Clarification: As the Gemara explains 'What difference does it make whether one sells it to a Hedyot or to Hekdesh'?

Clarification (cont.): And it is referring to Kodshei Bedek ha'Bayis

Reason: By which one cannot apply the principle 'Before it was Reuven's ox, and now it is still Reuven's ox', as one can with respect to Kodshei Mizbe'ach ...

Reason (cont.): Since a Korban is brought to atone fo the owner; it is Shechted in his name and the name of the owner remains attached to it.

Refuted Question: And one cannot ask why the Gemara earlier (on Daf 76a) does not ask why the Tana does not draw a distinction in that case itself (where he stole, declared Hekdesh and then Shechted) and say 'When does that speak (that he is Patur from Arba'ah va'Chamishah), by Kodshei Mizbe'ach, but by Kodshei Bedek ha'Bayis

Refutation: Because above, the Gemara was justified in asking a similar Kashya since it was all speaking about Kodshei Mizbe'ach, since by Kodshei Bedek ha'Bayis the Gemara did not want to make this distinction, seeing as S'tam Kedushah of a live ox and lamb is for the Mizbe'ach ...

Implied Question: Even though the Tana there, does differentiate when it says 'Tavach ve'Achar-kach Hikdish Meshalem Arba'ah va'Chamishah' - an that Hekdesh refers to Kodshei Bedek ha'Bayis ...

Answer: That is not during the animal's lifetime.

Explanation: According to th opinion that 'Yi'ush is not Koneh', it is easily understood (as to why he is Chayav Arba'ah va'Chamishah) since when he was Makdish the animal after Yi'ush, it is not his animal that he is being Makdish.

Explanation (cont.): Whereas according to the opinion that Yi'ush is Koneh, the Chiyuv is confined to where he Shechts it before Yi'ush, but after Yi'ush (he is Patur, since) it is his own animal that he Shechts or sells.

Explanation (cont.): Yet he is Chayav if he is Mekadesh it, even though before Yi'ush, the Hekdesh does not take effect ...

Explanation (concl.): In the same way as he is Chayav if he sells it or gives it as a Matanah before Yi'ush, even though he achieves nothing, since the sale and the gift do not take effect.

Reason: Because 'His declaration to Hekdesh is equivalent to handing it over to a Hedyot' there where he does have the power to declare it Hekdesh (even though in this case he doesn't).

Clarification: It speaks where he did not pick it up ...

Reason: Because if he did, he would acquire it and he would be Chayav, as the Gemara will say later.

Clarification, Opinion #1: At the beginning of 'Eilu Na'aros' (Kesuvos, Daf 31b, See Tosfos DH 'u'bi'Reshus') Rav Acha and Ravina argue over this - One says that he took it out into a Simta (an alley), but to the R'shus ha'Rabim, he would not acquire it ...

Source: And he extrapolates this from the Seifa - 'Hotzi'u', similar to 'Higbiho', where it enters his domain.

Opinion #2: Whereas the second one says that he will acquire it even if he takes it into the R'shus ha'Rabim ...

Source: Which he extrapolates from the Reisha 'If it dies in the domain of the owner, he is Patur, but outside his domain, he is Chayav, even if he takes it into the R'shus ha'Rabim.

Opinion #3: It would seem that that Sugya argues with Abaye and Rava who say in 'ha'Mocher es ha'Sefinah (Bava Basra, Daf 84b) that Meshichah acquires in a Simta, but not in the R'shus ha'Rabim.

Refuted Explanation: It would not be correct to draw any distinction between the Kinyan of a Ganav, who only acquires it to become Chayav for Onsin, and regular cases of acquiring ...

Refutation: Since the Gemara Darshens above (on Daf 65a) in connection with Ganav 'We only know (that) "Yado" (acquires); from where do we know 'one's roof, courtyard and enclosure?' ...

Refutation (cont.): Implying that a Ganav only acquires in a location that is subject to a regular Kinyan.

Precedent: As the Gemara Darshens (in Gitin, Daf 77a) "ve'Nasan be'Yadah" (similar to the above D'rashah on Daf 65a).

Halachah: The Halachah, it seems.is like Abaye and Rava ...

Proof: Since it cites their opinion in 'ha'Mocer es ha'Sefinah' (Ibid.), implying that it is the main one.

Conclusion: Consequently, the principle 'Wherever Rav Acha and Ravina argue, the Halachah is like Ravina - le'Kula', is not applicable here.

Explanation #1: The Lashon that Rashi cites ascribing this to the owner ...

Refutation #1: Is far from correct - firstly, because we will then need to explain that the animal died due to carelessnes and not naturally ...

Refutation #2: Furthermore, the Lashon of 'Chiyuv' and 'P'tur' are not applicable to B'chorus B'no or to his Ba'al Chov (only 'Hifsid' and 'Lo Hifsid')?

Refutation #3:Moreover, the Tosefta (Perek 7) states 'Higbiho ve'Nasno li'Bechorus B'no', implying that it refers to the Ganav, because if it referred to the owner, to whom it belongs, why would he need Hagbahah?

Refutation #4: And finally, the proof that the Gemara brings from the Mishnah regarding the She'eilah whether they instituted Meshichah by Shomrim or not is incomprehensible according to that Lashon, according to the explanation of the Ri in the Gemara (See following Dibur).

Explanation #2: The correct Lashon is therefore the one that ascribes it to the Ganav giving it for B'chorus B'no ... ', which renders the Ganav Chayav with the Meshichah of any of these people.

Question: Why is he Chayav with their Meshichah? Why do we not apply the principle 'Ein Shali'ach li'Devar Aveirah'?

Answer: It speaks where they did not know that it came to his hand be'Isur, but they actually thought that it belonged to him.

Answer (cont.): In which case, both according to the Lashon in the first Perek of Bava Metzi'a (Daf 10b, See Tosfos DH 'I') that gives the reason of 'Ein Shali'ach li'Devar Aveirah' as being since the Shali'ach is himself a bar Chiyuva, 'Divrei ha'Rav ve'Divrei ha'Talmid, Divrei Mi Shom'in?'

Answer (cont.): And according to the Lashon that gives it as 'He has the choice to perform it or to abstain' ...

Answer (concl.): It does not apply here, since whereas there, the Meshale'ach does not know whether the Shali'ach will transgress, here he knows that he will take it, thinking as he does, that the Meshale'ach is the owner.

Question: Above (on Daf 71a) in connection with 'Ganav ve'Tavach be'Shabbos, where the Gemara establishes the case where he Shechts it via someone else, and the Gemara asks where we find that Reuven sins and Shimon is Chayav ...

Question (cont.): It could have answered that there too, it speaks he believed the Meshale'ach to be the owner ...

Answer: Only it gives a good answer anyway, and that answer is Halachically correct.

Question: The Kashya remains however, how the Gemara can say 'Just as the Mechirah is performed via somebody else, so too, the Tevichah' ...

Question (cont.): Perhaps that speaks specifically where the Shali'ach thinks that the Mesha'le'ach is the owner, seeing as there is nothing extra in the Pasuk to teach us otherwise? (See Tosfos Kidushuin, Daf 42b DH 'Amai').

Refuted Explanation: The Gemara is not asking as to whether each Shomer becomes Chayav from the time of Meshichah - a Shomer Chinam for negligence, a Shomer Sachar for Geneivah va'Aveidah and a Sho'el for Onsin ...

Refutation: Since it is obvious that they are, because otherwise, from when will they be Chayav?

Proof #1: Because the Mishnah in ha'Sho'el (Bava Metzi'a, Daf 98b & 99a) states 'that if the Sho'el tells the owner to send it, and he sends it, he is liable', and the Gemara there (94b) says 'Parah bi'Meshichah'.

Proof #2: And in the Sugya of 'Sho'el Kurdum' (Ibid. Daf 99b) the Gemara says 'If it refers to Onsin, why is it any different than a cow, which renders him Chayav from the time that he borrows it?'

Authentic Explanation: The Ri therefore explains that the She'eilah concerns the owner is permitted to retract even after the Sho'el and the Socher have performed Meshichah, before they have begun to work with it, or not.

Authentic Explanation (cont.): Since there is an opinion in connection with someone who borrows an ax, that he only acquires it after he chops with it, and that until he has, the owner can retract, and the same applies to a cow before he has worked with it.

Resolution: The Gemara resolves the She'eilah from the Mishnah 'Nasnu li'Bechorus B'no', which states 'Higbiho O she'Hotzi'o me'Reshus Ba'alim u'Meis, Chayav'. Does this not refer to the Shomer?

Resolution (cont.): Because the fact that the Ganav becomes Chayav with the Meshichash of the Shomer proves that it is a proper Meshichah, in that the owner can no longer retract ...

Proof: Because if he could still retract, the Shomer would not be Chayav via his Meshichah.

Refutation: 'No', answers the Gemara, it refers to the Ganav himself, who was taking the animal from the house of the Shomer, and the text reads 'A Ganav who steals it from the house of the Shomrim' ...

Explanation: And it speaks where he did not give it fully for the Bechorus of his son or to his Ba'al Chov, because if he did, the Kohen or the creditor would be the owner and not a Shomer ...

Explanation (cont.): But where he made it an Apotiki (giving them the right to claim), that in the event that he fails to pay by such and such a date, it will become theirs.

Rav Huna: This is how Rav Huna, who says in Perek ha'Sho'el that, as long as the Sho'el has not chopped with the ax, the owner can retract, would refute the proof and the Kashya that the Gemara asks later 'What difference does it make whether he stole from the R'shua of the owner or of the Shomer?' does not bother him.

Rav Huna (cont.): In fact, in 'ha'Ish Mekadesh' (Kidushin, Daf 47b & 48a) there is a Tana that supports him, who says that even in the case of a Halva'ah (a loan of money), the lender can retract as long as the borrower has not spent the money, how much more so in the case of She'eilah (a borrower (a loan of an object or an animal).

Three Opinions: Opinion #1: And there are three opinions concerning this matter: Rav Huna holds that they did not institute Meshichah by a Shomer.

Opinion #2: Rebbi Elazar holds they did, as the Gemara says there (in Bava Metzi'a) 'And he argues with Rebbi Elazar'.

Opinion #2 (cont.): According to Elazar too, mi'd'Oraysa he can retract, only the Rabanan instituted that he cannot do so after the Meshichah.

Opinion #3: Furthermore the Gemara says there that 'He argues with Rebbi Ami, who says that 'Someone who lends his friend an ax of Hekdesh, he is Mo'el, and his friend is permitted to chop with it Lechatchilah' ...

Opinion #3 (cont.): Implying that, according to him. This implies that Meshichah acquires mi'd'Oraysa ...

Reason: Because if it only acquired mi'de'Rabanan, and he is Mo'el only because he cannot retract mi'de'Rabanan, as we find in the case where he gave it to the bath-attendant' in Perek ha'Zahav (Bava Metzi'a, Daf 48a & 48b), then it would be a case of a Chumra that leads to a Kula - seeing as his friend is permitted to use it Lechathilah'.

Clarification: This means that he hid himself ...

Clarification: And the Gemara thinks that he went stealthily and Shechted the animal there where he was (i.e. that is where he found the animal); hence it asks 'But he did not make a Meshichah?'

Clarification: This means that he did it in an open place, and it is not comparable to someone who steals in a house or in a Chatzer.

Clarification: This reason is needed according to the opinion, earlier on Daf 57a; See Tosfos there, DH 'ka'Savar').

Reason:

Clarification: This reason is totally inapplicable by 'To'en Ta'anas Ganav and Ta'anas Gazlan.

Clarification: This speaks evn in the house, since, to pasture is forbidden even with regard to a Beheimah Gasah ...

Source: As the Gemara says in 'Zeh Borer' (Sanhedrin, Daf 25a) 'The shepherd which they said (is disqualified from testifying) refers both to one who pastures a Beheimah Gasah and to one who pastures a Beheimah Dakah'.

Question: When Rava concludes there that it refers to rhose who rear (in the house) - 'That those who rear a Beheimah Dakah in Eretz Yisrael are Pasul, in Chutz la'Aretz, are Kasher; whereas those who rear a Beheimah Gasah, even in Eretz Yisrael, are Kasher' ...

Question (cont.): What is he coming to teach us, seeing as 'that in Chutz la'Aretz, he is Kasher, is stated in the Mishnah, which permits it even in Syria, how much more so in Chutz la'Aretz?

Answer: Granted, it is not needed, and it is only because it said that in Eretz Yisrael they are Pasul, that it concludes that in Chutz la'Aretz, they are Kasher.

Answer (cont): And what it does need to tell us is that those who rear a Beheimah Gasah, even in Eretz Yisrael are Kasher ...

Reason: Since as far as the Mishnah is concerned, we would have thought that even a Beheimah Gasah is forbidden, and it only mentioned Beheimah Dakah to teach us that even it is permitted in Syria.

Clarification: And it would seem that the Gemara in the first Perek of Bava Metzia (Daf 5b) which declares Kasher someone who pastures animals belonging to others, because of the principle 'A person does not sin with somebody else's property' - is confined to a Beheimah Gasah which one is permitted to rear ...

Clarification: (cont.): But regarding a Beheimah Dakah in Eretz Yisrael or in Bavel according to Rav, there is no distinction between someone who rears his own animal or somebody else's ...

Proof #1: Seeing as it is forbidden even when it is tied to one's bedpost (as we will see later in the Sugya).

Refuted Opinion: Not like the commentary that explains later that according to Rav Huna, one is permitted to give it to one's wife (to look after), in the same way as one is permitted to give it to a shepherd - which explains why Chovah looked after the animal (on behalf of Rav Huna, her husband).

Proof #2: Because since Bavel is like Eretz Yisrael with regard to a Beheimah Dakah, one cannot differentiate between looking after it oneself or doing so via others.

Implied Question: And as for those goats that ate peeled barley in Neherda'a, in 'Chezkas ha'Batim' (Bava Basra, Daf 36a), about which the Gemara says 'Goats are different, since they are handed over to a shepherd', even though Neherda'a is in Bavel ...

Answer: Perhaps they were not so careful about Rav's opinion, that Bavel is considered like Eretz Yisrael, seeing as also Rav Huna did not adopt this stringency.

Support #1: And so it is implied - that the Isur applies even to doing it via others, since that Chasid (mentioned later on the following Amud) did not hand over the animal to a shepherd.

Support #2: Similarly, the Ba'alei-Batim of the Galil (Ibid.) did presumably not pasture their sheep themselves (yet it was forbidden).

Support #3: And 'the shepherd who did Teshuvah' (Ibid.) too, is surely speaking where he could find others to pasture for him, yet the Gemara obligates him to sell them bit by bit.