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Bava Metzia 42

BAVA METZIA 42 (19 Teves) - has been dedicated to the memory of Hagaon Rav Yisrael Avraham Abba ben Harav Chaim Binyamin Ze'ev Krieger ZT"L, author of Yad Yisrael (on Rambam) and many other Sefarim, by his son, Benayahu Krieger.


1) We already discussed (earlier in the Perek) our Mishnah 'sha'Mafkid Ma'os Eitzel Chaveiro, ve'Tzareran ve'Hifshilan la'Achorav ... '. The Mishnah concludes that a Shomer who guarded the Pikadon in the regular way - is Patur.


(a) Rebbi Yitzchak, explaining the Pasuk in Re'ei (in connection with Ma'aser Sheini money) "ve'Tzarta ha'Kesef *be'Yadcha*" ...
1. ... literally - states that the only way to guard the money that one is transporting, is by holding it in one's hand (even if it is wrapped).
2. ... metaphorically - states that one should always have one's money on hand (and not give it for safekeeping to someone who lives in another town), in case a lucrative deal comes his way unexpectedly and he needs the money fast.
(b) Rebbi Yitzchak advises a person to invest his money - one third in land and one third in business, and the remaining third, he should hold in cash.

(c) From the Pasuk "Yetzav Hashem Itcha es ha'B'rachah *ba'Asamecha*" he learns - that Hashem's blessing is likely to occur only if the commodity in question is hidden from the eye (meaning that the owner does not know how much there is).

(d) Tana de'Bei Rebbi Yishmael explains the same Pasuk to mean - that the blessing will only occur if it cannot be seen (i.e. it is locked away out of sight).

(a) The Beraisa instructs someone who goes to measure the grain in his granary (in order to Ma'aser it), should pray that Hashem sends a blessing to those crops. As he begins to measure it - he should recite a B'rachah blessing Hashem for complying.

(b) A B'rachah that he recites after having measured his crops - is valueless, because it is not 'Samuy min ha'Ayin'.

(c) 'Ein ha'B'rachah Metzuyah Ela be'Davar ha'Samuy min ha'Ayin' incorporates - something hat has been weighed, measured or counted.

(a) Shmuel rules that money that one is not transporting - must be buried in the ground for safekeeping.

(b) Shmuel will agree that this is not necessary - on Erev Shabbos at dusk, when the Chachamim did not obligate a Shomer to take the trouble, since it so close to Shabbos.

(c) He will however, be held liable on Motza'ei Shabbos, should anything happen to the money that he hid on Friday late afternoon - if he had time to bury it after Shabbos, but failed to do so.

(d) He will he be Patur even after that time lapse on Motza'ei Shabbos - in the event that the depositor is a Talmid-Chacham, who, he thinks, may need the money for Havdalah (which is why he did not bury it).

(a) After they discovered ...
1. ... Geshusha'i (who would poke the earth with metal spit-rods to find out whether money was hidden there) at work - Rava instituted that the place to hide money for safeguarding was among the rafters.
2. ... F'ruma'i (roof-breakers) - he changed this to inside the walls.
3. ... T'fucha'i (wall-tappers) - he changed it again to the top or bottom Tefach of the wall (where the money is difficult to locate).
(b) The Shiur Raban Shimon ben Gamliel gives to exempt the owner of Chametz from searching for Chametz on top of which a wall collapsed - is three Tefachim, the minimum depth that a hungry dog would be unlikely to pull it out.

(c) That depth would not be necessary in the case of hiding money (according to Shmuel, says Rav Ashi,) - because money, unlike food, will not attract dogs by its smell.

(d) Consequently, says Rafram from Sichra, the depth in the ground required by Shmuel is one Tefach (so that it should be invisible).

(a) The money that a Shomer had been given for safekeeping and which he hid in a hunter's hut - was stolen.

(b) Despite the fact that the hunter's hut was a good Shemirah against thieves, Rav Yosef nevertheless obligated the Shomer to pay - because it was considered negligence as far as fire was concerned, and (coupled with the fact that, had he placed it somewhere else [where it was safe from fire], it would not have been stolen), we apply the principle 'Techilaso bi'Peshi'ah, ve'Sofo be'O'nes, Chayav'.

(c) Others say that he exempted him from paying - but the Halachah is 'Techilaso bi'Peshi'ah, ve'Sofo be'O'nes, Chayav', like the first Lashon.

(d) When a Shomer claimed that he could not remember where he placed the money that someone gave him for safekeeping - Rava ruled that 'I don't know' (or 'I don't remember') is always considered negligence, and obligated him to pay.




(a) When the Shomer to whom a sum of money was given for safekeeping gave to his mother - she placed it in a box and it was stolen.

(b) Rava did not consider ...

1. ... the Shomer liable for giving the money to his mother - because of the principle 'Kol ha'Mafkid, al Da'as Ishto u'Vanav Hu Mafkid' (as we learned earlier in the Perek).
2. ... the mother liable for placing the money in a box rather than in the ground - because she thought that the money belonged to him (and that was where he usually put his money [see Tosfos Rabeinu Peretz]).
3. ... the Shomer liable for not informing his mother that the money was not his - because he figured that if his mother believed the money to be his, she would be even more careful.
(c) So Rava obligated the Shomer to swear that he handed the money to his mother, and the mother that she had placed the money in a box, and that it was stolen from there.
(a) When a certain Apotropus purchased on behalf of Yesomim - he handed it to a cowhand. However, the cow had no teeth, and because it was unable to eat, it died.

(b) This time it was Rami bar Chama who was in a quandary. He did not consider ...

1. ... the Apotropus liable - because, he claimed, he handed it to the cowhand (whom he assumed was an expert).
2. ... the cowhand liable - because the cowhand claimed that he placed it together with the other cows and gave it food. How was he to know that it didn't eat the food?
(c) The cowhand would have been liable had the Yesomim sustained a loss - because, in his capacity as the Yesomim's Shomer Sachar, he should have checked that the cow was eating.

(d) The reason that they did not sustain a loss is - because they found the seller and claimed their money back.

(a) The claimant was the middle man who had bought the cow from the original owner and sold it to the Apotropus, without knowing that it had no teeth (something which the original owner must have known, and could therefore not have claimed from the cowhand).

(b) He was claiming - that the cowhand should have informed him of the 'Mekach Ta'us' before the animal died, in which case he could have Shechted the animal and eaten it, or returned it to its original owner and claimed his money back.

(c) Rami bar Chama therefore - obligated the middle-man to swear that he did not know that the cow had no teeth, and the cowhand to pay him for the cow 'D'mei Basar be'Zol (as if it was cheap meat).

(d) 'D'mei Basar be'Zol' means - two thirds of the regular price.

(a) Despite the fact that the cowhand was not the Shomer of the middle-man, he was nevertheless obligated to pay him (and could not refuse to deal with him on the basis of 'La'av Ba'al Devarim Didi At') - because we rule like Rebbi Yossi, who says at the beginning of the Perek, that under similar circumstances, the Sho'el has to pay the owner of the cow, who stands in for the Socher (who is the real claimant, but who lost nothing), so too, the seller stands in for the Yesomim (the real claimant, but who lost nothing), to claim from the cowhand.

(b) Had the Yesomim sustained a loss - the cowhand would have had to pay them in full.

(c) The reason for the difference is - because on the one hand, the cowhand's negligence was not absolute (as we just explained), so Rami bar Chama made a compromise; on the other hand, one does not compromise when it comes to the money of Yesomim Ketanim, since Yesomim Ketanim are not 'B'nei Mechilah' (they cannot be Mochel).

(a) When Reuven handed Shimon a pile of hops to look after, and Shimon instructed his servant to fetch him some hops from his own pile - the servant brought him hops from the pile that belonged to Reuven.

(b) Rav Amram did not obligate ...

1. ... Shimon to pay - because he clearly instructed his servant to bring him hops from his own pile.
2. ... the servant - because Shimon did not say 'Take from this pile but not from that one.' (leaving open the possibility that 'this pile' was nothing more than an indication ['Mar'eh Makom Hu Lo'], but that he did not mind him taking from the other one).
(c) Rav Amram would have held Shimon liable - had his own pile been close by, and Reuven's far, if the servant would have then taken a long time to fetch the hops and he would have remained silent (a clear indication that he was satisfied with the servant's mistake).
(a) The problem we have with the fact that, when all's said and done, Shimon benefited from Reuven's hops is - why he was not obligated to pay for the Hana'ah, even though he was not liable to pay for carelessness.

(b) Rav Ashi answers - that Reuven's hops contained thorns, and his beer turned out to be inferior. And for that he did indeed pay (see Tosfos DH 'be'Kisi').

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