A decree [on] part of the afterbirth [due to] the whole — The Gemara is saying that if we only had the Mishna in Chulin, we might conclude that a minor portion of an amniotic sac can emerge without any part of a fetus. However, the Rabonon prohibited eating the portion of the sac that remained inside, because one who would see that it is permitted, might mistakenly conclude that the permissible ruling is a statement that there is no fetus at all in the sac and might permit eating the sac when all of it emerged, based on this erroneous belief that a sac can emerge with no fetus at all. Tosafot disagrees with the notion that one could possibly err and confuse a ruling about the emergence of a minor portion of the sac with the emergence of an entire sac, as he will now explain. The statement that one might confuse the emergence of the entire sac with the emergence of part of the sac, is imprecise, because how could we possibly err and permit eating the sac when all of it emerged, because we permitted what remained inside when a minor portion of the sac emerged, because even when a minor portion emerges, the minor portion that did emerge is forbidden by Torah law, because that minor portion is not ‘within the animal’, when the mother was slaughtered. It would seem that the fact that we are prohibiting the eating of that minor portion of the sac is a statement that whatever does emerge is prohibited. If so, how can one possibly conclude that by permitting that which remained inside the womb, we might err and believe that when the entire sac emerged it is also permitted to be eaten. Our ruling, prohibiting the portion of the sac that emerged is a clear statement that at the very least, whatever emerges is forbidden. But perhaps the Gemara here is saying that we should be concerned that one might confuse the emergence of a minor part with the emergence of the entire sac even though there isn't any compelling logical basis for such a decree, and we should always be stringent whenever any part of an animal emerges during birth? Tosafot will now prove that this is not so. This can be seen from the general ruling that when a minor portion of a limb emerges during birth, only that minor portion is forbidden, not the entire limb. See the Mishna and Gemara at the very beginning of Chulin 68a, where it is clear that when a limb of an animal emerges during the slaughtering of a cow, only that limb is forbidden the remainder is permitted because it is ‘within the animal’ during the process of slaughtering. And we do not say that it is forbidden to eat even that which remained inside the animal, because of a decree that it might be confused with the portion that is outside. Just as we do not decree that what remained inside should be forbidden because it can be confused with the portion that exited the womb, so too, we do not decree that when the minor portion of the sac departs from the womb, the entire sac should be forbidden, because we may be lenient when the entire sac left the womb. It is certainly more logical to prohibit the portion of a limb that remained inside, because of confusion with the portion that already exited the womb, than to prohibit that which remained inside the womb because of possible confusion with when the entire sac exited the womb. Even so, we do not prohibit the section of a limb that remained inside the womb. We certainly should not prohibit that which remained inside when a minor portion of the sac exited the womb because of possible confusion with when the entire sac exits the womb. And furthermore, if we decree that it is forbidden to eat that which remained inside when only a minor portion emerged, because we will be confused and permit eating the sac when all of the sac emerged, for a woman who aborts a part of the sac on one day and the remainder on the next we should also decree that she is tomay from the first day even though it is possible that no part of the fetus emerged at all. We should say that even though it is possible that no part of the fetus emerged on the first day, we decree that one must be concerned that Sunday the first may be a tomay day, because if we are lenient and rule that it is not a tomay day, when the entire sac emerges, we will also believe that there was no birth and that she is not tomay, which is of course erroneous. Tosafot must offer another explanation of the Gemara: Rather, it can be said that the Gemara is saying that eating that which remained inside the mother when only a minor portion of the sac emerged is forbidden, because it will lead to confusion when a majority of the sac emerged, but not when the entire sac emerged. For if when a minor portion of the sac emerges you will permit eating that portion, which is inside because of the verse ‘all that is in the animal’ is permitted with the slaughtering of the mother, even though it is reasonable to be concerned that the head might have emerged, in that minor portion of the amniotic sac, and there actually was a ‘birth’ which would render even the inside portion forbidden. Our ruling that the inside portion is permitted may be construed as a statement that the rule of a ‘birth’ is not in effect insofar as the prohibition of eating the fetus, and that the sole determining factor is whether the material of the dissolved fetus is in the womb or outside of it. Therefore he will come to permit the minor portion that remained inside when the majority emerged, because of the same reason. When only a minor portion remained inside, it is in fact prohibited because the emergence of the majority is a ‘birth’ and it is legally considered as if the entire sac left the womb, even though some of the sac is actually inside. And they will not know that when a minor portion of the sac emerges there is a double doubt that permits us to eat the portion of the sac that remained inside. A) It is possible that none of the dissolved fetus emerged in the minor portion of the sac. B) Even if some of the dissolved fetus emerged together with the minor portion of the sac, perhaps the majority or the head did not emerge and the portion that remained inside is not ‘born’ and therefore permissible. If a ‘birth’ actually occurred, even the portion that remained inside is prohibited. Our ruling that when a minor portion of the sac emerged, the material that remained inside is permissible is based on a double doubt, but that is not obvious to all. It may be construed as a ruling that the concept of a ‘birth’ does not apply to the material of the fetus and that the sole determining factor is whether the material is within the womb or outside of it. However, in regard to the emergence of a minor portion of an amniotic sac in a woman it is not reasonable to decree that the emergence of a minor portion of a sac should generate birth tumoh, so that they will not come to err, and not observe birth tumoh when the majority of the sac emerges, for there is no cause for an error, to compare the emergence of a majority of the sac to a minor portion of the sac. That there is a difference between when a minority and a majority of the sac emerges is fairly obvious and being lenient when the minority emerges would not automatically lead one to err and believe that when the majority emerges it is also not considered a ‘birth’. However, for an animal they will err and say that which is inside is never as if it is born, as long as it does not emerge. When ruling that the portion of the fetus that emerged is forbidden we are giving that emergence some legal significance and at the same time ruling that the remaining inside portion is permissible, we may be misleading some into thinking that the determining factor of what is permitted or forbidden is whether it remained inside or exited the womb. Some may believe that this is true for both cases; when a minor or a major portion of the sac emerged. A second reason why we are lenient as far as a human birth is concerned: Alternatively, for a woman we do not decree that she should count birth tumoh from the first day, Sunday the first, because it is a stringency that may lead to a leniency, because perhaps they will not count from the second day, Monday the second, to give her days of tumoh until and including Sunday the fifteenth. A third reason why we are lenient as far as a human birth is concerned: Alternatively, for a woman we do not decree that she should be tomay on Sunday the first, because we do not seek to increase tumoh as the Gemara says in Masechet Beitzah (7a). However, earlier (11a תוספות ד'ה דאין מקצת שליא) we explained that throughout this Gemara when discussing the status of a woman, we are not speaking about the mother generating birth tumoh, rather that she should be forbidden to have relations with her husband. If so, the last answer Tosafot mentioned that we do not institute a decree for the woman, because we do not seek to increase tumoh is irrelevant, because this Gemara is not discussing her status for tumoh at all. And Rashi explained: that for a woman who is in the process of aborting a fetus late Sunday afternoon and a minor part of the amniotic sac has emerged, it is not feasible to decree that she should be tomay if only a minor part of the amniotic sac emerged, because ruling that she is not tomay as of Sunday the first, will not lead one to err and believe that even if the entire sac emerged, there is no birth tumoh, since they see that when she gives birth on Monday the second, we do declare her to be tomay, there is therefore no room to err and believe that if an entire sac emerges she is also not tomay, because we will in fact rule in a few moments when the entire sac emerges on Sunday night that there is birth tumoh. Whereas when this question arises in the case of a cow that is in the process of being slaughtered, there will be no completion of the birth process, because the animal was slaughtered. There is no positive ruling that dispels the misconception created by the ruling that whatever remained inside the animal is permitted, because that is where the story ends in the case of an animal slaughtered in middle of the birth process. And this is difficult according to Tosafot explanation that we are concerned only about one confusing the emergence of a minority of the amniotic sac with the emergence of the majority of the sac, because that which we see that she is declared tomay on Monday the second does not prove that when a majority emerges it is considered a birth, because they will say that the reason she is tomay as of Monday the second, is because the entire sac emerged. According to Tosafot explanation there never was a question that one would confuse the lenient ruling when a minority of the sac emerges with when the entire sac emerges. The Gemara is concerned only that one may confuse the lenient ruling when a minority emerges with when a majority of the sac emerges. The possibility of that error is not dispelled when they rule on Monday the second, after the entire sac emerges that there is birth tumoh.
A firstborn that was killed within thirty days — There are many steps in this Tosafot. To simplify matters, we will present an outline of all the steps and then indicate exactly where all the steps are. A) Tosafot presents Rashi’s opinion. B) Tosafot deduces that Rashi holds that when it is known that a child is viable, he may be redeemed within thirty days. C) Tosafot presents a contradiction to this conclusion. D) Tosafot alerts us to what might be the source of Rashi’s logic and shows that this is incorrect. E) Tosafot presents a second Gemara that seems to contradict Rashi’s explanation. F) Tosafot presents a third argument against Rashi. G) Tosafot presents a fourth argument against Rashi. H) Tosafot offers Rabbeinu Tam’s explanation. Usually, throughout Shas when the word טריפה is used, it refers to an injury or an ailment that causes death within twelve months. Here Rashi does not translate the word נטרף as usual. A) Rashi explains that the word נטרף used in our Gemara means: it, the firstborn, was killed, as opposed to the usual meaning of the word נטרף, which means that it developed a sickness or injury that causes its death within twelve months. Ulo is teaching us that if the firstborn was killed within the first month of its life, it need not be redeemed. And when the firstborn died of its own, there is no need for the verse to inform us that we do not redeem him, because it is written – (Bamidbor 18, 16) and those [who are to be] redeemed: from the age of a month you shall redeem. The firstborn who never reached the age of one month need not be redeemed. But if he is killed, it is necessary to inform us that he need not be redeemed, and that we do not say: if he had not been killed, he would have most probably lived and he was not a miscarriage and we should be obligated to redeem him. It seems that the verse is teaching us that we need not consider the possibility that he was a viable child if he was killed before he reached thirty days, but this is true only when there is some element of doubt in our mind about the viability of the firstborn. From the fact that Rashi says that when the firstborn dies within thirty days, there is no need for Ulo in the name of R’ Elozor to teach us from a second verse that he does not need to be redeemed, that can be understood from the verse which places the date of redemption at thirty days, but it is necessary for R’ Elozor to teach us that if the firstborn was killed within thirty days he need not be redeemed, it seems that the issue involved is how certain are we that he was a viable child. The firstborn who died was not a viable child and it is understood from the verse that there is no redemption. The firstborn, who was killed, may have been a viable child and therefore we need a second verse to teach us that there is no redemption. It follows that if we are certain that he was a viable child, because he was carried to term, even if he died before thirty days, he must be redeemed. B) It is apparent to some extent that if it is known to us about him, that he completed his months of gestation, i.e he was carried to term, and he lived beyond birth and was then killed, the father would be obligated to redeem him, even if he died before reaching the age of thirty days. It is only when we are not certain that he was a viable child and not a miscarriage that we say he need not be redeemed if he did not reach the age of thirty days, but if he definitely was a viable child there would be an obligation to redeem him even if he dies before thirty days. What emerges is that according to Rashi’s understanding the time prescribed in the Torah for redemption, thirty days, is only to be certain that the child is viable. If he does not survive thirty days, he was most probably a miscarriage and if he does survive thirty days, we know that he is a viable child. If we are certain that he is viable, then the obligation to redeem him is in effect even before thirty days. Tosafot has difficulties with this conclusion. C) And this is difficult! For in Chapter Yesh B’chor (B’choros 49a) the Gemara says in regard to one who redeems his son within thirty days, and the money was no longer intact after the time, his son is not redeemed, because after thirty days, which is the time of redemption the Kohain did not have the five s’loim in his possession. If the money was still intact the child would be redeemed, because even though the money was given to the Kohain before the time, the giving of the money is not the determining factor, it is the fact that the Kohain has the money when the child reaches the age of thirty days that is crucial. But when the money is no longer intact, the child is not redeemed. And why according to Rashi is the child not redeemed? But it is now known to us retroactively, that he was not a miscarriage, since he survived for thirty days. We should say that the redemption within the thirty day period was effective because the child was in fact viable and even though the money is no longer intact, that should make no difference, because the redemption was effective at the time the money was given within thirty days. Rather, it is certainly a decree of the Torah from the verse “and those [who are to be] redeemed: from the age of a month you shall redeem”, which teaches us that even if it is known to us that it completed its months of gestation, i.e. he was carried to term, he needs to be thirty days old in order to be redeemed and even if he is a viable child, no redemption can be effective before thirty days. Tosafot’ approach is not without its difficulties as Tosafot now tells us. The fact is that thirty days is the time that a child must survive in order for us to be convinced that he is a viable child and this is derived from the law that we must wait thirty days for redemption of the firstborn. On the surface it seems that Rashi is correct, that the thirty day waiting period is needed only to substantiate that the child is viable and not a miscarriage. It follows that if we are certain that he is viable, we can redeem him even before thirty days. D) And even though it is from this verse that we derive that any human who survives thirty days is not a miscarriage, which implies that the thirty days is needed only to be certain that the child is not a miscarriage, but if we know that he is viable he can be redeemed even before thirty days as it appears from Rashi. Tosafot will now show us that this conclusion is incorrect, because there is a similar ruling that is derived from the laws of the validity of an animal as a sacrifice eight days after its birth. There too we say that since the Torah allows us to sacrifice the animal eight days after its birth, it is proof that an animal must live eight days to prove its viability. Even so, when we know that the animal is definitely viable, it may not be offered before eight days. So too, we expound (there) that any animal that survives eight days is not a miscarriage, because it is written “from the eighth day and onward, it may offered as a sacrifice”. The Gemara uses this verse as proof that if an animal survives eight days, it is viable, and even so, when we definitely know that it completed its months of gestation i.e. it was carried to term, it may not be offered as a sacrifice because it is premature, during the first eight days of its life. We see that despite the fact that survival for eight days is the indicator of viability for an animal, even so, when we know that the animal definitely is viable before eight days, it still cannot be offered as a sacrifice. This is evident in the first chapter of Rosh HaShonoh (6b) where the Gemara says in reference to a firstborn animal, that it must be eaten within the first year of his life: From when do we count a year for him? One says, from the time that he is eligible to be offered as a sacrifice, i.e. eight days, and one says, from the time he is born. The Gemara there explains: And there is no dispute between these two opinions, this one is speaking of an unblemished animal that needs to be offered as a sacrifice and cannot be offered before eight days, therefore the year starts after eight days, and this one is speaking of a blemished animal that does not need to be offered as a sacrifice and can be eaten immediately, therefore the year starts immediately at its birth. The Gemara there asks: how can the blemished animal be eaten before eight days, it may be a miscarriage? And the Gemara there interprets the statement that the blemished animal can be eaten immediately from birth as speaking of when it is known to us that it completed its months of gestation and is definitely not a miscarriage, and even so the unblemished firstborn which must also have completed its months of gestation is not suitable to be offered until it is eight days old. It is clear that even though we derive from this verse that survival for eight days is the time needed to substantiate that an animal is not a miscarriage, even so an animal may not be offered as a sacrifice before eight days even when we know that it is viable. So too, that a human who survives thirty days is not a miscarriage is derived from the verse that requires thirty days for redemption and even so a child born at term cannot be redeemed before thirty days. E) Tosafot introduces another Gemara to prove that Rashi’s explanation of נטרף as killed is incorrect. And furthermore, that in the end of HaKomaitz Rabbah (M’nochos 37a) the Gemara obligates a father whose firstborn had two heads to give ten s’loim to the Kohain. And the Gemara challenges that ruling from a firstborn that was rendered t’raifoh who is exempt from the mitzvah of redemption, And if as Rashi says that the word נטרף means that it was killed, how is that case of the firstborn with two heads comparable to this case of the firstborn who was killed within thirty days? But if the word נטרף is translated as usual, that the firstborn became a t’raifoh, it is injured or sick and will die within a year, it is comparable to a firstborn with two heads, which must also die but is presently alive. F) A third difficulty with Rashi’s explanation: And furthermore, that he, R’ Elozor, should not have said נטרף he became t’raifoh, but נהרג-he was killed, which is the usual expression to describe a person who was killed. G) A fourth difficulty with Rashi’s explanation: And furthermore, the Gemara concludes that this ruling is derived from the word אך-but in the verse “but he must certainly redeem”, whereas the words פדה תפדה would include all situations of redemption, the word “but” qualifies the scope of the ruling and excludes a firstborn that was killed. But since he was killed within thirty days this should be derived from the verse “and those [who are to be] redeemed: from the age of a month etc.? H) And Rabbeinu Tam explains: the נטרף means, that it became a t’raifoh. It was injured or developed an illness that will not let it live more than twelve months. This cannot be derived from the verse “from the age of thirty days, you shall redeem”, because a t’raifoh does survive for more than thirty days. It can be excluded only from an additional verse – “but you must surely redeem”. And now that we are dealing with a firstborn that became a t’raifoh, the Gemara in HaKomaitz (37a) correctly compares it to a firstborn that has two heads which is also a t’raifoh. Tosafot explanation avoids all of the four problems with Rashi’s explanation: A) Tosafot explanation is that Ulo in the name of R’ Elozor is not speaking about a child that did not survive for thirty days. It did survive but it became a t’raifoh and will not survive for another twelve months. Tosafot understanding that a firstborn cannot be redeemed in the first month of its life even if it is viable is totally unrelated to the issue of a firstborn who became a t’raifoh. B) The comparison of our Gemara to the case of a two-headed firstborn is perfectly accurate since they are both t’raifoh. C) The Gemara does not describe our case as נהרג because he was not killed; he became a t’raifoh as is described. D) This ruling cannot be derived from the verse ו פדויו מבן חדשתפדה, because the baby did survive for thirty days. He is even alive now. He will not survive another year. A second verse is needed to teach us that there is no obligation to redeem him.
A large animal — The primary issue is not here in Masechet Bovo Kamo, and in the first chapter of Kidushin (25b), I discussed this at length. See Tosafot Kidushin 25b, ד'ה בהמה גסה.
We do not assess what their sons and daughters are wearing — Because they are embarrassed to bring them, their wives and children, to the Bais Din, in order to evaluate their clothing and they forgive each other from any differences in the value of the wives and children’s clothing. And Rav Alfas ruled that this applies specifically to weekday clothing, but Shabbat clothing we do evaluate to determine that all the brothers are receiving a fair share of the estate, and so is it in Yerushalmi.
By the oldest brother — Rav Popo is saying that is to the advantage of all the heirs that the eldest brother, who is conducting the business affairs of the estate should dress well so that he will have charisma with the people with whom he conducts business and ‘his words will be heard’ i.e. he will make a favorable impression on them. It is Tosafot opinion that the brothers do not have to go along with this thinking if they feel that they are not gaining enough from the eldest brother’s fashionable clothing. If they protest that they are not happy with his spending for expensive clothing, it is their right to do so, and he may not continue to spend money from the estate for his superior clothing, but as long as they did not protest, most probably they are happy with this arrangement, so that ‘his words will be heard’. He needs finer clothing to be a charismatic person whose opinions in business matters is valued, as the Gemara says in Haneezokin (Gittin 52b) in regard to Amrom the dyer. The Gemara there relates that he was appointed as the administrator of the estate of young orphans. Their relatives complained that he was dressing very well with funds from the estate of the heirs. Rav Nachmon ruled that he is permitted to do so, because his superior clothing works in favor of the orphans, because people will listen to him on account of his fine clothing.
It is not necessary [to state concerning] an unpaid watchman who transferred, etc. Ulo says in the name of R’ Elozor: if a guard, Reuven, gives the item he is guarding to another guard, Shimon, he is exempt. The Gemara continues: it need not be said that if an unpaid guard gave the item to a paid guard, that he is exempt, because he actually improved the level of security by giving the deposited item to a paid guard, but even if a paid guard gave the item to an unpaid guard, he is also exempt. Tosafot will analyze the obligations of the unpaid guard who gave the item to a paid guard. We must keep in mind that an unpaid guard has a lower level of responsibility than a paid guard. The unpaid guard does not pay if the item was stolen or lost. He only pays if he was negligent. The paid guard must pay even if the item is lost or stolen. He is exempt only in the case of an unavoidable mishap. The explanation of an unpaid guard that deposited the item with a paid guard, the unpaid guard is exempt, means that if the item was stolen or lost, for which an unpaid guard is not liable, even in this case where the unpaid guard, Reuven, deposited the item with another guard, Shimon, Reuven is exempt. We are faced here with an interesting situation. Reuven is exempt, because an unpaid guard need not pay if an item is lost or stolen. However, Shimon was a paid guard, and he is liable for theft and loss. To whom will Shimon pay? To Reuven, who hired him as a paid guard or to the original owner with whom he has no contractual obligations at all? This issue is discussed in a Mishna in Bovo M’tzee’o 35b, which Tosafot will soon quote. The Mishna there is discussing a lessee, Levi, who rented a cow. He is liable for theft and loss, but not for accidents. Subsequently he lent the cow to Y’hudoh. Y’hudoh, as a borrower is liable for accidents. The cow died as the result of an accident. The first Tano of the Mishna holds that Y’hudoh pays to Levi, because he borrowed it from Levi. His contract and obligations are to Levi. Levi in turn is a lessee and does not owe the original owner anything. R’ Yosee disagrees. He argues: how can Levi do business and turn a profit with the leased cow that does not belong to him? Tosafot holds that the same applies in our case. Reuven the unpaid guard is doing business and turning a profit with an animal that does not belong to him. However, the paid guard who is liable for theft and loss, when he pays as he is obligated to do, he pays to the owner, as the Gemara says in HaMafkid (Bovo M’tzee’o 36b), that the halochoh follows R’ Yosee who says that this one the lessee in the case the Mishna discusses in Bovo M’tzee’o 35a, cannot do business and turn a profit with his associates, the owner’s, cow. So too in the case of our Gemara, the unpaid guard who deposited the item with a paid guard cannot profit from the owner’s item and payment must be made to the owner not to the unpaid guard. We now understand that when Tosafot initially said that the unpaid guard is exempt for theft or loss, he means that even in this situation where the paid guard will have to pay the owner, if for some reason the paid guard cannot pay, the unpaid guard is still exempt, because his contract with the owner contains no liability for theft or loss. The payment for loss or theft in this situation may be thought of as a bonus for the owner. If he can collect it from the hired guard he may do so, but this does not increase the liability of the unpaid guard in any way.
For [he] thereby increased its protection — R’ Elozor is saying that when an unpaid guard deposited the item he is guarding with a paid guard, he has increased the level of security. In the reverse situation the Gemara says that a paid guard who deposited the object he is guarding with an unpaid guard has decreased the level of security. There are two ways that we might understand the phrase “he increased his guarding”: A) The level of liability is increased when an unpaid guard deposits with a paid guard. The unpaid guard is not liable for loss and theft, whereas the paid guard is liable. B) The actual degree of guarding the deposited item. One guard is more committed to his job than the other. Tosafot holds that the fundamental nature of the increase and decrease of security must be the same for both cases under discussion. It is true that when an unpaid guard deposits the object with a paid guard, there is an increase in the liability, because the paid guard will be liable for loss and theft, whereas the unpaid guard was not liable for these. However, in the reverse situation when a paid guard deposited the object with an unpaid guard, we cannot say that there was a similar decrease in liability, because the paid guard will definitely be liable for loss and theft. We should not explain that the increase of security is that if the object will be stolen, it will be returned to the owner because the paid guard is liable for loss and theft, whereas the unpaid guard was not, because the corresponding decrease of security cannot be explained that way, because the paid guard who deposited with an unpaid guard will definitely be liable for loss and theft, hence there is no decrease in the level of liability. Rather, the increase and decrease of security is that a paid guard is more committed to guard the object than an unpaid guard. The increase and decrease is in the actual level of security, not in the level of liability.
Your oath is credible to me — If one guard deposited an animal with a second guard, and the animal dies, the owner can demand payment from the first guard. Even though the second guard offers to swear that the death was the result of an unavoidable mishap, the owner can argue that I deposited my animal with you, because I trusted you and I would accept your oath. I do not believe the second guard, even if he swears. According to this reason, if the second guard is more trustworthy than the first, it appears that the first guard is exempt, because the second guard can swear that the object was not lost as a result of negligence. However, in HaMafkid (36b) there is another reason given to explain why a guard who deposited with a second guard is liable, and that is because the owner can say: it is not my wish that my deposit should be in the hands of another person. The choice of a guard is a personal decision that the owner must be comfortable with, it is not within the realm of the first guard to make that decision for the owner. And these two reasons are not the same, as is evident in the Gemara there in HaMafkid. The Gemara there discusses a situation where the first guard is privy to the information about how the animal was destroyed. He can take an oath and his word must be accepted. The owner cannot claim that I refuse to believe your oath, because he did deposit the object with the first guard. According to the reason that one does not wish that his deposit be in the hands of another person, the very act of the first guard depositing the object with a second guard is a violation of their agreement and he is liable for that and cannot be exempt with an oath. And we should not ask Ulo here who holds that a guard who deposited with a second guard is exempt, how can he argue with that logic, that the depositor does not wish to have his deposit in another’s possession? But it is a Mishna in Chapter Kol HaGet (Gittin 29a), where the Mishna is discussing a person who made an agent to deliver a divorce. If the agent is unable to deliver the divorce document he may make a second agent to deliver the divorce document. However, if he, the husband, said to the agent, take from her to deliver to me a certain object, he should not send it, the divorce document, with another agent, because the owners can say: it is not my wish that my deposit, the object that he asked the agent to bring back, be in the possession of another person. Since in this instance there is a return agency involved, we assume that the husband does not want the first agent to appoint a second agent. We see that the Mishna uses this reason, it is not my desire that my deposit be in the possession of another, to restrain the first agent from appointing a second agent. How can Ulo argue with this and say that a guard may appoint a second guard in his place? And one can answer: that Mishna there is discussing what is initially preferable, and that is that a deposit should not be placed in the possession of a second guard, but we do not find in that Mishna that one would be liable post facto if he did so.
Even from the cloak on his shoulders — Rav Nachmon was trying to determine what Ulo in the name of R’ Elozor meant when he said that one can collect a debt from the debtor’s slaves. Ulo said that he was speaking of when the collection was made from the debtor, not when the slaves had already been sold and the collection was made from the sold assets of the debtor. Rav Nachmon asked: when the creditor is collecting from the debtor he may even take ‘the shirt off his back’ and most certainly the debtor’s slaves. What is the novelty of R’ Elozor’s ruling? Tosafot questions the exact meaning of ‘the shirt off his back’. If taken literally, this means that when one is in debt, the creditor need not leave him with anything. He can take the very last item the debtor has as payment. According to Tosafot’ understanding, the Gemara in Bovo M’tzee’o 114a rules otherwise. In order to reconcile the two Gemaras, Tosafot must qualify the ruling of our Gemara so that it does not contradict Bovo M’tzee’o 114a. Tosafot therefore says that when our Gemara rules that a creditor may take ‘the shirt off his back’, it is only if he, the creditor, has two shirts, for if he only has one shirt, the Gemara in HaM’kabail (Bovo M’tzee’o 114a) says that we leave over for a creditor his minimal needs and we do not take the last shirt off his back. Our Gemara’s statement that we take the shirt off his back must be speaking of when the debtor has more than one shirt. Tosafot is still searching for a better understanding of our Gemara. The words ‘the shirt off his back’ are not an accurate description of when the debtor has two shirts. Alternatively, we are speaking of when the debtor has a garment that is worth one hundred moneh, an astronomical sum. Since he certainly does not need such an expensive garment, we dress him in a garment that is suitable for him and we literally take the garment he is wearing off his back and use it as payment towards his debt. According to this solution the words ‘the shirt off his back’ can be taken literally. This ruling, that we take his expensive garment to pay his debt and replace it with a regular garment is not universally accepted. The Gemara in Bovo M’tzee’o 113b cites a Braita that does in fact issue this ruling, but the Gemara quotes two dissidents, R’ Akeevo and R’ Yishmo’ail. And this second solution is not in accordance with R’ Akeevo who says in Perek HaM’kabail (Bovo M’tzee’o 113a) in reference to the very expensive garment, all Jews are suitable for that garment. Even though one is an ordinary person, not a prince or high government official, an expensive garment is suitable for him. As the Gemara there explains it is R’ Akeevo’s opinion that – all Jews are inherently princely children and are entitled to wear the finest garments. We cannot require that one wear a garment that is below his station. If in fact he is in the habit of wearing very expensive clothes, we cannot require of him to wear plain clothing. That would be personally demeaning. Tosafot has attempted two solutions to reconcile the seemingly contradictory Gemaras. Rabbeinu Tam holds that they are in fact contradictory and he rules in favor of our Gemara. And Rabbeinu Tam rules that the halochoh is that we do not leave over even the minimal needs of a debtor. His ruling is based on the simple understanding of our Gemara, that we take the shirt off his back. This is a statement that we need not be concerned with even the minimal needs of a debtor. See Tosafot Bovo M’tzee’o 114a ד'ה מהו, where Tosafot explains that Rabbeinu Tam sees the Gemara there as being in doubt about this question and that the Gemara here is deciding in favor of the position that we do not leave a debtor with even his minimal needs.
For instance, he set [the slave] aside [as a] designated repayment — In order to understand this Tosafot properly a short review of the Gemara is needed. A) Ulo says in the name of R’ Elozor: the halochoh is that a creditor can collect his debt from slaves. B) Rav Nachmon asked: did R’ Elozor says this in reference to collecting the debt from the heirs of the debtor, when the debtor died? C) Ulo answered: He said it in reference to collecting from the debtor himself. D) Rav Nachmon asked: What is the novelty in this ruling? One may collect the cloak off the back of the debtor himself. E) Ulo answers: R’ Elozor was speaking of when the slave was designated as an ‘apotiki’ – there was a specific agreement that the debt would be paid from this slave. This follows Rovo who said: One who designates his slave as an apotiki and then sells it, the creditor can collect the slave from the purchaser. At this point there is a major divergence between the Commentators how we must interpret the Gemara. It is clear that if the debtor sells the slave, the creditor can collect it from the purchaser. But what about collecting the slave from the heirs of the debtor when he passes away? We have two options: A) That although Rovo speaks about the debtor selling the slave, the same is true when the debtor dies and ownership passes to his heirs. B) Since the Gemara speaks specifically about a debtor who sold the apotiki slave, the ruling is in effect only for a sold slave, but if the debtor dies, the slave cannot be collected from the debtor’s heirs. The debate centers on a careful study of the text of our Gemara. There are those who say that when Ulo answered in step E) that R’ Elozor was speaking about a slave that was designated as an apotiki, he did not use the word אלא, which would indicate that he is retracting from the previous conclusion of the Gemara (step C). The Gemara had previously stated that R’ Elozor was not speaking of collecting from the heirs. By not retracting from this position, he is saying that we definitely cannot collect from the heirs under any circumstance, but we can collect from a purchaser if the slave was an apotiki. In the course of our analysis of Tosafot we will discuss how the opposing opinion deals with the lack of the word אלא in our text. According to this opinion the Gemara is ultimately saying that even when the debt or dies the apotiki slave can be collected from his heirs just as it may be collected from the purchaser of the apotiki slave. We must also understand why one would hold that an apotiki slave can be collected from a purchaser but not from an heir (position A). On the surface it seems that heirs should have a greater liability to pay their father’s debts than a purchaser. Why do some rule that an apotiki slave can be collected from a purchaser but not from an heir? Tosafot here accepts position B) that one can collect an apotiki slave from heirs just as he can be collected from a purchaser. Tosafot does struggle to show us how this can be explained in the text of the Gemara.
