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Kollel Iyun Hadaf, Jerusalem

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Bava Metzia 43



(a) The Tana of of our Mishnah forbids a banker to use money that is handed to him wrapped. Consequently - he is not liable if it gets (stolen or) lost, (because he is only a Shomer Chinam, who is Patur from Geneivah va'Aveidah).

(b) If the money is handed to him loose - he will be permitted to use it, and Chayav should it get (stolen or) lost.

(c) If the money is handed to a Balabos (a Shomer) for safekeeping - he is never permitted to use it, and therefore Patur should it get lost.

(d) According to Rebbi Meir, a storekeeper has the same Din as a Shomer. Rebbi Yehudah - ascribes to him the Din of a banker.

(a) The problem with the prohibition of a banker to use money that is given to him wrapped is - that since it is normal to wrap money, how does the fact that it is wrapped indicate that the owner does not want the banker to use it.

(b) Rav Asi Amar Rav Yehudah answers that the Tana speaks when the money is not only wrapped, but sealed as well. Rav Mari - establishes our Mishnah by an unusual knot.

(c) Others present 'Kesher Meshuneh' as a She'eilah - which remains unresolved.

(a) According to Rav Huna, 'Mutarin, Yishtamesh Bahen. Leficach, Im Avdu, Chayav be'Achriyusan', incorporates Ne'ensu, and he interprets 'Avdu' like Rabah, who sometimes interprets ...
1. ... Geneivah - as meaning through armed robbers, and ...
2. ... Aveidah - as when the owner's ship sunk in the sea (both of which are Onsin_.
(b) According to Rav Huna - the banker is liable even if he decided not to use the money (like any other Sho'el).

(c) Rav Nachman exempts him from Onsin - because, in his opinion, not having borrowed the money, he is only a Shomer Sachar unless he actually uses it.

(d) In spite of the fact that the banker has not used the money, Rav Nachman told Rava, he concedes that he is a Shomer Sachar - since he is permitted to use the money should he need it (and that is certainly worth a P'rutah to him).

(a) The Beraisa exempts the treasurer of Hekdesh from Me'ilah, if he deposits wrapped Hekdesh money which he thinks is his, with someone who subsequently spends it - on the grounds that the Shomer, who should not have used it (even without knowing that the money belonged to Hekdesh), is not considered the treasurer's Sheli'ach, and is therefore the one who is Mo'el.

(b) What does the Tana say in the equivalent case, but where the treasurer handed him loose money - the treasurer is Mo'el, because the Shomer had a right to use the money (according to what he knew), and is therefore considered his Sheli'ach.

(c) Rav Nachman asked Rav Huna why, in the Seifa, the Tana needs to add the clause that the Shomer spent the money, seeing as, in his (Rav Huna's) opinion, he would be Chayav even if didn't. Rav Huna replied - that the Tana mentions that he spent it in the Seifa, only to balance the Reisha, where he teaches us that even if the Shomer actually spent it, the treasurer is still Patur.

(a) Beis Shamai say that once a Shomer uses a Pikadon, 'Yilakeh be'Chaser u've'Yeser'. By ...
1. ... 'Yilakeh be'Chaser' they mean - that (based on the Mishnah in Bava Kama 'Kol ha'Gazlanim Meshalmin ke'Sha'as ha'Gezeilah') if the object decreases in value before he destroyed it or got rid of it, the Shomer is obligated to pay the higher price.
2. ... 'Yilakeh be'Yeser' - that if the price increased in value, then he must pay the higher price (how much it was worth at the time that he got rid of it).
(b) The Shomer will not have to pay for the decrease in price - if the Pikadon is still available (in which case he says to the owner 'Harei she'Lecha Lefanecha').

(c) According to Beis Hillel, the Shomer pays 'ke'Sha'as Hotza'ah'. Rebbi Akiva says - that he pays its value at the time that they go to Beis-Din.

(a) Rabah (or Rava) rules that if someone steals a barrel of wine worth a Zuz and it breaks after the price went up to four Zuzim, he pays one Zuz. If he actually breaks the barrel or drinks the wine after the value increased - he pays four Zuzim, because, seeing as, if the barrel had been available, he would have returned it as it is, it transpires that when he broke the barrel or drank the wine, he was committing theft and 'Kol ha'Gazlanim Meshalmin ke'Sha'as ha'Gezeilah'.

(b) Nevertheless, in the first case, he only pays one Zuz - because, since he did not break the barrel, the only theft he committed was when he actually took it from the owner's house, and 'Kol ha'Gazlanim Meshalmin ... '.

(c) Assuming that Beis Hillel in our Mishnah ('ke'Sha'as Hotza'ah') means at the time when it is destroyed, they cannot be referring to the 'be'Chaser' of Beis Shamai - because the principle 'Kol ha'Gazlanim Meshalmin ... ' is unanimous, and Beis Hillel would not argue with it.

(d) So we reassume that they refer to 'be'Yeser'. If however, 'ke'Sha'as Hotza'ah' refers to the lower price of the Pikadon at the time when the Shomer received it from the owner - this presents Rabah (or Rava)with a problem, because it means that he will hold like Beis Shamai, which as we know, is unacceptable.




(a) So we revert to the first assumption (that Beis Hillel argues with Beis Shamai by 'be'Chaser'. The reason that they rule 'ke'Sha'as Hotza'ah (min ha'Olam) is (not because they do not hold of the principle 'Kol ha'Gazlanim ... ', but ) because the Tana is speaking when the Shomer used the Pikadon, but without making a Chesaron, in which he is not a Gazlan (and 'Kol ha'Gazlanim ... ' will not apply); whereas according to Beis Shamai, who holds 'Shelichus Yad Einah Tzerichah Chesaron', he becomes a Gazlan as soon as he uses the Pikadon.

(b) Even Beis Hillel will agree however - that in a case of 'be'Yeser', the Shomer must pay the higher price (like Rabah).

(c) The Kashya this poses on Rava is - that this would mean that Rava, who holds 'Shelichus Yad Einah Tzerichah Chesaron' holds like Beis Shamai (like we asked earlier).

(a) So we try to establish the Machlokes when the Shomer borrowed the object without permission, and Beis Shamai and Beis Hillel argue about 'Sho'el she'Lo mi'Da'as' - Beis Shamai holds ' ... Gazlan Havi', and Beis Hillel, 'Sho'el Havi'.

(b) However this too, is a Kashya on Rava - who holds in Bava Basra that according to the Rabbanan 'Sho'el she'Lo mi'Da'as Gazlan Havi'. And it will mean once more that he will be following the opinion of Beis Shamai.

(a) We finally conclude that Beis Shamai and Beis Hillel are not arguing about a value increase or decrease at all, but about - where the article itself appreciated (e.g. through a growth of wool or the birth of a baby, or depreciated intrinsically.

(b) In fact, Beis Shamai holds like Rebbi Meir, and Beis Hillel, like Rebbi Yehudah, in a Beraisa, where they discuss a case where someone stole a sheep and shore its wool, or it gave birth to babies.

1. Rebbi Meir says there - that the Ganav must give the wool and the lambs to the owner.
2. Rebbi Yehudah says - that he may keep them.
(c) And we prove this explanation from the Lashon 'Chaser ve'Yeser' used by the Tana of our Mishnah - implying an intrinsic increase or decrease, as opposed to 'Zol' and 'Yoker', which is what the Tana ought to have said had he merely been referring to an increase or decrease in value.
(a) Rav Yehudah Amar Shmuel rules like Rebbi Akiva who says in our Mishnah that how the Shomer pays if he uses the article, will depend upon its value at the time of going to Beis-Din. He learns this from the Pasuk in Vayikra - "la'Asher Hu Lo Yitnenu *be'Yom Ashmaso*", and his guilt is determined from the moment he admits to having use it.

(b) If witnesses testify that he used it and they also know how much the article cost at that time - then that is the moment of guilt.

(c) Rav Oshaya queried Rav Yehudah on this point however, from Rebbi Asi Amar Rebbi Yochanan, according to whom - " ... be'Yom Ashmaso" refers to the ruling of Beis-Din, irrespective of whether the Shomer's guilt comes to light through his own admission or through witnesses.

(d) Rebbi Zeira asked Rebbi Aba bar Papa that, when the latter would go to Eretz Yisrael - he should take the long route through 'Sulma de'Tzur', in order to ask Rebbi Ya'akov bar Idi (who lived there) whether his Rebbe Rebbi Yochanan, ruled like Rebbi Akiva or not.

(a) Rebbi Aba bar Papa brought back the reply that Rebbi Yochanan had indeed ruled 'Halachah ke'Rebbi Akiva - Le'olam'.

(b) We initially interpret 'Le'olam' to mean - 'ke'Sha'as ha'Tevi'ah, even if there are witnesses.

(c) It might also come to preclude from Rebbi Yishmael (whom we discussed earlier in the Perek, and) who says - 'Lo Ba'inan Da'as Ba'alim', so Rebbi Yochanan says 'Halachah ke'Rebbi Akiva', and he is Chayav to pay 'ke'Sha'as ha'Tevi'ah', 'Le'olam', even if he put it back after using it (because Rebbi Akiva holds 'Ba'inan Da'as Ba'alim').

(d) Rava disagrees with Rav Yehudah Amar Shmuel and with Rebbi Yochanan. He rules - like Beis Hillel.

(a) Beis Shamai in our Mishnah considers a Shomer a Shole'ach Yad with Machshavah alone - meaning that if the Shomer merely stated his intention to use the Pikadon in the presence of two witnesses, without actually carrying out his intentions, he is nevertheless Chayav for subsequent Onsin, because of Shole'ach Yad be'Pikadon.

(b) Beis Hillel learn from the Pasuk "Im Lo Shalach Yado bi'Meleches Re'eihu" - that a Shomer is not considered Shole'ach Yad unless he actually uses the Pikadon.

(c) If, after the Shomer tilts the barrel of wine he is looking after and helps himself to a Revi'is of wine, the barrel breaks be'O'nes, the Tana obligates him to pay only for the Revi'is - not for the whole barrel, because Shelichus Yad requires a Kinyan (and one does not acquire a barrel by tilting it.

(d) He would become a Shole'ach Yad (and would be liable for any damage to the barrel - if he picked up the barrel before drinking the Revi'is of wine.

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