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Bava Metzia 34



(a) We just cited Rami bar Chama's Kashya on our Mishnah, where the owner grants the Shomer the right to the Kefel, even though it appears to be a 'Davar she'Lo Ba le'Olam', which is not acquirable. Rava initially answers the Kashya - by explaining that it is not a matter of granting the Shomer the rights to the Kefel, but of being Makneh him the cow itself, which the Sho'el acquires retroactively from the time of the Kinyan, should the cow get stolen and he agrees to pay.

(b) The problem that Rebbi Zeira then has with this is - why the Shomer does not also take the shearings and the babies retroactively too?

(c) We know that he doesn't - because the Beraisa explicitly says so?

(d) So he amends Rava's answer, adding 'Chutz mi'Gizosehah u'V'ladosehah' - justifying this distinction by pointing out that it is normal for the owner to grant the Shomer the external benefits, but not the intrinsic ones.

(a) The second version of Rava's answer is - that the owner is Makneh the cow to the Shomer, not retroactively, but from the moment before it is stolen.

(b) Beside the fact that it dispenses with Rebbi Zeira's Kashya, the other difference between the two versions is - if at that crucial moment, the animal is standing in a public meadow, in which case the Shomer will not acquire it.

(c) The initial Meshichah that he made when receiving to cow for safeguarding is not good enough - because we have already learned in Kesuvos that a Kinyan that is made either takes now or not at all.

(a) Rebbi Chiya bar Aba quoting Rebbi Yochanan teaches us - that it is not necessary for the Shomer to actually pay, in order to acquire the Kefel. If he declares willingness to pay, but, before he has a chance to do so, the Ganav is found - it will suffice.

(b) The Reisha of our Mishnah 'Shalom ve'Lo Ratzah Lishava ... ' is not a proof that he has to actually pay - because the Seifa 'Nishba ve'Lo Ratzah Le'shalem ... ' implies the exact opposite. So we decline to extrapolate anything.

(c) The Beraisa says that a Socher who admits that the Pikadon was stolen (and who therefore has to pay) rather than swear that an O'nes happened - receives the Kefel (corroborates Rebbi Yochanan).

(a) Rav Papa says that ...
1. ... a Shomer Chinam who admits that he was negligent - receives the Kefel, since he could have claimed that the Pikadon was stolen.
2. ... a Shomer Sachar who admits that the Pikadon was stolen - receives the Kefel, because he could have claimed that it died an accidental death.
3. ... a Sho'el who offers to pay - does not receive the Kefel, since there is no alternative claim by which he could have exempted himself from paying.
(b) The owner does not grant the Sho'el the Kefel, since he could have claimed 'Meisah Machmas Melachah' (that it died naturally due to regular work) - because this is an unusual argument to present (so, as far as the owner is concerned, it is not an argument that the Sho'el might think of claimong, and he does not feel grateful to the Sho'el for not presenting it).

(c) In the second Lashon, Rav Papa says - that the Sho'el receives the Kefel in this last case, too.

(d) Rav Z'vid, quoting Abaye disagrees. He holds that the owner does not grant a Sho'el the Kefel until he has actually paid - due to the fact that the Sho'el already has all the benefits, whereas he (the owner) gains nothing.

(a) We prove from the Beraisa which states 'ha'Sho'el Parah me'Chaveiro ve'Nignevah, ve'Kidam ha'Sho'el ve'Shilem ve' ... Nimtza ha'Ganav, Meshalem ... Kefel le'Sho'el' - that it is only if the Sho'el has actually paid that the owner grants him the Kefel (like Rav Z'vid).

(b) This Beraisa certainly poses no problem with the first Lashon of Rav Papa (see Tosfos DH 'le'Lishna'). The problem with the second Lashon is - that Rav Papa grants the Sho'el the Kefel. whereas the Beraisa says 'Kidem ve'Shilem'.

(c) We refute the suggestion that ...

1. ... just like our Mishnah says 'Shalom', yet we interpret it to mean 'Amar', so too can we interpret the Beraisa in the same way - on the grounds that since the Beraisa changes from the Lashon of our Mishnah adding 've'Kidem', it implies that the Sho'el actually has to pay before the owner will grant him the Kefel.
2. ... the change in Lashon does not prove anything, since the Beraisos may have been learned by two different Tana'im (one of whom uses the Lashon 'Shalom', the other 'Kidem ve'Shilem' - on the grounds that the Chachamim in the Batei Medrash of Rebbi Chiya and Rebbi Oshaya (the greatest authorities on Beraisos) both testified that the Beraisa was learned together with our Mishnah.



(a) The Halachah in the case of a Shomer who first denies liability, and then admits that he is Chayav is clear-cut - he receives the Kefel (since he has undoubtedly retracted from his original stance).

(b) In the reverse case however, we think that he might receive the Kefel even though he currently denies liability - because of the possibility that he really abides by his initial admission, and is only stalling for time (until he obtains money with which to pay).

(c) We ask whether, if, after the Shomer admitted that he is Chayav, he dies and his sons deny liability - they mean to retract or whether, they are only stalling for time. This She'eilah only makes sense if, in the previous one we assume that he is only stalling for time.

(d) On the assumption that the sons really mean to retract - we ask whether the owner is willing to grant them the Kefel if they actually paid, bearing in mind that they are not the ones who did him the favor of looking after his Pikadon.

(a) In a case where the owner died, and the Shomer paid (or agreed to pay) his sons, we ask - whether the sons are willing to pay the Kefel to the Shomer who, when all's said and done did not do *them* any favors.

(b) Assuming that, in these two cases, the owner or his son is Makneh the Kefel (where at least a favor was performed either by the Shomer's father to the owner, or by the Shomer to the current owner's father - whether the sons will also be Makneh the Kefel to the sons (seeing as the one did not perform any favors and the other did not receive any).

(c) We ask whether, if a Sho'el paid half the animal, he receives half the Kefel. When we then go on to ask what the Din will be if he paid for one of two animals - we assume that in the previous case, the owner would not be Makneh the Kefel, because he did not receive payment for a complete article.

(d) We then ask whether, if ...

1. ... a Sho'el paid to one of the joint owners his half - he receives half the Kefel, seeing as he paid that owner in full; or whether he only receives the Kefel when he pays for the entire object.
2. ... one of the joint borrowers paid the owner for his half - he receives half the Kefel, seeing as he paid for his full portion; or whether he only receives the Kefel when he has paid for the object in full.
(a) Finally, we ask what the Din will be if someone borrowed a cow of Nichsei Milug from a woman from her husband and pays the husband, or if a woman borrowed a cow to plow her Nichsei Milug and her husband pays. The ...
1. ... first She'eilah is - whether or not, he receives the Kefel if the Ganav is found - seeing as, on the one hand, the Keren does not belong to the husband, it is not considered a proper payment (see Tosfos and Shitah Mekubetzes); whereas on the other, since Chazal placed a woman's property in the charge of her husband, it is as if he was the owner.
2. ... second She'eilah is - whether the husband paying is as if his wife had paid.
(b) The outcome of all these She'eilos is - Teiku ('Tishbi Yetaretz Kushyos ve'Iba'yos').
(a) In all of the above cases where the Shomer volunteers to pay - Rav Huna obligates him to swear that he doesn't have the object in his possession, because we suspect that he may have taken a fancy to it (and doesn't mind paying).

(b) In a case where the creditor loses the security he received against the loan and claims that the loan was a Sela, and the security was worth a Shekel (half a Sela), if the debtor counters that it was worth ...

1. ... a Sela, and that he therefore owes him nothing - the Beraisa rules that debtor is Patur from a Shevu'ah.
2. ... three Dinrim and he owes him one Dinar - the Beraisa rules that he is Chayav a Shevu'ah.
(c) And in a case where the debtor claims that the security was worth two Sela'im (in which case it is the creditor who owes him a Sela), and the creditor counters that it was worth only ...
1. ... one, and that they are quits - the Tana rules that the creditor is Patur.
2. ... five Dinrim and that he therefore owes him only one Dinar - he rules that he pays him the Dinar and swears on the rest.
(d) This Tana considers a creditor vis-a-vis the security - to be a Shomer Sachar (who is Chayav for Geneivah va'Aveidah).
(a) The Beraisa concludes that it is the creditor who swears how much the security is worth, and not the debtor - to eliminate the possibility of the debtor swearing, and the creditor producing the security to prove that he swore falsely.

(b) This final statement cannot refer to the (Seifa of the) Seifa - because there it is the creditor who is denying the debtor's claim and who is therefore the one to have to swear anyway.

(c) It therefore refers to the Reisha (the Seifa of the Reisha to be precise).

(d) This poses a Kashya on Rav Huna - who has just ruled that the creditor has to swear that the security is not in his possession (so how can he possibly produce it)?

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