גמרא here in בבא מציעא דף כ"א yeah, דף כ"א עמוד א, which is still in the סוגיא of ייאוש שלא מדעת. Well, we have the מחלוקת between אביי and רבא. ייאוש שלא מדעת means, like we said last time, normally we know if a person is מתייאש, a person gives up hope and someone else finds it, you could keep it. The question is, what happens if you picked it up, you found it, before the loser, the one that lost it, realized that he lost it? So when you picked it up, he wasn't מתייאש yet. So the גמרא says like this, I'm repeating it because it's נוגע to the ענין: If we're talking about something that has a סימן, everyone agrees that you can't keep it. You picked it up before he was מתייאש, and it's something that has a סימן, we don't assume he's going to be מתייאש. Therefore, even if it turned out that the end was that after, when he found out that he lost it, he eventually was מתייאש, too bad, you can't keep it. Even רבא agrees to that. Huh? You gotta announce it, you gotta whatever. How can you guard it? You announce it, it's a דבר שיש בו סימן, has a סימן, you gotta announce it. Keep it, yeah, yeah. Then

there's another דין, זוטו של ים, שלוליתו של נהר. If a ים overflowed, then, for sure, everyone agrees, even אביי agrees, that even he didn't know that he lost it, and you found it before he found out, you could keep it. Because the תורה was מתיר, and the גמרא brings in דף כ"א עמוד ב where the תורה was מתיר. Mentioned it last time, the פסוק says you have to return an object, אשר תאבד ממנו ומצאתה, if it's lost from you, but other people could find it. But if it's in a situation that it's lost from everybody, the תורה was מתיר it, you could keep it. So there everyone agrees you could keep it, even if you picked it up before the guy knows he even lost it. Where is the מחלוקת? The מחלוקת is בדבר שאין בו סימן, something that has no סימן, and you found it before he realizes he lost it, so before he was מתייאש. So אביי says, because you picked it up before he was מתייאש, too bad! At that moment you couldn't keep it, so then from now on you can't keep it, even if he was מתייאש later. And רבא says no, ייאוש שלא מדעת הוי ייאוש, that since he was מתייאש later when he finds out, so מהשתא הוא דמייאש, it's as if he's מתייאש before, and you could keep it. No, no סימן. Has a סימן, even רבא agrees that you can't keep it. זאגט די גמרא: תא שמע. The

גמרא has a קשיא: כיצד אמרו התורם שלא מדעת תרומתו תרומה? We have a case that when you take off תרומה for somebody else, if you take off without his knowledge, the תרומה is still תרומה. What's the case? When is it? So he gives a case like this: הרי שירד לתוך שדה חבירו וליקט, if someone went into someone else's field, and he picked fruit, ותרם, and he took off תרומה, he used the fruit for תרומה, שלא ברשות, that you never got permission from the owner. אם חושש משום גזל, if the owner is a guy that doesn't trust you, and he's חושש that you're stealing, אין תרומתו תרומה, the תרומה is not תרומה. ואם לאו, if the owner doesn't mind, תרומתו תרומה, the תרומה is תרומה. And the גמרא asks, the ברייתא: ומנין הוא יודע אם חושש משום גזל ואם לאו? How do you know what the owner feels? So it tells you exactly what he means: The case is like this: He took off תרומה without רשות. הרי שבא בעל הבית, then the owner comes, ומצאו, and he sees he took off תרומה, ואמר לו, and he says to him, כלך אצל יפות, why did you take this? Couldn't you take better fruit? Now, we don't know, could be he meant sarcastically, and he's upset, why did you do it? As if saying, look at these, couldn't take, or maybe he דוקא seriously meant it. So we say like this:

אם נמצאו יפות מהן, if we look around and there are דוקא better ones, we assume it wasn't sarcastic, and he דוקא meant it, תרומתו תרומה, it's תרומה. ואם לאו, if we look around and there is no better ones, and he said, why didn't you go to the better ones? אין תרומתו תרומה, the תרומה is not תרומה. If he himself added, it's a ודאי not an ענין. Not a story, if it happened! Probably a worker, a worker of his. Yeah, could happen. You're asking practically? Yeah, talking about a worker, or a friend happened to be here waiting for him, so he said, "I'll save him a trip, I'll save him a טירחא, I'll take off תרומה for him." But he never asked him. We'll see. גאנץ פשוט. So now the גמרא asks like this. The גמרא uses this as a קשיא against אביי. אביי says ייאוש שלא מדעת לא הוי ייאוש, is not From here the גמרא is going to prove יאוש שלא מדעת הוי יאוש, why? Because this is exactly the same. אמאי, why is it תרומתו תרומה? בעידנא דתרם, when he took off תרומה, הלא הוי ידע, the owner didn't know yet. אלא מאי, the owner comes back later, and later he reveals his mind that he's מסכים, but לכתחילה he wasn't, לכתחילה he never said. And nevertheless, we say if we find out now that he's מסכים, it works retroactive, that at the time when he took off the תרומה, it was good. So if so, יאוש שלא מדעת should be the same. If it's something that later on is מתיאש, it should work retroactive that בשעת he found it, it's as if he was מתיאש then, which is against אביי. נו,

guess who comes to the defense of אביי? רבא. פירט די גמרא, רבא אליבא דאביי. So רבא says, "I can answer the question and it shouldn't be a קשיא on אביי: The case is דשוויה שליח. The case here is, he made him into a שליח. The case is, I hear already, he still made him a שליח, and the question is going to be, he made him into a שליח, the גמרא goes into different לשונות. What does it mean he took without רשות, without permission, and you have to see later whether he's מסכים or not if he asked him to do it? But the case is like this: What happened here was, שוויה שליח, he made a שליח, ואמר ליה, he said to him, זיל תרום, he said, "Go take off תרומה." But לא אמר ליה תרום מהני, he didn't say from which fruit to take for תרומה. וסתמא דבעל הבית כי תרם מבינונית כי תרם. Usually the בעל הבית, when he takes, he doesn't take from the best, he takes, doesn't take from the worst either, he takes from the middle. ואזל איהו, and he went, ותרם מן היפות, he took from the best. And now we don't know if the בעל הבית is מסכים to that. ובא בעל הבית, and so the בעל הבית came, and he saw him, ואמר ליה, and he says to him, כלך אצל יפות, "Why didn't you go to the better ones?" So here we say, אם נמצאו יפות מהן, תרומתו תרומה, if there are better ones, he meant it, and it's טאקע תרומה, ואם לאו, אין תרומתו תרומה, and if not, it's not תרומה. So the גמרא says clearly here, that according to אביי, when does this דין apply? When he made him a שליח. If he wouldn't have made him as a שליח לכתחילה, the גמרא says, just like יאוש שלא מדעת לא הוי יאוש, even though he's later מתיאש, but it doesn't work, according to אביי, for before, same thing here, it wouldn't work, and the only time the ברייתא says it works, he made him a שליח. Fine. ווייטער די גמרא. Could know him, the case is where he did tell him something. Yeah, he didn't say which, but as far as he thought, "I'm taking the right ones," then later we don't know, so it makes a ברכה. But in the case where he didn't tell him, so it's a ברכה לבטלה? So it's a ברכה לבטלה. זאגט די גמרא ווייטער, a story:

אמימר ומר זוטרא ורב אשי איקלעו לבוסתנא דמרי בר איסק. These three אמוראים happened to be in the garden of a man called מרי בר איסק, but he wasn't home. אתא אריסיה תמרי ורומני, then came the אריס, the worker, and he brought תמרי, dates, and and and pomegranates, ושדא קמייהו, and he put in front of them. אמימר ורב אשי אכול, אמימר and רב אשי ate, מר זוטרא לא אכל, מר זוטרא didn't eat. אדהכי אתא מרי בר איסק, מרי בר איסק came, אשכחינהו, and he saw the situation, ואמר ליה לאריסיה, he said to the אריס, to the worker, אמאי לא אייתי להו לרבנן מהנך שפירתא? "Why didn't you bring to them the better ones?" נו, and obviously they found better ones. אמרו ליה אמימר ורב אשי למר זוטרא, so now the two who ate, see, they knew that he didn't want to eat, because he wasn't sure that the owner really agrees. But he says, now you see what he said, השתא מאי לא אכל מר? "Why aren't you eating now? והתניא, didn't we learn, אם נמצאו יפות מהן, תרומתו תרומה, by תרומה we learned if he says find that might take better ones, and there are, תרומה, it means he's מסכים." אמר להו, so he said to them, הכי אמר רבא, this is what רבא said, לא אמרו כלך אצל יפות אלא לענין תרומה בלבד, this whole כלל that if he says find better ones and you find better ones, the תרומה is תרומה, it's only by תרומה, משום דמצוה הוא, to take off תרומה is a מצוה, וניחא ליה, a person wants to do a מצוה, so he's happy with the מצוה, אבל הכא, but here, could be, know why he said it, משום כיסופא הוא דאמר הכי, he's embarrassed, he saw it and there were better fruits, so he was embarrassed of the חכמים. This is the גמרא here. The

bottom line, what it comes out from the first part of the גמרא is that like I said before, that according to אביי, the whole יאוש שלא מדעת לא הוי יאוש, the only time that this whole situation, the whole the whole scenario works, is only if שוויה שליח, he made him into a שליח. Now whatever in the רמב''ם. What is the connection between taking תרומה and יאוש שלא מדעת? What's the נו, that the logic is that even though he shows his הסכמה later, because he shows his הסכמה later, so even though he did it before he was מסכים, it works. יאוש also, even though the יאוש comes later, so and he took it before the יאוש, it should also work. So if you hold like רבא, אין הכי נמי, it works, that's why it works. But according to אביי, it shouldn't work. By ייאוש it doesn't work, it doesn't work here too. And the גמרא says, טאקע it doesn't work! You made him a שליח. אלא מאי the problem was we don't know if he meant these or he meant others. That's where this whole discussion is of it. You have to the only way it works is a שליח. Yeah. The גמרא, the

רמב"ם says in הלכות תרומות פרק ד' הלכה ג': התורם שלא ברשות, if someone takes off תרומה for somebody else without permission, או שירד לתוך שדה חבירו, or he went into someone else's field, ולקח פירות שלא ברשות כדי שיכנם לתורמן, and took פירות without permission and he took off תרומה, אם בא בעל הבית, if the בעל הבית came, ואמר לו, and he says to him, כלך אצל יפות, like we had in the גמרא, take the better one, אם היו שם יפות מאשר תרם, if there are better ones than the one that he did, תרומתו תרומה, the תרומה is תרומה, because that's a ראיה, שהרי אינו מקפיד, that shows that he doesn't care. אם לא היו שם יפות, if you don't find, אין תרומתו תרומה, the תרומה is not תרומה, שלא אמר לו אלא על דרך קנתור, when he said that he was really protesting, he was saying it sarcastically. This is the רמב"ם. All the מפרשים then ask, hey רמב"ם, you forgot the גמרא! The גמרא makes it very clear that this only works according to אביי if you made him a שליח. Now, we פסקן like אביי, no, יע"ל קג"ם, we פסקן like אביי ייאוש שלא מדעת לא הוי ייאוש. The רמב"ם, the גמרא פסקנס, the רמב"ם פסקנס ייאוש שלא מדעת לא הוי ייאוש, and the גמרא says very clearly that if you learn like אביי, the only way this case works is if you made him a שליח. So why didn't the רמב"ם say you made him a שליח? The רמב"ם doesn't make שליח here. He says a guy came and took without רשות, and the other guy came and he said, why didn't you take better ones, and if it's true like he found better ones, it's good, and the תרומה is תרומה. It doesn't fit, that's ממש a סתירה to our גמרא! Now, there are some that want to say that the רמב"ם is talking not exactly the same case. In our גמרא, we're talking about the question whether the תרומה that he took off before is תרומה from before. Right, he took off תרומה and three hours later the owner comes and says כלך אצל יפות. Our גמרא, so the ברייתא is saying that the תרומה works that from when the guy took off תרומה without רשות, it works. So there the גמרא says according to אביי it has to be only if you made him a שליח. Who says the רמב"ם is talking such a in that case? The רמב"ם doesn't mean, maybe the רמב"ם means if it's תרומה now. The owner came and he says כלך אצל יפות and you find יפות, so now it becomes תרומה. And for that, you don't have to make a שליח because now and why is it תרומה not because of what you did before, because he now is מסכים and he's making תרומה with his הסכמה with his מחשבה. Since he now is happy, so now מחשבה טאקע what he said before is תרומה. For that, you need to make a שליח in order to be, but from now. So the only שאלה is can you make תרומה with מחשבה? למפרע? No, no, not למפרע. So open, our גמרא is talking that he's now finding out that למפרע it's good. So when is it תרומה from? From when he made it before. The רמב"ם is not talking about למפרע. Right, so now it takes effect from now! But it's the owner is making it, it's not the guy who took off the תרומה. The owner now who is מסכים to the תרומה he took off, so his מחשבה is now that that should be תרומה, so it's תרומה from now. The other guy didn't do anything, אין הכי נמי. Yeah, that's for that's for סתם, but in a case like this, by him saying these words, because לכאורה in order to make תרומה you have to say הרי זה תרומה. He didn't say הרי זה תרומה, he said כלך אצל יפות, that's all he said. אלא מאי, this is an indication that in his mind is happy, if you find it's happy. So he's making תרומה with his מחשבה, because in his מחשבה he wanted it to be תרומה, which is a תירוץ, but it's not so פשוט. Not everyone agrees that you can make תרומה with מחשבה. Oh, so therefore we have an ענין clearly now that it's a mixture. Right, it's not it's not דיבור complete because he didn't say הרי זה תרומה, but it's not ממש, because in מחשבה itself there is another פשט. I

remember I once spoke about this, that there is a מחלוקת between the רבי and his father. The רבי writes in a letter to his father, in a whole פלפול he writes that מחשבה, because it says our גמרא says that מחשבה works for תרומה, there's a פסוק it says ונחשב לכם תרומתכם, that with מחשבה it works. So the רבי says that the פשט is if you think you think about תרומה and you want that piece to be תרומה, it becomes תרומה. And his father writes him very like sharp, I'm surprised at you that you say such a thing. That's not the פשט! The פשט is, when the גמרא says מחשבה is תרומה, it means that if you have מחשבה this should be תרומה, it מחייב you that you must now make it תרומה. It obligates you to make it תרומה, but that isn't yet תרומה now. And the רבי, when they printed the לקוטי לוי יצחק the letters, so at the end there's a הערה from the רבי after his father's letter. He says, I disagree. I disagree, that's not the פשט, the פשט is that it becomes תרומה. And in other things that the רבי wrote later, he still sticks to his opinion that it becomes תרומה. So if you learn that מחשבה ממש becomes תרומה, then this is a good תירוץ because this is מחשבה. According to ר' לוי יצחק, the רבי's father, מחשבה cannot make תרומה, so לכאורה he didn't make it תרומה. But you could say here because it's, like you said, a combination, he did say כלך אצל יפות. So it's a, it's a תירוץ. Now, that's not a problem with this פשט, but because the רמב״ם doesn't mention anything about מכאן ולהבא that's only from now. The way it seems in the רמב״ם is, he says that the תרומה the guy made, if he says כלך אצל יפות, "Go to the better ones", and we find it, his תרומה is תרומה, it's משמע from before it. It's a תירוץ, because you've got to find some תירוץ, but but this is not such a clear תירוץ that this this should work. Why wouldn't he be happy that Wants to do himself. Wants to do the מצוה himself. Whatever, yeah. Why, he can't make תרומה. Because if because if somebody finds somebody and and he knows the other guy is going to be happy, he grabs it anyway, it's קונה for the other guy, so maybe קונה from the געלט, but talking about doing the מצוה. Doing the מצוה. You mentioned before that that it would be a ברכה לבטלה. Where's this ברכה by תרומה? When you take off תרומה you make a ברכה. Oh, you make a... I thought you just say, or you can have in mind or not. No, no, then טאקע you wouldn't make a ברכה. מחשבה, I don't think you make a ברכה, but normally תרומה, you go and take off. And you... with a ברכה? Make a ברכה, with a ברכה, with a ברכה. להפריש? Yeah. להפריש תרומה, להפריש מעשר. The real accepted תירוץ on the רמב״ם is that we find the גמרא in קידושין, where the גמרא brings the same ברייתא. The גמרא דף נ"ב עמוד ב', the גמרא brings the ברייתא. Here. Yeah. Okay. The whole story is not נוגע. The גמרא brings this ברייתא to a certain case which was similar to this case, where the guy came and he said, and the גמרא says that if the guy comes and says "Why didn't you go to the better ones?" and we find better ones, it's okay. And the גמרא quotes it, and quotes this ברייתא, כיצד אמרו, the whole לשון of the ברייתא the way we have it. The גמרא here in קידושין does not mention a word about שליחות. And the גמרא itself פסקנט in בבא מציעא the הלכה like אביי, and according to אביי you have to make a שליח, that's the only way it works, and the גמרא here quotes the ברייתא as is. Comes תוספות, and תוספות, when the גמרא quotes the ברייתא, תוספות says: התם in בבא מציעא מוקי לה דשויה שליח, that it's only with a שליח. So then תוספות says, how do you compare to this case here? So he says there must be here that also he made a שליח, the case that the גמרא is talking about. So תוספות is saying that even though the גמרא didn't טייטש in קידושין that this דין only applies if he made him a שליח, it's still, because if we know the גמרא in בבא מציעא, we understand that this must be with a שליח. זאגן the מפרשים the רמב״ם did not learn like תוספות. And the רמב״ם said that in the גמרא in בבא מציעא טאקע the גמרא says it has to be with a שליח, and the גמרא in קידושין does not mention the word of a שליח. So obviously the גמרא in קידושין holds that it doesn't have to be with a שליח. Now the question is, what the רמב״ם is saying or what people are saying about the רמב״ם? The פשט in רמב״ם. He doesn't say anything, he just says the דין without a שליח. So they say look at the גמרא, the גמרא in קידושין says the דין without a שליח. So תוספות, but we are looking for a תירוץ, where the רמב״ם got this thing from. So the שאלה is, but תוספות טאקע doesn't learn, so תוספות טאקע says clearly that it comes from that if you look at, that we combine that גמרא and we apply that דין to the גמרא here too. But they say that the רמב״ם obviously does not not learn like that. Actually, the גר״א on the גמרא in בבא מציעא by us brings the רמב״ם. Let's, we read the words of the גר״א. He says... he quotes the רמב״ם in a different גירסא. He says here, quotes "גירסת הרמב״ם" and he goes into the, that the רמב״ם holds that it, from this גמרא we see you don't need to be a שליח. But the שאלה is, this question is, but the גמרא proves this. The גמרא in בבא מציעא said according to אביי, which is the הלכה, that יאוש שלא מדעת לא הוי יאוש, the only way it works is with a שליח. So how could טאקע the גמרא here say that it's without a שליח? How could the גר״א Yeah, how could, but somehow the רמב״ם meant it. But how could they say? So the answer is, they say like this, that's why I quoted the whole story of this of the guys came to eat. The גמרא there says after the, מרי בר איסק the owner came and he said, "Why didn't you take the better ones?" So they turned around to him and they said to him, "No, why aren't you eating now?" So he said, this whole דין of כלך אצל יפות that if he says go get the better ones, he trust us, whatever you say, is only by תרומה. And why? He says משום דמצוה הוא וניחא ליה, because it's a מצוה and ממילא מסתמא he's happy. But here it's not. So he said, after the גמרא came to that point, there's a new סברא here. You know why it works over by תרומה? Because it's a מצוה, and we call it ניחא ליה דמצוה, because of the מצוה he's happy. So what the גמרא before answered that the only way we could explain this דין according to אביי is in the case where he made a שליח, that's before the גמרא came up with this idea that there is a thing as ניחא ליה דמצוה, that because the מצוה makes it so happy that מסתמא for sure he wanted and and it's as if he was agreed agreed before. הכנסת

אורחים is a מצוה. Some ask some מפרשים ask, but that's not a direct מצוה to do this. תרומה is a direct He should have been happy, too. It's yeah, but that's not the same. It's not a direct מצוה. Obviously, he's saying maybe he did it because he's ashamed, so that's not a ראיה. He said that at the same time Yeah, yeah, in the גמרא. But so so they learn that the רמב״ם learns that this תירוץ that the גמרא gave that the only time it works is with a שליח according to אביי is before the גמרא knew that סברא. After the גמרא knew that סברא that by מצוה we say it's different because of ניחא ליה דמצוה, after we know that סברא, we טאקע don't have to say even without a שליח it works. That's a stretch, though. So it comes out it comes out like this: that according to אביי, the way the רמב״ם the way the מפרשים learn פשט in the רמב״ם, that according to אביי, normally יאוש שלא מדעת לא הוי יאוש. So the fact that you want we see something later doesn't work for before. By יאוש also, even if you are מייאש later, doesn't work for before. But in a case where it's a מצוה, then even אביי agrees that it works. And it's על דרך like we said in the גמרא before that אביי himself agrees by זוטו של ים. When the ים overflows, אביי also agrees יאוש שלא מדעת הוי יאוש. So there are cases. So the case of ניחא ליה דמצוה, the fact that a מצוה he wants to do the מצוה, helps. And ממילא he says, that's why the גמרא in קידושין does not bring the case of a שליח. And that's where the רמב״ם takes it from. So if we learn like that, we have a ביאור in the רמב״ם. The רמב״ם טאקע says that he doesn't mention the word שליח because he doesn't need to make a שליח. And the reason why it works, even though יאוש שלא מדעת לא הוי יאוש, is only because of ניחא ליה דמצוה. Now, תוספות obviously does not learn like that. We said clearly תוספות in קידושין says that we the גמרא he brings the גמרא in בבא מציעא, it must be with a שליח. So obviously תוספות does not learn that the סברא of ניחא ליה דמצוה is such a good סברא, that ניחא ליה דמצוה, because it's it's something that he really wants, it's a מצוה, that's enough סברא that even אביי should agree that it works. So

what's the מחלוקת between תוספות and the רמב״ם, whether this ניחא ליה דמצוה No one interprets the רמב״ם Well, we're talking now those who interpret the רמב״ם know what they're talking about. Sure, that's not the רמב״ם, that's That's the רמב״ם. But the רמב״ם is Without this, the רמב״ם is even worse. I mean, this is the best way to explain the רמב״ם. So if that's the way we learn the רמב״ם, so there's a מחלוקת here between the רמב״ם, according to their פשט, according to their פשט Why? The רמב״ם, you can learn the רמב״ם by reading it, that the רמב״ם leaves it out for sake for the same reason why the גמרא. Why? Not in הלכה. Why? It can't be. The רמב״ם is not saying you have to say, he just assumes No, no. In the רמב״ם you can't, no, but that's no question, you can't do that. The רמב״ם is הלכה. The רמב״ם is telling people what to do. The רמב״ם is not leaving out and saying that you're going to learn the גמרא in בבא מציעא and you're going to figure it out. No such thing. In the גמרא, you could say one גמרא relies on the other, but not in the רמב״ם. If the רמב״ם in this דין doesn't say שליחות Maybe if he would say the same דין someplace else and mentioned the word שליח there, I also wouldn't say the רמב״ם would not leave it out, but still you could say at least he said it once. The רמב״ם doesn't quote this דין as far as I know, someplace else. So the רמב״ם here says, doesn't say שליח. No, no one of all the מפרשים have such a סברא to say that the רמב״ם meant with a שליח and he didn't say it. It's obvious. If he didn't mention שליח, he didn't he didn't mean it. So why does the הגר״א in certain No, no, all the מפרשים say The הגר״א? No, even the הגר״א on the גמרא quotes the רמב״ם and he says that the גרסא for the רמב״ם was a different גרסא in the גמרא. I didn't want to go through it. The הגר״א But that's all the מפרשים, all the נושאי כלים on the רמב״ם have that problem. See, let's read here the רדב״ז here. Just look at the רדב״ז. He says on this דין, ברייתא דאלו מציאות, כלשון רבינו. וקשיא לי, I have a קשיא, דמוקמינן לה התם בשויה שליח. So why does he say no שליח? And it goes only and and that's what אביי says. ואם כן קשה, דמלשון רבינו משמע דלא שויה שליח. So he says that this is only the way רבא answered the תירוץ. אבל רבא גופיה, he didn't say אלא כיון דהוה דבר של מצוה, בודאי ניחא ליה. He answers this תירוץ. That is the מסקנא of the גמרא after we have the סברא of מצוה ניחא ליה, that's why it works. But he also holds like that. Let's see what the כסף משנה says. התם, if in פרק אלו מציאות, here it says: ואף על גב דבפרק אלו מציאות מוקמינן לה בשויה שליח, אליבא דמאן דאמר יאוש שלא מדעת לא הוי יאוש. Says: לא חש לה רבינו, the רמב״ם doesn't care about that. Why? Because in in קידושין, in the story in קידושין, there it doesn't mention of שליח. בלא שליח נמי. ועוד, דהוה מצוה בגילוי דעתא למפרע. is the רמב״ם holds it's enough. And he says the רמב״ם is not גורס in the גמרא, whatever, it's all the מפרשים, everybody that talks about this talks about this, everyone anyway. So, we have here מחלוקת between תוספות and the רמב״ם, according to תוספות, it's even למסקנא you need to be a שליח. And the סברא that we should say that because it's ניחא ליה דתעביד מצוה, that works, that doesn't work, מה שאין כן according to to the רמב״ם, it does work, ניחא ליה דתעביד מצוה, the fact it's a מצוה works. Then there's another שאלה here. In the

story of the חכמים who came in the garden of מרי בר איסק, what was the reason why he טאקע didn't eat? Yeah. Imagine he thought it might be stolen. No, the other, sorry, the one that the did eat. The one who did eat. Yeah. He's assuming it's Why did he eat? What, because there's children? No, so תוספות says they ate before מרי בר איסק came משום דאריס מנפשיה קיהיב, they assumed it was his, cuz there's a גמרא that when an אריס, a worker comes and gives you, he probably took from his own. Now, he says, maybe not, maybe the reason is because they relied that when מרי בר איסק is going to come, he's going to agree. So, תוספות, אין לומר שהיה סומך שיתרצה מרי בר איסק כשיידע. You can't say that he relied that when he'll come he's going to agree, וממילא that's why they ate now, because הלכה כאביי, דאף על גב דהשתא ניחא ליה, even though now he agrees, מעיקרא לא הוה ניחא ליה, but it doesn't work for before. יאוש שלא מדעת לא הוי יאוש, so it doesn't work, so you can't say he ate because he felt that מסתמא he's going to agree. So, why did he eat? So, he תוספות says, he ate because he he פשוט thought it was not his. It was not the owner's, it was the guy's. And they quote the גמרא that we say סתם אריס, מסתמא he gives from his own. הוו כהנים? Huh? הוו כהנים? What? תרומה? No, it wasn't תרומה. No, the story wasn't תרומה. The ריטב״א goes more like that. The ריטב״א says that the reason he ate, because he assumed for sure that when he's going to come, he's going to agree. איי the שאלה, how does that work since the הלכה is like אביי, יאוש שלא מדעת לא הוי יאוש? So he says this is like זוטו של ים. Just like when the ים overflows, the דין is that he's so sure that it's going to work, he's so sure that he's going to מייאש, that even אביי agrees that it works, so this, he was so sure that he's going to agree, that even according to אביי, it's okay. How could he know that? This this is all sort Of course he'll agree. He's not going to say take it out of your mouth, but is it a real agree? No, so he assumed he assumed I I would imagine they knew מרי בר איסק, and they knew what kind of guy he is, and they knew that the חכמים's כבוד, and they knew he would agree. So the ריטב״א says that the reason he ate because he knew that he'd agree, and even אביי agreed. And still works למפרע? Because they ate before. טוב, אין הכי נמי, but יאוש שלא מדעת also works למפרע. Yeah, but that's the surge of the ocean, bringing away all all the things you lost right here. That's for sure. And here also was for sure. They were for sure. They were for sure. So why did the other person, he wasn't so sure? Huh? The other person didn't eat. Yeah, yeah, he didn't he wasn't yeah, he says He didn't have the same relationship with him. Or what, yeah. Or he didn't know him? No, by him he wasn't so sure! Probably. He had a feeling about it. So here again we have a מחלוקת between תוספות and the ריטב״א, what's the reason whether whether we apply the סברא that for sure he was able to or not. Okay, so let's get into the נקודה here, the קיצור is it goes like this:

What is the מחלוקת in אביי ורבא of יאוש שלא מדעת? What's the basis of the מחלוקת? So בכלל, like we said like this, by דבר שאין בו סימן, that's where they argue. Something has no סימן, so רבא says יאוש שלא מדעת הוי יאוש. You know why רבא says יאוש שלא מדעת הוי יאוש? הוי יאוש, why it is? Because it's יאוש בכח. It's potentially that he's going to be מייאש. And if potentially he's going to be מייאש, so ממילא the יאוש works. Even if you're going to hold that it's because later on that he's מייאש works retroactively, but also it's because it's potential. When do we say something works retroactively? If I make תרומה now, a normal guy makes, it works for yesterday? Why should it work for yesterday? Because in the beginning already there was a potential for it for the יאוש, because he's דבר שאין בו סימן, it has no סימן, וממילא when the יאוש comes, it works. So in other words, the the basic ווארט of רבא why יאוש שלא מדעת works, because it's the יאוש בכח, the potential יאוש is good enough that it should work, whether it's good enough by itself, or good enough later on when it's מייאש, but the word is יאוש בכח. That's his whole theory, yeah. That's that's רבא's theory. And תוספות says טאקע when it says by דבר שיש בו סימן, even רבא agrees, so he says even though later he was מייאש, so according to רבא, that if he's מייאש later, it should work for before, so he says אף על גב דהשתא מייאש, מקרי בעלמא, just happened, ומתחלה לא היה עומד ליאש. לכתחלה it was not standing for, he's not בכח. So רבא holds that it is good, why? Because it's בכח. Let's go, what about אביי? So how does it work with אביי? If רבא holds יאוש בכח works, and אביי says יאוש שלא מדעת לא הוי יאוש, so obviously he argues. The argument of what אביי argues on רבא, there's two ways to explain this. You could explain אביי says יאוש בכח is nothing. There's no such thing as יאוש בכח. יאוש בכח is worthless. It's got to be יאוש בפועל. Everything is יאוש בכח. Well, one second, one second. There's another way. It's not so פשוט. So יאוש בכח, בכח means potential, that means it's עומד, like the תוספות said, עומד. So he says that's not good enough, even though you know pretty sure that he's going to be מייאש because it's דבר שאין בו סימן, but למעשה he was not מייאש, so it's יאוש בכח, and not enough. Or you could learn, so basically, according to this, אביי basically argues on the whole concept of יאוש בכח. There's no such thing. Or you're מייאש, or you're not מייאש. יאוש בכח doesn't work. You can learn another way. That באמת אביי agrees to רבא in theory. He just says this is not enough בכח. This is not enough בכח. As much as you assume that it's, no, it's going to come later, but since סוף כל סוף you never know, maybe he won't be מייאש, maybe he'll never find out, I mean, you never know. So in other words, אביי would agree that if it's a real בכח, in other words very, very strong בכח, טאקע he agrees, but a regular case of a דבר שאין בו סימן is not not strong enough. Which is different than the first way. According to the first way, he holds בכלל there's no such thing as יאוש בכח. The נפקא מינה would be if you would find a case where it's ודאי that he will be מייאש, so according to the first way, still doesn't help. So why? Because it's still יאוש בכח, it's still potential, still. According to the second way, it would help. Which this leads us to different two פשטים in זוטו של ים. We said זוטו של ים, and this is going to be a little different than I said last week. זוטו של ים, it says you're allowed to keep it. If the water overflowed, you are always allowed to keep. Why? Because we, it, we learned in the פסוק, אשר תאבד ממנו ומצאתה, it'll be lost from him, but something if he'll be find, but if not, not. Is the reason why זוטו של ים is allowed, even according to אביי, is it because he's definitely מייאש, he's definitely going to be מייאש when he finds out, or no, it's a גזירת הכתוב? And there are two ways to learn. If you remember, I said רש״י quotes the גמרא where it says, מפני שהבעלים מתייאשים. רש״י says זוטו של ים you're allowed to keep מפני שהבעלים מתייאשים, because the בעלים מייאש. And רש״י says here even before the guy actually knew he lost it. A candidate for a גזירת הכתוב, because That's why I said a גזירת הכתוב means that has no reason. This means that there's a reason, why? Because he's surely מייאש. You know, water in outer space, yes, it's the דרך הטבע, first thing is is מייאש. He gives up hope that it's No, it says, so ודאי מייאש. But then, if you remember, I quoted the רא״ש and the other ראשונים who asked, this is not יאוש. אלא מאי? So what is it according to them? A גזירת הכתוב. זוטו של ים is a גזירת הכתוב. What does this depend on whether זוטו של ים is a גזירת הכתוב or not? It depends on the way we just learned now. If you learn that אביי says why is יאוש שלא מדעת לא הוי יאוש? Because יאוש בכח doesn't work. So what kind of בובע מעשיות are we saying that זוטו של ים, it works, you know why? Because for, not because it's a, because it's for sure going to be מייאש. But he wasn't מייאש yet! And, and יאוש בכח does not work according to אביי. So how can אביי So you must, yeah, so you must say, now if you're going to say, you must say according to this it's a גזירת הכתוב. But if you're going to say the second way, that you, that he also agrees בעצם if it would be clearly בכח it would work, just normally דבר שאין בו סימן is not really בכח enough for me. זוטו של ים, which we know for sure he's going to be מייאש even more, because as no one could find it, so he certainly will give up. Even if it has a סימן. Huh? Even if it has a סימן, right? Even if it has a סימן, because he feels no one's going to get it. So by זוטו של ים, אביי will agree that there is יאוש. Because the fact that יאוש בכח is not a problem. The only שאלה is how strong is the יאוש בכח? So according to this, it would be that way. Or you could say it's a third way. It's just an exception to the rule. He still doesn't hold. But why? That's called a גזירת הכתוב, isn't it? Exception to the rule means there's no reason, the rule doesn't fit, a גזירת הכתוב. No, because he still doesn't hold כח. The other way to say it is No, he has to hold. If he holds כח, he can still hold כח, and that's why זוטו של ים it's clearly enough of a כח. Yeah. Or you can hold he does he does not hold כח. Right. And So

why here? Why here? It's an exception. That's called a גזירת הכתוב. The תורה made an exception to this דין, even though בכח doesn't work, and here it's after all, only בכח, that's what we're saying, he doesn't know, but still, the תורה made an exception, that's called a גזירת הכתוב. So, even if he doesn't know? I'm saying what I'm saying because זוטו של ים the דין is even if he doesn't know. Oh, even if he doesn't know? Even if he doesn't know, the דין is, why? Because if he knows. Because if he knows, it's nothing else, then it's not a יאוש שלא מדעת, even! We don't even need a פסוק then! You don't need the owner to say יאוש? If he knows, then yes. No, you need יאוש because tell other guys someone found it. Who are the two people who argue in this ענין, according to the way I'm saying now, whether זוטו של ים is because of יאוש, or זוטו is and and that's why it's for sure יאוש, or זוטו של ים is a גזירת הכתוב? So it seems like it's a מחלוקת רש״י and תוספות. Cuz I said רש״י says that how do you know the דין, you remember from גמרא בבא קמא last week I quoted? Then I said a different פשט in רש״י. But normally what רש״י says is, when the גמרא wants to learn out יאוש by גניבה from יאוש by אבידה, so רש״י says, and where do we know יאוש by אבידה? So he says we know it from this פסוק, אשר תאבד, from there we know that יאוש is קונה. So obviously רש״י learns that the reason for יאוש for for why זוטו של ים is because of יאוש. תוספות בפירוש learns that we don't know יאוש from there. Remember from where does תוספות learn יאוש? From שמלה. Remember the פסוק, מה שמלה מיוחדת? Why? So the ראשונים say, because it's not because the case of זוטו של ים is not יאוש. It's not יאוש, it's a גזירת הכתוב. So obviously there's a מחלוקת רש״י and תוספות here, how we learn פשט in אביי. רש״י who says that זוטו של ים is יאוש, and that's why even אביי agrees, must be because he holds that the whole reason אביי doesn't hold like רבא is because he doesn't hold of because this is not בכח enough. באמת בכח works, this is not בכח enough. And if it's not בכח enough, that's why it doesn't work normally. But by זוטו של ים, what's the reason? Because he's מתיאש. I spot יאוש בכח, but according to רש״י, יאוש בכח cuz he holds like the second way. That אביי in in theory is מסכים to רבא that יאוש בכח works, but in this case, it's not enough, זוטו של ים is enough. תוספות who does not want to learn from from יאוש from from the אשר תאבד, from זוטו של ים, like the ראשונים say, cuz it's not יאוש. Why? Because תוספות learns, you could say, that אביי holds the first way, that יאוש בכח is zero. So you can't learn that זוטו של ים the reason is because it's it's definitely it's a stronger בכח. Who cares if it's a stronger בכח? סוף כל סוף, it's only בכח, and אביי holds, according to the the this way, אביי argues on כח, he says, according to the first way, there's no such thing as יאוש בכח. So no זוטו של ים, זוטו של ים can't be because of יאוש, so it must be a גזירת הכתוב. So we see that in these two ways, whether יאוש בכח doesn't work at all, or יאוש בכח works and just you have to have a strong, that's a מחלוקת between רש״י and תוספות. רש״י learns that זוטו של ים is because of יאוש, תוספות learns it's not יאוש.

Where does the רמב״ם fall in here? The רמב״ם says exactly like רש״י. The רמב״ם when he quotes the דין of זוטו של ים, the רמב״ם says that זוטו של ים you could keep, and he says מפני שודאי מייאשי, cuz for sure he'll be מתיאש. So obviously, which way does the רמב״ם learn? The רמב״ם like רש״י, that אביי agrees that יאוש בכח is יאוש, if it's a real בכח. But in theory even, so you real real בכח. So he sides with רש״י, which is against תוספות. So the רמב״ם holds like רש״י that the reason for אביי is because יאוש בכח it works, it just has to be a strong one. And תוספות learns that according to אביי יאוש בכח doesn't work. Now this will explain the מחלוקת between תוספות and the רמב״ם in the case of our case with appointing a שליח. What did we say? What's the סברא of the רמב״ם why למסקנא we don't need a שליח even according to אביי, and the reason is because ניחא ליה דמצוה, because we're so sure he's going to want cuz it's a מצוה. If you learn like תוספות, if you learn like תוספות that אביי holds there is no such thing as a יאוש בכח, what kind of answer is it, ניחא ליה דמצוה? What kind of answer is it? That in this case he was for sure, for sure was going to be מסכים. Why? Because it's a מצוה and they knew for sure he's מסכים. It's still יאוש בכח! לפועל he wasn't מתיאש. So you're giving me a very strong reason that the כח, the potential is so strong. That only works if יאוש בכח according to אביי works, אלא מאי, has to be a strong יאוש. Oh, so you can give a סברא this case it's a strong בכח, it works. But if you hold that that it's not because, cuz אביי יאוש בכח doesn't work, so what kind of answer is it? And that's ממש the מחלוקת between the for the רמב״ם and and the and תוספות. The רמב״ם holds like רש״י, that אביי holds יאוש בכח works, אלא מאי, it's only if there's a strong יאוש בכח. So the רמב״ם could say that the מסקנא when we have it's a מצוה, oh, that for sure he's going to do it. So if it's for sure he's

going to do it, it's יאוש בכח, and it's a strong יאוש בכח, the רמב״ם says it works. That's why the מסקנא the רמב״ם learns the גמרא does not need שליח, you have other and that's why he learned that the גמרא in קידושין does not mention שליח because of מסקנא you don't need it. תוספות can't learn like that, because if תוספות learns that יאוש בכח doesn't work at all according to אביי, that's why he argues, and that's why תוספות says זוטו של ים is not because of יאוש, because if it's יאוש it's still it's a גזירת הכתוב, so in the case of, so in the case of of of the, here you can't say ניחא ליה דמצוה, because it's a מצוה, he agrees. So here it must be that the מסקנא, it's because of a שליח. That's why תוספות in קידושין says, And even though the גמרא doesn't mention שליח, it must be with a שליח. This also explains the מחלוקת in the case of the מעשה. Why didn't he eat? When תוספות says here the version, why why didn't they eat? רב אשי אכל, מר זוטרא לא אכל. Why did they why did they eat? So we said תוספות says not because they were so sure that he's going to agree, because ייאוש שלא מדעת לא הוי ייאוש, אלא מאי because they assumed that it was his own. The

ריטב״א, we said, no, the ריטב״א says because they were so sure that he's going to agree. Why doesn't תוספות learn like that? פשוט. תוספות can't learn like that, because תוספות learns that according to אביי, which is the הלכה, there is no such thing as ייאוש בכח. So you're going to tell me a million times that the reason because they were so sure that he's going to מסכים like זוטו של ים? זוטו של ים itself is not because of ייאוש, not because we know he's going to מתייאש. It's a גזירת הכתוב. And by this there's no גזירת הכתוב. So how are they able to eat? Can't say because they were sure, according to תוספות no such thing doesn't work. So you must say because they were thinking they thought it was his. What was the case in קידושין? Does it fit in this? Yeah, yeah, it fits. We didn't we didn't hear the the מעשה. Yeah, it's a whole story there. מה שאין כן the ריטב״א, you say the ריטב״א will learn like the רמב״ם. And if the ריטב״א learns like the רמב״ם, he learns that ייאוש בכח works even according to אביי, אלא מאי it has to be real בכח. Oh, that's why the ריטב״א can learn that in this case he was so sure that what? Because he'll agree. That's why they were able they ate for that reason. He didn't make him a שליח. And when does the שליחות come in? Didn't make him a שליח, that's for sure. The guy brought him food that belonged to his, yeah. And he wasn't a שליח. And they ate. Okay, we don't, how do you know? The גמרא says, no, the guy came and he said, He wasn't there. He wasn't there, and then he came and said, "You should have given them the better ones." There is for sure no שליח there. That's not a question. Rabbi, somebody somebody lost something, yeah. There is no such a case that he מתייאש. Even if after 1 year, if he has some clue who took it, he still wants

When you're מתייאש you still want it. When you're מתייאש you want it, but מתייאש means not that you don't want it. מתייאש means you give up hope, and you give up searching for it. No, there is no give up here. Always no, somebody lost something, Yeah, you don't give up? No. Wanna bet? You don't give up. After a year or two or a month later you definitely give up. When you give up you still say, "If someone will bring it to me, I'll be happy." But you still give up. If you have a clue that who has it And if you don't you don't have a clue who took it. If I don't have a clue, what's going to happen? In that case if you come to you a clue, But if you're מתייאש before you had a clue? but you are not מתייאש. Always you have a hope that it will come to you. No, you don't. You would like to, but you don't hope. You would like it to come back. I like it. I hope it. Yeah, okay. Don't be מתייאש. Every day is a problem. Why does there have to be this push to say that רש״י is in this or in general אביי has to stay it is a גזירת הכתוב or he agrees with some form of בכח? The whole point is the whole reason why he brings up זוטו של ים is not to prove or disprove בכח. He can still hold that no he does not agree with בכח in the whole at all at all, and he doesn't need a גזירת הכתוב. But he's saying to prove the rule that I don't agree with בכח, there are sometimes that only with בכח. How's that outlandish situation, So why, no Why? Because it fell in the sea! That's So therefore why can I take it? Someone found it, it's mine, what why can I take it? Because it in theory, it's not a גזירה What's the theory? The theory is that, no, there is no בכח in general. I don't like I don't agree there's a a time when בכח works and doesn't So so why are you allowed to take it? You're allowed to take it because it's an it's an it's an it's the exception. That's called a גזירת הכתוב, no? What else? Because by by calling it, well it's not a גזירת הכתוב. The תורה is not telling you you can, אביי is saying within my No, תורה we learned No, no, no, no, the תורה says, there's a פסוק! We learn a לימוד from the פסוק, אשר תאבד ממנו, and we learn out from there, that's for sure. The שאלה is does that teach you the דין of ייאוש or not, or it just tells you the fact that this is the דין. Right. If if it if בכח doesn't work, now how could this be a דין? It has to be a גזירת גזירת הכתוב means that according to the rules of normal הלכה, it doesn't fit. Right. So it's an exception. So

what is what is the גזירת הכתוב of זוטו של ים? It says אשר תאבד ממנו, anything that's lost from you, but other people have access to find it. Anything that's lost from everybody, the תורה says you're allowed to keep it, you don't have to return it. So why do they need why do they have to even get into an argument? So I'm saying what did the תורה mean here? Right. So you could say that the תורה meant it's a special דין, a גזירת הכתוב. Or you could say Or backing up to תורה פירוש? Not backing up anything, the תורה wants that. To the people who hold בכח, what does this פסוק mean to them? According to רבא, it doesn't need this פסוק. Yeah. He has it anyway, it's בכח. Certainly that's בכח. No, according to according to רבא it doesn't need the פסוק, right. Yeah, so what does he do with this פסוק? It has nothing to do with בכח, according to רבא who holds that ייאוש שלא מדעת הוי ייאוש. Yes. Yeah. So what what does he need this He knows He knows Oh, because even if it has a סימן, even if it has a סימן, he's מייאש, he says, so for that he needs it. So that's with רבא, yeah? Yeah. So why do you have to say that אביי needs this פסוק for anything but... No, but why, what does the פסוק tell you? Forget about סימן and not סימן. What does the פסוק tell you? You're allowed to keep it. Why? Why, according to רבא, why? Yeah, according to רבא, why? Yeah, yeah. So רבא's going to say the פסוק For sure. backs up my בכח theory. Not backing up anything, because the whole דין of יאוש is יאוש בכח works. That's what the תורה says, the תורה says But does the תורה have to give such an outlandish example? It could have given a little bit more than that, meaning רבא would hold, even without that outlandish example, בכח works. Right? He holds it in very minimal places, so what did the תורה have to come and tell you? No. An outlandish The תורה is talking The תורה is talking even if יש בו סימן, נו. So So I'm saying No, that I'm learning from The תורה is telling you יש, even though יש בו סימן, which is a שוואכע כח, Right. nevertheless it works. So רבא is saying this whole Normally, by by דבר שאין בו סימן, it's a strong, it's כח. אביי holds it's not strong yet. Right. But he holds it's a strong כח. But in זוטו של ים, which is by דבר שיש בו סימן, he's מודה that it doesn't work normally, because it's not enough בכח. Even though it's a שטיקל בכח, you could be may you could be ייאש. It's not enough. זוטו של ים, even if it's a יש בו סימן, it's still enough. Why do we need Why would we need the there's a a פסוק to tell us that? Why wouldn't I wouldn't know. Why? What do you mean? What wouldn't you know? רבא, if it's the Atlantic Ocean, that's not good enough? You need the תורה to tell you that that's going to be the יאוש? Belonged Yeah, but it got We're talking about the owner. Yeah, so that's Yeah, the תורה tells us that it's lost in the middle of the ocean. No, I would I would think it's a מצוה של השבת אבידה. I would think something that belongs to somebody and it has a סימן, you have to return it. We're talking about the idea of יאוש. Right. We're talking about כח. Yeah. There's a There's There's a line. We can say from zero to 100, and we put in all sorts of factual scenarios where somebody is going to give up. I need the תורה to tell me that dropping in the middle of the Atlantic Ocean, the time is for sure, no questions? That's the that's the That's a logical Obviously. No, the תורה wants to tell the whole דין of יאוש. According to this, the תורה is telling you the דין of יאוש, or how do you know the whole יאוש works? From this פסוק. So

I'm saying if you hold of יאוש, because this is the פסוק that teaches you the דין of יאוש. That's what רבא says. So then כח had to No, כח is already for יאוש שלא מדעת. בעצם זאך, a person is מייאש, you found it after יאוש, how do you know you could keep it? Where does it say that? This פסוק. So even those of כח need this Yeah, you need a פסוק for יאוש, not a פסוק for כח, but you need יאוש from a פסוק, not only for כח. So this this This is the פסוק that tells you that this, because of יאוש, you're allowed to keep it? Oh, yes. And then they all take And then they they work Right, and then they take this and that is, right, comes along רבא and he says, you know what, not only regular יאוש, even יאוש בכח works. End of פסח like 10 months after שבועות, not a reasonable deal, just went for like six months. Fine. If he was there, that's it. Right, then you keep it. What if he did not ask? יישר כח. I got that on tape. Is that right? Still coming next week, right? Yeah. ברוך השם. בלי נדר.