[bm 38a: We begin at the mishna on the third line.]

Mishna: If one deposits fruits, even if they are getting destroyed [Rashi: by mice or by spoiling], he (the custodian) should not touch them [i.e., should not sell them]. Rabban Shimon ben Gamliel said: He sells them under the supervision of the court, be cause he is like a person returning a lost object.

Gemara: What is the reason [behind the Rabbi's position that the custodian should not sell the items]? Rav Kahana said: A person prefers a kav (a measure of volume, about 2.2 liters) to nine kabim of his friend's [i.e., even the small remainder of one's o wn produce is preferred over what might be purchased from someone else with the proceeds of the sale]. And Rav Nachman bar Yitzchak said: We are concerned that the depositor may have set these aside as t'rumah and ma'aser (for produce grown) in another pl ace.

[Produce grown in Israel cannot be eaten until t'rumah and ma'aser have been separated. T'rumah (one part in fifty) is given to a kohen. One tenth of the remainder (ma'aser rishon, the "first tenth") is given to a Levi. Depending on the year, a tenth of t he remainder is set aside either as ma'aser sheni (the "second tenth") which must be eaten in Jerusalem, or as ma'aser ani ("the poor people's tenth") which is given to the poor. Rav Nachman bar Yitzchak's concern is that the deposited fruit might have be en set aside for the kohen, and would be forbidden to any non-kohen.]

They [the rabbis] asked (based on a b'raita): If one deposited fruit, he (the custodian) may not touch them; therefore, the owner can set them aside as t'ruma and ma'aser. This is consistent with Rav Kahana [whose rationale was that a person prefers a kav of his own fruit] -- that is why the b'raita used the term "therefore." [_Because_ we know that a person prefers his own kav, the owner can set aside the fruit as ma'aser and assume that it will not be sold.] But according to Rav Nachman bar Yitzchak, wh at is the meaning of "therefore" (in the b'raita)?

[The gemara answers:] This is what it (the b'raita) says: Now that the Rabbis said he (the custodian) may not sell, because we are concerned [that the owner set it aside as t'rumah and ma'aser] -- _therefore_ the owner can set it aside as t'rumah and ma'a ser on another place.

Rabbah bar bar Chana said in the name of R. Yohanan: The disagreement (in the mishna between the Rabbis and Rabban Shimon ben Gamliel) applies only when the produce has not yet reached it's expected level of loss, but if it has exceeded its expected level of loss, everyone agrees that he (the custodian) sells it under court supervision. [We will see in the mishna on 40a what the expected level of loss is for produce kept in storage.]

This (R. Yohanan's "level of loss" position) clearly conflicts with Rav Nachman bar Yitzchak [since level of loss would have no impact on the concern that the produce may have been set aside as t'rumah]. But does it conflict with Rav Kahana [whose rationa le was that a person prefers his own kav]? Perhaps Rav Kahana's rationale applies only when the produce has not yet reached its expected level of loss [but, if the level of loss exceeds the expected level, Rav Kahana might agree that the produce should be sold].

[The gemara objects:] But he (Rav Kahana) explicitly stated that a person prefers one kav of his own over nine kavim of someone else's [certainly much more than any expected level of loss].

[The gemara answers that Rav Kahana's statement was] only an exaggeration [and, in fact, if the spoilage exceeded the expected level of loss, Rav Kahana would agree that the produce should be sold.]

[Our mishna recorded a disagreement over whether a custodian can sell deposited items that are being depleted or spoiling; the Rabbis said that he cannot, and Rabban Shimon b. Gamaliel said that he should. R. Yohanan explained that the mishnaic dispute ap plies only when there is minimal spoilage; if spoilage or depletion is unexpectedly substantial, the Rabbis agree with Rabban Shimon b. Gamliel that the deposit should be sold.]

The rabbis asked [based on a b'raita that states]: Therefore [because the custodian cannot sell deposits that he is holding], the owner can set it (produce that has been deposited with a custodian) aside for ma`aser and trumah (for produce grown) in anoth er place.

[Recall our previous discussion: ma`aser (10% of the produce) and trumah (2% of the produce) must be set aside by the grower for consumption by Levites and Kohanim respectively. Until this is done, the remaining produce is "tevel" and cannot be consumed. Moreover, trumah can be eaten only by kohanim and members of their households. Normally, these tithes would be taken directly from the main body of produce. In the present case, it is assumed that the grower may have deposited produce grown in one place a nd then declare them to be ma`aser and/or trumah for crops grown elsewhere. There is a dispute on whether this is permissible in the case of trumah, (Mishnah Trumot 4:3) but that issue is not raised here.]

But shouldn't we be concerned that the depletion and spoilage is greater than expected, so that (when it is sold) the owner will be eating tevel?

[According to R. Yohanan, the custodian could sell the produce under such circumstances. The objection is that if the owner sets aside the deposited produce as ma`aser and/or trumah, his "set-aside" would be meaningless if it had already been sold by the custodian, and he would unwittingly end up eating tevel.]

[The gemara answers:] Spoilage beyond expectations is unlikely (and therefore we need not be concerned about it).

And what if it does happen [i.e., if there _is_ spoilage beyond expectation]? Shall we sell it [as R. Yohanan ruled? Shouldn't we be concerned lest the owner set it aside as trumah [and the non-kohen buyer will eat it?]

[The gemara answers:] We sell it to kohanim for the price of trumah. [Trumah can be consumed only by kohanim and must be kept in a state of ritual purity until it is eaten, so it is not in general demand and is therefore sold at a reduced price.]

And according to Rav Nachman bar Yitzchak [who said that the Rabbis prohibited the sale by the custodian because the owner might set it aside for ma`aser and/or trumah], couldn't we also sell it only to kohanim?

That is precisely the dispute. Rabbah bar bar Chana [who had cited R. Yohanan, and who permits the sale by the custodian] holds that spoilage beyond expectation is rare, and if it does happen, it is only after a long storage period, so we can assume that if the owner set it aside for ma'aser and/or trumah, he did so before it spoiled -- therefore, if it spoiled beyond expectation, he (the custodian) can sell it to kohanim for the price of trumah.

And Rav Nachman bar Yitzchak [who prohibits sale by the custodian] holds that unexpected depletion or spoilage is common, and when it happens, it happens immediately. And if you say that we can sell it, the custodian may sometimes sell it quickly, and if the owner sets it aside as trumah and ma`aser for (produce grown in) another place, he will not know that is has already been sold [making his "set-aside" meaningless], and he will be eating tevel.

[Again, the gemara will consider R. Yohanan's position that the disagreement between the Rabbis and Rabban Shimon ben Gamliel about whether a custodian should sell produce that is being depleted or spoiling applies only when the depletion or spoilage is w ithin normal limits. R. Yohanan holds that, if spoilage exceeds normal expectations, everyone agrees that the custodian should sell it to limit the owner's loss.]

The sages asked (citing a b'raita): If one deposited produce and it spoiled, or wine and it turned into vinegar, or oil and it turned rancid, or honey and it turned sour, he (the custodian) may not touch them; these are the words of R. Meir. The Rabbis sa id that he should remedy the problem and sell it in the presence of the court, and when he sells it, he must sell it to others, not to himself. Similarly, charity administrators, when there are no poor people to whom to distribute the charity, should exch ange [small copper coins for silver coins] with other people, but not exchange it themselves. [Rashi: the smaller copper coins might become moldy and lose value.] And administrators of the tamchuy [a communal system for distributing food to the poor] shou ld sell to others, but not to themselves.

[The gemara now explains the question:] The b'raita taught about produce to spoiled. How so? Does it not refer to a case in which it spoiled more than might be expected [thus contradicting R. Yohanan, who ruled that in such a case, everyone agrees that th e produce should be sold]?

[The gemara answers:] No, it refers to a case in which the produce is spoiled only to its expected level. [And the b'raita could well be consistent with R. Yohanan's position that everyone agrees that it should be sold in the case of excessive spoilage.]

But there were the cases of wine which fermented into vinegar, and oil which became rancid, and honey which soured, all of which are beyond expected levels of spoilage? [Given the nature of these products, any spoilage is likely to be extensive. By analog y, we assume that the spoiled produce referred to in the b'raita cannot be sold even after it has been spoiled extensively.]

[The gemara answers:] These cases (wine, oil, and honey) are different (from produce); once they are spoiled, they are spoiled. [There will be no additional spoilage, so sale by the custodian will not prevent further spoilage.]

[The b'raita said:] Oil that became rancid and honey that soured. What good are they? [Why would anyone buy them?] Oil (can be used] by leather workers, and honey as a balm for camels.

[The b'raita:] The Rabbis said that he should correct the situation and sell it in the presence of the court. How can he correct the situation [if the wine, oil or honey is already spoiled]? Rav Ashi said: For the containers. [By selling the spoiled conte nts, the custodian will prevent spoilage of the containers.]

On what do R. Meir and the Rabbis disagree? [Why does R. Meir in the b'raita forbid the sale of spoiled produce?] One master (R. Meir) holds that we are concerned about a major loss [i.e., loss beyond reasonable expectation], but not a minor loss [loss th at is less than normal expectation, or loss of the containers]. And the other master [the Rabbis] were even concerned about a minor loss [loss no more than normal expectations, or loss of the containers].

[We end at the two dots six lines from the top of 38b.]

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