Baba Basra 8b - Forcing for Tzedaka

Tosafos raises the question how rava was able to force r' nasan to give tzedaka, this seems to break the rule that we don't force for a mitzvah aseh when the reward is written explicitly in the torah? Tosafos offer 3 answers. 1. He didn't really forced, just coerced with strong words. 2. The community accepted upon themselves that he would force them to give tzedaka. This implies that the din torah doesn't obligate the beis din to force for מצות עשה שמתן שכרה בצדה, but there isn't any issur in doing so, therefore the community is entitled to accept this upon themselves. 3. In addition to the aseh, there is also a l'av so the forcing was for the l'av (R"I). 4. Although Beis din isn't obligated to the point where they are punished for being lax in this area, they still maintain the right and ability to force if they choose to (Ritzva"h).

R' Elchonon (kovetz shiurim 48) asks on the third answer of Tosafos that by tzedaka we apply the principal of osek b'mitzvah patur min hamitzvah, as we see from the exemption of peruta d'rav yosef in perek eilu metzius. Since the concept of osek b'mitzvah only works to exempt from a positive mitzvah, but not from an issur, how can we apply this to tzedaka where there is a l'av? In my sefer nasiach b'chukecha (page 57) I quoted the Beis Yakov (nesivos on kesubos 49b) who asks this question. Both the beis yakov and r' elchonon answer by using the ramban in kiddushin 34a who says that sometimes a l'av is not independent and is only there to support the aseh. Therefore, in the context of עוסק במצוה פטור מן המצוה we regard tzedaka as an aseh so that one who is osek in another mitzvah is exempt from tzedaka [Alternatively, R' Elchonon says that עוסק במצוה פטור מן המצוה may apply to any mitzvah that is lost passively בשב ואל תעשה even if it is a l'av, which would explain how it applies to tzedaka].

I quoted from R' Zalman Nechemiah Goldberg Shlit"a, who asks that if tzedaka is indeed regarded as an aseh based on the ramban that the l'av is merely there to support the aseh, why does tosafos say that we would force for tzedaka due to the l'av - the l'av is not independent, it is just a support for the aseh? Rav Zalman Nechemia explains that in the context of עוסק במצוה פטור מן המצוה, the person who is osek b'mitzvah and exempt from the aseh of tzedaka is automatically exempt from the l'av which is only there to support the aseh. But in our context where he is obligated in the aseh, just that we have a rule not to force for an aseh that has the reward written next to it, the fact that there is a l'av that is also violated entitles beis din to force him so that he won't be in violation of the l'av.

Baba Basra 6b - Chazaka on a Sukkah

The gemara says that generally if a person builds a succah type structure which infringes on his friends property, their is a grace period of 30 days in which the owner graciously permits the machzik to use the area and doesn't have to protest. But, after that grace period has passed, if the owner doesn't protest, the machzik will have a chazaka to be able to claim that he purchased the rights of use. But, if the succah is built for succos, then immediately after the 7 days of succos passes, the lack of the owners protest enables the builder to claim that he purchased the right to leave it there permanently (this is according to rashi, but the hagahos ashri cites other opinions that it is 7 days in addition to the 30 days).

Tosafos points out that in truth the builder doesn't have a chazaka after 7 days, he only has a chazaka after 8 days since on the 8th day which is shemini atzeres it wasn't possible to remove the succah. The Ya'avetz asks what compels Tosafos to say that he will not have a chazaka until the eighth day is over. Perhaps we assume that the owner would have allowed him to use the space for the mitzvah, but as soon as the mitzvah ends the owner is expected to protest. The fact that the owner fails to protest would not enable the builder to claim that he has acquired permanent rights to this area?

It would seem that Tosafos holds that although the owner can make a macha'ah to protest the succah immediately after the 7 days pass, even before the 8th day ends, he is not expected to do so. Why? Because he is well aware that his protest is futile. The owner can claim that for the duration of succos he allowed the machzik to fulfill his mitzvah; on day 8 he also did not protest because he knew that his protest would be in vain since the machzik could not remove the succah until after succos. Therefore, Tosafos holds that the owner has the right to protest through day 8. From this we can learn that even after one has been machzik for enough time to create a chazaka, it is only effective if by the owner protesting he could have forced the machzik to leave. But in a situation where the owner could not have forced the machzik to leave, such as when the chazaka concludes on a shabbos or yom tov, the owner is not expected to protest and is given an extra day to voice his protest.

Baba Basra 5b - Zerizin before the z'man of the mitzvah

In my sefer nasiach b'chukecha (page 3), I mentioned that Tosafos in Baba Basra implies that zerizin applies even before the z'man of the mitzvah comes, which seems to contradict other places where the concept of zerizin seems to only apply once the obligation of the mitzvah exists. See also page 103 for a discussion of when zerizin applies.

I see now that i was mechaven to R' Elchonon (kovetz shiurim 28) who asks this question. How can Tosafos suggest that one would pay early by pidyon ha'ben to avoid a tirda even though no specific person can claim the money from him due to zerizin makdimin, there is no obligation at all before 30 days, and it is not even possible to fulfill the mitzvah within 30 days? If for example the money would not be in the hands of the kohen at the end of the 30 days, the pidyon won't take effect, so why should we assume that a person would pay early? Why should zerizin apply prior to the time of the mitzvah?

Perhaps Tosafos holds that although zerizin wouldn't make sense by pidyon haben within 30 days, it would apply immediately at the conclusion of 30 days. Meaning, the din zerizin doesn't require paying 5 selah within 30 days, but it would require making sure that as soon as the z'man mitzvah comes, it has already been taken care of. By most mitzvos where the ma'aseh hamitzvah is THE mitzvah, it is impossible to set it up early so the zerizin wouldn't apply at all until the z'man mitzvah arrives, but by pidyon we find that if it was paid within 30 days and is still around at the end of the 30 days, the pidyon takes effect. Therefore, Tosafos may hold that the din zerizin would require of him paying within 30 days so that as soon as the z'man comes the child is automatically redeemed at the earliest possible moment. This concern would create a tirda within 30 days to pay. However, the minhag is clearly not like tosafos because we don't find practically that anyone pays the pidyon haben within the 30 days. The proof against tosafos is the gemara in pesachim 4a by avrohom where he got up early in the morning but didn't travel the night before. Although he could have made the preparations by travelling the night before to enable himself to do the mitzvah as early as possible, Avrohom held that the din zerizin didn't require him to do that (see what i wrote in nasiach b'chukecha page 103 regarding the issue of zerizin the night before).

Baba Basra 3b - Destroying A Shul

The gemara says that one cannot destory a shul until the replacement is rebuilt. The gemara quotes 2 reasons for this issur: 1. Negligence - maybe an o'nes will occur (rashi) that prevents the building of the new shul. 2. No place to daven - in the meantime there won't be anywhere to daven. The Shulchan Aruch (152) paskens like the first reason, therefore it would be assur even if there were another place to daven. But, the m.b. (5) says that when there is another shul in town that can fit the entire tzibur, the taz is matir, but the magen avrohom is machmir. The biur halacha explains that one can rely on the taz since we are only dealing with an issur d'rabonon, and many rishonim are matir even according to the first reason when there is an established shul to daven in, not just a place to daven (tosafos). Based on this, a shul has a heter to close in order to rebuild so long as there are other shuls in the community that can hold all the members of the one that is rebuilding.

The gemara says that the entire issur only applies when the shul is in good condition, but if it starting to rot and therefore not functional in it's present state, one can destroy it to build another. The gemara says that the only heter that hurdos had to rebuild the beis hamikdash (based on baba ben buta's advice), was that it was starting to rot. The m.b. (2) proves from here that even if the intent is to make a much nicer shul, it is assur so long as the first one is still functional. However, the Taz (quoted in m.b. 9) is liberal about the definition of "rotting". The Taz holds that when the first shul is too far from where the community lives such as outside the wall of the city - אין לך תיוהא גדולה מזו, and it can be rebuilt in a more appropriate location. Similarly, Tosafos explains that a summer shul in winter or visa versa, can qualify as "tiyuha" and allow one to rebuild.

It is important to note that the entire sugya of destroying a shul, is only considered an issur d'rabonon because it is being done for constructive purposes i.e. to rebuild another in it's place or elsewhere. BUT, when the shul is being destroyed for a destructive purpose, it is an issur d'oraysa, at the m.b. (11) points out - לא תעשון כן לה' אלקיכם. The biur halacha explains that this not only applies to items that are attached to the ground, but even destroying movable items such as the bima and amud are an issur d'oraysa. The maharam padawa is matir that the removal of the tangible items from the shul is not a violation of this issur, since it is not destroying the actual structure (unlike the removal of bricks).

Baba Basra 2b - Monetary liability for Kelaim

The gemara quotes from braisa that if one fails to fence their vineyard thereby causing the adjacent produce owned by someone else to become assur as kelayim, the owner of the vineyard is responsible to pay for the damage. Tosafos questions, why is the owner of the vineyard liable to pay, it should qualify as a hezek sh'eino nikar - an unrecognizable damage, which is not considered a damage? Tosafos answers that even if the damage isn't recognizable in the object, so long as the context of the situation looks like a damage i.e. the vines growing near the produce without a fence separating, it is considered a hezek that is nikar and the owner is liable. Tosfaos asks, if this is considered "nikar", why do we considered it to be an unrecognizable damage when one takes a sheretz and places it on his friends taharos, there too the context of the situation should qualify as a hezek nikar? Tosafos answers that since tu'mah requires not only contact between the sheretz and the taharos, but also requires hechsher (fruits to become moist willingly to be susceptible to tu'mah), that aspect is still not recognizable and therefore qualifies as a hezek sh'eino nikar.

The question is, Tosafos just got finished saying that kelayim is not merely a situational issur of mixing produce and grapes. Kelayim is only created if the owner "wants it". Based on this, Tosafos explains that so long as the owner is doing whatever possible to build a fence, even though the kelayim grew .5% prior to the fence being erected, it is not considered a kelayim violation. Since kelayim also has it's own set of prerequisites to be assur - only if the owner fails to put in the effort of building the fence, which is not necessarily recognizable, we should consider kelayim a hezek sh'eino nikar, just as we consider tu'mah a hezek sh'eino nikar (due to the lack of recognition that it became huchshar l'kabel tu'mah)?

Tosafos apparently holds that by kelayim the issur is a metzius of growth. We don't require the consent of the owner to create the issur, just that if the owner makes an effort to build a fence and shows that he doesn't want the kelayim, the issur can be avoided. Tu'mah requires a positive act of hecsher to create the status of tu'mah, therefore it is considered eino nikar, but kelayim doesn't require a positive act to be assur (rather, a positive act to repair the fence will prevent the issur).

Baba Metzia 117a - Attic Owner Living in House

The mishna describes a situation where reuven and shimon share a house, reuven lives on the lower floor and shimon lives on the upper floor. If the house falls down and reuven refuses to contribute toward reconstructing the ground floor, so that shimon cannot rebuild the upper floor, the tana kama says that shimon can rebuild the ground floor and live there until reuven compensates him for the expense. Rav Yehuda argues - אף זה דר בתוך של חבירו צריך להעלות לו שכר, and holds that shimon can rebuild the entire house and then live in the upper floor (according to tosafos) not allowing reuven into the ground floor until he compensates him for the expense.

Rashi explains that R' Yehuda doesn't allow shimon to live in the ground floor because it is considered ribbis. Meaning, we view it as if shimon lent money to reuven by reconstructing his house. Eventually, reuven will compensate shimon for expenses, so if shimon also benefits by being able to live in reuven's house he is essentially taking ribbis from reuven. Tosafos disagrees because this is not at all considered a loan from reuven to shimon. Tosafos holds that if a fire were to break out in the lower house, it would be shimon's loss, not reuven's. However, R' Shlomo Villna in the cheshek shlomo cites from baba kama 20b that the house is in fact the responsibility of reuven, so that reuven would suffer a loss if the house were to burn down. Based on this, when shimon rebuilds the house for reuven it should be viewed as a loan, so that when shimon would receive compensation in addition to living there it should be a ribbis violation. Why then does the tana kama allow shimon to just rebuild the ground floor and live there until reuven fully compensates him?

The Cheshek Shlomo holds that the opiniono of the tana kama in the mishna is a strong proof to the Rif in teshuvos cited by ba'al ha'terumos that any loan that is given as a benefit to the lender rather than the borrower is not considered a loan in the context of ribbis violations. Even though it is technically a loan and reuven would suffer the loss in case of fire, reuven is not interested in borrowing, rather shimon was interested in lending - there wouldn't be any ribbis violation with this type of loan. He then concludes that the gr"a in shulchan aruch 166 actually cites our mishna as the source of the rif's opinion.

Baba Metzia 116b - Splitting the sticks and stones

The Mishna says that when the collapsed house belonged to reuven and the collapsed attic belonged to shimon, we have to do our best to determine whether who most likely deserves the whole bricks and who deserves the broken bricks. Rashi in the Mishna explains that if the house collapsed due to a faulty foundation so that the bottom brick broke and the upper bricks came down on top of them, we can assume that the broken bricks belong to reuven who lived on the bottom, and the whole bricks belong to shimon who lived on the top. But if the wall of the house fell like a stick, so that the upper bricks came crashing down, we can assume that the broken bricks are from shimon's attic, whereas the whole bricks belong to reuven. However, Rashi in the gemara (d.h. reisha) explains differently than he does in the mishna. Rashi in the gemara says that if the foundation gives way, the upper bricks belong to shimon who lives on the top (regardless of whether they are broken or whole). It comes out that when the foundation gives way, rashi in the mishna implies that reuven who lives on the bottom would get the broken stones, whereas rashi in the gemara implies that he would get the lower stones even if they are whole?

Baba Metzia 115a - La'av Hanitak L'aseh

The gemara has a principal that one does not receive lashes for a la'av that can be fixed up through the performance of an aseh. Tosafos understands the mishna to be saying that one would receive malkus for taking a mill as a mashkon, since the mill contains 2 components, which are considered separate and independent parts regarding the violation. Tosafos asks, Why should one receive malkus at all since the rationale behind the prohibition is that these are ochel nefesh type items (meaning they are needed for his livelihood), so can potentially be fixed by returning them so that there should not be malkus associated with this violation at all? The proof that Tosafos cites for this being a לאו שניתק לעשה that one doesn't receive malkus for is the story quoted on 116a where a person took a shechita knife as collateral and Abaye commanded him to return it. Tosafos at first understands that the only rationale for returning the item would be that it is a לאו שניתק לעשה. Ultimately Tosafos concludes that it is not a לאו שניתק לעשה and the only reason that Abaye demanded that it be returned is that the lender didn't realize when he took it that it was assur, so that he was never ko'neh it as a mashkon, and therefore it had to be returned.

Regarding taking ochel nefesh type items as a mashkon, there is a machlokes rishonim. Tosafos 113 d.h. v'es, holds that any item that is needed for livelihood, may not be taken at all as collateral. However, the Maharsha quotes many rishonim who disagree with Tosafos and hold that it may be taken as collateral but must be returned when the borrower needs them to use for his livelihood. See also Hagahos HaGra on tosafos who quotes that the Ramban and Rashba hold that it may be taken but must be returned when needed, whereas the Ramabm agrees with Tosafos that it may not be taken at all. Now, the entire assumption of Tosafos that the reason abaye must have insisted on returning the ochel nefesh collateral was because it is a לאו שניתק לעשה, it lishatasam. Had Tosafos held like the Ramban and Rashba there would be no proof at all from the story of Abaye because abaye was merely telling the person that the standard rules of this type of mashkon is that it must be returned when the borrower needs it.

Tosafos also assumes that if we would say כל מילתא דעביד רחמנא אי עביד לא מהני then it would make sense that Abaye would demand returning the mashkon, since he wasn't allowed to take it, the taking was ineffective. There is a big discussion in achronim (chavos da'as and R' akiva eiger in hilchos shechita) whether אי עביד לא מהני applies when the issur won't be fixed. Meaning that אי עביד לא מהני may only apply when we say that by not taking effect the issur will not have been violated. Based on that principal, it is a big chiddush for tosafos to assume that אי עביד לא מהני would apply here. Even if the kinyan doesn't take effect, there is certainly some issur violated by taking an item of the borrower that should not be taken - if not for the issur of לא תחבול there would be an issur לא תגזול. Yet, Tosafos assumes that since אי עביד לא מהני would help avoid לא תחבול, even though it will cause לא תגזול, we can still apply this principal to prevent the lender form acquiring the collateral.

Baba Metzia 114b - Techiyas Hameisim and Pikuach Nefesh

In the story with Eliyahu Hanavi, he justified being in the cemetery even though he was a kohen (as rashi explains that he was pinchas, but tosafos questions whether he was truly a kohen or just pushing off the sho'el). Eliyahu's justification was that non-jews aren't metamei b'ohel (Tosasfos holds that we don't pasken like this, rather we pasken that they are metamei b'ohel - shulchan aruch y.d. 372:2 paskens that "it is proper to be careful and not go over a gentile grave", rama says that some are meikil but it is good to be machmir).

Tosafos asks: How was Eliyahu allowed to enter the ohel of the child of the widow since he was a kohen it should be forbidden for him to be metamei? Tosafos answers:

ויש לומר שהיה ברור לו שיחייהו לכך היה מותר משום פיקוח נפש

Tosafos holds that Eliyahu's heter was based on pikuach nefesh. But why does Tosafos need to say that Eliyahu was "certain" that he would resucitate the child, since even a safeik of pikuach nefesh also overrides all issurim in the torah?

I once wrote an article where i used this tosafos to make what i believe is a very significant point. The gemara in Yoma 84 discusses the source that pikuach nefesh pushes off issurim. One of the sources that the gemara uses is חלל שבת אחת כדי שישמרו שבתות הרבה, that it is worth sacrificing one shabbos for many. But, the gemara ultimately concludes that the heter is based on וחי בהם ולא שימות בהם. The gemara prefers this source because it serves as a source that even safeik pikuach nefesh over rides shabbos, but all the other sources only justify definite pikuach nefesh. It seems to me that there is a limitation on the source of וחי בהם ולא שימות בהם, in that it only allows one to preserve life, but to resucitate one who is already dead may not qualify as pikuach nefesh and one would not be entitled to violate an issur in an attempt to restore life. Our Tosafos who cites the rationale of pikuach nefesh to justify how Eliyahu was able to enter an ohel ha'meis to resucitate the child, must be relying on the drasha of חלל שבת אחת כדי שישמרו שבתות הרבה, meaning that for the net gain of this child keeping many mitzvos in the future (as the biur halacha explains in hilchos shabbos that this concept can be generalized outside the realm of shabbos), Eliyahu was justified in violating the issur of tu'mah. Since the concept of this heter is that there will be a net gain in shemiras hamitzvos, there is no reason to make and distinction between preserving a life and restoring a life - based on this Tosafos can cite pikuach nefesh as the source. But, as the gemara in Yoma says, this source only justifies definite pikuach nefesh, it doesn't justify safeik pikuach nefesh. That is why Tosafos is very meduyak - שהיה ברור לו שיחייהו - that Eliyahu was confident that he would succeed in resucitating the child, because if it were only safeik pikuach nefesh he would not be allowed to violate the issur tu'mah.
It seems to me that this may also be the machlokes brought by the Ran in Yoma (3b b'dapei HaRif) who cites a machlokes whether one is allowed to be mechalel shabbos for a fetus when it won't be pikuach nefesh for the mother(although the Ran's medical opinion is that this is not possible). The opinion who allows one to be mechalel shabbos for a fetus has to deal the the gemara in nidah that doesn't consider it to be a full life (such as one who aborts isn't chayev misah). The Ran quotes that in respect to mitzvos however we say that one can be mechalel shabbos to save it, because it may lead to keeping many mitzvos in the future. Others disagree and say that one can only be mechalel shabbos when the mothers life is at risk. It seems that all agree that the concept of וחי בהם ולא שימות בהם doesn't apply yet since the fetus is not a full life. But since there is potential for mitzvos, the rationale of חלל שבת אחת כדי שישמרו שבתות הרבה would indeed apply. The two opinions in the Ran disagree as to whether we rely on the חלל שבת אחת כדי שישמרו שבתות הרבה even when וחי בהם ולא שימות בהם doesn't apply [Although the Ran says that it is permitted to save the fetus because it MAY come to keeping mitzvos, he may only permit in a case where the attempt to save the fetus will definitely save the fetus just that we don't know if the fetus will be keeping mitzvos. But for a safeik pikuach nefesh, meaning a safeik as to whether the fetus is in danger or a safeik whether the efforts will help, doesn't warrant chilul shabbos. However, it is more likely that the Ran disagrees with Tosafos and holds that we combine the sevara of וחי בהם ולא שימות בהם and the sevara of חלל שבת אחת כדי שישמרו שבתות הרבה to be matir even a safeik when the fetus isn't yet a full life).

Baba Metzia 112a - Paying Babysitters Ontime

The mishna says that for any worker who is hired by the hour, one only has the remainder of that time period to pay. If one would hire a babysitter for a few hours at night, the money must be payed before morning, otherwise the employer would be in violation of לא תלין פעולת שכיר אתך עד בקר. It is true that if one doesn't have money, he is not in violation of this issur, but it is hard to justify that a 5 minute trip to the closest ATM machine is considered not having money [even if the employer has the option of collecting a debt that is due, the shulchan aruch considers as if he has money, and would be in violation for not paying his worker. The chofetz chaim (ahavas chesed 1:9: footnote 21) is mesupak even if one is capable of borrowing he may be obligated to do so in order to pay his worker, but even if he isn't obligated he should borrow to be mechayev himself and enable himelf to fulfill the mitzvas aseh of b'yomo ti'tein s'charo]. Therefore, it is important to realize that this can be a d'oraysa violation.

Even if the babysitter isn't tovei'ah the money - often young girls are embarrassed to ask for their payment, there would still be a violation. Although the gemara says that the issur only applies if the worker asks for payment, the chofetz chaim (ahavas chesed 1:9:footnote 29) explains that since the limud is from אתך - לדעתך ולא מדעתו, meaning by the worker not making a claim he is indicating that he agrees to the delay. This only applies to a case where the worker is not claiming because he is agreeing to a delay, but if the worker is just embarrassed to ask, it is not considered to be m'da'ato and therefore the employer is in violation of this issur. Furthermore, the chofetz chaim cites the sha'ar mishpat that when the worker doesn't claim the employer avoids the la'v but is still in violation of an issur.

Even if the babysitter is less than Bar/Bat mitzvah, the chofetz chayim (ahavas chesed 1:9:footnote 16) proves that there is an issur even by a child. From the fact that the Rambam writes that a worker who is a child can swear to collect his payment during the time that the should be payed, which implies that after the time passes, the employer has the upper hand, as the gemara 113a explains. The Rambam implies that the employer has the upper hand even by a child. Since this is based on the chazaka that the ba'al habayis would not be in violation of בל תלין, we see that there is a violation of ba'al talin even to withhold the payment of a child. The chofetz chaim points out that one may not even delay the payment of a child worker, and certainly if he would promise to pay something (even as little as a candy) and not follow through, it would be a d'oraysa violation. I am not sure if this same prohibition would apply to one's own child. If one would tell their son or daughter that they will pay them for a chore by taking them for ice cream, would they be obligated to keep their commitment that same day? In a case where it is understood that they won't be going for ice cream that day (such as when they had fleishigs for dinner), it is similar to the gemara 111a where the expectation of waiting for the market day, will enable the employer to avoid the issur, so too here the parent would avoid the issur. But what if it is possible to go for ice cream that day just that the parent is too tired (happens to all of us!) - is there an issur d'oraysa?

baba metzia 110b - hiring a worker through an agent

The gemara says that if one uses a shliach to hire a worker, the employer would not be in violation of b'al tin for not paying the worker on time. Furthermore, the gemara cites amoraim who would davkahire workers through an agent to avoid the issur just in case they would not be available to pay when the time came (tosafos) [why doesn't tosafos say just in case they forgot to pay? This implies that forgetting to pay would not be a severe issur that would warrant such a precaution].
The rashash asks why don't we say shlucho shel adam k'moso, as we always do to b mechayev the employer. the rshash explains that ein shliach l'dvar aveira doesn't apply since the ma'aseh aveira is not violatd by hiring the worker, rather it is violated by the employer himself when he fails to pay. just as one who has relations with the mother of a woman he was mekadesh through a shliach is chayev and we don't apply the concept of ein shliach l'dvar aveira just because it was set up through a shliach.
i think that the rashash is muchrach according to tosafos in kiddushin by me'illa - 42b (?) - who says that when shliach is shogeg we say yeish shliach l'dvar aveira because the sevara of divrei harav vdivrei hatalmid doesnt apply. here too it certainly doesnt apply since the shliach doesnt expect the employer to delay payment.
Rashi seems to understand that it is almost a gezeiras hakasuv that the worker is not called a 'sachir' of an employer unless he hired the worker himself.

baba metzia 108b - doing what is straight and good

rashi holds that v'asisa hayashar v'hatov is the buyers obligation, not the seller. based on this rashi explains that there is no valid complaint against one who sellsto a goy since a goy is not required in v'asisa hayashar v'hatov. but rashi struggles with trying to understand the gemara that says a talmid chochom comes before a neighbor. if it would be a mitzvah of v'asisa hayashar v'hatov on the seller it is possible that his mitzah to honor a talmid chochom would take priority over v'asisa hayashar v'hatov. but sincecit is a mitzvah on the buyer, it doesn't make sense to prioritize talmid chochom because he is just as chayev in v'asisa hayashar v'hatov as anyone else. therefore rashi and tosfos explain the gemra to be where v'asisa hayashar v'hatov because both r neighbors or both aren't neighbors, and the whole discussion is an issue of prioritizing which is indeed incumbent on the seller and therefore makes sense for a talmid chochom to get priority.

Baba Metzia 106a - Davening with Wrong Intentions

The gemara says that when the sharecropper deviates and plants barley when he was supposed to plant wheat, it is considered to be the loss of the sharecropper, because the owner can claim (as rashi explains) that he was davening for success for wheat, not for barley. Rashi is very meduyak - ואני לא בקשתי מן השמים בתחילת השנה שיצליחני בשעורים אלא בחטין

The focus on the "beginning of the year" is that even though the land owner realizes that the sharecropper planted barley rather than wheat and from the time of planting he was davening for barley, he can still claim before the planting season he has already been davening to Hashem for success in wheat, not barley and perhaps that is the tefillah that would have been listened to.

This idea that the tefillah will only work for what you are davening for explicitly and not merely what you are intending for is found in rashi in chumach (parshas chukas 21:1) - וישמע הכנעני מלך ערד, where rashi explains that they were amaleikim dressed as Cananim so that the Jews should daven that they should defeat Canan when in fact they were fighting with amaleik so their tefillah would be useless. The Mesech Chochma makes the connection to our gemara. He explains that even though they would have surely davened against amaleik had they known that it was amaleik, tefillah doesn't work when you are davening for the wrong thing. If not for our gemara it could be that the cheshbon of the amaleikim was wrong and the tefillah does in fact work, but from our gemara we see that their cheshbon was actually correct.

We learn from here that when we daven, although it is important to make the tefillah specific (as we see from chazal in the way the instituted the shemoneh esrei asking for specific requests, not just "all good things" - this is also clear from tosafo d.h. l'nisah, that if one davens very generally for success, it is not a strong tefillah so Hashem is less likely to listen and he therefore has no claim, but when he davens for something specific Hashem is more likely to listen and therefore he has a claim), we should leave our tefillos open enough so that if we are mistaken about certain facts, the tefillah will still be applicable, rather than limiting the tefillah based on facts that will be realized to be wrong rendering the entire tefillah futile.

Baba Metzia 102a - Shiluach HaKan

The gemara discusses some of the parameters of the mitzvah of shiluach hakan. It is clear from the pesukim that if one would take the eggs and the mother, he would be in violation of a la'v and an a'seh - לא תקח האם על הבנים, שלח תשלח. If one would take only the mother, and leave the eggs behind - depends on the definition of על in the pasuk - is it like עם so that the torah is only saying that you can't take both, or is it an issur to take the mother while it is on the child? Rashi in chumash says that the pasuk means to say לא תקח האם בעודה על בניה, clearly holding that one will violate the issur even by taking the mother bird alone. The chacham tzvi (83) disagrees with rashi and holds that there is no l'av for taking the mother alone because the pasuk just forbids taking the mother "with" the children. The minchas chinuch (545) proves that rashi is correct from the gemara in chulin 141a that tries to find a case where there would be an aseh without the l'av. The only case the gemara was able to come up with is when you take the mother with the intent of sending it away, and then decide not to. From the fact that the gemara didn't say the simplest of cases such as where you only took the mother and left the children, implies that there is in fact a l'av even for just taking the mother.

When one takes only the children and leaves the mother there is definitely no l'av, but the gemara seems to learn out from the pasuk of שלח תשלח את האם, והדר, את הבנים תקח לך, that there is an issur d'oraysa (issur that develops from an aseh) to take the children in the presence of the mother. The minchas chinuch quotes the rambam (mechira 23:11) who implies that it is only a "gezeiras chachamim", but not an issur d'oraysa to take the children and leave the mother. The minchas chinuch asks that the doesn't understand where the rambam gets this idea from that it is only an issur d'rabonon? However, the strength of the question of the minchas chinuch is that the simple reading of the gemara implies that it is d'oraysa (as the shita mikubetzes writes explicitly), but fails to bring any proof from the gemara itself. It seems to me that the gemara itself strongly implies that it is d'oraysa, because the gemara asks, what is the case where there would only be gezel d'rabonon for taking the eggs - if he sent away the mother, the chatzer acquires the eggs and it would be gezel d'oraysa, and if he didn't send away the mother הא בעי שלוחה - he needs to send it away. Rashi explains that there is a chiyuv to send away the mother, why is it only a problem of gezel d'rabonon. Now, if the chiyuv of sending away the mother rather than taking the eggs is only d'rabonon, what is the question of the gemara - mabye the gemara prefers to say the issur gezel d'rabonon rather than the issur of taking the mother which is d'rabonon. It must be that it is a mitzvah d'oraysa to take the children without sending away the mother -then the question would be why do we consider taking the children to only be gezel d'rabonon, it is a d'oraysa violation of a לאו הבאה מכלל עשה. This proves that it is an issur d'oraysa like the minchas chinuch assumes, not just d'rabonon.

Baba Metzia 102a - Mezuza as a shemira

I am copying and pasting a short piece from a kuntros i have on hilchos mezuza.

המקור שאין עיקר התכלית של המזוזה להיות שמירה לבית בעצם הוא ממש"כ הרמב"ם (פ"ה מהל' תפילין הל' ד') וז"ל אבל אלו שכותבין מבפנים שמות המלאכים או שמות קדושים או פסוק או חותמות הרי הן בכלל מי שאין לו חלק לעולם הבא, שאלו הטפשים לא די להם שבטלו המצוה אלא שעשו מצוה גדולה שהוא יחוד השם של הקב"ה ואהבתו ועבודתו כאילו הוא קמיע של הניית עצמן כמו שעלה על לבם הסכל שזהו דבר המהנה בהבלי העולם עכ"ל. והקשה הכס"מ מהגמ' בע"ז יא ע"א ממה שאמר אונקלוס הגר, וכתב בשם הרמ"ך דאונקלוס הוא דאמר להו לאחשובינהו לישראל, אבל לאו אמת היא. אכן, הכס"מ כתב שבגמ' מנחות לג ע"ב מבואר שהוא לשמירה מדקאמר שמניחו בטפח הסמוך לרה"ר כי היכי דתנטריה. וכן יש להוכיח מב"מ קב ע"א שלא יטלנה בידו ויוצא, ומעשה באחד שנטלה בידו ויצא וקבר אשתו ובניו, והטעם כדפרשו התוס' שם שהמזיקין באין לבית אשר שאין בו מזוזה, לכן כשנוטלה הוי כאילו מזיק אותן שידורו בבית. לכך כתב הכס"מ דאין הכי נמי שהמזוזה שומרת הבית כשהיא כתובה כתקנה, לא המלאכים הכתובים בה מבפנים, וגם אין הכוונה בעשייתה לשמור הבית אלא צריך שיכוין לקיים מצות הקב"ה וממילא נמשך שתשמור הבית עכ"ל. הרי סובר שתכלית המזוזה הוא למצותה אלא שממילא יש בה שמירה. אכן, משמע מהכס"מ שהשמירה הנובע ממזוזה שייך במזוזה טפי מבשאר מצות, אבל במהר"ץ חיות בב"מ קב ע"א השוה שמירת המזוזה לשמירה הבאה מהתורה "בשכבך תשמור עליך", וכן שאר מצות כדאיתא בסוטה כא ע"א דבעידנא דעסיק ביה אגוני ומצלי, משמע שאין שמירה יתירה במצות מזוזה מבשאר מצות התורה

והנה, נראה פשוט מכל הנ"ל דבמקום שהוא פטור ממזוזה לא שייך לקבוע מזוזה לשם שמירה בעלמא, דכיון דמצוה ליכא, שמירה נמי ליכא שהרי השמירה אינו תוצאה של מציאות המזוזה, אלא היא תוצאה ממצות מזוזה. לפיכך תמהני עמש"כ בספר דעת תורה ממהרש"ם בשם השבו"י (ח"ג ס' פ"ט) דאף במקום שהוא פטור ממזוזה יכול לעשותו לשימור ולא מקרי הדיוט. ואפשר שכוונתו למש"כ בס' רפ"ו הע' כ"ט דבמקום שיש ספקא דדינא משום פלוגתא דרבוותא אף במקום שהוא פטור מעיקר הדין, אפשר שיש מעלה דשמירה אליבא דאידך וכדאי להחמיר. מ"מ באופן דליכא קיום מצוה נראה שלא שייך שמירה, והראיה לזה מפרש"י במנחות לב ע"ב בד"ה היו, גבי בית מונבז המלך שעשו מזוזות בפונדקותיהן שהיו לנין בו ואין חייבין במזוזה, והטעם שעשו מזוזות פרש"י וז"ל ותולין אותן בפונדק במקל עד הבקר זכר למזוזה, שלא היו דרין לעולם דירת קבע אלא הולך היה מעיר לעיר במלכותו עכ"ל. הרי דחק רש"י לפרש הטעם שתלאו מזוזה משםום זכר בעלמא דשייך רק באנשים שלעולם לא היו דרין בדירת קבע, ומדלא פירש בפשיטות שהיו נוהגין לעשות כן לשמירה, משמע דבדליכא קיום מצוה ליכא שמירה בזה

Baba Metzia 98b - Shliach of the Borrower

The mishna says that if the lender sends his animal in the hands of his messenger or son, if the borrower didn't tell him to send it in the hands of that person, the borrower isn't responsible until he actually receives it. But if the borrower told the lender to send it in the hands of the lender's son or messenger, as soon as it leaves the reshus of the lender, the borrower assumes full responsibility for it. Clearly, the mishna considers even the "shliach" of the lender, who the borrower never even spoke to, to be a shliach of the borrower so that the borrower assumes responsibility as soon as it leaves the jurisdiction of the lender. Through what mechanism does this "shliach" of the lender, turn into the shliach of the borrower? The Ritva suggests 2 possibilities: 1. Although normally that concept of זכין לאדם שלא בפניו only applies to a zechus, not a chov. Here, where the borrower says to send it, he is agreeing to assume responsibility immediately. Therefore, we would say חבין לאדם שלא בפניו מדעתו - meaning that with the consent of the individual we can allow zechiya even for something which is a chov. 2. It is working using a similar concept as "omer imru" (6th perek of gittin - the ritva himself doesn't make the connection but this is how i understand what he means). Reuven can tell Shimon to tell Levi to serve as Reuven's agent, therefore the borrower tells the lender to have the "shliach" serve as the shliach of the borrower.

The gemara discusses how the non-jewish eved of the lender can serve as the shliach of the borrower. Tosafos raises a question based on the gemara 96a that a slave can fill his master's shoes to consider it a case of שאלה בבעלים, so when the lender sends his eved we should exempt the sho'el due to שאלה בבעלים. Tosafos (and Ritva) explain that the case on 96a where the gemara discusses whether a shliach of the lender and the slave of the lender qualify as שאלה בבעלים, is only when the initial agreement is that the lender himself should work for the borrower, but decides to send his agent or eved in his place. But, if the initial agreement between the borrower and sender is to send the animal in the hand of the eved, it is not שאלה בבעלים, rather it is like borrowing 2 cows (cow + eved). The Ritva is bothered according to the second approach, under what circumstances would we consider the eved to be working for the sender and therefore creating a case of שאלה בבעלים to exempt the borrower, and when do we consider him a shliach of the borrower? The Ritva says that if the lender forces his eved to go, against the will of the eved, he is clearly working for the owner (who is accepting an obligation to work for the borrower) thereby creating a case of שאלה בבעלים. The eved can't be working for the borrower against his will, because the borrower doesn't have the power to force the eved of the lender to work. But, if the eved is given a choice, and on his own agrees to the masters request (when the master says that the borrower asked me to ask you to bring him the cow), the eved becomes an agent of the borrower to make the borrower responsible immediately and it is not שאלה בבעלים.

Baba Metzia 95b - Shei'la B'bailim

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

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

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

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

Baba Metzia 94a - Stipulating agains the Torah

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

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

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

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

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

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

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

דאין לפועל קטן זכות אלא כשנותן לתוך פיו

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

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

Baba Metzia 91a - Latzeis Yidai Shamayim

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

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

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

Baba Metzia 90a - Amirah L'nachri

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

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

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

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

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

Baba Metzia 88b - Mitzva To Save the Whales

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

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

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

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

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

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

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

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

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

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

Baba Metzia 87b - Bracha on sucking a fruit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A. On 30b the gemara quotes the pasuk of

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

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

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

Why?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Baba Metzia 77b - Status of a Nizuk

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

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

Baba Metzia 75b - Heterim for Ribbis

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

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

Baba Metzia 69b - Hiring someone to be an cosigner

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

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

Baba Metzia 69a - An extra third of payment

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

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

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

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

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

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

Baba Metzia 66b - Looks Like Ribbis Ketzutza

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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