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Bava Metzia, 38

1) FRUITS THAT ARE ROTTING AWAY

QUESTION: The Tana Kama in the Mishnah states that when an owner of fruit deposits his fruit with a Shomer to watch, the Shomer may not touch the fruit even if the fruit is rotting away. Rav Kahana in the Gemara explains that the reason for this is because "a person prefers a Kav of his own produce more than nine Kavim of his friend's produce," and therefore even if his own produce is rotting, the Shomer may not sell it.

The Gemara earlier (28b), however, teaches that when a person finds a lost animal whose upkeep costs more than what the animal produces, the finder should sell the animal. By selling the animal, he protects the assets of the owner, who otherwise would have to pay for all of the upkeep of the animal when he retrieves it. Here, too, the Shomer who is watching the fruit should sell the fruit to prevent a loss for the owner! Alternatively, if the logic of "a person prefers a Kav of his own produce..." applies here, then it should apply there as well, and the finder should not be allowed to sell the animal! (Acharonim)

ANSWERS:

(a) The MAGEN GIBORIM answers that the ruling of the Gemara earlier, when it says that the finder should sell the animal in order to protect the owner from a loss, is referring only to an *Aveidah*. There is a special Halachah in the laws of Hashavas Aveidah that requires that the finder do whatever he can to prevent the owner from suffering further loss. This Halachah is derived from the verse, "va'Ha'she'voso Lo" (Devarim 22:2), which teaches that the finder must do whatever he can to ensure that the lost object is returned to the owner without the owner incurring any further monetary loss. Since the finder found an animal worth, for example, one Maneh, he must ensure that one Maneh is returned to the owner, and not less. This Gezeiras ha'Kasuv applies only to an Aveidah, though, and not to the case of the Mishnah here, which is a case of a *Pikadon*. In the case of a Pikadon, we apply the logic of "a person prefers a Kav of his own produce..." in lieu of any Gezeiras ha'Kasuv teaching us otherwise.

(b) The RASHASH answers that the Mishnah later (40a) teaches that when an owner of fruit deposits his fruit with a Shomer, the Shomer deducts the "Chesronos" from the fruit when he returns it to the owner. The Gemara there explains that this Halachah applies only when the Shomer placed the other person's fruit among his own fruit, and they became mixed. Since it is the normal manner of a volume of fruit to decrease (due to rats and other factors).

We seem from there that when a person deposits his fruit with a Shomer, he is fully aware that the volume of his fruit will decrease and he accepts the decrease. He prefers that his fruits be returned to him in their present state, even if it means that he will receive slightly less fruit, for, otherwise, he would have sold his fruit and he would not have kept it. Hence, from the fact that he deposited his fruit with the knowledge that they would decrease, it is clear that he "prefers a Kav of his own produce more than nine Kavim of his friend's produce." (I. Alsheich)

38b

OPINIONS: Rav Kahana teaches the principle that "a person prefers a Kav of his own produce more than nine Kavim of his friend's produce." RASHI explains that the reason for this is because the person "toiled for them" and thus they are beloved to him.

Does Rashi mean that only fruits for which a person worked the land and toiled to produce by plowing, sowing, irrigating, harvesting, etc., are beloved to him, or does he mean that even fruits that a person did not personally toil to produce, but for which he paid money to buy, and worked hard to obtain, are also beloved to him?

(a) The RASHASH and others infer from Rashi's wording ("she'Amal Ba'hen") that only fruits for which a person personally toiled to produce are considered to be especially beloved to him. (The Rashash concludes, though, that the logic for this is not clear and requires further elucidation.)

The RAMBAN also explains that the reason why a person prefers a Kav of his own produce more than nine Kavim of someone else's produce is because a person experiences great pleasure when he benefits from the labor of his own hands, as the verse states, "When you eat the labor of your hands, you are fortunate and it is well with you" (Tehilim 128:2). (See also MICHTAV ME'ELIYAHU, beginning of volume 3, and SICHOS MUSAR (5731:19, and 5732:22) of Rav Chaim Shmulewitz, zt'l, as cited by YOSEF DA'AS here.)

(b) The RITVA first writes that it appears that only produce from a person's own field is considered especially beloved to him. He concludes, though, that "perhaps even produce that did not grow on his own field are also beloved to him, because he toiled to obtain them and to purchase them."

(c) The MITZPEH EISAN writes, like the Rashash, that Rashi holds that only fruits for which a person personally toiled to produce are considered to be especially beloved to him. However, he does not infer this from the wording of Rashi here ("she'Amal Ba'hen"). Rather, he explains that Rashi follows the teaching of Rav Papa in the Gemara in Yevamos (63a). Rav Papa says that "one should rather sow than buy," meaning that it is better to sustain one's family with the produce that one grows oneself than to buy it in the market, because there is a blessing in one's own produce that he grows himself. Rashi there says that blessing is found in items that are not bought and which do not quickly become consumed. Accordingly, only produce which one grows himself is especially beloved to him, because of the blessing which it contains.

However, the Mitzpeh Eisan's explanation does not seem to conform with the words of Rashi in our Sugya. Rashi here emphasizes that one's own fruits are *beloved* to him, because he *toiled* to produce them. According to the Gemara in Yevamos, one's own fruits are not beloved to him because he toiled for them, but because whatever he grows himself and does not buy with money contains a blessing. Moreover, the Gemara there is not saying that home-grown produce is preferable because it is beloved to a person, but because it contains within it blessing, and thus, from an economic perspective, a person's single Kav of produce is worth more to him because of the blessing that it contains, and not because it is beloved to him. Indeed, in the case of our Gemara, the fruit is rotting away, and thus we see that the blessing in the produce did not come to fruition, so it must not be that he prefers his own fruit because of the blessing that it contains. (I. Alsheich)