THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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Bava Metzia, 82
BAVA METZIA 81-85 - Ari Kornfeld has generously sponsored the Dafyomi
publications for these Dafim for the benefit of Klal Yisrael.
1) THE DEGREE OF LIABILITY OF ONE HOLDING A COLLATERAL
QUESTIONS: According to Rebbi Yitzchak, a Malveh acquires the collateral
that he takes as security for the loan that he gave ("Ba'al Chov Koneh
Mashkon"). What level of liability does the Malveh have for the object of
collateral? RASHI (DH she'Koneh) says that since the Malveh acquires the
Mashkon, he is liable even for damages or destruction caused by an Ones.
The Rishonim have a number of difficulties with Rashi's opinion.
2) ONE WHO IS PERFORMING A MITZVAH IS EXEMPT FROM OTHER MITZVOS
(a) TOSFOS and the RAMBAN ask that our Gemara uses Rebbi Yitzchak's
statement to explain the Mishnah (80b). The Mishnah states that the Malveh
is considered only a *Shomer Sachar* for the Mashkon, and he is not
obligated in the case of an Ones! How, then, can Rashi says that the Malveh
*is* obligated in the case of an Ones?
ANSWERS: The SHACH (CM 72:9) defends the view of Rashi and offers the
following answers. He first points out that the wording of Rebbi Yitzchak's
statement itself, "Ba'al Chov *Koneh* Mashkon," supports the view of Rashi.
Since it is a *Kinyan,* it follows that all of the responsibility for the
object rests with him.
(b) The RAMBAN asks that the Gemara in Bava Kama (36b) says that if the
victim of damages seizes the ox (Shor Tam) that damaged him as collateral
for compensation, his liability for the ox is that of a Shomer Sachar. In
the case of the Gemara there, the Mashkon was seized *after* the time of the
damage, and yet the Gemara says the holder of the Mashkon has the liability
of a Shomer Sachar, and not the liability of a Sho'el! How, then, can Rashi
say that he is like a Sho'el?
(a) The Shach answers that when Rashi says that the Malveh acquires the
Mashkon completely such that he is liable for any Ones that occurs, Rashi is
referring only to when the Mashkon was taken *after* the loan was given. In
contrast, the Mishnah (80b) is referring to a case in which the Mashkon was
taken at the same time as the loan, in which case even Rashi agrees that the
Malveh has only the liability of a Shomer Sachar. The Gemara later says that
Rebbi Yitzchak was discussing only a Mashkon that was taken *after* the time
of the loan, in which case the Malveh is liable for Onsin. Rebbi Yitzchak
was not discussing a Mashkon taken at the time of the loan, and thus perhaps
the Malveh is not responsible at all, in such a case, for an Ones that
happens to the Mashkon.
(b) The Shach answers that the Gemara in Bava Kama is discussing a case in
which the Mashkon that was seized was an ox, a Shor Tam. The Mazik -- the
owner of the ox -- is not obligated to pay for the damages caused by his
Shor Tam until Beis Din issues a verdict that he must pay. Hence, at the
moment that the Nizak seized the Shor Tam, the Mazik was not yet obligated
to pay for damages. Even though the Shor Tam had already done damage, the
owner has no obligation pay for the damage until Beis Din issues its verdict
that he must pay. When Rashi says that a Malveh acquires the Mashkon
completely and is liable for Onsin, he is referring only to where the Malveh
obtained the Mashkon as a payment for the loan. In the case of the Shor Tam
in Bava Kama, though, there was no monetary obligation yet, and thus it is
obvious that the Mashkon cannot be considered as payment for the debt,
because there is no debt yet. The Shor Tam is only a Pikadon, similar to the
item that a craftsman worked on, which he holds merely in order to ensure
that he gets paid for his work, and for which he is considered a Shomer
Sachar. (Y. Marcus)
QUESTION: RASHI (DH v'Hacha b'Shomer) explains that one who is watching an
Aveidah is exempt from giving Tzedakah because of the principle of "ha'Osek
ba'Mitzvah Patur Min ha'Mitzvah" -- "One who is involved in one Mitzvah is
exempt from another Mitzvah." Hence, in the case of our Gemara, the person
who is involved in the Mitzvah of Hashavas Aveidah is exempt from the
Mitzvah of Tzedakah.
TOSFOS (Sukah 25a, DH Sheluchei Mitzvah) asks that according to this, one
who is wearing Tzitzis or Tefilin should be exempt from all other Mitzvos!
(a) TOSFOS answers that only when the second Mitzvah would interrupt one's
performance of the first Mitzvah, is the person exempt from the second
Mitzvah. If one could perform the second Mitzvah without affecting his
performance of the first Mitzvah (such as is the case when wearing Tzitzis
or Tefilin), he is not exempt from the second Mitzvah.
HALACHAH: The REMA (Orach Chayim 38:8) cites the opinion of the Ran as the
Halachah; when there is a way to fulfill the second Mitzvah while still
performing the first Mitzvah in its normal manner, then one is not exempt
from the second Mitzvah. Otherwise, he is exempt.
The OR ZARU'A questions this answer of Tosfos. It is obvious that one may
not stop performing one Mitzvah in order to perform another. Why would we
have thought to give precedence to one Mitzvah over another, had the verse
not taught us otherwise?
We could answer that Tosfos learns from the verse that one who is involved
in one Mitzvah is exempt from other Mitzvos even in a case where the
opportunity for the second Mitzvah will pass if it is not done right away.
One might have thought that in such a situation, one should halt the
performance of the first Mitzvah and fulfill the second Mitzvah. The verse
teaches us that even in such a case, one may not leave the first Mitzvah to
perform the second. (M. Kornfeld)
(b) RASHBA in the name of RAV HAI GA'ON, the MAGID MISHNAH (Hilchos Sukah
6:4) in the name of the GE'ONIM, and the OR ZARU'A (Hilchos Sukah) explain
that as long as a person is involved in preparing to fulfill a Mitzvah, such
as when he is traveling in order to perform a Mitzvah, he is not obligated
by the Torah to perform other Mitzvos even if they do not distract him from
the first Mitzvah. The Almighty does not give us two things to do at one
With regard to Tzitzis and Tefilin, however, one has already done what was
needed to fulfill the Mitzvah. He is now in the process of *fulfilling* the
Mitzvah, and not in the process of *preparing to fulfill* the Mitzvah. The
exemption from other Mitzvos applies only when one has not yet fulfilled the
first Mitzvah, and is doing something in order to fulfill the Mitzvah.
(c) The RAN (Sukah 25a) makes a compromise. He agrees with the Rashba that
one is exempt from the second Mitzvah even if performing it does not
distract him from the first Mitzvah. However, if there is a way to fulfill
the second Mitzvah while still performing the first Mitzvah *in its normal
manner*, then one is not exempt from the second Mitzvah (as the Ran writes,
"Why not fulfill a Mitzvah if nothing is lost in the process?"). Only when
one must change his normal way of performing the first Mitzvah in order to
fulfill the second Mitzvah is he exempt from the second Mitzvah.
(It could be that according to the Ran, the obligation to do the second
Mitzvah does not stem from the normal obligation to perform Mitzvos, but
rather from the requirement not to disgrace a Mitzvah. Technically, he may
be exempt since he is involved in another Mitzvah. But in practice, since
the second Mitzvah could be performed without making any change from one's
normal way of performing the first Mitzvah, it would be disgraceful to the
second Mitzvah not to perform it. -M. Kornfeld)