Clarification: Since Shinuy is Koneh, from we see that it is effective - posing a Kashya on Rava.

Clarification: Because if it was not effective, then he Tefisah (taking it) would not be valid, in which case he would have to return it completely to the owner even in the daytime.

Question: From where do we know that the Mishnah is speaking where he took it without Beis-Din's permission? Perhaps it is speaking where the Shali'ach Beis-Din took the security, and he must return the cushion in the night and the plow in the day, because he did not transgress ...

Question (cont.): But where he did, we will say that it does not take effect?

Answer: This Mishnah appears in Perek ha'Mekabel (Bava Metzi'a, Daf 113a) in connection with someone who takes a Mashkon without permission ...

Source: Since the Beraisa said earlier 'Someone who lends his friend money may only take a Mashkon via Beis-Din - he may not enter the (debtor's) house to take it, as the Pasuk writes "He shall stand outside ... "

Source (cont.): If he (the debtor) possesses two Keilim, he takes one and leaves the other. He returns the cushion in the night and the plow in the day' ...

Explanation #1: So we see that it is referring to taking without permission - inasmuch as if he does enter, he is obligated to return it etc.

Explanation #2: Moreover 'Machzir' mentioned by the Tana implies under all circumstances.

Introduction to Question: When the Gemara says in Perek Eilu Metzi'os (Bava Metzi'a, Daf 31b) "Hashev Tashiv" - 'We only know if he took the Mashkon with permission; From where do wee know, even if he took it without permission? Therefore the Torah writes "Hashev Tashiv" under all circumstances' ...

Question: Implying that, if not for "Hashev Tashiv", we would have learned that if he would take without permission he would not need to return it ...

Question (cont.): Whereas here Rava maintains that were it not for "Hashev Tashiv", his grabbing it would not be valid and he would need to return it completely?

Answer: According to Rava, we must therefore explain like this - 'We only know that he may return the Mashkon and take it back again if he took it with permission; From where do we know that he may do so even if he took it without permission, since his grabbing it is effective? Therefore the Torah writes "Hashev Tashiv" under all circumstances'.

Answer (cont.): Whereas Abaye will explain like this: 'We only know that he needs to return Mashkon at all there where he took it with permission; From where do we know that that he needs to return it at all, even if he took it without permission? Therefore the Torah writes "Hashev Tashiv" under all circumstances'.

Support: And this is what the Gemara states here - that according to Abaye, had the Torah not written "Hashev Tashiv", we would have learned that he has the option of whether to return it or not.

Introduction to Question: At the end of Perek Hamekabel (Bava Metzi'a, Daf 116a) however, the Gemara records that when a man who took a butcher's knife as a Mashkon came before Abaye, he ordered him to return it because of Keilim that are needed for one's livelihood ...

Question: And since Abaye holds 'I Avid Mehani', why did he instruct him to return it (See Shitah Mekubetzes, Hashmatos 28)?

Answer: It speaks there where the man involved did not have the intention of transgressing.

Introduction to Question: And this also answers another Kashya (See Shitah Mekubetzes, Hashmatos 29) - on the Mishnah in Perek Hamekabel (Ibid. 115a) 'Someone who takes the upper and lower millstones transgresses two La'avin'.

Question: Seeing as Abaye holds that returning rectifies the situation, as he said regarding the butcher's knife 'Go and return it', why is he subject to Malkos, since it is a 'La'av ha'Nitak la'Asei'?

Answer: According to Tosfos previous answer however, the question falls away - inasmuch as where Abaye said 'Go and return it', it speaks when he did not intend to transgress, whereas the Mishnah which rules that he receives Malkos speaks where he did.

Refuted Answer: Some commentaries answer that the Mishnah which rules 'Laki' is speaking where the article got lost and he is unable to return it, in wich case he has nullified the Asei of "Hashev Tashiv".

Refutation: This is not correct however, since in the last Perek in Makos (Daf 16b) it is implied that once the man is eligible, it is not subject to nullification (See Footnote 1).

Clarification: And Shinuy ha'Shem is not Koneh.

Question: Here it implies that Abaye requires an extra "Ta'zov", whilst Rava doesn't ...

Question (cont.): Whereas at the beginning of 'ha'Gagozel Eitzim' (Bava Kama, Daf 94a) it implies the other way round - that Abaye extrapolates from the statement of Rebbi Yishmael that Shinuy is not Koneh, and Rava refutes that and learns that here it is different, since the Torah writes an etra "Ta'azov"?

Answer: The Sugya here goes according to the Tana Kama ... Abaye holds that 'I Avid Mehani' - and that if not for the extra "Ta'azov" he would not need to separate Pe'ah immediately after transgressing, but that he is permitted to finish the harvest ...

Answer (cont.): Only according to the Tana Kama, if he changed it and made a dough from it, he acquires it withy Shinuy and does not need to separate Pe'ah from it after that ...

Answer (concl.): But Rebbi Yishmael who rules that he must separate from the dough, holds that Shinuy is no Koneh ...

Reason: Because if he held that generally, Shinuy is Koneh, he would not require the owner to separate from the dough ...

Implied Question: And even though the Torah writes an extra "Ta'azov" ...

Answer: It is needed for there where he did not make aa Shinuy - in that, even though normally 'I Avid Mehani', here this is not the case, since the Torah adds an extra "Ta'azov" ...

Answer (cont.): But according to Rava, who holds 'I Avid Lo Mehani' - that is why the Tana Kama requires him to separate Pe'ah, despite the fact that he transgressed "Lo Sechaleh", so thayt the Tan Kama does not require the extra "Ta'azov" for this.

Answer (cont.): Where he made a Shinuy however, he is Patur, since 'Shinuy is Koneh' ...

Answer (concl.): Whereas Rebbi Yishmael holds that even though normally, 'Shinuy is Koneh' here it is not, because the Torah writes the extra "Ta'azov".

Implied Question: Even though Hefker is Patur from all of these ...

Answer: This kind of Hefker is Chayav ...

Source: And we learn it from the extra "Ta'azov", which is written by all of them (See Shitah Mekubetzes, Hashmatos 32).

Chidush: The Ri states that the Chiyuv applies only if he acquires the entire field, but if he acquires only the fruit, he is Patur from all of them.

Question: Why can we not answer that they are arguing over a case - where a person swears that he will not divorce his wife and then transgresses and divorces her - in which case the divorce will take effect according to Abaye, but not according to Rava - seeing as he contravened a Torah command (See Hashmatos, Shitah Mekubetzes 33)?

Answer: Since it is not an Isur that is written in the Torah, (like "Lo Yuchal Leshalchah"), but one that he instigated, Rava will not say 'Lo Mehani'.

Introduction to Question: Rabeinu Baruch asks why we cannot answer that they are arguing over a case - where a person redeems a B'chor, Ma'aser or Charamim, which everybody agrees is not effective, as is explained in the Sugya ...

Question: In which case he will not receive Malkos according to Abaye, since it is not effective; whereas Rava maintains that, since he transgressed a Torah command, he will? Tzarich Iyun.

Clarifying Text: Rashi, in Perek Sh'nei Se'irei) Yoma 63b) omits 'Paras Chatas' from the text ...

Reason: Because in the last Perek of Kesuvos (Daf 112a) the Mishnah states 'If someone (burns) Shechts the Paras Chatas outside its location or sacrificed the Sa'ir ha'Mishtale'ach outside the Azarah, he is Patur, as the Torah writes "ve'el Pesah Ohel Mo'ed Lo Hevi'o" - 'One is not Chayav on anything that is not fit to stand at the entrance of the Ohel Mo'ed' ...

Reason (cont.): And the Gemara asks there 'Is the Sa'ir ha'Mishtale'ach not fit to stand at the entrance of the Ohel Mo'ed?' and it cites the Beraisa here ...

Reason (concl.): Now if the text read 'Paras Chatas', then, just as the Gemara asks from Sa'ir ha'Mishtale'ach, so too, could it ask from Paras Chatas - and the answer that it gives there will not apply to Paras Chatas? ...

Conclusion: Therefore what Rashi explains - to delete the text, is correct.

Introduction to Question: There is a Kashya on this however, from the Gemara's answer in Zevachim (Daf 113b) 'Lo Kashya, one speaks before the Hagralah, and the other, after the Hagralah' ...

Introduction to Question (cont.): Before the Hagralah it is fit to sytand at the entrance of the Ohel Mo'ed, yet the Pasuk precludes it - that if he sacrificed it outside, he is Patur ...

Question: Whereas in Yoma (Daf 62a) the Beraisa specifically states that before the Hagralah, whoever Shechts it outside is Chayav?

Introduction to Answer: According to the Maskana in Zevachim (Ibid.) the question is answered ...

Introduction to Answer (cont.): Since it concludes that there is no Kashya,and that one speaks before Viduy, and the other, after Viduy (See Shitah Mekubetzes, Hashmatos, 32).

Answer: In that case, it is possible that both are speaking after Hagralah, whereas before Hagralah it may well be that the one who Shechts outside is Chayav, like the Gemara in Yoma.

Clarification: Which is also a Ba'al-Mum - and it teaches us that when it says 'she'Chilelo Laki', it is because he was Makdish a Ba'al-Mum.

Implied Question: And he mentions 'she'Chilelo' ...

Answer: Because had he not transferred it, he would not be Chayav Malkos merely for being Makdish a Ba'al-Mum, seeing as he was not Makdish it on the other one.