Question: How does 'Gezeilah Kayemes' apply to 'Ro'im'?

Answer: It is speaking about someone who is shepherding an animal belonging to somebody else and who stole the wool or the milk, and not because he is suspect on allowing the sheep to graze in other people's fields ...

Reason: ... because, since the animal does not belong to him, 'A person does not sin with something that is not his', as the Gemara states in the first Perek of Bava Metzi'a (Daf 5a).

Clarification: And all the Sh'vach from the time that he stole it until it gives birth belongs to the Gazlan.

Clarification: Even though the Tana mentions a number, it nevertheless 'lists and omits' - the case mentioned in ha'Nizakin' (Gitin, Daf 48b & 50b) 'Ein Motzi'in l'Mazon ha'Ishah ve'ha'Banos mi'Nechasim Meshubadim Mipnei Tikun ha'Olam' ...

Clarification (cont.): And there too, it omits 'ha'Mekabel alav Lazun ben Ishto u'Bas Ishto' and 'Get Chov she'Ein bo Achrayus'.

Question: From here there is a Kashya on Shmuel who says in the first Perek of Bava Metzi'a (Daf 13a), citing Rebbi Meir that one may claim neither from Nechasim Meshubadim nor from B'nei Chorin with a Sh'tar-Chov that does not contain Achrayus Nechasim', whereas here it implies that he can claim from B'nei Chorin?

Refutation of Question: In any event however, Shmuel is proved wrong there from another Beraisa.

Answer: It is possible to refute the Kashya in that Shmuel would have answered that 'Ein bo Achrayus' means that it is specifically stated that he does not accept responsibility.

Implied Question: ... and the reason that it establishes the Beraisa like Rebbi Meir is ...

Answer: ... because it seems to go like him.

Question: Without this reason, the Gemara could have asked that, since Rebbi Meir is the one who penalizes him, we see that 'be'Shogeg Kaneis' ...

Question (cont.): ... in which case it would not be necessary to cite the Beraisa, only the Mishnah in 'ha'Nizakin' (Gitin Daf 48b & 49a) 'Ein Motzi'in la'Achilas Peiros ... '?

Answer: From there, it would not have been possible to prove that it goes like Rebbi Meir ...

Reason: ... seeing as Rebbi Yehudah too, may well penalize him - according to Rav Z'vid who says that, according to Rebbi Yehudah, 'the improvement that is on the Gezeilah goes to the owner', even if the Gazlan changed it...

Reason (cont.): ... where for example, he planted it or where the animal became pregnant whilst under his jurisdiction ...

Reason (concl.): And the case where the purchaser improved it is also considered 'Sh'vach that is on the Gezeilah' and there too, Rebbi Yehudah will penalize him.

Precedent: ... like the case that is cited later (on Amud Beis) according to Rav Z'vid.

Implied Question: ... in spite of the fact that, even if we establish it like Rebbi Yehudah, one can still prove that, if Rebbi Yehudah, who does not penalize him so much, does penalize him in the case of 'Sh'vach which is on the land' - Rebbi Meir who does penalize him, how much more so!

Answer: Nevertheless, the Gemara prefers to cite the proof from Rebbi Meir himself. Ri.

Implied Question: The Gemara could have answered that it is speaking about where the Sh'vach is more than the Yetzi'ah ...

Implied Question: ... since there he would not penalize him, because, since land cannot be stolen, he improved it in the domain of the owner, in which case it is not comparable to Metalt'lin ...

Elaboration of Question: In fact, even according to Shmuel, who says in the first Perek of Bava Metzi'a (Daf 14b & 15a) that somone who purchases from a Gazlan does not take the Sh'vach ...

Elaboration of Question (cont.): ... one can establish it where he made a Kinyan, as the Gemara says there (Daf 15a) ...

Answer: Only the Gemara answers well anyway.

Refuted Answer: One cannot however answer that S'tam Sh'vach implies everything - irrespective of whether it is equal to the expenses or whether it exceeds them (See Hagahos ha'G'ra) ...

Refutation #1: ... because there, in the Machlokes between Rav and Shmuel, in connection with someone who sells his friend's field and it is subsequently found to be not his, they argue over whether he takes the Sh'vach or not ...

Refutation #1 (cont.): ... and that must be speaking where the Sh'vach exceeds the expenses, because otherwise, why should he not claim the expenses from the owner ...

Source: ... Why is it any worse than 'Reuven who goes down to Shimon's field without permission ... ' (Bava Metzi'a, 101a)?

Refutation #2: Moreover, the Gemara answers better than that in Perek Mi she'Meis (Bava Basra, Daf 157b) 'What does "Sh'vach" mean? Half the Sh'vach'.

Clarification: The Makshan however, certainly thought that he claims all the Sh'vach, even what corresponds to the expenses.

Explanation #1: And according to his S'vara, when the Beraisa in the first Perek of Bava Metzi'a (Daf 15a) states that if the Sh'vach exceeds the expenses, he takes the Sh'vach from the owner of the field and the expenses from the creditor - and we establish it by a Gozel and Nigzal, that does not go like Rebbi Meir ...

Reason: ... according to whom he cannot claim even the expenses from the owner, because he penalizes him.

Explanation #2: Alternatively, one can draw a distinction in that it speaks there where he did not know that it was stolen, and by such a case of Shogeg, he (Rebbi Meir) did not penalize him.

Question: On what grounds does he claim the Sh'vach, even from B'nei Chorin ...

Question (cont.): ... when in the first Perek of Bava Metzi'a (Daf 15b), they argue over a field that one purchases, knowing that it does not belong to the seller, whether the money is a gift or a Pikadon, but both agree that he cannot claim the Sh'vach?

Answer: That speaks purchased it without Achrayus, whereas here it speaks that he purchased it with Achrayus, in which neither a gift nor a Pikadon is applicable.

Clarification: But Sh'vach that is not actually part of the Gezeilah belongs to the Gazlan ...

Reason: ... either because it is a proper Shinuy or on account of 'Takanas ha'Shavim'.

Chidush: And if one steals wood or even planks and manufactures Keilim, which is a retractable Shinuy, it may well be that Rebbi Yehudah will agree that one pays like the time of the theft ...

Implied Question: ... even though it is a Shinuy that is part of the Gezeilah ...

Answer (Explanation #1): ... because, since he took the trouble to effect the Shinuy, 'Takanas ha'Shavim' applies ...

Implied Question: ... despite the fact that in the case where one gave his shirt to the dyer to dye red and he dyed it black (later, on Daf 100b), Rebbi Yehudah rules that if the Sh'vach exceeds the expenses, he pays him the expences ... '?

Answer: There, since he did not perform an act of Gezeilah, Takanas ha'Shavim is not applicable.

Answer (Extention): And this is how we will also have to explain according to Rav Papa, who says that, according to Rebbi Yehudah Sh'vach that is part of the Gezeilah belongs to the Gazlan - that it is on account of 'Takanas ha'Shavim' ...

Answer (Extention [cont.]): Seing as in the case where one gives one's shirt to be dyed red ... he holds that Shinuy is not Koneh, and there 'Takanas ha'Shavim' is not applicable, as Tosfos just explained.

Observation: It now transpires that Rebbi Yehudah and Rebbi Meir hold opposite S'varos, since in the case of dyeing, Rebbi Meir holds 'Shinuy Koneh', and by Gazlan, 'Eino Koneh', due to the K'nas; whereas, according to Rebbi Yehudah, by the dyes Shinuy is not Koneh, whereas by a Gazlan, he is Koneh, on account of Takanas ha'Shavim (See Hagahos ha'G'ra).

Answer (Explanation #2): Rabeinu Tam however, explains that according to Rebbi Yehudah, we do not need to come on to Takanas ha'Shavim, since his reason is because 'Shinuy Koneh'.

Rav Z'vid: According to Rav Z'vid, Sh'vach that is not part of the Gezeilah that is irreversible belongs to the Gazlan, whereas Sh'vach that is part of the Gezeilah, which is a reversible Shinuy is not Koneh and belongs to the owner.

Rav Papa: Rav Papa however, maintains that Sh'vach that is part of the Gezeilah, which is a reversible Shinuy, is Koneh and belongs to the Gazlan.

Implied Question: And the reason that he is not Koneh in the case of dyeing is ...

Answer: ... because he did not intend to acquire it.

Proof #1: This seems correct, because then we will not need to establish Rebbi Yehudah like Beis Shamai (who holds that Shinuy is not Koneh).

Proof #2: And it also explains why the Gemara earlier (on Daf 93b) does not reckon Rebbi Yehudah among those who hold 'Shinuy is not Koneh', as it does with Rebbi Shimon.

Question: Really the author is Rebbi Shimon according to Rav Papa, and we will explain the Beraisa as follows: 'Yaldah, yes; Lo Yaldah, no - only he will receive a half, a third or a quarter'?

Answer: Rebbi Shimon holds that even by 'Yaldah' the Gazlan receives a half, a third or a quarter ...

Answer (cont.): Seeing as he is referring to Rebbi Meir, who is speaking by Yaldah.

Implied Question: He is not asking according to Rebbi Yehudah ...

Answer: ... because, seeing as, due to Takanas ha'Shavim, we place the entire amount in the hand of the Gazlan, it is obvious that he takes the actual body of the animal.

Clarification: Even though the Tana says 'three', he nevertheless omits 'Gazlan' ...

Clarification (cont.): ... as well as 'Aris', in that, should he come to remove him from his Arisus, he removes him from the Sh'vach with money.

Explanation #1: Rashi explains here 'Produce that is fully grown', and 'she'Ein Magi'a li'Kesafim' - 'that still needs the ground'.

Introduction to Question #1: In that case, a creditor takes even produce that no longer needs the ground, as the Gemara states when it cites daily occurences where Shmuel claimed even 'Sh'vach ha'Magi'a li'Kesafim'?

Question: Whereas in Perek Na'arah she'Nispatsah (Kesuvos, Daf 50b) it implies that a creditor may only claim produce that still needs the ground - in the case where 'He said "Give her from the dates that are lying on the mat" ... 'If he would be a creditor, would he take the dates from the mat?' ...

Question #2: So he said to him "I mean dates that are fit to go on the mat" ... 'When all's said and done "Whatever stands to be shorn is considered as if it has already been shorn"? ... 'I mean that they still need the tree'.

Explanation #2: The Gemara calls 'Sh'vach ha'Magi's li'Kesafim' whatever stands to be picked and carried on the shoulders, even for example, young figs or half-ripe grapes that still need the ground.

Explanation #3: Rabeinu Tam interprets 'Sh'vach ha'Magi's li'Kesafim' as something (Sh'vach) that comes as a result of hard work.

Conclusion: It is explained in Chezkas ha'Batim (Bava Basra, Daf 42b DH 'Sh'vach')