Refuted Answer: Since one cannot switch the opinions in the Beraisa ...

Refutation: ... seeing as the Beraisa itself gives no indication of any problem that needs to be resolved in this way.

Inference: This implies that Rebbi Elazar interpret Shinuy Koneh because 'Ahanu Ma'asav' (what he did was effective) to mean that it takes it out of the owner's domain and to acquire it oneself, similar to 'Ahanu Ma'asav' with regard to selling.

Question: This poses a Kashya on the Rashbam in the first Perek (on Daf 11a) where, in connection with the statement of Ula Amar Rebbi Elazar 'Shamin le'Ganav u'le'Gazlan' - he explains that this is with regard to the deterioration of the carcass which goes to the owner, since the Gazlan does not acquire it with Shinuy?

Answer #1: When he said that he does not acquire it with Shinuy, it is referring specifically to a Shinuy which the Gazlan did not perform with his hands - such as where the animal died ...

Answer #1 (cont.): ... Rebbi Elazar concedes however, that a Shinuy which the Gazlan performs with his hands - such as Shechitah, acquires.

Answer#2: Alternatively, 'Ahanu Ma'asav' in connection with Shechitah means that he caused the owner a loss, and not that he acquires it ...

Answer#2 (cont.): ... in which case it is not quite the same as 'Ahanu Ma'asav' in connection with selling (See Mesores ha'Shas).

Question: 'le'Alter' cannot be taken literally, seeing as before the owner knows about it, it cannot take effect, as it does with Tevichah, since it would then be 'Yi'ush she'Lo mi'Da'as' ...

Question (cont.): ... and we Pasken like Abaye (in Bava Mtzi'a, Daf 22b), that it is not considered Yi'ush?

Answer: It is also not the way to Shecht immediately, until one arrives home, during which time one assumes that the owner got to know about it.

Question: Geneivah be'Nefesh is different, in that it is not compared to Tevichah either?

Answer: Geneivah S'tam is not compared to Tevichah either ...

Answer (cont.): ... which explains why Rebbi Yochanan was able to ask that, to the contrary, one should rather learn Mechirah from Mechirah?

Question: We probably Pasken like Rabah, that 'Yi'ush ia Koneh', and we also Pasken like Rebbi Yochanan against Resh Lakish , that he is Chayav even after Yi'ush.

Question (cont.): Now why should he be Chayav after Yi'ush, seeing as, since Yi'ush is Koneh, it is his own animal that he Shechts and that he sells?

Answer: It is possible that we Pasken neither like Rabah nor like Yochanan, seeing as many Amora'im argue over these issues.

Question: The Tzenu'im transfer the Kedushah after Yi'ush, seeing as 'S'tam Geneivah is considered Yi'ush' like the Rabanan of Rebbi Shimon (later, Daf 114a) ...

Question (cont.): ... in which case they hold that Yi'ush is not Koneh, whereas Resh Lakish concedes that one cannot declare Hekdesh after Yi'ush, since he holds that Yi'ush is Koneh?

Refuted Answer: And one cannot say that it is Yi'ush she'Lo mi'Da'as, since the owner does not know whether they picked it or not ...

Refutation: ... seeing as in the case of 'Tamri de'Zika' (Dates that the wind blew off the tree) the Gemara says in 'Eilu Metzi'os' (Bava Matzi', Daf 22b & 23a) that, since it is common for them to be blown of, it is considered Yi'ush mi'Da'as.

Answer: Here it is not so common for people to pick the fruit, since they are afraid of the owner, and it can therefore not be compared to 'Tamri de'Zika', and is therefore considered Yi'ush she'Lo mi'Da'as.

Answer (cont.): In fact, even according to the opinion that holds that 'Yi'ush she'Lo mi'Da'as is Yi'ush', it is possible that the Tzenu'in hold like Rebbi Shimon that 'S'tam Geneivah is not considered Yi'ush'.

Question: How can one compare Hekdesh to Chilul, to say that just as one can be Mechalel what one's friend owns, so too, can one declare it Hekdesh, when we see that, even though Reuven cannot declare Shimon's fruit Hekdesh, he can be Mechalel his Hekdesh?

Source: ... as is evident at the beginning of 'ha'Ishah Rabah (Yevamos, Daf 88a), where the Gemara says 'If it is Kedushas Damim, it is because he is able to redeem it; whereas if it Kedushas ha'Guf if it belongs to him ... ' ...

Source (cont.): ... implying that with regard to Kedushas Damim, there is no difference between whether it belongs to him or to his friend?

Answer: One cannot compare them, since once Hekdesh has been declared, it leaves the domain of the owner, in which case just as the owner can declare it Hekdesh, so too, can anybody else ...

Answer (cont.): ... whereas with regard to Kerem R'vai, even though it is Mamon Gavohah, the owner has the sole right to eat it in Yerushalayim.

Question: Still, we see that one is able to transfer the Kedushah of the Ma'aser Sheini belonging to one's friend ...

Source: ... since the Gemara, in Perek ha'Ish Mekadesh (Kidushin, Daf 55b & 56a) states that one cannot purchase a Tamei animal, Avadim or Karka'os with Ma'aser Sheini money; and that, if one did, he should purchase the corresponding amount of fruit in Yerushalayim' ...

Source (cont.): ... on which the Gemara asks 'Why can they not simply retract (so that the money is returned to the owner.)', to which it replies that it speaks where the seller fled (with the money)

Question (concl.): So we see that the purchaser is able to transfer the Kedushah from the money that is in the hand of the seller?

Answer #1: Because there he (the seller) is like a Gazlan, because, had he not fled, the purchaser would have retracted ...

Answer #1 (cont.): ... and it is like 'Gazal ve'Lo Nisya'ashu ha'Ba'alim', similar to the Tzenu'in here.

Answer #2: Alternatively, there it is merely a K'nas ...

Support: ... as is implied there in the Sugya itself.

Question: In Perek Lulav ha'Gazul however (Succah, Daf 39a & 39b) the Gamara implies that a person is able to be'Mechalel the value of the fruit of Shevi'is belonging to one's friend without his knowledge ...

Source: As the Beraisa states there 'One is not permitted to give the money of Sh'mitah fruit to an Am ha'Aretz to the value of more than three meals; and that if one did, he declares 'Behold that money is transferred on to the fruit that I have at home, which he subsequently eats with the Din of Shevi'is.

Answer: The Rabanan took that money out of the domain of the Am ha'Aretz to prevent him from transgressing, and placed it in the domain of the seller to enable him to transfer it ...

Source: ... based on the principle 'Hefker Beis-Din Hefker'.

Question: In the first Perek of Bechoros (Daf 11a See Tosfos, DH 'ha'Podeh') it implies that if someone redeems someone else's Petter Chamor, his redemption takes effect, even without the latter's knowledge' ...

Question (cont.): ... since the Gemara asks 'Whether it is redeemed for the benefit of the redeemer or for the benefit of the owner' - and if it was with his knowledge, it seems obvious that it would be redeemed for the benefit of the owner.

Answer: Petter Chamor is not comparable to Kerem R'vai ...

Reason: Because, since it is Asur be'Hana'ah, it is like Hekdesh, in that anybody is permitted to redeem it ...

Reason (cont.): ... though not completely like Hekdesh, since it is obvious that Hekdesh is redeemed for the benefit of the redeemer, whereas the Gemara concludes that Petter Chamor is redeemed for the benefit of the owner.

Question: How can one compare Hekdesh to Chilul in the first place ...

Question (cont.): ... why should one not be able to transfer one's friend's Neta R'vai and Ma'aser Sheini without his knowledge, seeing as it is merit for him - due to the principle 'Zachin le'Adam she'Lo be'Fanav' (Eruvin 81b)?

Refuted Answer: ... because even though the Gemara in 'Ein bein ha'Mudar' (Nedarim, Daf 36b) asks whether someone who separates T'rumah on behalf of his friend requires his friend's consent or not ...

Refutation: ... that is only because 'It may well be that the owner prefers to perform the Mitzvah himself', as the Gemara explains there.

Question (concl.): ... whereas here, would it not be better for the pickers for the owner to transfer the Kedushah, than that they eat it without transferring it? (See Tosfos, Kidushin Daf 56a DH 'Maskif').