1) THE "TECHUM" OF AN ANIMAL GIVEN TO A SHEPHERD ON YOM TOV
OPINIONS: The Mishnah (37a) states that when one entrusts an animal with his son or a shepherd on Yom Tov, the animal's Techum follows that of the owner. The Gemara cites a Beraisa which apparently argues and says that the animal acquires the Techum of the shepherd. The Gemara answers that the Beraisa refers to a town in which there is only one shepherd, and therefore the animal acquires the Techum of the shepherd. In contrast, the Mishnah refers to a town in which there are two shepherds, in which case the Techum does not follow that of the shepherd but that of the owner.
What difference does it make whether there are two shepherds or one in the town?
(a) RASHI and the BA'AL HA'ME'OR give a straightforward explanation. When the Gemara says that the Mishnah refers to a town in which there are two shepherds, it means that the owner has an option to send his animal to one of two shepherds. Since it was not known before Yom Tov to which shepherd he would send his animal, the animal is not considered to have been in the charge of either shepherd at the onset of Yom Tov. It therefore retains the Techum of its owner. In contrast, when there is only one shepherd in the town, it is known before Yom Tov that the owner will send his animal to that shepherd, and thus the animal's Techum follows that of the shepherd. The Yerushalmi here supports this explanation. (This is not a case of Bereirah, because the owner made no prior condition that the Techum of the animal should be the same as that of the person to whom he eventually gives the animal.)
(b) The RIF implies that when the Gemara says that the Mishnah refers to a town with two shepherds, it means that the animal was actually given into the care of two shepherds. In such a case, the animal's Techum is that of the owner. (However, the RA'AVAD, in his first explanation, says that the intention of the Rif might be the same as the explanation of Rashi.)
What is the difference between giving the animal to one shepherd and giving it to two?
The RA'AVAD (in his second explanation) writes that the Mishnah refers to a case in which the owner gives the animal to two shepherds and says that either one of them should watch the animal. Since it was not known before Yom Tov which shepherd would take responsibility for the animal, the animal retains the Techum of the owner and does not acquire the Techum of either shepherd.
However, why is this case not a case of Bereirah? Bereirah refers to a situation in which a future event determines a retroactive change of status. In this case, the animal should retroactively acquire the Techum of the shepherd who eventually decides to watch it. Bereirah works in matters that are mid'Rabanan, and thus it should work here because the Halachah of Techumin is mid'Rabanan. (Since the owner specified that "one of two shepherds should watch the animal," he is considered to have specified before Yom Tov that the Techum of the animal should follow that of the shepherd who eventually decides to watch the animal.)
The Ra'avad explains that at this stage the Gemara follows the opinion of Rebbi Yochanan who maintains that Bereirah does not work even for a Halachah d'Rabanan. Accordingly, the difference the Gemara establishes between one shepherd and two shepherds is only according to Rebbi Yochanan. According to the Halachah, however, Bereirah does work for a Halachah d'Rabanan, and thus even if the owner gives his animal to two shepherds on Erev Yom Tov the animal acquires the Techum of the shepherd who later decides to watch it.
The RAN suggests that even if Bereirah normally works, in this case it cannot work because the owner did not choose which one of the two shepherds he wanted to watch his animal. The fact that he made no indication which shepherd should watch his animal shows that he does not want it to lose his Techum.
(c) The RAMBAN explains that the Rif means that the owner gave his animal to two shepherds so that both should watch it (and not so that only one of the two should watch it). On Erev Yom Tov, only one of the shepherds did an act of Meshichah to formally accept the job. The second shepherd accepted the job only on Yom Tov. On Erev Yom Tov, however, the owner did not intend for the animal to acquire the Techum of the shepherds because he was not pleased that only one shepherd would watch it. He wanted both shepherds to watch it, and therefore he kept it in his custody and it retained his Techum.
(d) The RAMBAM (according to the MAGID MISHNEH's explanation) understands the Rif's intention to be that when the owner gives his animal to two shepherds, even if he gives it to both before Yom Tov he does not want the animal to acquire their Techum. (This is also the way the BA'AL HA'ME'OR understands the Rif.) The Rambam apparently means that since two people (the shepherds) might have two different Techumin, the area in which the animal is permitted to graze might become limited if it follows both of their Techumin and, as a result, it will not be able to graze contentedly. Therefore, the owner prefers that the animal acquire neither of the Techumin of the shepherds, but rather that it retain his Techum so that it will have a full Techum in which to roam and graze. (See the Magid Mishneh for an explanation of the Gemara's intention when it says "Deika Nami" according to the Rambam's interpretation of the Gemara.)
2) ONE SHEPHERD IN TOWN
QUESTION: The Mishnah (37a) states that when one gives an animal to his son or to a shepherd on Yom Tov, the animal's Techum follows that of the owner. The Gemara cites a Beraisa which apparently argues and says that the animal acquires the Techum of the shepherd. The Gemara answers that the Beraisa refers to a town in which there is only one shepherd, and therefore the animal acquires the Techum of the shepherd. In contrast, the Mishnah refers to a town in which there are two shepherds, in which case the Techum does not follow that of the shepherd but that of the owner.
RASHI explains that in the case of the Beraisa, "since everyone in the town gives his animals to this shepherd, the seller and the buyer also want the animal's Shevisah to be with the shepherd."
Why does Rashi mention a "seller" and a "buyer" here? The Beraisa at this point discusses the case of an owner of an animal who gives his animal to a shepherd on Yom Tov. What do a seller and a buyer have to do with this case? Indeed, the commentary of Rashi on the Rif omits the words "seller" and "buyer." (MAHARAM SHIF)
(a) The MAHARAM SHIF answers that it is clear from the words of the ROSH that there is a variant Girsa in the Beraisa. According to the other Girsa, the Beraisa does not discuss two cases (as it does according to our Girsa), a case of an animal that was sold and a case of an animal that was given to a shepherd, but rather the Beraisa discusses only one case: when one buys an animal on Erev Yom Tov and instructs that it be given to a shepherd, the animal acquires the Techum of the shepherd even though the new owner takes possession of the animal only on Yom Tov. (This Girsa omits the words "Harei Hi" until "Ela b'Yom Tov.") The DIKDUKEI SOFRIM (#30) records such a Girsa (although the Acharonim who comment on the Rosh assume that there is a mistake in the Girsa in the Rosh).
This Girsa apparently was the Girsa of Rashi's text. Rashi explains, therefore, that when there is only one shepherd both the seller and the buyer have in mind to give the animal to that shepherd, and thus it acquires the shepherd's Techum.
Why, though, does the Beraisa discuss a case of an animal that was purchased before Yom Tov and delivered on Yom Tov? If the Beraisa wants to teach the Halachah in a case in which there is one shepherd in the town, it should teach the case that appears in our Girsa of the Beraisa -- the case of an owner who gives his animal to a shepherd on Yom Tov.
The answer is that by expressing the Halachah in the case of a seller and a buyer, the Beraisa teaches that there is only one shepherd in the town (and that is why the animal acquires the Techum of the shepherd). In such a case, all of the townspeople give their animals to the shepherd, and thus the seller and buyer also have unanimous intention to give it to him. Even though the buyer paid for the animal before Yom Tov (and thereby acquired the animal mid'Oraisa, because mid'Oraisa money effects a Kinyan, "Ma'os Konos"), he does not acquire complete possession of it (because the Rabanan required that an act of Meshichah be done). Therefore, on Erev Yom Tov the animal is actually in the custody of both the seller and the buyer. Hence, the animal's Techum depends on the intention of both the seller and the buyer. The only way that they could have unanimous intention for the animal to have a single Techum is if there is only one shepherd in the town and thus both intend to use the same shepherd. The Beraisa says that since they both intend to give the animal to the same shepherd, it acquires the Techum of the shepherd.
3) AN ITEM WHICH IS "MUKTZAH" BECAUSE SOMEONE ELSE OWNS IT
QUESTION: Rav and Shmuel disagree about the Halachah in a case of an animal owned by two people on Yom Tov. Rav maintains that even though Bereirah works, the animal may not be taken out of the Techum shared by both owners (even if they slaughter it and divide it). Why does Bereirah not permit the animal (or part thereof) to be taken to the Techum of one of the owners? The Isur of Techumin is only mid'Rabanan, and the Halachah states that Bereirah works for Halachos that are mid'Rabanan.
The Gemara answers that one side of the animal is "Yonek," receives nourishment, from the flesh and blood on the other side, and thus each person's portion of the animal affects every part of the animal.
The Gemara challenges Rav's opinion. If Rav is concerned that each person's portion of the animal is nourished from part of the other person's portion, then the animal should be prohibited because of Muktzah. Why is Rav not concerned for the Isur of Muktzah?
RASHI explains that the reason why one partner's portion of the animal is Muktzah to the second partner is because each person took his mind off of the other person's portion.
Rashi's intention is not clear. Why does he assume that a person takes his mind off of the animal just because someone else owns part of it? Even when someone else owns something, a person does not take his mind off of it (because the owner might give part of it to him). Why should an item be Muktzah just because someone else owns it?
(a) The SHITAH MEKUBETZES and the ME'IRI explain that in the case of the Gemara, each owner planned to bring his portion to the place where he made an Eruv Techumin, which was outside of the other owner's Techum. Since one person's portion of the animal will be out of the other's Techum on Yom Tov, each partner took his mind off of the other person's portion.
However, the Gemara (25a) says that when a Nochri brings an object from outside the Techum for the sake of one Jew, that Jew may not benefit from the object on Shabbos but another Jew is permitted to benefit from it. Why is another Jew permitted to benefit from it if it was outside of his Techum and his mind was removed from it? (RE'AH)
Perhaps the Gemara earlier refers to an object owned by a Nochri, in which case the object has no Techum at all and may be taken anywhere on Shabbos. Accordingly, the Jew did not take his mind off of it just because it was outside of his Techum. (See also RASHBA who offers another answer for Rashi.)
(b) TOSFOS in the name of the RASHBAM explains that the reason why the animal is considered Muktzah is because the animal grew on Yom Tov. The part that grew on Yom Tov should be prohibited because it is Nolad.
However, even according to Rebbi Yehudah who maintains that there is a general prohibition of Muktzah, the animal should be permitted. Since it is designated for eating ("Omedes l'Achilah"), any addition to the animal is considered food as well ("Uchla d'Ifras") and is not Nolad (as the Gemara earlier (2a) teaches). (RE'AH)
Perhaps the Rashbam understands that "Uchla d'Ifras" does not permit an object which is entirely new, but only one which existed prior to Yom Tov which simply became detached from the food on Yom Tov (like an egg; see TOSFOS 2a, DH Uchla).
(c) The RE'AH explains the Gemara's question on Rav's opinion in an entirely different manner. The Halachah is that when an unborn calf extends its leg out of the womb of the mother before she is slaughtered, the part of the unborn calf that emerged becomes "Ever Min ha'Chai" and remains forbidden. The Mishnah in Chulin (68a) states that one may cut off the leg which emerged and eat the rest of the calf. This case is the subject of the Gemara here.
The Gemara asks why the inner part of the animal is permitted. The part inside the womb should be forbidden because it grew from the part that left the womb, which is forbidden because of "Ever Min ha'Chai." The word "Muktzah" here refers to the leg of the animal that protruded out of the womb before the mother cow was slaughtered; it does not refer to the status of the animal on Yom Tov. The Gemara is asking that according to Rav, in the case of the Gemara in Chulin the entire unborn calf should also be forbidden.