(Permission is granted to print and redistribute this material
as long as this header and the footer at the end are included.)


brought to you by Kollel Iyun Hadaf of Har Nof

Ask A Question on the daf

Previous daf

Bava Metzia 41

BAVA METZIA 41 (18 Teves) - Mrs. Estanne Abraham-Fawer has dedicated two weeks of learning to honor the second Yahrzeit of her father, Reb Mordechai ben Eliezer Zvi (Weiner, who passed away 18 Teves 5761). May the merit of supporting and advancing the study of the Talmud be l'Iluy Nishmaso.

1) [line 13] MAN D'METARGEM LI "CHAVIS" ALIBA D'CHAD TANA - anyone who can explain our Mishnah of "ha'Mafkid Chavis" (Daf 40b) according to one Tana (referring to two separate instances)

2) [line 14] MOVILNA MANEI BASREI L'VEI MASUSA - I will carry his clothes after him to the bathhouse (like a servant)

3a) [line 16] NATLAH - he moved it [and lifted it up]
b) [line 16] AL MENAS L'GOZLAH - with the intention of stealing it (but regretted his intentions later and returned it, either to its original place -- the Reisha -- or to a place not designated as the place where it belongs -- the Seifa)
c) [line 18] AL MENAS LISHLO'ACH BAH YAD - with the intention of using part of it (which he later regretted and did not do)

(a) The Torah (Shemos 22:6-8) teaches that when a person deposits an object with a Shomer Chinam or a Shomer Sachar to watch, and the Shomer uses the object without the owner's permission, the Shomer is treated as a thief and assumes full responsibility for the object. From that point on, the Shomer becomes obligated to return the value of the object to the owner even if an uncontrollable accident occurs and destroys it (see Background to Bava Metzia 3:2). The Shomer cannot simply stop using the object and return to being a Shomer Chinam or Shomer Sachar; once he becomes a "thief" by being Shole'ach Yad, he does not become exempt from responsibility for Ones until he returns the object to the property of the owner.
(b) The Shomer must fulfill two conditions in order to be classified a "Shole'ach Yad."

1. The Shomer must make a Kinyan on the object, by pulling (Meshichah) or lifting (Hagbahah) the object, just as any thief becomes responsible for what he steals only after making a Kinyan on it (Rashi 41a DH Ha).
2. According to those who maintain that "Sho'el she'Lo mi'Da'as Lav Gazlan Hu" (see entry , later on this page), the Shomer must use the object in a manner that "uses up" part or all of the object (Rashi 41a DH v'Ha, and Rishonim).
(c) With regard to the second of the two conditions listed above, the Amora'im argue whether the Shomer is only responsible for the object if he actually depletes or uses up part of it ("Shelichus Yad Tzerichah Chisaron"), or whether he becomes responsible for it even if he makes a Kinyan on it with the *intention* of depleting part of it ("Shelichus Yad Einah Tzerichah Chisaron"). If the Shomer picks up the object in order to steal it all, it is equivalent to having *already* depleted all of it, since he removed all of it from the owner's domain by picking it up for himself (Rashi, 41a DH v'Rebbi Nasan and 44a DH d'Nicha -- see Ramban and Ritva 41a, though, who argue that it is not considered as though he already depleted the object if the Shomer planned on taking it all for himself and *compensating the owner* for it.). (This discussion is only according to the opinion of Beis Hillel, 43b. According to Beis Shamai, all agree that the Shomer becomes responsible for the object even if he simply *says* (or thinks, according to some Rishonim, see Shitah Mekubetzes) that he will deplete the object by using it for himself.).
(d) Any use of an animal is considered to be "depleting" the animal, since doing work weakens the animal (Rashi 41a DH v'Ha; however the Ra'avad, cited by the Ritva and Rishonim, argues).
(e) The Amora'im argue as to whether a "Sho'el she'Lo mi'Da'as," a person who uses another person's object without permission, is classified as a "Sho'el" or as a "Gazlan." Those who maintain that "Sho'el she'Lo mi'Da'as *Gazlan* Hu," do not require that the Shomer "use up" or deplete the object in order for him to become responsible for it as a Shole'ach Yad. According to this opinion, anytime the Shomer uses the object in a manner that could possibly damage the object (for example, he moves it from place to place in order to move it, which might cause the object to inadvertently fall and break), the Shomer is immediately considered a Gazlan, even if he planned on using the object in a manner that would not deplete it at all (for example, climbing on the object in order to reach a high shelf). However, if the Shomer used the object in a manner that neither depleted the object nor put it into a position of insecurity, all Amora'im agree that the Shomer is not considered a Gazlan (Ritva, 41a).

5) [line 25] L'HAVI ALEHA GOZALOS - to use it as a step for fledglings that [can hop about but] cannot yet fly

(a) If a person borrows another person's item without receiving prior permission from the owner, the Amora'im argue as to whether he is given the status of a Sho'el (one of the Four Shomrim, see entry 20), or that of a Gazlan (a thief).
(b) There is no practical difference whether the person is considered a Sho' el or a thief for most Halachic matters. In either case, it is prohibited to borrow the item in the first place (since no prior permission was received), and if the object becomes destroyed by Peshi'ah, Geneivah, Aveidah, or Ones, the borrower is responsible for its damage (see entry 20:(a):2). Even if the object becomes destroyed in the normal manner of usage, the borrower is certainly obligated to replace it (since its owner never allowed him to use it; Ritva 41a). Similarly, if the owner of the object is working for the borrower at the time he borrows it, the borrower is not exempt from damages (as a normal Sho'el is), since he borrowed the object without permission (Daf 41b). The practical difference between whether he is a Sho'el or Gazlan arises when a *Shomer Chinam or Shomer Sachar* uses the object that is deposited with him without the permission of its owner. If "Sho'el she'Lo mi'Da'as" is not considered a Gazlan, the Shomer is still considered to be appointed by the owner to watch the object. Therefore, as soon as he stops using the object, he returns to being a Shomer Chinam or Shomer Sachar. However, if "Sho'el she'Lo mi'Da'as" is considered to be a Gazlan, he no longer can be considered a Shomer who is appointed by the owner to watch the object. Therefore, even after he finishes using the object he remains responsible for damages caused by Ones, just like a thief, until he returns the object to the property of the owner (or to property that the owner borrowed or rented). (The Tana'im argue, both here and when any other thief returns a stolen object, if it is necessary to tell the owner that the object was returned, as the Gemara here and elsewhere discusses.)
(c) A "Sho'el she'Lo mi'Da'as" is only called a Gazlan (according to those who maintain that he has that status) if he uses the object in a manner that could possibly damage the object. (See above, entry 4:(e).)

7) [line 30] TISTAYEM - conclude
8) [line 33] ZE'EV - a wolf
9) [line 33] TARAF - killed [its prey and dragged it to its lair to eat]
10) [line 34] ARI - a lion
11) [line 34] DARAS - attacked with its paws or claws [and ate it on the spot]
12a) [line 34] MAKLO - his staff
b) [line 34] TARMILO - (O.F. boteile - Yevamos 86b) a small leather pouch or a leather bag in which a shepherd carries his food, and on which he sleeps

13) [line 35] V'HAVINAN BAH - and we ask about it
14) [line 36] SHAKLINHU - he took them off
15) [line 37] B'ODAN ALEHA - while still on it

(a) When a person acquires an object, he must make a Ma'aseh Kinyan, a formal Halachically-binding act denoting his acquisition of the object, in order for the acquisition to be irrevocably binding. In order for a Gazlan to become liable for an object that he steals, or for a Shomer to become responsible to guard the item entrusted to him, they also must make a Ma'aseh Kinyan on the item. Depending on the object involved, different Kinyanim are used.
(b) One of the forms of Kinyan that may be used for the acquisition of Metaltelin (mobile items) is Meshichah, i.e. pulling the item or causing it to move. Meshichah can only accomplish a Kinyan in a private or semi-private area (such as an alleyway), but not in Reshus ha'Rabim. It may be accomplished not only by *pulling* the object towards one's self, but even by causing it to come towards one's self, such as by calling an animal and causing it to come closer.
(c) The Amora'im (Bava Metzia 47b) argue as to whether Kinyan Meshichah is recognized by the Torah, or whether it is a Rabbinic institution which was established in order to replace the Kinyan of Kesef (which *is* recognized by the Torah but which was invalidated by the Rabanan). According to those who maintain that Kinyan Meshichah is mid'Oraisa, its source in the Torah is from the verse "Kanoh *mi'Yad* Amisecha" (Vayikra 25:14), which implies that one may transfer property by *handing* it over to the buyer (Bava Metzia ibid.).

17) [line 39] HIKISHAH B'MAKEL V'RATZESAH LEFANAV - he hit the animal with a stick and it ran before him (in the direction of his domain)

18) [line 40] HIKCHISHAH B'MAKEL - he made it languish with his stick
19) [last line] MESHUNEH SHELICHUS YAD... - the term "Shelichus Yad" is used with regard to the Shomer Chinam (Shemos 22:7) and the Shomer Sachar (Shemos 22:10), and they are different in that one is necessary and the other is not, being written to teach that Shelichus Yad does not need a Chisaron (see above, entry #4)


(a) The Torah (Shemos 22:6-14) mentions four types of Shomrim (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, theft or loss, and Ones. 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, theft or loss, but is not liable in a case of Ones.
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, theft or loss, but is not liable in a case of Ones, 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, but not in cases of theft or loss, and certainly not in a case of Ones, just like a Shomer Chinam (Bava Metzia 93a).
21) [line 11] TO'EN TA'ANAS GANAV
(a) The Torah establishes the degree of responsibility that a Shomer has when he accepts upon himself to guard someone's object and he does not specify any other acceptance of responsibility at the time the object is given to him. The Torah divides the degrees of responsibility into four categories of Shomrim: Shomer Chinam, Sho'el, Shomer Sachar, and Socher -- see previous entry.
(b) A Shomer Chinam 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). When the Shomer Chinam claims that the object was stolen or lost or that an Ones occurred, he must make three Shevu'os: 1. that he was not negligent (Poshe'a) in guarding the object, and 2. that he did not use the object for himself (Shelichus Yad -- see above, entry #4) without permission, and 3. that the object is not in his possession. Once he makes these Shevu'os, he is exempt from paying the owner for the object.
(c) If the Shomer claimed that the object was lost or that an Ones happened and he made the Shevu'os as mentioned above, and then witnesses came and testified that he himself stole the object and that the object is still in his possession, he is obligated to return the object to its owner. (If he made the Shevu'os in Beis Din after the Beis Din required that he make the abovementioned oaths, there is an opinion that maintains that he is exempt from paying, since he acquired the object by making the Shevu'os; see Insights to Bava Kama 106a). If, after making the Shevu'os, the Shomer admitted that he stole the item (whether he admits before witnesses come or after witnesses come), he must pay the principle of the object that he stole, and he must add to it a Chomesh, an additional fifth (of the ensuing total, or a *quarter* of the original value), and he must bring a Korban Asham Gezeilos. This is called "To'en Ta'anas *Avad*," or "To'en Ta'anas *Ones*."
(d) If the Shomer claimed that the object was *stolen* and he exempted himself from paying for it by making the three Shevu'os mentioned above, and then witnesses came and testified that he himself stole it, the Shomer is obligated to pay Kefel (double the value of the object), for the Torah gives him the status of a Ganav (which is what he claimed happened to the object), and not just the status of a Gazlan (who does not pay Kefel). This is called "To'en Ta'anas Ganav." If he admitted on his own before witnesses came, he must pay the principle, Chomesh, and bring a Korban Asham, and he is exempt from paying Kefel, since Kefel is a Kenas (penalty) and one who admits to the Chiyuv of a Kenas is exempt from paying it (see Background to Bava Metzia 34:1). If he admitted *after* witnesses came, he must pay Kefel (since he made a claim that the item was stolen, "To'en Ta'anas Ganav"), and he must bring a Korban Asham, but he is exempt from paying a Chomesh because it is included in the Kefel. (This is according to the Chachamim, Bava Kama 65b; there is one opinion that says that under certain circumstances he also pays a Chomesh, and there is another opinion that says that the Kefel even exempts him from bringing the Korban Asham.)
(e) One who is "To'en Ta'anas Ganav" with regard to an animal that was entrusted with him, and then he slaughtered or sold it, is obligated to pay Arba'ah v'Chamishah, like a Ganav who stole an animal and slaughtered or sold it (Bava Kama 106b). Similarly, one who found a lost object (Aveidah) and is guarding it, and then claims that it was stolen ("To'en Ta'anas Ganav b'Aveidah") is obligated to pay Kefel.

22) [line 12] KARNA B'LO SHEVU'AH ADIFA MI'KEFEILA BI'SHEVU'AH - [the Pirchah asked by the Gemara (line 10) that shows that a Shomer Chinam is more Chamur (stringent) than a Shomer Sachar is not a Pirchah, since receiving] the principle [paid by a Shomer Sachar for a stolen object] without [the trouble of making him take] an oath [in Beis Din] is more Chamur than (lit. is preferable to) [receiving] the Kefel [paid by a Shomer Chinam] with an oath [after the trouble of going to Beis Din for him to swear, having him swear falsely and having witnesses testify that he swore falsely]

23) [line 19] DAYO LA'BA MIN HA'DIN LIHEYOS KA'NIDON - it is sufficient to give the Halachah learned from a Kal va'Chomer the exact status of the Halachah from which it was learned.

24) [line 19] SHO'EL B'VA'ALIM PATUR - A Sho'el (see above, entry 20:a2) is exempt from damages that occurred to an object if the item was damaged while its owner was working for the borrower ("Be'alav Imo").

25) [line 24] "[IM LO YIMATZEI HA'GANAV,] V'NIKRAV BA'AL HA'BAYIS EL HA'ELOKIM [IM LO SHALACH YADO BI'MLECHES RE'EHU.]" - "[If the thief is not found,] the owner of the house shall be brought to the judges [to swear] [that he did not misuse (lit. send his hand upon) his friend's possession. (Shemos 22:7)

Next daf


For further information on
subscriptions, archives and sponsorships,
contact Kollel Iyun Hadaf,