QUESTION: The Gemara cites a Beraisa which teaches that if one person is
riding an animal and another person is holding the reins (but not causing it
to walk, -Rashi), the person riding it acquires the donkey and the person
holding the reins acquires only the reins. The Gemara attempts to prove from
here that a person can acquire an animal by riding it ("Rochev").
RASHI (DH Shema Minah) explains that the Gemara intends to prove that when a
person is riding an animal and no one is leading it ("Manhig"), he is Koneh
the animal. Since he is Koneh the animal when no one is Manhig, when someone
else *is* Manhig at the same time as the other is Rochev, each person is
Koneh half of the animal.
Where does Rashi see this? The Beraisa can only prove that the person riding
the animal is Koneh it, since it makes no mention of a person leading the
animal at the same time. The Gemara earlier (8b) explains that even if a
person can be Koneh an animal by riding it, when someone else is leading it
at the same time, either the Rochev alone or the Manhig alone is Koneh it.
What forced Rashi to explain that the Gemara here abandons that logic?
(MAHARSHA, and RAMBAN, RASHBA, and RAN)
ANSWER: The TOSFOS HA'ROSH explains that when the Gemara (at the end of the
previous Daf) attempted to prove from our Mishnah that one who is Rochev is
Koneh, it abandoned the earlier logic of Rav Yehudah (beginning of 8b), who
suggested that when one person is Rochev and one is Manhig, one Kinyan
overrides the other, since our Mishnah says clearly that the Rochev and
Manhig split it and neither overrides the other.
TOSFOS (DH O Dilma, and DH Mahu d'Teima) discusses how the ruling of our
Mishnah can be reconciled with Rav Yehudah's logic that one Kinyan overrides
the other. Tosfos and other Rishonim explain that Rav Yehudah's ruling
applies when two people are attempting to be Koneh an object from Hefker at
the same moment -- one by riding it and one by leading it. In such a case,
only one of the Kinyanim will take effect. The ruling of the Mishnah applies
when the Rochev and the Manhig come before Beis Din, and each one of them
claims that he took it entirely by himself before the other person performed
any act of Kinyan on the animal. In such a case, one Kinyan cannot override
the other, since only one of them performed a Kinyan, and the doubt is
merely which one performed the Kinyan. Instead, the act of riding or leading
the animal tells Beis Din that each of these claimants is Muchzak in the
animal. Although with regard to making a Kinyan, one act of Kinyan can
override another act of Kinyan, with regard to being considered a Chazakah
the Chazakah of the Rochev cannot override the Chazakah of the Manhig, and
vice versa. According to Tosfos, the only time that one Chazakah might
override another Chazakah is when one person is Manhig and the other person
is both Rochev and Manhig b'Raglav (using his feet to make the animal move).
In such a case, the Rochev is doing everything that the Manhig is doing,
plus more, and therefore his Chazakah might override the Chazakah of the
However, Rashi, as the Tosfos ha'Rosh explains, did not learn the Sugya this
way. Rashi learned that just as the Chazakah of one who is Rochev does not
override the Chazakah of one who is Manhig, similarly -- with regard to a
Kinyan -- when one is Rochev and one is Manhig they split the animal.
Therefore, the Gemara was not only trying to prove from our Mishnah that
Rochev is a Kinyan, but also that Rav Yehudah's logic is incorrect and that
the Kinyan of a Rochev does not override that of a Manhig, and vice versa.
Consequently, when the Gemara here proves from the case in which one person
is riding an animal while another person is holding the reins that the
Rochev is Koneh the animal, Rashi explains that the Gemara is reverting to
the logic that it attempted to prove from our Mishnah -- that is, first,
that Rochev is Koneh, and, second, that Rochev and Manhig are equal Kinyanim
and they split the animal when done together.
This is also the way that the MAHARSHA, PNEI YEHOSHUA, and "MORI HA'RAV"
cited by the Shitah Mekubetzes explain Rashi's words. However, the Maharsha
and others attempt to reconcile this with the logic of Rav Yehudah (8b),
whereas the Tosfos ha'Rosh writes simply that Rav Yehudah's logic was
forced, and therefore Rashi preferred to adopt the approach that the Gemara
takes when it asks from our Mishnah -- that is, that Rochev and Manhig are
Kinyanim of equal strength.
Why did Rashi not explain this point when the Gemara (8b) originally proved
from our Mishnah that Rochev is Koneh? In addition, what forced Rashi to
choose sides about whether Rav Yehudah is correct or whether Rochev and
Manhig are equal Kinyanim?
The Rosh writes that Rashi did not mention this earlier when the Gemara
proved the Halachah from our Mishnah, since it was obvious that the point of
the Gemara was to prove that Rochev and Manhig are equal.
The MAHARI ABUHAV (cited by the Shitah Mekubetzes) explains that Rashi
inferred his explanation from the fact that the Gemara uses the introductory
phrase "Ta Shema" and not "Meisivei," the phrase that it uses when it asks
from the Mishnah. Rashi learns from this that the Gemara is not presenting a
new question on Rav Yehudah, but rather it is strengthening the question
that it asked on Rav Yehudah from our Mishnah. (However, we often find that
the Gemara introduces its first question with the word "Meisivei" and then
introduces its second question with the words "Ta Shema.")
The most straightforward explanation for Rashi's words, however, is what the
Rosh later adds, when he writes that he found manuscripts in which the
Gemara here states that we see from the Beraisa that "Rochev *too* is
Koneh." (This is also the Girsa of a number of manuscripts cited by the
DIKDUKEI SOFRIM.) Accordingly, Rashi is explaining why the Gemara says that
we see that Rochev is also Koneh, when it should have said that *even*
Rochev is Koneh. Rashi explains that the Gemara means to stay that even when
one is riding the animal at the same time that the other person is leading
it, the Manhig is not the only one who is Koneh the animal, but the Rochev
is also Koneh it, as the Gemara earlier attempted to prove from our Mishnah.
(See also the GILYON cited by the Shitah Mekubetzes who suggests another
approach, and KETZOS HA'CHOSHEN 269:4.)