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1) STIPULATING NOT TO EAT (cont.)

(a) Rejection #1: No, both hold that a worker owns what he eats;

1. In the Mishnah, he does not feed them; in the Beraisa, he feeds them.
2. Question: If in the Beraisa, he feeds them, why can't he stipulate for his minor children?
3. Answer: The Torah does not authorize a father to cause pain to his children.
4. We can establish the Beraisa thusly according to the opinion that a master cannot force his slave to work for him without feeding him.
5. Objection: According to the opinion that a master can force his slave to work for him without feeding him, even if he does not feed him, he owns his wages!

(b) Rejection #2: Rather, both the Mishnah and the Beraisa (hold that a worker owns what he eats and) give the law when he does not feed them;

1. The Mishnah holds that a master cannot force his slave to work for him without feeding him, the Beraisa holds that he can.
2. Objection: R. Yochanan holds that a master can force his slave to work for him without feeding him - why does he rule like the Beraisa against the Mishnah?

(c) Rejection #3: Rather, both the Mishnah and the Beraisa hold that the Torah allows workers to eat, one cannot stipulate that minors may not eat;

1. Question: But the Beraisa says that Shimon can stipulate that his minor child and slaves will not eat!
2. Answer: It means, he will feed them a lot beforehand so they (presumably) will not eat while working.
3. Objection: If so, why does the Beraisa say he cannot do so on behalf of his animals? (A Beraisa permitted this above!)

(d) Conclusion: Rather, as we said above - the Mishnah holds that the Torah allows workers to eat, the Beraisa holds that a worker owns what he eats.
(e) (Mishnah): Shimon may stipulate with his employer to receive extra wages in place of eating; he may also stipulate on behalf of his wife and adult children and slaves, because they have intelligence;

1. He may not stipulate on behalf of his minor children or slaves or his animals, because they lack intelligence.

(f) If Reuven hired Shimon to work with fourth year produce, Shimon may not eat;

1. If Reuven did not tell him that he will work with fourth-year produce, Reuven must redeem what Shimon wants to eat.

(g) If Shimon was hired to repress rings of figs that came apart or reseal barrels that were opened, he does not eat;

1. If Reuven did not tell him that he will work with such produce, Reuven must tithe them and allow Shimon to eat.

(h) People that guard produce - the Torah does not entitle them to eat, but they may eat because that is the custom.

(a) (Gemara - Rav): The Mishnah speaks of guards of gardens and orchards (attached produce), but guards of winepresses or stacks of grain eat mid'Oraisa;

1. Rav holds that guarding is like doing an action.

(b) (Shmuel): The Mishnah speaks of guards of winepresses or stacks of grain - but guards of gardens and orchards do not eat, not mid'Oraisa nor on account of custom;

1. Shmuel holds that guarding is not like doing an action.

(c) Question (Rav Acha bar Rav Huna - Beraisa): One who guards the red heifer (after it was slaughtered), he and his clothes becomes Tamei.

1. If guarding is not like doing an action, why is he Tamei?

(d) Answer: That is a decree, lest he move one of its limbs (which would make him Tamei mid'Oraisa).
(e) Question (Rav Kahana - Beraisa): One who guards patches of gourds of 4 or 5 people should not eat his fill from one, rather he eats from each.

1. According to Shmuel, one who guards attached produce may not eat!

(f) Answer (Rav Simi bar Ashi): The case is, the gourds are detached.
(g) Question: If so, they are Kavu'a for Ma'aser (so a worker may not eat)!
(h) Answer: The flower did not yet fall off the top (they are not yet Kavu'a).
(i) Support (for Shmuel - Rav Ashi - Mishnah): The Torah allows the following to eat: one working with finished food attached to the ground, or any detached food...

1. This implies that there are workers that do not eat mid'Oraisa, rather on account of custom;
2. Question (end of the Mishnah): The following may not eat...

i. Question: What does this mean?
ii. Suggestion: If they may not eat mid'Oraisa,
rather on account of custom - the beginning of the Mishnah taught this!
iii. Answer: Rather, they may not eat mid'Oraisa, nor on account of custom.

3. This refers to people that work with attached produce before it is finished - all the more so, guards!

(a) (Mishnah): There are four kinds of watchmen: an unpaid watchman, a borrower, a paid watchman, and a renter:

1. An unpaid watchman swears and is exempt for paying for any loss (that the Torah mentions by the other watchmen); a borrower pays for any loss;
2. A paid watchman or renter swears if it was broken, taken captive or died, and pays if it was stolen or lost.

(b) (Gemara) Question: Who is the Tana of the Mishnah 'There are four watchmen'?
(c) Answer (Rav Nachman citing Rabah bar Avuha): R. Meir.
(d) Question (Rava): Does anyone argue that there are four watchmen?
(e) Clarification: (Rav Nachman): R. Meir is the Tana who says that a renter has the law of a paid watchman.
(f) Question: But R. Meir holds just the contrary!

1. (Beraisa - R. Meir): A renter pays as an unpaid watchman;
2. R. Yehudah says, he pays as a paid watchman.

(g) Answer: Rabah bar Avuha switches the opinions in the Beraisa.
(h) Question: Since a renter is like a paid watchman, there are only three watchmen!
(i) Answer (Rav Nachman bar Yitzchak): There are four watchmen, they have three different laws of liability.

(a) A shepherd was grazing animals on the bank of the river; one fell into the water.
(b) Rabah: He is exempt - what could he have done - he guarded normally!

1. Question (Abaye): If so - if he went to the city when people normally do, is he also exempt?
2. Answer (Rabah): Yes.
3. Question (Abaye): If he slept a bit when people normally sleep, is he exempt?
4. Answer (Rabah): Yes.

(c) Question (Abaye - Beraisa): A paid watchman is exempt for Onesim such as "Va'Tipol Sheva...Hiku Lefi Charev"- where an army attacked.
(d) Answer (Rabah): That refers to guards of the city, they must watch better.
(e) Question (Abaye - Beraisa): A paid watchman must guard to the point of "Va'Yom Achalani Chorev v'Kerach ba'Laylah"- to guard day and night.
(f) Answer (Rabah): That also refers to guards of the city.

1. Question: Yakov (who said Achalani. . . ) was not a guard of the city!
2. Answer: He told Lavan that he guarded extra well, like a guard of the city.

(g) Question (Abaye - Beraisa): A shepherd was grazing his flock. He left it and went to the city; a wolf or lion came and killed some of the flock - we do not say, had he stayed he (surely) would have saved - rather, we estimate:

1. If he could have saved, he is liable; if not, he is exempt.
2. Suggestion: He went to the city when people normally do.

(h) Answer (Rabah): No, he went to the city when people normally do not.
(i) Question (Abaye): If so, why is he exempt? The beginning was negligence, the end was Ones - he is liable!
(j) Answer (Rabah): He went to the city because he heard a lion coming.
(k) Question (Abaye): If so, what could he have done?
(l) Answer (Rabah): He should have gathered shepherds with sticks to fend it off.
(m) Question (Abaye): If so, why does the Beraisa speak of a (shepherd, a) paid watchman - you hold that even an unpaid watchman that could have gathered shepherds with sticks to fend it off and did not do so is liable!
(n) Answer (Rabah): If an unpaid watchman cannot gather shepherds with sticks for free, he is exempt; a paid watchman must hire people.

1. Question (Abaye): How much should he pay?
2. Answer (Rabah): Up to the value of the animals he is watching.
3. Question (Abaye): But a paid watchman is exempt for Ones, why must he pay to avoid Ones?
4. Answer (Rabah): The owner reimburses him.
5. Question (Rav Papa): What does the owner gain if he must pay their value?
6. Answer #1 (Abaye): His animals are used to his house.
7. Answer #2 (Abaye): He saves the owner the toil of buying new animals.

(o) (Rav Chisda and Rabah bar Rav Huna): A paid watchman must watch better than usual - he is paid for this! (They argue with Rabah).
(p) Bar Ada Savola'ah was taking animals across a bridge; one pushed another over into the water. Rav Papa ruled that he must pay.

1. Bar Ada: What should I have done?
2. Rav Papa: You should have led them single file.
3. Bar Ada: I did as most people - Rabah says, that is enough!
4. Rav Papa: Many have tried to exempt themselves according to Rabah - no one succeeded (the Halachah does not follow Rabah).

(q) Aibo deposited flax by Bei Runya; it was stolen; the thief was found, he was a known armed robber. Rav Nachman obligated the watchman.
(r) Suggestion: Rav Nachman argues with Rav Huna bar Avin.

1. (Rav Huna bar Avin): If it was stolen through Ones and the thief was later found, an unpaid watchman may swear, or pay and claim the money from the thief; a paid watchman may not swear, he must pay and claim the money from the thief.

(s) Rejection (Rava): Rav Nachman obligated him because there were (police) officers there - had he screamed, they would have come.

(a) (Mishnah): One wolf is not Ones, two wolves is Ones;
(b) R. Yehudah says, when wolves are rampant, even one wolf is Ones.
(c) Two dogs is not Ones; Yadu'a ha'Bavli says, from one direction it is not Ones, from two directions it is Ones.
(d) A robber is Ones.
(e) A lion, bear, leopard, Bardelas (hyena) or snake is Ones;

1. This is only if it came here - but if a watchman took the deposit to a place where these animals are found, it is not Ones.

(f) If it died normally, this is Ones; if he starved it and it died, it is not Ones.
(g) If it went up a mountain and fell, it is Ones; if he brought it up a mountain and it fell, it is not Ones.
(h) (Gemara) Contradiction (Beraisa): One wolf is Ones.
(i) Answer (Rav Nachman bar Yitzchak): The Beraisa is R. Yehudah, it is when wolves are rampant.
(j) (Mishnah): A robber is Ones.
(k) Question: Why is this Ones? The watchman can fend off the robber!
(l) Answer (Rav): It is an armed robber.
(m) Question: Is an armed robber considered Ones if the watchman is also armed?

1. Do we say, the watchman can fend off the robber?
2. Or - do we say, the robber is willing to risk his life, a watchman need not do so?

(n) Answer: Presumably, the latter.
(o) Question (Abaye): What if the shepherd taunted the thief, telling him that a certain place is protected by so many people, dogs, and slingshots, and the thief stole from there?
(p) Answer (Rava): That is like taking the flock to a place where wild animals are found (he is liable for inciting the thief).