Conclusion: And the main reason that it (the Esnan that he gives his mother) is an Esnan is as the Gemara concludes here - because he is obligated to give it to her [not because it is in her Chatzer).

Clarification: In other words, since he is obligated to give it to her in order to fulfill his moral obligation, it would be considered an Esnan and not a gift, even if it was not standing in her Chatzer ...

Conclusion: By the same token the sale is valid in the current case.

Support: And it is also implied in 'ha'Socher es ha'Po'alim' (Bava Metzi'a, Daf 91a & 91b) that one is obligated to pay the money (in similar circumstances) in order to fulfill one's moral obligation ...

Support (cont.): When the Gemara states there, in a case where one muzzles a cow and threshes with it, that one receives Malkos and has to pay four Kabin for a cow and three Kabin for a donkey'. And, in answer to the question 'Ha Ein Lokeh u'Meshalem?', the Gemara answers 'The Torah forbids Esnan, even if he had relations with his mother!'

Question: In Perek Ben Sorer u'Moreh (Sanhedrin, Daf 72a, See Tosfos there DH 've'Lo') the Gemara relates that thieves stole rams from a Machteres (a tunnel) that they had dug whilst breaking into Rava's house, and that Rava refused to accept them when they came to return them ...

Reason: Based on a statement of Rav that he (the thief) 'acquires them with his life' ...

Question (cont.): Now if a thief is obligated to return articles that he stole in a Macchteres (albeit in order to fulfill his moral obligation), why did Rava refuse to accept them?

Answer: Because he thieves were returning the rams (not on account of any moral obligation, but) because they thought that they were obligated to do so min ha'Din.

Precedent: The Gemara asks the same Kashya on the Mishnah in 'Eilu Na'aros' (Kesuvos, Daf 32a, See Tosfos there DH 'de'Ein').

Question: It is implied that by K'nas, everyone agrees that 'One receives Malkos and pays' ...

Source: ... since we learn it from Motzi Shem Ra, as is evident in the first Perek of Makos (Daf 4a & 4b) - that we would learn all other cases from Motzi Shem Ra, if not for the Pircha 'Mah le'Motzi Shem Ra, she'Kein K'nas'?

Source (cont.): Whereas "K'dei Risha'so" (from which we learn 'Ein Lokeh u'Meshalem') we will establish by cases of Mamon which are not K'nas.

Refuted Answer: And it would be a Dochek to explain that the Rabbanan disagree with Rebbi Meir and hold a. that Eidem Zom'min are considered a K'nas and b. that "K'dei Rish'aso" is written in connection with them.

Refuted Answer (cont.): ... in which case, we would Darshen that 'One can only declare a defendant Chayav for one transgression, but not for two' even regarding cases of K'nas.

Answer: To be sure, were it not for the Kashya 'Mah le'Motzi Shem Ra she'kein K'nas?', we would apply 'Lokeh u'Meshalem' to all cases, and learned something else from "K'dei Rish'aso", as the Gemara Darshens in 'Eilu Na'aros' (Daf 36a & 36b) ...

Answer (cont.): But now that one can ask and establish "K'dei Rish'aso" to teach us 'Ein Lokeh u'Meshalem', we learn from there regarding all cases that 'Eidim Zom'min cannot both receive Malkos and pay' ...

Answer (cont.): ... because in all cases the Torah says that they cannot be Chayav both, even if they testify falsely with regard to 'T'vacho u'Mecharo', which is a K'nas.

Implied Question: And the reason that we learn from Eidim Zom'min and not from Motzi Shem Ra is ...

Answer: ... because the basic Din of Malkos is written by them ...

Answer (cont.): And we learn all the other cases of Malkos from the La'av of 'Chasimah' which is written next to it (the Pasuk concerning Malkos).

Question: How will Rabah, who says in Perek Eilu Na'aros (Kesuvos, Daf 34b [See Tosfos, there DH ve'Rebbi Meir']) that, according to Rebbi Meir, it is a Chidush that the Torah instituted by K'nas - that 'Even though he is sentenced to death, he nevertheless has to pay' - explain the Mishnah ...

Question (cont.): Because if the author is Rebbi Meir, he ought to be Chayav (to pay) even if he Shechted it on Shabbos?

Answer: Rabah will establish the Mishnah (like the Rabanan, but) where they did not warn him ...

Answer (cont.): .. and according to Rebbi Yochanan, who holds that Chayvei Malkiyos Shog'gin are Chayav to pay.

Precedent: And that is how Rabah answers the Mishnah there in Eilu Na'aros (on Daf 35b).

Implied Question: The opinion that requires "O" to divide ...

Answer: ... Darshens to include a Shali'ach from "Tachas".

Clarification: This Sugya concurs with the opinion in 'ha'Shochet' (Chulin, Daf 40a) that 'A person can render Asur something that is not his, via an act', though this is a Machlokes Tana'im.

Question: The Gemara says there that even the opinion that declares it Asur, that is specifically as far as a Nochri is concerned, but a Yisrael merely has in mind to 'pull his leg', in which case it remains a Shechitah that is fit?

Answer: It speaks where he permitted the Shali'ach to Shecht as he sees fit, even to Avodah-Zarah ...

Answer (cont.): ... in which case it is not feasible to say that he is pulling the owner's leg, seeing as the Shali'ach believes the Ganav to be the owner.

Reference: This is explained in Perek ha'Nizakin (Gitin, Daf 53b [See Tosfos DH 'Hi']).

Question: Let the Torah write neither "Kodesh" nor "Lachem", and we will know that it is Asur, based on the Pasuk "Lo Sochal Kol To'evah" - 'Whatever I declared abominable for you, is subject to 'Bal Tochal'?

Answer: From there we would have thought that it incorporates 'Shogeg'.

Answer (cont.): Hence the Torah needs to write the current Pasuk, and to juxtapose it to "Mechalelehah", to teach us that it is confined to Meizid, but does not apply to Shogeg.

Implied Question: It will not suffice to omit both "Hi" and "Kodesh" ...

Answer: ... because we would then have prohibited eating it from the principle 'Whatever I declared abominable (may not be eaten)'.

Precedent: ... and so the Gemara says explicitly in Perek Kol ha'Basar (Chulin, Daf 115 [See Tosfos there, DH 'Hi']).

Implied Question: The Gemara could have answered that they Darshen neither "O" or "Tachas" ...

Answer: ... only it wants to avoid explaining that they are arguing over a Shali'ach.

Question: It is implied later (Daf 72a) that we exempt a Shechitah that is not fit, even if it is only mi'De'Rabanan ...

Source: ... since the Gemara suggests, that, according to the Mishnah, Rebbi Yochanan holds 'Chulin that are Shechted in the Azarah are not d'Oraysa', yet the Mishnah (on Amud Alef) states that Rebbi Shimon exempts these two?

Answer: The Gemara can only be saying that it is not d'Oraysa according to the Tana Kama ...

Reason: ... since in Perek Kisuy ha'Dam (Chulin, Daf 85b & 86a) the Gemara specifically states that Rebbi Shimon holds holds 'Chulin she'Nishchatu ba'Azarah are d'Oraysa' ...

Source: ... from the fact that, in the Mishnah in the last Perek in Temurah (Daf 33b) he requires them to be burned - and the same applies to a Chayah.

Observation: And when the Gemara there (in Chulin) extrapolates there from the Mishnah in Temurah (that 'Chulin ... ' is d'Oraysa), it could just as well have learned it from our Mishnah, from 'Rebbi Shimon Poter bi'Shnei Eilu'.

Clarification: Even according to the opinion that holds 'Einah li'Shechitah Ela li'be'Sof', it becomes forbidden with the first bit of the Shechitah ...

Reason: ... seeing as the Isur hinges on the act and not on the (fact that it is a) Shechitah.

Source: ... as the Gemara states in 'ha'Shochet' (Chulin, Daf 40a) - 'Even though 'Someone who bows down to his friend's animal does not render it Asur, if he performs an act, he does'.

Clarification (cont.): Yet on that bit he is not Chayav Arba'ah va'Chamishah, even according to the opinion that holds 'Yeshnah li'Shechitah mi'Techilah ve'ad Sof' ...

Source: ... as the Gemara says later (Daf 72a) that 'The entire Shechitah needs to be performed be'Iusr'.

Question: Why do we need the reason that 'He is not Shechting what belongs to the owner?' Why not simply say that this is not considered a Shechitah, but rather that it is merely cutting a piece of earth? ...

Source: ... as the Gemara states in 'ha'Shochet' (Ibid.) in connection with 'Someone who Shechts a Chatas on Shabbos outside the Azarah to Avodah-Zarah is Chayav three Chata'os', on which it asks 'Why is he Chayav on Shechutei Chutz, since he is merely cutting a piece of earth, seeing as with the first bit of the Shechitah to Avodah-Zarah, he renders it Asur?'?

Answer: The Gemara there bases its Kashya on the fact that the animal must be fit to come to the entrance of the Ohel Mo'ed, which, since he renders it forbidden with the first bit of the Shechitah, it is not.

Question: So what if he does not Shecht what belongs to the owner, is it not a fact that every Shechitah (of a stolen animal) does not belong to the owner, seeing as the moment he Shechts the first bit, he acquires it with Shinuy?

Answer: This is not considered a Shinuy Ma'aseh by which one acquires the animal (See Hagahos ve'Tziyunim)

Question: On what grounds does Rebbi Meir declare him Chayav in this case, bearing in mind the Gemara in Perek Kisuy ha'Dam (Daf 85a, Tosfos DH 'Danin'), which gives the reason why Rebbi Meir does not require a Shechitah Re'uyah - 'because he learns Shechitah from Shechutei Chutz' ...

Question (cont.): ... since he learns 'Shechitah' from 'Shechitah' rather than from 'Tevichah' - from "Tavo'ach Tevach ve'Hachein" ...

Question (concl.): Whereas here where the Torah writes "u'Tevacho", to the contrary, it is preferable to learn 'Tevichah' from 'Tevichah' than from 'Shechitah'?

Answer #1: Because here one can answer that we learn a Shechitah of Aveirah - since it is forbidden to steal and Shecht, from a Shechitah of Aveirah - from Shechutei Chutz, rather than Tevichah from "Tavo'ach Tevach ve'Hachein", which is a Shechitah of Heter.

Implied Question: And the reason that the Gemara did not give this answer in Perek Kisuy ha'Dam (Ibid.) is ...

Answer: ... because, when someone Shechts 'Oso ve'es B'no', he sometimes Shechts the T'reifah animal before he Shechts the one that is permitted (See Maharsha).

Answer #2: We learn something that was said on Sinai from something that was said on Sinai, whereas "Tavo'ach Tevach" was not said at Sinai.

Implied Question: And the reason that the Gemara did not give this answer there is ...

Answer: ... because it has other answers.

Question: At the beginning of the second Perek of Yevamos (Daf 17b) the Gemara states that 'We learn "Achim" from "Achim" rather than "Achim" from "Achicha", even though "Sh'neim-Asar Achim Anachnu" was not said at Sinai?

Answer: ... since we have already learned in one place that it is considered a Shechitah - such as by 'Oso ve'es B'no', since it is 'Shechitah' from 'Shechitah', Rebbi Meir holds that we should apply it everywhere ...

Conclusion: That is why by Tashlumei Arba'ah va'Chamnishah too, it is considered a Shechitah.

Refuted Question: And we cannot ask that, to the contrary, let us learn in connection with Tashlumei Arba'ah va'Chamishah 'Tevichah' from 'Tevichah' that 'Shechitah she'Einah Re'uyah Lo Sh'mah Shechitah', and apply it to 'Oso ve'es B'no'? ...

Refutation: ... because, since it is possible to learn either way, it is a S'vara to learn something that was said on Sinai from something that was said on Sinai.

Question: Why do we need to say that Rebbi Meir holds like Rebbi Shimon? Why can we not simply say that he follows his reasoning, since he holds of 'Diyna de'Garmi', and how much more so is one Chayav by a 'Davar ha'Gorem le'Mamon' ...

Source: ... seeing as the Gemara in ha'Gozel Kama (later, on Daf 98b) asks 'Let us say that Rebbi Shimon says 'ke'Mamon Dami' by something that is intrinsically Mamon, but by something that is not, such as 'If someone burns his friend's Sh'taros, will he also say that?' ...

Question (cont.): In that case, Rebbi Meir, who declares Chayav someone who burns his friend's Sh'taros ...

Source: ... as we learned there (later, Daf 98b & 99a) 'The one who holds of Diyna de'Garmi, obligates him to pay the full value of the Sh'tar ...

Question (concl.): ... will certainly declare him Chayav in a case of 'Davar ha'Gorem le'Mamon'.

Answer #1: It is also possible to apply reverse logic, and to say that Rebbi Meir only obligates him to pay by 'Diyna de'Garmi' ...

Example #1: ... where he burns his friend's Sh'taros and the like, where the Sh'tar is valuable to one and all to sell and to claim with ...

Example #2: And similarly where one bends one's vine over one's friend's produce, where the produce is of value to one and all ...

Answer #1 (cont.): ... whereas 'Davar ha'Gorem le'Mamon' - such as an ox that is Chayav S'kilah or Kodshim for which one is responsible, which is only of value to the one who can use it to exempt himself from payment, Rebbi Meir will not declare him Chayav.

Answer #1 (concl.): That is why the Gemara says that he holds like Rebbi Shimon.

Answer #2: Others explain that the Gemara establishes Rebbi Meir like Rebbi Shimon because the latter says explicitly that Davar ha'Gorem le'Mamon is Chayav Arba'ah va'Chamishah ...

Answer #2 (cont.): ... whereas from the fact that Rebbi Meir declares Chayav Diyna de'Garmi we cannot extrapolate that he will also be Mechayev Davar ha'Gorem le'Mamon Arba'ah va'Chamishah.

Answer #3: The Riva however explains that Rebbi Meir only declares Diyna de'Garmi Chayav mi'de'Rabanan ...

Source: ... as is evident at the end of 'ha'Koneis' 54a DH 'Chamor']).

Question: It is a little difficult to understand how the Gemara learns this from there.

Clarification: The She'eilah goes according to the opinion that holds 'Modeh bi'Kenas ve'Achar-kach Ba'u Eidim, Patur' (later, on Daf 75a).

Basis: Since it must be speaking where there are witnesses ...

Proof: ... because otherwise, he would not be Chayav for his admission under any circumstances.