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Bava Metzia 98

BAVA METZIA 98 (16 Adar) - dedicated by Mr. Avi Berger of Queens, N.Y. in memory of his father, Reb Pinchas ben Reb Avraham Yitzchak, on the day of his Yahrzeit.



(a) According to Rebbe Yochanan and Rav Nachman, we just established our Mishnah by Eisek Shevu'ah, and we conclude that the Reisha (when he borrowed the cow for part of one day or for a full day, and hired it for the rest of the day or for the subsequent day) speaks when there were two cows. The case is - when the owner claims that he handed him two cows, one on loan for half a day or for a day, and one for rent for the other half of the day or for the following day, and both cows died during the time of She'eilah; to which the Shomer replies that one of the cows did indeed die during the time of She'eilah, but he doesn't know about the other one.

(b) The case in the Seifa (when he borrowed one cow and hired a second one) - speaks when the owner claims that he handed him three cows, two on loan and the third for rent, and that the two cows that died were those that he borrowed, to which the Shomer replies that one of them was indeed one of the borrowed cows, but the other one he doesn't know.

(c) In all the cases, is it necessary to establish that even the cow that the Sho'el admits he borrowed, died - because if it was alive, and he would hand it back to the owner, that would be a case of 'Heilech', and we learned earlier in the Masechta, that 'Heilech' is not subject to a Shevu'ah.

(a) According to Rami bar Chama, we are forced to establish the Reisha when there were three cows, and the Seifa when there were four - because according to him, the obligation of a Modeh be'Miktzas to swear only applies if the defendant denies part of the claim outright.

(b) Denial means - either that the Shomer denies the owner's claim altogether or that he replies that he has already returned the article to him.

(c) Rami bar Chama learns this way because he interprets the Pasuk "Ki Hu Zeh" (the source of 'Modeh be'Miktzas ha'Ta'anah Yishava') to mean - that the Shomer admits to part of the claim and denies part of it (and as we just explained by inference, not knowing is not considered a denial).




(a) We learned in our Mishnah 'Zeh Omer She'ulah, ve'Zeh Omer Sechurah, Yishava ha'Socher she'Sechurah Meisah'. The problem with this is - that the borrower is not admitting to the cow that the owner is claiming, so why should he swear (in fact, he is not admitting at all, since the live animal is Heilech [see Hagahos ha'G'ra])?

(b) This is a problem, because, despite the fact that we just established the Mishnah when there is an extra cow (that died) to which the Shomer admitted - that was according to Rebbi Yochanan and Rav Nachman, but according to Rav Huna and Rav Yehudah, that is not the case.

(c) We resolve the problem by establishing the Mishnah when there is a Gilgul Shevu'ah - when the Shomer has to swear anyway (even if it was the hired cow that died) that the cow died normally, so we make him swear also that he is telling the truth.

(d) Granted, Rami bar Chama just taught us that unless there is an extra cow to which the Shomer admits, he does not need to swear - the Halachah however, is not like Rami bar Chama (who holds that "Ki Hu Zeh" pertains to Shevu'as ha'Shomrim, where it is written), but like Rebbi Chiya bar Yosef, who confines it to Milveh ('Eiruv Parshiyos K'siv Ka'an').

(a) We also learned 'Zeh Omer Eini Yode'a, ve'Zeh Omer Eini Yode'a, Cholkin'. The author of this Mishnah is Sumchus - who says 'Mamon ha'Mutal be'Safek' Cholkin (even when it clashes with a Chezkas Mamon).

(b) The Rabbanan hold - 'ha'Motzi me'Chaveiro' Alav ha'Re'ayah' (and one cannot claim money from the Muchzak with a Ta'anas Safek).

(a) Rebbi Aba bar Mamal asks what the Din will be if a Shomer borrowed a cow be'Ba'alim and then, before the initial period had transpired, he hired it she'Lo be'Ba'alim. Since the Sechirus is a new contract, we might say that it has no connection with the She'eilah, and is therefore considered she'Lo be'Ba'alim. We can say this despite the fact that the Shomer did not make a new Kinyan - since that is only because the cow was already in his Chatzer, and he acquired it automatically via Kinyan Chatzer.

(b) The other side of the She'eilah is - that seeing as all the Chiyuvim of a Socher (Geneivah va'Aveidah) are already included in those of a Sho'el, it is drawn after it ('Meishach Shaichi').

(a) On the basis of the second side of the previous She'eilah, we are prompted to ask - what the Din will be in the reverse case, where the Shomer first hired the cow be'Ba'alim, and then borrowed it she'Lo be'Ba'alim, where, on the one hand, there is a new Chiyuv (Onsin) that did not exist when he was a Socher; but on the other hand, the Chiyuv of Geneivah va'Aveidah pertains to both, so perhaps they are connected after all ('Meishach Shaichi be'Miktzas').

(b) On the basis of the first side of the previous She'eilah, we ask what the Din will be if he borrowed the cow be'Ba'alim, hired it she'Lo be'Ba'alim and then borrowed it S'tam, whether the second She'eilah automatically connects with the first She'eilah, or whether the Sechirus in between disconnects them (strange, seeing as we already concluded that Sechirus she'Lo be'Ba'alim is connected with She'eilah be'Ba'alim that precedes it).

(c) The final She'eilah is the reverse of the previous one - where the Shomer first hired the cow be'Ba'alim, then borrowed it she'Lo be'Ba'alim and then hired it S'tam (the two sides of which follow the same pattern of logic as the previous She'eilah [see Tosfos DH 'Hachi Garsinan').

(a) Our Mishnah states that if Reuven asks to borrow a cow from Shimon, who sends it to him through a son, an Eved, or a Sheli'ach belonging to either of them, and the cow dies on the way - the borrower is Patur.

(b) If however, Shimon sent the cow through any of the above Sheluchim, following the Reuven's request, then he will be liable, and the same will apply - if Shimon informs Reuven of his intention to do so, and Reuven replies in the affirmative.

(c) When the Tana adds 've'Chein be'Sha'ah she'Machzirah', he means - that the same will apply when Reuven returns the cow (before the term of borrowing has concluded). Consequently, if he returns the article through any of the above Sheluchim without a green light from Shimon, he will be liable, whereas if Shimon asks him to do so, or replies in the affirmative following Reuven's informing him of his intention to do so, Reuven will be Patur.

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