Bava Metzia 8b: Riding and Leading an Animal, Muchzak, and Tefisah Re’uyah L’kinyan

Transcript

This shiur is brought to you by the Lev Aharon Foundation. For more, visit levaharonlibrary.com. ... Reichel mani, mini mani ... Tosefes ... ... echad roichev, echad manig. Mamash, יש חלוקה. There's chalukah. If it's chalukah, v'echad rochev, echad manig, you see clearly, manig is koneh. Heima d'lishmastisa, manig koneh b'makom rachov. The way we learned the sugya, that rochev we're talking about also manig b'raglav, like Tosafos says above, talking about manig b'raglav, because then otherwise you have a raya that rochev l'chudei kani from the Mishnah. The answer from the Mishnah is not right; it's talking about manig b'raglav. Then kashya from Tosafos: madach manig is koneh b'makom rachov, manig b'raglav, meaning rochev b'raglav, so then kol sheken is koneh. V'i rochev aydei manig b'raglav, kol sheken the manig gadol. D'afilu b'makom rachov, manig b'raglav kani, kol sheken b'makom rachov l'chudei. ... from the Mishnah b'chamah ... The min haMishnah ... manig b'makom rachov, d'afilu kani miki muchzak. Even if he's not koneh, you call him muchzak. What was the kinyan? The Gemara explains that the kinyan was something else. The kinyan was not rochev, was not manig; the Mishnah is talking kinyan אחר. The question is, who is kaina? So they want to use the muchzakus of roich v'manig to decide who should get the cheftz. Baal, roich v'manig, they're both muchzakim, and yachloku is the Mishnah. But it's not a shaylah לגבי the kinyanim בכלל. What the kinyan was could have been something completely different, as eiszt the Maram, pshat in Tosafos. So what do we see from here? That be'emes the nidon of muchzak is not the nidon of kinyan, because Tosafos wants to say that it's trying to kinyan with something else, and the muchzak was this. So why can't we prove from the muchzak what the kinyan was? And the teretz is, the kinyan is not muchach—I'm sorry, the muchzak is not muchach what the kinyan is, they say Tosafos. From what we know, the muchzak is not necessarily what the kinyan is. That's what you see from Tosafos. V'meila, if you're muchzakim because of roich v'manig, you still don't know that roich v'manig is the kinyan, as they state in Tosafos. Let's see the hemshech of Tosafos. U'mikom makom, ... What's bothering Tosafos? Why does he use the Mishnah as a raya? How could he use the Mishnah as a raya to the sugya of roich v'manig? I thought you're talking about the Mishnah is not a raya because the Mishnah is not talking about kinyan, it's talking about muchzak. It's yemuchach, shapir, from the Mishnah. That you could prove. Me'acher, because since, me'acher... Because this is called a mufsek. If this is not koneh at all, then it could be a mukhzak. In the beginning of Tosafos, Tosafos אומר רoichen b'makom mazik. So what roichen b'makom mazik is, that's not going to prove what kinyan is. But if you want to discuss roichen l'chud and manig l'chud, roichen being a mufsek and manig being a mufsek is a raya for roichen l'chud and manig l'chud. That's the cheshbon of Tosafos. When it's roichen u'manhig together, that's not a raya to kinyan, just because it's a mufsek, it's not a raya that's kinyan. Maybe they were koneh in some other way. But roichen l'chud, manig l'chud, mufsek l'chud, that is taka a raya what the kinyan is, because it couldn't be a Tosafos; it couldn't be a mufsek without knowing what the kinyan is. It's a little bit of a stretch to understand: why is it that the roichen u'manhig together, that doesn't prove that roichen u'manhig is a kinyan? Masha'en kein, roichen l'chud and manig l'chud, that does become a...

Prove to what the kinyan is. I say, reicha v'mafkia mani isn't a kinyan, so reicha v'makneh should be a muchzak. Choyfesh the ches. Reicha v'manig l'chud together, that's not a raya to what the kinyan is, because it could be that you're not koneh, but you can still be a muchzak. Ma she'ein kein, reicha l'chud and manig l'chud, if it's a muchzak l'chud, it has to be that you're koneh. That's the Tosafos. Don't give me like I'm just repeating over Tosafos, b'choireh. If reicha u'manhig, that's not a raya what the kinyan is, because it could be the kinyan was something else, and reicha u'manhig is a muchzak. I think the Gemara does use the Mishnah as a proof. Yes, the proof is l'gabei reicha u'manhig l'chud, because if it wasn't koneh l'chud, then it couldn't be a manhig l'chud. Yeah, but the same thing should be reicha u'manhig, unless you learn that Tosafos didn't hold of the kinyan of agav kinyan. Tosafos didn't hold of the tefisah of agav tefisah. D'hainu, that just because the l'chud works, maybe let's prove that the together works also, that's not a raya, because just on the side that l'chud works, so when they're together, you still don't know kinyan works together. Why can't you prove reicha u'manhig together is a muchzak? So reicha u'manhig together is a kinyan, because you can't be a muchzak without a kinyan. The teretz is, it's not muchrach. It's possible that the kinyan was something else, and it's possible reicha u'manhig is not koneh, but you're a muchzak. Yeah, but how could you be a koneh and not a muchzak? How can you be a muchzak and not a koneh? Isn't that the cheshbon of Tosafos? Isn't Toisis cheshlish that you cannot be a muchzik without a kinyan? So how could you have a Tosafos telling me that it's shayach that roichev b'makom ani is not a kinyan, and still you can be a muchzik? The teretz is that it's not nogea when it's together to the kinyan. If the kinyanim are separate and the muchzakus are separate, so you can't prove to me that the kinyan works together. Maybe you can be a muchzik together because there's no sevara of mevatel zeh es zeh. Not more than that. In other words, you don't need that the roichev b'makom ani is a kinyan to be a muchzik roichev b'makom ani. That you don't need. Tosafos could be holding of a sugya of mevatel zeh es zeh. Mimeila, you could definitely be a muchzik together, and even though kinyan won't go together. Now you want to say, very simple. Just I want another coffee or some water, one of the two, more than read a Tosafos. Roichev and manig, let's prove from the Mishnah that it's a kinyan. No, it's a muchzakus, not a kinyan, which means the muchzik is the proof to the kinyan, right? I mean, that's what it says in Tosafos. It's possible that it's not a kinyan and still a Mishnah that you could be a muchzik. Then the next line of Tosafos is, yeah, so how do we have a proof from the Mishnah roichev? How do we have a proof from the Mishnah manig? And the answer is, how could you be a kinyan if you're not a muchzik? How can you be a muchzik if you're not a kinyan? So that means that the muchzik is the raya to the kinyan. Why, when it's reich and manig together, the muchzak is not a raya for the kinyan, and where it's separate, the muchzak is a raya for the kinyan? Why'd you say if you can't be koneh reichim b'makom manig, or manig b'makom reichim, so then you can't be a muchzak that way? I mean, I don't see that. Does this rule apply, so then it applies in this case too. What is the chiluk? What is the difference with reich and umanig that there the rule doesn't apply? That's the simple ha'ara you have to ask the Tosafos. This is not lomdus. This is not shiurim. This is reading the Tosafos, the pashut reading of the Tosafos. Tosafos said, reich and umanig, it's possible is a muchzak even though you wouldn't be koneh such way, so therefore you can't prove the kinyan from the Mishnah. I would do use the Mishnah yet, but that's when it's l'chud; that we could use it for. I don't see, if it's reich and b'makom manig, can't be koneh, and reich b'makom manig can't be a muchzak. The teretz is that the sugya of reich b'makom manig is after that there is such a kinyan of reich and there is such a kinyan of manig, and there is such a thing as a muchzak of reich and such a thing as a muchzak. Now the Shailos Mevattel says there. The Mevattel says there is not going to stop me from being a muchzak.

That's the cheshbon. Pashut pshat. What is the sugya? The sugya is, could be one ruling the other. One ruling the other is not going to undo your kinyan hamufsek. It could be it's דין קנין, it's not a דין המפסיק. Let's say you have to read the Tosafos. רואה חנווני... is a taich. You could be a mufsek, but you can't be koneh that way, yeah, because there's a technical problem of מבטל זה את זה. But that's not going to say, now that it's מבטל זה את זה, you can't be a mufsek that way. Then why don't we say the next step? You can't be mufsek, you can't be koneh that way. Namely, you can't be mufsek that way. The teretz is that the מבטל זה את זה fact can stop you from becoming mufsek. Why not? That's what we come into the picture. Why not? So far I didn't do more than read the Tosafos, to understand the difference between when it's together, when it's separate. What's muchach is that by מרויח, who money together, the fact that you can't be koneh is not going to stop the mufsek. The pshat is clear in the Tosafos. You have to know why, and the teretz is, there's no other way how to learn it, because there's מבטל זה את זה. The problem when it's together will undo the fact that you could be a mufsek. That's the reading of the Tosafos. That was one pshat. If the pshat is that it rules l'kinyan, and mufsek means to be only on an oifen that it's kinyan, so let it rule the mufsek also. That's mamash the heart of the sugya. That's pshat. I hold that if you didn't start— From this shaila, you're of course a ... Which means you didn't understand klal, the gidar of tafus. You didn't understand the breakup of the halacha. Once you hold Tosafos's yesod that you need tfisa reuya lkinyan, so how could you split by reicha l'maneg, that even though you're not koneh? And the teretz is, because the reason why I'm not koneh is not because these things are not kinyanim, because each one is mevatel one the other. Yeah, but if it's mevatel means I can't be koneh, and if I can't be koneh, it shouldn't work. I mean, so why are we splitting it? Why should it be that true reicha is a kinyan, maneg is a kinyan; reicha is a tafus, maneg is a tafus, but when they're together, you can't be koneh? So why can you be a muchzak? Why does Tosafos's rule not apply where there's a technical problem that you can't be koneh? Let's say in those words. Why is the din of tfisa reuya lkinyan not applied where l'chud they are kinyanim, but למעשה you can't be koneh this way? So if I can't be koneh this way, I should become a muchzak this way. This, rabosai, is a vishayla on Tosafos. Yes. What's wrong with being a muchzak without being able to be koneh? I don't know, but for some reason Tosafos says that. I mean, it's not my fault that Tosafos says, right? The next line, Tosafos says that. It's what he says, right? That you can be a muchzak, you can't be a koneh in such a case. So why by reicha l'maneg it could be that way? I don't see. You read the Tosafos. Tosafos starts off by saying— It makes no difference that you can't be koneh because you can be a mukzek. And then Tosafos says, what about by rachok? It makes a difference that you can't be a mukzek because you can't be a koneh. It's a contradiction. We have to read this. I'm sorry to tell you, if you don't know what I'm talking about, not you, whoever it is, doesn't read the Tosafos. I mean, this doesn't have to do with shiur; this is the Tosafos. Tosafos says, when it's reichuk, u'ma'anik, we don't care that you weren't a koneh like this. You're koneh some other way, because you don't have to be koneh like this. Hanacha nami, this is not a kinyan. Yeah, but if you're mukzek this way. And then the next line of Tosafos is, no, the exact opposite, that if you can't be a mukzek this way, you can't be koneh this way, then you could have been a mukzek this way. I don't see a contradiction. The teretz is that the technical problem of reichuk u'ma'anik together won't ruin the mukzek. It's a technicality. Continuum of ... that's not going to undo. Yeah, but l'maaseh I can't be koneh this way. The bottom line is, can I be koneh this way? No. And if I could, and the raya is if I'm a mukzek I can be, so then there is a raya from the Mishnah. How do you understand this? I see in Tosafos that the kinyan, a valid kinyan, won't stop me from being a mukzek. Why not? Why is the rule ... only on such a maaseh that could be, and not when l'maaseh, if I can't be koneh?

It shouldn't be. Teisis makes a chiluk where the maaseh is such a maaseh that can't be a kinyan, it is there and then I say, tfisa she'eina re'uyah l'kinyan is not a kinyan. Where the maaseh is re'uyah l'kinyan, but glav in this case I can't be koneh, there I don't say it. What's the nafka mina? The bottom line is it's not tfisa re'uyah l'kinyan. Memeila, this teaches me how to understand tfisa re'uyah l'kinyan. From here I have to understand that tfisa re'uyah l'kinyan is not where I l'maaseh I'm not koneh, but rather where the maaseh is such a maaseh that it's not a maaseh kinyan that I can be koneh. It's not totally in the technicality of l'maaseh; it's totally in the theoretical what could be. Could I be koneh with such a kinyan? Tfisa re'uyah l'kinyan is good. Can't? Tfisa she'eina re'uyah l'kinyan. What's l'maaseh, I don't care. If it's l'maaseh I can't be koneh, it's not going to stop. It's tfisa re'uyah l'kinyan. That's what you see from this Tosafos if you learn it well. If you don't learn it well, you don't see anything I'm talking about. But if you learn it well, that's what comes out from Tosafos. Now we have to explain. Be'ezras Hashem, that's the pashut shaylah on the whole din of tfisa re'uyah l'kinyan. Tfisa re'uyah l'kinyan — I mean, l'maaseh the guy told me. So let's say it's not re'uyah l'kinyan. How are you going to take it away from him? What happened to the din, a mamon hamotzi me'chaveiro alav haraayah? So let's say tfisa is not re'uyah l'kinyan. Who's capable of taking it out of such a muchzak? You're a muchzak which is not re'uyah l'kinyan. What happens? ... get out a mukzeh. You're holding it. I don't see. Who's going to come and take it out without a raya from you? The meileh you're a mukzeh, meileh you get it. Pashut shaylah. Tzricha re'uyah l'kinyan, unless he's not re'uyah l'kinyan. Let's say it's in your pocket. Let's say your pocket's not able to be koneh, but it's by you. Who's going to take it away from you? ... What happens to the din of hamotzi mechaveiro alav haraayah, mukzeh? Only when it's a tzricha re'uyah l'kinyan, could we say that I can't take it away from you. I mean, I can't take it away from you because ... What's the pshat? Tzricha re'uyah l'kinyan. He brings the pshat from the Maharam. The Maharam wants to say, din of ... If it's not tzricha re'uyah l'kinyan, so we don't see in the ma'aseh what the kinyan was. If they come, and he's ... and ... is a kinyan l'maaseh, let's take that part of the Mishnah, ... is a kinyan, and then he's talking about reicha, he comes in riding. So here in front of us we see the riding, so we can believe what he says. ... the din of tzricha re'uyah l'kinyan. Very, very simple. There's not much here. The question is— Taisis wants to mechadesh a new yesod: tfisa haruyah l'kinyan. Why? I mean, what's wrong? If you're a muchzak, you're a muchzak. You're holding it. Can I take something away from you? It has to be rauy l'kinyan that I can take it away from you. What's the difference? I can't take something out of your possession without having a raya. That's the din of muchzak. What do you want? Every muchzak has to be a psak, rauy l'kinyan. What is a muchzak? I can't take it away from you; I might צריך ראיה. What's the pshat tfisa ruyah l'kinyan? Here in the Mishnah we're bothered with tfisa ruyah l'kinyan. He quotes the Rambam. The Rambam is mashma the Taisis, tfisa ruyah l'kinyan, that we want that the tfisa should show me what the kinyan was. Like this we can believe you. What happened? You're coming, you're riding in with a horse, and he's also riding in with a horse. Make a testy telling the truth. If I see you riding it, I can see that that's what happened. Harei riding l'fanecha. I see the riding in front of me. So you probably rode the horse, and l'meila that's how you were koneh. L'meila you need tfisa ruyah l'kinyan. Right? It's very shtark. What are you saying? Who says that's why you have to have a tfisa ruyah l'kinyan? What's wrong with the fact that it's by you? Where does it say?

Read in your tefisa the ta'ina. The Maharam warns that in the tefisa that you did, I should be able to read your ta'ina. Wait, wait, wait. Why would Tosafos be mechadesh? I have to be able to read in your tefisa the history of what happened. What's your claim? What's the ... What's the problem? It's very poshut. It's mamash pshat, beautiful. It's a very beautiful pshat here. Not that much cheshbon. Usually I make so much cheshbon that the people get dizzy from it. No, not me, that much cheshbon. Pashut pshat. From Tosafos you see clearly that reichuk u'manhig, even though the kinyan in such a case might not work, the muchzak will work. Tosafos starts off that you can't prove kinyan from here. And then he turns around and says, b'reichuk u'manhig l'chudei, if the kinyan would work, the muchzak will work. Why is that a difference? So you see from here, big yesod, that where theoretically the ma'aseh is a kinyan, then you could have a muchzak. The fact that it's not l'maaseh koneh, like by reichuk u'manhig there's a technical problem, it can't because one's מעל פה the other, there Tosafos says it's not a problem, that the muchzak and the kinyan don't go hand in hand; you can have the muchzak without a kinyan. I'm trying to explain why. Why? First of all, you have to know what clouds within a tefisa really is. What is the din of tefisa really? That brings down, l'cho'orah, in sevara it doesn't make sense. Doesn't make sense. Once you're in muchzak, you can't take away from you. What is it? This ta'is. You want to think of tefisa really a kinyan. As long as it's by you, you can't take it away. What happened? What changed over here? You say tefisa really a kinyan. Where does it come from? He quotes the Rambam. The Rambam explains that normal tefisa, all right. But over here we have a sugya where the tefisa is a shaylah about a shnayim shehikbiu metzia. So we want from the tefisa to be able to read the story, to read, racho, from eilu we have the story of what? Of the shnayim shehikbiu. That's what the Rambam learns. You want to know what happened? The Rach tells me what happened, because otherwise, how do you know what he's telling? Is the truth. He comes right into beis din, I picked it up. Who says? I see a holding, I see you picked it up. Two people pick up a talis, they both pick it up, the holding is, obviously they picked it up. So that's part of your ta'ina, I see in your words. How do I see it? Because you're coming into beis din holding it. So the Rambam by reicha was the same thing, that the tefisa has to be that I read in your tefisa what your claim is, that reicha is not a kinyan. The only thing I can read is that you were reicha, but it's not a kinyan. The pella, mechtaisi, you should have toalacha. Where do you know for halacha that you have to have in your tefisa, when you were toifes it, I should be able to read the history. Tefisa. Why should you need that? And I'll tell you even more. The chesron of tefisa is very shver now, because once the chesron of tefisa, reicha b'makom mazik is not a kinyan. If you need that in the tefisah I should be able to read your ta'ina, I only read reicha b'makom manig in your ta'ina. So then it shouldn't be good again. I mean, what's ta'ina? If the Maram is right, but I have to be able to read in your ta'ina what the lemaaseh was in order I should believe your ta'ina by reicha b'makom manig, that's all you see, that I'm reich, I'm manig, and it's reicha b'makom manig. So what's the taich that there's a chiluk between reicha b'makom manig, reicha l'chudei manig? What's the ches? If tefisah really kinyan always is, and I have to have the ma'aseh teaching me the history, the ma'aseh has to teach me the history because I need to hear your ta'ina from what I see, because otherwise I can't follow your ta'ina, that it's true, mechzeis is true. So then reicha b'makom manig is the same thing. What I see is a reicha and a manig. And if reicha b'makom manig is not a kinyan l'maaseh, and I don't see more than that in your ta'ina when you come to...

In essence, it should be the same problem, Reish Makomanik. That's my taina on the Rambam, not the Beis Din taina. He's stam saying it's a peleh, it's a peleh in the Rambam, that chnechtes is such a thing should exist. I'm telling you, cheshbon, it doesn't fit in Tosafos. Because if it's true that Reish Makomanik is the same problem, why does Tosafos say Reish Makomanik, we don't have the problem? The Rambam comes and brings a mashal, very interesting mashal. Asks the kasha on Tosafos, Rochuv hu v'lo kani. Tosafos says Reishch is not koneh. The Gemara says Reishch is not koneh. In fact, Tosafos, ay, what do you do that the Mishnah says, echad rachuv v'echad manhig is koneh. Now Tosafos, dochi l'kamon, the manhig the ragal. Tosafos is teretz from manhig v'ragal. The Gemara's kasha: why does Tosafos jump to the last case of the Mishnah to prove rachuv? What do you do with shnei reichim? The first case, shnei reichim already proves to me reichuv is a kinyan, and you have to come on to the teretz of manhig v'ragal. Why does Tosafos skip the first case, even b'safek, didn't want to address shnei reichim, echad rochev v'echad manhig? Gemara says about rochev v'chutz. The sugya is not talking about rochev makneh when Tosafos asks the kasha. Tosafos asks the kasha on echad rochev v'chutz, v'echad manhig v'chutz. Is rochev a kinyan? Is manhig a kinyan? What do you do with the Mishnah? Teretz is— If you want to ask from Reichiv, you might ask from the first part of the Mishnah. Toysafos asks a kasha: אי רוכב is a kinyan from the Mishnah. זאָגט תוספות, you have a teretz to תלמוד מני ברגל. Okay, nice. But Tosafos is asking what? From the second part of the seifa of the Mishnah: או שהיה אחד רוכב ואחד מנהיג. Lemaaseh, shnayim rochvin is the first part of that Mishnah. Asking shnayim rochvin is a rochiv. I'm not talking about manhig; the Gemara says רוכב וחודו. The Gemara says רוכב וחודו. זאָגט תוספות, so what do you do with the Mishnah? Mishnah's mashma rochiv is a kinyan. Here says it's manhig v'raglo. Tosafos — the way I'm learning, I'm explaining Tosafos. Huh? That's your Tosafos. I don't have your — you have different girsa than Tosafos. The top Tosafos, רוכב וחודו לא קני. זאָגט Tosafos, yeah, but the Mishnah, everything's תלמוד מני ברגל. Okay, but what about shnayim rochvin? Why don't you prove from shnayim rochvin? זאָגט the Maharsha that bedavka Tosafos couldn't prove from shnayim rochvin, because by shnayim rochvin, that they're equals, you don't have a raya for רוכב קני, because you could be a muchzak without a kinyan. You could be a muchzak and not be a kinyan, so from shnayim rochvin it's not a raya. זאָגט the Maharsha, so then what's the raya? רוכב ומנהיג, that רוכב is koneh, maybe it's a muchzak, not a kinyan. זאָגט the Maharsha, דוַוקא יחיד. Where it's רוכב ומנהיג, and one is doing a kinyan, then the other muchzak must be a muchzak al yedei kinyan. Open Mashal. ... How come it's an open mashal? And I once had a Rosh Yeshiva come to me and tell me he doesn't learn mashal. Why? It's too difficult for him. When he told me that, that was the last time I ever spoke to this person. Why? Because it means you're living a lie. A Rosh Yeshiva, which means he's teaching Gemara, who doesn't learn mashal means he's not teaching Gemara. Contradictory. It doesn't clock. Either you're learning the Gemara or you're not learning the Gemara. Imagine a person says, I'm an electrician who doesn't know electricity. Chaser minei u'bei. It's a contradiction. The mashal is learning the Gemara. Chazalnish held that if somebody doesn't learn mashal, he didn't learn the Gemara. He looks at the Igros Chazon Ish. So let's read the mashal. Mashal is talking to the Gemara. Echad roichev, v'echad maaniktei in the Mishnah, zokt is toisfos. So proof from that roichev is koneh. No, it's told by maanik. So you have no proof. Fine. But why are we talking echad roichev? It should be the proof. Why does Tosfos ask from shnayim roichvin? Heritage. Zokt the mashal, because if you're not necessarily a koneh just because you're a מוחזק. You could be a מוחזק. Shnayim roichvin are both מוחזקים. The Mishnah's talking about מוחזקים. You can't prove from that kinyan. So then how does the next part of the Mishnah become a proof?

After, ... after, ... how could you be koneh rachok? You see that you're koneh in the Mishnah, I said the Mishnah about mukzek, not kinyan. Over there, says the Maharsha, it's different, because the other person making kinyan, the mukzek on the other end wants to be a what? A tfisa reiu kinyan. So when they're both not doing tfisa reiu kinyan, the Maharsha says it's fine. But when one is doing a kinyan, the other one better do a tfisa reiu kinyan. ... Why should he? Unless you learn the vakims that then maybe, if you're doing a kinyan on one end, then there's tfisa. There better be such a thing, which is tfisa reiu kinyan; otherwise he outwins you. I have a ... We said this in shiur yesterday. ... that's how we learned up the Rashi. Remember we learned up what ... kinyan? It's true that he's a mukzek, but you're talking about muchzakus. He made a kinyan which was greater than a mukzek. ... kinyan. Remember how we learned the Rashi? Not that it's a bigger kinyan, because ... is not a kinyan. ... If you want to measure the ... parallel on the other end of the stick to the manhig, the manhig makes a kinyan, so the manhig is much greater than the ... Kinyanian in muchzakus. That's this Maharsha, that on the side that you want to make a ... in a competition with a manhig, understand that the manhig is a kinyan, so the ... better be a tfisa reiu kinyan. Lulei tzurich, the other end is not a kinyan, but rather just a tfisa; they could both be tfisa she'eino reiu kinyan. Azoi learned the Maharsha, a ... Maharsha. If by the chiddush, a tefisa rishon l'kinyan is only a sugya, where one has a kinyan and the other one is doing a tefisa. So that tefisa better be a ruyah l'kinyan to balance between the ma'aleh and the chesaron. If it's a case where they're both doing just tefisa, like by shnayim ochzin, you don't have a problem of tefisa rishon l'kinyan; they could both be תפיסה ראשונה לקנין. Then brings it from the Maharshal. That's the Maharshal. Look, the Beis Aharon explains it very nicely. It's interesting, Beis Aharon, how he explains the Maharshal, but this is, in short—I'm not going to go line by line in the Beis Aharon—but this is, when you'll see sefarim say that this is how he's masbir the Maharshal. Shevuah, the Rambam shifcha chayves haMaharshal, they bring a raya from the end of Tosfos that even where they're both equal, they both have to be tefisa rishon l'kinyan, and the raya is very geshmak, because Tosfos brings a raya from Shnayim shebiyu. Tosfos says that the case of shnayim shebiyu has to be tefisa rishon l'kinyan, and he says that's the raya from the Mishnah, from tefisa, that shnayim shebiyu have to be metzi'ah chaver kanah, because it has to be tefisa, which is ruyah l'kinyan. Yeah, but they're both doing the same thing. They're both picking it up, and according to the Maharshal, you don't need that it should be tefisa rishon l'kinyan when they're both doing the same. For Tosfos, shevuah, Rambam shifcha bring a raya from over here, even when they're both doing the same, the tefisa has to be a tefisa rishon l'kinyan. There's a could be, because ay is not a raya, shnayim shekiblu. Because over there the taich is that the takah being modeh that that's what happened. A shnayim shekiblu metzia could be the case is that they claim that the tefisa is because of hagbah, so we have to prove that we're metzia from there. But lulei, and the Chanami, like the Maram in the beginning of the shiur, that would be the case, that they're claiming that they kinyu with something else, and the tefisa was hagbah. Maybe, and the Chanami, no tefisa really kinyan. The raya from the Gemara is not muchach. The raya from shnayim shekiblu is not a chacham. It could be their ta'ana that they picked it up claiming that we picked it up. So if it's not tefisa really kinyan, it wouldn't work because of shnayim shekiblu. Teretz is, you see that shnayim shekiblu works. You see clearly that shnayim shekiblu works because that's what they're claiming. But and the Chanami, if it would be like the Maram says, they wouldn't be claiming this. That's not the case of the Mishnah, not muchach in the Gemara from shnayim shekiblu that you would need tefisa really kinyan. That's the ta'ina of Beis Aharon on the Pnei Yehoshua. Then he says, l'maaseh, you see the Rishonim...

If you go back to bring like the Pnei Yehoshua, that from Shnayim shebi'u l'teviah, you need tefisa l'kinyan. You see clearly that they pasken diblur from the raya of shnayim shebi'u, that it's muchach you need tefisa l'kinyan. Does everybody understand the cheshbon? It's not that difficult. It's really not that difficult. Pashut cheshbon. Tosafos talks about tefisa l'kinyan. First kasha you have to ask is why. Why should either? That's the Beis HaAron's shailah. L'choirah, once you have a person holding, there's a din of hamotzi mechaveiro alav haraayah. Why do you need tefisa l'kinyan? So there's a whole Maharam m'Halach to the Beis HaLevi. You have to see the ta'ina in the muksak that you have. He's claiming that it's his, and he's proving it with the muksak. So let's pasken see your claim in the muksak. You're claiming what? That you were rochev, and the muksak is that you're rochev, so I have to see rochev here? So rochev has to be a kinyan, otherwise I don't see your claim. If rochev is not a kinyan and I see rochev, so what do I have from that? It may be chiddush. Only because I see your claim I can let you keep it? I have to let you keep it because I don't know differently than what you're saying. It's only because I have a raya to what you're saying, can I come and say that you should keep it. I have to let you keep it because I don't know the opposite. Innocent until proven guilty. I don't know that you're wrong. I don't know that you're lying; nechteicha l'yechazek. So why would I take it away without knowing that you're taka not koneh? That's the Beis HaAron's kasha. Then he comes with an interesting machshavah. He says that l'choirah, the mashma'os mashma klal that you don't need tefisa l'kinyan. Because Tosafos speaks about echad roichev, echad manig, to ask for the din of kirbako vechudei kani. Why doesn't he ask from shnayim roichvin? So the mashal is there, they're equal. So therefore you don't need תפיסה ראויה לקנין. If you clarify, you don't need תפיסה ראויה לקנין. The only time you need תפיסה ראויה לקנין is, says the Maharshal, where the other person makes a kinyan. If you want to balance it, it has to be תפיסה ראויה לקנין. But echad hanami, stam tefisah, tefisah doesn't need ראויה לקנין. But the Mechaber, a geshmak. Tosafos is a geshmak. Now you have a reason you say the תפיסה ראויה לקנין. But if you want to balance it between kinyanim, if the other person makes a kinyan and you want to make a tefisah, there you need תפיסה ראויה לקנין. That's when you say תפיסה ראויה לקנין comes in. Pnei Yehoshua. Pnei Yehoshua is the whole ma'achlokes. Pnei Yehoshua says that from Tosafos, shnayim should be there, they are equal. Shnayim should be withi. Tosafos tries to prove תפיסה ראויה לקנין from there. According to the Maharshal, there's no such Tosafos, because they're both picking it up; it's equal. But the Beis Ha... בכלל I don't see the Pnei Yehoshua, because the raya that he brings, mechtesa. Maybe the case in the Mishnah is where they're claiming shnayim shikbiu, and that's their claim as well, not only the... What are they saying? I picked it up. They're not saying, I picked it up and I was koneh it from a mechirah. They say, I picked it up, I'm koneh mesirah that way. Avada it's a tefisah, it has to be a tefisah which is a claim of a kinyan. But echad hanami, roichev umanig, maybe not. Maybe they will not be it, and roichev umanig was how they come into beis, like the Gemara explains Tosafos. Me'hu poraya anymore from the Gemara that the hechrech that tfisa really kinyan has to be a case even by shtayim shebiyu. Pashut kasher. So it could be the patak don't need tfisa really kinyan. I l'maaseh, shtayim shebiyu. Shtayim shebiyu is because of their claim. Maybe that's what they're claiming, that they picked it up together. L'maaseh, Sheinim say, and the raya is, the Sheinim bring like the Pnei Yehoshua for tafisa raya, tfisa really kinyan. Then he has another shtickel we'll soon get to a little bit later. Part of this is just three nekudos. The first nekudah is the Beis HaLevi's mahalach, l'choira in svara you shouldn't need tfisa really kinyan. The Maharam seems to learn you need tfisa really kinyan for what purpose? Because in the tfisah you have to see the ta'ana. The Maharshal seems to learn that tfisa really kinyan is only because there's a kinyan on the other end. The Pnei Yehoshua learns, no, there's a din of tfisa really kinyan whether there is somebody on the other end that has a kinyan, whether he doesn't have a kinyan, whether both shavah b'shavah. Also, you always need tfisah really kinyan. I hold that this is יסודידיקע machlokes here in this sugya, that's goyrim the Beis HaLevi to ask the kashya, the Maharam to say his pshat, the Maharshal to say his pshat, and the Pnei Yehoshua to say his pshat.

I think there's a nekudah that they're all starting from, and that nekudah, because of the way they learned it, is goyrim the Beis HaRav to ask his kasha, the Maran, what he learned, the Pnei Yehoshua, the Maharsha, each one to say his mahalach. What is muchzak? What is it? Muchzak. Our Mishnah, shnayim ochazin. Because it’s muchzak, we say a chlok. Is it vadai? Is it safek? Is it techilas vadai, sofek; techilas safek, sofek vadai? We discussed this in great length when we learned Shnayim Ochazin in the Tosafos. The Mechanech speaks about it, the Chelek Beis, siman tes, the Gra, all the Acharonim talk. Is yachloku midevadai, yachloku midesafek? And the emes is it’s not only Acharonim; it’s the Ran that we learned in Takfo Kohen. The Ran in Takfo Kohen already discussed: is it midevadai, is it midesafek? And then we were medayek from Tosafos that there’s a third tzad, that it could be that misafek we give it to you to keep it vadai, because Tosafos says, and it’s different than arba, the first Tosafos in Bava Metzia—we’ll actually, the second Tosafos in Bava Metzia—that the reason why yachloku and not kol dalim gavar, I by the boat we say kol dalim; here it’s muchzak, so we have to look at a kiyum bevadai. That’s what the yoreh. So we ask, wait a minute, Tosafos himself says it’s migo laitzi. Tosafos says, what do you do with the sugya of migo l'hotzi? Why don't we say, shemina minah b'migo? The teretz is, I'm מוחזק like you're מוחזק, but I thought each one's kiluyesh b'vadai hachetzi. Talk about it. The third Tosafos and the second Tosafos contradict each other. Third Tosafos, it seems to be saying that I'm a מוחזק like you, so we're together in this, so it's called migo l'hotzi. The second Tosafos, it seems to be learning that yesh לו בודאי החצי. I'm not מוחזק זה כמו זה. Each one is half. Each one is mamash, k'ilu mamash half is cut off and is given to him. So we set up a pshat that a vadai starts as a safek, and the safek we give it to you to keep it as a vadai. Third mahalach. It says, famous in Torah to learn like that Tosafos. What's the hesber of that? Is it vadai? Is it safek? Is it techilas vadai safek and sofoi vadai, which means that we have a safek, we give it to you to keep it vadai? What's the nekudah of the machlokes? The braisa says teretz can be very poshut: you have to know מוחזק. If מוחזק, I don't know what to do with this, I gotta let you have it. What am I gonna do? Can I be motzi from you? How can I take from you without knowing that it's not yours? Like the nusach we said before: you're innocent till proven guilty. You're not the baalim till I prove to you. Sorry, you are the baalim till I prove to you you're not the baalim. If you're holding something, the only way I can take it away from you is if I know that it's mine, it's not yours. Oy bazoi, then the machlokes based on מוחזק is nothing more than a safek. I don't know to take it away from you. I let you have it. That's called safek. I told him maybe the taich in musik, different taich. Musik is that the chazakah tells me that it is yours. Musik is a taich that if you're holding it, there's a mistama that it's yours. How does it apply in Bava Metzia, where your modeh was not yours to begin with? That's the reason the Rishonim, we spoke about in Bava Metzia in the first daf. How can I come and prove that it's mine? We'll come out, tafsilo misheloihu. If sof kol sof, I might that I just picked it up. That's a good taich, that we spoke about that taich. But the tzad that musik, musik proves that it's mine, then when I get it, I get it because it's mine. Then there's a third tzad. Third tzad, that when there's a safek, musik is a din that you should get it. Whenever there's a massive safek, the Torah has klal, and the klal is that musik wins. Avada you get it, vadai. Avada you want it, but it started you wanted because it was a safek. It's not a guarantee that it's yours. One more time.

I tell you things that, believe me, I'm perfecting to you and giving to you in a candy-wrapped chocolate bar. Tremendous. Vast amount of love that's in these ... I give it to you in a ... with a spoon, with some beautiful flavoring to it. Every musar. Musar wins. Why? There's three ways to understand a musar winning. Of course, why would I take it away? That's a simple svara, right? Any person, any balabos—not that a balabos is not a person, but you know that—any person that has any havanah understands that I can't take away something from you if I don't know that it's not yours. That's one. Says Rabbeinu another taich in musar, that the musar itself means that it's mine. The musar itself, the fact that I'm holding it, it's mine. What are you taking away what belongs to me? It's mine. Do I have to—how many times have I told you—do I have to prove that my shirt that I'm wearing is mine? It's mine. There's no reason to prove it. I'm wearing it. Musar is a taich, it's mine, and I don't need to prove that it's mine. This is the third type. The way there's a safek, there's a din that muchzak wins. There's rules. There's more a comma. There's chazakah. One of the rules is that in din Torah, the muchzak wins. The nafkamina is this shaila: is it safek vadai, or is it that it begins with a safek but we give it to vadai? If the taich is that we have no choice to take it away, we have no choice, and we can't take it away because mechtahis is going to, it's only safek. I don't know what to do, so I have to keep it by you. What am I supposed to do? I can't change status quo. In English they call it status quo. Mi-safek. Then the taich is, it's only a safek the whole din Torah. If the taich is that muchzak is the din that it's mine, that it's b'vadai, I have it. That's what taiches means. I have it. Or there's a third pshat. Wherever there's a safek, the Torah says follow chazakah. Follow it vadai. Don't follow it safek. Follow it even with vadai. And the din muchzak says that when there's a safek, we got to give it. Those are the three צדדים of the Rishonim in daf beis. If muchzak safek, we have no choice, we have to let you have it. If muchzak vadai, pshat is that it's שלו, but I'm holding it means that it's mine. Or the pshat is wherever there's a safek, there's a din that we have to follow the muchzak, and now it's vadai. Does the muchzak prove anything? That's Rabbeisi ben Beseira's fourth pshat. There's a klal in the Gemara: כל מה שתחת יד אדם שלו. There's muchsakus that the muchzak proves that it's mine, because if it's not mine, why would it be by me? Why should it be by me if it's not mine? That's the muchzak that proves something. Not in all cases that it's a proof, like I explained to you, bameh devarim, it's not to be proof, because you're mochzi yourself; you just found it. But there are muchsakus that the muchzak is a ta'ina; it proves to me that it's yours. That's the fourth din of muchzak. Now let's go back, rabosai, to the four shitos that I just told you, so to speak. I don't know if the shitos—the four ways of dealing with tfisas kinyan, the Beis Aharon, the Maharam, the Maharsha, and the Pnei Yehoshua. The Beis—much more. Second tzad was that kol ma shetachas yad adam shelo, he is not the issue as a raya as much as it is mine. I mean, that itself means mine. To prove that it's mine? It means that there's no makom for safek when something is in your possession. Why would I clarify safek on what's in your possession? If I had a safek—

Would it prove? Not necessarily. Because it could prove also, but that's not why a muchzak gets it. A muchzak gets it because there's no reason why he shouldn't get it; it's his. Rabosai, then there's another din in muchzak of chamas tachshev elim sheloyu, which is that it proves that it's yours. Trust me, I'm taking vast amounts of information, of lomdus, I'm giving it to you in a nutshell. I don't really want to use the word nutshell, because people are going to think I called you guys nuts. That's not what I did. I'm giving it to you in a... silver platter. Okay. It makes sense, obviously, on the din of muchzak, that why would I take it away from you? It's yours. You're holding it. Next case I should be able to take away mi'safek. So meileh, in fact, the Beis HaMikdash, so who cares if it's really kinyan or not? I just can't take it away from you. That's just kasha. Why would I take something mi'safek away from you? Because you learned the din muchzak. Pshita, halachah. I mean, how can I take it away if I don't know? It has to be really kinyan only, and then only it becomes the problem, I can't take it away from you. And why would I take something out of your pocket not knowing that it's not yours? The Maram. Maram learned that the din muchzak is a raya to what happened. Zogt the Maram, gishmak, I need to read in your muchzak that you attacked a kinyan. The muchzak becomes a raya to the kinyan. If I only see rak, and the rak is not a kinyan, I don't have a muktzah. Muktzah is always a proof that it's yours. If in the Mishnahs it didn't muktzah, al yedei rakus, then rakus has to have been a kinyan, because the muktzah has to prove the kinyan. The Maharsha learns that if I have a kinyan on the other end, then you need a tefisa really with kinyan. Taich: there's certain times that you have a safek, and the Torah says follow the safek with a din muktzah. If I have a stronger muktzah, if I have a kinyan on the other end, avadai follow the kinyan, not the muktzah. If the muktzah is never a shaylah of proof, the muktzah is always the taich that I have to follow because he has a koach here in the din Torah. It's a safek, I don't know what to do, I have to follow the din of muktzah. So the Gemara here is mechadesh a tremendous yesod. When you have hagdolah b'kinyan, so he's avadai stronger in the din Torah, because his tfisa is a kinyan now too. Right here in front of us we have a kinyan. We're both equal. That's the lomdus here. When they're equal, it's a shaylah of what do you do with safek, and they're both equal, so let it be equal, v'yachloku. I don't care that the tfisa is not really with kinyan, I just want that the tfisa should be a din that I should follow. A muktzeh. I follow the muktzeh. I have what to follow. I have what to be machria here. The other side is a kinyan, which is stronger of muktzeh. It's more. I follow the kinyan. I need it to be ... kinyan just to outweigh the koach of the other person. That's the taich in the sugya. Every time I have a matzav of safek, the din is to follow a muktzeh. Why? Because he has a koach. He has strength here in this entire. If this person has a kinyan, this has a muktzeh, he has more strength than the entire. Harei kinyan lefanecha. I see the kinyan here. What's better? If I know that it's yours or I bring a raya that it's... What's better machria in a safek? Knowing that it belongs to somebody or having a raya that it belongs to somebody? Knowing that it belongs. I see the kinyan here. What do you want? I see the meshichi. I see the... The ra'ayah is pshat, it's you need a raya to something. So למה I follow the kinyan? Why should I follow the... It's rachok, which is raya with kinyan, so they're equal. What did the Pnei Yehoshua hold? Pnei Yehoshua's ... The din of muktzeh...

It's not that we give it to you because we don't know what to do. The din of muktzah is not that we give it to you because it's a raya from the muktzah to what happened. The din of muktzah is not because when we have a safek, we have to follow muktzah. Rather, we give it to you b'toras vadai because muktzah is a kinyan. Harei kinyu lefaneinu; they were both toinin in front of us. Shnayim ochrin b'talis, and safek. Right now I see they were toinin. I don't look at what happened. Ki'ilu b'vadai. Let's see the lashon Tosafos again. Tosafos: דאיסור שני, דחשיב כאילו כל אחד יש לו בה בודאי החצי. מנא תהא? The ma'aseh tofes, how do you have a manasahadi? What's a manasahadi? What, that's what happened? How do you have a manasahadi? Right now we see kinyan. Right now we see. You know what? Forget what happened. Forget about it. What's the difference what happened? I don't know what happened. I wasn't there. Now, if even you're being koneh, right now. Safek, I don't know what to do. You're both being koneh in front of us. In front of us we see he being koneh, he being koneh. The din muktzah in our Mishnah has to be treated like kinyan, because right now they're being koneh in front of us. We don't know what happened. Do I know the omar? How can I know the omar? What do I know what happened? I wasn't there. What I could say is, since you have it anyway, it's softing. You know what? Maybe nothing happened in the pit. Right now you're both being toynes. Hamachbiim etzil chaveiro is happening right in front of us. So in order to follow the muvsakus, to make a machloikes, you need a muvsakus, which is really l'kinyan, right now, right in front of us. That's the pshat. That's the יסוד in ... Every תפיסה in shnayim ochzin b'talis, bifrat, has to be a תפיסה which is really l'kinyan. Where the תפיסה is a raya, why would you need really l'kinyan? Unless you learn like the Maharam, that it needs to prove to be the... Okay, you have to see in the muksa, you have to see the ta'ina. Okay, efshar. But it's not like the Maharam. Why would a תפיסה need to be a really l'kinyan? For what? B'sharan's right, why? Why should it be that way? But where we have the pasuk that now we're going to give it to you. Why are we giving it to you? The answer is right now I see you koneh in front of me. I see you're koneh, I see you're koneh. I'm not a sahadi. The mai de-tafes, hai didei hu now. That's not hai didei hu. Hai didei hu, you're koneh; right here I see kinyan in front of me. You look at the Rishonim, bring the ... and Tosafos, if I'm not mistaken, I remember when we learned the Tosafos, ... it was very stark, a geshmak Rishonim in front of us. The muksa, in front of us the muksa. What's in front of us? The kinyan is right here. Why do you have to clarify what happened? I don't know what happened. Right now we have a metzius that they were both toynes. The ... we give it to both of them, and at the time we might talk to ... We need tfisah really kinyan. But this, I explained the different shitos. Explained why the Beis ... didn't understand the whole din of tfisah really kinyan. And if you look at his words, he mamish says this: How do you take out something from somebody? Misafek. Yeah, that's if you learn Bava Metzia, because misafek. The Rambam. The Rambam wants to prove from the maaseh tfisah what the kinyan was, because he learned Bava Metzia. The Maharshal learned that we're only looking for tfisah really kinyan to even out the score with the manik, because he learned that the muchzak is getting it because he has a din to get it. He has a koach here in the Torah, so the manik has a greater koach because he made a kinyan. So let's even out the tfisah. He has a tfisah really kinyan. He has a kinyan; it's equal. Tosfos learned that every muchzak needs tfisah really kinyan. The Ketzos in our Mishnah clarifies, means all tfisah is about ... here for sure. It's חייבי ... tfisah really kinyan, because the kinyan is now. We're giving it to you, and that's ... now. We're going to give ...

You're kind of in front of us. But this, I answer the last shailah, the beisar, the last shtickel. That's an unbelievable shailah. Why should we come and make Torah that it's talking about muktzah, and then say, you know, it's talking about muktzah, but meileh you don't have a right to kinyan, and the reason is because of the Maram, because who said that that's what they're saying? Then what's wrong with learning the Mishnah Kinyan too? I mean, why shouldn't we learn that the Mishnah is not peshuto, that that's what they're claiming, shnayim ochzin b'talis, zeh omer ani metzאתיה, zeh omer ani metzאתיה, and then we have to stick it through other ways, but not necessarily what I'm holding it now. Why can't you have to do that? What's wrong with not learning the Mishnah with this Maram and learning k'pshuto? Why does Tosafos feel that the Gemara, I think it's a very gevaldige pshat shailah, why is the hanachah that you have to learn the Mishnah that they're claiming that the kinyanim were different if the Mishnah doesn't say it? I mean, that's not what the Mishnah says, l'maaseh. The Mishnah says, zeh omer kulah sheli, ani metzאתיה, zeh omer kulah sheli, and the case is that they're holding it and that's what they're claiming. Echad rochev, echad manhig — oh, you have to learn echad rochev, echad manhig means not this case is the case of the kinyan, but that's the case that they're claiming muchzakus. What's wrong with learning k'pshuto? I mean, where do you see it in the Mishnah, pnei yeshua, that it's not that? Pashut, the Gemara, pashut you have to learn Tosafos, that it's a dichui, that makes a case of that's the story. They make a case of not the story. Why should it not be the story? Trying to be a raya from the Mishnah, that's not the story. Why not? We need to see that the story is different. And if it's pashut, why does the Mishnah not say it? Try a chiddush in the Mishnah, that the Mishnah is that they're claiming one thing, and this, that they're holding it is about a muchzak about something else completely. Peshut, you read the Mishnah, that's what they're claiming. He writes by Tosafos, another understanding: why should we learn the Mishnah k'peshutai, and maybe when we have dichuyim, the Mishnah is k'peshutai? Why? I hold the pnei Yehoshua is mechayev not to learn the Mishnah k'peshutai, because the way the Pnei Yehoshua learns, we never care about the ta'ina, about what happened. The shaylah is now. I told you this ta'irah straight through Bava Metzia, I don't know if you remember this, I told you this all the time. We never care about what happened. We care about how do we pasken the shaylah that's in front of us. אי בעית אימא, who cares how they got it originally? It's irrelevant. The ikkar is what's now. U'meila, the muchzak is not a hechsher to the kinyan, because we don't care anyway to give it to because of the kinyan. Make a pashut. Tosafos wants to say a mahalach that the Mishnah is muchzak and not kinyan. Some of the cases kinyan too, unless you learn the Rambam, that there's a story here. He claims one thing, but the girsa, in other words, they were ... that's not ... What happened was they were ... the horse to the crane, and ... That's what the Maram wants. What does Maram want? Maram wants that the story that they're saying in Beis, echad ... echad ... that's not what happened. Beis didn't spoke about, you know. Wouldn't it be very nice if Mishnah told me what they're claiming, what the story is? Tell me any day who sees the din Torah. What's the first thing? Tell me what happened. And according to what happened, we pasken. The Maram's yevar is, Tosafos is, that's not what's going on here. This Mishnah is not telling about what happened. Don't you think that the first shaila in din should ask is what happened? The way the Maram learns this Mishnah is the way ... it's not him; it's the way he learns the Tosafos. That's the way Tosafos learns this Mishnah. What happened is irrelevant. The ikar is echad ... was faneinu, v'echad ... was faneinu. Why should it be that way? So that's why I keep on explaining this throughout what we see, because it is irrelevant. Understands the Maharsha? The ta'ina's irrelevant to the din because we're following what's now, and if we give it to you—

That we give it to you because of what's happening now. So, not Trisa, but it's Trisa. I mean, it's. This side of Taisis is based on we don't care about what happened. It's trying to say you're a מוקצה גמור because of something, some other story. Something ... to the what's now. I mean, why are you getting it? For what? We don't care about the story that happened, so what are you getting it for? And the teretz is, we're getting it now because right now there's a kinyan. Right now you're koneh, right now you're koneh. You know what this helps me with? It fills in some of the misunderstandings, the not clear kinyan that we had through the mahalach that we had in these sugyos. What is מוקצה, ...? What is it? Second thing I have is, ... that we don't care about the avar. Everything Torah, you want another story. And the teretz is, we'll never know the story anyway, like I explained this to you, I told you. So what's now? ... On the side that we give it to you ... there is a side like that in Rishonim. The vadai has to be it's a kinyan now. We have kinyan from. ... That's the side of ... and we say ... because of מוקצה, because of מוקצה vadai, there's kinyan. That's not ... ... We're not even interested in the avar. That's what we were even asked. It's very shayach. We don't even ask. Shayach b'shaal. Halacha l'maaseh, anybody want to be a posek here? Shayach to the ... Do we ask him how it happened? Do we? Maybe not. I don't know. Do we have to ... do we have to know the story? Maybe not. The ... is fathoming in Tosfos that you should know probably the story with someone else's story. Would it be nice if Tosfos said it? Would it be nice if it says somewhere in halacha, ... that we should go and talk to the person and ask him what happened? No? Yes or no? No? You're not ... Why? Huh? Because the information ... Yeah, ... is ... He's kind of ... if you ... up around ... He can't have to say something and be the opposite. That doesn't bother me. I mean, ... they want a different ... Mar wants to know. ... but he can't. ... What are you doing? ... makes a ... because it says ... not ... You would think ... as a kid. No, you can't have when he claims to be a ... if he tells the story, he says something that I wasn't ... Okay, then it's not. That's pshat. Because he says, I was re'iyah, and re'iyah is not a kinyan. It's about who cares about what he said. The answer is no. That's not if he says for sure that I was. Imagine a guy comes to beis din, the truth is it's not mine, but I'm מוכרח, you get it? That's not pshat. What do you say? The Gemara about ... receives the ta'anos if he comes, he claims ... then he's telling us that he wants to. The problem is too much different case where he's not claiming anything. ... and he says I made a different kinyan. Do we care about how he was koneh? That's not the issue. But if he comes and he says, ... and re'iyah is not a kinyan, we can't have a guy walk into beis din and say, I should know I wasn't koneh, give it to me anyway because I'm a mukhzak. This is something else. This is where he claims what happened, and if it's not what happened, then he can't be koneh. The guy comes and claims that I bought it in Florida, and he wasn't in Florida, but I just say we don't care what happened. That's not the same thing over here. Here is where we not even know what happened. We're seeing his ta'anos, not koneh. We don't know for sure. So we don't care. When this is a safek, we say that you were koneh now. If the case is, what do you want from on this? On days is ... If you say the words ... and it's not a kinyan.

Something else. That's the case, is it? If I claim that I went and I made a kinyan agav, something became a kinyan agav. So I'm not koneh; I'm a modeh, I wasn't koneh. The shailah is, when they were koneh, who did it first? I don't care. What's the difference? Who cares who did it first? What was the story? What did they get? I don't know. I wasn't there. So as long as the kinyanim are in front of us, we settle. We give it to both of them. It's a different sugya. We see yoshvim, there's no shaychus. Yes? This is all very nice theoretically. Kinyan right with tefisah, because the kinyan is now. That's my ta'ana. I'm saying a chiddush. Tefisah, right, with kinyan because it becomes now the kinyan. It's a very nice ta'ana to the Pnei Yehoshua. Mechtaisah no. It's still going to be a raya. I said it's a nice vort in the Pnei Yehoshua. I said it answers the kasha why the Gemara doesn't behandle the story. We don't discuss the story. Okay, this is all very nice, but I still have a raya for it. But I hold there's a gadol clear raya. Tell me, what is tefisah? Tefisah is, look, I asked you, does muchzak have to be passive or active? I asked you the shiur yesterday. Does muchzak mean I do a muchzak actively being muchzak? Every moment that I hold it, I'm actively holding it? Or it's the passive, that it's grabbed by me? I think it's תלוי in this shailah, because we spoke about yesterday. The fact is that's there. I'm not doing anything; it's there. I'd like to just say, I only spoke yesterday. We spoke about this yesterday. Here, I wear a yarmulke. I'm walking with a yarmulke. The pshat is it's on my head. I don't do anything. I, wearing a yarmulke? Yarmulkes on me. When we look at that, no, that's cool, wearing a yarmulke. That's called a toyel. It's called doing. I am not doing anything. And we tied it into the Rashi, lav midiach, and we spoke about this Rashi. If you learn that it's meheicha teisa I could take it away from you, and that's the muktzeh. The muktzeh is a passive. Nothing is toyel to be a muktzeh. As long as it's by you, I can't take it away from you, so I don't know to take it away. So a passive muktzeh is enough. But if the taich is that I have to give it to you because of your muktzeh now, then there has to be a ma'aseh muktzeh made. That's the pshat. It has to be a bepoel I did something. Again, and you'll soon see why I'm saying, because you know I'm not just saying lomdus if I don't have raya for this in Chesh, a blatt. Muktzeh, I tell you, can either be meheicha teisa I could take it away from you, or muktzeh proves, or muktzeh means the Torah tells me to follow muktzeh mi'safek, or muktzeh means right now, you're getting it. You're a muktzeh. You have to keep it. And that's why you need muktzeh l'inyan. That's why you need tzricha l'inyan. The nafkamina l'choira could be if I have to be an active muktzeh. If the pshat is meheicha teisa take it away from you, as long as I'm muktzeh, I didn't do anything to be a muktzeh. It's rather by me, I'm going to take it away from you. Could be. Weer, I have to get it through the din of suffix. I'll have to do, quote unquote, a ma'aseh of suffix. I'm not telling you shev v'al ta'aseh, but it has to be that I'm getting it because of my muktzah, and I'll explain to you what I mean. Listen here. The Gemara speaks yoshev as opposed to rochev. The Gemara comes out that if yoshev is koneh in Rameir, because yoshev is safek, kol shekein rochev. So the chiddush of shnayim rochvin can only be that Rabbanan can't be in Rameir, because mahatzu yoshev is something you see by yoshev b'karnit chayiv, kol shekein rochev. Now explain to me, what's the kol shekein of rochvin over yoshev? What is? Very good, you're saying yishma. So many Rishonim learn that that's the raya of Tosafos. Tosafos learns that rochvin is motzira, because the only ma'alah of yoshev over a rochev, over yoshev, has to be with the motzira. Yeah, that's the raya that they say.

Because I think they bring it down, the Sforno brings it down from the Rishonim HaRishonim, that l'choira it has to be that a rishon has a ma'alah over yoshev in Tosafos, on the tzad that it's Tosafos, that what? There's Tosafos in the mesirah. You also have the mesirah there. You learn like the Rishonim, which is a machlokes Rishonim on Tosafos, that without mesirah, a rochev is a Rishon. Beged zeh, so what's the ma'alah of rochev over yoshev? There's Tosafos and this Tosafos. What's the ma'alah? And the teretz ha'bois can be very geshmak. A yoshev is a passive Tosafos. A rochev is an active Tosafos. A yoshev, I'm rather sitting on the animal. There's no actively being Tosafos. Rochev is an active Tosafos. Could be there's a ma'aseh muchsar. Riding a horse is a ma'aseh muchsar. Yoshev is the muchsar without the ma'aseh. It's very emesdig. I thought about it a very long time. Holds emesdig. The Gemara says, yoshev, according to Reb Meir, is chayav, so kol shekein rochev is patur. That's why when shnayim rochvin, the chiddush is only in the Rabbanan. Why is rochev more than yoshev? The next page. They say that's how Tosafos knew that rochev is without Tosafos mesirah. Without mesirah, that's a real Tosafos. But if yoshev is without Tosafos mesirah, it's a shvacher Tosafos. Blah. But if you learn like the Rishonim that rochev is without Tosafos mesirah, so what's the ma'alah of rochev over yoshev? It has to be there, geshmak. Yoshen is tafel. Rechlus is also tafel. The difference is, this is an active tafel. I'm doing a maiseh tfisa by riding a horse. The yoshen is drada, I'm on the horse. Drada, which means it's passive, that I happen to be, that I'm on the horse, and my feet are on the side of the horse. And of course the rest, you can figure out yourself, the power, the shaykhes you have with the horse when you're sitting on it. On both sides, I'll bring you in a stronger raya. If I hold it's a raya from the blatt, now I'll show you where I saw this in the Rishonim as well. I'm not about Acharonim, okay? I'm not going to give any—I'm not going to blame the Acharonim for this, but I saw it in the Rishonim. Let me read to you the Rambam. The Rambam brings down in Hilchos Halachos Zayin, the din of the Mishnah in a certain way, a very interesting way how he brings the Mishnah. Shnayim shehayu ochzin b'kli echad, o shehayu rochvin al gabei behemah achas, shnayim rochvin and shnayim ochzin b'kli. We spoke about this in the beginning, why he speaks power of kli instead of power. We spoke about it. It's possible to split it. If you can't split it, kli, if you split it, you'll get roots or tamei. We spoke about it. Why should it make me happy? I'm telling you, when you just said that, my world just split up. I see that I'm not just screaming to nothing. People remember the shiur. Good. We spoke about it. Why Rambam switches from the Mishnah of kli to the Mishnah says power. All right. Al kol panim, o sheyechol leich v'echad mani. That's also the Mishnah, right? Oy, yoshvin b'tzad hareima shel chitim. The Rambam comes with a new case. Stop the Mishnah. Rambam decided, you know what? Something tells me I have to write a Rambam, and I have to be mearech. I can't just give the case that the Mishnah gives; I'll have to add. You think that's why the Rambam added cases? Here we're still casey. Oy, yoshvin b'tzad hareima shel chitim, u'muneches b'simta. It's in the side alleyway, oy b'chatzer shel shneihem. What do you want? Tell me what's wrong with the Mishnah. Rambam adds these cases, yeah? That he's standing on the side of the simta, and hareima shel chitim is in the simta, yeah? Oy b'chatzer shel shneihem, zeh omer kulah sheli, v'zeh omer kulah sheli. The end of the Mishnah. He had two cases: that it's hareima and he's standing on the side of the simta, and the second case is it belongs to both of the reshus of both of them, and that's how they're getting it together, that it should be a machlokes. All right, comes along the Tur, says, Simta? How is simta a muktzah? I mean, not holding it. How did it become a muktzah if it's in the street? What kind of muktzah? Simta is a side alley here, right?

This house, this house is a simcha. Doesn't belong to me. Belongs to the street. It explains to me how you became a mukhzak. Doctor Tour. Kasav the Rambam, kuf lamed tes, kasav the Rambam, ... reima, chezek. Doctor Tour. Why does the Rambam bring this case in hareima? What's he talking about? Efsher she'rotzeh lomar, maybe this is what he wants to say: kivan shehu nechzak b'simta, since it's in a simta, shehu makom haraui liknos, might he be koneh the simta. Ushneihem yoshvim b'simta, chashiv ki'ilu shneihem muchzakim bah. To me, that's the most— I mean, I'm not muchzak, I'm holding it. Since I can be koneh that way, the Rambam wants to teach me that you can be muchzak that way. Interesting Tur, yeah? Shmakke Tur. I'll be honest with you, when I was a young bachur and I saw this Tur, it opened up worlds to me. This Tur by me is in my heart, and I didn't know which sugya to bring it to. I always think maybe I should do it now, and I say, you know what, I have to save it for a good day, you know, for a special day. Today is my special day. You should know that today shiur I have to have very fond. It's very, very close to my heart today. I hold beautiful. I fixed all the ends, loose ends, in the sugyas that we learned till now. Doctor Tour, maybe, maybe, maybe simta is a kinyan, and the Rambam's teaching me it's a muchzak. Comes along the Bach, and he says— I have no idea what you're talking about. Sure, that's how you talk. I don't understand. If you're not a mukzek, so what does it help you that it's a kinyan? What do you want in that? It's not a mukzek. Your halacha is that you're not called a mukzek. Yeah, but it's a kinyan. I don't understand. So what? You're talking about your kinyan or you're talking about you're a mukzek? How did you become a mukzek because of a kinyan? That's the bachna. I'm talking about. What's the... What do you want? ... What's the pshat? ... What's the bach? I don't know what you want. How did it become from a kinyan to a mukzek? Kinyan is not mukzek. Mukzek and not kinyan, it's two different things. When you make a kinyan and it comes into your reshus, then you become a mukzek. I don't understand, is the Mishnah mukzek or is the Mishnah kinyan? Sound familiar? That was sugya. It's mamash our sugya. Tosafos warns that our Mishnah is mukzek, not kinyan. So he sticks the Rambam in this case where it's not mukzek but it's kinyan. I don't understand, I thought the Mishnah is mukzek. Why do you get yachloku? You get yachloku because of mukzek. The teretz of my side there. If you learn that mukzek is a ta'ana, a real kinyan, and the ta'ana of real kinyan the way I understand the pnei Yehoshua, and the ktzos, because now you're making the kinyan, Dr. Rambam says, what do you want? He made a kinyan in front of you. What do you want? The whole Mishnah is tefisah likainyan, so the ta'nis is now you're doing the kinyan. So what's wrong if he's doing the kinyan now? That's the case of ... Of course you ... Beautiful, huh? Beautiful. The Mishnah talks about mufsik. Zokt the Rambam, I have a good case for you. You know what my case is? Where you're not a mufsik, but you're a koneh. But that's not our Mishnah. It's a very nice case. Zokt the Tur, you know what it is? It's kinyan without mufsik. Zokt the Bach ... What do you have? And the ... If you learn that the whole ... is that now you're making a kinyan, zokt the Tur, you have machta kinyan. I'll prove it to you from one more point, and then I'll say goodbye to you. The Rambam brings down the next line. After ... he brings the case that it's birshus shneihem, birshus shneihem, and it's birshus of both of them. Tell me, he's עומד בצד or he's not עומד בצד? So the lashon haRambam is mashma, on both of them he's עומד בצד. The Rambam says, ... או יושב בצד הרמא ...

U'meleches b'simta, oi b'chatzer shel shneihem. So he's also yoshev b'tzad, that's also the case? Not clear here in the Rambam. When you read it, it seems to read like he's yoshev b'tzad ha'reimah, oi b'chatzer shel shneihem. Do you need yoshev b'tzad or not? This is a machlokes in the poskim. Grada, the Rema gash paskens clearly, you don't need a yoshev b'tzad; you need a yoshev b'tzad. As long as it's b'shus shneihem, so they're both muchzak. What do you want? It's in my joint backyard, so we're both muchzak on it. L'maaseh, a lot of poskim bring down this. The way to read the Rambam—pashut, you look at the poskim—the Rambam is mashma you have to be yoshev b'tzad, even in the chatzer also. Why? What's the pshat? The Rambam, the tes is a geshmak. Like this tur, that the tur is learning, and you don't need mamashus. What do you need? You need a kinyan. If you're not yoshev b'tzad of the chatzer, could you be koneh? I'm not trying to be koneh; you can be a muchzak. That's enough kinyan. If you learn that there's something with kinyan, a ta'ina, now you're making the kinyan, so the Rambam reads gevaldik. You have to be yoshev b'tzad ha'reimah; you have to be yoshev b'tzad b'chatzer shel shneihem. This, the ta'ina is all you need is a muchzak which not roi. But then you read the Rambam like the Rema gash. The mekor of this is the Rema gash. What's the Ramban arguing? He brings the mekor of this, the Rema gash. Then the ta'ina becomes a geshmak. You don't need to be yoshev b'tzad; what you need to be yoshev b'tzad for? As long as you're muchzak, b'shus shneihem, the muchzak is here, yachloku. That's enough kinyanah. Every muchzak is a ta'ina of making a maaseh kinyan here now. After it's roi l'kinyan, once was roi l'kinyan. So the terutz mashma, it is kinyan now. You need roi l'kinyan because you need a ma'aseh kinyan now. Now let's go back to the Tosafos. I asked you, a roichev u'manhig, Tosafos says, roichev u'manhig, you can't l'maaseh be koneh. That's a technicality; you can't be koneh. So, kol shekein, each one for itself is a roi l'kinyan. Machlokes, if you held that roichev l'chud is not koneh, it wouldn't help you anything, because, sof kol sof, the kinyan is not roi l'kinyan, the תפיסה is not roi l'kinyan. I hope the Tosafos will be mechalek in this nekudah. If the ta'aisa is you need תפיסה roi l'kinyan, because right now you have to make a ma'aseh kinyan, if roichev u'manhig is not a kinyan, it's not called a תפיסה roi l'kinyan, because right now roichev u'manhig is not a kinyan. How could Tosafos be mechalek and say, Oh, who cares that there's no kinyan here? L'maaseh you're mochel. That's why you need תפיסה roi l'kinyan here, but each one is roi, but not the way it is. And if the ta'aisa is תפיסה roi l'kinyan because right now you're doing a ma'aseh kinyan, if roichev u'manhig is not a kinyan, it's not called a תפיסה roi l'kinyan, because right now... I don't care about the roichev u'manhig now. I care theoretically, could it be a kinyan? Because he learned, like maybe the Rambam, that the תפיסה has to be roi, not now kinyan, but roi l'kinyan. It has to show me could be what could have happened. The manhig l'chud, the roichev l'chud, could be good. Remember, I'm not trying to answer the Rambam in Tosafos. I had a problem with the Rambam in Tosafos, because right now I don't see the story more than roichev u'manhig. I'm not discussing that. All I'm trying to bring out is you don't need more than what's in front of me now. Should be roi l'kinyan. So therefore, even though reishon is not roi l'kinyan, bichlal. D'hainu now, it's not roi l'kinyan, can't be koneh this way. But since each one is a roi l'kinyan by themselves, it is true now there's no kinyan in this. But you don't need that. The tour maybe will hold that you need that, because you need now that you need kinyan, because that's the pshat, tfisah roi l'kinyan, right now you're making kinyan. If you learn that the taich isn't theoretical, he just means such a tfisah which is roi l'kinyan, then the pshat is even if now I'm not making kinyan, like reichuk man, I'm not making kinyan, you can be koneh reichuk man. The pshat wants to say it's not a proof that reichuk man is koneh, but it's still called roi l'kinyan. It's still called a tfisah, roi l'kinyan. So that's how you learn up the tfisah roi l'kinyan. If you learn it like the Tur, the taich is not a chiluk bichlal. So I could say now I can't be koneh, and if I can't be koneh, I can't make tfisah. That's what I'm gemina how to learn the Tosafos. If you learn Tosafos that the tfisah roi l'kinyan is the theoretical that you need a tfisah which could be roi l'kinyan, I l'maaseh right now you can't make a kinyan with this, technical problem. But like the taich of the Tur, and the tfisah roi l'kinyan, the way we learned up the Tnei Yehoshua, then the taich becomes you have to make now a kinyan.

You don't have it. That's enough gemira because the taisis is chayer the Torah.