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Bava Kama 104


(a) (Mishnah): It is not enough to give it to his son or messenger...
(b) (Rav Chisda): Reuven made Levi a messenger (to take what Shimon owes him) - he is considered a messenger (if Shimon gives it to Levi, Shimon is exempt, even if Reuven never gets it);
(c) (Rava): He is not considered a messenger.
1. Rav Chisda says, he is a messenger - this is why Reuven bothered to appoint him in front of witnesses!
2. Rava says, he is not a messenger - Reuven merely informs Shimon that Levi is trustworthy, if Shimon wants to rely on him he may.
(d) (Mishnah): David borrowed Moshe's cow; Moshe sent it with his own son, slave or messenger, or with David's son, slave or messenger, and it died on the way - David is exempt.
(e) Question: What is the case of (David's) messenger?
1. If he was not appointed in front of witnesses - (Rashi - we do not know if he was a messenger, why does the Mishnah call him a messenger? Tosfos - how did Moshe know that he was a messenger, that he sent the cow with him?)
2. Rather, he was appointed in front of witnesses (and still David is exempt - this refutes Rav Chisda)!
(f) Answer: As Rav Chisda said (below) - the case of the messenger is his housemate or hired help.
(g) (Mishnah): It is not enough to give it to his son or messenger.
(h) Question: What is the case of his messenger?
1. If he was not appointed in front of witnesses - we do not know if he was a messenger!
2. Rather, he was appointed in front of witnesses (this refutes Rav Chisda)!
(i) Answer (Rav Chisda): The case of the messenger is his housemate or hired help.
(j) Question: But if he was not appointed in front of witnesses, he would be a valid messenger?
1. If so, why does the end of the Mishnah say it suffices to give it to a messenger of Beis Din - rather, it should say, a messenger that Shimon (the owner of the stolen object) appointed in front of witnesses (to distinguish the 2 cases of Shimon's messenger)!
(k) Answer: The Mishnah prefers to speak of a messenger of Beis Din, for this always suffices (whether Reuven (the thief) or Shimon appointed him) - Shimon's messenger only works sometimes (if appointed in front of witnesses);
1. The Mishnah comes to argue on R. Shimon ben Elazar.
2. (Beraisa - R. Shimon ben Elazar): The thief is exempt in the following cases:
i. He gave the stolen object to a messenger of Beis Din who was appointed by the owner;
ii. The thief appointed a messenger of Beis Din, and a messenger of the owner took the stolen object from this messenger.
(l) (R. Yochanan and R. Elazar): A messenger made in front of witnesses is considered a messenger.
(m) Question: But the Mishnah does not allow giving it to Levi, the messenger of Shimon (the owner; presumably, Levi was appointed in front of witnesses)!
(n) Answer #1: Shimon did not appoint Levi as a messenger - he merely told him to appear in front of Reuven, in case Reuven wants to send it with him.
(o) Answer #2: As Rav Chisda said - Levi (was not appointed, he) is Shimon's housemate or hired help.


(a) (Rav Yehudah): Reuven had money deposited by Shimon; he sent Levi with a letter saying to send it with Levi. Even though Reuven drew his personal identifying sign underneath, and witnesses signed that this is his sign, Shimon should not rely on it.
(b) (R. Yochanan): If witnesses signed on it, he may send it.
(c) Question: According to Shmuel, how can Reuven retrieve his money (without going himself)?
(d) Answer: As in the case of R. Aba.
1. R. Aba asked Rav Safra to bring him money which Rav Yosef bar Chama owed to him.
2. Rava (Rav Yosef's son): Did R. Aba write 'When you give it to Rav Safra, it is as if I received it'?
3. Rav Safra: No.
4. Rava: Return and have him write that.
5. Retraction (Rava): Even if he writes that, we do not rely on it - if R. Aba would die (after writing it and before you take the money), the money would pass to his heirs, and they did not authorize you!
6. Rav Safra: So how can I bring the money to him?
7. Rava: He should give (ownership of) the money to you Agav (by way of also giving you) the corner of his house (i.e. a small piece of land); when we give you the money, you will write a receipt.
(e) A similar case occurred with Rav Papa. He was owed 12,000 Zuz in Bei Chuzai. He gave them to Rav Shmuel bar Aba, Agav the corner of his house, who then brought him the money.
(a) (Mishnah): If he paid the principle (but not the added fifth, he need not travel to return it).
(b) Inference: Since the Mishnah must teach that he need not travel to return it, it must be that the added fifth is considered a proper debt, and if Shimon dies, Reuven must pay it to his heirs.
(c) Support #1 (Mishnah): If Reuven paid the principle, and (falsely) swore that he also paid the added fifth, he must pay (the added fifth and) an additional fifth of the added fifth. (This also shows that it is as a proper debt.)
(d) Support #2 (Beraisa #1): Levi stole from Yehudah, swore falsely, and died - Levi's heirs pay the principle and the added fifth, they do not bring an Asham.
(e) Question: Do heirs really pay the added fifth?
1. Contradiction (Beraisa #2): One might have thought, the only exemption (for a son from paying an added fifth on what his father stole) is when neither the son nor father swore;
i. Question: How do we know that even if the father or son swore falsely, the son is exempt?
ii. Answer: "That he stole and oppressed" - the son did not steal or oppress.
(f) Answer (Rav Nachman): Beraisa #1 is when the father later admitted, Beraisa #2 is when (the father or son) never admitted.
(g) Question: If they never admitted, why does the son pay principle?
1. Suggestion: Perhaps he does not pay principle!
2. Rejection #1: Since the Beraisa must teach that he is exempt from the added fifth, we infer that he pays principle.
3. Rejection #2 (Beraisa #3): One might have thought, the only time a son pays the principle that his father stole is when both of them swore falsely;
i. Question: How do we know that if only 1 of them, or even neither swore falsely, the son pays principle?
ii. Answer: "Theft, oppression, lost object, deposit" - 'Yaish Talmud' (the verses teach these cases).
4. Question (Rabah bar Rav Huna): Does the Beraisa end 'Yaish Talmud', or 'Yishtalmo' (he will pay it - we know from reason, not from a verse)?
5. Answer (Rav Huna): 'Yaish Talmud'.
(h) Answer: When Rav Nachman said that Beraisa #2 is when (he) never admitted - he meant, the father never admitted, but the son did.
(i) Question: The son should be obligated to pay the added fifth for his own false oath!
(j) Answer #1: The case is, the stolen object is not around (so the son swore on money he was not obligated to pay).
1. Question: If so, why does he pay principle?
2. [Version #1 (Our text, Tosfos) Answer: The case is, the son inherited land.
3. Question: Even if he inherited land - the stolen object is as an oral loan, which cannot be collected from heirs or buyers!
4. Answer: The case is, the father was taken to Beis Din (and was obligated to pay through testimony of witnesses - this makes it as a loan on which a document was written).]
5. [Version #2 (Rashi) Answer: The case is, the son inherited land (so he must return the stolen object on account of the honor of his father).]
6. Question: If so, the son should also pay the added fifth (for his own false oath)!
7. Answer (Rav Huna brei d'Rav Yehoshua): The added fifth is not paid for denial of money when there is a lien on land to pay it.]
(k) Answer #2 (Rava): The case is, the father had deposited the stolen object by others;
1. The son pays the principle, for the stolen object is intact;
2. He does not pay the added fifth, for the son swore truthfully - he did not know where it was.
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