Jewish audio on chabad.org. Today's שיעור will be in מסכת בבא קמא דף ט, and we will start nine lines from the bottom of דף ח עמוד ב. גמרא says: אמר אביי, אביי said, ראובן שמכר שדה לשמעון באחריות, if ראובן sold a field to שמעון with a warranty, with אחריות, in other words, he was saying that if any בעל חוב of mine, any creditor of mine, will come and take away the field for the חוב, I am responsible to pay you back for that. ואתא בעל חוב דראובן, and then the בעל חוב of ראובן came, וטרף משמעון, and he took it away from שמעון. דינא הוא, the דין is, דאזיל ראובן, ראובן is allowed to go, ומשתעי דינא בהדיה, and allowed to have a דין תורה with the בעל חוב, he's allowed to have the dispute with the בעל חוב. ולא מצי אמר ליה, the בעל חוב cannot say to ראובן: לאו בעל דברים דידי את, you are not the one that is in dispute with me, even though ראובן was the one that owed him the money, but he says, now that you sold the field, now the field is in שמעון's hands, I took it away from שמעון, if anybody has anything to say, it should be שמעון, but I have nothing to do with you, ראובן. So he can't say that, דאמר ליה, because ראובן could say to him, אי מפקת מיניה, if you will take it away from him, עלי הדר, he will come back to me. And since he will come back to me, then I am responsible, and therefore, I am able to have the דין תורה with you.

ואיכא דאמרי, some say, אפילו שלא באחריות נמי, that even if he sold the field to שמעון without a warranty, still ראובן is able to have the דין תורה with the בעל חוב, even though he cannot say to the בעל חוב that if you take away the field from שמעון he will come to me, because he is not responsible, but nevertheless, דאמר ליה, he could say to him, לא ניחא לי, I do not want, דתהוי ליה לשמעון תרעומתא עלי, that שמעון should be angry at me. So if you manage to take away the field from שמעון, שמעון will be upset with me, I don't want that, and therefore, I want to have the דין תורה with you. And obviously we're talking here in a case where ראובן has something to say more than שמעון, and therefore ראובן feels that if he will have the דין תורה, he will win, and therefore, he wants to have the דין תורה, and the דין is that he is allowed to have the דין תורה with the בעל חוב instead of שמעון. But תוספות asks: what is this case? Because whatever ראובן is able to טענה, שמעון is able to טענה, and even if שמעון will not טענה that, but we, the בית דין, will טענה it for him. So what does ראובן gain by having the דין תורה with the בעל חוב instead of שמעון? And we cannot say, תוספות says, that it's a case, for instance, where the עדות that שמעון has are relatives to שמעון, and not relatives to ראובן, and therefore ראובן wants to be the one so he could bring the עדות, because the truth is that in this case, even ראובן couldn't bring the עדות, because if the עדות are relatives to any of the people involved, they are פסול עדות. So תוספות asks: what does ראובן gain by טענה'ן? תוספות says, for instance, it's נוגע to ראיה אחרונה. For instance, if someone says, "I do not have any proof," and later on he comes and he says, "I do have proof," we cannot accept it. So this is a case where שמעון already had said, "I don't have proof," and later they found proof, so if שמעון has the דין תורה, he cannot bring that proof, but if ראובן has the דין תורה, he could bring the proof. Or תוספות gives another answer, a very practical answer, that let's say that the בעל חוב said he's only going to have the דין תורה in the בית דין הגדול, and the דין is that we must listen to him and go to the בית דין הגדול to have the דין תורה, and שמעון is not able, for whatever reason, to go, but ראובן is able to go. So if the בעל חוב would have a right to say to ראובן, "לאו בעל דברים דידי את, that I have nothing to do with you," then the דין תורה would be בטל, but if we say that ראובן is able to have the דין תורה, then he is able to go to בית דין הגדול and have the דין תורה. And the גמרא continues: ואמר אביי, and also did אביי say, ראובן שמכר שדה לשמעון שלא באחריות, if ראובן sold a field to שמעון without אחריות, without a warranty, ויצאו עליה עסיקין, and then some people came to argue, to claim that the field didn't originally belong to ראובן and ראובן had no right to sell it to שמעון, so עד שלא החזיק בה, as long as שמעון did not make a חזקה, did not acquire ownership over the field, יכול לחזור בו, he could have חרטה, he could change his mind, and the whole deal is nullified and it goes back to ראובן. But משהחזיק בה, after he made the חזקה, he already acquired the field, אין יכול לחזור בו, he cannot have חרטה. מאי טעמא, what is the reason? דאמר ליה, ראובן could say to שמעון, חייתא דקטרי, a bag full of knots, סברת וקבלת, you accepted it and you bought it, you bought it לכתחילה at a risk, you bought it without אחריות. So now when you find out that it might be taken away from you, too bad, it's as if you bought a bag full of knots, in the old times they used to sell bags that you would pay a certain price, and it was a risk. It could be that you will get your money's worth or more than your money's worth, or could be it's a bag full of knots and there's nothing in there. So he says, since you bought it without אחריות, you accepted whatever you will get, and since you already made the חזקה, so it's yours, too bad, you have to keep it. And then the גמרא asks: מאימת הוה חזקה? When is it considered that he made a חזקה and he acquired ownership? And the גמרא says: מכי דייש אמצרי, as soon as he steps onto the border, he walks onto the field, then the field becomes his. But this was said ודוקא שלא באחריות. This was only if he bought the field without אחריות, without a warranty. אבל באחריות לא, but if he bought the field with אחריות that the seller, ראובן, is responsible if it'll be taken away from him, לא, then this doesn't apply and he could have חרטה. Because he could say that what'll happen if they do take it away from me? Anyway I will come back to you, and you will have to pay me back for the field. So why wait for then? I want to have חרטה right now as soon as he heard that there are מערערים, people who want to take it away. And the דין is that he could have חרטה, and ראובן has to give him back his money. ואיכא דאמרי, some say אפילו באחריות נמי, that even if he sold it with אחריות, with a warranty, he still can't change his mind after he made the חזקה. If they will take it away from him, then he will be able to come to him and say, "You sold it to me with אחריות, now they took it away, pay me for it." But as long as they didn't take it away, he cannot change his mind if he made the חזקה already. דאמר ליה, because ראובן could say to him: אחוי טירפך, show me the document that says that they took it away from you, ואשלם לך, I will pay you, because I took אחריות. But as long as you cannot show me that document, which means as long as they didn't take it away from you, you cannot change your mind. This is the way רש״י learns the פשט in this גמרא, that when the גמרא says that it depends whether he made a חזקה or not, this חזקה is a קנין. This is the act of acquisition, the way the person acquires the field. And what the גמרא is saying is that if he didn't acquire yet, then he could change his mind. If he already acquired it, it became his, so then he cannot change his mind. And the גמרא's קשיא was, what makes the person have a חזקה? And the גמרא answered, when you step on the borders. But תוספות asks a few קשיות. One קשיא is that if the חזקה here means the way he acquired the field, why did the גמרא pick חזקה? There are three ways a person is able to be קונה a field: there's כסף, שטר, וחזקה. So why did the גמרא pick חזקה? The גמרא could have picked כסף, which is through paying money, or through giving a document. Why did the גמרא pick חזקה? Another question תוספות asks is, why does the גמרא ask here, when does it become a חזקה? There's a בפירושע משנה in בבא בתרא that says what is considered a חזקה by קרקע when you buy property. It says there נעל, פרץ, וגדר. If you close the gate, or you break open the gate, or you put up a gate, that is a חזקה. So why all of a sudden here did the גמרא remind itself to ask, what is a חזקה? Another question: why does the גמרא ask that here? There are so many places in גמרא where the גמרא mentions חזקה concerning buying property, and the גמרא doesn't ask what a חזקה is. Another question is that what is the answer of the גמרא? The answer is that the חזקה is when you step on the property, this doesn't fit to what the משנה says in בבא בתרא. There it seems that חזקה you have to do something more than just stepping onto the field. And therefore תוספות learns that here, in both cases, whether he made a חזקה or not, we're talking that he was קונה, it's his already. But when the גמרא says that if he didn't make a חזקה, he still could change his mind, it doesn't mean a חזקה of קנין. It means a different type of חזקה, that as long as he didn't do that, he could still change his mind. And that's what the גמרא asks: what kind of חזקה do we mean here that even though he was קונה it, but as long as he didn't make this חזקה, he could still change his mind? And the גמרא answers, by walking onto the field. That if he didn't step onto the field, that even though it became his already, but the קנין is not complete yet, and therefore he could still change his mind. But after he made the חזקה, which means he already stepped into the field, then he cannot change his mind. But תוספות says that this is all only if he didn't pay any money yet, and תוספות brings a ראיה to that. Then the גמרא continues: רב הונא אמר, רב הונא says, and as רש״י explains, this goes back to the question that the גמרא asked before. אביי had asked a סתירה, there's a contradiction between two פסוקים: one פסוק says מיטב שדהו ומיטב כרמו ישלם, that you must pay the best of your field or the best of your vineyard, and the other פסוק says ישיב, and the גמרא learns out from that word ישיב that you could pay even שוה כסף, even objects which are worth money, and more than that, even סובין, even bran, objects which are worth very little money, you could pay that as long as you give enough that will make up the amount of money that you owe. And this is what רב הונא is going to answer. רב הונא is saying: או כסף או מיטב, that a person is able to pay or money or the best of his field. And the גמרא still didn't explain how this answers the סתירה that we had before, but as תוספות says says, according to רש"י, that before רב הונא had a chance to explain himself and to say how he answers the סתירה, the גמרא right away in middle asked a question. איתיביה רב נחמן לרב הונא, רב נחמן asked a question of רב הונא, ישיב, we have the פסוק where it says ישיב לרבות שוה כסף ואפילו סובין, it comes to include even שוה כסף, even סובין. So how could you say that you have to give or כסף or מיטב, when we learn out from the פסוק ישיב that you could also give even שוה כסף, even סובין? And he answered, הכא במאי עסקינן, here we're talking in a case בדלית ליה, when he doesn't have. לכתחילה you must give or כסף or מיטב, if you don't have, then you could give even שוה כסף, even סובין. The גמרא asks, אי דלית ליה פשיטא, if he doesn't have, it's very simple, what do we expect? If he doesn't have anything else, let him give what he has. Why do we need the פסוק to tell us that if he doesn't have, he's able to give שוה כסף, even סובין? And the גמרא answers, מהו דתימא, I would have thought, אמרינן ליה, we tell him, זיל טרח זבין, go, bother yourself and sell the שוה כסף you have, or sell the סובין that you have, ואייתי ליה כסף, and bring him כסף, bring him actually money, קא משמע לן, therefore the פסוק tells us that we don't say that, and if he only has שוה כסף, he only has סובין, he's able to pay with that. So it comes out that the answer to the contradiction between the two פסוקים is that one פסוק is speaking in a case where he has, so if he has, he must give מיטב or at least כסף, money, and the other פסוק, where it says that he doesn't have to give מיטב, he could give anything, even סובין, that is in the case where he doesn't have. That's the way רש"י learns פשט in this גמרא. But תוספות learns that this גמרא is not to answer the question that we asked before, but this goes back to the משנה. In the משנה it said that a מזיק is supposed to pay מיטב when you pay for the damage you caused, you're supposed to pay from the best of your property. So that's where רב הונא comes in and he says that it's לאו דוקא מיטב, you don't have to pay only the best of your property, if you want, you could pay כסף, you could pay money also. And then the גמרא asked a separate question: How can you say that you have to pay or כסף, or money, or מיטב, when the פסוק says ישיב לרבות שוה כסף, it comes to include even שוה כסף, even סובין? And the גמרא answered a תירוץ that that's in the case where you don't have. And תוספות adds that it comes out that this גמרא, רב הונא argues with what רב פפא and רב הונא בריה דרב יהושע said earlier, because we learned earlier in the גמרא that רב פפא and רב הונא בריה דרב יהושע, when they answered the question of the סתירה between the פסוק where it says מיטב and the פסוק where it says that we are מרבה, we include שוה כסף, even סובין, so they answered that כל מילי מיטב הוא, that any object is considered מיטב, because if you can't sell it here, you will sell it some place else. Here, in this גמרא, it seems that the גמרא holds that שוה כסף is not like מיטב, because as we say here, that only if you don't have any מיטב, that's when you give שוה כסף, you could give even סובין. So the רי"ף says that this גמרא here, רב הונא argues with רב פפא and רב הונא בריה דרב יהושע, and he actually פסקנ'ס like רב פפא and רב הונא בריה דרב יהושע, and therefore he holds that you could give לכתחילה סובין, you do not have to give מיטב. But תוספות brings that רבינו תם doesn't hold that way, but רבינו תם says that there are three דינים, he makes three categories. He says that when it comes to נזיקין, when it comes to pay for the damages, then you pay or כסף, if you have money, or מיטב, or the best of your fields. If you do not have that, then you could give anything else, even סובין. By a בעל חוב, the דין is that if you have money, then you must pay for the loan with money, but if he doesn't have money, then you could give other things, and you cannot say to the person, "Go and sell your objects and bring money to the בעל חוב," we are not מטריח him to do that. But when it comes to pay a worker, then you have to pay with money, and if you don't have money, then we're able to tell to the בעל הבית, the one that hired the worker, "Go, sell whatever you have, and bring money to pay for your worker." And the גמרא continues: אמר רב אסי, רב אסי said: כספים הרי הן כקרקע, money has the same דין as property, as קרקע. And the גמרא asks: למאי הלכתא, concerning which הלכה did רב אסי say that? אילימא, if you're going to say לענין מיטב, concerning מיטב, that when you have to pay for נזיקין, you're able to pay with money because it has the same דין as מיטב of קרקע, as the same דין as good property, היינו דרב הונא, so then he said the same thing as רב הונא. Didn't we learn before that רב הונא said that? That you could pay or with כסף or with מיטב, that money is like מיטב. So then why did the גמרא say it as if רב אסי said a new דין? The גמרא should have said, וכן אמר רב אסי, that רב אסי, too, said the same thing as רב הונא. But from the לשון of the גמרא is משמע that it's a new thing. אלא, so therefore you must say that it's concerning a different דין, concerning לשני אחים שחלקו, two brothers that divided their inheritance, ונטל אחד קרקע ואחד כספים, and one of them took קרקע, and one of them took ובא בעל חוב ונטל קרקע, and then a בעל חוב, a person that the father owed money to, came, and he took away the קרקע from the brother who took the קרקע. So the דין is דאזיל האי, that this brother whose קרקע was taken away is able to come, ושקיל, and he could take פלגא בכספים בהדיה, half of the money that the other brother took. And that's what רב אסי meant, that money is like קרקע, that since he took away his קרקע, so then he is able to go and take half of the money that the other brother inherited. So the גמרא asks, פשיטא, that is very simple. האי ברא והאי לאו ברא? What would we think? That this one, the one that took the קרקע, he is considered a son and he is responsible to pay for the loan of his father, and the other one is not considered a son? Why should we even have a הוה אמינא to think that he shouldn't be able to go to the other brother and take half of the money? Why should he have to pay for the loan and not his brother? So it couldn't be that this is what רב אסי meant. איכא דאמרי, some say the question was asked just the opposite, אדרבה, on the contrary, in the other side, לאידך גיסא, to the other side. דאמר ליה, that the truth should be that he should not be able to come and take away from the כספים that his brother took, because he could say to him, the one that took the money could say to his brother, להכי שקלי כספים, therefore I took money. This is the reason why you allowed me to take money, because when I took money, I took a bigger risk. דאי מגנבי, if it'll be stolen, לא משתלמי מינך, I will not go and get paid from you. ולהכי שקלת ארעא, and therefore you took the field, that you took a bigger risk. דאי מטרפא, if it'll be taken away by the בעל חוב, לא משתלם לך מידי מינאי, you will not take anything from me. We each one took a risk, and therefore I do not have to pay you. So if we learn this way, then again we couldn't say that רב אסי meant this, because this דין is not true. The דין is not that he should be able to take away half of the other person's money, his brother's money, because he says that that was your risk that you took. So therefore the question is back: What did רב אסי mean when he said that money is like קרקע? אלא, so we must say it's for a different דין. דשני אחין שחלקו, two brothers that divided the inheritance, they inherited property and they divided it equally. ובא בעל חוב, and a בעל חוב came, ונטל חלקו של אחד מהן, and he took away the חלק, the part of one of the two brothers. So the דין is that the other brother is supposed to give him half of his property. But רב אסי said that money is like קרקע, that it doesn't mean that he has to give him half of his קרקע that he inherited, but he's able to give him his half with money, he could pay him with money. And that's what רב אסי meant, that כספים הרי הן כקרקע, that when the second brother will have to pay back the other brother for the property that was taken away by the בעל חוב, he could pay him with money and he doesn't have to give him half of the קרקע. But the גמרא asks, והא אמרוה דרב אסי חדא זימנא, didn't רב אסי say the same דין another time? דאיתמר, because we learned, האחין שחלקו, if brothers divided the inheritance, ובא בעל חוב, and the בעל חוב came, ונטל חלקו של אחד מהן, and he took away the חלק of one of them, so we find a מחלוקת. רב אמר, רב says, בטלה מחלוקת, the whole division that they made before is בטל, is void, and what they have to do is, they have to take the part that was taken by the other brother, they take it back, and that is divided equally. The whole division that they made before that one brother took half and the other brother took the other half is void because the בעל חוב took it away, and therefore we re-divide whatever is left over. ושמואל אמר, but שמואל says, ויתר, he lost it, that the one brother that his property was taken away, he lost out, and the other brother doesn't have to give him anything. ורב אסי אמר, but רב אסי says, נוטל רביע בקרקע ורביע במעות, that the brother who lost the property takes from his other brother a quarter, a quarter of what's left over. And that quarter that his brother is supposed to give him, he could give him or in קרקע, or in property, or he could give him in money. And רש״י explains that when the גמרא says here רביע בקרקע ורביע במעות, that he gives him a quarter in property and a quarter in money, it doesn't mean and, it means or, that he

has to give him a quarter, and the גמרא will explain why, but he gives him a quarter or in קרקע, or if he wants, he gives him a quarter in money. So here we see that רב אסי already said this דין, that when the brother has to pay back his brother in the money that was taken away by the בעל חוב, he could give him or קרקע, or he could give him מעות. And the גמרא will explain the מחלוקת between רב and שמואל and רב אסי. רב אמר בטלה מחלוקת, רב says that the whole division is בטל and you have to re-divide whatever is left over, קסבר, because he holds אחים שחלקו כיורשים הוו, that brothers that inherited, and they divide their inheritance, they still remain in the category of יורשים, in the category of heirs that inherited. And therefore, if the בעל חוב comes and takes away the קרקע from one of them, so then they are all responsible to pay to that בעל חוב. Therefore, what we do is we re-divide the property that's left over. שמואל אמר, but שמואל says ויתר, that the one that his property was taken away loses, because קסבר he holds אחים שחלקו לקוחות, that brothers that divide, they turn into buyers. It's as if each one bought from the other. And וכלקוח שלא באחריות, and it's like a person who buys without a warranty. When they divide a property, each one is like a buyer without a warranty, and therefore, if one of them loses his property because the בעל חוב took it away, the other one is not responsible to pay him, because it is like he bought it without a warranty. And therefore he says that the other brother doesn't have to pay him back.

ורב אסי אמר, but רב אסי says, נוטל רביע בקרקע ורביע במעות. רב אסי says he takes a quarter, or a quarter in קרקע if he wants to give him, or if he wants, he could give him money. The reason for רב אסי is מספקא ליה, he has a ספק. He has a doubt, he doesn't know the דין. אי כיורשים דמו, are they considered like יורשים, and therefore you would have to re-divide the קרקע? או כלקוחות דמו, or they have a דין like לקוחות, like שמואל says, and then he doesn't have to pay anything? הלכך, therefore, נוטל רביע בקרקע ורביע במעות, therefore, he takes a quarter, and that he could give him or קרקע or מעות. Because since it's a ספק whether the other brother is responsible to pay him back for his loss, and the דין is that ממון המוטל בספק חולקין, when you have money that there is a ספק whether you have to pay or not, so you divide it. So here too, since there's a ספק whether he has to give him half of what is left over, so that half, which is in doubt, you divide into half. So you give him a quarter, and a quarter he doesn't give him. And that quarter that he has to give him, he could give him with קרקע, or if he wants, he could give him with money. So

here we see that רב אסי already said at another time that when you have to pay back your brother because the בעל חוב took away his property, you have a ברירה, a choice to give him or קרקע or מעות, they have the same דין. So how can we say that when רב אסי said כספים הרי הן כקרקע, that money is like קרקע, he meant it concerning this דין? Because this דין he already said a different time, so obviously, he meant something else. So the question remains, what did רב אסי mean when he said that money is like קרקע? אלא, so the גמרא says, but מאי הרי הן כקרקע? What did רב אסי mean that money is like קרקע? לעניין מיטב, טאקע concerning the payment that you have to pay for נזיקין. So the דין is you have to pay with מיטב, with the best of your fields, so that's what he meant, that when you want, you could give כספים has the same דין as מיטב. All right, the question we asked, אי הכי היינו דרב הונא, that it's the same דין like רב הונא, so why did the גמרא say that רב אסי said it as a new דין? The גמרא should have said that רב אסי also said the same thing as רב הונא. אימא, טאקע say וכן אמר רב אסי. That's really how it's supposed to say. It really was a mistake, it shouldn't have said אמר רב אסי כספים הרי הן כקרקע, which would sound like a new דין, but the גמרא should have said וכן אמר רב אסי, that רב אסי, too, said the same thing as רב הונא said. This is one פשט in רש״י. There's another פשט that רש״י says in the מחלוקת between רב ושמואל ורב אסי, that when רב אסי said that נוטל רביע בקרקע ורביע במעות, that you take, it actually means that you take a quarter of קרקע and a quarter in money. It's not like the פשט that we said before that you only take a quarter according to רב אסי, but that quarter could be or in קרקע or in money, but the second פשט in רש״י is that רב אסי said that he takes a quarter in קרקע and a quarter in money. And according to this פשט, the explanation of the גמרא would be as follows: that רב אסי has a ספק whether he has a דין like יורשים, or the brothers who divided have a דין like לקוחות, like buyers. But, as רש״י says, like לקוחות באחריות, like people who bought with אחריות, with a warranty. So according to both sides, whether they have a דין like יורשים or like לקוחות, he is responsible to pay. Because even if he has a דין like לקוחות, you still have to pay because it's לקוחות with אחריות, it's like if you bought it with a warranty. So therefore, he definitely has to give half of what is left over. But that half, there is a ספק of how do you give it. There's a ספק that it has a דין like יורשים, and therefore you would have to give half of the property that's left over, or maybe it has a דין like לקוחות, and the reason you have to give is because you are responsible because it's like באחריות, so then you are able to give money. Since we don't know why he has to give the half, whether it is because he has a דין like a יורש, or a דין like a לוקח, therefore you split that in half. Half of the half, which is a quarter, you pay like a יורש, which means you give him the קרקע, because if they would be like יורשים, you would have to give part of the קרקע. And the other quarter, which is the other half of the half, we give with money, because maybe he has a דין like a לוקח באחריות, and then you would have to pay back with money, so that half he gives with money. And that's what the גמרא thought that רב אסי meant when he said כספים הרי הן כקרקע, and the מסקנא of the גמרא is that that's not what he meant, what he meant was concerning מיטב, and the גמרא really should have said, וכן אמר רב אסי. Then the גמרא continues,

אמר ר' זירא אמר רב הונא, ר' זירא said in the name of רב הונא, במצוה עד שליש, when it comes to do a מצוה, you have to spend up to a third. And the גמרא will explain what that means, מאי שליש, what do we mean when we say that you spend up to a third? אילימא, if you'll say שליש ביתו, you have to spend a third of your house, that means a third of your possessions, that up to a third of your possessions you must give away when it comes to do a מצוה. If it costs that much, you still must spend that money, up to a third of your possessions. But the גמרא asks, if so, אלא מעתה, אי איתרמו ליה תלתא מצותא, if it comes out that he happens to have three מצות at a time to do, ליתיב לכוליה ביתיה? What, does it mean he has to give away his whole house, all his possessions? If for one מצוה you have to pay a third of your possession, then for three מצות, you would have to give away all your possessions. Now that is impossible. אלא אמר ר' זירא, so therefore ר' זירא said the פשט was, בהידור מצוה עד שליש במצוה, when it comes to do a הידור מצוה, it has to be up to a third of the מצוה. And we have two פשטים in this גמרא. רש"י learns the פשט that when a person has a choice to buy a מצוה, and then he has a choice that the same thing he could buy a nicer one, because the דין is that a person has to do the מצות nice, as רש"י quotes from the גמרא in שבת דף קל"ג, says in the פסוק, זה אלי ואנוהו, this is my God and I will beautify Him, so we learn out from that פסוק, התנאה לפניו במצות, you have to make yourself nice in front of השם with מצות. And the גמרא says there, עשה לך ספר תורה נאה, make yourself a nice ספר תורה, לולב נאה, a nice לולב, טלית נאה, a nice טלית, ציצית נאה, nice ציצית. So if a person has a choice to buy regular ספר תורה, and then to buy a nicer ספר תורה which will cost more, so how much more is he obligated to spend for the nicer מצוה? So that's what the גמרא says, up to a third. If the nicer מצוה costs up to a third more than the מצוה itself, then you should buy the nicer מצוה. If it costs more than a third more, then you don't have to buy the nicer מצוה. That's רש"י's פשט. תוספות learns that we're talking about a different case. For instance, if a person is able to buy two אתרוגים, a small אתרוג which has the שיעור, because the שיעור of an אתרוג is כאגוז, the size of a nut, so he has an אתרוג that he could buy that has the minimum שיעור, but then he could buy a bigger אתרוג. So the גמרא is saying that if the bigger אתרוג is bigger with a third than the small one, then he should buy the bigger one. Then the גמרא says,

בעי רב אשי, רב אשי asked a שאלה, איבעיא: שליש מלגיו או שליש מלבר? When we say that for a הידור מצוה you have to spend a שליש, is it מלגיו, from the inside, or a שליש מלבר, from the outside? Because whenever we have a certain percentage, there are two ways to measure that percentage. You could say it's from the inside, or we could measure the percentage from the outside. For instance, if we have four, and we want to have a quarter of four, so then one is a quarter of four. But that is if we consider it a quarter from the inside, from what we have already, so one is a quarter of what we have. מלבר would mean that after we add the extra one, that extra percentage, then it'll be a quarter of the whole thing after we have it. If we look at it that way, then when we add one to four, we really have a fifth, because after we add one to four we have five. So now, of five, the one that we added is a fifth. That's the גמרא's continue with the משנה. משנה says, כל שחבתי בשמירתו, anything that I am obligated to watch it, הכשרתי את נזקו. If it damaged, so then I am the one that caused the damage, and therefore I am obligated to pay. This is one פשט in רש"י concerning the meaning of the words הכשרתי, that I caused, I prepared the damage, and therefore I am obligated to pay. Another פשט רש"י says that the words הכשרתי means that I am obligated to fix that damage. Then the משנה continues, הכשרתי מקצת נזקו, there's a possibility for a case that I prepared, I caused only part of the נזק, and as רש"י says Here, the word הכשרתי definitely means prepared. There is a possibility that I prepared only part of the damage, and nevertheless, חבתי בתשלומי נזקו, I have to pay for the payment of the נזק, כהכשר כל נזקו, as if I would have prepared the whole נזק. And as the גמרא will explain later on, there are certain cases that a person should only be a cause for part of the נזק, and nevertheless, he is responsible as if he caused the whole נזק. Then the משנה continues, when do you have to pay for נזק? That if you damaged נכסים שאין בהן מעילה, property that there is no דין מעילה. מעילה means that when a person has use or pleasure from property that belongs to הקדש, he is called a מועל בהקדש. And the משנה says that the only time you are חייב to pay for damage if the damage was caused to such property that there is no דין מעילה, which means property that does not belong to הקדש. נכסים שהן בני ברית, it has to be property that belongs to a ייד. נכסים המיוחדים, property that is set aside to a specific person, which means there is an owner of the property. But if property that is הפקר, that doesn't belong to anybody, you are not responsible to pay, and the גמרא will explain later on what it means. ובכל מקום, and anywhere the damage was done, you're responsible to pay, חוץ, except, מרשות המיוחדת למזיק, if the damage was done in a רשות, in a place that belongs specifically to the מזיק, because then we could say to the ניזק, "What were you doing in the רשות of the מזיק that you got hurt?" The מזיק is not responsible if the ניזק came into his רשות and he got hurt. Who allowed him to come in? And therefore, the מזיק would be פטור. And also, you are פטור if it happened in רשות הניזק והמזיק, in the רשות of the ניזק and the מזיק together, and the גמרא will explain later on what kind of רשות that is. So in all these cases, כשהזיק, when he caused the damage, חב המזיק לשלם, so the מזיק is obligated to pay תשלומי נזק, the payment for the damage, במיטב הארץ, with the best of the land, as we said before, that you must pay with עידית. The גמרא continues to explain the משנה:

תנו רבנן, the רבנן learned: כל שחבתי בשמירתו הכשרתי את נזקו, we're saying that whenever I am obligated to watch it, then if it caused damage, I am responsible to pay for the damage, I am the one that prepared the damage and I have to pay for it. כיצד? What do we mean? What case is this coming to include? He says, for instance, שור ובור שמסרן לחרש שוטה וקטן, if a person gave over an ox or gave over a pit to be watched by a חרש, שוטה, וקטן. A חרש is a person who is a deaf-mute, a שוטה is an insane person, a קטן is a child. So if you gave over your ox or your pit to be watched by any of these three, והזיקו, and then they damaged, the ox damaged or the בור, the pit caused damage, חייב לשלם, you are obligated to pay, because since you had to watch it and you gave it over to be watched by people who are not responsible, so therefore you are responsible to pay for that damage. But this דין only applies if you gave over to watch to these three a שור, an ox, or your בור, your pit. מה שאין כן באש, but if you gave over your fire, then the דין would be different. And the גמרא will explain what this is all about. במאי עסקינן? the גמרא asks. What are we talking about? What kind of case is this that we say that if it happened by a שור and a בור you would be חייב, if it happened by אש, by fire, you would be פטור? אילימא, if you will tell me, בשור קשור ובור מכוסה, that when we said that if you gave over your ox or your בור to the חרש, שוטה, וקטן you're חייב, it means even if you gave over a tied שור, a שור that was tied up, and it was safe, and you gave over a בור which was covered, and it was safe, and nevertheless, since you gave it over to the חרש, שוטה, וקטן to watch, and it caused damage, you are חייב, so then דכוותה גבי אש, so if we want to find a similar case by אש, because we're saying that אש in the same kind of case would be פטור, now which case of fire would be similar to the case of a שור קשור ובור מכוסה, of a tied ox and a covered pit? It must mean גחלת, that you gave over to a חרש, שוטה, וקטן to watch a coal. A coal, if you leave it, it won't cause any damage. אש שלהבת, a flame which is burning, then automatically it will cause fire. But a גחלת, which is a coal, unless you blow at it and you make the fire come out, it will not cause any damage. So if we're saying that the case of שור and בור that we said you are חייב is even if the שור was tied, and the בור was covered, and nevertheless, since you gave it over to watch to a חרש שוטה וקטן you are חייב, and we said that אש in a similar case would be פטור, obviously it means that you gave over to a חרש שוטה וקטן a גחלת, a fire which was in the coal, but not an open flame. And there we say the דין is that you are פטור. Now the

question is, מאי שנא הכא ומאי שנא הכא? What is the difference here, and what is the difference there? Why is the דין that in the case of the ox and the pit you are חייב, even if the ox was tied and the בור was covered, and the case of the fire, being that it was a גחלת, since it was only a coal and not a flame, you are פטור? So we can't say that that's what we meant. אלא, so therefore we must say, בשור מותר ובור מגולה, that when we said that by giving over the שור or the בור to the חרש שוטה וקטן you are חייב, it means that you gave him over an untied ox, and you gave him over an open pit. And that's why you are חייב. ודכוותה גבי אש, so if we're gonna find a similar case by the אש, where we said you are פטור, it would mean a שלהבת, that if you gave him over a flame, because a flame, if you just let it, is going to cause damage, similar to an ox that's untied or a pit that's uncovered, that they will automatically cause damage. So here the דין would be that if you gave over an untied ox and an uncovered pit to a חרש שוטה וקטן to watch, you are חייב if it caused damage, while if you gave him over a flame, which is similar to the untied ox and the uncovered pit, over there you would be פטור. So the question is, מה שאין כן באש דפטור, so it will come out that by אש, by fire, it's not like the case of שור and בור, and over there you would be פטור, but why? והא אמר ריש לקיש משמיה דחזקיה, didn't ריש לקיש say in the name of חזקיה, לא שנו אלא שמסר לו גחלת וליבה. This refers to a משנה later on in פרק הכונס. There the משנה says, השולח הבערה ביד חרש שוטה וקטן, פטור מדיני אדם. If someone sent a fire in the hands of a חרש שוטה וקטן, the one that sent that חרש שוטה וקטן with the fire is פטור. And the גמרא there says that there's a מחלוקת between רבי יוחנן and ריש לקיש what the פשט in that משנה is. ריש לקיש says that that משנה that says that you are פטור only speaks in a case where you gave the חרש שוטה וקטן a גחלת, a coal. And the קטן himself וליבה, he blew at it, and he brought the fire out, and therefore you are פטור. אבל שלהבת חייב, but if you would give to the חרש שוטה וקטן a real flame, and then it caused damage, you are חייב. But רבי יוחנן learns there that even if you gave over a flame to the hands of the חרש שוטה וקטן, you are also פטור. And this is what the גמרא asks here: that how can you say that if you gave over a flame to the חרש שוטה וקטן you are פטור, as we said before, מה שאין כן באש דפטור, that by אש you are פטור, but didn't ריש לקיש say that this whole דין that the משנה over there says that you are פטור if you give a fire to a חרש שוטה וקטן is only if you give him a coal? אבל שלהבת חייב, but if you give him a flame you are חייב, מאי טעמא, what is the reason? דהא ברי היזקא, the היזק, the damage that it will cause is very clear. So again we can't say that the difference between אש and שור and בור is in a case where you gave him an untied שור and an uncovered בור, and that's when you are חייב, but by אש, even if you gave him a flame, you are also פטור, when ריש לקיש says that if you give him a flame you are חייב. And the גמרא answers: לעולם, באמת I could say, בשור קשור ובור מכוסה, that when we said you are חייב by the שור or בור, that's even if you gave him a tied ox and a covered pit. ודכוותה גבי אש, and similar to that, when we said that by אש you are פטור, it טאקע means גחלת, that you gave him a coal, and the דין is that you are פטור. ודקאמרת, and the question that you asked, מאי שנא הכא ומאי שנא הכא, what is the difference here and there? Why by the case of the ox and the pit you are חייב, and in the case of the coal you are פטור? The גמרא says, I'll explain you why: because שור דרכיה לנתוקי, the שור, the ox, its דרך is to move around and tear itself out. So even if you gave him a tied שור, you should have assumed that eventually the שור will untie itself and cause damage. בור דרכיה לנתורי, a pit, its דרך is to get opened up, because people step over it, so the דרך of it is to get opened up. So when you gave the חרש שוטה וקטן the בור to watch, you should have expected it eventually to get opened up and cause damage, and that's why you are חייב. But גחלת, by the coal, כמה דשביק ליה עמומי מעמי ואזלא, the more you leave it, the more it gets extinguished. So by the case of the coal, when you gave it over to the hands of the חרש שוטה וקטן, you shouldn't have expected it to cause damage, because It should have gone out, it should have extinguished itself, and therefore in a case like that, you are פטור. That's only according to ריש לקיש. עולא or רבי יוחנן in the גמרא says, according to רבי יוחנן דאמר that he holds דאפילו מסר לו שלהבת נמי פטור. He says in the משנה in הכונס, that where it says that if you send a fire in the hand of a חרש שוטה וקטן you are פטור בדיני אדם, also means if you gave him over a flame. So דכוותה הכא, so similar to that here, when we said that if the

same thing happens by a שור and a בור you are חייב, it must mean דשור מותר ובור מגולה. If you give him over an untied ox and an uncovered בור, that's where you are חייב. And this is what רבי יוחנן would learn, that if you give him over an untied ox and an uncovered בור, you are חייב, and if you give him over an open flame, you are פטור, the question will be מאי שנא הכא ומאי שנא הכא, according to him, what is the difference here and what is the difference there? Why by the case of the שור and the בור you're חייב, and the case of the שלהבת, of the flame, you are פטור? And the גמרא answers, התם, over there, צבתא דחרש קא גרים. By the case of the fire, the holding of the חרש and שוטה וקטן is what caused the damage. How did the flame cause the damage? The חרש שוטה וקטן took the flame, took it some place, and caused a fire. So there, the חרש's holding on to the שלהבת, to the flame, caused the fire, and therefore, this makes the one that gave him the fire פטור, because the fire was not caused through the one that gave it to him, it was directly caused through the חרש. But הכא, but here, in the case of the ox, in the case of the בור, לאו צבתא דחרש קא גרים. It's not the holding on of the חרש that caused the damage. When he gave him over the untied ox and the uncovered pit, and then it caused damage, it wasn't that the חרש was the one directly that caused the damage. It's just that the חרש couldn't watch it, and therefore it caused damage by itself. So the שור itself caused the damage, and the בור itself caused the damage. And since the first person, he was the one that's supposed to watch it and he didn't, he is responsible to pay for it.

רש''י also says another פשט in the meaning of the word צבתא, not holding on, but צבתא רש''י says could mean the connection. That the connection between the חרש and the fire, that caused the damage, while by the case of the שור and the בור, there was no connection between the חרש and the שור or the בור, and therefore, the person who gave it to him, he is responsible. This is the way רש''י learns פשט in this גמרא. תוספות learns a little bit different. When the גמרא answers concerning ריש לקיש, that he says that it's talking in a case where the שור was tied and the בור was covered, and nevertheless you're חייב, so the גמרא says because שור עביד לנתוקי ובור עביד לנתורי, because the שור will eventually untie itself, and the בור will eventually open up, and that's why the one that gave it to the חרש שוטה וקטן is חייב, while by the case of the גחלת, the case of the coal, as long as he will leave it it will go out, it will extinguish itself, and therefore the one that gave it to him is פטור, so תוספות learns different than רש''י. רש''י, as we said, learns that the שור by himself will eventually get untied, that's what the גמרא means, the בור itself will eventually uncover, while the גחלת, on the contrary, if you leave it by itself, it'll get extinguished. But תוספות asks a קשיא on רש''י, he says how could רש''י learn that way, that obviously we're talking here in a case where the שור was tied properly, and the בור was covered properly. Now, if it was

covered properly and it was tied properly, why should we say that eventually it's going to get untied and uncovered? This is called a שמירה מעולה, this is a complete שמירה. So why should the גמרא say that the person who tied the שור properly and the person who covered the בור properly should be חייב what happened later because it'll eventually get untied and uncovered? Why should it get untied and uncovered if it was tied properly? And if it was tied not properly, and that's why it will get untied, or it was covered not properly, then לכתחילה he didn't make a proper שמירה. And therefore תוספות learns different. תוספות learns that really he covered it properly and he tied it properly, and when the גמרא says that it will eventually get untied and eventually get uncovered, it doesn't mean by itself. It means because you gave it over to the חרש שוטה וקטן. The חרש שוטה וקטן will play around with the knots of the שור, will play around with the covering of the בור, and eventually he will be able to untie the שור, and he will be able to uncover the בור. And that's what the גמרא means: when you give over a שור and a בור that's tied and covered to a חרש שוטה וקטן, you are חייב because you should have understood that eventually the חרש שוטה וקטן is going to untie the שור, the חרש שוטה וקטן is going to uncover the בור, and therefore you are חייב. But

when it speaks of a גחלת, it is not the custom, so to speak, of a חרש שוטה וקטן to blow at a גחלת and have the flame come out, and therefore when you give over the גחלת to the חרש שוטה וקטן, you could expect it to get extinguished. And therefore, if the חרש שוטה וקטן did blow it and it did cause damage, you are not responsible. And concerning ר' יוחנן, תוספות explains the סברא of ר' יוחנן, why ר' יוחנן holds that if the שור was untied and the בור was uncovered, that's when we say that you are חייב. But if the שור would have been tied, and the בור would be covered, according to ר' יוחנן you would be פטור, because ר' יוחנן holds that a קטן, a חרש שוטה וקטן, also watches it, and doesn't untie it, and doesn't uncover it. And this is the מחלוקת between ר' יוחנן and ריש לקיש. According to ריש לקיש, we have to assume that not only doesn't a חרש שוטה וקטן watch it, but on the contrary, they even help the damage. And even if it's tied, even if it's covered, the חרש שוטה וקטן will untie it and uncover it. And therefore, you are חייב even if you gave it to him when it was tied and covered. But ר' יוחנן holds on the opposite, that the חרש שוטה וקטן doesn't help to damage, contrary, it even watches a little bit, and therefore if it was tied and it was covered, you are definitely פטור because you don't expect the חרש שוטה וקטן to help the damage, and to untie it, and uncover it. But if it was untied and it was uncovered, that's when you are חייב. Because even though that the חרש שוטה וקטן watches it a little bit, but not enough to be sure that it'll be safe, and therefore if you gave it over to the חרש שוטה וקטן untied and uncovered, you are חייב. But in the case of the שלהבת, as the גמרא says, the reason you are פטור is because it wasn't certain that the חרש did cause it. And תוספות says this answers the question on ר' יוחנן. לכאורה, we could ask a קשיא on ר' יוחנן, according to ר' יוחנן that it's speaking in a case where the שור was untied, and the בור was uncovered, why do we have to mention that we gave it over to a חרש שוטה וקטן? What does the חרש שוטה וקטן have to do here? If a person leaves a שור untied and a בור uncovered, you are חייב. What does the חרש שוטה וקטן have to do here? Why does the ברייתא have to mention the fact that it was given to a חרש שוטה וקטן? But

תוספות says according to what it said before, it's understood, because we would think that since you gave it to the חרש שוטה וקטן, who watches it a little bit, it should be considered as if you gave it over to a responsible person to watch, and therefore we might think you're פטור. And the חידוש that since he doesn't watch it enough, therefore the דין is that you are חייב. Concerning what we learned earlier in the דף, that the גמרא quoted רב אסי where he said that כספים הרי הן כקרקע, that money is like קרקע, and the גמרא wanted to know concerning which דין he meant it. And at one point the גמרא thought that it's in a case where two brothers divided their inheritance. One brother took קרקע, and one brother took money. And then the בעל חוב came and took away the קרקע from the first brother. So what רב אסי said was that other brother who took the כספים has to pay him back half. And the גמרא said this couldn't be, because this is פשיטא. רב אסי couldn't have meant it, because this is very simple, and the גמרא expresses itself, האי בריה והאי לאו בריה? Why should we think that he shouldn't have to give him half of the money? He is a son and he is not a son? Only the one that took the קרקע, he is responsible to pay for the חוב, and not the other brother? Definitely, they're both responsible. So it's very simple that the other brother has to give him back half of his money. But

תוספות asks a קשיא, how does the גמרא know with such a פשיטות that the other brother has to pay him back half of the money? Didn't the גמרא later bring a מחלוקת between רב and שמואל, and רב אסי, when two brothers divided inheritance of property, and the בעל חוב came and took away the property from one of them. So רב says the whole מחלוקת is בטל, the whole division is בטל, and you have to redivide whatever is left over. But שמואל says, too bad, the one that was taken away from, he loses on the deal. So we see there is a סברא to say that one brother is responsible to pay, and the other one not. So how could the גמרא here ask with such a פשיטות that we cannot say that this is what רב אסי meant, that the one that took the money has to pay half to the other brother, because they're both responsible to pay for the חוב? It is not so פשוט. We see that שמואל doesn't learn that way. שמואל learns that when you take away the קרקע from one, the other brother doesn't have to give half of his קרקע to the first brother. And תוספות says that we can't compare the two cases. In the

case of שמואל, were both took קרקע, and everyone knows that the קרקע is משועבד to the בעל חוב. When children inherit קרקע, property, from their father, the קרקע is משועבד to the בעל חוב. So each one knows that there is a possibility for the בעל חוב to come to any of the two to take away his קרקע for the חוב. So when they divided the קרקע, they had in mind knowing that the בעל חוב could come to any of the two. So each one, so to speak, took a chance hoping that he wouldn't come to him. So it's as if they made up לכתחילה that if he does come to you, too bad, then you lose. If he comes to me, then I because they knew that it's possible he will come to any of the two. Here we're talking in a case where one took קרקע and one took כסף. And the דין is that מטלטלי דיתמי לא משתעבדי לבעל חוב, that when the יתומים the יורשים inherit מטלטלין unmovable objects, including money, the money is not משועבד to the בעל חוב. Only קרקע is משועבד to the בעל חוב. So, when they divided and one took קרקע and one took כסף, they לכתחילה both knew that when the בעל חוב will come, he'll only be able to come to the one that has קרקע. So, it makes no sense to say that the one that took the קרקע took it on condition knowing that he will be definitely the one that will be taken away from. Why should he do such a thing? So therefore, here we have to assume that when they divided it, it was on condition that if the בעל חוב will take away the קרקע from the one that took the קרקע, the other one will have to pay him back half of the כסף. In the case where they both took קרקע, so there is an equal risk for both, so each one hoped that he will not be the one that the בעל חוב will take it from, and because of that, they made as if they made up their mind that whoever will lose will lose. But in a case where we know for sure that only one of the two is the one that's able to lose, so why should he take the קרקע and be sure that he could lose it? Therefore, here we must say that it's as if they made a condition that if the בעל חוב will take away the קרקע, then the one that has the כסף will pay him back half. Then תוספות asks another קושיא, on that part of the גמרא where it said that if two brothers divided קרקע and then the בעל חוב came and took away the חלק of one of them, so we find a מחלוקת between רב and שמואל and רב אסי. So, תוספות asks how is it possible בכלל that the בעל חוב should take away the part of one of them, aren't they both equally responsible to pay for the חוב of their father? So, the דין should be that לכתחילה he shouldn't be able to take away the חלק of one of them. And תוספות answers that it could be speaking in a case where this part was made an אפותיקי. אפותיקי means that in addition to a regular שעבוד, that if ראובן owes שמעון money, so then all the property of ראובן is משועבד to שמעון. But in addition to that, sometimes ראובן could say to שמעון, אפותיקי means אפי תהא קאי, on a specific piece of property that this specific property is משועבד specifically to your חוב. Now, if he does that, then when a בעל חוב comes to claim his money, he takes away that piece of property which became an אפותיקי. And that's what the גמרא means. If two brothers divided קרקע, and one of the two parts of the קרקע was the אפותיקי to the בעל חוב. So, when the בעל חוב comes, he takes away that קרקע. And that's where we have the מחלוקת between רב and שמואל and רב אסי, whether the other brother has to pay him back or not. And then תוספות asks another קושיא. רב said that in a case like that בטלה מחלוקת, the whole division is בטל, and you would have to take the קרקע that's in the hands of the other brother and you redivide it equally now. So, it comes out from this גמרא, תוספות says, that if the other brother says, "I want to pay you with money, instead of taking the קרקע and dividing it again, I want to pay you half of the value of the קרקע instead of you taking away half of the קרקע," he can't do that. That's what he says בטלה מחלוקת, the whole division is בטל, and he can't pay him money. So, תוספות asks why is that different than what רב אסי says? We said that רב אסי holds you have to give him רביע בקרקע רביע במעות, a quarter in קרקע or a quarter with money, that that quarter that you have to pay him, if you want you could pay him with קרקע, and if you want you could pay him with money. And the reason רב אסי said that you have to pay him בכלל a quarter was because רב אסי had a ספק. Maybe the הלכה is like רב, and you do owe the money. Maybe the הלכה is like שמואל, and you don't. And therefore, you divide it in half as we said before. But that half that you do have to give, which is because maybe the הלכה is like רב, he said you could give or קרקע or money. So, why is it that רב אסי holds that the part that you do have to give, you're allowed to pay money, while רב, when he says that you do have to give, he says that you cannot pay money, but you must divide the קרקע? What is the reason of רב? And תוספות says that the reason of רב אסי, why he holds that you could pay with money, because he says that the brother could say to his other brother, that if the בעל חוב would have come to me, I would have paid him, because you could pay the בעל חוב with money, that is clear. That even though the reason he comes is because the קרקע is משועבד to him, but if you want to pay him money you're allowed to. So, he could say, "Had he come to me, I would pay him with money, so therefore, I don't have to give you קרקע, I could give you also money." But רב doesn't hold of that סברא, he says we don't look at what he could have done to the בעל חוב. And therefore, רב says, בטלה מחלוקת, the whole division is בטל and you have to redo it. And תוספות explains that even though we said before that here it's a case where there was an אפותיקי, that this קרקע that he took was set aside לכתחילה to be משועבד to the loan, so how can רב אסי say that the brother טענ'ס that I would have paid the בעל חוב money? But תוספות says it's in a case of an אפותיקי that you could pay him money.

There are two types of an אפותיקי. There are a certain kind of אפותיקי that if the בעל חוב comes, you cannot send him away by paying him money, but he takes the קרקע לכתחילה, and there is another kind of an אפותיקי that if you want to pay him money, you could pay him money. If you don't pay him money, that's when he takes this קרקע.