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1) A DEPOSIT OF PRODUCE

(a) (Mishnah): Reuven deposited produce by Shimon. Even if it is rotting, Shimon should leave it;
(b) R. Shimon ben Gamliel says, he should sell it in front of Beis Din - this is as returning a lost object.
(c) (Gemara) Question: Why (should Shimon let it rot)?
(d) Answer #1 (Rav Kahana): A person prefers one Kav of his own produce more than nine Kavim of others' produce.
(e) Answer #2 (Rav Nachman bar Yitzchak): We cannot sell them, for maybe Reuven made them Terumah or Ma'aser on other produce.
(f) Question (Beraisa): Reuven deposited produce by Shimon; even if it is rotting, Shimon should leave it - therefore, Reuven may make it Terumah or Ma'aser on other produce.

1. According to Rav Kahana, 'therefore' makes sense, but not according to Rav Nachman bar Yitzchak!

(g) Answer: It means, after Chachamim ruled that Shimon must leave the produce (even if rotting) because Reuven may have made it Terumah or Ma'aser on other produce, Reuven is permitted to do this.
(h) (Rabah bar bar Chana): The Tana'im argue when the loss (due to rotting) is within the specified amount (in the Mishnah 40A) - if the loss exceeds this, all agree that Shimon should sell it in Beis Din.
(i) Surely, this argues on Rav Nachman bar Yitzchak (if we are concerned that they were made Terumah, they may never be sold)!
(j) Question: Must we say that this argues on Rav Kahana?
(k) Answer: No - Rav Kahana agrees that only a small loss should be endured?
(l) Question: But he said that a person prefers one Kav of his own to nine Kavim of another - Shimon should not sell until the loss is 90 percent!
(m) Answer: Nine Kavim is an exaggeration.

(a) Question (against Rabah bar bar Chana - Beraisa): Therefore, Reuven may make it Terumah or Ma'aser on other produce;

1. We should be concerned that the loss exceeded the specified amount, and it was sold in Beis Din (so the Terumah is invalid, and Reuven will eat Tevel (untithed produce)!

(b) Answer: It is rare that the loss would exceed the specified amount, we are not concerned for this.
(c) Question: And if it occurs, why may the produce be sold? Perhaps Reuven made them Terumah or Ma'aser!
(d) Answer: We sell it to Kohanim who pay for it (and eat it) as if it is Terumah.
(e) Question: According to Rav Nachman bar Yitzchak, we are concerned that it was made Terumah - still, we should sell it to Kohanim as if it is Terumah!
(f) Answer: They argue as follows: Rabah bar bar Chana says that it is rare that the loss would exceed the specified amount; surely, he did not leave the produce as Tevel so long (he either separated Terumah on it or made it Terumah);

1. Either way, this was before we sell it.
2. Rav Nachman bar Yitzchak says that the loss often exceeds the specified amount, in a short time; perhaps he did not yet tithe it, and he will later make it Terumah (therefore, we cannot sell it, less Reuven's separation will be invalid).

(g) Question (Beraisa - R. Meir): Reuven deposited produce by Shimon and it rotted, wine or honey and it soured, oil and it stank - Shimon should not touch it;

1. Chachamim say, he should fix the situation and sell them in Beis Din.
2. He only sells them to others, not to himself.
3. Similarly: if collectors of Tzedakah have no poor people to give Perutos to (and they fear that the coins will rust), they exchange them for bigger coins with other people, not themselves.
4. If collectors of Tamchuy (food collected to be given to the poor) have no one to give it to, they sell the food to other people, not to themselves.
5. Summation of question - suggestion: It says, produce that rotted - this is even if it rotted more than the specified amount.

(h) Answer: No, it was no more than the specified amount.
(i) Question: But it teaches wine or honey that soured, and oil that stank - these are more than the specified amount!
(j) Answer: Those are different - once they soured or stank, no further loss will come - but produce will rot more!
(k) Question: What use is there for stinking oil or soured honey (the Beraisa said, we sell them)!

(l) Answer: The oil can be used to anoint leather, the honey for a wound on a camel's back.
(m) Question (Beraisa): Chachamim say, he should fix the situation and sell them in Beis Din - what does he fix (wine, honey and oil will not spoil any further!)?
(n) Answer (Rav Ashi): The vessels (so they will not rot).
(o) Question: On what do the Tana'im argue?
(p) Whether we are concerned for a small loss (produce that rots less than the specified amount, or the vessels) - Chachamim are concerned, R. Meir is not.

(a) (Mishnah - R. Shimon ben Gamliel): He sells them in Beis Din - this is like returning a lost object.
(b) (R. Aba b'Rebbi Yakov citing R. Yochanan): The Halachah follows R. Shimon ben Gamliel.
(c) (Rava): The Halachah follows Chachamim.
(d) Question: R. Yochanan already taught this in another way!

1. (Rabah bar bar Chana citing R. Yochanan): The Halachah always follows R. Shimon ben Gamliel in a Mishnah, with 3 exceptions: the Mishnayos of a cosigner, the Get in Tzidon, and a litigant that found witnesses after the allotted time.

(e) Answer: Amora'im argue about the opinion of R. Yochanan (R. Aba says that R. Yochanan never gave such a general rule, Rabah says that R. Yochanan never (had to) rule on our particular Mishnah.)
(f) Inferences: From R. Shimon ben Gamliel, we learn that when a person is captured, (Beis Din) appoints a relative (an heir) over his property; from Chachamim, we learn that we do not appoint a relative over property of a minor (these will be explained).
(g) Rejection #1: Perhaps R. Shimon ben Gamliel only permits selling in our case, for the principal will be lost - but he would not permit appointing a relative for the sake of produce!
(h) Rejection #2: Perhaps R. Shimon ben Gamliel only forbids selling in our case, for the reason of Rav Kahana or Rav Nachman bar Yitzchak - but they would not permit appointing a relative!
(i) Question: But Shmuel said, the Halachah follows R. Shimon ben Gamliel, and he also permitted appointing a relative over property of a captured person!

1. Suggestion: Because he rules as R. Shimon, he permits appointing a relative.

(j) Answer: No - neither law follows from the other.
(k) Support: Rav Nachman said, the Halachah follows R. Shimon, and he permits appointing a relative over property of a captured person!

1. This shows that the reasons for the two laws are not the same.

(l) (Rav): We do not appoint a relative over property of a captive.
(m) (Shmuel): We do appoint a relative.

1. If we heard that the captive died, all agree that we appoint a relative; they argue when we did not hear.
2. Rav is concerned that he will cause a loss to the property, by overplanting, since he is afraid that he has the field only for a limited time;
3. Shmuel says, since he is paid as a sharecropper (if the owner returns and the land reverts to him), we are not concerned that he will cause a loss.

(n) Question (Beraisa - R. Eliezer): "V'Haragti Eschem...v'Hayu Nesheichem Almanos u'Vneichem Yesomim" - obviously, if they will die, their wives and children will be widows and orphans!

1. Rather, this teaches that the widows will not get permission to remarry (because their husbands were captured and we do not know if they died, and for the same reason), the orphans will not be given their father's property.

(o) Answer (Rava): That teaches that the orphans will not be given permission to sell it, but they will be allowed to use it.
(p) Rav Sheshes ruled on a case in Nehardai based on this Beraisa (and forbade an heir to use the property).
(q) Question (Rav Amram): Perhaps the Beraisa teaches that the orphans may not sell it, but they may use it!
(r) Rejection (Rav Sheshes): Only Chachamim of Pumbadisa would establish the Beraisa in such a difficult way!

1. Presumably, the orphans are as the widow: just as she is not permitted (to marry) at all, also the orphans are not given the land at all.

(s) Tana'im argue whether we appoint a relative over property of a captive.

1. (Beraisa): Reuven started working on property of a captive - we do not remove it from him;

i. Even if he heard that the owner is coming, and he harvested and consumed the produce - he profits from his zealousness.
ii. The case of property of a captive: Shimon went overseas, and we heard that he died - his son, brother or heir started working on the property.

2. One who starts working on Netushim (abandoned) property - we remove it from him.

i. The case of Netushim property: Shimon went overseas, and we did not hear that he died - his son, brother or heir started working on the property.

3. R. Shimon ben Gamliel says, Netushim property is as property of a captive - but one who started working on Retushim (another kind of abandoned property) - we remove it from him.

i. The case of Retushim property: we do not know where Shimon went - his son, brother or heir started working on the property.

4. Question: Why is the former called Netushim, and the latter Retushim?
5. Answer: Netushim connotes against his will - "Tishmetena u'Netashta (You will refrain from working the land in Shemitah, and it will be abandoned)" - the King commanded so;

i. Retushim connotes willingly - "Em Al Banim Rutashah (they abandoned their wives and children)".