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Bava Kama, 63
1) EXCLUDING "AVADIM" FROM THE LAW OF "TASHLUMEI KEFEL"
QUESTION: The Gemara asks why are all of the specific exclusions in the
verses of Tashlumei Kefel necessary ("Kol Hani Perati Lamah Li?"). It
answers that one "Perat" is necessary to exclude Karka (teaching that one
does not pay Tashlumei Kefel for stealing land), one "Perat" is necessary to
exclude Avadim, and one "Perat" is necessary to exclude Shtaros.
2) A "DAVAR SHE'EINO MESUYAM"
Since there is a special Mi'ut in the verse excluding Karka, and a special
Mi'ut excluding Avadim, from the law of Tashlumei Kefel, why does the Gemara
earlier (62b) say that the reason Avadim are excluded is because of the
Hekesh that compares Avadim to Karka? Even if there were no such Hekesh,
Avadim would still be excluded because of the explicit "Perat" in the verse!
ANSWER: The RASHBA answers that if the verse would have mentioned
"Karka'os," "Avadim," and "Shtaros" explicitly when teaching the exceptions
from the law of Tashlumei Kefel, then, indeed, we would have had no need for
a Hekesh of Avadim to Karka'os. However, they are *not* written explicitly
in the verse. Rather, the exclusions of Karka'os and Shtaros are derived
through Mi'utim: one "Perat" teaches that only something that is movable
("Davar ha'Metaltel") is included in Tashlumei Kefel, thus excluding land,
which is not movable. Another "Perat" teaches that only something that
itself has monetary value ("Gufo Mamon") is included in Tashlumei Kefel,
thus excluding Shtaros which have no intrinsic value of their own. How,
though, are Avadim excluded? Avadim *are* movable, and they *do* have
intrinsic monetary value, and thus they *should* be included in Tashlumei
Kefel! Therefore, it is necessary to have a Hekesh that compares Avadim to
Karka, for without the Hekesh, we would not have known that the third
"Perat" is intended to exclude Avadim.
QUESTION: However, according to this, the opposite question arises. If we
only know that Avadim are excluded from Tashlumei Kefel because of the
Hekesh to Karka, then why is a special Mi'ut in the verse necessary at all
for Avadim? (RASHBA, TOSFOS)
(a) The RASHBA answers that since there is a difference between Karka and
Avadim, in that Karka is immobile while Avadim are immobile, we might have
thought that we should not apply the Hekesh. Therefore, the verse adds a
Mi'ut to exclude Avadim from Tashlumei Kefel.
(b) The Rashba answers further that since the verse also teaches a Ribuy
(words to *include* an additional category of items in the laws of Tashlumei
Kefel) and it might mean that we are to include all items, it was necessary
to have a special Mi'ut for each category of items (Karka'os, Avadim,
Shtaros) on its own. This is also the answer of TOSFOS (DH v'Chad
The TOSFOS YOM TOV (Bava Metzia 4:9) writes that this explains an oddity in
the wording of the Mishnah there, where it lists, "Avadim, Shtaros, and
Karka'os," when it should have listed, "Avadim, Karka'os, and Shtaros"
(placing Avadim together with Karka'os, since there is a Hekesh that
compares them). The reason why the Mishnah separates Avadim from Karka'os is
to show that Avadim are excluded on their own accord, by their own special
Mi'ut in the verse, and not by virtue of their Hekesh to Karka'os.
OPINIONS: The Gemara teaches that the word "Salmah" ("garment") in the verse
(Shemos 22:8) teaches that one does not pay Tashlumei Kefel for an item that
is a "Davar she'Eino Mesuyam." What does the Gemara mean by a "Davar
(a) RASHI explains that a "Davar she'Eino Mesuyam" is an item which has no
identifiable feature ("Siman") for the owner to use as proof that the item
is his. When a Ganav steals such an item, he is not required to pay
TOSFOS challenges this explanation by asking what difference should it make
for the law of Tashlumei Kefel whether or not the item has an identifiable
feature? What logical reason is there to say that the Ganav should not pay
The ME'IRI explains that Rashi means that the verse is referring to a person
who was watching a lost item that he found, who then claims (when the owner
comes to reclaim his item) that the item was stolen from him ("To'en Ta'anas
Ganav"). Even though the continuation of the verse obligates such a person
to pay Kefel ("Al Kol Aveidah"), he only pays Kefel when the lost item had a
"Siman" by which the owner could have otherwise reclaimed his lost item. The
logic behind this is that a person who finds an item that has no "Siman" has
no obligation to return the item to its owner, and thus he does not have the
status of a "Shomer Aveidah," and, consequently, the law of "To'en Ta'anas
Ganav" does not apply to him (CHIDUSHEI HA'RAN, Bava Metzia 25a, cited by
(b) TOSFOS, citing the RIVA, and other Rishonim explain that a "Davar
she'Eino Mesuyam" is an item that has no measurable volume, weight, or other
measure. The Mishnah in Shevuos (42b) teaches that one makes a Shevu'ah of
"Modeh b'Miktzas" only when one admits partial liability for an item that is
*measurable*. Our Gemara is deriving from the verse that if one claims from
his friend, "I gave to you a house full [of items to watch]," and his friend
claims, "What you left here is yours to take," without admitting to owing a
specific measure or amount, then no Shevu'ah of "Modeh b'Miktzas" is made,
and if the defendant claims that whatever was given to him was stolen and he
is found to be the Ganav, he does not pay Kefel (that is, the verse refers
to both the Halachah of Shevu'ah for "Modeh b'Miktzas" and the Halachah of
Kefel; RASHBA). (This is in contrast to a case where the claimant says, "I
gave you a house full [of items to watch], up to the window," and the
defendant says, "[The items only reached] up to the pipe [below the level of
the window]," which *is* a case of a "Davar Mesuyam" in which the defendant
must make a Shevu'ah of "Modeh b'Miktzas.") The RA'AVAD (cited by the Shitah
Mekubetzes), however, writes that "Salmah" in the verse is a Mi'ut only with
regard to the Halachah of a Shevu'ah of "Modeh b'Miktzas," but not with
regard to the Halachah of Kefel.
The RASHBA adds that the verse is excluding a Shomer who is "To'en Ta'anas
Ganav" for an object that has no measure from paying Kefel, because a Shomer
does not make a Shevu'ah for such an item. In contrast, a normal Ganav who
steals an item that has no measure *does* pay Kefel, since his obligation to
pay does not depend on a Shevu'ah (unlike a Shomer who is "To'en Ta'anas
(c) TOSFOS and the RASHBA cite an additional explanation. They explain that
"Davar she'Eino Mesuyam" refers to an item that is not a *complete* item. If
a Ganav steals, for example, half of a fruit or half of a nut, he has no
obligation of Tashlumei Kefel. According to this explanation, the Mi'ut of
the verse of a "Davar she'Eino Mesuyam" from the law of Tashlumei Kefel is
referring not just to "To'en Ta'anas Ganav," but to a normal case of
Geneivah as well.
REBBI AKIVA EIGER (in GILYON HA'SHAS here) points out that Tosfos in Shabbos
(93b, DH Amai) states that the law of Tashlumei Kefel applies for *any*
item, of any size, regardless of whether the item is complete or incomplete.
RAV ELCHANAN WASSERMAN zt'l, Hy'd, in Kovetz Shi'urim (Bava Metzia) explains
that Tosfos there is referring to a specific case of partners who stole an
ox, in which case each partner is obligated to pay Kefel for *half* of the
ox. Even Tosfos here would agree in such a case that one pays Kefel for
*half* of an item (half of the ox), since a *whole* item was stolen (the
ox); it is just that each Ganav is held accountable only for stealing half
of it, since they stole it together. In such a case, the Ganavim are not
exempt from Kefel.
(d) The RAMBAN in Bava Metzia (57b, DH Ha d'Tanu Rabanan) explains that a
"Davar she'Eino Mesuyam" refers to a half of a Kli which is not worth two
Ma'os of Kesef, and the verse is excluding such an item from the law of
Tashlumei Kefel when a Shomer makes a claim of "Ta'anas Ganav." This is
because the Shevu'ah made by a Shomer applies only to a Kli that is worth at
least two Ma'os of Kesef (this applies when the Kli is incomplete, because
for a complete Kli a Shomer makes a Shevu'ah even when it is worth less than
3) A "SHOMER'S" CLAIM OF "GENEIVAH"
QUESTION: The Gemara inquires what the source is for the Halachah that a
Shomer who falsely claims that the item that was deposited with him for
safekeeping was stolen, when he himself stole it ("To'en Ta'anas Ganav"),
must pay Tashlumei Kefel only when he made a Shevu'ah that the item was
stolen. The Gemara quotes the verse, "The householder (the Shomer) shall
come to the judges [that he did not send his hand upon the property of his
friend]" (Shemos 22:7). The Gemara asks that perhaps this means that he
approaches the court *not* for the purpose of making a Shevu'ah, but for the
purpose of "Din." RASHI (DH O Eino Ela l'Din) explains that this means that
the Shomer is brought to court by the owner of the item to make him pay (and
not to make a Shevu'ah), since a Shomer Chinam (one who does not receive a
wage for watching an item) must pay when he claims that the item was stolen.
It seems from the words of Rashi that the initial assumption of the Gemara
is that a Shomer Chinam cannot exempt himself from paying by making a claim
that the item was stolen. If he claims that the item was stolen, he must pay
the Keren (principle).
According to this, though, when do we ever have a case of a Shomer who will
have to pay Kefel for making a claim that the item was stolen, according to
the Gemara's assumption at this stage (that a Shomer pays the Keren without
a Shevu'ah)? If he pays only the Keren, then he does not pay Kefel, and yet
the Gemara teaches earlier that everyone agrees that a Shomer who makes a
claim of Geneivah must pay Kefel!
(a) The MAHARSHAL and MAHARAM write that Rashi's intention is not that the
Shomer must pay Keren now, when he claims that the item was stolen. Rather,
Rashi means that a Shomer Chinam who claims a "Ta'anas Ganav" is exempt from
paying altogether, and if witnesses come later and testify that the Shomer
himself stole the item, he must then pay Kefel, *even without a Shevu'ah*.
This is the intention of Rashi here, and it is also what Rashi writes in
Bava Metzia (41b).
(b) The MAHARSHA does not accept this answer, though, because Rashi's use of
the word, "l'Pira'on" ("for compensatory payment"), implies that he is
referring to a Shomer who is paying the Keren. Instead, the Maharsha
explains that Rashi's intention is that the Shomer Chinam indeed pays the
Keren now, and, nevertheless, if it is discovered later that he is the
thief, he must pay Kefel because of the Gezeiras ha'Kasuv.