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Bava Metzia 5

1a) [line 4] BOROS - round pits or wells that are dug in the ground; cisterns
b) [line 4] SHICHIN - narrow elongated ditches
c) [line 4] ME'AROS - caves (usually leading to a spring or water source)


(a) The Torah (Shemos 22:6-14) mentions four types of watchmen and the different Halachos that apply to them:

1. SHOMER CHINAM - the Shomer Chinam is one who watches an item without demanding compensation from the owner. He is liable for damages only in cases of Peshi'ah (negligence), but not in cases of theft or loss, and certainly not in a case of Ones (an unavoidable accident).
2. SHO'EL - the Sho'el, the borrower, is one who borrows an item in order to use it and becomes obligated to take care of it. He is liable for damages in cases of Peshi'ah (negligence), theft or loss, and Ones (an unavoidable accident). He is exempt from damages only in a case of "Meisah Machmas Melachah," when the item was damaged in the normal manner of usage, or if the item was damaged while its owner was working for the borrower ("Be'alav Imo").
3. NOSEI SACHAR - Nosei Sachar, or Shomer Sachar, is one who is paid to watch an item but is not permitted to use it. He is liable for damages in cases of Peshi'ah (negligence), theft or loss, but is not liable in a case of Ones (an unavoidable accident).
4. SOCHER - the Socher, or renter, is one who pays money to rent an item. He is liable for damages in cases of Peshi'ah (negligence), theft or loss, but is not liable in a case of Ones (an unavoidable accident), just like a Shomer Sachar, according to some of the Tana'im. Others assert that a Socher is liable for damages only in cases of Peshi'ah (negligence), but not in cases of theft or loss, and certainly not in a case of Ones (an unavoidable accident), just like a Shomer Chinam (Bava Metzia 93a).
(b) When one of the Shomrim exempts himself from payment by claiming that the item was stolen, lost or Ne'enas (respective to their individual liabilities, as above), the Torah obligates him to support his claim by taking an oath (Shemos 22:7-10). Accordingly, a Shomer Chinam swears that he was not negligent; a Shomer Sachar swears that the item was Ne'enas and a Sho'el swears that the item was damaged in the normal manner of usage. In addition, a Shomer Chinam or a Shomer Sachar must swear that they did not use the object that they were guarding. (Using the object without the owner's permission would make the Shomer liable even for Ones.) Only after they swear are they exempt from payment. These oaths are among the Shevu'os ha'Shomrim.
(c) In our Sugya (and later in Bava Metzia, Daf 98a), Rami bar Chama adds a qualification to the Halachah of the oaths of the four Shomrim. The words from which the Gemara (Shevu'os 39b) derives the Halachah of Modeh b'Miktzas ha'Ta'anah (see Background to Bava Metzia 3:8:a) appear in the verses regarding the oaths of the four Shomrim. Therefore, a Shomer only takes the oath of the four Shomrim to exempt himself with the claim that part of the Pikadon was lost or stolen or Ne'enas, etc., if he *also* admits that he is liable to pay for part of the Pikadon (e.g. he admits that he was negligent regarding one of the three bulls that he was entrusted to guard), *and* he denies ever having received a third part of the Pikadon that the owner claims. For example, a Shomer would take an oath if the owner asks for the return of his three bulls and the Shomer claims that he only received two bulls to guard, and one died due to his negligence while the other died b'Ones.

3) [line 14] TANI AVUHA D'REBBI AFTORIKI LED'REBBI CHIYA KAMAISA - Avuha d'Rebbi Aftoriki taught a Beraisa that is a contradiction to the first Halachah of Rebbi Chiya (from Daf 3a, that when a creditor demands one Maneh and the debtor denies the debt entirely, and witnesses testify that the debtor owes fifty Dinerin, the debtor must take an oath that he does not owe the other fifty Dinerin)

4) [line 17] "...AL KOL AVEIDAH ASHER YOMAR [*KI HU ZEH*, AD HA'EL-KIM YAVO DEVAR SHENEIHEM; ASHER YARSHI'UN EL-KIM YESHALEM SHENAYIM L'RE'EIHU.]" - "...or for any kind of lost thing, about which he will say [*that this is it*, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double to his neighbor.]" (Shemos 22:8)

5) [line 20] REBBI CHIYA TANU HU U'PALIG - Rebbi Chiya is a Tana and has the authority to argue with the Beraisa brought by Avuha d'Rebbi Aftoriki

(a) If a person admits that he owes part of a claim, the Torah suspects that the person wants to temporarily postpone part of the payment but does not have the audacity to completely deny the claim. He is therefore required to take an oath, mid'Oraisa, on the part he denies (Shemos 22:8), or otherwise he must pay the entire amount being claimed.
(b) In the event that a creditor claims a certain amount of a commodity such as one Kur of wheat and the debtor responds that he owes one Kur of barley, the Mishnah (Shavu'os 38b) records a Machlokes Tana'im as to whether he is obligated to take an oath or not. Raban Gamliel, who requires an oath, rules that the partial admission does not have to be of the same type of commodity that the creditor claimed. If the litigant swears, he must pay the creditor the barley. The Rabanan exempt the litigant from an oath since they rule that only a partial admission of the same type of commodity requires an oath.

7) [line 29] RAYA - shepherd
8) [line 29] CHEIVASA - animals, e.g. sheep

If the defendant admits to half of the claim against him requiring him to swear a Shevu'as Modeh b'Miktzas, but the defendant is a known thief and therefore we suspect that he will lie if he swears (because he has a past history of swearing falsely or of gambling or other forms of theft), then the person who made the claim against him may swear that his claim is true and collect what he claimed.

(a) The Torah only obligates a person to swear if he admits to part of the claim against him, but not if he is Kofer ha'Kol, i.e. he denies the entire claim (see above, entry #6:a).
(b) Even so, the Rabanan required a person who is Kofer ha'Kol to make a Shevu'ah known as a Shevu'as Heses, since a person usually does not make a claim against his fellow man unless there is some basis to the claim. Although the defendant usually would not be so brazen as to deny the entire claim, the Rabanan still suspected that he intends to pay at a later time and he is denying the claim now in order to delay the payment (Shevu'os 40b).
(c) This Shevu'ah is made even on claims of Karka (real estate), even though one does not make other Shevu'os with regard to Karka (TOSFOS to Bava Metzia 6a DH Ela, citing Rav Hai Ga'on)


11) [line 2] SETAM RO'EH PASUL - a normal shepherd is disqualified from testifying or swearing in court (RO'EH)
(a) A Gazlan (robber) is not fit to swear or testify in Beis Din, since we suspect that he will lie for monetary gain.
(b) The Rabanan decreed that a shepherd who grazes flocks of his own personal animals is presumed to be a Gazlan, since he is suspected of grazing his animals in the private fields of others without permission. Accordingly, they disqualified shepherds from taking oaths or testifying.

12) [line 5] "LIFNEI IVER LO SITEN MICHSHOL." - "Do not place a stumbling block before the blind." (Vayikra 19:14) - We learn from this verse that it is forbidden to cause another person to sin by giving him bad advice or by placing before him the opportunity to sin. (Some Rishonim explain that this is only an Isur mid'Rabanan (a Rabbinic prohibition) and is not implicit in the verse.)

13) [line 6] EIN ADAM CHOTEI V'LO LO - a person does not commit a transgression unless he derives some benefit from it

14) [line 7] AL D'IS LEI MISHTABA, O AL D'LEIS LEI MISHTABA? - Does he swear that he has a share [in the Talis] or that he does not have a share [in the Talis]? (i.e. when a person makes the Shevu'ah mentioned in the Mishnah, that he does not own less than half of the Talis, these words also have the connotation that he owns *nothing* of the Talis, in which case he can rob someone of his Talis and swear truthfully -- RASHI)

15) [line 12] MARA LEI L'DIBUREI - he contradicts (lit. ruins) his [original] claim

16) [line 33] MASHKACHNA LEI B'AGAM U'MAISINA LEI - I will find it in the marsh and bring it [back]

17) [line 36] AD D'BACHASHNA - until I search
18) [line 39] D'HAVAH NAKIT LEI B'YADEI - that it was in his possession (lit. his hand)

(a) A Shomer Chinam who watches an item without demanding compensation from the owner is liable for damages only in cases of Peshi'ah (negligence), but not in cases of the object's theft or loss. Nevertheless, the Shomer can choose to pay for the object that was lost or stolen rather than taking the necessary Shevu'as ha'Shomrim (i.e. swearing that he did not lose the object due to Peshi'ah, see above, #2). When the Shomer chooses this option and the object is later found, it is given to the Shomer, along with the Kefel or other payments that accompany it.
(b) When a Shomer opts to pay for a Pikadon that he claims was lost or stolen, Beis Din makes him swear that he did not take the Pikadon for himself. We suspect that the Shomer may have coveted the Pikadon and is trying to "buy" it without the knowledge of its owner.

20) [line 43] MOREH V'AMAR... - he rationalizes to permit his actions by saying...

21) [line 45] LO SACHMOD - you shall not covet (ASERES HA'DIBROS: LO SACHMOD)
(a) If one covets the property of his fellow man and entreats the owner profusely to sell it to him until the owner sells it, he transgresses the prohibition of "Lo Sachmod." This prohibition apples even if the buyer pays an exorbitant amount of money for the item. (According to the RA'AVAD (Hilchos Gezeilah 1:9) one transgresses Lo Sachmod only if the seller does *not* say clearly, "I consent to the sale.")
(b) The RAMBAM (Hilchos Gezeilah va'Aveidah 1:9) rules that one is not liable to Malkos (39 lashes) for transgressing Lo Sachmod, since the main point of the prohibition is not to *covet* another person's property, and coveting is done in the heart. One only receives Malkos when the transgression of a negative prohibition involves a physical action. (The Ra'avad exempts the transgressor from Malkus for another reason.)
(c) If one covets the property of his fellow man and *decides in his heart* to find a way to convince the owner to sell the property, although he does not transgress the prohibition of "Lo Sachmod," he transgresses the prohibition of "Lo Sis'aveh." (Rambam, ibid. 1:10)
(d) Coveting is a grave sin, since a person who covets the property of another (Lo Sis'aveh) will bring himself to persuade the owner to sell it (and transgress Lo Sachmod). If the owner does not agree to sell it, he will attempt to steal it (and transgress Lo Sigzol). If the owner of an object tries to prevent him from stealing the object, the robber may come to kill the owner (and transgress Lo Sirtzach). (RAMBAM Hilchos Gezeilah va'Aveidah 1:12).

22) [last line] LO SACHMOD, L'INSHEI, B'LO DEMEI MASHMA LEHU - people assume that the prohibition of Lo Sachmod applies specifically to a case where there is no exchange of money

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