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Bava Metzia, 95

BAVA METZIA 91-95 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.


QUESTION: The Gemara (end of 94b) cites the Machlokes between Rebbi Yonasan and Rebbi Oshiyah regarding the implication of the conjunctive "Vav" ("and"). Rebbi Yonasan says that the "Vav" between two words connotes either that the Halachah applies to either one of them, and not necessarily only to both of them together, unless the verse specifically states "Yachdav." As an example of this, RASHI quotes the verse means specifically both of those elements, or either, "Lo Sacharosh b'Shor uva'Chamor *Yachdav*" -- "Do not plow with and ox and donkey *together*" (Devarim 22:10). Had the verse not written "Yachdav," we would have understood the verse to mean that one may not plow with either an ox or with a donkey at all.

How would we have assumed such a thing, that the Torah would be prohibiting us to plow with an ox alone? The Torah explicitly commands that one must let his ox rest on Shabbos (Shemos 23:12), implying that during the rest of the week one may certainly plow with an ox! It cannot be that the Torah there is prohibiting other forms of work with an ox on Shabbos, but plowing is forbidden even during the rest of the week, because the primary use of an ox is for plowing, and thus when the Torah requires that one let his ox rest from work on Shabbos, it must be referring to the primary form of work -- plowing. (RITVA in the name of TOSFOS)


(a) The RITVA quotes "some who answer" that even though we would have understood the Torah to be prohibiting plowing with an ox altogether (had the verse not written "Yachdav"), the verse regarding letting one's ox rest on Shabbos would still have been necessary. We would have understood that verse to be requiring that one not even let a Nochri plow with one's ox on Shabbos (for a Nochri *may* plow with an ox during the week).

(b) The Ritva answers further that had the verse not written "Yachdav," we would have understood it to be a prohibition against *a man himself* plowing with an ox or with a donkey, but it would certainly be permitted for one to have his ox or donkey plow alone. The verse regarding Shabbos, therefore, would be necessary to prohibit letting one's ox plow by itself on Shabbos. "Yachdav" teaches that a man himself may plow together with an ox or donkey, but he may not have an ox and donkey plow together. (I. Alsheich)

QUESTION: The Gemara asks what the source is for the Halachah that a Sho'el is Chayav in cases of Geneivah and Aveidah. The Gemara answers that it is learned through a Kal v'Chomer from Shomer Sachar. (According to the conclusion of the Gemara later that "Vav Mosif Al Inyan Rishon," we learn that a Sho'el is Chayav for Geneivah and Aveidah from the "Vav Mosif," and the Kal v'Chomer is no longer necessary, as TOSFOS (DH Vav) points out.)

Why does the Gemara need a Limud to teach that a Sho'el is Chayav for Geneivah and Aveidah? A Sho'el's degree of liability certainly includes that of a Shomer Sachar. Since we know that a Shomer Sachar is Chayav for Geneivah v'Aveidah, certainly, then, a Sho'el should be Chayav! (RIVASH #279)


(a) The RIVASH answers that a Sho'el is different than a Shomer Sachar, and his liability does not include that of a Shomer Sachar. In the case of a Shomer Sachar, the wage he receives is in return for guarding the object, for that was the stipulation made between the two parties. In the case of a Sho'el, the wage that he receives (i.e. the benefit from the usage of the object) is not in return for guarding the object. Rather, the two parties stipulated that the owner will lend his object for free to the borrower, and he does not mind that the borrower benefits from the usage of the object. The Sho'el is obligated to guard the object like a Shomer Chinam, since he is not being paid to guard it, and thus we cannot learn that a Sho'el is Chayav for Geneivah and Aveidah from the degree of liability of a Shomer Sachar.

(b) The Rivash answers further that it is necessary to have an independent source to teach that a Sho'el is Chayav for Geneivah and Aveidah, because without it we would have thought that he is exempt. If we would obligate him for Geneivah and Aveidah because he is not less than a Shomer Sachar, then it would emerge that he is not the sole beneficiary of the transaction; the owner of the object is also benefiting from the arrangement by having his object guarded by a Shomer Sachar. The Gemara, however, states that in a transaction of She'eilah, the Sho'el is the sole beneficiary ("Kol ha'Hana'ah Shelo"), and that is the reason why a Sho'el is Chayav for Onsin. Hence, the Chiyuv of a Sho'el for Geneivah and Aveidah cannot be due to the fact that he is also a Shomer Sachar, and therefore the Gemara seeks to find the source for this Chiyuv. We might have thought that the Torah exempts him from liability in order that he have an absolute degree of "Kol ha'Hana'ah Shelo." (A similar answer is suggested by the TESHUVOS HA'RAN cited by the SHACH, CM 72:11. Similarly, the MACHANEH EFRAIM, Hilchos She'eilah #3, writes with regard to one who lends Sifrei Kodesh to someone that the Sho'el is not the sole beneficiary of the She'eilah, because the lender also benefits with the "Perutah d'Rav Yosef" when others are learning Torah from his books.) (I. Alsheich)


QUESTION: The Amora'im argue whether the exemption of "Ba'alav Imo," written in the Torah in the Parshah of Sho'el (Shemos 22:14), refers also to Shomer Sachar (the preceding Parshah) *and* to Shomer Chinam (the Parshah before the preceding Parshah), or only to Shomer Sachar. If it does not refer to Shomer Chinam, then there is no source to exempt any Shomer in a case of Peshi'ah when "Ba'alav Imo." The Gemara attempts to prove from the Mishnah (94a) -- which mentions the exemption of "Ba'alav Imo" with regard to a Sho'el, but it does not mention it with regard to a Shomer Chinam -- that the exemption does not apply to a Shomer Chinam. The Gemara answers that the Mishnah also makes no mention of a Shomer Sachar, and thus it must be that the Mishnah mentions only that for which the Torah explicitly writes the exemption of "Ba'alav Imo" (i.e. Sho'el), and it does not mention that for which the exemption is derived through a Limud (i.e. a Shomer Sachar and a Shomer Chinam).

The MAHARATZ CHIYUS asks that we find the opposite idea elsewhere in the Gemara. The Gemara in Nedarim (3a) and Yevamos (2a) says that the Mishnayos there (2a) prefer to teach the laws that are derived through a Limud and are not written explicitly in the Torah, because "since it is derived through a Derashah, it is beloved [to the Tana]" (see also Bava Kama 17b, Bava Basra 108b, and elsewhere). How are these opposing Gemaras to be reconciled?

ANSWER: The MAHARATZ CHIYUS answers that in Nedarim and Yevamos, the Mishnah teaches *both* Halachos -- that which is derived through a Limud, and that which is written explicitly in the Torah. It merely teaches that which is derived through a Limud *first*. He explains this based on the words of RAV MOSHE KAZIS (in SEFER KIN'AS SOFRIM, and as cited by the YAD MALACHI #11) who asks why the Gemara there (Nedarim and Yevamos) says that "since it is derived through a Derashah, it is *beloved*?" It should say instead that it is "more important." He explains that something that one derives through his own toil in applying the methods of Halachic derivation is more cherished and beloved to him, because of the effort exerted in learning the Halachah. Based on this, the Maharatz Chiyus explains that in Nedarim and Yevamos, where the Tana is teaching both Halachos, he prefers to write the one that is "beloved to him" first. That Halachah, though, is not *more important* than a Halachah written explicitly in the Torah, but rather it is merely more beloved. Here, where the Mishnah mentions only one Halachah, it chooses the Halachah which is written explicitly in the Torah, for that indeed is the "more important" one to teach.

(Although this answers why the Mishnah in Nedarim *explains* the laws of Yados first, this does not explain why the Gemara in Nedarim says that the Mishnah there *mentions* first the Halachah that is explicit in the Torah (i.e. Kinuyim) first, and only afterward mentions that which is learned from a Derashah. The BEIS YOSEF, in his commentary to Halichos Olam, KLALEI HA'GEMARA 3:19, discusses this. See HALICHOS OLAM there, and see also YAVIN SHEMU'AH there.) (I. Alsheich)

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