שבת דף ה' עמוד ב'. And as we know the whole perek talks about the melachah of הוצאה, the melachah of carrying, and we know that the conditions of when you are עובר on the melachah of carrying whether it's הוצאה, carrying from רשות היחיד to רשות הרבים, or הכנסה רשות הרבים to רשות היחיד, or ד' אמות ברשות הרבים, you're carrying ד' אמות 4 אמות רשות הרבים, or when you're throwing, the same thing, the condition is, you're only חייב if you did an עקירה and an הנחה. If you picked it up from a resting place, let's say by הוצאה, you picked it up inside the the רשות היחיד, carried it out to רשות הרבים and you put it down, so you made an עקירה and an הנחה, you're חייב. If you didn't make an עקירה and an הנחה, if you made only one of the two, you're עובר מדרבנן, but you're not חייב מדאורייתא. So here the Gemara talks about certain things, what's considered an הנחה, putting it down, what's not. So the Gemara says like this, אמר רבא מים על גבי מים היינו הנחתן. Water on top of water is called an הנחה. If you take some water out, let's say from this is there's a a puddle, and you take some water out from the top, you did an עקירה. And עקירה is from a מקום הנחה, from a מקום מונח. Same thing, if you take some water and put it down on the puddle of water, it's called an הנחה. אגוז על גבי מים לאו היינו הנחתו. If you have a nut that's floating over the water and you take the nut and you take it out from the water, let's say in רשות היחיד, and you take it out to the רשות הרבים and you put it down, it's not called מונח, it's not called that it's resting and therefore, you did not make a הנחה עקירה. Same thing, if you take a nut and you put it down in the other רשות on top of the water, לאו היינו הנחתו, it's not hanacha. It doesn't have to be moving when you pick it up? Uh? Even if it's not moving, it is it is it's resting. It's not called hanacha, why? Because the water is not like the sun. I mean, just saying it very superficially till we get the water is not stable. It's not concrete. So it's not called hanacha.

Tosafos here asks, it says, on the גמרא אגוז על גבי מים לאו היינו לאו היינו הנחתו, if you have the nut on top of the water that's not called מונח, not called resting, so Tosafos asks a kashya. ואף על גב דאמרינן בפרק קמא דבבא מציעא the first perek of Bava Metzia it says ספינה מינח נייחא ומיא דקא ממטו לה. Now Tosafos needs explanation, it really would be good to have the Gemara, okay, it's okay. The Gemara Bava Metzia. The Gemara Bava Metzia talks about this klal. This is why it's important because the shiur mainly is going to be more on the Gemara Bava Metzia than here, more on חצר המהלכת, but it's noge'a to answer this kashya. There it talks about a חצר, קנין חצר. קנין חצר means, we know, that if a person wants to be makneh something to somebody, I want to give you something, so you will have to make a kinyan. So there are all kinds of kinyanim. One of the kinyanim is if I put it down in your chatzer, if you have a yard, chatzer doesn't mean a yard, a house, and I put something down into your house, you are koneh. The same thing, a person is koneh with chatzer from hefker. If something hefker, that doesn't have an owner, falls into my reshus, into my chatzer, I'm koneh it. There's a there is a condition also, when is a חצר קונה, and this is going to be noge'a to later, is if it's חצר המשתמרת. It has to be a yard which is guarded for my sake. Let's say a yard which has a wall around it, which is closed, or I'm standing next to it and I'm watching. So anything that comes in and I'm watching it, it's koneh. So you have to be a chatzer, and it's koneh, and חצר המשתמרת. So here the

Gemara says that if someone puts something down on somebody else's behemah, the behemah is like his chatzer, because the din is if I have a keli and someone puts something into my keli, my keli is my chatzer. Lichorah, my behemah is also my chatzer. My eved, eved kena'ani, belongs to me, is my chatzer. So what would be the din if someone puts something down on my behemah? So I should be koneh al pi chatzer. So the Gemara says, no, חצר המהלכת היא. It's a chatzer that's able to walk. וחצר המהלכת לא קנה. A chatzer that walks is not koneh. And then the Gemara continues, וכי תימא כשעמדה, you might say that if it's standing, it could walk, but it's not walking. What's walking? What's a chatzer walking? The behemah is a chatzer It's called a chatzer, and a behemah is walking. מנחת על חמור. A behemah is, yeah, lichorah, it's the din of a chatzer. So, he says, even if it's standing, because כל שאילו מהלך לא קנה, עומד וישב לא קנה. If it could walk, and you're not koneh, so even if it's not walking, but the standing, sitting, you're not koneh. Eino mishtameret. No, not because of mishtameret, because חצר המהלכת. Not mishtameret, it's והלכתא בכפותה. The halachah is if the behemah is tied, that it can't walk, it's takeh a chatzer Or the or the eved is tied and he can't walk, and you put it on, you are koneh it. זאגט די גמרא ווייטער, אמרו ליה רב פפא ורב הונא בריה דרב יהושע לרבא, so רב פפא and רב הונא בריה דרב יהושע said to רבא, אלא מעתה, now that you told me that a חצר מהלכת, any חצר that belongs to me, but if it's moving or it could move it's not קונה, היו מהלכים בספינה, if you're going in a ship, וכסו דגים, and fish which are הפקר jumped in, ונפלו and fell into the vessel, הכא נמי דחצר מהלכת היא ולא קני? You'll tell me so it's a moving חצר and you're not קונה it? אמר ליה, he said to him, no, ספינה מינח נייחא, the ship on the water is really resting, ומיא הוא דקא ממטלו לה, the water is making it go. Mimaila it's not it's considered resting, it's not considered a חצר מהלכת. And the same thing the Gemara continues, אמר ליה רבינא לרב אשי, to רב אשי, אלא מעתה היתה מהלכת ברשות הרבים, a woman was walking in the street, and if you want to divorce your wife, על פי הדין you could just, not חרם Rabbeinu Gershom, על פי הדין you could just write a get and throw it to her, and the moment it falls in she's קונה it, falls into her hand or falls into her חצר, she's קונה the get and she's divorced. What happens if she's walking, וזרק לה גט לתוך חיקה או לתוך קלתה, and you threw while she was walking, you threw it into her or you threw it into her basket, she's carrying a basket on her hand or on her head, you know, the סל, and הכא נמי דלא מיגרשא, is she not divorced? אמר ליה, no, קלתה מינח נייחא, her basket is not moving, the basket is standing, ואיהי דקא מסגי תותיה, and she is the one moving, right. But the first thing that the Gemara said was that by a ספינה, which is an object floating over the water, so the Gemara said that is called munach. That is called resting. So Tosafos here by us, no, Tosafos in Bava Metzia also asks it in kushya, but Tosafos here in Shabbos asks: how could the Gemara say here אגוז על גבי מים is not munach, if the nut is floating over the water it's not called resting, אף על גב דאמרינן בפרק קמא דבבא מציע, we say in בבא מציע, ספינה מינח נייחא ומיא דקא ממטלו לה, the ship is considered resting and the water is moving? Tosafos answers: לגבי קנין שאני. Teirutz, it's different dinim. By a kinyan there is a different din that there we don't care that it's moving because of the water, because דלא יקרי חצר מהלכת, because חצר ילפינן מיד, ויד נמי אי מסגי תותה קא ממטי לה. Chatzer, the kinyan chatzer is learned out, the Gemara says, from yad. Just like you could put in someone's hand, the chatzer is an extension of the person. The yad Tosafos says is the same thing. The yad is you are walking, and the yad is is is also moving, but not by itself, it's moving because of you, and the yad is koneh, so the chatzer also. The teirutz of Tosafos, the

bottom line is vos iz noge'a here to the shiur. Tosafos asks the kushya and gives a teirutz that chatzer is the din of chatzer is different. Tosafos continues and brings another thing which is also a problem with our Gemara. The Gemara says here, רוכב כמהלך דמי. קיימא לן רוכב כמהלך דמי. It says like this: if you see a talmid chacham coming walking, you have to stand up. If the talmid chacham is standing, you don't have to stand up. So the Gemara asks what happens if he's riding? So he is not walking, he's not moving, the horse is moving. So we say רוכב כמהלך, that the riding is like walking. That fits to our Gemara. Just like we say that the water is moving, so anything that's moving on top because of the water, the Gemara says is called moving. The nut is not munach, the nut is not called resting. Just like over there that the talmid chacham was riding a horse is not called resting. So it's another also a kushya to the Gemara in Bava Metzia. Gemara Bava Metzia says that if the bottom is moving and the top is not, and it's the top is moving because of the bottom, it's called resting. So again, by chatzer it's a special din, over there it's different. But what I want to bring out to the shiur is one thing. In sefinah it says, where does the Sefinah fit in? There it says that a Sefinah is munach. And here the Gemara says that egoz is not munach. The egoz and Sefinah is the same thing. The difference is the egoz is small and the Sefinah is big, but the same idea: an object floating on water, is that called resting or not? Yeah, but over there with the ship, that's not that's not the that's not the object of what we're examining. Yes, we are. The ship is the keli. What we're examining is what goes into the ship. No, no, we examine the chatzer. The ship is a chatzer. The ship is the chatzer, but the the the thing that we're חשיבות the thing that we're interested in is what jumps into the chatzer. The fish. No, of course, that's the object what you're koneh, yeah. But the she'eilah is whether is is if the חצר קונה or not. That's the result. The result is what whether you're koneh or not, that's the result. נוגע is נוגע, is it mehalech or not. But the Gemara says that it's not called mehalech, it's called omed. And our Gemara says that the nut is called mehalech. It doesn't say the word mehalech, but it's not. Anyway, I'm not trying to get to the teretz of Tosafot. Moving water in a pond? No, it's also... It's it's it's... is it, it's not, not stable. Right. The keli of the get, the get is the חשיבות, is the issue that. No, it's not also the keli. No, we're not talking, the get is the get. We're talking, is the kinyan of the get, that came through the chatzer, is it a moving chatzer or not? Because if it's a moving chatzer, it's not koneh. If it's a standing chatzer, it is koneh. And we consider this a standing chatzer. And Tosafot's answer: חצר by, by, by קנין חצר, it doesn't matter if it's moving, as long as it's moving because of something else. What's the difference between a puddle of water... moving, and an animal that's tied up... also moves around. No, exactly, you make it not move. In one place. No, but you make it it shouldn't be able to move. And this couldn't move. How do you know that it's tied and it can't jump? Yeah, that's what he says. כפות is since it's כפות it can't move. That's all it is. No, but what he's asking is, it can't move, it can't walk ten feet away, but it could... Can move, so you tie it so tie it up it shouldn't move at all. I mean, what I want to say is, yeah, tie is up that it's not שייך it should move. What I'm trying to bring out is that as as I will explain, that I think according to the Rambam, Tosafot's kashya is no kashya to begin with. So I'm not going into the teirutz of Tosafot. I'm going into the kashya of Tosafot. And Tosafot finds a teirutz to make a chiluk because of יד, but I want to say that according as we will explain peshat in Rambam in the Gemara here in Bava Metzia, we'll see that the kashya from Bava Metzia to from Bava Metzia to Eruvin is no kashya according to the Rambam. It's only according to Tosafot is the kashya. Where do we see it? So let's start off in this דין that a חצר המהלכת is no good, therefore by a בהמה, if you put on a בהמה it's not קונה, unless it's tied. Tosafot in Bava Kamma, דף י״ב, Tosafot says that besides the בהמה being or the עבד being tied, he has to be asleep. And Tosafot says, why? Tying takes care of the problem of חצר המהלכת, a חצר that walks. There's another problem: חצר המשתמרת. It has to be watched, watched for you. So the fact that he's awake, it's make he's watching it for himself, so to speak. So even if you'll be standing next to him, it's not a real חצר המשתמרת לדעת of the person. He has to be asleep, that takes care of חצר המשתמרת. So therefore, the halacha is, when is the בהמה or the עבד קונה as a חצר? If it's כפות, tied, and ישן. The Rambam, the Gra actually ערגעץ וואו writes that רמב״ם חולק, but if you look through different, we're not going to go through the different details, but the Rambam in quite a few halachot, three times at least, where the Rambam says that it doesn't have to be ישן. Which means according to the Rambam, כפות takes care of both problems. Tying it automatically is okay. That's what the Rambam, the Rambam says clearly if he's awake and you're standing next to it, and he's tied, you are קונה. The אישה she קונה the גט or whatever it is, you are קונה. But why wouldn't you say, sir, it's watched if it's awake? It's tied up and you're standing right next to it. So? What's the issue? The fact that it's watching. The fact that that the fact that it's that it's able to look itself and it's... So that, we're going to have to go through the whole thing. But wait, please wait till the whole thing. I'm just saying the dinim. So Tosafot learns it has to be both and the Rambam does not. What's the nekudah here of the machloket between Tosafot and and the Rambam? So we got to go, if we want to understand the machloket by חצר המהלכת, we have to understand what is the problem of חצר המהלכת. In order to understand what is the problem of חצר המהלכת, we got to understand, what's חצר? Okay? So let's start, just want to say that what I'm trying to get to is whether the problem of חצר המהלכת, let's use these two words, is a problem of העדר or a problem of שלילה. What's the difference of העדר and שלילה? We all know that. What does העדר mean? I'll explain. העדר means not, שלילה means not. Is there a difference in not? There's a difference. Something that it's not shayach to begin with, it's not into the picture to begin with. And then there's either it is, but there's a problem with it. The example always given: during the day, there's light coming in. If you close the shades, that's שלילה. You're שולל. Negate. Negate the the light. At night, there is no light. That's העדר, there is no no light. Or the the the mashal of of of a candle. The candle burned down, no more candles, it's העדר of the of of light. When you extinguish the candle in the middle, that you're שולל the light. So that's it. So העדר means it's lechatchilah not that. שלילה means it's that, but there is a problem, and that's why there is there's there's something that's stopping, something that's ruining it. And we find that in halachah many times. I'll tell you where בכלל in what kind of halachot. Whenever we find a halacha that there is two things, two conditions to a certain din, so there's a possibility one of them is the reason for the din and the other one is only a condition. And the shaylah is which one? And I'm I'm going to give an example in a second. If the one that the ikar reason for the din is missing, so lekulei alma the din is not there, it doesn't have the reason for it. If the other one which was only the condition means the reason, the din is there, That since there's a certain condition missing, it's not. I'll give you an example in a different halacha, it's nothing to do with this, but just, and this is a famous thing cause we're talking, I mentioned Bava Kamma, Bava Kamma we find we learn about ממונא המזיק. If your ox caused damage, you have to pay for it. There are two things, two conditions have to be there: has to be yours, and it has to be that you didn't watch it. If you watched it, and nevertheless some something happened and it was able to be mazik, you're not chayav. Or even if you watch if you if you didn't watch it, but it's not yours. And the shaylah is always and that's a big chakirah, and the Rebbe has about it a whole letter of long letters, as the Rebbe I mentioned it once before, I told you the whole history behind that letter, I remember there was a guy, Nachum Zevin, was a bachur, now he's a very elderly man, he's a rav in the in the south, the einikel of Rav, Rabbi Zevin, Shlomo Yosef Zevin. So he sent him to 770 to learn, he learned in Ponevezh', he sent him to 770 one year to learn, so he stayed in my room, he was my roommate, and they he went into yechidus, and the Rebbe spoke to him in learning, and when he came out of yechidus later on, he he wrote something to the Rebbe בהמשך, so on that letter the Rebbe answered him, and the Rebbe answered him full a whole page, small small writing and going into another page, and remember he couldn't read a word, he couldn't understand it, so I remember I sat down with him and we copied over the whole letter, word for word, because I was familiar with the Rebbe's handwriting, and that's how it got printed in Likkutei Sichos. So in that letter the Rebbe goes very arichut, very deep lomdishe letter, but the nekudah the Rebbe speaks there about is: What is the main reason why you are chayav for the damage that your animal does? Is it because ממונו הזיק? Anything that belongs to you that causes damage, you are responsible. There is a condition: if you watched it, then you we don't make you pay. Or the opposite: the reason why you're chayav is because you didn't watch it. There is a condition: if it's not yours, then we can't blame you for it. And the Rebbe brings there nafka minah's, halachot. The Rambam seems clear, the Rebbe doesn't bring the Rambam, but for the Rambam the Rambam says clearly in the beginning of הלכות נזקי ממון, if your בהמה is מזיק, חייב, שהרי ממונו הזיק, your ממון. So I'll give you an example, like if somebody, if your child breaks someone's window, they'll come out to you and ask you to pay. Why? You didn't do it. Why should you pay? Your child! So in halacha that's not true. In halacha if a קטן breaks, the father is patur. But in if you go in court, what will be? They'll make the father pay. Why? Why liable? Because it's your responsibility, it's your it's yours, it belongs to you. The בהמה is yours, you're responsible. Ela mai, if you watched it and it was against to what you tried, or the sevara is not, not because of ממונו, it's just a side thing, you're responsible you have to watch it and you didn't. When do you have to watch it? If it's yours. The she'eilah is here, what happens if one of the conditions is missing? So let's assume that the main let's give an example, the main condition is ממונו, because it's yours, and it wasn't yours, is that העדר or שלילה? You're patur. You're patur whichever condition is missing. That's העדר, because the whole the whole reason you're chayav, because it's yours, it's not yours. But let's say it was not, but you didn't watch it, but I mean you watched it, so you also patur. It's not because there is no the reason for chayav is there, but there is a reason to be patur, there's something to fix up. So this is given as an example that what's called העדר and what's שלילה. The same thing by חצר המהלכת, I want to I want to think, if חצר המהלכת, what's the, it's not a חצר, or it can't be קונה? You could say it doesn't fit into the category of a חצר. Whatever we'll see why the sevara, but just want to get to the point. Could be a חצר is if it's not מהלך, if it's מהלך, it's not a חצר. That's העדר. It's not קונה, why? Because just like if it's your hand not mine, of course it's not קונה for me, why? Because העדר, it's not mine, there's no reason to be קונה. Same thing here. Or maybe not, a חצר to be קונה is a חצר even if it's מהלך. There's a problem with the קנין, because of some side reason it cannot use the קנין, so it's not קונה. You can say it

starts out as a chatzer, but now since it can't be קונה, it's not a chatzer. Why is it not a chatzer? If it's a chatzer, it's a if a ראיה other things it could be קונה, whatever it's But you can say you can say either way, I'm not saying there's no הכרע to either way. To understand is חצר המהלכת העדר or שלילה, it depends what the problem with חצר המהלכת is, then we'll see. To know what the problem with חצר המהלכת is, let's see what is the reason for chatzer. So with chatzer, we spoke already last shiur or two shiurim ago, I forgot already, we spoke about how a chatzer is קונה, why is a חצר קונה? Especially when we say חצר משום שליחות, according Gemara asks, right? Chatzer comes from יד, or chatzer comes because of chatzer is like your shaliach? And the Rambam פסק'נט חצר like your shaliach, according it says חצר משום יד, and a גט משום, whatever. The bottom line is, how could a chatzer be your shaliach? Makes no sense. That was that's what I explained last time, a chatzer can't be your shaliach because a shaliach has to be a Yid, shaliach has to be a gadol, not a katan. So how could a בהמה, how could a, I mean, a a piece of ground be a be a shaliach? So I explained that the pshat is, how is a shaliach a shaliach? Why is a katan not a shaliach? So the pshat is, a shaliach you'll only say that he's battel to you. He gives over. A goy cannot be battel to a איד. Can you shut that off, Mike? That's not first class. A קטן, know why he can't be a shaliach? Because a

קטן has enough שכל to be a מציאות, but not enough שכל to be מבטל himself. A גדול has more שכל than a קטן. A גדול is more מציאות of a יש, and not battel to the משלח. But since he accepted the מינוי, the the the appointment of the שליחות, he has שכל to be מבטל. Isn't an עבד כנעני בטל though? Huh? An עבד כנעני is battel. An עבד כנעני is takeh battel, yeah. Can we say because he's a goy, that's that's everything, because he's an עבד. An עבד כנעני can't be a... A goy can't be battel, you said. Yeah, an עבד... עבד כנעני is battel. Yeah, but since he's a goy, that kind of bitul, no, it's bitul means to become one with you. He is battel to you, וממילא then it's נתאחד. A goy can't be נתאחד, and a עבד כנעני can't be נתאחד either. What about a קטן, a young קטן who doesn't have any, you know, mechusar daat, like nine, under nine, under six, or whatever the case is? A person is a metziut. Yeah, but they're not... So it comes out like this. Except that he's a chacham. Doesn't matter. As chacham as he is, under bar mitzvah he doesn't have enough daat. That's a problem. You could say why is he patur from from other other punishments if he's a smart katan and he's twelve and a half? We say that the the cutoff line is a katan is not daat, he can't be mevatel. So it comes out like this, see. The reason for a katan is because he has he has daat, not enough. A chatzer, your chatzer is the best shaliach. Because your chatzer doesn't have any daat at all, so how about a bitul? And that's why I mentioned last time that the

Ri Avuhav in in Bava Metzia in the דין of chatzer, says that a chatzer is אמיתית השליח. The real shaliach is a chatzer, even though we can say the word shaliach. Okay. So, we know one thing: how the chatzer works. Okay, now we came to a conclusion, that the chatzer is koneh for you because he is batel to you. When something comes into the chatzer, the she'eilah is how does that work? How does that work? How is the kinyan work? So you could say two ways. You could say one way, because he is batel to you, he is in your place, like like your shaliach, and when he is koneh, it's koneh for you. So he is koneh for you because he is batel. That's one way to learn. There's another way to learn why how it works: not because he is koneh for you. When you put something down in the chatzer, it's ke'ilu it becomes part of the chatzer. If the chatzer is yours, then mimela that part of what's yours. So it's not that the chatzer is making the קנין. First you say that why a חצר is a חצר, because it's בטל. Now, how the קנין works, then you could say two ways. You could say the קנין works because since he's בטל to you, he's your representative, he's part of you. Just like you could be קונה, he is קונה, so there is a regular קנין that's done. And the other way is that, just like when you put it down in רשות הרבים, על דרך like I keep on saying in Shabbos, that why do you need an הנחה, what's the reason for an הנחה, because when you put it down it's ke'ilu, because otherwise, I didn't want to go through the whole thing again like last last time, to say מלאכה גרועה, there's no real change in anything, but if you pick it up and you put it down, that's like a change, you actually plant it ke'ilu, whatever. Same thing here, when you put something down in someone's חצר and the חצר is so בטל to the guy, it becomes מושרש in the place. So it's not that the חצר is קונה for you. It becomes נתאחד with the חצר, וממילא it's here. Includes everything that he... Everything, yeah. So it's but not that it's a special קנין. The nafka mina between the two ways will be, when we get to it, now that we're getting to it, חצר המהלכת, what's the problem? If you learn חצר is קונה because since he's בטל, and he's קונה because he קונה for you, you could say like this: חצר המהלכת is not בטל. Since he's מהלכת על דעת עצמו, it's the לשון Rambam, it goes, the fact that it goes, it has its own דעת, it and the going expresses דעת עצמו. So what's the problem? No ביטול. It's not a חצר. חצר, the whole מציאות of a חצר is it's בטל. If he's מהלך על דעת עצמו, it's like a חצר נישט. So a חצר מהלכת is not a chatzer. The other way you can learn not like that. The reason is because when you put something down, it becomes part of it. חצר המהלכת, you can't be משריש. You could only be משריש something, you can only root if something is stable. But something is is not stable, is moving, so since the second way we're learning the pshat is why does the chatzer work, because when you put it on, it becomes part of the chatzer. For that, you have to have it should be מהלך, it should not be מהלך. So it comes out according to this pshat, it's a chatzer. חצר המהלכת is, according to this pshat, we're not looking if it's a problem because it's מהלך על דעת עצמו. That's not the problem. The problem is that you can't you can't be koneh it. The kinyan is a problem, not the chatzer is a problem. So it doesn't work, it's שולל it. The chatzer is there and it's fine chatzer, only what it's שולל it comes out. So it comes out it is a chatzer, but the chatzer cannot be koneh because a chatzer is there. I I think according to this you can explain a machloket between the Raavad and the Tosafot HaRosh. Here on this Gemara, when the Gemara asks in Bava Metzia about the woman, that the woman that walks and you throw it into her basket, lichorah it's a חצר המהלכת. How come she's divorced if it's a חצר המהלכת? And then we answered it when it's really not moving. So the Raavad asks a שאלה: How does the Gemara know that she's koneh? The Gemara asks why is she koneh, it's a חצר המהלכת, maybe she's koneh on ד׳ אמות? There's a din that anything that comes within the ד׳ אמות of a person, you're koneh it. Since the the basket is in her hand, so it's definitely within the ד׳ אמות, so she's koneh on ד׳ אמות. Answered the Raavad, ד׳ אמות is only קונה if you're standing. But if you're walking, there's no קנין ד׳ אמות, and here she's walking. Fine, that's a normal answer. Comes the Rosh, the Rosh says, \"No, I'll give a different answer. ד׳ אמות is only קונה when there's no קנין דאורייתא. ד׳ אמות רבנן makes, it's קנין דרבנן. When is ד׳ אמות קונה? When there is no קנין דאורייתא involved. When there is a קנין דאורייתא, it doesn't allow the קנין דרבנן to work. So since there is a חצר she has, ד׳ אמות doesn't work.\" That's what he answers. Make any sense? We said it's a חצר The קשיא in the Gemara was it's a חצר המהלכת. A חצר המהלכת is not a חצר. So there's no קנין דאורייתא. What does he mean that you can't have the קנין דרבנן because it's a קנין דאורייתא? And דאורייתא, if there's דאורייתא, it doesn't work. So I'm, and so I'm saying this is the מחלוקת. That's why the Raavad doesn't want to give this תירוץ. That he holds that it's שליחות, that it is a חצר, it just comes a problem. So ממילא there is a חצר here. If there is a חצר דאורייתא, he says the דרבנן doesn't work. But the, the Raavad doesn't give the answer because he doesn't accept, he says there is no חצר here, you can't give such an answer. There is a חצר here? אלא מאי the חצר does, there is no חצר here. If there is no חצר here, why can't the ד׳ אמות come in? So he gives an answer that when you walk, there is no ד׳ אמות. So I'm just trying to show that we could have these two ways. Okay. The difference, one of the differences between these two ways what the problem is, is comes out like this: this could be the

difference between the Rambam and Tosafot whether you have to have him sleeping, because the problem of חצר המשתמרת that it's not משתמר, what is that problem? We were talking about חצר המהלכת what's the problem. What's the problem of חצר המשתמרת that it's not משתמר? There, I want to say, I don't think אף אחד פליגי, לכאורה, that for sure is because the חצר is not batel. If it's not משתמר to you, it's not batel. If you learn חצר המהלכת is also because he's walking on his own mind, it's not batel, the problem of חצר המשתמרת and the problem of חצר המהלכת is the same problem. If you learn that חצר המהלכת the problem is because it can't be נשתרש, it's a different problem. Not because it's not batel, it's a different problem. חצר המשתמרת the problem is that it's not a חצר. חצר המהלכת is a חצר according to that, but just you can't be קונה that way, you can't be משריש it. So Tosafot will learn that חצר המהלכת is the way not of bitul, it's pashut a problem of the kinyan. It doesn't take care of the bitul. So Tosafot says you got to take care of the חצר המשתמרת, because it has to become batel. If it's not חצר המשתמרת, it's not batel. You got to do something else. So how do you take care of the problem of חצר המהלכת? Tie it up. How do you take care of the problem of חצר it should be משתמרת? Go to sleep. The Rambam learns the other way, I'm saying. The Rambam is going to learn that חצר המהלכת the problem is because it's not batel. So the same problem is חצר המשתמרת. So he says when you are tying it, you're doing a פעולה of tying, you took care of both problems. So therefore, it has to be the guy stand there, that's beside the point, but this thing itself is no סתירה to the bitul because the tying is for the purpose of being מבטל it. So that פעולה takes care of both. So if we're going to learn like that, that the Rambam goes with this שיטה, that the

problem of חצר המהלכת is because it's not battel, and the problem of חצר of the Tosafot learn the problem of חצר המהלכת is because it's because no, for the Rambam it's not a חצר, according to him because it can't be נשתרש, you know what the נפקא מינה will be? According to the Rambam, we don't care if it's called מהלך, it's called walking. The sefinah that's moving and the Gemara says why is it not a חצר המהלכת, because it's sefinah is resting and the water is making it, according to the Rambam the Gemara doesn't have to mean that the sefinah is resting, the sefinah is moving! But the Gemara is trying to say it's not moving on its own. The whole problem of חצר המהלכת is if it's moving on its own, so that shows that you're an own מציאות, you're not battel. זאגט די גמרא: what's the problem with sefinah? The sefinah on its own is is not moving, so it doesn't have. It's only moving because of the water. So that's not a problem of חצר המהלכת. Tosafot that learns that the problem is because it's, since it's moving you can't put it down, So when the Gemara says that sefinah is resting, what does that have to mean? That the sefinah is resting. Because if it's moving, we don't care why it's moving. So therefore, for some reason, we have to say we look at it as if it's resting. But the Rambam doesn't learn like that. The Rambam will learn ספינה מינח נייחא means the sefinah, the boat on its own is resting. איי, it's moving? It's takeh moving! But it's moving because of something else, so it's not. And the whole problem of חצר המהלכת is it's not battel. Why is it not battel? Because it's moving, but it's not because it's moving, it's moving on its own, so it has its own מציאות. זאגט די גמרא, no, it's not moving on its own. אשריכם תוספות. Tosafot says the problem is the movement, the problem is not that it's on, the problem is the movement. If the problem is the movement, then when the Gemara says it's not a problem, must be it's not called moving. It's not called it's not called it's called נייח, it's called standing in one place. And we takeh see, we look at the Rambam when the Rambam brings this Gemara with the ספינה, the Rambam write doesn't write the words ספינה מינח נייחא. And how the Rambam tries to stick to the לשונות of the Gemara. The Rambam says, it would be it would be so to speak better, the Rambam, he says, that the ספינה... Here. ז׳, הלכות זכייה ומתנה, קניין. קניין. הלכות זכייה ומתנה, הלכה ה׳, פרק ד׳ הלכה ה׳. There, the Rambam doesn't quote the Gemara, what the Gemara says... Yeah. Rambam, ספר קניין. The Rambam doesn't say it! The Rambam says that it's not moving on its own, it's takeh moving, the water is making it move. But it doesn't say the word מנח, it doesn't say it's resting! Let's see, we'll find it in a second, if not, we're not going to waste time. Yeah, הלכות זכייה ומתנה, פרק א׳, הלכה... Here it is. Look at this. ״דגים שקפצו לתוך הספינה״, it's mefurash, this this this a fish jumped into this boat. ״קנה בעל הספינה״, ״שזו כחצר המשתמרת היא״. Okay? ״ואינה כחצר המהלכת״. Now, the Rambam would quote the Gemara, what would he say? ״אינה כחצר המהלכת״ ״שהספינה מונחת״? ״במים״. All he says is the second half: ״שהמים הם שמוליכין אותה״ ״ואינה הולכת מחמת עצמה״. Clearly! It doesn't mention the word that it's that it's standing! Farkert, he says clearly, he said it's going! The water is making it move! The problem is that the water The reason why it's not מהלכת, the water is making it move! And that only fits the way I'm explaining. Why? Because the problem is not the going, going represents metziut, which mimela can't be batel. But that's only if it's going on its own. If someone is pushing it, I don't care if it goes, it's still קונה. But the And how do we taytsh the Gemara? ״ספינה מינח נייחא״, איי the Gemara says it's resting? The Gemara means that on its own it's resting. ספינה a ship rests. And in this case the water makes it go, that's why it's going. According to Tosafot, the Gemara means pashut ״ספינה מינח נייחא״, that we look at it as if the ship is resting. That's why Tosafos has a kashya. Tosafos has, how come by the ship we say the ship is resting and here by the אגוז, by the nut, we say it's not הנחה, it's not מונח? It's a good kashya, why? Because Tosafos learns pshat in the גמרא ״ספינה מינח נייחא״ means the ספינה is resting. Because if it wouldn't be resting, it would be a חצר המהלכת. So it's not resting! But there's a סתירה: here it's not resting, here it is resting. Tosafos has to find a teretz, because by by kinyan we have different גדרים, different dinim, we learn from יד. According to the Rambam, there's no problem to begin with. Because according to the Rambam, it's takeh it's takeh moving! So לגבי חצר, the fact that it's moving is not a problem as long as it's not moving on its own. By Shabbos, if it's moving, it's not הנחה. So there's no question to begin with. And... No. I hear what you're saying, but Tosafos said that only because it's a limud from יד. You don't have to come According to the Rambam you don't have to say because it's a limud from יד. And יד is also the same, Tosafos says. Because the יד is is in one place and the person is moving. According to the Rambam you don't answer anything. There's no kashya to begin with. The Gemara never said it's resting. It's מפורש moving, so what's the problem? No, I I hear what you're saying, you could see like Tosafos had a shaila because of... But Tosafos's answer is a different teretz. Tosafos here and there, because יד נמי, hier in der Gemara, Maseches Sukkah kumt es for. Basket's like the ship. Like the ship. Yeah, the Gemara's comparing with the ship. And it's interesting, in that halacha where the Rambam says about חצר המהלכת, not here with the חצר המהלכת, not לגבי ספינה, so by an עבד למשל, what the Rambam says you have to tie him up, and by בהמה you have to tie up, and the reason he says, the Rambam says that a true can go, so the Rambam says it shouldn't be able to walk. A הלכה right before that, the Rambam talks about something else, it talks about an עבד also, and there he also mentions, and there he says clearly that the עבד is a problem because he's מהלך לדעת עצמו. He doesn't speak about חצר, he speaks about a different קנין, but he says clearly, there he talks about קנין אגב. We have a few minutes, maybe I'll explain what it says there. And there he says the problem of the עבד is because he's מהלך, he walks לדעת עצמו. Right after that he brings this דין that the עבד is a חצר המהלכת, and he says because he's walking. A minute ago he wrote the problem of walking is because לדעת עצמו, so I assume that the Rambam, when he writes the next הלכה and he mentions another problem, it's also because of דעת עצמו. According to Tosafot, it's nothing to do with דעת עצמו. He's walking. Walking's a problem, you can't smash is it, מה שאין כן according to the Rambam, so what's the case over there? The case over there is קנין אגב. What's קנין אגב? If I want to be מקנה to you קרקע and מטלטלין, land, real estate, and and then מטלטלין, so the דין is that if you make a קנין on the קרקע, you don't have to make a קנין on the מטלטלין. And the Gemara in Kiddushin

asks a שאלה, do they have to, does the מטלטלין have to lay in the קרקע? The Gemara says no, the מטלטלין could be here, could be the קרקע could be here, you make a קנין. Then the Gemara asks, do you have to say אגב? Do you have to use the term, \"I'm קונה the מטלטלין אגב קרקע\"? So the Gemara answers, the Gemara says, הלכתא צבורין לא בעינן אגב וקני בעינן. It doesn't have to be צבורין, doesn't have to be laying inside, but you have to say the word אגב. Comes the Rambam gantz tzu'dreyt, the Rambam says like this, that if you have the the מטלטלין laying in the קרקע, you don't have to say the word אגב. Where? If it's not laying you have to say אגב. Comes the Raavad, I don't know what he's talking about. The Gemara made a clear statement, you have to not have צבורין, and you always have to have אגב. So the mefarshim, the Rambam learns pshat in the Gemara differently. They go together: צבורין לא בעינן, that's why, since you don't need צבורין you need אגב, but if there would be צבורין you don't need אגב. And the Raavad learns no, it never needs צבורין, and it always needs אגב. So the way the mefarshim explain, some mefarshim, what's the מחלוקת between the Rambam and the Raavad? What's the logic behind the קנין of אגב? So the

Rambam learns the logic behind the קנין of אגב is that the מטלטלין become בטל to the קרקע. They become בטל to the קרקע. So the Rambam That's how the Rambam learns. The Raavad says it has nothing to do with bitul, it's a special type of kinyan. So the Rambam learns like this, how is מטלטלין בטל to the קרקע? One of the two: or it's standing inside, if not standing you say אגב, you are מבטל it so to speak, you make it בטל. So that's what the Rambam learns, that since the whole din of kinyan אגב is bitul, so he understands peshat in the Gemara that why you have to do why if it's צבורין you don't need אגב, the only reason the Gemara says you need אגב is because if it's not inside, how is it בטל? Through saying אגב. But the the Raavad learns it has nothing to do with bitul, so he says it's a clear din, צבורין... This peshat in Rambam will look... Problem with moving, though, in that case. Ah, one second, we're not talking about moving yet. מטלטלין is not moving, and the קרקע. Then there's a halacha in Rambam which probably is another machloket in Rambam and the Raavad which is connected to this probably to this peshat. The

Rambam says like this: what happens if an עבד is standing is is קונה an if you want to be קונה a קרקע and an עבד? So the Rambam says that by the עבד you could be קונה only if it's צבורין and you say אגב. חזק. And he says why? Because the eved goes לדעת עצמו. The eved goes himself. And the Raavad says no, what's eved different? It doesn't have to be inside and you could be koneh by saying agav. The peshat is like I said, the Rambam learns that the reason for agav is bitul, and an eved, even if you say the word agav, he's still, why? Because he's מהלך, he has דעת עצמו, and he says he walks, he walks for himself. So there you got to have both, you got inside, agav, you got to hack him around there, be מבטל him. And the Raavad says it has nothing to do with bitul, so what's the difference between an eved and something else, you don't have to say it. That's the last halachah. Right after that halachah comes the halachah of חצר המהלכת of an eved. And he says an eved is no good, he can't be חצר המהלכת because he's walking. If you look at it, what was the reason for the previous halachah? What's the problem of walking? Because he's not בטל! So I want to say the next halachah is again the same problem. Why is he walking? He's not בטל. Not like Tosafot, that the walking is a problem because you can't put it down on a set place, because it's מהלך לדעת עצמו. That's what...

Why doesn't the Rambam say this, too? No, because it's two different halachot. This is קנין אגב, קנין חצר. Because how did he state it? No, he already said what the problem of מהלך is. He did say it, but the fact that he didn't say it here is showing you it's different. In other words, if he would say the second time also, I would be very happy. But if he didn't say it, there's no problem, because the Rambam doesn't have to always taytsh, especially when he just comes בהמשך, because that means, a lot of times we look into what's the המשך of the halachot. The המשך of the halachot, even though this is a קנין חד, אגב one, then he started a new הלכה, הלכה ב, קנין אגב, בקנין חצר on the halachot. And say, once that כלי because the the bitul combines the two. And that's why there's another din. He's saying something else, the fact that the Rambam didn't I hear, I hear what he's saying. I hear what he's saying, good. Not that So I said, if he'd write it, it would be very, very good. It would be too good. I think it's good like this. That is, I wouldn't make it too good, so I would have too much pleasure. That's true. But we have another din in the Rambam which also, there's another place in the Rambam by שטר, where if you put if you sell a guy a קרקע, and you're מקנה the שטר, if I remember correctly, the Rambam says you don't have to, by the שטר of the קרקע, you don't have to have צבורין, you don't even have to say אגב, and he's קונה the שטר.

Why? Because the whole reason why you need צבורין, these or אגב, is because it should be בטל. The שטר of the קרקע is לכתחילה בטל. It's the שטר of the קרקע. If someone is מקנה with the שטר, the שטר of the קרקע is לכתחילה בטל. Right? That that's the שטר of the קרקע. The שטר says I'm selling you the קרקע. It's the שטר of the קרקע, so it's a it's a it's the best bitul. There you don't need anything if the whole reason of of צבורין and אגב is for bitul. But לגבי what's נוגע to this ענין, that this, if the עבד problem is the מהלך לדעת עצמו, and therefore it could be considered walking בלא דעת עצמו, as long as it's not לדעת עצמו. And the same thing by the ספינה. Mimeila, according to the Rambam, there is no setira in the Gemara. Right. Okay. What about What about the bitul in the latter part with the Rambam?