Clarification: But from where does he (Rebbi Yonasan) know that he can appoint him a Shali'ach when he is not a partner?

Refuted Answer: One cannot answer that this is indeed the case - where he is not a partner, he cannot make him a Shali'ach ...

Introduction to Refutation: Since we learned in the Mishnah in Pesachim (Daf 88b) - 'If his master instructed him to go and Shecht a Pesach on his behalf, and he forgot whether his master said a kid or a lamb ...

Introduction to Refutation: He should purchase a kid and a lamb and declare "If my master said a kid, then the lamb is for me and the kid for him; and if he said a lamb, then the kid is mine and the lamb, his" ' ...

Refutation: Now since it says 'The lamb is for me and the kid is for him', it implies that he is not a partner in the kid, yet he is permitted to Shecht on behalf of his master

Refutation (cont.): So we see that he can appoint him a Shali'ach even there where he is not a partner

Question: Why does the Gemara not reject above too - to say that Rebbi Yehoshua ben Korchah is speaking where he is a partner, like it says here?

Answer: Because Rebbi Yonasan, who learns from the current Pasuk that 'All Yisrael can be Yotzei with one Pesach - holds that 'eating the Pesach is not crucial' (See Masores ha'Shas) ...

Answer (cont.): Consequently, when he says that one person Shechts on behalf of all of them', he must be speaking where he is a partner, because that is how the Pasuk is speaking ..

Answer (cont.): Whereas according to Rebbi Yehoshua ben Korchah who says that 'All of Yisrael cannot be Yotzei with one Pesach' - seeing as each one has to eat a k'Zayis ...

Answer (cont.): When the Pasuk says "And all of the congregation of Adas Yisrael shall Shecht it", it means that one person Shechts many Pesachim, seeing as one Pesach will not suffice for each person to receive a ke'Zayis' ...

Answer (concl.): In that case, he learns that even someone who is not a partner may Shecht it.

Question: Why do we need a Pasuk, seeing as we Pasken in Gitin (Daf 39a) that a Katan does not have a Yad?

Answer: We need it specifically by a Korban Pesach ...

Reason: Because we would otherwise have thought that, since he is included in the Mitzvah of eating it and needs to be designated on it

Source: As the Torah writes (in Sh'mosw 12) "Seh la'Bayis" - even for a Katan.

Reason (cont.): We would therefore have thought that he can acquire for others as well ...

Answer (cont.): Consequently, we need it to teach us that he cannot.

Question: The Gemara says in Perek ha'Nizakin (Gitin, Daf 52a) that 'Apotropsin are not permitted to cause loss or gain on the property of Yesomim' ...

Question (cont.): And in answer to the question 'Why not gain?' it answers 'a loss if their intention is to cause a gain'?

Answer: There it is speaking about claiming debts that others have on them, and that they are certainly not permitted to do, in case they (the Yesomim) will not claim them back when they grow up.

Answer: But when they claim on behalf of the Yesomim, such as is the case here, in connection with dividing up the land, which they will anyway have to divide up when they grow up, one may appoint an Apotropus to cause a loss if their intention is to cause a gain.

Clarification: Rabeinu Tam learns that this speaks specifically when 'they come' , but if one of them would object, we would not appoint an Apotropus to divide it up aagainstt their will.

Refuted Question: And one cannot bring a proof (to the opposite) from the division of Eretz Yisrael - where there were many babies ...

Answer: Since that was different seeing as it was done through the Shechinah amd through the Urim ve'Tumim (Bava Basra, Daf 122a).

Introduction to Question: This is difficult however, from the case in Almanah le'Kohen Gadol (Yevamos, Daf 67a) of 'A Kohen who died and left a pregnant wife and Avadim' ...

Introduction to Question (cont.): The Gemara says there 'That maled may eat, and as for the portion of the fetus - perhaps it turns out to be a male, and we Pasken (Ibid.) that a born baby feeds, a fetus does not? ...

Introduction to Question (concl.): we make a Takanah for them like Rav Nachman, who said, quoting Shmuel 'Yesomim who came to divide up ... ' ...

Question: In any event we see from there that even though one of them is very small and has no Da'as that one can ask him whether he wants to divide it up or not, similar to a fetus, on whose behalf we make a Takanah,

Question (cont.): And our Sugya says Davka if they came?

Answer #1: Perhaps one can answer that it is also a Takanahfor the fetus - whose portion increases when theAvadim eatT'rumah, seeing as T'rumah is cheap.

Answer #2: Moreover from there there is no indication that if one of them would specifically object, that we would appoint an Apotropus against his will.

Explanation #1: The Ri extrapolates from the Lashon 'Bor'rin' that it speaks without a Goral ...

Proof: Since what 'selection' does one make with a Goral?

Explanation #1 (cont.): He therefore explained that it requires neither a Goral nor the assessment of Beis-Din, and that the entire division depends on his decision, just as the Yesomim would have done themselves had they been Gedolim, when each one would have picked for himself and acquired it.

Explanation (cont.): And likewise, he maintains regarding the Din of 'Gud' or 'Igud', the Din is like that of the Yesomim themselves ...

Explanation (cont.): And the Apotropsin are permitted to divide two objects, even though both Yesomim need both objects and 'Gud or Igud' applies ...

Reason: Because the Chachamim placed the Apotropsin that they appointed on a par with the Yesomim themselves, to divide without the Beis-Din's assessment and without a Goral ...

Reason (cont.): And the division depends on their decisions - like two grown-up brothers in their father's property, where each one picks what he wants for himself.

Explanation #1 (concl.): And the same applies to 'Gud or Igud' where the division of the Apotropus is final, and they cannot object when they grow up.

Explanation #2: Rabeinu Tam however, explains specifically with a Goral - Is it a problem to make Goralos?, and it also needs Beis-Din's assessment.

Explanation #2 (cont.): Though this applies exclusively to something by which 'Gud or Igud' is not applicable.

Refutation of Proof: And the term 'Bor'rin' is appropriate by Goral - such as where there are three fields (and three Yesomim) - that they do not divide up each one into three parts, but rather that they take each field separately, so that each Yasom receives his full portion in one go.

Refutation of Proof (cont.): In fact, there are many areas of 'B'reirus' regarding windows and ladders, where 'a nice portion' is appropriate.

Retraction: Ultimately, the Ri conceded to Rabeinu Tam.

Alternative Answer: The Gemara could just as well have said 'One speaks where they erred by a sixth, and the other, where they error was less than a sixth ...

Alternative Answer (cont.): In which case it would not be necessary to say that they are permitted to object to the location of the field (See Masores ha'Shas).

Introduction to Question: The Gemara in Perek Almanah Nizonis (Kesuvos, Daf 100a & 100b), in answer to the question 'Like whom is the Shali'ach?', Rava in the name of Rav Nachman answers 'Like the Dayanim' - Implying that if it is less than a sixth, the sale stands, like the Dayanim ...

Question: Whilst Rava hiomself here says that, if he appointed him as a Shali'ach, he can say 'I sent you for my benefit ... ', implying that the sale is negated even by less than a sixth,

Answer #1: The Rashbam explains that Rava there cites Rav Nachman, though he himself disagrees, whereas here he is stating his own opinion.

Answer #2: Rabeinu however, explains that there it speaks about a Shali'ach of the Dayanim ...

Reason: Because the Rabbanan gave him the power to be like them

Answer #2 (cont.): Whereas here it speaks about a Shali'ach that he himself appointed.

Answer #3: Alternatively, granted, it says there that the Shali'ach is like the Dayanim and the sale stands, Nevertheless he is obligated to return the Ona'ah; An this is what he means when he says 'I sent you for my benefit ... ' and he must return the Ona'ah ...

Answer #3 (cont.): And not like other people, by whom less than a sixth constitutes Mechilah.

Clarification: This means that the sale is valid.

Clarification (cont.): According to this text, it brings a proof from Raban Shimon ben Gamliel whi says that the sale is valid, and Rava does not concur with Rav Nachman who said earlier that the Halachah is like the Chachamim.

Implied Question: And when the Gemara says that 'a sixth, he acquires and must return the Ona'ah' ...

Answer: Speaks specifically by Metalt'lin, by which in connection with which the Torah writes Ona'ah - "O Kanah mi'Yad Amisecha, Al tonu" - 'something that is given from hand to hand' (Till here are the words of Rashi).

Introduction to Question #1: Rabeinu Tam queries this; firstly, that he mentions with regard to a sixth that there is no Ona'ah by Karka'os, implying that by more than a sixth, there is Ona'ah ...

Question #1: Whereas in Perek ha'Mekabel (Bava Metzi'a, Daf 108a) Rav Nachman concludes that 'If one sells a field worth a hundred Zuz for two hundred, there is no Ona'ah?

Question #2: Secondly, he says that Rava does not concur with Rav Nachman - which is a Dochek, since Rav Nachman was his Rebbe?

Introduction to Question #3: And thirdly, Rashi's text at the beginning reads 'More than a sixth', and he then goes on to bring a proof from the Mishnah of 'Shum ha'Dayanim' from 'where they gave less than a sixth or more than a sixth' ...

Question #3: Why does he bring a proof from there, seeing as this Mishnah does not say anything about what the Din will be if they give more than a sixth - in which case the two cases are not comparable?

Explanation #2: Rabeinu Tam therefore has the opposite text, as does Rabeinu Chananel - 'They only said "Sh'tus, Kanah u'Machzir Ona'ah", there where he did not say "Let's divide according to the assessment of the Beis-Din"

Explanation #2 (cont.): But where he did, then not, and the sale is negated.

Explanation #2 (cont.): According to this, Rav's proof is from the Chachamim.

Implied Question: And when he says 'More than a sixth, the sale is negated ...

Answer: That is only by Metalt'lin, but by Karka ... '.

Answer (cont.): Now the ruling of 'If he sold it for one hundred Zuz and it is worth two' fits well ..

Question: It implies here according to Rabeinu Tam, that, according to Rav Nachman, Karka'os are not subject to Bitul Mekach (negation of sale) ...

Question (cont.): Whereas in Perek ha'Zahav (Bava Metzi'a, Daf 57a) Rav Nachman hinself, states that Rav Chisda retracted, and said (in connection with Karka) "They are not subject to Ona'ah, but they are subject to Bitul Mekach'?

Answer: Bitul Mekach there refers to a half ...

Support: And so it says in the Yerushalmi (See Kesuvos, 11:4) 'Up to a half, they are subject to Ona'ah; but less than a half, there is no bitul Mekach'.

Explanation #2 (cont.): And the case of 'Someone who sold a hundred for two hundred, it depends ...

Explanation #2 (cont.): If 'half' is Davka, then 'He sold a hundred for two hundred' is La'av Davka, and it means a bit less than two hundred.

Explanation #2 (concl.): Whereas if 'two hundred' is Davka, then 'Up to a half' is La'av Davka, and it means a little more than a half, but a half, the sale is valid.

Question: It must be speaking by Shogeg ...

Reason: Because if it eas speaking by Meizid, Meizid is not subject to Me'ilah ...

Question (concl.): That being the case, 'Yesh Shali'ach li'Devar Aveirah, since the principle 'Divrei ha'Rav ve'Divrei ha'Talmid, Divrei Mi Shom'in? does not apply here, since he acted be'Shogeg?

Proof: Since this is implied in Perek Merubeh (Bava Kama, Daf 79a [See Masored ha'Shas]) where, discussing a case where 'Somebody steals a lamb from the flock and says to his creditor "Take this lamb, that belongs to me", or if he gives it to a Kohen for the Bechorah of his son, showing him a lamb belonging to his friend ...

Proof (cont.): The Gemarqa concludes that the moment the Kohen takes it out from the domain of the owner, the Ganav is Chayav with the Meshichah of the Kohen ...

Proof (cont.): The Ri asks there why the Ganav is Chayav; why we do not say 'Ein Shali'ach li'Devar Aveirah'?

Proof (concl.): And he answers that, since the Kohen is unaware that the lamb is stolen, the argument 'To whom does one listen?' is not applicable.

Answer: The Ri explains that it speaks here even where the Shali'ach remembered, and it says that the owner is Mo'el ...

Answer (cont.): And the Gemara now asks why that is, why do we not say 'Ein Shali'ach li'Devar Aveirah', since 'Divrei ha'Rav ve'Divrei ha'Talmid, Divrei Mi Shom'in

Answer (concl.): Because even though the SHali'ach remembered, the owner is Mo'el - as is evident in Me'ilah (Daf 21a) where the Beraisa rules that if the owner remembers but not he Shali'ach, the Shali'ach is Mo'el, and that if they both remember, the shop-keeper is Mo'el'.

Reason: This is because Me'ilah only applies to Shogeg, as Tosfos explained - Therefore the one that does not remember is always the one who is Mo'el, since the one who does is Meizid.

Conclusion: Nevertheless, (the latter ruling speaks) Davka if they both remembered; but if only the Shali'ach remembered, the owner is Mo'el.