1) LEFTOVER LIQUID IN A BARREL

QUESTION: The Mishnah teaches that when a person purchases a barrel of wine (or oil), the seller must let three drops of the liquid drip into the buyer's vessel after he empties its contents. Any leftover liquid that collects at the bottom of the seller's vessel when the seller tilts his vessel belongs to the seller.

Rebbi Elazar asks why should this case be different from the case involving Terumah? The Mishnah in Terumos (11:8) says that when a person empties a barrel of Terumah and then tilts the barrel so that liquid collects on the bottom, the liquid that collects is also Terumah. According to the logic of the Mishnah here, in the case in Terumos the liquid left in the barrel should be Chulin!

Why does Rebbi Elazar compare the laws of purchases (Mekach u'Memkar) to the laws of Terumah? Even if a buyer forgoes (Mochel) the liquid that is left after the three drops are allowed to drip out, when a person fills a barrel with Terumah obviously the liquid that is left in the barrel is also Terumah! Although this distinction is expressed by the Gemara's answer, what was Rebbi Elazar's question in the first place? Why did Rebbi Elazar not make such a distinction? (RAMBAN and Rishonim)

ANSWERS: Rebbi Elazar initially assumed that liquid being purchased and liquid of Terumah are comparable, because the Mishnah in Terumos states that when a person pours Terumah into the Kohen's vessel and lets three drops drip out, he may then fill his empty vessel with a liquid of Chulin and he does not have to reckon with whatever small amount of Terumah is left in the vessel. This implies that the Halachah of Terumah is similar to the Halachah of purchasing. However, this point itself needs clarification; why does it suffice to let only three drops drip out after one empties the Terumah from the vessel? Why is he permitted to mix Chulin into the vessel afterwards?

The Rishonim answer that the Mishnah does not permit a person to drink what is left in the barrel (of Terumah) after three drops have dripped out; it only permits one to mix Chulin into the barrel and be Mevatel the Terumah. Although one normally is not allowed to knowingly be Mevatel an Isur ("Asur l'Vatel Isur l'Chatchilah"), that prohibition is only mid'Rabanan (according to most Rishonim). After a person lets three drops of Terumah drip out of the barrel, the Rabanan permit him to be Mevatel the rest l'Chatchilah.

According to this understanding, the Rishonim suggest two ways to explain the Gemara's comparison of a purchase with Terumah.

(a) The RITVA explains that Rebbi Elazar initially assumed that the Mishnah in Terumos refers to a situation in which the owner originally declared the contents of the barrel as Terumah by specifying that "this barrel shall be Terumah." (He did not physically separate the Terumah and pour it into the barrel.) Rebbi Elazar thought that the reason why it is not necessary to let more than three drops of Terumah drip out is the same reason why the seller does not have to let more than three drops drip out into the buyer's vessel. When a buyer asks to buy a barrel of wine or oil, he does not have intention to acquire the liquid that collects on the bottom of the seller's vessel after three drops have been allowed to drip out. Similarly, when a person declares the contents of his barrel as Terumah, he intends only to make the contents of the barrel that come out right away, plus three drops, Terumah, but not the remaining contents of the barrel. (Rebbi Elazar assumed that the Mishnah maintains "Yesh Bereirah," and that it is possible to designate retroactively which wine comes out easily and which wine collects in the barrel after three drops have dripped out.)

Therefore, Rebbi Elazar asks why the wine that collects in the barrel afterward should be considered Terumah if, in the case of Mekach u'Memkar, the wine that collects afterward is not considered the buyer's. The Gemara answers that the Mishnah is not discussing a case in which the person declares the barrel's contents Terumah. The reason why it is not necessary to let more than three drops drip out is not related to the intention of the owner in declaring the contents Terumah. Rather, all of the wine in the barrel is Terumah, but the Rabanan permitted the owner to be Mevatel the leftover Terumah after the first three drops have dripped out.

The RAMBAN rejects this explanation based on the implication of the Mishnayos in Terumos. However, the Ritva defends this explanation and accepts it.

(b) The CHIDUSHEI HA'RAN explains that Rebbi Elazar thought that the seller is not required to let more than three drops drip out because of a Takanah d'Rabanan that was enacted for the benefit of the seller. The Rabanan did not require the seller to trouble himself to tilt the barrel until more than three drops come out. Rebbi Elazar thought that for the same reason, the Rabanan did not trouble the owner of Terumah to tilt his barrel and wait until more than three drops come out. That is why they permitted the owner of the Terumah to mix Chulin into the barrel after he let three drops drip out.

Accordingly, Rebbi Elazar asks that just as the Takanah of the Mishnah applies even when the seller, on his own, tilts the barrel to let the wine collect (and the Takanah teaches that he does not have to give that wine to the buyer), when the owner of Terumah tilts his barrel to let the wine of Terumah collect at the bottom of the barrel, he still should be permitted to mix Chulin into the barrel and be Mevatel the Terumah that collected at the bottom. However, the Mishnah teaches that he may not do so. Why not? The Gemara answers that the reason why the seller does not need to let more than three drops drip out in the case of the Mishnah is not because of a Takanah for the benefit of the seller, but rather because the buyer was Mafkir everything in the barrel that is left after three drops drip out since he does not want to wait around for more to drip out. In the case of Terumah, however, the reason why it is not necessary to let more than three drops drip out is indeed because of a Takanah d'Rabanan which was enacted in order not to overburden the owner of the wine. Since the Takanah was made only to ease the burden of the owner of the Terumah, if the owner tilts the barrel and allows wine of Terumah to collect at the bottom such that it is easy to pour out that wine, the Rabanan did not apply their Takanah, but rather they applied their Isur not to be Mevatel Terumah l'Chatchilah.

2) THE PARAMETERS OF "AVEIDAH MI'DA'AS"

QUESTION: The Mishnah discusses a case in which a person sends a flask with his young child to a storekeeper in order to buy oil. The storekeeper takes the flask from the child, fills it with oil, and sends it back with the child to the buyer. The Tana Kama rules that if the flask breaks while the child is carrying it back to his father, the storekeeper is obligated to pay the father for the flask (and the oil).

The Gemara questions why the storekeeper should be obligated to pay for the flask. Since the buyer sent it with his young child, it should be considered an "Aveidah mi'Da'as," something that a person willingly lost or destroyed. The father knowingly gave the flask to a young child and he was aware of the significant risk that the child might break the flask. The storekeeper, therefore, should be exempt.

The words "Aveidah mi'Da'as" imply that the father made the flask Hefker by giving it to the child. By putting the flask in a situation where it could be easily lost or broken, it is as if the father renounced his ownership of it. This can be inferred from the Gemara in Bava Metzia (21b) which says that if a person -- after collecting the grain from his granary -- leaves over a small amount of grain that is spread over a large area (Kav b'Arba Amos), that grain is considered an "Aveidah mi'Da'as" and one may assume that the owner was Mafkir it for all to take. (See Gemara there, 21a, and Rashi there, 21b, DH d'Aveidah mi'Da'as.)

If "Aveidah mi'Da'as" means that the owner made the object Hefker, then what is the meaning of the answers which the Gemara suggests to explain why the flask is not considered an Aveidah mi'Da'as? The Gemara suggests that the storekeeper is obligated to pay the father because he accepted responsibility for the flask either by intending to purchase it or by using it without permission. If the flask is Hefker because it is an Aveidah mi'Da'as, then the storekeeper has permission to take it for himself without obligating himself in any payment to the father! Why should he be obligated to pay the father (when the flask breaks in the hands of the child) just because he used it without permission? No permission is necessary to use it! (See SHACH CM 261:3.)

ANSWERS: It is clear that the Gemara here uses the words "Aveidah mi'Da'as" with a different meaning than usual. Although the Gemara in Bava Metzia (21b) says that the term "Aveidah mi'Da'as" means that the owner made the object Hefker by knowingly and willingly leaving it behind, the Gemara here uses that term to mean merely that the owner placed the object in a precarious position, and, as a result of his action, there is no obligation for anyone else to save it or return it to him. The owner's action of relative irresponsibility with his object exempts others from the Mitzvah of Hashavas Aveidah. It does not, however, make the object Hefker and permit others to use it without permission. (They are exempt from Hashavas Aveidah because the owner knows where it is and he put it into that place or into that situation, and thus it is not considered an "Aveidah" which needs to be returned.)

How does one determine which type of Aveidah mi'Da'as the owner makes Hefker, and which type of Aveidah mi'Da'as is not Hefker (but rather merely does not have to be returned to the owner with the Mitzvah of Hashavas Aveidah)? The Gemara in Bava Metzia (23b) applies the words "Aveidah mi'Da'as" to an object which a person leaves in a place that is not safe; the Gemara calls a barrel of wine that was left open in a place where crawling creatures can enter it an "Aveidah mi'Da'as." The Gemara there (25b) calls an object left in a garbage heap which is emptied often an "Aveidah mi'Da'as." In addition, the Gemara there (31a) says that if a person's animal wanders into the field of a Nochri who warns the owner that he is going to kill the animal if it is not removed immediately, and the owner still does not remove the animal, it is called an "Aveidah mi'Da'as." In such situations, does the object become Hefker? There seem to be two opinions in the Rishonim.

(a) The RAMBAM (Hilchos Gezeilah 11:11) writes that if a person knowingly places his money in a position where, in all likelihood, it will become lost (for example, he throws his wallet into the area of Reshus ha'Rabim), there is no Mitzvah for others to return it to him, but it is still not permitted for others to take it because it is not Hefker. The Rambam seems to understand that most cases of Aveidah mi'Da'as are not cases of Hefker, like the case in the Gemara here. Why, then, is the grain considered Hefker in the case in Bava Metzia of the grain left in the granary?

The Rambam understands that the case there is different. In that case, there is strong reason to assume that the owner does not have any intention to return to gather the leftover produce for himself. It is inconvenient for him to collect it because of the combination of its low value and the trouble involved in gathering it. In contrast, when a person acts in a seemingly illogical manner by not taking care of his possessions, since there is no rational explanation for his behavior it is assumed that he was temporarily mentally disoriented but that he eventually he will regain his faculties and will return to collect his money. It is assumed that in the back of his mind he wants to come and collect it at a later time, and therefore he is not making it Hefker now. (TAZ and NESIVOS HA'MISHPAT CM 261)

(b) The TUR disagrees with the Rambam. He writes that an Aveidah mi'Da'as is generally Hefker, as the words themselves imply. (According to the Rambam, the Gemara here should say simply that "it is not an Aveidah" (and that is why the storeowner should be exempt) and not that it is an "Aveidah mi'Da'as.") The Gemara is borrowing the term "Aveidah mi'Da'as" and using it with a different meaning. Why, then, is the father's act of sending the flask with a child not considered an act of Hefker, if an Aveidah mi'Da'as normally is Hefker?

The reason might be that in the case of the Gemara there is a clear purpose for which the father is entrusting the flask to the child: he wants the flask to reach the storekeeper in the most convenient way for him to get it there. It is assumed that the father considered the advantages and disadvantages of sending the flask with the child, and decided that it is worthwhile to send it with the child despite the risks involved. There is no reason to assume that he is making his flask Hefker. In contrast, if a person places his money in a position where it easily can become lost and he will gain nothing from it, it is assumed that he does not care if it becomes lost and that he has made it Hefker.