The question that came up in Tosphot between David and me in Bava Metzia page 99a is whether the Gizbar knows the vessel is Hekdesh? It seems to me at this point that it makes no difference. As far as I can see if the Gizbar knows the Kli is Hekdesh and uses it he still is not intending to take it out of reshut of hekdesh. So he would be obligated in Meila bemezid in which case he gets makot and pays the keren of what he was "nehene." If he does not know and he thinks it is one of his own vessels then there he also in not intending to take it out of his domain and so pays Keren and 1/5 and brings a sacrifice.
This would I think depend on the argument between Tosphot and the Rambam whether the regular case that the Gemara says is of a Gizbar in tractate Meila is Mezid or Shogeg.
But then why in that law of the Gizbar why would there be an argment between the Rambam and Tosphot? Why can not both says that it can be either one, shogeg of Mezid?
Perhaps to the Rambam it has to be Mezid because he does not hold of Shinuy Reshut in Meila? I mean is it possible that his opinion about Meila in general that it refers only to either getting benefit out of the Hekdesh object or damaging it might be the only reason he says the Gizbar has to be knowing it is Hekdesh? I can not see why this minute but maybe?
In any case the basic background here is the Tosephta and Mishna and Gemara in Bava Metzia and Tosphot in Bava Metzia page 99a
The basic Sugia is this. The Tosephta writes when one uses an ax of hekdesh one after the other they are all Moel. But when one gives it to his friend, only the first in Moel.
The Mishna writes there is no Moel after Moel except animals and kli sharet.
Another mishna writes a person that puts a wooden beam of hekdesh into his house is not Moel until he lives in it, but if he gives it to his friend he is moel right away.
Rav Ami in Bava Metzia page 99a says a המשאיל קרדום של הקדש לחבירו הוא מעל לפי טובת הנאה שבו וחבירו מותר להשתמש איתו מיד. One who loans an ax of hekdesh to his friend, is moel according to the amount of gratitude he recieves from his friend and his freind can use it right away.
Tosphot asks on this law of Rav Ami from the Tosephta and the Mishna.
In Tosphot are a few suggestions to answer this before Tosphot gets to the answers that he thinks are correct. One is this. There is a difference between כלי שרת and other vessels. I.e. the case of the תוספתא where there are multiple violations of meila on one קרדום is when the קרדום is כלי שרת. And another rejected answer is the difference between intending to steal the קרדום and just intending to use the קרדום. That is, the case of the Tosephta of multiple violations is when there was no intention to steal the קרדום but just to use it. But where there is intention to steal then only the first is Moel. Tosphot disagress with this because of the Gemara in Bava Metzia where Rav Ami says one who loans the ax to another is moel but not the one who recieves it.
Then Tosphot come to the two answers of the Ri that he likes. שינוי רשות.and that Rav Ami is talking about a Gizbar. That is שינוי רשות of th ax means the ax goes out to Hulin completely and even so the Gizbar only pays accoring to טובת הנאה שיש בו . The other answer is it is a Gizbar but the ax goes out to Hulin only according to the time set for the loan. After that the ax returns automatically to the reshut of Hekdesh.
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The question that came up in תוספות between David and me in בבא מציעא דף צ''ט ע''א is whether the גיזבר knows the vessel is הקדש? It seems to me at this point that it makes no difference. As far as I can see if the גיזבר knows the כלי is הקדש and uses it he still is not intending to take it out of רשות of הקדש. So he would be obligated in מעילה במזיד and in that case he gets מכות and pays the קרן of what he was .נהנה If he does not know that the קרדום is of הקדש and he thinks it is one of his own vessels, then there he also is not intending to take it out of his רשות and so pays קרן and חומש and brings a קרבן מעילה. This would I think depends on the argument between תוספות and the רמב''ם whether the regular case that the גמרא says is of a גיזבר in מסכת מעילהis מזיד or שוגג. But then why in that law of the גיזבר why would there be an argument between the רמב''ם and תוספות? Why can not both says that it can be either one, שוגג or מזיד? Perhaps to the רמב''ם, it has to be מזיד because he does not hold of שינוי רשות in מעילה? I mean to ask, is it possible that his opinion about מעילה in general that it refers only to either getting benefit out of the הקדש object or damaging it might be the only reason he says the גיזבר has to be knowing it is הקדש? I can not see why this minute, but maybe? In any case, the basic background here is the תוספתא and משנה and גמרא in בבא מציעא and תוספות in בבא מציעא דף צ''ט ע''א. The basic סוגיא is this. The תוספתא writes when one uses an קרדום of הקדש one after the other they are all מועל. But when one gives it to his friend, only the first is מועל. The משנה writes there is no מועל after מועל except animals and כלי שרת. Another משנה writes a person that puts a קרש of הקדש into his house is not מועל until he lives in it. But if he gives it to his friend, then he is מועל right away. רב אמי in בבא מציעא דף צ''ט ע''א says a המשאיל קרדום של הקדש לחבירו הוא מעל לפי טובת הנאה שבו וחבירו מותר להשתמש איתו מיד. One who משאיל a קרדום of הקדש to his friend, is מועל according to the amount of gratitude he receives from his friend, and his friend can use it right away. תוספות asks on this law of רב אמי from the תוספתא and the משנה. In תוספות are a few suggestions to answer this before תוספות gets to the answers that he thinks are correct. One possible answer is this. There is a difference between כלי שרת and other vessels. I.e. the case of the תוספתא where there are multiple violations of מעילה on one קרדום is when the קרדום is כלי שרת. And another rejected answer is the difference between intending to steal the קרדום, and just intending to use the קרדום. That is, the case of the תוספתא of multiple violations מועל אחר מועל is when there was no intention to steal the קרדום, but just to use it. But where there is intention to steal then only the first is מועל. But תוספות disagrees with this because of the גמרא in בבא מציעא where רב אמי says one who משאיל the קרדום to another is מועל but not the one who receives it. Then תוספות come to the two answers of the ר''י that he likes. שינוי רשות and that רב אמי is talking about a גיזבר. That is שינוי רשות of the קרדום means the קרדום goes out to חולין completely, and even so the גיזבר only pays according to טובת הנאה שיש בו . The other answer is also that it is a גיזבר but the קרדום goes out to חולין only according to the time set for the loan. After that the קרדום returns automatically to the רשות of הקדש.
I do recall that there were some people that commented on this argument between Tosphot and the Rambam. It seems to me if perhaps I can find out what they were suggesting, maybe I can see how that might apply to the ax also?
This would I think depend on the argument between Tosphot and the Rambam whether the regular case that the Gemara says is of a Gizbar in tractate Meila is Mezid or Shogeg.
But then why in that law of the Gizbar why would there be an argment between the Rambam and Tosphot? Why can not both says that it can be either one, shogeg of Mezid?
Perhaps to the Rambam it has to be Mezid because he does not hold of Shinuy Reshut in Meila? I mean is it possible that his opinion about Meila in general that it refers only to either getting benefit out of the Hekdesh object or damaging it might be the only reason he says the Gizbar has to be knowing it is Hekdesh? I can not see why this minute but maybe?
In any case the basic background here is the Tosephta and Mishna and Gemara in Bava Metzia and Tosphot in Bava Metzia page 99a
The basic Sugia is this. The Tosephta writes when one uses an ax of hekdesh one after the other they are all Moel. But when one gives it to his friend, only the first in Moel.
The Mishna writes there is no Moel after Moel except animals and kli sharet.
Another mishna writes a person that puts a wooden beam of hekdesh into his house is not Moel until he lives in it, but if he gives it to his friend he is moel right away.
Rav Ami in Bava Metzia page 99a says a המשאיל קרדום של הקדש לחבירו הוא מעל לפי טובת הנאה שבו וחבירו מותר להשתמש איתו מיד. One who loans an ax of hekdesh to his friend, is moel according to the amount of gratitude he recieves from his friend and his freind can use it right away.
Tosphot asks on this law of Rav Ami from the Tosephta and the Mishna.
In Tosphot are a few suggestions to answer this before Tosphot gets to the answers that he thinks are correct. One is this. There is a difference between כלי שרת and other vessels. I.e. the case of the תוספתא where there are multiple violations of meila on one קרדום is when the קרדום is כלי שרת. And another rejected answer is the difference between intending to steal the קרדום and just intending to use the קרדום. That is, the case of the Tosephta of multiple violations is when there was no intention to steal the קרדום but just to use it. But where there is intention to steal then only the first is Moel. Tosphot disagress with this because of the Gemara in Bava Metzia where Rav Ami says one who loans the ax to another is moel but not the one who recieves it.
Then Tosphot come to the two answers of the Ri that he likes. שינוי רשות.and that Rav Ami is talking about a Gizbar. That is שינוי רשות of th ax means the ax goes out to Hulin completely and even so the Gizbar only pays accoring to טובת הנאה שיש בו . The other answer is it is a Gizbar but the ax goes out to Hulin only according to the time set for the loan. After that the ax returns automatically to the reshut of Hekdesh.
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The question that came up in תוספות between David and me in בבא מציעא דף צ''ט ע''א is whether the גיזבר knows the vessel is הקדש? It seems to me at this point that it makes no difference. As far as I can see if the גיזבר knows the כלי is הקדש and uses it he still is not intending to take it out of רשות of הקדש. So he would be obligated in מעילה במזיד and in that case he gets מכות and pays the קרן of what he was .נהנה If he does not know that the קרדום is of הקדש and he thinks it is one of his own vessels, then there he also is not intending to take it out of his רשות and so pays קרן and חומש and brings a קרבן מעילה. This would I think depends on the argument between תוספות and the רמב''ם whether the regular case that the גמרא says is of a גיזבר in מסכת מעילהis מזיד or שוגג. But then why in that law of the גיזבר why would there be an argument between the רמב''ם and תוספות? Why can not both says that it can be either one, שוגג or מזיד? Perhaps to the רמב''ם, it has to be מזיד because he does not hold of שינוי רשות in מעילה? I mean to ask, is it possible that his opinion about מעילה in general that it refers only to either getting benefit out of the הקדש object or damaging it might be the only reason he says the גיזבר has to be knowing it is הקדש? I can not see why this minute, but maybe? In any case, the basic background here is the תוספתא and משנה and גמרא in בבא מציעא and תוספות in בבא מציעא דף צ''ט ע''א. The basic סוגיא is this. The תוספתא writes when one uses an קרדום of הקדש one after the other they are all מועל. But when one gives it to his friend, only the first is מועל. The משנה writes there is no מועל after מועל except animals and כלי שרת. Another משנה writes a person that puts a קרש of הקדש into his house is not מועל until he lives in it. But if he gives it to his friend, then he is מועל right away. רב אמי in בבא מציעא דף צ''ט ע''א says a המשאיל קרדום של הקדש לחבירו הוא מעל לפי טובת הנאה שבו וחבירו מותר להשתמש איתו מיד. One who משאיל a קרדום of הקדש to his friend, is מועל according to the amount of gratitude he receives from his friend, and his friend can use it right away. תוספות asks on this law of רב אמי from the תוספתא and the משנה. In תוספות are a few suggestions to answer this before תוספות gets to the answers that he thinks are correct. One possible answer is this. There is a difference between כלי שרת and other vessels. I.e. the case of the תוספתא where there are multiple violations of מעילה on one קרדום is when the קרדום is כלי שרת. And another rejected answer is the difference between intending to steal the קרדום, and just intending to use the קרדום. That is, the case of the תוספתא of multiple violations מועל אחר מועל is when there was no intention to steal the קרדום, but just to use it. But where there is intention to steal then only the first is מועל. But תוספות disagrees with this because of the גמרא in בבא מציעא where רב אמי says one who משאיל the קרדום to another is מועל but not the one who receives it. Then תוספות come to the two answers of the ר''י that he likes. שינוי רשות and that רב אמי is talking about a גיזבר. That is שינוי רשות of the קרדום means the קרדום goes out to חולין completely, and even so the גיזבר only pays according to טובת הנאה שיש בו . The other answer is also that it is a גיזבר but the קרדום goes out to חולין only according to the time set for the loan. After that the קרדום returns automatically to the רשות of הקדש.
I do recall that there were some people that commented on this argument between Tosphot and the Rambam. It seems to me if perhaps I can find out what they were suggesting, maybe I can see how that might apply to the ax also?
