Resources for Beitzah daf 39
Rabbi Yitzchok Gutterman
- The גמרא says that a בור of a city is כרגלי אנשי העיר. There is a מחלוקת ראשונים as to what exactly that means. רש"י says that it means that the person who draws the water can take it wherever someone could normally go if they lived in the city and didn’t make an עירוב תחומין. That means that even if the person is a resident of the city and made an עירוב תחומין to go elsewhere, he can’t take the water with him outside the תחום! See the רשב"א here who disagrees and says that any person from that city who draws water on יו"ט can take it wherever they personally are allowed to walk on יו"ט. Since the water is jointly owned by the city בשותפות, and since תחומין are only דרבנן, we say יש ברירה , meaning the water that this resident drew was always his portion from the beginning. See the תוספות יו"ט on our Mishna who asks why our Mishna is different from the earlier Mishna where it said that brothers who jointly own an item but the item isn’t מיוחד for either brother, have the חומרות of both brothers and the item can only go where both can go. We don’t seem to think that ברירה is a factor there. Similarly, we should say that city-owned water that is viewed as a שותפות should limit everyone in the city to only take it where everyone in that city can go. So if one person in the city made an עירוב one way and another resident made it the other way, the item shouldn’t be able to move at all. The תוס' יו''ט explains that the difference is the specific item that is jointly owned. Water is used only once. Therefore, ברירה can say that whoever took it was always the owner. However, when dealing with something that is reused, then even though one brother used it today, the next brother will use it tomorrow. Therefore, we cannot say that it was הוברר that it was always yours since it keeps being used jointly by all the partners. In explanation of רש"י, see the חידושי ר"ד הכהן who says that רש"י who holds it just follows the תחום of someone who was שובת in the city, understood that city-owned water is always viewed as “the city’s” and therefore no one can claim it as their own personal water.
- The גמרא says that waters which are מושכין and נובעין are not קונה שביתה. רש"י says that נובעין are different from מושכין in that נובעין is moving but not going anywhere from the point they are at. In other words, it is spring water or well water that isn’t going past the בור. See the פּרי מגדים סימן שצ"ז א"א ס"ק י"ג who explains that the water which isn’t going past the pit is not קונה שביתה since new water is constantly coming in and out of the pit. It is all a big mix and therefore cannot be said to have been קונה שביתה. See the ראב"ד quoted by the רשב"א here who learns that both cases refer to water that is moving, just one moves a lot and one move a little. See the משנה ברורה סימן שצ"ז ס"ק ל"ב who is מיקל like רש"י.
- רש"י understands the end of our דף regarding המגביה מציאה לחברו to not be a discussion about whether קנה חברו or not since רב נחמן holds לא קנה חברו. Rather, they are just arguing as to whether the person who picked it up can keep it. It is not clear from רש"י what the נקודת המחלוקת In fact תוספות here seems to think that suggesting that the person who picked it up can keep it is impossible. However, see the עונג יו"ט סימן ל"ב בהגה"ה who says that רש"י would explain the מחלוקת as follows: רב ששת says that he can be קונה since his hand, which picks up the item, is also his חצר and חצרו של אדם קונה לו שלא מדעתו. רב נחמן would hold that since he picked it up with intention of giving it to his friend, it’s like he had דעת to דוקה not be קונה, and a person can’t be קונה something בעל כרחו.
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