Baba Metzia 66b - Looks Like Ribbis Ketzutza

The gemara 61b made a distinction between רבית קצוצה and אבק רבית. The beis din forces the return of ribbis ketzutza but does not force the return of avak ribbis (tosafos 62a cites 2 opinions if there is any point in returning ribbis ketzutza according to the opinion that it need not be returned. Perhaps avak ribbis which according to everyone does not NEED to be returned, would also be dependent on those 2 opinions whether it is proper to return. There is also a machlokes rishonim whether the borrower can grab back avak ribbis or not - see rosh).

Ribbis Ketzutza would be when the ribbis is an agreement in the loan, lending $10 and obligating the borrower to return $15. Avak Ribbis is any situation where the interest isn't guaranteed. Rashi 62b explains that when the lender takes a field as collateral and eats the fruits without deducting a penny from the loan, it is only avak ribbis since there is a possibility of the land not producing any fruits that year so that the ribbis isn't guaranteed. Included in avak ribbis would be all cases of buying and selling, when there isn't an actual loan.

Aside from these 2 categories of Ribbis, the gemara also introduced a category called הערמת רבית, which the gemara 62b explained is a lower level than avak ribbis and is only prohibited because it "looks like ribbis". This only applies to a situation where there really isn't any ribbis at all, because a technical trick was done to avoid the ribbis.

The gemara on 64b speaks about the borrower renting to the lender at a discount as an appreciation for the loan. Although the mishna says that this is assur, rashi doesn't explain the problem to be avak ribbis, rather he explains it to be מחזי כרבית. It seems that rashi understands that avak ribbis can only apply when the borrower it losing something by paying the lender, but here the house isn't standing to be rented out anyway so the borrower isn't losing anything - therefore, it only looks like ribbis.

The gemara also has a category of צד אחד ברבית which means that it is a chance of developing into a ribbis problem. This applies to any situation where the borrower or lender have the ability to avoid the ribbis problem (tosafos 63a d.h. tzad). However, this is only the opinion of R. Yehuda, the chachamim maintain that this is an issur of ribbis (and can even be d'oraysa - as tosafos 63a d.h. ribbis, indicates).

In our gemara, when the borrower gives his fiels as collateral to the lender and makes a deal that if he doesn't pay back within 3 years the lender can keep the field - all the fruits that the lender ate would be ribbis. Rashi introduces a new category called מחזי כרבית קצוצה. Normally something which just looks like ribbis doesn't need to be returned because it is a lower level than even avak ribbis, but here rashi says that since it "looks like ribbis ketzutza", it must be returned. The problem with rashi here is that rashi says that avak ribbis which doesn't need to be returned only applies to cases of buying and selling, but doesn't apply to cases of loans. Rashi seems to imply that all cases that begin with a loan are categorized as ribbis ketzuta or looking like ribbis ketzutza and needs to be returned. This contradicts the rashi on 62b who says that whenever their may not be ribbis (because the field may not produce) it would not be considered ribbis ketzutza.

Baba Metzia 62a - Honoring a Father who is a Rasha

We already mentioned this issue in baba kama 94 - there is a machlokes rambam and tur whether one is obligated to honor a father who is a rasha. The Rambam holds that there is a mitzva of kibud av, but the Tur uses our gemara to disagree. See here for the discussion about it:

http://hearos.blogspot.com/2009/03/baba-kama-94b-kibud-av-for-father-who.html

Perhaps we can offer another rationale to justify the position of the Rambam so that he is not contradicted by the gemara. The gemara isn't claiming that only for an עושה מעשה עמך is there a mitzvah of kibud av, to the exclusion of a rasha. The gemara isn't dealing in general with the mitzvah of kibud av, rather it is dealing with whether the children are obligated to return an object that was taken as ribbis or stolen, that they inherited from their father. Perhaps the gemara is saying that although they are commanded in the mitzvah of kibud av, they wouldn't be required to return the object. Why? Because when the father didn't do teshuva in his lifetime and didn't return the object, it is as if the father was mochel on this aspect of his kavod. However, if the father did teshuva and wanted to return it but didn't get a chance, then the sons would be obligated to return this item for kavod of their father as they would be chayev in all kavod of their father.

Another distinction made by the kesef mishna is that so long as the father is alive, even if he is a rasha he may do teshuva and therefore there is a mitzvah of kavod to honor him. However, when he dies a rasha there is no longer a mitzvah to honor him since he definitely will not do teshuva.

Baba Metzia 61b - Ma'aleh of Jews not to eat bugs

The gemara explains that the torah uses the term "ha'ma'aleh" in the context of the issur shertatzim to indicate that this is a special advantage to klal yisroel and had Hashem only taken us out of mitzrayim for this alone, it would be worth it. The gemara continues to explain that although the reward for abstaining from sheratzim cannot be as great as ribbis and ona'ah where there is a strong yetzer hora, nevertheless since they are disgusting it is considered a ma'aleh of klal yisroel. Rashi explains that since these things are inherently disgusting, it is considered to be a ma'aleh for klal yisroel that they abstain from them and don't sustain themselves from things that are so repulsive.

R' Moshe (dibros hea'ra 15) is troubled by this. The only problem with sheratzim is that they are forbidden, but there is nothing inherently disgusting about them. Why are sheratzim considered to be a bigger ma'aleh than any other forbidden foods? - it is only the issur that makes it repulsive, not the metzius. To strengthen the question, we can cite the midrash that rashi quotes in chumash that a person should not say that they are repulsed by pork, rather they abstain only because of the issur torah. The same should apply to bugs, one should not necessarily be repulsed, yet abstain because of the issur torah.

It seems to me that rashi understands that sheratzim are inherently disgusting. You are what you eat. Therefore, it is a ma'aleh for klal yisroel that Hashem forces us to refrain from these foods.

R' Moshe suggests that the ma'aleh is somewhat different. There are many goyim who also refrain from eating bugs because they are disgusted by it. But, they don't check their vegetables for bugs. Abstaining form something because it is disgusting and repulsive has its limits, it won't cause you to search to find it. However, we abstain from bugs because of the issur and therefore make ourselves crazy to inspect vegies to find them. This is the ma'aleh of klal yisroel - the contrast of abstaining from issur vs. abstaining out of disgust. The effort put into staying away from issur BECAUSE IT IS ASSUR is the ma'aleh for klal yisroel.

Baba Metzia 60 - Undercutting the Market

There is a machlokes in the mishna whether a seller is allowed to undercut and sell below market price so that people will buy in his store. The gemara seems to ask why the chachamim permit this type of price setting. The gemara answers that ultimately it will have a positive result on the market because it will force the market price to be lower. The implication of the gemara is that one can only undercut the market in this way when it will in fact be beneficial to consumers by lowering the market price. However, in a situation where it will not be effective in actually lowering the market price (perhaps because the market is too large to be lowered by one merchant, such as the case nowadays with internet sales), the gemara would imply that the seller cannot undercut the market to encourage consumers to buy in his shop.

But, R' Shlomo Kluger (chochmas shlomo c.m. 228) makes a beautiful diyuk from rashi. When the gemara asks - מאי טעמא דרבנן, rashi comments: נקט "זכור לטוב" לשון ברכה. Meaning, the gemara isn't asking why the rabbonon permit to sell for cheap, rather the gemara is asking why is it considered so positive and even a bracha. To that the gemara answers that the seller is "zachur la'tov" because he helps consumers by lowering the market price. This rationale is only necessary to explain why it is a good thing for the seller to do, but even without this rationale the rabbonon hold that it is permitted. Based on this, R' Shlomo Kluger justifies why the Shulchan Aruch fails to limit this heter in any way, and paskens that one can always undercut the market price even in a situation where they are selling to a different city and their sales won't have a positive effect on the market.

It would seem that it is permitted for one to undercut his competitors to provide incentive to the consumers to shop by him, put them out of business, and then raise the price (within the confines of o'na'ah). But perhaps we can be medayek from rashi on the mishna that this type of devious behavior is NOT permitted. Rashi, when explaining the Tana Kama who holds that it is forbidden to do this comments: מפני שמרגיל לבא אצלו ומקפח מזונות חבירו. Rashi indicates that the case we are discussing is when he is harming the other merchants only by luring their customers to his store. This is similar to distributing candies where you would not be putting the other merchants out of business, just "stealing" their customers. Since the other merchants can also distribute candy and/or lower their price to compete- אני מפליגנא אמגוזי ואת פליג שיסקי - it is fair capitalistic business practice so the Rabbonon permit it. However, in a situation where one merchant is wealthier than the rest and can afford to literally sell at a loss for 6 months to force his competitors out of business, it is very possible that even the Rabbonon would agree to the tama kama that it is forbidden since the other merchants don't have the ability to compete.

Baba Metzia 59b - Two Days Rosh Chodesh

The Aruch HaShulchan points out in the first siman of hilchos rosh chodesh that the 2 day rosh chodesh that we observe on every month that is 30 days, dates all the way back to the time of the nevi'im. Our minhag is to treat both days as rosh chodesh by abstaining from tachnun, saying hallel and even davening musaf of rosh chodesh (which is related to the korbanos).

Based on this, Rashi in our sugya is very difficult. The wife of R' Eliezer would always stop her husband from saying tachnun (nefilas apayim) out of concern that the power of this tefillah would penetrate the heavens and lead to the death of her brother Rabban Gamliel. The gemara says she got confused between a 29 day month and a 30 day month. She thought it was rosh chodesh when in fact it was not, and thought that her husband wasn't going to say tachnun due to rosh chodesh. In actuality it wasn't rosh chodesh, so R' Eliezer said tachnun and Rabban Gamliel died. Rashi explains that she thought it was a 29 day month so that Rosh Chodesh would be on day 30. In actuality it was a 30 day month so that rosh chodesh was on day 31. She didn't prevent her husband from saying tachnun on day 30 thinking it was rosh chodesh, but since it wasn't he said tachnun and caused Rabban Gamliel to die. Rashi clearly holds that if rosh chodesh is on day 31, tachnun would be said on day 30. This contradicts our minhag which the aruch hashulchan claims dates back to the time of the nevi'im to keep both day 30 and day 31 as rosh chodesh?

Baba Metzia 59a - Safeik Eishes Ish

Rashi and Tosafos disagree about the practice by the wars of Dovid, how the gett would be written. Rashi holds that it was written conditionally so that it will go into effect if the husband fails to return at the end of the war. Tosafos holds that it was written unconditionally, just that it was done very privately so that no one will try to marry her. The gemara refers to a woman who received such a gett as a "safeik eishes ish". According to rashi it is literal since it is unclear during the war whether the husband will return, but according to Tosafos she is definitely not an eishes ish, but she is called a "safeik eishes ish" since the gett was done quietly and no one is aware that she was divorced (Tosafos is difficult - since this was the common practice, surely people could assume that it was done. Why is it considered b'tzinah?). Maharam Shiff points out that Rabbeinu Yechiel Mi'Paris banned conditional gittin even for one who is dying, based on this Tosafos.

Tosafos concludes with a question on both himself and rashi. The gemara says that causing someone embarrassment is worse than a safeik eishes ish, which implies that having relations with one who is definitely an eishes ish is still worse. However, Dovid's logic as to why it is worse to embarrass someone - for relations with an eishes ish the punishment is strangulation but he still has a share in the world to come, but for embarrassing someone one loses his share in the world to come - is a valid rational as to why embarrassing someone is even worse than a definite eishes ish. So, why does the gemara only say it is worse than a safeik eishes ish?

The Rashash answers this question by referencing a Rabbeinu Yonah at the beginning of brachos (it is also found in sha'arei teshuva as well as his commentary on Avos in the first perek). Safeik in a certain sense is worse than vadai, because when one does a definite aveira they realize the severity and will be inspired to do teshuva. However, one who does a safeik aveira will forever justify their actions and never do teshuva. Based on the notion that a safeik is worse than a vadai, perhaps the gemara chose "safeik eishes ish" to accentuate the point that embarrassing someone is not only worse than vadai eishes ish, it is even worse than safeik eishes ish. The maharam shiff has a similar approach in dealing with this issue (just that he explains that a safeik is worse than a vadai since a vadai has a specific punishment through which one achieves atonement but safeik doesn't have that).

Baba Metzia 58b - Ona'as Devarim

The mishna tells us that just as there is an issur of ona'ah to cheat someone through money, there is also an issur to cause them pain verbally. The mordechai (306) says that based on the gemara that considers ona'as devarim to be "not returnable", it would follow that one receives malkus for violating ona'as devarim. The obvious difficulty with this is that ona'as devarim is a la'av she'ein bo ma'aseh which one does not receive malkus for violating. The sefer Hachinuch explicitly argues with this mordechai and says that since it is a la'av she'ein bo ma'aseh there isn't any punishment of malkus.

The nimukei yosef explains based on the gemara 59a that only עם שאתך בתורה ובמצוות are inlcuded in ona'as devarim, that the issur of ona'as devarim doesn't apply when one speaks harshly about one who is not a ya'arei shamayim. Although the gemara excludes one who is a rasha from this issur (meaning that it is mutar to offend him), it seems a little strange why the nimukei yosef raises the bar so high, and insists that there isn't a violation to speak against someone who is not a ya'arei shamayim.

We find that the gemara darshens in Baba Metzia 48b and 62a - ונשיא בעמך לא תאור, בעושה מעשה עמך, to the exclusion of a rasha. We also find in the Hagahos Maimon (deios 6:1) on the mitzvah of לא תשנא את אחיך בלבבך וכו' ואהבת לרעך כמוך that we darshen - דוקא שהוא רעך בתורה ובמצות אבל אדם רשע שאינו מקבל תוכחה מצוה לשנאותו. The source that one can hate a rasha is in pesachim 113b, that one can hate someone who does aveiros. We also find in the rambam (rotzeiach end of perek 4) who darshens - לא תעמוד על דם רעך, ואין זה ריעך and learns from here that shepherds who are considered theives are not included in this mitzvah to save them.

All these sources that use the terms "amcha", "rei'acha" or "achicha" seem to exclude only real wicked people. But the nimukei yosef seems to understand that the term "amisecha" in the context of ona'ah excludes anyone who is not a ya'arei shamayim. The term implies a higher standard than the other terms.

For more discussion of the issur on'ah see the link that i posted on the side to an audio shiur that i gave last night.

Baba Metzia 53b - Davar Sheyesh Lo Matirin

The Shulchan Aruch (y.d. 102:3) cites the Rashba that if a spoon that became treif gets mixed up with kosher spoons, we can allow bitul. It is not considered a davar sheyesh lo matirin, since there is an expense that one incurs by kashering the spoons (in those days they probably had to either schlep the water or pay for it to be carried to their homes). The Shach (8) quotes the maharil that this is only true if the expense is significant, but a minor expense is still considered "yesh lo matirin" and therefore it would not be batul. The proof is from our gemara that considers ma'aser shein outside of yerushalayim to be yesh lo matirin since it can be brought up to yerushalayim. Under normal circumstances there is an expense to go up to yerushalayim, yet we consider that expense insignificant and consider the aliya to yerushalyim to be yesh lo matirin.

Based on Tosafos in our sugya, there wouldn't be any proof from our gemara. Tosafos points out that the gemara discusses the idea of aliya to yerushalayim as being "yesh lo matirin" only on the ma'aser sheini that was brought in and then taken out, but doesn't bring this up in the case of less than a shava peruta of ma'aser sheini - why? Tosafos explains that the aliya to yerushalayim is a major schlep and therefore is not considered yesh lo matirin, under normal circumstances. But, in the case where the ma'aser sheini was brought into yerushalayim and then taken out, the implication is that he is standing just outside of the city. Therefore, the gemara considers the aliya to yerushalayim to be a "yesh lo matirin", because there is no expense and no real inconvenience. However, in the case of the spoon that gets mixed up, perhaps even a small expense would render it "ein lo matirin" and we can allow bitul.

The Shach rules that in the case of the spoon, you are obligated to wait 24hrs. His rationale is that although the issur d'rabonon is "ein lo matirin" (due to the expense of hag'ola), the issur d'oraysa of using the spoon as a ben yomo is "yesh lo matirin". The shach seems to assume that by davar sheyesh lo matirin, if one can remove the issur d'oraysa, even though he cannot remove the issur d'rabonon, he must remove the issur d'oraysa and only then do we allow bitul. I have a question on the shach from our gemara. The gemara says that once the ma'aser sheini has been brought into yerushalayim and taken out, on a d'oraysa level one can still redeem it, but on a d'rabonon level it cannot be redeemed (mechitzos are koltos m'drabonon). The gemara says that one can eat the ma'aser sheini through bitul and does not need to redeem it to remove the issur d'oraysa. We see that if the item is not going to be completely permitted, even if one can remove the issur d'oraysa, it is still called ein lo matirin since the issur d'rabonon would remain. Therefore, in the case of the spoon we should also allow him to use the spoon within 24hrs and not have to wait to remove the issur d'oraysa?

One of the very astute attendees of my daf yomi (Guy Wilnai) offered a very logical distinction. When the d'oraysa can be removed we consider it a yesh lo matirin to remove the issur d'oraysa, and only then to we allow bitul to work, as the shach explains. But, in our gemara the issur d'rabonon is not to redeem outside of yerushalayim. The reason we cannot redeem it to remove the issur d'oraysa is because the redeeming itself would be a violation of the issur d'rabonon not to redeem it. Therefore, we consider it ein lo matirin and allow bitul. [There is a big chiddush in this approach. Presumably, chazal never said that there is an issur to redeem after it has been brought into yerushalayim and then taken out. Rather, they said that mechitzos are koltos so that redeeming doesn't work to remove the status of ma'aser sheini - but there isn't any issur in doing the act of redeeming. The above approach assumes that this is NOT correct - we consider there to be an issur it even attmepting to redeem it after it has been brought in and then taken out].

Baba Metzia 53a - Chatzi Shiur

The braisa lists teruma and bikurim as things that a non-kohen is chayev misa for eating AND they are assur for a non-kohen to eat. Rashi and Tosafos are both bothered why the braisa would have to tell us that there is an issur for zarim after it already says that a zar who eats it is chayev misah. Rashi explains that it is to tell you the contrast of ma'aser, not only is there no misa for a zar, it is even permitted. However, Tosafos explains that it is to tell you the chiddush that even a partial shiur of teruma and bikurim are assur for a zar (according to r' yochanan that chatzi shiur is assur m'doraysa, it would be assur m'doraysa, and according to reish lakish it would only be d'rabonon). The Maharatz Chiyus quotes from the shita who asks, why is this a chiddush? Why should teruma and bikurim be different than any other issur in the torah where chatzi shiur is assur?

It seems that there is a chiddush in the case of teruma and bikurim. The source of chatzi shiur being assur (yoma 74a) is a combination of the pasuk of כל חלב complimented by the principal of חזי לאיצטרופי. The issur of chatzi shiur may very possibly be limited to ma'achalos asuros such as cheilev, but would not apply to teruma and bikurim which are not object of issur. Meaning, the concept of chatzi shiur may only apply to issurei torah that are a "cheftza shel issur", similar to cheilev, where we say that even a small portion is considered a cheftza shel issur (just without malkus). But teruma and bikurim are objects of mitzvah, not objects of issur. The issur on a non-kohen to eat them is an issur gavra - where one can argue that we don't apply the concept of חצי שיעור אסור מן התורה. The braisa is mechadesh that we apply the concept of chatzi shiur even to an issur gavra, just as we apply it to timebound issurim which are also issurei gavra in nature (as we see from the tzlach in pesachim 44a and repeated in his nodeh b'yehuda tinyana o.c. 53, where only at the end of the day where we no longer have חזי לאיצטרופי would we say that there isn't an issur of chatzi shiur).

To explain this a bit better, I have a discussion in my sefer as to how we apply chatzi shiur to a mitzvas aseh. The concept may not apply at all to a mitzvas aseh. The issur of a non-kohen to eat teruma and bikurim may be a result of the will of the Torah that a kohen be the one to eat teruma (although there isn't any specific mitzvah on a kohen to eat teruma, just an issur on a zar not to eat it). Since a chatzi shiur isn't considered a significant achila for a kohen to eat, it may not be an issur for a non-kohen to eat. The braisa is mechadesh that there is in fact an issur for a non-kohen to eat a chatzi shiur of teruma and bikurim.

Baba Metzia 51b - How to avoid Ona'ah

The gemara makes a distinction between stam and mefaresh. If one simply stipulates that there shouldn't be ona'ah in the sale, we pasken like rav that there is still ona'ah. However, if the seller explicitly states that the item is worth $100 but he is selling it for $200 and stipulates "on the condition that there should not be ona'ah", it is permitted to overcharge. Rashi explains that this only works because we follow R' Yehuda who says that one can make a monetary stipulation, just that we are concerned that if the price is not explicitly stated the buyer will be misled into thinking that there isn't any ona'ah when in fact there is - therefore it is necessary to state the exact price. But, being that it is based on the opinion of R' Yehuda that one may make a condition to avoid an obligation when it comes to monetary matters, it seems clear that even if the buyer is aware of the price there would still be an issur of ona'ah. Therefore, it is necessary for the seller to make a condition stipulating that there shouldn't be any ona'ah, which works according to R' Yehuda.

Although the din of R' Yehuda that one may stipulate on monetary matters is based on the notion that one can be mochel there rights, it seems that in order to invoke the mechila of the buyer the seller is required to stipulate the condition AND notify the buyer of the actual price. The Shluchan Aruch (C.M. 227:21) writes this halacha as it appears in the braisa without clearly stating whether or not it is necessary to reveal the actual price and stipulate the condition of there not being ona'ah. Aside from the buyer being notified that there is ona'ah in this transaction the sm"a (39) explains that the implication of the braisa and the shulchan aruch is that the buyer must be aware of the exact actual price and it is not sufficient for the seller to just simply say that he is being overcharged. The rationale is that the buyer will not be mochel unless he is aware of the true amount that he is overpaying. However, the Taz seems to disagree and hold that as long as the buyer truly realizes that he is being over charged, it isn't necessary that he realize the exact price of the item.

Based on this, in order to avoid ona'ah the seller must make the buyer aware that he is being charged above market value (taz), and perhaps even tell him the actual price (sm"a). In addition to this, the seller must use a t'nai by saying that he is selling "on the condition that there shouldn't be on him ona'ah). This implies that the issur ona'ah cannot be simply avoided by the buyer being aware of the price, but rather the seller must explicitly stipulate that the buyer should be mochel the ona'ah.

Baba Metzia 49a - Never Tell a Lie

There seem to be 3 different sources that the gemara uses for not lying:

1. The gemara in kesubos (chapter 2) uses the pasuk of מדבר שקר תרחק.

2. The gemara here in BM uses the drasha of שתהא הין שלך צדק ולאו שלך צדק.

3. Rashi on 48b in describing why one who retracts from a sale doesn't qualify as an עושה מעשה עמך and rashi on 49b in describing why a levi can assume that the ba'al habayis will follow through with his promise to give him teruma and ma'aser - uses the pasuk of שארית ישראל לא יעשו עולה ולא ידברו כזב.

1. It seems that each one of these sources applies to a different situation. The pasuk of מדבר שקר תרחק applies to a situation where at the time it is being spoken it is an outright lie - such as כלה נאה וחסודה when she is in fact not that at all (the machlokes there is only due to the special circumstance, but everyone agrees conceptually that in other situation where it isn't necessary to lie for shalom, it would be assur).

2. The drasha that the gemara uses here in BM of שתהא הין שלך צדק ולאו שלך צדק, which the gemara explains that one shouldn't be אחד בפה ואחד בלב applies as rashi says to a situation where at the time that one is making a commitment he is planning on breaking his commitment. This also includes as the Maharatz Chiyus points out from the Rambam (dei'os 2:5) refers to being disingenuous and acting tricky in their personal relationships. At the time one is saying something it is not an outright lie, but the impression implied from their speech doesn't match their intent.

3.Finally there is the more subtle category where one simply changes him mind and wishes to break his commitment. This is the case where r' yochanan and reish lakish argue about יש בדברים משום מחוסרי אמנה, and we pasken like r' yochanan that by a small gift where the other person expects you to follow through even without a kinyan, the breaking of a commitment would be a violation of שארית ישראל לא יעשו עולה ולא ידברו כזב. Rashi seems to understand that the entire machlokes is only in a case where the rates change and therefore one has a legitimate reason to retract, but in a case where the rates don't even change even reish lakish would agree that it is assur to retract. The Shulchan Aruch (C.M. 204:7) paskens like the rambam that for a small gift it is assur to retract whether or not the rates change (which is like rashi that this is the case of argument), but the sm"a quotes the rosh that if the rates change even r' yochanan holds that it is mutar for one to retract. It is interesting to note that the rambam doesn't cite the pasuk of שארית ישראל לא יעשו עולה ולא ידברו, and just says that אין רוח חכמים נוחה הימנו which implies that it is only a problem m'drabonon.

Baba Metzia 48b - Mi SheParah

Abaye and Rava argue whether the beis din simply notifies the person who retracts after the payment has been received that he will be in violation of the "mi she'para", or whether they actually curse him. Rambam and Shulchan Aruch (204:4) rule like rava that the beis din actually curses him. Rava explains that although there is a prohibition to curse - ונשיא בעמך לא תאור, that is only when one behaves like an עושה מעשה עמך. But this person who is retracting after paying and is not sticking to his word (and violates - שארית ישראל לא יעשו עולה ולא ידברו כזב - rashi), is not considered one who follows ma'aseh amcha, and it is permitted to curse him. Tosafos points out that one who retracts on a sale is not considered עושה מעשה עמך in the sense that you can curse him for this specific act that he is doing, but we don't regard him as totally excluded from the prohibition to curse him and therefore one cannot curse him for no reason. At first this seems strange because whether he is or isn't an עושה מעשה עמך should be very clear, without gray area. However, it seems that Tosafos understands that sometimes within a particular action a person can be regarded as one who is not עושה מעשה עמך, but in every other are he is a עושה מעשה עמך. Therefore, within the action that he isn't עושה מעשה עמך, one can treat him in that way, but not in other areas.

I would like to suggest a slightly different explanation of tosafos. The purpose of the mi shepara is to discourage him from backing out. One who backs out of the deal can still be talked into maintaining the deal, and the purpose of the mi shepara is to "convince" him to maintain it. Therefore, one who says that he is backing out has not completely lost his status of עושה מעשה עמך, since he may still decide to maintain it. Therefore it is assur to curse him for no reason. Why can we curse him with a mi she'para? Because the curse is only effective if he persists in backing out, in which case he is not עושה מעשה עמך. But, being that he may change his mind and maintain the deal, one cannot curse him for no reason, since if he decides to maintain the deal he will be a עושה מעשה עמך and it is assur to curse him. This approach would only work based on the approach mentioned in the shulchan aruch and rama that we don't use the language of "הוא יפרע ממך" to direct the curse at him specifically, rather we say "הוא יפרע ממי שאינו עומד בדיבורו" (machlokes rambam and rosh - see sm"a) - the curse therefore is only binding on condition that he follows through with his retraction, but if he maintains the deal he is no longer a "מי שאינו עומד בדיבורו".

Baba Metzia 48a - Difference between R' Yochanan and Reish Lakish

Rashi suggests that the nafka mina between r' yochanan and reish lakish whether money effectuates the kinyan m'doraysa is kidushei isha. It is not entirely clear from rashi whether he is speaking about the money that was used to pay for the object or speaking about the object itself. Regarding the money that was used to pay for the object, Tosafos 43a already established (in the end) that according to r' yochanan the seller may use the money as soon as he receives it and therefore can be mekadesh an isha with it, whereas reish lakish will say that the money cannot be used by the seller until the transaction is completed through meshicha. However, Rashi using singular rather than plural language implies that we aren't speaking about the money, rather about the object that was purchased with the money. According to R' Yochanan the buyer may use the object to be mekadesh an isha, whereas according to reish lakish the kiddushei isha wouldn't be binding until the buyer does meshicha.

R' Moshe Feinstein (dibros hea'rah 31) asks that according to the simple understanding of rashi that we are speaking about a case where the buyer uses the object that he purchased with kesef WITHOUT meshicha to be mekadesh a woman - how exactly does the buyer have the object in his possession to be mekadesh a woman without doing meshicha on the object? He suggests that the case to which rashi is speaking is when the buyer is mekadesh the object that he purchased using kinyan kesef and still in the possession of the seller, but is able to be makneh it to the woman via kinyan agav (which rashi in gittin 77b holds that it works by gett - unlike the Ran), or through a kinyan sudar. This is actually a chiddush that although she would be giving the sudar to him to acquire the object, it can work as kiddushin.

Another issue is the question raised by the ritva. How can the kiddushin be binding when the buyer is mekadesh an isha with the object since the seller still has the right to retract on the transaction. R' Moshe explains that the case would be where the buyer purchases the object using a kinyan kesef, then is mekadesh an isha using kinyan sudar or agav, and then does meshicha on the object which would retroactively make the original kinyan kesef used to purchase the object go into effect. Based on this, R' Yochanan who holds that we uproot kinyan kesef and implement meshicha doesn't mean that kesef is worthless, but rather the kinyan kesef is pending. When it is completed through a meshicha which prevents the seller from retracting, the kinyan kesef is considered to effectuate the transaction retroactively.

R' Moshe seems to assume that the kinyan kesef doesn't take effect until the meshicha and then goes into effect retroactively. But to me it seems meduyak from rashi on 46b and 47b that chazal didn't uproot the kinyan kesef. Rather, they allowed the seller and perhaps even the buyer to change their mind. But if they would decide not to change their mind the kinyan kesef will be binding. For example, if there was a kinyan kesef and the seller dies, the kinyan kesef of the buyer would be binding since there is no one to retract on the kinyan (i am assuming that the yoreish can't retract, but if he can we can always make the case by a ger who has not yorshim to retract).

Baba Metzia 47a - Keilim of Makneh

The gemara in kiddushin 6a says that if a woman would give a gift to someone who is an important person and doesn't accepts presents from just anybody, she would be receiving enough hana'ah from the fact that he receives her gift so that he can be mekadesh her with that benefit that she receives. The Taz (y.d. 160:8) explains that the reason that he must be an adam chashuv is because if he is just a regular person then the benefit she receives doesn't have any cash value to it and therefore cannot create a kiddushin. The Taz continues to apply this concept to the issur ribbis as well. If a lender tells a borrower, "i will lend you the money you need on condition that you receive this gift from me" - it depends. If the borrower is an adam chashuv then the lender would be receiving real benefit from the borrower willing to receive his gift which would create a ribbis problem. But if the borrower is not an adam chashuv there wouldn't be any ribbis problem. The Taz clearly understands that if the receiver of the gift is not an adam chashuv, we consider the value of the hana'ah that the giver has to be worth zero, and therefore it is not a ribbis problem.

However, R' Akiva Eiger (y.d. 160 on taz) cites a Ran in kiddushin who asks based on levi in our gemara who holds that chalifin is done with the keilim of the makneh, because the benefit that the makneh receives by the koneh willing to accept his gift, provides enough benefit to the makneh with which to be makneh the item. Clearly, we see that the makneh receives benfit by the koneh receiving his gift even if the koneh is not an adam chashuv. This seems to contradict the gemara in kiddushin? The Ran answers that even if the receiver of the gift isn't an adam chashuv, the giver has hana'ah that the receiver was willing to accept, but the hana'ah isn't valued at a pruta. Therefore, in the context of kiddushin where her hana'ah must equal a peruta, it only works when he is an adam chashuv. But, by chalifin where the benefit received by the makneh need not be worth a peruta, even if the koneh is not an adam chashuv it will work. R' akiva eiger explains that the rav doesn't disagree with levi about this. Therefore, in the context of ribbis where even a slight benefit that the lender receives from the borrower is an issur (although not d'oraysa), even if the borrower isn't an adam chashuv, there would be a problem of ribbis. Based on this, the lender cannot say to the borrower "i will lend you money on the condition that you receive this gift from me", even if the borrower isn't an adam chashuv because the lender will be receiving some minor benefit which is assur.

Baba Metzia 46a - Kinyan by Admitting

The gemara struggles to figure out a way how reuven can be makneh his money that he has at home to shimon, who will then use that money to redeem the ma'aser sheini of reuven and avoid the extra fifth penalty. The gemara suggests that had reuven had property to be makneh to shimon, he could be makneh the money "agav" the property. Although Tosafos in baba kama 12a writes that kinyan agav is only d'rabonon, apparently tosafos understands that even a kinyan d'rabonon would be sufficient to establish shimon as an owner of the money to redeem the ma'aser sheini and m'doraysa avoid the extra fifth penalty.

Tosafos raises a question: Even without a kinyan agav or kinyan sudar, can't reuven very directly be makneh to shimon the money by "admitting" that it actually belongs to shimon? In this question Tosafos assumes that a hoda'ah doesn't merely allow beis din to act as if witnesses testified, but it actually transfroms the ownership of the item to belong to shimon and would be considered shimon's money for ma'aser sheini redemption purposes. The Ketzos HaChoshen (40) answers Tosafos question by establishing a clause in this type of kinyan that it must be done in the presence of witnesses. Therefore, we can easily make the case where there are no witnesses available to allow the kinyan hoda'ah to go into effect (the ketzos confirms this point based on tosafos in kiddushin who proves from this gemara that a kinyan sudar does not require witnesses to make the kinyan go into effect, from the fact that the gemara didn't say that kinyan sudar wasn't an option due to a lack of eidim).

Therefore, the ketzos (194:4) has an elaborate discussion where he explains that this type of admitting would serve as a kinyan even for the purpose of transfering chometz that is another place to belong to a goy. We see from the fact that it works for ma'aser sheini that it not only works for monetary purposes but even for issur purposes, therefore it should work for chometz as well. But, Tosafos in Baba Kama 104b implies that it would not work on a d'oraysa level and wouldn't work for ma'aser sheini purposes. Nevertheless, the ketzos argue that it should still work for chometz since one as mevatel the chometz and the requirement to rid themself of it is only d'arbonon. But in truth the ketzos points out that even if kinyan hoda'ah is only rabbinic in origin, it shouldn't be any worse than kinyan agav which works for ma'aser sheini.

I would suggest that tosafos in baba kama doesn't necessarily contradict our tosafos because tosafos in baba kama is speaking about admitting that you own property by which you will be makneh the money through a kinyan agav - to which tosafos says that it doesn't work for a d'oraysa. But our Tosafos speaks of directly being makneh the money through admitting which would work for a d'oraysa. The rationale for the distinction is that admitting to owning property would require 2 derabonons - 1 for the kinyan hoda'ah and 2 for kinyan agav. A kinyan which is based on a combination of 2 d'rabonons is weaker and won't work for a d'oraysa - maybe?

Baba Metzia 40b - Old Keilim Don't Absorb

The Taz (y.d. 93:2) cites the Beis Yosef quoting Sha'arei Dura that if one cooks meat in a dairy pot that had milk sitting in it all night, so long as the pot has been used before so that the walls have fully absorbed to capacity, the meat would be permitted to eat. The rationale is that the walls of the pot, since they have absorbed to their capacity couldn't possibly absorb any of the milk that was in it overnight, therefore the pot is considered not to be a ben yomo (assuming that 24hrs had passed from the last time milk was cooked in it) and doesn't assur the meat. The Mordechai proves this concept from our gemara which says that an old pot - כיון דטעון טעון. Meaning, since the walls of the container have already absorbed oil, one can assume that the container didn't continue to absorb the oil. Therefore, the nifkad must return the full quantity of oil that he received and can't assume that the container absorbed some of it.

The Bach extends this din to a case where the milk sat in the pot for more than 24hrs where we generally have a concept of kavush k'mivushal - nevertheless, the pot doesn't have the capacity to absorb any of the fresh milk since the walls were fully absorbed with the old eino ben yomo milk that was previously cooked in it. The Taz strongly rejects the extension of the Bach. When milk sat in the pot for more than 24hrs we have a concept of kavush k'mivushal which means that the walls of the pot will "spit out" some of the old milk and absorb in its place some of the new milk. Therefore, the pot becomes a ben yomo of dairy and will thereby assur the meat. It is only in the case of the Sha'arei Dura where the milk didn't sit in the pot for a full 24 hrs so that the walls of the pot didn't "spit out" (poleit) any issur - that is why we can assume that so long as they were filled to capacity, they couldn't have absorbed any of the fresh milk. 

The Chavos da'as (93:3) and Pischei Teshuva both point out that even without the distinction of the Taz, our gemara cannot serve as a proof to the case of the bach where the milk remained in the pot for more than 24hrs. When milk sits in the pot for more than 24hrs we have a concept of kavush k'mivushal, therefore even if the pot cannot absorb any more actual milk, it can absorb the "ta'am" (taste) of the fresh milk rendering it a ben yomo pot. It is only in the case of the mafkid and nifkad where the fact that it has already absorbed to capacity will allow you to assume that none of the oil got absorbed, because in monetary issues we are only concerned with the mamashus of issur, not the ta'am of the issur.

Baba Metzia 39b - Claiming to be a brother - Recognizing Yosef

The gemara says that someone showed up claiming to be Mari's brother and demanding a share in the inheritance. Mari responded that he doesn't recognize him and Rav Chisda justified the claim, since when Mari last saw him he didn't have a beard and now he has a beard - and proves that it is a legitimate claim from yosef and his brothers. The gemara seems to imply that when a person shows up out of the blue claiming to be a brother, unless there is a valid explanation to explain why he doesn't recognize him, we would assume that he is actually a brother and give him a portion in the yerusha. Tosafos is troubled by this - דא"כ לא שבקת חיי לכל בריה העשירים שכל אחד יאמר אני אחיך. Tosafos argues that it can't be that someone can come and is beleived to be a brother (unless the other one has a legitimate reason why he wouldn't recognize him). Tosafos explains that had he claimed "he is not my brother" that would be sufficient. But the situation was that mari bar isak wasn't convinced that this person wasn't his brother and therefore did not make a definitive claim. Mari's claims is that "i don't know if he is my brother", meaning that he very well may be so it is a ta'ana of she'ma against a definite claim of "i am your brother". Therefore the other person would be believed that he is in fact his brother, unless mari can explain why he isn't sure such as that now he has a beard.

Rashi seems to deal with the same question much more simply. Rashi writes - שפיר קאמר לך שאינו מכירך ואין זה רמאות. Rashi (d.h. asa lei) explains that the case was that Mari admitted to having a brother overseas, therefore even though mari makes a definitive claim that he doesn't recognize this guy it seems like he is not being honest - therefore r' chisda justifies mari's claim that do to the beard he truly doesn't know whether this is his brother. The Rosh seems to go along the lines of Rashi. He explains the need for the legitimizing of why mari doesn't recognize him that the person is not just claiming to be a brother, but he is claiming that mari truly knows that he is his brother and is denying it. Therefore R' Chisda justifies why mari truly doesn't know.

The Nimukei Yosef seems to argue against all the other Rishonim. He understands that since it is completely uncommon for a person to show up claiming to be a brother, when the response is "i don't recognize you", it is "ניכרין דבריהם שזה טוען אמת וזה שקר שלא מצינו איש שיקרא למי שאינו אחיו אחי אתה, ומה שטוען זה הוא רחוק שלא ידע אם יש לו אח או לא". Therefore, in this type of situation where it seems like the person coming is in fact a brother, the burden of proof is on the other to explain why he doesn't recognize him. That is why R' Chisda had to justify that it is because he now has a beard.

Based on the Maharal (gur aryeh) it works out very nicely. The maharal explains that rashi is bothered why the pasuk repeats itself saying that yosef recognized them, twice. He explains that at first it is just telling the facts that yosef recognized them, and hid his identity so they don't recognize him. But then the pasuk says that it was possible for him to recognize them since he has seen them with beards, but it was not even possible for them to recognize him since they have never seen him with a beard. Based on this we can understand what R' Chisda is proving from yosef. Perhaps yosef just happened to recognize him and they just happened not to recognize him due to the beard, but not necessarily is it a great claim. However, based on the maharal R' Chisda was showing from yosef that he was confident that they wouldn't recognize him since it is impossible to recognize him with a beard.