Question: If so, why does one need to coerce the Resh Galusa to write a Sh'tar, let the witnesses write it, seeing as they know that he is purchasing it for himself?

Answer: It speaks where the witnesses do not want to write another Sh'tar.

Clarification: The Gemara currently thinks that he also made a Kinyan Meshichah, and it (the money) was merely a Pikadon by them.

Clarification: And that explains why, had he not informed the purchaser that the flax that he was selling belonged to Kahana ...

Clarification (cont.): Kahana would not have acquired the money, since they did would not have paid it with him in mind ...

Clarification (concl.): And if Kahana would have taken anything from the owner, it would have been as if they were giving him of their own, which resembles Ribis.

Clarification: Rashi explains that he gave them the money on trust, and they did not have flax when they received it.

Question: How can the Gemara then conclude that Rav follows his reasoning, seeing as under such circumstances, even Rebbi Yanai concedes that one is forbidden to receive the money, since he did not have fruit at the time of the agreement? ...

Reason: Because when Rebbi Yanai said 'Mah li Hein, Mah li Demeihen?' that speaks specifically where he has fruit at the time of the agreement, whereas according to Rav, he is forbidden to accept money even in such a case ...

Source: Because the Gemara in Perek Eizehu Neshech (Bava Metzi'a, Daf 63a, See Tosfos there, DH 'de'Amar') cites Rebi Yanai in connection with the Beraisa of Rebbi Oshaya where Reuven, who lends Shimon a Manah, goes and stands in his granary and asks for money in order to purchase with it wheat ...

Source (cont.): To which Shimon responds that he has wheat ... - The Tana rules there that all the cases are permitted, as long as he has the commodity, but not if he hasn't. And the Gemara concludes that this is a proof for Rebbi Yanai who says 'Mah li Hein, Mah li Demeihen' ...

Source (concl.): This implies that, according to Rebbi Yanai, it is exclusively where he has the commodity that it is permitted, and that is where Rav disagrees.

Answer: One can however resolve Rashi's explanation - inasmuch as the Gemara there is speaking specifically about a loan, that is where Rebbi Yanai requires him to have the commodity, but regarding a sale, the Gemara says there (Daf 62b) that one may fix payment according to the current market price, even if he doesn't have' , and that is the case of 'credit on fruit'.

Introduction to Question: And Rashi's explanation there that Rebbi Yanai permits their value, as long as it is not specifically money but fruit ...

Source: ... similar to the Beraisa there 'Wine to the value of wheat, oil to the value of wine and vice-versa', which does not resemble Ribis, but money is forbidden.

Refutation: This is incorrect, since here in our Sugya, it is evident that he may accept even money.

Halachah: And the Halachah is like Rebbi Yanai, as is evident there.

Explanation #1: It speaks where he swore on his own initiative ...

Reason: ... since Beis-Din do not make a person swear unless it is a claim of two silver Ma'ah and an admission to the value of a P'rutah (Shevu'os, Daf 38b) ...

Explanation #1 (cont.): And the obligation of an extra fifth applies even to one's own Shevu'ah ...

Proof #1: As is evident in this Perek (Daf 106a).

Proof #2: And in Maseches Shevu'os too (Daf 36b) the Mishnah states that Shevu'as ha'Pikadon applies to both men and women, in front of Beis-Din and not in front of Beis-Din (on his own initiative).

Explanation #2: Alternatively, it speaks where they claimed two silver Ma'ah, and he admitted to the value of a P'rutah.

Explanation #1: Rashi explains that it is on account of Takanas ha'Shavim, in order not to obligate him to spend a Manah on traveling expenses.

Inference: This implies that he gives it to the Shali'ach Beis-Din, who looks after it until the Nigzal arrives.

Refutation #1: But this is not correct - firstly, because the Lashon does not imply that, since instead of mentioning the 'Shali'ach Beis-Din', it should rather have said 'If there is a Beis-Din there, then he hands it to them'?

Refutation #2: Moreover, the Gemara (on Daf 104a) says 'the the Din of a Shali'ach Beis-Din is clear, irrespective of whether he is appointed by the Nigzal or by the Gazlan to take to the Nigzal'?

Refutation #3: Furthermore, why does the Gemara say that the Mishnah does not go like Rebbi Tarfon? ...

Refutation #3: ... seeing as the Gemara, in Perek ha'Mafkid (Daf 37b & 38a) asks on Rebbi Tarfon 'Do they all take it and go?', and answers 'Read - "and he leaves it" ' ...

Proof #1: ... by which he must mean in the hands of Beis-Din (See Maharsha), like the case of Rebbi Elazar b'Rebbi Tzadok, who, the Gemara concludes, goes according to Rebbi Tarfon.

Refutation #4: And finally, why does the Gemara see fit to cite Rebbi Elazar (b'Rebbi Tzadok), when it could just as well have cited the Mishnah?

Explanation #2: It therefore seems that the Mishnah is speaking with regard to the responsibility during the journey - that he is Patur if he gives it to the Shali'ach of Beis-Din ...

Explanation #2 (cont.): He also obtains a Kaparah immediately, and need not wait until it reaches the hand of the Nigzal - seeing as the Shali'ach Beis-Din received it ...

Conclusion: Only the Mishnah is not speaking about that Takanah.

The Chidush #1: This comes to teach us that the Gazlan is obligated to go to Madai even in order to return it to the heirs.

The Chidush #2: Alternatively it teaches us that there is no difference whether the owner is alive or dead regarding Keren, Chomesh and Asham ...

The Chidush #2 (cont.): In the way that there is a difference between the Gazlan and his sons - in that his sons do not pay the extra fifth on the theft of their father (later, on Daf 104b) ...

The Chidush #2 (concl.): Therefore the Tana teaches us that with regard to the owner there is no difference.

Refuted Explanation: In Perek ha'Mafkid (Bama Metzi'a, Daf 37b) the Gemara explains that 'Beineihem' does not mean specifically that they (are free to) take it and go ...

Authentic Explanation: ... but that he puts it down until the identity of the owner becomes known.

Chidush #1: Even according to Rav Huna and Rav Yehudah, who say in ha'Gozel Basra (later, on Daf 118a) in connection with 'Manah li be'Yad'cha, ve'ha'lah Omer Eini Yode'a, Chayav' - because 'Shema u'Bari, Bari is stronger' even to extract money ...

Reason: ... they will agree here that he is not obligated to pay each one, because he too is sure that the four of them are lying, since he definitely only stole from one of them. Consequently, their 'Bari' is not sufficiently strong against his 'Shema' to extract money.

Chidush #2: And on the other hand, even Rav Nachman and Rebbi Yochanan, who say there 'Patur' - because 'La'av Bari Adif' and we therefore place the money in the R'shus of the owner, could well hold here even like Rebbi Akiva, who says 'until he pays to each and every one' ...

Reason: ... seeing as here he admits that he is Chayav a Manah, whereas there he admits nothing.

Implied Question: The Gemara establishes the Machlokes where he swore and like Rebbi Akiva and not where he did not swear, and like Rebbi Tarfon ...

Answer: ... because it always tries to establish a Mishnah like Rebbi Akiva ...

Source: ... like we find at the end of 'ha'Socher es ha'Umnin' (Bava Metzi'a, Daf 82a) where the Gemara asks 'In that case, the Mishnah is not like Rebbi Akiva?'

Inference: This implies that if the travel-expenses are not excessive, he must take it after the owner to Madai ...

Question: ... But why? Did Rebbi Tarfon not say that 'He places the Gezeilah among them and departs'?

Refuted Answer: And you cannot answer that (to pay) five people is a case of where the expenses exceed the Keren (the amount that he is actually obligated to pay) ...

Refutation: ... seeing as the Beraisa in connection with the Chasid will shortly issue the same ruling where there are only two people.

Answer: Perhaps the Gemara is not yet aware of that Beraisa.

Question: The question remains however that, seeing as Rebbi Tarfon concedes where the expenses are not excessive, why does the Gemara say that it goes like Rebbi Akiva, since it also goes like Rebbi Tarfon ...

Question (cont.): ... because even those who establish it like Rebbi Akiva, learn that it speaks specifically where the expenses are not excesssive?

Answer: The Mishnah speaks even where the expenses are excessive, and he needs to take the article to Madai assuming that he cannot find a Beis-Din all the way there, even though this is not common ...

Answer (cont.): As a matter of fact, the Mishnah only mentions 'Madai' to teach us that it is speaking even where the expenses are excessive - and he is obligated to take it to Madai, or to a Beis Din if it is closer, even though the expenses are greater to go there.

Answer (concl.): And this explains why the Gemara establishes it like Rebbi Akiva and not like Rebbi Tarfon ...

Reason: ... because, according to Rebbi Tarfon, even if he cannot find a Beis-Din, he is not obligated to spend more than the value of the article, only he holds on to it until he finds a Beis-Din close by.

Question: From where do we know that Rebbi Tarfon holds like this and that he does not concede (to Rebbi Akiva) there where is no Beis-Din?

Answer #1: It is a S'vara, because if he required taking the article to Madai there where there is no Beis-Din, how much more so would he hold that in the case where someone stole from one of five people - and it would not suffice to hand it to Beis-Din ...

Reason: ... seeing as the money is not considered returned to the owner until he has paid to each and every one.

Implied Question: Rebbi Eliezer b'Rebbi Tzadok could actually have taught us a Chidush - that if the expenses up to the Beis-Din are excessive, he holds on to the article ...

Answer: ... only he prefers to teach us that if the Beis-Din is near, it is better to leave it with them.

Answer #2: One can also answer that, certainly, since the Mishnah does not mention any Takanah, one can learn that in a case where he swears there is none ...

Answer #2 (cont.): ... which is why the Gemara establishes it according to Rebbi Akiva, and not according to Rebbi Tarfon, who holds of a Takanah ...

Answer #2 (concl.): Whereas Rebbi Akiva does not hold of a Takanah once one has made a Shevu'ah, even where one steals from one person ...

Implied Question: And when he says that the Rabanan only instituted a Takanah there where he knows ...

Answer: ... he said that according to the opinion of Rebbi Tarfon - meaning 'In a case of Nishba, I don't hold of a Takanah at all ...

Answer (cont.): ... but even according to you who holds like Rebbi Elazar b'Rebbi Tzadok even by Nishba, it is still possible to say that that speaks specifically where he knows from whom he stole'.

Clarification: And since he admitted, presumably he wants to fulfill his moral obligation, seeing as nobody claimed from him.

Clarification (cont.): Nevertheless, he needs to take it after him to Madai, just as he needs to pay a Manah to each and every one.