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Bava Metzia Chart #10

Bava Metzia Daf 38a

A SHOMER WATCHING FRUIT THAT IS ROTTING: MAY HE SELLTHE FRUIT (ACCORDING TO THE TANA KAMA OF OUR MISHNAH)?(1)
[1] = "A person favors a Kav of his own
produce over nine Kavim of his friend's"

[2] = "Perhaps the owner made these fruits
Terumah for fruits in another location."
  (A)
THEY HAVE ROTTED AT THEIR NORMAL RATE(2)		 (B)
THEY HAVE ROTTED MORE THAN THEIR NORMAL RATE
1) RAV KAHANA,
RABAH BAR BAR CHANAH		 He may not sell them(3) [1] [2] He may sell them (to Kohanim)(4)
2) RAV NACHMAN BAR YITZCHAK He may not sell them(5) [1] [2] Rashi: He may not sell them [2] (6)
Ramban: He may sell them (to Kohanim)(7)
==========
FOOTNOTES:
==========
 (1) The information contained in this chart is in accordance with the view of the Tana Kama of the Mishnah (who is Rebbi Meir of the Beraisa). According to the opposing view of Raban Shimon ben Gamliel (and the Chachamim of the Beraisa), the Shomer *may* sell the fruit even when they have rotted at their normal rate.
(2) The normal rate is defined by the average quantity per annum at which fruit of this type rots (or, more specifically, decreases in volume), as the Mishnah later (40a) describes.
1. TOSFOS explains that as applied in this Mishnah, "rotting at the normal rate" means that *less* than a year has passed, yet the fruit has diminished the amount that it is fit to diminish in an *entire* year. In such a case, the Tana Kama maintains that the fruit may not be sold, and Raban Shimon ben Gamliel argues and maintains that the fruit may be sold. If, however, the fruit has diminished in those months by the amount that it is fit to diminish (or less), then even Raban Shimon ben Gamliel agrees that it may not be sold.
2. RASHI, however, seems to explain that the fruit has diminished exactly the amount it was expected to diminish according to the list in the Mishnah later (40a). Likewise, the RAMBAM (in Perush ha'Mishnayos) writes that the Mishnah is discussing fruit that diminished by the listed amount or less. The TORAS CHAIM explains that according to Rashi and the Rambam, the reason RSB"G allows the fruit to be sold is because we assume that it was the owner's intention to return and take his fruit to sell them before they began to diminish. When the owner did not return for them, the Shomer may sell them for him because of the Mitzvah of taking care of another person's property ("Hashavas Aveidah"), for it may be assumed that the owner was unable to return due to circumstances beyond his control. The DIBROS MOSHE suggests another approach (37:3). He explains that most produce does not diminish at all. The rates of diminution mentioned in the Mishnah (40a) are merely the rates which it is *possible* for produce to diminish, in the minority of incidents in which this occurs. Therefore, when the Shomer sees that the produce is diminishing, Raban Shimon ben Gamliel permits him to sell it.
(3) It appears from the Gemara that although Rav Kahana explicitly prohibits selling the fruit because "a person prefers a Kav of his own produce...," he also prohibits selling it out of concern that the owner *will make* these fruits Terumah after they are sold. Since the fruit is no longer his, the Terumah will not take effect and the owner will be eating Tevel. (Even though we are not concerned for this when the fruit diminished at *more* than its normal rate, and we permit the Shomer to sell it (see below, footnote 4), that is because it takes a long time for fruit to diminish that much, and by that time we assume that if the owner will ever make the fruits Terumah he already has done so.)
According to the RAMBAN and RITVA, Rav Kahana's second concern is that perhaps the owner *already made* these fruits Terumah. Selling the fruits to Kohanim for the price of Terumah is not a viable solution to the problem of spoilage, since when fruit rots at the normal rate, the owner will lose more by selling it at the low price of Terumah, than by leaving it to diminish at its normal rate.
If Rav Kahana agrees that we are concerned that the owner might make these fruits Terumah, then why does he not state so explicitly? Why does he only state that give the reason for not selling them to be that "a person prefers a Kav of his own produce...," without making any mention of the second reason? TOSFOS (DH Mezavninan) answers that the reason of "a person prefers a Kav of his own produce..." is a better reason, because it applies even to produce such as flax (see Mishnah 40a), that is not edible.
(All of this is according to Tosfos. The RASHBA, however, writes that Rav Kahana does *not* agree with Rav Nachman bar Yitzchak that we must be concerned perhaps the owner will make the fruit Terumah. The reason Rav Kahana is not concerned for this, explains the Rashba, is because the Rabanan could simply have *prohibited* the owner from separating Terumah from the fruits that he deposited with the Shomer. Everyone would have abided by the prohibition, and consequently there would be no fear that the fruits were made into Terumah. It must be that the reason why the Shomer may not sell the fruit is only because "a person prefers a Kav of his own produce....")
(4) The Gemara explains that a person is prepared to forego having his own produce if he stands to suffer a considerable loss. (The expression "a person favors *one* Kav of his own produce over *nine* of his friend's" is an exaggeration). Even though the owner may separate Terumah from these fruits at some point (since the owner is permitted, l'Chatchilah to do so, even when the fruits are with a Shomer, as the Beraisa explains), nevertheless it is assumed that the if the owner will make them Terumah, he will do so *before* the fruits began to diminish more than their normal rate. This is because it takes a very long time for them to diminish to this degree, and a person does not leave his fruits untithed for such a long time (Rashi). Therefore, the Shomer may sell these fruits to Kohanim at the cost of Terumah, and there is no need for concern that the owner will attempt to designate them as Terumah *after* they have been sold (and the Terumah will not take effect and his fruits at home will remain Tevel).
1. We might ask, though, that in the event that it happens that in a *very short time* the fruits diminish more than their normal rate, why is the Shomer permitted to sell them? We should be concerned that, after the Shomer sells them, perhaps the owner will separate these fruits as Terumah for other fruits in another place! The answer is that, indeed, in such a case the Shomer may *not* sell the fruits, even to Kohanim, until a considerable amount of time has passed (and Rav Kahana does not prohibit selling the fruits after a long time has passed lest one sell the fruits after a short time has passed, because it is rare (Lo Shachi'ach) that fruit should diminish so much in such a short time). This seems to be the way that RASHI and TOSFOS explain the opinion of Rav Kahana.
2. The RASHBA, though, writes that the Shomer may sell the fruits (to Kohanim) even after a short time has passed, when they have diminished more than their normal rate. The reason for this is because it is very unlikely that the owner will designate these fruits as Terumah for other fruits. (He brings support for this principle from the fact that when a person inherits fruit from his father, we are not concerned that his father made the fruit Terumah before he died.) Even though we are not really concerned that these fruits are Terumah, the Rabanan required that the Shomer sell them to Kohanim just in case they were made Terumah, since (a) the fruits are being sold without the owner's explicit consent and (b) selling the fruit to Kohanim is a viable option for resolving the remote possibility that the owner made these fruits Terumah. As for the possibility that the owner *will* make the fruit Terumah after the sale - since there is no way for us to resolve that problem, we allow the sale in the event of a significant financial loss. The Rashba adds that because of this, the fruit is also permitted to be treated a Chulin when it is not possible to sell it as Terumah (such as in the case of spoiled oil, which can only be used to rub into hides and cannot be eaten).
(According to the Rashba, the primary point of dispute between Rav Kahana and Rav Nachman bar Yitzchak is whether or not a significant financial loss (the rotting of the fruits more than the normal amount) overrides the concern for the possibility that the owner made these fruits Terumah and allows the Shomer to sell the fruits without the owner's permission; see Rashba.)
(5) Rav Nachman bar Yitzchak says that if the fruits are diminishing at their normal rate, it is prohibited to sell them, because we are afraid that the owner might have made them Terumah for other fruits. TOSFOS (DH Mezavninan) writes that Rav Nachman bar Yitzchak *also* prohibits selling the fruits because of the reason that "a person prefers a Kav of his own produce...," like Rav Kahana. The reason why he says that the fruit may not be sold because perhaps the owner made it Terumah is in order to allude that even if the fruits diminished *more* than their normal rate, it is still prohibited to sell them for this reason (as explained in footnote 6 below). Why, though, may the Shomer not sell the fruit to Kohanim for the cost of Terumah? Even if the owner made the fruits Terumah, such fruits are permitted to Kohanim! The answer might be that the main concern, according to Rav Nachman bar Yitzchak, is not just that the owner might have *made* the fruits Terumah (before they were sold), but that he might *make* the fruits Terumah (after the Shomer has sold them); his Terumah will not take effect and he will end up eating fruit that is Tevel; so explains the Gemara (according to our Girsa in the Gemara).
1. (According to this, Rav Nachman bar Yitzchak never really said that the concern was that perhaps the owner *made* the fruits Terumah, but that he *will make* them Terumah.
2. Alternatively, as the PNEI YEHOSHUA writes, the only reason Rav Nachman bar Yitzchak says that we prohibit the Shomer from selling the fruits (even to Kohanim) due to the concern that the owner might *make* the fruits Terumah, is because we already prohibit the Shomer from selling the fruit to anyone but Kohanim due to the concern that the owner already made the fruits Terumah.)
3. The RAMBAN and RITVA give a different reason for why the Shomer may not sell the fruits to Kohanim: Since the fruits have not diminished so much, the loss incurred as a result of selling the fruits at a discounted price (the price of Terumah) will be greater than leaving the fruits alone, for the owner might come back before the fruits diminish much more. If so, the reason Rav Nachman bar Yitzchak prohibits selling the fruit is indeed because the owner might have *made* them Terumah (in the past).
(6) According to our Girsa, which is the Girsa of Rashi and Tosfos, the Gemara's conclusion is that Rav Nachman bar Yitzchak even prohibits selling the fruits when they have diminished more than their normal rate, even though the logic that "a person prefers a Kav of his own produce..." does not apply (see above footnote 4). He holds that such a diminution is common, and perhaps the Shomer will sell the fruits and afterwards the owner will attempt to make them Terumah for fruits in his home, since he does not know that they were sold (see above, footnote 4).
(7) The Girsa of the Ramban and Ritva omits from the words "u'l'Rav Nachman bar Yitzchak Nami" until the end of the Sugya. (They omit these lines because it is obvious why the fruits may not be sold to Kohanim when they have diminished only the normal amount, as we wrote above in footnote 5, in the name of the Ramban and Ritva.) They hold that according to the Gemara's conclusion, when the fruits have diminished more than their normal amount, Rav Nachman bar Yitzchak *agrees* that the fruits may be sold (to Kohanim), and thus ruling of the Beraisa -- which says that the Shomer may sell the fruit -- is correct even according to Rav Nachman bar Yitzchak.
1. Why, though, are we not concerned that perhaps the owner will make the fruits Terumah *after* the Shomer sells them (as in footnote 6 above)? The answer is that when Beis Din sells the fruit the public sale becomes known to all, so that the owner certainly will hear that the fruits were sold (Ramban). Second, the Ramban and Ritva answer that even if the Shomer does *not* sell the fruits, the owner's act of separating Terumah will not take effect when the fruits have diminished beyond their normal rate, because the owner does not assume that the fruits have diminished so much and he will separate as Terumah more fruits than are actually in existence.
Consequently, refraining from selling the fruit will not help the Terumah to take effect, so we might as well sell the fruit.

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