"Four Guardians and Their Three Laws" (The Owners of the Tenant and the Borrower as a Basis for Sorting the Types of Guardians)
2006
A. Introduction: Tenant as a Fourth Type of Guardian
The Mishnah, BM Tseg 3a (see also Shavuot 44a-ab) states:
There are four types of guardians: a gratuitous guardian and a borrower, a wage-earner and a hireling. A gratuitous guardian swears on everything, and the borrower pays everything, and a wage-earner and a hireling swear on the broken, the captive, and the dead, and pay for the loss and the theft.
Therefore, the Mishnah lists four different types of guards. The Gemara (ibid.) cites a disagreement between the Tannaim (R. M. and R. Yehuda) regarding a hireling, whether his laws are as a free guard or as a paid guard, and concludes with the following statement:
Why, four? Three are not enough! – Rav Nachman bar Yitzchak said: Four watchmen and their laws are three.
The halakhah is simply a mishneh, that the tenant's law is the same as the law of the tenant. But in simple terms, the summary statement "four guardians and their laws are three" is agreed upon by all. According to both the R.M. and the R.I., there are only three halakhic categories for the four guardians. This is indeed what the Todah says, "Ei Hi" on Atar, and we will elaborate on this further below.
And so the Maimonides also writes in the book of the rent:
Four guardians are mentioned in the Torah, and they have three laws. And these are the four guardians: the free guardian, the borrower, the wage-earner, and the hireling.
It is quite clear from the totality of halakhic sources that halakhic law does indeed see four different types of keepers. Most commentators on the commandments do list three keepers, but most of them specify (seePolice officer The Rambam made a ram, and inEducation Mitzvah 55 and more) in the mitzvot of Shomer Shachar, which deals with the subject of salary and hireling. That is, the hireling also appears on the map. An exception to this rule is Rasag in his parashits (see Police officer Shalev, in the edition of R. Yerucham Perla, Parshiyya 23-24-25) it appears that he named the tenant as himself.
The question that arises here is why are four guardians defined in the Mishnah and Halacha at all? Why don't we classify the laws of guardians according to their laws, that is, into three types? In the background, it should be noted that in the Torah itself, only three paragraphs of guardians appear, and the Gemara (see the entire Sugiya at the beginning of the chapter on the questioner in the BM) assigns each of them to one of the three halachic categories (Sh. 8, Sh. 10, and Sh. 11). Rashi (d. 'How to Pay', BM 52b) even bases the Gemara's hesitation there regarding the laws of a tenant on the fact that there is no paragraph in the Torah regarding a tenant, and at least the laws of a tenant do not appear explicitly in it.[1] Also refer to Rashi's commentary, Exodus 22:14, and below we will discuss his words further.
For example, the Gemara in 17b cites the saying of Rami bar Hama:
Four guards require a partial apostasy and a partial confession, and these are: a guard for free, a hired beggar, and a hired hireling. Rava said: What is the reason for the Dharmaba? In the Hadith, it is written in the book, "Because he is this," a hired guard will say "giving" - "giving" from a guard for free. A questioner "and if he asks" - and the rabbi adds to the first matter.
And what about the hirer? He is counted among the keepers, but the Gemara does not cite a source for him at all. It does not even bother to say that he is learned from the Book of Proverbs. The Gemara simply ignores him, and it seems that in its view a hirer is nothing more than a type of keeper of wages. A similar reference arises regarding the shelichot yad, in the issue of BM 40:2, as well as regarding additional laws in the issues of Reish P. Hashoel (BM 12-13) and more.
Likewise, in the Toda, "Thirteen" in B.C. 4:2, which discusses the four guardians as part of the fathers of torts, it is written that there are only thirteen, because a tenant is not a separate category: it is either a "Kash" or a "Kash".
This image further sharpens the difficulty we raised above: If there are indeed only three halachic categories, both in Torah passages and in terms of the laws governing watchmen in practice, then why do the Sages and the Rishonim (like the aforementioned mitzvot reciters) refer to the hirer as a fourth type of watchman, and not place him under one of the three existing categories? In what sense are there four types of watchmen at all?
Ostensibly, the classification into four types is based on the situation that created the law of guarding. In other words: Although there are only three halachic categories, there are four situations in which a duty of guarding is created that falls into one of these three categories. A tenant is one of these situations, and the situation of a regular hired guard is different from that, and therefore the tenant is considered a separate type.
However, this explanation is not plausible. There are several other situations in which liability for loss arises that fall into the same three categories. For example: a keeper of a lost property (about which Rabba and Rabbi Yosef disagreed, see Shavuot 44a and parallels), and according to the law it is like a keeper of a wage. A craftsman (see B.M. 5b and others), who is also like a keeper of a wage. And a lender on a mortgage (see B.M. ibid.), who according to most opinions is also liable like a keeper of a wage. So how is the situation of a tenant different from all of these, such that it becomes a fourth type of liability for loss? If the situation is what determines, then there should have been many more types (also a craftsman, mortgage, and loss). And if the laws are what determine, then there should have been only three types.
We emphasize that there are very few differences between the laws of a regular contractual keeper of hire and the laws of the other (non-contractual) types mentioned above. However, in terms of these differences, the hirer is similar to them and not to a keeper of hire. For example, the degree of protection required by a keeper of hire is at a level beyond that of a female keeper (on their part, who thus owes a NIS, see BM 33b). However, with regard to a craftsman, a pawnbroker, and a keeper of loss, protection as a female keeper is sufficient (see BM 33b).position Mitzvah 5:11, 12:11, "And he who guards a loss." What will be the tenant's law? It turns out that it will be the same as their law, since what a hired guard is obligated to guard will be feared because he received a reward for guarding it (see the BM there), as opposed to those who did not receive a direct reward for guarding them.[2] If so, what makes a hireling different from other hirelings, who are considered a fourth type?[3]
In this article, we will attempt to explain the map of types of guardianship, and especially why there are four different types of guardians, and we will do so in light of the nature of the different obligations. We will see that the four types express four different types of obligations, even if most of the laws of two of them (in halakhic terms: Shas and Shukar) converge.
At the beginning of our discussion, we will deal with the properties that a tenant and a borrower have, as opposed to a NIS and a SHS. From this, we will see the different nature of the obligations that exist with them, as opposed to a NIS and a SHS. In the following discussion, we will distinguish between a tenant and a borrower on the one hand and a SHS on the other, and we will see why the tenant does indeed constitute a separate type.
To conclude the introduction, I would like to remark with surprise that this subject, despite being very fundamental in Sumerian law, I have not found a direct discussion of it in the commentators. After I finished writing the article, I found two sources that deal with this subject directly: the Lubavitcher Rebbe, inFor calls,[4] And Rabbi Lichtenstein, in his lessons for the chapter asking (especially in the first three chapters)[5]Their conclusions are very similar to mine, so I incorporated what they said into the discussion.
B. The owners of the depository: the tenant and the borrower[6]
The basic contradiction
How many last[7] We discussed the question of whether the payment of rent is a fee for ownership of the object, and the tenant's use of the object is a use of his own object (i.e. he has ownership of the object for its fruits), or whether the payment is for the uses, but he has no ownership of the object (which seems to be more consistent with the law that applies to rent from beginning to end).
One of the reasons for this is the controversial ruling of the poskim on the issue of the house being sold within the time limit (BM 101). The poskim disagreed there on whether the tenant is liable for the entire payment since he has already bought the house, or whether he is only liable for the period for which he has already lived in it (below, we will separate this point from the discussion).
However, the basis of the matter is already found in the contradiction between various sources in Shas itself, and in the early disputes surrounding them, whether the tenant has ownership of the object leased to him, or not.[8] The first source is found in the issue of B.M. 502, which discusses the question of whether there is fraud in renting:
Rabbi Zira said: In a rental, does he have deceit or does he not have deceit? A seller said, "Mercifully, but not a rental, or is it not a sin?" Abaye said to him: Who writes a seller forever? A seller is a slave, and the one who does not know in his days is a seller.
It seems clear from this that the object was sold to the tenant for the duration of the rental, and that he has ownership of the object (for the fruits). As we will see, this is indeed what some Rishonim did. However, the Rishonim noted that in the 15th chapter of the Torah, which discusses the prohibition of renting one's house or livestock to a Gentile lest he commit offenses with them, it seems clear that renting is not buying:
And in no place is a gross animal sold, as follows: 49. What is the difference between a lease and a leasehold? A leaseholder is not a hirer, a hirer is a hirer. And he is not a hirer, because he is a purchase! A decree is made because of a question and because of a rental. A question is a purchase, and a purchase is a purchase! Rather, the Remi of Baria, Dr. Yiva, said: A decree is made because of a trial, because he is a hirer for her near the sunset of the sun, which is the Sabbath, and God said: A trial is made because of her management, and she hears her call, and then she does not hire her, and she is given a donkey after her animal on the Sabbath, and the donkey after his animal on the Sabbath – he is liable for a sin. Rav Shesha Baria, the father of Idi, attacks her: And whose rental is a purchase? And he said: Even where they said to hire, they said not for a house, because it introduces idolatry into it; And what is the sed of the hire of a cow, and
The Gemara brings two implications to this: 1. It is forbidden to rent a house/animal to a Gentile, since if he commits a transgression in it, he commits it by using the object of the Israeli lessor. 2. A priest who rents a cow from an Israeli is forbidden to feed it with a terumah, since it does not belong to the priest.
If so, there is apparently a contradiction between the words of the Supreme Court in the case of the BM regarding fraud, and the conclusion of the Supreme Court in the case of the AZ. The former are divided into two groups due to this contradiction: some of them rule following the issue of the AZ that rent does not buy, and resolve the issue of the BM in different ways. Some of them rule following the issue of the BM that rent buys, and resolve the issue of the AZ in different ways.
The Toss Method and Their Support: Rent, Not Purchase
The owners of the Torah consistently rule that rent is not a purchase. For example, in Toda "Vahay", BM 50:2 they wrote (and so is it in Toda "Vahishta", BM 7:1):
It is proven that the rent was not purchased from Israel, that he rented a cow from a priest and filled it with water for a dwelling house, and they said, "The rabbi of the one who is a fraud writes, 'It is an unnecessary sale, including rent.'"
If so, according to the Torah, the law of fraud is a special law, but according to the Torah, a rental is not a purchase. We note that it turns out that according to the Torah, there is also some dimension of ownership in a rental, since the Torah also admits that the word rental is derived from the word "machkar" in the Torah. However, according to them, rental is a weaker type of machkar.
This could be understood as a sale of rights of use (in halakhic language: 'fruits'). Unlike granting a temporary right of use, a lease obliges the lessor to grant the right of use, and therefore there is something purchased here. However, this is not ownership in the body of the object (and not even the body of the fruits) but ownership in respect of the rights of use only. Indeed, we find in16 (Homom Si' Shatu, and see also in the same opinion) who explained the lease as ownership of the fruits of the object only (in contrast to other areas of halakha where there is no possibility of ownership of fruits alone, but only ownership of the body for its fruits).
Although in the Toda, "Heki Kamer," Archin 21b, it seems that the authors of the Toss did not intend the words of the16, but according to their view, the tenant has no ownership of the leased object at all. It seems that their intention is to say that the lessor mortgages part of the house against the tenant's money, and in this the tenant has a lien (which is a kind of ownership), and to this the ownership of the lease applies.[9]
And here we find in the Tod "Kach Tekna", B "M 7tt a"a, which wrote that what they established a withdrawal in the guards is for the purpose of return and not for the purpose of the maintenance charges. Then the Tos' also proved with regard to the tenant and the asker that the withdrawal that was fixed is only for the purpose of return. And their proof is based on the fact that with regard to the obligation of the tenant to maintain the rent, there is a withdrawal from the "t" (s). And apparently it is difficult. What is the place to divide between the asker and the tenant and between the "t" and the "t"? And where does the lawyer get the Tos' that the asker really must withdraw from the "t"?
And it seems that the intention of the Toss is to say that the renter and the borrower have ownership in the body of the object, and therefore in their case, a withdrawal from the owner in order to buy the body of the object. It was the case that the regulation of withdrawal among them is for the matter of maintenance charges (since the regulation no longer applies to the matter of return, since they have already withdrawn and purchased the object and its charges from the owner). Therefore, the Toss came to the conclusion that even in the case of the renter and the borrower, what they established as withdrawal is for the matter of return. And according to our words, this Toss believes that the renter and the borrower have ownership in the body of the object, contrary to the aforementioned Toss.
Although this does not seem to be the case. It would seem that without the regulation, it would be possible to withdraw from the contract even after the object was withdrawn and purchased from the Torah, and this is compelling (although according to some of the early scholars there in the question, this does indeed appear to be the case). Therefore, it seems more clear that the intention of the Torah is to infer from the OT that the tenant and the borrower have ownership in the object, and to this they brought their evidence. According to this, the Torah truly concludes that the Torah also believes that the tenant and the borrower do not have ownership in the object, just like the NIS and SHS, and this is in accordance with the Torah's approach everywhere.
We also learned from this that a tenant is like a borrower in this matter. This is also implied by the issue of Az, which compares the Hadith of a borrower to a tenant, and its conclusion in both cases is that the keeper does not have ownership of the object. On the other hand, it should be noted that the issue of fraud in the BM, which speaks of there being ownership of the object, certainly deals only with the tenant and not with the borrower (since the borrower does not pay). It is not clear what the position of the questioner there is regarding the question. And see this below when discussing the methods of the first who ruled as the issue of Az.
We have learned that the Torah system in several places is that the tenant does not own the object itself, or the land, and he uses the property due to the lessor.[10]
And here, in the language of the Gemara Kiddushin 44b (and in the book of 17a), it appears that the questioner bought the object, since he was innocent:
Rabbi Huna said: He who borrows a dagger from his friend, he is jealous of him; he who does not, he is not jealous of him.
Indeed, later in the Gemara it is explained that they were jealous not of the obligation to rape, but of the fact that he could not withdraw it. We also find in the Ritva, in the Sugiya of Kiddushin, where he cited in the name of his teacher (the Lord), according to the opinion of the Torah, that one should not rent or borrow anything from the body of the object, and what they established as a taksah is to buy the servitude (and this is the Sages' ruling, since usually a taksah buys only the body of movables).[11]
And the latter brought evidence for this method from the doctrine of firstfruits, 1:12, which distinguishes between a tenant and a hirer, who do not bring firstfruits, and a buyer of a body for fruits, who brings and does not call (according to the opinion of R. L., 2:2, cf. 12). From this it is apparently proven that the hirer does not have ownership of the body desired for its fruits.
And here is a difficulty with all these methods from the Tosefta 59 Dvm (which the aforementioned Thos quoted in Arakhin), according to which the tenant can dedicate and the landlord cannot. This means that the tenant has ownership in the object. However, as the Thos noted, this is the opposite of the words of the Gm itself in Arakhin there. And in Thos, in light of the words of the Yerushalmi, they divided Pesachim between a tenant who paid his rent in advance, in which case he has ownership in the body of the object for its fruits, and a tenant who pays at the end (as much rent as is paid at the end), in which case the tenant did not buy, and in this the Gm is illustrated in Arakhin.[12]
And according to this, the Torah and its ilk also state that the tenant does not own the object, only when he pays at the end, in which case the payment is for use. But if he paid the entire amount at the beginning of the time, then the payment is a purchase price for a body for fruits, and the right to use comes anyway (he uses his own). Nevertheless, the Torah apparently understood that in the matter of fraud, there is no sin, and therefore the issue of the BM no also deals with a rental that is not a purchase (since they did not address the contradiction of the issues in the division regarding the time of payment). And this is also what is meant in the Torah, "Ai Athe," BM et ab.[13] Although this division is not agreed upon by all the first.[14]
The Method of Maimonides and His Companions: Rent Purchase
And here it isNemoi B.M. 50 E.B. also brought up the question of the law of the land from the issue of E.Z. However, he stated that renting is the purchase of a body for fruit, but the ownership of the body itself remains with the lessor. The ruling on selling a house to a gentile in the issue of E.Z. depends on the ownership of the body (which belongs to the Israeli lessor), and therefore it is forbidden to lend or rent to him, even though the gentile does indeed buy a body for fruit.
And so it means inNemoi In the issue of the right of withdrawal in the Shomerim (B.M. 1971), he wrote that since a renter and a borrower use the body of a tool, it is considered a sale for its day, and it is obligatory that they acquire their right of withdrawal since they gain the body of the thing. And indeed, this is what is meant by the language of the question there, since it compares the right of withdrawal in a rental to the right of withdrawal of customers in a sale.[15]
Likewise, the Ramban wrote (printed in the omissions of Rashba's innovations, Ketubot 55a), that a tenant can give, rent, and dedicate, because the body of the fruits of the object is his actual property. This is another innovation, that the tenant can also give the object in his possession.[16]
And he brought inKOH There, from the Rivash Si' Teki, if the buyer terminates his lease midway, it is not enough for him to leave the house, but he must return it to the lessor. And it is apparently proven from this that he has ownership of the house, and perhaps even ownership of the actual body (and not just the body of the fruits).[17]
The Rambam also makes it clear in several places that the tenant buys a body for fruits (see Hala Shala Fa 15:5 and Mecha Fa 23:1-8, and Hala Shekirot Fa 6:5 and Mecha Fa 6:1, and more). Although he disagrees with the Ramban and believes that this ownership does not give him the right to rent the house further (see Hala Mecha Fa 23), in contrast to a buyer for a time who can sell his rights.[18]
Indeed, in Pet. Mehal Terumot 57, the Rambam rules out the law of a priest who rents a cow from Israel that he does not feed with the terumah, and this seemingly teaches that he does not have ownership in it. Similarly, regarding the matter of renting an animal or a house to a Gentile, the Rambam rules (see Halacha Shabbat 53) that it is forbidden to do so, and this also teaches that the renter does not have ownership in the object.
The explanation for this may be what happened inPIAMS Donations PA MT9, even though he has ownership in it, it is not a case of 'ownership of his money' (and not because it is not his for its fruits).[19] And regarding renting a house or an animal to a Gentile, the Maimonides also rules that this is forbidden, and in our opinion it should be said that even there the matter depends on the 'ownership of one's money,' which is not reasonable ('ownership of one's money' is a criterion for donation only). Therefore, it seems that feeding by donation and renting to a Gentile depends on the ownership of the body, and the body belongs to the lessor (20).Nemoi (The above). However, for the law of fraud, there must be something that was bought and sold, and for this, it is sufficient to have physical possession of the fruit, which can also be called 'selling for its daily life.' If so, the Rambam is as follows:Nemoi The above means that the lessee has physical ownership of the fruits and the lessor has physical ownership.
We should note that Mordechai also belongs to this faction, but he believes that a Ramban hired for this purpose is a real buyer, and he can even transfer his right to a larger family, a real buyer for time (see The ways of Moses (H.M. C. Shatz S.K.A.).
A note regarding the NPF of the latter
It should be noted that, contrary to the opinion of the aforementioned scholars, it seems that it is not necessary to draw from such a position the conclusion that the tenant must pay everything immediately, or that if the house has fallen into disrepair, he must pay everything and not just for the time he has already lived in it. And evidence of this is that we have noted a contradiction from end to end: The Ritva in the Book of Revelation 111:1 brought in the name of the Ramban that if the house has fallen into disrepair, one pays only for what has already been lived in. This is seemingly contrary to the opinion of the Ramban (which we saw in the Rashba's omissions above) who believes that the tenant has property. And on the other hand, the Ritva brought in the name of the Lord that he pays everything, and this is also contrary to what we saw above from the Lord.[20] There is some more evidence that there is no connection between the form of payment and the question of whether the lease is a purchase, and the like.[21]
And the explanation of the matter is that it is possible to think that the tenant has property, but the payment is determined according to the uses that this property allows. The purchase itself is not made with money but by withdrawal (in movables) or possession (in land). On the other hand, it is possible to think that the tenant does not have property, but the payment must be given for the execution of the entire transaction, since he has purchased all the uses (and especially if he buys the lien that guarantees him this, as we saw in the above paragraph).
C. Difference between a tenant and a borrower
introduction
Up to this point, we have assumed that the question of whether or not the tenant has ownership of the leased object concerns both the asker and the tenant, and the answers were given with respect to both of them together. We saw this from the words of the Gemara in the Book of Zechariah and also from the words of the Rishonim. Although we noted that in the issue of BM, we are talking about the tenant only, since there is no payment from the asker and there is no fraud involved. However, it is certainly possible that this is a technical constraint, and ultimately the ruling of the Gemara there that rental is not purchase also applies to the asker.
And here, in Rashi's discussion of the issue of Az, we find that precisely in the issue there (which links the law of rental with the law of loan) he writes things that lead to a distinction between rental and loan. This can also be seen in Rashi's words on other issues in the BM. From these words, we will attempt to characterize the rental contract in relation to loan, and return to the question we posed at the beginning of our discussion as to why the tenant is a fourth guardian.
Rashi's approach to the issue of 15:15
As stated, the issue of 15:1 does not distinguish between rental and question. Throughout, it states that rental and question are purchases, or not purchases, in a contract. Why is there really a side in the contract that rental and question are purchases? It turns out that the reason for this is that in both of these contracts, the keeper has usage rights, which is unlike in a shalakhic contract and a shalakhic contract (where if they use the deposit, they violate the law of shalakhic law). When someone has usage rights, there is a halakhic side that these are proprietary rights and not just purely permitted use. Therefore, this side arises in relation to both the question and the rental.
It is precisely against the backdrop of this consideration, and precisely on that issue, that we must examine why Rashi, when explaining the Ha-Ha in the verse that there is a property for the questioner, writes the following:
Asked by Kenny – For the days of the Shalat, the debt owed to Onsin is his.
Rashi explains the party who asks for a purchase by saying that he is obligated to pay onsin. He seemingly ignores the fact that in the same sentence the Gemara says (see the quote above): "A purchase is a purchase, and a fee is a purchase," meaning that a rental is also a purchase, even though there is no obligation to pay onsin in a rental.[22]
Furthermore, it is not clear why the fact that he is indebted to Onsin means that he has ownership of the object? And is it not possible for Onsin to be indebted to an object that is not his, only as a guarantee for the lender who did him a favor and gave him permission to use the object?[23]
It appears that Rashi's intention is to bring the obligation of onsin as an indication of the ownership that the beggar has in the object. If the beggar owes onsin, then he probably has ownership in the object. We know of other examples of such an indication. For example: a robber has ownership in order to be obligated in onsin. A lender on a pledge who owes onsin (according to some opinions) and Kenau of Dr. Yitzhak. In our contention here, the beggar is part of the same list: his obligation in onsin is based on the ownership that he has in the object.
Here we will already state that our words can be understood in two different ways: 1. The property was given to him in order to charge him with onsin (as in the case of a robber). 2. The property exists for other reasons (due to the rights of use, or the contract with the owner), and the onsin charge is a result of the property (we will explain this in more detail below).
In any case, from these words of Rashi it follows that the demander's obligation to rape is not part of a keeper's responsibility, or one of his obligations to guard. The demander's obligation to rape is a result of his ownership. Everything that happens to the object happens to the asker and not to the owner, and the obligation to return the object to its owner remains intact. This is what creates the demander's obligation to rape.
The words of the Rashba, 1562
Rabbi Lichtenstein, in the first part of his aforementioned lessons, provides support for this principle from the words of the Rashba, 15:1-2. The Gemara there offers an explanation for the obligation of a keeper who violated a cow and it went into a lake and died there as it was. This is a type that begins with a crime and ends with rape, and the Gemara says about it:
…It does not mean that a crime that begins with a crime and ends with rape is exempt from punishment! Rather, even a crime that is obligatory is exempt. What is the reason? The angel of death, what is this to me, and what is this to me, is innocent…
The Rashba makes it difficult to hold a seeker accountable. If we consider the reasoning of the Angel of Death, "What is this to me and what is this to me?" as a reason for exemption, why hold a seeker accountable for rape? Apparently, this consideration can also be raised for him. The Rashba explains that a seeker's accountability for rape is not the result of any guilt, and therefore the argument "the Angel of Death, what is this to me and what is this to me" is not relevant to exempting him. The Rashba also does not accept the possibility of holding him accountable (without a crime in custody. Like an insurance company). He attributes this to ownership:
And the one who asks is obligated to die according to her manner, because all his enjoyment, Okemah, is completely in her possession as if it were his, except for death due to labor…
And these are our words. The Ra'al quotes a quote from the Gari'd who compared this to a robber (who is also liable for onsin. See B.K. 15b) and a pawnbroker (who, according to some of the Rishonim's opinions, is also liable for onsin. See Rashi 6In the car Kiddushin 8b), and explains that the basis of the obligation is similar to a person who bought an object and paid for it, and after leaving the store the object was stolen and destroyed. He of course cannot return to the store and ask for his money, since the object was lost to him and not to the store owner (=his luck caused it). Even in the case of the questioner, the obligation is not due to negligence in care or responsibility for theft. He is obligated to return it, and if the object is stolen, he himself is stolen.
What is the ruling on a tenant according to Rashi?
It is quite clear that the Rashba's words above are only meant in relation to the questioner. A tenant is not liable for rape, and therefore it turns out that his obligations are not a result of ownership but of security charges, like other guards.
Let us now return to Rashi's statement on the issue of Az. These things raise a question about the conclusion of the Gemara. We saw that at the beginning of the issue the Gemara states: "The question is a purchase and the fee is a purchase." Now we see that according to Rashi the reasons for this are different: in the case of rental, it is because of the purchase of the rights of use, and in this issue, it is because of the obligation of onsin. The conclusion of the Gemara: "But the rent is not a purchase." The evidence presented in the issue also concerns only rental (a cow rented to a priest). What is the ruling on the question? According to Rashi's explanation, it seems that the conclusion of the Gemara deals with rental only, while with regard to this issue the conclusion is that the question is indeed a purchase, since it is clear that the questioner has an obligation of onsin. The proof from feeding a donation to a cow rented to a priest says nothing about the argument that the question is a purchase from the obligation of onsin. In rental, there is no obligation of onsin, and therefore there is a rental not a purchase.
This may be the very reason why Rashi needed a different explanation regarding a question. He wanted to hint to us at the very beginning of the question that a question is different from a lease. It has the meaning of a lease (since the questioner can use the object), but this meaning is rejected as the basis for the ownership of the object (by virtue of the evidence from an animal leased to a priest), and therefore, according to the law, a lease is not a purchase. However, in the context of a question, there is also the explanation that one wants to give the object to him in order to be obligated in the onsin, and this perhaps remains for the conclusion as well.
If so, according to Rashi, it follows that the conclusion of the Gemara in the book of Zechariah is that renting is not a purchase, but asking is, and the evidence that the asker is liable is onsin.
Two additional pieces of evidence for the division between borrower and renter
A similar division is found in Yerushalmi Shavuot 58:1. Yerushalmi discusses the situation where an object is stolen from the house of a watchman, and the watchman pays the owner for his blood, and the thief is found. The watchman buys double if the object is “stolen from the man’s house.” According to the baraita there, this verse comes to the questioner’s exception:
Give and steal from the man's house, not from the house of the borrower. And [to say] and steal from the man's house, not from the house of a wage earner and the hireling? Because his protection is upon him as if he were upon him.
The baraita states that the verse "and steals from the man's house" excludes a beggar, while a tenant is not excluded because he has a responsibility to protect.C.P. B"K 11 A"A 6KZVAH Rish Si' Shmat explains that the borrower is the owner of the object, and therefore this is not theft from the depositor's home.C.P. Explains that the obligation of a borrower in a bond arises from the obligation of restitution, and it does not constitute payment for a crime in custody, unlike other guardians. In contrast, the law for a tenant is the same as for all guardians, in that he is obligated to guard, but the object belongs to the owner. If so, a tenant is a guardian of his friend's property and does not use his own. According to this opinion, renting is not a purchase, and borrowing is a purchase.[24]
Also inContain We find a vague sermon that separates the questioner from other watchmen (Tractate Danzikin, Parsha 16, 5:10):
And if a man asks about his neighbor, the scripture separates the questioner from the rule of a guardian, and they say it is a matter in itself.
husband Facial appearance The aforementioned Jerusalemite brings this sermon, and also links it here.
In the next paragraph we will see such a possibility also in the Toss of the Seven Hills.
Baraita Biyamoth 60b
In the case of the Yevamot 60b, it appears that the baraita of a priest who hired a cow from Israel consists of two parts: the part that is also cited in the issue of the 7th chapter deals with the Israelite who hired a cow from a priest and the priest who hired a cow from Israel. According to the law, a priest who hired an animal does not feed it with a donation, because a donation is not a purchase. The conclusion of the baraita, which appears only in the issue of the Yevamot, deals with the Israelite who hired a cow from a priest and the priest who hired a cow from Israel, and there it is ruled that a priest who hired a cow from Israel does feed it with a donation.
Rashi on Atar explains that this is a priest who rented an animal from Israel, and stipulated to accept responsibility if something happened to it or its value. In the Toda, they emphasized that it is forbidden to do so because of interest. And it is said that this is a beggar.
Simply put, the intention of the text is to say that it is a question of asking because there is no monetary payment in asking, and therefore such a stipulation does not constitute interest. This is also understood by Maharishi Korkus on the Rambam, Terumot Pet. 5:8, s. Although inEncryption decryption The above (and at the same time) understood that Bethus was placed in the questioner because in the questioner the cow is considered to belong to the priest, unlike in the case of a rental.[25] That is, theC.P. He understood that the intention of the Torah is to say that a priest who borrows an animal from Israel is indeed fed with a donation, since the loan is a purchase, unlike a rental that is not a purchase.
theC.P. He goes on to say that Maimonides himself also believed so. In all these places he explains that Maimonides (both in Hal. Terumot Pet. 5:8 and inPIAMS Terumot Pi"a 49) placed the Gemara in the questioner's mind, because the question is a question of knowledge. If so, according to theC.P.The Rambam and the Toss agree with the division we saw in Rashi on the issue of עז, according to which the Gemara's conclusion is that although renting is not a purchase, the question is.
Clarification of the methods of the first according to the author of the Tzaff
However, the words of theC.P. It is a good idea, both in relation to Tos and in relation to Rambam. In Tos it is clear that they understood the opposite of his words. The Tos argued that doing so is usury, and to that they answered that it is a question of asking. If so, it is clear that in their opinion, if it were not for the problem of usury, the law in the case of a tenant would be exactly the same as in the case of a tenant, and therefore it is clear that they believed that a tenant is not a buyer (the Tos follows their view in all the Shas, as we saw above, that a rental is not a buyer).
Even in the Maimonides' method, the words of theC.P. Difficult to reconcile. A study of the language of Maimonides, both in the Terumot and in thePIAMS The above indicates that he did not raise such an issue in the case of the rabbinate (which is about the beggar). In general, the entire discussion of Tos is about the sifa, which deals with the one who rents a cow, and not with the tenant of a cow. If there is indeed a difference between a tenant and a beggar, why did the early rabbis not also write in the Risha that it deals only with the priest who rented a cow from Israel and not with the beggar?
It seems from the words of theC.P. He understands that those Rishonim taught that the baraita itself distinguishes between a borrower and a tenant: the Risha deals with the tenant and the Sipa (the one who owns a cow) deals with the borrower. And in fact, according to the Rambam, it seems that he did not learn the baraita from Rashi (who understood that Sipa refers to a tenant who took upon himself responsibility for the decrease in the value of the animal). Thus he writes (Halal Terumot Pet. 5:8):
An Israelite who places a cow from a priest as a udder and for the sake of praise among them shall not feed it with a terumah, even though the priest has a share in the praise. But a priest who places a cow from Israel as a udder even though Israel has a share in the praise, since its body belongs to the priest, for he has placed the 7 upon himself, shall feed it with a terumah.
It seems that the Rambam places the sifa in the case of a priest who took the cow for half the salary, that is, in the iska. The priest took the cow from Israel in order to fatten her, and the improvement will be divided between the two. As is known, an iska is a loan and a deposit. Here, there is no blood involved, and therefore it is not a half-loan. Here, apparently, half of the cow is lent to the messenger in order to improve it and half is in his hands as the owner's deposit, in such a way that the profit is divided between the borrower and the depositor, as in the iska. Indeed, from the Rambam's language, it seems that everything is lent to the priest, and only the profit is divided between the two. The Rambam writes in the sifa that in a situation where a priest brings a cow from Israel, the Israelite has a share in the improvement, but the body of the cow belongs to the priest, and therefore he feeds it with a teruma. The reason for this is that this cow is lent to the priest, and the loan is a purchase. This proves that according to the Rambam, the borrower does indeed buy the body of the object. In the opposite situation, where Israel places a sacred cow, for the same reason the body of the cow belongs to Israel (and the profits are divided between them), and therefore it is not fed with a donation.
If so, according to the Rambam, what is the difference between the Risha of the baraita (which was ruled in Halacha 7, ibid.) and the Sifa (which was ruled in Halacha 8, ibid.)? The Risha is a rental, and rental is not a purchase (at least with regard to eating with a donation), and the Sifa is a question, and a question is a purchase. We have found that theC.P.And in fact, according to the Rambam, a question is a purchase, and only a lease is not a purchase. And what they did not establish in the baraita itself is because the baraita itself is divided between the Risha and the Sifa in order to renew this itself: the Risha deals with a rental, and rules that a rental is not a purchase, and the Sifa deals with a question and rules that a question is a purchase.
And what about the Toss? It may be thatC.P. The learned Rabbi of Toss is exactly like the Rambam. Although the rabbis understood, like Rashi, that the Risha deals with the assessment of a tenant, and if it were not for the problem of interest, the rental would be like a loan. However, the Rabbis rejected this understanding due to the difficulty of the laws of interest, and therefore they stated that the Sipa is speaking of the asker, and perhaps their intention in this is the same as the Rambam. If so, even according to the Rabbis, it is possible that the understanding in the Sipa is that the asker is a buyer, and therefore the Sipa of the baraita rules that the priest feeds with a donation. And in this, the words of theC.P. Also in Bethesda (although this name is not necessary, and so on).
Although, in the opinion of the Toss, it is difficult to say so, since we have seen that their approach everywhere is that rental is not purchase, and that they equate a loan with a rental. And in the opinion of the Rambam, we are not sure, for we have seen that he writes that both a loan and rental are purchases, and here theC.P. To say that the Rambam's opinion is that the question of purchase and rental is not. And see below for an explanation according to the Rambam's method on this.
The ruling of the questioner in the Book of Revelation 11:1 and the commentary of the G.M. on the issue of the Sanhedrin 4:1
theC.P. This understanding is based on the issue of the Gm. B.K. 11a regarding the shemin for the asker (and it is the same in the lessons of Rav Lichtenstein there). In the issue there it is explained that there is no shemin for a thief and a robber, meaning that if the object increases in value during its stay with the thief or robber, they must return money equal to the value of a superior object, and their fragments. On the other hand, there is shemin for the injured party (as it is said, "And the dead shall have it"). The Gm. is debating whether there is shemin for the asker?C.P. He explains that the question of whether the borrower's obligation in a loan agreement is an obligation to return the borrowed thing, or whether it is a liability for damages (such as a liability for theft and loss in a loan agreement). If the obligation is to return the thing, then the keeper must return the object, and deduct the depreciation so that he can make up for the missing value in money. But if the obligation is to compensate the owner for the loss of the object from a liability standpoint (or for the theft or plunder), then the obligation is to pay the full price and the remainder remains with the borrower.[26]
According to the law, the borrower is obligated to return the borrowed object and not to pay for the liability of the unsin. Thus, theC.P. Also from the words of the Sanhedrin, which, in the context of the discussion about an object found in the possession of a thief who came underground, writes as follows:
And not her, because she is merciful in her possession – for the matter of Onsin, but for the matter of Makna – for her possession of the eternal, from the hand of God the Exalted.
And Rashi explains about a website:
And not her – The conclusion is that he is a slave, and not a slave - it is not clear why he is a slave, even if on the back of a donkey he owes blood money under his responsibility, or if he owns it like the rest of his property, because he mercifully placed it in his possession and obliged the robbers to pay the fine for the sake of peace, without saying to him: they were raped, they forgot to keep it, they are obligated to swear that if he did not lend a hand to his neighbor's work - he did not lend it even on the back of a dead or broken load, that is, rape - he is obligated, and a robber was made upon it by sending a hand.
But as for the matter of envy, I did not buy it – If they were with him and he came to detain him and said, "I will return the blood," I did not buy it and I will not be proud of it in his eyes, as it is written (Leviticus 5) and he returned the stolen goods, and if they were raped, he would return the blood, and not be angry, he said to him, "They were raped and he will be released." Because the robber did not detract from the one who asked, because all his enjoyment was mercifully preserved in his possession for my peace. If he was raped, all that the Lord had done for us, we would not lose all his enjoyment and we would not be obligated for my peace.
If so, Rashi explains that the ownership of the object by the borrower is intended so that the borrower cannot tell the depositor that the object was stolen. If the object is stolen, it is stolen by him, and the obligation to return it remains, and therefore he is also liable for theft.
theC.P. Explains that from this the Rambam draws his conclusion that the asker bought the object. The obligation to return the object means that the object was purchased by the asker, and at the end of the loan period he has an obligation to return the object to the owner. If the object is raped, the asker is still obligated to pay, not because he is held responsible for rape, since rape is a form of servitude, but because he had an obligation to return the object and he has not yet fulfilled it (for rape is not like a man who has been raped).
We note that in the Tod "There is no shemin" there in the Sugiya the exact opposite is explained. Thos explains that a thief and a usurper do not have shemin because they bought the object at the time of the robbery/theft. Therefore, they are immediately obligated to pay blood money, and do not put the object in. On the other hand, someone who did not buy the object is not obligated until the object has appreciated in value, and therefore he only returns the difference. And in the question in the Ha"a they thought that it was not shemin (like a thief and a usurper), and explains that Thos by saying that the asker bought the object since he owed onsin. And the halakha means from the words of Thos that since there is no shemin for the asker, it is clear that the asker did not buy the object.
It is certainly possible that Thos believes that according to the law, a borrower does not buy, like a renter, and we have already noted above that the words of theC.P. Difficult in the opinion of the Toss. But the Rambam, who believes that a question is a purchase even in the matter of a donation (which in this matter also according to the Rambam is a rental, not a purchase), may have studied as an explanation theC.P. On the issue of gender, the questioner. As stated, theC.P. He brings up another dispute on this matter, in the issue of the Book of Numbers 12:1, where two languages appear, saying that their father left them a borrowed cow, and they also disagree on this point itself, and so on.
This is also explained byC.P. The Jerusalemite Rabbinic
Returning to Rashi's words on the issue of עז
The distinction between a tenant and a borrower brings us back to Rashi's aforementioned statement on the issue of 15:15. As we have seen here, the obligation in the onsin is not the cause of ownership, but rather it constitutes an indication that the borrower has ownership of the borrowed object. The obligation in the onsin is not a punitive consequence of negligence in safeguarding, but rather the fulfillment of the obligation to return the object to its owner. Since the object is purchased for the borrower, everything that happens to the object is the responsibility of the borrower. If it is damaged, stolen, or violated, then the borrower's object itself is damaged, stolen, or violated, and therefore when the time for return arrives, the borrower is obligated to return the object or its blood to the depositor (if the object is violated, he must return blood in its place).
This is perhaps how one can understand the mechanism that obligates a beggar to return the object by force, even though throughout the Torah a person is exempt from return by force. Since this is not a question of punishment or penal liability, but rather of the obligation to return an object to its owner, there is no exemption from return by force here (as is also made clear in the Sanhedrin issue 6:1-11, above, and in Rashi there). Even if the beggar did not return the object by force, return by force is not the same as a man who has taken it, and therefore he must return the money.[27]
It should be noted that according to theC.P. The explanation is probably not this, since a robber is also liable for onsin, and yet according to the law, a robber is not a shemim, unlike a beggar. If so, according to theC.P. In the case of a robber, the obligation is due to responsibility, and yet he is obligated to the onsin.[28]
In any case, in Rashi's opinion on the issue of אז, it seems that this is what was intended, that the obligation in the onsin is an indication that the questioner bought (and this is also seen from the language of Rashi Sanhedrin עברית עברים עברים,). As we have noted, according to this, it seems that the conclusion of the rabbinical court is that the rent was not purchased, but the question was. And the evidence that the rabbinical court cites there from the baraita Gabi Cohen that the rent of a cow from Israel is only with respect to the rent and not with respect to the question (as the rabbinical court taught).C.P. (In the above-mentioned "Yevamot Su" text).
From this it appears that Rashi also believes, like the Toss faction, that rental is not a purchase, but that, in his opinion, a question is a purchase. And this is also what is meant by the above-mentioned Yerushalmi Shavuot Rafa'ach. Indeed, this is a ts'a'a that simplifies the gm' there, since the gm' connects a question with rental. And below we will explain otherwise according to Rashi's method.
Returning to the method of Maimonides and his followers
On the other hand, we saw above that the Rambam believes that both rent and demand are acquired, and there is a special explanation for the conclusion of the Sugya in the book of Zechariah that demand and rent are not acquired. If so, now we need to explain why theC.P. He writes that according to Maimonides, this is a question of purchase and rental, right?
Although we have seen that the Rambam apparently learned aboutNemoi That the tenant and the beggar have physical ownership of the fruits, and the body itself remains the owner's. Only within this framework can we try to understand the difference between a beggar and a tenant according to Maimonides. We will do this in the next chapter, where we will discuss the essence of the differences between a tenant and a beggar.
Side note: The opposite possibility
We found it at the husband's. The decoration (See MB C. Thermat Skid, and in the book Fathi Hoshen, Rental, PA Note 18) which raises a completely opposite possibility from our words here: that indeed rental is a purchase and not a question. Dahanah regarding the Lulav Shaul Ki'l, which does not appear in the words "to you". From this it is understood that the question is not a purchase. However, the author ofDecoration It is sufficient if the lulav is rented from me, and it fulfills its obligation. This means that he has a side that specifically asks for a purchase and not a rental.
And indeed, why is a lulav that is rented not considered 'for you', even though it is a purchase? And some recent scholars have written that a lulav that is rented is not considered 'for you', without detracting from a lulav, even though it is a purchase. And so on.MB Name in the name time, and see Guests life C. Theramet in the glosses of the Rasham, there, named after some recent ones).
D. Renter and Borrower: Two Types of Time Ownership
Rashi's division in the book of Proverbs 1:2
The Mishnah in "M. P. E. B" states: "All craftsmen are reward-observants." And in the Gemara there:
Why do we not stipulate, as Rabbi Meir says, how does a tenant pay? Rabbi Meir says: as a free tenant, Rabbi Yehuda says: as a tenant for a fee! – Even my mother, Rabbi Meir, in that enjoyment, I will sell all my property and store it for her – be a tenant for a fee. – No, my tenant, in that enjoyment, I will sell all my property and store it for her – be a tenant for a fee! Rather, even my mother, Rabbi Meir: in that enjoyment, I will give him a gift – be a tenant for a fee. My tenant, who is not talking about giving him a gift? – Rather, even my mother, Rabbi Meir: in that enjoyment, I will give him a gift, I will not give him a gift and I will not give him a gift – be a tenant for a fee. You asked your mother, as a substitute for Rabba bar Avoah, and I said: how does a tenant pay? Rabbi Meir says: As a hired guard, Rabbi Yehuda says: As a gratuitous guard.
The Gemara explains that the Mishnah follows Rabbi Yehuda, and at the beginning of its words it assumes that a craftsman is like a tenant. It then explains that a craftsman is different from a tenant, and therefore, even according to those who believe that a tenant is a shekel, a craftsman is a shekel because of the pleasure that agrarianism brings him. And according to Rabba bar Avo, the initial assumption that a craftsman is like a tenant remains.
And in the Rashi, where Rabbi Yehuda Omer wrote, this is his language:
Rabbi Yehuda says that as a hired servant – Since it is for his own pleasure, even though he gives the reward for his action – he is a reward keeper, lest he should not give the reward – he should ask and be a debtor in the sense of giving him a loan – he should not ask, and he should be a reward keeper.
Rabbi Meir says, "As a free guard, Just as a craftsman stores his work, and does not take a wage for its preservation, and a craftsman pays his wages to a hired worker, who was with him for the enjoyment of the wages of his craft, but he does not take a wage for preservation, but a wage for action.
Rashi's words require explanation. Apparently, his intention is to say that we count the deductions: the one who takes the object from him for his own pleasure is considered a borrower. However, the tenant pays the rent, and therefore the onsin obligation is deducted from him, and he receives the laws of a shari'ah. It is not clear what the point of this 'accounting' is? Why does counting the deductions determine the laws of shari'ah, and why is the result precisely the laws of the Shas?
And more difficult in the book Eyes of Wisdom There, according to Rashi's method, you can also ask Rabbi Yehuda, why is a craftsman considered a "shach"? After all, a craftsman is not like a hireling, because a hireling, if he does not pay, becomes a beggar, but a craftsman, even if he does not do his work, is a keeper who receives a wage, and woe to him. If so, since he does work for a wage, he should only be considered a "shach" (according to Rashi, who counts deductions)?
Explanation of Rashi's words
And it seems to say in the explanation of Rashi's method that he believes that a tenant is not a retainer of rent but a borrower with an exemption from onsin. According to this, it is only a coincidence that the laws of a tenant are like those of a tenant, since a borrower without an onsin obligation is halachically similar to that of a tenant. The reason why he is like a borrower is the fact that he also has permission to use, and this permission places the object in his possession. It is true that in the case of a tenant, since he pays, he is exempt from onsin.
And the explanation of the matter is according to what we saw above in Sha'ar Rashi, that the questioner is obligated to pay onsin because the Torah placed the object in his possession. Above we explained that the intention is that the Torah gave him the object so that he would be obligated to pay onsin (as is customary to learn regarding a usurper). We already mentioned there that there are two possibilities for understanding the relationship between ownership and the obligation to pay onsin, and now we see that the second possibility is truly the correct one: since he has permission to use it, the object is his,[29] Therefore, he is also obligated in the onsin. The obligation in the onsin is an indication of the existence of ownership and not its reason. The reason is the right of use.
If ownership were given only so that an onsin obligation would arise, then the tenant has no reason to think of ownership (since he is exempt from rape). However, according to those who believe that renting is a purchase, the tenant also has ownership since he has the right of use (like the questioner). If so, ownership can exist even when there is no onsin obligation. The opposite is also true: an onsin obligation exists only when there is ownership (this is also what we saw with the robber. And perhaps the rape obligation is the reason for ownership. See above in the discussion on the Sanhedrin issue, 6a).
However, here a problem arises: According to what we explained above, the obligation of onsin is a result of ownership. Since the borrower is obligated to return the object that belongs to him to the owner at the end of the time, then if the object is stolen, he is not guilty, but the theft is not the same as the one who stole. The borrower has not yet fulfilled his obligation to return the object, and therefore he must pay its price. If so, then the tenant also bought the object for his own use, and therefore he also has an obligation to return the object to the lessor. If so, we would also have to hold him liable for onsin. And even if it were not for all of our words, a question for those systems that believe that renting is a purchase: Why is the tenant not obligated to onsin?
We are forced to conclude that a renter is different from a borrower. The borrower received the object, but at the end of the period he must return it to the lender, and hence there is a liability in the onsin. This can be understood in two ways: 1. A loan is like a gift in order to return it.[30] 2. The loan is a worldly gift, but at the end of the period there is an obligation to return (which is not a condition for the loan itself to be valid). According to the law, a gift with the intention of returning is a gift, and certainly a gift at the end of which there is an obligation to return, which is not a condition for the gift, is also a gift. Therefore, the borrower is the owner of the object (a purchase loan), and in that case he is obligated to pay the loan.[31]
On the other hand, the lessee did not receive the object as a gift in order to return it, but as a gift for a period of time. At the end of the period, ownership expires and the object returns to its original owner anyway. At the end of the period, the object automatically becomes the property of its original owner again, and therefore if the object is seized, it is seized by the lessor, and the lessee is exempt.[32] Rabbi Sha'ak in S. Ayelet Hashachar B.M. Et A.A., 25:11, "And one should look into it" (regarding the tenant's use of the sabbath).
Now, let us consider carefully what the rabbinical court 15:11 linked the ownership of a question to the lease and vice versa. The fact that the questioner is obligated to pay the onsin is an indication that he has ownership, and not the reason for ownership. The reason for ownership is the right of use. Therefore, if the questioner has ownership, the tenant also has ownership, since both have the right of use.[33]
Now we can understand Rashi's words above. The tenant has permission to use an object like a beggar, in any case the object is bought for him (at least for its fruits). Although there is no obligation of onsin here, since he pays for the use, there is ownership. Regarding the craftsman, Rashi wrote that the object is with him for his enjoyment (in order to make a profit from it), and therefore the rent is for the beggar and the tenant, and he is like the owner of the object. Although in terms of the obligation of onsin, he is like a tenant and not like a beggar, since he works on the object and improves it for the owner. This is not a calculation of deductions but a substantive discussion: the permission of use determines that there is ownership. The obligation of onsin is the result of the question of whether all (!) of the enjoyment is his or not. Therefore, there is no place to liken it to a shalach according to Rabbi Yehuda, as he has argued.Eyes of Wisdom The above.[34]
And according to the law that a tenant is a tenant, in reality the tenant may not have ownership of the object, Dayhu Pleg on this basis that the right of use gives ownership. It turns out that according to this method there are two different transactions between the landlord and the tenant: use in exchange for rent, and a deposit contract with free storage. And in this case, the question is Eyes of Wisdom.
Now we can also understand Rashi's method on the issue of AZ in a different way. Above we saw that he explains that the one who asks for a loan is obligated in an onsin, and this means that the conclusion that they have proven from the priest that the hire of an animal whose right of use does not constitute property, still the one who asks for a loan, since in his case there is a different reason, beyond the right of use, for him to be obligated in an onsin. If so, the law of eating from the donation of an animal hired to the priest is only in the rental and not in the question (as the Rabbis taught).C.P. (In the above-mentioned Toss of Yevamot). We noted that this is an imperative in the language of the subject that links question and rent to each other.
However, according to our discussion here, there is no need to go to this. The onsin obligation of a tenant is only an indication of the existence of ownership, but this also exists in the tenant. The reason for ownership is the right of use (which also exists in the tenant) and not the onsin obligation (which only exists in the tenant). Therefore, there is no need to distinguish between a tenant and a tenant with regard to ownership. As we have seen, there is a difference between a tenant and a tenant with regard to the nature of this ownership (whether there is a duty of restitution or does ownership automatically expire).
If so, Rashi follows the Maimonides' method that rental and loan are purchase. The charge on the onsin is an indication of the borrower's ownership, and in any case there is evidence of the tenant's ownership. Although there is a difference between them regarding the expiration of ownership at the end of the time: in the case of a borrower, this requires return to the lender, and in the case of a tenant, the landlord's ownership automatically expires. The NEPAM is for the charge on the onsin.
Maimonides' method
Now we can also understand the Rambam's method. We saw that the Rambam believes that both rent and loan are purchases, at least of the property of a body for fruits, and therefore there is fraud in them.C.P. He divided the matter of eating with a donation between a rental (which is not purchased) and a loan (which is purchased), and we said that the division must be within the framework established by the Rambam himself, that both rental and loan are purchased.
According to our words, we can understand Maimonides as saying: "A question is a purchase for all time, and there is only an obligation to return it." Such a purchase (the purchase of fruits for all time)[35] It is very similar to the ownership of the body, and therefore it allows the priest to feed his borrowed animal with a donation. In contrast, a lease is a property for a time, and it is a property of fruits that does not allow the priest who hired an animal to feed it with a donation.
We find that, in general, according to the Rambam, both rental and asking are purchases (for example, in the case of fraud). Regarding the eating of an animal in a donation, we saw that the Rambam apparently distinguishes between rental and asking, and states that asking is a purchase, while rental is not. We explained this by the distinction that Rashi made between the ownership of a tenant and an asking person: Although both have purchased, one is worldly property and the other is temporary property. As for giving an animal to a Gentile, the Rambam prohibits both rental and asking (see Hala Shabbos, 22:53), and it appears from this that the asking person also does not have complete ownership of the object, and something remains for the owner, and this is sufficient for the Gentile to be considered to be doing work on the Jew's animal.[36]
General note regarding free and paid buyers: 'Gift to return' and 'Sale for a time'
We usually find in the Shas 'gift in order to return' and 'sale for time'. We do not find 'sale in order to return' and 'gift for time'.[37]
And it is possible that whenever the giving is free and not in money, then it is a giving to the world in order to return and not a giving for time. And when the giving is in money, then it is a giving for time and not a giving to the world in order to return. Therefore, when we deal with 'in order to return' in the stima, we mean a gift, and when we deal with 'for time' in the stima, we mean a sale.
This can be explained in several ways. For example (this explanation was suggested to me many years ago by my friend Rabbi Chaim Stoler), in a sale for money, the duration of ownership is determined. For the time that follows, he did not pay, and in any case he is not the owner for that time. Therefore, in a sale for a time, when the time passes, ownership expires. However, in a gift, there is nothing to limit the duration of ownership, since no money was paid. Therefore, the giving is eternal. It is true that the giver conditions the giving by the fact that the recipient will return the object to him at the end of a certain time. Therefore, what limits the time is the condition that determines the obligation of restitution, not the money. Fulfillment of the condition must be done in the form of an act of restitution, since the object belongs to the recipient forever, and without restitution it does not return to the owner. In contrast, in a sale for a time, ownership expires at the end of the time, and the object returns to its owner anyway, and therefore there is no obligation of restitution.[38]
And according to this, it is well understood why in a lease there is no obligation to return at the end of the period, while in a question there is. A lease is made in exchange for money, and the money determines the period. At the end of the period, ownership expires and the object automatically returns to the lessor. In contrast, in a question there is nothing to determine the period, and therefore ownership is universal, but there is an obligation to return (as a condition or as a mere obligation, see above on this).[39]
And indeed, Maimonides, in the first chapter of the Book of the Law of God, likened a lease to a sale and a loan to a gift, and he wrote thus:
If someone borrows a tool from his friend or an animal, the lender returns it whenever he wishes. If he borrows it for a fixed period, since he has borrowed it and earned it, the owner cannot return it from under his hand until the end of the loan period. Even if the borrower dies, the heirs use the loan until the end of time. The law is that the taker buys the body as a permanent possession with the money he gave, and the receiver of a gift buys the body as a permanent possession and gives nothing. The hirer buys the body for its fruits until a fixed period with the money he gave, and the borrower buys the body for its fruits until a fixed period and gives nothing. Just as the giver is like a seller who cannot return it forever, so is the lender like a lessor who cannot return it within time.
Our words have additional implications, and we have only come to draw the attention of those who are interested.
We will now move on to explain the four types of guards in light of what we have said so far.
E. Solution to the problem: Tenant as a borrower exempt from onsin
introduction
In this chapter, we will explain why a tenant is a unique guardian. We will examine the halachic relationship between his laws and those of a beggar, and argue that the similarity to a shash is merely coincidental. Our main argument is that a tenant is not a shash but a beggar who is exempt from unsin. In the following chapters, we will see further halachic implications of this concept.
The source of the questioner's positive
We explained that the borrower is liable for the rape because he bought the object. His liability for the rape is not part of his custody rights, but rather a fulfillment of the obligation to return the object to its original owner. The borrower must return the object to its owner, and any event that prevents him from doing so is his own responsibility. Therefore, he must return blood in place of the object.
However, if this is the case, then his charges for theft and loss, and perhaps even for crime, can also be derived from his ownership of the object. If the object was stolen or lost, then the borrower did not return it to its owner, and therefore he owes the owner the price of the object in fulfillment of the obligation to return it. There is no reason to distinguish between these charges and the charge for rape.[40] The conclusion is that all of the borrower's storage charges are derivatives of the rights of use and the obligation to return, and not the results of a storage contract between him and the lender.
Is the questioner some kind of guardian?
Above we defined that a contract of question has two components: the right to use, and the obligation to keep. Now we come to a different conclusion: in the question, the duties of keeping are a consequence of the right of use. The right of use is based on the ownership that the questioner has in the object, and ownership constitutes the basis for all the duties of the questioner, since upon the termination of the ownership, he is obliged to return the object to its owner. This duty creates the responsibility of the keeper, up to and including the obligation of onsin.
And in fact, the Grifaf in paragraphs 23-24-25 goes to great lengths to show that, at least according to the method of the Rassa and Torah, a beggar is not considered a keeper at all. He bought the object, and all his debts constitute an expression of the obligation to return it to the owner. In this way, he explains the fact that according to these Rishonim, the beggar is not under the keeper's oath at all. In all cases, he must pay, and therefore the issue of the oath does not arise at all. His only exemption is in the case where the animal died as a result of labor, and then it seems that he died under the oath, but the Grifaf explains that according to these methods, it should be said that this is the oath of the rabbinate (from the Rabbis) and not the oath of the keeper.
Although the Sages explain that the hirer is indeed a type of guardian, according to these methods his obligations stem from a different source than the obligations of ordinary guardians. There is also a difference in the laws themselves, since he is also liable for rape, unlike all other guardians, so it is clear why the halakha treats the hirer as a separate type of guardian. Although a hirer is not unique in his laws, since in terms of the laws of guardianship he is identical to the sheriff, and in terms of ownership he is similar to the hirer (to a certain extent). Therefore, it seems that our question regarding him remains.
Tenant as a different type of keeper
However, the direction we have seen so far also opens the door for us to understand why the tenant is a different type of custodian. First, the very fact that his custodianship obligations are like those of a landlord, and his ownership is similar to that of a tenant, places him in a different position from all others. However, this distinction does not seem to concern the laws of custodianship, from which he is identical to the landlord.
We explained that in the case of the borrower, there are two aspects of the contract. It is a contract that grants rights of use and an obligation to return, and from these are derived the obligations to 'keep', or in effect, to return the object to its owner. What about the tenant? It is possible that in his case, the maintenance charges are also derived from the rights of use, and therefore he is a different type of custodian from the lessor. It is true that he is also exempt from coercion, and therefore he is also different from the borrower. If this is truly the status of the tenant, then our puzzlement is why he is considered a fourth type, which is obvious.
To clarify our point, we will take as an example the exemption of a dead animal due to labor. It is clear that this exemption exists for the beggar and the tenant, but not for the beggar and the tenant (since if they use the animal they are considered robbers, since they have taken the deposit). On the face of it, this is a clear difference between a tenant and a tenant, and here is an answer to our question as to why the tenant is a separate class from a tenant. However, a superficial observation shows that this difference is irrelevant, since it does not belong to the laws of maintenance but to the laws of ownership. After all, in the case of a dead animal due to labor, the beggar is also exempt, and the reason for this (see B.M. 33b) is that using the animal is the purpose of the contract of loan: "And why should I ask for it?" If so, the exemption when the animal dies due to labor is a product of the laws of ownership (= the right of use) and not of the laws of maintenance. If so, it is likely that the tenant also has such an exemption, since from the point of view of the laws of ownership he is similar to the beggar. However, this difference is seemingly not useful to us, since we are looking for a difference between a tenant and a landlord, which belongs to the laws of custody and not to the laws of ownership.
But in light of what we have said here, it appears that in the case of the tenant, all maintenance charges are derivatives of the ownership contract. Therefore, if in the case of the tenant, the maintenance laws are also part of the ownership laws, then the exemption in the case of death due to labor also constitutes a clear difference between it and the "Shs". This is a definitely relevant difference, since like all other maintenance charges of the tenant and the tenant, it is derived from ownership. It is not part of the rights of use, but is another duty of maintenance that is derived from the right of use, like all other duties of maintenance.
Here we offer an answer to the question of why there are four types of guards: The tenant is a special type of guard, because he is similar to the beggar in that his guarding obligations derive from his ownership and not from a guarding contract (like a "Sh" and "Sh"); therefore, he is also exempt from death due to labor, and thus differs from a "Sh". However, he is also different from a beggar because, although his obligations derive from ownership, he is exempt from rape, unlike a beggar.
Why is a tenant exempt from rape?
The question that now arises is how is it possible for a type of liability to be derived from ownership, and yet he has an exemption from rape? Ostensibly, he has a duty to return, and rape is not like a man who has committed rape. He did not fulfill the duty to return.
However, in light of what we said in the previous chapter, this problem does not arise at all. We saw that ownership of the tenant automatically expires at the end of the time. He has no obligation to return the animal, since the animal automatically returns to the original owner. The borrower is of course obliged not to commit a crime with the animal, that is, to allow it to return to its owners, but he does not have to give it to them. If so, this is the basis of the tenant's exemption from rape. If rape occurs, the tenant is exempt, since he is not responsible to such an extent for returning the animal to its owners. It is true that the Civil Code, and certainly a crime, do oblige him, since he is under an obligation to ensure that the animal returns (physically, not in terms of ownership) safely to its owners.[41]
This can perhaps be explained more simply. Contrary to what we suggested above, the tenant has no obligation to return at all. This is a kind of double contract (rights and maintenance charges), but in fact all of the tenant's maintenance charges, which are literally like a rent (and not asking for an exemption from rape), are imposed on him as part of the ownership contract (and not as we suggested above that they constitute the exercise of some obligation to return). They are part of the consideration for the right of use he received. According to this, the tenant has no obligation to return at all, and therefore it is clear why the tenant is exempt from rape.
An example from the Shach method regarding a mortgage
We have brought up above the disagreement of the Rishonim regarding the security charges of a lender who holds a mortgage. Rashi and the B'A'am believe that he is also liable for rape. The Ramban and Thos believe that he is only liable for rape. The Ramban goes into detail in attacking the opinion of the partisans, and he explains that the borrower has all his own enjoyment and therefore is liable for rape. But the keeper of a mortgage does not have all his own enjoyment, and how can it be said that he is liable for rape?
The Shach Chom Si' Ab Skt rejects the Ramban's question and says that the questioner's obligations are due to the laws of guardians, and therefore his obligation to rape is derived from the fact that he has all the enjoyment. But by guarding the pledge, he bought it from the law of Dr. Yitzhak, and therefore a liability to rape is created anyway, even if not all of his enjoyment.
The Ramban here follows his theory that the beggar did not buy, as is the theory of the Toss. But according to the Rambam and his supporters, that the beggar and the tenant bought the object, we can raise a similar argument. In order for the beggar to buy the object, the consideration is that all the enjoyment is his. The meaning of this argument is that the beggar bought the object (and for some of the systems: that is why the Torah places the object in his possession so that he is obligated to commit rape). But in a mortgage, there is ownership by the very contract between the lender and the borrower, and the rape obligations arise from the ownership itself anyway. Therefore, it is not required that all the enjoyment be his.
The Ramban apparently understands that the borrower buys in order to commit to a foreclosure, and the pawnbroker buys regardless of this. And according to the method of the Rambam and his ilk, we have explained here that the borrower also buys the object because of his contract with the lender and not in order to commit to a foreclosure. Therefore, his foreclosure is like that of the pawnbroker. The expression "all his enjoyment" does not mean a condition for ownership, but rather expresses ownership itself: all his enjoyment because he is the owner. This is indeed what Rabbi Lichtenstein also supports there in his explanation of the Rashba's method above.
Rashi's Method on the Issue of עז
Whether we understand it this way or another, Rashi's explanation now fits well with the issue of AZ, which brings the obligation of rape as an indication that the questioner has bought. And we have a hard time why the G.M. there links the question of the ownership of the questioner to the ownership of the tenant, and after all, the tenant is not liable for rape? And according to our words here, it will fit with the shop, since all the obligations of the questioner and the tenant are a product of the ownerships. Although the evidence is unequivocal with the questioner, since the obligation of onsin cannot stem from another source. But after we understood this with regard to the questioner, we can also apply it with regard to the tenant. With him, too, the obligations stem from ownership, even though he is exempt from rape, as instructed. If so, Rashi's words there apply to both the questioner and the tenant, in full accordance with the G.M. itself. The phrase "all his enjoyment" to the questioner expresses the very fact of ownership, and not a condition for a mere obligation of rape. Therefore, even a tenant who does not enjoy all of his enjoyment has ownership. Although he is not obligated to rape, as explained above.
Tenant laws in the Torah are part of Parashah Shoal
We will conclude by saying that there is indeed a source in the Torah for the law of a tenant (as the aforementioned Grifap brought, and as perhaps implied by the words of the Maimonides, Resh HaL Shekirot, which we cited at the beginning of the article. And see the reservation we raised above from his words in Pa'a Shekirot 53), and it is the verse "And if he is a tenant and comes with his wages." This verse is found in the parsha of the asker, and it certainly implies that the law of the tenant is some kind of limitation on the law of the asker. That is, a tenant is a borrower who is exempt from onsin, and not a shash.
According to this, the similarity to the laws of Shas is an accidental result of the exemption from usurpation, and not the result of a substantial similarity to Shas. If so, a tenant is a fourth type of guardian: a borrower, who, due to the fact that he pays for his use of the leased object, is freed from usurpation. This also emerges from the Torah's explanation that placed the tenant in Parashat Shoal.
And this is how Rashi writes about this verse (Exodus 22:14):
If he is an employee – If the ox is not borrowed but hired, it comes to the hirer for its hire and not by asking, and there is no benefit to him, for we will use it through its hire, and the hirer has no right to commit to the onsin. He did not explain what his ruling is, whether as a free keeper or as a hired keeper, therefore the Sages of Israel disagreed on this, how does a hirer pay, Rabbi Meir says as a free keeper. Rabbi Yochanan says as a hired keeper:
If so, Rashi explains here, similar to the other sources we cited in Rashi on the Shas, that a hirer is a borrower with an exemption from rape. It is written in Parashat Shoal, since it belongs to this Parashat. And the innovation regarding him is his exemption from rape. Shas 2For calls The above-mentioned one wrote similarly, and even brought further support for this from several sources in Rashi (see B.M. 5:2, 2nd ed. 'And Rabbi Yehuda' and ed. 'Rabbi Meir', and also ibid. 5:1, 2nd ed. 'The Borrower'), eschatologia Hivit.[42]
As for the other wage keepers who are not due to a contract, they are simply similar to a shash and not to a borrower, and therefore there is no point in defining them as separate types. A loss keeper is an ordinary keeper, except that his wage is given to him only indirectly (according to Rabbi Yosef, who attributes this to an exemption from tzedakah: 'a penny of charity from Dr. Yosef'), or the Torah itself imposes a shash charge on him (according to Rabbi), and in any case the keeper charges are not due to ownership. From the point of view of the law of keepership, he is an ordinary shash (although there is of course an innovation here), and certainly not a different type of keeper. Regarding a pawnbroker and a handyman, things are a little more complicated, and so on.[43]
The Jerusalem Method and the Rambam
Rabbi Lichtenstein in his aforementioned lessons in P"B (pp. 7-26) states that in Yerushalmi it is explained as not being a Karshi. The Yerushalmi Shavuot P"H 51 writes:
You will find it saying – there are three cases, the bottom one on the questioner, the middle one on the subject of wages and the tenant, and the top one on the free guard…
It appears from the words of the Yerushalmi that the Shas section also deals with the tenant.
Rabbi Lichtenstein continues and says that even the Rambam means that he did not learn as Rashi. Rashi learned the verse "If a hired man comes with his hire" about a hired man, that is, about the borrower when he comes with money. However, the Rambam means that he learned this verse as dealing with the owner and not the keeper, for this is how he writes (Shikhirot Pa"a 53):
The one who deposits with his friend, whether for free or for a fee, or who lends or hires – if the keeper borrows the owner's thing or their fee, then the keeper is exempt from anything… as it is said, “If its owner is with it, he shall not pay. If it is a hired hand, he shall come with his fee”…
It should be noted that in any case, it is not necessary to understand from this that according to the Rambam, a tenant is not a type of beggar. What can be concluded from this is that according to the Rambam, it is not necessary to hold the position that a tenant is a beggar who is exempt from rape, but there is also no evidence that he does not believe so.[44]
Consequences: Asker who receives pleasure
theposition In the mitzvah of Net Saktu (and its origin inKZVAH Si' Shem Rak'ka) begins with a sentence that tells the Hadiya that he who rents is asking that he be exempt from unsin, and the late:
And here is the tenant exempt from rape, even though he uses it, and the beggar is liable for rape. The reason is that the beggar is liable for all his enjoyment of rape, but the tenant does not have any enjoyment of rent due to the lessor, is exempt from rape and is only a wage earner.
husband KZVAH There he adds and writes that if the tenant gives less than the rent to the landlord, even a shilling does not become a rent for less than the rent, he becomes a tenant. And the reason for this is that in a question in which there is benefit to the lender, and even less than the rent, the entire benefit of the borrower is not the borrower, and therefore he is a tenant. The narrator who is a tenant is not a renter, but rather asks in a way that there is benefit to the lender, and therefore 'asking' is exempt from coercion. And this is also the meaning of the Mish"i of the Mish"m, whose words were quoted above. Although theposition He is satisfied with this, as the conclusion of his words.
Even when the lender receives a non-monetary benefit, such as the benefit of a mitzvah, some poskim wrote that he is not a borrower but a renter (see Responsa Ha-Ran 6:19, cited above).Shch (H.M. Si. Ob. Skt.).[45] From their words it is also proven that the renter is the one asking for an exemption from rape and not a ss.
In the next chapter, we will see that these words arise from the simplicity of the issue we opened with.
First disagreement on this matter
Rabbi Lichtenstein in the book of Hebrews (p. 28 and following) states that there is disagreement among the Rishonim on the question of whether a tenant is a real tenant or whether he is asking for an exemption from forced labor. He attributes this to the basis of the tenant's obligation. In the Tod "Nima" in the book of Hebrews, the book of Hebrews explains that the tenant is obligated as a tenant because, like a tenant, he receives a benefit for keeping it (even though he pays for it, and so on).[46] Thos, of course, follows his theory, as we have seen, that the lessee does not have ownership of the object (he will probably also learn from the questioner that it is a custody contract, but a lessor is different from a lessee).
On the other hand, the Ra'abad (inShtamk The name of the Lord (Lima Matinitain) explains why a craftsman is like a tenant, and says this:
And a craftsman is like a hired hand, who does work on the body of the object as a hired hand.
It seems from his words that the basis of the obligation of the craftsman and the hirer is not because they receive any wages or benefits, but rather from the very fact that they perform work on the body of the object. It is quite clear that the basis of the obligation is as a borrower, and there is only an exemption in the event of rape, as we explained above.[47]
F. "Four watchmen and their three laws"
The issue of the Book of Numbers 31 and the Shavuot 41
Regarding the mishna we cited at the beginning of our discussion, there are four watchers. The Gemara cites the disagreement between Rabbi Yehuda and Rabbi Meir as follows:
Where did he get four guards? Rav Nachman said, Rabba bar Avoah said: Rabbi Meir is it. Rabba said to him: Who gave him four guards? – He said to him: This is what I have come to you: Where did he get a hireling as a wage-bearer – Rabbi Meir is it, and is it Rabbi Meir who asked him, “How does a hireling pay?” Rabbi Meir says: As a gratuitous guard, Rabbi Yehuda says: As a hired guard. Rabba bar Avoah is it. – Where is it, four? Three are not enough! – Rav Nachman bar Yitzchak said: Four guards and their laws are three.
The Gemara's question is puzzling: Why does the Gemara use the word "Ei Hi" in its difficulty? After all, seemingly all opinions have only three guards, and not just the opinion that a hired worker is a hired worker. This difficulty is difficult in any way we put the Risha or the Sipha. Furthermore, at the beginning of the Gemara the assumption is the opposite: both the Rana and the Rava make it obvious that all opinions have four guards, and no one disputes this. If so, how does the Gemara later make it difficult that there are three? Although the difficulty is correct and true, it is not clear why at the beginning of the Gemara they simply assumed the exact opposite.
And indeed, Rashi, in the Shavuot issue, wrote that they do not pronounce the words 'ei hi' (and in the Shavuot issue as it stands before us, this phrase does not appear). And in the Tod'ah, 'ei hi' in the BM issue, they did pronounce 'ei hi', but they wrote that it was not necessarily (and they gave examples, as they say). If so, Rashi and Tos' both agree that there are only three types of guards, and this for all conditional opinions. Now the Risha's question remains: Why was it clear in Risha that all opinions have four guards without disagreement? Ostensibly, we should have assumed exactly the opposite: all opinions have only three types. Beyond that, Tos's ignoring the meaning of the phrase 'ei hi' that appears in the BM issue is also a certain constraint.
The method of the Rosh and Maharam
Indeed, we find in Toss that the Rosh, on the issue of Shavuot, cited the Maharam of Rothenburg as saying, "Ei Hi," and even wrote that the Gemara used "Ei Hi," and this is his language:
According to Rabbi Meir, did you say in Shlomo Dhak that there are four keepers, in three of them they are the ones who
He explains that in the Ha-Hayah they thought that the Mishnah's Risha goes as follows, and then there are really four guards, and that is why the Rabbis and Rabbis disagreed regarding a tenant. It seems from his words that there are four guards not only according to the opinion of the author of the Mishnah, who is satisfied with the law of a tenant, but also according to the Rabbis and Rabbis themselves, since the Gemara uses the phrase "Who has given you four guards?" In other words, the Rabbis and Rabbis both agree that a tenant is a different guard, and therefore they disagree about who to liken him to. At this point, the Gemara understood that what the Mishna did in concluding that a tenant is a subject of a wage is only because that is how the law was, but the Mishnah went as follows, and at this point it is indeed clear that there are four different types of guards because a tenant is a different type according to all opinions.
Maharam explains that according to the conclusion of the Gamma, the Sipha is precisely the Krama, and therefore it is clear that the Risha also follows the same path and not as the Krama. Apparently this is because the language of the Rishna at the beginning is 'man tana arba'e shomirim', meaning who changed the Mishnah of 'arba'e shomirim', which means that he is talking about the entire Mishnah, and not just the Sipha. Therefore, he understands the Rishna's excuse that he did not intend to say that he was speaking only about the Sipha, but rather that this is an explanation of what the Rishonim said. The Sipha indicates that the Risha, that everything is Krama.
Now the question arises as to why the Mishnah writes that there are four watchers, and therefore the Gemara uses the language of "is it not so?" in its question. In other words, after we understood that the Mishnah is a rabbinical text, it was difficult for us to understand why there are four watchers, and not three. To this they answered that indeed there are four watchers, but their laws are three.
Therefore, although the Maharam's words seem at first glance a little cramped in the Gemara's plain language, it seems that they offer the simplest possible plain language. According to his method, there is nothing difficult in the course of the Gemara, and the words of R.N. are even more accurate than if we read them according to the method of Rashi and Tos.
The conclusion of the Gemara according to the Maharam and the Rosh: According to Rabbi Yehuda, there are only three types of guards.
Although it is somewhat questionable according to the Maharam, why in the Mishnah it was clear to the rabbi that both the Ram and the Ri have four guards (and there was only a debate between them about the laws of the tenant), while at the end they make it difficult with the phrase "is it not so?" In other words, after we have reached the conclusion that the Mishnah is the Ram, then the difficulty arises as to why there are four guards, while in the beginning we assumed that the Ram himself also has four guards.
Perhaps you will say that Maharam's intention is that only the author of the Mishnah believes that there are four watchmen, because he is looking from an angle outside the dispute between Ram and Ri (meaning that there is another type of watchman that is a different type in that its laws are in dispute), but he does not mean to say that Ram and Ri themselves also agree that there are four watchmen. This is not the case, as we have already explained that Rava's words come across as harsh: Rava assumes that there is no one in the world who disagrees that there are four watchmen, which means that the words also apply to Ram and Ri.
We are forced by the Maharam and Rosh to read the Gemara this way: It turns out that the R'n placed the entire Mishnah, including the Rishah, as the R'n. Apparently what motivated him was that in his opinion the R'n also does not fit the R'n's opinion, because apparently the R'n believes that there are three guards and not four (and a tenant is literally a tenant, and they are one type). Now the Gemara raises the question: So why assume that according to the R'n there are four guards and not three? Apparently, just as we saw according to the R'n, according to the R'n there are only three, because a tenant is like a tenant, and they are one type? To this the R'n answers that there are really four types and their laws are three. That is, there are four types of guards, even though from a halachic perspective these are only three types.
However, let us ask ourselves now, after the conclusion: According to whom does the Risha follow? From the course of the gam, it is clear that even for the conclusion of the entire Mishnah (including the Risha), only the Kamma remains. In other words, even for the conclusion that the Rabbi himself cannot enter the Risha, even if we interpret the Risha as saying that there are four types of guards and their laws are three.
If so, the conclusion of the Gamma according to Maharam and Rosh is that according to R.I., who believes that a renter is a cash rent, there are only three types of guards. Whereas according to R.M., who believes that a renter is a cash rent, there are four types and only three of their laws.
Explanation of the conclusion: Back to our words
In light of what we have said in the previous chapters, it seems to be explained as follows. The Rabbinical Council believes that a tenant is a kessach, and so is the halakhic law. As we have seen, a tenant is not really a shorman, but rather a borrower with an exemption from onsin, and the halakhic similarity to the shorman is coincidental. If so, the conclusion is that there are indeed four types of shorman and their laws are three, as we explained above. However, according to the Rabbinical Council, a tenant is a kessach, and therefore it is not reasonable to perceive him as a borrower who is exempt from onsin. The Rabbinical Council understands that every lease contract contains two components: the granting of rights of use, and an obligation to maintain kessach. If so, according to the Rabbinical Council, from the point of view of the laws of maintenance, the tenant is not a fourth type of shorman, but is actually a shorman. Therefore, in his opinion, there are only three types.
Let us explain this further. When we want to understand the position of the R.M., who believes that a tenant is a custodian, it is not possible to understand this as a result of a contract, since he did not receive anything in exchange for his custody. He pays for the rights of use, and why would a custodian undertake to maintain more than a non-resident, and also have greater responsibility (for the property)? Therefore, there is no escape from the conclusion that according to the R.M., these obligations are not the result of a custody contract but are derivatives of ownership. The similarity to the custodian's obligations is coincidental, since the tenant does not receive anything in exchange for his custody, there is no reason to see him as a custodian.
However, R.I.'s position is that a tenant is a keeper. To explain such a position, there is no need to assume that the obligations arise from ownership, since he is truly and sincerely a keeper for free. He received the animal for his use, and of course he must keep it as a female keeper. If it were not for this, the owner would not have rented the animal to him. However, he did not receive a wage for keeping it, and therefore his obligations are keeper. If so, the reasonable and simple result is that he is a keeper for free, and there is no need to explain this as a derivative of his ownership. Therefore, R.I. perceives the lease contract as containing two independent components: keeper obligations and liability, and rights of use. Therefore, according to his view, a tenant is truly a keeper, and there are no four types of keepers at all.
We will note that these are our words that we saw above in the settlement of the question. Eyes of Wisdom According to Rashi, in fact, someone who believes that a tenant is a custodian does not accept the understanding that he has owners in an object, that is, he does not agree that the tenant is a borrower with exemptions. According to his view, there are apparently two separate transactions between the tenant and the lessor: permission to use in exchange for rent, and the obligation to guard as a custodian. Therefore, according to the Law of Moses, there are not four types of custodians, but only three.
After writing, I saw that in B. Torah of Life On the issue of Shavuot, he wrote the opposite: According to Rabbi Yehuda, there are certainly four guards, since a tenant is certainly not literally a kesha. Only according to the Ram, who believes that a tenant is a kesha, did the question arise as to why there are four guards at all. His words indicate that he read the Gam as a Rosh, which the question arose only in relation to the Ram (and as the version of the Sha'i 'Ai Hi' specifically), but his conclusion is the opposite. And according to Anad, his words are constrained, and the Rosh and the Ram certainly did not learn as he did.[48]
The Lubavitcher RebbeCall logs (Volume 3), Reish Parashat Mishpatim, elaborates on the issue, and also seeks the uniqueness of the tenant. He writes essentially as we say (see mainly ibid., note 20 et seq.), but he does not delve into the legal difference between the tenant and other guardians, but mainly into the psychological level (that the tenant's interest in the matter is to have rights, as opposed to the shalachah, whose interest is the very act of guarding). He explains that the tenant is a combination of a seeker and a shalachah, and it somewhat implies that he sees two contracts at the same time, like the same hu'a that we rejected. As stated, according to this method, it is difficult to see the tenant as a different type of guardian, since from the point of view of the laws of guarding he is literally like a shalachah, and what's more, he also has shalachah rights of use. It is just that the situation is different (as in a mortgage, in an uman, and in an abidah). Although he writes that the tenant is like a tenant in the amount of his debt, he is like a borrower in the quality of his debt (see ibid., p. 114 and more). Perhaps his intention is to say, as we have said, that the duties of care are a consequence of the rights of use, and so on.
The method of the rest of the first
And here, in the language of the Rif on the website, things are almost explicit, and this is its language:
There are four watchmen, etc., and there are four watchmen, III. Is it a hireling as a wage-bearer? Rabbi Nachman bar Yitzchak, Four Watchmen and Their Laws, III.
If so, the Rif understands that the question about the Mishnah is only based on the opinion that a hireling is a wage earner. If so, the explanation in the conclusion (four watchmen and their three laws) is also stated only according to the R.M., and this is exactly the same explanation that we proposed according to the Rosh and Maharam method.
As stated, our words are necessary according to the Maharam and Tos' Rosh's method. Although Tos's is not necessarily biased, since they wrote that the words 'a'i hik' are not necessarily so. If so, they probably disagree with the understandings we have proposed here. Although, as we have seen, according to their method, the tenant does not own the leased object, and therefore it is no wonder that they disagree with it in this regard as well. And according to their method, the classification into four types of guardians is not necessarily so. In other words, Tos's apparently understand that a lease contract contains two independent components, both according to the Ram and the Ri. And yet there are four types of guardians, because in practice there are really four types of laws: a tenant is exempt from death due to labor and rape. A Shas is liable for death due to labor (because if he did labor with it, it is a service of the hand), and is exempt from rape. And a questioner is liable for rape and is exempt from death due to labor.
We note that the TOS ignores here too the fact that these differences do not pertain to differences in the laws of preservation but to differences in relation to the rights of use. This may be another reflection of what we saw above, that the TOS do not accept the words of theC.P. The obligation of the borrower to pay the loan is due to the obligation to repay. We have seen that the Torah scholars raise the issue of the borrower's debts as a side issue (of interest), and they apparently do not agree with the essential explanation offered by theC.P..
And according to Rashi, we explained above that both the asker and the renter have owners in the object. The fact that he also does not hold that "it is not the case" does not necessarily contradict our words. It is possible that according to his view, both Rashi and Ram agree that there are four guardians and their laws are three, and therefore there is no room for "it is not the case." And this is a tush, but not for its reasons.
It should be noted that the Rambam does indeed cite this mishnah, in Pa'a of the Maskirot Ha-A (and see also the same name in Refa'b):
Four guardians are mentioned in the Torah, and they have three laws, and these are the four guardians: the gratuitous guardian, the borrower, the one who bears wages, and the hireling.
It does not mean that he is tying the tenant to the asker, but rather to the Shash. This seems to be the case from his words in the Hebrew Bible, where he shows that their laws are equal. But this may be following the Gemara, and not because of a fundamental similarity. It is true that his division between the Hebrew text of Shekirot and the Hebrew text of Shala and Pikdon seems problematic according to our words. In the Hebrew text of Shekirot, Shash and tenant are discussed, and in the Hebrew text of Shala and Pikdon, the laws of Shach and Asker are discussed. If he believed as Rashi did, it would be more reasonable to divide between the laws of the tenant and asker, who have owners in the object, and the laws of Shach and Shach, who are merely guardians.
On the other hand, we saw that the Rambam writes in the commentary that the asker and the hirer are owners of the object. Above, we explained that the laws on the issue of ez are unique, and there is no contradiction in them to the subject under discussion. If so, our words on the understanding of hirer and asker can also be said according to the Rambam's method. It is certainly possible that the division of the laws in his book is not related to the essential understanding, but rather to the technical characteristics: the Rambam's question and deposit deal with gratuitous transactions, and the Rambam's rental deal with contracts for a fee. If so, it seems that the Rambam does not contradict the very concepts in the laws of guardians that we presented here.
G. Differences between a tenant and a tenant and a tenant
introduction
So far we have seen that, at least according to several rishonim, the tenant is an independent type, neither a borrower nor a s"sh: he is a borrower who is exempt from coercion, and what most of his laws identify with the laws of s"sh is an accidental result of this fact. In this chapter, we will briefly examine what emerges from our words, in two directions: we will see whether there are differences between a tenant and a s"sh, which reflect the fact that he is a different type of custodian. And for the same reason, we will also examine the differences between a tenant and a borrower.
Ostensibly, there are two independent components included in lease and loan contracts: rights of use and ownership, and the responsibility for maintenance. We would expect the differences between a tenant and a borrower to be related to the laws of ownership and rights of use (a tenant receives rights of use and a borrower does not, but the laws of maintenance are the same), and the differences between a tenant and a borrower to be related to the laws of maintenance (both own the object for its fruits, but there are differences in the duties of maintenance and responsibility).
However, as we have seen above, it is difficult to distinguish between these two components. The reason for this is that, at least according to some opinions, the responsibility of the lessor and the lessee to maintain is a derivative of the contract regarding the rights of use, and not a separate contract. Therefore, differences arising from the rights of use also become relevant with respect to the classification and classification of the types of guards. For example, the fact that a tenant is exempt from death due to labor and a ssh is obligated ostensibly arises from the rights of use, but it can be a direct consequence of the fact that all of the tenant's maintenance obligations are derived from his rights of use, and so is this obligation. There are of course also technical differences regarding the application of the contract (beneficial ownership), as well as the owner's ability to terminate the contract within the time limit (which is not possible in a lease).
Therefore, in this chapter we will attempt to review the differences between a tenant and other guardians. In light of our remarks above, we will not distinguish here between the duties of guardianship and the rights of use. Gathering together all of these differences is important in itself, precisely against the background of the fact that there is usually no distinction between a tenant of the ss in terms of guardianship and a tenant in terms of rights of use. These differences in their various forms will also more sharply illustrate the fact that a tenant is a different type of guardian. Admittedly, we cannot extend the discussion about each of these aspects, and therefore in the course of our brief remarks we will try to focus on pointing out the connections between these laws and the characteristics of the tenant as we have encountered them so far.
The differences we have already encountered
We have already discussed some of the differences between the various guards above. According to halakha, there are laws of fraud in renting, and in the case of a sabbath, it turns out that there are none. Renting is a sale for its day (and according to the Toss and their corollaries, we have seen that there is a lien on the rented object, which is a kind of property), but a sabbath is certainly not a sale in any sense. We also saw a difference in the word, a sabbath must be kept more than a female sabbath,[49] Whereas a tenant apparently guards only as a female dainty (like a shilling). This difference also depends on our words, since the tenant does not have any duty of care, but only liability due to the rights of use. Therefore, although his liability is as a shilling, the duty of care is as a shilling and as a female dainty. We have also seen that according to theKZVAH C. Shem Sek. A person becomes a tenant even if he paid less than the rent, or less than the rent in Shem. We also linked this to our explanation, since in the case of a tenant the contract is not about maintenance. Maintenance is derived from ownership, and as long as there is ownership, there are maintenance charges. On the other hand, in Shem, this is maintenance, and if he receives less than the rent, there is no contract here.[50]
With respect to the questioner, there is a primary difference in that the questioner is liable for rape and the renter is not, and we have already explained this in terms of the nature of the ownership for the time that both have. We also saw a difference regarding the halakha that is fat for the questioner, and regarding the name of a cow from its owner according to theC.P. In the Rambam, and regarding a priest who asked a cow from his friend according to theC.P. In the Toss of Yevamot (although we have commented on this, it does not mean that this is the intention of the Toss there). These two laws also served us to demonstrate the distinctions we made.
Regarding the law of 'yours', in Shaul this is explicit in the G.M. and the halachah has ruled that one does not go out with a loan in Lulav Shaul. And regarding rental, we have indeed seen methods according to which there is a law of 'yours' specifically in rental, even though in the question it is not, but according to most opinions it seems that there is no law of 'yours' even in rental. And in Shaul, there is no law of 'yours'. It should be noted that in the issue of 'harehino' (Pesachim 3:1-2), it means that Shaul also has a proprietary dimension in an object, but this is a special law in chametz, and I agree with this.[51]
Change in the craft
A borrower or tenant is not permitted to change the contract he has agreed upon with the owner. If he sleeps and the animal dies as a result of the change, he is liable. However, some recent scholars have divided this matter between the borrower and the tenant.S.M.A. C. Perhaps the Supreme Court has made a contradiction in the words of theToshu'a And the Rosh, regarding a change to the same thing itself (such as a spade to harrow another's orchard), states that in a lease it is written that one is not obligated to pay, and in a spade borrowed, one is obligated, and in the name of whatever one may excuse. And it cannot be established that the difference is due to the laws of protection, in which the beggar is obligated by force, since in the event of death due to labor, the beggar is also exempt.
Although inNatiyam There is a division between a borrower and a tenant, since the borrower is free and there is room for strictness, whereas in the case of a tenant who is paid, we will consider the opinion of the landlord who is not strict about this.
And in our opinion, the explanation for this seems simple. It could be said that the borrower has a duty to return, and therefore even if the change was to the same thing itself, the duty to return did not expire, because it was not as if it had died because of the work for which it was lent. Therefore, even if it died in a rape, he must return money in its place. However, in the case of a tenant, even if it is not as if it had died because of the work for which it was lent, the ownership automatically expires at the end of time, and therefore, since it has died in a rape, he is not obliged to pay him for it. The explanation of theNatiyam It is just the explanation for this difference itself.
AndMaggid Mishna In the case of the Law of Leases, 20, if a man hired a woman to ride on him, even though the woman is heavier, there is no change in the obligation to pay him. However, in the case of the Barish Hala, the writer asked:mm Even a change to a light job is a change and is obligatory. From this it is also proven, as we have said, that in the case of a change such as this, it is like a change to another job, and therefore it is not as if it died because of the job. And as for this tenant, although she did not die because of the job, in a rape case we are exempt, since he is not obligated to make restitution.
A similar discussion appears around the words of the Rambam in the fifth chapter of the Book of Leases of the Lord, which states that what a tenant is not permitted to rent is only movable property, but he is permitted to rent land. And the Gra on Atar cited from the Rashba's answers that the HaN answered the question, and thusKindergarten Rent C. 19, and R. V.Reason In the book of the Holy Spirit Abraham's Word, Ch. 2, 17, 16-7, discussed this at length, and raised a side to divide them according to the opinion of theNatiyam The above. Although his conclusion there is as follows:Kindergarten And the Rashba did not hate this question of rent.
In any case, it should be noted that the difference we have brought here is not related to the differences between a borrower and a tenant in the laws of custody, but rather to differences in relation to the rights of use and the obligation to return.
Buying the multiplication
A question that explicitly raises the difference between a tenant and a borrower is found in BM 34a. The question deals with the law of a keeper who paid, or said he was willing to pay, regarding receiving double the amount when the thief is found. We will now see the course of the question.
The Mishnah states that if the watchman paid and the thief is later found, then he pays double to the watchman and not to the owner. The Gemara discusses the ruling on a watchman who merely said he wanted to pay:
He paid and did not want to swear [etc.]. Rabbi Hiyya bar Abba said that Rabbi Yochanan said: He did not pay, he paid, but because he said, "I will pay," even though he did not pay... Rabbi Yochanan's interpretation is: A person who rents a cow from his fellow and it is stolen, and he said, "I will pay," and I did not swear, and later the thief is found - he pays double the rent to the hirer. Rav Papa said: A keeper who is free, because he said, "I have transgressed," he gives him a ransom, so that he may redeem his soul for theft. A keeper who is hired, because he said, "It was stolen," he gives him a ransom, so that he may redeem his soul for breaking and dying. He asks, "Whoever says, "I will pay," he does not give him a ransom. In what way did he redeem his soul - in death due to labor? Death due to labor is not uncommon. Here is what I have said, Rav Papa said: Nami asks, since he said, "I will pay," I will buy him a kiplah, since I will spare his soul in death because of a job. Rav Zubid said to him, "Abaye said: He asks until he pays." What is the reason? Since all his pleasure is his, in speech he does not buy him a kiplah. The authority of Rabbi Zubid states: A person borrows a cow from his friend and it is stolen, and the borrower advances and pays, and later the thief is found, he pays double the amount to the borrower.
R.P. explains that the depositor gives the double to the keeper in exchange for his willingness to pay, since he could have exempted himself with various claims. Regarding NIS, SH, and renters, the law is agreed upon. Regarding the borrower, R.P. himself is satisfied, since the claim of death due to labor is not common. In contrast, Abaye believes that the borrower has no use for saying anything at all, and therefore he does not buy the double until he actually pays. The reason for this is not the same reason that R.P. gives (the claim of death due to labor is not common).[52]But since all his pleasure in speech does not make him a kiplah. This is also explained in the baraita cited there at the conclusion of the verse, and this is also the ruling of the halakha.
If so, we have found here another difference between a tenant and a borrower, and it also depends on the fact that the borrower has all his own enjoyment, and therefore the owner is not inclined to give him anything beyond the rights to use the object.
And apparently this is not a difference that is related to our words here, since this is only an estimate in the owner's opinion that depends on the question of whether he is doing the borrower a favor or not, and not on the essence of the borrower's property and obligations.
And yet, let us recall what we already suggested above in the words of theNatiyam, that this estimate is itself what determines the ownership and rights of the borrower. The expression 'all the enjoyment is his' indicates that he has ownership of the object, and since he buys the borrowed object without payment, then all the enjoyment is his (as opposed to a renter). Above we saw that because of this he owes onsen, but not because there is an estimate according to which this was intended by the parties in the contract, but rather it is a result of the ownership he has in the object.[53]
And here the Rambam brings this halacha in the second part of the deposit. However, he does not at all write the reason that all the pleasure is his, but rather brings in a stima that the one who asks buys the double only if he actually paid, and in the other cases he buys the double even if he only said he would pay. The commentators have already commented on this, that perhaps the stima is because the Rambam ruled as a first-instance lishneh. However, this is suppressed in the Gemara, since it is clear from the Gemara that this is presented as evidence for Abaye and the halacha is similar to it.
And here we find in Yerushalmi Rafah Deshavuot that we cited above, who also makes this distinction without the reasoning of 'all his pleasure', but for another reason:[54]
Give and steal from the man's house, not from the house of the borrower. And [to say] and steal from the man's house, not from the house of a wage earner and the hireling? Because his protection is upon him as if he were upon him.
In this baraita, the reasoning for the distinction between a tenant and a borrower is not based on an estimate in the owner's opinion. The reasoning is from the verse "and steals from the man's house." Although inMoses' face There he explained it as a Kabbalistic, but this is a duq in the language of the Jerusalemite.[55] The Ridbaz on Atar notes that the Yerushalmi, in his opinion, learns that the purchase of the double to the keeper is based on a verse and not on the owner's estimate of knowledge that gives him the double as a Kabbali (see Yerushalmi Reish, Chapter 1, The Depositor).
Therefore, the verse reduces the borrower from buying the double, while the renter and the hirer do not reduce. The explanation in the Yerushalmi baraita is "because his protection is upon him as if he were upon him." We mentioned above thatC.P. B"K 11 A"A 6KZVAH Rish Si' Shmat explains that the borrower is the owner of the object, and therefore he uses his own, and stealing from him is not stealing from the house of the depositor. In contrast, the ruling is different for a tenant, since a tenant is only a guardian of his friend's property and does not use his own, and therefore everywhere the object belongs to the owner.[56] We wrote above that according to this baraita it appears that a loan is a purchase and a rental is not a purchase.
Although, according to the conclusions of our discussion, this can be understood differently: both rental and questioning are purchased, and we have seen that this is also the Rambam's method. The difference between them is that rental is a purchase for a time and questioning is a purchase for eternity with the obligation of return. Therefore, in a questioning, the body for fruits belongs to the asker for eternity, and therefore it is considered as if it was stolen from his own house. Whereas in rental, the body is purchased for the lessor, and the lessee only has ownership of the fruits for a time, and therefore it is considered as if it were stolen from the lessor's house, and the double goes to him.
According to the Jerusalemite, the difference between a beggar and a renter is not because the beggar has all the enjoyment, but because of the difference in the nature of his ownership of the object. If this is the Maimonides' source, then it is clear why he does not cite the Babylonian's argument that the beggar has all the enjoyment.[57]
We note that the Ridbaz on Atar explains the Yerushalmi contrary to our words. He explains that the borrower's obligation to pay in a rape is not because he is in custody like any other custodian, since the borrower is also obligated in a rape. The borrower's obligation to pay is due to the responsibility he assumed towards the owner to return the object, but there is no connection between him and the object. Therefore, the object is considered the owner's and not his. In contrast, in the case of a tenant, payment is part of the duty to guard, and therefore there is a connection between the tenant and the object (like a Shas), and therefore it is considered as if it were the tenant's.
Although he assumes that the duty of the beggar is not one of the duties of the guardians, he does not see the beggar as the owner, but rather the opposite. This is somewhat similar to the owner's method ofDecoration We have seen that in the matter of the law of "yours," the tenant is the owner and the beggar is not. On the other hand, the tenant is responsible for the object like any custodian, and therefore he is like its owner in the matter of doubling. And this interpretation apparently goes to the issue of "we thought" above, and the words are tsa.[58]
Maintenance charges at the end of the contract period
onShulchan Arba'ah The Hebrew Bible states that if the term of the contract expires, the shilling becomes a shekel as long as he does not return the object, and in simple terms, the shilling becomes the shilling to the tenant. On the other hand, if a tenant asks after the term expires, it becomes a shekel, not a shekel (see position Mitzvah (S. S. K.).
Ostensibly, this fact indicates that the custody contract is not a separate contract from the rights of use, but rather a derivative of them. Therefore, when the rights of use expire, the situation with respect to custody also changes. Although, for the person asking the question, why shouldn't there be a NIS, since if he no longer has rights of use, then he would have to become a regular depositor without payment. And it should probably be said that the benefit in question is considered a payment that obliges him to custody after the expiration of the time (although Rabbi Lichtenstein in the Sop"b attaches this to his innovation regarding the custody of wages without payment as a result of trust). Let us recall that according to what we said above, the obligation to custody during the time of the question itself does not stem from any payment, but rather derives from ownership and rights of use.
Termination of the contract in the middle
Regarding the ability of the custodian to terminate the contract midway, the borrower and the tenant can terminate the contract midway, while the s.h. and s.h. cannot do so (see Shulchan Arba'ah H.M. C. Ratseg 51, 6Kindergarten Question and deposit C. 7, 2position (Mitzvah 6:10). Simply put, this difference also indicates that the obligations of care of a tenant and a borrower are derived from the rights of use, since the ability to terminate the contract with respect to the rights also creates a termination with respect to the obligations.
Applying storage charges
As you know,[59] There is disagreement among the Rishonim regarding the owners of the guard. The opinion of the Rambam (Shekirot P"2 58) is that one is not obligated to guard until it is withdrawn, and the opinion of the Rosh (B"M P"315) and the R"Y in Tod"a "revised" BK Et A'a that the guard is obligated to guard from the moment the owner leaves. The ownership is required only so that he cannot withdraw it.
What about the tenant and the borrower? There is also a proprietary meaning to the act of ownership.position (Mitzvah 6:15) assumes that the property of the borrower and the tenant is dependent on the same dispute, as does the simplicity of the Gemara and the Poskim.
And according to this, it is very clear that according to the Rambam, the duties of responsibility depend on the rights, and therefore the act of ownership on the rights also applies the responsibility of safeguarding. This certainly fits with his view, as we explained above, that the borrower and the lessee have ownership in the object, and that the duties of safeguarding are derived from it.[60] On the other hand, according to the Rosh and Tos and their supporters, the act of ownership regarding the rights does not determine the custody. It is possible that they are following the view here that the tenant and the borrower do not have actual ownership of the object, and therefore their duties of custody cannot be derived from it, and are similar to those of other guardians.
Renter from owner
The Supreme Court, in its discussion of cases 23-24-25, deals with the question of whether, in the case of guardianship, the owner is obligated to provide assistance, and how much is obligated (whether at the time of the rape, at the time of the claim, or at the time of the deposit).
He cites the parties that the one who asks for a gift is obligated to perform a service, while the one who asks for a gift and the one who asks for a gift are exempt from performing a service (see page Kanav 12b, 5:00, "except" and before it. And an explanation of this opinion on page Kann 12a, 5:00, "and it is" and more). He makes them difficult from the Gemara BM Tzo 12b:
In Rami bar Hama's words: Is a husband a questioner of his wife's property or a tenant? - Rava said: According to Horfa Shabshta. What is your opinion? If he is not a questioner, it is a question for the owner, if he is a tenant, it is a rental for the owner.
We see in the Gemara that there is no difference between renting from a landlord and asking from a landlord. According to these methods, renting from a landlord also exempts one from paying a service fee, while asking from a landlord is obligated to pay a service fee. And as for the one who went into this at great length.
And according to our words, it seems to be settled that the law of a tenant against an owner is the same as that of a borrower against an owner. Both are obligated by a contract of service, and in this they differ from a shalachah and a shash. And in particular, according to our explanation, a tenant is a borrower with an exemption from rape, so his law should be similar to a borrower (apart from rape) and not to a shash.
Payment by courier
The Gamma of the Hebrews 44:2 states that the payment is made at the time of the rape (or theft). In contrast, in the case of a hand-to-hand exchange with other guards, even if it was stolen or lost, the payment is made at the time of the hand-to-hand exchange, like a robber who pays at the time of the robbery, and not at the time of the rape (see B.Shulchan Arba'ah (H.M. Si. Ratsev 555).
What happens when a borrower lends it? Simply put, the borrower does not have the right to a loan, since the deposit was given to him for his use. It is possible that use that is not in accordance with the agreement with the lender will be considered a loan (see above in the discussion on changes in usage). Apparently, the Rishonim disagreed on this issue in the issue of B.M. 40:2 (see in the Grif, page 11, 12, 13, "And I saw" and onwards, and in the Rita, answer to 33, cited there): The R.A. holds that the borrower has a regular loan, and the other Rishonim hold that the borrower does not have a situation of a loan. According to the majority of Rishonim, when the G.M. uses the term "loan" in the borrower, it refers to his regular use, and then this is compared to a shekel and a shekel. Nevertheless, it is clear that the payment in the borrower is at the time of the rape, and in a shekel and a shekel, the payment is at the time of the loan.
What will be the tenant's ruling? Ostensibly, in this matter he will be like a borrower, since he has a right of use. Therefore, there is no concept of a hired hand in the usual sense for a tenant either. If so, a tenant will also pay for rape at the time of the rape, and in this he is not like a "shesh" and a "shesh", but like a borrower. Although his duties of care are like those of a "shesh", the right of use that he has causes his rulings regarding the value of the payment to be like a borrower.
Summary: Four Watchmen and Their Three Laws
We explained, according to the method of Maimonides and Rashi and their support, why there are four types of guardians. The tenant is a borrower with an exemption from onsin: the basis of his obligation is like a borrower (due to ownership), but the quality of his obligation is similar to a shash (except for the differences that arise from ownership).
However, according to the Toss and their supporters, the problem remains: If a tenant is indeed a tenant, and his obligation does not arise from ownership but from a regular maintenance contract, why are there four types of maintenance contracts in the law?
Rabbi Lichtenstein in Sop'B offers a different mechanism. He reiterates that there is a retention of wages that stems from the trust that the depositor places in the depositee, even if there is no payment for the retention. This is a different type of retention of wages, and the tenant belongs to it.
It should be noted that according to the Toss method, it is difficult to say yes, because as we saw in the Toss, the Nima in the Book of Revelation explains that the hirer is obligated as a "shesh" because he receives a benefit, which is like a wage. According to Toss, the fourth type is apparently a guard who receives a wage that is not given in exchange for guarding, and in such a situation it is the Torah that obligates him to guard a wage (including theft and loss), and not the contract. A similar situation exists with a guard who loses a loss, whose "wages" are a penny, according to Dr. Yosef, and so does a craftsman (which Toss there explains as with a hirer).
This claim concerns the words of theKindergarten The question and deposit of the s. a. mentioned above, which raises the possibility that all the duties of custody in the law are not the result of the contract and the obligations of the parties, but rather are duties that the Torah imposes on the one who has taken upon himself to be in the category of custodian (and he can stipulate to this, of course). According to this system, the laws of custodians are not part of contract law, but rather a law from the ordinary Torah. According to our discussion here, at least according to the Torah system, it seems that this description is correct with respect to the tenant, but not with respect to the s.h.i. and s.h.i., and perhaps also not with respect to the borrower (if we understand that his duties arise from ownership, unlike a tenant).
H. Summary
In this article, we addressed the question of why the law distinguishes between four different types of guards, even though from a halachic perspective the tenant is a "sh" (tenant). Our starting point was that the tenant is ostensibly a combination of two different contracts: he is a borrower in terms of ownership and rights, and he is a hired guard in terms of guarding fees.
However, our conclusion was that the lease contract, like the loan contract, contains one component, not two. The lessee is indeed the borrower, and in both cases the (different) maintenance charges are a consequence of the rights of use. However, their ownership is of a different nature (in the borrower it is worldly property with an obligation to return, and in the lessee it is property for a period of time), and therefore their charges are different.
We have argued that the Mashi indicates that the hirer is written in the Torah in the verse (Exodus 24:12) "And if he is a hired man and comes with his wages," but his laws are not detailed therein. It is indeed written in Parashat Shoal, and therefore it is likely that he is not a shash, but a shash with exemption from onsin, as we have seen in the various sources we have cited. Therefore, the halakhic similarity between a hirer and a shash is merely coincidental.[61]
According to other methods, it is part of the Shas section, and therefore the difference between it and Sholem and other Sholem is different, as explained at the end of the previous chapter.
Our conclusion is that the halachic differences between a renter and a beggar and a shash do indeed rightly distinguish him as a separate type of keeper. This distinction is not just a theoretical determination. It also has several halachic implications, as we have described in the course of our discussion, and especially in Chapter 7.
[1] Although the GRIP in its interpretation ofPolice officer According to Rassa, the beginning of paragraphs 23-24-25 raises the possibility that the hireling is indeed written in the Torah in the verse (Exodus 22:14) "If a hireling comes with his hire," which is written in Parashat Shoal. And indeed, Rashi also states on this verse that he is dealing with a hireling (his words will be discussed below). This is also what Rambam means by the Rashi of the halakhic term "shikirot" quoted above (who wrote: "Four watchmen are mentioned in the Torah").
The Grifp there concludes that the RSAG Shigra Delishna also took this approach, and in fact he also does not mention the tenant separately. Below, when we see why the tenant is a fourth guardian, the obstacle to understanding the RSAG's language simply will be removed.
In any case, it is clear that the laws of the tenant do not appear in the Torah, in contrast to the laws of the other three guardians.
[2] See on this in the lessons of Rabbi Lichtenstein, Sop.
[3] It turns out that the tenant is not considered a father of all types of non-contractual keepers, since he is essentially different from them: they become wage keepers because they receive a monetary benefit for their keeping, and in this way they are similar to the contractual keeper, while the tenant undertakes to deposit the animal for his use, which is a different mechanism of keeping for wages. Perhaps this is what makes him a different type of keeper, and we will see more on this below.
[4] For calls (Volume 3), by the Lubavitcher Rebbe, Otzar Chasidim, Brooklyn 1987, Book Eight, Volume Two, Reish Parashat Mishpatim (based on a discussion on Parashat Vaishlach, 1987).
[5] Lessons of Rabbi Aharon Lichtenstein – BM Hashuel, Yeshiva Rav Etzion, Alon Shvut 563.
[6] For additional sources from the poskim, the responsa, and the latter on this matter, see Fathi Hoshen – Rent, PA Note B.
[7] See, for example, Notes file Rish Si' Neb and Bes Si' Neb. BesK.A.I. B.M. C. Mo. V. N. D. and E.Z. C. T. and the seventh C. A. and more.
[8] We will offer a brief overview here. For more details, see Archin 22-21 and B"M 50 ע"ב, 70 ע"ב, 100 ע"ב, B"K 5 ע"ב, 15 ע"ב, Ketubot 55 ע"ב, Nedir 40 ע"ב, and Kiddushin 44 ע"ב, and in the first chapters on all these issues. And especially the extensions in this one by the Ran in Nedir there, and in the omissions at the end of the Rashba's novellas Ketubot there (which is actually the Ramban, as is well known), and in the Ritva Kiddushin there, and more.
[9] And I found it inHazo"a BK 33 SKK in the Hadith 'Vati' Riva', which he brought in the name of the Ritva. And below it appears that in fact the Ritva in Kiddushin 44 A.B. is invalid according to the method of the Toss, which states that the tenant does not have ownership in the rented house.
[10] See also in the Toda, 'Israel Shashar', Yevamot 60 a.b. and in the Toda, 'The seller served him', 22 b.c. (see 2Notes file The above-mentioned one understood this in Tos', although it is not necessary). And in Tod'ah 'Ba'al, B.M. Tzo A.B. (which distinguishes between a time-taker and a tenant in matters of the laws of maintenance). And it must be proven from Tod'ah 'Vah'i'ro, B.M. Tzo A.A., that there is a lien on the tenant in the leased object (and the words ofKOH AndK.A.I. In this Tos' they are not necessary, and even puzzling.) And it must be proven from Tod'ah, 'He who said,' Archin 21:2, and from Tod'ah, 'And his companion,' B.M. 77:1, and Echm.
[11] And he wrote inReserve stones Si' eb sek"b (in the Hebrew there is the letter t). And see also K.A.I. Vows C. 28.
[12] And some have divided between 'this house', in which case the tenant has property in the house, and 'a mere house', in which the tenant does not have property. See the Rashba's omissions in the above-mentioned ketupats, and in the Tudah 'Efi'i, Archin 20b, and in the Genesis cited inShtamk There, and Ben Gershom there.
[13] AndKOH (Sui"i ng) andK.A.I. (B.M. C. Mo.) They brought evidence for this division from the issue of a rabbi on the salary, in the name of. And perhaps this will also settle the problems of the Grek'a inGHS B.M. S.D. A.B. E.T. A.B. On theNemoi, עשר (see the collections of novellas of Reka in the last paragraph before page 5 עשר).
[14] See Baran Nedarim, who wrote that Lahadiya is not like that. And also in the aforementioned Rashba's omissions, it is proven that the Haramban is not right, and also in the Rasash in his rulings on Lahadiya 40b, he made it difficult to make this distinction. They will be able to distinguish between 'this house' and 'just a house', and as in the note before the previous one.
[15] And according to Thos and his followers, what was bought there is the possibility of withdrawing, and perhaps it is related to the lien that we saw above in their system that the tenant has on the object for his own use. The lien was bought and therefore there is no possibility of withdrawing from the transaction.
[16] And most importantly, the issue of the BM that discusses whether the tenant is permitted to rent, and it means that from a legal perspective he can in principle rent the object to someone else, and the whole question is whether he is permitted to do so.
[17] All of this depends on the question of whether the body's ownership of time is possible, which the early scholars disputed. See on this Fruit of Moses – Buyers, to R.M. Segal and others, and to A.M.
[18] And the latter have made it difficult that in the halakhic lease, the Maimonides wrote that a tenant can also transfer his right to another. There is another in which the Maimonides also agrees that a tenant can transfer his right to another, but not to someone whose family is larger and who could harm the house. And in the 23rd, a tenant is prohibited from buying for a time (see the halakhic lease). And see below for an explanation of the difference between them.
[19] And such a thought was brought inReserve stones Answer: What?Shtamk In the case of a woman eating with a donation because it is called 'his money's property' even though it was not purchased by the husband. And this is the other side of the same coin: What determines the issue of eating with a donation is the existence of an act of purchase in the object, and not the fact that he has ownership in it. Therefore, in a rental where no act of purchase of money was made, he does not feed with a donation even though the animal is his for its fruits.
[20] AndKOH There he remained in the opinion of the Ramban, and did not feel the opposite contradiction in the Book of Genesis. And also in his difficulty with Mordechai, and in his difficulty with the Rishonim here, how does it apply to rent from beginning to end? And according to our way, the author is correct, since the payment is for the uses and not for the ownership. The ownership of the object itself can be done by withdrawal, etc.
[21] See AGM H.M. C. to.
[22] It might have been appropriate to say that in a lease, the side that the tenant buys is clear: he paid money. But in the question it is not clear why there is a side that she buys, and therefore Rashi says that the borrower also pays something to the lender: a liability in the onsin.
However, this explanation is tenuous, for several reasons: 1. If this is indeed Rashi's intention, he should have made it difficult to understand why the question was a purchase as opposed to a rental, and only then answered that it was because of the obligation of onsin. Rashi cites this as the fundamental reason for the purchase that the borrower has. 2. Furthermore, why is it difficult to see a purchase without payment, and after all, even in worldly goods there is a gift and a sale? Even in a gift, the body is completely purchased for the recipient. 3. In general, it is difficult to see the obligation of onsin as a 'payment' by the borrower. First, it is an obligation and not worth money. Second, it is an elementary obligation in return for the favor that the lender does him. The lender does not gain anything from this obligation, compared to a situation in which he did not lend to him at all. If so, how does this constitute 'payment' for the loan? This is in contrast to a rental in which the money remains with the lessor, and therefore he gained something real from the transaction he made.
[23] In the previous comment, we explained why it is unreasonable to view the onsen charge as a 'payment' for property. The conclusion is that the onsen charge is an indication and not a reason. See more on this in our comments below.
[24] A parallel distinction is found in the Babylonian BM 34a, and see this below.
[25] See C.P. On the Maimonides, Archin, p. 22, says, "But if" (page 40 of his book), and also in his novellas, to the book of the Book of the Law, 11, says, "And Samuel said" (pages 13-14 of his book), and there, 12, says, "Gemura: Let them alone" (page 14 of his book).
[26] Although, ostensibly, he can return the fragments as equivalent to money as part of the compensation. See on this in Tudah 'In Shemin' on the issue of BK there.
[27] onFor calls, The Lubavitcher Rebbe also wrote this (see ibid., p. 113). And in a note (*16) he referred to the Chiddus Justice Plant On the Shas, the words of the Rephaim, "But he who enslaves his body." More of his words will be quoted below.
[28] Although the words ofC.P. This is very puzzling, since in the case of a thief it is clear that there are owners of theft in the object, and the Gemara itself says that it was bought for him in order to be charged with onsin. That is, the basis of theC.P. Regarding a thief, it is almost explicitly stated in the Gemara, and it does not say this specifically regarding a thief, but only regarding a buyer. We have already noted that in the issue of BK 11, Toss actually writes this also regarding a thief (and specifically regarding a buyer, according to the Shamin law, it is not clear whether Toss believes so). We also saw above from the issue of Sanhedrin 6:1, which compares a buyer to a person who is underground in the matter of the obligation of onsin and kinyan.
[29] And so it is said in the Maharavad, which was quoted inShtamk The "B" of the "P" written by Dauman is like a tenant because he does work on the body of the object.
[30] And see in the Gripp there is a Kanab A.B. that discusses the question of whether a gift with the intention of returning is subject to a rape charge on the recipient. There he explains that a loan to the owner is like a gift with the intention of returning. We are, of course, dealing here with every loaner.
[31] Our words are intended for both the method ofKZVAH And both the methodNatiyam In the law of gift in order to return. Their disagreement is only on the question of whether the property is worldly or temporary, but the essence of the property according to both can be as we have said here.
Although in relation to the borrower, it seems more reasonable not to see the obligation to return as a condition of ownership. The borrower is under an obligation to return at the end of the loan period. Although it does not condition his ownership, it exists as an obligation on him. And the tenant has no such obligation.
[32] Even if it is raped within the time. Until the end of the time, it is the tenant's luck, and therefore the lessor does not need to provide him with another animal. But at the end of the time, the lessor's luck is a factor. Here, the differences between 'this donkey' and 'any donkey' should be discussed. See B.M. Et A.A. (regarding a donkey) and K.G.A. (regarding a house).
[33] And according to our words, the Ramban's question will be settled.Wars Shavuot (25 a.a. in the pages of the Rif. Bring theShch H.M. C. E. B. S. K. and B. Eyes of Wisdom (Note) on the words of Rashi. The Rabbis of the rabbinate, who gave the loan on the pledge, were jealous of Dr. Yitzchak even regarding the matter of onsin. And the Ramban emphasized that all craftsmen are wage-earners, and even according to the Rabbis, a craftsman who buys a tool for hire is not obligated to onsin. And according to our words, the Rabbis are very clear that in a pledge, he buys the pledge as if he were borrowing (as a gift in order to repay it), and therefore is obligated to onsin. But a craftsman, according to the Rabbis, who buys a tool for hire, buys the tool as if he were renting it (in a temporary purchase), and therefore is not obligated to onsin.
[34] As we have seen, the method of the Torah and their followers is that a tenant did not buy, meaning that he does not have ownership. If so, how can they explain the similarity between a tenant and a craftsman? And indeed, we find in the Torah, Nima, in the 19th century, p. 22, that a craftsman is compared to a tenant because both receive wages, even though this wage is not in exchange for guarding (and evidence for this can be found in Dr. Yosef's Prota in the book of the Keeper of the Lost, where even the wage is not in exchange for guarding, and yet, O Keeper of the Lost, a wage). And in the explanation of these things, the Torah, the Rosh, p. 22, and Ech.
[35] See the Lord's knowledge of the 2nd chapter of the Book of Revelation, and what he brought there inThe key book In the Frankl edition of the first edition of theHeart studies, and the things are ancient.
[36] theC.P. This is attributed to the fact that the renter/borrower is a gentile who does not buy. And in Israel, the renter buys and the renter does not. This is emphasized by the G.M. (which brought evidence from feeding a priest's animal as a donation for renting to a gentile) and by the Rambam.
[37] Although he saw inShulchan Arba'ah H.M. Si. Raz 65, and it seems that it has no source. Likewise, a kiddushin as a gift in order to return is ostensibly like a sale in order to return, but a kiddushin that I do not buy the woman. In any case, as a generalization, our words are certainly correct.
[38] Of course, all of this is implicit. If they explicitly set a different boundary, they might be able to do so.
[39] According to our words, the words of the Rabbi S. Taki cited above, which obligates the return of the object to the depositor, apply only to rental and not to a question. And indeed, there it was a question of rental.
[40] Theoretically, it could be said that the claimant has two laws: 1. Restitution charges that are imposed in cases of crime and misdemeanor, and even rape. 2. Maintenance charges that are imposed like a security deposit. However, there is no reason to assume such duplication. If ownership indeed manages to create all of the claimant's maintenance charges, why assume that he has an additional source of charges (a double contract: maintenance charges and ownership).
[41] According to our words, it is possible that according to the methods of the Rasa and Torah cited in the aforementioned Grifaf, the tenant will also be discharged upon death due to work under the oath of ist and not under the oath of the guards, since he, like the inquirer, is not really a guard. Admittedly, this is a bit of a stretch, since this also has implications for the owner's employment and rental, and in any case, these matters are in the minority opinion of the Rishonim (as stated in the Grifaf's words), and so on.
[42] I saw his comments after I finished writing the article. Below I will briefly comment on the differences between his conclusions and our conclusions here.
[43] There is a law for a craftsman who buys a tool in praise, and for a debtor who buys a pawn. But a distinction must be made between different cases (whether the pawn was made at the time of the loan and not at the time of the loan. Whether the pawn was made in a bank, or in a bank, or the lender himself apart from a bank, and so on). We note that even if the liabilities of these two, or of one of them, arise from ownership, in any case there is no need to define a different type of custody for them, since in such a case they will fall under the tenant (as its history. See my article, 'The Two Types of 'What is the Side': Conceptual Construction', Straighteners (2, Yeshiva Hesder Yeruham 5763).
[44] Although inPIAMS The BM 7:9 somewhat implies that a tenant is included in the Shas section (see the lessons of Rabbi Lichtenstein, 2:2, note 5), and should be rejected, and Tza'ak.
[45] See alsoKZVAH C. Eb Skald Wbposition There we discussed whether their words were spoken only according to the method of Rabbi Yosef in explaining the law of the guardian of a lost property, or also according to the method of Rabba.
[46] Even if this enjoyment is not payment for the guard, it is like a loss guard who receives enjoyment that is not in return for guarding, and according to the law, it is like a loss guard.
[47] Rabbi Lichtenstein does not present this as an obligation that stems from ownership, but rather as an obligation to safeguard that stems from the great trust of the depositor and not from a safeguarding contract (he also proves this from the language of the Rashbam on Exodus 22:6, es). According to our words, it is certainly possible that the Rabbi follows Rashi's method.
[48] I would like to point out that his accuracy in the simplified language of the Gemara (see ibid., notes 8-9) for the question is also incorrect, and the explanation of the question (see ibid., p. 114) is also inaccurate, as is evident from our comments above in the explanation of the question, as well as from the Rosh and the aforementioned Rama, and I agree with this.
[49] We hinted above that this is not clear. It is possible that this is only a liability obligation, and not a maintenance obligation. It is possible that a Shas on a G.O.A. is obligated to pay but not necessarily obligated to maintain against them. See on this in the lessons of Rabbi Lichtenstein, p. 1 and p. 3.
[50] The problem is not precisely in the act of ownership, but in the fact that there is no contract for less than the minimum wage.
[51] And what is the evidence, that even the Gemara in Zechariah, which discusses the question of non-renting and whether or not they bought, does not provide evidence on the issue of rahinu.
[52] There are some of the first ones there (see Rashi and Toss in the book "Lelishna Kama Dr"p") who explained that according to this lishna of R"p, the questioner, even if he actually paid, did not buy the double.
[53] And see inKindergarten Hala Shala Ve Pikdon Si'a, which investigates whether the guardians' debts are the result of an obligation, or whether the Torah obligates them. He discusses the meaning of the phrase 'all his enjoyment', and his conclusion is that this does not mean that these are mutual obligations. These are only the reasons why the Torah obligates the questioner to be onsen. This interpretation is very similar to our statement here, and so on.
[54] Although Yerushalmi does not mention that this is a situation where the guard only said he would pay and did not actually pay. And it is not specified here at all that this is a double purchase for the guard who pays. Although the website explained this in Yerushalmi.
[55] And see also Facial appearance name.
[56] It is not entirely clear from the words of theKZVAH Why does this division lead to the owner being awarded the double, and must be settled and settled?
[57] And as is well known, it is a rule in Maimonides' interpretation that sometimes he rules as a Jerusalemite against a Babylonian.
[58] It is possible that he only attributes this to ownership of the body and not to fruits, but then it is a lien with regard to a tenant.
[59] See position Mitzvah 75 Sek. and Mitzvah 55 Sek. and Mitzvah 6 Sek., andKindergarten The Lord guards the city.
[60] Although he also believes so regarding NIS and SHS, who certainly do not have ownership of the object, and therefore this is not necessary.
[61] And see inCall logs The above-mentioned person who commented on this (note 12 et seq.). Although he referred todressed H.M. R.S. Ratza, and others.