QUESTION: The Mishnah (59b) states that olives which an olive-picker knocked off the tree do not become his (if he does not own the tree). Someone else who takes those olives does not transgress the prohibition of stealing mid'Oraisa, but he does transgress Gezeilah mid'Rabanan, because 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, they belong to him, and someone who takes them from him transgresses the Torah prohibition against stealing.

What does the Gemara intend to teach? It is obvious that if the picker placed the olives into his hand, he acquired them and no one may take them from him. (TOSFOS DH Liket)

TOSFOS answers that the Gemara's intent is to teach that even if he picked them with intention to throw them down and he immediately let them fall from his hand, the presence of the olives in his hand for a moment constitutes a Kinyan 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 he knows that the item is in his hands but he has no intent to acquire it, it does not become his. Tosfos there seems to contradict Tosfos here who says that although the person picked the olives with intent to throw them on the ground, he still acquires them immediately once they are placed in his hands, even though he has no intention to acquire them.

(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 had no intent to acquire them. Rather, Tosfos means that in a situation in which the picker immediately throws the olives down, there is room to assume in error that he did not have intention to acquire them. The Gemara teaches that even though he threw the olives down to the ground, we must still assume that he picked them with intent to acquire them, and therefore one may not take them from him.

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

(c) The SHACH (CM 275:3) understands that the RAMBAM disagrees with Tosfos in Bava Basra and maintains that although the picker knows that the item is in his physical possession and still has no intent to acquire it, he nevertheless acquires it. (See also RASHBA and RAN (on the Rif) here.)

OPINIONS: The Mishnah teaches that a woman may lend to her friend a sifter, mill, and oven even though her friend does not observe the laws of Shemitah. Also, 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 cause Chalah to 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, does it refer to all of the acts mentioned previously (both lending utensils and assisting in food preparation), or does it refer only to assisting in food preparation? Perhaps lending a utensil is permitted even when no lack of peace would result without lending.

(a) RASHI maintains that even lending is permitted only for the sake of peace. When no lack of peace will result if one does not lend the utensil, one is not permitted to lend the utensil.

(b) TOSFOS asks that the Mishnah in Shevi'is states that one may sell a cow used for plowing to a buyer who does not observe the laws of Shemitah since there is a possibility that he will slaughter the cow for meat and not use it to plow. That Mishnah implies that as long as there is a possibility that the Am ha'Aretz will not use the item for a prohibited act, one is permitted to sell it to him (and there is no concern for "Lifnei Iver").

Tosfos assumes that only when one does not want to lend his utensils is there concern for lack of peace, but there is no concern for lack of peace when one sells his wares. When one sells an item, no lack of peace will result 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). Tosfos proves from the Mishnah in Shevi'is that one is permitted to lend utensils to someone 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 approach, RABEINU TAM explains that the Mishnah must refer to a case in which it is known that the other woman has only produce of Shemitah in her possession and will definitely use the utensils for her Shemitah produce, and yet the first woman is still permitted to lend the utensils to her for the sake of peace.

OPINIONS: The Mishnah teaches that a woman may lend to her friend a sifter, mill, and oven even though her friend does not observe the laws of Shemitah. The Mishnah explains that she may lend these items for the sake of maintaining peace and harmony among people.

TOSFOS proves (see previous Insight) that the Mishnah refers to a case in which the utensils definitely will be used for prohibited produce, in which case one is not permitted to lend the utensils to an Am ha'Aretz even when refraining from lending will cause a lack of peace. When there is a possibility that the utensils will be used for permitted produce, one is permitted to lend them to an Am ha'Aretz even where there is no concern for lack of peace.

This seems to contradict the Yerushalmi which states that one 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, and not to sift grain. This implies that even if all of the produce in his possession is produce of Shemitah, one still may lend the utensils to him since he might not use them for food at all.

(a) TOSFOS answers that the forms of usage mentioned in the Yerushalmi are not normal forms of usage of utensils. If those forms of usage are the only ways in which the utensil can be used in a permitted manner, one would not be permitted 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 one may not lend utensils to an Am ha'Aretz even in a case where one is not sure that he will use them for prohibited produce, unless there is a concern for maintaining peace. Based on this, the RASHBA and RAN explain that the ruling of the Mishnah in Shevi'is (see previous Insight) -- which permits one to sell a cow used for plowing to an Am ha'Aretz during Shemitah (even though there is no concern for maintaining peace in the case of a sale, as mentioned earlier) -- is a special leniency made so that one may make a living to support himself.

The RAMBAN and RITVA explain that the concern for maintaining peace exists even in the case of 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 which the Mishnah here mentions.