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Bava Kama 95
1) [line 4] MARISH - a beam
2) [line 5] BIRAH - a large building
3) [line 11] RO'IN OSAH K'ILU HI SHUMA ETZLO B'CHESEF - we view it (the
addition/improvement to the stolen item, such as the fleece that was
sheared) as though it was assessed in his possession for its money value
(and he must pay back the value of the fleece that it was worth at the time
that he stole it, and not its present value)
4) [line 26] KARKA EINAH NIGZELES
(a) A thief becomes liable for a stolen item (such that if it is destroyed,
he must reimburse the owner) when he makes a Ma'aseh Kinyan on the item (a
formal Halachically-binding act denoting a change in ownership). Similarly,
when he makes a Ma'aseh Kinyan on the item, he acquires it to the extent
that if the owner gives up hope of ever getting it back, and the object
becomes "changed" (Shinuy) from its original state, he need not return the
object itself but rather its value. However, with regard to plots of land,
slaves and legal documents (Shetaros), there are Tana'im who learn from the
verses that these laws of theft do not apply. In that sense, they cannot be
Halachically stolen (Bava Kama 117b).
(b) Similarly, those Tana'im maintain that the negative commandment of Lo
Sigzol does not apply to the theft of land for it cannot be Halachically
stolen. (However, there are some Rishonim who explain that the exemption
from the Lav of Lo Sigzol is not connected to the verses that exclude land
from the Halachic aspects of Kinyanei Gezeilah. Rather, it is simply
impossible to grasp land and take it out of the possession of its owner,
which is the defining factor of Lo Sigzol. It is not a movable item that can
be taken away from its owner. According to these Rishonim, sometimes the Lav
of Lo Sigzol applies even with regard to land, and all the more so with
regard to slaves and legal documents -- see Insights to Sukah 31a.)
5) [line 28] LITZBO'A LO ADOM V'TZAV'O SHACHOR - [a person gave his wool to
a professional dyer] to dye it red for him, and he dyed it black
6) [line 42] MECHURARIN - (lit. freed) lands that do not have a lien on them
7) [line 43] PEIROS - the produce of a field. Our Gemara refers to a case of
a Gazlan who worked and harvested the stolen field. When the original owner
reclaims the field, he is also entitled to take the produce that the Gazlan
harvested. If the produce no longer exists (e.g. it was used up, or stolen),
then the original owner may collect its value only from the Nechasim Benei
Chorin of the Gazlan.
8) [line 43] SHEVACH PEIROS - added value that a buyer invests in a field,
or the added value of the fruits that grow in a field. Our Gemara refers to
a case of a Gazlan who sells a stolen field to a buyer, and that buyer
invests in the field and reaps its fruits. The original owner then reclaims
the field and fruits from the buyer, and the buyer is entitled to demand
from the Gazlan compensation for the field and for the fruits. However, the
buyer may collect compensation for the field from Nechasim Meshu'abadim, but
he may collect compensation for the fruits only from Nechasim Benei Chorin.
(The reason for this is "Mipnei Tikun ha'Olam" -- to protect other buyers.
In this case, since there is no limit to the amount of fruit that the
original buyer might reap from the field, if the original buyer was entitled
to collect the value of his fruits from the Nechasim Meshu'abadim of the
Gazlan, then other buyers who bought fields from the Gazlan would have no
way of knowing how much of a lien might be upon the fields that they are
buying. -Rashi, Kesuvos 51b)
9) [line 44] GET CHOV SHE'EIN BO ACHRAYUS - a legal document of debt in
which Achrayus (see below, entry #11) was not written
10) [line 45] KESUVAS ISHAH SHE'EIN BAH ACHRAYUS - the Kesuvah of a woman in
which Achrayos (see below, entry #11) was not written (for an explanation of
the Kesuvah, see Background to Bava Kama 7:21)
11) [line 46] ACHRAYUS LAV TA'US SOFER
(a) "Achrayus" is a way of insuring the purchase of land or the repayment of
a debt. A person who gives or sells a field to someone else, or who signs a
document of debt (this includes a Kesuvah) can guarantee the field or
document by obligating himself in Achrayus. If it is determined afterwards
that the seller did not have the right to sell the land (for example, if the
land was stolen, or if there was a lien on the property and it was claimed
by a creditor as repayment for a loan), the assets of the seller are made
available to the buyer to collect the value of the property that was removed
from his possession. For example, if Reuven sold a field to Shimon with
Achrayus, and Reuven's creditor demands and confiscates the field from
Shimon, Shimon has the right to collect its value from Reuven (or from other
people who bought land from Reuven after the time of Shimon's purchase). If
the field was purchased without Achrayus, Shimon has no legal claim against
Reuven whatsoever, and he is not compensated at all for his loss (Bava Basra
44b).
(b) There is an argument among the Tana'im as to whether a seller
automatically accepts upon himself Achrayus whenever he sells a property or
obligates himself to pay someone (e.g. by writing a document of debt or a
Kesuvah) with a Shtar (a legal document), even if it did not state in the
Shtar that he accepts upon himself Achrayus for the sale. Rebbi Yehudah
states that "Achrayus Ta'us Sofer;" the sale or debt *does* have Achrayus
and the scribe simply forgot to include it in the Shtar. Rebbi Meir rules
that we follow the plain reading of the Shtar, and therefore there is no
Achrayus (Bava Metzia 13b).
(c) The Gemara (ibid. 15b) concludes that even if Achrayus was not written
in the Shtar, the seller *is* obligated in Achrayus unless he made an
explicit condition to be absolved of Achrayus. With regard to a person who
gives a gift, since most people do not accept Achrayus upon themselves when
they give a gift, the Gemara concludes that the benefactor is *not*
obligated in Achrayus unless he made an explicit condition that he should be
obligated.
95b---------------------------------------95b
12a) [line 1] NECHASIM MESHU'ABADIM - property with a lien on it, which has
in turn been sold
b) [line 2] NECHASIM BENEI CHORIN - (lit. properties that are free) fields
that do not have a lien on them
13) [line 19] L'MECHETZEH, LI'SHELISH UL'REVEI'A - for half [of the profit],
for a third, or for a fourth. This refers to the prevalent practice of the
region for the owner of an animal to give his animal to someone who will
cultivate its fleece, and to receive a percentage of the fleece in return
for his work, and to give a percentage of the fleece to the owner in return
for the use of his animal.
14) [line 31] AIDI D'NASIV REISHAH "YALDAH" - since it was taught in the
beginning of the Mishnah (the Reisha) a case of "Yaldah," a cow that gave
birth
15) [line 35] KI HAVEINAN BEI RAV KAHANA - when we were in the Yeshivah of
Rav Kahana
16) [line 37] KI MESALKINAN LEI - when we remove him (the Gazlan, from the
stolem iten, and pay him a percentage of the Shevach that he caused the
stolen item to produce)
17) [line 40] BECHOR L'PASHUT
(a) The first viable male born to a father inherits a double portion of the
estate upon his father's death (Mishnah Bechoros 46a). For example, if there
are two brothers, the money is divided into three, and the Bechor receives
two thirds; if there are three brothers, the money is divided into four, and
the Bechor receives two quarters.
(b) A Bechor only receives a double portion from the assets that were in the
possession of the father at the time of death, as it states, "Ki Es
ha'Bechor Ben ha'Senu'ah Yakir, Lases Lo Pi Shenayim *b'Chol Asher Yimatzei
Lo*." - "He must recognize the first-born son of the hated wife to give him
a double portion *of everything in his possession* (lit. that is found with
him)." (Devarim 21:17). Assets that will come into the possession of the
estate after the father's death are termed "Ra'uy," i.e. "expected [to come
into his possession]."
(c) When the Bechor caused the property to produce or increase before it was
divided among the brothers, he does *not* receive a double portion of that
produce. Rather, he must pay back the Pashut's (non-Bechor's) share of that
produce. However, he may pay back with money, and he does not need to pay it
back with land.
(See also Background to the Daf to Bava Kama 43:3, regarding YERUSHAS BECHOR
B'SHEVACH SHE'SHIBECHU NECHASIM L'ACHAR MISAS AVIHEM - A first-born son does
not receive a double portion of the appreciation of property after the
father's death.)
18) [line 41] BA'AL CHOV L'LOKE'ACH - When a lender is owed money (and has a
deed of debt), he may collect his debt from the land that the borrower owned
at the time of the loan and that he later sold to buyers. If the buyers
worked the land and caused it to produce fruits, the lender (who collects
the land with the fruits) must compensate the buyers for that produce. He
need not give land, though, but may pay back with money.
19) [line 41] BA'AL CHOV L'YESOMIM - When a lender collects his debt from
the heirs of the borrower, if the heirs worked the land and caused it to
produce fruits, the lender (who collects the land with the fruits) must
compensate the heirs for that produce. He need not give land, though, but
may pay back with money.
20) [line 45] SHEVACH HA'MAGI'A LA'KESEFAYIM - produce (of land) that
reaches [the height of] the shoulders (i.e. it is finished produce and is
ready to be harvested)
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