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Kollel Iyun Hadaf, Jerusalem

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Bava Metzia 41

BAVA METZIA 41 (18 Teves) - Mrs. Estanne Abraham-Fawer has dedicated two weeks of learning to honor the second Yahrzeit of her father, Reb Mordechai ben Eliezer Zvi (Weiner, who passed away 18 Teves 5761). May the merit of supporting and advancing the study of the Talmud be l'Iluy Nishmaso.



(a) We just established the Reisha of the Mishnah (which exempts the Shomer from paying once he has replaced the article) like Rebbi Yishmael, who holds 'Lo Ba'inan Da'as Ba'alim'. The author of the Seifa, which obligates the Shomer to pay even if the barrel broke after he returned it to its place - is Rebbi Akiva, who holds 'Ba'inan Da'as Ba'alim'.

(b) The Tana refers specifically to where the owner designated a location for the barrel (not to preclude where he did not, but) because if he did not, it would be obvious that he is Chayav, seeing as there is no correct place to which to return it.

(c) It is acceptable to establish the Reisha of a Mishnah like one Tana, and the Seifa, like another, because ...

(d) ... Rebbi Yochanan said that if anyone would explain our Mishnah like one Tana - he would carry his clothes behind him to the bathhouse (like a slave does for his master).

(a) Various Amora'im do succeed in establishing the Mishnah like one Tana, though they first argue over another issue, as we shall see. They explain that the Shomer is Patur in the Reisha - because wherever he placed it is its location, but Chayav in the Seifa - which speaks specifically when the owner designated a location in the Shomer's house, and when the Shomer placed it somewhere else.

(b) According to them, the author of both the Reisha and the Seifa - is now Rebbi Yishmael.

(c) Rebbi Ya'akov bar Aba established the Mishnah in front of Rav when the Shomer took the barrel with the intention of stealing it. Rebbi Nasan bar Aba established it - when he took it in order to use it for himself (to take some wine from it).

(d) Rebbi Ya'akov bar Aba did not want to learn like his brother - because, according to him, the Torah only obligates a Shomer who is 'Shole'ach Yad be'Pikadon' if he uses some of it up ('Tzerichah Chesaron', meaning that the Pikadon depreciates on account of his usage), whereas Rebbi Nasan bar Aba disagrees (and this Machlokes will be explained shortly).

(a) Rav Sheishes objects to the previous explanations on the grounds that they do not fit the Lashon used by the Mishnah - which says 'Tiltelah' ('he moved it'), ad not 'Natlah' *he took it).

(b) So he explains that the Shomer simply moved the barrel from one location to another for the birds to alight on it. And the Chiyuv in the Seifa is based on the principle 'Sho'el she'Lo mi'Da'as Gazlan Havi' (someone who borrows without permission, is a thief).

(c) In any event, he is Chayav in the Seifa, because he did not put it back in its correct place, even according to Rebbi Yishmael (as we explained). Rebbi Yochanan nevertheless has a problem with establishing the Mishnah like one Tana - because in his opinion, 'Hinichah' (in the Mishnah) implies in its correct location (in which case the author of the Seifa can only be Rebbi Akiva).

(a) From the Pasuk in Mishpatim "u'Meis ... Shevu'as Hashem Tihyeh Bein Sh'neihem Im Lo Shalach Yado bi'Meleches Re'eihu" we learn - that 'ha'Shole'ach Yad be'Pikadon Chayav' (even for Onsin).

(b) Rav and Levi argue over whether Shelichus Yad requires a Chesaron or not. The ramifications of their Machlokes are - whether a Shomer who uses a Pikadon without it depreciating, is Chayav for Onsin or not.

(c) The Beraisa exempts a shepherd who left his flock and went to town, if a wolf came and was 'Toref', or a lion and was 'Do'res'. 'Toref' means - that the wolf carried the sheep to its lair before eating it; 'Do'res', that the lion ate it on the spot.

(d) He is Patur - because, due to the fact that he left for town at a time when all the shepherds did so, he is considered an O'nes.

(a) The Tana obligates the shepherd to pay however, if he placed his stick or his satchel on the sheep. He is only Chayav as long as it is still on the animal, but not once he has removed them - because our Sugyas goes like Rebbi Yishmael, who holds 'Lo Ba'inan Da'as Ba'alim' (as we learned earlier).

(b) Rav Shmuel bar Yitzchak Amar Rav resolves the problem that Shelichus Yad requires a Kinyan - by establishing the Beraisa when the shepherd hit the animal with his stick.

(c) We ...

1. ... refute the proof from here that Rav is the one to hold 'Shelichus Yad Einah Tzerichah Chesaron' - by amending Rav's statement to read (not 'she'hi'Kishah be'Makel', but) she'Hikchishah be'Makel' (that he created a Chesaron in the animal by beating it hard with the stick.
2. ... prove that this alternative is in fact, the correct one - by stressing the fact that Rav refers to hitting the animal with a stick (and not just hitting it), suggesting that the stroke did more than just make the sheep move.
(d) We know that the Chiyuv here is due to Shelichus Yad (which requires a Kinyan) and not to the fact that he is a Sho'el she'Lo mi'Da'as (which does not) - because the concept of 'Sho'el she'Lo mi'Da'as' is confined to objects that are not immediately prone to depreciation, but something that is, is always subject to Shelichus Yad (and not She'eilah).



(a) Seeing as Rav is the one who holds 'Shelichus Yad Tzerichah Chesaron, Levi must hold ' ... Einah Tzerichah Chesaron'. Levi's reason is based on a statement of Rebbi Yochanan Mishum Rebbi Yossi ben Nahara'i. The Parshah of Shomer Chinam is written first in the Torah, and then that of Shomer Sachar.

(b) "ve'Nikrav Ba'al ha'Bayis el ha'Elokim" (written in the first Parshah with regard to an O'nes that occurred) means - that, following an O'nes, the Shomer Chinam approaches the judge - in order to swear (since he is basically Patur from paying).

(c) When Rebbi Yossi ben Nahara'i says that the Shelichus Yad mentioned by a Shomer Sachar is different than the Shelichus Yad mentioned by a Shomer Chinam, he means - that whereas the former needs to be stated, the latter does not, since, if a Shomer Chinam, who is Patur from Onsin, becomes liable once he uses the article, 'Kal va'Chomer' a Shomer Sachar, who is Chayav for Onsin.

(d) Rebbi Yochanan (who first quoted him) personally holds - that the Torah needs to state both.

(a) Rebbi Yochanan holds like his Talmid, Rebbi Elazar, who says (with regard to the Shelichus Yad of a Shomer Chinam and of a Shomer Sachar) - 'Da ve'Da Achas Hi' (that they are both needed).

(b) They disagree with Rebbi Yossi ben Nahara'i, because they have 'Pircha' on the 'Kal va'Chomer' - inasmuch as a Shomer Chinam has the stringency (over a Shomer Sachar) that he pays double in the case of To'en Ta'anas Ganav (who swears initially, and pays double if he swears falsely; whereas a Shomer Sachar pays the principle immediately).

(c) Rebbi Yossi ben Nahara'i counters - that paying the principle immediately is considered a greater Chumra than paying double only after having sworn falsely.

(a) Rava disagrees with both of the previous D'rashos. He maintains the Shelichus Yad of both a Shomer Chinam and a Shomer Sachar do not need to be written. He learns them both from a Sho'el - who uses the article with the owner's consent, yet he is Chayav for Onsin, how much more so a Shomer Chinam and a Shomer Sachar, who use it without permission.

(b) One of the Pesukim, he therefore concludes, comes to teach us 'Shelichus Yad Einah Tzerichah Chesaron' (like Levi); from the other one he learns - that we do not say 'Dayo' (just as a Sho'el is Patur if the owner is working for the Shomer at the time of the Shemirah, so too, will the Shomer Chinam and the Shomer Sachar be Patur).

(c) Rav and Rebbi Yochanan agree with Rava's latter D'rashah. Seeing however, as they hold 'Shelichus Yad Tzerichah Chesaron', they learn from the other 'Shelichus Yad' - a 'Gezeirah-Shavah' from the Shelichus Yad mentioned a Shomer Sachar specifically in connection with a Shevu'ah, that a Shomer Chinam is only Chayav to pay Kefel only after he has made a Shevu'ah that the article was stolen (but not if witnesses testified that he stole it without his having sworn).

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