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Bava Metzia 82

BAVA METZIA 81-85 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.



(a) We try to establish Rebbi Eliezer (who considers the creditor a Shomer Chinam on the Mashkon that he receives from the debtor) by a Mashkon be'Sha'as Halva'ah (one that he received at the time of the loan), whereas our Mishnah (which considers him a Shomer Sachar) is speaking about a Mashkon she'Lo be'Sha'as Halva'ah. The significance of a Mashkon she'Lo be'Sha'as Halva'ah is - that the Sheli'ach Beis-Din claims it when the debtor fails to pay, and Rebbi Eliezer will concede to Rebbi Akiva there that he is a Shomer Sachar, since the purpose of the Mashkon obviously takes the form of payment.

(b) We refute this explanation however - on the basis of the Lashon the Tana of our Mishnah uses, 'ha'Malveh al ha'Mashkon, which implies a Mashkon at the time of the loan (and not afterwards).

(a) We initially reject the suggestion that Rebbi Eliezer is speaking when the creditor lent the debtor *money*, and our Mishnah, when he lent him *fruit* - because, since Rebbi Yehudah makes this distinction, it appears that the Tana Kama holds that, even if the loan consists of money, he is still a Shomer Sachar.

(b) To establish our Mishnah like Rebbi Eliezer - we amend the Mishnah so that the author of the entire Mishnah is Rebbi Yehudah, and it now reads 'Hilveihu al ha'Mashkon Shomer Sachar; ba'Meh Devarim Amurim, she'Hilveihu Peiros ... '.

(c) We reject this explanation on the ground - that our Mishnah will then not go like Rebbi Akiva, contradicting Chazal, who say 'S'tam Mishnah Rebbi Meir, S'tam Sifra Rebbi Yehudah and S'tam Sifri Rebbi Shimon', and that they are all based on the teachings of Rebbi Akiva.

(d) So we finally establish our Mishnah like Rebbi Akiva and not like Rebbi Eliezer (like we suggested originally).

(a) We suggest that Rebbi Eliezer and Rebbi Akiva argue over a statement of Shmuel, who says that - if Reuven lends Shmuel a thousand Zuz against the handle of a scythe, should the creditor lose the handle, he loses his thousand Zuz.

(b) In that case, Rebbi Eliezer does not hold of Shmuel's Din, Rebbi Akiva does. In a case where the Mashkon is equivalent in value to the loan - they will agree that if the creditor loses the Mashkon, he loses his money.

(c) But we conclude that neither Tana holds like Shmuel. In fact - according to Rebbi Eliezer, he would lose nothing, and according to Rebbi Akiva, only as much as the Mashkon was worth.

(a) So we suggest that they argue over Rebbi Yitzchak, who extrapolates from the Pasuk "u'Lecha Tih'yeh Tzedakah" - that a Ba'al-Chov (a creditor) acquires a Mashkon (because otherwise, it would not be considered a charitable act to return it daily).

(b) We now propose - that Rebbi Akiva holds like Rebbi Yitzchak, whereas Rebbi Eliezer disagrees with the latter's ruling.

(c) We conclude however, that this Machlokes has nothing to do with Rebbi Yitzchak - since they are arguing about a Mashkon that is given against a loan, whereas Rebbi Yitzchak is referring specifically to a Mashkon that is claimed later via the Sheli'ach Beis-Din (since that is what the Pasuk in Ki Seitzei is talking about).

(d) In fact, both Tana'im would agree that, in the case of a Mashkon she'Lo be'Sha'as Halva'ah, 'Ba'al-Chov Koneh Mashkon'.

(a) We conclude that in fact they argue over - whether a Shomer Aveidah is considered a Shomer Chinam (Rebbi Eliezer) or a Shomer Sachar (Rebbi Akiva).

(b) What makes a Shomer Aveidah (and a Shomer Pikadon) a Shomer Sachar, according to Rebbi Akiva is - the fact that, based on the principle 'ha'Osek be'Mitzvah, Patur min ha'Mitzvah', the finder (and the creditor) gain the P'rutah they would otherwise be obligated to give a poor man who comes to the door, but are now exempt, should they be busy looking after the article in their safekeeping at the time.

(c) Rabah and Rav Yosef too, argue over this point - Rabah holds that a Shomer Aveidah is a Shomer Chinam; whereas Rav Yosef considers him a Shomer Sachar.

(d) We cannot simply establish Rabah like Rebbi Eliezer and Rav Yosef like Rebbi Akiva - because why should two Amora'im repeat a Machlokes Tana'im (which would only prompt us to ask 'Leima ki'Tena'i'?)

(a) Rabah must hold like Rebbi Eliezer - because if Rebbi Akiva considers a Shomer Mashkon a Shomer Sachar, then how much more so a Shomer Aveidah (where he is fulfilling a specific Mitzvah), in which case, he clearly disagrees with Rabah's reasoning.

(b) Despite the fact that, in the case of Shomer Mashkon, the Tana'im are speaking when the creditor needs the Mashkon for his own purposes (as we will explain shortly), Rebbi Akiva declares him to be a Shomer Sachar - because he is after all, performing a Mitzvah by looking after the Pikadon, and is therefore exempt from giving a P'rutah to a poor man (even though this is all not part of his main consideration).

(c) It is possible, on the other hand, for Rav Yosef to hold like Rebbi Eliezer, who might well agree with Rav Yosef and still hold that a Shomer Mashkon is a Shomer Chinam - because (unlike a Shomer Aveidah) a Shomer Mashkon is acting first and foremost, in his own interest (to use the Mashkon himself or to rent it out to others in order to retrieve his debt), and not for the sake of the debtor.




(a) Aba Shaul in our Mishnah permits a creditor to rent out the Mashkon that he received from a poor debtor, as long as he deducts the proceeds from the debt. Rav Chanan bar Ami Amar Shmuel comments on this - 'Halachah ke'Aba Shaul'.

(b) On the other hand, he qualifies Aba Shaul's ruling - by restricting it to vessels that bring in good money and that do not spoil easily, such as ...


1. ... a Mara - a hoe (or rake).
2. ... a Pesel - an adz (a tool with a sharp edge).
3. ... a Kardum - a spade (or a hatchet).
(a) If a barrel that a porter is transporting breaks, the Tana Kama of our Mishnah obligates even a Shomer Sachar to swear - that it did not break on account of his negligence.

(b) Rebbi Elazar (ben Shamua) comments on the Tana Kama (Rebbi Meir)'s ruling - that he too heard that from his Rebbes, but that he wonders how such a ruling is possible (as we shall see shortly).

(c) Rebbi Meir repeats his ruling in a Beraisa, but Rebbi Yehudah there ays - 'Shomer Chinam Yishava, Shomer Sachar Yeshalem'.

(d) Rebbi Meir's reason is - because he holds 'Niskal La'av Poshe'a' (meaning that someone who falls or drops something in the street is not considered negligent (and what's more, he is even considered an O'nes' [and it is not clear why the more specific Lashon of 'Niskal O'nes' is not used]).

(a) Rebbi Meir rules in the Mishnah in Bava Kama, in a case where, after dropping his jar in the street and it smashes, the owner leaves it lying there - that he is liable for any subsequent damages, because he holds 'Niskal Poshe'a'.

(b) Rebbi Elazar (ben P'das, the Amora) reconciles the two contradictory rulings of Rebbi Meir - by making it a Machlokes Tana'im (whether Rebbi Meir 'Niskal Poshe'a or 'Niskal Ones').

(c) Rebbi Yehudah in the Beraisa here follows his own ruling in the Beraisa in Bava Kama - where he says 'Patur mi'Dinei Adam, ve'Chayav be'Dinei Shamayim', because he holds that Niskal is not Poshe'a, but it is not O'nes either (in which case, a Shomer Sachar will be Chayav).

(a) Rebbi Elazar queries Rebbi Meir's ruling ...
1. ... regarding a Shomer Sachar - because, in his opinion (that Niskal is in any event not an O'nes, like Rebbi Yehudah) he ought to be Chayav.
2. ... even regarding a Shomer Chinam - who ought to be Chayav to pay at least in a case where he was transporting a barrel along flat ground (where it is clear that it broke due to his carelessness).
(b) According to Isi ben Yehudah, the Shomer Chinam might be Chayav even if he was transporting the barrel on sloping ground - if it was a place where people were likely to have seen it, in which case we require witnesses, and a Shevu'ah will not suffice.

(c) Rebbi Meir has no probelm with Isi ben Yehudah - with whom he simply disagrees.

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