BECHOROS 52 (5 Sivan) - Dedicated l'Zecher Nishmas Reb Chaim Aryeh ben Aharon Stern Z'L by Shmuel Gut of Brooklyn, N.Y.

1)

TOSFOS DH v'Lo b'Ra'uy kib'Muchzak v'Lo ha'Ishah bi'Kesuvasah (cont.)

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(a)

Answer #2 (cont.): Presumably, this is even like Rabanan who argue with R. Nasan. The reason is because R. Nasan's law does not apply, since this money was never in the orphans' hands, only now they come to take due to inheritance, and it still did not come to them;

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1.

Therefore Rabanan agree to R. Nasan that it is given to the creditor or for the Kesuvah, even though they do not hold like R. Nasan in the life of the lender.

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2.

Then (in his lifetime), they say that we do not take from a loan that he has in others' hands to give to his creditor or the Kesuvah of his divorcee;

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i.

This is because he has greater rights in this money that he has in another's hand, than orphans have in what their father left in others' hands, which was never in [the orphans'] hands, and did not come from their hands to the others.

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(b)

Implied question: If one left detached Peros, it teaches there also that whoever is first to take them, he acquired, and R. Tarfon and R. Akiva argue like in the Reisha of the Mishnah about a loan or deposit in others' hands (Kesuvos 84a. One opinion in R. Tarfon holds that she collects. This is based on two stringencies of Kesuvah!)

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(c)

Answer: (No.) Also there it discusses Peros not in the orphans' hands, like it teaches "whoever is first to take them, he acquired." This connotes that whoever is first, whether it is the heirs, woman or creditor, he acquired.

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1.

Because they are not in the orphans' hands, the woman or creditor has more power in them than [in] other Metaltelim of orphans.

(d)

Pesak: Now that the Ge'onim enacted that a woman or creditor collects from Metaltelim of orphans, a woman collects from a loan [owed to] the orphans' father, whether they collected land or coins, for a loan is not considered Ra'uy regarding a Kesuvah, rather, it is Muchzak, like I explained.

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(e)

Support: Even without the Mishnah in Kesuvos (84a) from which I proved that a loan is considered Muchzak for a Kesuvah, a woman collects her Kesuvah from a loan [paid to] orphans nowadays, even if they collected coins, due to the Ge'onim's enactment;

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1.

Since they made Metaltelim like land, Metaltelim that the orphans collected for their father's debt is Meshubad to the father's creditor, from R. Nasan's law;

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2.

For the reason that we consider land that orphans collected to be Meshubad, for the same reason we consider Metaltelim [that they collected] as if their father collected them in his lifetime. Therefore, we cannot say that they are Ra'uy regarding a Kesuvah, like for other matters.

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(f)

Question: In any case, these are two stringencies of a Kesuvah! The Ge'onim enacted that a woman collects from Metaltelim of orphans, and they enacted also that she collects even from a loan [owed to] the husband, when the orphans collected coins, from R. Nasan's law!

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(g)

Answer #1: The Ge'onim totally made [Metaltelim of orphans] like land (it is considered only one stringency).

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(h)

Answer #2: According to R. Tam, who says that the Ge'onim's enactment is mid'Oraisa (Rosh Kesuvos 6:5 - men write in the Kesuvah that there is Achrayus even from Metaltelim to pay it), they are not two stringencies at all.

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(i)

Disclaimer: Even though I said that she collects from a loan [owed to the father] of orphans due to the Ge'onim's enactment, [really] one cannot [properly] prove that Metaltelim that orphans collected for their father's debt is Meshubad to a creditor or Kesuvah due to R. Nasan, just like land, when they collected land...

1.

[We cannot prove so,] since Shibud of land is stronger to take from buyers more than Shibud of Metaltelim.

(j)

Observation: However, we can prove that a woman collects from a loan from the case in Kesuvos (84a, the argument of R. Tarfon and R. Akiva), like I explained. So people do, to collect for women from a loan of (i.e. owed to) their husbands.

2)

TOSFOS DH v'Lo ha'Ishah bi'Kesuvasah v'Lo ha'Banos...

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(SUMMARY: Tosfos explains why the Mishnah omitted a husband.)

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(a)

Implied question: Why didn't [the Mishnah] list [also] a husband? Rav Papa taught (Bava Basra 125b) that the Halachah is that a husband does not receive what was Ra'uy [to come to his wife] like Muchzak!

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(b)

Answer: It is because he receives Shevach (improvements), like the Rashbam explained there. Since he is the only heir, he acquires the property immediately, and the Shevach came in his Reshus (ownership. Our Mishnah teaches those who collect neither Shevach nor from Ra'uy.)

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(c)

Assertion: It seems that just like a husband does not receive Ra'uy, similarly he does not receive a loan of (owed to) his wife, even what she lent from her Nichsei Melug while she was married to him.

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(d)

Source: It is proven in Bava Kama (42b) that he does not inherit damage of (owed to) his wife according to Rabanan of (who argue with) Rebbi, for it is like a loan;

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1.

[The Gemara] compares Ra'uy of a Bechor to Ra'uy concerning a husband. It brings there regarding a husband the argument if Rebbi and Rabanan about a Bechor in Bava Basra (124a);

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2.

Only according to Rebbi we need to establish it that he divorced her, because he does not consider a loan Ra'uy regarding a Bechor, and the same applies to a woman. Even though there is a verse about a Bechor, we learn them from each other.

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3.

Rabanan consider it Ra'uy, even though if the damages come to her hand in her lifetime, they would have the law of Nichsei Melug, like is proven in the Mishnah in Kesuvos (65b).

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(e)

Implied question: Why did Rav Papa abandon teaching a husband, which he was discussing, and taught [only] about a Bechor, that he does not receive a double portion in a loan? (He should have taught that a husband does not receive a loan owed to his wife, after she died!)

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(f)

Answer: It is not because he holds that a husband receives from a loan. Surely he does not receive, like I explained! Rather, he mentioned a Bechor regarding a loan, for Amora'im argue about a loan there in that Sugya. Therefore he abandoned a husband and mentioned a Bechor.

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(g)

Implied question: Why didn't he teach them together, that a husband and a Bechor do not receive from Ra'uy like from Muchzak, and they don't receive a loan?

(h)

Answer: This is because a Mishnah explicitly teaches about a Bechor, like our Mishnah here "he does not receive Ra'uy like Muchzak";

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1.

However, a husband, that he does not receive Ra'uy, we do not find a Mishnah or Beraisa. Rather, it is a teaching of Amora'im in Bava Basra (113a);

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2.

R. Avahu said in the name of R. Yanai, and some say in the name of R. Yehoshua, what is the source that a husband does not receive Ra'uy like Muchzak? It says "u'Sguv Holid Es Ya'ir..." (and Ya'ir had 23 cities. How would he have land that did not belong to his father? We must say that Ya'ir's mother died before a relative who later bequeathed to her. When that relative died, Seguv did not inherit, for it was Ra'uy, and Ya'ir inherited through his mother.)

3)

TOSFOS DH veha'Amar Shmuel Ba'al Chov Goveh Es ha'Shevach...

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(SUMMARY: 1. Tosfos concludes that Mishnah discusses daughters who are fed after their father died. 2. Tosfos discusses when a creditor collects Shevach.)

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(a)

Explanation: He discusses orphans, similar to daughters [do not collect Shevach] for their food, for food of the woman (widow) and daughters are not collected from Meshubadim, like the Mishnah in Kesuvos (101b) teaches.

(b)

Explanation #1 (Rashi): Food of the daughters is a case in which a man married a woman and stipulated to feed her daughter [from a previous marriage].

(c)

Consequence: According to this, there is no proof [that she does not collect from Shevach Yesomim, i.e. what the estate increased in the orphans' Reshus]. We can properly discuss Shevach of buyers.

(d)

Question #1: The words "daughters" connotes unlike Rashi. Why should he discuss daughters more than a son? The same applies to a son, if he stipulated with his wife [to feed her son], like was taught that five collect from Bnei Chorin (Kesuvos 51b) - one who accepted on himself to feed his wife's daughter or son!

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(e)

Question #2: Also, he should not have said the plural "daughters", rather, "food for his wife's daughter." "Daughters" connotes food for daughters taught in Gitin (48b), that she eats through a Tanai of Beis Din;

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1.

Source - Citation (Kesuvos 52b - Mishnah): If one did not write to [his wife] "daughters that you will have from me [will be fed after I die...]", he is obligated, for it is a stipulation of Beis Din.

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(f)

Question #3: [The Gemara] asks here "the reason is because stipulations of the Kesuvah are like the Kesuvah";

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1.

A daughter who is fed because he stipulated with his wife to feed her daughter for five years is not called Tenai Kesuvah, for she is not fed because she is her daughter. Even another's daughter would be fed if he stipulated about her with his wife, for she is like a creditor!

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(g)

Explanation #2: Rather, we discuss food of [his] daughters, which is a Tenai Beis Din. It is not collected from Meshubadim, like a Mishnah (Gitin 48b, Kesuvos 101b) teaches.

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(h)

Consequence: If so, surely what we say here that they do not collect Shevach, only principal, this is from the orphans, and not from buyers;

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1.

Similar to this is the case of Kesuvah, that it is not collected [from Shevach of the orphans], because leniencies of the Kesuvah were taught here, like it says the reason.

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(i)

Inference: Shmuel's teaching that a creditor collects Shevach, this is even from orphans, like I explained, that we discuss [Shevach of] orphans.

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(j)

Implied question - Citation (Bava Metzi'a 15a): A creditor collects Shevach from buyers, for so the seller writes to the buyer "I will silence any claims against this sale - it (the land), money invested in it and Shevach." However, from a gift recipient, [for whom the giver] did not write this, [a creditor] does not collect [Shevach], since [if he would collect,] there would be no one [for the recipient] to go to (to get paid for the Shevach taken from him);

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1.

For this same reason, [a creditor] should not collect [Shevach] from orphans, for there is no one for them to go to!

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(k)

Answer: We can distinguish between an heir and a gift recipient. An heir is the leg (continuation of) his father, and a creditor should collect Shevach from him, just like he would collect from his father. Due to Ne'ilas Delet (lest people be reluctant to lend) it is applicable to enact that he collects Shevach from [heirs] more than from a gift recipient, who is not connected to the father.

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(l)

Implied question: We say in Bava Metzi'a (110a) that if orphans say "we improved [the property]", and the creditor says "your father improved..." This implies that if the orphans improved, the creditor does not collect Shevach!

(m)

Answer: That is only when he made [the land] an Apotoki (designated that collection will be only from that land. It is as if he collected it from the beginning, and the orphans improved the creditor's land.)

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(n)

Support #1: We likewise say there (110b, regarding an Apotoki) that [a creditor] does not collect from buyers, for Shmuel taught that for three we evaluate the Shevach, and pay them money for it - a Bechor to a Pashut, a creditor to orphans, and a creditor to buyers. (When the Bechor or creditor takes the improved land, he gives the monetary value of the Shevach to the one from whom he takes it);

1.

From Shmuel's teaching it brings there that if the orphans bring a proof that they improved, [the creditor] removes them [from the land] with money (for their Shevach). This connotes that all three cases are established in one way, i.e. an Apotoki;

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2.

[Ravina] asked "did Shmuel really say that a creditor pays a buyer for Shevach? Shmuel taught that a creditor collects the Shevach (towards his loan)! [The Gemara] answers that the case is, [the land] was made an Apotiki.

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3.

Explanation: A creditor does not collect Shevach, this is when [the borrower] said "you will collect only from this", and when the time came, it is as if he collected it, and it is like other fields of the creditor, and [the buyer or orphans] are like one who entered another's field and planted it without permission. (He receives his expenditures, or the Shevach, whichever is smaller.)

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i.

The creditor has weaker rights through that it was made an Apotiki. Because it is as if it was collected, he must pay the value of the Shevach, whether to orphans or buyers.

(o)

Support #2: This is what it says at the beginning of the Sugya about orphans - land, since it was destined for collection (it was an Apotiki), it is as if it was collected.

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(p)

Support #3: Also Rashi explained (there, 110b DH v'Chen) that we establish it when it was made an Apotiki, like below in our Sugya.

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1.

What the Gemara initially answered [there] the contradiction in Shmuel "this is when he is owed the amount of the land and the Shevach. This is when he is not owed..." does not last in the conclusion, that we establish it when he made it an Apotiki;

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2.

Even if he is owed the amount of the land and the Shevach, he must pay the orphans or buyer the value of their Shevach.

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(q)

Support #4: You are forced to say that the case [there] that the orphans say "we improved..." is not established when he is not owed the amount of the land and the Shevach, for if so, even if their father improved, the creditor does not get [the Shevach without paying]!

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1.

Rather, surely it is when he is owed the amount of the land and the Shevach, and even so he does not receive if the orphans improved, like it explains [that we discuss] when he made it an Apotiki;

52b----------------------------------------52b

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(r)

Implied question: The first answer distinguished "this is when he is owed the amount of the land and the Shevach. This is when he is not owed..." One could have asked that if so, the case when the orphans say "we improved...", how does he establish it?

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1.

If he is owed [the full amount, i.e. of the land and the Shevach], even if the orphans improved, [the creditor] gets [the Shevach without paying]! And if he not is owed [the full amount], even if the father improved, he does not get!

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(s)

Answer: Rather, surely that answer does not apply to the Sugya of the orphans say "we improved...", rather, to the contradiction in Shmuel, which is also in Bava Metzi'a (15a) and Bava Kama (95b).

4)

TOSFOS DH Le'asuyei Shevacha d'Memeila Chafurah v'Havu Shovli...

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(SUMMARY: Tosfos explains that this is like Rabanan.)

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(a)

Explanation: Our Mishnah is like Rabanan, for Rebbi and Rabanan argue in Bava Basra (124a) about Bechor, whether or not he receives Shevach, and we conclude there that they argue about [Shevach that comes automatically, without work, such as] fodder that grew to become proper grain, or unripe dates that grew to be proper dates;

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1.

And also there, Rava said that it is forbidden to rule like Rebbi (for the Halachah follows Rabanan).

5)

TOSFOS DH Bechor Karyuei Rachmana

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(SUMMARY: Tosfos explains why the Gemara in Yevamos did not mention this.)

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(a)

Question: In Yevamos (24b) it concludes about a Yavam "rather, for what Halachah did the Torah call [one who does Yibum] Bechor? It is to weaken [his rights]. He does not receive in Ra'uy like in Muchzak;

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1.

Why didn't it say that it is also for importance, that it does not return in Yovel, like Bechorah?

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(b)

Answer: It is because there is R. Elazar who argues here, and says that all return in Yovel.

6)

TOSFOS DH Amar R. Asi... ha'Achin she'Chalku Lekuchos Hen

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(SUMMARY: Tosfos explains why this is difficult only for R. Yochanan.)

[" ' - ] ' (.)

(a)

Question #1: R. Asi contradicts himself. Above (48a), he said that [brothers who inherit] are half heirs [and half buyers]! (In our text there, Rav Asi said so.)

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(b)

Question #2 (R. Tam): How can we explain ourselves in the Beis Midrash (how we rule)? We hold like R. Yochanan that they are buyers, and like Reish Lakish, that Kinyan Peros is not like Kinyan ha'Guf;

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1.

If so, we find that one brings Bikurim [and recites the declaration] only if a lone son inherited in every generation from the days of Yehoshua bin Nun [until now! If not, it is as if they traded portions, so they have only Kinyan Peros. This is not enough to say "the land that You gave to me."]

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(c)

Reference: I explained everything in Bava Kama (88b DH Hachi) and in Gitin (48a DH Iy). (Eizehu Mekoman - perhaps the rest of this Tosfos is an editor's comment, for it answers just like he answered in Bava Kama! In Gitin, Tosfos gave another answer - normally, we hold that Kinyan Peros is like Kinyan ha'Guf. We rule that it is unlike Kinyan ha'Guf only in one case.)

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(d)

Answer: Even though we hold that they are buyers, and also all the ones who hold that Ein Bereirah [say so], we (and they) did not say that we return in Yovel. Only R. Yochanan [says so];

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1.

Only about R. Yochanan, [the Gemara] in Gitin (48a) asked how he can explain his opinion, for he makes returning [any divided inheritance] in Yovel dependent on this.

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(e)

Explanation #1: However, all the others hold that even though [heirs who divide] are buyers, for Ein Bereirah, the Torah said that a sale returns in Yovel, but not inheritance and a gift, like it says above, and like it says also below (56b).

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(f)

Implied question: R. Yochanan said that even if [heirs] divided nine [Tahor animals] against nine, or 10 against 10, we do not say that each took the portion he deserves from the beginning. (Rather, they are like buyers, and they are exempt from Ma'aser Behemah.) Why did he need to teach [also] that they are like buyers, and they return [to each other] in Yovel?

(g)

Answer: One might have thought that he does not return, due to the reason I said (only a sale returns in Yovel).

('' :) '' '

(h)

Explanation #2: [The others] learn every division of inheritance from the division of Yehoshua. It says in Bava Basra (119b, that Eretz Yisrael) is an inheritance to [Bnei Yisrael] from their fathers, and even so R. Yochanan agrees that [the portion one received in the days of Yehoshua] does not return in Yovel, like it says "a lone son in every generation going back until Yehoshua bin Nun." (All agree that he recites; he is not considered a buyer.)

1.

It is logical that it not return [in Yovel], since they divided according to Nevi'im, Urim v'Tumim and due to a Gezeiras ha'Kasuv.

2.

The other Amora'im argue with R. Yochanan about this reasoning. (Shitah Mekubetzes - they learn every division of inheritance from that of Yehoshua. R. Yochanan does not, for it was a Gezeiras ha'Kasuv.)

(i)

Support: Now it is fine that R. Oshaya challenges R. Yochanan from our Mishnah, which teaches "the following do not return in Yovel - Bechorah...";

1.

Implied question: There are Amora'im who hold that [brothers who divide] are buyers, and Ein Bereirah, and he did not challenge them!

2.

Answer: [He challenged] specifically R. Yochanan, for he says that they return [in Yovel.

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(j)

Question: What is difficult for R. Yochanan? R. Meir taught the Mishnah, and he holds that Yesh Bereirah, regarding one who bought wine from Kusim (Tosefta Demai 7:4)!

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(k)

Answer #1: Chachamim [hold that Ein Bereirah, and they] do not argue with R. Meir about Bechor. Only R. Elazar argues [about Bechor].

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(l)

Answer #2: Even though [R. Meir] holds that Yesh Bereirah when he clarifies the Safek through his stipulation (the wine that I will separate...), perhaps elsewhere he holds that Ein Bereirah, for we can distinguish, like I explained above (48a).

1.

Note: Shai l'Mora asks, how can R. Asi challenge R. Yochanan based on "perhaps"? R. Yochanan can say that R. Meir does not distinguish! Above (48a) we say that R. Meir and R. Yehudah argue about Rav Asi's law or Rav Papa's law. Either way, R. Meir holds that heirs are half-buyers; he cannot hold that [Vadai] Yesh Bereirah. However, Tosfos said "perhaps"! Shai l'Mora concludes that this is all one answer. Why didn't Chachamim argue about Bechorah? Since they hold that Ein Bereirah, it must return! They can say that it does not return l'Vatalah. Why didn't they argue with R. Meir, who holds that Yesh Bereirah, so it does not return at all? Tosfos answers that R. Meir could hold that normally, Ein Bereirah; also he means that it does not return l'Vatalah.

7)

TOSFOS DH Kari Rav Chama Alei d'Rav Sheshes Tovah Chachmah Im Nachalah

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(SUMMARY: Tosfos explains this comment.)

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(a)

Explanation: Rav Sheshes knew many Beraisos, like it says in Eruvin (67a) that Rav Chisda's lips would tremble [when he encountered Rav Sheshes] due to the Beraisos of Rav Sheshes [lest Rav Sheshes challenge him from a Beraisa];

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1.

Therefore [Rav Chama] said here "good is Chachmah", i.e. Ravin's teaching in the name of R. Yochanan, "with inheritance", many [teachings that Rav Sheshes] received that he knew taught in Beraisos. (Had Rav Sheshes known Ravin's teaching, he would not have erred.)

8)

TOSFOS DH b'Ein Bnei ha'Mishpachah v'Kovrin... Mishum Pegam Mishpachah

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(SUMMARY: Tosfos explains why this does not teach about one who does not want to be buried.)

( : )

(a)

Citation: In Sanhedrin (46b) we ask whether burial is due to disgrace or Kaparah. This affects one who said "do not bury me." If it is due to disgrace, we do not heed him.

(b)

Implied question: We should resolve it from here! (He sold his grave[site] or the path to it, and his family buries him there.)

(c)

Answer: Here he did not say not to bury him at all, just [need for] money forced him to sell his grave or its path.

( .)

(d)

Implied question: We should resolve it from the case in Kesuvos (48a). It says that [if one said] "do not bury me from my property", we do not heed him!

:

(e)

Answer: He wants them to bury him, just he intends to impose himself [the cost of his burial] on the Tzibur to increase the wealth of his children.

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