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Bava Metzia, 98

BAVA METZIA 98 (16 Adar) - dedicated by Mr. Avi Berger of Queens, N.Y. in memory of his father, Reb Pinchas ben Reb Avraham Yitzchak, on the day of his Yahrzeit.


QUESTION: The Mishnah (97b) says that when the lender claims that the cow that was borrowed died (and thus the Sho'el is Chayav), and the borrower says that he is unsure, then he must pay. The Gemara explains that the Mishnah is discussing a case in which the borrower is obligated to make a Shevu'ah about something else, and thus the lender can demand that the borrower include in the Shevu'ah that he does not owe this money. Since the borrower must swear but he cannot (since he is unsure), he must pay.

In order for the Mishnah to be referring to cases in which there is an additional obligation of a Shevu'ah, the Gemara says that the first two cases of the Mishnah involve two cows, and the last case with three cows. In the first cases, Reuven borrowed from Shimon two cows for half the day and rented them for half the day (or he borrowed them for today and rented them for tomorrow). Both cows died. Shimon claims that both died at the time they were borrowed. Reuven admits that one died when it was borrowed, but he is unsure about the other. Since Reuven must swear and he cannot, he must pay.

RASHI (DH Ka) explains that the Gemara needs to say that the case is referring to when *both* of the cows died. If only one of the cows died and Shimon is claiming both cows from the borrower, then when Reuven admits that he owes him one cow (the one that did not die) and returns it, and he says that he is unsure whether the other cow died while it was borrowed or while it was rented, he would *not* have to make a Shevu'ah; when he returns the live cow, it is considered "Heilach," and, according to one opinion (4a), a case of "Heilach" is not considered to be "Modeh b'Miktzas" and the borrower does not have to make a Shevu'ah. Therefore, it must be that both cows died, and the borrower admits to one ("Modeh b'Miktzas") and is unsure about the other.

Why, though, must the Gemara say that both cows died? It could say that only one cow died, and when Shimon claims his two cows from Reuven, Reuven admits that he owes a live cow but says that it is standing in the marsh (and thus he is not returning it at that moment), and regarding the one that died, he says that he is unsure whether it was borrowed when it died or whether it was rented. In such a case there *should* be an obligation of a Shevu'ah of "Modeh b'Miktzas," since the borrower is not saying "Heilach!" Why does the Gemara explain the case in this manner?


(a) The BA'AL HA'ME'OR (cited by the Shitah Mekubetzes), the RASHBA, and the ROSH prove from the fact that the Gemara does not explain the case in this manner that in any case where a borrower admits to owing part of the lender's claim but does not return it at that moment (but says that it is standing somewhere else), it nevertheless is considered a case of "Heilach." Indeed, Rashi himself (4a) holds that it is considered "Heilach" as long as the original object is still present even though it has not yet been returned, as Rashi himself writes earlier.

(b) The RA'AVAD (98b) argues with the Ba'al ha'Me'or's assertion and holds that if the borrower admits to owing part of the claim, but that item is standing somewhere else, it is *not* a case of "Heilach." It is only considered "Heilach" when the borrower returns, at that moment, part of the claim of the lender.

The Ra'avad, therefore, gives a different answer for why the Gemara does not explain the case as referring to when Reuven admits that he owes the live cow, but the live cow is standing in the marshes. The Ra'avad says that a claim made against someone to retrieve a borrowed item (She'eilah) and a claim to retrieve a rented item (Sechirus) are two separate claims. Therefore, when Reuven agrees that he owes one borrowed cow to Shimon, but says that the other cow might have been rented when it died, those are two separate claims and not a single claim. Hence, the fact that he admits to owing a borrowed cow cannot be considered "Modeh b'Miktzas" to one claim involving two cows, but rather it is a separate claim in itself.

Based on this, the Ra'avad rules that in a case where a claimant says, "I lent you 100, and I deposited with you 100," and the defendant denies having borrowed any money but admits that 100 were given to him as a deposit, this is *not* considered "Modeh b'Miktzas" and the defendant does not make a Shevu'ah of "Modeh b'Miktzas."

The RAMBAN, however, argues with the Ra'avad and maintains that a claim that includes She'eilah and Sechirus is considered a single claim, and not two separate claims. In this case, therefore, the borrower's claim is considered to be "Modeh b'Miktzas." In addition, the Ramban argues with the Ra'avad's comparison of this case with a case of a person who denies that he borrowed money but admits that he received money as a deposit. Even if a claim involving both She'eilah and Sechirus is considered two separate claims, a claim of money loaned and a claim of money deposited are considered *one* claim and thus a Shevu'ah of "Modeh b'Miktzas" would apply (because the claim is that the defendant owes money -- it does not matter why he owes the money).


QUESTION: The Mishnah teaches that when a Sho'el sends a message to the owner of the cow and tells him, "Send the cow with my son or with my servant," the Sho'el becomes responsible for any Ones that might occur to the cow while it is being brought to him.

Why, though, should he be Chayav? The Sho'el did not speak to the person bringing the cow and he did not formally appoint him as his Shali'ach! (RA'AVAD and RAN cited by the Shitah Mekubetzes)


(a) The RA'AVAD cited by the Shitah Mekubetzes answers that when the Sho'el told the owner to send the cow with his son or servant, he was appointing the *owner* as his Shali'ach to appoint his son or servant as a Shali'ach to bring the cow.

(b) The RAN cited by the Shitah Mekubetzes explains that the Sho'el becomes Chayav for Onsin because of the law of "Arev." In the normal case of an Arev who guarantees a loan, the Arev becomes obligated to repay the loan (if the borrower cannot) by virtue of the fact that the lender handed over money (to the borrower) only on his word that he would back the loan. Similarly, in our case, the owner gave the cow to the Sho'el's son or servant only because of his reliance on the Sho'el's word that he would be responsible for Onsin. (See also Insights to Bava Metzia 73 and 76.)

The NESIVOS HA'MISHPAT (CM 340:11, as cited by the YOSEF DA'AS) points out that there are important Halachic differences between these two answers. According to the Ra'avad, who says that the Sho'el is obligated for Onsin because the cow is considered to be in the hands of his Shali'ach, if the Sho'el requested that the cow be sent to him in the hands of a Cheresh, Shoteh, or Katan, he is *not* Chayav for Onsin because none of those people can be appointed as a Shali'ach. According to the Ran, on the other hand, who says that the Sho'el is Chayav for Onsin because he is like an Arev, then even if the person bringing the cow to him cannot be a valid Shali'ach, the Sho'el is still Chayav because of the Halachah of Arev.

Another difference between the two answers is whether or not the owner can change his mind and take back the cow. According to the Ra'avad, once the cow is given into the hands of the Shali'ach, the owner cannot take it back, since it is considered to have come into the domain of the Sho'el. According to the Ran, he may take it back, since it was not given to a Shali'ach of the Sho'el and thus is not yet considered to have come into the domain of the Sho'el.

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