1) ONE WHO RECEIVES THE WRONG GARMENT FROM THE TAILOR

QUESTION: The Gemara discusses a case in which a person gave his garment to a tailor to fix, and after he picked up the garment from the tailor he realized that the tailor gave him someone else's garment. Is he allowed to use the garment that he was given? The Beraisa says that he may use it. However, if he went to a Simchah and took home the wrong coat, he may not use it. What is the difference between the two cases?

Rav Chiya explains that since a person sometimes asks a tailor to sell clothing for him, it is conceivable that the tailor accidently sold his garment instead of fixing it, and the tailor is giving him a replacement garment which he may use until the tailor retrieves the original garment that he accidentally sold. This reasoning clearly does not apply when a person accidentally takes home the wrong coat from a Simchah, and thus the person is not allowed to use the coat he mistakenly took.

The Gemara adds two conditions to the allowance to use someone else's garment which the tailor gave him. The first condition is that it must be that the tailor himself gave the garment to the customer, not his wife or children. The family members of the tailor do not know which garment belongs to whom, and they gave him this garment based on their mistaken assumption that it was his. The second condition is that when the tailor gave the customer the garment, he must have said to him, "Take this garment," and not, "Take your garment." The latter wording implies that the tailor made a mistake. (The CHIDUSHIM U'VI'URIM writes that if the tailor said nothing when he gave the garment to the customer, the customer is allowed to use the garment.)

The RITVA has difficulty with this Gemara. What is the basis for the leniency to assume that the tailor gave him a replacement garment, and not that he simply made a mistake and gave him the wrong garment?

ANSWERS:

(a) The RITVA answers that when a merchant sells garments, he offers a potential customer any garment that he has for sale in the store. However, when a customer comes to pick up his garment from a tailor, the tailor knows that he must give the correct garment to its owner. This is why the Gemara assumes that the tailor knew what he was doing when he gave the customer the wrong garment.

(b) The AYELES HA'SHACHAR suggests a different answer. If the Gemara would assume that the tailor gave back the wrong garment, then it would have to assume that the tailor made two mistakes: he returned the wrong garment to the customer, and he mishandled the garment which was given to him to fix. However, if the Gemara assumes that the tailor is merely giving his customer a temporary, replacement garment, then it assumes that he made only one mistake: he sold his customer's garment which was meant to be fixed. It is more reasonable to assume that a professional makes less mistakes in his work, and thus the Gemara assumes that the tailor gave his customer a replacement garment. (Y. MONTROSE)

46b----------------------------------------46b

2) WHEN MAY A SHARECROPPER TESTIFY ON BEHALF OF THE FIELD-OWNER?

OPINIONS: The Gemara quotes Shmuel who says that a sharecropper may testify on behalf of the field-owner for whom he works. The Gemara asks that the Beraisa says that he may not testify on behalf of the field-owner. The Gemara answers that whether or not the sharecropper may testify depends on whether or not there is fruit in the field.

What is the meaning of the Gemara's answer?

(a) The RASHBAM (DH Ha d'Ika, DH d'Leika) explains that when the field is in the process of bearing fruit, or the sharecropper has already started to work the field, the sharecropper is no longer considered impartial. After all, if the field is taken away from his boss he effectively loses all rights to the fruits of the field. However, if the field is currently "resting," he does not have anything at stake and is considered impartial. Though one might think that the fact that he will lose the arrangement of being the sharecropper of this field should make him favor the field owner, the Rashbam explains that there are two reasons that this is not a valid enough concern to say that he is unfit to testify. It is very possible that he can find work as a sharecropper in another field. Additionally, it is possible that the current field owner might not hire him again next year. Shmuel therefore said that in a case where the fruit is not in the field the sharecropper can testify for the field owner.

The RASHBA has difficulty with this approach. One of the questions he asks is that in a case where the fruit was presently in the field, even if the verdict is against the field owner, the new owner would still have to pay the sharecropper for cultivating and growing his crops. The sharecropper would end up being paid the same!

(b) The Rashba mentions that some say the explanation of the Gemara is that when the sharecropper is a newly hired sharecropper who did not yet work the field he is allowed to testify, but if he has ever gotten fruit from the field he cannot. However, the Rashba says that this approach is also incorrect based on the question above.

(c) The Rashba therefore explains that where there is no fruit in the field the Gemara is saying that he cannot testify. The Gemara means that though the field was already worked by the sharecropper, the trees have not yet born fruit. Why can't the sharecropper testify? If the claimant wins the case, he can dismiss the sharecropper by merely giving him the increased value of the field. He does not have to give him his share in the entire crop. The sharecropper does not want this to happen, and is therefore not considered impartial. In a case where there is fruit in the field the sharecropper can testify, as he will end up getting the value of the fruit in any case. (Y. MONTROSE)

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