14b----------------------------------------14b

1)

WHICH ANIMALS MAY ONE SELL TO NOCHRIM? [Nochri: selling: animals]

(a)

Gemara

1.

(Mishnah): In all places one may not sell to Nochrim large (i.e. work) animals, calves and foals, healthy or lame;

2.

R. Yehudah permits selling a lame animal;

3.

Ben Beseira permits selling a horse.

4.

15a - Opinion #1: The Isur to sell work animals is a decree, lest one rent or lend an animal to a Nochri.

5.

Objection: One who rents or borrows an animal acquires it (for the agreed period of time)!

6.

Opinion #2 (Rami brei d'R. Yeva): This is a decree, lest the Nochri want to test the animal;

i.

Sometimes he buys an animal just before Shabbos, and wants to see how it carries burdens. The animal goes when it hears its owner's voice. The owner transgresses Mechamer (making an animal work on Shabbos) for which (b'Shogeg) one brings a Chatas.

7.

Rav Ada permitted selling a donkey through a Safsira (middleman, or a wholesaler who buys and sells animals).

i.

We are not concerned lest the Nochri want to test the animal, for it does not recognize the Safsira's voice. The Safsira will not rent or lend it out, for it is not his, and he fears lest defects of the animal become known.

8.

16a (Beraisa - Ben Beseira): A horse is permitted, because its work (carrying people) is not a desecration of Shabbos that people are killed for. (ha'Chai Nosei Es Atzmo, i.e. living people carry themselves);

9.

Rebbi says, a horse is forbidden for two reasons. It is like a weapon, and it is a work animal.

10.

It is like a weapon for it kills fallen soldiers with its forelegs.

11.

(R. Yochanan): It is considered a work animal, for when it grows old, people make it turn a millstone.

12.

R. Yochanan: The Halachah follows Ben Beseira.

(b)

Rishonim

1.

Rambam (Hilchos Shabbos 20:4): One may sell a horse to Nochrim, for it is used solely to carry people, and ha'Chai Nosei Es Atzmo.

i.

Magid Mishnah: The Rambam rules like Ben Beseira, for R. Yochanan taught that the Halachah follows him.

ii.

Objection: Pirush ha'Mishnayos says that the Halachah does not follow Ben Beseira! Also, the Mishnah Torah permits only a horse that people ride on. This is like Chachamim, who say that ha'Chai Nosei Es Atzmo applies only to people!

iii.

Answer #1 (Tosfos Yom Tov Pesachim 4:2): The text of the Rambam (and Bartenura, who explicitly says that the Halachah does not follow Ben Beseira) did not say that the Halachah follows Ben Beseira.

iv.

Objection (Rashash Avodah Zarah 16a DH Omar R. Yochanan): Even if this is so, the Rambam should rule like R. Noson (who says that ha'Chai Nosei Es Atzmo, and holds like Ben Beseira) because Rava (Shabbos 141b) holds like R. Noson!

v.

Answer #2 (Rashash ibid.): R. Yochanan taught that the Halachah follows Ben Beseira, i.e. and not Rebbi, who forbids a horse because it is a weapon and it pulls a millstone when it is old. If R. Yochanan held that ha'Chai Nosei Es Atzmo even for animals, he would have given his ruling on the Mishnah. Rava holds like R. Noson and Chachamim. The Gemara attributes Rava's law to R. Noson, for R. Noson explicitly said that ha'Chai Nosei Es Atzmo. The Rambam rules like Chachamim, for they are the majority.

2.

Rambam (5): In every place one may not sell large Chayos (wild animals) to Nochrim, just like one may not sell large Behemos, except through a middleman.

3.

Question (Rosh 1:16): A Safsira is a Yisrael who buys animals in order to sell them immediately. Since he buys in order to sell immediately, we are not concerned lest he lend or rent them. It is astounding why nowadays people sell to Nochrim calves, young donkeys and donkeys. Even Ben Beseira permitted horses only in those days, when they were only for riding. Nowadays that people use them to carry burdens and plow, even he would forbid.

i.

Beis Yosef (DH v'Chosav Od): Sefer ha'Terumos says that nowadays horses pull wagons, and sometimes the buyer explicitly says that he buys it for work.

4.

Answer (Rosh): R. Tam says that just like they permitted a Safsira, for he does not lend or rent and the animal does not recognize his voice, nowadays all are permitted, for we are not Mechamer and animals do not recognize our voices. Also, people do not normally lend or rent nowadays. Everyone buys an animal (only) for his own needs. The Ri says that in the days of the Gemara, Yisre'elim lived together, and they could sell to each other. Nowadays, a small number of Yisre'elim live together.If they cannot sell to Nochrim, they will lose. The Gemara said that we should forbid selling to them wheat and barley, but this is impossible. Likewise, it is impossible not to sell animals to them. The Yerushalmi gave a leniency to rent fields to Nochrim where Yisre'elim are not found.

i.

Ran (6a DH V'Ha'idna): According to R. Tam, it should be permitted even to buy in order to sell. A Ba'al Nefesh (spiritual person) should avoid this. In any case lending and renting are forbidden.

ii.

Ran (5a DH u'Makshu): Some ask, why did the Gemara need to mention Mechamer? Even without this, it should be forbidden due Shevisas Behemto (a Yisrael's animal must rest on Shabbos)! Perhaps this is true; we mentioned Mechamer because it is more stringent, for the person himself does the Isur. However, if so we should forbid through a Safsira. Even though Mechamer does not apply, Shevisas Behemto does! The Rashba answered that they test it only in the Chatzer, and carrying there is not a Melachah, but Mechamer applies to any labor. I disagree. If a man would be exempt for a labor, we cannot obligate him if his animal does it. Shevisas Behemto is more lenient than his own Melachah (Shabbos 153b)! Also, it says there that one is liable for Mechamer only if the animal did Akirah and Hanachah (uprooting from rest and setting to rest, i.e. a full Melachah). Akirah and Hanachah do not apply in Reshus ha'Yachid (a Chatzer)! Some say that since it is a remote chance that he will sell just before Shabbos, we are stringent only for a Lav that he himself does. It seems that this is why Rashi said that some obligate a Chatas for Mechamer. Perhaps the Rambam did not mention making it work, for he explains that that the Gemara was concerned for Mechamer and not for Shevisas Behemto according to the opinion that one is Chayav Chatas for Mechamer. We exempt for Mechamer, so we are not concerned for either of these. I say that Shevisas Behemto does not apply, for people fix a price before testing the animal. If it does not work, it is a Mekach Ta'os and the sale is undone. The animal belongs to the buyer. When one takes Kelim to see if his father-in-law will want them, they are considered his until he retracts. (Bava Metzia 81a). He is not merely a borrower, for the Gemara says that this is only if they fixed a price. Surely Mechamer applies even if it is not his animal. If not, since we exempt Mechamer, why is there an Isur of Mechamer? If it is his animal, in any case it is forbidden due to Shevisas Behemto! The Gemara always discusses Mechamer with his animal; this is merely the normal case.

(c)

Poskim

1.

Shulchan Aruch (YD 151:4): In every place one may not sell large animals to Nochrim or to Yisre'elim suspected of selling to Nochrim, unless it is through a middleman, or he knows that he buys it to slaughter it. Nowadays, the custom is to permit everything.

i.

Beis Yosef (DH u'Mutar): The Tur understands that we permit to sell to a Yisrael wholesaler, and he sells to a Nochri. One may not sell through a middleman. This is why the Heter is brought for a Safsira (wholesaler), and not for a middleman. However, Rashi and the Rambam explain that Safsira is a middleman.

ii.

Beis Yosef (DH u'Mah she'Chosav Rabeinu b'Shem): The Tur says that Sefer ha'Terumos permits only when the situation arose. I.e. he bought it for himself and reconsidered, and if he does not sell it to a Nochri, he will lose.

iii.

Shach (12): Some say that nowadays we permit because a small number of Yisre'elim live together, and if they cannot sell to Nochrim, they will lose. Some say that it is because nowadays animals do not recognize our voices, and people do not normally lend or rent. This is to permit Tamei animals. In any case Tahor animals are permitted, for one may assume that he buys it for slaughter.

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