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Bechoros, 13

1) HALACHAH: THIRTY DAYS FOR "PIDYON PETER CHAMOR"

QUESTION: The Gemara (end of 12b) quotes a Beraisa that states that the Mitzvah of Pidyon for a Peter Chamor must be done immediately (when the donkey is born), in contrast to the Mitzvah of Pidyon ha'Ben which is done when the child is thirty days old. A second Beraisa, however, states that Pidyon Peter Chamor cannot be done until after thirty days have passed.

Rav Sheshes reconciles the two Beraisos by explaining that even though the Mitzvah of Pidyon Peter Chamor takes effect immediately when the donkey is born (as the first Beraisa says), nevertheless one who delays fulfilling the Mitzvah for thirty days has not transgressed the Mitzvah. Only when he delays for more than thirty days does he transgress the Mitzvah of Pidyon Peter Chamor. (See Chart.)

If the Mitzvah of Pidyon Peter Chamor take effect immediately when the donkey is born, then it is apparent that the laws of the Mitzvah are not comparable to the laws of Pidyon ha'Ben, since the Mitzvah of Pidyon ha'Ben takes effect only thirty days after birth. From where, then, does Rav Sheshes learn that there is a thirty-day grace period for fulfilling the Mitzvah of Pidyon Peter Chamor? There is no source for such a period! The Mitzvah should either apply immediately, such that one who does not fulfill it immediately when the donkey is born transgresses the Mitzvah, or the Mitzvah should be able to be fulfilled indefinitely, and one should never transgress the Mitzvah! What is the source for the limit of thirty days? (SHITAH MEKUBETZES #1)

ANSWER: The SHITAH MEKUBETZES answers that the thirty-day period of Rav Sheshes is mid'Rabanan. Mid'Oraisa, one does not transgress the Mitzvah until the firstborn donkey dies without Pidyon. The Rabanan, however, instituted that one transgresses the Mitzvah when he waits more than thirty days to redeem the donkey.

HALACHAH: The SHULCHAN ARUCH (YD 321:1) rules in accordance with Rava's answer to reconcile the two Beraisos. The most preferable way to fulfill the Mitzvah is to redeem the Peter Chamor immediately (as Rav Sheshes says), but it may be redeemed anytime until it dies, and one does not transgress the Mitzvah until it dies without Pidyon.

QUESTION: Rebbi Oshiya is quoted as saying that when a Jew pays money to a Nochri for his animal ("bi'Vehemto"), the Jew acquires the animal immediately upon payment through Kinyan Kesef. RASHI (DH bi'Vehemto) adds one word of explanation, "For his animal -- in his flock (b'Edro)." What is Rashi adding with this word, "b'Edro"?

ANSWERS:

(a) The RASHASH explains that Rashi is pointing out that the Jew is not paying for an animal that he has already taken from the Nochri. It is clear from the following words of the Gemara that in this case the Jew has not yet performed an act of Meshichah to the animal. The money is being paid for an animal that is still in the Nochri's flock.

(b) Rashi maintains that a Jew can acquire possessions from a Nochri through a Kinyan Chatzer. Rashi's intention, therefore, is to say that the animal is not in the Jew's Chatzer (or within his four Amos), but rather it is still grazing in the Nochri's Chatzer with the rest of his flock. (See CHASAM SOFER to Avodah Zarah 71b.)

QUESTION: Rebbi Oshiya is quoted as saying that when a Jew pays money to a Nochri to buy his animal "in accordance with their laws," the Jew acquires the animal immediately upon payment through Kinyan Kesef, even though no Meshichah was done, and if the animal gives birth to a firstborn calf (while still in the domain of the Nochri), the laws of Bechor apply. Similarly, when a Nochri pays money to a Jew to buy his animal "in accordance with their laws," he acquires the animal even though no Meshichah was done. If the animal then gives birth to a firstborn calf (while still in the domain of the Jew), the laws of Bechor do not apply, since the animal belongs to the Nochri.

Abaye explains that the phrase "in accordance with their laws" refers to the laws of Kinyanim that the Torah established for Nochrim. The Torah states, "Kanoh mi'Yad Amisecha" -- "[When you] acquire from the hand of your friend" (Vayikra 25:14), which teaches that Kinyan Meshichah (in which the object is drawn by the buyer "from the hand" of the seller) applies only to a transaction between two Jews ("Amisecha"). Only a Jew can effect a Kinyan with Meshichah; a Nochri effects a Kinyan with Kesef.

The Gemara asks that perhaps the verse is teaching that a Nochri is not Koneh or Makneh through *any* form of Kinyan. RASHI (DH Klal) explains that the Gemara is asking that until the object reaches the domain of the Jew, he should not be Koneh it from the Nochri. The MISHNEH L'MELECH (cited by the KEHILOS YAKOV #15, DH Bechoros) explains that it is not possible that the Gemara is suggesting that one cannot acquire an object at all from a Nochri. The Torah relates that the Jewish people requested from Sichon, "Sell me food" (Devarim 2:28), which clearly implies that a Jew can acquire an object from a Nochri. Rather, when the Gemara suggests that it is not possible to acquire an object from a Nochri, it means that perhaps neither Kesef nor Meshichah are effective; the Jew acquires the object only through Kinyan Chatzer, when it enters his domain.

Similarly, when the Gemara later suggests that it is not possible for a Nochri to buy an object from a Jew at all, it does not mean that a Nochri cannot acquire an object at all. The Torah states that a Jew may sell a Neveilah to a Nochri (Devarim 14:21), which clearly implies that a Nochri can acquire an object from a Jew. Rather, the Gemara the means that Kinyan Kesef and Kinyan Meshichah do not work for a Nochri; it is obvious, though, that a Nochri can acquire an object through Kinyan Chatzer.

The fact that a Kinyan Chatzer is effective for a Nochri is also evident in the words of the ROSH (end of 2:2), who writes that the most preferable way to transfer the ownership of the ear of one's animal to a Nochri (in order to exempt the animal from the laws of Bechor) is to have the Nochri lease, with money, the area on which the animal is standing, so that he acquires the animal (or part thereof) through Kinyan Chatzer (see MAHARIT ALGAZI #17, DH v'Hineh ha'Rosh).

How, though, is it possible that a Kinyan Chatzer is effective for a Nochri? The Gemara in Bava Metzia (10b) quotes Reish Lakish who states that the reason why a Chatzer is able to acquire an object for the owner of the Chatzer is because it is considered as one's Shali'ach (see ROSH to Bava Metzia 1:29, who writes that this is the ruling of the RIF). However, a Nochri cannot be appointed as a Shali'ach and cannot appoint a Shali'ach (Bava Metzia 71b). How, then, can the Nochri's Chatzer serve as a Shali'ach to be Koneh an object for the Nochri?

ANSWERS:

(a) The NESIVOS HA'MISHPAT (Introduction, 200:4, DH u'Lefi Zeh) answers that when the owner is standing near his Chatzer and the Chatzer is "Mishtameres" (it is protected such that no one can enter it to remove objects in it), Reish Lakish in Bava Metzia (10b) agrees with Rebbi Yochanan that a Kinyan Chatzer is effective because the Chatzer is considered to be an extension of the owner's hand. Since a Nochri has a hand, he also has a Kinyan Chatzer. The Gemara here, which implies that a Kinyan Chatzer is effective for a Nochri, must be referring to a case in which the Nochri was standing near his closed Chatzer.

(b) The KEHILOS YAKOV (#15, DH v'Nir'eh) answers that even though a Nochri cannot appoint a Shali'ach and cannot be appointed as a Shali'ach, nevertheless Shelichus is possible for a Nochri where no appointment is necessary. Therefore, his Chatzer which is automatically his Shali'ach without any need to be appointed, is able to acquire for its owner objects placed into it. (See also Insights to Avodah Zarah 71:2.) (D. Bloom)

13b

QUESTION: The Beraisa teaches that one who buys pieces of silver from a Nochri and finds images of idols on them may return them if he did not yet give money for them, even though he did Meshichah with them. However, if he gave money for them and did Meshichah with them, then the Kinyan is valid and he may not return them; he must throw the silver into the sea.

The Gemara asks that since we see from the first case of the Beraisa that giving money effects the Kinyan, and not Meshichah, why does the Beraisa mention Meshichah at all in the second case? It is the giving of money that makes the Kinyan, and Meshichah is irrelevant!

Ravina answers that the Beraisa maintains that Meshichah *is* an effective Kinyan when a Jew acquires property from a Nochri. The first case of the Beraisa refers to a case in which the Jew neither gave money nor performed an act of Meshichah, and thus no Kinyan took effect.

How can Ravina say that in the first case of the Beraisa no Meshichah was performed? The Beraisa clearly states that the Jew *did* perform an act of Meshichah!

ANSWER: TOSFOS (14a, DH v'Reisha) answers that the word "Mashach" in the Beraisa must be read with the earlier words, "Im Ad she'Lo [Nasan Ma'os]" -- "if he has not yet [given money]." The Beraisa is saying, "If he has not yet given money, *and he also has not yet* performed Meshichah," then he may return the silver to the Nochri.