English translation — עקב ג

A.

From that which the Above said to Moses¹

(by the second tablets²

("<b>Hew for yourself </b>two tablets of stone like the first" learns the Gemara³,

that "the chips shall be yours."

In the Mishnah at the end of tractate Bava Kamma⁴

are brought the laws of a worker who does a certain craft for the homeowner and there is waste from the thing in which he works – whether it is his or it belongs to the homeowner: says the Mishnah "The lint that the launderer removes, behold these are his, and that which the comber removes, behold these are of the homeowner":

therefore it belongs to the launderer; but that which the one who “combs” removes through combing belongs to the homeowner,

because “it is a significant thing and he does not forgo it”&lt;sup&gt;5&lt;/sup&gt;].

Further the mishnah brings other cases,

when this is the launderer’s and when it is the homeowner’s: “What the carpenter removes with the adze

(which are very thin splinters)

behold these are his,

and with an axe

(which is with a "hammer and produces thick splinters"⁵)

of the homeowner,

and the Mishnah concludes "and if he was working at the homeowner's, even sawdust⁶

("even the very fine [dust] that comes out from under the drill, which is very fine"⁵)

belongs to the homeowner."

and the Gemara questions this and brings a baraitha: "The Sages taught: Stone hewers have no [violation of] theft in them" –

On this baraitha the Rebbe Maharash

(in a brief note⁷,

at a siyum on tractate Bava Kamma)

asks

(on the law "Stone hewers have no [violation of] theft in them")

and his language: "And one must say, if so, what did the Holy One, blessed be He, say to Moses: 'Hew for yourself' since there is no theft in them, and the explanation is because they are ownerless and do not belong to the owners, and the craftsman is closer to this, and if so why must it say 'Hew for yourself'",

and he answers "But there⁸

sapphires⁹

and here it says stones

An ordinary but there was a precious stone.

And seemingly,

the explanation of the Rebbe Maharash – that by the “chippings” of the tablets one must come to the announcement

(permission)

of “Carve for yourself” because they were of “sapphire” – depends,

on the two opinions in the midrash¹⁰

: “Rav Levi and Rabbi Yochanan say¹¹

From where did He carve them? One says from under the Throne of Glory He carved them,

and one says from within his tent,

he created for himself a quarry and from there he quarried two stone tablets and took the waste and from there he became wealthy because they were of sapphire” – according to the first opinion the tablets were from above,

and according to the second opinion the quarrying was below¹²

that the command was “Carve for yourself two stone tablets like the first” and afterwards – “<b>And ascend </b>to Me on the mountain” and so is also the order in the verse at the fulfillment of the command¹³

“And I made an ark of acacia wood and I carved two stone tablets like the first

And I went up on the mountain and two tablets in my hand

(And the same is in Parshat Tisa)

And according to the opinion that the hewing

(and their smoothing)

of the tablets Moses did above,

one need not come to the explanation that because it was sapphire therefore the Almighty had to say "Carve for yourself"

– for the law is indeed

(as brought earlier from the Mishnah)

that "if he was working at the homeowner's" it belongs in any case to the homeowner;

4.

5.

That even if there were "plain stones",

not any sapphires,

since Moshe did this above "by the Owner" – the Holy One, blessed be He,

one must have the permission of "Hew for yourself" that "your hewn stone"

(Because were it not for this,

the law is that "behold these belong to the Owner").

B.

In the aforementioned list he continues,

that the Rashbatz asked "regarding above, it does not occupy space even a precious stone" and the Rebbe Maharash answered "behold he made them <b>below</b>,

for those above there was no waste"¹⁷,

and consequently falls

Also [it] answers the aforementioned question because he was not "working in the house of the master".

It is, however, still difficult,

because also below – everywhere – it is indeed "in the house of the master"

(the Holy One, blessed be He),

"the whole earth is full of His glory",

and in the language of our Sages

(and &lt;b&gt;in law&lt;/b&gt;)

"wherever something is, it is in the treasury of the Merciful One&lt;sup&gt;18&lt;/sup&gt;

as it is written: 'The earth is the Lord's and its fullness'"*&lt;sup&gt;18&lt;/sup&gt;

so even when "he made them below",

the carving of the tablets was "in the house of the master"&lt;sup&gt;19&lt;/sup&gt;,

so is it indeed necessary [to have] the special permission of "Carve for yourself" also for ordinary stones – so what is the explanation of the Rebbe Maharash's answer?

And although that on the contrary,

in the case of "BaHa"B" – HaKadosh Baruch Hu,

is not applicable the reason of "&lt;b&gt;kapeid &lt;/b&gt;BaHa"B

(even for the finest vessels)

because regarding HaKadosh Baruch Hu there is indeed no thing that occupies space and it is not applicable any kapeid

(no difference between precious stones and ordinary stones

(and as the question of the Rashbatz))

– is however there a difference if "they made below"&lt;sup&gt;21&lt;/sup&gt;,

because &lt;b&gt;below &lt;/b&gt;one considers oneself as the matters

(and laws)

are from the side of below,

which

Therefore is "every&lt;sup&gt;22&lt;/sup&gt;

thing that is for the sake of the God the good shall be from the beautiful and the good etc. and so it says all fat to Hashem'"*&lt;sup&gt;22&lt;/sup&gt;

must indeed seemingly turn out that even with ordinary stones,

since that it is "by BaHa"B" – HaKadosh Baruch Hu,

is behold these are of BaHa"B – when it is in the domain of BaHa"B kapeid BaHa"B on everything&lt;sup&gt;23&lt;/sup&gt;

(And furthermore – since everything that the Holy One, blessed be He, created in His world, He did not create a single thing in vain&lt;sup&gt;24&lt;/sup&gt;,

then seemingly the question is the opposite: the Almighty is particular about everything).

3.

Seemingly, one could say that regarding stone hewers, the law of the Mishnah "And if he was working in the homeowner's [premises], even the sawdust belongs to the homeowner" does not apply,

and the proof: the baraita "Stone hewers have no [violation of] theft" is brought in the Gemara not on that part of the Mishnah where it discusses the details of the laws whether it is "his" or "the homeowner's",

but on the conclusion of the Mishnah "And if he was working in the homeowner's [premises], etc."&lt;sup&gt;25&lt;/sup&gt;

From this it is understood,

that that which "stones that are scattered have no issue of theft" is

not only when the worker works at his own [place],

but also "if he was working at the homeowner's [place]"

(like the other cases in the baraisa "those who trim trees, those who trim vines, etc." where the work is indeed simply in the vineyard

(domain)

of the homeowner,

"at the homeowner's [place]").

And based on this it is simply understood what the Rebbe Maharash says,

that that which it was necessary to come to "Pesal Lecha" is because the tablets were of sapphire,

for by ordinary stones there is no difference whether it is in the domain of the worker or in the domain of the homeowner,

always "there is in them [no issue] of theft."

This is however forced,

because the &lt;b&gt;reasoning &lt;/b&gt;to distinguish between the work that the worker does at the homeowner's or not,

also applies to hewn stones – so why should it be different by hewn stones

(and especially since no posek fails to say that by hewn stones the law that "if he was working at the homeowner's, even the sawdust belongs to the homeowner"&lt;sup&gt;26&lt;/sup&gt; does not exist).

Further: also in the list he is precise "and the craftsman is closer to this",

for ostensibly the explanation in this is,

that also that which "stones that are smoothed have no [prohibition of] theft" is specifically when this is not "by the homeowner",

because if it also concerns with the permission of the homeowner, it is not fitting to say "the craftsman is closer to this".

4.

And it will be understood with an introduction to explain the distinction that is found between the laws as they

They stand in the aforementioned baraisa and as they stand in the Tosefta:

In the baraisa they are divided,

as above,

into two cases and laws: "One who clears stones [from his field], there is no [violation of] robbery in them; one who prunes trees, one who prunes vines, one who cuts down hyssop, one who weeds seeds, and one who hoes vegetables—when the owner is particular about them, there is [a violation of] robbery in them; [when] the owner is not particular about them, these are his"; in the Tosefta they all stand together,

in <b>one</b> case and law: "One who clears stones, one who prunes vines, one who cuts down the hyssop, one who weeds seeds—when the owner is particular about them, they are forbidden because of robbery; [when] the owner is not particular about them, they are permitted regarding robbery."

There is a dispute between them whether regarding "one who breaks stones" the objection of the homeowner helps – what is the reason for the dispute?

And to note that in the Tur*²⁶

(Although he also brings the law regarding "those who trim trees" and "those who hoe vegetables" which is stated only in the Baraisa and not in the Tosefta),

he says however

(according to the Tosefta)²⁷

regarding "one who breaks stones" it depends on the objection of the homeowner.

And the explanation in this: according to the Baraisa there is a distinction between "one who breaks stones" and the other cases – "those who trim trees" etc. "those who weed seeds",

because the waste from "those who trim trees etc." has more importance than from "one who breaks stones"; and therefore this depends on the objection

Owner: "At a time when the owner is particular about them, they have the status of theft; if the owner is not particular about them, these are his."

that the custom

(of the people)

of the country there is not to be particular about this insignificant thing, then even when a private owner is particular – his opinion is nullified²⁸,

because the way of people in that place is that they are not particular] ²⁹.

What in this case,

when it depends on the owner's being particular,

and the owner is not particular,

there are two rationales³⁰

why the thing is permitted – either because his not being particular is as if he had abandoned ownership,

in which case it must be ownerless property for every person,

not only for the worker or a private individual³¹

; or it is in the manner of a gift,

since it is an insignificant thing,

the owner is gracious and gives to anyone who will take it,

even without his knowledge³².

But “stones that crumble” that the language of the baraita is “they are not subject to [the prohibition of] theft,”

is the importance of the stone fragments

less than regarding “those who break off branches from trees,”

by them one does not need to come to the permission of “the owner does not care about them,”

but from the aspect of the lowliness of importance they are ownerless from themselves,

i.

e.

they have no importance and value among people, they are ownerless automatically and consequently*&lt;sup&gt;32&lt;/sup&gt;

(and therefore even when there is an owner who is particular, his opinion is nullified,

and not only from the aspect and regarding the opinion of all people,

but because essentially there is no ownership over it from the aspect of the non-importance of the thing)&lt;sup&gt;33&lt;/sup&gt;,

as is precise in the list: &lt;b&gt;And he explained: Because they are ownerless and do not belong to the owners&lt;/b&gt;.

In a slightly different style: in the case of those who strip trees and the like,

where it depends on the stringency of the homeowner

(or on the &lt;b&gt;custom &lt;/b&gt;

(of the people)

of the place),

the definition of ownerless property

(or

a gift)

is from the perspective of the person,

but the thing itself has a certain importance; unlike the law in "there is in them [a violation of] theft" regarding one who cuts stones

(and similarly regarding hops and grass),

it is ownerless from the perspective of the object.

5.

Based on this, one can say,

that this is the reason for the dispute between the Baraisa and the Tosefta which says that the crushing of stones depends on the objection of the homeowner.

And with an introduction:

The general difference between Baraisa and Tosefta,

as is explained in the commentators on the rules of the Talmud³⁴

is,

that "the Tosefta is that which was added to the Mishnah, therefore it is not written in the language of 'Tanya' nor in the language of 'Tanu Rabbanan' etc., for the Toseftas are what Rebbi Chiya arranged before Rebbi, and he would say to him: write thus and thus, and that is what we say: Rebbi did not teach it, from where did Rebbi Chiya have it?

And Baraisos are Mishnayos that were said without Rebbi's knowledge, except from his exposition etc."

"And thus Rebbi Chiya and Rebbi Elazar and other Sages compiled,

Baraisos, meaning the language of 'bara' (outside), that they were said outside of Rebbi's exposition"³⁵.

Based on this it comes out,

that the Tosefta which R. Chiyya arranged before Rebbe was said in Eretz Yisrael

(where the yeshiva of Rebbe was),

but the baraitot which are "outside the study hall of Rebbe" could be that these were studied in Babylonia

(and especially since R. Chiyya came from Babylonia³⁶),

and in general it is logical that the baraitot have more connection to Babylonia,

for in the days of Rebbe "Israel were scattering

and going to the ends [of the earth] etc."³⁷,

and Babylonia then became even more a place of Torah.

And behold – on the verse

"Come, let us make bricks, etc. and the brick served them as stone," Rashi says "because there are no stones in Babylon, for it is a valley."

Therefore, in Babylon,

where they did not use stones

(they were not common),

the leftover pieces of stones

(from the stones that were brought there <b>when</b> they were brought)

had no importance,

and therefore the baraisa says that stones that are hidden have no prohibition of theft,

they are inherently ownerless

(in Babylon),

and one who is particular [about them] his opinion is nullified.

In the land of Israel, however,

where stones are a common thing,

they use them for building and other uses,

and on the contrary,

the land of Israel is praised that it is "a land whose stones are iron,"

the pieces of stones also have importance,

like the prunings of vines, etc.,

and therefore their prohibition and permission

depends on the owner's being particular.

6.

Based on this one will also understand the above list of the Rebbe Maharash:

Since Jews were then travelers in the desert where it is not customary

(Although stones are mentioned regarding them — for example regarding the wood gatherer&lt;sup&gt;43&lt;/sup&gt;)

to use stones&lt;sup&gt;39&lt;/sup&gt;

(And especially building — they did not build any permanent buildings,

since they were traveling and encamping and traveling etc.)

applies to this the rule “Stones that one hews from the ground are not subject to the prohibition of theft”:

“And the explanation is because they are ownerless and do not belong to the owners,”

They are completely ownerless from the perspective of the object

(Not only from the perspective that the owner is particular — the person)

As above,

Now, because of what did one need to come to “Carve for yourself,”

“The rejected ones of yours shall be”?

To this the answer is “There it is sapphires and here it says stones simply,”

And by sapphires the law of theft does not apply to them,

As with hewn stones which have no importance.

For the rejected ones of sapphires have importance,

As understood⁴⁴,

And therefore it is understood why one must come to “Said the Holy One, blessed be He, to Moses: Carve for yourself.”

is

(not regarding the Above

(the homeowner)

– because here the law of "by the homeowner" does not apply,

as above – but)

from other &lt;b&gt;human beings&lt;/b&gt;,

for which the craftsman is

(specifically)

automatically the acquirer].

7.

Another explanation that can be said regarding the permit of "a defect with you" by the tablets:

That which it was necessary to arrive at the heter of "Pesel lecha" is not because their "pesultan" belongs to the homeowner

(to the One above),

but because the tablets had

(to be located in the Ark in the Mishkan,

and like all matters of the Mishkan and Mikdash, also the tablets)

had to belong to the public⁴⁵

(It must be transmitted to the public well, well⁴⁶,

the transmission after the making,

or she had from the outset,

also before the making,

had to belong to the public⁴⁷)

The making must be on behalf of the public⁴⁸

And as is also understood from the continuation of the Gemara⁴⁹

"The Torah was given only to Moshe etc., as it is said: 'Write for yourself, carve for yourself; just as their carvings are yours, so too their writings are yours,'"

which regarding "their writings" speaks about the "pilpul" of Torah

(as the Gemara explains)

this was given to Moshe and not to the public,

thus it is understood regarding "Carve for yourself" — "their carvings are yours."

And even though the carvings of the tablets,

also were of sapphire,

since they belong to the entire Jewish people⁵⁰,

and consequently there is no [minimum value of] a perutah for each individual⁵¹,

and the "not

That "do not steal" does not apply except to the value of a perutah, because the Torah does not obligate except for something of monetary value, and less than the value of a perutah is not called "money"⁵²

– it is obvious that it is forbidden to steal public property in any case⁵³,

and it is obvious that regarding this one cannot say "there is no element of theft"⁵⁴,

because it is "forbidden⁵⁵

to steal or

to rob anything at all by Torah law"⁵⁶.

8.

The inner explanation in this

(That we find differences in the ownership of the second tablets – that the tablets in general belong to the community,

to all of Israel,

and their waste was given to Moses "your waste shall be")

: In the giving of the Torah that was given in the second tablets there is the innovation,

as the Gemara continues

(as brought above)

Just as your waste is yours, so too your writing is yours,

that pilpula de'oraita was given to Moses.

And it can be said that this is the inner reasoning of the words "Behold they made them below, that in those of above there was no waste": Torah as it is from the aspect of above,

which in general is like Torah as it is from the aspect of the first tablets,

is in the category of unity – there is no division,

and all the more so no concept of waste

(rather – entirely face).

As Torah comes down below,

which in general is the subject of the second tablets

(which were given after the repentance on the sin of the calf,

i.e.,

that is,

that the repentance of Israel effected, as it were, above that they should give <b>them</b> the tablets⁵⁷),

comes the concept of the division of levels in Torah⁵⁸,

until a concept of their waste

as it were

(face and back)⁵⁹.

the explanation of the connection between "your refuse" and "your writing" – pilpula de'oraita⁶⁰

– pilpula

The Torah that was given to Moses is indeed a lofty matter,

completely opposite from the waste of the tablets: through the second tablets the matter of toil in Torah was revealed,

as explained at length in Chassidus⁵⁹,

that also in this there are two opposite matters: the matter of toil comes from the side of concealments and coverings and difficulties etc.,

which is waste relative to the essence of the intellect of the Torah; but on the other hand,

specifically through toil in Torah one arrives at the core and essence of the Torah,

higher than Torah is in its own right,

as it was given above from the side of the first tablets,

as explained there at length⁶¹.

And this is the matter of pilpul of Torah that was given to Moses⁶²,

the Gemara calls this "pilpul <b>in general</b>",

on the other hand they say that this is "understanding and sharpness"⁶³

in Torah,

a most lofty and high level in the comprehension of Torah,

which "was given to Moses and he dealt generously with Israel"⁶⁴.

(From the talk of 20 Menachem Av 5724)