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Beitzah 40

1) THE "TECHUM" OF AN ITEM DEPOSITED WITH ANOTHER PERSON FOR SAFEKEEPING

QUESTION: The Gemara discusses the question of whose Techum the item (such as fruit) of one person follows when the owner gave the item to someone else for safekeeping ("ha'Mafkid Peros Etzel Chaveiro"). Rav says that it follows the Techum of the person watching it, while Shmuel says that it follows the Techum of the owner. Shmuel's reasoning for why the fruit follows the Techum of the owner is because a person does not want his fruit to have somebody else's Techum on Shabbos or Yom Tov.

However, the Mishnah earlier (37a) discusses the case of an owner of an animal who gives his animal to a shepherd on Yom Tov. The Gemara says that the animal acquires the Techum of the shepherd. Similarly, the Mishnah (37a) states that when a person borrows a utensil from his friend on Erev Yom Tov, the utensil acquires the Techum of the borrower. We know that a borrower (Sho'el) also has a status of a Nifkad, someone who is looking after the object. If so, that case should be the same as the case the Gemara here is discussing. Why, then, does Shmuel say that an item deposited with a Nifkad follows the Techum of the item's owner? The Mishnah says that it follows the Techum of the Nifkad, the person watching it! How can Shmuel argue with the Mishnah?

ANSWER: In both of the earlier cases -- the animal deposited with the shepherd, and the utensil in the possession of the borrower -- the item will be moving around with the person with whom it was deposited. The shepherd will be taking the animal in order to graze in the grass, and the borrower will be taking the utensil wherever he needs to use it. In such cases, when the person watching the item is expected to walk around with it, then it is clear that the owner intended that his item acquire the Techum of the person watching it (see Rashi here, DH k'Raglei ha'Ba'alim). In the case of our Mishnah and in the argument between Rav and Shmuel, the subject is an item such as fruit, which one is merely guarding and is not expected to take it anywhere. In such a case, the owner does not want to relinquish his own Techum from the fruit, because he might want to take the fruit home on Shabbos or Yom Tov and eat it. The owner does not expect that the Nifkad will want or need to take the fruit with him anywhere, and therefore, in order to retain the option of taking back the fruit on Shabbos or Yom Tov, he does not have in mind that his fruit should have the Techum of the Nifkad.

Rav, on the other hand, compares this case to the cases of the shepherd and the borrower, because there is a possibility that the Nifkad will have to move the fruit and take it with him to some other place. Since the owner has no plans to go get the fruit on Shabbos himself, we assume that he lets the fruit take on the Techum of the Nifkad. In a case where it is known that the owner wants to go get the item on Shabbos, then even Rav agrees that it follows the Techum of the owner (as in the cases discussed later in the Gemara).

40b

QUESTION: Rebbi argues with the Beraisa concerning the definition of animals that are "Midbariyos." The Gemara asks that Rebbi seems to contradict himself. Here, he is making a statement implying that he holds of the concept of Muktzah (since that is the subject of the Mishnah discussing Behemos Midbariyos). Elsewhere, though, Rebbi implies that he agrees with Rebbi Shimon, who does not hold of the concept of Muktzah, by saying that Rebbi Shimon agrees to the concept of Muktzah only in the case of Grogeros and Tzimukim (figs and raisins set out to dry which a person definitely intends not to use on Yom Tov). In one of the Gemara's answers, the Gemara suggests that even though Rebbi Shimon only agrees to the concept of Muktzah in the case of Grogeros and Tzimukim, Behemos Midbariyos are comparable to Grogeros and Tzimukim.

The reason why Rebbi Shimon agrees to the concept of Muktzah in the case of Grogeros and Tzimukim, as Rashi explains, is because those items meet two conditions necessary for qualification as Muktzah. First, one *actively excluded* them ("Docheh b'Yadayim") from use on Yom Tov, by taking them to the roof. Second, when he took them to the roof he made the fruit *unfit for use* on Yom Tov (since when the fruits begin to dry out they become inedible). Rashi says that Behemos Midbariyos, too, are like Grogeros in this regard because one actively excluded them from use on Yom Tov (see also Rashi in Shabbos 45b).

In what way did one actively exclude ("Maktzeh b'Yadayim") the Behemos Midbariyos from use? In the case of Grogeros and Tzimukim, one placed the fruit on the roof, thereby actively excluding the from use. Here, though, what action did one do to the animals to show that he had no intention to use them on Yom Tov?

ANSWERS:

(a) The ME'IRI explains that the Gemara is referring to Midbariyos that a person *sent away from the town*. Apparently he did not want them to sleep there (for example, they smell bad).

(b) Perhaps Rashi is utilizing the logic he presented earlier (24b, DH Im Yesh). Rashi there says that Rebbi Shimon agrees to the concept of Muktzah in the case of Muktzah which is attached to the ground (such as fruits on a tree), because the fact that the person did not pick the fruit before Yom Tov indicates that he actively excluded them from being used on Yom Tov. Consequently, even if the fruit falls from the tree on Yom Tov, he may not eat it for it is Muktzah.

The only situation where Rebbi Shimon argues with Rebbi Yehudah and says that an item which is Muktzah Machmas Isur is permitted is in a case such as that of a candle that was aflame during Bein ha'Shemashos. Even though one purposefully left it kindled before Shabbos or Yom Tov, which might indicate that he excluded the oil of the candle from use on Shabbos or Yom Tov, Rebbi Shimon still permits the oil to be used and it is not Muktzah. The reason the person did not extinguish the candle before Shabbos was because he wanted it to give light during the night. It is not Muktzah because he could not extinguish it before Bein ha'Shemashos -- for he wanted it to be lit. In contrast, something that was Asur to take at the beginning of Shabbos, which could have been prepared before Shabbos and was not is Muktzah even according to Rebbi Shimon. (This is what the Gemara means in Shabbos 47b, that Rebbi Shimon only permits Muktzah Machmas Isur if one is "Yoshev u'Metzapeh" for it to become Mutar.)

The same is true concerning the Behemos Midbariyos. It involves considerable effort and trouble to obtain the animals on Yom Tov (as Rashi says in Shabbos 45b). Since it is very difficult to obtain the animals on Yom Tov, one should have arranged to get them before Yom Tov if one wanted to use them on Yom Tov. The fact that he did not arrange to get them before Yom Tov shows that he is actively excluding them from use on Yom Tov.

The other opinions in our Gemara, which hold that Behemos Midbariyos are not like Grogeros and Tzimukim, hold than even though it involves considerable effort to get the animals on Yom Tov, it is still permitted to get them on Yom Tov. Therefore, the fact that one did not make sure to get them before Yom Tov does not show that he actively excluded them from being used. In the case of fruit that is attached, Rebbi Shimon agrees that the fruit is Muktzah because there is no possible way to get the fruit on Yom Tov, and by not getting the fruit before Yom Tov one shows that he intended to exclude them from use on Yom Tov.