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Beitzah 37

37b

OPINIONS: The Mishnah (37a) states that if one gives an animal to his son or to a shepherd on Yom Tov, the animal's Techum follows that of the owner. The Gemara cites a Beraisa which seems to contradict this, saying that the animal handed over to the shepherd on Yom Tov has the Techum of the shepherd and not of the owner. The Gemara answers that the Beraisa is referring to a case where there is only one shepherd in the town, and therefore the animal gets the Techum of the shepherd. Our Mishnah, though, is referring to a case where there are two shepherds, in which case the Techum does not follow that of the shepherd but that of the owner. What difference does it make whether there is one shepherd or two?

(a) RASHI and the BA'AL HA'ME'OR give a straightforward explanation. When the Gemara says that our Mishnah is discussing a case of two shepherds in the town, it means that the owner has an option of sending his animal to one of the two shepherds. Since, before Yom Tov, it was not known to which shepherd he would send his animal on Yom Tov, the animal is not considered to have been in the charge of the shepherd at the onset of Yom Tov, and therefore it retains the Techum of the owner. In contrast, when there is only one shepherd in the town, it is known before Yom Tov that the owner will be sending his animal to that shepherd, and thus the animal's Techum follows that of the shepherd. The Yerushalmi here supports this explanation. (Bereirah does not apply here, since the owner made no prior condition that the Techum of the animal should be the same as that of the person to whom he eventually gives the animal.)

(b) However, the RIF implies that when the Gemara says that our Mishnah is discussing a case of two shepherds, it means that the animal was actually given into the care of two shepherds. In such a case, the animal's Techum is that of the owner. (The Ra'avad, however, in his first explanation, says that the Rif might also be explaining like Rashi.) What is the difference between giving the animal to one shepherd and giving it to two? The RA'AVAD (in his second explanation) says that the Mishnah's case is when the owner gave the animal to two shepherds and said that any one of them should watch his animal. Since it was not known, before Yom Tov, which shepherd would take responsibility for watching the animal, the animal retains the Techum of the owner and does not get the Techum of either shepherd.

However, why is this not a case of Bereirah? Bereirah here should work, because it is only a matter of an Isur d'Rabanan (the Halachah of Techumim being a d'Rabanan)! As such, when one shepherd, on Yom Tov, decides to watch the animal, retroactively the animal should acquire his Techum. (In this case, since the owner specified that "one of two people should get the animal," it is as though it was specified before Yom Tov that the Techum of the animal should follow that of the preson who eventually gets the animal to watch).

The Ra'avad explains that at this stage, the Gemara is following the opinion of Rebbi Yochanan who holds that Bereirah does not work, even in a Halachah d'Rabanan. Accordingly, the difference that the Gemara establishes between one shepherd and two shepherds is only according to Rebbi Yochanan. According to the Halachah, though, Bereirah does work, and thus even if the owner gave the animal to two shepherds on Erev Yom Tov, the animal acquires the Techum of whichever shepherd later decides to watch it.

The RAN suggests that even if Bereirah normally works, in this case it cannot work, because the owner did not choose which of the two shepherds he wanted to watch his animal. The fact that he made no indication which shepherd should watch it shows that he does not want it to lose his Techum.

(c) The RAMBAN explains that the Rif means that the owner gave it to two shepherds so that *both* should watch it (and not so that only one of the two should watch it). On Erev Yom Tov, only one of the shepherds did an act of Meshichah to formally accept the job. The second shepherd accepted the job only on Yom Tov. On Erev Yom Tov, though, the owner did not intend for the animal to acquire the Techum of the shepherds, because he was not happy that only one shepherd was watching it. He wanted both shepherds to watch it, and therefore he kept it in his custody and it retained his Techum.

(d) The RAMBAM (according to the Magid Mishnah) understands the Rif as saying that if the owner gives it to two shepherds, even if he gives it to *both* before Yom Tov, he does not want the animal to acquire their Techum. (This is also the way the Ba'al ha'Me'or understands the Rif.) The Rambam might mean that since two people (the shepherds) might have two different Techumim, the area in which the animal may walk might become limited if it follows both of their Techumim, and it will not be able to graze contentedly. Therefore, the owner intends to prefers for the animal to take on neither of the Techumim of the shepherds, but rather to remain with the Techum of the original owner so that it will have a full Techum in which to roam and graze. (See the Magid Mishnah for an explanation of what the Gemara means when it says "Deika Nami" according to this interpretation.)

QUESTION: The Mishnah (37a) states that if one gives an animal to his son or to a shepherd on Yom Tov, the animal's Techum follows that of the owner. The Gemara cites a Beraisa which seems to contradict this, saying that the animal handed over to the shepherd on Yom Tov has the Techum of the shepherd and not of the owner. The Gemara answers that the Beraisa is referring to a case where there is only one shepherd in the town, and therefore the animal gets the Techum of the shepherd.

RASHI explains that "since everyone in the town gives their animals to this shepherd, therefore the seller and the buyer also want the animal's Shevisah to be with the shepherd."

Why does Rashi mention a "seller" and "buyer" here? The Beraisa at this point is discussing the owner of animal who gives his animal to the care of a shepherd on Yom Tov! What does this have to do with a seller and a buyer? Indeed, we find that Rashi on the Rif omits the words "seller" and "buyer!" (MAHARAM SHIF)

ANSWERS:

(a) The MAHARAM SHIF answers that it is clear from the ROSH that there was another Girsa in this Beraisa. The Beraisa is not discussing two cases (as in our Girsa), a case of an animal that was sold and a case of an animal that was given to a shepherd, but rather the Beraisa is discussing only one case -- if one buys an animal on Erev Yom Tov, even though it only comes into his possession on Yom Tov, it acquires the Techum of the shepherd (that is, this Girsa omits the words "Harei Hi" until "Ela b'Yom Tov"). The DIKDUKEI SOFRIM (#30) records such a Girsa (even though the Acharonim who comment on the Rosh assume that there is a mistake in the Girsa in the Rosh).

Rashi evidently had that Girsa. Therefore he writes that when there is only one shepherd, both the seller and the buyer have in mind to give it to that shepherd, and therefore it acquires the shepherd's Techum.

Why, though, does the Beraisa discuss a case of an animal that was bought before Yom Tov and delivered on Yom Tov? If it wants to teach the Halachah concerning a case when there is one shepherd in the town, then it should teach the case that appears in our Girsa of the Beraisa -- the case of an owner who gives his animal to a shepherd on Yom Tov!

The answer is that the Beraisa, by conveying this Halachah with the case of a seller and a buyer, is teaching that there is only one shepherd in the town (and that is why the animal acquires the Techum of the shepherd). In such a case, since all the townspeople give their animals to the shepherd, the seller and buyer also have unanimous intention to give it to him. Even though the buyer paid for the animal before Yom Tov (and thereby mid'Oraisa he was Koneh the animal, because mid'Oraisa money effects a Kinyan -- "Ma'os Konos"), he is not Koneh it completely (because the Rabanan required that an act of Meshichah be done). Therefore, on Erev Shabbos, the animal is actually in the custody of both the seller and the buyer on Erev Yom Tov. Hence, the animal's Techum depends on the intention of both the seller and buyer. The only way that they could have unanimous intention for the animal to have a single Techum is if there is only one shepherd in the town, and both therefore use the same shepherd. The Beraisa says that since they both intend to give it to the same shepherd, it acquires the Techum of the shepherd.

QUESTION: Rav and Shmuel argue about an animal that is owned by two people on Yom Tov. Rav maintains that even though Bereirah works, this animal may not be taken out of the Techum shared by both owners (even if they slaughter it and divide it). Why does Bereirah not work, if the Isur of Techumim is only d'Rabanan and we rule that Bereirah works for Halachos that are d'Rabanan? The Gemara answers that one side of the animal is Yonek, nurtures, from the flesh and blood on the other side, so that each person's portion of the animal affects every part of the animal.

The Gemara challenges Rav's opinion by asking that if he is concerned that each person's portion of the animal nurtures from part of the other person's portion, then it should also be Asur because of Muktzah, and yet Rav is not concerned for that problem!

Why is the other person's portion of the animal Muktzah to the second owner? Rashi explains that it is Muktzah because each person took his mind off of the other person's portion.

Just because someone else owns something, why does this mean that one takes his mind off of it? From where did Rashi learn that? Even when someone else owns something, a person does not take his mind off of it, because the owner might give some to him! Why should an item be Muktzah just because someone else owns it?

ANSWERS:

(a) The SHITAH MEKUBETZES and the ME'IRI explain that the case of our Gemara is when each owner planned on bringing his portion to the place where he made an Eruv Techumin, which was outside of the other owner's Techum. Since the other person's portion of the animal will be out of each other's Techum on Yom Tov, each took his mind off of the other person's portion.

However, the Gemara (25a) says that if a Nochri brings an object from outside of the Techum for one Jew, that Jew may not benefit from it on Shabbos, but another Jew is allowed to benefit from it. Why? If it was outside of his Techum, then he took his mind off of it! (RE'AH)

Perhaps the Gemara there is discussing an object owned by a Nochri, in which case the object has no Techum at all and may be taken anywhere on Shabbos. Therefore, the Jew did not take his mind off of it just because it was outside of his Techum. (See also RASHBA who offers another answer for Rashi.)

(b) TOSFOS in the name of RASHBAM explains that the Isur of Muktzah here is that the animal *grew* on Yom Tov. The part that grew should be Asur because it grew on Yom Tov and is Nolad.

Why, though, should it be Muktzah? Even according to Rebbi Yehudah who holds of Muktzah, it should be Mutar because the animal is designated for eating ("Omedes l'Achilah"), and therefore any addition to the animal is considered food as well ("Uchla d'Ifras") and is not Nolad (like the Gemara on Daf 2a)! (RE'AH)

Perhaps the Rashbam understood that "Uchla d'Ifras" does not permit something that is entirely new, but only something that existed prior to Yom Tov and that simply became detached from the food on Yom Tov (like an egg -- see TOSFOS 2a DH Uchla).

(c) The RE'AH explains that the Gemara is asking an entirely different question on Rav's opinion. We find that if an unborn calf extends its leg out of the womb of the mother cow before she is slaughtered, the part of the unborn calf that emerged becomes "Ever Min ha'Chai" and is Asur. The Mishnah in Chulin (68a) says that one may cut off the leg that emerged and eat the rest. This case is the subject of our Gemara here.

The Gemara here is asking why the inner part of the animal is Mutar. The part inside should be Asur because it grew from the part that was outside, which is "Ever Min ha'Chai." The word "Muktzah" here refers to the leg of the animal that protruded out of the womb before the mother cow was slaughtered; it does not refer to the status of the animal on Yom Tov. The Gemara is asking that according to Rav, that case in Chulin should also be Asur.