Question: In many places it implies that he (Rebbi Yochanan) rules even like a S'tam Yechida'ah?

Example #1: At the end of 'ha'Motzi' (Shabbos, Daf 81b) the Gemara asks 'Did Rebbi Yohanan not say that the Halachah is like a S'tam Mishnah', and it quotes a Mishnah in Nazir (Perek Sheloshah Minim) 'A Nazir is permitted to rub his head and separate his hairs, but not to comb his hair' - even though the Gemara there (on Daf 42a & 42b) establishes it like Rebbi Shimon?

Example #2: And in Perek ha'Choletz (Yevamos, Daf 42b) in connection with 'Achas Besulos ve'Achas Be'ulos ... ' too, the Gemara asks the same question, even though it goes according to Rebbi Meir? And so it is in many places in Shas?

Answer: What the Gemara means to ask is that the author of 'Tzenu'im' is Rebbi Dosa, in order to avoid asking from a S'tam Mishnah on Rebbi Yochanan ...

Answer (cont.): In other words, to avoid asking 'Why is the one S'tam better than the other?' - because, since one can say that is the opinion of a Yachid, it is not as Chashuv as the other S'tam, which is a majority opinion (See Hagahos ve'Tziyunim).

Questions: But the other S'tama too - of 'Ein ha'Gonev achar ha'Ganav' (on which Rebbi Yochanan relies) - is a S'tam Yechida'ah - Rebbi Yehudah, the disputant of Rebbi Dosa, who says specifically 'Whatever they will collect' but not what they already collected?

Answer #1: It is possible that Rebbi Yehudah permits also what they already collected ...

Answer #1 (cont.): ... and he only mentioned whatever they will collect, because of the Chidush - that it is permitted even though it is only permitted on account of B'reirah.

Answer #2: What the Gemara means is that - although, in order to avoid asking on him from a S'tam Mishnah, we originally thought that he (Rebbi Yochanan) does not hold like a S'tam Yechida'ah ...

Answer #2 (cont.): .. now that we find it necessary to give a different answer, we will no longer say that, but that he issued his ruling even like a S'tam Yechida'ah.

Clarification: This refers specifically to Metalt'lin of Gezeilah, but on Metalt'lin of a Pikadon one does write ...

Proof #1: ... seeing as the Gemara ascribes the reason to the fact that one cannot declare it Hekdesh, and one can in fact, declare Hekdesh a Pikadon that one's friend has in his possession ...

Source: ... as is evident in 'ha'Mocher es ha'Sefinah' (Bava Basra, Daf 88a) in the case where 'A man brought pumpkins to Pum Nahara, and when everybody came and took them one by one, he declared them Hekdesh la'Shamayim' ...

Source (cont.): ... and it is implied there that if their value was not fixed, they are Hekdesh.

Proof #2: Moreover, the Gemara said earlier that someone who steals from a Ganav does not pay double, since the owner is not able to declare it Hekdesh ...

Proof #2 (cont.): ... whereas someone who steals from the house of a Nifkad does pay double to the owner, as the Beraisa that is cited in 'ha'Mafkid' (Bava Metzi'a, Daf 33b), states.

Proof #3: And what's more, the main Pasuk (regarding the Chiyuv of Kefel) is written in connection with an article that is stolen from the house of a Shomer.

Halachah: Rabeinu Chananel writes that nowadays, one writes a Harsha'ah even on Metal'telin that one denies ...

Question: ... though he does not know the reason for this.

Answer: Rabeinu Tam however, attributes it to the fact that the Halachah is like the second Lashon, since that is how the Gemara takes on ...

Source: ... since in Shevu'os (Daf 33b [See Tosfos there, DH 'Heicha']) the Gemara extrapolates - 'The reason (that they are Patur) is because he said "I make you swear that so-and-so is a Kohen", but if he said "Shimon is holding Reuven's Manah, they would be Chayav' ...

Source (cont.): But does the Seifa not say "until he hears from the mouth of the claimant? "Only it speaks", answers Sh'muel, "when he came with a Harsha'ah". But did the Neherda'i not say that "We do not write a Harsha'ah on Metaltelin"? That refers to Metalt'lin that he denies, but one does write on Mtalt'lin that he does not deny'.

Support: And the same Sugya appears in Bechoros (Daf 49a).

Answer (cont.): Since however, the Halachah is like the second Lashon, one writes a Harsha'ah even on Metalt'lin that one does deny ...

Answer (cont.): That is because, the second Lashon gives the reason that one does not write on Metalt'lin that one denies to the fact it resembles a lie (Mechzi le'Shikra), and we do not contend with 'Mechzi le'Shikra' ...

Source: ... as the Gemara concludes in 'ha'Kosev' (Kesuvos, Daf 85a) and in Perek Kol ha'Get (Gitin, Daf 26b) - that we do not hold like Rav Papi who says that 'An attestation that the judges write before the witnesses have signed on their signatures is Pasul, because it is 'Mechzi le'Shikra'.

Question: Since we do not contend with 'Mechzi le'Shikra', when the Gemara in Shevu'os (Daf 33a) and in Bechoros, Daf 49a) asks from the Neherda'i who say that 'we do not write ... ', the Gemara ought to have answered that we do not hold like them?

Answer: The Gemara tends to ask questions from cases, even though they are not Halachah ...

Example: ... like we find in the second Perek of Kesuvos (Daf 21b) where the Gemara also asks from Rav Papi on a statement of Rav Huna, from which it even retracts and amends his statement on account of it, despite the fact that the Gemara in Kesuvos (Daf 85a) rejected his ruling.

Refutation: According to the commentary there (See Tosfos Gitin, end of Daf 26b), that 'Leisa' (We do not hold like ... '), does not refer to Rav Papi but rather that the Kashya is nonexistent ...

Reason: ... since it is specifically with regard to Sh'taros that we contend with 'Mechzi le'Shikra' of the Beis-Din, but not in other matters, like Rav Nachman ...

Refutation (cont.): In that case, there is no proof from the fact that the Gemara asks from Rav Papi.

Question: According to the first Lashon of the Neherda'i, how would the Gemara explain the Mishnah in Shevu'os and Bechoros?

Clarification: It could establish the Mishnah in Shevu'os by Karka'os (See Maharsha), according to the opinion that one swears on Karka'os (See Hagahos ve'Tziyunim)...

Clarification (cont.): It could not however, establish the Mishnah in B'choros, which speaks about Pidyon B'chor, like the opinion that one can redeem a B'chor with Karka, since the Mishnah specifically states that it is forbidden.

Answer #1: It could establish it where one of the fathers owes the other one five Sela'im, and where the latter claims it from the Kohen by means of 'Shibuda de'Rebbi Nasan' (and so too the Mishnah in Shevu'os) .

Answer #2: Or where he gave it to him 'be'Ma'amad Sheloshtan' (in the presence of all three).

Reservation: One would need to clarify as to whether one could establish the Mishnah in Bechoros by 'Ma'amad Sheloshtan' ...

Reason: ... seeing as he himself could not extract the money from the Kohen ...

Precedent: ... like we find by Kesubah, which the woman cannot give to a third person via 'Ma'amad Sheloshtan', seeing as she herself cannot claim it during her husband's lifetime ...

Source: ... as is explained in 'ha'Chovel' (Daf 89a, Tosfos DH 'Kol').

Refuted Question: One should not however, wonder about our Minhag to write a Harsha'ah even on a loan ...

Problem: ... even though one cannot be Makneh money that one is owed to one's friend ...

Source: ... as is evident in 'Mi she'Meis (Bava Basra, Daf 148a), where the Gemara struggles to establish the case of 'Halva'aso li'Peloni' by a healthy person ...

Source (cont.): ... and the only possible case is where an heir inherits it or by 'Ma'amad Sheloshtan', implying that there is no other way to be Makneh it ...

Answer: ... because, since we Pasken like the second Lashon (of the Neherda'i), according to which one can even write a Harsha'ah on Metalt'lin which have ben stolen, even though one cannot be Makneh them ...

Reason: Just as one cannot declare them Hekdesh, since we Pasken like Rebbi Yochanan, that something that is stolen and over which the owner has not been Meya'esh, neither (the owner not the Ganav) can declare it Hekdesh ...

Source: ... as is implied in the first Perek of Bava Metzi'a (Daf 7a [See there]), since the Gemara queries Rav (See Hagahos ve'Tziyunim) from it.

Answer (cont.): And it is also implied there that that the Gemara takes on that if the bath-house is considered Metalt'lin, the owner cannot declare it Hekdesh ...

Answer (cont.): Likewise a loan, even though one cannot be Makneh it, one can write a Harsha'ah on it.

Reason: This is because, according to this Lashon, the Gemara concludes that the the owner makes his friend a Shali'ach, and the Chachamim made a Takanah regarding the Shelichus, as if he had acquired it completely (as his own).

Support: There is support for this Minhag in ha'Gozel Kama (later, on Daf 104a), where 'Rav Papa who was 'Masik' money to the people of Mechuza, was Makneh it to Rav Shmuel bar Yehudah (or bar Aba) together with the threshold of his house. When he returned, he went up to Tavach to meet him' ...

Support (cont.): ... and 'Masik' implies 'lent'.

Refutation #1: One can refute this however - in that 'Masik' refers (not to a loan, but) to a business transaction, which was not meant to be spent (and.

Refutation #2: Moreover, in 'ha'Mocher' (Bava Metzi'a (Daf 46a) and in 'ha'Mocher es ha'Sefinah (Bava Basra, Daf 77b), all the versions do not have the text 'Masik', but 'Havah leih Zuzi bei Chuzai'.

Refuted Proof: Nor can one prove from the case in Bechoros (Daf 49a), regarding Pidyon ha'Ben, that one can write a Harsha'ah even though it was given to the Kohen to spend, since they do not take into account that the baby will die within thirty days ...

Refuted Proof: So we see that one may write a Harsha'ah on a loan ...

Refutation: ... seeing as there, they cannot have given him the money to spend ...

Reason: ... since we Pasken like Shmuel, who says there right next to that Sugya (ibid.) that, if someone redeems his son within thirty days and the money is used up, his son is not redeemed' (in which case, the Kohen is not permitted to use the money).

Clarification: As long as she does not have a Chazakah of being an Eishes Ish.

Implied Question: And it is not comparable to the case of the first year in front of two witnesses ... (where the three pairs of witnesses do combine) ...

Answer #1: ... because there, each pair saw everything that there was to see during that year.

Answer #2: Rav Alfas (in Bava Basra) however, explains that there it is because their testimony is effective with regard to the fruit that the Machzik ate during the first year, for which he will be obligate to pay in the event that no more witnesses are found.

The Ri's preference: But the Ri considers the first reason the basic one

Proof: ... since we learned in the Mishnah in Perek Hiskabel (Gitin, Daf 63b) that if a woman asks someone to accept a Get on her behalf, she requires two pairs of witnesses, one to say that she issued the request in their presence, the other to say that the Shali'ach received it in front of them and that it got torn ...

Proof (cont.): ... from which we see that it is not considered half a testimony, even though the two pairs of witnesses need each other ...

Implied Question: ... because even according to the opinion that a third person is believed, provided he has the Get in his possession, in which case the witnesses of 'saying' do not need the witnesses of 'receiving' ...

Answer: ... nevertheless, seeing as he needs to have the Get in his possession, it would be considered 'Chatzi Davar' ...

Proof (concl.): ... were it not for the fact that each pair saw all that there was to see at that time.

Conclusion: And the Mishnah in Gitin goes like the Rabanan (of Rebbi Akiva).

Question, Side #1): How does it speak? - If, at the time of picking, the Geneivah is standing in the courtyard belonging to the purchaser, why does the Gemara ask on it 'Since, should he claim from him ... the sale is not valid either?'

Question, Side #1 (cont.): ... Granted he is Chayav Misah, nevertheless, the purchaser's courtyard will acquire it on his behalf?

Question, Side #2: ... whereas if it is not standing in his courtyard, then even without the Chiyuv of Shabbos, the sale is not valid?

Reason: ... seeing as we Pasken like Rav Nachman, who says that fruit is not eligible to make a Kinyan Chalipin.

Answer #1: According to Rabeinu Tam however, there is no problem, since he says that 'fruit cannot be used as Chalipin' is confined to where it is used as a Kinyan Sudar - which is returnd to the owner, since it is only given in the form of a Kinyan ...

Answer #1 (cont.): ... but where one gives it as a swap for another object, value for value, in the form of payment, then it does acquire.

Answer #2: The Ri answers that the Gemara here is only concerned with the Lashon 'Mecher' ( not with the technical issues involved) ...

Answer #2 (cont.): Consequently, even if it is standing in the purchaser's Chatzer, seeing as we do not tell him to go and pay, it cannot be classified as a sale, but as ' gift!

Implied Question: And even though with regard to payment of Arba'ah va'Chamishah, one is Chayav for a gift no less than for a sale ...

Source: ... as the Gemara will rule later (on Daf 79b) ...

Answer: ... nevertheless, the Mishnah says 'Ganav u'*Machar* be'Shabbos', and that is not a sale!

Answer (cont.): ... in which case 'Pick a fig from my fig-tree!' would be just as appropriate as 'Pick a fig from your fig-tree!'

Question: According to Rebbi Akiva too, as soon as it reaches the air-space of his Chatzer, he is Chayav for desecrating the Shabbos - since the R'shus ha'Yachid extends as far as the sky (Shabbos 7a), whereas the Kinyan does not take effect until the article arrives within the walls of the Chatzer ...

Source: ... as is evident in Perek ha'Zorek (Gitin, Daf 79a & 79 b), in the case of 'The man who is above and his wife, below' , where the Gemara states that as soon as the Get leaves the area of the roof, she is divorced - and which the Gemara establishes where the lower walls extend upwards beyond the upper ones (See Hagahos ve'Tziyunim)?

Answer: It speaks here where he threw it into the Chatzer by way of the entrance or the window, and not over the walls of the Chatzer.

Question: Why does the Gemara in Gitin mention Rebbi, and here, Rebbi Akiva (Seeing as both Tana'im hold 'K'lutah ... ')?

Answer: Because here it is speaking about a S'tam Chatzer which is not covered ...

Answer (cont.): And Rebbi only holds 'K'lutah k'mi she'Hunchah Damya' in a R'shus ha'Yachid which has a ceiling ...

Source: ... as the Gemara explains at the beginning of Shabbos (Daf 5a [See Tosfos DH 'Lo') - because we consider the house as if it is filled in.

Answer (cont.): ... whereas Rebbi Akiva holds 'K'lutah' even in a R'shus ha'Rabim which has no roof.

Answer (concl.): Whereas in Gitin, having establishes the case where the lower walls extend upwards beyond the upper ones, it refers to Rebbi; it cannot go like Rebbi Akiva who, at the beginning of Shabbos (Daf 4a) considers the article 'as if it has come to rest' even if there are no walls, such as in the R'shus ha'Rabim.

Explanation #1: And the Gemara thinks that, according to Rebbi, we say 'as if the house is filled in' if it has walls, even if it is not covered.

Explanation #2: Alternatively, according to the Gemara's attempt to establish it like Rebbi, it is speaking about a covered Chatzer.

Question: Seeing as the Kinyan takes place between the Akirah and the Hanachah, we ought to apply the principle 'Kam leih be'de'Rabah mineih' ...

Source: .. as the Gemara at the beginning of 'Eilu Na'aros' (Kesuvos, Daf 31a [See Tosfos DH 'she'Akirah']) rules, quoting Rebbi Avin 'If someone throws an arrow a distance of four Amos, and it tears silks in its flight, he is Patur, because the Akirah is needed for the Hanachah'?

Answer #1: According to Rabeinu Tam, who explains that it is impossible to pour wine without picking it up ...

Answer #1 (cont.): ... and according to Rebbi Yirmiyah, who says in 'ha'Nizakin' (Gitin, Daf 52b [See Tosfos DH 'Menasech]) in connection with Menasech that 'He acquires it from the moment he picks it up, whereas he is not Chayav Misah until he pours it', does not hold that 'Picking it up is needed for the pouring' ...

Answer #1 (cont.): ... in which case, by the same token, he will not hold that 'the Akirah is needed for the Hanachah' either

Answer #1 (concl.): ... there is no problem - since the Gemara is asking here according to Rebbi Yirmiyah.

Answer #2: The Ri therefore explains that in fact, the Gemara could have answered that the Akirah is needed for the Hanachah, only it answers the Makshan according to what he thinks - that we do not say 'Akirah Tzorech Hanachah hu' ...

Answer #2 (cont.): He therefore answers him that we can find a case (where both occur simultaneously) where he declares that 'He will not acquire th Geneivah until it rests (in the Chatzer').

Question: From where does Rav know this?

Answer #1: Some ascribe it to the Gemara in 'ha'Ba al Yevimto' (Yevamos, Daf 59b & 60a), which permits 'Esnan Kelev' and 'M'chir Zonah', since the Torah writes "Gam Sheneihem" - 'but not four' ...

Answer #1 (cont.): ... and since it precludes 'Esnan Kelev', which is subject to Misah, we see that the equivalent case by a woman is considered an Esnan.

Refutation: However this explanation is not correct - because does the Torah say 'and not four'? It says "Sheneihem", from which we can extrapolate "Sheneihem", 'and not three', in which case we will only preclude 'M'chir Zonah' (and not 'Esnan Kelev')?

Answer #2: The explanation therefore seems to be that the basic Din of Esnan is written in connection with Arayos ...

Source: ... as is evident in Perek Kol ha'Asurim (Temurah, Daf 29b & 30a) that Zonah in connection with Esnan is talking about Chayvei K'risos.

Question: Perhaps when the Torah forbids Esnan, it is speaking specifically in a case where somebody else says to the woman 'Take this lamb and lie with your son', in which case he (the giver) is not Chayav Misah?

Implied Question: And the concept of Esnan is applicable in such a case ...

Answer: ... as we learned in the Mishnah in Perek Kol ha'Asurim (Ibid. Daf 29a [See Tosfos, DH 'K'gon']) 'If someone says "Take this lamb and let your Shifchah stay overnight with my Eved (Ivri)", Rebbi Meir says it is not an Esnan, but the Chachamim say that it is'.

Answer (cont.): And even Rebbi Meir only says that it is not, because a Shifchah is permitted to an Eved ...

Source: ... as the Gemara states there (Daf 4a) - 'If he has a wife and children, his master may hand him a Shifchah Cana'anis'.

Answer to Original Question: The Ri answers that the Pasuk "Lo Savi Esnan Zonah" implies that a S'tam case of Esnan is where the 'adulterer' is the one who gives the Esnan (See Tosfos, Bechoros 56b, DH 'Zonah').

Implied Question: Even though the Gemara in Avodah-Zarah (Daf 63a & 63b) establishes the case where the Esnan is standing in her Chatzer ...

Answer: ... that would not be a good reason to render it Asur, since it would not be considered an Esnan, only a gift ...

Conclusion: ... and the main reason that it is an Esnan is as the Gemara concludes here (because he is obligated to give it to her). (cont. on the following Daf).