Gemarah: Abaya said that this is not a proof. We can say we’re referring to a case where there are only nine other animals. So whichever way you look at it, he’s exempt with this questionable animal. If it’s really not his so he has only nine animals which is never obligated in Maasar B’hamah. If it’s his, then it’s the tenth, so you can take off Maasar.
Tosfos “V’Tishag Lav Bar Issurey Ninhu”: (Three times a year you gather the animals that where born during that time to take off Maasar B’hamah. Usually, if there are leftovers from an earlier time (the last few that didn’t have ten take off from it) you keep it until the next gathering and include it into that count. Tosfos is bothered, how can you say that nine is exempt, you should wait until the next gathering and include it in that count.)
Tosfos says the reason you don’t need to leave them until the next gathering, since it was never ten to begin with, it never became obligated. So animals that never had an obligation to begin with are exempt right away. Only when there is ten or more to begin with, so there is an obligation on all the animals. So if there wasn’t enough to take off for the last few, then they need to be included in the next group in order to fulfil the obligations on them.
Gemarah: Abaya changed his mind and really the above proof proves our point. Since animals in doubt you never take off Maasar for (because the Torah requires a definite tenth and not a questionable tenth)
The proof to this is a B’raisah that says if one of the one’s that already was counted, jumped over the fence and into the pen amongst those that weren’t counted yet. We say that they’re all exempt from taking off Maasar. Even though you can take off whichever way it comes out. Even if the tenth one was the one which jumped in, it would exempt the nine that proceeded them, since there were others in the pen that could of came out and be a good Maasar, so there were nothing wrong when you counted them. Anytime you have a Kosher count, even if at the end something messed it up, those that were counted correctly before the mess up are already exempt. Since we don’t say like this, it proves that if there is a doubtful counting, it’s exempt from Maasar B’hamah automatically.
Tosfos “Kufeitz Kulun P’turin”: Tosfos asks why does it exempt the whole flock if it jumps in? Why do we even consider it that ther is an exempt animal in existance in the pen? We should say that it’s Butal (annulled) by being mixed with animals in which most of them are obligated.
(We always say that in mixes, that the Halacha is the lesser amount loses it’s individual status, so all of them have the status of what most of them originally were.)
Even though we say that something that is so significant that each one is counted individually can never become Butal. That is only a Rabbinic enactment, and from the Torah it’s Butal and should be obligated in Maasar.
(When we go after the majority, there is a rule that only if it separated from the group we say we go after the majority, but if it’s taken from a fixed place, we look at it as it’s a fifty/fifty chance. So here by the animals in the pen are all mixed up in a fixed place, and nothing separated. Still we say that all has the Halacha of the majority.) The rule of a fixed place is only if the fixed place is noticeable which part has the Kosher and which ones have the non-kosher (or any other Halacha.) Like the case of nine stores in the city sell only Kosher and one sells non-kosher.
(If you find a piece of meat in the city (which got separated from the stores) we say it’s like the majority and it’s Kosher. If you bought it from one of the stores and you forgot which one, since you took it from the fixed place, it’s considered a fifty/fifty chance and you can’t eat it. Over there, each store is known which is Kosher and which is not. Over here in the pen, even though the place is fixed, we don’t know where are the obligated ones and which one is exempt.)
You can’t say it’s not Butal because it’s a Berya (a complete entity (like the way it was created) which is regularly not Butal) because of the reason he brought in Mesechta Chulin
(Over there Tosfos says a Berya is only something the Torah says “don’t eat this object” (like don’t eat bugs) so the Torah is saying don’t eat it as is (even less than a K’zayis.) But this wouldn’t apply to animals that are exempt from Maasar)
One can’t say that there was only one left in the pen when it jumped in. Since it says he jumped “amongst them.” (That “amongst” implies that there were many more. So does “them” in the plural.)
Tosfos remains with a question
Tosfos “L’ftor B’minyan Haroyei”: Tosfos asks why do we say that over here we exempt the animals because when you counted it could have been ended off with a tenth. We only say that in a case where there is no other tenth to exempt the first nine. Like in a case where one died before we finish counting, and there are not enough animals to finish the count. There we say, since the first animals went out when they were able to finish the count, so we don’t need to gather them again for the next time we count.
In our case, however, if the tenth animal came out was exempt (because it was the one that jumped back in) you can always have the next animal go out and be the tenth. So every tenth, you should also make the eleventh Kodesh also (by calling it also “tenth” when it goes out), just in case the tenth was exempt. All that are left after going through the flock like this and there is not enough for ten, they are kept until the next counting and is included in it.
© Rabbi Chaim Smulowitz 2005
Bava Metzia (6b) Shiur 10
Gemarah: The Gemarah wants to prove if one of them proclaims the cloak Hekdush from a certain case that two people are fighting over a bathhouse, and one proclaims it to be Hekdush, the rabbis had a question is it Hekdush?
The Gemarah wanted to prove it from an animal that was a questionable first born (which a definite first born is needed to be given over to the Kohein.) So the Halacha is that the owner is allowed to keep it, and the burden of proof is on the Kohein that it’s a B’chor to take it from the owner. Even so, it’s forbidden to work or sheer that animal. (Right now we think that the reason why it’s forbidden to work or sheer is because the Kohain still has a right to it, that’s why it still has the Halachos of a B’chor.) So we see if the Kohain would grab it from the owner he may keep it.
The Gemarah dismisses that proof and says that really we return it to the original owner. We can’t work or sheer it, since it’s Kodush when it left the womb, so the Kedusha is not dependant on who owns the animal.
Tosfos (starts on 6a) “V’ha hachi Ki Takfa Kohain”: The Gemara’s comparison from the cloak to the bathhouse is as follows. A bathhouse, which is real estate (and nobody is holding on to it, we say who ever is stronger wins. If someone grabs it and proclaims it Hekdush, if the other one cannot break the Hekdush if he eventually grab it out of the other’s hand, so to by the cloak, since proclaiming it Hekdush is just like grabbing it.
But if one grabs it and then the other one is able to grab it away from him and be able to keep it, so to if one proclaims it Hekdush without grabbing is nothing, since the other one could grab can keep it. So proclaiming it Hekdush cannot be better than an actual grabbing
So the Gemarah brings a proof from the questionable B’chor. Since if the Kohain grabs it he’s allowed to keep it, therefore its prohibited to work or sheer it. So we see that the Kohain still has a stake in it even before he grabs it, that’s why you can’t work or sheer it even before he grabs it, it’s if he already grabbed it. Therefore proclaiming the cloak to be Hekdush, even while it still in the other one’s hands, works, since we consider it as if it was grabbed.
Rabbah dismisses this by saying that really if the Kohain grabs it, we remove it from him, so the Kohain doesn’t have any stakes in the animal. The only reason the animal is prohibited to work and to sheer is because the Kedusha comes on it’s own, regardless of who owns it.
Tosfos asks why don’t we anyhow remove the B’chor from the Kohain. Even if a Kohain grabbed a definite B’chor, since the owner has the right to give it to any Kohain he wants, he could claim he wants to give it to a different Kohain
Tosfos answers that this Kohein is the one this person regularly gives his Kohanic presents to. (We consider the gifts his, even prior to handing it to the Kohain, until the owner actually gives it to someone else. Rashi in Gitten gives the reason, that all other Kohanim give up on their share, since they know they’re not getting it, which removes their ownership on it)
Another answer, (even though the owner has the right to give it to anyone he wants, it really belongs to all Kohanim. If a Kohein grabs it, then it’s his. Since the only thing that the owner really owns is the right to give it to whichever Kohein he wants,) the Kohein only reimburses him the market value of having the right to give it to. (This reimbursement is only needed to those who hold that such a right is considered money, thus you need to pay back the damage for it’s worth. According to those that don’t consider it money (since it’s not a tangible pleasure) you don’t need to pay anything.)
This doesn’t contradict the Gemarah in Chulin that says that if a Kohein grabs Kohanic gifts, he’s someone that he’s a brazen person. This implies that he’s exempt for paying, except that he’s brazen. Since we’ll say the situation was that he already ate it. We have a rule that someone that eats or damages Kohanic gifts he’s exempt from payment. (Over here the B’chor in question is still around.)
Gemarah: The Gemarah brings a proof from a Braisah. (If a questionable first born donkey that was redeemed with a sheep, this sheep is now questionable if it belongs to the Kohein. When the owner gathers his animals born that year to take Maasar B’hama (every tenth animal is brought as a Korban,)) this questionable sheep is also included in the count. If it’s true that if the Kohein grabs it you don’t remove it from him therefore this sheep is somewhat owned by the Kohein, why is it included in the count? (If it would be the tenth animal,) then you would be exempting your obligation to take off the tenth of your animals with the Kohein’s animal. (So we must say you remove it from him, since we consider that he has no ownership in the animal in question.)
Tosfos “Poter M’Mono B’Momon Kohein”: So we must say you remove it from him, since we consider that he has no ownership in the animal in question. This seems to be the bottom line of the Gemarah later on that you remove it from the Kohein, since we assume it belongs to the one that’s originally holding onto it.
Tosfos asks, why later on in the Mesachta and in Bava Basra the Gemarah gives a case of someone renting a house. (The deal was 12 coins a year, one a month. Then the Beis Din decided to make it a leap year. The question is, does the renter pay an extra one, since he pays one a month, and now there is an extra month. Or do we say he doesn’t pay, since part of the deal is 12 a year, and the extra month is included in the year. There are Tanayim that say they split the extra coin.) Shmuel says you only split it if the owner asked for the money in the middle of the month. But if he comes at the end of the month it’s all to the renter, (since he already “grabbed” the extra month’s use. So even though the owner is in the possession of the house, and that’s why if he comes in the beginning of the month the whole amount is his. But if the renter lives there, that’s like grabbing it.) So why don’t we say we must remove it from the one who grabbed it and give it back to the one who had possession of it.
Tosfos answers, there by the renter, he had the right to grab it, since he’s allowed to live there (the only question is for how much.) Over here by the B’chor, the Kohein has no right to grab it, since maybe it’s not his, therefore we remove it from him.
The Gemarah in Kesuvos says if there are two witnesses that signed on a document, and two other witnesses testified that the first set of witnesses signed under duress, they are not believed. The end of the Gemarah we say that it’s a contradiction between two sets of witnesses, so we say all money stays where it is. Rashi explains, this that the second witnesses are not believed (because in a case of a regular document of a loan, we would be listening to the second set not to collect it) when the lender already grabbed the money. (So we listen to the first pair not to give it back to the borrower.) According to what we explained above, that if someone grabbed an object that there is a dispute on we remove it from him and return it to the original owner, we need to say here that the lender grabbed the money before the second pair said their testimony. Since at that time, the money wasn’t under any dispute, so he had a right to take it. But if he took it after the second pair of witnesses came in, so at that time we had the question if it’s owed to him, so if he grabs it then, we remove it from his hands.
Another answer is (that we’ll say not like Rashi. There is no grabbing going on here. This that we don’t listen to the second witnesses, even though we don’t let him collect money that we have a doubt that is to him, is that we don’t believe them completely.) We don’t collect when there is a doubt, but we also don’t rip up the lender’s document. (So we don’t accept it as fact that they were forced to sign.)
Gemarah: People refrain from swearing when they are in doubt but do not refrain taking money when they’re in doubt. The difference between them (since they’re both Aviros, and Abaya holds that swearing falsely is not intringestly more stringent than stealing) is that you can always return the money, but swearing falsely can never be taken back.
Tosfos “Momon Efshar B’chazarah”: That which we say money can be returned it means if you don’t remember if he owes at the end. Therefore at the end, you don’t have money of other’s in your custody, even if the money were doubtfully yours you wouldn’t keep it.
But don’t say that he’ll return it only if he remembers that he was paid back, but will keep it while he’s still in doubt, even after he gave up hope for ever remember. Since, according to this, he wouldn’t refrain from taking money when he’s in doubt, then he wouldn’t refrain from swearing when he’s in doubt either.
Gemarah: If after the two grabbers left Bais Din and then came back with only one holding onto the cloak. The one who’s holding on to it claims that the other on finally admitted that it’s mine. The other one said that he rented it to him. We let the one holding it keep it. We don’t believe the other person, since a minute ago you suspected him of being a thief. How can you now rent it to him without any witnesses.
Tosfos “Igras Ley Bli Sahadi”: He’s not believed to say he rented it with a Migo he could of said the other person grabbed it out of his hand. (Since we already seen him holding it and we established it’s half his, even if afterwards we find it in the other’s hand completely, we assume it was stolen from him.) Since it’s a “Anon Sahadi” (we assume something so much, it’s as if we have witnesses testifying for it) that someone wouldn’t rent in such a case without witnesses. It’s a Migo that’s against witnesses, so we believe the “witnesses” and not the Migo.
Gemarah: (The Gemarah has a question, if one of the two pulled the cloak out of the hands of the other while we are watching could he keep it? If he protests right away we give his half back to him. What more could he do then protest? If he keeps quiet then the grabber can keep it, since by not protesting at all is as if he admits that it’s the other person. The question is only when he didn’t protest right away but after some time. Does that he was quiet in the beginning is admitting that it’s the other person’s, or do we say since he protested in the end, he’s not admitting. That which he didn’t protest right away is he didn’t feel it was necessary “since all the rabbis saw him grab it from me, why should I protest.”)
The Gemarah asks another question, if we would say that if he grabbed the cloak you let him keep it. What would be if he didn’t grabbed it away but just proclaimed it to be Hekdush? Do we say, since proclaiming something to be Hekdush is as if you gave it over to Hekdush, so it’s like grabbing. Or do we say that since he didn’t physically grab it, he cannot make it Hekdush. Since we have a rule you can only make something Hekdush if it’s in your custody. If it’s not in your custody, even if it’s yours, like when it’s stolen and the owner didn’t give up hope on it, you cannot make it Hekdush.
Tosfos “Hakdisha B’lo Takfa Mahu”: This question must be in a case similar to the first. That he was quiet when the other person proclaimed it Hekdush, but protested when the administrator of Hekdush came to claim it. The question is the fact you kept quiet in the beginning is it like admitting, so it becomes Hekdush.
(Tosfos is bothered how can you make something Hekdush while his opponent is holding onto it. Since you can only make something Hekdush if it’s in your custody. If it’s not in your custody, even if it’s yours, like when it’s stolen and the owner didn’t give up hope on it, you cannot make it Hekdush.)
You cannot compare it to a stolen object that you can’t make it Hekdush. Over here, if we consider it as if he admitted, then he’s just holding onto it for him, and as if he was given an object to watch. So even if it’s not in his custody, since the watcher is holding it for him, it’s considered an extension of his custody so he can make it Hekdush.
We see this from a Gemarah in Bava Basra, where someone was selling gourds. (Everybody came and took a gourd to but it. The seller panicked and thought they were stealing it, so he proclaimed all the gourds to be Hekdush. The Halacha is, that if someone comes to buy, and there is a set price for it, when he picks it up, it’s considered at that point sold. This is the reason why the gourds weren’t Kodesh. Since there was a set price, when they took it, it was sold to them and no longer the seller’s, so he has no power to make other people’s property Hekdush.) The implication is, if there wasn’t a set price (so it wasn’t sold) the Hekdush would have taken place. Even though it was no longer in his custody, since it wasn’t taken by them to steal, they are only holding onto them for the owner like as if they are watching it. So we see that when someone is holding onto something for the owner, it’s like it’s in his custody, and he could make it Hekdush.
(Going back to explaining the second side of the Gemarah’s question.) Or do we say that proclaiming the object to be Hekdush is not like grabbing out of his hand. Since he only said words, why does he need to protest? The Gemarah eventually brings a proof from a disputed bathhous. One litigant proclaimed it Hekdush and the other kept quiet, it’s not Hekdush. This proves that in this case, keeping quiet is not like admitting.
© Rabbi Chaim Smulowitz 2005
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