The KETZOS HA'CHOSHEN (189:1) explains that according to Rashi, Geneivah requires an action. Thought alone cannot effect a Geneivah. Support for this view can be found in the Mishnah later (43b) which teaches that according to Beis Hillel, when a Shomer merely decides to steal a Pikadon that was entrusted to him to watch, he is not considered to be "Shole'ach Yad" until he does an action of stealing it. This is Rashi's source for saying that the owner must lock the gate in order to be considered a Ganav. (See MAHARIT, Choshen Mishpat #88.)

This is why we can learn from this verse that a Chatzer is Koneh an object for a person even when the person does no action. The reason why an action is required in the case of a Ganav is in order for his act to be considered a theft, but the action is not required in order to effect the Kinyan.