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1) DEALINGS WITH NOCHRIM

(a) (Rava): Nochrim that are paid to fertilize fields with their animals, inside the Techum (outskirts) of the city - one may not buy animals from them.

1. Question: Why not?
2. Answer: Animals of Yisraelim get mixed with their animals.

(b) (Rava): Nochrim that fertilize fields outside the Techum - one may buy animals from them.
(c) (Ravina): If the owners are chasing after them even outside the Techum is forbidden.
(d) (Rava): A Yisrael that testifies for a Kusi (without the Kusi requesting him to - the Gra deletes this from the text) in a Kusi court against a Yisrael - we excommunicate him.

1. Question: Why?
2. Answer: Because they make someone pay according to 1 witness.

(e) This only applies to 1 witness, not to 2 witnesses.

1. Even by 1 witness, this is only in village courts - but government courts do not make someone pay according to 1 witness, they only require him to swear, as we do.

(f) Question (Rav Huna): A great man, whom people rely on as 2 witnesses - Do we say that, since they make someone pay according to his testimony, he may not testify?

1. Or - since he is a great man, he cannot evade them, so he may testify?
2. This question is unsettled.

(g) (Rav Ashi): A Yisrael sold land, bordering on a Yisrael's land, to a Nochri - we excommunicate him.
(h) Question: Why is this?

1. Suggestion: Because of the law of a neighbor (the neighbor should have first option to buy the land).
2. Rejection: This law does not apply to one who buys from or sells to a Nochri.

(i) Answer: Rather, because he brings damage to the Yisrael;

1. He is excommunicated until he accepts to pay for any damage that will result.

(a) (Mishnah): If tax collectors or Listim (thieves) took Reuven's donkey or garment and gave him a different one, Reuven may keep it, because the owner despairs.
(b) One who saves property from a river, troop (some texts - Nochrim) or robbers - if the owner despaired, he may keep it.

1. Similarly - a swarm of bees - if the owner despaired, the finder may keep it.

(c) R. Yochanan ben Brokah says, a woman or child is believed to say that a swarm of bees passed this way; the owner may enter his neighbor's field to save them;

1. If he damaged, he pays for the damage.
2. He may not cut off the branch on which they made their hive, intending to pay for it;

i. R. Yishmael, son of R. Yochanan ben Brokah permits this.

(d) (Gemara - Beraisa) [Version #1: If a tax collector or thief took Reuven's donkey or garment and gave him a different one, Reuven must return it to the original owner.

1. The Tana holds that one does not acquire through despair alone.]

(e) [Version #2: If Reuven wants to return it, he returns it to the original owner.

1. Question: Why is this?
2. Answer: The Tana holds that one acquires through despair alone - but one who does not want others' property, he returns it to the original owner.]

(f) [Version #1 (Mishnah): He may keep it because the owner despairs.
(g) (Rav Asi): This is only by Nochri thieves, not by Yisrael thieves.

1. By Yisrael, he does not despair - he intends to recover his loss in Beis Din.

(h) Objection: (Rav Yosef): To the contrary!

1. Nochri courts use physical force to carry out their rulings, the victim of a Nochri thief does not despair;
2. Beis Din merely tells people that they must pay, the victim of a Yisrael thief despairs.]

(i) [Version #2 (Mishnah): One who saves from Nochrim (some texts - a troop) or thieves - if (we know that) the owner despaired, he may keep it.

1. Inference: Normally, we assume that the owner did not despair.

(j) (Rav Asi): This is only by Nochri thieves, not by Yisrael thieves.

1. Nochri courts use physical force to carry out their rulings, the victim does not despair;
2. Beis Din merely tells people that they must pay, the victim despairs.]

(a) (Mishnah): Hides of a (covert) thief can receive Tum'ah through his intention (to use them without further improvement - he is considered the owner), of an open robber cannot.

1. R. Shimon says, hides of an open robber can receive Tum'ah through his intention, of a thief cannot, because the owner did not despair.

(b) (Ula): The argument is when we have not heard whether the owner despaired - but if we know that he despaired, all agree that one acquires through despair alone.
(c) (Rabah): They argue even when we know that he despaired.
(d) Question (against Rabah - Abaye - Mishnah): (They do not receive Tum'ah) because the owner did not despair.

1. Inference: Had the owner despaired, it would belong to the thief!

(e) Answer (Rabah): The Mishnah means because despair of the owner has no effect.
(f) (Mishnah): If tax collectors or Listim (...returned a different donkey, he may keep it, because the owner despaired).
(g) Question: Who is the Tana of the Mishnah?

1. If as Chachamim - by (a tax collector, who is) an open robber, why do we assume that the owner despaired?
2. If as R. Shimon - by Listim (thieves), why do we assume that the owner despaired?

(h) Answer #1: According to Ula, we can explain as both Tana'im - the case is, we heard that the owner despaired.

1. But Rabah holds that they argue even when we heard (each Tana holds that despair does not help in 1 case) - how can he answer?

(i) Answer #2: It is as R. Shimon - the Mishnah speaks of Listim Mezuyan (armed robbers).

1. Question: But it already speaks of (a tax collector, who is) an open robber!
2. Answer: It lists 2 kinds of open robbers.

(j) (Beraisa): A thief, robber, or extortionist - what he makes Hekdesh, Terumah or Ma'aser takes effect.
(k) Question: Who is the Tana of the Beraisa?

1. If as Chachamim - by an open robber, why can he make it Hekdesh (or Terumah...- we do not assume that the owner despaired!)?
2. If as R. Shimon - by a thief, why can he make it Hekdesh?

(l) Answer #1: According to Ula, we can explain as both Tana'im - the case is, we heard that the owner despaired.

i. But Rabah holds that they argue even when we heard - how can he answer?

(m) Answer #2: It is as R. Shimon - the thief of the Mishnah is an armed robber (he is called a thief because he hides from people).

1. Question: But it already speaks of an open robber!
2. Answer: It lists 2 kinds of open robbers.

(n) Answer #3: The Mishnah is as Rebbi.

1. (Beraisa - Rebbi): A thief is as an open robber.

1. We hold, Rebbi means as an open robber according to R. Shimon (we assume that the owner despaired).

(a) (Beraisa - Rebbi): A thief is as an open robber.
(b) Question: Does he mean, as an open robber according to Chachamim (who does not acquire), or as an open robber according to R. Shimon (who acquires)?
(c) Answer #1 (Mishnah): If tax collectors or Listim (...returned a different donkey, he may keep it).

1. Question: As whom is the Mishnah?
2. If as Chachamim - by an open robber, why may he keep it?
3. If as R. Shimon - by thieves, why may he keep it?
4. Answer #1: If Rebbi means as an open robber according to R. Shimon - we can say, it is as Rebbi.

i. But if Rebbi means as an open robber according to Chachamim - as whom is the Mishnah?

(d) Rejection (and Answer #2 to question 1): It is as R. Shimon - the Mishnah speaks of Listim Mezuyan.

1. Question: But it already speaks of (a tax collector, who is) an open robber!
2. Answer: It lists 2 kinds of open robbers.

(e) Answer #2 (Beraisa): A thief, robber, or extortionist - what he makes Hekdesh, Terumah or Ma'aser takes effect.

1. Question: Who is the Tana of the Mishnah?
2. If Chachamim - by an open robber, why can he make it Hekdesh?
3. If R. Shimon - by a thief, why can he make it Hekdesh?
4. Answer #1: If Rebbi means as an open robber according to R. Shimon - we can say, it is as Rebbi.

i. But if Rebbi means as an open robber according to Chachamim - as whom is the Mishnah?

(f) Rejection (and Answer #2 to question 1): It is as R. Shimon - the thief of the Mishnah is an armed robber.

1. Question: But it already speaks of (a tax collector, who is) an open robber!
2. Answer: It lists 2 kinds of open robbers.

(g) Answer #3 (Rav Ashi): Rebbi taught - the Mishnah refers not only to land - even if he stole an animal to work with it, they must return it, on account of their father's honor (so people will not be reminded of the theft).

1. Inference: If not for the honor of their father, they would be exempt!
2. It must be, Rebbi means as an open robber according to R. Shimon.

(a) (Mishnah): Similarly, if a swarm of bees...
(b) Question: Why does it say 'similarly'?
(c) Answer: To teach that even by bees, which one only owns mid'Rabanan (he may keep them only if (we know that) the owner despaired).

1. One might have thought, since he only owns them mid'Rabanan, we may assume that the owner despaired - we hear, this is not so.

(d) (Mishnah - R. Yochanan ben Brokah): A woman or child is believed...
(e) Question: Women and children are invalid witnesses!
(f) Answer (Rav Yehudah): The case is, the owner was chasing after them; the woman or child innocently (i.e. unaware of the consequences), said that the swarm passed this way.
(g) (Rav Ashi): Speaking innocently is only valid in testimony that a man died (to permit his wife to remarry).
(h) Question (Ravina): But it is believed regarding a swarm of bees!
(i) Answer (Rav Ashi): That is different, since it is only owned mid'Rabanan.
(j) Question: Is it not believed for mid'Oraisa matters?!

1. (Rav Yehudah): A man innocently recounted how his father undressed him and immersed him in order to eat Terumah at night;

i. (R. Chanina): He also mentioned that his friends avoided touching him, and they called him 'Yochanan, who eats Chalah';
ii. Based on this, Rebbi established him as a Kohen!

(k) Answer: He only authorized him to eat Terumah mid'Rabanan.
(l) Question: But we do rely on speaking innocently for mid'Oraisa matters!

1. (Rav Dimi): A case occurred, a child innocently recounted how he was captured with his mother, and was constantly with her - based on this, Rebbi permitted her to a Kohen.

(m) Answer: Chachamim were lenient regarding a captured woman (because mid'Oraisa, Chazakah permits her to a Kohen).
(n) (Mishnah): He may not cut the branch...
(o) (Beraisa - R. Yishmael, son of R. Yochanan ben Brokah): The following are enactments of Beis Din:

1. If Reuven's bees settled on a branch in Shimon's field, Reuven may cut off the branch to retrieve his bees and pay for the branch;
2. (Reuven was carrying a barrel of honey and it broke; Shimon was carrying a barrel of wine, which is cheaper than honey.) Shimon should spill out his wine to save the honey; Reuven pays him the value of his wine.
3. (Reuven's donkey, which was carrying flax, died; Shimon's donkey was carrying wood, which is cheaper than flax.) Shimon should dump his wood and load the flax on his donkey; Reuven pays him the value of his wood.

i. Yehoshua made the inheritance of Eretz Yisrael conditional on these enactments.

(a) (Mishnah): Reuven recognized his vessels and Seforim by Shimon; there were rumors that Reuven was robbed. Shimon swears how much he paid, Reuven pays this and takes them back from Shimon.

1. If not for the rumors, Reuven cannot force Shimon to sell them - perhaps he sold them to the one who sold them to Shimon!

(b) (Gemara) Question: Why should we rely on the rumors - perhaps Reuven sold them, and he started the rumors!
(c) Answer (Rav Yehudah citing Rav): The case is, people were in Reuven's house at night; Reuven shouted that his vessels were stolen.
(d) Question: Perhaps this was just a pretext to buy them back!
(e) Answer (Rav Kahana citing Rav): A tunnel was dug going out from the house; people who had spent the night by Reuven left with bundles of vessels on their shoulders, and people were saying 'Reuven's vessels were stolen!'
(f) Question: Perhaps they only stole vessels, but not Seforim!
(g) Answer (R. Chiya bar Aba): People were saying 'Reuven's vessels and Seforim were stolen!'
(h) Question: Perhaps they only stole small Seforim, but Reuven claims big Seforim!
(i) Answer (R. Yosi bar Chanina): They were saying which Seforim were stolen.
(j) Question: Perhaps they stole old vessels, but Reuven claims new ones!
(k) Answer (Rav): The case is, people were saying 'these are Reuven's vessels and Seforim!' (they recognized that they are new).

1. Question: Can Rav really establish the Mishnah when thieves left through a tunnel?!

i. (Rav): A thief who tunneled into a house and took vessels, he may keep them.
ii. Question: Why is this?
iii. Answer: When in the tunnel, he forfeited his life (the owner was allowed to kill him - one is exempt from paying for anything he does at such a time).

2. Answer: That only applies to a thief who tunnels into a house, for he is prepared to confront and kill the owner (therefore, he forfeits his life) - here, the thieves only left through the tunnel.

(l) (Rava): The above answers refer to a man who sometimes sells his vessels - if he does not, we do not require that people see so precisely what was stolen.
(m) Question: Perhaps he needed money and sold his vessels (even though he normally does not)!
(n) Answer (Rav Ashi): There are rumors that he was robbed (so we are not concerned, perhaps he sold them).