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Bava Metzia 94

BAVA METZIA 91-95 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.



(a) The Tana of our Mishnah ...
1. ... permits a Shomer Chinam to stipulate that he will be Patur from a Shevu'ah and a Sho'el that he will exempt from paying.
2. ... invalidates a stipulation that contravenes what the Torah says ...
3. ... and a condition that is preceded by the act that the condition comes to qualify.
(b) For example - if Reuven promises to give Shimon a hundred Manah if he goes overseas for him (instead of vice-versa).

(c) We can infer from the Mishnah's statement 've'Chol she'Efshar Lo Le'kaymo be'Sofo, ve'Hisneh Imo bi'Techilaso, Tena'o Kayam' - that a condition that cannot be fulfilled is invalid.

(d) The reason for all these stringencies is - because they are not similar to the conditions that Moshe made with the B'nei Gad and the B'nei Reuven (which serves as the precedent for all conditions).

(a) The problem with our Mishnah, which permits a Shomer Chinam to stipulate that he will be Patur from a Shevu'ah and a Sho'el from paying is - from the principle 'Kol ha'Masneh al Mah she'Kasuv ba'Torah, Tena'o Bateil'.

(b) We answer by establishing the author as Rebbi Yehudah, who says in a Beraisa 'ha'Omer le'Ishah Harei At Mekudeshes Li al-M'nas she'Ein Lach Alai She'er, K'sus ve'Onah - be'Davar she'be'Mamon, Tena'o Kayam' (incorporating She'er (food) and K'sus (clothes).

(c) The basis for Rebbi Yehudah's distinction between Isur and Mamon is - the fact that Mamon is subject to Mechilah, whereas Isur is not.

(d) We reconcile Rebbi Yehudah with the Seifa 'Kol ha'Masneh al Mah she'Kasuv ba'Torah, Tena'o Bateil' - by establishing the latter too, specifically by Davar she'be'Mamon.

(a) We have a problem with establishing our Mishnah like Rebbi Yehudah from the continuation of the Mishnah, because the Tana who holds 'Kol T'nai she'Yesh Bo Ma'aseh bi'Techilaso, Tena'o Bateil' is - Aba Chalafta Ish K'far Chananyah, who quotes Rebbi Meir to that effect in a Beraisa.

(b) So we establish our Mishnah like Rebbi Meir, who also rules in the Beraisa 'ha'Omer le'Ishah Harei At Mekudeshes Li al-M'nas she'Ein Lach Alai She'er, K'sus ve'Onah - Harei Zu Mekudeshes, u'Tena'o Bateil' (even Davar she'be'Mamon).

(c) We therefore reconcile Rebbi Meir's opinion by Kidushin with his opinion by Shomer - by differentiating between Kidushin, which cannot be effected in halves, and Shomrin, who can undertake to look after somebody's object on whatever terms they wish, provided they do so before the Kinyan.

4) We learned in a Beraisa that a Shomer Sachar can accept the responsibility of a Sho'el. According to Shmuel this requires a Kinyan. Rebbi Yochanan maintains - that this is not necessary, because for the benefit of the good name that this gives him (since people get to know that he is a reliable person who accepts responsibility even when he is not obligated to), he is Meshabed himself even without a Kinyan.


(a) We learned in our Mishnah that a condition that cannot be fulfilled is void. This is the opinion of Rebbi Yehudah ben Teimah, in a Beraisa quoted by Rav Tivla Amar Rav in a case where a man gives his wife a Get on condition that she ascends to the Heaven, goes down to the depths or swallows a cane a hundred Amos long. The Chachamim say there - 'Tena'o Kayam'.

(b) The fourth case quoted by the Beraisa is - on condition that she crosses the sea on foot.

(c) Rav Nachman Amar Rav rules like Rebbi Yehudah ben Teimah, who says there - 'ka'Zeh Get' ('K'lal Amar Rebbi Yehudah ben Teimah ... ').

(d) Rav Nachman bar Yitzchak infer from our Mishnah 'Kol she'Efshar Lo Lekaymo be'Sofo ... Tena'o Kayam', Ha I Efshar Lekaymo, Tena'o Bateil, a proof that the Halachah is like Rebbi Yehudah ben Teimah (like Rav), since it has the support of a S'tam Mishnah (see Tosfos).

***** Hadran Alach ha'Socher es ha'Po'alim *****

***** ha'Sho'el es ha'Parah *****


(a) The Tana of our Mishnah states that if someone borrows a cow together with the owner - he will Patur should an O'nes occur.

(b) Nor will it make any difference if he ...

1. ... (does not borrow, but) hires the owner as he borrows the cow; still he will be Patur.
2. ... hires or borrows the owner *before* borrowing the cow - he will still be Patur.
(c) If however, he borrows the cow first, and then borrows or hires the owner, he will be Chayav - even though the owner is working for him at the time of the O'nes.

(d) Our Mishnah says nothing about someone who hires a cow together with the owner, although the Beraisa will.




(a) Our Mishnah discusses a case of borrowing the owner and the cow simultaneously, which the Tana must mean literally - because the alternative, that he borrowed the owner first, is specifically mentioned in the Seifa.

(b) The problem with that is - that, seeing as he acquires the cow with Meshichah and the owner by agreement, how is this practically feasible?

(c) We give two answers to the Kashya; one of them, that the Tana speaks when the cow is already standing in the borrower's domain, and requires no Kinyan (in which case, he will acquire both at the same time, by agreement). Alternatively - the Tana speaks when upon entering into the agreement to 'acquire' the owner, the borrower stipulated that he will only acquire him as he makes the Kinyan on his cow.

(a) We already learned the Mishnah which discusses the the four Shomrim. The two Shevu'os that a Shomer Sachar needs to make if an O'nes occurred are - that the O'nes was not the result of his negligence, and that he did not use the object prior to the O'nes.

(b) If the third of the three Parshiyos of Shomrim specifically mentions a Sho'el ("ve'Chi Yish'al Ish ... "), we know that the second Parshah is talking about a Shomer Sachar, and the first, about a Shomer Chinam, and not vice-versa - because based on the logic that a Shomer Sachar (who receives remuneration for his services) is more stringent than a Shomer Chinam (who guards it free of charge), the second Parshah, which obligates the Shomer to pay for Geneivah va'Aveidah, must be referring to him, and the first Parshah, which exempts him from Geneivah va'Aveidah, to a Shomer Chinam.

(c) Even though the first Parshah contains the Chumra of paying Kefel by To'en Ta'anas Ganav (as we learned in Bava Kama), following a Shevu'ah - nevertheless, the Chumra of paying the Keren immediately (even without a Shevu'ah) outweighs it (as the old saying goes 'a bird in the hand ... ').

(d) We prove this from Sho'el - who has all the benefits (since he uses the article without having to pay), yet he pays Keren immediately (and not Kefel after a Shevu'ah).

(a) When we say that a Sho'el has *all* the benefits, we are referring to an animal that does not require ...
1. ... feeding - because it is currently in a meadow, where it has all the food it wants.
2. ... looking after - because it is in the care of the town's shepherd.
(b) Alternatively ...
1. ... we amend the statement to read (not all the benefits, but) - most of the benefits (even if we are speaking about a borrowed animal).
2. ... we establish the case without the above problems and without the amendment - by establishing the case (not by an animal, but) by vessels, which require neither feeding nor looking after.
(a) We know that a Shomer Sachar and a Socher are liable to pay for Geneivah, because the Torah writes "Im Ganov Yiganev me'Imo, Yeshalem li'Be'alav". Initially, we learn that they are aso liable for Aveidah - from the word "Yiganev", which would otherwise be superfluous ('Im Eino Inyan li'Geneivah, Teneihu Inyan la'Aveidah').

(b) According to those who hold that the Torah tends to speak in human terms, the B'nei Eretz Yisrael learn it - from a 'Kal va'Chomer' from Geneivah (which is closer to O'nes than Aveidah [whereas Aveidah is closer to Peshi'ah]).

(c) In spite of the 'Kal va'Chomer', the first opinion learns it from a Pasuk (not because it needs to, but) because of the principle 'Milsa de'Asya be'Kal va'Chomer, Tarach ve'Kasav Lah K'ra' (the Torah reserves the right to mention something specifically, even though we know it already from a 'Kal va'Chomer'.

(a) The Torah writes in connection with a Sho'el "ve'Nishbar O Meis". We cannot learn Shevuyah (taken captive) from ...
1. ... Shevurah u'Meisah - because it is less common, and we would not automatically assume that, since the Sho'el did not stipulate to the contrary, he automatically accepts liability for it (like we assume by Shevurah u'Meisah).
2. ... the fact that the Torah gives it the same Din (of Patur) as Shevurah u'Meisah by a Shomer Sachar and a Socher - because if Shevuyah is compared to Shevurah u'Meisah to be exempt, it does not necessarily follow that it will also be compared to them to be liable (for the reason that we just explained).
(b) So we cite Rebbi Nasan, who learns Shevuyah from the word "ve'Nishbar *O* Meis". The problem with this is - that we might need "O" to divide Meisah from Shevurah, because otherwise, we might require the animal to first break a limb and then die before a Shoel will be liable (but not for one without the other).
(a) So we establish Rebbi Nasan like Rebbi Yonasan, who interprets the Pasuk "Aviv ve'Imo Kilel ... " to mean that one is liable for cursing either one's father or one's mother (not necessarily both).

(b) This is based on the fact that the Torah does not write "Yachdav", like it does by Kil'ayim ("Lo Sachrosh be'Shor va'Chamor Yachdav").

(c) Rebbi Yoshiyah agrees with Rebbi Yonasan's ruling, but from a different source. He learns it - from the fact that the Torah precedes the current phrase with "Ish Asher Yekalel es Aviv ve'es Imo", placing "Yekalel" next to "Aviv" in the first phrase, and next to "Imo" in the second.

(d) According to Rebbi Yoshiyah, were it not for the dual mention of 'K'lalah' - a man would not be liable until he cursed both of his parents.

13) We just established Rebbi Nasan like Rebbi Yonasan. In fact we conclude that even Rebbi Yashiyah might agree here that Shevurah u'Meisah does not require "O" Lechalek - because, based on the S'vara 'Mah Li Katlah Kulah, Mah Li Katlah Palgah' (what difference does it make whether the animal dies or is wounded)?, it would be illogical to require both before obligating the Sho'el to pay.

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