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Bava Metzia, 83

BAVA METZIA 81-85 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.


OPINIONS: The Gemara quotes Isi ben Yehudah who rules that when a Shomer is guarding an object and an Ones happens to the object while in a public area, the Shomer cannot exempt himself from paying for the object by making a Shevu'ah alone, but he must also bring witnesses to attest to the Ones.

Does Isi ben Yehudah's ruling also apply in a case in which the only way that we know that the Ones occurred in a public place is through the word of the Shomer? In such a case, is the Shomer required to bring witnesses in order to exempt himself? Perhaps in such a case the Shomer is believed -- without witnesses -- to say that an Ones happened, since he has a "Migu:" he could have claimed that the Ones happened in a non-public place, in which case he certainly would have been believed without witnesses.

(a) The MAHARIT (Teshuvos) maintains that in such a case where the Shali'ach has a Migu he is indeed believed about the Ones and he does not need to bring witnesses.

(b) The KETZOS HA'CHOSHEN (294:2) disagrees, based on a rule established by the BA'AL HA'ME'OR in Bava Basra (17a of the pages of the Rif). The Ba'al ha'Me'or rules that a Migu cannot serve as the basis for the trustworthiness of a claim in a case where it is easy to bring witnesses to support the claim. In the case of an Ones that occurs in a public place, the Shomer can easily find witnesses to attest to his claim. Hence, once he has admitted that the Ones occurred in a public place, he is required to bring witnesses and his Migu is not acceptable, since witnesses are readily available. (The NESIVOS HA'MISHPAT (187:1) gives further support to the view of the Ketzos.) (Y. Marcus)


QUESTION: A certain launderer made an insulting to remark to Rebbi Elazar bar'Rebbi Shimon. Rebbi Elazar discerned from the person's conduct that he must be a Rasha, and he had him arrested by the king's men. Later, when he saw that the launderer was hanged, he began to regret what he had done and was concerned that he had wrongly caused a Jew to be punished by the king. He was then told that this launderer and his son had committed a most offensive transgression -- they had defiled a Na'arah Me'urasah on Yom Kippur. When Rebbi Elazar heard this, he was consoled.

Why was the launderer deserving of being hanged, if his transgression was that of "Bo'el Na'arah Me'urasah," which is punishable by Sekilah (stoning)? ANSWERS:

(a) RASHI (DH Al Na'arah) answers that the body of any person who is punished with Sekilah is also hanged afterward, as the Mishnah teaches in Sanhedrin (45b). The RASHASH here points out that Rashi's answer is only true according to the opinion of Rebbi Eliezer in the Mishnah there, who maintains that all who are punished with Sekilah are hanged afterward. The Chachamim there, though, maintain that only a blasphemer (Megadef) and an idol-worshipper are hanged after they are executed, but all other who are punished with Sekilah are not hanged. According to the Chachamim, Rashi's answer does not apply.

(b) TOSFOS in Kesuvos (beginning of 30b) answers that the launderer committed the sin with the Na'arah Me'urasah *after* his son had committed the sin, and thus she was not a Besulah at the time that the launderer (the father) defiled her. Therefore, he was deserving of Chenek, which is the punishment for every other case of "Bo'el Eshes Ish." Hanging, which is a form of strangulation, is considered equivalent to the punishment of Chenek (cf. Kesuvos 30b).

(c) The text of the incident as recorded by the TESHUVOS HA'BACH (#70) (as cited by the BEN ARYEH here) is not that "*they* said to him [that he and his son had relations with a Na'arah Me'urasah on Yom Kippur}," but rather "*he* said to him," referring to the launderer himself who was still alive while he was hanging. This also seems to be the Girsa of Tosfos in Sotah (8b). The Bach there proves from this Girsa that this (i.e. being hanged by the hands) was the manner of criminal punishment of the governing authority during the time of the Tana'im. (According to our Girsa, though, there is no proof for this, as the Ben Aryeh points out.)

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