Conclusion: But if the theft is available, he must either declare that the loan is against the stolen article or make it an Apotiki for the creditor and return it.

Implied Question: Even though the Gemara said above (Daf 11b) that a creditor cannot claim from an ox that the owner designated as an Apotiki and then sold'.

Answer: That refers specifically to where he sold it

Reason: Because, seeing as there is no Kol, we cannot allow the purchasers to lose ...

Answer (cont.): But where he gave it away as a gift, where 'a loss to the purchasers' is not applicable, the creditor can claim it from him ...

Reason: Since he has no right to give away what is Meshubad to others.

Conclusion (cont.): But if he had not designated it as an Apotiki, the creditor would not be permitted to claim it from them ...

Reason: Because the Metalt'lin of the recipient of a gift, like the Metalt'lin of Yesomim (Pesachim 31a), are not Meshubad to the creditor ...

Conclusion (concl.): And since he himself is unable to claim it back from them, it is as if he gave it to them as a gift.

Clarification: It seems however, that the Gemara here does not reckon what he returns to them as if he had given it to them as a gift ...

Reason: Since he does not give it to them in the form of a gift, but S'tam with silence, and his intention is merely to fulfill the Mitzvah of returning it ...

Clarification (cont.): That is why it is not a Matanah and the creditor is able to claim it from them.

Clarification (cont.): He himself however, is certainly not allowed to claim it back from them ...

Reason: Because if he were to reclaim himself what he gave, he would not fulfill 'Hashavah' at all, unlike where the creditor takes it, where it is, since he himself is not the one to claim it ...

Clarification (concl.): And it speaks even when it is not an Apotiki.

Clarification: After death.

Implied Question: Even in his lifetime it ought, in fact, to be permitted ...

Source: As the Gemara says in Nedarim (Daf 43a) 'Someone from whom his friend is Mudar Hana'ah, may go to a shopkeeper with whom he is acquainted and say to him "So and so, who is Mudar Hana'ah from me, has nothing to eat and I don't know what to do for him!' the shopkeeper may then give him (the Mudar Hana'ah) and claim the money back from him' ...

Answer: Only that here, he doesn't want him to have any Hana'ah from him during his lifetime, and there is nothing he can do without his consent.

Implied Question: And the reason that it dosn't say here that if he doesn't want ... ', as it does in the Reisha is ...

Answer #1: Because he definitely doesn't want ...

Answer #2: Or perhaps it is only permitted there where h has nothing to eat, as the Tana says in the case of 'ha'Mudar Hana'ah me'Chavero', but where he has, then even if he doesn't want, the Takanah is not applicable.

Question: How can they exact payment from him - seeing as the Mishnah in Perek Ein bein ha'Mudar (Ibid.. Daf 33a) states 'ha'Mudar Hana'ah me'Chavero, Shokel lo Shiklo u'Pore'a lo Chovo' ...

Question (cont.): And Rabeinu Tam confines that to sustaining his wife, but as far a other debts are concerned, he is forbidden to pay on his behalf ...

Reason: Since he definitely benefits from that, and it is therefore forbidden ...

Question (concl.): And in this case too, he benefits?

Answer: This is not comparable, because there seeing as he is obligated to the one on whose behalf the money is being paid, if he were now to pay on his behalf free of charge, he would be benefitting him and it is forbidden ...

Answer (cont.): Whereas here, when the creditors come and exact payment from the property, he is not acftually benefiting from the property.

Refuted Question: Nor can one ask from the case of 'The one who goes to the shopkeeper' ...

Refutation: Since that is speaking where he gives it to him in the form of a gift - that the shopkeeper gives the MUdar Han'ah the fruit as a gives, and he then goes and accepts the money from the Madir as a gift.

Introduction to Question: But the case in Perek ha'Shutfin (Ibid. Daf 47b) where, in a case where someone says to his wife 'Konam she'Ani Neheneh lach', he borrows and the creditors come and claim from the husband (See Mesores ha'Shas) ...

Question: We can understand the case of 'Konem sh'Ani Neheneh le'Ishti', since one can say that it is talking about 'Mezonos Ishto' according to Chanan ...

Question (cont.): But that of Konem she'Ani Neheneh l'cha' (See above-mentioned Mesores ha'Shas) implies that it is referring to one's fellow-Jew - whose debt he is now paying off?

Answer: It speaks where he borrowed on condition that he does not need to repay the loan, in which case he does not benefit from the fact that his friend now pays it off.

Question: Is the Tana speaking about people who are stupid, who lend money on condition that it is not paid back?

Answer: He is his good friend, whom he knows will not refrain from paying back the loan on his behalf.

Question: Why does he not establish the Mishnah like Rebbi Akiva - who will admit that others he is able to be Mochel, though not for himself ...

Question (cont.): And Rebbi Akiva aargues with Rebbi Yossi (ha'Gelili) where he turned it into a loan, since he does not place turning it into a loan on a par with being Mochel others?

Answer: Rav Sheishes holds that if Mechilah of others helps, then s does turning it into a loan, according to all opinions ...

Answer (cont.): And since Rebbi Akiva says that turning it into loan is not effective, he definiutely holds that the Mechilah of others is not effective either ...

Conclusion: Concequently, he does not establish the Mishnah like Rebbi Akiva, since the Mishnah states 'Machal lo es ha'Keren' - implying that the Mechilah of others is effective.

Rava's Opinion: Whereas Rava, who establises it like Rebbi Akiva, holds that, if he cannot be Mochel himself, turning it into a loan is not effective either - according to anybody ...

Rava's Opinion (cont.): Consequently, Rebbi Yossi ... , who says 'Zachah Halah Mah she'be'Yado', must hold that he can be Mochel himself, in which case, the Mishnah cannot go like him, only like Rebbi Akiva ...

Rava's Opinion (concl.): Who concedes that one can be Mochel others.

Conclusion: And so, when the Tana says 'Zakfo be'Milveh' it is to teach us how far Rebi Akiva goes - that even if he turned it into a loan, he cannot be Mochel himself, seeing as he cannot b Mochel others.

Implied Question: The Gemara could have asked the same Kashya a5t the beginning of the Sugya - when it said that 'Rebbi Yossi ha'Gelili permits him to be Mochel, irrespective of whether it is to himself or to someboddy else' ...

Answer: Only because it had other Kashyos to ask, it did not bother to ask it.

Question: Bearing in mind that a Katan cannot acquire, what is the case of Gezel Ger Katan? ...

Source: As the Gemara says in the first Perek of Bava Metzi'a (Daf 12a) - that 'Stealing from a Katan is Asur mi'de'Rabanan an not mi'd'Oraysa'.

Refuted Answer: Nor can one answer by establishiing it by Yerushah ...

Refutation: Since a Ger does not inherit his father min ha'Torah.

Answer: It is exclusively by a Metzi'ah that the Katan only acquires it mi'de'Rabanan, since there is nobody who is Makneh it to him; But where somebody else is, he acquires it mi'd'Oraysa.

Clarification: And it speaks when the Katan converted together with his father, in which case everyone agrees that Beis-Din Tovel him ...

Clarification (cont.): But if he comes without his father, there is a Machlokes in Kesuvos (Daf 11a) as to whether one Tovels him under the auspices of the Beis-Din (See Tosfos, Sanhedrin, 68b, DH 'Katan').

Refuted Explanation: It is not correct to explain that this pertains to the Mishmar that is serving at the time that he admits and becomes Chayav ...

Authentic Explanation: But to the Mishmar that is serving when he brings it (to the Beis-ha'Mikdash ...

Source: Since by all Korbanos - Chata'os, Ashamos, Nedarim and Nedavos we do not go after the time that one becomes Chayav, to give it to the Mishmar that was serving at the time when he declared the Neder or the Nedavah, or at the time that he sinned the sin that obligates him (to bring the Chatas), but after the time that he actually brings it.

Conclusion: And the same applies here.

Question: Why does the Gemara use this Lashon, seeing as it is not from a Pasuk that the Tana learns it but from a Kal va'Chomer?

Examples: Such as T'rumah, Chalah and Reishis ha'Gez ...

Reason: Where the Tovas Hana'ah is on the owner, to give it to whichever Kohen he chooses ...

Clarification: 'From when it enters his domain nobody can take it away from him' - to divide among the men of that Mishmar, because it is only Matanos that are divided among the men of the Mishmar.

Implied Question: According to the first Lashon too, when the Gemara asks 'And is it not a Kal va'Chomer; if I have a right to take what belongs to others ... ', it could have asked 'Dayo Lavo min ha'Din Lih'yos ke'Nadun'? ...

Implied Question (cont.): In that he should only then acquire according to the amount that he would have received had it belonged to others?

Question: The Rashba asks why we need "Achuzaso" to teach us that it leaves his domain and is divided among his brothers the Kohanim? ...

Question (cont.): Why would we have thought that if he has rights in what belongs to others, he should certainly have rights in what belongs to himself? Seeing as here too, one can ask 'Dayo', like the Gemara asked earlier?

Answer: We need "Achuzaso", because we would otherwise have thought that since it is already under his jurisdiction, he is permitted to retain it.

Reason: Since we would have learned it "Kohen" "Kohen" from Gezel ha'Ger ...

Reason (cont.): And we would learn that Gezel ha'Ger belongs to him from the Pasuk "And the Kodshim of a man shall belong to him" - that is why we need "Achuzaso".

Reference: This is a Beraisa in Erchin, in Perek Ein Makdishin (Daf 25b).