called me and asked me, \"Is there a full pull?\" Maybe telephone? He said he was a telephone. Why would he ask me if there's a phone? No, tell him no, it's safe. Okay, let's let's... Why don't you say that you went against your will, you did not know... And for what did you want... I feel bad. Okay. Here in the גמרא in בבא מציעא אלו מציאות דף כ״ב עמוד ב׳. After the גמרא goes through the whole thing with אביי and רבא, יאוש שלא מדעת, which means in the case where you found something before the owner even knows that he lost it, so the owner wasn't מיאש yet. So the גמרא said before there was a מחלוקת of אביי and רבא. אביי says יאוש שלא מדעת לא הוי יאוש. If you found it before he was מיאש, but then later when the guy found out that he lost it, he was מיאש, but since it came to your hand when you picked it up he wasn't מיאש yet, so it wasn't, it was באיסורא אתא לידיה, it wasn't מותר yet, so now later when he is מיאש, it's too late. You are אסור to hold it. And

רבא says no, that because had he known he would have been מיאש, the only reason he wasn't מיאש because he didn't know. Had he known he was מיאש, וממילא this is called יאוש שלא מדעת הוי יאוש. And the גמרא made it very clear that the whole מחלוקת is only by a דבר שאין בו סימן. Something has no סימן. So then רבא says, since it has no סימן, so had he known he lost it, he would have been מיאש, because something has no סימן you're מיאש. So therefore, even though he בפועל wasn't מיאש yet, he was only מיאש later, but it's good enough and הוי יאוש. But by דבר שיש בו סימן even רבא agrees that if you found it before he was מיאש, you can't say, \"Well, had he known he would have been מיאש.\" It's not true! Who says? Maybe had he known he lost it, he still wouldn't be מיאש because it's דבר שיש בו סימן. So there רבא is מודה. No, he, no, in case where he is, if he's not מיאש... Let's say for some reason he, you can be מיאש when something has a סימן. Let's say you have a סימן and you plan to find it. גייט א דריי חדשים and you still didn't find it, so you say, \"Eh, געזונטערהייט, nah, I give up.\" So then you're מיאש. No, by דבר שאין בו סימן we always believe he's מיאש. דבר שיש בו סימן we assume he's not מיאש. But let's say he was מיאש from דבר שיש בו סימן... No, let's say we know. Huh? Let's say a guy found something... You still don't give it back if he was מיאש. If someone was מיאש on something and then you find out who lost it, you don't have to give it to him. That's all דין, that's all יאוש. We learned that last week, last time, לפנים משורת הדין, the אלטער רבי says, taken from גמרא, that you have to, you should, not you have to, you should give back. But באמת there is no, no חיוב, even if you know who it is. למשל, if you see someone drop something, and you hear the guy say, \"Okay, א כפרה, I'm never going to look for it, I don't care.\" The moment you hear that, you know who dropped, you saw the guy drop it, you can take it and pick it up and keep it because he was מיאש. But anyway, so we have a מחלוקת of אביי and רבא. אביי says יאוש שלא מדעת לא הוי יאוש, and therefore if you found it before he was מיאש, even by דבר שאין בו סימן, which we assume had he known he would have been מיאש, nevertheless, since you found it before יאוש, you cannot keep it. And רבא says you could. The

גמרא goes a whole חבילה here and finally at דף כ״ב עמוד ב׳ the גמרא comes to a הלכה. The גמרא שלאגט אפ רבא and the גמרא says הלכתא כוותיה דאביי ביע״ל קג״ם. The הלכה is like אביי in six places in ש״ס and that's it. י', י ע ל ק ג מ, six הלכות, one starts with a י, י is יאוש שלא מדעת, הלכה כוותיה דאביי, יאוש שלא מדעת לא הוי יאוש. So if you find something that he has, doesn't know yet he lost it, and it's a דבר שאין בו סימן, you still can't keep it, even though when he found out he will be מיאש. זאגט די גמרא ווייטער, like this, after the גמרא comes to the הלכה, אמר ליה רב אחא בריה דרבא לרב אשי, רב אחא son of רבא asked to רב אשי, וכי מאחר דאיתותב רבא, now that we שלאגט אפ רבא, that means that now that we פסק'נד that יאוש שלא מדעת לא הוי יאוש, you can't keep it, הני תמרי דזיקא, these dates that the wind blows down from the date tree, היכי אכלינן להו? It used to be like this, the custom, not custom, people used to do it, they used to pass by and you see a tree that belongs to a private person and you see the dates around the tree, they would pick it up and eat it. How could you eat it? That we פסק'נד like אביי יאוש שלא מדעת לא הוי יאוש, so in other words, how do you know that he knows that he lost it and that he's מיאש? So maybe he's not מיאש yet? Even though he might be מיאש later, but who cares? יאוש שלא מדעת לא הוי יאוש. אמר ליה, so he answered him, כיון דאיכא שקצים ורמשים דקא אכלי להו, מעיקרא יאושי מיאש. Since owner בכלל knows that there are insects on the floor that will eat it up, so he's מתייאש even before. So we know he's always מתייאש thinking if it ever falls, I'll be מתייאש. Then the גמרא asks weiter, יתמי דלאו בני מחילה נינהו, מאי? What happens if it's a field of יתומים? Now, יתומים קטנים, it belongs to קטנים. Their father died, it's קטנים, it's still theirs. Now יאוש is almost like מחילה. You're מוחל, you give up. By קטנים there's no such thing as מחילה. So then how could you, any field that you see the trees and you see the dates maybe belongs to a יתום, and maybe maybe the יאוש doesn't help? אמר ליה, באגי באגי דיתמי לא מחזקינן. When we look at a whole valley, a whole thing of fields, we don't think like ממילא, probably one of them is a יתום. Most people are not יתומים that own fields. That's why you're allowed. מוזגי מאי? What happens if there's a field that we happen to know it's from a יתום? כרכסי מאי? What happens if you have a field that you have where the guy made a wall around his fields? אמר ליה, you have to see it in the מסכתא. Okay. So other things here, but since you said make the קיצור, we'll we'll כאפ on one of the things here. When the גמרא said that since we שלאגד up רבא, and the הלכה is like אביי, that's why I have a קשיא,

how could you eat the dates from the trees? זאגט רש״י אזוי: הני תמרי דזיקא, those dates שהרוח משירה, that the wind throws down, היכי אכלינן להו? How could we eat it? הלא לא מייאש! They're not מתייאש. Then רש״י asks the question. Usually רש״י says פשט in the גמרא, he doesn't ask קשיות and give תירוצים, that's תוספות's job. Here it's a different piece. רש״י says, הא דנקט למיבעי מהא דאיתותב רבא קשיא לי, when the גמרא says that the question how could you eat these dates, the גמרא says is it because רבא we פסקן not like רבא because you שלאגד up רבא, I have a problem with that. דבלא איתותב רבא איכא למיבעי, even if you wouldn't שלאג up רבא, in other words I have a קשיא even according to רבא. In other words, even if the הלכה would be like רבא there's a problem, the גמרא could have asked, how could you eat this, why? דהא מודה רבא בכל דבר שחזותו מוכיח עליו. This is the piece of the גמרא before. The גמרא before had a different קשיא and the bottom line the גמרא said that things fall off a tree, you can't eat it even according to רבא. Why? Because normally if fruit lays next to a tree, you could tell that these fruit came from the tree. And if you could tell it came from the tree, so the owner is not מתייאש. So the owner thinks, who's going to take it? When people see him, not talking about a גנב who's going to break into your house also, a מציאה חיה, a פרומער איד who walks by. So if he'll see, he'll walk by and he'll see the dates there, the fruit, and it looks exactly like the fruit of the tree, he'll know it came from the tree. So ממילא the person is not מתייאש. So even according to רבא, the גמרא explained it's even according to רבא. Even according to רבא the גמרא says that because חזותו מוכיח עליו, the חזות, the look, the shape of the fruit looks like the tree, so ממילא even רבא says you're not allowed to take it. So ממילא, פרעגט רש״י a קשיא, why does the גמרא ask that how could you eat from the dates of the tree, because we פסקן like אביי? And if you wouldn't פסקן like אביי, would be the same problem, because these are things דבר ש... because we said before מודה רבא בכל דבר שחזותו מוכיח עליו, anything that the shape shows, except תאנים he said before because that gets squished. ממילא I have a קשיא, why did the גמרא make this question based on the fact that we פסקן like אביי? It's a question according to רבא also. Yeah. Exactly, it's the same in this... Yeah, if they wanted they could pick it off the tree also. We're not saying that people are going to steal, people think that you're allowed to. They know you can't pull it off someone else's, but this they're thinking you're allowed to. So the גמרא says before people won't do that. Why won't they do that? Because you could tell it's from that tree, so you know it came from there. People won't think it fell from somebody else and the guy is not here and will never find it. So the גמרא could have asked this שאלה even according to רבא. זאגט רש״י: ונראה בעיני, I think, I have a תירוץ. דלא נקט לה אלא להרבות בחומר איסור. You're right, the גמרא could have asked the שאלה according to רבא also. Why did the גמרא stress according to אביי? Because according to אביי the קשיא is even stronger. Why? כלומר, מהא דאי... But what if it's a רשות היחיד, it's a רשות הרבים over here, it has nothing to do with it. And even if it's a רשות היחיד, but it's on the side of the street, the tree goes it's... Yeah, how do you have a right to go into their רשות? Yeah, and they're sticking out and they're right, but you know it came from this tree. So he says the קשיא is even according to רבא because רבא is מודה in a case like this because there's a סימן on it. But why is he asking according to אביי? To show the strength, how strong the קשיא is. That מהא דאיתותב if אפילו בדבר שאין בו סימן, even by something that has no סימן, we פסקן like אביי that you can't take it, כל שכן שיהא אסור שחזותו מוכיח עליו. Certainly this should be אסור as there's a סימן. So according to רבא it will also be a קשיא, but because רבא holds by something that has a סימן, he agrees that you can't take it. But according to אביי the קשיא... stronger, 'cause אביי holds that even by something that has no סימן you can't take, יאוש שלא מדעת. Certainly something that has a סימן, this has a סימן, so the קשיא is much stronger. So basically what תוספות is saying that the קשיא is also, what רש״י is saying the קשיא is also according to רבא, and the גמרא just asks it for חומר איסור, to show that according to אביי the סברא is stronger. קומט תוספות, און תוספות קריגט זיך, תוספות argues on רש״י.

תוספות says the גמרא's קשיא is only according to אביי and not according to רבא. And he explains how, says like this: בשלמא לרבא, מילא according to רבא, so he says like this: אף על גב דאותם שנפלו תחת האילן ובסמוך לאילן אסירֵי, טאקע those that are under the tree, or very close to the tree, טאקע are אסור according to רבא, דחזותא מוכח עליה because the shape shows, and that the גמרא never thought was מותר. The גמרא's קשיא is about תמרי שרוח מוליכן ברווח, those dates that fell, fall further away, השתא ודאי לא שייך חזותא מוכח עלייהו, not שייך the shape because you can't tell exactly the tree. So here the question should be that according to רבא is no problem why you're allowed to take it. The one that's under the tree טאקע you're not allowed to take it, and that wasn't the question. The question that the גמרא was asking: those that are far. So according to רבא I understand why you can take it. No, אף על פי ש- second, because יאוש שלא מדעת, אף על פי שהבעלים סבורים שייפול תחת האילן, the owner doesn't know it's going to fall far, the owner thinks it's going to fall under the tree. So the way the owner thinks, is he מייאש or not מייאש? No, he's not מייאש. But מכל מקום, אי הוו ידעי שהרוח מוליכם ברווח, הוו מתייאשים. That's יאוש שלא מדעת. Like every יאוש שלא מדעת, what does יאוש שלא מדעת mean? Had I known that I lost, I would have been מייאש. Here also, had he known that it fell there, he would have been מייאש. So therefore according to רבא, a טאקע יאוש works even though you got it before he was מייאש. And even according to רבא he wasn't מייאש yet, because 'til he finds out he lost it, he thinks there's, whatever he lost, he thinks there's, even if some fell, I'll get it, it'll be under the tree, and the shape shows and I'll get it, so he's not מייאש yet. So that's the sense, according to רבא it's a regular case of יאוש שלא מדעת, even though it has a סימן. That's the whole ווארט, because in his mind it has a סימן. He thinks it's going to fall under the tree. That's why he's not מייאש, even if he knows it fell he's not מייאש. Let's say he knows that percentage is that every day ten dates fall. So he says, \"I'm not מייאש, why? Because I assume it's going to fall here.\" בפועל it fell further. And those are the ones we're talking about, so shouldn't, tell you you're also allowed to take. אגב he wasn't מייאש yet when he picked it up, because he didn't know it fell there, but had he known, he would have been מייאש, so it's like יאוש שלא מדעת. אבל אלא לאביי, the קשיא according to אביי, פה הא הוי יאוש שלא מדעת, is this יאוש שלא מדעת? שהבעלים סבורים שייפול תחת האילן, the owner thinks it's going to fall under the tree, ולא יקחו עוברי דרכים, no one is going to take it, because חזותא מוכח עלייהו. So, so even though you're מייאש later, when he finds out it fell far, but according to אביי that doesn't work. That's why the גמרא says this. That's why the גמרא starts off by saying that my whole קשיא is only according to אביי. Now that אביי is right, I have a problem, but had רבא been right they wouldn't have a problem, because according to רבא you are allowed to take. Not those that fell under the tree, but those... So רש״י doesn't learn like that. רש״י learns that the קשיא is according to רבא also, and the גמרא just says קשיא according to אביי because to make the קשיא stronger, that even though he, even אין בו סימן he holds, certainly בדבר שיש בו סימן אוודאי it should be אסור. And תוספות learns that the קשיא only according to אביי, not according to רבא. Why? Because the קשיא is all that are far. Those that are far are יאוש שלא מדעת. רבא holds it's good, that's why you're allowed to take it, but אביי holds יאוש שלא מדעת's no good, you're not allowed to take it, so the גמרא's קשיא: how are you allowed to take it? So does that mean that those that are far, for sure they're going to be taken, that's why he's מייאש? But he doesn't know they fell far. That's the whole thing, he thinks they fell- had he known, he would be מייאש. That's right, that's why it's יאוש שלא מדעת. That's exactly, יאוש שלא מדעת means now he doesn't know, he's not מייאש yet, when he finds out he's מייאש. Because they, for sure they're going to take it, because they... Right, right, right, for sure they're going to take it. Every יאוש שלא מדעת's like that. When he finds out that he lost something has no סימן, why is he מייאש? Because for sure they're going to take it, because it has no סימן, he knows I have no way to get it back, he's going to take it. Exactly the same thing here, but he holds it's good. Even though he wasn't מייאש before, but since he knows, since we're saying had he known he would have been, which is true, had he known he would have been מייאש. Okay, so the קשיא is not on רבא, it's a קשיא on אביי, so what's the, there's a מחלוקת רש״י and תוספות. So what I'll try to do is just explain the reason for the מחלוקת. One of the reasons, there's מחלוקת on both sides, but for one side, explain why תוספות does not learn like רש״י, and why... What's it based on, this whole נקודה? So this נקודה is connected, בהמשך, to what we spoke about last week. We'll have to go through that very בקיצור, what we said last week. So like this. בכלל, I'll repeat it בקיצור. בכלל, what the יסוד of the מחלוקת is between אביי and רבא? Whether יאוש שלא מדעת הוי יאוש or not. So in the in the מפרשים we find בכללות two ways, but both of them have the same נקודה. Two ways is like this.

One way is רבא holds that יאוש בכח, the fact that I lost it, and even though I wasn't מייאש בפועל yet, because I didn't know I lost it yet, but בכח, or using תוספות's words here, it's עומד ליאוש, because בכח, potentially, this is something a person is מייאש. So if תוספות said רבא holds יאוש בכח is enough. Since you don't have to be מייאש בפועל, יאוש בכח is enough. Another way to learn is because the fact that you're מייאש later works למפרע. When you're מייאש later works for now. But even that בעצם also has to do with the fact that יאוש בכח. Because why in the world should we say it works retroactively? Why in the world should we say you do something now, it's like you did it before? It doesn't make sense, we don't do that. The only reason is since לכתחילה it was already יאוש בכח, ממילא now when you're מייאש בפועל, it goes back to the beginning. So there is a difference between the two ways. The difference is what happens if the guy never found out he lost it? Never found out. He never was מייאש. So according to the first way, who we don't care, still good. Because יאוש בכח is good enough. According to the second way, the only reason יאוש בכח is good enough because later on when you were מייאש, it goes backwards. So what happens if you were never מייאש? That doesn't work. So the

bottom line is they both follow the idea בכח. That רבא holds יאוש בכח is enough. The question is only one פשט is יאוש בכח itself, יאוש בכח is enough. Another פשט is יאוש בכח is enough only when you were later be מייאש, then it's retro... But if he lost it, it's for sure he would be מייאש. Right, that's called יאוש בכח. He's not, even though בפועל he didn't have it, but בכח, potentially, it's there. What's רבא What's אביי's סברא? So we said last week, אביי's סברא is that he disagrees, obviously he disagrees with this יאוש בכח. Yeah, it's not enough. So I explained there are two ways to learn that גופא. You can learn he argues against the whole concept of יאוש בכח. There's no such thing. Has to be יאוש בפועל, there's no such thing יאוש בכח. יאוש בכח is not enough. The only time יאוש works if there is יאוש בפועל. The כח is so small that it doesn't count, that's not good enough. The second way you can learn, no, אביי agrees that in in concept, in עיקרון, in בעצם, יאוש בכח would be good. If it's a real real בכח. The fact that it's a דבר שאין בו סימן is not enough בכח by me. Because actually some people are not מייאש, you never... If something would be ודאי ודאי that he's definitely, more even than a דבר שאין בו סימן, then אביי would agree. Because in theory he holds that יאוש בכח is good. Just this I explained last week. Just to add something which I didn't say last week, what's the סברא if he doesn't agree with יאוש בכח, why would he not agree? Or why would רבא hold יאוש בכח is enough? So just to make it... The שאלה is like this: when you lose something and you're מייאש, the person who finds it could keep it. Why could he keep it? What makes the היתר to keep it? You could say two ways, you could say like this: the fact that I lost it is already 50% of a reason I should be able to keep it, but not enough. Then if you add יאוש to it, you're allowed to keep it. Or you could say no, the fact that I lost it means nothing, it's still mine and no one could take it. What allows the ענין that I'm able to keep it? יאוש! So the first way, you don't need a very strong יאוש, because all you need is to add up, because בעצם there's a ענין of you losing it you could keep. A שטיקל ראיה to this סברא is, why is it that when a גוי loses something you're allowed to keep it? Isn't there a din? The din is with a siman or with everything, you're allowed to keep it. Lifnim mishuras hadin would be... So a גוי, it's that קידוש השם... You should make קידוש השם, you should give back. But you're allowed to keep. אבידת עכו\"ם מותרת. גניבת עכו\"ם is אסור. You're not allowed גניבה. A איד who loses something and I take it when I'm not allowed to, I'm עובר on the איסור of השבת אבידה, that's a... But I'm עובר on גניבה, I'm stealing someone else's thing! And since

גניבת a גוי is muttar, so why why why is it... Yeah, גניבת a גוי is אסור, I mean מדאורייתא, the אלטער רבי says this clearly, אסור לגנוב משהו בין מיהודי בין מעכו\"ם דבר תורה. It's a דין דאורייתא. So why are you allowed to keep? So you could say it's a גזירת הכתוב, okay. But normally, what would you say? The fact that a person lost it is already enough that it's it's it, cut off from you. And by a גוי, you're allowed to. But תורה, the אייבערשטער said that you have In order to do that, you have to be מייאש also. Or you could say no, you lost it means nothing, it's still yours. אי by a גוי, that's a גזירת הכתוב, the תורה says that you're allowed. But the only thing that makes it is יאוש. Or you could say, רבא holds that יאוש בכח is enough because you don't really need a strong thing to make it, because the losing itself is something that gives you the right, and therefore יאוש בכח is enough. And אביי holds no, you need יאוש, יאוש בפועל. But that's only one way to learn that the מחלוקת is, אביי holds there's no such thing as יאוש בכח, and רבא holds, what do you mean there's no such thing as יאוש בכח, there is such a thing. The other way to learn is, in theory they both hold there is such a thing as יאוש בכח, second way. But, אביי holds you have to have a very strong יאוש בכח. I said then that this is a source of the מחלוקת. These two ways we learn in the מחלוקת of אביי ורבא is a source of the מחלוקת of רש״י and תוספות. נו, we'll get to here, we'll end up here in a different מחלוקת. We

have a דין of called זוטו של ים. The גמרא brings a ברייתא which says that you have to return anything, אשר תאבד ממנו ומצאתה, whatever is lost from him and you found it, you have to return. So the גמרא דרשנ'ס here, יצא זו, here, מי שאבודה הימנו ומצויה אצל כל אדם, only things which he lost, but other people have access to it, then the תורה says give back. יצא זו, we exclude something that אבודה הימנו ואינה מצויה אצל כל אדם. What's that? למשל, זוטו של ים. If the river overflows, takes it away, the תורה was מתיר it. תורה is clean that that's something that at the moment when it left to the other nobody could get it. Happened to be later someone happened to find it, but since it was at a level of זוטו של ים, you could keep it. That's what we learn out from a פסוק. רש״י learns that the reason for this דין is because of יאוש. Because ודאי מיאש. Because something like this, the תורה assumes it's ודאי יאוש. So this פסוק is based, the לימוד of this פסוק, why is זוטו של ים מותר, because of יאוש. Not only that, רש״י in בבא קמא דף ס״ו learns that the whole דין of יאוש, where do we find in the תורה a דין of יאוש? Where do we take it from that a יאוש works? It's from this פסוק. Since the תורה says זוטו של ים you're allowed, and the reason is because for sure מיאש, from here we see there's a concept of יאוש. תוספות, on the other hand, in Even if the guy doesn't know about it. Even if the guy doesn't know about it? Yeah, even if the guy doesn't know about it. We'll see in a second, yeah. רש״י says here, I'm quoting from דף כ״א עמוד ב׳ by זוטו של ים, so he says here, the גמרא says התורה התירה, רחמנא שרייה, ואפילו באת לידו לפני יאוש. The גמרא when it's getting in a מחלוקת יאוש שלא מדעת, the גמרא says like this, בדבר שיש בו סימן, even רבא agrees it's אסור. By זוטו של ים, even אביי says it's מותר. כדבעינן למימר לקמן, like the גמרא says later, and רש״י says it means even if you've found it before the guy knows and before he was מיאש, because ודאי מיאש. It's a, again, it's a certainty, you know for sure he's going to be מיאש. This, so רש״י learns it's מטעם יאוש.

תוספות in בבא קמא דף ס״ו says, we don't learn out יאוש from here. תוספות learned from a different פסוק, remember? שמלה, we learned once in the שיעור. From the פסוק אף שמלה, whatever, it's a different פסוק. And all the ראשונים say, why doesn't תוספות want to learn from here? Because תוספות learned this is not because of יאוש. This דין is a גזירת הכתוב. It's not יאוש. In fact, the רא״ש says, what happens if the guy is standing there and watches it happen and he screams, I'm not מיאש! It's too bad, you could still take it. So רש״י will learn, even though he says I'm not מיאש, that's a געדרייטע קאפ, he's just saying this, he's really מיאש. So who comes shoots, he said imagine you see he says, כצווח על ביתו שנשרף, your house is burning, I'm not מיאש! You're מיאש. So רש״י holds it's יאוש, and תוספות בפירוש holds it's not יאוש. הלכתא למשיחא, there's no מחלוקת. גזירת הכתוב זוטו של ים, no? זוטו של ים. So, so תוספות says this is not because of יאוש, it's a גזירת הכתוב. Fine. What's the basis of this מחלוקת? I'll tell you what the basis is. If you learn that אביי holds that there is no such thing as יאוש בכח, how could you learn this is יאוש? As ודאי as it is that he is going to be מיאש, but בפועל it's still בכח. It's a very strong בכח, we're so sure it's going to happen. But how could you allow it? The קושיא is that before he was מיאש, on what basis can you keep it? If you learn it's because of יאוש, there was no יאוש yet! And אביי holds that יאוש בכח, according to that version, יאוש בכח doesn't work, there's no such thing as יאוש בכח. So how does it work? So we have to learn it's a גזירת הכתוב. But if you learn the other way, that אביי agrees that יאוש בכח works, just says that דבר שאין בו סימן is not a יאוש בכח enough, but זוטו של ים which is a hundred percent going to happen, that's a good ייאוש בכח. So you could learn that this is ייאוש, and it worked because of ייאוש בכח. So if we're saying that these two לימודים, whether this is a because of ייאוש or it's a גזירת הכתוב, depends on these two ways, and since רש\"י is the one that holds that this is because of ייאוש, so obviously רש\"י goes with the שיטה that אביי holds that ייאוש בכח works. The argument why he says though that ייאוש שלא מדעת לא הוי ייאוש, because it's not good enough, but בעצם ייאוש בכח works. משא\"כ תוספות, and the others, the רמב\"ן with תוספות, and also the רמב\"ם. No, the רמב\"ם holds like רש\"י, I mean תוספות, הרמב\"ן, and other, ראש, they will say that this is not ייאוש, it's a גזירת הכתוב, for this reason, because they they can't say this is ייאוש, because they hold, תוספות holds that אביי doesn't hold of ייאוש בכח בכלל, so how could it be ייאוש? The best ייאוש, the best ייאוש בכח, but אביי doesn't agree with the concept of ייאוש בכח. So ממילא, that's what he has to hold with. So

what we turned out from here is that there's a מחלוקת between תוספות and רש\"י in the whole approach of what אביי's שיטה is, what אביי holds. תוספות says אביי holds ייאוש בכח is nothing, and רש\"י holds ייאוש בכח is something, you just got to have a starker ייאוש בכח. לפי זה, I want to come back here and say that this מחלוקת here between רש\"י and תוספות is based on the same מחלוקת ממש לשיטתם. Why? One of the another difference between these two sides, whether אביי doesn't agree of ייאוש בכח at all, or he says it is true, but you've just got to come to a really really strong ייאוש בכח, is one another thing. According to אביי, let's think about this, according to אביי, is it a stronger איסור by by ייאוש שלא מדעת by דבר שיש בו סימן, worse than דבר שאין בו סימן? Same thing. If you hold, no, if you hold that the reason is because he doesn't hold of ייאוש בכח, there's no such thing, so what's the חילוק if it's דבר שיש בו סימן or דבר שאין בו סימן? The problem is one and the same exact thing both. As long as the person wasn't מייאש, nothing. What's the חילוק was מייאש דבר שאין בו סימן? So it's more chance he would have been מייאש, who cares? That's not the point. The point is you have to have ייאוש בכח or no ייאוש בכח. דבר שיש בו is the exact same thing. If you hold that אביי agrees that בכח is better than not that in levels of בכח, because there are levels of בכח, so דבר שאין בו סימן is very close to בכח, it's a closer בכח, and nevertheless he says not. דבר שיש בו סימן is a further away בכח. It's even more סברא. דבר שיש בו סימן is more סברא that you should be אסור, because דבר שיש בו סימן is a even a lesser בכח, because he holds בעצם it depends on how on בכח, and there's a certain level of בכח which would work, so the lesser בכח is, the more איסור it is. So it comes out like this: we finished saying that רש\"י learns that אביי holds there is such a thing as ייאוש בכח, you just have to have a strong one. So according to רש\"י, we just finished saying according to this that by ייאוש של by דבר שיש בו סימן it's more איסור, more less reason for איסור. משא\"כ according to תוספות, תוספות we said holds that this is not because of ייאוש, because תוספות hold אביי holds ייאוש בכח is nothing. What's the difference between דבר שיש בו סימן and דבר שאין בו סימן? And here we have the מחלוקת. תוספות cannot agree to רש\"י. What did רש\"י say? Now let's go to the beginning.

What did רש\"י say? The גמרא asks, how could he eat these dates? תוספות and רש\"י asks, and he wanted this to be a קשיא according to אביי. So תוספות, רש\"י, it's a קשיא according to רבא also, because according to רבא you can't eat the cedars, it's a דבר שיש בו סימן, because it's כגוזא דמחיא חבלא. So תוספות, so what did רש\"י answer? Answer is, פשיטא, it's a קשיא on רבא also. The only thing is, according to אביי it's stronger, that surely even this is a דבר שיש בו סימן and still you're allowed, so it's a stronger קשיא on אביי, it's more even. So תוספות can't accept it, because תוספות says, what are you going to tell me, the גמרא's thinking, because this is to tell us a חומרא, רש\"י's לשון is here, yeah, נראה לי דנחית לה להרבות בחומר איסור, כלומר, מאחר דאפילו בדבר שאין בו סימן, כל שכן דיש בו סימן. So that's why it's according to אביי to show stronger. So רש\"י who says that according to אביי there is an ענין as ייאוש בכח, where do we see that רש\"י holds like that, because he holds זוטו של ים is ייאוש, obviously ייאוש בכח is something, because otherwise he couldn't work זוטו של ים, ייאוש בכח is valid, but you have to strong, so you דבר שיש בו סימן is stronger than דבר שאין בו סימן. וממילא the גמרא you could learn פשט the גמרא wants a חומר איסור. משא\"כ תוספות, תוספות says I hold, רש\"י holds, no such thing as ייאוש בכח, so there is no חומרא. So what זאגסטו מיר that he's telling it to אביי, אביי yeah, what זאגסטו מיר that you can tell me that this is because ייאוש, because it's a stronger חומרא? It's not a stronger חומרא, it's היינו הך. So that's what had to find a different פשט. What is the other פשט? They were talking about something that's outside. We know how רבא holds. We know how רבא holds, right? Huh? We know how רבא holds, right? What do you mean? I mean, it's I mean, the problem is how to learn out אביי. Right. We know how רבא holds anyway. No, תוספות makes it that if it would be not talking about the far ones, it's a קושיא on רבא also. תוספות just says that I'm telling you the קושיא not on רבא because he's talking about the far ones. What makes made תוספות say talk about the far ones? Why couldn't תוספות talk about the close ones and learn like רש״י that the קושיא is on רבא also? And the reason it mentions אביי because it's a stronger קושיא on אביי. So I'm saying תוספות couldn't learn like that, because according to תוספות, it's not a stronger קושיא, it's היינו הך, it's the same thing. So תוספות had to find a different דרך. משא״כ רש״י has no problem because רש״י תאקע נו שוין, ביטע שיין, ביטע שיין. Thank you. One more thing on it's a continuation of last week. בכוח and לא בכוח. Why can't you say that אביי that there's a third way, and it was just it just hit me again today. There's בכוח, then there's the that it's a that it's a גזירת הכתוב. If it was a גזירת הכתוב You mean by זוטו של ים? By זוטו של ים. But if it was a גזירת הכתוב, so why wouldn't it have some sort of philosophy or reasoning behind it? Why can't you say That's the whole קושיא! גזירת הכתוב there is no reasoning! There is no reasoning, but there is, because by There is a פשט גזירת הכתוב. But that's my point, that must be the even if No, תוספות cannot hold there is a What reasoning could be, יאוש? The only reasoning could be יאוש! Yes, but it's not No, but תוספות holds that it wouldn't work for אביי. We're trying to do according to אביי it works even before you're מתיאש. Right. But if יאוש בכוח doesn't work, then it won't work. It won't work In order to say בכוח, in order to say this is יאוש, you have to say that even though he wasn't מתיאש, the only way it could work is it's בכוח. And אביי could say it's a strong בכוח. But if you don't hold that, if you hold that אביי doesn't agree with the concept of יאוש בכוח, then it can't work! So, you have to say it's a גזירת הכתוב. There's no other way. How can you say it's a גזירת הכתוב, how can you say it's a גזירת הכתוב when the when the when the גמרא and the כתוב talks about a reason behind it? Which? Where is it? Because Which? Who talks about it? That's the whole because that's what they all discuss, because that's what they believe. No!

Why do you need a גזירת הכתוב for that? Because I wouldn't have known it! I would not! על פי פשט, I would not! You drop the note in the Atlantic Ocean, somebody's house is burning down, the guy's going to not have יאוש? It's the same thing as burning down the house. No! Who who who said that works? That's יאוש בכוח only. Forget about בכוח and לא בכוח! Why can't you Then can you think how could it be that if it's not if if יאוש בכוח doesn't work, how is it that if it fell and I don't know that it fell into the ים, how could you say Because there's another category. A third What's the category? גזירת הכתוב! Impossibility! That it's a cr- a crazy situation. No, that's why גזירת הכתוב! So גזירת No, but did the תורה the תורה doesn't mention זוטו של ים. The תורה says if it's a situation where it's lost completely to the world, whether it's זוטו של ים or like we learned that other example, it was by a lion, in front of a lion. Please! But that's not יאוש. That's גז- גזירת הכתוב is that if it's in a situation where no one can have access to it, you're allowed to keep it, not because the owner is מתיאש. Because then it's not a גזירת הכתוב. They tried to say that this is not because it's The תורה is telling you there's a situation where you're allowed to keep it, even though it's the guy's thing. Normally, you can't take somebody else's, and he wasn't and he wasn't מפקיר it, and he wasn't even מתיאש, and his kids are not מתיאש, or he doesn't even know about it, you still can take it. גזירת הכתוב! So, you shouldn't learn anything about giving up hope from it. That's right, תוספות doesn't learn from here. תוספות learns where you give up hope is from אשר תאבד שמלה ומצאתה. Nothing to do with יאוש according to תוספות. Like maritime law. Like what? Think about maritime law. Tell me what that means. When something's sunken, sunken ships Yeah, that's what that's what I'm saying. Why is it? Because the guy who lost it a hundred years ago Is מתיאש! So That's why תוספות held יאוש! It's הפקר. You could say it's הפקר. Why is it הפקר? I mean, we can't say it's סתם הפקר. Why is it הפקר? Because the guy gave up on it. That's it! But if בכוח doesn't work, because if it's יאוש בכוח it doesn't work, because he doesn't know it's in the ים, it's not! That's what it is, that's what I'm trying to think of. A third category. It's a space warp. It's like a time Because there is, there is a time machine! There is a time for that, there definitely is a time for that. איזה קסם, וואס? משה, a גזירת הכתוב tells you something that you wouldn't have otherwise known. Right? Cuz tell me that in הלכה I would have not known it. Right, in הלכה I would have not known it. That's the whole point, that's what I'm saying. All these is just a different way to look at הלכה. Yeah, that's what Einstein said! What? Why are we limited by looking what's the limits of us in the world? This is a תורת אמת! What limits us in the world, the the prism through which we're looking. If I'm going to say I only can see this because of the glasses that I'm wearing. I have glasses, I'm looking through the glasses of כוח. Take off the כוח glasses, but forget גזירת הכתוב. Then you can't keep it! There must be other glasses that are other than that. No, why? גזירת הכתוב, where did it come from? A logical reason. No, there is no logic! If it's What? Something is mine, you cannot keep it! What do you mean you cannot keep it? But it's dead! It's dead, absolutely. That's a that's a joke. No, but it's a good It's a joke! It's not a joke, he's saying what it is. It's a סברא. Come on, we said property would keep cut off forever, has nothing to do with חיוב. So when it's dead, it's because it's dead to you, it's cut off from you. So? So therefore, it's not yours, somebody else's. Well, why is it not yours, on what basis? On what basis? If it if it drops No, there's no other thing. There's no other thing! Why is there no other thing? Or there's a דין of ירושה, or the תורה tells you it's, what's that? ירושה! But what's behind ירושה? Why do you have to limit it to חיוב? Because the ארון is closed you can't see it, and if it's open you can see it. If it's closed But what if the ארון is closed The layman is likely to cut off you can't make a ברכה on the אתרוג. What? There's a there's a there's a whole there's a whole קושיא on that. What's פשט? Is today תולים בכוח? There has to be. There has to be. I thought I was postponing the trip to California. What? When you called, I thought I was postponing the trip to California. I was going to postpone it a week. I thought it was final. Well, fortunately I was able to go. I was able to make a פרנסה over there. Fortunately,