Baba Metzia 95b - Shei'la B'bailim

Rav Hamnuna holds that the exemption of borrowing an animal with it's owner only applies to a case where the owner is borrowed to work in the same melacha as the animal, AND that the owner was there at the time that the accident occurred. This approach in שאלה בבעלים is certainly the most rationale, because the reason for the exemption is that since the owner was there at the time of the accident doing the same work, he should have watched his own animal. This is the approach of the GR"A in aderes eliyahu to explain the concept of שאלה בבעלים. However, the meshech chochma (mishpatim 22:3) points out that this approach doesn't at all work with what we pasken, rejecting rav hamnuna entirely. We hold that שאלה בבעלים is completely dependent on the time that the object was borrowed the owner must have already been working for the borrower (or at least begin immediately), AND it makes no difference if the owner is working with the object that has been borrowed or in something else. What then is the rationale behind this halacha?

The meshech chochma suggests that the rationale is based on a gemara in megillah 26b that says the kedusha of a shul would go away, not only through a sale but even if it is given as a gift because: דאי לא דהוה ליה הנאה מיניה לא הוי יהיב ליה והוי מתנה כזביניה. Here too, it is not common to do such a huge favor for the borrower to lend him an object and work for him at the same time. Therefore, we assume that the owner is only lending and working in exchange for something that he received. Since the owner received something in exchange, the borrower is no longer a borrower but has been downgraded to a renter who is exempt for o'nes.

This approach doesn't explain those who hold that negligence is also patur, and also doesn't explain why he is patur for theft according to those who hold a renter is normally chayev for theft (like a shomer sachar). Perhaps we will have to assume a "lo p'lug" to explain those opinions.

With this we can somewhat explain the gemara's question 96a whether שאלה בבעלים applies when the owner sends his messenger rather than going himself. Does the sending of a messenger also indicate that the owner must have received something significant in return for lending and supplying a worker, or do we only assume that when he himself goes. However, if this is in fact the question of the gemara, it shouldn't really be dependent on the halacha of שלוחו של אדם כמותו anywhere else, it should be an isolated question regarding the assumption in this specific situation. Yet, the gemara compares it to the general din of שלוחו של אדם כמותו by hafaras nedarim.

Baba Metzia 94a - Stipulating agains the Torah

The gemara says that a shomer may stipulate to have a lower level of responsibility because מעיקרא לא שעבד נפשיה, meaning that his original acceptance of responsibility was never for more than he accepted. Tosafos in Kesubos 56b asks that this seems to undermine the entire concept of stipulating against the torah. Why can't we say the same thing for one who marries on the condition to be exempt from feeding and clothing her is also מעיקרא לא שעבד נפשיה so he should be able to make such a condition? Tosafos gives 2 answers: 1. Since the Torah doesn't only list one type of shomer but rather 4 types of shomer, we understand that the intent of the torah is to allow anyone to accept responsibility like any of these 4 shomrim. But by marriage where the torah doesn't offer different types and packages, it is only binding if done in accordance with the package that is recognized by the torah which includes she'er k'sus and o'nah. 2. Since the Torah obligates a borrower more due to the fact that "all the benefit is his" and a paid watchman is more obligated than a free watchman because he is being payed, indicates that each shomer has the right to accept upon himself whatever level of responsibility that they feel they are being compensated for. Meaning, the ultimate responsibility of a shomer is a direct result of what he had originally accepted upon himself, therefore it is in his control to limit what he accepts upon himself.

Perhaps there is a distinction between the 2 answers of tosafos as to whether a shomer sachar can stipulate to be chayev on aveida but patur on geneiva. Based on the first approach we may only allow one to stipulate to be like one of the categories of shemira that is already recognized by the torah, but based on the second approach one should be able to create their own category.

Rashi seems to answer the question of tosafos very simply. Some interpret rashi that the reason by kiddushin one cannot stipulate against the torah is because the moment he says "הרי את מקודשת לי" the kiddushin is fully binding and no longer in his control to stipulate על מנת שאין לך עלי. But this peshat in rashi is very difficult as Tosafos in kesubos asks, the stipulation must proceed the ma'aseh. If not for Tosafos, I would have understood rashi to mean that kiddushin is an entity. Meaning it is a "chalos" that is designed by the torah. In essence it is a imaginary concept that only exists based on the torah design. Therefore, to stipulate and change the design isn't possible and completely beyond one's control. But a shomer on the other hand is not a "chalos", it is merely a list of responsibilities, therefore prior to accepting those responsibilities one can choose which of them he is willing to accept and which of them he isn't willing to accept.

Baba Metzia 92a - Po'el eating from his own or from "shamayim"

The gemara raises a question whether the heter of a worker to eat as he works is: משלו הוא אוכל או משל שמים הוא אוכל . Is he eating from his own which means it is like added benefits in addition to his salary that he has full rights over to give to someone else, or is he eating from shamayim which rashi explains to mean is like a gift of gemilas chessed that the employer is required to give him by the torah? The gemara has a long discussion and concludes that it is a machlokes.

There seems to be a dispute between rashi and tosafos in defining the tzad of משל שמים הוא אוכל. Rashi explains that he isn't entitled to it until it "reaches his hand" so that he can't stipulate that it should be given to his children. Rashi implies that if the worker himself would take the grapes and hand it to his son who is walking next to him (but not a worker), that would be permitted even according to this tzad. Tosafos disagrees with rashi (pointed out by GR"A) and says that the tzad of shamayim holds that he is only zocheh in it at the moment he places it into his mouth and therefore has no way to give it to his son.

On 92b, when the gemara quotes the mishna that one cannot stipulate with the employer that his child (katan) won't eat, and instead the employer should compensate for it in the salary. The reason that on the tzad of משל שמים הוא אוכל we fully understand why the father can't impose this stipulation on his child, rashi explains -

דאין לפועל קטן זכות אלא כשנותן לתוך פיו

This seems to contradict rashi on amud alef who says that even on the tzad of shamayim, the worker is zocheh as soon as it reaches his hand, even before he puts it in his mouth?

The answer is that Rashi holds that an adult worker in general has an ability to make a kinyan and therefore acquires the fruit that he is entitled to eat as soon as he picks it up (even on the tzad of mi'shel shamayim). But a child who doesn't have the ability to make a kinyan cannot be zocheh upon picking it up, and is only zocheh at the time he actually eats it. Therefore, the father cannot stipulate that the employer should increase the salary in exchange for the father giving up the childs right to eat, because the right to eat only exists when he is actually eating.

Baba Metzia 91a - Latzeis Yidai Shamayim

The gemara proves that even though we normally assume that one does not receive 2 punishment such as malkus and payment, or misah and payment, nevertheless there is a requirement to pay to be yotzei yidei shamayim. The gemara proves this from אתנן אסרה תורה ואפילו בא על אמו - rashi explains that from the fact that even though he is chayev misah for having relations with his mother, the torah still considers the payment to have status of "esnan", rather than just a gift, clealry indicates that he is obligated at least bidei shamayim to pay. Based on this the gemara holds that if one muzzles a borrowed ox when he works with it, even though he receives malkus, he is obligated bidei shamayim to pay the owner of the ox. Rashi says that since he is technically obligated to pay just that beis din can't force him to pay, if the owner of the animal grabs the payment, he is allowed to keep it.

Tosafos asks why Rava refused to accept the money being offered to him when stolen b'machteres - although the thief wasn't obligated to pay, there was still a responsibility on his part bidei shamayim to pay. Tosafos answers that Rava realized that the thief wasn't interested in being yotzei yidei shamayim and was only paying because the thought that he was obligated to pay. [We learn from tosafos that if someone is paying a debt thinking they owe it in din, but are really only obligated to pay bidei shamayim, it shouldn't be accepted by the receiver].

The Ketzos HaChoshen (28:1) points out that there seems to be a machlokes between rashi and tosafos. According to Rashi that when one is obligated to be yotzei yidei shamayim, even grabbing would be okay, certainly if the person gave him the money mistakenly thinking that he was obligated to pay, the receiver can keep it. If so, according to rashi even if rava realized that the person was only paying due to mistakenly thinking he is obligated to, Rava should have accepted the money - which is against Tosafos. The ketzos reconciles rashi and tosafos with the approach of the maharshal who makes a distinction between whether the person is being punished with the stricter punishment (grabbing wouldn't help) and a situation nowadays where he isn't receiving malkus due to the fact that beis din can't enforce it (so grabbing would help). But the rashash explains that "grabbing" does not give the grabber a right to keep it, just that beis din can't take it back from him. But just as the person who worked with the muzzled animal has a mitzvah bidei shamayim to pay, the person who would grab it from him would have a mitzvah to return the money. Therefore, rashi and Tosafos fit perfectly well with one another - rashi is correct that if the owner of the animal grabs it, beis din will let him keep it, but tosafos is also correct that the grabber should not keep it against the will of the violator.

Baba Metzia 90a - Amirah L'nachri

The gemara has a question whether the rabbinic prohibition of telling a goy to do an issur and/or benefiting from an issur done by a goy (which the gemara equates by citing the sirus case as a proof), applies only to shabbos since it is more severe (and also yom tov as tosafos points out because shabbos and yom tov are connected), or does it apply to other issurim as well. The maskana isn't clear from the gemara, but the nimukei yosef points out that since all the amoraim held that the sirus case was assur and they certainly don't all hold like r' chidka who says that sirus is assur for a goy, the halacha is that amira l'nachri is in fact assur by all issurim.

Rashi and Tosafos argue whether the gemara is speaking of a case where the jew tells the goy to thresh the grains of the jew or the goy. Rashi understands that the entire discussion in the gemara is where the jew tells the goy to do it for the goy's benefit, something the jew gets no benefit from. This would imply that if the jew tells the goy to do it for the jews benefit, it would surely be assur. According to Rashi the gemara would be making a slight jump by equating the amira l'nachri by muzzling to the interest that the jew has in benefiting from the goy doing sirus (even without the jew saying anything). Tosafos disagrees with rashi and says that it would be permitted for the jew to tell a goy to do it for the goy's benefit. It is only assur for the jew to tell the goy since the jew will be benefiting. According to this approach there is a clearer connection between the case of amira l'nachri by muzzling and the benefit the jew gets by sirus, since even the case of amira l'nachri is for the jew's benefit.

Tosafos assumes that all would agree that it is permitted to tell a goy to eat something not kosher. Tosafos asks that according to Rashi that a jew may not tell a goy to thresh the goy's produce with a muzzled animal, why is it permitted to tell a goy to eat non-kosher? Tosafos explains that the jew telling the goy to do it is tantamount to the jew doing that action. Therefore, telling the goy to eat neveila is like the jew doing the action of feeding the goy neveila which is perfeclty permissible. But to tell the goy to do melacha on shabbos or to thresh with a muzzled animal is tantamount to the jew doing that action which is assur.

R' Yosef Engel (lekach tov 1:8) uses this tosafos to prove the ketzos hachoshen who says that shlichus doesn't work by mitzvos because when reuven is a shliach of shimon and puts on tefillin for him, we don't view it as if tefillin is being put on shimon's arm, rather it is like shimon is doing the action of wrapping tefillin on reuven's arm. This is exactly the sevara of Tosafos. Tosafos holds that amira l'nachri is assur because we are machmir to consider the goy to be the shliach of the jew and therefore the action is attributed to the jew. But, when the jew tells the goy to eat neveila, it is not as if the jew ate neveila, rather it is as if he fed neveila to the goy.

The Nimukei Yosef answers tosafos question by making a distinction whether the goy is using the jew's object or his own object. It would be permitted to tell a goy to eat his own treif food, but not to tell him to eat your treif food. According to the nimukei yosef the issur of amira l'nachri is because the jew has involvement with the action of issur being done by the goy. If the jew has not involvement because his object is not being used and he is not benefiting, it is permitted.

Baba Metzia 88b - Mitzva To Save the Whales

The gemara suggests a kal v'chomer that would result in their being a mitzvah of tzedaka - מצוה להחיותו on animals. Although one may have a mitzvah to feed his own animals, the gemara concludes that there is surely no mitzvah to support the animal (when it is no longer profitable), and certainly one is not obligated to support animals that are not his. The Tosafos HaRosh asks in the name of Rabbeinu Meir, what is the hava amina. There should be an obvious pircha to the kal v'chomer, from the fact that one is not allowed to schecht people, but may schecht animals - this obviously shows that there isn't any mitzvah l'hachayoso on animals. The Tosafos HaRosh responds to this question by saying that the hava amina to make a kal v'chomer would be by animals that one is not allowed to schecht such as a bechor that is mixed with a shor haniskal.

Aside from the actual question of the Tosafos HaRosh, the entire hava amina that one would be obligated to support animals and help them survive seems a little strange. Especially since in the end the mitzvah l'hachayoso only applies to a jew and not a goy.

The Biur Halacha (330:2) writes that one is obligated to help a ger toshav woman give birth because on a ger toshav there is a mitzvah l'hachayoso. He entertains the possibility that the jew can even violate issurei d'rabonon to help the ger toshav give birth because when there is a mitzvah l'hachayoso the rabbonon weren't gozer. Based on this application of the mitzvah l'hachayoso, the mitzvah goes beyond tzedaka, it compels one to actually take care of others and help them through physically challenging circumstances.

Baba Metzia 88a - Exemption from Ma'aser on bought produce

There is a fundamental machlokes Rabbeinu Tam and Rivam quoted by tosafos regarding the exemption from ma'aser on produce that Reuven sold to Shimon.

Rabbeinu Tam holds that if Revuen processed the produce prior to selling and it became obligated in ma'aser and assumes a status of tevel, by selling it to Shimon the tevel status goes away and it is exempt once again. But if Reuven never processed it, when shimon does the processing he will be obligated in ma'aser m'doraysa becasue it is considered his own produce.

Rivam says exactly the opposite. If Reuven processed the produce prior to selling it, since it has become obligated in ma'aser and assumes a status of tevel, this status can not be removed. Therefore, when he sells it to Shimon, Shimon will have a Torah obligation to take ma'aser. But if reuven sold it to shimon prior to processing it and it was processed in the home of shimon, then it is patur from ma'aser.

When the produce was grown by a goy (assuming his kinyan in EY won't remove the chiyuv), the gemara says in bechoros 11b that if the goy processed them and then sold them to a jew, they are exempt from ma'aser, but if the jew processed them they are chayev. Rabbeinu Tam holds that if the produce was processed by the original farmer, it makes no difference if he were a jew or goy, the buyer (shimon) would be patur. But, if they weren't processed by the original farmer, the buyer would be chayev. The Rivam holds that when the original farmer was a goy, the halacha is exactly the opposite from when the original farmer would be a jew. A goy farmer who processes and sells would be patur since it was processed by the goy and remain patur even after it is sold. But if the goy farmer didn't process it, it is not considered his at all so that when he sells it to the jew and the jew processes it, it is chayev.

The greates difficulty with Rabbeinu Tam is that produce that is tevel can be sold and revert back to being exempt from ma'aser (and then if sold back to reuven would revert back to being chayev in ma'aser!). The greatest difficulty in the Rivam is that produce of a goy is not considered to be his unless he processed it, so that if sold to a jew, it is as if the jew grew it himself and is chayev in ma'aser.

Another hybrid approach (i think it is R' Chaim's approach in shitas ha'rambam) is that it is not dependent on who processed it, but rather what the intent was when it was processed. If Reuven processed it for personal use and it becomes chayev, nothing can remove that status of tevel (like Rivam). If Reuven did not process it rather he sold it to shimon who processed it then it is also chayev (like Rabbeinu Tam). Only if Reueven processed it with the intent of selling it to shimon, it will be patur.

Baba Metzia 87b - Bracha on sucking a fruit

The gemara learns from a pasuk that a worker is allowed to eat the grapes the he is working with, but he is not allowed to suck out the juice. The gemara somehow understands that the term "v'achalta" comes to exclude sucking. How? Tosafos implies that it is darshened from the term "v'achlta" being translated as eating to the exclusion of drinking (Rashash points out that when he works in drink, he may drink, but when he works in food he can only eat but not drink). Sucking out the juice is drinking, and therefore not permitted. But, Rashi understands the drasha is from the fact that he must consume the entire fruit and not throw away the skin (which would cause an unnecessary loss to the ba'al habayis). An obvious difference between rashi and tosafos would be whether it is permitted to suck the juice and then eat the chartzanim that remain. According to rashi it should be permitted since he is consuming the entire fruit without any waste, but according to tosafos since he is doing an act of drinking rather than eating it should be forbidden.

Another difference between rashi and tosafos that is pointed out by the rashash is what bracha to make on the sucking of a grape (when you won't be eating the entire grape). On fruit juice the bracha is shehakol (as we make on OJ, although that is debatable nowadays where the oranges are grown for the purpose of juice), but on the actual fruit the bracha is shehakol. If we consider the sucking to be drinking, it is equivalent to drinking the juice so the bracha should be shehakol (tosafos), but if we consider it to be eating it should be ha'eitz (rashi). The Rashash points out a gemara in krisus that seems to categorize the milk of a nursing mother as "food" rather than drink (because it needs hechsher to be mekabel tu'mah) - this implies that we consider the sucking of a liquid to be "eating" rather than drinking (not like tosafos) and therefore the Rashash paskens that the bracha would be ha'eitz.

Baba Metzia 86a - Closing of Mishna and Closing of Gemara

The gemara says that Rebbi and R' Nasan were the end of the mishna era, and Rav Ashi and Ravina were the end of "hora'ah". Rashi explains that Rebbi was responsible for organizing the mishna but this is not to say that the mishna was closed so that no additions can be made after Rebbi. Rashi clearly acknowledges that ואחריהם לא יוסיפו אלא מעט - implying that there were bits and pieces added later. Similarly, when the gemara says that R' Ashi and Ravina were the end of the "hora'ah" period, rashi doesn't say that they had the final word and no later authority can argue on them. Rather, rashi says that they too were involved in organizing the Talmud as we know it, making sure the statements that were made fall under the mishna on which they belong. Rashi doesn't even mention the idea that no one can argue on the conclusions of Ravina and R' Ashi.

The one who addresses the issue is the Kesef Mishna (mamrim 2:1). After the Rambam writes that when a Beis Din HaGadol interprets a din, a later beis din has the authority to disagree and darshen the way they see it (which is not the case by a gezeira of an earlies beis din). Based on this the kesef mishna asks, why is it that amora'im don't argue on tana'im, and why is it that the generation after the amora'im don't argue on them? The kesef mishna answers:

ואפשר לומר שביום חתימת המשנה קיימו וקבלו שדורות האחרונים לא יחלוקו על הראשונים, וכן עשו גם בחתימת התלמוד שמיום שנחתם לא ניתן להם רשות לשום אדם לחלוק עליהם

He explains that the generation following the close of the Talmud had accepted upon themselves not to argue. The kesef mishna doesn't mention our gemara רב אשי ורבינא סוף הוראה, because he considers it irrllevant to the issue - it doesn't explain why the later generation can't argue. Therefore, the kesef mishna makes an assumption that it was just accepted that no one would argue on the gemara after it was sealed.

The question still remains, what makes this binding? What if someone would argue on the gemara - we would surely call him a heretic, but why?

R' Elchonon Wasserman (kuntros divrei sofrim 2:6) explains that the closing of the mishna was done with a gathering of all chachmei yisroel who have the power of a beis din hagadol to prevent anyone from arguing. He argues that the same was done by the closing of the Talmud. Therefore, an individual must be submissive to a beis din hagadol and cannot argue, so that every individual is bound to the mishna and talmud. It is true that the beis din hagadol who closed the talmud could have argued on the mishna, but they didn't.

The Rambam (end of hakdama to mishneh torah) seems to say it a little differently:

נמצא רבינא ורב אשי וחביריהם סוף גדולי חכמי ישראל המעתיקים תורה שבע"פ וכו' ואחר ב"ד של רב אשי שחיבר התלמוד בימי בנו וגמרו, נתפזרו ישראל בכל הארצות פיזור יתר וכו' אבל כל הדברים שבתלמוד הבבלי חייבן כל בית ישראל ללכת בהם וכופין כל עיר ועיר וכל מדינה ומדינה לנהוג בכל המנהגות שנהגו חכמים שבתלמוד ולגזור גזירותם וללכת בתקנותם, הואיל וכל אותן הדברים שבתלמוד הסכימו עליהם כל ישראל, ואותן החכמים שהתקינו או שגזרו וכו' הם כל חכמי ישראל או רובן והם ששמעו הקבלה בעיקרי התורה כולה איש מפי איש עד משה

The Rambam doesn't say that the closing of a talmud was a formal beis din hagadol decision that no later person can argue on. The rambam implies that since the chachmei hatalmud had a clear tradition, and after the sealing of the talmud the jews were dispersed in the galus so that the tradition was lost, one who would argue on the talmud would inevitably be wrong. It is assur to argue on the talmud because no one after the talmud had a tradition strong enough to measure up to the tradition of the chachmei hatalmud.

Baba Metzia 84a - Sitting at the gates of the mikva

The gemara says that R' Yochanan would sit at the gates of the mikva so that the women would see him prior to being with their husbands, which would somehow cause them to have beautiful children who are talmidei chachamim. The Maharsha explains that we see from the story with yakov and the spotted sheep that what one sees prior to engaging in relations has an impact on the offspring. The Rabbonon asked him why he is not concerned about ayin ha'ra. He answered that he comes from the family of yosef so ayin hora won't effect him.

Tosafos asks from a gemara in pesachim that says one who meets a woman on the way up from tevila, if he has relations first "ruach zenunim" will take over him, and if she has relations first it will take over her. Why was R' Yochanan not concerned about this? Tosafos answers either that it only applies to suddenly meeting someone bur R' Yochanan sat their permanently, or it only applies if she has not yet gotten dressed. The Ritva answers that it doesn't apply because R' Yochanan had complete control of his yetzer hora so the woman to him were like "white ducks".

The ritva didn't make this term up. The gemara in Brachos 20a tells of both R' Gidal and R' Yochanan who would sit at the gates of the mikva as women came up. The talmidim asked R' Gidal why he isn't afraid of the yetzer ho'rah, to which he responded that the women in his eyes are like "white ducks". The talmidim asked R' Yochanan why he isn't afraid of ayin hora and he responded as in our gemara that he descends from yosef.

It seems that Tosafos didn't want to answer the "white duck" answer to push off the gemara in pesachim, because the gemara never said that about R' Yochanan. But this really begs the question why did the talmidim not ask R' Yochanan whether he is concerned about yetzer ho'ra and not ask R' Gidal about ayin hora? The answer is pashut. The gemara says that R' Gidal's purpose was to instruct them how to be tovel which implies that he was present at the time of tevila when they are not clothed so their is a concern of yetzer ho'rah, but R' Yochanan's purpose was to expose them to his beauty so he sat further up and only had to be concerned for ayin ho'ra (since the primary purpose was for them to focus on his beauty).

The Rama at the end of y.d. 198 writes that a woman should hide her tevila night and also should not be "pogei'ah" a non-kosher animal or a goy, as the first thing she comes across on the way up from her tevila. The sidrei tahara quotes the sha'arei dura that because of this the minhag is that she is "po'geiah" the mikva lady first. But he has a discussion (based on ma'adanei melech) whether the girsa is "pogei'ah" or "no'geiah" - Pogei'ah would imply that the mikva lady must take a step to greet her, but No'geiah implies that she should touch her. So the ma'danei melech says that she should do both. But, the sha'arei dura writes that R' yochanan's purpose of sitting by the mikva was to make sure that the women were "po'geiah" him first, rather than an non-kosher animal or a goy. From this the sidrei tahara deduces that neither translation is correct because R' Yochanan would not greet a woman, and certainly not touch a woman - therefore the requirement of "po'geiah" is only that the woman who was tovel should see a jew before a goy or non-kosher animal.

Baba Metzia 83a - 3 Types of Lifnim Mi'shuras HaDin

Tosafos 24b points out that the gemara uses 3 different approaches when dealing with the concept of lifnim mishuras hadin (lmh"d).

A. On 30b the gemara quotes the pasuk of

והודעת להם את הדרך אשר ילכו בה ואת המעשה אשר יעשון: אשר יעשון זו לפנים משורת הדין

B. On 24b the gemara doesn't quote any pasuk.

C. In our gemara the gemara quotes the pasuk of למען תלך בדרך טובים.

Why?

Tosafos explains that the pasuk in the torah of אשר יעשון which is the strongest requirement of lifnim mishuras hadin, applies to a situation where everyone else is obligated but this individual is patur such as a zaken v'eino l'fi k'vodo for hashavas aveida. He is required based on this pasuk to be machmir on himself and behave the way others are required to do. But, in a situation where everyone is patur, but it is not a real loss, the obligation is not as severe so the gemara doesn't quote that pasuk (but the rosh quotes the pasuk even in this context). Finally, there is our gemara where there is a significant loss to forgo on the damage and pay the wages, therefore the gemara has to find a source that for tzadikim of Raba bar bar Chana's stature he should be machmir even under those circumstances based on the pasuk in mishlei of למען תלך בדרך טובים.

Even in our gemara the GR"A in his commentary on Mishlei (2:20) points out that he had to return the shirt that he took as compensation for their damaging his barrel based on the pasuk of למען תלך בדרך טובים, but when Rav instructed him that in addition he should pay them their wages he quotes the end of the pasuk וארחות צדיקים תשמור. The Gr"a explains that "tovim" refer to one who does good for others who are undeserving but doesn't give of his own to them. "Tzadikim" refer to people who generously give of their own to undeserving others. Therefore, when Rav told Raba bar bar chana to be mochel on the damage and return the shirt he cited the pasuk of למען תלך בדרך טובי, but when Rav requested even more of him such as paying their wages he quotes the pasuk of וארחות צדיקים תשמור because that is beyond the requirement of tovim - it is something that is only expected of true tzadikim.

B'kitzur there are 4 levels of lifnim mi'shuras hadin.

1. אשר יעשון which applies when others in this situation are chayev.

2. lifnim mishuras hadin when everyone is patur but it is not a major loss to be machmir (which is also a ma'aleh for regular people but not demanded by the pasuk).

3. למען תלך בדרך טובים which applies only to "tovim" because there is a loss.

4. וארחות צדיקים תשמור which applies only to tzadikim who literally give generously of their own to others who are undeserving.

Baba Metzia 82b - Osek B'mitzvah for personal benefit

In my sefer, Nasiach B'chukecha (pg. 61) I quoted the Mishna Berura (38:24) who quotes the magen avraham that when one is doing a mitzvah and also profiting such as tefillin merchants, they are only considered osek b'mitzvah to be exempt from another mitzvah when their primary intent is the mitzvah. The Magen Avraham is medayek from rashi in succah 26a that if their primary intent is for profit, they don't have the status of osek b'mitzvah to exempt them from another mitzvah. The Biur Halacha asks on this from our sugya. The gemara concludes that although a lender who takes a mashkon is technically a shomer sachar on the mashkon based on the same din of shomer aveida - namely, he is involved in a mitzvah and therefore exempt from giving tzedaka. But, when he takes the mashkon for his personal use (and will deduct some amount from the loan to avoid the ribbis problem, as rashi writes), we have a machlokes r' eliezer and r' akiva. R' Eliezer holds that since his intent is really for personal benefit, he is not considered to be doing a mitzvah and therefore doesn't become a shomer sachar on the mashkon. We pasken like R' Akiva that he is considered to be doing a mitzvah and therefore does become a shomer sachar on the mashkon. The biur halacha points out that this seems to imply that even if one's primary intent is for profit, he is considered to be doing a mitzvah and therefore becomes a shomer sachar, which is against the magen avraham? The Biur Halacha pushes off the question by saying that the case must be where his primary intent is not for personal benefit, rather to do a mitzvah of lending and that is why r' akiva still considers him to be osek b'mitzvah.

The approach of the biur halacha doesn't fit well with rashi. Rashi explains that when the lender takes a mashkon to use for personal benefit, R' akiva holds that he is doing a mitzvah and therefore a shomer sachar - ור"ע סבר אפילו הכי איכא מצוה. Rashi doesn't say that his primary intent is to do a mitzvah, rather rashi says that even though להנאתו מתכוין as the gemara says, nonetheless it is an act of a mitzvah to consider him osek b'mitzvah. Rashi implies that R' akiva doesn't disagree with r' eliezer about the premise of his primary intent being for personal benefit, just that he holds that even so since he is doing a mitzvah he is considered osek b'mitzvah to be exempt from tzedaka and turn into a shomer sachar. This seems pretty clearly against the approach of the biur halacha.

In the hosafos to my sefer I attempted to answer this question.

Click here - page 5-6 and the end of #13.

Baba Metzia 82a - S'char mitzvah turns the lender into a shomer sachar on the mashkon

כתב הר"ן בסוכה כה ע"א ובאמת כ"כ כל הראשונים, שלא שייך לפטור שומר אבידה אלא בשעה שהוא טורח באבדה דאטו מי שיש לו ציצית בבגדו ותפילין בראשו מי מפטר משאר מצות. אמנם מדברי הנמוק"י בב"מ פב ע"א (נא ע"א בדפי הרי"ף) לא משמע כן. בגמ' שם קאמר שהמלוה על המשכון הוי שומר שכר מפני שהמלוה מצוה קעביד וממילא הוא כש"ש על משכונו של הלוה. והקשה הנמוק"י דנהי דעביד מצוה בשעת ההלואה מ"מ לא דמי לשומר אבדה שעושה המצוה כל זמן השמירה. וכתב הנמוק"י בשם הראב"ד וז"ל ופריק ז"ל דה"נ הוי ש"ש כל שעתא מפני שממתין לו ואינו מוכר המשכון ליפרע ממנו, וע"ז כתב הרשב"א ז"ל למדנו מדברי הרב דבר זה שהוא פטור מפרוטה לעני כל זמן המשך המשכון בידו, ומ"מ לעיקר הקושיא נ"ל דאינה, דכיון דבשעת נתינת ממון נשכר פרוטה דרב יוסף נמצא שהוא ש"ש עליו לעולם וזה נ"ל פשוט עכ"ל. הרי לדעת הרשב"א ניחא דבאמת אינו פטור מלתת ריפתא לעניא רק בשעת הלואה שהוא עוסק בנתינת המעות, וזה מועיל להחשיבו ש"ש לעולם. אבל לפמש"כ הראב"ד שהוא פטור מפרוטה לעני כל זמן משך המשכון בידו מפני שעוסק במצוה במה שאינו מוכרו, תמוה מאוד, שזה נגד כל הראשונים שכתבו בתמיה דאטו מי שיש לו ציצית בבגדו ותפילין בראשו וכו', דלא הוי כעוסק במצוה להיות פטור מן המצוה רק בשעה שהוא טורח ומתעסק במצוה ראשונה. ונראה דצ"ל בכוונת הראב"ד דודאי אינו פטור מלתת פרוטה לעני כל זמן שהמשכון נשאר ברשותו, אלא כוונתו הוא דכיון שהוא עושה מצוה במה שממתין לו ואינו מוכרו, נמצא דכל זמן שמטפל במשכונו של לוה וטורח במשכונו הוא עוסק במצוה במה שמטפל בו ואינו מוכרו, ומש"ה כל זמן שמטפל וטורח בה הוא פטור מלתת פרוטה לעני. אבל בזמן שאינו מטפל בה מודה הראב"ד דלא מקרי עוסק במצוה להיות פטור מלתת פרוטה לעני

Baba Metzia 81a - Watch for me and I will watch for you

The gemara says that if 2 people made a deal, reuven agrees to watch shimon's car and shimon agrees to watch reuven's coat, it is considered shemira b'balim. Therefore if either the car or the coat gets damaged, neither one is responsible. However, Rashi explains that this only applies to the case of שמור לי ואשמור לך, but in a case where they are borrowing from one another i.e. reuven borrows shimon's car and shimon borrows reuven's coat, it is not considered shemira b'balim and each one is chayev for any o'nes that would happen to the item. The definition of שאלה בבעלים is that at the time when the borrower borrows, the lender is doing work for him. When the lender is watching his item that is considered the lender doing work for the borrower, but if the lender is borrowing an item he is not considered to be working for the borrower.

The rationale for this distinction is that there is a fundamental difference between a borrower and other types of shomrim. A borrower is chayev on o'nes because כל הנאה שלו, all the benefit is his. Whereas all other shomrim are not receiving all the benefit. Therefore, a shomer chinam is certainly working for the ba'al habayis. Even a shomer sachar and perhaps a renter are considered to be working for the ba'al habayis, jus that they are being compensated for their work. However, a borrower is not working for the ba'al habayis. Actually the opposite is true, the object of the ba'al habayis is working for the borrower. That is why any other shomer is considered to be working for the ba'al habayis to create an exemption of בעליו עמו במלאכתו if the ba'al habayis would have borrowed something from the shomer, but a borrower is not considered working for the ba'al habayis so there isn't any exemption of בעליו עמו.

Baba Metzia 78b - Copyright Law: Stipulation in the sale

The gemara says that according to R' Meir, if one deviates from the intention of the ba'al habayis, he is considered to be a gazlan. The gemara ultimately proves this from the case where one gives a dinar to a poor person and tells him that he must use it to buy a particular item. If the "ani" would deviate from the intention of the ba'al habayis and use the money for a different item, it is considered stealing from the ba'al habayis. Clearly, R' Meir holds that one may make a stipulation in a sale or gift to limit the use of the item. The rabonon disagree with R' Meir (as is apparent from out mishna where the reisha is r' meir, but the seifa holds that you aren't chayev for merely deviating which is the opinion of the rabbonon). Since we pasken like the rabbonon, the halacha is that a seller cannot limit the use of the buyer in an item. Perhaps the Rabbonon would agree that if one stipulated with a proper t'nai (following the details of a proper t'nai such as kaful, hein kodem l'lav...), then the seller would be able to say that if the buyer uses it in such way that is against the will of the seller, the sale would retroactively be void. However, in the absence of a t'nai, a seller cannot in anyway limit the way that a buyer uses a particular item.

This concept sheds some light on copyright law. When dealing with the copyright law there are really 3 issues that have to be considered. This gemara sheds light on the first of those 3 issues. The 3 issues are: 1. Can the seller limit the buyers use of an item? 2. Even if the seller cannot limit the buyers use, if intellectual property can be "owned" by torah law, one can argue that the seller never sold the intellectual property rights to the buyer. Therefore, any abuse of the intellectual property rights would be an act of stealing by the buyer. But, it is hard to find a source in the gemara that the torah actually recognizes this type of ownership. 3. Even if the seller has no ability at all to limit the buyers use of an item, perhaps the dina d'malchusa has a right to limit the buyers use to allow the market to function normally. This would presumably only apply to copying with the intention of selling, but if one copies for personal use, it is hard to explain how the government has the power to forbid this.

Now, in regard to the first issue: Being that we pasken like the rabbonon, the seller doesn't have any ability to limit the buyers use of an item that he purchased. If a seller would sell a cup to a buyer and insist that the buyer use if for coffee not tea, the buyer isn't bound by this stipulation. Similarly, if the seller says that the buyer may listen to a CD but not copy it, the buyer should not be bound by this stipulation (unless it was done with a proper t'nai that would void the entire sale retroactively, which is surely not the common practice).

Baba Metzia 77b - Status of a Nizuk

The gemara says that if a buyer payes 200 toward a 1000 purchase, and then the seller backs out of the deal, the buyer has the upper hand. He has the right to choose whether he prefers his 200 back or whether he would like 200 worth of the sellers best property. The gemara explains that the buyer can demand 200 worth of the best property of the seller, even if that wasn't the property that he was trying to purchase. why? Because presumably the buyer didn't have the cash to purchase the large piece of property from the seller. Therefore, the buyer had to sell his smaller properties at discounted prices in order to get the money together to purchase the large piece of property from the seller. The selling at a loss is considered "damages" which labels the buyer as a nizuk and therefore entitles him to the "idiyus" of the mazik. Tosafos is bothered that if the buyer is really considered a nizuk because he had to sell his properties at a low price, he should be able to claim the amount of the difference (between the appraised price and actual sale price) from the mazik. Yet, we do not allow the buyer to collect any extra money from the mazik, he is only entitled to the amount that he paid to be returned, just that he can collect this amount from the seller's idiyus. Tosafos concludes that it is really a very loose connection to consider the seller a maik. Tosafos implies that m'doraysa he is really not entitled to idiyus, just that the rabbonon "compared him a little to a mazik" and entitled him to collect the amount he paid from the sellers idiyus.

Perhaps we can suggest another approach. Is the din that a nizuk collects idiyus part of his compensation for incurring damage, or is it a gezeiras hakasuv to penalize the mazik that whenever he pays for a damage he must do so from the best of his property? If we assume like the second approach that the mazik is penalized to pay from his idiyus, even when a mazik indirectly causes damage to a nizuk i.e. grama, he should be penalized to pay from his idiyus, just that there is a din that he is completely exempt from paying any damages for grama. Meaning, he is labeled as a mazik who should be paying idiyus, it just happens to be due to a technicality of grama he doesn't have anything to pay. However, in this scenario, although the seller is only a "goreim" of the actual damage incurred by the buyer, and on that amount he is exempt from paying at all, the seller still is labeled as a "mazik" therefore on the 200 that he is required to return he has to pay from his idiyus.

Baba Metzia 75b - Heterim for Ribbis

I apologize for slacking off in posting - I am in NY for my sisters chasuna so I have been distracted.

The Chochmas Adam writes that there was a custom in vilna to be meikel to lend with interest. Reuven wanted to borrow from shimon and pay interest. Even if Reuven had no assets he would approach shimon and be modeh that he has tangible movable assets that are worth 10k. Reuven agrees to sell these item to shimon for 8k that shimon will be paying for today. Shimon agrees to provide Reuven either with these items or with 8k plus 20% instead (which will still be less than the objects worht 10k that reuven would otherwise have to give to shimon). This type of set up is done so that reuven never becomes a borrower from shimon, rather he agrees to provide him with the merchandise that shimon purchased or with something to replace the merchandise, namely 8k + 20%. The main issue that the chochmas adam has with this heter is that the entire hoda'ah that reuven actually posseses these items is complete sheker and therefore cannot be used. However, in a case where reuven actually does have items that are worth 10k, he allows such a deal. The binas adam (5) tries to justify why the rabbonim are meikel to allow even the first type of deal through hoda'ah. He suggests that the ribbis in this case isn't d'oraysa, only d'rabonon and in a situation where people are pressed for parnassah there is room to be meikel with ribbis d'rabonon, but it is certainly not an ideal way to pay interest.

Baba Metzia 69b - Hiring someone to be an cosigner

Can you pay someone to be a cosigner on the loan?

There is a machlokes Taz (170:3) and nekudas hakesef whether one can hire someone to be an cosigner on a loan where the cosigner has full responsibility as much as the borrower himself (areiv shluf dotz). The Chochmas Adam in his sefer Binas Adam (sha'ar mishpat tzedek 2) points out that this discussion took place before the ritva on baba metzia was accessible. However, now that it is accessible the answer is resolved. Rava says that Reuven may pay Shimon to go convince Levi to lend money to Reuven because reuven is only paying shimon for s'char amira. The ritva asks why does the gemara need to be matir based on this rationale, it should be mutar anyway based on the other rationale that the gemara suggests that the torah only forbids ribbis that is paid directly from the borrower to the lender. The ritva answer that we are speaking about a case where Levi refuses to lend money to reuven, but is willing to lend it to shimon who then goes and lends it to reuven. Even though it turns out that technically shimon is the one who lends to reuven and therefore when reuven pays him it is ribbis that is paid from the borrower to the lender, it is nonetheless permitted since it is only s'char amira. The binas adam learns from the ritva that it is only is a situation where reuven doesn't request of shimon to be an areiv shluf dotz, rather shimon decides on his own to borrow from levi and lend it to reuven. But, if reuven would be paying shimon to be such a high level areiv, it is as if he were hiring shimon to borrow from levi and then lend to him which is an issur of paying ribbis since it is no longer just s'char amira.

Baba Metzia 69a - An extra third of payment

There is a machlokes Rav and Shmuel how the investing partner must compensate the managing partner for the labor that is invested in the iska deal. Rav says that they can set a bar, until 33% profit they will split evenly, but beyond the 33% the managing partner can keep it all. Shmuel says that this doesn't work because profits may never reach 33%, so the investor must ensure at least some money that the managing partner will definitely receive as compensation for his work.

Tosafos asks, how can rav allow this, since the profits may not exceed 33% and Rav doesn't hold like R' Yehuda who is matir tzad echad b'ribis? Tosafos answers that it is very common for the profits to exceed 33% and is therefore permitted. Tosafos seems to be matir based on the fact that the violation of ribbis is only d'rabonon, and since there is a strong chance that it won't be a problem of ribbis it is permitted. Tosafos made a similar point on 68b by the eggs.

Why does Tosafos need this. The fact that there is a chance of profits exceeding 33% places a cash value on that chance. Why isn't the chance also valued as a definite amount that he manager would be receiving since it is in his control to sell that chance to someone else for real money? It should be similar to the gemara in makos where we deal with the zechus s'feiko and zechus s'feika by evaluating what someone would pay for that chance. Here too, someone would pay a real cash value for the chance of winning all profits that exceed 33%?

Baba Metzia 68b - Is Avak Ribbis an Issur on the Borrower to Pay?

The Mishneh L'Melech (hilchos malveh 4:2) quotes a Rashba who is medayek from our gemara that the issur of avak ribbis is only an issur d'rabonon on the lender, not on the borrower. The gemara says that R' Ilish would never have signed a contract of Iska that would consider him a borrower on half, because the work that he would be doing for the lender would be considered ribbis and "rav ilish would not feed issur to the lender". The implication is that the only issur on the borrower of avak ribbis is an issur lifnei iver that you are causing the lender to violate an issur d'rabonon of taking ribbis, but there isn't any specific issur d'rabonon on the borrower of avak ribbis. This is also paskened in the Rama (y.d. 160) who quotes this from the Rosh, that the borrower of avak ribbis is only in violation of lifnei iver.

The Chavos Da'as points out that perhaps there is a specific issur d'rabonon on the borrower to pay avak ribbis, but in this case r' ilish died before he actually paid it. Had R' Ilish stayed alive, perhaps he wouldn't have paid the avak ribbis because it is an issur. The gemara therefore can only make its point by saying that R' ilish wouldn't have entered into an agreement by signing a contract that would state an obligation to "feed issur to the lender" because this is also lifnei iver.

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.