KESUVOS 31 (14 Adar) - Dedicated l'Iluy Nishmas HaRav Ze'ev Wolf Rosengarten of Zurich, Switzerland, a person of "Sheleimus" in every way. Well-known for his Shimush of the Brisker Rav, Rav Wolf passed away on 14 Adar 5760. Dedicated in honor of his Yahrzeit by his nephew and Talmid, Eli Rosengarten of Zurich.
12th CYCLE DEDICATION
KESUVOS 31 (20 Tishrei) - Dedicated by Al, Sophia and Jared Ziegler of Har Nof, Jerusalem, in loving memory of Al's mother, Chaya bas Berel Dov Ziegler, on the day of her Yahrzeit, and towards Jared's continued growth in Torah and Yir'as Shamayim.
1) ONE WHO DRAGS AN OBJECT FROM ONE DOMAIN TO ANOTHER ON SHABBOS
QUESTION: The Gemara cites a Beraisa which states that a thief who stole a wallet on Shabbos is liable for the theft. The principle of "Kam Lei bid'Rabah Minei" does not exempt him even though he carried the wallet from Reshus ha'Yachid to Reshus ha'Rabim (an act of Shabbos desecration for which he is liable for Sekilah), because "Kam Lei bid'Rabah Minei" applies only when both transgressions are committed at the same moment. Since, in this case, the transgression of thievery occurred before the transgression of Hotza'ah on Shabbos, the offender is obligated to pay and to be put to death.
RASHI (DH ha'Gonev) explains that in the case of the Beraisa, the thief lifted the wallet in the owner's domain and brought it out to Reshus ha'Rabim. Rashi (DH she'Kevar) explains further that Hagbahah (the act of lifting an object in order to acquire it) is effective wherever it is done (even when done in the domain of the original owner).
The Beraisa continues and says that if the thief dragged the wallet upon the ground without lifting it, he is exempt from liability for compensation. RASHI (DH Hayah Megarer) explains that since he did not lift the wallet, he acquired it only at the moment he removed it from the owner's Reshus ha'Yachid. At that moment he also carried the wallet from Reshus ha'Yachid to Reshus ha'Rabim. Since the two transgressions, theft and Shabbos desecration, occurred simultaneously, the principle of "Kam Lei bid'Rabah Minei" applies and the thief is exempt from payment.
Why is one liable for Hotza'ah on Shabbos when he drags a wallet from Reshus ha'Yachid to Reshus ha'Rabim? The laws of Hotza'ah state that one is not liable unless he performs an act of "Akirah" (lifting up the object) in Reshus ha'Yachid and an act of "Hanachah" (placing it down) in Reshus ha'Rabim. If the thief dragged the wallet from Reshus ha'Yachid to Reshus ha'Rabim, what act of Akirah did he do? Dragging an object out of a Reshus is not considered an act of Akirah, as is evident from the Gemara in Shabbos (8b) which requires that an object be lifted from the ground in order for the act to constitute an Akirah. Why, then, does the Gemara here rule that the thief is liable for Hotza'ah on Shabbos when he dragged the wallet from Reshus ha'Yachid to Reshus ha'Rabim, if he performed no act of Akirah?
(a) The CHIDUSHEI HA'RASHBA answers that the Gemara refers to a case in which the ground level of the Reshus ha'Yachid is higher than the ground level of the Reshus ha'Rabim adjacent to it. When the thief drags the wallet out of the Reshus ha'Yachid, he necessarily performs an act of an Akirah.
(b) In his second answer, the CHIDUSHEI HA'RASHBA suggests that it is not necessary to lift an object in order for the act to constitute Akirah. Although the Gemara in Shabbos (8b) requires that an object be lifted from the ground in order for the act to constitute an Akirah, the case of the Gemara there differs from the case of the Gemara here. The Gemara in Shabbos discusses a case in which one moves long reeds by lifting up one end and moving it over and above the second, stationary end, placing it down, and then lifting up the other side and moving it in the same manner. In that case, one end of the reeds does not move from its place when the other end of the reeds is lifted and moved, and thus that act does not constitute an Akirah. In contrast, in the case of the Gemara here, the entire wallet moves as the thief drags it. No part of it remains stationary as another part of it moves. This act suffices to constitute an Akirah even though the object is not lifted from the ground.
(c) The CHIDUSHEI HA'RAMBAN quotes the RA'AVAD who explains that an act of Akirah is an essential component of the Melachah of Hotza'ah on Shabbos only when one transports an object four Amos in Reshus ha'Rabim. In contrast, when one carries from Reshus ha'Yachid to Reshus ha'Rabim he may be liable even if he does not lift the object. The mere fact that he transports the object out of Reshus ha'Yachid and into Reshus ha'Rabim (an act the Ra'avad calls "Akiras Reshus") is considered enough of an act of Akirah to obligate him for Hotza'ah on Shabbos.
The Ramban questions the Ra'avad's explanation from another Gemara in Shabbos. The Gemara in Shabbos (8b) teaches that when one lifts an object in Reshus ha'Yachid with intent to put it down in another place in the same domain and then he consciously decides to take it out to Reshus ha'Rabim, he does not transgress the Melachah of Hotza'ah on Shabbos mid'Oraisa (since his first Akirah was not done with intent to carry the object to Reshus ha'Rabim). According to the Ra'avad, why should the concept of "Akiras Reshus" in this case not qualify as an Akirah to obligate him? The Ramban quotes the Ra'avad who explains that the concept of "Akiras Reshus" applies only when the object is resting physically in Reshus ha'Yachid, but not when it is resting in a person's hand. The Ramban rejects the explanation of the Ra'avad and sides with the first answer of the Rashba (in (a) above). (D. BLOOM, Y. MONTROSE)
2) ACQUIRING AN OBJECT BY LIFTING IT LESS THAN THREE TEFACHIM FROM THE GROUND
QUESTION: The Beraisa (31a) states that a thief who stole a wallet on Shabbos by dragging it from the Reshus ha'Yachid of its owner into Reshus ha'Rabim is exempt from the obligation of compensation. Since he did not lift the wallet in the domain of its owner, he acquired it only at the moment he removed it from that domain. At that moment he also carried the wallet from Reshus ha'Yachid to Reshus ha'Rabim. Since the two transgressions, theft and Shabbos desecration, occurred simultaneously, the principle of "Kam Lei bid'Rabah Minei" applies and the thief is exempt from payment (the lesser of the two punishments).
The Gemara (31b) asks, into what domain did the thief bring the wallet? If he brought it into Reshus ha'Rabim, his act should not be considered an act of theft. RASHI (DH Isur) explains that the Gemara at this point understands that an act of Meshichah (the act of pulling an object towards oneself in order to acquire it), without an accompanying act of Hagbahah (the act of lifting an object in order to acquire it), is not a valid Kinyan. The Gemara rejects the possibility that the thief took the wallet into his own courtyard adjacent to the courtyard of the wallet's owner (see Rashi, DH l'Reshus); although such an act would constitute a valid Kinyan for theft, it would not constitute a violation of Shabbos (mid'Oraisa).
Rav Ashi answers that the Beraisa refers to a case in which the thief dragged the wallet into Reshus ha'Rabim with one hand, and he positioned his other hand within three Tefachim from the ground of Reshus ha'Rabim and received the wallet in that hand. Although an act of Hagbahah requires that the object be lifted more than three Tefachim from the ground, when one performs Hagbahah with his hand it is not necessary to lift the object more than three Tefachim from the ground. This difference is based on Rava's statement that a person's hand is considered a significant area in itself; it has the status of an independent area of four Tefachim in length and width (with regard to Hanachah, see Rashi DH ked'Rava). Rashi explains that just as one's hand is considered an independent domain with regard to the laws of Shabbos, it is considered an independent domain with regard to the Kinyan of Hagbahah (such that the Kinyan is effective even if the object is lifted less than three Tefachim from the ground).
TOSFOS (DH Rav Ashi) questions the comparison of the status of a hand with regard to the laws of Shabbos to its status with regard to a Kinyan Hagbahah. Why does the fact that one's hand is considered a domain of four by four Tefachim for the laws of Shabbos necessarily prove that one who performs a Kinyan Hagbahah by placing an object into his hand does not need to lift the object three Tefachim from the ground?
ANSWER: The PNEI YEHOSHUA answers this question based on the words of TOSFOS in Shabbos (4a, DH v'Ha). Tosfos asks why Akirah and Hanachah must be done in a domain of at least four by four Tefachim in order for the act to constitute the Melachah of Hotza'ah. He explains that this presumably was the manner in which Hotza'ah was performed in the Mishkan (from which the Melachos of Shabbos are derived), as an object is not normally placed on an area smaller than four by four Tefachim. Tosfos cites the RI who explains, alternatively, that the requirement for an area of four by four Tefachim is derived from the verse, "Al Yetzei Ish mi'Mekomo b'Yom ha'Shabbos" -- "No person may leave his place on Shabbos" (Shemos 16:29). While the simple meaning of "his place" refers to a person's place, which is defined as four Amos, it also refers to the place of an object, which is four Tefachim. (The Gemara in Eruvin (17b) explains that "Al Yetzei" may be read "Al Yotzi" -- "he should not take out," a reference to carrying an object into a different Reshus on Shabbos.)
Based on the words of Tosfos, the Pnei Yehoshua suggests that the reason for Rava's principle, that a person's hand is considered an independent domain for the laws of Shabbos, is that a person normally places an object in his hand until he is able to deposit it in a safer place. Although he keeps the object in his hand only temporarily, since accepting an object into one's hand is the normal manner of conduct, the hand has the status of a domain on Shabbos. (According to the first explanation of Tosfos in Shabbos, holding an object in one's hand was the normal way in which an object was carried in the Mishkan. According to the second explanation, one's hand is considered a normal place of rest of an object.)
In the same way that the definition of a domain for the laws of Shabbos depends on what is the normal area in which objects are placed, the definition of what constitutes Hagbahah (or any other form of Kinyan) depends on how the object is normally acquired. This is evident from the Gemara in Bava Basra (86a) which states that objects which are normally pulled are acquired with Meshichah, while objects which are normally lifted are acquired with Hagbahah. Rava's principle teaches that since it is normal for a person to put an object in his hand until he puts it in its place of storage, putting an object (which is normally lifted up) into a person's raised hand effects a Kinyan Hagbahah even when the item is not lifted up three Tefachim from the ground. The fact that the hand is a place where objects are normally kept causes the Kinyan Hagbahah to take effect. (D. BLOOM)