Ask A Question about the Daf

Previous daf

Gitin, 61

1) ACQUIRING SOMETHING WITHOUT INTENTION

QUESTION: The Mishnah (59b) states that the olives that the picker knocked off the tree do not yet belong to him (if he does not own the tree), and someone who takes those olives does not transgress the prohibition of stealing, mid'Oraisa, but he does transgress Gezeilah *mid'Rabanan*, for the Rabanan enacted that no one may take those olives "Mipnei Darchei Shalom." The Gemara says that if the picker puts the olives into his hand, then they belong to him, and if someone takes them from him he transgresses the Torah prohibition of stealing.

What is the Gemara teaching? It is obvious that if the picker acquired the fruit by putting it into his hand, it belongs to him and no one may take it from him! (TOSFOS DH Liket)

TOSFOS answers that the Chidush of the Gemara is that even if he picked them with the intention to throw them down, and he immediately let them fall from his hand, the fact that the olives were in his hand is an act of acquisition and they are considered to belong to him.

Tosfos' answer needs clarification. TOSFOS in Bava Basra (54a, DH a'Da'asa) writes that although one automatically acquires that which is in his hands even if he is not aware that the item is there, if one *knows* that the item is in his hands but he has no intention of acquiring it, then it does *not* become his. This seems to contradict the words of Tosfos here who says that although the person picked the olives to throw them on the ground, he still acquires them immediately once they are in his hands, even though he has no intention to acquire them!

ANSWERS:

(a) The MISHNEH L'MELECH (Hilchos Gezeilah 17:8) writes that Tosfos here does not mean to say that the person acquires the olives even though he did not have intent to acquire them. Rather, Tosfos means to say that in a situation where the picker immediately throws the olives down, there is room to assume, in error, that he did not have intention to acquire them. Hence, our Gemara teaches that even though he threw the olives down to the ground, we should still assume that he picked them with the clear intent of acquiring them and therefore it is prohibited to take them from him.

(b) The MACHANEH EFRAIM (Kinyan Meshichah 4) understands that Tosfos here means to say that the picker indeed did *not* intend to acquire the olives, and nevertheless he acquires them. How, then, does he understand the conflicting words of Tosfos in Bava Basra? The Machaneh Efraim explains that Tosfos in Bava Basra is referring to a case where the person had no intention at all to acquire the item, and therefore his hand cannot acquire it for him. Tosfos here, on the other hand, is referring to a case where the person wants to eventually acquire the olives, but he just does not intend to them with the act of picking them. In such a case, he acquires the olives from the time they were in his hand.

(c) The SHACH (Choshen Mishpat 275:3) understands that the RAMBAM disagrees with Tosfos in Bava Basra and holds that even though the person knows that the item is in his physical possession and still does not have intent to acquire it, he still acquires it. (See also RASHBA and RAN (on the Rif) here.)

OPINIONS: The Mishnah says that a woman may lend to her friend a sifter, mill, and oven even though her friend does not follow the laws of Shemitah. In addition, a woman who meticulously observes the laws of Tum'ah and Taharah may lend to her friend, who is not meticulous in those laws, a sifter even though she might use it to make dough and she will make Chalah become Tamei. The meticulous woman is also permitted to help her friend sift and grind the flour. The Mishnah concludes that these things are permitted for the sake of maintaining peace and harmony among people.

When the Mishnah says that these things are permitted for the sake of peace, is it referring to all of the acts mentioned previously -- both lending utensils and assisting in food preparation, or is it only referring to assisting in food preparation? Perhaps lending is permitted even when there would be no lack of peace caused if she were not to lend.

(a) RASHI learns that even the lending is permitted only for the sake of peace. When no lack of peace will be caused if one does not lend the utensil to an Am ha'Aretz, then it is not permitted to lend the utensil.

(b) TOSFOS asks that the Mishnah in Shevi'is says that one may sell a cow that is used for plowing to one who does not keep the laws of Shemitah, since there is a possibility that he will slaughter the cow and not use it to plow. We see from there that as long as there is a possibility that the item will not be used to do prohibited work, it is permitted to sell it to the Am ha'Aretz (and is not considered "Lifnei Iver").

Tosfos assumes that only when one does not want to *lend* his tools is there concern for lack of peace, but there is no concern for lack of peace where one is *selling* his wares. When *selling* an item, there will be no lack of peace if the owner does not sell it to the Am ha'Aretz (because the Am ha'Aretz will assume that the seller wants more money, or has decided to keep the item for himself). Therefore, Tosfos proves from the Mishnah in Shevi'is that it is permitted to lend utensils to one who does not observe the laws of Shemitah even if there is no concern for lack of peace in a situation where there is a possibility that he will not use them to transgress the laws of Shemitah. Based on this, RABEINU TAM learns that our Mishnah must be referring to a case where we know that the other woman has only produce of Shemitah in her possession and will definitely use the utensils for her Shemitah produce, and yet it is still permitted to lend them to her for the sake of peace.

OPINIONS: The Mishnah says that a woman may lend to her friend a sifter, mill, and oven even though her friend does not follow the laws of Shemitah. The Mishnah concludes that these things are permitted for the sake of maintaining peace and harmony among people.

Tosfos proves (see previous Insight) that our Mishnah is talking about a case where the utensils will definitely be used for prohibited produce, in which case it is *not* permitted to lend the utensils to an Am ha'Aretz where there will be no lack of peace. When there is a possibility that the utensils will be used for permitted produce, then it is permitted to lend them to an Am ha'Aretz even when there is no concern for lack of peace.

This seems to contradict the Yerushalmi, though, that says that it is permitted to lend a sifter to one who does not observe the laws of Shemitah, since he might use it to count his money or to sift sand. This implies that even if all the produce he has is Shemitah produce, it is still permitted to lend the utensils to him since he might not use them for food at all!

ANSWERS:

(a) Tosfos answers that the forms of use mentioned in the Yerushalmi are not the normal forms of use of utensils, and if those forms of use are the only way the utensil can be used in a permitted manner, we would *not* permit one to lend them to an Am ha'Aretz, if not for the concern for peace.

The RAMBAN, RASHBA, and RAN (in Chidushim) understand from the Yerushalmi that we do not permit lending utensils to an Am ha'Aretz even in a case where we are not sure he will use then for the prohibited produce, unless there is a concern for maintaining peace. Based on this, the RASHBA and RAN explain that the Mishnah in Shevi'is (see previous Insight) that permits selling a cow that is used for plowing even though there is no issue of maintaining peace in the case of a sale, that is a special leniency made so that one can make a living to support himself.

The RAMBAN and RITVA explain that the concept of maintaining peace exists even by a sale (they disagree with the assumption of Tosfos) and the Mishnah in Shevi'is is also based on the Heter for the sake of peace that is mentioned in our Mishnah.

61b