Precedent (cont.): It is in order to differentiate by purchasers between an oral debt and one with a Sh'tar, in that by the latter one can claim due to Ne'ilas Deles, seeing as an oral debt one cannot claim, since there is no Kol, and when there is a Sh'tar, there is.

Precedent (cont.): ... whereas from Yesomim what is the difference between an oral debt and one with a Sh'tar?

Comparison between Yesomim and Lekuchos: We must therefore say that wherever one can claim from the Lekuchos on account of Ne'ilas Deles, one can also claim from the Yesomim ...

Examples: Such as a Milveh bi'Shetar or one that is written in the Torah, according to the opinion that it is as if it was written in a Sh'tar, or where Beis-Din already Paskened that the Loveh is Chayav to pay, he also claims from the Yesomim.

A Milveh al Peh: ... but regarding an oral loan, seeing as he did not take the trouble to write a Sh'ar in order to claim from the Lekuchos, if he cannot claim from the Yesomim there is also no Ne'ilas Deles.

Explanation: And this is how the Sugya runs: 'Did Rebbi Elazar say even from Yesomim?' - where it is not an Apotiki, since they (Avadim) are like Karka. 'No, from the debtor himself!' - because if they are not an Apotiki one can only claim from him ...

Explanation (cont.): ... And in answer to the question 'From him ... ?', the Gemara answers, 'where he made him an Apotiki', in which case he can claim even from Yesomim and Lekuchos.

Explanation (concl.): Alternatively, he calls it 'from him', even though the creditor can also claim from the Yesomim, seeing as he claims from them on account of the debtor, who made him an Apotiki.

Reason: He considers him as having erred in a D'var Mishnah.

Implied Question: Even though we find many instances where he is compared to Karka - such as with regard to Ona'ah and a Shevu'ah ...

Answer: The Ri explains that Rav Nachman is speaking about issues that are de'Rabbanan, and with regard to claiming from Yesomim and Lekuchos, he holds that Shibud is not d'Oraysa, and that one only claims mi'de'Rabbanan.

Answer (cont.): And with regard to P'ruzbul and Kinyan Agav too, it is only mi'de'Rabbanan, and the Pasuk of "Arim Metzuros" is merely an Asmachta.

Implied Question: And later, when the Gemara says that 'According to the Lashon that holds 'Avdi k'Mekarka'i Dami'; why must they stand in the field?'

Implied Question (cont.): It could just as well have asked according to the opinion that holds 'ki'Metalt'li Dami', seeing as they only hold 'ki'Metalt'li Dami' regarding matters that are de'Rabbanan.

Answer: Only the Gemara refutes the suggestion adequately anyway.

Implied Question: And when the Gemara in 'ha'Mocher es ha'Bayis' (Bava Basra, Daf 68.) tries to learn as to whether Avadim are like Metalt'lin or like Karka from the case of Metalt'lin li'Peloni' (and it is also cited in Perek Mi she'Meis (Ibid, Daf 150.), it has no connection with our Sugya ...

Answer: ... since that is a matter concerning 'Lashon B'nei Adam' (the way people speak).

Clarification: One only writes a P'ruzbul concerning something that cannot be destroyed (Karka).

Implied Question: And even though one can write it over a holed flower-pot? ...

Answer: ... since it is considered Karka, the Rabbanan did not differentiate.

Clarification: It must be speaking about Kinyan Agav ...

Reason: Because, if it was speaking about Kinyan Chatzer, why, where he makes a Kinyan on the Karka, does the Tana draw a distinction between Avadim and Metalt'lin ...

Reason (cont.): ... because, if it is guarded with his knowledge, he ought to acquire it either way, whereas if it is not, then either way, he will not acquire it.

Clarification: If he made a Chazakah on the Karka, he will not acquire the Avadim, since Karka cannot be acquired with a Kinyan Agav.

Clarification: It must also be speaking where the Eved is also asleep (See Hagahos ha'G'ra) ...

Reason: Since then, 'Kafus' helps to negate the fact that the Eved is a walking Chatzer, and 'Yashein' renders him guarded with his (the purchaser's) knowledge.

Source: ... as the Gemara states in Perek ha'Zorek (Gitin, Daf 78.) in connection with where 'A man writes a Get and places it in the hand of her Eved who is sleeping and whom she is guarding ...

Source (cont.): The Gemara asks there, 'Why, even if he is sleeping, it is a Get, seeing as he is a walking Chatzer? And if you will answer that asleep is different, but did Rava not say that "Wherever walking does not acquire, neither does standing or sitting'? and it concludes that 'The Halachah is (that it speaks [i.e. it is a Get] where the Eved is bound.'

Source (concl.): So we see that even after establishing it by Kafus, it is nevertheless not a Get as long as he is awake.

Refuted Explanation: One cannot explain 'Hilch'sa be'Kafus' to mean that it is therefore not considered 'walking' and is therefore not comparable to standing or sitting; and since Kafus is effective, so is Yashein'.

Refutation: ... because if Rava is speaking where the Eved is not bound, why does he say that 'If he is awake it is not a Get, since it is a Chatzer which is not guarded to her knowledge', why did he not say that it is a walking Chatzer?

Support: And this is also how Rashi explains 've'Hilch'sa be'Kafus', in Perek ha'Zorek ..

Refutation (cont.): And it is there that Rava says 'Ni'ur Ein Get'.

Support: And the Halachos Gedolos too, Paskens that both Kafus and Yashein are required.

Clarification: And when he says 'Lo Kanah', it therefore speaks when they are not standing inside it; nevertheless, if it is Metalt'lin, he acquires them (even if they are not) ...

Reason: ... because we do not require 'piled up inside it' by Metalt'lin that do not move.

Observation: And later on, when the Gemara asks 'But we Pasken that we do not need Tziburin', it could have extrapolated that from the statement itself.

Refutation #1: It cannot be on account of (Kinyan) Chatzer that he acquires, it, since Avadim that are inside the Chatzer are not generally guarded with his knowledge, even assuming that he is standing beside his field ...

Reason: ... because an Eved is comparable to a deer that is running free.

Refutation #2: Neither does he acquire it on account of 'Agav' ...

Reason: ... since one cannot acquire Karka via Agav.

Reason (cont.): And even if he says 'Acquire the ground that is close to the 'T'hom' (below the surface), and together with it the ground that is above it, in which case, the one is on top of the other, he will not acquire it by means of Agav.

Conclusion: Consequently, the means by which he acquires it must be because it is considered attached, in which case, he will acquire it even if they are not standing inside it.

Source: ... since it is comparable to 'Ten fields in ten countries'.

Implied Question: When Shmuel says in Perek Chezkas ha'Batim (Bava Basra, Daf 54.) that 'He only acquires the location where he hammered' ...

Answer: ... he is speaking about the property of a Ger (who died), but there where a Yisrael is Makneh to him, he acquires the entire property.

Implied Question: And when it says there 'that the border divides, that too speaks about the property of a Ger, or about a case where the purchaser did not pay the entire price of all the fields.

Answer: ... since that is a prerequisite, as is evident in the first Perek of Kidushin (Daf 27:).

Clarification: Which have intelligence; whereas animals are not considered Metalt'lin that move around, in which case they can be acquired with 'Agav' even if they are not 'piled up' on the field.

Source: ... as the Gemara stated in the first Perek of Kidushin (Daf 26:) "A Tefach by a Tefach for Peloni and with it a hundred sheep'.

Question: Even if they do not move around, they serve two different purposes ...

Source: Seeing as even a Chulsis and a Metzulah (a sand-mound and a shaft - for digging glass and metal, respectively) one cannot acquire the one by making a Chazakah on the other ...

Source: ... as the Gemara states in 'ha'Mocher es ha'Bayis (Bava Basra, Daf 67.) according to one Lashon.

Answer: An Eved and Karka are considered one usage, seeing as the Eved is fit to work in the field.

Clarification: Since it is obvious that it is not coming to preclude Hekdeishos that are not subject to Me'ilah, such as Karka ...

Reason: ... because, seeing that they belong to Hash-m, Me'ilah by them is neither an advantage nor a disadvantage

Question: What does the Gemara think? If he (Rebbi Yossi ha'Gelili) did not say it when it was alive, how much more so after it has been Shechted?

Refuted Answer: Nor can one answer that what he means is that - even where it is fit to bring on the Mizbe'ach, seeing as you differentiate between when it is alive and after it has been Shechted, we see that even where it is fit to bring on the Mizbe'ach you consider it his Mamon, similar to where it has been Shechted ...

Refutation: ... because if that is the case, then just as it queries him from B'chor, it can support him from Shelamim ...

Refutation (cont.): ... seeing as ben Azai says (on Daf 13.) that 'The Pasuk only comes to include Shelamim ...

Refutation (cont.): ... and ben Azai and Aba Yossi are both coming to explain the words pf Rebbi Yossi ha'Gelili ...

Refutation (concl.): And Shelamim are fit to bring on the Mizbe'ach even Lechatchilah?

Answer: What the Gemara means when it says 'u'me'Chayim mi Amrinan' with regard to the Matnos Kehunah, it is referring to the part of the animal that the Kohanim own in the Shelamim.

Reason: ... because, since the Gemara did not say 'Matnos Kehunah Sha'ani', 'ha'Mekadesh be'Chelko' must be referring to that section of the animal.

Reason (cont.): ... and he is saying that the fact that after the Shechitah, 'they acquire from the Table of Hakadosh-Baruch-Hu implies that as long as the animal is still alive it belongs to the owner, even though it is Matnos Kehunah.

Question: Had the Gemara answered 'Matnos Kehunah Sha'ani', it would have implied that the section belonging to the owner is Mamon Ba'alim, even after the Shechitah ...

Support: Whereas the Gemara in the second Perek of Beitzah (Daf 21.) states that the owner too, acquires from the Table of Hakadosh-Baruch-Hu?

Answer: That speaks specifically with reference to the Din that Nedarim and Nedavos cannot be brought on Yom-Tov ...

Answer (cont.): ... but it is obvious that, even after the Shechitah, the section of the owner is Mamon Ba'alim, to betroth a woman and for any other purpose.

Support #1: Indeed, the Lashon 'ha'Mekadesh be'Chelko' implies the section belonging to the Kohanim, seeing as the Lashon is only applicable to the section of the Kohanim, since the term 'Cheilek' does not apply to the owner, who owns the majority of the animal.

Support #2: And also the Pasuk that the Gemara cites in Perek ha'Ish Mekadesh (Kidushin, Daf 52:) in connection with the Mishnah 'ha'Mekadesh be'Chelko' - "ve'Zeh Yih'yeh l'cha min ha'Eish" is written specifically with regard to Kohanim.

Implied Question: And when the Gemara suggests there that the Mishnah does not go like Rebbi Yossi ... and it concludes that Rebbi Yossi is speaking specifically where the animal is still alive, and it proves this from the Lashon 'ha'Mekadesh be'Chelko', which implies specifically after Shechitah?

Answer: That does not conform to the Maskana in our Sugya, but goes according the Havah Amina.

Conclusion: ... because according to the Maskana, Matnos Kehunah are considered Mamon Gavo'ah, even whilst the animal is still alive.

Comment: It is not necessary to teach us this ...

Reason: ... since we establish it by a B'chor nowadays, which cannot be sold after Shechitah because it is Asur be'Hana'ah.

Conclusion: What it does teach us however, is that one may sell it whilst it is alive, even though Ma'aser cannot be sold, since the Torah says in connection with it that "It cannot be sold and it cannot be redeemed" - and so it states in the first Perek of Temurah, 5:

Explanation #1: And it is speaking in the time of the Beis-ha'Mikdash, similar to Shelamim, as the Gemara says in the first Perek of Temurah (Daf 8.).

Explanation #2: Alternatively, as Rashi explains - Because the Gemara Darshens the Pasuk in connection with bringing a Korban Me'ilah, which is only applicable at the time when the Beis-ha'Mikdash is standing.

Implied Question: The reason that Ravina/Abaye did not answer by establishing it by a B'chor nowadays (like Rav Nachman earlier) ...

Answer: ... is because it is compared to Shelamim (together with which it is written).

Conclusion: Whereas Rav Nachman could have established it by a B'chor in Chutz la'Aretz, only he considered that a Dochek, and therefore preferred to establish it by a B'chor nowadays.

Clarification: Rebbi Akiva, who argues with him in Perek Eilu Kodshim (in Temurah, Daf 21:) holds 'Li Yikareivu' ...

Source: ... which he Darshens from a Hekesh - 'From any location that one cannot bring Ma'aser Sheini, one cannot bring a B'chor either'.

Question: Why does Ravina say 'According to Rebbi Shimon', when it is all the more so (that they cannot be brought Lechatchilah), according to Rebbi Akiva, who says 'Lo Yikareivu'?

Answer #1: He establishes it like Rebbi Shimon because the Beraisa is speaking similar to Shelamim, which can be brought.

Answer #2: Moreover, it cannot go like Rebbi Akiva, since it requires a Pasuk to include that it is Mamon Ba'alim.

Clarification: This means that he is not obligated to bring them ...

Source: As the Gemara, citing Rebbi Shimon, explains in Perek Eilu Kodshim (Ibid.) 'Why is that? Because all Kodshim can only be sustained (only become permitted) in the Beis-ha'Mikdash with the exception of B'chor and Ma'aser, which can become permitted in their home location' - (when they obtain a blemish).

Explanation #1: And that is why Ravina connects it with Rebbi Shimon, seeing as the entire Beraisa goes like him.

Explanation #2: It seems likely however, that the correct text is 'Rebbi Yishmael' (and not Rebbi Shimon) ...

Source: Based on the Gemara there, which queries the Mishnah which says 'Yikareivu' from ben Antignos who brought B'choros from Bavel and they did not accept them ...

Source: It answers that one goes like Rebbi Yishmael and the other, like Rebbi Akiva; and it is evident there that the Mishnah goes like Rebbi Yishmael, and the Beraisa, like Rebbi Akiva.

Clarification: This means that if, according to Rebbi Yossi ha'Gelili even Matnos Kehunah that are fit to bring on the Mizbe'ach would be his Mamon even whilst they are still alive, then what Rav Nachman says in the name of Rabah bar Avuhah would have to go like the Rabbanan ...

Reason: ... seeing as Mah Nafshach it cannot go like Rebbi Yossi ha'Gelili.

Refutation: According to this S'vara, the inference later at the end of Perek ha'Parah (Daf 53: & 54.) that even nowadays, a B'chor is not included in "Re'eihu" ...

Sugya in ha'Parah: ... since Abaye and Ravina argue there over an ox (of Chulin) and an Ox of Pesulei ha'Mukdashin which gored - (and Rebbi Yehuda'i Ga'on explains that it is speaking where the latter was not yet redeemed - as is evident there (as Tosfos will explain) ...

Sugya in ha'Parah (cont.): Also, one can assume that the case over which they are arguing was relevant to their times, and nowadays, everyone agrees that it is Mamon Hedyot.

Sugya in ha'Parah (cont.): And the Gemara answers there 'Matnos Kehunah are different' - and this is the text according to Rabeinu Chananel (although Rashi has a different text).

Refutation (cont.): According to that, the answer of Rav Nachman will only go according to Rebbi Yossi ha'Gelili, whereas the Machlokes Abaye and Ravina later goes according to the Rabbanan

Refutation (concl.): And it would seem that it is specifically during the animal's lifetime that the Rabbanan consider it Mamon Gavohah - even a Ba'al-Mum - since it is forbidden to shear and to work with ...

Refutation (concl.): But once it has been Shechted, on what grounds is it considered Mamon Gavohah, even when the Beis-ha'Mikdash was standing, seeing as one is permitted to feed it even to Nochrim.

Source: ... as we learned in Perek Kol Pesulei ha'Mukdashin (Bechoros, Daf 33.), since it is compared to a deer and a gazelle.