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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Metzia 35



(a) We just asked how, according to Rav Huna, who rules that the creditor has to swear that the security is not in his possession, the Beraisa can contend with the possibility that the creditor will produce it. Rabah's suggestion that there are witnesses that it got burned (absolving him from the Shevu'ah) is unacceptable - because if we know that it got burned, the question remains 'How can the creditor produce it?

(b) Rav Yosef's answer (that there are witnesses that it got lost) is acceptable however - because it is possible for the creditor to find the Ganav and produce the article.

(c) We are not equally concerned that if the creditor swears, the debtor will go and find the Ganav - because the debtor does not know who frequents the creditor's home, and who the potential Ganavim are.

(a) Abaye answers (the Kashya on Rav Huna from the Beraisa) - that if the debtor swears how much it is worth, we are afraid that even if the creditor has sworn that the Pikadon is not in his possession, he will say that he found it after the Shevu'ah.

(b) When Rav Ashi answers that they both swear, he means - that the creditor swears that he does not have the Pikadon in his possession and the debtor swears that it is worth a Sela.

(c) And when the Tana concludes 'Mi Nishba, Mi she'ha'Pikadon Etzlo ... ' - what he means is 'Who swears first?', to which his answer is clear.

(a) Rav Huna bar Tachlifa asks on Rav Huna from the Reisha of the Seifa (which exempts the creditor from swearing how much the Pikadon was worth because he is a Kofer ba'Kol) - a Kashya on Rav Huna who obligates him swear that the article is not in his possession. In that case, we ought to make him swear through a Gilgul Shevu'ah, how much it is worth.

(b) When Rav Ashi asked Rav Kahana the same Kashya, he answered - that the Tana speaks when the debtor believes the creditor when he claims that the Pikadon is not in his possession (thereby absolving him of having to swear).

(c) The debtor does not believe the creditor when he claims that the Pikadon was worth a Sela however - because he knows the value of the article better than the creditor.

(d) In the Reisha, the creditor does not believe the debtor regarding the value of the article - because, seeing as Hashem is 'giving the latter a hard time', he assumes him to be a Rasha, who deserves Divine retribution, with the result that he looks down on him and doesn't trust him.

(a) We translate the Pasuk ...
1. ... "Tumas Yesharim Tanchem" to mean - 'the honesty of the straight ones will lead them'.
2. ... "ve'Selef Bogdim Yeshadem" - 'and the crookedness of the treacherous ones will topple them'.
(b) When the owner of the precious nose-rings asked him to return them - the Shomer claimed that he had lost them.

(c) Rav Nachman ruled ...

1. ... there - that 'lost' falls under the category of 'Peshi'ah' (negligence), and that he was therefore obligated to pay.
2. ... when he refused to pay - that he was to give him his mansion instead.
3. ... when the value of the rings rose significantly - that he should return the rings in exchange for his mansion.
(a) When Rava queried Rav Nachman's latest ruling from our Mishnah (that once the Shomer pays, the owner grants him all the benefits [including an increase in price]), Rav Nachman didn't bother to answer him. In fact - Rava conceded that Rav Nachman was right in not answering, because the Shomer had not paid of his own accord, but had to be forced to do so at the hand of Beis-Din, something which would hardly elicit feelings of gratitude on the part of the owner (as an spontaneous confession would).

(b) 'Shuma Hadar' means - that when Beis-Din assess the debtor's property and force the debtor to pay a certain piece of Karka in lieu of his debt, the debtor is able to redeem that Karka should he offer the creditor money in its place.

(c) There no proof from Rav Nachman's previous ruling that he holds 'Shuma Hadar' - because it transpired that the Shomer had not lost the rings in the first place (but had only mislaid them). Consequently, the Shuma had been done in error.

(d) Neherda'i hold that 'Shuma Hadar' up to twelve months, on which Ameimar commented - that although he too, was from Neherda'a, he held that the owner could redeem the Shuma forever, on the basis of the Pasuk ('ve'Asisa ha'Yashar ve'ha'Tov' - a Mitzvah to go beyond the letter of the law).

(a) If Reuven receives from Shimon his debtor a field, which he in turn, received from *his* debtor by means of a Shumas Beis-Din, we tell him - that he is no better than Shimon, who would have had to relinquish the field, should his debtor come to redeem it. So he must relinquish it too.

(b) And if, instead of giving it to Reuven in lieu of his debt, Shimon sold it to him, bequeathed it to him or gave it to him as a gift - he is not obligated to return it should Reuven's debtor offer them money, because unlike a creditor, whose claim is really money, and to whom the Pasuk "ve'Asisa ... " pertains, they paid for the field (not for money), and the Pasuk does not apply to them.

(c) We will not apply "ve'Asisa ha'Yashar ve'ha'Tov" in a case where Beis-Din assessed the field ...

1. ... of a woman's debtor, and, after marrying, she dies - because, as we just explained, the Din of "ve'Asisa ... " is confined to a creditor, not to an heir or a purchaser.
2. ... belonging to a woman, to pay her creditor, and she marries and then dies, and her husband wishes to redeem her field - because whereas the Pasuk will extend to the debtor's heir who wishes to redeem the field, it does not extend to a husband, who is not an heir, but a purchaser, as we shall now see.
(d) 'Takanas Usha' cited by Rebbi Yossi bar Chanina is - the Takanah instituted by the Sanhedrin in Usha, giving a husband the status of the first purchaser of his deceased wife's estate, which in turn, gives him the right, after his wife's death, to claim any property that she sold between their marriage and her death.



(a) In a case where the debtor paid the creditor a field of his own accord (not through a Shumas Beis-Din), Rav Acha and Ravina argue whether he can redeem it or not. The reason of the one who rules that ...
1. ... he cannot is - because, since he did not pay through Beis-Din, he obviously intended the payment to be a fait accompli (unlike the Shumas Beis-Din, which is only arbitrary).
2. ... he can is - because, he too, only gave the field arbitrarily, and the reason that he did not do it through Beis-Din is because he was embarrassed to do so.
(b) According to Rabah, the creditor takes possession of the Shumas Beis-Din (and may eat its fruit) from the moment they give him the Sh'tar Adrachta - ninety days after they obligated the debtor to pay (as we learned in the previous Perek).

(c) According to Abaye, he might even be allowed to eat before he actually receives the Adrachta - because he holds 'Eidav ba'Chasumav Zachin Lo'. Consequently, he will be able to eat from the date on the Sh'tar, even if Beis-Din only handed it to him later.

(d) And according to Rava, he cannot even eat when he has the Adrachta - until the 'Yemei Achrazta' have terminated, which is only after the creditor picks a filed, and Beis-Din announce that it is for sale. Then, if after a certain period elapses, the creditor is willing to accept the field at a higher price than the highest bidder, the field becomes his.

(a) The Tana Kama rules in a case where Reuven hires a cow from Shimon which he lends to Levi (with Shimon's consent - Bartenura), and the cow dies a natural death - that Reuven swears to Shimon that it died a natural death, and Levi then pays Reuven.

(b) Rebbi Yossi objects on the grounds - that it makes no sense for Reuven to make money on Shimon's cow. Consequently, Levi pays Shimon.

(c) Based on the assumption that Reuven acquires the cow from Levi with the Shevu'ah that he makes to Shimon - we ask why Shimon cannot refuse to accept the Shevu'ah in the first place and deal with Levi directly.

(d) We answer - that in fact, Reuven acquired the cow from the moment it died, and the Shevu'ah is only to satisfy Shimon that the animal really did die be'O'nes and not in a way that would render him (Reuven) liable to pay.

(a) Rebbi Zeira states a case where Shimon (the owner) would be obligated to pay Reuven (the hirer) a number of cows. The case is - if Reuven hired Shimon's cow for a hundred days, and Shimon borrowed it back for ninety of those hundred. Reuven then hired it from him for eighty of the ninety days and Shimon borrowed it back for seventy of the eighty, and the cow then died during the days of borrowing.

(b) If the cow died during ...

1. ... the second stage, after Shimon had borrowed it back for ninety days - the Socher would have to swear to the owner, who would then give him one cow for the borrowing (which would be his to keep) and one for the hiring (which he would only be allowed to use until the term of hiring expired - see Ritvo).
2. ... the third stage, after Reuven had hired it for eighty days - the Din would be exactly the same as in the previous case.
3. ... the fourth stage, after Shimon had borrowed the cow for seventy out of the eighty days - Shimon would be obligated to pay Reuven - four cows, two for the two sets of borrowing and two for the two sets of hiring, which he would only be allowed to use until the term of hiring expired.
(c) Rav Acha mi'Difti asked Ravina why he would have to pay more than one cow (for the borrowing and one, for the hiring [see also Maharam Shif]), seeing as it is really the same cow that was borrowed twice and hired twice - to which Ravina replied that his Kashya would have some justification if the cow was still alive, but now that the cow was dead, he was claiming for the transactions, and not the cow.

(d) Mar bar Rav Ashi obligates Shimon to pay the hirer a maximum of two cows, one for the two sets of borrowing (which Reuven may keep) and one for the two sets of hiring (which he may use until the terms of hiring have expired) - because he agrees with Rav Acha mi'Difti (see Maharam Shif).

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