Introduction to Question: This Beraisa is also cited in Perek Eilu Metzi'os (Bava Metzi'a, Daf 30b) in connection with the Sugya of 'Zakein ve'Eino l'fi Kevodo' - 'And Rebbi Yishmael b'Rebbi Yossi did 'Lif'nim mi'Shuras ha'Din', as the Beraisa explains ... '.

Question: It does cite it however, at the end of Perek ha'Umnin (Ibid. 83a), in the case of Rabah bar Rav Huna, who 'took the coats of those porters'; only there it cites the Pasuk of "Lema'an Teilech be'Derech Tovim"?

Answer #1: The Ri from Orleans explains that 'Lifenim mi'Shuras ha'Din' only applies where others are Chayav and the person under discussion is Patur, as in the case of Rebbi Chiya here, and of Rebbi Yossi in 'Eilu Metzi'os' ...

Answer #1 (cont.): ... but not in the case of Rabah bar Rav Huna, where there is no difference between him and anybody else.

Refutation: This is not correct however, because in Perek Eilu Metzi'os Ibid, Daf 24b), regarding the case where Shmuel's father returned the donkeys that he found after twelve months to their owner, the Gemara states that he did 'Lifenim mi'Shuras ha'Din' ...

Refutation (cont.): ... even though anybody else would also have been Patur.

Answer #2: Lifnim mi'Shuras ha'Din does not apply in the case of those porters, since, due to their negligence, they caused the owner such a substantial loss by breaking a barrel of wine.

Clarification: He still needed to learn more ...

Reason: ... otherwise he would not have been Chayav ...

Proof: ... as is implied in the case of Rebbi Chiya, who did 'Lif'nim mi'Shuras ha'Din'.

Explanation #1: And although he declared 'See, I am relying on you!', he would have been Chayav even if he hadn't, like Rebbi Chiya, who would have been Chayav,if not for the fact that he did not need to learn more.

Explanation #2: The Rif however, writes that he is not Chayav unless he actually says it.

Implied Question: Even though the Gemara says in 'ha'Nizakin' (Gitin, Daf 52b) 'ha'Metamei, ve'ha'Medame ve'ha'Menasech be'Shogeg, Patur' ...

Answer: ... here he will be Chayav even though he did it be'Shogeg ...

Reason: ... for the same reason that the Gemara there obligates him to pay be'Meizid, according to the opinion that holds 'Hezek she'Eino Nikar Lo Sh'meih Hezek' - 'In order that people should not feel free to be Metamei their friends' Taharos'.

Reason (cont.): Likewise here, it is in order that the Dayanim should be more meticulous in Din.

Answer (cont.): And even according to the opinion that holds 'Sh'meih Hezek', in which case Shogeg is Patur, to encourage him to inform his friend, here he will be Chayav ...

Reason: ... since that is not a concern here - because, even where the Dayan mixed it with his own fruit, one need not worry that perhaps he will not then inform the litigant that it is Tamei ...

Reason (cont.): ... because, seeing as he this Dayan is a Chacham and a Posek, he is bound to inform him.

Clarification: It is impossible to establish 'Tihar es ha'Tamei' other than by saying that he mixed it with his own fruit, as the Gemara explains in the Maskana in Perek Echad Dinei Mamonos (Sanhedrin, Daf 33b, See Tosfos DH 'she'Irvan') and in Perek Ad Kamah (Bechoroes, Daf 28b & 29a) ...

Reason: ... because if it is still available, neither 'What he did is done' nor 'He must pay from his own pocket' is applicable.

Question: And the fact that it says it here, only after establishing it where 'he took it and placed it with his hands' ...

Refuted Answer: ... is not because initially, it is not speaking in that case ...

Answer: ...but because initially, it is speaking where, not the Chacham mixed it but the owner; whereas in the Maskana, it is the Chacham himself who mixed it.

Clarification: In Bechoros, where it comes to resolve 'Yeshalem mi'Beiso' in the case of Tiher es ha'Tamei, which he mixed it with his own fruit, it speaks where he mixed it with a few fruits ...

Clarification (cont.): ... whereas in Sanhedrin, where it comes to resolve 'Mah she'Asah, Asuy', it speaks where he mixed it with a lot of fruit, so that the Tamei fruit became Bateil be'Rov; because it is impossible to establish them both in the same way ...

Reason: ... since it is obvious that in the case of 'Mah she'Asuy Asuy' - where it it is Tahor, 'Yeshalem mi'Beiso' is not applicable.

Question: According to the Gemara's attempt to establish the Tana like Rebbi Meir, how can the Tamei fruit become Bateil be'Rov, seeing as Rebbi Meir in 'ha'Nizakin' (Gitin, Daf 54b) in the case of 'nuts from Perech' and pomegranates from Ba'adan', holds that if they fall and break , even be'Shogeg, they do not become Bateil.

Answer #1: Rebbi Meir did not penalize a Shogeg such as in our case which occurs via a Chacham.

Answer #2: Alternatively, it is specifically there, where the nuts beak after they have fallen, that Rebbi Meir maintains they are not Bateil, since they became Asur when the mixing occurred, but had they broken before they became mixed, he would concede that they are permitted.

Answer #3: Alternatively, it is with regard to 'Da'in Diyna de'Garmi' exclusively that the Beraisa goes according to Rebbi Meir.

Question #1: How can the Gemara prove from here that it is Rebbi Meir who holds Diyna de'Garmi'? ...

Question #2: And why does it establish the case where he took in his hand and placed it'? Even if he hadn't, he ought to be Chayav even according to the Rabanan who do not hold of Diyna de'Garmi, seeing as the Din comes into effect with mere words, as is evident in Perek Echad Diynei Mamonos (Sanhedrin, Daf 33b, See Tosfos there DH 'Hashta'), where it states ...

Source: ... 'It is fine if we say "Ta'ah bi'Devar Mishnah, Ein Chozer", in which case we see th 'Kam Diyna', which is why Rebbi Tarfon was afraid ...

Source (cont.): ... but if we would say "Chozer", he could say to him "Seeing as, if the cow had been available, it would have been returned to the owner, now too, your Din is not valid, and you did nothing!" ...

Source (concl.): And the Gemara there must go according to the Rabanan, since according to Rebbi Meir, who holds of Diyna de'Garmi, he would have been Chayav, even though had it been available, he would have returned it ...

Precedent: ... just like the Din of 'Mar'eh Dinar le'Shulchani' ('Someone who showed a coin to a banker'), who is Chayav, even though, had it been available, he would have returned it?

Answer: In fact, that Sugya goes like Rebbi Meir, and it is not comparable to 'Mar'eh Dinar le'Shulchani' ...

Answer: ... because, once he showed it to one banker, he is not expected to show it to another one, whereas in the case of the cow, even though he showed it to a Chacham, he should not have rushed to feed it to his dogs or to mix it with his fruit, before showing it to another Chacham.

Question #1: There is a Kashya however, on 'Tihar es es ha'Tamei': Why is the Chacham Chayav, even according to Rebbi Meir, if the owner mixed the fruit with his own stock? Why can he not claim that, since, had he not mixed it, it would have been returned, now too, he did not do anything?

Introduction to Question #2: Similarly, in the Reisha of 'Dan es ha'Din', in Perek Ad Kamah (Eruvin, Daf 28a), where the Mishnah rules that if someone who is not an expert examined a B'chor, which was then Shechted upon his instructions, it must be buried, and he is obligated to pay from his own pocket ...

Question #2: Why is that? Why do we not say that, since, had it not been Shechted it would have been permitted, now too, he did not do anything?

Question #3: Moreover, the current Sugya, as well as the Sugya in Bechoros cannot go like Rav Chisda, since it implies that, according to Rebbi Meir, the Gemara is happy to establish it even where he did not take it with his hands and place it, only like Rav Sheishes ...

Question #3 (cont.): In that case, seeing as 'Mah she'Asah Asuy' - seeing as it is speaking by Shikul ha'Da'as (where the Chacham's ruling is based on logic), as Rav Sheishes explains at the beginning of Sanhedrin (Daf 6a) ...

Question #3 (concl.): ... why is the Dayan Chayav for making contact with a Sheretz, bearing in mind that in any case 'Mah she'Asah Asuy'?

Question #4: Furthermore, there where 'Kam Diyna', why is he not Chayav even according to the Rabanan who do not hold of Diyna de'Garmi? How does it differ from 'Kohanim who made Pigul in the Beis ha'Mikdash', who, be'Meizid are Chayav according to both Rebbi Meir and the Rabanan ...

Question #4 (cont.): ... in spite of the fact that it is with mere speech that it becomes Pasul, and it is not considered Diyna de'Garmi?

Answer: It therefore seems that wherever we say 'Kam Diyna' even speech alone is consdidered an act and is not Garmi, in which case he is Chayav even according to the Rabanan ...

Answer (cont.): ... whereas in a case where had it been available, it would be returned, such as 'Mar'eh Dinar le'Shulchani' and 'where one erred in a D'var Mishnah', one is Chayav according to Rebi Meir but Patur according to the Rabanan ...

Answer (cont.): ... since the fact that one subsequently fed the animal to the dogs on the P'sak of the Chacham or where one mixed it with one's other fruit definitely falls under the category of 'Garmi'; and the Sugya in Sanhedrin goes like the Rabanan.

Answer (cont.): ... And when the Gemara here attempts to prove that it is Rebbi Meir who holds Diyna de'Garmi, it extrapolates it from 'Tiher es ha'Tamei' where the Chacham is Chayav by virtue of the owner having mixed them with his fruit ...

Answer (cont.): .. and from 'Chiyev es ha'Zakai', where he is Chayav because the innocent man paid up afterwards ...

Answer (cont.): ... but 'Timei es ha'Tahor' and 'Zikah es ha'Chayav' where by virtue of the Chacham's speech 'Mah she'Asah Asuy', he is Chayav to pay even according to the Rabanan who do not hold of Diyna de'Garmi.

Answer (concl.): Similarly, in Perek Ad Kamah (Bechoros, Daf 28b) where the Gemara suggests that the S'tam Mishnah there goes like Rebbi Meir, it is based on 'Tiher es ha'Tamei' and 'Chiyev es ha'Zakai', and not on 'Timei es ha'Tahor' and 'Zikah es ha'Chayav'.

Implied Question: And when the Gemara explains there to establish the Mishnah like the Rabanan 'Timei es ha'Tahor' - that he touched a Sheretz with it; and 'Zikah es ha'Chayav' - that he had a security, which he took away from him' ...

Answer #1: ... it says that on account of the other (two) cases.

Answer #2: Alternatively, the Sugya there goes according to Rav Chisda, and it presents the truth.

Implied Question: ... and the Reisha where a non-expert examined the B'chor, and it was then Shechted following his instructions ...

Answer: ... is La'av Davka - because in reality, it is he himself who Shechted it.

Question: And one needs to look into the matter as to why, according to the Rabanan - Why 'Reuven who burns Shimon's Sh'taros' (above on Daf 98a) is any different than 'Timei es ha'Tahor' and 'Kohanim she'Piglu', which are not considered 'Diyna de'Garmi'? ...

Question (cont.): ... What difference does it make whether one causes someone a loss by burning his Sh'taros or through one's speech?

Answer #1: We will have to say that speech is considered an act, in which case one is damaging the actual object with one's hands, whereas burning a Sh'tar, does not damage the money; it is only paper that he burns, and that is only causing (damage).

Answer #2: Furthermore, the Sugya here and in Bechoros does not go like Rav Sheishes only like Rav Chisda ...

Answer #2 (cont.): ... only the Gemara initially thinks that 'Nasa ve'Nasan be'Yad' refers to the litigants; and later refutes it, establishing it by the Dayan himself.

Question: What did the Gemara initially think?

Answer: Because the wool does not change the moment one adds the dyes, since it can take two or three days for them to take effect, in which case (the Gemara thought that) it is no more than G'rama ...

Precedent: It is similar to 'Someone who places his vine over his friend's produce' (which the Gemara will cite shortly), where the damage occurs after a while ...

Conclusion: In both cases, the Gemara answers that he did the damage with his hands ...

Conclusion (cont.): Nevertheless, 'placing one's vine' is not as much damaging with the hands as 'dyes to a dyer', which explains why it subsequently sees fit to cite it.

Clarification: Rabeinu Tam points out that this is not a Mishnah anywhere in Shas, but a Beraisa.

Implied Question: And the reason that the Gemara extrapolates that it goes according to Rebbi Meir is ...

Answer: ... due to the Mishnah 'ha'Mesachech Gafno' (cited earlier), where Rebbi Yossi and Rebbi Shimon argue in the Seifa, maintaining that a person cannot render Asur something that does not belong to him.

Answer (cont.): That being the case, the Beraisa of 'Mechitzas ha'Kerem' goes not like Rebbi Yossi and Rebbi Shimon, but like their Tana Kama - Rebbi Meir, since a S'tam Mishnah is Rebbi Meir.

Question: Who is the Tana who argues with Rebbi Meir regarding the Din of Garmi, seeing as Rebbi Yossi and Rebbi Shimon only argue because they hold 'Ein Adam Oser Davar she'Eino she'Lo'?

Refuted Answer: Nor can it be the Rabanan who argue with Rebbi Shimon by 'Davar ha'Gorem le'Mamon' ...

Refutation: ... since there are differennces (between Rebbi Shimon and Rebbi Meir), as Tosfos explained in 'Merubeh' (above, on Daf 71, DH 've'Savar').

Answer: The Tana who argues with Rebbi Meir is the Tana in Perek ha'Meni'ach (above, on Daf 33b) who states 'Shachto (a Shor Tam) ve'Nasno be'Matanah, Mah she'Asah, Asuy' ...

Answer (cont.): This implies that there is more reason to exempt someone who burns his friend's Sh'taros than someone who Shechts his animals, whereas the one who holds of 'Dina de'Garmi' said earlier (on Daf 98b) that 'He is entitled to claim the Sh'tar in full'.

Clarification: To the owner of the vineyard, who is the Mazik, since the four Amos which Chazal said to distance (the vegetables) is for Avodas ha'Kerem ...

Source: ... as we learned in 'Lo Yachpor' (Bava Basra, Daf 26a & 26b) 'A person may not plant a tree in the proximity of his friend's field, unless he keeps a distance of four Amos - regarding both vines and other trees' ...

Source (cont.): And the Gemara explains that the four Amos that they mentioned is on account of 'Avodas ha'Kerem'.

Clarification (extension): And Rav Ashi explains there that, even Rebbi Yossi, who says there (on Daf 25b) that the onus lies on the Nizak to distance himself , concedes that 'When "his (the Mazik's) arrows" are involved, the onus lies on him' ...

Clarification (extension [cont.]): ... and in our case, it is 'the arrows' of the owner of the vineyard that are involved, since we (obligate him because we) suspect that he will bring his plow into his friend's field; that is why he needs to build a wall or to distance himself four Amos.

Implied Question: The reason that the Tana says that we tell him to repair the wall, and not simply that he is Chayav to repair it ...

Answer: ... the Ri explains is, because he needs to be warned, and unless they warn him to repair the wall, he is not liable for what happens afterwards.

Answer (extension): And that also explains why it says twice that the wall is breached, since he must be warned the second time too; otherwise he is not liable ...

Reason: ... because he does not believe that he is Chayav to repair the wall every time it is breached.

Opinion #1: If it is subsequntly breached a third time, the Ri has a Safek as to whether one needs to warn him gain or whether twice will suffice ...

Opinion #2: Rabeinu Tam however, explains that the Tana mentions it twice to teach us that,in the event that it increases by one two-hundredth between the increase after the first breach and the second one, they do not combine to render it Asur, since, as each one grows, it becomes Bateil ...

Opinion #2 (cont.): Though that is only if there is a break in between, but generally, Kil'ayim becomes Asur in two hundred (Kil'ayim, Perek 7), and we do not say that each bit that grows becomes Bateil.

Implied Question: And when the Gemara says in the last Perek of Avodah-Zarah (Daf 73, See Tosfos there DH 'Ki') in connection with someone who pours Yayin Nesech all day long from a barrel into a pit, that each bit becomes Bateil ...

Answer #1: ... Rabeinu Tam explains that that speaks when he kept on pausing, but were he to continue pouring non-stop, it would all be Asur ...

Source: ... like Kil'ayim, which becomes Asur if it increases by one two-hundreth since it grew without a break.

Precedence #1: And when the Gemara in 'Bameh Ishah' (Shabbos, Daf 65b, See Tosfos DH 'Shema') relates that the father of Shmuel used to make Mikva'os in the season of Nisan - perhaps the water that dropped (the rain) exceeded the water that flowed (the River P'ras) - it means that it exceeded it without pause.

Precedence #2: And by the same token, in Perek ha'Noder min ha'Yerek (Nedarim, Daf 57b) where the Gemara rules in connection with someone who pulled out an onion in the Sh'mitah and re-planted it in the eighth year - that if what grew exceeded the original onion, it is permitted', and we do not apply the principle 'Kama Kama Bateil', it speaks where it grew without a break.

Proof: In fact, Rebbi Yochanan himself, who rules in the last Perek of Avodah-Zarah (Daf 73a & 73b) 'Rishon Rishon Bateil', also rules in Nedarim that what grew be'Heter renders Bateil the Isur.

Answer #2: Ri ben Rabeinu Meir in his Tosfoses on Nedarim explains that regarding the cases of onion, Kil'ayim and dripping - whose way it is to increase gradually, we do not apply 'Kama Kama Bateil' like we do by Yayin Nesech, where one cannot say that.

Question: The Gemara says in 'ha'Areil' (Yevamos, Daf 82b, See Tosfos there DH 'Amar') that where he placed a Sa'ah and took out a Sa'ah, up to half (it is still Kasher); but the majority, it is Pasul, and we don't say 'Kama Kama Bateil'?

Answer: That is speaking about Mei Peiros, where the Chachamim were more stringent.

Question #1: If it is speaking about Mei Peiros, how can the Gemara compare it to T'rumah de'Rabanan, seeing as Mei Peiros is Pasul mi'd'Oraysa ...

Question #1 (cont.): Since, in Perek Kisuy ha'Dam (Chulin, Daf 84a & 84b) precludes it from the extra word "Mayim" ...

Question #2: ... and how can it be Kasher by Mechtzah al Mechtzah d'Oraysa?

Answer: One can say be'Dochek that, although it is Pasul mi'd'Oraysa, Mechtzah al Mechtzah is Kasher with regard to the Tevilah of needles and forks, which do not require forty Sa'ah min ha'Torah, only mi'de'Rabanan (Pesachim 17b).

Question: The question remains however, from Rav Dimi, who concludes in the third Perek of Bechoros (Daf 22a, See Tosfos there DH 'Ro'in') that if someone purchases brine from an Am ha'Aretz, he is Mashik it in water (lowers the K'li into the Mikvah until the brine and the water 'kiss') and it is Tahor (because Mah Nafshach) ...

Question (cont.): If the majority comprises water, the Hashakah is effective, whereas if it comprises brine, then it does not require Hashakah, since the water becomes Bateil in the brine. And the Gemara concludes that this refers specifically to dipping one's bread into the mixture, but not to cooking, since 'The same species (the water) has met its own kind, and mixes with it' ...

Question (concl.): So we see there that, even though the water already became Bateil, it returns to its former existence in the pot; How much more so will we not say 'Kama Kama Bateil'?

Answer: The ruling there is a Chumra which Chazal enacted with regard to Tum'ah, that even though there were pauses, it is not Bateil ...

Implied Question: ... despite the fact that in many instances Isur is more stringent than Tum'ah, as we say in Perek Kisuy ha'Dam (Chulin, Daf 86b & 87a) 'If they Safek Tum'ah is Tahor, will they also say Safek Isur is Mutar?'; Nevertheless ...

Answer: ... there the Chachamim were more stringent by Tum'ah.

Refuted Proof #1: There is no proof (for Rabeinu Tam mentioned above) from the final Sugya in Nidah (Daf 71b & 72a), where, in connection with Dam Tevusah ( blood that is flowing from a dying corpse), it differentiates between where it paused and where it didn't ...

Refutation: ... because Dam Tevusah is de'Rabanan, in which case there is more reason to be lenient.

Refuted Proof #2: And as for the Gemara in Perek Kisuy ha'Dam (Chulin, Daf 87a, See Tosfos there, DH 'Ro'in' and in Perek ha'Ta'aruvos, Zevachim (Daf 77b, Ibid.), where the Mishnah regarding blood that became mixed with water, states 'Im Yesh Mar'is Dam, Kasher' ...

Refuted Proof #2 (cont.): ... and the Gemara establishes it specifically where the water fell into the blood, but if the blood fell into the water - 'Rishon Rishon Bateil' ...

Refutation: ... that is fine even without the explanation of Rabeinu Tam ...

Refutation (cont.): ... since there in the case of blood, the reason is because once it has been rejected, it can no longer be deemed fit, as is the Din regarding all Korbanos ...

Refutation (cont.): ... because even those who hold that there is no 'Dichuy' by live animals, concede that there is Dichuy by those that have been Shechted.

Proof: And it is evident in Perek Kisuy ha'Dam (Chulin, Daf 87b & 88a) that the reason there is because of 'Dichuy' ...

Proof: ... since the Gemara concludes that, with regard to Kisuy, there is no Dichuy, due to the principle 'Ein Dichuy Eitzel Mitzvos', implying that regarding the blood, the reason is because of Dichuy.

Refuted Question: Nor can one query this from the Gemara in Perek Noteil (Shabbos, Daf 142a) which states that, in a case where a Sa'ah of T'rumah falls into a hundred Sa'ah of Chulin, and before he has a chance to take it out, another Sa'ah falls in, it does not become Bateil ...

Refuted Question (cont.): And we do not say 'Kama Kama Bateil', despite the fact that there was a pause in between ...

Answer: ... that is because he is obligated to remove one Sa'ah; otherwise a hundred Sa'ah will not permit whatever falls into them - in which case 'Kama Kama Bateil' is not applicable.

Clarification: Davka if he gave up (on stopping it), but if he did not, and is working to put up a fence, even if it increased by one two hundredth, it will be permitted ...

Proof: ... as we learned in the Mishnah in Kil'ayim (5:6) 'If someone who sees a vegetable growing in his vineyard and declares "When I get there, I will pick it", it is permitted; "I will pick it on my way back", and it increased by one two hundrenth, it is Asur' ...

Proof (cont.): So we see that, as long as he is making an ongoing effort to pick it, even if it increased by one two hundredth, it is permitted.

Reason: The reason for this may well be based on the Pasuk (in Kedoshim) 'Do not plant your field Kil'ayim", implying that a planting with which he is pleased.

Implied Question: Even though 'Hezek she'Ein Nikar Lo Sh'meih Hezek' ...

Answer: ... it sems to the Ri that this is considered a Hezek Nikar, since one can discern that it is Kil'ayim when seeing the vines in the field.

Answer (cont.): ... whereas when one renders his friend's Taharos Tamei, even if one sees a Sheretz on the Taharos, it is not considered a Hezek Nikar, because who knows that the Taharos were Huchshar (Lekabel Tum'ah)?

Refuted Answer: One cannot however answer that here as well, it is a Hezek she'Ein Nikar, only the Chachamim penalized him like by Metamei, where they decreed, so that people should not feel free to go around being Metamei the Taharos of others ...

Refutation #1: ... since here that is not applicable, because the owner of the vineyard loses too.

Refutation #2: Moreover, if it is a K'nas, then he should only be Chayav be'Meizid.