1) TOSFOS DH GANAV VHIKDISH MESHALEM ARBAAH VCHAMISHAH

(Summary: Tosfos explains the Halachah and elaborates.)

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(a) Clarification: As the Gemara explains What difference does it make whether one sells it to a Hedyot or to Hekdesh?

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(b) Clarification (cont.): And it is referring to Kodshei Bedek haBayis

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1. Reason: By which one cannot apply the principle Before it was Reuvens ox, and now it is still Reuvens ox, as one can with respect to Kodshei Mizbeach ...

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2. Reason (cont.): Since a Korban is brought to atone fo the owner; it is Shechted in his name and the name of the owner remains attached to it.

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(c) Refuted Question: And one cannot ask why the Gemara earlier (on Daf 76a) does not ask why the Tana does not draw a distinction in that case itself (where he stole, declared Hekdesh and then Shechted) and say When does that speak (that he is Patur from Arbaah vaChamishah), by Kodshei Mizbeach, but by Kodshei Bedek haBayis

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1. Refutation: Because above, the Gemara w justified in asking a similar Kashya since it was all speaking about Kodshei Mizbeach, since by Kodshei Bedek haBayis the Gemara did not want to make this distinction, seeing as Stam Kedushah of a live ox and lamb is for the Mizbeach ...

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(d) Implied Question: Even though the Tana there, does differentiate when it says Tavach veAchar-kach Hikdish Meshalem Arbaah vaChamishah - an that Hekdesh refers to Kodshei Bedek haBayis ...

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1. Answer: That is not during the animals lifetime.

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(e) Explanation: According to th opinion that Yiush is not Koneh, it is easily understood (as to why he is Chayav Arbaah vaChamishah) since when he was Makdish the animal after Yiush, it is not his animal that he is being Makdish.

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1. Explanation (cont.): Whereas according to the opinion that Yiush is Koneh, the Chiyuv is confined to where he Shechts it before Yiush, but after Yiush (he is Patur, since) it is his own animal that he Shechts or sells.

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2. Explanation (cont.): Yet he is Chayav if he is Mekadesh it, even though before Yiush, the Hekdesh does not take effect ...

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3. Explanation (concl.): In the same way as he is Chayav if he sells it or gives it as a Matanah before Yiush, even though he achieves nothing, since the sale and the gift do not take effect.

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4. Reason: Because His declaration to Hekdesh is equivalent to handing it over to a Hedyot there where he does have the power to declare it Hekdesh (even though in this case he doesnt).

2) TOSFOS DH AVAL GANAV VTAVACH UMACHAR BIRESHUSO PATUR

(Summary: Tosfos clarifies the case.)

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(a) Clarification: It speaks where he did not pick it up ...

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(b) Reason: Because if he did, he would acquire it and he would be Chayav, as the Gemara will say later.

3) TOSFOS DH O SHEHOTZIO MIRESHUS BAALIM ETC.

(Summary: Tosfos cites a Machlokes as to where he took it, and rules like Abaye and Rava in Bava Basra, who learn like the more stringent opinion.)

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(a) Clarification, Opinion #1: At the beginning of Eilu Naaros (Kesuvos, Daf 31b, See Tosfos DH ubiReshus) Rav Acha and Ravina argue over this - One says that he took it out into a Simta (an alley), but to the Rshus haRabim, he would not acquire it ...

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1. Source: And he extrapolates this from the Seifa - Hotziu, similar to Higbiho, where it enters his domain.

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(b) Opinion #2: Whereas the second one says that he will acquire it even if he takes it into the Rshus haRabim ...

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1. Source: Which he extrapolates from the Reisha If it dies in the domain of the owner, he is Patur, but outside his domain, he is Chayav, even if he takes it into the Rshus haRabim.

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(c) Opinion #3: It would seem that that Sugya argues with Abaye and Rava who say in haMocher es haSefinah (Bava Basra, Daf 84b) that Meshichah acquires in a Simta, but not in the Rshus haRabim.

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(d) Refuted Explanation: It would not be correct to draw any distinction between the Kinyan of a Ganav, who only acquires it to become Chayav for Onsin, and regular cases of acquiring ...

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1. Refutation: Since the Gemara Darshens above (on Daf 65a) in connection with Ganav We only know (that) Yado (acquires); from where do we know ones roof, courtyard and enclosure? ...

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2. Refutation (cont.): Implying that a Ganav only acquires in a location that is subject to a regular Kinyan.

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3. Precedent: As the Gemara Darshens (in Gitin, Daf 77a) veNasan beYadah (similar to the above Drashah on Daf 65a).

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(e) Halachah: The Halachah, it seems.is like Abaye and Rava ...

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1. Proof: Since it cites their opinion in haMocer es haSefinah (Ibid.), implying that it is the main one.

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2. Conclusion: Consequently, the principle Wherever Rav Acha and Ravina argue, the Halachah is like Ravina - leKula, is not applicable here.

4) TOSFOS DH NASNO LIBECHOROS BNO O LBAAL-CHOV

(Summary: Tosfos rejects Rashis first explanation and discusses the second one.)

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(a) Explanation #1: The Lashon that Rashi cites ascribing this to the owner ...

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1. Refutation #1: Is far from correct - firstly, because we will then need to explain that the animal died due to carelessnes and not naturally ...

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2. Refutation #2: Furthermore, the Lashon of Chiyuv and Ptur are not applicable to Bchorus Bno or to his Baal Chov (only Hifsid and Lo Hifsid)?

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3. Refutation #3:Moreover, the Tosefta (Perek 7) states Higbiho veNasno liBechorus Bno, implying that it refers to the Ganav, because if it referred to the owner, to whom it belongs, why would he need Hagbahah?

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4. Refutation #4: And finally, the proof that the Gemara brings from the Mishnah regarding the Sheeilah whether they instituted Meshichah by Shomrim or not is incomprehensible according to that Lashon, according to the explanation of the Ri in the Gemara (See following Dibur).

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(b) Explanation #2: The correct Lashon is therefore the one that ascribes it to the Ganav giving it for Bchorus Bno ... , which renders the Ganav Chayav with the Meshichah of any of these people.

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(c) Question: Why is he Chayav with their Meshichah? Why do we not apply the principle Ein Shaliach liDevar Aveirah?

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(d) Answer: It speaks where they did not know that it came to his hand beIsur, but they actually thought that it belonged to him.

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1. Answer (cont.): In which case, both according to the Lashon in the first Perek of Bava Metzia (Daf 10b, See Tosfos DH I) that gives the reason of Ein Shaliach liDevar Aveirah as being since the Shaliach is himself a bar Chiyuva, Divrei haRav veDivrei haTalmid, Divrei Mi Shomin?

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2. Answer (cont.): And according to the Lashon that gives it as He has the choice to perform it or to abstain ...

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(e) Answer (concl.): It does not apply here, since whereas there, the Meshaleach does not know whether the Shaliach will transgress, here he knows that he will take it, thinking as he does, that the Meshaleach is the owner.

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(f) Question: Above (on Daf 71a) in connection with Ganav veTavach beShabbos, where the Gemara establishes the case where he Shechts it via someone else, and the Gemara asks where we find that Reuven sins and Shimon is Chayav ...

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1. Question (cont.): It could have answered that there too, it speaks he believed the Meshaleach to be the owner ...

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(g) Answer: Only it gives a good answer anyway, and that answer is Halachically correct.

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(h) Question: The Kashya remains however, how the Gemara can say Just as the Mechirah is performed via somebody elsse, so too, the Tevichah ...

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1. Question (cont.): Perhaps that speaks specifically where the Shaliach thinks that the Meshaleach is the owner, seeing as there is nothing extra in the Pasuk to teach us otherwise? (See Tosfos Kidushuin, Daf 42b DH Amai).

5) TOSFOS DH TAKINU MESHICHAH BSHOMRIN O LO

(Summary: Tosfos discusses the ramifications of the Sheeilah and cites the three opinions regarding its resolution.)

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(a) Refuted Explanation: The Gemara is not asking as to whether each Shomer becomes Chayav from the time of Meshichah - a Shomer Chinam for negligence, a Shomer Sachar for Geneivah vaAveidah and a Shoel for Onsin ...

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1. Refutation: Since it is obvious that they are, because otherwise, from when will they be Chayav?

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(b) Proof #1: Because the Mishnah in haShoel (Bava Metzia, Daf 98b & 99a) states that if the Shoel tells the owner to send it, and he sends it, he is liable, and the Gemara there (94b) says Parah biMeshichah.

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1. Proof #2: And in the Sugya of Shoel Kurdum (Ibid. Daf 99b) the Gemara says If it refers to Onsin, why is it any different than a cow, which renders him Chayav from the time that he borrows it?

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(c) Authentic Explanation: The Ri therefore explains that the Sheeilah concerns the owner is permitted to retract even after the Shoel and the Socher have performed Meshichah, before they have begun to work with it, or not.

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1. Authentic Explanation (cont.): Since there is an opinion in connection with someone who borrows an ax, that he only acquires it after he chops with it, and that until he has, the owner can retract, and the same applies to a cow before he has worked with it.

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(d) Resolution: The Gemara resolves the Sheeilah from the Mishnah Nasnu liBechorus Bno, which states Higbiho O sheHotzio meReshus Baalim uMeis, Chayav. Does this not refer to the Shomer?

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1. Resolution (cont.): Because the fact that the Ganav becomes Chayav with the Meshichash of the Shomer proves that it is a proper Meshichah, in that the owner can no longer retract ...

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(e) Proof: Because if he could still retract, the Shomer would not be Chayav via his Meshichah.

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(f) Refutation: No, answers the Gemara, it refers to the Ganav himself, who was taking the animal from thr house of the Shomer, and the text reads A Ganav who steals it from the house of the Shomrim ...

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1. Explanation: And it speaks where he did not give it fully for the Bechorus of his son or to his Baal Chov, because if he did, the Kohen or the creditor would be the owner and not a Shomer ...

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2. Explanation (cont.): But where he made it an Apotiki (giving them the right to claim), that in the event that he fails to pay by such and such a date, it will become theirs.

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(g) Rav Huna: This is how Rav Huna, who says in Perek haShoel that, as long as the Shoel has not chopped with the ax, the owner can retract, would refute the proof and the Kashya that the Gemara asks later What difference does it make whether he stole from the Rshua of the owner or of the Shomer? does not bother him.

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1. Rav Huna (cont.): In fact, in haIsh Mekadesh (Kidushin, Daf 47b & 48a) there is a Tana that supports him, who says that even in the case of a Halvaah (a loan of money), the lender can retract as long as the borrower has not spent the money, how much more so in the case of Sheeilah (a borrower (a loan of an object or an animal).

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(h) Three Opinions: Opinion #1: And there are three opinions concerning this matter: Rav Huna holds that they did not institute Meshichah by a Shomer.

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1. Opinion #2: Rebbi Elazar holds they did, as the Gemara says there (in Bava Metzia) And he argues with Rebbi Elazar.

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2. Opinion #2 (cont.): According to Elazar too, midOraysa he can retract, only the Rabanan instituted that he cannot do so after the Meshichah.

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(i) Opinion #3: Furthermore the Gemara says there that He argues with Rebbi Ami, who says that Someone who lends his friend an ax of Hekdesh, he is Moel, and his friend is permitted to chop with it Lechatchilah ...

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1. Opinion #3 (cont.): Implying that, according to him. This implies that Meshichah acquires midOraysa ...

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2. Reason: Because if it only acquired mideRabanan, and he is Moel only because he cannot retract mideRabanan, as we find in the case where he gave it to the bath-attendant in Perek haZahav (Bava Metzia, Daf 48a & 48b), then it would be a case of a Chumra that leads to a Kula - seeing as his friend is permitted to use it Lechathilah.

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6) TOSFOS DH SHEHITMIN BCHORSHIN

(Summary: Tosfos clarifies the statement and comments on it.)

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(a) Clarification: This means that he hid himself ...

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1. Clarification: And the Gemara thinks that he went stealthily and Shechted the animal there where he was (i.e. that is where he found the animal); hence it asks But he did not make a Meshichah?

7) TOSFOS DH KEIVAN DRAUHU GAZLAN HU

(Summary: Tosfos clarifies the statement.)

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(a) Clarification: This means that he did it in an open place, and it is not comparable to someone who steals in a house or in a Chatzer.

8) TOSFOS DH VREBI YOCHANAN HA DEMTAMRI, ETC.

(Summary: Tosfos establishes Rebbi Yochanan.)

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(a) Clarification: This reason is needed according to the opinion, earlier on Daf 57a; See Tosfos there, DH kaSavar).

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1. Reason:

9) TOSFOS DH MIPNEI MAH HICHMIRAH TORAH, ETC.

(Summary: Tosfos clarifies the case.)

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(a) Clarification: This reason is totally inapplicable by Toen Taanas Ganav and Taanas Gazlan.

10) TOSFOS DH EIN MEGADLIN BEHEIMAH DAKAH

(Summary: Tosfos clarifies the Halachah and elaborates.)

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(a) Clarification: This speaks evn in the house, since, to pasture is forbidden even with regard to a Beheimah Gasah ...

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1. Source: As the Gemara says in Zeh Borer (Sanhedrin, Daf 25a) The shepherd which they said (is disqualified from testifying) refers both to one who pastures a Beheimah Gasah and to one who pastures a Beheimah Dakah.

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(b) Question: When Rava concludes there that it refers to rhose who rear (in the house) - That those who rear a Beheimah Dakah in Eretz Yisrael are Pasul, in Chutz laAretz, are Kasher; whereas those who rear a Beheimah Gasah, even in Eretz Yisrael, are Kasher ...

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1. Question (cont.): What is he coming to teach us, seeing as that in Chutz laAretz, he is Kasher, is stated in the Mishnah, which permits it even in Syria, how much more so in Chutz laAretz?

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(c) Answer: Granted, it is not needed, and it is only because it said that in Eretz Yisrael they are Pasul, that it concludes that in Chutz laAretz, they are Kasher.

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1. Answer (cont): And what it does need to tell us is that those who rear a Beheimah Gasah, even in Eretz Yisrael are Kasher ...

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2. Reason: Since as far as the Mishnah is concerned, we would have thought that even a Beheimah Gasah is forbidden, an it only mentioned Beheimah Dakah to teach us that even it is permitted in Syria.

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(d) Clarification: And it would seem that the Gemara in the first Perek of Bava Metzia (Daf 5b) which declares Kasher someone who pastures animals belonging to others, because of the principle A person does not sin with somebody elses property - is confined to a Beheimah Gasah which one is permitted to rear ...

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1. Clarification: (cont.): But regarding a Beheimah Dakah in Eretz Yisrael or in Bavel according to Rav, there is no distinction between someone who rears his own animal or somebody elses ...

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(e) Proof #1: Seeing as it is forbidden even when it is tied to ones bedpost (as we will see later in the Sugya).

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1. Refuted Opinion: Not like the commentary that explains later that according to Rav Huna, one is permitted to give it to ones wife (to look after), in the same way as one is permitted to give it to a shepherd - which explains why Chovah looked after the animal (on behalf of Rav Huna, her husband).

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2. Proof #2: Because since Bavel is like Eretz Yisrael with regard to a Beheimah Dakah, one cannot differentiate between looking after it oneself or doing so via others.

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(f) Implied Question: And as for those goats that ate peeled barley in Neherdaa, in Chezkas haBatim (Bava Basra, Daf 36a), about which the Gemara says Goats are different, since they are handed over to a shepherd, even though Neherdaa is in Bavel ...

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1. Answer: Perhaps they were not so careful about Ravs opinion, that Bavel is considered like Eretz Yisrael, seeing as also Rav Huna did not adopt this stringency.

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(g) Support #1: And so it is implied - that the Isur applies even to doing it via others, since that Chasid (mentioned later on the following Amud) did not hand over the animal to a shepherd.

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1. Support #2: Similarly, the Baalei-Batim of the Galil (Ibid.) did presumably not pasture their sheep themselves (yet it was forbidden).

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2. Support #3: And the shepherd who did Teshuvah (Ibid.) too, is surely speaking where he could find others to pasture for him, yet the Gemara obligates him to sell them bit by bit.

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