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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) "I SHALL CARRY HIS CLOTHING AFTER HIM TO THE BATHHOUSE!"
QUESTION: The Gemara is forced to conclude that the first part of the
Mishnah (40b) is expressing the view of Rebbi Yishmael, and the second part
of the Mishnah is expressing the view of Rebbi Akiva who argues with Rebbi
Yishmael. The Gemara quotes Rebbi Yochanan who said, "Whoever can explain to
me the Mishnah concerning the 'barrel' [i.e. our Mishnah] in accordance with
one Tana -- I shall carry his clothing after him to the bathhouse!" Rebbi
Yochanan was saying that whoever can explain the Mishnah in accordance with
a single Tana would be considered greater than he, and he would personally
serve him as a student serves his teacher (TORAS CHAIM).
Is there any reason why Rebbi Yochanan specifically referred to a bathhouse?
If his intention was to say that he would serve the person as a student
serves his teacher, then any form of service would suffice! Why did he
specifically say that he would carry the person's clothes to the bathhouse?
(a) The TORAS CHAIM cites the Gemara in Pesachim (51a) which states that a
student may not enter a bathhouse with his teacher, out of deference.
However, the Gemara there says that if the student is serving the teacher in
the bathhouse in some way, then it is permitted for him to enter with him.
For this reason, Rebbi Yochanan emphasized that he would serve the person
whom he would consider his teacher, even in a bathhouse by carrying his
(b) The MAHARATZ CHIYUS cites the Gemara in Kidushin (22b) which states that
when an Eved brings a person's clothes to the bathhouse for him, the person
is Koneh that Eved through a Kinyan Chazakah, because that act of service is
a normal labor of an Eved. The Gemara in Kesuvos (96a) rules that any
service which an Eved is required to do for his master, a student is
required to do for his teacher. For this reason, Rebbi Yochanan said that he
would carry the person's clothes to the bathhouse; Rebbi Yochanan was
emphasizing that he would do a service which a student is obligated to do
for his teacher.
(c) The BE'ER SHEVA (Teshuvos #11) first asks why it is that it is only
Rebbi Yochanan who uses this exclamation, in a number of places in the
Gemara, and no other Amora ever says such a thing.
He cites the Gemara in Kesuvos (96a) that says that any service which an
Eved is required to do for his master, a student is required to do for his
teacher "except for removal of the shoe in a place where they do not
recognize him, lest they say that he is actually an Eved." The Gemara adds
that this limitation does not apply when the student is wearing Tefilin upon
his head. When he is wearing Tefilin, then it is evident to all that he is
not an Eved, and he may do any labor for his teacher even in a place where
he is not known.
It is clear that when the student is not wearing Tefilin and is in a place
where he is not known, he may not do *any* of the labors that an Eved must
do for his master (and not just removal of the shoe), such as carrying his
clothes for him to the bathhouse. Since Rebbi Yochanan's physical health
prevented him from wearing Tefilin upon his head at all times, he therefore
exclaimed that he would carry the person's clothes to the bathhouse to
emphasize that not only would he act with respect towards the person who
would explain the Mishnah to him, but he would do for that person even that
which a student is *not* required to do for his teacher in a place where he
is not recognized. Moreover, he would do a labor for the person which
everyone could see (carrying the clothes to the bathhouse), even though he
would not be wearing Tefilin and even though people would therefore say that
Rebbi Yochanan is an Eved! (The MA'AYAN HA'CHOCHMAH questions this approach,
though, saying that it would have been prohibited for Rebbi Yochanan to do
something that would cause others to say that he is an Eved.) (I. Alsheich)
2) MENTIONING "SHELICHUS YAD" IN THE VERSES REGARDING "SHOMRIM"
QUESTION: The Gemara explains why it was necessary for the Torah to include
reference to "Shelichus Yad" in both the verse that discusses Shomer Chinam
and the verse that discusses Shomer Sachar. The Gemara concludes that
according to the opinion that maintains that a Shomer is Chayav for
"Shelichus Yad" (and becomes like a Ganav) only when he causes the object to
decrease in value, the reason why the Gemara mentions "Shelichus Yad" in the
second verse is to teach the following. The verse (Shemos 22:7) says that
the Shomer Chinam "shall be brought to the judges," but it does not specify
for what purpose. We might have thought that it means only that he must be
brought to Beis Din to be judged and not to swear. The fact that the Torah
mentions "Shelichus Yad" here, in the verse of a Shomer Chinam, and later,
in the verse of a Shomer Sachar, teaches that just as the verse of a Shomer
Sachar is discussing a Shevu'ah, so, too, the verse of a Shomer Chinam is
discussing a Shevu'ah. RASHI (DH Af Kan l'Shevu'ah, and in Bava Kama 63b, DH
DH O Eino Ela l'Din) writes that we learn from here that the Shomer Chinam
does not pay Kefel merely by claiming falsely that the object was stolen,
but rather by swearing falsely that the object was stolen. Rashi adds that
we also learn from here that a Shevu'ah exempts the Shomer Chinam from
paying for the object when it was stolen or lost.
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 object was stolen. If he claims that the object 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 "To'en Ta'anas Ganav," for
making a false claim that the object was stolen, according to the Gemara's
assumption at this stage (that a Shomer pays the Keren without a Shevu'ah)?
If he pays the Keren right away at the time that he claims the object was
stolen, then he will never reach a point where he is found to have made that
claim falsely with a Shevu'ah such that he must pay Kefel! The Gemara in
Bava Kama (63b) though says that everyone agrees that a Shomer who makes a
false claim of Geneivah must pay Kefel! (MAHARSHA)
(a) The MAHARSHAL and MAHARAM in Bava Kama (63b) write that Rashi's
intention is not that the Shomer must pay Keren now, when he claims that the
object 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 object, he must then pay
Kefel, *even without a Shevu'ah*. They infer this from the words of Rashi in
our Sugya, where Rashi (DH Atah Omer) says that "from the time that he
claims in Beis Din that it was stolen, *even though he does not make a
Shevu'ah* he must pay Kefel if witnesses come." Hence, the Havah Amina was
only that the Shomer Chinam will have to pay Kefel later, even without
having made a Shevu'ah, if witnesses come and show that he was "To'en
Ta'anas Ganav;" the Havah Amina was not that he pays the Keren now at the
moment that he claims the item was stolen.
(b) The MAHARSHA (in Bava Kama 63b) does not accept this answer, though (see
Insights to Bava Kama 63:3). He asserts that it is not possible to suggest
that a Shomer Chinam is Chayav to pay Kefel without a Shevu'ah. If it were
possible to pay Kefel without a Shevu'ah, then the Torah should have no need
to write the Chiyuv of Kefel with regard to a Ganav (who pays Kefel without
a Shevu'ah), for it could have learned it through a Kal v'Chomer from a
Shomer who is "To'en Ta'anas Ganav." It must be that a Shomer is Chayav to
pay Kefel only when he is "To'en Ta'anas Ganav" with a Shevu'ah, and
therefore the Torah had to teach that a Ganav pays Kefel even without a
Because of this question, the Maharsha explains Rashi's words differently.
Indeed, the Havah Amina was that the Shomer Chinam 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. According to this Havah Amina, the
Torah must teach us the Chiyuv of Kefel in the case of a Ganav, because that
itself is the Chiyuv of Kefel of the Shomer who is "To'en Ta'anas Ganav,"
for he pays the Kefel later when he is found to be a Ganav.
(How do the Maharshal and Maharam answer the question of the Maharsha? That
is, why, according to the Havah Amina, does the Torah need to write the
Chiyuv of Kefel with regard to a Ganav, when it can be derived through a Kal
v'Chomer from a Shomer who is "To'en Ta'anas Ganav?" The Maharam in Bava
Kama cites the TOSFOS YESHANIM who gives several answers. One answer is that
according to the Havah Amina, indeed the Torah did not have to write the
Chiyuv of Kefel with regard to Ganav and we would have known it from Shomer,
but "Milsa d'Asi b'Kal v'Chomer, Tarach v'Kasav Lah Kra.") (I. Alsheich)