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Bava Metzia, 43


QUESTION: The Mishnah states that when a person leaves money with a Shulchani that is not wrapped and sealed, the Shulchani has permission to use the money. Therefore, if the money is lost, the Shulchani is obligated to compensate the owner, even if the Shulchani had not yet used the money.

Rav Nachman says that until the Shulchani uses the money, he has only the status of a Shomer Sachar, who is Chayav for Geneivah v'Aveidah. If an Ones happens to the money, though, the Shulchani is exempt, for he is not considered a Sho'el (who is Chayav for Onsin) until he actually uses the money. Rava asks that if the Shulchani is not considered a Sho'el because he has not yet had any benefit from the money, then why is he considered a Shomer Sachar? What "Sachar," or benefit, has the Shulchani received from the money?

Rav Nachman answers that the Shulchani has indeed received benefit from the money, since he is permitted to use it if the opportunity to make a profit arises. Due to that benefit, he is a Shomer Sachar.

How does this explain, though, why the Shulchani is not a Sho'el? Once he has permission to use the money, he should have the obligations of a Sho'el whether he uses the money or not, just like any case of one who borrows an object -- the borrower is Chayav for Onsin right away, even before he uses the object!


(a) The S'MA (Choshen Mishpat 292:16) writes, based on the RA'AVAD, that this "usage" -- the rights to use the money if an opportunity to profit arises -- is an inferior type of usage, because the Shulchani is reluctant to use the money lest the owner come suddenly and demand his deposit back. Therefore, before the Shulchani actually uses the money, he is not considered a Sho'el, because a normal Sho'el has no reluctance to use the object that he borrowed, while the Shulchani does have reluctance to use the money entrusted with him.

(b) The LEVUSH YESHA answers that in a normal case of a Sho'el, a person borrows an object completely for his own benefit. Here, though, the Shulchani has received the money from its owner in order to do a service -- guard the money -- for the owner. Therefore, even though the Shulchani has the right to use the money, he is not yet considered a Sho'el since the money was not given to him exclusively for his own benefit. (I. Alsheich)


OPINIONS: Beis Shamai and Beis Hillel argue concerning a Shomer who "thought" about using a Pikadon for his personal use without permission of the owner, but who did not yet actually use it. Beis Shamai says that the Shomer is considered to have been "Shole'ach Yad" and has the status of a Ganav, even though he did not actually use the object but merely "thought" about using it.

Does Beis Shamai literally require only that the Shomer thinks about using the object, or must the Shomer do more than just think about using the object in order to become Chayav?

(a) TOSFOS, the RAMBAN, and the RITVA explain that it does not suffice for the Shomer to merely think about being "Shole'ach Yad," but rather he must *verbally state* his intentions in order to be Chayav. (This also seems to be the view of RASHI in our Sugya. The BACH, however, points out that Rashi in Kidushin explains otherwise. See (b) below.)

The reason why Beis Shamai says that he "thinks" about being "Shole'ach Yad" is because, as the Ramban explains, one who says that he is going to do an action but has not yet actually done it is called one who "thinks" to do an action.

The Ritva explains that the reason why Beis Shamai says that the Shomer is Chayav when he "thinks" about being "Shole'ach Yad" is because the Shomer does not have to say his intentions specifically in front of witnesses in order to be Chayav. (Why, then, does Rashi here specifically write that he says his intentions "in front of witnesses?" The GILYONEI HA'SHAS answers that Rashi is adding this only for a practical reason. Since the Mishnah implies that Beis Din makes the Shomer Chayav, they need proof to be Mechayev him. The witnesses serve as proof to what the Shomer said. Alternatively, the NEFESH CHAYAH writes that the Chiyuv of Shelichus Yad engendered by merely the Shomer's speech is -- according to Rashi -- a Chiyuv of Kenas, penalty, because no actual action was done. In order to become Chayav for a Kenas, there must be witnesses.)

(b) RASHI in Kidushin (42b, DH l'Chayev Al ha'Machshavah) writes that if the Shomer "said *or* thought" to be "Shole'ach Yad," he is Chayav. This is also the view of the ROSH (in Hilchos Ketanos, Hilchos Sefer Torah 3) in the name of RABEINU BARUCH.

The Ramban explains, according to this opinion, that even though the verse says, "Al Kol *Davar* Pesha" (Shemos 22:8), implying that one is Chayav only when he uses speech to express his intentions, thought and speech are considered identical as long as no action has been done. (I. Alsheich)

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