Baba Metzia 30b - Zaken V'eino l'fi k'vodo - Hitting with a stick

מלשון הגמ' דכל המתחיל במצוה אומרים לו גמור משמע שהוא רק חומרא בעלמא, אבל יש להביא ראיה מסוגיא דידן דהוא חיובא מעיקר הדין

בגמ' בב"מ ל ע"ב מבואר דזקן ואינו לפי כבודו פטור ממצות השבת אבדה דילפינן מקרא ד"והתעלמת מהם" דפעמים שאתה מתעלם. אכן, קאמר רבה הכישה חייב בה. ונחלקו הראשונים בפירוש דבר זה, רש"י מפרש וז"ל הכישה הכאה אחת להשיבה נתחייב בה לאהדורה הואיל והתחיל עכ"ל. אבל בתוס' כה ע"ב בד"ה ואם, מפרשים על פי הסוגיא דבב"ב פח ע"א דדוקא בבעלי חיים דאנקטינהו נגרי ברייתא, ולא בשאר דברים. הרי דעת התוס' דטעמא דהכישה לאו משום שהתחיל במצוה אלא משום שגרם גריעותא בשמירתה וממילא חייב לתקן מה שעוות ולאהדורה לבעלים, וזה שייך רק בבע"ח ולא בשאר דברים. אבל רש"י מפרש דקמיירי רק כשהכישה על דעת להשיבה, דנהי דפטרינן זקן ואינו לפי כבודו היינו רק כשלא הגביה החפץ ולא התחיל במצותה אבל כשהתחיל המצוה חייב לגמרה. וכעין סברא זו מצינו בגמ' כז ע"א בהא דרבנאי דיליף מקרא ד"ומצאת" דפטור מלהשיב אבידת נכרי אע"ג דאתא לידיה, דאילולי קרא הוי פטרינן ליה רק מלטרוח אחריה אבל אי נקטה חייב לאהדורה כדפרש"י שם. אלמא שיש סברא לפטור רק קודם שנטלה אבל כשכבר נטלה והתחיל במצות השבה מחוייב לטרוח ולהתעסק בה עד שמגיע ליד הבעלים. נמצינו למדים מפרש"י שיש חיוב גדול לגמור המצוה שהתחיל בה, וק"ו הוא, מה זקן ואינו לפי כבודו שפטור ממצות השבה כיון שהתחיל בה חייב להשיבה כ"ש אחרים שהתחילו במצוה שהם מחוייבים בה שחובה מוטלת עליהם לגמרה. 

אמנם לפי האמת נראה, שאין זה מקושר להא דמתחיל במצוה אומרים לו גמור. אלא רש"י לשיטתו אזיל בדף כו ע"ב דמצות השב תשיבם אינו מתחיל בשעת הראיה רק בשעה שנטל החפץ, לפיכך סובר רש"י דהא דפטרינן זקן ואינו לפי כבודו מ"והתעלמת מהם" היינו לפטרו מלעבור על לאו דלא תוכל להתעלם, ולא לפטרו ממצות עשה דהשב תשיבם. וכן נראה לפרש בכוונת רש"י כו ע"א בהא דרבנאי דבעי קרא יתירא ד"ומצאת" לפטור מלהשיב אבידת נכרי אף אחר שבאה לידו, דלולי קרא הוי פטרינן ליה רק מלאו דלא תוכל להתעלם ולא מעשה דהשב תשיבם. היוצא מדברינו דהא דפרש"י שהכישה והתחיל במצוה שחייב לגמרה, אין הטעם משום שהמתחיל אומרים לו גמור, אלא שלא פטרינן ליה רק מהלאו ולא מהעשה, וכיון שהעשה מתחיל בשעה שנטלה כשנטלה מחוייב להשיבה

Baba Metzia 30a - Your Need vs. Aveida Need

The gemara seems to understand that one can spread out an aveida for it's need but not for personal needs. But, the gemara questions whether one can spread out an aveida when it is לצרכו ולצורכה, both for the aveida need and for his personal need. The gemara tries to prove that it is permitted, but is unsuccessful in being able to prove it.

The Mishna seems to weigh in on this issue and clearly holds that לצורכו ולצורכה is permitted, because the mishna allows one not only to air out a sefer but even to read from it. Clearly, the mishna is permitting even personal use, so long as it has to be done for the purpose of the lost object. Tosafos explains that the gemara is reluctant to permit לצורכו ולצורכה because one is likely to do it for ONLY personal needs which would surely be assur. The prohibition of לצורכו ולצורכה is not me'ikar hadin, rather it is a d'rabonon gezeira that one shouldn't use it לצורכו ולצורכה because it may lead to using it for personal use. Therefore, by a sefer where the mishna gives specific instructions how and when to use it, there is no concern that he will take advantage so the rabbonon never imposed an issur. Based on this approach, the gemara that tries to prove that it is assur from the case of Eglah Arufa is difficult to understand. How does the fact that egla arufa becomes passul m'doraysa לצורכו ולצורכה, prove that the rabbonon are concerned that if one uses an aveida לצורכו ולצורכה it will lead to using it for only personal use? Tosafos will be forced to learn the question that the prohibition of לצורכו ולצורכה is that the rabbonon were afraid that you may come to use it only for personal use and therefore imposed a p'sul even when it is done לצורכו ולצורכה as if it is entirely being used for personal use. Here too, we should make a gezeria that even לצורכו ולצורכה is considered as if it were only used for personal use and pasul. The gemara answers that the p'sul is d'oraysa and therefore has no connection to our question.

The chofetz chaim (ahavas chessed 7 - footnote 2) understands that the Mordechai and rashi in pesachim disagree with Tosafos and hold that לצורכו ולצורכה is assur m'ikar ha'din, not just a gezeira that it will lead to personal use. Meaning, we view לצורכו ולצורכה on a d'oraysa level as if it were being used only for personal use and therefore assur. This is a tremendous chiddush because the action that is being done is entirely permitted, just that the intention is assur and would render the entire action an issur. But, based on this approach the proof from egla arufa works out better.

Baba Metzia 28a - Is a Siman Muvhak better than a Siman?

Rava says that even if siman is d'oraysa, it would still not measure up to eidim, therefore we would return the object to the one who provides the eidim (rashi). The Maharshal points out that the gemara is only able to tell us that eidim trump siman after it established that siman is d'oraysa, which implies that this would not have been the halacha in a case of siman muvhak against eidim. Rather, we would leave it until Eliyahu comes, because siman muvhak is just as good as eidim. The Shach (267:7) disagrees and holds that eidim is better than a siman muvhak. The shach understands that there is no more of a chiddush in saying that eidim is better than siman muvhak than saying that eidim is better that a standard siman which is d'oraysa. This would imply that if siman is d'oraysa and we have siman against siman muvhak, we would not return it to the siman muvhak, rather we would leave it. Pischei Teshuva quotes R' akiva eiger who is not sure about what to do when siman is up against siman muvhak. The question is that the gemara makes it clear that we always follow the better siman. If one gives the dimensions of length and width and the other only knows the total, we return it to the first. Based on this it should seem obvious that we return it to the one with the siman muvhak, because even if both are d'oraysa that is certainly the better of the two simanim?

To answer for the Shach and r' akiva eiger (who at least considers this an uncertainty), it seems that really we don't follow the better siman. Meaning, if siman is d'oraysa and both provide a siman it doesn't matter that one is slightly more specific than the other, and therefore we are required to hold the object until Eliyahu comes. Therefore in the case of siman muvhak against a standard siman which is d'oraysa we also don't return it to either one. However, the case where one gives the specific dimensions of length and width and the other gives the total, since the siman of the first completely includes the second and adds to it something more specific, it is as if the second has no siman at all and we return it to the first. But if both simanim are completely different even if the second is better we don't return it.

Baba Metzia 26b - Hashavas Aveida

Rava says that if one takes an aveida prior to yi'ush with the intent of returning it, and then decides after yi'ush to keep if for himself, he is in violation of "השב תשיבם". Rashi understands that he is only in violation of השב תשיבם, because the issur of gezeila only applies at the time that one grabs it (as rashi writes in many places), and the issur of לא תוכל להתעלם applies only at the time that one ignores the object by not picking it up. Rashi understands that the issur of לא תוכל להתעלם only applies until the object is picked up, but once the object is picked up for the purpose of returning it, the only prohibition left to be in violation of is hasheiv tishiveim. The Ba'al Hameor disagrees and holds that just as Hasheiv Tishiveim applies until the object is returned to the owner, so too לא תוכל להתעלם applies until the object is returned. Tosafos cites a braisa in kiddushin 34a that supports Rashi, which compels Tosafos to be go'reis in the gemara clearly like rashi - אינו עובר אלא משום השב תשיבם. The braisa in kiddushin lists the aseh of "השב תשיבם" as a mitzvah that is not time bound, thereby obligating women. The question is that would would anyway be obligated due to the negative prohibition of לא תוכל להתעלם? Tosafos therefore holds that there must be a case where the mitzvah of "hasheiv tishiveim" applies and the issur of לא תוכל להתעלם  doesn't apply, such as our case where the object is taken for the purpose of returning and then the finder fails to return it.

Baba Metzia 26a - Kinyan Chatzer

The gemara says that if one finds an old rusty object in a wall, he can assume it was there prior to the jews conquering eretz yisroel and therefore the finder can keep it. Tosafos asks, why doesn't the wall work as a chatzer for the owner to acquire the object that was in it, since a kinyan chatzeir doesn't need awareness of the owner to be ko'neh (it works as a shli'ach to acquire a zechus even without the owner knowing)? Tosafos answers that a chatzer can only acquire something that would definitely have been found by the owner, but doesn't have the ability to acquire something which may have never been found.

The Shita mikubetzes answers Tosafos question that a chatzer can only acquire without the owners knowledge when the owner owned it prior to the object coming into it, but in this case where the object was already in the chatzer at the time it was acquired, there isn't any kinyan chatzer. The Ketzos HaChoshen (198:2) uses this to explain the Shach who says that chatzer can only work when it is owned or rented prior to the object entering, but if the object was already in the chatzer, one cannot acquire the object simultaneously with acquiring the chatzer. However, it seems that the Shach goes beyond the chiddush of the Shita mikubetzes. The shach is speaking in a case where the owner of the chatzer is well aware of the object and interested in acquiring it through his chatzer, yet he insists that the chatzer cannot function to acquire an object that was already there when he acquired it. But in our case the owner is not aware of the object. Had the owner been aware of the object it is very possible that the shita mikubetzes would agree that he can acquire the object that was already in the chatzer when he purchases it. The reason that the shita would make a distinction whether or not the owner is aware of the object is that his sevara for not allowing kinyan chatzer to work on an object already in the chatzer is an issue with da'as. Meaning, whatever a person does not have da'as on at the time he acquires it, he isn't ko'neh - just that normally a person who owns a chatzer has stam da'as to acquire an object that would come into the chatzer afterward, but his da'as is not on objects that are already in the chatzer that he is unaware of. Therefore, if he is aware of the object, the kinyan chatzer has the ability to enable him to acquire even objects that were there prior to acquiring the chatzer.

Baba Metzia 25b - When to leave an aveida where it is

Tosafos explains that there are 3 types of places. 1. If an object is found in a place where it isn't at all protected it has regular rules of an aveida - with a siman it must be returned, without a siman we assume the owner was miya'esh so the finder can keep it. 2. If an object was found in a place where it is well protected then it should not be touched, and even if the finder accidentally takes it he can return it to the place that he found it (unless there is a chance that the owner came back and didn't find it there, in which case he must track down the owner and return it). Regardless of whether it has a siman or not, it shouldn't be touched. 3. If an object was found in a place where it is partially protected, but there is a possibility that it will be damaged - with a siman it should be returned, but without a siman he should leave it there.

In the third category where the place is semi-protected and the object doesn't have a siman, so that it should have been left there and not touched, if the finder accidentally picked it up he must hold on to it and not return it to it's original location. This is the concept of ספק הניח לא יחזיר, meaning that if you aren't sure if it was intentionally placed there or lost, you shouldn't touch it, but if you took it you can't "return it to it's original place". Why? Because you become a watchman over it, which makes you responsible to return it to the rightful owner.

Why in the case where the area was only semi-protected does the finder who picked it up assume status of a shomer that prevents him from placing it back down, but when the area is fully protected he doesn't become a shomer and can put it back down? Tosafos holds that the finder becomes a shomer who is responsible to do whatever would be in the best interest of the owner in both situations. If the area is well protected it is in the best interest of the owner to have it placed back down, but if the area is not well protected then it is in the best interest of the owner that he hold on to it.

Rashi here and later on daf 37b understands the words ספק הינוח לא יחזיר to mean that the finder cannot return it to the person who claims to be an owner and fails to provide a proper siman. The reason is the same - since he is a shomer on the item he has a responsibility to hold on to it until he finds the person who can prove himself to be the owner, and not return it to the wrong person. Tosafos asks on rashi that it is pashut that it shouldn't be returned to the person who claims to own it without a siman, just as with any aveida - why does it have to say it? Perhaps rashi holds that since it is an object that doesn't have a siman, there is almost no way for the owner to get it back (unless he brings witnesses that it is his). Therefore it is in the best interest of the owner that the finder would return it to whoever claims to be the owner even though he doesn't provide a siman, because that would be the only way that the rightful owner could possibly get it back. The statement of ספק הינוח לא יחזיר teaches that since the finder becomes a shomer, he is not allowed to return it unless he is sure to have found the rightful owner.

Baba Metzia 24b - Yiush after 12 months

The gemara says that when one finds something in a public area where there are rov goyim, even if a yisroel would give a siman he doesn't have to return it. But, he should return it lifnim m'shuras hadin. Just as the case where the father of Shmuel found donkeys in the midbar and returned it after 12 months do fulfill the lifnim m'shuras hadin. The gemara implies that after 12 months there is no mitzvah to return a lost object. After 12 months of what? Tosafos explains that after 12 months the finder shouldn't continue to feed the animals because the animals will eat more than their value (which the owner will have to compensate for). Therefore, for 12 months the finder should continue to feed them (and eventually charge the owner for the expense), but after 12 months he should sell them and return their value to the owner. The father of Shmuel went lifnim mishuras hadin by returning the actual donkeys even after 12 months have passed. Tosafos seems to imply that the father of Shmuel accepted upon himself the loss of feeding the animals at his own expense after the 12 months, because if he continued to charge for the food, he would be causing the looser more harm than good by keeping the actual animals. The problem is that Tosafos writes in the very next Tosafos (d.h. lifnim) that lifnim mishuras hadin doesn't demand that one suffer a loss of money - so what did the father of Shmuel do!

Rashi learns this gemara completely differently. Any object that has been lost for more than 12 months has an automatic yiush. Once the object has been lost for 12 months, the finder would be entitled to keep it, yet the father of shmuel went lifnim mishuras hadin and returned it even after 12 months passed. Rashi goes lishitaso in Brachos 58b where the gemara says a dead person is forgotten after 12 months, quoting a pasuk comparing a dead person to a lost vessel. Rashi explains:

ככלי אובד - וסתם כלי לאחר שנים עשר חדש משתכח מן הלב דיאוש בעלים לאחר שנים עשר חדש בפרק אלו מציאות דף כח ע"א מי שמצא כלי או שום מציאה חייב להכריז שלש רגלים, ואם נמצא אחר הסוכות צריך להמתין ולהכריז בפסח ובעצרת ובחג, דהיינו שנים עשר חדש ושוב א"צ להכריז

Rashi assumes that the gemara which exempts one from calling out after 3 regalim pass really means 12 months and is based on the assumption of yiush (rather than just an exemption from going through the trouble of calling it out forever). Therefore, Rashi in our sugya holds that after 12 months of it being lost one would be allowed to keep it (unless he picked it up within the 12 months and becomes a shomer on it - באיסורא אתא לידיה). The comparison of Rashi between "forgetting" someone who died, and yiush sheds some light in the understanding of what yiush is. Rashi seems to hold that yiush doesn't require a formal statement of ווי לה לחסרון כיס, rather it is just a passive position where one "forgets" the lost object no longer considering himself an owner over it. This approach is very meduyak in rashi 21b (d.h. mei'hashta) where rashi explains that according to rava we view it as if yiush is taking place now, prior to him realizing that it is lost - שהרי נפל, וכשיודע שוב אין דעתו עליו. What does Rashi mean by "וכשיודע שוב אין דעתו עליו"? He means to say that had yiush required one making an active declaration then rava would admit that it couldn't go into effect prior to him even knowing that it is lost. But yiush doesn't require an active declaration, rather it is defined as "not having da'as on it", which is a very passive stance of no longer considering oneself an owner over the object. That is why rava would allow the yiush to take effect even before the person knows that it is lost - because had he been privy to that information he wouldn't consider himself an owner over the object, which is really the definition of yi'ush (see dibros moshe he'ara #7).

Baba Metzia 22a - כלך אצל יפות

The gemara draws a distinction between the case of teruma where כלך אצל יפות implies that the owner consents to what the messenger did, and the story of mari bar isak where כלך אצל יפות was not an acceptable method of determining consent for mar zutra. The distinction is that by teruma which is a mitzvah we assume he meant what he said, but when it comes to serving the rabbonim who came to visit, we are concerned that the owner only pretended to consent out of embarrassment, but in truth did not consent. The question is that serving the rabbonim should also be considered a mitzvah of hachnosas orchim and honoring talmidei chachamim. Why isn't it considered a mitzvah like teruma where we assume the owner truly consents?

It seems that the distinction is not whether it is or isn't a mitzvah, rather the distinction is whether we have reason to believe that the owner is interested in the mitzvah and therefore consents. By teruma we are speaking in a case where he appointed the messenger to separate teruma for him. Clearly the owner is interested in performing the mitzvah of separating teruma, therefore when he gives some indication to consenting to the higher quality, we assume that he truly means it. However, in the situation where the rabbonim visited, although there is a mitvah to serve them, we have no reason to believe that mari bar isak was at all interested in doing this particular mitzvah, therefore we assume that his statement of כלך אצל יפות was said out of embarrassment and does not indicate true consent.

Baba Metzia 20b - Learning issur issues from monetary issues

The gemara makes a statement that we are not able to learn out issues that effect issur and heter, from monetary issues. This implies that the burden of proof necessary for issur must be stronger and more convincing than the burden of proof necessary for monetary issues. Tosafos asks that the exact opposite seems to be true, because we follow the majority for issur issues (even against a chazaka), yet for monetary issues we say that we don't follow rov. Do we require the proof to be stronger for monetary issues or for issur issues?

Tosafos answers that generally we assume that the proof necessary for monetary issues is greater than for issur. It is only in this specific type of issur such as marriage/divorce do we make an argument that the proof must be more substantial than by monetary issues. The precedent for this is from "mayim sh'ein la'hem sof" where we don't follow rov, rather insist on absolute evidence. Now, the concept of "mayim sh'ein la'hem sof" is only a rabbinic chumra. Therefore, on a d'oraysa level we would be able to learn all issur (including marriage issues) from monetary issues, but m'drabonon we are extra strict when it comes to marriage and divorce.

The maharatz chiyus has an exact opposite approach from Tosafos. He asks from the gemara later 27b that assumes that if the concept of returning a lost object to the owner through simanim is d'oraysa, we can also return a gett with simanim. Why don't we say that we can't learn out issur issues from monetary issues? The maharatz chiyus explains that specifically for marriage and divorce type issues which are totally under rabbinic control, do we learn issur from money because monetary issues are also entirely in the hand of beis din.

Baba Metziah 20a - Eidav b'chosamav zachin

The gemara says that when a woman says that she wrote a receipt to her husband that she received the kesuba, you can return it to him. The reason is that even if she didn't give the receipt to her husband on the date written in it, which can lead to harming someone who may have purchased her kesubah, the husband is automatically zocheh in the receipt when he receives it retroactively from the date written in it. This is based on Abaye's approach of עדיו בחותמיו זכין לו. Where does this idea of עדיו בחותמיו זכין לו come from?

Tosafos explains that the there was a takanas chachamim that the beneficiary of a contract should be zocheh in the document from the day on which it is dated, regardless of when it is delivered, so that the witnesses won't have to ensure that it is delivered on the day that it was written. The maharsha suggests that this is only necessary according to r' elazar who normally says that the eidei mesirah make the contract effective, so we need a special takanas chachamim. But, according to R' Meir who holds that the eidei chasima make the contract effective m'doraysa, of course it will be binding from the day on which it is dated (maharam shif challenges this).

Tosafos continues to question what would be with a contract that effects issur, such as a shtar to free a slave that would permit him to a bas yisroel. In a situation where the shtar was dated in nissan but only delivered in Tishrei, would we consider a bas yisroel who had relations with the "eved" between nissan and Tishrei to be passul l'kehuna since he was still an eved at the time, or can we use the eidim to make the shtar effective retroactively from nissan. Tosafos says "maybe even by a shtar that impacts issur can be effective from the time it was signed, even though the rationale for the takana isn't applicable - לא פלוג רבנן ויש כח ביד חכמים לעקור דבר מן התורה. The mishneh l'melech (zechiya u'matana 9:10) points out that Tosafos holds that even when a takanas chachamim is going to have an impact on issur, chazal would still maintain their takana.

Baba Metzia 18b - Siman muvhak

The gemara is trying to find the case where a lost gett is returned to the woman without being concerned that it is not her gett being given to her. R' Ashi makes the case to be where it is returned to her by her giving a "siman muvhak" such as identifying a hole next to a particular letter in the gett. The siman must be an excellent siman to work on something d'oraysa such as gett, because standard simanim are questionable whether they are effective d'oraysa or only d'rabonon.

The Pri Megadim in his rules of simanim and tevi'as ayin (printed at the end of his commentary on the first chelek of y.d.) says that their are 3 types of simanim:

1. Siman Muhak - There are very specific type of simanim such as a hole next to a particular letter. All agree that simanim of this type are d'oraysa and therefore work even by a gett. Furthermore, this type of siman works even to take away from a chazaka, just as it removes a woman from a status of eishes ish. Although this would seem obvious from our gemara, it isn't. The pri megadim raises the possibility that on a d'oraysa level we aren't concerned that this gett belongs to someone else (even if there are husbands with the same names and the caravans are common), the entire concern of it belonging to someone else is only d'rabonon. Therefore, it could be that although siman muvhak does not have the power to remove from a chazaka, it works since the entire concern of the gett belonging to someone else is only d'rabonon.

2. Standard siman - This is a machlokes whether it is d'oraysa or d'rabonon. Rambam paskens that it is d'oraysa based on the gemara later 28a. If we assume a standard siman is d'oraysa, why can't we rely on it to testify for a woman that her husband died? Pri Megadim explains that even if it is d'oraysa it isn't strong enough to take out of a chazaka, therefore it only works d'oraysa by a lost object, but not to allow a woman to remarry.

3. Poor simanim - This group is a type of siman that is barely recognized as a siman even on a d'rabonon level. It is only in the context of a low level issur d'rabonon such as meat that has been left unattended, do we rely on this type of siman to confirm that it is the same meat that was left originally.

Baba Metzia 16a - Purchasing with a loan

The gemara says that if shimon stole a field from reuven and sold it to levi, if afterward shimon would purchase the field from reuven to maintain his sale to levi, levi would automatically own it without any kinyan. The gemara tries to understand what exactly would create the kinyan since the original contract is completely worthless. It is clear from the gemara that a kinyan made with a contract is effective by the seller handing it to the buyer. If at the time it was handed to the buyer it was a worthless document because the seller didn't own it at the time, it cannot go into effect afterwards just by being in the hand of the buyer.

Tosafos raises a question, why can't the money that was given by levi to shimon originally to acquire the field make the kinyan now that shimon purchased the field and now has rights to sell it. Tosafos says that this would be a problem of "mekadesh b'milveh". Just as one cannot marry a woman with a loan, one cannot purchase a piece of property using a loan. It seems to me that this answer only works according to Shmuel who holds that we view the money that levi paid to shimon as a loan, but according to Rav who views it as a pikadon, levi should be able to use it as a kinyan on the property. Does Tosafos answer only work in Shmuel?

Another point is that Tosafos explains that if a loan can create a kinyan, the money that levi paid shimon originally for the field would immediately be effective as money to acquire the field without having to speak anything out. Whereas, using the "hana'ah" of being mochel on a loan to create a kinyan, levi would have to speak out that he is being mochel the money to shimon and making a kinyan on the field with the hana'ah that shimon would receive. Therefore, a difference between acquiring with "a loan" and acquiring with "hana'ah of mechila on a loan" is that the latter must be spoken out explicitly.

Baba Metziah 13 - Rei'usa in a lost shtar

It is hard to find time for extra he'aros on today's daf since the pashut p'shat is so difficult, but here is something:

The Ketzos HaChoshen (65:9) points to an interesting contradiction in Rashi regarding the problem with a shtar that has been lost being suspect to being forged or paid. Rashi on 7b in the case of a shtar that ends up in the hands of a third party, writes that it shouldn't be returned to the borrower or lender unless there are witnesses to verify that it fell from the lender. Rashi holds that the reason for not returning the contract is that we have no idea if it is a valid contract and/or if it has already been collected. But, if we see the contract fall from the lender we would return it to him which would give him the ability to collect with it. But in our gemara we say that when the shtar is lost there is an automatic "rei'usa" in the shtar, so how can we return it to the lender to collect with? Rashi must be holding that we would normally be able to assume that the fact that the contract wasn't destroyed, it must have fallen from the lender. However, since it was lost it creates a rei'usa that forces us to be concerned that it fell from the borrower - therefore, if we have witnesses that it fell from the lender we can return it him.

However, Rashi 12b seems to say that when a shtar is lost it is a rei'usa in the entire validity of the contract based on the logic that if it would be valid he wouldn't have lost it. This would force us to suspect that even if we knew it fell from the lender we shouldn't return it to him. Based on this approach, if the lender would find it himself he can collect with it, but once it fell from him we would never return it to him even if we know through witnesses that it fell from him.

Tosafos 13b asks, why can't we return a contract that falls to the lender even if the borrower claims that it is forged - since the lender can't collect without being mekayem the signatures, if he manages to do so that will prove the validity of the contract? Tosafos answers that since the borrower is claiming that it was forged and their is a rei'usa that it fell, we don't trust the kiyum of the signatures because he may have done such a good forgery job that he fools the witnesses into thinking that it is actually their signatures. However, Tosafos is not sure about using the contract to collect from the borrower himself - maybe the kiyum would allow the lender to collect from the borrower himself because he has the ability to bring witnesses to contradict the witnesses of the lender. In the process of the discussion, Tosafos writes: 

אפילו יקיימנו יש לחוש שמא מזוייף הוא ולכך קאמר לא יחזיר פן יטרוף כשתשתכח הנפילה

This would imply that so long as we know that it fell, even if it somehow ends up in the hand of the lender, he would not be allowed to collect using this contract. If it is assur for the lender to collect using this contract, we would certainly not return it to him even if there are witnesses that it dropped from him (which is against rashi on 7b).

Baba Metzia 12a - Who gets to keep the babysitting money?

The mishna says that a lost object that is found by a child goes to his father. The gemara says that Shmuel and R' Yochanan disagree about who is a "katan". Shmuel holds that we are speaking of a child below bar mitzvah (Tosafos 12b), therefore the rationale for his lost object going to his father is that when he originally picks it up, he does so for his father [It is not so clear how a child is able to be zocheh in the object by picking it up, for his father. Hagahos Mordechai seems to say that only after the father actually receives it do we say that it belongs to the father. However, the Ritva explicitly writes (as implied by rashi) that the father is zocheh in it even prior to it coming into his hands. R' Yochanan disagrees about the definition of a "katan". He holds that age is not the issue. Anyone who is self sufficient is considered an adult, but the object found by any child who relies on his parent for support belongs to the father. The SM"A (270:2) quotes himself in the drisha where he explains that the rabbonon instituted this as a means of compensation and hakaras hatov for the support that they are providing without being obligated - ונראה ישר לחכמים לשלם הטוב לעושה עמו טוב, שמזין אותו אע"פ שאינו חייב לפרנסו כי אם עד ו' שנים

However, Tosafos points out that chazal only instituted this by a parent who supports a child to avoid an concern of animosity building up, but one who supports an orphan is not entitled to the objects that he finds (as paskened in the Rama 270:2). The rationale is that even if one gets annoyed and stops supporting the orphan when he realizes that he isn't entitled to his findings, we aren't so concerned because someone else is likely to feel bad for him and pick it up, which is no the case when his parents are alive.

Regarding a child who works and earns money, the Rama rules that the father is also entitled to that money due to the same takana. However, R' Akiva Eiger quotes those who disagree. The Machaneh Ephraim (zechiya 3) quotes a machlokes rashi and Ritva in Baba Metziah 92b. Rashi holds that it has the same din as the metziah which goes to the father, but the Ritvah says that chazal didn't give the father ma'aseh yadayim of his son. In regard to a daughter, the father has rights to her metziah even if she is not being supported by him (until she is a bogeres - 12 1/2). Rashi holds this is a d'oraysa, but Tosafos holds that it is a d'rabonon to avoid animosity so that he doesn't marry her off to a degenerate. Presumabely, her earnings would also be pending on the same machlokes.

Being that it is a major machlokes who is entitled to the earnings of a child, it would seem that if the child is paid directly by the employer he or she can say that they hold like the opinion who says that they can keep it. But if the employer pays the father then he can also say he holds like the opinions who say that he is entitled to her earning.

Baba Metzia 12a - Kinyan Chatzer

The gemara concludes that a chatzer can either work as a "yad" or as a "shliach". There are many variables as to what may be needed for the chatzer to work: 1. zechus, not a chov. 2. a protected chatzer. 3. standing next to it. 4. da'as acheres being makneh the object.

These are the rules (as recorded in the Rosh):

To acquire a gett which can be given against her will, the chatzer cannot serve as a shli'ach only as a yad, therefore we require her to be standing next to the chatzer AND for it to be a protected area (chatzer mishtameres) which are both characteristics of a yad. Why is this true? Why can't a woman "appoint" the chatzer to serve as her shliach just as she can appoint a shliach to receive her gett? It seems that the chatzer which is inanimate object cannot be "appointed" as a shliach. In a case where it is clear to all that the receiver would want the chatzer to serve as a shliach (such as a matana or metziah where it is a zechus and therefore there is an "anan sahadi" that he wants it), it can be considered a shliach. But in a case where the receiver wouldn't always want it to serve as a shliach such as by a gett which is a chov, it can never be a shliach. 

But to acquire a gift or lost object, the chatzer can either be functioning as a yad or a shliach, depending on the circumstances. When it is functioning as a shliach, the receiver doesn't have to be standing next to it, just as a live shliach can function as an  agent in the absence of the owner. This is true so long as the chatzer is protected, but if the chatzer isn't protected, then he must either be standing there (to create a protected chatzer or work as a yad) or have a da'as acheres being makneh the object. Therefore, to acquire a lost object that does not have anyone being makneh it to him, it must be in a protected field, or he must be standing there (so it is considered protected or serves as a yad). Why does the chatzer have to be protected to serve as a shliach? The Rosh explains that one will generally only choose a shliach who is "protected" so that the object will be safe in his hand, therefore a chatzeir that is unprotected cannot serve as a shliach since we no longer have the "anan sahadi" that one will ALWAYS want it to be his shliach. [When the field isn't protected but he is standing there, the reason that it works is different for a man and woman - for a woman it works as a yad, but for a man chatzer cannot be a yad therefore it works as a shliach (since he can easily reach the objects it is like they are in his hand)]. 

BUT for a matana that has an advantage of  da'as acheres being makneh it, the chatzer can serve as a shliach even if it is unprotected. Why does the da'as acheres compensate for the chatzer being protected? The Rosh explains:

אבל במתנה מסכמת דעת המקבל בכל מקום שיתנהו הנותן שיזכה לו המקום שיזכה לו המקום ושמירת הנותן חשובה לו כשמירתו The language of the Rosh is not so clear, but he seems to say that when there is a "giver", the receiver trusts the giver to protect the object and therefore the chatzer can serve as a shliach even though the field is not protected.

Baba Metzia 10b - Shliach L'dvar Aveira

The gemara explains that the parameters of when we say that one can be a shliach for an aveira to make the sender liable for the action, is either that the shliach is not a bar chiyuva in this prohibition, or that the shliach has no ability to choose not to do it. Both approaches rely on the fact that אין שליח לדבר עבירה is predicated in the premise that rashi points out - דאמרינן ליה דברי הרב ודברי התלמיד דברי מי שומעין ולא היה לו לעשות. Meaning, when the shliach is a bar chiyuva and has the choice to do it or not to do it, the argument can be made that he shouldn't have done it and therefore takes responsibility (the sm"a that i mentioned in the previous post seems to look at it from the perspective of the sender who has an excuse to say that he never expected the shliach to follow through with it). But in a case where the shliach is no a bar chiyuva, there is no reason for him to abstain from doing it, so the sender cannot make the argument that the shliach should not have done it. Certainly, if the shliach is forced to do it and does not make his own choice, he is merely an extension of the arm of the sender so that the sender will be chayev.

Tosafos is bothered by why we consider a yisroel who is acting as a shliach of a kohen to be mekadesh a divorcee, as one who is not a bar chiyuva. Although the yisroel is not included in the prohibition of being mekadesh a gerusha, he is certainly in violation of lifnei iver by assisting the kohen in performing the kiddushin and should be regarded as a bar chiyuva (which would result in  ein shliach l'dvar aveira making it that the yisroel is in violation rather than the kohen). Tosafos rejects this concern that we don't determine if the shliach is a bar chiyuva by whether he is doing an issur, rather we determine it by whether the issur that he is doing for the kohen is applicable to him (and there isn't any issur on him to marry a divorcee). The Nodeh B'yehuda (quoted by maharatz chiyus) points out that Tosafos could have simply rejected the issur of lifnei iver causing the shliach to be considered a bar chiyuva, because it is not "two sides of a river" (meaning that the kohen could have done the issur without the yisroel), so it is only an issur d'rabonon of assisting one in doing an aveira, and the mishneh l'melech (hilchos rotzeiach) holds that on an issur d'rabonon we hold יש שליח לדבר עבירה. From the fact that Tosafos doesn't say this implies that Tosafos holds that even on an issur d'rabonon we hold ein shliach l'dvar aveira.

I discussed this issue previously http://hearos.blogspot.com/2009/02/baba-kama-51a-ein-shliach-ldvar-aveira.html. The mishneh l'melech proves that we say ein shliach l'dvar aveira even on an issur d'rabonon from rashi in baba kama who says that we say ein shliach l'dvar aveira on the digging a pit in the public domain even though it is only a rabbinic prohibition of destroying public property. However, the meshech chochma (kedoshim) says that the issur of digging a bor in reshus harabim is the prohibition of lifnei iver, which is d'oraysa, thereby disproving the proof of the mishneh l'melech.

Baba Metzia 8a - Partners that steal

The gemara says that if partners steal they are both chayev, but if reuven asks shimon to steal for him, only shimon is chayev. Rashi explains that the case of partners stealisn is when one partner does the act of geneiva for both. Since he does it on behalf of both of them, they are both chayev. Tosafos disagrees because we would only says that one can be a shliach l'dvar aveira on the act of shechita to be chayev 4 or 5, but on the act of geneiva even if reuven and shimon are partners, we would not say that shimon can serve as reuven's shliach to make reuven chayev for geneiva. Therefore, the only case that reuven would be chayev is when he commits the act of geneiva together with Shimon.

The Maharatz Chiyus points out that this is difficult even according to Tosafos. Why would we say that when reuven and shimon pick it up together - מיגו דזכי לנפשיה זכי נמי לחבריה. Even when they steal it together, since we have a concept of אין שליח לדבר עבירה, reuven is not able to serve as shimon's agent to steal it, and shimon cannot serve as reuven's agent, so it should be considered from each one's perspective as if the other half of the talis is still lying on the ground and they were never koneh it? The mahartz chiyus explains based on the sm"a (c.m. 182) who says that אין שליח לדבר עבירה is based on the idea that the sender doesn't really expect the shliach to do the issur, because he knows that the shliach should listen to Hashem rather than him. This only makes sense in a case where the sender maintains his innocence, but in our case where both reuven and shimon are doing an act of stealing, they aren't innocent and cannot claim that they didn't expect the other person to follow through with the shlichus of an aveira. Therefore, in the case where reuven and shimon are doing the aveira together we say יש שליח לדבר עבירה and each one serves as the agent of the other to help him be koneh.

Baba Metzia 7a - Safeik D'oraysa l'chumra

The Shev Shmaitza (1:3) proves from our gemara that safeik d'oraysa must be l'chumra m'doraysa, to the exclusion of the Rambam who holds that m'doraysa one can be meikil and the rabbonon require going l'chumra. The gemara says that the case where safeik bechor can be put into the coral to be counted toward ma'aser b'heima, cannot be speaking about a safeik bechor of a kosher animal. Why? The gemara explains that the torah says יהיה קודש ולא שכבר קדוש, meaning that only things which begin without kedusha can count toward ma'aser b'heima, to the exclusion of a b'chor of a kosher animal which is already kadosh. Now, what makes a safeik b'chor "already kadosh"? Presumably, it is the fact that since it is a safeik, one cannot work with it because safeik d'oraysa l'chumra. From this we see that the torah itself recognizes that fact that a safeik b'chor cannot be worked with and therefore has kedusha status, because safeik d'oraysa is l'chumra on a d'oraysa level. But if safeik d'oraysa was l'kula, then the safeik b'chor would have no kedusha on a d'oryasa level and should not be excluded by the pasuk from ma'aser b'heima.

The steipler (kehilas yakov 8) pushes off the proof of the shmaitza. The question of whether it is forbidden m'doraysa or only d'rabonon to work with a safeik b'chor, does not reflect on the true kedusha status of the b'chor. Although safeik d'oraysa is l'kula, that is just a way that one may conduct themselves in a situation of safeik issur. But, it does not indicate that there is truly no kedusha on the safeik b'chor. Meaning, safeik l'kula is not a method to determine actual status of the animal, it is just a halacha in how to conduct oneself with the safeik b'chor. Therefore, even according to the rambam that safeik is l'kula and the safeik b'chor is permitted to be worked with, the torah still recognizes it as having safeik kedusha and is therefore excluded from the pasuk of יהיה קדש - ולא שכבר קדש. This is a big chiddush in how to look at safeik l'kula and also look at safeik l'chumra - the torah is not being machria that it is considered definite heter or definite issur, rather the torah is merely telling us how to conduct ourselves in a situation of safeik.

Baba Metzia 5b - Lifnei Iver

There is a discussion in the achronim about the issur of lifnei iver. Although the gemara makes it clear that lifnei iver only applies when it is תרי עברי דנהרא - two sides of the river, meaning one is only in violation if without him the person didn't have access to the issur. However, there is a machlokes in a situation where the person had the ability to violate the issur without assistance, but he would not have violated it. The question is when one could have violated an issur without assistance, but would not have - Is provoking one to violate an issur, even when not enabling, a d'oraysa violation of lifnei iver? The Taz (y.d. 148:3) implies that so long as the person could have done it, it is not a violation of lifnei iver to provoke him to do it. However, the Chazon Ish (63:13) disagrees and holds that if you are מכריע חפצו to violate an issur that he could have without you, but would not have, is also a torah violation of lifnei iver.

A proof to the chazon ish can be brought from the gemara in kiddushin 32a where the gemara implies that there is a torah violation of lifnei iver for a father to provoke his son to him him. Although the son could have hit the father without being provoked, he would not have, and therefore the provoking is a violation of lifnei iver (one can argue that it is only d'rabonon).

One can also bring a proof to the chazon ish from our gemara. The gemara says that it would be lifnei iver to give over one's sheep to a Sheppard (if the Sheppard was suspect of grazing the animals on stolen fields). Why is this lifnei iver?  By giving my sheep to the Sheppard I am not enabling him to steal from other peoples fields. The Sheppard could have stolen without my sheep. I am merely provoking him and providing him with a reason to steal. The gemara seems to hold that even though he could have done the aveira without me, since he wouldn't have it is considered lifnei iver (unless here too the gemara means that it is just a d'rabonon violation).

Baba Metzia 4a - הילך

R' Chiya says that included in the case of modeh b'miktzas where the person partially admits and partially denies, is also a case of "hei'lech". Meaning, Reuven claims 100, Shimon responds by denying 50 and admitting on the other 50 saying "hei'lech". R' Chiya holds that shimon is required to take a shavua on the 50 that he denies. R' Sheishes disagrees and holds that hei'lech is patur, because the 50 that he is admitting on is as if it has already been returned to the lender and the entire claim is only on the 50 that is being denied, so it is a case of kofer hakol which does not require a shavuah.

What is "hei'lech"?

Rashi writes - והילך - לא הוצאתים והן שלך בכל מקום שהם

Rashi implies that in order to qualify as hei'lech in a case of a loan, the borrower must say that he didn't spend the money, but if he would have spent the money and is presenting the lender with other money, that would not qualify as hei'lech. The hagahos ahsri understands rashi exactly like this, and therefore holds that if the borrower spent the money and is now replacing it by returning other money, even though we pasken like r' sheishes that hei'lech is patur, the borrower would have to swear because this isn't a case of hei'lech. However, the Bach on the Rosh says that rashi is not coming to define hei'lech, rather he is coming to explain r' chiya who says that even by hei'lech the borrower must swear. Rashi is coming to say that even if the money has never been spent and it is a supercharged hei'ech, r' chiya would still hold that the borrower must swear. But it is entirely possible that Rashi would hold that according to r' sheishes that hei'lech is patur, it would even be patur if the original money was spent so long as now the borrower is presenting the lender with other money in its place.

The Gr"a quotes from the Ran that a case of a loan is always considered as if the money has been spent since it is given to spend, and therefore a loan never qualifies as hei'lech. The only situation of hei'lech is when one gives another something to watch, and then presents him with only part of it at the time he returns it and denies the other part of it. Based on these rishonim, in a case of a loan, even if it hasn't yet been spent the borrower would have to swear.

Baba Metziah 2a - Divide, Stronger man wins, Leave until Eliyahu comes

The gemara has a variety of rulings that we apply to situation where 2 people are fighting over a particular object. When the object is being held by Reuven and Shimon is claiming that it belongs to him, we apply the standard rule of Hamotzi l'chaveiro alav ha'raya (as rashi points out). In a situation where they are both holding on to the object such as our mishnah, we view it as if each is muchzak in half the talis so that we apply the same rule - each one keeps what he is holding, therefore we divide (as tosafos d.h. v'yachloku and the Rosh explain). A shavuah shouldn't even be necessary, but it's purpose is to prevent theives from grabbing their friends clothes and make fraudulent claims (gemara 3a). However, if they are arguing about something that is not in the possession of either one of them, such as the case of a boat where each one is claiming that it belongs to him, Tosafos explains that since there is no muchzak we apply the rule of כל דאלים גבר, meaning that the "stronger one" wins. The Rosh elaborates that this is really a technique that beis din uses to stay out of the situation. Although beis din is required to involve themselves when they see someone taking from someone else, in this case since no one person is a muchzak they are not required to get involved (the rosh also offers some justification as to why this method would likely result in the rightful owner winning).

The mishna considers the two who are holding on to it to both be muchzak in the talis. But, in the second case in the mishna, they are in exactly the same positions physically grabbing on to it, yet we say that Reuven gets 3/4 and Shimon gets 1/4. Why don't we disregard their claims and view their status as being each muchzak in half to split it evenly as we do in the first case? It seems that the status of being muchzak is not a result of their actions of holding it alone, rather it is a combination of their holding it in conjuction with their claims. Meaning, only because they are both claiming it to be fully theirs do we consider them each to be muchzak on half. Therefore, in the second case where both agree that half belongs to Reuven, Reuven is automatically considered a muchzak on 3/4 and Shimon a muchzak on 1/4.

Rashi (2a) and Tosafos (2b) argue what the din will be in a case where 2 people are holding a talis, each claiming that it belongs to him because he wove it himself (unlike the mishna where they are claiming to have found it or purchased it). The difference between this case and the mishna case is that in the case where they are claiming to have woven it, one of them is definitely not telling the truth (whereas in the mishna it is possible that they picked it up together). Rashi holds that in the case where they claim to have woven it, since one of them is definitely a thief, we apply the din of יהא מונח עד שיבא אליהו. However, Tosafos says that we apply the same din as our mishna of dividing with a shavua (the fact that one is a thief will make the shavua even more effective because even a thief is not suspect to swear falsely). The Rosh proves that Tosafos is correct from the gemara 3a which asks why the by מנה שלישי do we say יהא מונח rather than יחלוקו? The gemara says that since the third 100 zuz definitely belongs to either Reuven or Shimon, but definitely doesn't belong to both, we can't divide it. Rather than using the rationale that we don't divide since one of them is definitely cheating (as the gemara says by r' yossi), the gemara implies that even if one of them is definitely cheating we will still divide so long as it is still possible that it belongs to both of them. Therefore, in the case where each one claims to have woven it, where one of them is definitely cheating, we would still divide, since it is possible that they both own it.

Baba Kama 117a - Moser

The gemara illustrates from the story of Rav and Rav Kahana that it is permitted to kill a person who threatens to be moser. The Shulchan Aruch (c.m. 388:10) writes that this applies even nowadays because a moser has status of a rodef since it will lead to physical danger (as the sm"a explains, when the goyim find out he has money they will threaten him physically). The Rama rules that prior to killing him, he should be warned, but if there is no time to warn, or injur him as you would stop a rodef, you can kill him on the spot as r' kahana did (the yam shel shlomo discusses why r' kahana needed to run away to do teshuva if he was permitted to kill the moser. He suggests that either he needed teshuva for paskening in front of his rebbi, or he needed teshuva for endangering his own life). This applies only until the moser actually commits the act, but once he has already reported to the goyim, the shulchan aruch (388:11) rules that it is assur to kill him, just as a rodef can't be killed after taking someones life (unless there is a chance that he will continue). The shach points out that the ri"f seems to disagree with the rambam and shulchan aruch, that even afterwards he can be killed. Even according to the shulchan aruch that once he did the mesira he cannot be murdered, if he was repeatedly moser, the Rama (15) writes that he can be killed through grama. The Shach quotes the teshuvos ha'rosh that included in "grama" would be hiring a hit man to kill him. The maharshal disagrees and holds that hiring a hit man is the equivalent to killing with his own hands which is not allowed unless there is imminent danger of him reporting again. The rationale of the maharshal is that by a goy we say יש שליח לדבר עבירה to be machmir, so it is as if the jew who kills through a non-jewish agent actually committed the murder himself. 

R' akiva eiger refers to a teshuva of the beis yakov (siman 2) who says that even if we accept that a goy can be a shliach for a jew l'chumra, since a goy is also forbidden to kill we should say אין שליח לדבר עבירה so that the act of murder is not attributed to the jew at all? The Beis Yakov explains the opinion of the maharshal based on the tashbetz who says that when it is obvious to the sender that the shliach completely disregards dinei torah, he cannot have a claim of דברי הרב ודברי התלמיד דברי מי שומעין which is the basis for אין שליח לדבר עבירה. Therefore, by a goy and even a yisroel mumar we would say יש שליח לדבר עבירה to consider the act of the aveira as if it were performed by the sender himself (he continues to suggest that the concept of יש שליח לדבר עבירה when the shliach is a goy, only applies when the sender is a jew, but when the sender is also a goy we would say אין שליח לדבר עבירה).

Baba Kama 116b - Claiming that you did it for yourself

Reuven asks Shimon to  purchase a lottery ticket for him, Shimon purchases the ticket and wins. Can Shimon claim that he purchased it for himself, or does the money belong to Reuven?

The Machaneh Ephraim (Shluchin 19) quotes a machlokes mentioned in the Tur (c.m. 184). The Ramah holds that Shimon was serving as Reuven's agent and is not believed to say he purchased it for himself. But the Rashba in a teshuva writes that when 2 people agree that they will split profits of their business equally, on partner is not believed to say that he had intended to break the partnership and all the profits that he earned are his own, unless there was a formal declaration made in the presence of witnesses that he broke the partnership. The Rashba proves this from our gemara where the worker saved the possessions of his employer, and so long as he didn't retract on his status as a worker, we assume that he was doing it on behalf of the employer and not on behalf of himself. The machaneh ephraim understands from the rashbah that who bases his ruling on our gemara that refers specifically to a worker, that only a paid worker is not able to break his employment agreement without a formal declaration. But this implies that one who is not a paid worker can claim at any moment that he retracted from his original commitment. Based on this, the Ramah would say that the lottery ticket belongs to Reuven, but the Rashba will say that Shimon is believed to say that he retracted and keep the ticket for himself.

Baba Kama 115b - Bal Tashchis : בל תשחית

The gemara says that water that has been left uncovered and their is concern that snake venom may be inside, one cannot give the water to an animal. Rashi explains that the rationale is that we are concerned that one may shecht the animal and it will be dangerous to the person who eats from this animal. Tosafos points out that rashi's approach would only apply to a kosher animal, but in truth this din should apply to a non-kosher animal as well because there is a violation of ba'al tashchis to kill the animal for no reason at all. Tosafos proves this from a gemara in avoda zara 30b that it is only permitted to feed it to a cat (snake eater) which will not be damaged by the venom, which implies that it would be assur to feed it to a non-kosher animal which will be damaged by the venom. From Tosafos we see an interesting point regarding ba'al tashchis. Usually we refer to something as wasteful because it has a function to serve a human and it is being wasted. But in a case where the object provides no direct benefit to a human being one can argue that it is permitted to waste it without any violation of ba'al tashchis. Tosafos says that this is not true, because even a non-kosher animal similar to a cat that is not designated to assist people in carrying loads or plowing a field cannot be killed for no reason and would constitute a violation of ba'al tashchis.

Baba Kama 114b - מסיח לפי תומו באיסור דאורייתא

The gemara concludes that a woman or child who don't have believability as an עד אחד נאמן באיסורין are nonetheless believed מסיח לפי תומו by something which is only d'rabonon (such as the bees nesting in someone elses yard, they are believed to say where it came from since the entire kinyan on these type of things is only d'rabonon. But by an issur d'oraysa we wouldn't believe a woman or child and certainly not a goy who is מסיח לפי תומו, with the exception of eidus isha that her husband died and by shevuya where chazal were especially lenient.

The Shulchan Aruch (98:1) rules that a goy is believed מסיח לפי תומו to say that he doesn't taste the issur that fell into kosher food, to be matir the food. The Shach and Taz both ask that the concept of מין בשאינו מינו בנותן טעם, that when food falls into a pot that has a different type of food, there is an issur d'oraysa to eat from the pot so long as the issur can be tasted (which in the absence of believing the goy we would assume that the taste in only nullified in 60 times as much). How can we believe a goy on an issur d'oraysa?

The Shach at first suggests that when there is a chezkas issur we don't believe a goy on an issur d'oraysa but when there isn't any chezkas issur we would believe a goy even on an issur d'oraysa. He then asks that if this is true the gemara should have no question from teruma and shevuya as to why we believe מסיח לפי תומו since there isn't any chezkas issur. Therefore the Shach concludes that since after the goy tells us that he doesn't taste the issur we will be tasting it and be able to call his bluff, he is more careful not to lie, so we can trust him. But in a situation where we won't be able to call his bluff we don't trust a goy even מסיח לפי תומו on an issur d'oraysa even if there isn't any chezkas issur.

The Taz offers an alternate approach. The din that a goy is not believed מסיח לפי תומו on an issur d'oraysa only applies to situations that require eidus, but in the realm of issur v'heter which doesn't require a real eidus, we can trust a goy מסיח לפי תומו. The Chavos Da'as (98:1) explains that the Taz doesn't mean to say that whenever an individual witness is believed it doesn't qualify as eidus, and therefore a goy is believed מסיח לפי תומו even by an issur d'oraysa. Because if that were true the gemara should not have any question from teruma and shevuya as to why מסיח לפי תומו since by those cases an individual witness is believed, so מסיח לפי תומו should also be believed. Rather the Taz acknowledges that even cases where an eid echad is believed would sometimes qualify as a real "eidus" and מסיח לפי תומו would not work on an issur d'oraysa. The litmus test as to whether something requires real "eidus" is whether or not there needs to be a haggada in beis din. Both the case of a kohen being mutar b'teruma and the case of shevuya require a hagadda in beis din therefore מסיח לפי תומו is not believed. But by issur v'heter which doesn't require a haggada in beis din,a goy מסיח לפי תומו is believed even by an issur d'oraysa.

Baba Kama 113a - Davar Sh'eino Miskavein / P'sik Reisha

The gemara quotes a machlokes whether one is allowed to wear shatnez when they are not intending to benefit from it (such as wearing it so that it looks like a personal garment that is not for sale and thereby tax exempt). The gemara says that this is the machlokes that we find all over shas between R' Shimon and R' Yehuda whether a דבר שאינו מתכוין is mutar or assur. The major question is that R' Shimon is only matir a דבר שאינו מתכוין when it is not a p'sik reisha, meaning that the issur may or may not be violated, but in a situation where the issur is definitely being violated, the lack of intent will not permit it. Tosafos (Shabbos 29b) says that it is speaking about a situation that it is not a p'sik reisha because the person is wearing other clothes that protect him, and therefore it is only a safeik whether the shatnez garment will also be providing protection. However, the Ran in chulin (32a b'dapei ha'rif) is mechadesh - דלענין הנאה ודאי אע"ג דהוי פסיק רישיה שריא דהא אמרינן התם מוכרי כסות וכרין כדרכן ובלבד שלא יכוונו בחה מפני החמה ובגשמים מפני הגשמים וכו' דכיון דלא מיכוין לה לא חשבינן לה מידי

The Ran holds that issurei hana'ah are different than other issurim in that pleasure can only be appreciated and qualified as a benefit when there is intent. In the absence of intent, it doesn't qualify as hana'ah. That is why R' shimon is matir by issurei hana'ah even when it is a p'sik reisha. 

The Ran in Shabbos (41a b'dapei harif) explains the rationale to be matir even when there is an inevitable benefit somewhat differently - לפי שלא אסרה תורה אלא מלבוש שסתמו להנאה אבל כל שאין לו הנאה ממנו אינו מלבוש אלא משוי בעלמא

Here the Ran limits his chiddush specifically to the issur of shatnez. Although other forms of issur hana'ah may very well include acts of hana'ah even when there is no intent, the issur of shatnez is different. The very nature of the issur is to assur the "wearing" of shatnez which by definition requires intent to benefit from the clothes.

The difficulty with the approach of the Ran is that the chiddush is really a chiddush in the specific issur of shatnez (Ran in Shabbos) or the concept of "hana'ah" (Ran in chulin), but has nothing to do with the general rule of דבר שאינו מתכוין being mutar or assur. Meaning, even if דבר שאינו מתכוין is normally assur, one can still hold that hana'ah requires intent, or the issur shatnez requires intent. So, why does the gemara always connect this to the very global machlokes of R' Yehuda and R' Shimon about דבר שאינו מתכוין?

Baba Kama 110 - Kohen Appointing Shliach to Eat Kodshim

The gemara questions what is the case where a zaken or choleh appoints someone else to do the avoda and eat the korbanos for him. If he is unable to do the avodah and eat, how can he appoint a shliach. The gemara concludes that he is able to do avoda and eat b'dochek, therefore avoda b'dochek which qualifies as avoda he can appoint a shliach for, but eating b'dochek which qualifies as over eating which is assur by kodshim he can't appoint a shliach for. The gemara seems to assume that the kohen who belongs to the mishmar must appoint a shliach to eat kodshim for him. The maharatz chiyus associates this with the gemara in nazir 12a that says that one must be able to do something himself in order to have the authority to appoint a shliach to do it for him. Based on this the Maharatz chiyus asks, the mitzvah of eating kodshim is not a mitzvah on the "gavra" rather it is a mitzvah that the "cheftzah" must be consumed (the chasam sofer and beis halevi discuss this issue in contrast to korban pesach). This is clear even from the gemara's assumption that the elderly kohen of the mishmar can appoint another kohen as his shliach to eat the kodshim for him, which certainly cannot be done by the mitzvah to eat matza because this mitzvah is not an obligation on the individual. But since it is just a mitzvah on the cheftzah that kodshim should be eaten, why is shlichus necessary to allow another kohen to eat from the korban?

It seems to me that this sugya is not at all connected to the inyan of shlichus. The term shlichus over here doesn't refer to the concept of appointing another kohen to stand in his place, rather it refers to the ownership of the rights to eat and the ability to pass on those rights to someone else. The gemara is not using the rule of nazir 12a that one must be able to do it himself in order to appoint a shliach, it is instead using the obvious rationale that one cannot gift to someone else something that he doesn't own. The ownership of the mishmar in kodshim is only when the individual is able to participate in that activity, whether it is avoda or eating, in which case he can offer those rights to someone else. But when he is unable to do avoda or eat, he is not considered someone who has ba'alus over that activity and therefore cannot pass it on to anyone else. Therefore, the gemara concludes that the case must be that he can do avoda b'dochek, so he can gift that right to a friend who is a kohen and not in that mishmar, but since his eating b'dochek would not make him eligible to eat kodshim, he doesn't own that right and cannot pass it on.

Baba Kama 100a - Goreim l'mamon vs. Grama vs. Garmi

The gemara established that according to R' Meir one is chayev even for indirectly causing a loss to someone, such as not rebuilding the fence between a vineyard and a field so that the vines cause issur to the field. The gemara 98b clearly makes a distinction between the rule of R' Shimon דדבר הגורם לממון כממון דמי, and the rule of R' Meir דדאין דינא דגרמי. In the particular case of the gemara where one burns his friends contract causing him a loss, the gemara says that R' Shimon's goreim l'mamon would not apply since the contract itself has no inherent value. Yet, the gemara concludes that one would be obligated through dina d'garmi. The gemara seems to imply that it is more likely to be chayev using dina d'garmi more than using the concept of goreim l'mamon, therefore whenever R' Shimon would hold that you are chayev, R' Meir would certainly hold that you are chayev. However, Tosafos 71b (d.h. v'savar) explains that R' Meir's din of garmi would only apply to cases where the money has value to everyone in the world, but something which only has value to a particular individual would not be included in the concept of garmi, but would be in the concept of goreim l'mamon. For example, chometz after pesach which is assur b'hana'ah to the entire world and only has value to the ganav (98b), even though R' Shimon would hold that one is chayev to the ganav for destroying it after pesach since to him it is worth something (returning to the owner and declaring הרי שלך לפניך), R' Meir would hold that garmi doesn't apply.

R' Shimon's concept of goreim l'mamon is a chiddush in the type of object that was destroyed [it must have inherent value to the exclusion of a contract, but doesn't need to have value for the whole world], but he would require the destruction to be a direct action of the mazik. Whereas R' Meir's concept of garmi is a chiddush in the action done by the mazik that it need not be a direct act of damage, but the object must have value for everyone in the world. In the case of the contract, if we were to be mechayev using the concept of goreim l'mamon (if not for the fact that it has not inherent value), we would consider the contract to be valued at whatever the lender can collect for it, so that when it is damaged the chiyuv is for damaging the paper of the contract which is regarded as money. But, when we are mechayev using garmi, the chiyuv is not for the destruction of the contract, rather it is for causing the lender to be unable to collect the debt owed to him.

Regarding garmi and grama, we generally assume that grama is patur, but garmi is chayev. Although the ketzos (386:2) explains that according to the rambam every case of grama is chayev according to R' meir based on garmi, most authorities assume that even according to R' Meir there are some cases which qualify as grama and others which qualify as garmi. An example would be the case in the gemara 99a where one knocks some one's coin into the sea, into clear water where a diver can retreive it (machlokes rashi and tosafos if you need both, or the definition of clear water is that a diver can retreive it). The Ketzos (386:10) quotes from the hagahos mordechai that garmi is when one indirectly causes a loss to some one's money, but when one doesn't cause a loss to some one's money or object, rather he causes someone to be forced to incur an expense to retreive his money or object i.e. hiring a diver to retrieve his coin, even R' meir would hold that the mazik is patur.

Baba Kama 98b - Chometz after pesach: Did the Chachamim k'nas inheritors?

The Nodeh B'yehuda (o.c. 20) has a long and elaborate teshuva discussing a situation where a father died after chatzos on erev pesach and had chometz in his possesion. After proving that the children do not inherit this chometz and therefore have no obligation to dispose of it (since it is already assur b'hana'ah so it is not "owned" by the father to pass it on to the children), he discusses whether the children are able to benefit from this chometz after pesach. At first he makes this dependent on whether there is a violation of בל יראה ובל ימצא after chatzos on erev pesach, or only at nightfall. Presumably since the father owned the chometz after chatzos until he died, the chometz would be assur if the father was in violation of בל יראה ובל ימצא. Although most poskim assume that the issur of בל יראה ובל ימצא only begins at night, the nodeh b'yehuda proves that the opinion of the Rambam is that it applies already after chatzos on ereve pesach (this also seems to be the opinion of rashi in pesachi 4a). Even the Ra'avad who disagrees with the rambam would hold that chometz is mutar to derive benefit from (shitas r' shimon that lifnei zemano it is mutar b'hana'ah) until pesach begins, so that the children inherit it and they themselves would be in violation of בל יראה ובל ימצא at nightfall when pesach begins.

But, he then says a big chiddush to be matir the chometz after pesach in this case. He introduces this by pointing to many gemara that address the issue of whether a penalty implemented on the father would apply to his children who inherit from him - what is the din by chometz she'avar alav ha'pesach by the father, is the penalty imposed on the children?

The mishna says that a gazlan can return to a nigzal chometz after pesach (even though it is assur b'hana'ah). The gemara proves from this that by issur hana'ah one can say הרי שלך לפניך. Simply this indicates that it is assur to the nigzal, otherwise there would be no proof to other issur hana'ah (which is assur to everyone). However, the N.B. explains that the chometz is really only assur to the gazlan but mutar to the nigzal. His assumption is that really we are only interested in imposing a penalty on the violater of the issur, but normally we are forced to make it assur to everyone to ensure that the violater will not benefit from the issur by the ability to pass it off to someone else. We can assume that when the violater will not benefit by the ability to pass it off to someone else, the rabbonon wouldn't impose their penalty. Based on this, he explains that the logic of the gemara is that if by issur hana'ah one cannot say הרי שלך לפניך, then the gazlan would benefit by it being mutar to the nigzal because the heter to the nigzal would allow him to return it, which is not the case by other issurei hana'ah. But if by issur hana'ah one can always say הרי שלך לפניך, regardless of whether it would be mutar to the nigzal or assur to the nigzal, the gazlan would be able to return it. Therefore, there is no reason for the chachamim impose their penalty on the nigzal. Normally, they would assur it to everyone to avoid the person who violated the issur from being able to benefit, but here there is no rationale to assur it to the nigzal since even if it is assur to the nigzal (such as other issurei hana'ah) the gazlan can benefit from it by returning it to the nigzal.

Based on this chiddush that if one steals chometz and returns it after pesach, the nigzal can benefit from the chometz and even eat it. From this the N.B. makes a jump and says that if chazal didn't impose a penalty on the nigzal, so too when one owns chometz on pesach and dies, there wouldn't be a penalty imposed on his inheritors. The N.B. suggests a distinction. The chometz that was in the hands of the gazlan never became assur to the nigzal since there was never any rationale to assur it on the nigzal, but the chometz that became assur to everyone in the lifetime of the father, would remain assur even upon the fathers death so that the inheritors cannot benefit from it (which is meduayk in the language of the Rambam - חו"מ א:ד - חמץ שעבר עליו הפסח אסור בהנאה לעולם.

For brevity purposes i am switching to hebrew:

והטעם שהחמירו בחמץ יותר  משאר קנסות שקנסו לאסור אף על היורשים, משום דלא נקרא שם האיסור על גוף הדבר כגון במלאכת חוה"מ דלא שייך שם איסור על המלאכה, אבל חמץ אחר הפסח חל שם איסור על החמץ ואינו חוזר להיות מותר במיתת העובר עבירה. אכן, אף שהעלה הנוב"י שבחמץ בפסח קנסו בנו אחריו, מ"מ ס"ל דדין הראשון גבי גזלן שגזל חמץ לפני הפסח ועבר עליו הפסח שאומר לנגזל הרי שלך לפניך, וחידש שמותר בהנאה להנגזל "שהוא אמת וברור". ובסוף התשובה התיר אף להיורשין כל שמת האב קודם הפסח או אפילו בתוך הפסח, שהרי כל הסברא לאסור להיורשין משום דכבר חל הקנס על האב, ומסתברא דלא חל הקנס בתוך הפסח בזמן שהוא אסור בהנאה מדאורייתא, אלא שבכלות הפסח וחוזר מה"ת להיות מותר חל הקנס, וכל שחל רגע אחד לעולם לא פקע. לכן כשמת בתוך הפסח ולעולם לא חל הקנס מותר להיורשין ליהנות ממנו אחר הפסח, אבל כשמת האב שעבר בב"י וב"י רגע אחר הפסח, כבר חל עליו הקנס ואסור להיורשין ליהנות ממנו. עכת"ד הנוב"י

Baba Kama 95a - Takanas Hashavim

The gemara says that in the days of rebbi they made a takanas hashavim that if one stole or took money as interest, he does not have to pay it back (the beis din is not even allowed to allow the nigzal to receive it), so that people will not be discouraged from doing teshuva. The gemara limits this to gezeila that is no longer here to return, but when the object is here he must return it. Tosafos continues to limit this takana even more by saying one of the following: a. it only applied during the time period of rebbi, not before or after. b. it only applies to a professional thief who would more easily be discouraged from teshuva. c. it only applies when he is coming forward to repent, not when he is caught and forced to return (tosafos rejects this approach).

However, the gemara mentions a more mild takanas hashavim that is paskened in the poskim. When one steals a beam and builds it in his house, technically he should be required to break down the entire structure to return the beam. However, chazal made a takanas hashavim to allow him to return the cash value of the beam rather than the actual beam (rashi explains that the takana of rebbi doesn't cover this case since the beam is still here and can be returned, that is why this takana doesn't exempt the thief completely).

In Shulchan Aruch (c.m. 360) we pasken that the beam doesn't have to be returned and it is sufficient to return money. However, the rama writes that if one were to steal property and construct a house on that property, we would not make a takanas hashavim allowing him to pay the cash value of the property. When it comes to theft of property there was not takanas hashavim. Why?

The sm"a (360:6) writes: דלא עשו תקנת השבים בקרקע דכיון דהוא דבר קבוע ועומד הו"ל למידע דשל הנגזל הוא ולא הו"ל לקנותו

This implies that the takanas hashavim was really only for one who purchases stolen goods without realizing that they were stolen. This would not apply to property since everyone knows to who it belongs. The approach of the sm"a is a big chiddush because we never find that the takanas hashavim is limited to one who used stolen goods accidentally. The be'er heitev writes over the sm"a and replaces the word "לקנותו" with the word לבנותו (nesivos also makes this correction), but the magiah on the be'er heitev is still not sure what that really accomplishes.

The Taz seems to understand that the takanas hashavim was not only for the benefit of the gazlan to do teshuva but also for the nigzal. It is very likely that without the takana, the stolen item will never be returned and will eventually rot away. They made it easier for the thief to do teshuva to protect the nigzal and make sure that he is reimbursed. Property which will never disappear, and eventually be returned to the rightful owner when Hashem decides to weaken the hand of the thief, they didn't need a takana to protect the nigzal. The Pischei Teshuva quotes the levush who has a similar approach, that property which cannot be hidden and will eventually be returned, does not require a takana to protect the nigzal. The difficulty with this approach is that the takanas hashavim of rebbi was purely for the benefit of the gazlan to encourage him to do teshuva without any concern for the nigzal. Presumably, this lower level takana which makes the gazlan at least return cash, is also for the benefit of the gazlan, but not instituted to benefit the nigzal, therefore it should apply to property as well.

A completely seperate issue - R' Akiva Eiger refers to the chavos yair who discusses a situation of a goy who steals from a jew and then converts, must he return stolen goods that he has. He quotes Tosafos in sanhedrin 71a who asks why a goy who commits murder and then converts is still chayev misah, we should say that he is כקטן שנולד דמי, an entirely new person? Tosafos answers that b'dinei shamayim he is like a new person with a clean slate, but in dinei adam he remains responsible for the acts he commited as a goy. Therefore, he is obligated to return an item that he stole as a goy. Basically, the idea of גר שנתגייר כקטן שנולד דמי, is the equivalent of a jew doing teshuva, but that will not remove from his punishments from beis din or returning stolen goods. But, the question can still be asked whether there is a takanas hashavim for such a situation - For example, a goy stole a beam and built a house, he then converted, would there be a takanas hashavim to allow him to pay cash rather than knock down the house?

Baba Kama 94b - Kibud Av for a father who is a rasha

The Rambam (mamrim 6:11) says that a mamzer is chayev in kibud av, because one is chayev in kibud av even if their father is a rasha who does aveiros. Although he isn't chayev for hitting and cursing the father, אפילו היה אביו רשע ובעל עבירות מכבדו ומתיירא ממנו.

The Tur (end of 240 in Y.D.) argues. His proof is from our gemara that clearly says one is not obligated to return goods that their father stole since their is only a chiyuv of kibud av when the father is עושה מעשה עמך, not when the father is a thief.

The Beis Yosef justifies the position of the Rambam that the braisa and gemara are only speaking about goods that were taken as ribbis, but not about stolen goods. Therefore, the Rambam would hold that m'ikar hadin the torah doesn demand that the inheritors return ribbis that was taken by their father - אל תקח מאתו נשך, לדידיה אזהר רחמנא, לבריה לא אזהר רחמנא (unlike stolen goods that the children have an obligation to return). The mitzvah of kibud av will require them to return anything that they have not "inherited" from their father and still remains in their fathers possesion, but once they inherit it and it has become theirs, the mitzvah of kibud av doesn't require them to return it (becasue we pasken kibud av is only משל אב, not משל בן). So, when their father did teshuva and intended to return it but didn't get a chance to, it is as if it is still in the father's reshus since it was never meant to be inherited by them, and they are obligaed to fulfill kibud av and return it. But, when the father didn't do teshuva, although they are fully obligated in kibud av of their rasha father, they don't have to return it since they inherit the ribbis and it becomes theirs.

Based on the Beis Yosef's answer, when the gemara says that they don't have to return it because ונשיא בעמך לא תאור בעושה מעשה עמך, the gemara doesn't mean to say that they have no mitzvah of kibud since their father is a rasha. Rather, the gemara means to say that when the father is a rasha, they inherit the item, and therefore have no obligation to fulfill kibud by returning it since it becomes theirs. Rashi clearly doesn't learn like this because rashi writes: בעושה מעשה עמך - וזה לא עשה מעשה עמו ואינן חייבין בכבודו

The approach of the beis yosef only works if the braisa about davar m'suyam is speaking only about ribbis, not about gezel. Rashi (d.h. misuyam) who writes that it is speaking about gezel as well, will be forced to learn like the Tur that there is no mitzvah of kibud av for a father who is a rasha (וזה לשיטתו כדביארנו שהוא סובר כשיטת הטור). Shulchan Aruch (240:18) paskens like rambam, but rama paskens like tur. Taz also asks on the answer of the beis yosef why should we diffrentiate between a davar misuyam and not, since the son never inherits he should be required to return even something which isn't misuyam because it isn't his, even without kibud av - based on this he agrees with tur and rama.

A major question on the Tur and Rama is that if one is exempt from honoring their father who is a rasha, why do we need a special pasuk (kiddushin 32, shulchan aruch 240:15) exempting a son from kibud when the father tells him to do an aveira, since the father is telling him to do an aveira he is a rasha, so the mitzvah of kibud doesn't apply? The pischei teshuva (240:15) explains that one only assumes a status of אינו עושה מעשה עמך when he repeats the aveira multiple times, but just asking the son to do an aveira won't render the father a rasha. Perhaps another answer is that one only is considered אינו עושה מעשה עמך for violating a d'oraysa, not a d'rabonon. Therefore, we need the pasuk of אני ה' - כולכם חייבים בכבודי to teach that even if the father tells the son to violate a d'rabonon, he should listen (as the shulchan aruch 240:15) paskens.

Baba Kama 94a - Bracha on Issurim: בוצע ברך נאץ ה

The gemara says that R' Eliezer ben yakov holds that shinuy isn't koneh from the fact that he says if one steals wheat and converts it into bread, the bracha on hafrashas challah is "rejected" by Hashem. The gemara pushes off the proof - perhaps he holds that shinuy is ko'neh, but the bracha is rejected since it is a mitzvah ha'ba'ah b'aveira.

The Rambam (Brachos 1:19) paskens that one should not make a bracha on any forbidden food, regardless of whether he is eating it intentionally or unintentionally. Tosafos 67a seems to agree with the Rambam that regarding the bracha which mentions the name of Hashem, one should be machmir not to make the bracha. The Ra'avad disagrees, although one doesn't make a zimun on forbidden food, he does make a bracha. Our gemara seems to indicate that the Rambam is correct, that one does not make a bracha on forbidden food - the bracha is rejected by Hashem. How would the Ra'avad explain our gemara? The Rosh in Brachos sides with the Ra'avad and explains that the gemara doesn't mean to say that you don't make a bracha. Rather, the bracha that you make is disgusting in Hashem's eyes, but nevertheless one is required to make a bracha (and presumably it is more disgusting not to make a bracha). The kesef mishneh suggests that their machlokes may be pending on whether we have the girsa of "כיצד מברך", which indicates that there is a bracha.

R' Akiva Eiger (mishnayos brachos chapter 7) asks based on our gemara. According to Abaye who understood that the rationale for the bracha being rejected, is that it still belongs to the original owner so that the entire mitzvah isn't binding. Abaye is clearly understanding R' elazar ben yakov like the Rambam that he is saying one should not make a bracha, because the mitzvah of hafrashas challa isn't binding since the dough still belongs to the original owner. How can the Ra'avad and Rosh hold that one should make a bracha (just that Hashem is repulsed by it)? R' Akiva Eiger himself indicates that they will have to say that when the gemara pushes off Abaye and explains that shinuy is ko'neh, and the reason for the bracha being rejected is a mitzvah ha'ba'ah b'aveira, we are no longer compelled to explain that the bracha isn't made. R' Elazar ben yakov would hold that the bracha is made, just that since it is mitzvah haba'ah b'aveira Hashem is repulsed by it. Based on this approach we are forced to say that the Ra'avad and Rosh hold that there is a way in which one can fulfill the mitzvah even when it is a mitzvah haba'ah ba'aveira (such as Tosafos 67a quoting the R"i that whenever the kinyan is made before the mitzvah, he would fulfill the mitzvah, just can't make a bracha).

Baba Kama 92b - Secular courts - Throwing dirt into a Bor

Secular courts:

The gemara says that if one calls his friend and he ignores him, he can throw a wall down on him - rashi explains that this is clearly not literal, rather if one gives mussar and the person fails to receive it, don't bother to continue, rather let him suffer the fate of his aveiros. This peshat seems difficult in light of the gemara in baba metziah that says that "הוכח תוכיח" requires a person to give mussar many times, even if ignored the first time.

The Rosh explains this gemara differently - If one has a claim on someone else and the person refuses to go to a din torah, he can bring hi to a secular court to take from him what he rightfully deserves.

Throwing dirt in the well:

The gemara says that a well that one drank water from he should not throw dirt into. Rashi explains that anything that a person once used, he should not degrade. This implies that even though he no longer has a use for the item, he should have a certain level of hakaras hatov for the item, not to degrade it.

The Shita Mikubetzes writes that we find this concept by the miracles in mitzrayim that were performed by Ahron, so that Moshe would not have to be kofer tov against that sea and ground that protected him. He tells a story of the Rif once getting sick and the neighbor allowed him to use his bath house to recover from his illness. After some time the neighbor went into debt and was forced to sell his bath house to bay his debts. The Ri"f refused to sit on the din torah to force the sale of the bath house since he benefited from it. He writes:

ואם היה זה בדומם שאין לו הרגשה כל שכן וק"ו בני אדם המרגישים בהיזק ובתועלת שיהיה זה שנוי לעשותו והעושהו יוצא משורת המוסר ודרך ארץ וכו' ואם היה זה במי שקבל הנאה מבשר ודם כ"ש וק"ו באלוה יתברך שממנו נשפע הטוב הגמור שראוי להודות לו הודאה גמורה ולא יעשה מה שיקניטנו ולא מה שהוא שנוי לו

Ultimately, this concept is a mussar for how to show hakaras hatov to people and how to show hakaras hatov to Hashem.

Baba Kama 90a - חמץ נוקשה שעבר עליו הפסח ודבר הגורם לממון

The Ketzos HaChoshen (386:7) raises a question: If one destroys his friends chometz on pesach, he is clearly not liable for the damages since both on pesach and after pesach that chometz will be prohibited from deriving any benefit from. However, if one destroys "chometz nuksheh" of his friend, will he be liable to pay for the damages? The status of chometz nuksheh is that one is allowed to own it through pesach with the intent of using it after pesach, but during pesach one is not allowed to derive any benefit from it. The concept behind the practical scenario is whether one is liable for damages on an object which at the moment is not usable in any way, but has value in the sense that at a later time it will be usable. The ketzos writes that this would seem to be categorized as a דבר הגורם לממון, similar to what the gemara in pesachim 29a describes in the context of benefiting from hekdesh chometz during pesach. Hekdesh chometz will also be permitted after pesach, but during pesach one is not allowed to derive any benefit from it. Will this constitute a violation of me'ila - the gemara makes this dependent on the rule of davar ha'gorem l'mamon. Since we pasken that דבר הגורם לממון לאו כממון דמי, he is patur.

The ketzos raises a problem from our gemara, where the slave is sold and the original owner retains rights of use for the next 30 days, and the slave will then be fully owned by the buyer. R' Meir holds that the rights to use the eved is like a kinyan ha'guf, so that the din יום או יומיים to exempt the master for killing the eved applies to the original owner. The ketzos asks that since r' meir agrees with r' shimon that davar ha'gorem l'mamon is k'mamon (baba kama 71b), shouldn't r' meir hold that the ownership of the buyer is significant since after 30 days it will belong entirely to him? From this the ketzos is mechadesh that the concept of דבר הגורם לממון does not decide ownership, it is just a method of assessing responsibility for damage....

Many achronim take issue with the assumption of the ketzos that something which has no value now because it cannot be used but will have real value later is considered to merely be a davar ha'gorem l'mamaon. Perhaps hekdesh is different since its entire value is based on the ability to redeem it, therefore on pesach when no one will consider redeeming it, it has zero value. But something which can not be used temporarily such as chometz nuksheh, but will be usable at a later date, is considered to have real value now and the damager would be responsible.

Baba Kama 89a - Keeping a Wife without a kesuba

R' Meir says that it is prohibited for a man to stay married to his wife unless she has a kesubah. The purpose of the kesubah is to prevent him from divorcing her hastily. Being that upon divorce he will be required to pay a significant sum of money, he will likely be deterred from the divorce. The gemara is clear that this takana does not require that she be the receiver of the kesuba, because even if she were to sell the kesuba and someone else would be receiving it, the fact that he would have to pay someone would still deter divorce.

The Shulchan Aruch (66:3) paskens that if a woman looses or forgives her kesubah, she cannot continue to live with her husband until he writes her another one due to this takana. However, the Rama writes that the entire concern is only at a time when there is no other form of protection to prevent divorce, but nowadays where their is a cherem of rabbeinu gershom that prevents him from divorcing her against her will, it is not so vital that there be a kesubah. Although the rama says the minhag is not to rely on this, he indicates that me'ikar hadin, it would suffice. The chelkas michokek, beis shmuel and gr"a are all somewhat skeptical about the validity of this heter. We do find that when one rapes a woman and there is an issur d'oraysa preventing the divorce, one can be lax about the kesubah since he won't divorce her "easily". But, who says that a cherem is enough to fulfill this requirement! Furthermore, the Mishneh l'melech (ishus 10:10) proves from the Ran that even in a situation where it would be prohibited to divorce a woman against her will, a kesubah is still necessary. He proves this from the question that the Ran asks, how can a woman be mochel her kesuba, it will be a violation of living with a wife without a kesuba (tosafos by us asks the same question). From the fact that we don't give a very simple answer that when he swore not to divorce her against her will she can be mochel, implies that a kesubah is always necessary. Just as swearing can't replace the requirement of kesuba, so too the cherem of rabbeinu gershom cannot replace this requirement.

It seems to me that there is an even greater proof from our Tosafos against the Rama. Tosafos asks that when she damages her husband and owes him money, we should force her to sell her kesubah to a third party (to have money to pay the damages she owes him) and he would sign on the contract to prevent her from being mochel. Tosafos answers that by the husband signing directly to the third party, it would no longer qualify as a kesubah and would be a violation of the din of being married to her without a kesubah. We see from Tosafos that the takana d'rabonon was not merely that the husband should have to pay a particular sum of money if he would divorce her, but rather it must be in the form of a kesubah that is owed to her (even if she sells it, it is going through her and qualifies as a kesubah). So too the cherem d'rabbeinu gershom which is another method of preventing divorce but not using the concept of a kesubah, does not fulfill the takanas chachamim. 

Baba Kama 87a - Responsibility for damages as a kattan

The mishna says that חרש שוטה וקטן and עבד ואשה are both פגיעתן רעה. But, a woman and eved are technically liable for their damage just that they don't have money to pay with. Whereas a deaf, fool and child are not liable for their actions. Therefore, a woman and eved are responsible to pay after their situation changes and they have their own funds. But a deaf, fool and child remain exempt even after the child would turn into an adult. This is apparent from the mishna and even clearer in rashi who seems to explain the contrast that a woman and eved are really chayev just that they have nothing to pay from. The implication of rashi is clearly that a child is not chayev even if he would have what to pay from.

I mentioned earlier in baba kama that the hagahos ashri here understands from rashi 88b where rafram forced rav ashi to pay for burning a shtar b'yalduso, that a child is chayev to pay when he gets older for damages that he did when he was younger. This seems to directly contradict the implication of rashi here that a kattan will always be patur for his actions?

When one damages there are 2 concepts that require him to pay. One is כלפי שמיא where he violated a "prohibition" and must make amends by repaying the damage. The second is the very practical aspect of compensating the person for the loss that he caused. It could be that the mishna is saying that a child is not liable to compensate for the loss that he caused when he is younger, but the concept of the aveira still exists to some degree. Similar to what the Rama writes in Hilchos Shabbos 343 קטן שהכה את אביו או עבר שאר עבירות בקטנותו אע"פ שא"צ תשובה כשיגדל מ"מ טוב לו שיקבל על עצמו איזה דבר לתשובה ולכפרה אע"פ שעבר קודם שנעשה בר עונשין

Just that the hagahos ashri takes the concept of the rama a step further, it is not merely a chumra or l'fnim m'shuras hadin, but rather כלפי שמיא he is chayev to make amends for actions that caused a loss or damage to others. Therefore, in dinei choshen mishpat he is not chayev to repay, as our mishna implies. But in "issur v'heter" he is chayev to repay.