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Bava Metzia 36



(a) The Socher and Sho'el referred in our Mishnah are both obligated to swear. Assuming they swore falsely, they would have to bring either a Chatas or an Asham. Despite the fact that he is Chayav to pay anyway, the Sho'el is obligated to swear that the article is not in his domain (like Rav Huna).

(b) They bring ...

1. ... a Chatas - when they do not gain anything by swearing falsely.
2. ... an Asham (Gezeilos) - when they do?
(c) A Chatas comprises a Kisbah or Se'irah, and an Asham, a ram worth two Shekalim.

(d) If the animal died a natural death and they both swore that an O'nes occurred, they will both bring a Chatas - because the Socher is Patur either way, and the Sho'el is Chayav.

(a) If the animal was stolen and they both swore that it died naturally from work - they will both bring an Asham (because they both exempted themselves from having to pay).

(b) If they both swore that ...

1. ... the animal died from work, when really it died naturally - the Sho'el (who exempts himself from having to pay) will bring an Asham, and the Socher (who is Patur either way), a Chatas.
2. ... the animal died naturally, when in fact it was stolen - the Sho'el (who is Chayav to pay either way), brings a Chatas, and the Socher (who exempted himself from paying), an Asham.
(c) Rebbi Yirmiyah, who lists all these cases, is coming to preclude the opinion of Rebbi Ami who learns from the Pasuk "O Nefesh Ki Sishava le'Vatei bi'Sefasayim" - that the obligation to bring a Chatas for a Shevu'as Bituy (a Shevu'ah from which one gains nothing) is confined to where the sinner swore of his own volition, but not where he swears under the auspices of Beis-Din.
(a) Rav holds 'Shomer she'Masar le'Shomer Patur'. Abaye explains that this even pertains to a Shomer Sachar who handed the deposit to a Shomer Chinam (thereby effectively diminishing the Shemirah) - because when all's said and done, he handed it to a responsible person.

(b) He is Patur - from whatever he would have been Patur from had he continued to look after it himself.

(c) Abaye comments - that when Rebbi Yochanan declares a Shomer she'Masar le'Shomer liable, he is referring even to a Shomer Chinam who handed it to a Shomer Sachar (thereby enhancing the Shemirah) - because the owner can argue that he did not want anybody else to handle his Pikadon.

(d) The Shomer is then liable - even for Onsin (see Tosfos DH 'Ein').

(a) In the story of the gardeners and their hoes, when the gardener went to participate in a local wedding - he handed his colleagues spades to the same old woman to whom they normally tended to hand them.

(b) When the hoes were stolen from the old woman, and Rav ruled that the appointed Shomer was Patur, one of the Talmidim (who cited Rav above) thought that it was because Rav holds 'Shomer she'Masar le'Shomer, Patur'. Rav Chisda disillusioned him however - by attributing Rav's lenient ruling to the fact - that they regularly deposit their hoes with that old woman (dispensing with the argument that the owner does not want his Pikadon to be in anybody else's hands).

(c) In that case, Rebbi Ami explained to Rebbi Aba bar Mamal, our Mishnah, which gives validity to a Socher who lends the Pikadon to a Sho'el, must be speaking when the owner authorized him to do so. Nevertheless, the Sho'el pays the Socher and not the owner - because the Tana is speaking when the owner gave the Socher permission to give it to him (and not when he instructed him to do so).

(a) The Beraisa rules that if a Shomer who accepts money as a deposit and slings it over his shoulders, or places it in the charge of his young children without securing the door properly - he is liable.

(b) From the fact that the Tana refers to *young* children - we can deduce that if he gave the money to his grown-up children, he would be Patur.

(c) Rami bar Chami asks on this from the current ruling of Shomer she'Moser le'Shomer Chayav? Why do we not say here as well, that the owner does not want his money to be in the hands of the Shomer's grown-up children?

(d) Rava answers - with the principle that when someone deposits something with a Shomer, he does so on the understanding that his wife and grown-up children will share the responsibility.




(a) The Neherda'i prove the principle that when someone deposits something with a Shomer, he does so on the understanding that his wife and grown-up children will share the responsibility - from the Lashon of the Tana 'O she'Masran li'V'no u'le'Vito ha'Ketanim' - implying that when it comes to depositing a Pikadon with strangers, the Tana draws no distinction between small children and grown-ups, and the Shomer is Chayav either way. Consequently, the reason that he is Patur for handing it to his grown-up children must be because of the above principle.

(b) Otherwise - the Tana ought to have said 'O she'Masran li'Ketanim'.

(a) Rava concludes that 'Shomer she'Masar le'Shomer Chayav' - because the owner can refuse to accept the Shevu'ah of the second Shomer (who [seeing as he did not choose in the first place], he is under no obligation to trust).

(b) The difference between Rava's reason and that of Abaye ('Ein Retzoni she'Yehei Pikdoni be'Yad Acher') is - either when the first Shomer is able to swear or when there are witnesses to back up the second Shomer's claim (i n which case the first Shomer will be Patur).

(a) According to Abaye quoting Rabah, if, due to the negligence of the Shomer, the animal walked out of the field into a public meadow and died, the Shomer is Chayav - even according to those who hold 'Techilaso bi'Peshi'ah ve'Sofo be'O'nes Patur' ...

(b) ... because the owner can claim that it is the air of the meadow that killed it.

(c) Abaye (and subsequently Rava) say that a Dayan who rules otherwise - is not a Dayan.

(d) Rava quoting Rabah rules that he is Patur (even according to those who hold 'Techilaso bi'Peshi'ah ve'Sofo be'O'nes Chayav' - because the Angel of Death would have caught the animal just the same had it remained where it was.

1. Abaye concedes that the Shomer is Patur in spite of his initial negligence - once he has returned the animal to its original location.
2. Rava concedes that he is Chayav because of his negligence - in the event that the animal got stolen from the meadow and died in the domain of the Ganav (even though the Angel of Death would have caught him anyway), because he is liable for the animal's theft.
(b) On the previous Amud, Rebbi Aba bar Mamal queried the ruling that 'Shomer she'Masar le'Shamar Chayav', from our Mishnah, which discusses a Socher who lent a Pikadon to a Sho'el, on the ruling that 'Shomer she'Masar le'Shamar Chayav', and we answered by establishing the Mishnah when he did so with the owner's consent. Why, Abaye asks Rava (based on the fact that the Tana is talking about an animal that dies naturally), could we not simply answer 'Mal'ach ha'Ma'ves, Mah Li Hacha. u'Mah Li Hasam'?

(c) To which Rava replies - that the very Kashya only begins according to Abaye, who cites Rabah's reason as 'Ein Retzoni she'Yehei Pikdoni be'Yad Acher'. Whereas according to his presentation of Rabah (that Shomer she'Masar le'Shomer is Chayav, because 'Ant Meheiman Li bi'Shevu'ah ... '), the Kashya does not even get off the ground, since in our Mishnah, it is the *first* Shomer who is swearing.

(a) The Mishnah in 'ha'Socher es ha'Po'alim' holds the Shomer liable if the animal that he took up to the cliff-top fell off and died - implying that if the animal died there naturally - he would be Patur (a Kashya on Abaye, in whose opinion he ought to be Chayav because 'the air of the mountain killed it'). If the mountain air didn't kill it - then the climb might have done.

(b) We reconcile Abaye with the Mishnah - by establishing the latter by a particularly good grazing area which all the local shepherds would use (in spite of its awkward location).

(c) He is nevertheless ...

1. ... Chayav even if the animal fell off - because he should have held on to it.
2. ... Patur in the Reisha, where the animal climbed up on its own initiative and fell off - because the Tana speaks when the animal was so keen to get there, that it dragged him up too, and he was unable to hold it back.
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