Question #1: Since there is no difference whether one brings the object to the fire or the fire to the object, why does the Gemara say in Perek Kol ha'Nisrafin (Sanhedrin, Daf 77a & 77b) that if Reuven trusses up Shimon in a location where the sun or the cold is due to arrive, he is Patur?

Question #1 (cont.): Why is he not Chayav, according to the opinion that holds (above, Daf 22a) 'Isho mishum Chitzav'?

Question #2: And the same Kashya applies to the case where he bound him in front of a lion.

Answer: To be sure, if he were to bind him and carry him to the spot where the sun or the cold, or the lion, is destined to arrive, he would be Chayav.

Answer (cont.): ... only it is speaking where he bound him on the spot, without moving him from his place.

Question: Nor does it fall under the category of 'Metzamtem' (holding a person down (in the water or in the fire) - for which one is Chayav) ...

Answer: ...because the sun, the cold and the lion are not actually on him at the time of binding.

Implied Question: And the case where Reuven breached a dam (Sanhedrin Ibid.), causing a stream of water to fall on to Shimon, he is Patur (See Maharam), even if he trussed him up and brought him there before breaching the dam ...

Answer: ... since it is comparable to where he fires an arrow at Shimon who is holding a shield, where he is Patur, even if he is the one to remove the shield.

Question: Why, according to the opinion that a snake bites of its own accord, is Reuven Patur in the case (in Sanhedrin, 76b) where he holds a snake against Shimon?

Question (cont.): Why is he not Chayav because of 'Isho', seeing as a snake will always bite a person?

Answer: It is different there, since the poison is not yet in the world.

Implied Question: And if you will ask that he is Patur mi'Dinei Adam because Beis-Din did not know that they were false witnesses?

Answer: Nevertheless, seeing as, had they known that they were, he would have had to pay, one cannot say 'Patur mi'Dinei Adam'.

Explanation: And it speaks where his friend has no money with which to pay, where he went overseas, or where Beis-Din do not know that they are false witnesses.

Explanation (cont.): ... and specifically where he hired them, because, had he merely asked them to testify, he would be Patur (even) be'Dinei Shamayim, seeing as he (probably) thought that they would not listen to him.

Refuted Explanation: Because it does not seem that the Tana mentions 'Socher' to teach us that even a hirer is Patur be'Dinei Adam ...

Refutation #1: ... since that is not a Chidush.

Proof: And the Gemara will shortly make a Tzerichusa only with regard to Dinei Shamayim.

Refutation #2: Moreover, the Gemara later in the Perek (Daf 59b) states that someone who sends his animal via a Chashu, is Patur be'Dinei Adam, but Chayav be'Dinei Shamayim; and if he sent it via a Pike'ach, the Pike'ach is Chayav ...

Refutation #2 (cont.): ... implying that the sender is Patur even be'Dinei Shamayim.

Question: But that is only where he transgressed his Shevu'ah, as the Torah writes " ... they made him swear that he would testify"?

Answer: What the Pasuk means is that if he contravenes his Shevu'ah in a way that, if he will not tell, he will bear a sin, then he is obligated to bring a Korban Shevu'ah, though he will 'bear a sin' even without a Shevu'ah.

Source: ... as is evident in the Mishnah in 'Echad Dinei Mamonos' (in Sanhedrin, Daf 37;).

Clarification: And it is specifically in Beis-Din when the witnesses deny knowledge of the testimony, when they are then unable to testify, due to the principle 'Keivan she'Higid, Shuv Eino Chozer u'Magid' ...

Clarification (cont): ... that is the "Im Lo Yagid" to which the Pasuk refers.

Clarification (concl.): ... but outside Beis-Din there is nothing to worry about, since he is able to retract and testify.

Clarification: 'Until one has poured in the ashes' ...

Source (a): ... as we learned in the Mishnah in Parah (Perek 4, Mishnah 4) 'The Parah becomes Pasul if one works with it until it becomes ashes, and work renders the water Pasul until one pours the ashes into it'.

Source (b): And the Sifri learns it from a Pasuk - 'We might have thought even after they have been mixed ... therefore the Torah writes "To be guarded for the 'Mei Nidah' - but not once it has become 'Mei Nidah'.

Question: In Perek ha'Nizakin (Gitin, Daf 53a) the Gemara asks from here on the opinion that holds 'Hezek she'Ein Nikar Sh'meih Hezek'.

Question: It is also a Chidush to mention the case of 'ha'Nosein Sam ha'Maves ... ', as the Gemara says earlier (on Daf 47b), that one is Chayav bi'Yedei Shamayim even with regard to poison that is not generally eaten?

Answer: Only perhaps that is not such a Chidush.

Question: It is revealed before Hash-m what his intention was, whether it was for the good or for the bad?

Answer: Even if he meant for the good - so that the fire should burn so quickly, enabling the owner to save his corn in the meantime, he is nevertheless Chayav be'Dinei Shamayim ...

Reason: ... because he should have taken care, and done it in such a way that the owner does not incur a loss on account of what he does.

Question: Why did the Gemara not say 'Mahu de'Seima Kulah Oneis hu' ...

Question (cont.): ... such as where he locked the door so well that the animal could not have escaped other than by digging underneath it ...

Question (cont.): ... therefore it teaches us that he is considered Poshe'a as regards digging, since he left it in the sun?

Clarification: The Mishnah speaks where the robbers took the animal out in order to steal it, as the Yerushalmi explains.

Question: From where do we know that the animal is in their R'shus, even to be liable for its damages, since that is what the Mishnah is talking about, as it say 'And it went out and damaged'? ...

Refuted Answer #1: ... seeing as one cannot say that just as when 'One hands it to a Shomer Chinam or to a Sho'el (above, Daf 44b), they take the place of the owner', so too, does a Gazlan ...

Refutation: ... because it is possible that a Shomer is Chayav, but a Gazlan is not ...

Precedent: ... and we find that there are cases where a Shomer is Chayav, but a Gazlan is Patur

Precedent (cont.): ... such as where he weakens the animal temporarily or fruit part of which rotted, which is evident in 'ha'Gozel Kama (later on Daf 98b) that a Gazlan can say to the owner 'Here is yours in front of you!' ...

Reason: ... because, since it is not considered a Shinuy, he does not acquire them, and he is therefore Patur even if he was negligent, since he did not undertake to guard it ...

Precedent (cont.): A Shomer, on the other hand, since he is Chayav for a permanent weakness and for fruit, all of which rotted, there where he was negligent, he is also Chayav by a temporary weakness and by fruit, part of which rotted ...

Reason: ... because, since he undertook to guard it, why should he not be Chayav in the latter case like he is in the former.

Reason (cont.): ... bearing in mind that a Shomer does not acquire with Shinuy, even if he is a Sho'el

Basis: This is because we Pasken that 'We assess even for a Sho'el', like Rav Kahana and Rav Asi (above, on Daf 11a).

Refuted Answer #2: Nor can one answer that he is Chayav because he is unable to perform the Mitzvah of returning the animal, since, because the obligation is to pay from its body ....

Answer: ... bearing in mind that the Mishnah is speaking about Shein ve'Regel, in which case he can fulfill the obligation fully by paying the owner from his pocket.

Answer #1 (to Initial Question): It is logical to say that the Gazlan takes the place of the owner ...

Reason: .. because, since he took it out of the domain of the owner who hitherto was obligated to guard it, and, because it was stolen from him, he is no longer able to do so, the onus of guarding it is now transferred to the Gazlan.

Basis: ... since in the realm of Nizakin, the one who is able to guard it is considered the owner.

Implied Question: It is nor comparable to the case of 'where the Nizak seized it' according to Rebbi Akiva (above, Daf 36b [who holds that he is Patur])

Answer: ... since he is not even a Shomer Chinam on his friend's portion, seeing as a partner only intends to take for himself what belongs to him, but not what belongs to his friend, in the way that a Gazlan does.

Answer #2: Moreover, since the object is in the R'shus of the Gazlan also as regards Onsin, he is to be considered more of an owner than a partner.

Proof: And this is also implied by the Lashon 'de'Kama bi'Reshuseih le'Chol Mili' - meaning that 'What is in his R'shus regarding all matters helps (to render him Chayav) here as well.

Clarification: Although the animal does not belong to him, he is nevertheless Chayav because of 'Shein ve'Regel', .

Implied Question: Because, even though the Torah writes "Be'iroh" (his animal) ...

Answer: ... it is considered his, since he did it ...

Precedent: ... like Reuven who sets fire to Shimon's flax using Shimon's lamp' (later, on Daf 62b).

Refuted Answer: One cannot however explain that he is Chayav because of 'Eish', because, seeing as the damage is certain, it is as if he would have placed a fire there ...

Implied Question: And even though we exempt someone who places poison in front of his friend's animal ...

Answer: ... that is different - either because it is not fit to eat, or because the animal ought not to have eaten it, as the Gemara explained earlier (Daf 47b).

Answer to Initial Question: Because if that was the case (that he is Chayav on account of 'Eish'), then he ought to be Chayav even in the R'shus ha'Rabim.

Reason: And nowhere do we find that one is Chayav on 'Shein' in the R'shus ha'Rabim, even there where he leads the animal to the fruit and places it right on top of it.

Clarification: Initially, the Gemara thought that 'ha'Ma'amid Beheimah' means that he actually takes it by the halter, leads it to the standing corn and places it there ...

Clarification (cont.): ... which explains why it was more obvious.

Clarification: It speaks where the robbers did so in order to steal it, as the Yerushalmi establishes it.

Clarification (cont.): The Gemara does not consider it obvious, as the Makshan did.

Implied Question: And it did not bother to explain why it is not so obvious ...

Answer: Since it is self-understood why.

Clarification: Because he is busy with a Mitzvah, but only when he is actually performing the Mitzvah - spreading it out to preserve it or doing something with the article that it needs done to it. But the mere fact that the lost article is lying in his house will not exempt him from giving bread to a poor person ...

Reason: Seeing as he is to perform both ...

Source: ... as is evident in Succah (Daf 25a & 25b), where the Gemara learns 'ha'Oseik ba'Mitzvah Patur min ha'Mitzvah' from a Pasuk, but only in a case where he is unable to perform both.

Proof #1: It is also logical to say this - because would a person who is wearing Tefilin on his head, who has Tzitzis on his garment and a Mezuzah on his door-post be Patur from Mitzvos?

Proof #2: Moreover in Perek Ein bein hs'Mudar (Nedarim, Daf 33b) the Gemara states that 'The P'rutah of Rav Yosef' is not frequent, and if the finder would be exempt as long as the lost article is in his house, it would be very frequent indeed!

Halachah #1: Rabeinu Chananel and Halachos Gedolos Pasken like Rav Yosef ...

Source: ... because the Gemara says in 'Ein bein ha'Mudar' (Ibid,) that 'Everybody holds of the P'rutah of Rav Yosef'.

Source (cont.): And even the one that permits the Mudar to return the lost article, that is only because 'the P'rutah of Rav Yosef is not frequent'.

Refutation: The Ri however refutes that proof - since Rabah also agrees in principle with Rav Yosef that 'ha'Oseik ba'Mitzvah Patur min ha'Mitzvah', only he holds that that does not make him a Shomer Sachar. And since he nevertheless benefits, it is Asur for the Mudar (to return the Madir's lost article).

Refuted Proof: Nor can one prove from the Sugya that the Halachah is like Rav Yosef from his answer (to Rabah's Kashya) 'Really it speaks (when he returns the animal to a guarded area, and it comes to teach us that we do not require the owner's knowledge, like the opinion of Rebbi Elazar' ...

Refuted Proof (cont.): And that is how the Sugya in Eilu Metzi'os (Bava Metzi'a, Daf 29a & 29b) establishes it.

Refutation: ... since it seems that Rabah accepted this answer from Rav Yosef - that the Pasuk goes like Rebbi Elazar.

Refutation (cont.): In fact, when Rabah initially stated that 'He is like a Shomer Chinam', he only saw the Pasuk as an Asmachta ...

Reason: .. seeing as he gave the reason as 'What Hana'ah does he get out of it', as we learned earlier.

Conclusion: ... and Rabah and Rav Yosef's dispute is based on a mere S'vara ...

Gemara in Eilu Metzi'os: And this is the explanation of the Gemara in Eilu Metzi'os (Ibid., Daf 31a) 'If it is guarded, and Rabah explains it his way, against Peshi'ah, and Rav Yosef his way, against Gezeilah va'Aveidah, that is obvious, and does not require a Pasuk.

Halachah #2 (Proof #1): The Ri maintains that 'The Halachah is like Rabah whenever he argues with Rav Yosef, with the exception of 'Sadeh', 'Inyan' and 'Mechtzah', as the Gemara states in 'Mi she'Meis' (Bava Basra, Daf 143).

Refuted Disproof #1: And one cannot confine this to Bava Basra exclusively, as some commentaries explain ...

Refutation: ... since the Gemara in 'Mi she'Achzo' (Gitin, Daf 74b & 75a) states 'Think it over, Do we not (always) Pasken like Rabah; in this point the Halachah is not like Raban Shimon ben Gamliel' (even though that Sugya is not in Bava Basra).

Refuted Disproof #2: Nor can one answer that perhaps in that matter alone the Halachah is like Rabah ...

Refutation #1: ... because then what the Gemara ought to have said is 'But do we not Pasken like Rabah in this matter like the Gemara says 'and in this matter the Halachah is not like Raban Shimon ben Gamliel' ...

Refutation #2: Moreover, in Perek ha'Mafkid (Bava Metzi'a, Daf 43a, in the case of 'Mafkid Ma'os eitzel Shulchani, Mutarin, Yishtamesh bahen. Lefichach im Avdu, Chayav be'Acharayusam'...

Refutation #2 (cont.): ... Rav Nachman (like whom we Pasken when it concerns money-matters) says 'Ne'ensu, Lo' - because, the fact that the Chachamim permitted him to use the money, does not make him a Shomer Sachar.

Refutation #2 (concl.): In that case, when the Mishnah in Eilu Metzi'os (Bava Metzi'a, Daf 29a), in reply to the question 'What will happen to the money?', citing Rebbi Tarfon, answers that 'he may use it; therefore, should it get lost, he is responsible for it' - he only becomes a Shomer Sachar, as the Gemara says there according to Rabah.

Refuted Answer: And one cannot explain that Rav Nachman concedes there that he is Chayav be'Onsin due to the fact that he is allowed to use the money, because, seeing as he would anyway be a Shomer Sachar he is a Shomer Aveidah ...

Refutation #1: ... since it is not logical to say that he is Patur from giving bread to a poor man because there are two S'varos.

Refutation #2: Moreover, the fact that he is allowed to use it will not render him a Sho'el, only a Shomer Sachar.

Halachah #2 (Proof #2): One can bring a further proof that the Halachah is like Rabah from the fact that the Gemara S'tama re'establishes the Mishnah in 'ha'Umnin (Bava Metzi'a, Daf 80b) 'Hilveihu al ha'Mashkon, Shomer Sachar' not like Rebbi Eliezer, who rules with regard to someone who lends his friend on a Mashkon which got lost - 'He swears and takes his money'.

Halachah #2 (Proof #2 [cont.]): Whereas according to Rav Yosef, the Gemara could have established it even according to Rebbi Eliezer ...

Halachah #2 (Proof #2 [cont.]): ... since in the Maskana, it establishes everyone like him, and the Machlokes is where, if the lender needs the Mashkon, he is nevertheless performing a Mitzvah or not - where he needs it for his own personal use and he deducts from the loan accordingly, as Rashi explains there.

Halachah #2 (Proof #2 [concl.): That being the case, the Gemara could just as well have established the Mishnah where he does not need the Mashkon, in which case, he is a Shomer Sachar according to everyone.