Question: Why does the Gemara query Rav Asi from the Mishnah? Why does it not query his intrinsic statement, when he says 'One does not claim from the property of Yesomim unless Ribis is 'consuming' it' ...

Question (cont.): Who is the 'one' (in 'One does not claim')? If it is a Ba'al-Chov Nochri - since when will he listen when you tell him to wait till thy grow up?

Question (concl.): And if it is a Yisrael - how can we allow him to 'eat' Ribis?

Answer: From Rav Asi himself there is nothing to ask - since it may well be speaking where the creditor has not yet claimed, and it is speaking about a Ba'al-Chov Nochri ...

Answer (cont.): Which explains why we do not claim unless Ribis is consuming it, when we do claim despite the fact that the creditor has not claimed, seeing as the Ribis is continuing to grow.

Answer (cont.): Whereas it queries him from our Mishnah, which definitely speaks where he claimed - seeing as Beis-Din went assess the property.

Answer (cont.): Consequently, it justifiably asks that, if it is referring to a Ba'al-Chov Nochri, since when will he agree to wait, to stop taking Ribis until after the period of announcing ...

Explanation: And if he refuses to listen, the additional time-period may well cause a greater loss than what the Yesomim stand to gain ...

Reason: Because whenever we do not know as to whether they will gain or not, the announcement is not necessary ...

Source: As the Gemara will say shortly regarding the statement of Rebbi Yochanan.

Halachah: The Halachah is like Rav Nachman in money-matters - and we do claim from the peoperty of Yesomim.

Support: And this is how the Gemara Paskens in 'ha'Koseiv' (Kesuvos, Daf 84a) in connection with the Mishnah 'Someone who dies leaving behind a wife, a creditor and heirs, and who had a debt or a Pikadon to claim from others' that it should be given to the weakest of them ...

Support (cont.): Which Rebbi Yochanan interprets there as 'Kesubas Ishah' (See Avodah Berurah).

Support (concl.): So we see that one does claim (from the property of Yesomim [See Avodah Berurah]).

Clarification: The difference between Rav Huna b'reih de'Rav Yehoshua - who says 'because their father may have put away bundles (of money) and Rava - who says 'because he may have possessed a receipt' is ...

Clarification: Where he handed his documents to a third person in front of witnesses and stated that he had no documents other than those ...

Shover: In which case there is no reason to suspect that he has a receipt, since he handed him all his documents, and had he possessed a receipt, he would have handed it to him too ...

Tzor'ri: Whereas there is still reason to suspect that their father put away Tzor'ri.

Clarification: And if we are worrried about a receipt, that ought to apply here as well.

Question: Let Rav Huna b'reih de'Rav Yehoshua ask on himself, why the Mishnah is not concerned about bundles (See Shitah Mekubetzes 7)?

Answer: It was obvious to Rav Huna b'reih de'Rav Yehoshua that on account of bundles, one would not refrain from claiming not in his presence

Reason: So that people should not take the money of others and move overseas.

Answer (cont.): It did not however, occur to him to say that in face of the concern over a receipt; that is why he asked Rava why the Tana is not worried about a receipt (See Avodah Berurah).

Answer (concl.): And Rava answered him that there too, as the Gemara explained 'So that people should not ... '.

Clarification: Apparently, this means 'Give the debt', and it goes like Rav Huna b'reih de'Rav Yehoshua - who says that where the defendant admits, we claim.

Question: But why did the Gemara drop the Lashon 'Chayav Modeh'?

Answer: Perhaps he used the Lashon 'T'nu', since it is applicable to both debts and gifts - inasmuch as if their father ordered them to give a gift, they must give it, provided he used a Lashon that one using when distributing either all one's property as a gift or some of it where he made a Kinyan.

Proof: It is also somewhat implied that it is talking about a gift, since he said 'This field' or 'this Manah' (See Avodah Berurah).

Question: Is it not obvious that if he says 'T'nu' that one gives it, seeing as he is giving it as a gift?

Answer: The Ri explains that the 'T'nu' that he says is an admission that he is Chayav to pay him (and not a gift - See Avodah Berurah).

Implied Question: And the reason that it uses the Lashon 'T'nu' is ...

Answer #1: Because it concludes with 'Sadeh Zu' or 'Manah Zu', by which 'T'nu' is appropriate.

Answer #2: Moreover there are cases of admission where he has to say 'T'nu' or 'You are my witnesses' ...

Example: Such as where they are not claiming from him, and he admits off his own bat

Source: As the Gemara says in Perek Get Pashut (Bava Basra, Daf 174b) - Where a Sh'chiv-M'ra says 'Give a Manah to P'loni', and where if he says 'T'nu', then we give it; otherwise not ...

Reason: Because a person tends to (say this) in order not to make his sons appear rich.

Answer #2 (concl.): Whereas if they claim from him and he concedes to their claim, we would give it even if he did not say 'T'nu' ...

Reason: Because a person does not 'play games' on his death-bed, as is evident in Perek Get Pashut (Ibid.

Clarification: Generally, whenever there is reason to suspect that there are 'bundles', such as in the case of Rav Asi, one cannot claim from the property of Yesomim ...

Clarification (cont.): And there where one does claim - such as by 'Sadeh Zu' and 'Manah Zu', where Rava says that we do claim but do not appoint an Apotropos, in this point we do not hold like him, and we do appoint an Apotropus.

Clarification (concl.): Since the Neherda'i said 'All of them we claim and appoint an Apotropus, with the sole exception of where the field does not belong to him, because we do get involved in falsehoods - and there is no need to appoint an Apotropus.

Introduction to Question: The Gemara in Perek ha'Gozel Basra (Bava Kama, Daf 112a & 112b) cites the episode where Rebbi Yirmiyah brother-in-law (who was a Katan) shut the door (of his deceased father's house) in front of Rebbi Yirmiyah; When the latter came before Rebbi Avin, he said to him 'He is claiming what belongs to him' ...

Introduction to Question (cont.): And when Rebbi Yirmiyah claimed that he had witnesses that he had acquired it in his father's lifetime, he countered 'Since when can one accept testimony not in the presence of the other litigant?' ...

Question: In what way is that different than our Sugya - where, when the field was discovered not to belong to him, they accepted testimony, despite the fact that the Yesomim were Ketanim?

Answer: Because, since in the case there, where the property initially belonged to the Yasom's father, even if there were witnesses that he made a Chazakah, we could not accept them, to establish the testimony falsely ...

Reason: Since it is possible that his father made some stipulation or other before he (Rebbi Yirmiyah) would acquire it - even though it was his house ...

Answer (cont.): Whereas in our Sugya, where the field was found to be not his, since the witnesses wre testifying that he stole it, it would not be considered establishing false testimony - because maybe he did not steal it ...

Reason: Because he definitely stole it.

Implied Question: Nor can we argue that perhaps he then purchased it from him ...

Answer: Because, since he obtained it through theft, we do not assume that he subsequently bought it from him

Answer: Now that it is clear that his father stole it and it did not belong to him in the first place ...

Conclusion: Consequently, it is justifiable to accept the witnesses even not in the presence of the Ba'al-Din, seeing as the matter is clear to us that the field did not belong to his father.

Precedent: And similarly, in the case in 'ha'Gozel Basra' (Ibid, Amud Beis) where, in the case where the child grabbed his father's slaves, went down to his friend's field and claimed that it was his, and Rebbi Oshaya ruled that 'We do not tell him to wait until the child grows up, but to that he can retrieve his field immediately ...

Precedent (cont.): And the Gemara there concluded that they did indeed take the field from him, since his father's Chazakah was not established - an indication that there are cases where one accepts witnesses not in the presence of the Ba'al-Din.

Conclusion: It therefore seems that where the father admitted to an oral loan (See Avodah Berurah), we lay the claim and allow the witnesses to testify before Beis-Din that they heard the admission, and the creditor will then be allowed to claim on the basis of that admission ...

Conclusion (cont.): And we do not apply the ruling 'Ein Mekablin Eidus Ela bi'Fenei Ba'al-Din' ...

Reason: Because, seeing as the matter is clear beyond the slightest shadow of doubt that the father admitted, it is comparable to the case where 'It was found to be not his'.

Reservation: In the case of the loss of money regarding the Yesomim, even if we know for sure that they did not put aside bundles on their account, , we do not claim ...

Source: As the Gemara states in Perek Shor she'Nagach Arba'ah va'Chamishah (Bava Kama, Daf 39a & 39b) - If their ox gores, they are Patur, because 'We do not claim ... ' ...

Reason: The Ri explains that although 'bundles is not applicable there (See Avodah Berurah), nevertheless we do not claim, due to the principle 'Ein Mekablin Eidus she'LO BI'Fenei Ba'al-Chov (See Avodah Berurah).

Clarification: Seeing as he said 'Sadeh Zu' or Manah Zu'. And one appoints an Apotropus to ascertain whether he paid or not, in case he paid and forgot, and he has a receipt ...

Reason: And they appoint an Apotropus to search for the receipt among the paraphernalia of the deceased, or to find some proof that he set aside bundles.

Question: Since he said T'nu, why do they not give it even if he is not Chayav anything, since he commanded before his death - so let it be a gift?

Answer: Because he had in mind to give it because he was obligated to and not in the form of a gift; Consequently, one may only give it to the person whom he owed.

Support: And this is implied in Perek Get Pashut (Bava Basra 174b) when it says with regard to the case cited earlier 'If he says "T'nu", then he substantiates the Sh'tar' ...

Support (cont.): So we see that it is because he is Chayav to pay him that, when he says 'T'nu' it is as if the Sh'tar has been substantiated; but if he would not be Chayav, he would not give it as a gift.

Clarification: 'be'Kulhu' means by 'Sadeh Zu' and Manah Zu' (See Avodah Berurah).