Bava Metzia 6a: Tekfo Kohen, Kol D’Alim Gavar, Tefisah, and Hekdesh

Transcript

Clarify. I'm going to chozer on what we spoke at the end of the shiur yesterday. I asked you, what's the pshat in Rashi? If Rashi discusses itim lomar that motziin with yacholim, what do you mean yacholim? The ikar nekudah is itim lomar that motziin eisim yadei. The main thing is that motziin. Meila, hekesh won't work. Why is Rashi matgis the motziin with yacholim? Another shayla I asked you: Rashi explains the eino mekudeshes, lo alah mikdei shemitpakka. Rashi should just say because it's the same thing and it doesn't work, it doesn't work. Meaning, you don't even need a Rashi. I mean, if it's motziin eisim yadei, I'm not—hekesh doesn't work. Rashi sticks into that there's a hava amina. Not that it's like the Gemara saying a fact: you should know, on the side of motziin it doesn't work. No. On the side of motziin, there's a chiddush that it doesn't work, and we don't say hekesh is olin mitakka. Behind Rashi is not learning; it's just a pshitusa. Pashut a pshitusa. On the side of motziin eisim yadei, of course hekesh doesn't work. The question is itim lomar that it's ein motziin—what do you do? No, Rashi's saying, for ken, there's a chiddush in motziin eisim yadei, hekesh doesn't work. What is that? That we don't say hekesh is olin mitakka. Rashi makes it into a chiddush. What is the chiddush? What do you mean, olin? Stronger? Why do I think it's stronger? Stronger got to be what? What is stronger? The shayla is, is it takka or not takka? And if it's takka, it doesn't work, so that's it. What's olin? It's not clear, Rashi, what is the reason that hekdesh is always ... Doesn't say. In the next ... in the next ... we find the shaila is hekdesh like taka or hekdesh is not like taka. But we never have a tzad that hekdesh is more different than taka. Here Rashi makes it that there's a havamina that ... comes along. No, there's a chiddush that it's not ... only ... Only stronger than ... It becomes stronger. It's either that it's like a taka, but it's not like a taka. I want to say pshat like this: Rashi's not clear which mahalach he learned ... So we spoke last shiur that there's a Tosafos and there's a Rashba. Tosafos asks the question, ... Could you come and make a hekdesh without a kinyan? That's the shaila of the sugya. So I want to say that l'maaseh there's a Rashba. The Ramban learns ... The Ramban learns ... what happens is that since it's ... could be ... The Ramban learns ... If it's ... ... that's the Ramban. But for emes, there's more to the ... The Ramban says that the starting point of the sugya is the yacholiku to teach me the motzi mechaveiro alav haraayah, which means if the yacholiku is ... so then avada motziin osi miyado. And ממילא from there we go further to say once it's ... ממילא you can't be ... But there's a nekudah of being motzi from the yacholiku. The Ramban introduces to us that a variable, and the nekudah in the sugya is: could something be mevatel from a yachloiku? V'hainu a taka. Could a taka be mevatel from a yachloiku? Which means, if yachloiku is stam vadai, then the tofeis can't undo that just because he was tofeis. That's the Ramban. And then the Ramban follows, l'meimar, if it's vadai, you can't be makdish. But there's also a cheilek, a wheel in the sugya, as they say. There's a wheel in the sugya: could you be mevatel from a yachloiku? And that's the starting point of the Ramban. I want to say that it could be Rashi's maskana. V'hainu, he holds like the Ramban, that once it's vadai yachloiku, you could be makdish. And if it's safek yachloiku, you can't be makdish. I'm not getting into that nekudah. That could be the Ramban, that could be the Rashba, but that's irrelevant to me. Rashi can hold like the Rashba, no problem. But Rashi, who says that there's a special chiddush in the first part of the Gemara, v'hainu she'eilah rishonah of motziinos miyado, hedisha mahu, mahu taka she'eilah, not stam mahu din, peshitah that it doesn't work. Rashi is learning that that's the cheilek of the Ramban, this she'eilah. V'hainu, what could you be mevatel from a yachloiku? The tzad that a tofeis can't be mevatel from a yachloiku, because yachloiku is a vadai. Mahu, what's the din of hekdesh?

Maybe a hekdesh kubi. Talkaf is a tach. I'm trying to undo the achloiku because I have hefker. You can give it back. But this hekdesh is more stronger. Kubi, once you are makdish it, that could undo the .... Zokt Rashi, mahu, that's the shaylah. So what's the maskanah? Eino mekudeshes, loi olim hekdesh ... If you can't be motzi. I said to yesterday, I'm trying to tell you this, I want you to understand that the Rashi who makes that the first shlav of the Gemara is also chiddush. What would be the chiddush according to Rashi? This shtickel of the Ran, this piece of the Ran, this wheel, that the Ran says, could you be motzi from the achloiku or not? Talkaf can't. This is the psak lahalachah. Talkaf doesn't work. Zokt Rashi, mahu is a shaylah. What about maybe hekdesh would be able to do that, and the teretz is loi olim. It's not strong enough to undo the achloiku. If so, I understand why Rashi stresses the achloiku, because they can include not the ..., they can include the achloiku. Because the achloiku, which means we don't let you with the psak, with the talkaf, because ... is to make the achloiku. What about if you are makdish it? ... I understand also maybe why Rashi speaks about hekdesh, but not talkaf. Rashi said only ... What do you mean? Could be not. Could be since this nekudah of the Gemara is what could be motzi from the achloiku, talkaf can't be motzi. Hekdesh loi olim mitakaf. Takah and makdish. Maybe that will be like tumah, tumah-like, could be. I know that's what Rashi פשוטי טקסט. If Rashi says that the she'eilah was like takah, that should be takah, it would be different takah. What's the heter? Because this is the nekudah in Rashi, and this is the way Rashi learns up the shaila in the Gemara. Because takah take away from a hekdesh. Takah can take away from a hekdesh; from a Gemara you can't, from a yachloikus you can't take away from a yachloikus. We're not hekdesh. Mahu, that's the mahu according to Rashi, which means this is takah she'eilah here. No, eina mekudeshes. The answer is no, because like, oh, yeah, but could be if it's takah emakdish, it is עולה, because we're dealing with galimus over here. That's the peshat, the wordings of Rashi, the wordings of Rashi. The hainu, the second part of the Gemara is the she'eilah if we could come and say, when there's a yachloikus ba'dei in safek yachloikus, if we say takah works, takah in makdish works. The first side of the Gemara is, what can be motzi from the yachloikus? In other words, the first she'eilah is the... in other words, the second she'eilah is like the Rishonim deal with Rashi and the Ran, from a yachloikus vadai, should we be machria who is the ba'alim, a meileh hekdesh or not hekdesh? The first part of the Gemara is something else. On the side is the yachloikus. What happens takah? Could takah be motzi from a yachloikus? Could you undo the psak yachloikus that was supposed to give because you were takah? The Gemara, we see motziin מידי, they can't do that. It's like the Gemara, mahu. So what's in by hekdesh? Not stam mahu because we wanted to come to a maskana eina mekudeshes, and it's a peshitusa. Okay, takah she'eilah. Maybe hekdesh is different, maybe hekdesh is stronger. These are the words of Rashi. Okay, now let's start. Taisis, starting new, fresh. Taisis, give me a maskana d'ha. Says Taisis, you know how I learned up fakeh, mesusah, hekdesh? What is a fakeh? Says Taisis, ... This is shaila of mesusah. Kivan d'mekarkei hi, this is karka. And by karka we know the halacha is different than metaltelin; it's not a din called ... The key of the sugya here, karka is different than metaltelin. By metaltelin, we have Taisis, daf hei, ... But by karka, called ... If it's called ..., the kivan d'paka echad, the hekdesh k'shehi b'yadoi, since if you bemakdish it in his hand, ...

Sulei paka. Stam. Interesting lashon, tight. Means, yeah or is it not? Something stam. Mistama, sulei paka. What is mistama? I don't say is it or isn't is what. Mistama. What are mistama? Mistama sulei paka. Afilu chazar chaveiro v'takfo imenu. Even if his friend went and was tokef it. So therefore he kiddisha, the lei takfa nami havei hekdesh. So therefore if he was makdish without tokef, also hekdesh. Like Dilma, maybe, keivan d'afilu gavar ha'echad, im yachol hasheni lachzor v'tokfo, zocheh. V'hadin hikdish shelo takfo, lo yachol hekdesh klal, keivan d'chaveiro takfo yazocheh, olim hekdesh mitkayem. Now, be'emes, to understand well the two tzadim of Tosafos, the lomdus of it, the biur of it, I think you have to first learn the words of Tosafos. There are a lot of words here in Tosafos which are tzarich biur. Halacha is that Tosafos takes on as klalim, accepted klalim, and because of those klalim, Tosafos has two sevaros: it should work or it shouldn't work. Now listen paying close attention. First of all, the nusach mistama. The nusach mistama is pashut shver nusach, but understand the inyan that Tosafos is dealing with to base the two sevaros are chidushim atzumim, very big chidushim over here. Tosafos says that the person could come back and be tokef it. Meaning, hagahm is a din by kol d'alma. A person can come back and be tofeis it; mimeila the tzad sheini is like chalah hekdesh. Like I say, first of all, the mistama of Tosafos is, the stam, the mistama, mistama tzulei paka. What does he mean by mistama? Mistama means for no reason. That's what the word mistama means. Okay, we'll get back to the mistama. But even more of a chiddush, that when there's a kol d'alma, Tosafos takes on that the other person can grab it back, which means kol d'alma goes and goes, and whoever ends up with it at the end of the day, gavar, he wins. If you look on your sheet, bring it down: אי תפיס דינא לאפוקי, והסברא הספק. The ha, svaras ha-safek is a nesusah. What is the svara of the safek by nesusah? Tosafos says either it is chal or it's not chal, dependent on what, if you can grab it back or not. U'muchach lehageh b'Tosafos. It comes out according to Tosafos the biggest chiddush, that kol d'alma works hinin v'shav, as they say in Yiddish, back and forth. He can grab it, grab it back. He can grab it, he can grab it back. The Shach, siman kuf lamed tes, se'if katan zayin, brings that the Rosh is cholek on this. Hagahah from Tosafos is mashma that you can always grab it back after kol d'alma. The Rosh holds you can't grab it back. Can't grab it back. Rosh tries to grab back kol d'alma. Quotes this from Bava Basra, pei gimmel, chaf-beis. Pei gimmel, chaf-beis. Yeah, what? Can't grab it back. No, no, we're not even discussing that. That's two different... Like I said, first see the hanacha that Tosafos takes. Tosafos has two hanachos. The first hanacha is, mistama suloi paka. That once he was makdish it, mistama suloi paka, afilu chazar chaveiro v'tafsa b'medina. That, mistama. The... I mean, why? I mean, mistama means he knows so, he doesn't know so? Is that the halacha? Understand what that... Tosafos is saying like this: first of all, you should know that once it's chal, suloi paka. Yes or no? Don't say mistama, is it or isn't? Is there such halacha? Mistama it should be that way. I don't see mistama means. Okay. The second hanacha Tosafos takes on is that since l'maaseh I can always grab it back—wait, who said you can always grab it back? So l'maaseh the Rosh is cholek; you can't always go grab it back. So you have to say, l'chura, that Tosafos, the Rosh, could have never worked like this Tosafos, because Tosafos is based on the fact that you can grab it back. Grab is a big machlokes in Shulchan Aruch. The Shulchan Aruch himself paskens like the Rosh. The Shach brings Tosafos, and he has a whole list of rishonim holding like Tosafos, and he's cholek on the Shulchan Aruch. The Shach is cholek on the Shulchan Aruch, and he says that...

Well, it works like the Rosh, I'm sorry, like Tosafos, that you can grab it back. What the hezber of the machlokes? The hezber of the machlokes is, if you learn kol daled amos of psak or a siluk. If you learn kol daled amos is a psak, so once it's daled gavar, then you can't go grab it back; that was a psak. Once the psak was called, the daled gavar, so then there's a psak. Whoever's daled is gavar, and then it's finished. If you learn it's a siluk, which means Beisin has a safek, they don't know how to deal with it, so they say, Okay, go fight it out. Okay, so whoever wins at the end of the day—I mean, you fight it till you fight it out, you keep on grabbing, you grab it back. Kol zman that it's still Beisin doesn't know what to do, they tell you to go fight, so this is fighting; they're fighting it out. We could, but I'll tell you the truth, I'm not saying more than the Rishonim. This is all in the Rishonim. I'll show you where it comes from. The Rishonim say this clearly. If you look on your sheet, I bring you down how beautifully it's pshutim by machlokes: in kol daled amos, psak, or kol daled amos, siluk. If you look in the brackets on the sheet, I explain it: Psak, shema she'eilem siman shezeh shelo. How does psak work? The Rishonim are matzdik because since he was aleh, he was stronger, it's a proof that it's his, because usually you fight for what's yours. You give in quicker when it's not yours. Divrei Torah also that way. The person has his svara, he can fight to do with it what's part, to make sure you're matzdik. But if it's not his svara, all right, okay, somebody's a gavar. So you fight away. It's not a psychological shiur; this is what it is. Kol daled gavar, the Rishonim say, the Rosh says clearly. The siman, the siman, azeiz up the Rosh. If you look at the taich, the ein malatzei. We have no choice. What are you going to do? We have nothing what to do. We tell him we can't do anything for you. We can't pasken for you. Therefore, okay. L'maaseh, this is brought already in the Tosfos Rid, which in most yeshivas they already have done this in Arba. They reverse this psak, sefek. I don't even know if we went through it. I think we skipped right over it. We did touch on it? Yeah, we went through it. Okay. So this is a Tosfos Rid in the beginning of the sefer, that the tzad of kol d'alim gavar is sefek, and therefore we can go back and forth, go back and forth, sefek. What's the problem in this sugya? The problem in the sugya is that the Rosh, who holds you can't go grab it back, could never hold like Tosfos, right? If you look at the Tosfos haRosh, he brings Tosfos. The Tosfos haRosh is mazbir, the stadim of the machlokes of the shayla, mamash like Tosfos. How could the Rosh himself speak that you can grab it back, unless I grab it back? According to the Rosh, you can't grab it back. So how could the Rosh bring Tosfos and Sefarim? The Tosfos haRosh, both Tosfos. Tosfos is based on the yesod you can always grab it back. That's Tosfos, you grab it back, and therefore... yeah. Why would it be called Tosfos haRosh? I mean, again, again, it could be you have to say that Tosfos haRosh is quoting over Tosfos, and not... Yeah, but if he holds, he's cholek. He would be chayav if there's also telachah. He could פטור the Rosh and bring out ... There's no telachah according to the Rosh. Tosafos is very clear. Tosafos says clearly that the whole two צדדים are based on a yesodiing ... back. The first צד is, afilu chazar chaveiro v'taksa mimenu, mistama lo paka. אי דילמא, or maybe, since he could be chazar v'tokef, that's not chal in the first place. But both צדדים are dependent on the yesodiing ... back. According to the Rosh, there's no such thing; there's no grabbing back. So what's pshat that the Rosh had to bring this Tosafos? The Rosh brings the Tosafos that the study ... like Tosafos. The answer is the simple part of the kasha. The kasha gets a little stronger and a little more muchach. If you look on your sheets, I bring you down ... Here you'll see the Rosh, ... So first of all, aleph, when he writes the Rosh, I'm quoting now the lashon of Tosafos. Afilu gavra yad chaveiro v'takfo, lo paka hechsher, keivan d'hikdisha, chazina ...

Yadoi v'tapcho. Yilkach chal hekdesh v'shulei tapcho. Therefore, the hekdesh is chal and the kinyan goes. This is the lashon of the Tosafos Rosh. Afilu gavra yadoi yad chaveiro, v'tapcho, lo ipaka hekdesh, d'kivan d'ikdisha. Now let's see how the difference from Rashi, from the Rosh, and the Tosafos. Afilu chazar chaveiro v'tapfei menu. So he doesn't explain why. Tosafos doesn't explain why, but the Rosh explains. D'kivan d'ikdisha, since he was makdish it, chazinan ki'ilu gavra yadoi v'tapcho. We look at it, and this is a very key word here, we look at it as if it's taka gavra yadoi v'tapcho, yilkach chal hekdesh v'shulei tapcho. The hekdesh is chal and shulei tapcho. L'maaseh, Tosafos never said that. Tosafos never said that we look at it as if it's tapcho. Tosafos didn't say that. Notice, right? No. Kivan d'tapcho l'echad v'ikdisha k'shebiadoi, mistama sulei paka. Afilu chazar chaveiro v'tapfei menu, ki d'ikdisha, lo tapfei nami havei hekdesh. And he doesn't speak out because it's as if he was tapa. Very gishmak, don't worry. Soon you'll see what it means to learn a Tosafos. It means to read the Tosafos like a mensch. The Rosh and Tosafos are identical. The problem is, the Tosafos and the Rosh are cholek if you can be tofeis b'chazara. It's very difficult for the Rosh and Tosafos to be identical in halacha. That's the simple part of the question. Good, so then you'll have two ha'aros. One is from certain bachurim; they'll say, You know the Tosafos Rosh, the Rosh. So now you know the Tosafos Rosh and the Rosh, okay. Then you'll have a second group of bachurim are going to say, and I was afraid of this: the Tosafos Rosh is not him; it's just saying over Tosafos. If a hakchi mefaresh Tosafos, he'd disagree with him. How could you come and not write v'li nirah that it's not true because you can't be toleh with it? If halacha is you can't be toleh with it, it would be a shtickel a problem if the Rosh brings down a whole Tosafos and he doesn't say, Dachchak, l'aniyas da'ati there's a different hesber, because it's not true, because there's no such halacha. The truth is there's more to the kasha. This is where we separate the little boys from the big boys, because the little boys ask it like this. That's how the little boys ask. The Rosh, the Rosh, the Shitah, the Shach, very nice, very nice, beautiful, okay, good. No problem, I have no problem with that. You'll say your Torah and you write your sefer and you call it Torah, Torah, Torah, Torah, Tosafos Rosh, okay. Now, what's the problem? Then this is where clearly the Rosh is really adding to Tosafos a certain line, and I underlined that line: v'kivan d'kedushah, look on your sheet, I underlined it, v'kivan d'kedushah chazinan ki'ilu gavra yadu b'tav. We look at it as if it's gavra yadu b'tav. Hilkach chalah hekdesh, v'surai paka. L'maaseh, we'll do this later, l'maaseh, Tosafos says mistama. The Rosh doesn't speak mistama. The Rosh says surai paka; it's not paka, finished. What's the mistama? You see, there's something very key word here. What does mistama l'sulei paka? Unless, like I said, what he means is mistama for no reason. It doesn't mean mistama, like ki'ilu kipshuto. Mistama because for no reason l'sulei paka. It's not for no reason; there's a reason here. Something's wrong. The word mistama. Yosef, what, mistama? Mistama, either it is or it isn't. Probably. Unless mistama means for no reason. I don't know, something's wrong here in Tosafos. But ma'aseh, the Tosafos speaks, that's l'sulei paka, vadai it's not paka. On these words, v'kivan d'imkadshei acher b'kishi b'yadoi, mistama—he doesn't say mistama, but he says l'sulei paka. Afilu chad chaver v'takmei kiddushin loi takfa nami hada, because d'kivan d'kdisha chazina ki'ilu gavra yada v'takfa. These are the words that go on when he was mekadesh without—without being tofeis. Therefore, since we look as if he's tofeis, it's good. Kipshuto, that's what Tosafos means. But I'm saying, I'm just pointing out, what the problem—there is no problem. The problem is maybe that everybody's hungry today. I have no problem. I'm just pointing out that Tosafos l'maaseh never said that. I'm just pointing it out. It's fair, am I allowed to point that out, that the ma'aseh Tosafos never said that. At the end of the shiur you'll see why Tosafos didn't say that, because it's not true.

By that pshat, that's not true, but Tosafos holds that that's what he meant. I meant something else in Tosafos. I'll soon show you what I want. According to the Rosh, I have another kasha for you. What's the kasha? Chutz from that, that you can't even begin to talk Tosafos. Rosh, Rosh, you can't begin to talk Tosafos because there's no such a thing as grabbing it back. The way you understand grabbing, then it can't be tfulei patah, because how do you understand grabbing? You understand grabbing that the ta'anis is a raya that it's not the other person. If you are maskim that you could grab it back, and he could keep it when he grabs it back, because then it's a raya it's his, so then it was never the other guy's being makdish from the first place, so why is it tfulei patah? I'm the very Tosafos doesn't... Something's wrong here. Again, the first thing is that the Rosh brings the Tosafos. Rosh, how could you bring Tosafos if Tosafos is based on a halacha, a halacha that you disagree with? You disagree with this halacha. You hold that you can't return it and then be tofeis. So how could you have two stadim in case you're tofeis, but what happens? Question number one, that's the simple part of the question. The even more difficult part of the question, and the more stronger question is, Rosh, the way you understand bichlal kol davar, even if you're maskim to Tosafos, if you grab it back... If you're mistaken that kol ba'alim meis is a proof that it's yours, you always write that Rosh. Once you're proving that it's yours, why is it still loi patur? Avadis patur. It must be patur. It's got to be patur. What do you mean, avadis patur? You're showing that it's not the first guy, so why is he... Why is it תלוי פטור? For what reason is it תלוי פטור? That's it. It's finished. It's never his. I'm sure why. It seems to be difficult. Then I thought I'd be out of here in an hour. The whole thing is simple stuff. I mean, it's not great chiddushim. Tosafos and the Rosh disagree in a basic halacha if you could be makdish—I'm sorry, if you could be tofeis after kol ba'alim ba. So the first hanachah is that Rosh, you hold you can't be tofeis, then I don't understand how you could even talk. Tosafos talk. I mean, what are you talking about? You don't hold of that, so what are you saying? That's not my kashya, everybody. That's the same kashya. My kashya is that more learning up the sugya. I'm not a kashya that you say chaburah on. I don't see what you're saying בכלל. According to you, Rosh, the way it works is that it's a raya, and because it's a raya, therefore you grab a hold of it; you can't be tofeis after. And the צד that it's a raya, so if the other person is tofeis b'chazarah and he could keep it because he has a raya that it's his, kol ba'alim is a siman that it's yours. So how can it be that תלוי פטור? Why is the hekdesh not patur? It has to be patur. How could the hekdesh not go חלות if it was never נתקדש? It's not true. It's a raya that's not his. Just the second guy was. The minute the second guy grabs it back, you have a raya that it was never the first guy. So then how can you be makdish it? So why is it, if he was makdish, who cares? Can you be makdish your chefetz? It was mine at the time. No, it was. Listen, because that there was nekar mi'kar, because once I grab it, it's proof that it's mine. So it's not yours. It's proof that it's mine. So how could you be makdish it? If I brought edim, it's you are makdish. If I bring edim, you're makdish my chefetz, so who cares what you did? Yeah, but before you grabbed from me, it was mine. No, why? Now it's what? Because if it wasn't, how could I grab it back and have proof that it's mine? How could something be yours and mine in the same day? You want to explain to me? How could you have edim that—huh? Huh? It's not. It's machlokes you and the Rosh. Now meanwhile, that what it is, it's a safek. The Rosh holds safek d'oraisa. It's unbelievable, unbelievable thing. Because if somebody came and grabbed it in the first place, it's back. Listen to the Rosh. Do me a favor. First learn the Rosh. The Rosh says that every time kol ba'alim works, because it's a siman that it's yours. It's a siman that it's yours, then there's no safek here. The moment it's yours, then you prove that it's yours, then you have the right—you have the right to be makdish it. Don't argue with the kasha, the kasha, the kasha. You want to say teretz, say a teretz. Don't argue with the kasha.

This siman is yours. You're not ... You can be makdish from ... to ... I bring evidence that something which is yours, which is mine, you are makdish, and there's no hekdesh. So what's the ...? Look at the sheets I bring down, which is ... Tiraya, shema oylam lo haya shel harishon, u'levadai tiksa hekdesh, chavadah dehekdesh. Now, ois beis. Bichlal, ma shehikdish lo shayach lihyos ketzdakah l'fi haRosh, v'ein kan siman v'raayah shezeh shelo, v'ma shetakah lei hekdesh. According to the Rosh, then how could hekdesh ever be tzedakah? The way it works is that if a person is fighting for it's a siman that it's his, that's the whole din of kol d'alim gavar in the first place. So according to the Rosh, you can never have tzedakah through hekdesh. This line, according to the Tosafos, the way it works is it's kol d'alim because I'm a ... You can be makdish tzedakah; you can be makdish a tzedakah also. But if the pshat in the kol d'alim always is that you're fighting for it, and it's fought to the extent this is a siman that it's yours, where's the siman and the raya when you makdish it? So according to the Rosh, there should never be a tzedakah in the first place through hekdesh. So why it's so hard today. Tosafos, because he disagrees halachically in Tosafos. That's a problem. That's a famous problem in the Rosh. The second problem is, in lomdus it doesn't work. The sevara doesn't work, because on the side of the Rosh... The way kol d'alma b'chlal works is that there's a raya that it's yours. And that's how the Rosh himself says, siman that it's yours. So that's a siman that it's yours, and because of this, the Rishonim say it's a psak vadai. Kol d'alma is a psak, not stam a beis hafekos; it's a psak. If I grab it back, so then, and it works. Technically it should even work, so it's not a kasha. That's a Bava Basra kasha. Now let's break it up like this. There's two kashas. There's Bava Basra kasha: the hainu, it doesn't work, there's no such thing. And then there's a Bava Metzia kasha: even if you take on that it does work, yeah, but l'maaseh you hold that it's a raya, so what are you talking about? The minute I bring a raya, it's mine, so therefore it should be patur. The moment the second guy grabs it and it works, then it means that it does not belong to the first side. It doesn't belong to the first guy; it can't be hekdesh. I don't know what you're talking about. There is no kol d'alma. The question is, there is kol d'alma. And the question is that there can't be such a thing. That's question number one. Then there's question number two: even if there is such a thing, the way the Rosh explains kol d'alma gavar means that it's a raya that it's yours, so then it's not hekdesh. Period. That's the end of the story. If I prove with eidim that you were makdish my cheftz, it's over. That's it. There's no sugya here. Third question is, even the way the Rosh understands kol d'alma gavar, that means that since I put a lot of effort into it to find it out, to get it, it's a proof that it's mine, so hekdesh can never be chal on that. What work that I put into it? Heker, I show you it's not mine. I'm not interested in it here; I'll give it to the Rabbeinu Shalom. So what am I proving exactly? If the taich is it's a siluk, then you can come and say he's a smart cop. Instead of grabbing it, and he pushed the other guy away, he was makdish and pushed the other guy away. But if the hanacha of kol d'alim gavar begins with it's a proof, what is the proof if he's makdish? There's no proof here, because he was makdish. Maybe he's a shemes. But klal, ma shehikdish lo shayach lihyos kitafas l'fi haRosh. According to the Rosh, bichlal shayaches to tofas. The Ein Katzimim is a raya that sheloi b'mah shetafas. Bichlal, what's the kol d'alim gavar? Through hekdesh. The Gra, siman kuf lamed tes, se'if katan beis, says, by the way, this sugya is a raya to the Rosh meginei, and tosfos towards the chukim. Says the Gra that it can't be that she'evel to be machzir and tofas, because if you could have been machzir the tofas, you would never have a hava amina sheyakdish, that he should be makdish in the first place, because since the other guy could always grab it back, avadai he can't be makdish. Zogt the Gra, ay Tosfos says not like that. Tosfos says that you can still grab it back, and there's a tzad that you be hekdesh.

We have a very strange. Say we have a very strange. The first thing, you start on a mefurash in Mechaber, where the Mechaber paskens like the Rosh, says the Shach—excuse me, not the Gra, but the Shach. The Shach is mefurash in Shulchan Aruch, he says, no, not so; I pasken like Tosafos. I'm not sure. Then we have a Gra that says he's cholek right on Tosafos, even you Tosafos. The Shach, you pasken like Tosafos; I'll Tosafos more. Tosafos more. The Gra doesn't work out in this. Why? Because on the tzad, the person could go and grab it back. It can never be that there would be a hekdesh here in the first place. The guy could always grab it back. The hechsher of the Rosh is right. Now you're back to the kasha even better, right? Because not only that the Rosh brings Tosafos, the Gra says that according to the Rosh, Tosafos is wrong. So it's wrong in halacha, it's wrong in svara, something's wrong here. You're masking now something's wrong. But Chaver is learning the sugya al pi. He learns out sugya very simple. Since lemaaseh he can grab it back, therefore, since he can grab it back, therefore there's a chavah mina should be hekdesh. If not, there wouldn't be a hava amina. The only hava amina of hekdesh is because the other guy cannot grab it back. That says the Gra mefurash, and that this, that Tosafos says he can grab it back and still have a tzad that should be hekdesh, דברי דחויים. Can't be such a thing. So it comes out, look at the arrows on your sheet, that minei ubei, however you turn this rubik's cube, as they say, you've got yourself a problem. First of all, הרי קאסבר הראש, שהביא בהם ... First problem: how can you bring the pshat Tosafos? How could you bring the pshat of Tosafos according to the Rosh? Lefi haRosh, he hekdesh ketzitzah, so she'ein sulo שייך לחציו ויצא. Masha'en to what? To be chayzer the teikus. So what's the svara? Also it's shver, Tosafos itself, the Gra's kasha, that on the side that you could be teikef it, how could it have been hekdesh in the first place? And then I have another kasha which bothers me very much. According to Tosafos, that he could be chayzer v'toifes, what's the pshat? The pshat is because there's no hachra'ah. What's shitas Tosafos? Shitas Tosafos is that there's no hachra'ah; it's just a safek, and therefore the other guy could be chayzer v'toifes. On the side that you be chayzer v'toifes, Tosafos has a second side; therefore it's not chal the hekdesh. You know what I would say? That it can't go off. When the other guy is toifes it, since it's not a pshat, it's not a vadai, it's only misafek that we let you have it, so how could that take away the hekdesh from the first one? What's the first side of Tosafos? What's the second side of Tosafos? Which means that if you learn like the Rosh, then the problem is with the first side. The hainu the gemara of Tosafos says that the hekdesh, since mistama sulei paka, afilu chazar, you can't learn there's no chazarah. Ela mai, there is a chazarah, which is Tosafos. So then what becomes the second side? What's the chazarah according to Tosafos? Because misafek we let you hold it. Why misafek we let you hold it is that going to undo the hekdesh in the first place? If you remain hekdesh, so ... What's the second side? Second side of tefisas is, if because of the taka, maybe it will chal a hekdesh. Why not? Because it wasn't taken for either. The makdish wasn't taken for either. Yeah, but the second guy could be tofeis, tofeis itself. On the side he can zoiche. The second guy be zoiche, even without kefirah of the first man, he should be able to makdish it, and hekdesh is not chal. That's what it says, right? Right. So I'm asking like this: even on the side that he could taka. True, let's say there is such a thing called taka. Even if he was makdish in taka. No. Even if he was makdish in taka. No. Even if he was makdish in taka. No. Just the second side. Let me ... I'm not here to learn ... He didn't. But the side of tefisas is, since let's say I'd be makdish and you'd be tofeis, you could still keep it, but therefore I can be makdish to the first person. I don't say why that's true according to ... Not true. According to ... that should be true. You know why? According to ... if you grab, it's only ... So the hekdesh should be chal, so to make a difference. How would you ... However you dray this tefisas yourself, you see the difference? You have to look. The way the ... works, the question on, is the rosh, how can the rosh bring tefisas if the rosh is ...

That's the revolution. Big boys have to learn the difference. You know what they have to learn? We talk. ... But what are you saying? The words don't clock. Forget about that there's machlokes and ... Okay, leave that alone for a bit. But the words don't, don't fit. And where did I see this already? I see the Gra already digging in. Wait a minute. Rosh, you've got to be right according to Tosafos, there's no ... And I'm telling you one step further, that not only the first part of Tosafos doesn't clock, that it tries to be makdish, the second part of Tosafos doesn't clock either. Why? Because Tosafos has, since I can grab it back, the hekdesh shouldn't be chal. Wait a minute, I can't grab it back anyway in the halacha. Don't even start again anyway. Tosafos is chal. How is Tosafos? Tosafos is talking. If you look at the sheet, ... It's because there's no akra'ah on the safek, right? It's a p'sak mi-safek. It's a ... If ... that's only because there's a safek. But if the yeshar cheifetz hadayin had a safek, the hekdesh should still be chal. Follow the Tosafos. Follow the Tosafos. However you chop up this Tosafos, you're in trouble. Now, if you look at the sheet, I bring it to you in a ... lashon. I think it's very nice; you'll understand it better this way. V'hainu, chezkas haTosafos ... That's only a chazakah ... like the Rosh. Then I understand why you grabbing it back takes away the other guy's ... Shifsifasrei mayo, I bring you that halachadik, paskendik. Aval im ze safekdik v'sefekdik. Ma mafria? What's the problem? If you're chayiv a korban, it's nothing anyway. It doesn't mean anything. It's only a safek anyway. Haloi ze rak misafek v'safek, a ninety-shar hekdesh, u'k'muvan she'efshar l'Tosafos l'havin shema ani halachadik v'sefekdik, im kein yesh l'hatir. Staytst cha back to the original kasha, that on the tzad that it's really halachadik and sefekdik, then oyb azoi, how could you ever be patur in the first place? In other words, minei ubei patur m'chatas. On the tzad you can be patur, which means it's only a sefek, and if it's only a sefek, how does that stop the hekdesh? Rabosai, you understand the kasha? You have a geshmak? You don't have it. I don't know if it's going to help more time. The key word in Tosafos, I believe, is the word mistama, which means Tosafos himself never said a tzad שהוא לא פטור, but rather mistama שהוא לא פטור. Hagah, Tosafos never used the word mistama. There's a key word here, mistama. And we clarify, what does the word mistama mean? Does it mean mistama כאילו בלי חשבון, that's what it means? Or mistama means that Tosafos himself says, ki peshuto, substitute the word mistama for the word ki peshuto, which means Tosafos himself was never klar, paskening that שהוא לא פטור. Okay, that's a hakirah. The second ha'ara is that the whole Tosafos revolves around the shita that if you always take it back, the Rosh holds you can't take it back. So how we pasken that the Rosh brings Tosafos, how we pasken. That's the simple kasha everybody asks. You're big boys, you have to ask the kasha deeper. You have to ask the kasha more lomdish. In cheshbon, it doesn't work out, this sugya. First of all, the first kasha is, according to the Rosh, the pshat is that it always works ki'ilu you have a raya that it's yours. That's how kol ba'alim works. So the moment the second guy was tokea, what's the sevara paka of the Rosh? What's the first side of the shayla where the Rosh and Tosafos agree? Why would be sevara paka? What is paka? The minute you bring a raya, it's yours. Paka, finished. What's to talk about? So there comes a question on the first side. What also becomes a kasha: where is the kol ba'alim bichlal here in the sugya according to the Rosh? Because we see with taka, we say it's yours. It's a siman that it's yours. Hekdesh doesn't have those ma'alos. Hekdesh does not have the—

In the way the Rosh learns takah. This one, in the way the Tosafos learns takah, that it's a sevara, we don't know what to do, so, you know, go do whatever you want. It's okay, do whatever you want. But if it's because you have a raya that it's yours because you fought for it, hekdesh doesn't have that. The Rosh's shaylah is to say hekdesh like takah, according to. The third shaylah is, the Rosh says according to Tosafos there's also no hakpadah. Because according to Tosafos, that you could always grab it back, so the hekdesh doesn't have a chalah in the first place. Which means that therefore, if you could learn the first side of Tosafos, it has to be Rosh. That it's any acher lachmei, the hekdesh chalah. So how does that undo the hekdesh? However you turn it, the two sides of our theory, letting alone the kasha that the Rosh, how you taka, you bring it to the side of the takah. Rabosai, I hope there's a big yesod here. It's possible maybe Daniel mentioned this in the beginning when he was bothering you for no reason in the beginning. Maybe, but you have to hear the kasha before you say the teretz. Maybe this is what you meant. This is what you meant, you're saying pretty good. I hold the big yesod. Even the Rosh has learned that the psak over here is psak vadai, and the Tosafos is a raya because you fought for it, that's yours. But the reason why we pasken it is misafek. If avada begins misafek, because we have a safek what to do, so then we give a psak called ba'alim. The mechanics of called ba'alim is that we give it to vadai. But if not for the safek, we wouldn't pasken called ba'alim. When we have a hachra not called alim, we definitely don't follow kol d'alim gavar. When Tosafos speaks that when we have shnayim ochzin, when muchzakim, we don't say kol d'alim gavar. So there's two reasons. There's one reason you could come and say, because kol d'alim, like the Rosh uses such a lashon, how can we let you steal from another person? Each guy's a muchzak; we can't pasken kol d'alim. If you remember the shiurim I spoke about this, because the yeshiva have all over is kol d'alim. The kol d'alim is a ta'ich where we have no choice but pasken kol d'alim. So here's the muchzak, so there's a way how to pasken. First we pasken shnayim ochzin, first we pasken that's machlokes, where the machlokes. We can't apply. But meileh we have to fall back on kol d'alim. Not that it's kol d'alim is a sevara; kol d'alim is a psak. But it's a psak which is used only after we don't have another hachra. In other words, since we don't have how to be machria, so we use this as the hachra. Tosafos says that whenever we have shnayim ochzin, the talis, we don't say kol d'alim. So a lot of Rishonim learn, because if it's vadai yours, how do you talk and we say kol d'alim? L'choira, according to the Rosh, the Rosh who holds it's vadai, kol d'alim is vadai, so then what pshat in the heter? So you have to clarify that what? That the ra'ayah of kol d'alim is weaker than the ra'ayah of muchzak. Why should be that way? So why should the ra'ayah of kol d'alim, the way the Rosh learns kol d'alim, that it's a ra'ayah, be a weaker ra'ayah than muchzak? What pakta? If I have a raya, you're not a mukhzak. Why should it be that kol d'alim gavar, we don't pasken as a mukhzak? Why is the weaker raya? Why is it less of a raya? Come and say, your raya is a mukhzak. There's a kol d'alim here. You're proving it. But if beis din would work, then you have to start clarifying in levels. That's much of a raya, that's strong enough of a raya. In other words, even the Rosh, who learns vadai, and even the Rosh who says that we don't say it when there's a mukhzak, what's pshat in the Rosh? How do you pasken with the Rosh? How do you pasken with the Rosh? The Rosh learns that the safek vadai, so why don't we say by mukhzak? Say by mukhzak also. Teretz: as much as it's a safek vadai, vadai we use it with the vadai, but not where we can machria another way. Where there's no hachra, this will be the raya. But vadai, it's not the pshat that l'chatchila we go say kol d'alim gavar. You want to say everything Torah shebichtav. Everything Torah, when we walk into beis, pasken kol d'alim. If you learn, if you learn that the pshat in kol d'alim, tosfos, that it's never a klal anyway.

It's only a safek. I have ta'us, ta'usa d'varim. Since you're saying, therefore we can't passen kol d'alim. When we have no choice, we passen kol d'alim. According to the Rosh, that kol d'alim is a p'sak. And this p'sak of kol d'alim's p'sak is what? That it's because it's a ra'aya, and the צד השני is always pasul. It's a teretz. It's only a ra'aya when we have no other way to have a p'sak. I'm saying it is a p'sak vadai. That's right. It's a p'sak vadai, not a ra'aya. That's what I want to say. It's a p'sak vadai, not a ra'aya. We can go back now and answer all the kashas. Kol shedanin אותו לפני התקיפה. So when we come to be dan not after the tkufa, but before the tkufa, would kol d'alim gavar be a vadai, or would kol d'alim gavar be a safek? If you're dan after, then this becomes a ra'aya. But if you're being dan that you could be tokef, and the could be tokef is not a ra'aya, here we're being dan before the tokef בכלל. We're talking about hitchashvus loi tokef, and the shayla is since he could be tokef, a vadai it's not called a vadai. If you're being dan after the tokef, then you're right, then the דברות are right. It's a vadai. But if you want to be dan the din of kol d'alim gavar before the person was tokef, he should be loi tokef, because he could be tokef. This, we're not going to tokef. It's not a raya that it's not a safek. About the two safekim according to the Rosh. In other words, answer we give you to you for the top down, we gave it to you. But it doesn't mean that the matzav wasn't a safek before the top down. If never proved to me that the whole time it was yours, real users are proof to give it to you. That's called. Remafreya, it's never a raya that it's yours. Pemeila, higdisha belo ta'ka. When it was דין before you were tofeis, could you be makdish? Because you could be tofeis, it's still not a raya. There's no vadai over here that it's yours that we should let you say you should be makdish it. That becomes a shaila. Let's do it inside. The boys, let's do it inside. We'll follow. Vilochein, kol shedaninan lifnei ha'tefisah, kisrugya, like our sugya, shehigdish u'lemaaseh lo taka, adayin nikar chaftza klapei Hashem, she'ein kan vadai ba'alus. What are we saying? That it could be tofeis. Tofeis is a vadai. So higdisha ki taka, vadai. What's the chezkas of tofeis? That's the shaila. Yes, taka, not taka. It could go off, it can't go off. That's not pshat tofeis. The pshat of tofeis is that we're looking at it before he grabbed. If he would grab it, what would be before he grabbed? If he was taka, what is that a raya to before? It's not a raya to anything, because even according to the Rosh it's still a safek. We gave it to you, we suff. What was the pshat? We gave it to you, you being the raya to ... But it was only a safek. So it was only a safek. So then if we want to look before the takanah, if we want to be judged, what was this before the takanah? ... Now, lochei, I have no problem that the Rosh brings ... Why? Because we're not talking l'maaseh after you were tofeis; could the other guy be tofeis? The Rosh held once we gave it to you, we gave it to you, the other guy can't be tofeis. But before, if we're discussing the before, and the before it's only safek, so theoretically you should be able to be tofeis the whole safek. We're not talking about after you were tofeis it; we're talking about before you were tofeis. Before you were tofeis, you were safek, so then that safek is that you can go back and forth all day. When the Rosh and Rabbeinu Asher speak that once you're tofeis it, you can't go back and take it, that's halacha l'maaseh in Rabbeinu Asher. You want to know—

What was the hakra'ah after you were takah, to what was it like before you were takah? Because even the Rosh held that it's a safek, that that's happening here; therefore we decided to follow this raya. Remember that it's a raya l'chapirah, it was always yours. We're not saying l'maaseh if I was makdish and he grabbed it back. You get to that. That's why we're sitting here. That's why the Rosh is no problem with the kayitz, because this is not l'maaseh l'fi hahalachah. And, and I believe that's why Tosafos speaks in stam, and I believe that's why Tosafos does not stress that kivan shehikdish, harei hu... Check, man, you are catching me. Rosh, I can say that it's... Could be Tosafos, you want to go that far. Since you could be tofeis, the shaylah is what happens before the... The shaylah is, could you be makdish if you could be tofeis? Then the Rishonim, just because you could be tofeis it, that's not a raya... That's why Tosafos speaks in stam, and that's what the Graim wants. The Graim wants to say, how is it ever chal in the first place? Machti that the other guy can't be tofeis. If the other guy can be tofeis, then it can never be chal, right? What is the Rosh? Rosh is saying like this: I'm not discussing in the l'maaseh, could you or can't you be tofeis. I'm discussing the machlokes. And that's the ... two sides of the machlokes. Huh? You're gonna work out in today's shiur thinking the Rosh held called alma is psak safek. Tosafos held it's called alma is psak safek. But you're gonna learn in today's shiur different than what the whole world says. That even according to the Rosh, we came to this psak because of safek, and the biggest raya is we don't say kol d'alim. We have other choices; we don't use them. Where there's a muchzak, we're not gonna say kol d'alim. According to the Rosh, it's badei, why don't we say that? So we're gonna have to start. Imagine, you know, let's talk now, kol d'alim. Weaker muchzak wins. The way it works is that since it's only a last-resort psak, the kol d'alim, we have another way to pasken; we don't pasken kol d'alim. So even according to the Rosh that it's badei, but we got there because of a safek. And if we got there because of a safek, me'elo taisis is very nishmak even in the Rosh, because the Rosh is not telling me that he was makdish; dini was paskening. The Rosh is talking about takanas ... We're talking theoretical before he was makdish. And if we're talking theoretical before he was makdish, but about this still a safek. Me'elo is up toisis gishmak; the safek still פטור. Even though be'emes he wasn't toikef it, the Rosh stresses ki'ilu he was toikef. Ki'ilu. The Rosh, the toisis don't even want to go that far; doesn't even want that. What toisis wants is, since he was makdish it. So the meileh, with these ... so therefore you don't need to be tokea. Once it's safek, since you could be tokea, maybe that can be called. But on that side, the ... is only toka. We're not talking about the ... you were tokea. That's not the case. We're talking about theoretical. On this side that ... could work, the hechsher won't be ... So it's someone on the side that I could ... not that I already have. On the side that I could. The meileh, the ... is ... Very shmat, no? ... says mistama. Mistama. What's mistama? It's only theoretical. I keep on reading, I keep on writing on the sheet this word. It's only theoretical. This is not a real story. This is not what happened. ... You're gonna learn a new word in Yiddish now: theoretical. Theoretical. That's what it is. Yiddish. Theoretical. ... theoretical.

Another guy could be tokef. There, yisborer ma shehayesipa kan la'rosh, like a hekesh. Because I understand why the rosh calls this a p'tikah in the first place. I ask you, kasha, how can this be a p'tikah if kol d'alim works according to the Rosh because you went out of your way and you fought for it, so you're gonna fight for it. You know, the teretz is, we don't mean that mamash p'tikah. He never meant that it's because that you are tokef it. Nor the taiches, the medical system could be. Since I could be tokef it, it may as well be. That's what it means. It really can't be a kasha. What do you mean, the hekesh is a taka? We never said hekesh. Since he could be tokef it, it's no different in case he was makdish. I'm not chashuv, taka, hekesh. Hekesh and hekesh would be the same thing. If according to the Rosh, taka is because you have proved that it's yours. How is hekesh proving that it's yours? You see clearly from tokef from the Rosh, and he never meant that it's taka. Because if it's taka, I don't see how you could have hekesh to be taka according to your Rosh. This, we can also answer the Gra. How do we answer the Gra? Lefi tokef, the halacha is, since you can be choser the tokef, the hekesh is chal, the hekesh. The Rosh is not discussing that. The Rosh is discussing that it's not taka, since you could be taka. Meilu taika, the tachanan. And the tzad you could be takeh, that's the two sides of the taf. Meaning, the Rosh is kasher then the second side. That is, already by always kasher. Let it remain hechsher shenistafek. But that wasn't the shaylah. The shaylah wasn't is takah meilu let it remain hechsher shenistafek. Could he be makdish it in the first place? The Tosafos say it remains or lo yachol hekdesh. The Tosafos' last side was that since to be makdish it, it shouldn't remain, it should be paka, what should be chal in the first place? Should be chal in the first place. If we never discussed if it's like it was paka and it should be or shouldn't be hekdesh now, then you're right. Since only takah works with ... so after the hekdesh on the ... The paka is something else, a theory. Is this shayach to be such a thing? L'maaseh, meaning, l'maaseh, whether the person is takah, if the chazarah wants the havah amina, it should still be hekdesh. That was l'maaseh theory. That's then the second side. Since it's theory, he could be chayiv to be takah, so yachol hekdesh to be ... What's the first side? First side is, okay, this l'maaseh, you could be takdish it, it could be makdish it. We're not discussing the l'maaseh hilchos kol d'alim gavar if you are takah. Kol d'alim gavar, you could. Meilu taika, so much, shma. Tosafos too, ... that's the ... of the Tosafos. The second side is you can't, because since you could theoretically be chayiv the taf. The first side is, yeah, but l'maaseh I could grab it too, so that's ... Either the Rosh, the Rosh is not a ... to the halacha you takah can't be chayiv, but in theory of safek maybe you could. So the Rosh is handling kol d'alim before this ... kol d'alim. Rosh is handling. Since there's a koach of tokaf, what's the hava amina? Has to stop at the Rosh. Ela ka'ami, Tosafos never said that we look at it the hechsher tokaf, because could be we don't look at the hechsher. The hechsher is as if he would have grabbed, not hechsher tokaf. Therefore Tosafos speaks stam; we hold stam anyway. Tosafos is not handling what happens if you chazer a tokaf, but still hechsher. Stam, in theory, still remains hechsher. So Tosafos is handling a case where maybe makdish is the first place. Meila the Rosh, Tosafos one shita, and the Rosh brings Tosafos. Everything's a safek, because since the shayach to be tokaf, so could you be makdish. Now the צד that you could be makdish it, it doesn't come because of סברא; it comes from the suffix. The vadai that the Rosh spoke is after your tokaf. After your tokaf, you have it to be vadai. You know what's very much the diyuk that we spoke by muktzeh that way. Tosafos speaks muktzeh vadai, Tosafos speaks muktzeh safek. Remember what we said? When you get it, you got to be vadai. A vadai is safek. Remember we said this? Chaval, same thing. A vadai doesn't stop.

Because we don't know what to do there, but we'll pasken. But it's not the type. Kol davar is a raya now, the whole Talmud. It's a raya we should let you have it. That's all. But the svara is over here. Because the raya told you to be shapak. Every time, every time. They were—the Rosh is not shver, because we're tolding him that he wasn't a ta'ina. A ma'aseh wasn't ta'ina. Now the word is, theoretically. Theoretically. So a ta'ina is stam. Some ta'anos, I never said it was patur. Some ta'anos I pasken through, the drash. The drash is two stam. Since theoretically I can be makdish it, I can be toikef it, I can be makdish it. But since theoretically, since you can take it back, so I can't be makdish it. Tosafos never said that there's a stira. Well, yachol a hekdesh, which means it will be patur hekdesh. Tosafos speaks only yachol. Tosafos says the second side is second betoikef it, if it's stira. Second betoikef it can only be chal in the first place. That's the geder of ta'ina. Tosafos is machti to the ta'ina. The other side is no. Since theoretically I can be makdish it. The only thing is, you have to clarify. So the one of the two stam is ta'ina. So the two stam are in a—theoretically you can grab it, so theoretically you can be makdish it. Theoretically you can grab it back, can't be makdish it. Could be, could be, there's a chiddush of Tosafos that the halacha, sefek is not sefek b'chol time. Which means it's like this. Sefek means, since we don't know what to do, we let you fight it out. So, kol zman it's by you, though, there is the din that it's not really by you. Why should there be a gezeirah? Because it's a din ... Notice, the sevara never came and said that the whole time it's misupak, that even when you have it remains a safek. The ... meant to say that ... if it's yours, so it's by you, so the din is then the din תורה is over by you. You reestablished the Torah by taking it back. If it doesn't remain in the ... the whole time, that's the shakla v'tarya. But I can grab it. I can grab it back, yeah, but l'maaseh, once I grab this, there's no ... That's ... But the other guy can grab it back, even when it's by you, the ... ... maybe it's possible that the Rosh is the hefker type. Type back to the Rosh. The Rosh is that it's a safek, and it ends with a psak vadai, which means it's by you vadai. Could be the type ... is like this: after the ... it's by you vadai. After the ... But since there's a din that you can have ... you can go back and forth, you can undo that. But it's ... by me, ... The reason that even though it's by you now, but it got to be ... Notice what I say in the Rosh. The opposite of this is ... In the Rosh, the type starts of ... In the Rosh, it's patur. In the posuk, it's patur. It's charged with—meaning, it's charged with. Once you have the ... we let you keep it back. Since the ... there's a fact of ... you can undo that. I mean, the ... The ... can undo that. So when you ... since I can be makdish, since I can be tofes it, it's by me. Still, maybe the whole time it was never by you anyway. That's not called by you. Since you grabbed it back, but mainly you see that even when you had it, you never really had it, because it's even by you. In other words, the ... the ... even when you're here. That's how ... What? So then you should be able to ... it back. Well, can't you be able to grab it back? Okay. If that's the din, then it's a ... It does help. Then you can grab it back. Most ... with the condition that the guy can grab it. Yeah, but ... You have to grab it back. That's ... It's never said that it'll be patur. ... It's like he keeps telling you, ... never said this din is patur.

Okay.