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Bava Kama, 70

1) "YOU ARE NOT MY LITIGANT"

QUESTION: The Gemara says that an Urchesa (Harsha'ah) in which the sender does not write for his agent, "Go deal [with him] in court and take [the item or money] for yourself," is not a valid Urchesa, because the person from whom the item or money is being claimed can say to the agent, "You are not my litigant" -- "Lav Ba'al Devarim Didi At."

Why can the defendant make that claim? The agent is nevertheless the Shali'ach of the claimant, and we know that "Shali'ach Shel Adam k'Moso" -- the Shali'ach of a person is like the person himself. Why, then, can the defendant say to him that he is not his litigant?

ANSWERS:

(a) The MORDECHAI (#70) writes that RABEINU YOEL asked this question to his father-in-law, the RA'AVAN, who answered that certainly, while the sender is alive, the defendant cannot claim "Lav Ba'al Devarim Didi At." Only if the sender dies can the defendant then claim that the agent is not his litigant, because the item or money being claimed now belongs to the heirs of the original claimant, and the heirs did not make this agent their Shali'ach.

(b) The OR ZARU'A (Piskei Bava Kama #300) answers similarly, with a slight difference. He writes that the Chachamim were concerned that perhaps the sender would die before the agent collected the item, and the item would then fall to the heirs, and the *heirs* would say that they did not appoint this agent as their Shali'ach. Therefore, the defendant can say, "You are not my litigant," out of doubt that *perhaps* the property already fell to the heirs, even if we do not know for sure that the sender died.

It seems that the Mordechai holds that the defendant *cannot* say, "You are not my litigant," if we do not know for sure that the sender died. The PNEI YEHOSHUA, though, says that the Mordechai agrees with the Or Zaru'a and holds that the defendant can make this claim even out of doubt whether the sender died.

Another difference between the Mordechai's answer and that of the Or Zaru'a is that according to the Mordechai, the ability to say, "You are not my litigant," is a Takanah for the sake of the defendant, to protect *his* rights. According to the Or Zaru'a, it is a Takanah for the sake of the heirs, to protect *their* rights.

(c) The ROSH later (9:21) answers that we are concerned that perhaps the sender will cancel the Shelichus in front of witnesses. Therefore, the Chachamim enacted that he write in the document, "Go deal [with him] in court and take [the item or money] for yourself," which makes it as if he has given to the agent the item or money as an unconditional gift and it can no longer be annulled.

(d) The YAM SHEL SHLOMO (#12) writes that the case of our Gemara is where the defendant does not want to give the claimant his item or his money, because the defendant himself has claims against *him* for obligations that the claimant owes to the defendant. Therefore, he can say to the Shali'ach that the Shali'ach is not his litigant, because there are more claims involved that that for which the Shali'ach was sent to collect. (By writing, "Go deal [with him] in court and take [the item or money] for yourself," the Shali'ach is able to collect for the claimant because the Chachamim instituted that the item thereby be considered the Shali'ach's for the purpose of collecting it.)

It seems that, according to the Yam Shel Shlomo, if the defendant has no claims against the one who sent the Shali'ach, but he merely refuses to send the item with the Shali'ach, then he *cannot* say, "You are not my litigant," because "Shali'ach Shel Adam k'Moso."

(e) The PNEI YEHOSHUA answers that in this case, the principle of "Shali'ach Shel Adam k'Moso" cannot apply. The reason is because the defendant can say, "Who knows whether your sender would have made any claim against me? Perhaps he would not have been so brazen to make a claim against me at all!" That is, the defendant claims that the one who sent the Shali'ach is lying, and that he does not have the sender's item at all, and that is why the sender himself is not coming to make a claim against him -- because he is not so brazen as to lie to his face. The Shali'ach, though, is brazen, and thus the principle of "Shali'ach Shel Adam k'Moso" does not apply here.

70b

QUESTION: The Gemara explains that it is possible for "Kam Lei bed'Rabah Minei" to exempt a Ganav who steals and sells the item on Shabbos from paying Arba'ah v'Chamishah, even though there is normally no Melachah involved with selling an item on Shabbos. That case is where the buyer says to the Ganav on Shabbos, "Throw the item into my Chatzer and thereby transfer possession of the item to me." By bringing the item into a Reshus ha'Yachid from Reshus ha'Rabim, the Ganav has done a Melachah d'Oraisa (of Hotza'ah), for which one is Chayav Misah, and thus the Ganav would be exempt from Arba'ah v'Chamishah because of "Kam Lei bed'Rabah Minei."

Why, though, is this considered a valid Mechirah (sale)? There is a rule that if one does any act which the Torah prohibits, that act does not take effect ("... Iy Avid Lo Mehani"). Here, since the act of transfering the item from Reshus ha'Rabim to Reshus ha'Yachid is prohibited by the Torah, that transfer should not be effective in changing the ownership of the item!

ANSWERS:

(a) REBBI AKIVA EIGER writes that the principle of "Iy Avid Lo Mehani" applies only to Isurim d'Oraisa, and not to Isurim d'Rabanan, and if a person does an act which is an Isur d'Rabanan, the act still takes effect. This is implied by the wording of the principle itself, "Kol Milsa d'Amur *Rachmana* Lo Ta'avid, Iy Avid Lo Mehani," implying that if the Rabanan said that it is Asur, one's act will still take effect. Here, the Isur of conducting a sale on Shabbos is an Isur d'Rabanan (lest one come to write on Shabbos), and therefore "Iy Avid Lo Mehani" does not apply. (This will not answer the question fully, though, because there are still Isurim d'Oraisa being done, as in Rami bar Chama's case of a Ganav who picks fruit on Shabbos in exchange for the item.)

(b) The SHACH (CM 208:2) writes that the rule that if one does an act prohibited by the Torah, that act is not effective, applies only to acts such as Temurah where it is not possible to bring about the desired effect in any way other than through doing an Isur. The only way that one can exchange one animal for another that has been sanctified is through an Isur; a sanctified animal cannot be exchanged in a permissible manner at all. In contrast, with regard to a sale that takes place on Shabbos, since it is possible to perform the sale in a permissible manner (i.e. by doing it on a weekday), this rule (that if one does an act prohibited by the Torah, that act is not effective) does not apply.

The KETZOS HA'CHOSHEN questions this answer. The Gemara in Temurah which discusses the rule of "Iy Avid Lo Mehani" challenges Rava's opinion there that the act does not take effect from the Halachah that if one separates Terumah from his fruits before setting aside the Bikurim, the Terumah takes effect. The Gemara asks why should the Terumah take effect, if it is an Isur (Lo Ta'aseh) to separate Terumah before setting aside Bikurim? This is the Gemara's question there. The Ketzos ha'Choshen asks that according to the Shach, the Gemara's question should be no question at all. In the case of separating Terumah before Bikurim, the act of separating Terumah can be done in a permissible manner (i.e. *after* setting aside Bikurim), and that is why it takes effect even when done before Bikurim!

(c) REBBI AKIVA EIGER (Teshuvos 129) and the NESIVOS answer that the rule that "Iy Avid Lo Mehani," the act that was done b'Isur is ineffective, applies only when the Isur that was done will be rectified in some way by saying that the act does not take effect. For example, in the case of Temurah, if his act takes effect, then he will transgress the Isur against making an exchange for a sanctified animal. If his act does not take effect, then he does not transgress the Isur of Temurah. In contrast, in the case of a person who sells an item on Shabbos, even if we say that his act does not take effect and the sale is not valid, nevertheless he will have done an Isur. (For example, in the case of one who picks figs in exchange for the item that he is selling -- even though the sale does not take effect, the Isur of picking fruit on Shabbos is still being transgressed. Similarly, in the case of one who throws the item into the buyer's Chatzer on Shabbos -- even though the sale does not take effect, the Isur of Hotza'ah is still being transgressed. Even when no Melachah is being done on Shabbos, there is an Isur d'Rabanan to conduct any sale on Shabbos (as a preventative measure against writing on Shabbos), and even when the sale does not take effect, one still transgresses the Isur that the Rabanan enacted against doing an *act* of a Mechirah on Shabbos.)

QUESTION: The Gemara explains that it is possible for "Kam Lei bed'Rabah Minei" to exempt a Ganav who steals and sells the item on Shabbos from paying Arba'ah v'Chamishah, even though there is normally no Melachah involved with selling an item on Shabbos. That case is where the buyer says to the Ganav on Shabbos, "Throw the item into my Chatzer and thereby transfer possession of the item to me." By bringing the item into a Reshus ha'Yachid from Reshus ha'Rabim, the Ganav has done a Melachah d'Oraisa (of Hotza'ah), for which one is Chayav Misah, and thus the Ganav would be exempt from Arba'ah v'Chamishah because of "Kam Lei bed'Rabah Minei."

The Gemara says that this is true only according to Rebbi Akiva. Rebbi Akiva holds that "Kelutah k'Mi she'Hunchah Dami;" a person who throws an object from one Reshus ha'Yachid to another Reshus ha'Yachid through an intervening Reshus ha'Rabim has transgressed the Melachah of Hotza'ah, even before the object lands. Thus, he has desecrated Shabbos at the same time that he has effected the sale. According to the Rabanan, though, the buyer is Koneh the item when it enters the airspace of his Chatzer, while the Ganav is Chayav for Hotza'ah only when the item lands on the ground.

This Gemara is problematic in light of what we learned earlier in Bava Kama. We learned (22a) that according to Rebbi Yochanan, who holds that that "Isho Mishum Chitzav," all of the effects that occur as a result of throwing the arrow or lighting the fire are considered to occur from the moment that the arrow was thrown. From that moment, it is considered as if the person did all of the actions that will eventually come about because of the act of throwing (see Insights there).

The NIMUKEI YOSEF (10a of the pages of the Rif) explains this in greater detail. He asks a general question on Rebbi Yochanan's opinion: If we say "Isho Mishum Chitzav" so that a person who lights a fire is considered to have done everything that the fire subsequently accomplishes until it burns out, then when a person lights candles before Shabbos and the candles burn through the beginning of Shabbos, it should be considered as though the person was lighting a fire *on Shabbos*, since every moment that the fire is burning it is as if the person is lighting it! The Nimukei Yosef answers that according to Rebbi Yochanan, everything that the fire eventually does was caused at the *moment* at which the fire was initially lit. Therefore, the act of causing the fire to burn on Shabbos was completed before Shabbos, even thought the actual burning took place later, on Shabbos.

According to this, our Gemara is difficult to understand. Why does the Gemara say that only according to Rebbi Akiva does the Ganav become Chayav Misah at the same moment that he sells the item? Even according to the Rabanan, all of the effects of his act of throwing the item should be considered to be occurring simultaneously, since the Chiyuv Shabbos also occurs at the moment the item leaves his hands, and not just when it lands on the ground!

ANSWER: The KEHILOS YAKOV (#21) answers that even though the person is considered to be *doing* all of the subsequent acts at the time that the item leaves his hands, the *Chiyuv* does not take effect until the Aveirah has been done in actuality. At that moment (when the item lands in a different Reshus), does he then became Chayav for the act that he did originally. When lighting a flame right before Shabbos, the Chiyuv would be for the act of lighting that he did, but since the act was done before Shabbos he is not Chayav. In our case, the Chiyuv occurs at the time that the item lands, which is *after* the item was transferred to the buyer's possession. (I. Alshich)