The Making of a Ha'avara

Today’s daf is Bava Metzia 12. Two quick points.

(1) In context of minors acquiring property, we have Rabbi Yossi argue with the Tanna Kamma as to whether taking the metzia of a minor is robbery because of darkei shalom or is absolute gezel gamur. And then Rav Chisda clarifying that it is gezel gamur midivreihem, from their words, meaning I suppose Rabbinically.

וְסָבַר רַבִּי יוֹסֵי קָטָן אִית לֵיהּ זְכִיָּיה מִדְּאוֹרָיְיתָא? וְהָתְנַן: מְצִיאַת חֵרֵשׁ, שׁוֹטֶה וְקָטָן יֵשׁ בָּהֶן מִשּׁוּם גָּזֵל מִפְּנֵי דַּרְכֵי שָׁלוֹם. רַבִּי יוֹסֵי אוֹמֵר: גָּזֵל גָּמוּר.

The Gemara asks: And does Rabbi Yosei hold that a minor has the capability of acquiring property by Torah law? But didn’t we learn in a mishna (Gittin 59b): With regard to the found items of a deaf-mute, an imbecile, or a minor, i.e., lost items that they found, although they are not considered to be halakhically competent and are unable to acquire found items by Torah law, taking such items from them is considered robbery, by rabbinic law, for the sake of the ways of peace. Rabbi Yosei says: This is full-fledged robbery.

וְאָמַר רַב חִסְדָּא: גָּזֵל גָּמוּר מִדִּבְרֵיהֶן. נָפְקָא מִינַּהּ לְהוֹצִיאָהּ בְּדַיָּינִין.

And Rav Ḥisda says that Rabbi Yosei means that it is full-fledged robbery by rabbinic law. And the practical difference between the opinion of the first tanna and Rabbi Yosei’s opinion is that according to Rabbi Yosei, if the robber refuses to return the stolen item, it is appropriated by the judges and returned to its owner. In any event, it is evident from here that Rabbi Yosei also holds that a minor cannot acquire property for himself by Torah law.

This seems strange because how is this any different from saying it is darkei Shalom? There are plausible answers. But one answer I’ve discussed in the past is that there is a pivotal dispute between Rav Chisda (thus Sura) and Rabba bar Nachmani (thus Pumbedita) as to whether Rabbinic law has standing on a Biblical level. See this article summary post.

So perhaps the rabbis instituted the acquisition rabbinically, so it is absolute theft Biblically. I similarly discussed a case of karet midivreihem within the Rav Chisda tradition. Once the Sages declare rabbinic keret, it would be followed through On High.

(2) Another interesting feature on today’s daf is Rabbi Shimon ben Lakish’s kal vachomer and the response. In our gemara, it is just alluded to, so you would need a Rashi to expand on the idea. Thus:

דְּאָמַר רֵישׁ לָקִישׁ: אָמָה הָעִבְרִיָּה קֹנָה עַצְמָהּ בְּמִיתַת הָאָב מֵרְשׁוּת הָאָדוֹן מִקַּל וָחוֹמֶר. וְלָאו אִיתּוֹתַב רֵישׁ לָקִישׁ?

As Reish Lakish says: A Hebrew maidservant acquires herself from the authority of her master through the death of her father, and this halakha is derived from an a fortiori inference: Signs indicating puberty release her from her master’s authority but do not release her from her father’s authority, as although she shows signs indicating puberty she remains under her father’s authority with regard to certain matters. Therefore, is it not logical that her father’s death, which releases her entirely from the father’s authority, would release her from the authority of her master? Clearly, there is no situation where a Hebrew maidservant can acquire an item that she finds. The Gemara answers: But wasn’t the opinion of Reish Lakish conclusively refuted? It is not accepted as halakha.

נֵימָא מֵהַאי נָמֵי תֶּיהְוֵי תְּיוּבְתָּא!

The Gemara suggests: Let us say that there is a conclusive refutation of his opinion from this mishna as well. If a Hebrew maidservant is emancipated once her father dies, there is no possible situation in which a Hebrew maidservant who finds an ownerless item acquires it for herself.

The original sugya involving Reish Lakish and the refutation is Kiddushin 16a. However, even here, Vatican 115a and Escorial have an expanded version of the sugya.

In Escorial, it reads:

דאמ' ר' שמעון בן לקיש אמה העבריה קונה את עצמה במיתת האב מרשות אדון מק"ו ומה סימנין שאין מוציאין מרשות אב מוציאין מרשות אדון מיתה שמוציאה מרשות אב אינו דין שמוציאה מרשות אדון ולא איתותב ר' שמעו' בן לקיש לימא מיהא נמי הוי תיובת' אמ' לך ר' שמעון בן לקיש לעולם דאיתיה לאב ומציאתה דאבוה הויא ומאי הרי הוא שלהן לאפוקי מדרבה

I bolded what is extra, which is transferred.

In Vatican 115a, the text is:

דא' ר' שמעון בן לקיש אמה עברייה קונה את עצמה במיתת אב מרשות אדון מקל וחומר [(ומה סימנין שמוצ' מרשות אדון מוציאין) ומה סימנין שאין מוציא' ??ה?אב מוציאין מרשות אדון מיתת שמיציא' האב אינו דין שמוציאי' מרשות אדון?] לאו איתותב ר' שמע' בן לקיש לימא מהא נמי תיהוי תיובתיה א' לך ר' שמע' בן לקיש לעול' דאיתיה לאב ומציאתה דאביה הויא ומאי הרי אלו שלהן לאפוקי דרבה

What is with the brackets and parentheses? The brackets indicate that all this is a marginal gloss:

The parentheses inside the square brackets are also interesting. I think it is somewhat off, and the brackets should have been a separate set of brackets. Because this is a marginal gloss on the other side of the text, and then it was rubbed out:

It seems like the sofer made a false start, and omitted אין in the first place. Rather than scrubbing it out and rewriting over it, leading to a fuzzy read, he rewrote it on the other side.

So this was marginal in one manuscript, Vatican 115, and then brought into the made body of text in Escorial. (Assuming the dates are right - we should check.) And during the haavara, the transfer, an error was made, but it was corrected. But this can me a means by which different sugyot with the same text are inconsistent.

(3) Nekudot.

In the text above, to exclude her master, on Sefaria:

לָא, לְעוֹלָם דְּאִיתֵיהּ לְאָב, וּמַאי ״הֲרֵי הֵן שֶׁלָּהֶן״ – לְאַפּוֹקֵי דְּרַבָּה.

The Gemara rejects this suggestion: This mishna is not a refutation of Reish Lakish’s opinion, as perhaps it is actually referring to a case where the father is alive. And what is the meaning of the phrase: They are theirs? It does not mean that the item belongs to the maidservant; rather it is stated in order to exclude the possibility that it belongs to her master. The maidservant acquires the found item, and through her, her father acquires it.

If it means “her master”, shouldn’t there be a mapik in the heh?

The answer I think is that the nekudot and the English translation come from different sources. The translation comes from Rav Steinsaltz / the English Koren. The nikkud comes from Dicta, using a deep learning approach. So there need not be consistency. Someone can check the English / Hebrew Steinsaltz gemara to see if the nikkud is correct.

Similarly, here is something where Sefaria / Steinsaltz gets it right, and consistently:

לְעוֹלָם כְּשֶׁחַיָּיב מוֹדֶה, וְהָכָא הַיְינוּ טַעְמָא: דְּחָיְישִׁינַן שֶׁמָּא כָּתַב לִלְוֹת בְּנִיסָן וְלֹא לָוָה עַד תִּשְׁרִי, וְאָתֵי לְמִטְרַף לָקוֹחוֹת שֶׁלֹּא כַּדִּין.

The Gemara answers: Actually, the mishna is referring to a case when the liable party admits to the debts, and here, this is the reason that the finder may not return the promissory notes: It is that we are concerned that perhaps the debtor wrote in the promissory note that he would borrow the money in Nisan but he did not actually borrow the money until Tishrei, and between Nisan and Tishrei he sold land. These lands are not liened to the debt, as the liability to repay the loan took effect only when he actually borrowed the money. And the creditor will come to repossess the land that was sold between Nisan and Tishrei from the purchasers, unlawfully.

lekochot with a cholam are purchasers, the subject, actors who conduct the purchasing. lekuchot with a shuruk are purchased lands, the object, property upon which purchasing was conducted. The nikkud and translation are consistent.

In Artscroll, the nikkud was lekuchot, and that isn’t terrible, since one could collect from the purchased property. But the English translation was purchasers. It is either that the nakdan and translator worked independently; or that they aren’t being grammatical, and / or are following the common Yeshivish pronunciation, which calls the purchasers lekuchot.