Clarification: This refers to a threshing-sledge and the ox's accessories, but as for a purse in a haystack, the Rabanan do not declare him Chayav ...

Implied Question: Even though we saw in all the cases mentioned earlier that he pays for whatever happens to be inside it according to the Rabanan, just like he does according to Rebbi Yehudah ...

Answer: ... that is only where the Tana says 'u'Modim' or where he says that it is unanimous ...

Answer (cont.): ... whereas here, where he says 'Bameh Devarim Amurim', the Rabanan are simply explaining their own opinion, and not that of R. Yehudah

Clarification: It speaks where he lit the fire in his own domain ...

Proof #1: ... because if he set fire to barley in his friend's domain and the haystack was made of wheat, why should he not pay for wheat, since that is what he saw?

Proof #2: And the Gemara shortly will also compare the current case to someone who gives a golden Dinar to a woman, who is negligent with it' ...

Proof (cont.): ... implying that it is speaking about where he lit the fire in his own domain and it went and damaged in that of his friend.

Implied Question: The Gemara could also have said according to the Rabanan that they enacted a Takanah - in a mansion, by everything and in a haystack, by a threshing-sledge ... ?

Answer: Only it teaches us a Chidush - that according ro Rebbi Yehudah they enacted Takanas Nigzal even regarding a purse in a haystack.

Explanation #1: The Rif writes that it speaks where there are witnesses that the owner handed the defendant the money, and that the money then got lost, but they do not know how much money was involved ...

Halachah #1: ... and that every 'Teiku' concerning money-matters we rule leniently.

Halachah #2: But in the name of Rav Hai Ga'on it is written that the claimant swears and takes half, since every 'Teiku' concerning money-matters we rule 'Cholkin'.

Refutation: The Ri however, maintains that in cases of 'Teiku', one is not Chayav anything.

Explanation #2: Whereas Rabeinu Tam establishes the She'eilah where the Moser denies the owner's claim ...

Proof: ... similar to the thief, who, in Shevu'os (cited in the Sugya), denied the owner's claim.

Explanation #2 (cont.): Whereas if the Moser himself does not know the amount involved, the owner swears how much he lost, and takes it from him.

Explanation #3: The Ri, however, maintains that the She'eilah is even if the Moser does not know ...

Proof: ... similar to 'the Takanas Nigzal by fire', where the person who lit the fire does not know the amount of the loss incurred by the Nizak ...

Explanation #3 (cont.): ... and the Gemara asks whether they enacted the Takanah by a Masur or not.

Clarification: Even if there are witnesses that it contained a jewel, the Gemara asks whether perhaps he did not need to take into account such a situation, and we do not say 'What right did he have to cause him damage?' ...

Reason: ... seeing as it is not common at all to place such things in money-chests.

Implied Question: Neither is not comparable to the case of 'A golden Dinar' that the Gemara cited earlier ...

Answer: ... where there is more reason for the woman to take into account (the possibility that it was a golden Dinar) ... since sometimes a person says that (it is a silver one), because he is afraid that, had he known that it was a golden Dinar, he would not have undertaken to look after it.

Implied Question: Nor is it comparable to the case of 'The purse in a haysack' ...

Answer: ... which is a more common thing for people to do than a jewel in a money-chest.

Refuted Explanation: And one cannot explain that the She'eilah concerns making a Shevu'ah - whether they enacted the Takanas Nigzal, and the owner will be believed to say that it contained a jewel ...

Refutation: Because in that case, why did Ravina say to Rav Ashi 'Is this not what the Mishnah says?' ...

Refutation (cont.): ... What does this have to do with our Mishnah?

Clarification: As far as the Lashon of the Torah is concerned, there is no difference between them, and the Gemara is asking here about the difference between a Gazlan de'Rabanan and a Chamsan de'Rabanan.

Source: ... as we learned in a Beraisa in Perek Zeh Borer (Sanhedrin, Daf 25b) 'They added Gazlanim and Chamsanim' ...

Source (cont.): ... and the Gemara explains that 'A Gazlan does not pay for the article ... , and it speaks about the finding of a Cheresh, Shoteh and Katan, as the Gemara there establishes it, who are not Pasul min ha'Torah, only because of Darkei Shalom (Gitin, 57b).

Clarification: Where the owner does not give his consent, as the Gemara explains ...

Clarification (cont.): ... though min ha'Torah, he only becomes Pasul if he does not pay for the object, but where he does, he remains Kasher even if he did, and even if the owner did not say 'Rotzeh Ani'.

Implied Question: And despite the fact that he transgresses the La'av of "Lo Sachmod" ...

Answer: ... the Gemara states in Perek Sh'nayim Ochzin (Bava Metzi'a, Daf 5b and 6a, See Tosfos there DH 'be'Lo') that people understand "Lo Sachmod" to mean that one does not pay for the article.

Implied Question: And as for the case cited at the end of the Masechta (Daf 119a), based on the Pasuk "me'Chamas B'nei Yehudah" - that even where he pays for the article, it is as if he takes his Soul'? ...

Answer: ... that is not a proper D'rashah, only an Asmachta - since the 'Chamsan' of the Torah is synonymous with a Gazlan, who does not pay for what he steals.

Question: Seeing as a Chamsan who pays money is Pasul mi'de'Rabanan, when the Gemara says in Perek Shenayim Ochzin (Bava Metzi'a, Daf 5b and 6a) 'But when Rav Huna says that we make him swear that the article is not in his domain, why do we not say "Migu (since he is suspect on money issues, he is also suspect on swearing falsely)?" ...

Question (cont.): ... and the Gemara answers that 'He allows himself a Heter by saying that after all, he did pay for it' (and he is therefore not considered a suspect).

Question (cont.): ... what is the Gemara's answer? If he retains the security and wants to exempt himself with money against the wishes of the owner, he is nevertheless a Chamsan and is disqualified from taking an oath mi'de'Rabanan ...

Question (concl.): ... in which case we ought still to say "Migu de'Chashud a'Mamona ... ?'

Answer #1: In any event, one cannot prove from there that by a Gazlan d'Oraysa, he will not also be suspect on a Shevu'ah.

Answer #2: Moreover, a Chamsan de'Rabanan is in fact, Kasher, and is not Pasul until they announce that he is ...

Source: ... as the Gemara states in Perek Zeh Borer (Sanhedrin, Daf 26b).

Answer #2 (cont.): ... because even if it is known that he is a Chamsan in this case, perhaps the Chachamim did not see fit to disqualify him on account of it ...

Answer #2 (concl.): And also not to announce, unless he grabbed the article by force, against the owner's will.

Implied Question: Whereas the questioner (there) who asks why we don't say 'Migu de'Chashid a'Mamona ... ', in spite of the clear ruling that a Gazlan de'Rabanan requires a declaration and does not become Pasul at all until after it, did not cite Rav Huna ...

Answer #1: ... only on account of the question that the sinner transgresses the La'av of "Lo Sachmod".

Alternative Interpretation of Question: What the Gemara asks is that - since he exempts himself by claming that the article was stolen or lost, and he only pays up in order to avoid taking an oath, and would not agree to pay if he would be exempt from the Shevu'ah ...

Alternative Interpretation of Question (cont.): In that case, why do we not say 'Migu ... ?'

Answer: 'He allows himself a Heter and says ... '. So that, even he were to be exempt from the Shevu'ah, he may also have paid, seeing as he is holding on to the Pikadon ...

Answer #2 (concl.): ... and that explains is why he is not suspect on the money.

Question: Why does the Gemara not say 'Yim'at' ...

Source: ... like it says in Maseches Succah (Daf 2a) - 'Mavoy de'Rabanan the Tana mentions the Takanah'.

Answer #1: Because he wants to say 'Like a Succah', it uses the Lashon 'Pesulah'.

Answer #2: Alternatively, because it would then have had to use a more lengthy Lashon and say 'He should extinguish it, lower it and rekindle it' ...

Reason: ... since to lower it in its lit state would not suffice

Source: ... as the Gemara states in Perek Bameh Madlikin (Shabbos, Daf 22b) 'If he lit it inside and then carried it outside, he has done nothing'.

Conclusion: And the same will apply here.

Inference: It implies here that wherever it says 'Ein Bein', one cannot say 'Tana ve'Shayer'.

Question: The Ri from Orleans queries this from the Mishnah in the first Perek in Megilah (Daf 8a, See Tosfos DH 'Ein') 'Ein Bein Nedarim u'Nedavos Ela she'ha'Nedarim Chayav be'Acharayusan, u'Nedavos Eino Chayav be'Acharayusan'.

Question (cont.): How about the fact that a Nedavah can be purchased from Ma'aser whereas a Neder, which is an obligation, can only be purchased from Chulin ...

Source: ... as we learned in 'ha'Todah' (Menachos, Daf 81a)?

Answer #1: The Tana there is not coming to list all the differences between Neder and Nedavah, just that the sole Chiyuv of the one that is greater than the other is that of 'liability' ...

Answer #2 (cont.): ... and that regarding 'bal Te'acher' (bringing the Korban after its time) they are equal.

Precedent #1: And in the same vein, 'Ein Bein Shabbos le'Yom ha'Kipurim ... ' (Megilah, Daf 6b) is not coming to list all the differences between them - such as the prohibition of eating -

Precedent #2: And similarly, 'Ein Bein Yom-Tov le'Shabbos Ela Ochel Nefesh Bil'vad' (Ibid.) is not concerned with the stringencies with one over the other - such as La'av and Misah - only with what one may or may not, do with them.

Answer #2: Alternatively, the Mishnah in Megilah is also cited in Masec"hes Kinim (Perek 1, Mishnah 1) in connection with 'Olas ha'Of ve'Olah bein Neder bein Nedavah, Ein Ba'ah min ha'Ma'aser - Since it is not eaten ...

Source: ... as the Sifri Darshens in the Parshah of "Aser Te'aser" (in Re'ei) - 'Talmud Lomar "ve'Achalta ve'Samachta" a Simchah that includes eating, to preclude Olos that are not eaten.'

Conclusion: But this is not the place to elaborate.

Explanation #1: In the first Lashon that it cites as a proof (for Rebbi Chiya bar Aba) the Gemara does not need to say 'Shiyer' ...

Reason: ... because it maintains that since it says 'Merubeh', one cannot say 'Shiyer', just as we say by 'Ein Bein'.

Support: And this is implied in the wording of the second Lashon ''Does it say 'Ein Bein'? It says 'Merubeh!' ...

Support (cont.): ... implying that the Gemara initially thought that 'Merubeh' is equivalent to 'Ein Bein'.

Question: What else does the Tana omit that enables it to omit this?

Answer #1: It omits Ta'anas Ganav by (an) Aveidah (that he finds) ...

Source: ... since Rebbi Yochanan Darshens later (Daf 63a) that he pays Kefel, and if he claims that it was stolen by a Pikadon, he does not pay Arba'ah va'Chamishah in the event that he Shechts or sells it ...

Conclusion: And the same will apply should he claim Ta'anas Ganav by Aveidah.

Answer #2: Furthermore, the Tana omits someone who steals from his partner and partners who steal, who do not pay Arba'ah va'Chamishah, as the Gemara will say later in the Perek.

Explanation #2: Others explain that it wouldn't matter here, even if the Tana would not omit anything else ...

Reason: ... since the Tana is not concerned with numbers, and is only coming to teach us that there are more cases of Kefel than there are of Arba'ah va'Chamishah.

Question: Since they (Karka'os) are precluded from a Shevu'ah, as the Gemara says in Perek ha'Zahav (Bava Metzi'a, Daf 57b) why not ascribe the Pasuk to the fact that they are not subject to Kefel by To'en Ta'anas Ganav, who only pays when there is a Shevu'ah, as the Gemara says later in the Sugya (Daf 63b)?

Refuted Answer: The answer cannot be that we need it for where he jumps in and swears (of his own accord) ...

Refutation: ... because in ha'Gozel Kama (later, on Daf 106a) it is evident that he does not pay unless it is Beis-Din who initiate the Shevu'ah.

Answer: We need it for where he swears via a Gilgul Shevu'ah ...

Source: ... as we learned in the Mishnah in Kidushin (Daf 26a) 'Property with Achrayus (Karka) causes one to also swear on property without Achrayus (Metaltelin)'.

Alternative Answer: However, according to the Gemara's Maskana later (on Daf 63b) 'This "Kol" is a 'Ribuy', since the Torah did not write the P'ratim by Kesef ve'Keilim', and he also holds that Kefel and Shevu'ah are one and the same, the matter is resolved (anyway) ...

Alternative Answer (cont.): ... seeing as there is only one Pasuk for both of them.

Question: How can one steal Karka?

Answer #1: By moving the borders ...

Answer #2: ... or by stealing things that are attached to the ground ...

Precedent: Such as the case in Shevu'os, Daf 42b) where 'Ten laden vines were stolen, the Nifkad claims that there were only five, and it later transpires that he stole them'.

Question: Why is a Pasuk required to preclude Sh'taros from paying double, bearing in mind that, even if one destroys it with one's hands he is Patur from paying even the Keren - according to the opinion that does not declare 'Dina de'Garmi' Chayav? ...

Extension of Question: ... and even according to the one who does, it is only mi'de'Rabanan, as Tosfos explains at the end of 'ha'Parah' (Daf 54a, DH 'Chamor').

Answer: Seeing as, if the Sh'tar was still in existence, he would be Chayav to return it, we would have thought that when he returns it, he pays the Kefel together with it (See Hagahos ve'Tziyunim).