Ready to go. This shiur is again a hamshach to last week. The same sugya, we're still on the sugya of יאוש שלא מדעת. Yeah, after יע\"ל קג\"ם. So it's the hamshach and the same inyan and the same מהלך המחשבה as we say, the same gang of the whole idea. We're talking about יאוש שלא מדעת. We all know what יאוש שלא מדעת is. We know that if a person loses something and the owner gives up hope, the person who finds it can keep it. Here we're discussing if the person who found it found it at a time when the one that lost it doesn't know yet he lost it, so he didn't give up hope yet. So Abaye says יאוש שלא מדעת, that ye'ush doesn't count. Since it came to his hand, the guy picked it up before the owner was מיאש, so even though the owner was מיאש later, too late, it doesn't work. And

Rava says it does work. And the Gemara as I said, I'll repeat it again, the Gemara said before, something which has a siman, even Rava agrees, just remember this, it's important for later, even something that has a siman, even Rava agrees that if he found it before the guy realized he lost it, and even if he was later מיאש. Normally by דבר שיש בו סימן, something has a siman, the person is not מיאש. But even if it was a case where they had a siman and the guy was מיאש, gave up hope, but because the one that found it found it before he was מיאש, he can't keep it. But that everyone agrees. The argument between Abaye and Rava is a דבר שאין בו סימן, something doesn't have a siman, which we assume, since it doesn't have a siman, probably when he will find out that he lost it he'll be מיאש. Or let's put it in other words, had he known now that he lost it, he would have been מיאש. We could assume that. Nevertheless, Abaye says לא הוי יאוש, and Rava says it is ye'ush. This is the Gemara before. Comes here the Gemara and the Gemara says a kushya on Rava. The Gemara had all kinds of kashyot, answered them. Here the last thing is a kashya on Rava, and the Gemara had no answer. And because of that, the Gemara pasken't הלכתא כאביי ביע\"ל קג\"ם, the halacha is like Abaye, that דבר שאין בו סימן, אפילו דבר שאין בו סימן, doesn't have a siman, if it's יאוש שלא מדעת, the person found it before the owner realized he lost it, it's not ye'ush, you cannot keep it. Even though he's mityaesh takeh later, it doesn't help. So the Gemara weiter after that: אמר ליה רב אחא בריה דרבא לרב אשי, Rav Acha then arrived to רב אשי, דכי מאחר דאיתותב רבא, now that we schlogged up Rava, Rava is wrong, and the din is יאוש שלא מדעת doesn't work, I

have a she'eilah: הני תמרי דזיקא, those dates that the wind blows off the tree, היכי אכלינן להו? How can we eat it? Even though later when the guy will realize, the owner of the tree will realize that it fell, he might be mityaesh, but we pasken like Abaye that יאוש שלא מדעת doesn't work, and when you pick it up, not necessarily he knows about it yet, so how could you keep it? And it seems like, that's what, that's the din. What? No, he can't get it for yourself in this case because if you're mityaesh. But let's finish the the the whole thing here. Because it looks like those days people used to do this. They used to walk by a field and there was a tree that hung out, and it's actually even in a case where it stuck out into the street, and under it you found, under it, and we'll see later, you found the the the tamarim, the dates. People would pick it up. How could you pick it up? It's יאוש שלא מדעת, and we pasken like Abaye! So the Gemara says, אמר ליה, so he answered him, כיון דאיכא שקצים ורמשים דקאכלי להו, מעיקרא מעיקרא מייאש מייאש מינייהו. Since there're always there's insects and things that are there anyway, so the person is mityaesh right away. So then the

Gemara asks, what about yesomim? Why don't we think maybe the the tree belongs to a yasom? A yasom, an orphan, doesn't mean an orphan, a katan. Why do we pick an orphan? Because how would a katan own property? The only way it could be, his father passed away and he left children, so they own it now. דלאו בני מחילה נינהו, a katan cannot be mochel, there's no such thing as a katan being mochel, his mechilah doesn't work, so his ye'ush doesn't work either! So how could you take it? אמר ליה, so he said, באגא באגא, אמר ליה, באגא בארעא דיתמי בארעא דיתמי לא מחזקינן. When you see a whole bunch of fields, there's no reason to suspect that one of the fields belongs to a קטן, so why should you think it's a קטן? And like Rashi says, you go בתר רוב, most fields don't belong to קטנים, so you're allowed to. בדק ואשכח מאי? Yeah, what about if you happen to know that this is a tree belonging to a קטן? או כרכשא מאי? What happens if you have a wall, the guy made a wall around the field, around the trees, and you have a wall around, you see the way Rashi says there are no insects that could get in there. So here, you obviously he can't be מתיאש. The reason he said you're allowed to take it because he could be מתיאש, but he's not going to be מתיאש because of that. אמר ליה they said, you're right. אסירן and in this case, it's אסור. Okay, this is the Gemara. So if it's a חצר, Uh? If there's a חצר. If there's a wall. A wall. What kind of field, you know, kind of like wall in there is when it's Okay, right. There's shouldn't be no insects, right? No, I don't I don't mean insects. Crawl they're crawlers then Oh yeah, okay, call them. Rashi says, שאין קטנים ורוחצים נכנסים. I don't mean the flying insects. No, they're they're just good. Yeah, you get what I mean? It's just good, yeah. שקצים ורמשים שקצים ורמשים. So, as I

mentioned last week, there is a מחלוקת רש״י ותוספות and that like they now this time, in all three questions, there's a מחלוקת רש״י ותוספות. We have basically three questions here. One question is how could you eat the dates of the tree? Then there's another question, if they're קטנים. Another question, if there's a wall. So there's a מחלוקת רש״י ותוספות. Rashi says on the first case, when the Gemara asks, since we disprove disprove Rava, so the הלכה is יאוש שלא מדעת doesn't work, how could you eat the the תמרים the dates that fall from the under the tree? Because יאוש שלא מדעת לא הוי יאוש. So קשה על זה, והא דנקט למיבעי בעיין אליבא דהתם דרבא קשה לי. I don't understand, why is this קושיא only according to Abaye? We said, since we don't פסקן like Rava, and it's like Abaye, now we have a קושיא. Rashi says should be a קושיא on Rava also, even if it's פסקן like Rava. Why? Oh no, cuz Rava said before this is a Gemara at דף כ״ב עמוד א׳, Rava said that fruit that are under a tree, it's considered like it has a siman. Not the מכה, it's חזותו מוכיח עליו, because the shape, if you see the fruit on the tree, and you see the fruit on the floor, you could tell that it's the same type of fruit and it came from here. So mimela, there the Gemara says that you're not like Even according to Rava, a דבר שיש בו סימן, something that has a siman, even Rava is modeh that you can't יאוש שלא מדעת לא הוי יאוש. Since this is a דבר שיש בו סימן, this has a siman because it's under the tree, so even according to Rava should be a kushya. So why does the Gemara say that, did nah and now that we have a we've slugged up Abaye Rava, halacha is like Abaye. Mimela, I don't know how do we eat this. And if the halacha would be like Rava, I also don't know. That's what Rashi asks. דלאי תוספות דרבא איכא למיבעי, he could ask because מודה רבא בכל דבר, anything that looks like that has a siman. ונראה בעיני רש״י answered, \"I think, דלא נקט ליה לאחמורי סבר.\" Be'emet, taka the kushya is on Rava also. But Gemara is mentioning Abaye because according to Abaye, the kushya is stronger. What's the stronger? כלומר, דאידך לאיתיביה אפילו דבר שאין בו סימן Since even by something it has no siman, we pasken it's no good, kol sheken these things which have a siman. The kushya is why according to Abaye? Because according to Abaye, it's a stronger kushya. That's what the the Rashi says. So be'emet, Rashi learns that the kushya would be on Rava also. Comes Tosafos and Tosafos says the kashya is only on רביי, not on Rava. Uh, Tosafos has a different peshat. Why? So Tosafos says like this. The which fruit look like the fruit of the tree that you could recognize? Only the fruit that's under the tree. What happens if those fruit that the wind blows and they blow far away? There there's nothing to recognize. That's the גמרא שאלה. The גמרא שאלה is like this. The fruit that fall under the tree, I could understand that that you can't be taker because has a siman, and doesn't work. But a fruit that's far away, how could you eat that? That question is only according to Abaye. Why? According to Rava, he says that's יאוש שלא מדעת, which Rava holds ye'ush What does Rava hold יאוש שלא מדעת? בשעת it was lost, he didn't know about it yet. But we assume that when he will find out, he will be mitya'esh. It's exactly what's happening here. The owner thinks everything is going to fall under the tree. He doesn't assume it's going to fall later. If was further, if the appeal falls further, he did not be mitya'esh yet, but when he will find out that it fell further, he will be mitya'esh then. So this is exactly the case of יאוש שלא מדעת. So, he says like this. Bishlama according to Rava according to Rava, I understand why you're allowed to eat the fruit that fell far away. Even though בשעת you picked it up, the owner doesn't know yet that it fell there. Good, but Rava said he doesn't know yet, but he'll know later. And this is not a דבר שיש בו סימן, cuz if it's far, it has no siman. What if it's full of other simanim? Uh? Why does it fall so far? Because you can recognize from the tree, you know. But so you say that's the whole point. So the fruit didn't change and when I know, but it's you can't recognize there is no siman on it. Only siman is you can't No, that's called אין בו סימן. The siman means if there's a way I can prove it I could see, the guy won't pick it up because he looks at the fruit and he says, \"Oh, it's from there.\" So the owner is not mitya'esh, because the guy knows. Just 'cause the owner knows, what do I care? If he doesn't know, it's different on a חצר of a בעל הבית. Wait, didn't we say, the Gemara says that the fruit of a tree looks like the tree. Every tree has its own own shtempel, its own style. What if what if the fruit fell away, then it could be That fell away, there you can't That could be someone else's even, it could That's exactly it, now. Fell on someone else's, that's exactly, could fell away. But the guy doesn't know it fell there. But when he's going to find out that it fell there, then he'll be mitya'esh, because then it has no siman. Lechatchila No, no, but he doesn't know. Tosafos explains the Gemara's she'eilah. Maybe two neighbors would have the same kind of tree. בדרך כלל, every tree you could recognize, they're not exactly the same. So How come he was so insistent in they're not that it's supposed to be, the wind blew it far? That's how Tosafos learns the Gemara's kashya, that the wind blew it away. If it falls right under a tree, why would I mean, you don't have to come onto this special case, because a date under a date tree is probably No, no, that's already, okay, we're not going to go through the whole sugya before it. That's all based on the sugya before in the Gemara. Did we learn that? No, we didn't talk anything about this. No, this is a whole sugya with this whole thing that Rashi brings that tree, fruit looks like the tree, is a whole sugya in here in the Gemara's she'eilah and there's a big Tosafot here. So, Rashi learns that the Gemara's kashya is even is בנוגע the fruit under the tree. And the fruit under the tree is considered a דבר שיש בו סימן. So even according to Rava you shouldn't be able to keep it, because even though it's ייאוש שלא מדעת, but something that has a siman, Rava is מודה ייאוש שלא מדעת is not ye'ush. So the Gemara's kashya is according to Rava also. Why did the Gemara ask a kashya according to Abaye only? Because stronger. Abaye holds even by if it doesn't have a siman you can't keep it. If it has a siman, certainly. Tosafot says no, the Gemara's kashya is according to Abaye only, because the Gemara's kashya is on the fruit that fell further away. That fell further away has no siman, because there's the whole siman is because it's under the tree. So it has no siman, but he doesn't know he lost it. But later he'll find out, he'll be mit'ya'esh. So Rava says it's fine, that's why you could eat it. The kashya on Abaye who says ייאוש שלא מדעת לא הוי ייאוש, that's the Gemara's kashya, Tosafot explains. That's the first thing. Comes to the second thing, actually last week I spoke about that first thing and I explained the machloket of Abaye and Rava, but now I explained that again further with other details. The second case: the Gemara's she'eilah by ketanim. Now lichorah, is this a kashya on Rava also? How can you take the fruit from the tree when it might be from a katan and a katan's's ye'ush doesn't work? Does this have anything to do with Abaye and Rava? Seemingly, no. So Rashi doesn't say, because Rashi learns it goes according to Rava also. Just like the first thing was a kashya on Rava also, this one was also a kashya on Rava. The kashya is בכלל: ייאוש שלא מדעת, is ye'ush, not ye'ush, is a problem here. There's no ye'ush. The ye'ush doesn't work by a katan. If you know it's from a katan Yeah, that's the Gemara's she'eilah, like to suspect, no? So the Gemara answers we don't know, so we don't suspect. All right, so the kashya, the kashya was maybe it's a katan, so how could you have it? It's a kashya on Rava also. It has nothing to do with ייאוש שלא מדעת. Comes Tosafot and Tosafot says no, it's a kashya only on Abaye. He says, yeah. Says, בשלמא לרבא, according to רבא it's no kashya. I know why you could eat it. אי, maybe it's a קטן? דכיון דלכי גדל מייאש, השתא נמי מיקרי ייאוש. Since this katan is going to grow older, when he will grow older his ye'ush will work. So just like Rava holds ייאוש שלא מדעת הוי ייאוש, because he's going to be mityaesh later it works now too, because his ye'ush will work in five years from now, it's mityaesh now too. Mimela, according to Rava it's no problem. If you say that, then everything should work that way. Then there shouldn't be even no thing of ye'ush with קטנים, cuz they're always going to be, it's a future thing. According to Rava there is Yeah, so that's what Tosafos says. According to Rava, takeh there is But yeah, there is. According to Rava there is, because ייאוש שלא מדעת הוי ייאוש, according to Rava ייאוש of a קטן works. That's what the Gemara says, according to Tosafos. The Gemara is saying the kashya, then how does ye'ush of a קטן work? So, Tosafos says according to Rava it's no problem because of this. The kashya is according to Abaye, which ייאוש שלא מדעת לא הוי ייאוש. Oh, so then Rava holds that a קטן is always being mochel then based on that on that logic? No, that's only by ye'ush we're saying this. You're asking, he's asking a good she'ela, why don't we say by every mechila like that? So, all the mefarshim talk about it. We can't talk on כל התורה כולה על רגל אחת. Then the

third she'ela: כרכשתא, if you have a wall around. And what happens if you have a wall around? The שקצים ורמשים, these crawlers, can't get in, mimela he's not mityaesh. So, you shouldn't be able to eat. Does this have anything to do with Abaye and Rava? It's a kashya on both, לכאורה, it's a kashya on both. Since there's no, if there's no שקצים ורמשים, so he's not mityaesh, if it's an אבידה, something that's lost, and the owner is not מתייאש, how could you eat it? If there's a wall, how do people get in the field? You open the door. Ah, it's not fair. So, so it's a kashya according to פשטות, which Rashi doesn't make any mention of Abaye and Rava, because normally it's a kashya on Rava also. So all three cases according to Rashi. Tosafos says, \"No, on the third case, by Tosafos, it's only a kashya on Abaye, not on Rava.\" Why? So Tosafos, it's the same thing explained in the first Tosafos. We're talking like this: those fruits that fell out of the wall, so they fell out of the wall. Those that were in the wall, take Rava take take you can't, the Gemara never thought about it, for sure you can't. The Gemara's question was those that fell out of the wall, but the owner doesn't know it fell out of the wall. He thinks that everything will fall in the wall, so he's not מתייאש. But when he will find out that it fell out of the wall, he will be מתייאש then. So according to Rava there's no problem. Adrabah! That's יאוש שלא מדעת. Now he doesn't know, later he'll find out, he'll be מתייאש. So that's why you're allowed to eat according to Rava, those that even though you made a wall around it, but whatever fell out of the wall, you're allowed to eat cause יאוש שלא מדעת. But according to Abaye that he holds יאוש שלא מדעת is not יאוש, so those that fell out of the wall you also shouldn't be able to eat, because בשעת you found it, he doesn't know yet. Ah, later when he'll find out that it fell there, he'll be מתייאש. According to Abaye it doesn't work. So this is a kashya only on Abaye and not on Rava. So we have all three cases which is according to Rashi it's a kashya on Rava also, and according to Tosafos, it's only a kashya on Abaye, not a kashya on Rava. Now the question is what's the... So last week I explained partially the whole thing, now we're gonna go to the rest of it, but I'll explain bekitzur what I explained last week, which is a hemshech to the week before.

Generally, when we have a מחלוקת אביי ורבא, I'm repeating... First of all, some people weren't here, but what's the machlokes bichlal whether יאוש שלא מדעת לא הוי יאוש or not? Or הוי יאוש. What's the machlokes Abaye v'Rava? What's the seichel behind it? So the main nekudah is, according to there are more peratim, and I'm not gonna repeat all the peratim which I said two weeks ago, last week. Rava holds, let's call this word, יאוש בכח. If it's potential יאוש, it works. Since it's something that potentially, you know, he will be מתייאש, that's good enough. Abaye? Abaye says, \"No, it's not good.\" So דבר שאין בו סימן has no siman, so memeila, but when you lost, even though you don't know you lost it yet, but potentially, when you will find out you lost it, you will be מתייאש. So Rava says, \"Fine, that's called יאוש.\" And Abaye says, \"No, the יאוש let's call it בכח. יאוש בכח doesn't work.\" Therefore, even though it has no siman, so there's יאוש בכח, still doesn't work, לא הוי יאוש. In Abaye סברא גופא that יאוש בכח doesn't work, there are two ways to learn, and what I'm gonna try to bring out, that these two ways is a machlokes in the Rashi and Tosafot. And actually Rashi and the Rambam are on one side, and Tosafot on the other side. What's the two ways in Abaye גופא? It's like this: one way you could learn Abaye holds יאוש בכח doesn't count. When the Torah said יאוש, it has to be יאוש בפועל. יאוש בכח is nothing. Rava said יאוש בכח is something, Abaye holds יאוש בכח is nothing, fine. Then there's another way to learn: in principle, Abaye agrees to Rava that there is such a thing as יאוש בכח. He just says, when does יאוש בכח work? If it's a very strong בכח. So something that has no סימן, he says, \"I'll tell you the truth, it's יאוש בכח, but it's not a 100%, cause maybe the guy won't readily be מתייאש.\" Huh? It's, yeah, so there are... Da git's pshat that way, there are דרגות. So Abaye will say that it's not strong enough יאוש בכח, and therefore it doesn't work. What the... If there's a סימן, then even Rava holds it's not even יאוש בכח, cause nobody's gonna be מתייאש. But if it has no סימן, there's יאוש בכח, so Rava says it's good enough, Abaye says in theory you're right, there is such a thing as יאוש בכח, that's the second way, but this is not good enough, or not enough. The other... first way we said, Abaye argues on the whole concept. The nafka mina will be, what happens if something is very... is it possible to say something is very

clear that the guy will be מתייאש? 100% clear. Will Abaye agree? In this case. בכלל by יאוש שלא מדעת, by יאוש שלא מדעת, but it's more clear than this. Well, according to the first way, still won't agree. יאוש בכח doesn't work! No matter what the case, it could be a million... Very strong בכח, Abaye holds יאוש בכח doesn't work. One second. Before I... I said it already last week, two weeks ago, there is! While according... That's according to the first way, יאוש בכח is nothing, so you could be a 100% clear, but still בפועל he wasn't מתייאש. According to the second way, that the problem Abaye has is because it's not a 100% יאוש בכח, and there are דרגות, so what happens if there's a real strong יאוש בכח, it's ממש a 100% בטוח, he will agree. Where do we find that? This could be the source of the מחלוקת of the ראשונים, which happens to be Rambam and Rashi on one side and Tosafot on the other side. The Gemara learns out from a pasuk that זוטו של ים, if the ים overflowed and swept away something of yours, you're allowed to keep. The Gemara קודם brought a din: מניין לאבידה ששטפה נהר, how do you know an aveidah that was swept by the ים, שהיא מותרת? We learn out from the pasuk. The pasuk says you see somebody's object to return it, by a donkey, by clothes, וכן תעשה לכל אבדת אחיך, so should you do to anything he lost, אשר תאבד ממנו ומצאתה, anything that he lost and you found. It's an extra word. Anything that he lost, obviously you found it. If you didn't find it, what are we talking about? So the Gemara says this comes to teach you, מי שאבודה הימנו ומצויה אצל כל אדם. When do you have to return it? If it's lost from him, and someone else it was accessible to other people. אבל יצתה זו, this comes to exclude שאבודה ממנו ואינה מצויה אצל כל אדם. By a ים that nobody could get it. And the same applies not only to a ים, the same applies if it was by a lion that was about to eat it, so that at that point no one could get it. So from here we learn out, שוטפו נהר or מציל מן הארי, you're allowed to keep. There's a מחלוקת הראשונים: this that you're allowed to keep this, is this because you're meya'esh or is it a separate din? So

Rashi says clearly in Bava Kama that the reason you're allowed to keep it מפני שהבעלים מתייאשין, because the Torah said for sure here a person is meya'esh. So you're allowed to keep it even if the guy found it before he even know he lost it. The the river overflowed, the owner is someplace else. So a second, you're allowed to keep it? So Rashi says because you're definitely meya'esh. Tosafot clearly says it's not because of ye'ush. It's because of a גזירת הכתוב. What's the machloket? Pashut. If you learn the first way that Abaye holds יאוש שלא מדעת doesn't work, so you can't tell me this to say this tone because of ye'ush. At best, it's a vadai you're going to be meya'esh, you're afterwards going to be vadai meya'esh, but bepo'al you weren't meya'esh. יאוש שלא מדעת doesn't work, doesn't work. So you can't learn it to be ye'ush. If you learn the second way that יאוש בכח works, even according to Abaye, אלא מאי you have to be high, high דרגה of יאוש בכח. Nu, this is a high דרגה of יאוש בכח. And so therefore this can be because of ye'ush. So לפי comes out like this: since the Rambam says clearly that this is because of יאוש, Rashi says it's because of יאוש, obviously which way do they hold? The second way, that Abaye holds that יאוש בכח works. The only reason he argues on the other because it's not enough בכח, but this is very בכח, so it works. מה שאין כן Tosafot, Tosafot would hold obviously, Tosafot says this is not because of יאוש, you know why? Because Tosafot says this cannot be because of יאוש, because יאוש בכח doesn't work according to Abaye, so how does it work? So that's why Tosafot says it's a גזירת הכתוב. So we come out here that there's a מחלוקת Tosafot against Rashi and the Rambam. According to Rashi and the Rambam, Abaye holds that יאוש בכח works, it has to be very strong. According to the to Tosafot it doesn't. Wasn't there a שיעור שיטה about the טעמי המצוות, like is there a reason for it? I mean, is it a גזירה or there's a reason behind everything? Okay.

כח is not like בכח means like force and בכח means No, potential! No, not... no, it means potential. בכח and בפועל. בכח is potential. It's only a potential part, not not the פועל. Not actual. Not actual happening. בכח means since it's potential and and... Or no, all the cases like that. A lion was eating it, the Gemara says all kinds of examples here on דף כ״ד, המציל מן הארי, ומן הדוב, ומן הנמר, ומן הברדלס, ומזוטו של ים, ומשלוליתו של נהר, all these things, they're all cases where it's אבודה מכל אדם, it's lost in a matter that no one can get to it. There's another difference, which I said already last week, between these two ways, not only whether זוטו של ים and the פסוק is because of יאוש, there's another thing: according to Abaye, is the fact that by דבר שיש בו סימן we don't יאוש שלא מדעת doesn't work, דבר שאין בו סימן also doesn't work, is it stronger, the not working by דבר שיש בו סימן over דבר שאין בו סימן? Is it stronger or not? It depends. If you say he holds בכח works, ela mai you have to have a stronger בכח, so the further let me finish! The further the בכח is, the more reason it shouldn't work. The closer the בכח is it should work better. They both don't work, aval that's closer. If you hold the first way that there's no such thing as יאוש בכח, is there a difference between this and this? I'll tell you. The

difference between the two is this is העדר, this is שלילה. One case, according to the two ways, if you hold יאוש בכח doesn't work, that means if you have יאוש בכח, there is no ye'ush! There's nothing. If you say יאוש בכח works, just in this case it's not enough, that means that together ye'ush it doesn't work. It's a חילוק בין העדר and שלילה. They're both not. העדר is, I gave the example like last week also, העדר is when you have comes the night, there is no light in here. העדר אור. During the day if you close the shades, it's שלילת אור. You're taking away, it's שייכות אור. So the difference will be, according to Abaye, if you learn like Tosafot that there is no no יאוש בכח, so דבר שיש בו סימן and דבר שאין בו סימן are exactly the same thing. According to to Tosafot, on דבר ש That if he holds there is יאוש בכח, but it depends how much, so דבר שיש בו סימן is a less בכח. Even though it's possible, so your דבר שיש בו סימן is worse than דבר שאין בו סימן. No, if you hold there's no בכח, then it's העדר. Otherwise, it's שלילה. Where do you draw the line? So Abaye draws the line. Yeah, you have to figure out depends how close it is. Well, that's not Everything in Gemara is like that. Yeah, you have to decide. Now already we understand why Tosafot in this case can't learn like Rashi. Rashi says that this machloket, that the kashya of the Gemara is with the dates that fall is also according to Rava. Why the Gemara asked only according to Abaye? Because according to Abaye this kashya is stronger. What's the stronger? That even this, which is a דבר שיש בו סימן, כל שכן דאיהו shouldn't be able to take? Rashi could learn like that, because Rashi learns that according to Abaye there is יאוש בכח. אלא מאי, depends how far. If there are דרגות, so דבר שיש בו סימן is worse than דבר שאין בו סימן, so it's a stronger kashya. Tosafot can't learn like Rashi, because Tosafot says that according to Abaye there is no יאוש בכח. So דבר שיש בו סימן, דבר שאין בו סימן, the exact same thing. So what are you going to say, the Gemara is asking it on Abaye because it's stronger? There's no such thing. Nekudah of this we said last week. Now

let's go further. What I want to add is, explain now the other side. This was why Tosafot doesn't learn like Rashi. Why can't Rashi learn like Tosafot? Again, what does Tosafot learn? That the גמרא שאלה is about those dates that fell out far. And this that has fell, it's I didn't know I gained so much weight. Yeah. Oh boy. Now, מה מה ההלכה? You have to pay for the chair or not? Ah? מה ההלכה, צריך לשלם? אין בו סימן, אין בו סימן. צריך לשלם אם נשבר או לא? זה תלוי איזה Now, what's a what's a Tosafot peshat? Tosafot peshat is that it fell far, and the guy doesn't know it fell there, so he's not mitya'esh. But when he will find out, he will be mitya'esh, so it's יאוש שלא מדעת. So you could say like this: It's not muchrach, it's not like not I'm saying it has to be this way, but we're trying to explain. That's always in Sometimes you say a sevara that, well, maybe not. So I always answer, if good, maybe not, but if you're going to have not, you'll have a problem. Say the way I say, and now it's not a kashya. So we're trying to explain. We're going to say like this: Rashi couldn't learn like Tosafot, because according to Rashi, Abaye has מדרגות in בכח. Just like Abaye has מדרגות in בכח, there's no reason to say that Rava also has מדרגות בכח. According to Tosafos, Tosafos, Abaye has no דרגות in בכח. We don't make new מחלוקות, so peshitut Rava also has not. Abaye held יאוש בכח doesn't work; Rava learns יאוש בכח works. No דרגות! Or יאוש בכח works, or it doesn't. Is that muchrach? You could say not, because there's not one. But usually we try, when there's a מחלוקת, we don't try to add to מחלוקת to say, well, mistama they're arguing in this and arguing in this. Usually, we try to keep it together. So according to Rava, according to Tosafos, I mean, that there are מדרגות there are no מדרגות, so he says like this: Anything that's יאוש בכח should work according to Rava. So the פגה that fell out, this is not a regular יאוש שלא מדעת. Regular יאוש שלא מדעת is the guy doesn't know he lost it. Right? When he will find out he lost it, he will be מתייאש. This is a much further away, because here, he knows he lost it, be'etzem. Ela mai? He thinks he's going to lose it in here. So it's not only that he doesn't know he knows he lost it, and he's beferush not מתייאש. Not like a regular יאוש שלא מדעת: I don't know I lost it. Why? No, he doesn't He thinks He thinks He doesn't know he lost the date. He thinks it fell in here, that's what Tosafos said. And if it fell in here, he's not מתייאש, because if it fell under the tree, it has a siman, so he's not מתייאש. So this is not a case where he doesn't know and he's not מתייאש. This is a case where he is not מתייאש! Know the difference between not מתייאש and not מתייאש? There's a difference. Not מתייאש means not מתייאש, he's not be מתייאש, doesn't think about it. Here is farkert, here he is beferush not מתייאש. Ela mai, had he known it fell far, he would have been מתייאש, and when he finds out, he will. This is a further כח than a regular יאוש שלא מדעת. So Tosafot says, who cares? Rava holds יאוש בכח works, so יאוש בכח should work here, too! So the Gemara has no kashya on Rava. Tosafot Rashi will tell tell Tosafot: I don't understand. Even Rava agrees that there are דרגות! Just like Abaye agrees there are דרגות, Rava also agrees there are דרגות. If there are דרגות, I think Rava would hold in this case יאוש שלא מדעת לא הוי יאוש, because that's much further in בכח. So so the machloket, according to Rashi, between Abaye and Rava is very small. They both hold יאוש בכח works, they both hold if it's not the so far בכח, it doesn't work. אלא מאי, what's called בכח, what's not? So and we usually try to do that. We always try to make a machloket as close as possible. See, some people have the nature of trying to make machloket as big as possible. They always fight, you know, some people, we try to make machloket less. So normally, it's a less machloket according to this. So that's the machloket Rashi Tosafot. Rashi says Tosafot, I can't learn your peshat, cuz I think in your peshat wouldn't work, cuz in your peshat even Rava would agree that that's not יאוש שלא מדעת. Because it's too far, and יאוש בכח doesn't work even according to Rava if it's too far. While Tosafot says there's no דרגות, אדער בכח אדער נישט, since this is בכח and Rava holds בכח, Rava בכח works. How does Tosafot explain the fact that Rava talked about with a siman and did a different Oh, what you know, what you're asking, good! Obviously, when there's a siman it's not even bekoach at all. That's, if there's a siman not bekoach. We're talking about things which are, because he won't ever do it, I mean if a, the guy was mityaesh later, so an exception. So that's not, דבר שיש בו סימן is not bekoach. If it's bekoach, it has to work. Not bekoach, it doesn't work. Abaye holds bekoach doesn't work it doesn't don't work. So here we see from both sides, so I explained why Tosafot cannot learn like Rashi. Tosafot cannot learn like Rashi that the Gemara is saying it according to אביי דוקא, because according to Abaye it's a bigger chumra. According to Tosafot, no bigger chumra. Cuz דבר שיש בו סימן and דבר שאין בו סימן is the same thing, so Tosafot can't learn like Rashi. Rashi can't learn like Tosafot either, because Rashi said to Tosafot, in your case I according to my shita the way I'm explaining he holds, I hold Rava would agree there that הוי יאוש. Let's go to the next case. Next case of ketanim. So Rashi learns it's pashut for everybody. קשיא לאביי ורבא, a katan is not mityaesh, can't be mityaesh, a ye'ush doesn't work, it's pashut. How could you take it? Comes Tosafot and says no, this is ye'ush shelo mida'at. Why is it ye'ush shelo mida'at? Why? Because, when he'll grow up. This is such a far ye'ush shelo mida'at, even further than the one thing we said before. Ye'ush shelo mida'at normally is a guy who is going to be mityaesh now. He doesn't know. He'll be mitya'esh. You find that so he'll be mitya'esh. יאוש בכח. This is called יאוש בכח. I'll tell you why it's like called יאוש בכח. The קטן לגבי becoming a גדול is is basically, such a peshat, he doesn't know yet he lost it. There is nobody here to know. The קטן has no daat. The קטן the yeush does doesn't work. It's a it's a very far בכח. We find this in many things לגבי Torah umitzvot. Al derech actually what we were talking before by the shiur, there's a chakira by women, we had a machloket whether a woman could do a מצות עשה שהזמן גרמא, she's allowed to do it or not. It's so the so the peshat of it is, is it totally, there's a she'eilah when women are patur from מצות עשה שהזמן גרמא, is the peshat that patur, the Torah wasn't these mitzvot were not given to them? They got less mitzvot than men. Or it was given to כל ישראל. For side reasons they just don't have to keep it, an exemption. That's what it is. So if you say there's a shayachut to it, so if they want to do it, fine, they can even make a berachah. If you say they're not shayach to it, it never was given to them, so it's like a goy. I mean לגבי this they have no chiyuv. How does it work with Okay, you can't quote the whole kollel. That's how the Rambam, is that his reason? The Rambam. It was The Rabbeinu Tam. so I'm sorry, the Rabbeinu Tam. Yeah, so we're saying, he learns that there was that it's given to them also. Why am I bringing this in? Because the same thing by קטנים. Again, there's a she'eilah by קטנים, when קטנים are patur from from mitzvot, is it because Torah was given to קטנים also, just they're not בני דעה, they can't do it, it's an exemption, or you say, no, the Torah was given only to gedolim. Now if you learn the Torah was given only to gedolim, and memela the דעת, they're not שייך בכלל. It's it's a different category, it's not pashut. And especially we find a different place, another sichah about, נוגע לקטנים, the Rebbe has a very interesting, I'll just go bekitzur into it. A inyan we spoke about לגבי a different inyan. The sichah speaks about why mi-de'oraita there's no mitzvah of chinuch. Mi-derabbanan they said you have to train a child when he's young. Why mi-de'oraita there isn't any? And the Rebbe brings in the she'eilah based on be'emet on this. Before you do a mitzvah, do you have a chiyuv to do the mitzvah before the time comes? In other words, do we have a chiyuv today that on Rosh Hashanah we should blow shofar? Remember we spoke about it? Yeah, we spoke about it. L'mai nafka mina? L'mai nafka mina, do if you know that you're leaving today and you won't be back for Rosh Hashanah and you won't have a shofar on Rosh Hashanah, do you have a chiyuv today to prepare a shofar? On one hand, you can say, today it's not Rosh Hashanah. I have no chiyuv, nothing. Rosh Hashanah will come and I won't have a שופר, אונס רחמנא פטריה, I don't have, I don't have. Or the kashya, the she'eilah is even stronger. If I have a shofar on ערב ראש השנה and I break it, and comes Rosh Hashanah and I don't have a shofar, am I considered a מבטל מצות עשה דאורייתא בידים? If I break the shofar on Rosh Hashanah, not only didn't I do the mitzvah, I was מבטל the mitzvah. But here, Erev Rosh Hashanah is it's a problem, it's like have to have a shofar, it's nothing! You could break it, you could break whatever you want. Next day I don't have.

Do we say it, or not? So there the Rebbe says בפשטות that the חיוב is there before also. That before the time comes there is a חיוב. That means that there is a חיוב today that on Rosh Hashanah I should blow shofar. The חיוב is So, I have a חיוב of shofar not to blow today, but the חיוב of every mitzvah is every second of a person's life. Like that whole with the menorah, with the with the If you're afraid you won't have, yes! Exactly! If a person travels to an island, he has to take a menorah Take a shofar, take matzah, have to take everything, right. If he travels away where you won't get. Normally you live among people, you'll get. So the ענין in כרך, because it's Not the כרך, that's a הכשר. כח הכשר. No, it's not Not for the כרך. So the So the Rebbe says there that בכלל you do. But then לפי זה, don't throw a problem. That's something else, okay, now he could get other matzah, that's just No, that's just should be a המשכה, a המשך. But לכאורה, according to this, there should have been a דין, a child, since when he becomes Bar Mitzvah, he's מחוייב to do the mitzvot, so before the חיוב, he should also have to prepare, so there should be מדאורייתא חינוך. So the חינוך only מדרבנן. Why didn't the Torah say it? דרבנן is, but מדרבנן מדאורייתא not. L'chorah, this that you have to prepare a shofar before, that's a דין דאורייתא. So the Rabbi answers that there is a chiluk between this, you and we are shaychus to mitzvot. We're shayach to the shofar. Aye, the day didn't come yet. By a katan, the lashon he says, אין בו שום סרך חיוב. There's no סרך. סרך means there's no connection, no extension of חיוב בכלל. So today on shofar, there is a extension of chiyuv because we are mechuyav in shofar. The child is not mechuyav at all. What I'm trying to bring out from here is, so the child is completely different than later. So how can you say here that because he's a child it should be יאוש שלא מדעת, because it's b'koach of ye'ush. So Rashi says, you know, I feel that Abaye has דרגות in b'koach, Rava has דרגות in b'koach. Such a dargah b'koach, Rava will agree doesn't count. So the kushya is on Rava also! What do you mean it's a kushya not on Rava? It's not it's it's such a kind of case where Rava would agree that it doesn't work, umemela how could how could you take it? Tosafos says, no dargot, nisht Abaye and not Rava. B'koach, at least to a certain degree, it's not shaychus. So Rava says, as long as it's some kind of b'koach, sof kol sof he will become a gadol. Now he's not. Now he's not shayach, but l'poal he will become a gadol. So he goes so far, but that, see, that you have to say in Tosafos anyway, which as I say, that, but yet I'm trying to make it easier, without what I'm saying is, it's got תוספות nisht farsh tandik. So I'm trying to say that sof kol sof, and we do find in the Gemara sometimes that because he will grow up, he will have, that's why. So mimela, so Tosafot says, as long as it's a geder of bekoach, there is no דרגות, and Rava holds bekoach works, according to Rava קטן works, so there's no kushya on a קטן and no kushya on

Rava. Kushya on Abaye, Abaye says יאוש שלא מדעת doesn't work. Comes Rashi, Rashi says it's not true. I say there are דרגות, and Rava doesn't hold every possible bekoach works, just like Abaye doesn't hold every possible bekoach doesn't work. So according to Rava, this is a kushya also, because I think in this בכח Rava won't work. Now come to the third case, כרכשתא. Same thing on the first one of top here. What does Rava say? Rashi says the kushya is pashut, there's a wall around it, guy's not mit'ya'esh, finish, because he knows there's kotel, monkeys are not going to take it. Look Tosafot, no. We're not talking about inside, talking about those fell outside, and those that fell outside, that is he דקא doesn't know it fell there, he thinks everything is going to fall inside, so he's not mit'ya'esh. But when he will find out that it fell there, he will be mit'ya'esh, so it's יאוש שלא מדעת, and Rava will be modeh, so it's not a kushya on Rava. Same same what I said before. This is a far much further case, like on top here I said that the further case, if we're talking about something that fell there, he thinks it fell here, so לפועל he he knows it fell, אלא מאי he thinks it fell and he's מפורש saying, \"I'm not mit'ya'esh.\" So we're saying nevertheless, is it יאוש בכח because when he will find out, he will be mityaesh? That's a further b'koach. So here So here Rashi says that יאוש בכח according to Rava, there is a case where it doesn't work, so I think in this case it's too far, it won't work, just like it said on top here it won't work. So if it won't work, kushya on Rava too, so then if it's not יאוש שלא מדעת, so how could you take? Tosafot learns that according to Rava, from Abaye and Rava there're no דרגות. As long as it's b'koach, it works. So even though this is a further level of b'koach, there's no such thing as there's no there's no דרגות in b'koach. If it's b'koach, it works. So Tosafot goes with his shita, and because of that, Tosafot feels that according to Rava it's no kushya, because this is יאוש שלא מדעת, and יאוש שלא מדעת according to Rava b'koach works, and this is b'koach, and that's why it works, while according to Rashi it doesn't work. And this is the way Rashi learns, and this will be the way the Rambam learns, as I explained that the Rambam learns like Rashi, and if you remember the first shiur, it came out that the Rambam learns like Rashi which answered another question. Another question, the question here, the

Gemara says before here by terumah, if you remember, that the only time by terumah it works if he שויה שליח, they made him a shaliach, don't you remember the case? I'll repeat the case again. The Gemara quoted a din, it says if someone took off terumah for his friend without his permission, and later the guy came and he said, \"Why didn't you take better ones?\" And if he's serious, if it's not sarcastic, if we do find better ones, it's terumah. But when he took off the terumah, the guy didn't know yet he took off. אלא מאי, later on he's maskim. According to Abaye that יאוש שלא מדעת doesn't work, this also shouldn't work. Terumah shouldn't work unless he knows now. The fact that he's going to know later doesn't work. So the Gemara answered the case is where he made him into a shaliach. He made him a shaliach before, and he knew he was going to take off, he just didn't tell him from which fruit to take. And now when he comes, we want to know if he's maskim or not to these fruits. That's the Gemara. Okay. So yeah, משום מציאה. So the problem is that the

Rambam brings this din of the guy took off terumah, another guy came and said, \"Go get the better ones,\" and it's good. And the Rambam doesn't mention that he made him into a shaliach. The Rambam paskent like Abaye: יאוש שלא מדעת לא הוי יאוש. The Gemara makes it very clear that if you hold like Abaye that יאוש שלא מדעת doesn't work, תרומה שלא מדעת doesn't work either. And the only way it works if you made a shaliach. So how come the Rambam doesn't say he made a shaliach? So the mefarshim would say that the Rambam holds the maskana after different things it changed. A fine re'ayah, what did it change? So why takeh does it work? Because it's a mitzvah. If it doesn't if it doesn't work, it's not it's not a hekdesh. Because since it's a mitzvah, we're so sure that he's going to be maskim, that even Abaye agrees to this. The she'eilah is, and Tosafos doesn't hold like that. Tosafos says pirush it has to be with a shaliach. So he explained it's dependent on this: If you learn like Tosafos, it could be a mitzvah and you could be sure the guy is going to be מיואש, Tosafos learns יאוש בכרח according to Abaye does not work. So don't bring and tell me that it's called ניחא ליה במצוה we're sure. The Rambam learns like Rashi that even Abaye agrees that יאוש בכרח works, יאוש בכרח works, ela mai you have to be oh, by a mitzvah it does work. That's how the Rambam works, because the Rambam and Rashi go together. So I want to say now based on what we're saying that there could be there's another teirutz to answer the Rambam, but it's all connected to this whole pilpul that I'm trying to say. Some answer the Rambam like this: What the Gemara answered that the only way according to Abaye that the

case of terumah works is if you made him into a shaliach, was when we thought that the reason Abaye holds יאוש שלא מדעת is not a ye'ush is a sevara. It's a logical thing. If it's a sevara, then we compare terumah also. The same logic that you say by ye'ush that it doesn't work, the fact that he did it later he has to do it before, but he did it later doesn't work, by terumah also! So the Gemara asks a kushya, how does it work by terumah? So we had no choice to answer that he made a shaliach. Here the Gemara brings a פסוק אשר תאבד, and from that pasuk we learn out that יאוש שלא מדעת The Gemara proved How does the Gemara prove Abaye is right? From that same limud that we learn out the overflowing of the water you're allowed to keep, from that learned pasuk we learn out יאוש שלא מדעת לא הוי יאוש, and that's how we disproved Rava. Does it work from from the moment he finds it or it works It works retroactive. No, but it's retroactive. That's retroactive. So they say like this: When the Gemara answered שוויה שליח because there was a problem according to Abaye, how does it work by terumah, so you had to answer made a shaliach, because we thought it was a sevara. So if it's a sevara, you could compare terumah to that sevara. Terumah is the same like ye'ush. But when we come here that the whole din of יאוש שלא מדעת is learned from a pasuk, who said you could compare terumah to it? By יאוש שלא מדעת it doesn't work, and by terumah maybe it does work. So the Rambam learns like that. But if he doesn't make a shaliach, how can he give terumah? Well, because later on he's מסכים, so it works retroactive. That's what they're saying. That was the Gemara's kushya, יאוש שלא מדעת, how come by ye'ush we're not so so How could you be keep it when it's he didn't know to meya'esh yet? Because he will be meya'esh later, it'll work for if it's later. Same thing by terumah. But Abaye holds it doesn't work by ye'ush either, so it doesn't work here either. But that's only if the whole idea of יאוש שלא מדעת is a sevara. So this sevara applies to terumah also. So since we had a problem, because the sevara should be there too, so we had no no other way to answer it, but made a shaliach. But after we learn out that the whole din is from a pasuk, if from a pasuk, so יאוש שלא מדעת is not a sevara. If it's not a sevara, then what's the problem with terumah? Who says by terumah it doesn't work? Maybe by terumah it does work. מה שאין כן Tosafos, Tosafos learns that even למסקנא it's a sevara. למסקנא it's not a pasuk. And if even at the end it's a sevara, so at the end terumah is similar, and the only way we could say by terumah is if you made him into a shaliach. This all fits to what we're saying. What's the pasuk? This is the pasuk of of

זוטו של ים, of the ים. Rashi learns that this pasuk is because of ye'ush, so he says. And if it's because of and if it's because of ye'ush, this is the pasuk that teaches you יאוש שלא מדעת. So according to Rashi, which is according to the Rambam, at the end of the Gemara is it a sevara or is it a pasuk? It's a pasuk. This pasuk is talking by means, what did we say? זוטו של ים according to Rashi and the Rambam, why are you allowed to keep it? Because he's meya'esh. So when the pasuk says you're allowed to keep it, it's ye'ush. So this pasuk is ye'ush. If the pasuk is ye'ush, the pasuk teaches you all the details of ye'ush. Regular ye'ush works, יאוש שלא מדעת doesn't work, it's all from a pasuk. Not a sevara. So according to Rashi and the Rambam, at the maskana, it's not a sevara. It's not a sevara, we can't learn out terumah. Tosafot, which keeps us saying, doesn't hold this is ye'ush. This whole pasuk is a gezerat hakatuv. You're allowed to keep it, nothing to do with ye'ush. So is it possible to say that this pasuk teaches us יאוש שלא מדעת? The pasuk doesn't teach us יאוש בכלל. So then what is the pasuk talking about? Gezerat hakatuv. So how do we know יאוש שלא מדעת, even at the end? From a sevara. If you know it from a sevara, then terumah should be the same. So even according to the end, that it's from a sevara, by terumah it has to be only with a shaliach. So this fits to the answers. But afilu if we're not going to answer this, it's the other answer fits in. Shkoyach. That's fantastic.

Why do we have to say that the guy is owning the tree for many years, and so the dates that fall far from the tree, why? Because what, the wind blew them, or there's a branch could only hold... No, no, the wind blew. What do you mean by the wind? The wind is weaker. So, this something is common anyway, you might think. Therefore, it's not so unusual. A teirutz is a very far away idea. Our teirutz is that it's not like that. What do you mean? Yeah, because this was the nature of the wind and not the... Because the owner, you know, things happen like that naturally. What do you learn, Minneapolis? A book of maaseh and she'elot, I tell him. Yeah, I know. It's before. I know you. No, yeah, the Gemara, Tosafot says it. I think it doesn't fall. The teirutz is it does fall. So, far to see, because it's still the tree and still the dates, so why is it so far away? He loses some dates, he knows he's going to lose some dates. Obviously he does. The dates... Very nice. No, I mean no, I mean the guy who owns the tree. It's an automatic property. The birds come and nibble, you know what I mean? He could pick it up and say, \"Wait.\" That's that's nature. I would think that's common, which would... wouldn't make... That's right. If he would find out about it, he would have given up. How do you know... Okay, the last part I couldn't hold... to explain it good, take another 20 minutes. Like the last... The moment... Oh yeah, no question about that. Baruch Hashem. Wait, the... But by the terumah, what is it again? What does it mean a sevara, as opposed to you know, when they're talking about, or that we learn from that pasuk? You said יאוש שלא מדעת should be not ye'ush, maybe it is. Well, so that's what you say... Or you can say it's a sevara. It's a logic, no? It means, it's about the logic. Or you say it was not logic, the Torah tells you. So that's the comparison between the logic and what the... telling us. But when we bring a pasuk, that's the same thing as saying the Torah is telling us. Oh, okay. Shkoyach. By the way, you look good. I mean, it just looks natural. I'm serious. None of that fake stuff that makes it makes you grow, you know. I'm telling my sister, she used to... No, that's fine. It looks good! Handsome! Very good! The

Gemara says that הדרת פנים... beard. Some people don't have handsome beards.