# dafyomi

lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THINGS THAT MUST BE DONE IN FRONT OF BEIS DIN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If there is a Beis Din there, he stipulates in
          front of them...
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Rav Safra and Isar had a joint business venture. Rav
          Safra, in front of two people, took half the merchandise
          without telling Isar.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rabah bar Rav Huna:</font></b> Bring two of the three people in
          front of whom you divided, or two witnesses that saw you
          divide in front of three people.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Safra):</font></b> What is the source that three are
          required?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rabah bar Rav Huna - Mishnah):</font></b> If there is a Beis
          Din there, he stipulates in front of them. If not, he
          cannot stipulate. He is exempt from returning, because he
          would lose money.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Safra):</font></b> To take money from the loser and
          give it to the finder requires Beis Din. I only took what
          is mine. I merely clarify that this is my portion. Two
          witnesses suffice!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Support (Mishnah):</font></b> A widow can sell (from the estate for
          her food) not in front of Beis Din.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection (Abaye):</font></b> Rav Yosef bar Minyomi explained that
          the Mishnah teaches that she does not need a Beis Din of
          expert judges, but she must sell in front of three
          people!
<br>
<b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHICH ANIMALS ARE CONSIDERED LOST</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one found an animal in a pen, he need not
          return it. If he finds one in the Reshus ha'Rabim, he
          must return it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If it was in a cemetery, a Kohen may not become Tamei to
          return it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If a man told his son (a Kohen) to become Tamei, or if he
          told him not to return an Aveidah (when this was
          permitted), the son may not listen.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If Reuven helped Shimon load or unload even four or five
          times, Reuven must still help - 'Azov Ta'azov';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon said, the Mitzvah is upon you, you can
               unload it yourself, Reuven is exempt - it says 'Imo
               (with him)';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Shimon is too old or sick to help, Reuven must do
               it himself.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	The Torah only commands to unload, not to load; R. Shimon
          says, even to load.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	R. Yosi ha'Glili says, if the animal was overloaded,
          Reuven is exempt - 'Tachas Masa'o (under its burden)' - a
          burden fit for it.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Gemara - Rava):</font></b> The Mishnah discusses a pen that does
          not induce animals to flee, nor does it guard them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It does not induce animals to flee, for the Mishnah
               says that he need not return it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It does not guard them. If it did, there would be no
               need to teach this;
<br>
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  One returns animals found outside to a guarded
                    pen. All the more so, one need not return
                    animals found in a guarded pen!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Version #1 (Mishnah):</font></b> If one found an animal in a pen, he
          is exempt.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(R. Yitzchak):</font></b> This is when it is within the Techum (2000
          Amos around the city, where one may go on Shabbos).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Inference:</font></b> When it is in the Reshus ha'Rabim, even within
          the Techum, he must return it.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Version #2 (Mishnah):</font></b> If one found an animal in the
          Reshus ha'Rabim, he must return it.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(R. Yitzchak):</font></b> This is when it is outside the Techum.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Inference:</font></b> When it is in a pen, even outside the Techum,
          he is exempt.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHEN NOT TO LISTEN TO PARENTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If it was in a cemetery, a Kohen may not 
          become Tamei to return it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa) Question:</font></b> What is the source that if a man told
          his son to become Tamei, or not to return an Aveidah, the
          son may not listen?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> 'Ish Imo v'Aviv Tira'u v'Es Shabsosai Tishmoru
          Ani Hash-m' - you are all obligated to honor Me.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Inference:</font></b> That is only due to the verse. Without it, we
          would say that he should listen!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Honoring parents is an Aseh, and neglecting an
          Aveidah is forbidden by a Lav and Aseh. An Aseh does not
          override a Lav and an Aseh!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Honor of parents is equated to honor of Hash-m.
          It says 'Kaved Es Avicha v'Es Imecha', and 'Kaved Es
          Hash-m.' Therefore, one might have thought that he should
          listen;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The verse teaches that he may not.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>IS LOADING FOR FREE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The Torah only commands to unload, not to
          load;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Shimon says, even to load.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What does it mean 'not to load'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it means that it is not a Mitzvah to load at all,
               why is it different than unloading?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We learn unloading from 'Azov Ta'azov.'
                    Likewise, we learn loading from 'Hakim Takim'!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, the Torah commands only to unload for
          free, but not to load for free. R. Shimon says, even to
          load for free..
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Unloading is for free, but loading is for
               pay;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon says, both are for free.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is Chachamim's reason?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> If both were for free, the Torah should have
          written only loading, and we could learn unloading from a
          Kal va'Chomer:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Loading does not save the owner from a loss, nor
               does it save the animal from pain, yet one is
               obligated. All the more so one must unload, which
               saves the owner from a loss and saves the animal
               from pain!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rather, unloading was written to teach that
               unloading is for free, but loading is for pay.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	R. Shimon argues. He says that we cannot tell which verse
          discusses which. If only one verse were written, we would
          assume that it teaches unloading!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim hold that the verses are clear, for it
               says 'Rovetz Tachas Masa'o (crouching under its
               load)', and 'Nofelim ba'Derech' (the animal and its
               load are on the ground)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon holds that 'Nofelim ba'Derech' could mean
               that the animal fell and the burden is on it.
<br>
<br>

sjt:
<font><b>1) WHAT DOES THE MITZVAH OF 'KIBUD AV' REQUIRE FROM A PERSON?</b></font><b>
<br>OPINIONS:</b> The Beraisa teaches the source for the law that when the father of a Kohen tells his son to become Tamei with Tum'as Mes, or not to return a lost object, the son should not listen to his father. The Beraisa derives this from the verse, 'Every man shall revere his mother and his father, and keep My sabbaths; I am Hash-m your G-d.' (Vayikra 19:3). This verse teaches that 'Kulchem Chayavim bi'Chvodi' -- 'All of you are obligated in My honor,' and thus Hashem's command overrides the will of one's parent.
</p><p>
The Gemara implies that if not for this verse, the son <i>would</i> be obligated to listen to his father and not return the lost object. Does this mean that every request of a parent, even if it does not benefit the parent, is considered fulfillment of the Mitzvah of Kibud Av?
</p><p>
(a) <b>TOSFOS</b> in Kidushin (32a, DH Rav Yehudah) explains that in the case of a father who tells his son not to return a lost object, the father tells his son to serve <i>him</i> instead of returning the lost object. Tosfos says that if the father tells the son not to return the object for no reason, it would be obvious that the son does not need to listen to his father, and the verse indeed would not be necessary. Apparently, Tosfos understands that the Mitzvah of Kibud Av applies only when the father receives some benefit. This is also the opinion of the <b>RAMBAN</b>, <b>RASHBA</b>, and <b>RITVA</b>.
</p><p>
(b) The <b>RITVA</b> in Yevamos (6a) understands that <b>RASHI</b> there (DH Hitamei) maintains that even when a father makes a request of a son which provides no benefit to the father, the son is obligated to obey because of the Mitzvah of Kibud Av.
</p><p>
(c) The <b>RASHBA</b> in Yevamos seems to have a third opinion. He writes that when a parent commands a child to do something which does not benefit the parent, 'this is not considered Kibud Av which the son is commanded to fulfill, and this type of Kavod has no Mitzvas Aseh which would override even an ordinary Lo Ta'aseh.' The <b>BI'UR HA'GRA</b> (YD 240:36) writes that the Rashba implies that there <i>is</i> a Mitzvah to fulfill the father's request in such a case, but it is not the type of Mitzvah which overrides a Lo Ta'aseh. The <b>CHAZON ISH</b> (Kidushin 32a) understands that the Rashba may understand that this is even a Torah obligation. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A PARENT WHO COMMANDED NOT TO RETURN AN AVEIDAH</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa) Suggestion:</font></b> If a father told his son (a
               Kohen) to become Tamei (Mes), or not to return an
               Aveidah, perhaps he should obey!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> 'Ish Imo v'Aviv Tira'u v'Shabsosai
               Tishmoru' - you are all obliged to honor Me.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference:</font></b> If not for 'Ish Imo v'Aviv Tira'u...', we
               would say that he should listen!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Kivud Av v'Em is an Aseh. An Aseh does not
               override a Lav and an Aseh!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Honor of parents is equated to honor of
               Hash-m. It says 'Kaved Es Avicha v'Es Imecha', and
               'Kaved Es Hash-m'. Therefore, one might have thought
               that he should listen. The verse teaches that he
               should not.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (16b):</font></b> The Aseh of Kivud Av v'Em does not
               override the Lav (for neglecting) and Aseh of
               Hashavas Aveidah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rashba (32a DH Yachol):</font></b> We must say that the
                    father asked his son to serve him. If not,
                    there is no Aseh of Kivud Av v'Em to override
                    Hashavas Aveidah! There is an Aseh of Hashavas
                    Aveidah only if he already picked it up. The
                    Gemara could have answered that the verse is
                    needed for when he did not pick it up. The
                    Gemara answered that in every case one would
                    have thought that Kivud Av v'Em overrides. The
                    primary Perush is that the Gemara asked about
                    an Aseh and Lav of Tum'ah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif and Rosh (17b and 2:28):</font></b> One might have thought
               that if a father told his son to become Tamei, or
               not to return a lost object, he should obey. 'Ish
               Imo v'Aviv Tira'u v'Shabsosai Tishmoru (Ani Hash-m
               Elokeichem)' - you are all obliged to honor Me.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Gemara):</font></b> We learn from 'Ani
                    Hash-m.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah v'Aveidah 11:19):</font></b> If one
               saw an Aveidah and his father told him not to return
               it, he returns it and does not obey. If he would
               obey, while fulfilling Kivud Av he would Mevatel the
               Aseh 'Hashev Teshivem' and the Lav 'Lo Suchal
               Lehis'alem'.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> This is even if the father tells
                    the son not to return it so the son can honor
                    him by bringing to him food. The Rambam holds
                    like the Rif, that if he does not return, he
                    transgresses also a Lav. The primary Perush
                    holds that the Lav is not for an Aveidah
                    (rather, for Tum'as Kohen). This does not
                    affect the Halachah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz (CM 266:5):</font></b> This is only if the Mitzvah of
                    Hashavas Aveidah occurred and then his father
                    told him not to return it. If he was already
                    engaged in serving his father, he is exempt
                    from Hashavas Aveidah, even if his father did
                    not mention the Aveidah. One engaged in a
                    Mitzvah is exempt even from an Aseh accompanied
                    by a Lav. A Shomer Aveidah caring for the
                    Aveidah is exempt from giving Tzedakah, which
                    is accompanied by a Lav. This is not only
                    because there is also a Lav with Hashavas
                    Aveidah (but there is no Lav about Kivud Av
                    v'Em). The Rif (16b) taught that the Lav does
                    not help to override other Mitzvos. However, if
                    the father is here, he is obligated to pardon
                    his honor so the son can return it, or the
                    father himself must return it, for also the
                    father must honor Hash-m. However, there is no
                    obligation on the son as long as he is engaged
                    in Kivud Av v'Em. Do not say that the son is
                    not exempt because the father himself is
                    obligated. If so, also a Shomer Aveidah would
                    be obligated to give Tzedakah!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Mishneh l'Melech:</font></b> Had the father told the son
                    not to return (without a proper reason, merely)
                    to transgress, obviously he would not obey, for
                    the father is a Rasha!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Michtam l'David YD 33):</font></b> The father
                    does not cease to be 'Amcha' for just telling
                    his son not to return it. A Rasha is one who
                    transgressed a Lav for which one is lashed (CM
                    34). Even if the father transgressed Lifnei
                    Iver, there are no lashes, for there is no
                    action. It seems that he did not transgress
                    Lifnei Iver, for he can say that he was testing
                    his son. He is not a Mesis (enticer to sin).
                    The son should obey the Rav, not the Talmid! If
                    he transgressed, he caused his own loss.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Mamrim 6:12):</font></b> If one's father told
               him to transgress Torah, be it a Lav or an Aseh or
               mid'Rabanan, he may not obey. 'Ish Imo v'Aviv Tira'u
               v'Shabsosai Tishmoru' - all of you must honor Me!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Sefer ha'Mitzvos (Aseh 112, cited in Hagahos
                    Maimoniyos 8):</font></b> This shows that one does not
                    become a Rasha through speech (telling someone
                    to transgress). This is because the listener
                    should obey the Rebbi (Hash-m), not the Talmid.
                    If the father became a Rasha for this, we would
                    not need a verse to teach that one does not
                    obey! The only one punished for such speech is
                    one who entices to serve idolatry.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (12):</font></b> If one's father told him 'bring to me
               water', and there is another Mitzvah to do, if
               someone else can do the other Mitzvah, the son lets
               them do it and serves his father. If not, he does
               the Mitzvah and abandons Kivud Av v'Em, for also his
               father is obligated in the Mitzvah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Michtam l'David (ibid.):</font></b> In Hilchos Aveidah,
                    the Rambam connotes that he must return only
                    because there is a Lav and an Aseh. Here, he
                    says that one does not obey his father to
                    transgress even a mid'Rabanan! Me'il Shmuel
                    says that there the Rambam discusses when the
                    father said 'serve me, and do not return it.'
                    Here, he discusses when the father told him to
                    transgress for no reason, for then there is no
                    Mitzvah of Kivud Av v'Em. This is wrong. The
                    Gemara concluded 'you are all obliged to honor
                    Me.' This teaches that one may not transgress
                    even a Lav mid'Rabanan. If one's father and
                    mother both requested water, he honors the
                    father, for also his mother must honor his
                    father! In Halachah 13, the Rambam discusses
                    when the Mitzvos of Kivud Av v'Em and Hashavas
                    Aveidah come to the son at the same time (Kesef
                    Mishneh), and he rules that one serves his
                    father if someone else can do the other
                    Mitzvah. In Hilchos Aveidah, since there is
                    also a Lav, the son must return the Aveidah
                    even if someone else could.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Kesav v'Chosam R. Akiva Eiger 30a
                    Tosfos DH Ha):</font></b> The Gemara said that Kivud Av
                    v'Em, an Aseh, does not override a Lav and an
                    Aseh. Rashi explains that this refers to
                    Hashavas Aveidah. Tosfos explains that it
                    refers to Tum'as Kohanim. Presumably, Tosfos
                    did not say that it refers to Hashavas Aveidah,
                    because this would not need a verse. Monetary
                    matters do not override Isurim. However, the
                    Riva (in Tosfos Chulin 141a DH Lo) says that
                    even though an Aseh is not Docheh a Lav and an
                    Aseh, it is Docheh lashes for the Lav. If so,
                    why does the Gemara question the need for a
                    verse? If not for the verse, we would say that
                    Kivud Av v'Em is Docheh the lashes for Tum'ah!
                    This is not difficult for Rashi, for in any
                    case one is not lashed for not returning an
                    Aveidah, since Ein Bo Ma'aseh. (Still, we could
                    ask why the Gemara asked. Perhaps the Tana
                    holds that one is lashed for Lav she'Ein Bo
                    Ma'aseh!)
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer #1 (ibid.):</font></b> Since we know that it is not
                    Docheh, just one might have thought that the
                    Aseh exempts from lashes, the Beraisa should
                    have taught that Kivud Av is not even Docheh a
                    plain Lav.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer #2 (ibid.):</font></b> Even if one who tells a
                    stranger to transgress is a Rasha, there was a
                    Hava Amina that Kivud Av v'Em overrides Isurim.
                    If it did, one would be permitted to tell his
                    child to transgress. Therefore, in any case we
                    need a verse!
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 240:15):</font></b> If one's father told him
               to transgress Torah, be it a Lav or an Aseh or
               mid'Rabanan, he may not obey.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (26):</font></b> Yevamos 6a connotes that only Kares
                    is not Nidcheh for Kivud Av v'Em. However, the
                    Medrash Rabah (14:6) brings this after teaching
                    that we do not follow a king's command to
                    transgress, even though (normally) one who
                    violates the king's command is Chayav Misah. We
                    do not transgress any Devar Torah to honor a
                    king, all the more so for Kivud Av v'Em!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 266:5):</font></b> If one's father told him
               not to return an Aveidah, he does not obey.
<br>

<p>


lvr: 42
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>PAIN TO ANIMALS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> From both Tana'im we learn that the Torah
          commands to minimize pain to animals.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even R. Shimon argues only because we cannot tell
               which verse discusses which. If we knew, he would
               make the Kal va'Chomer like Chachamim!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> The Kal va'Chomer is due to pain to
               animals.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps it is due to monetary loss of the
               owner.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  One must load even though it does not save the
                    owner from a loss. All the more so one must
                    unload, which saves the owner from a loss!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> Sometimes loading save the owner from a
               loss. A delay loading would reduce the time he has
               to sell his goods in the market, or robbers will
               take everything he has!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Support (for Rava - Mishnah - R. Yosi ha'Glili):</font></b> If the
          animal was overloaded, Reuven is exempt - 'Tachas Masa'o
          (under its burden)' - a burden fit for it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Chachamim obligate helping even in this
               case.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> This is mid'Oraisa, due to pain to
               animals.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps Chachamim simply do not expound
          'Tachas Masa'o'!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Support (that pain to animals is not (forbidden)
          mid'Oraisa - Mishnah):</font></b> If Shimon said 'the Mitzvah is
          upon you. You can unload it yourself', Reuven is exempt.
          We learn from 'with him'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If pain to animals were mid'Oraisa, whether or not
               Shimon helps, Reuven would be obligated!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> Really, pain to animals is mid'Oraisa;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah teaches that Reuven is exempt from
               unloading for free. He must unload, but he can
               demand payment.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> When Shimon helps, Reuven must unload for free. When
               he does not help, Reuven unloads for pay.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Support (for Rava - Beraisa):</font></b> One must help with a
          Nochri's animal like with a Yisrael's.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We understand this if pain to animals is mid'Oraisa.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it is not, what is the reason?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> It is to avoid resentment.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Support (for rejection - Beraisa):</font></b> If it was carrying
          forbidden wine, he is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We understand this if pain to animals is not
               mid'Oraisa.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it is mid'Oraisa, what is the reason?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> The Beraisa means, he is exempt from loading
          forbidden wine (but he is commanded to unload it).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (against Rava - Beraisa):</font></b> If a Nochri's animal
          bears a Yisrael's burden, 'v'Chodalta (you refrain)'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If pain to animals is mid'Oraisa, he should be
               obligated!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The Beraisa discusses loading.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Seifa):</font></b> If a Yisrael's animal bears a
               Nochri's burden, 'Azov Ta'azov (help him).'
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If pain to animals is not mid'Oraisa, he should
                    be exempt!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> He is liable due to pain to the Yisrael.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If so, he should be obligated also in the
               Reisha!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> The Reisha discusses a Nochri donkey-driver.
               The Seifa discusses a Yisrael donkey-driver.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> The Beraisa does not specify. Why should
               we assume that this is the case?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> Normally, one goes with his animal.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Objection:</font></b> The Beraisa cannot discuss loading. The verses
          cited ('v'Chodalta' and 'Azov Ta'azov') are written
          regarding unloading!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, the Tana is R. Yosi ha'Glili, who says
          that pain to animals is not mid'Oraisa.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (against Rava - Beraisa):</font></b> If Reuven's friend
          needs help unloading and Reuven's Sonei (one he hates)
          needs help loading, Reuven helps his Sonei, to overcome
          his Yetzer Ra (evil inclination).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If pain to animals is mid'Oraisa, unloading should
               take precedence!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> Even though pain to animals is mid'Oraisa, it is
          more important to overcome his Yetzer Ra.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> The 'Sonei' discussed (in the Torah)
          is a Yisrael, not a Nochri.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If pain to animals is mid'Oraisa, it should make no
               difference!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa does not refer to 'Sonei' written in
          the Torah, rather, to 'Sonei' in the Beraisa.
<br>

<p>

sjt:
</p><p>
<font><b>2) THE SOURCE FOR 'TZA'AR BA'ALEI CHAYIM' IN THE TORAH</b></font><b>
<br>OPINIONS:</b> According to one opinion in the Gemara, the precept of 'Tza'ar Ba'alei Chayim' is a Torah prohibition. What is the source for this?
</p><p>
(a) The <b>RITVA</b> and <b>RABEINU PERETZ</b> understand that this opinion maintains that 'Tza'ar Ba'alei Chayim' is a Halachah l'Moshe mi'Sinai.
</p><p>
(b) The <b>SHITAH MEKUBETZES</b> quotes the <b>RA'AVAD</b> who says that this law may be derived from the prohibition against muzzling an ox while it threshes (Devarim 25:4), which teaches that one may not cause pain to an animal.
</p><p>
(c) <b>RASHI</b> in Shabbos (128b, DH Tza'ar Ba'alei Chayim) explains that this opinion understands that the prevention of pain to an animal is the reason behind the Mitzvah of Perikah (Shemos 23:5), unloading an overburdened animal.
</p><p>
The <b>RAMBAN</b> (33a) asks that according to the opinion that 'Tza'ar Ba'alei Chayim' is mid'Oraisa, why does the Torah exempt a Zaken (a Torah scholar) from the Mitzvah of Perikah?
</p><p>
1. The Ramban answers that the Torah deems that upholding the honor of the Torah takes precedence over preventing pain to an animal.
</p><p>
This answer suffices only according to the Rishonim who understand that a 'Zaken' is a Torah scholar. Other Rishonim (see Insights to 30b) maintain that a 'Zaken' refers to anyone for whom such an act is below his dignity. According to those Rishonim, why is a Zaken exempt from Perikah?
</p><p>
2. The <b>RAN</b> answers that an exception to the prohibition of 'Tza'ar Ba'alei Chayim' is where man will benefit. Indeed, the <b>REMA</b> (EH 5:14) explicitly rules that any benefit to man (which is deemed a necessary benefit) overrides the prohibition of 'Tza'ar Ba'alei Chayim.' Similarly, the necessity for a man to maintain his dignity is considered a necessary benefit, and therefore it overrides the concern for the animal's suffering.
</p><p>
The <b>MINCHAS CHINUCH</b> (#80) utilizes this idea to explain the Gemara which says that when one is faced with the choice of helping his friend unload his animal or helping his enemy load his animal, he should choose to help his enemy load his animal. The Gemara asks that making the suffering animal of his friend wait is considered 'Tza'ar Ba'alei Chayim,' and thus he should unload his friend's animal first. The Gemara answers that it is more beneficial for him to subdue his Yetzer ha'Ra by helping his enemy first. Why, though, should the animal suffer as a result of one's desire to work on his Yetzer ha'Ra? The Minchas Chinuch explains that since 'Tza'ar Ba'alei Chayim' is suspended for the needs of man, there is no greater need of man than to defeat his Yetzer ha'Ra. (Y. Montrose)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LIMITATIONS OF THE MITZVAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> 'Rovetz (crouching)' - not an animal
          that always crouches, nor an animal standing under its
          load;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Tachas Masa'o' refers to a load that it can stand
               under. Also, this excludes an unloaded animal (that
               must be loaded again).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If pain to animals is mid'Oraisa, he should be
               obligated even if it always crouches or is standing!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> The Tana is R. Yosi ha'Glili, who says that pain
          to animals is mid'Rabanan.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Support:</font></b> The Beraisa says that 'Tachas Masa'o' refers to
          a load that it can stand under. We know that R. Yosi
          ha'Glili expounds this way!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa cannot be R. Yosi ha'Glili!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Seifa):</font></b> 'Tachas Masa'o' excludes an unloaded
               animal.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What does this mean?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It cannot mean that there is no Mitzvah to load
                    an unloaded animal. It says 'Hakim Takim'!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, there is no Mitzvah to load it for
               free, only for pay. This is like Chachamim!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, the Tana is R. Yosi. Regarding loading,
          he agrees with Chachamim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa) Suggestion:</font></b> Perhaps 'Ki Sir'eh' means when you
          will see, even from afar!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> 'Ki Sifga (when you will encounter).'
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Perhaps 'Ki Sifga' means literally, when you
          will encounter (come close (Levush), i.e. within four
          Amos (Chidushei R. Yehonasan))!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> It says 'Ki Sir'eh.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We fulfill both verses through seeing that is like
               encountering. Chachamim estimated, when it is one
               Ris (seven and a half Ris equals one Mil) away.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> He walks with it for four Mil.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rabah bar bar Chanah):</font></b> This is for pay.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>SPECIAL LAWS OF ONE'S REBBI</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Reuven's own Aveidah takes precedence over
          that of his father or Rebbi;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	His Rebbi's Aveidah takes precedence over his father's.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is because his father brought him to this
               world, but his Rebbi, who taught him Chachmah,
               brings him to life in the world to come;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If his father is a Chacham, his father's takes
               precedence.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If his father and Rebbi were carrying burdens, he helps
          his Rebbi unload, and then his father.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If his father and Rebbi were imprisoned, first he redeems
          his Rebbi, and then his father;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If his father is a Chacham, he redeems his father
               first.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is the source (that his own
          Aveidah takes precedence)?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> 'Lo Yihyeh Becha Evyon' - do not
          make yourself poor (by abandoning your own Aveidah).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> Anyone who is zealous to give
               precedence to his own Aveidah (he never goes beyond
               the letter of the law) will ultimately become poor.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If his father and Rebbi were carrying burdens,
          he helps his Rebbi unload, and then his father.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa - R. Meir):</font></b> The Mishnah discusses his Rebbi who
          taught to him Chachmah (the reasons behind the Mishnayos
          and how to resolve difficulties), not the Rebbi who
          taught to him written Torah or the text of the Mishnayos;
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	R. Yehudah says, it is whomever he learned most of his
          Chachmah from;
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	R. Yosi says, even if he explained only one Mishnah to
          him, he is considered his Rebbi.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rava:</font></b> This is like Rav Sechorah, who explained to us
          'Zuhama Listron' (a ladle to push aside the froth).
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	A Chacham explained to Shmuel one part of a Mishnah about
          opening the Mikdash.. Shmuel tore his clothing (like one
          does for his Rebbi) when the Chacham died.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Ula):</font></b> Chachamim in Bavel rise for each other and tear
          clothing over each other;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding an Aveidah, they give precedence (over
               their fathers) only to their primary Rebbi.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (Rav Chisda):</font></b> If the Rebbi needs a Talmid (to
          hear what the Talmid learned from others), what is the
          law?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Rav Huna:</font></b> I don't need you. You need me!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They were upset with each other, and did not see
               each other for 40 years. Rav Chisda fasted 40 days
               for having pained his Rebbi. Rav Huna fasted 40 days
               for having suspected that Rav Chisda asked about
               himself.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(R. Yitzchak bar Yosef citing R. Yochanan):</font></b> The Halachah 
          follows R. Yehudah.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Rav Acha bar Rav Huna):</font></b> The Halachah follows R. Yosi.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Question:</font></b> Did R. Yochanan really rule like R. Yehudah? R.
          Yochanan taught that the Halachah follows an anonymous
          Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> ...His Rebbi that taught him Chachmah...
               (this is like R. Meir)!
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer:</font></b> It means 'that taught him most of his Chachmah.'
          It is like R. Yehudah.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT TO LEARN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Learning oral Torah is good, but it is not
          best.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Learning Mishnah is good, and one is rewarded for it;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Learning Gemara is the greatest;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One should run to learn Mishnah more than Gemara.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If Gemara is greatest, why should one run to
          learn Mishnah more than Gemara?!
<br>
<br>

sjt:
<font><b>1) IS ONE OBLIGATED TO DO FAVORS WHICH DO NOT REQUIRE EFFORT?</b></font><b>
<br>OPINIONS:</b> The Gemara teaches that if one has lost an object and his friend has lost an object, he may search for his own lost object before he searches for his friend's. Rav Yehudah learns this from the verse, 'Efes Ki Lo Yiheyeh Becha Evyon' -- 'There will be no destitute among you' (Devarim 15:4). From the words 'Lo Yiheyeh Becha' Rebbi Yehudah derives that 'Shelcha Kodem l'Shel Kol Adam' -- 'yours takes precedence over that of all others.' However, he concludes that one who follows this dictum as a set principle -- that is, he never puts the interest of others before his own interests -- will come to a point where he will need others. The <b>SHULCHAN ARUCH</b> (YD 264:1) explains that if one always acts this way all the time, he is considered to have 'thrown off the yoke of Chesed.'
</p><p>
What is the degree of a person's obligation to do a Chesed for someone else when he easily can do the Chesed but is not interested in doing so? For example, may a person refuse to lend an object to someone even though he has no reason whatsoever for refusing?
</p><p>
(a) The <b>ROSH</b> (Al ha'Torah, Vayikra 19:18) writes that one does not have to lend out his things against his will. The Rosh asks a question concerning the prohibition of 'Lo Sitor' -- 'Do not bear a grudge' (Vayikra 19:18). The Gemara in Yoma (23a) describes the case of bearing a grudge as a case in which Shimon asks Levi to borrow his sickle, and Levi refuses. The next day, Levi asks Shimon to borrow his ax, and Shimon says, 'Take it. I am not like you, who did not lend to me.' The Rosh asks, why does the Torah prohibit a person (Shimon) from bearing a grudge when someone (Levi) did not lend him an item, but it does not prohibit a person (Levi) from not lending an item for no reason in the first place? The Rosh answers that the first person did not lend his sickle because he was stingy, as his sickle was dear to him, 'and Hash-m does not force a person to lend his things against his will.'
</p><p>
(b) The <b>MOSHAV ZEKENIM</b> (Vayikra) quotes the Rosh, but cites a second opinion. He writes that some explain that the reason why no verse commands a person to lend out his objects is that the person who does not lend is subject to an even greater punishment. The Gemara in Erchin (16a) says that one of the reasons why a person is smitten with Tzara'as is that he is stingy and does not lend out his things.
</p><p>
The <b>ARUCH HA'SHULCHAN</b> (YD 264:1) writes that if a person and his friend both lost an object, and he can retrieve his friend's lost object easily but he almost certainly cannot retrieve his own object, he may not say that he is too busy looking for his own lost object and ignore that of his friend. 'Similarly, any favor that a person can do for his friend, he is obligated by Halachah to perform.'
</p><p>
Does the Aruch ha'Shulchan argue with the Rosh and side with the second opinion in the Moshav Zekenim, or can his opinion be reconciled with that of the Rosh?
</p><p>
It seems that the Rosh is discussing a person who holds his object very dear to him, but there is not necessarily a logical reason for his possessiveness. This is implied by the Rosh's words that the person had 'no reason' to refrain from lending his sickle, and that the person 'was stingy because his sickle was very dear to him.' Accordingly, if one has an expensive object that he does not lend lest the borrower break it, perhaps he does not transgress the prohibition of not doing Chesed when he refuses to lend it. However, when he refuses to lend an object simply because he does not feel like it, he transgresses the Mitzvah of doing Chesed. (See also <b>SEFER L'RE'ACHA KAMOCHA</b>, vol. 2, p. 130, who writes that refusing to lend out an object (such as a pen) when no effort is involved borders on 'Midas Sedom' -- 'the attribute of the people of Sedom.') (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHO IS CONSIDERED ONE'S REBBI?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> One's Rebbi's Aveidah takes precedence
               over his father's. This is because his father
               brought him to this world, but his Rebbi, who taught
               him Chachmah, brings him to eternal life;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> This refers to the Rebbi who
               taught him to Chachmah (the reasons for the
               Mishnayos and how to resolve difficulties), not the
               Rebbi who taught to him Mikra (written Torah) or the
               text of the Mishnayos;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yehudah says, it is whom he learned most of his
               Chachmah from;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yosi says, even if he explained only one Mishnah
               to him, he is considered his Rebbi.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> The Halachah follows R. Yehudah.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rav Acha bar Rav Huna):</font></b> The Halachah follows R.
               Yosi.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> Did R. Yochanan really rule like R.
               Yehudah? R. Yochanan taught that the Halachah
               follows a Stam (anonymous) Mishnah!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> ...His Rebbi who taught to him
                    Chachmah... (this is like R. Meir)!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> It means 'who taught to him most of his
               Chachmah.' It is like R. Yehudah.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Mo'ed Katan 25a (Beraisa):</font></b> When a Chacham dies,
               everyone is like a relative. One must tear, bare
               (his shoulder) and eat the first meal after the
               burial from others' food in the street.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> When Rav Safra died, Rabanan did not tear for him,
               because they had not learned from him.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Abaye:</font></b> The Beraisa does not say that we tear (only)
               for a Rebbi. We tear for a Chacham who died! Also,
               every day we recite Rav Safra's teachings!
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> Ula taught that Chachamim in Bavel rise for
               each other and tear clothing over each other. For an
               Aveidah, they give precedence only to their Ravo
               Muvhak (primary Rebbi) over their fathers.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Nimukei Yosef (Bava Metzi'a 18a DH Omar):
                    Chachamim in Bavel were stringent. Each
                    considered everyone else like his Ravo Muvhak.
                    They stood for each other even outside four
                    Amos, and would tear and never Me'acheh (sew it
                    back straight). The Ramban disagrees. He says
                    that they were stringent to stand (within four
                    Amos) and to tear (but do Ichuy) even for
                    smaller Chachamim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Talmud Torah 5:9):</font></b> When one's Rebbi
               dies, he tears all his garments until he bares his
               heart. He may never be Me'acheh. This refers to Ravo
               Muvhak who taught to him most of his Chachmah. If
               not, he is a Talmid Chaver, and tears for him like
               for other Mesim for which one is Mis'avel. This is
               even if he learned from him only one thing.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Kesef Mishneh (6:12):</font></b> For a regular person, the
               Gadol ha'Dor is like his Rebbi.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Evel 9:2):</font></b> One tears for the Rebbi
               who taught to him Chachmah (or the Nasi or Av Beis
               Din) the way he tears for a parent.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Radvaz:</font></b> This is like R. Yochanan, who rules like R.
               Yehudah. The Rambam did not discuss a Rebbi who did
               not teach most of his Chachmah. He relies on what he
               wrote in Hilchos Talmud Torah
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Maimoniyos (1):</font></b> Avi ha'Ezri says that
                    we follow R. Yosi because Rav Sheshes, Rava and
                    Ula hold like him, and they are Basra. Also, we
                    generally rule like R. Yosi against R. Yehudah.
                    Only R. Yochanan established the Mishnah in
                    Bava Metzia like R. Yehudah.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rambam (11):</font></b> For a Chacham, one tears until he bears
               his heart.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 12:2):</font></b> If one encountered
               the Aveidah of his Rebbi and the Aveidah of his
               father, if his father was equal (in Chachmah) to his
               Rebbi, his father's comes first. If not, his Rebbi's
               has precedence. This refers to Ravo Muvhak, from
               whom he learned most of his Chachmah.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Ra'avad (in Shitah Mekubetzes 33a):</font></b> R. Yehudah holds
               that whoever taught him the majority of each
               Chachmah is his Ravo Muvhak
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Ritva (in Shitah Mekubetzes 33a):</font></b> R. Yosi holds that
               even if he explained only one Mishnah to him, he is
               considered his Rebbi for everything, including
               Aveidah.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Aruch ha'Shulchan (YD 242:19):</font></b> This is like the
               Yerushalmi. It seems that the Rambam and Rashi
               agree. One can have more than one Ravo Muvhak, i..e
               the one who taught to him most of his Mikra, and
               most of his Mishnah... R. Meir learned from R.
               Yishmael and R. Akiva. Rav Yehudah learned from Rav
               and Shmuel. Abaye and Rava learned from Rabah and
               Rav Yosef. In every case, both of these were
               considered Ravo Muvhak.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Rosh (Bava Metzi'a 2:30):</font></b> The Halachah follows R.
               Yochanan (who rules like R. Yehudah, that one's
               Rebbi is the one who taught him most of his
               Chachmah), for Ula agrees. 
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 242:25):</font></b> When one's Rebbi dies he
               tears all his garments, until he bares his heart...
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (30 and 340:8):</font></b> These laws apply to
               Ravo Muvhak from whom he learned most of his
               Chachmah, be it Mikra, Mishnah or Gemara.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH umi'Toch):</font></b> The Tur (brought
                    below) equated Ravo she'Eino Muvhak and
                    Talmidim in Bavel (for each other). This is
                    like the Rambam and Ramban. Regarding tearing,
                    he says that one is not Me'acheh even for one
                    who taught to him one Halachah! He did not
                    specify that this is for Chachamim in Bavel!
                    Indeed, R. Chananel and Avi ha'Ezri say so, but
                    they rule like R. Yosi!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Lechem Mishneh (Hilchos Evel 9:11):</font></b> The Rambam
                    says that one bears his heart for a Chacham.
                    The Tur says that this is even for Ravo
                    she'Eino Muvhak. This is difficult, for the
                    Rambam explicitly rules like R. Yehudah, that
                    Ravo Muvhak is only one who taught to him most
                    of his Chachmah! The Tur understood like Rashi,
                    that even R. Yehudah agrees that one is not
                    Me'acheh even for Ravo she'Eino Muvhak. The
                    Beis Yosef assumed that the Tur holds like
                    Maharik, Ran and Nimukei Yosef, that this is
                    only for Ravo Muvhak, therefore, he asked his
                    question. The Rosh (Mo'ed Katan 3:42)
                    explicitly says like I explained the Tur.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Nowadays, Ravo Muvhak is not the one who
               taught him Pilpul and distinctions, rather, one who
               taught Pesak Halachah, investigation and guided him
               to what is true and straight.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Maharik (169:2):</font></b> R. Achai Gaon, the Rambam, R.
                    Yeshayah, the Rosh and Tur all rule like R.
                    Yehudah. Ravo Muvhak pertains to ruling in
                    front of one's Rebbi, harboring ill thoughts
                    about him or conflicting with him. If he did
                    not learn from him most of his Chachmah, he is
                    like a Talmid Chaver, and just stands and tears
                    for him. We learn all of these from Moshe
                    Rabbeinu. Nadav and Avihu died for ruling in
                    front of him, Dasan and Aviram died for making
                    a controversy with him, and Bnei Yisrael were
                    rebuked for speaking 'against Hash-m and
                    against Moshe.' All these apply to one like
                    Moshe, i.e. Ravo Muvhak. R. Chananel and Avi
                    ha'Ezri rule like R. Yosi. It seems that R.
                    Yosi did not mean that one who explained one
                    Mishnah is like Ravo Muvhak for all these laws,
                    just for tearing for him and standing for him
                    even if the Talmid became a great Chacham. The
                    Mordechai rules like R. Yosi because Rav
                    Sheshes, Rava and Ula hold like him. Regarding
                    Aveidah, Ula holds like R. Yehudah! This shows
                    that R. Yosi agrees that one who explained one
                    Mishnah is not Ravo Muvhak for Aveidah (and
                    other laws). Tearing is different; we learn
                    from 'Avi Avi Rechev Yisrael...' that one tears
                    even for Ravo she'Eino Muvhak.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If he did not learn most of
               his Chachmah from him, he tears from him like for
               any relative for which there is Aveilus. This is
               even if he learned from him one matter, be it big or
               small.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema (340:8):</font></b> Some say that one is not Me'acheh even
               for Ravo she'Eino Muvhak. If Chachamim learn
               together and answer questions for each other, some
               say that each is like Ravo she'Eino Muvhak for each
               other, and some say that each is like Ravo Muvhak
               for each other. Some say that one must tear only for
               the Rebbi from whom he learned most of his Chachmah.
               It is a stringency for colleagues who learn together
               to tear for each other, or for one from whom he
               learned one matter. This applies only where it is
               the custom; we do not tell people to be stringent.
               This is why people are lenient in our lands.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tur:</font></b> For a Rav who only taught Chachmah, one
                    tears and can be Me'acheh. The Ramban says that
                    one is not Me'acheh. The Rambam says that one
                    tears all his garments. The Rosh holds like the
                    Rambam.
<br>
<font color='blue'><i>See also:</i>
<b>AVEILUS OVER ONE'S REBBI</b> (Moed Katan 25</font><font color='blue'>)
<p>

</p><p>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> In Rebbi's day, they taught that
          Gemara is greatest. Everyone abandoned Mishnah and
          engaged only in Gemara;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There was danger lest the Mishnah be forgotten.
               Therefore, Rebbi taught that learning Mishnah takes
               precedence.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What was the source to say that Gemara is
          greatest?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (R. Yehudah):</font></b> 'Haged l'Ami Pish'am (tell to My
          nation their transgression)' refers to Chachamim. Their
          Shegagos (mistaken rulings due to not understanding the
          reasons behind the Mishnayos) are considered like Mezid
          sins;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Ul'Veis Yakov Chatosam' refers to ignoramuses.
               Their Mezid sins are considered Shogeg.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah - R. Yehudah):</font></b> Be careful in your learning. One
          is punished for an oversight in learning as for a Mezid
          sin.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Beraisa - R. Yehudah):</font></b> 'Ha'Charedim El Devaro (those
          diligent to His word)' are Chachamim. 'Acheichem' are
          people who learn only oral Torah. 'Sone'eichem' are
          people who only learn Mishnah (they are unqualified to
          decide Halachah, but do so anyway). Menadeichem' are
          ignoramuses (Chachamim shun them like Nidos).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'V'Nireh v'Simchaschem' - we will all rejoice.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'V'Hem Yevoshu' - Nochrim will be embarrassed, but
               Yisrael will rejoice.
<br>
<br><center><font color='ff0000' size='+1'><b>*****<b>PEREK HA'MAFKID</b>*****
</b></font></center><p><b>
<br><b></b><b><b><font color='blue'>4) </font></b><font color='blue'>A SHOMER CAN GET KEFEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven deposited with Shimon (a Shomer
          Chinam) an animal or Kelim, and they were stolen or lost,
          Shimon could swear (that he was not negligent) and be
          exempt. If he paid and did not want to swear, and the
          thief was found, the thief pays Kefel (double, or four or
          five if a Kosher Behemah was slaughtered or sold) to
          Shimon;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon swore and did not want to pay, payments of
               Kefel, four or five go to Reuven.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why must the Mishnah list both an
          animal and Kelim?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> It must teach both cases.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had it taught only about an animal, one might have
               thought that only regarding an animal Reuven allows
               Shimon to acquire the (deposit, in order that he
               will acquire the) Kefel, for guarding an animal is a
               burden, but if he guarded Kelim, Reuven gets it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had it taught only about Kelim, one might have
               thought that Reuven allows Shimon to acquire,
               because the fine is only Kefel, it is never more,
               but the payment for an animal can be four or five,
               and he would not allow Shimon to acquire.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The Mishnah teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rami bar Chama):</font></b> A man cannot transfer
          ownership of something that is not yet in the world (i.e.
          Kefel)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even according to the opinion that a man can
               transfer ownership of something not yet in the
               world, that is only in cases such as fruits that
               will grow on a date tree, for they normally come.
               Here, who says that the deposit will be stolen?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> And even if it is stolen, who says that the thief
               will be found? And even if he is found, perhaps he
               will admit, and not pay the fine!
<br>

<p>

sjt:
</p><p>
<font><b>2) AGADAH: THERE IS NOTHING GREATER THAN GEMARA, RUN TO MISHNAYOS!</b></font><b>
<br>QUESTION:</b> The Gemara (33a) quotes a Beraisa which says that there is nothing greater than learning Gemara, which means analyzing the wisdom of the statements of the Tana'im. The Beraisa concludes that 'forever one should run to Mishnah more than Gemara.' The Gemara answers the apparent contradiction between these two statements by saying that the Berasia was taught during the times of Rebbi. <b>RASHI</b> (DH bi'Yemei) explains that during the time of Rebbi, the Jewish people experienced their first period of peace and prosperity in many centuries (see Avodah Zarah 10b). Finally, during his time, all the Chachamim were able to gather together freely and explain the true meaning of many of the statements of their predecessors, which Rebbi collected, edited, and redacted into the Mishnah. This new freedom to discuss the true meanings of the Mishnah enabled everyone to study Gemara.
</p><p>
Why, then, does the Beraisa say that one should run and study Mishnah more than Gemara?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> explains that there was a fear that the students would forget the Mishnayos and confuse the names of the Tana'im. For example, they might quote Rebbi Yehudah as saying that one is 'Chayav' when he really said that one is 'Patur.' Consequently, they would find contradictions in Rebbi Yehudah's rulings, since in another, similar case he may have ruled that one is 'Patur.' Moreover, the Halachah is often decided in favor of a certain Tana over another Tana. For example, the Halachah always follows the view of Rebbi Yehudah over that of Rebbi Meir (see Eruvin 46b). If the stuednts would confuse the opinions, although they might know the logic behind each opinion, they will end up ruling like the wrong opinion.
</p><p>
(b) The <b>MAHARSHA</b> explains that the Beraisa is expressing the need for a person to learn Mishnayos before he reaches the age of fifteen, as stated by the Mishnah in Avos (5:26). In the time of Rebbi, everyone was very excited about the gathering of the greatest scholars who had come together to expound the Gemara (the meanings of the Mishnah). As a result, youngsters under fifteen also learned Gemara instead of Mishnah. The Maharsha explains that the Beraisa's term 'run' implies that one is able to learn Chumash and Mishnah without an extremely settled mind. This is why the Beraisa urges those who 'run' in their learning to run to Mishnah and not to Gemara. On the other hand, older people whose minds are more settled should learn Gemara.
</p><p>
The <b>AHAVAS EISAN</b> (in Ein Yakov) asks that the Beraisa says '<i>forever</i> one should run to Mishnah more than Gemara.' This implies that this was advice for everyone, not just for young people under the age of fifteen.
</p><p>
(c) The <b>AHAVAS EISAN</b> explains that when a person learns Mishnayos, his Gemara learning is enhanced greatly. This is apparent from the Gemara in Sanhedrin (42a), which says that one is able to 'do battle' in Torah when 'he has packages of Mishnah.' Similarly, the Gemara in Ta'anis (8a) says that one will find learning Gemara to be difficult if his knowledge of Mishnah is unorganized. Rebbi therefore reminded the students that they should always learn Mishnah over Gemara, as this will enhance their Gemara study greatly. (Y. Montrose)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HOW THE SHOMER GETS KEFEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #1 - Answer #1 (Rava):</font></b> It is considered as if
          Reuven stipulated (when he gave over the deposit) 'if it
          will be stolen and you will want to pay, it is acquired
          to you from now.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection (R. Zeira):</font></b> If so, the shearings and offspring
          (from when he took the deposit) should belong to Shimon
          (but this is not so)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Shimon receives everything, except for
               the shearings and offspring.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (R. Zeira):</font></b> It is considered as if Reuven
          stipulated 'if it will be stolen and you will want to
          pay, it is acquired to you from now, except for the
          shearings and offspring.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why should Reuven stipulate this way?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> People normally give away profit that comes from
          another source (Kefel), but not profit that comes from
          their own property.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Version #2 - Answer (Rava):</font></b> It is considered as if Reuven
          stipulated 'if it will be stolen and you will want to
          pay, it is acquired to you just before it is stolen.'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between the two
          versions?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1:</font></b> R. Zeira's question does not apply to Version
          #2.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2:</font></b> The animal was in a swamp just before it was
          stolen. (Since it cannot be acquired there, Shimon would
          not get Kefel.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>MUST THE SHOMER ACTUALLY PAY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he paid and did not want to swear...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Chiya bar Aba):</font></b> Even if he did not pay, once he said
          that he wants to pay, he acquires Kefel.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah said 'if he paid and did not want
          to swear.' This shows that he must pay!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Counter-question (Reisha):</font></b> If Shimon swore and did
               not want to pay...
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He does not get Kefel because he did not want to
               pay. Had he wanted to pay, he would get it!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Conclusion:</font></b> The inferences contradict one another.
               We cannot determine which is correct. The Mishnah
               neither supports nor refutes R. Chiya.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> If Reuven rented a cow from Shimon,
          and it was stolen, and Reuven said 'I will pay and not
          swear', and the thief was found, he pays Kefel to Reuven.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> A Shomer Chinam acquires Kefel once he says 
          that he was negligent (the owner consents), for he could
          have exempted himself by saying that it was stolen;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	A Shomer Sachar acquires Kefel once he says that he was
          stolen, for he could have exempted himself by saying that
          it died through Ones;
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #1:</font></b> If a borrower says that he will pay, he does
          not acquire;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He could exempt himself only by saying that it died
               while working, and this is uncommon. (He is
               reluctant to claim this, lest people suspect that he
               is lying.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Version #2:</font></b> Also a borrower acquires once he says that he
          will pay, for he could have exempted himself by saying
          that it died while working. (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rav Zvid):</font></b> Abaye said that a borrower does not
          acquire until he actually pays!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is Abaye's reason?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Since a borrower gets free benefit, the
               owner does not want him to acquire with mere words.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Support (for Abaye - Beraisa):</font></b> If Shimon borrowed a cow
          from Reuven and it was stolen, and Shimon paid first, and
          then the thief was found, Shimon receives Kefel.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> This does not refute Rav Papa according to
          Version #1 (Rav Papa did not say what the law is if he
          actually pays);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, it refutes Version #2 of Rav Papa (he gets
               Kefel only because he paid)!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> We can answer like we answered the Mishnah (which
          said similarly). The same applies once he says that he
          will pay.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa says 'he paid first.' The Mishnah
          did not say this!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> It means, he said first (that he will pay, before
          the thief was found).
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> Regarding a renter, it says 'he said.'
          Regarding a borrower it says 'he paid', to show that he
          must pay first!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> This inference is invalid, for a different
          Beraisa discusses a renter.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Rejection:</font></b> We asked the Chachamim who learn the Tosefta
          (authenticated Beraisos) of R. Chiya and R. Oshiya. They
          said that they are parts of the same Beraisa.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>IN WHICH SITUATIONS DOES THE SHOMER GET KEFEL?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Clearly, if the Shomer first said that he will not pay,
          and then decided to pay, he acquires.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question #1:</font></b> If first he said that he will pay, and then
          decided not to pay, what is the law?
<br>
<br>

sjt:
<font><b>1) HOW THE SHOMER ACQUIRES THE 'KEFEL' OF THE OBJECT HE IS WATCHING</b></font><b>
<br>QUESTION:</b> The Mishnah (33b) states that when an object is stolen from a Shomer and the Shomer chooses to compensate the owner instead of exempting himself with a Shevu'ah, he is entitled to receive the Kefel from the Ganav when the Ganav is found. The Gemara explains that the reason for this is that at the time the owner gave the object to the Shomer, he also gave him any Kefel payment that might later accrue because of the object. The Gemara asks that this conflicts with the normal rule of 'Ein Adam Makneh Davar she'Lo Ba l'Olam' -- a person cannot be Makneh an object that does not yet exist in the world (such as the Kefel payment, in this case).
</p><p>
Rava answers that the Shomer acquires the Kefel because when the owner of the object gave him the object, it was as if the owner said to him, 'When it is stolen and you agree to pay me for it, my object will become your property from this moment.' Thus, the owner sells the object to the Shomer on condition, and if the condition is fulfilled the sale takes place retroactively from the moment the object entered his possession.
</p><p>
How does Rava answer the question? Granted, Rava explains that the object that is acquired is not a 'Davar she'Lo Ba l'Olam' (since the owner gives the <i>object</i>, rather than the future Kefel, to the Shomer). However, the owner still makes the acquisition dependent on factors that do not exist yet (the theft of the object, and the Shomer's payment for it). Since the <i>fulfillment</i> of the conditions for the acquisition is 'Lo Ba l'Olam,' how can the acquisition take effect?
</p><p>
This question is relevant in every case of a Kinyan that depends on the future fulfillment of a condition. (With regard to why such a Tenai does not involve a problem of Bereirah, see Insights to Gitin 25:2, and see following Insight.)
</p><p>
<b>ANSWER:</b> The <b>TESHUVOS MAHARAM BAR'REBBI BARUCH</b> (#50), cited by the <b>MORDECHAI</b> (Bava Metzia 1:247), proves from the Gemara here that as long as all of the principal parties involved in a sale are in existence (the buyer, the seller, and the object being sold) and are fit to conduct the sale, there is no problem of 'Davar she'Lo Ba l'Olam' even if the sale is made dependent on another condition that does not exist yet. This is also the view of the Rishonim (see <b>TOSFOS</b> to Kesuvos 42a; <b>ROSH</b>, Bava Basra 4:7; <b>RASHBA</b> and <b>NIMUKEI YOSEF</b> there, and others).
</p><p>
This principle -- that there is no problem of 'Davar she'Lo Ba l'Olam' when the buyer, seller, and object being sold are all in existence -- can be explained as follows. Three reasons are given for why a person cannot make a Kinyan on a 'Davar she'Lo Ba l'Olam.' The first reason is that since the object does not exist yet, there is not complete intention to finalize the transaction (Gemirus Da'as) on the part of the buyer and seller (see Gemara earlier, 16a). The second reason is that since the object does not exist yet, the act of Kinyan, of transferring the ownership of the item, is lacking (<b>KOVETZ SHI'URIM</b>). The third reason is that since the object is not in the world, the owner does not fully own it and therefore cannot transfer its ownership (<b>CHIDUSHEI RABEINU CHAIM HA'LEVI</b>). None of these three reasons apply when the buyer, seller, and object are in existence (such as in the case of Rava's answer). (I. Alsheich)
</p><p>


<font><b>2) HOW THE SHOMER ACQUIRES THE OBJECT HE IS WATCHING A MOMENT BEFORE IT IS STOLEN</b></font><b>
<br>QUESTION:</b> The Gemara quotes two versions of Rava's explanation as to why the Shomer is Koneh the Kefel, even though the Kefel is a 'Davar she'Lo Ba l'Olam.' The first version is that when the object was given to him, it was as if the owner said to him, 'When it is stolen and you agree to pay me for it, my object will become your property from this moment.' Thus, the owner sells the object to the Shomer on condition, and if the condition is fulfilled the sale takes place retroactively from the moment the animal entered his possession. Since the object itself exists in the world, the Shomer can be Koneh it (retroactively).
</p><p>
The second version of Rava's answer is that at the time that the owner gave the object to the Shomer, it was as if the owner said to him, 'When it is stolen, and you agree to pay me for it, my object will become your property <i>from a moment before it is stolen</i>.' Thus, the owner sells the object to the Shomer on condition, and if the condition is fulfilled (i.e., the Shomer agrees to pay for the object after it is stolen), the sale takes place retroactively from a moment before the animal was stolen.
</p><p>
The second version of Rava's answer is difficult to understand, because it seems to depend on 'Bereirah' -- the ability of a future event to affect a Kinyan retroactively. The time at which the Kinyan will take effect (i.e. the moment before the item will be stolen) is not known at the time that the owner gives the object to the Shomer. Why does this Kinyan take effect if the Halachah follows the opinion of 'Ein Bereirah?'
</p><p>
<b>ANSWERS:</b>
<br>(a) This question can be answered based on the words of the <b>RAMBAN</b> in Gitin (25b). The Ramban there discusses why there is no problem of Bereirah in all cases when a Kinyan is made that is dependent upon a condition being fulfilled in the future. The Ramban explains that in such cases, the unknown factor is <i>external</i> to the object of the Kinyan. Since the item being acquired is not in question and only the external condition is not known, this does not constitute Bereirah.
</p><p>
This, however, does not suffice to answer the aforementioned question on the second version of Rava's answer. It does answer the question (see previous Insight) on the first version of Rava's answer, regarding why the Kinyan takes effect now and is not subject to the issue of 'Davar she'Lo Ba l'Olam' (since the condition has not been fulfilled yet). In the second version, though, the time when the Kinyan is to occur is not known (because the stipulation is 'right before it is stolen'), and even when that time comes (the moment before the item is stolen), it is not known at that moment that the Kinyan should take place.  Since the moment of the Kinyan can never be known until later, this should still be a problem of Bereirah. (<b>KETZOS HA'CHOSHEN</b>, end of #61; <b>REBBI AKIVA EIGER</b>)
</p><p>
(b) The <b>KETZOS HA'CHOSHEN</b> answers based on the <b>MAHARSHA</b> here. Rava's explanation that 'it is as if the owner says to the Shomer that he will be Koneh the animal a moment before it is stolen,' does not mean that it is as if the owner says this to the Shomer at the time that he gives him the animal to watch (as Rashi explains). Rather, Rava means that it is as if the owner says this to the Shomer <i>a moment before the animal is stolen</i>, at the moment that the Kinyan occurs (see also <b>SHITAH MEKUBETZES</b>). Since the owner makes the Kinyan at the moment before the animal is stolen, on condition that the animal is stolen one moment later, the animal becomes the property of the Shomer at <i>this</i> moment, and the Kinyan is not subject to Bereirah. The Kinyan takes place at a known, given moment (rather than at one unknown moment among many other moments). The only unknown factor is whether the animal will be stolen or not, but that is an external factor which becomes known immediately thereafter.
</p><p>
(c) The <b>CHAZON ISH</b> (Demai 16:13) proves from this Gemara that there is no problem of Bereirah with regard to monetary matters. (Indeed, all of the cases throughout the Gemara in which the issue of Bereirah is discussed do not involve monetary matters.) (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MULTIPLE SHOMRIM</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 33b (Mishnah):</font></b> If Reuven deposited with Shimon an
               animal or Kelim, and they were stolen or lost,
               Shimon could swear and be exempt. If he paid and did
               not want to swear, and the thief was found, he pays
               Kefel (double) to Shimon.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 34b - Question:</font></b> If Shimon paid half, what is the
               law? (Does Reuven give to Shimon rights to collect
               half the Kefel?)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If two partners borrowed, and one of them
               paid, what is the law?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Bava Kama 10a (R. Zeira):</font></b> There is another case in
               which one responsible for part of the damage is
               responsible for all of it. If one handed an ox over
               to five, and one of them (Reuven) was negligent (and
               left), and it damaged, he is liable.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> If it cannot be guarded without Reuven,
               obviously, he is liable!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it could be guarded without Reuven.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Objection:</font></b> If so, what did he do?!
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Nizkei Mamon 4:7):</font></b> If one handed his
               ox over to five, and one of them was negligent and
               left, and it damaged: if it can be guarded only with
               five, the one who left is liable. If it can be
               guarded with those who remained, even those who
               remained are liable.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> This is clear from Bava Kama 10.
                    All the Meforshim explain that even those who
                    remained are liable.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Even ha'Ezel):</font></b> Rashi and the Rosh
                    exempt the one who left! It seems that the
                    Rambam explains 'what did he do?!' like Tosfos
                    (DH Mai), to mean he did no more than the
                    others. However, regarding put bundles on an
                    animal, the Rambam (6:14) explains 'what did he
                    doesn't like Rashi, that he is exempt! It seems
                    that the Rambam holds that the words can mean
                    either. Here he obligates, for if a Shomer gave
                    the deposit to another Shomer he is liable if
                    it gets damaged, and similarly he is liable if
                    the deposit does damage. This is why the Rif
                    did not need to bring our Sugya (he already
                    ruled that a Shomer who gave the deposit to
                    another Shomer is liable).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Bava Kama 1:9):</font></b> If the ox could be guarded
               without Reuven, he did nothing, i.e. he is totally
               exempt! This is when the others did not cease to
               guard it and say that they do not want to guard it
               any more. Since they continued to guard it and can
               guard it themselves, they are liable and he is
               exempt. This is because the owner handed his ox over
               to all of them, whoever can guard it, and they
               agreed to guard it without their colleague. If they
               told him 'since you do not want to guard it, also we
               cease to guard it', they are all liable.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Metzi'a 3:23):</font></b> One deposits knowing that
               the Shomer will entrust it with his wife and
               children (Bava Metzi'a 42b). This refers to oaths.
               The wife or children will swear to exempt
               themselves. The owner cannot say that he does not
               trust their oath. We do not exempt the Shomer from
               paying for them if they were negligent. If not,
               everyone will feed deposits to his wife and
               children, and they will lack what to pay and also he
               will be exempt!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Teshuvas Rema (27):</font></b> When it is known that the
                    Shomer does not guard it himself, he is totally
                    exempt, even if the one to whom he gave it was
                    negligent. Even though a husband is the primary
                    Shomer, he is liable for the negligence of his
                    household only if they lack money to pay
                    themselves. If two Shomrim accepted a deposit,
                    they are Arevim for each other (Bava Kama 10a).
                    The Rambam (Shevu'os 38b DH Selik) says that
                    they are like two who borrowed together. It
                    seems that this is when they explicitly
                    stipulated.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 77:1):</font></b> The Ramban, Rosh and Ran
                    say that a Stam deposit (with two Shomrim) is
                    like a loan to two borrowers. The proof from
                    Bava Kama is invalid. We tried to explain when
                    one who damaged partially is liable for all the
                    damage. We did not discuss liability like an
                    Arev.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh and Ran (Shevu'os 5:2 and 17a):</font></b> The Yerushalmi
               says that when two deposited with one, if one of
               them comes to take his share, the Shomer says 'I am
               liable only to both of you (together).' Likewise,
               when two borrowed from one, he can say 'I lent to
               both of you, and neither of you is exempt by paying
               just your share. Rather, each of you is responsible
               for the full amount.' The custom is not to rely on
               this. Rather, they write that they are responsible
               and Arevim for each other, so it will be clear from
               the document.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Ran, ibid.):</font></b> In Bava Metzi'a (34b),
                    we asked whether an owner gives to a Shomer
                    (rights to collect) half the Kefel (if the
                    thief will be found) when the Shomer agreed to
                    pay for half the deposit. Then we asked whether
                    the owner gives half the Kefel when there were
                    two Shomrim and one agreed to pay for his half.
                    If he has full responsibility, this is the same
                    question!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer #1 (Ran):</font></b> Even though letter of the law,
                    each is responsible for the entire amount,
                    perhaps the owner gives half the Kefel in this
                    case, for the partner paid his entire
                    obligation. If he would pay the other half, he
                    could collect it back from his partner.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Question:</font></b> We asked (96a) whether She'elah
                    b'Ba'alim (one who borrows from his worker is
                    totally exempt) applies when partners borrowed
                    and the owner was working for one of them. If a
                    partner is fully responsible, this is like
                    working for all the borrowers!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer (and Answer #2 to question (i) - Ran and
                    Nimukei Yosef Bava Metzi'a 19a, 55a):</font></b> One
                    partner is responsible for the other's share
                    only like an Arev.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 396:7):</font></b> If one handed his ox over
               to five, and one was negligent and left, and it
               damaged: if it can be guarded only with five, the
               one who left is liable. If it can be guarded with
               those who remained, even those who remained are
               liable.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (12):</font></b> It is incumbent on all of them to
                    guard it. He should not have left without their
                    permission.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> Some say that this is
                    only if they said 'since you do not want to
                    guard it, also we cease to guard it', but if
                    they did not cease to guard it, he is exempt
                    and they are liable.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (13):</font></b> He is exempt, for he can say 'I
                    relied on you. The owner handed it over to all
                    of us, to whoever can guard it.'
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (15):</font></b> This is like the Rambam. Also Tosfos
                    (DH Mai) explains (if it can be guarded without
                    him) he did nothing more than the others. They
                    are equally liable. We cannot say that he is
                    exempt, for if Reuven dug 10 Tefachim, Shimon
                    dug another 10, and Levi dug another 10, all
                    are liable (51a).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> Some say that this is when
               the others said 'since you do not want to guard it,
               also we cease to guard it', but if they did not
               cease to guard it, they are liable and he is exempt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (15):</font></b> This is like the Rosh, Nimukei Yosef
                    and Rashi. Why did the Mechaber (and Rema)
                    bring only this opinion in Siman 383:4 (and 381
                    and 388:7)?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Machaneh Efrayim (Shomrim 27):</font></b> The Ran, Nimukei
                    Yosef and Rosh say that if two accept a
                    deposit, each accepts to guard only half, but
                    is an Arev for the other (if the other cannot
                    pay), just like two who borrowed together. The
                    Ramban says that Levi becomes an Arev whenever
                    David acts on Levi's word. However, the Ran
                    holds that an Arev must benefit in order to
                    obligate himself. When a Shomer Chinam takes a
                    deposit, there is no Hana'ah with which he can
                    obligate himself! The Rosh says that a Shomer
                    need not do Meshichah, for the Mafkid relied on
                    the Shomer's word and ceased to guard his
                    object. However, if one says 'deposit with
                    Moshe, and I will be an Arev', this is
                    Asmachta. He assumes that Moshe will guard
                    well. The Yerushalmi must hold like the Rosh,
                    that each is a Shomer on the entire item, or
                    discusses borrowers.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>PARTNERS WHO OWE </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since he retracted, he does not acquire?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps he really intends to pay, but not right
               now?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question #2:</font></b> If Shimon said that he will pay, then he
          died, and his heirs say that they will not pay, what is
          the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since they retract, they do not acquire?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps they really intend to pay, but not right
               now?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question #3:</font></b> If Shimon's heirs paid, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Can Reuven say 'I wanted only your father to get
               Kefel, since he was very nice to me, but not that
               you should get it!'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, is there no difference?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question #4:</font></b> If (Reuven died and) Shimon paid Reuven's
          heirs, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Can they say 'our father would have given you Kefel,
               since you were very nice to him.' We do not give it
               to you!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, is there no difference?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Questions:</font></b> What is the law in the following cases:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shimon's heirs paid Reuven's heirs;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Shimon paid half;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Shimon borrowed two cows and paid for one;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Shimon borrowed from two partners and paid one of
               them;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Two partners borrowed, and one of them paid;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> Shimon borrowed from a married woman, and paid her
               husband;
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> A married woman borrowed, and her husband paid.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	None of these questions are resolved.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>THE SHOMER MUST SWEAR</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> A Shomer who wants to pay must swear that the
          deposit is not in his premises.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> We suspect lest he wants to keep the deposit for
          himself. (The question from the following Mishnah appears
          at the top of 35a. First, the Gemara explains the
          Mishnah.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> Reuven lent Shimon and took a
          security, and he lost the security. Reuven says that he
          lent one Sela, and the security was worth half a Sela (he
          demands payment of half a Sela):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon says that the security was worth one Sela,
               the same as the loan, Shimon is exempt from swearing
               (since he says that he does not owe anything);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven says like above (that he lent a Sela, and
               the security was worth half a Sela), and Shimon says
               that the loan was one, and the security was worth
               three quarters, Shimon must swear (since he admits
               that he owes a quarter, i.e. part of the claim).
<br>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If Shimon says 'I borrowed one Sela, and the
               security was worth two. You owe me one', and Reuven
               says that the loan and security were both worth one,
               Reuven need not swear (he denies owing anything);
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> If Shimon says like above (he claims one), and
               Reuven says that the loan was one, and the security
               was worth one and a quarter, Reuven must swear.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> The one holding the security swears, lest one will
               swear and the other will show the security (and
               prove that the first swore falsely about its value).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> To which case does this refer?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> It applies to case 4.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection:</font></b> Even without this concern, Reuven
                    swears, for he partially admits to the claim!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer (Shmuel):</font></b> This applies to the Reisha (when
               Reuven claims from Shimon).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> There are two cases in the Reisha (1 and
               2). To which does Shmuel refer?
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer:</font></b> He refers to case 2, in which Shimon
               partially admitted. Mid'Oraisa, Shimon must swear.
               Chachamim enacted that instead Reuven swears, lest
               Shimon swear and Reuven show the security to prove
               that Shimon swore falsely about its value.
<br>

<p>

sjt:
</p><p>
<font><b>3) TRANSFERRING THE 'SHEVU'AH' FROM THE BORROWER TO THE LENDER</b></font><b>
<br>QUESTION:</b> The Gemara cites the Mishnah in Shevuos (43a) which presents the case of a lender who lent a Sela to a borrower and received an item of collateral from the borrower, which he subsequently lost. The lender and borrower now dispute how much the item of collateral was worth. The lender claims that it was worth one Shekel (or two Dinarim, which is half of a Sela), and thus the borrower still owes him two Dinarim. The borrower claims that it was worth three Dinarim, and thus he owes only one Dinar. Since the borrower is 'Modeh b'Miktzas' (he agrees that he owes money to the lender, but he disputes the sum that the lender claims), he must make a Shevu'ah d'Oraisa of 'Modeh b'Miktzas' and swear that the value of the collateral was three Dinarim. The Mishnah there teaches that in this case the lender must swear instead of the borrower, because if the borrower swears, then the lender might present the collateralized item to the court and prove that the borrower swore falsely. <b>RASHI</b> explains that the lender thereby would disqualify the borrower from giving any testimony and from taking any oaths.
</p><p>
The reason to transfer the Shevu'ah to the lender is difficult to understand. If the Rabanan fear that the lender may invalidate the trustworthiness of the borrower by showing the item after the borrower swears, then they should make the <i>borrower</i> swear, not the lender. The borrower certainly will tell the truth, for he knows what the potential consequences are if he lies. Moreover, if the Rabanan are concerned that he may lie, why do they make an enactment (to transfer the Shevu'ah to the lender) for his benefit? Why should the Rabanan protect someone who is suspected of lying?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RABEINU TAM</b> (cited by Tosfos) rejects the explanation of Rashi because of this question, and he quotes the explanation of <b>RABEINU CHANANEL</b>. He explains that the Rabanan fear that after the borrower swears, the lender may show the item to the court and it will seem that a Shevu'ah was made in vain. It is a disgrace for a Shevu'ah to be made if the facts subsequently will be determined anyway.
</p><p>
(b) The <b>RASHBA</b> and <b>RITVA</b> (cited by the Shitah Mekubetzes) explain Rashi's intention. Rashi does not mean that the Rabanan are concerned that the borrower may be <i>lying</i> when he says that the collateral was worth more than the lender claims. Rather, Rashi means that the Rabanan are concerned that the borrower may mistakenly <i>think</i> that it is worth that much. This is indeed how Rashi explains the Gemara in Shevuos (43a): 'perhaps this [borrower] did not estimate [the value of the collateral object] accurately.'
</p><p>
<b>RAV SHLOMO ZALMAN AUERBACH</b> zt'l (in Minchas Shlomo, end of #83) adds that a person might inaccurately estimate the value of his item when his mind is not settled. For the same reason, he might make a Shevu'ah in his unsettled state.
</p><p>
(c) The <b>SHACH</b> (CM 87:79) also explains that Rashi does not mean that the borrower may be lying about the value of the collateral. Rather, Rashi means that the object may have decreased in value after the borrower gave it to the lender. His Shevu'ah, then, is not a false Shevu'ah, as the item really was worth that amount the last time he saw it. However, since everyone now sees that the object is worth less than he stated in his Shevu'ah, he will be rumored to be dishonest.
</p><p>
(Tosfos himself (DH v'Chi Seima) initially suggests this explanation of Rashi, but he refutes it based on the continuation of the Gemara. The <b>CHASAM SOFER</b> offers answers to the questions of Tosfos.) (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE QUESTION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Formulation of question:</font></b> According to Rav Huna, Reuven
          must swear that it is not in his premises. How could he
          show it afterwards?!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rava):</font></b> Witnesses testified that the security
          was burned (so we did not make Reuven swear).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> If so, there is no concern that Reuven will
          show the security!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rav Yosef):</font></b> Rather, witnesses testified that
          the security was stolen.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Also here, there is no concern that Reuven will
          show the security!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Reuven will toil to track it down to show that
          Shimon swore falsely.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> If so, even (in case 4) when Reuven swears, we
          should be concerned that Shimon will track it down to
          show that Reuven swore falsely!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> It was stolen from Reuven's house. Reuven knows
          who was in his house, so he can track down the thief.
          Shimon does not know who was in Reuven's house, he cannot
          track him down.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #3 (Abaye):</font></b> The concern of the Mishnah is lest
          Reuven say 'after I swore, I found it', and he will show
          that Shimon swore falsely.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #4 (Rav Ashi):</font></b> (The question was based on a
          misunderstanding. Case 4 does not teach that Chachamim
          removed the oath from Shimon and imposed it on Reuven.)
          Rather, Shimon swears mid'Oraisa, and Reuven swears due
          to Rav Huna's concern. The Mishnah teaches that Reuven
          swears first, for if Shimon would swear first, perhaps
          Reuven would show the security and prove that Shimon
          swore falsely.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Rav Huna bar Tachlifa - Mishnah):</font></b> If Shimon
          says 'I borrowed one Sela, and the security was worth
          two. You owe me one', and Reuven says that the loan and
          security were both worth one, Reuven need not swear.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Rav Huna, Reuven must swear that he
               does not have the security. Through Gilgul (if one
               can force Ploni to swear about a matter, he can
               force him to include other matters in the oath),
               Shimon can make him swear also about its value!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Kahana):</font></b> The case is, Shimon trusts Reuven
          that he lost the security, so he exempts him from Rav
          Huna's oath.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> If he trusts him, he should also trust him
          about its value!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> Shimon reasons that Reuven did not look so
          carefully to see its value.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> Reuven should trust Shimon, for Shimon surely
          knows its value!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> Reuven does not trust Shimon at all.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> Why does the Tana assume that the borrower
          trusts the lender, but not vice-versa?
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer:</font></b> The borrower applies to the lender 'Tumas
          Yesharim Tanchem' (he prospers because he is straight),
          and the lender applies to the borrower 'v'Selef Bogedim
          Yeshadem' (he needs to borrow because he is crooked).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>RETRIEVING PROPERTY COLLECTED FOR A DEBT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	A case occurred in which Reuven deposited nose rings with
          Shimon. When Reuven claimed them, Shimon said that he
          forgot where he put them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rav Nachman:</font></b> That is negligence. Shimon must pay.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Shimon did not pay; Rav Nachman gave Shimon's yard to
          Reuven for payment. Later, they were found; they had
          risen in value.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rav Nachman:</font></b> Reuven gets his rings back, and Shimon gets
          his yard back.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rava:</font></b> We were learning this Perek at the time. I asked
          Rav Nachman (from the Mishnah) 'If Shimon paid and did
          not want to swear...' - he did not answer;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Justifiably, he did not answer me! (My question was
               ill-founded.) There (Reuven wants Shimon to acquire
               the deposit, and Kefel if the thief is found)
               because Shimon did not force Reuven to go to Beis
               Din. Here, Reuven is upset that he had to go to Beis
               Din to get paid, so he does not want Shimon to
               acquire.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Inference:</font></b> This shows that Rav Nachman holds that when
          property is collected to pay a debt, if the debtor later
          pays money, he receives back his property.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. The yard was collected by mistake, for the
          rings were never lost.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Chachamim of Neharde'a):</font></b> If a debtor's property was
          collected to pay a debt, he has 12 months to pay the debt
          and get back his property.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Ameimar):</font></b> I am from Neharde'a. I hold that he can always
          redeem his property!
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	The Halachah is, the lender can always redeem his
          property. This is (an enactment mid'Rabanan) based on
          'v'Asisa ha'Yashar veha'Tov (you will do what is straight
          and good).'
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Clearly, if Reuven collected Shimon's field, and Levi
          collected it from Reuven, Levi has no more right to keep
          it than Reuven (i.e. Shimon can buy it back from Levi);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven collected Shimon's field, and then sold,
               gave or bequeathed it to Levi, Levi wanted land, not
               money (Shimon cannot force Levi to sell it).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Leah collected Shimon's field and then married
               Levi, or if Reuven collected Leah's field and then
               she married Levi and she died, a husband is like a
               buyer (regarding his wife's property), so the
               original owner has no right to buy back the field.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Yosi bar Chanina):</font></b> (When a woman marries,
                    her husband eats the Peros of her property. If
                    she said that it should be Nichsei Melug, when
                    she is widowed or divorced, she takes back her
                    property without compensation for any increase
                    or decrease in value.) In Usha, they enacted
                    that if a married woman sold her Nichsei Melug
                    and then died, her husband takes it back from
                    the buyers. (We consider him to be a previous
                    buyer, from the time he married her.)
<br>
<br>

sjt:
<font><b>1) MAKING THE LENDER SWEAR THROUGH 'GILGUL SHEVU'AH'</b></font><b>
<br>QUESTION:</b> Rav Huna (34b) rules that whenever a Shomer does not return the Pikadon itself (and either claims that he is exempt or returns money in its place), he must swear that the object is not in his possession. Rav Huna bar Tachlifa in the name of Rava challenges Rav Huna's ruling from one of the cases mentioned in the Mishnah in Shevuos (43a). The Mishnah there presents several scenarios of a lender who lent a Sela to a borrower and received an item of collateral from the borrower, which he subsequently lost. The lender and borrower now dispute how much the item of collateral was worth. In one of the scenarios, the borrower claims that it was worth two Sela'im, and thus the lender owes <i>him</i> one Sela. The lender claims that it was worth one Sela, and thus he owes nothing. The Mishnah rules that the lender is exempt and does not even need to make a Shevu'ah (since he denies owing anything -- 'Kofer ha'Kol'). The Gemara asks that if Rav Huna's ruling is correct, then the lender -- who was a Shomer for the collateral of the borrower -- must swear that the object is not in his possession. Accordingly, the principle of 'Gilgul Shevu'ah' should also obligate him to swear as to the value of the collateral.
</p><p>
Why does the Gemara assume that the principle of 'Gilgul Shevu'ah' would obligate the lender to make a Shevu'ah? In this situation, he should not become obligated to make a Shevu'ah because he has a 'Migu': if he wanted to lie, he could have made a more effective claim and asserted that the borrower never gave him collateral in the first place. Although this 'Migu' does not exempt him from the primary Shevu'ah that he must make (that the item is not in his possession), that is because it would be a 'Migu d'He'azah' (that is, he would not have made the more effective claim because he would have had to be overly brazen to do so). With regard to the Shevu'ah about the value of the item, since the lender anyway denies that he owes the borrower any money, the claim of the 'Migu' (that he never received collateral) would be on the same level of brazenness, and the 'Migu' should therefore exempt him from the 'Gilgul Shevu'ah.' (<b>REBBI AKIVA EIGER</b>, <b>CHASAM SOFER</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>REBBI AKIVA EIGER</b> and the <b>CHASAM SOFER</b> answer that the 'Migu' is still a 'Migu d'He'azah' because the claim that he never received any collateral actually would require an extra degree of brazenness. Although the lender already denies owing anything (with his claim that the collateral was worth one Sela), this claim is not as brazen because the borrower will not assume that the lender is an outright liar; the borrower will assume that the lender simply made a mistaken assessment of the item's value. In contrast, if the lender claims that he never received collateral from the borrower, the borrower will accuse him of being a liar. Therefore, the lender would prefer not to make that claim, and thus he has no 'Migu.'
</p><p>
(b) <b>CHIDUSHEI REBBI MEIR SIMCHAH</b> answers that the 'Migu' does not exempt him from the 'Gilgul Shevu'ah' because the lender would not want to make the claim of the 'Migu,' that the borrower never gave him collateral. Since the object indeed may have been stolen from him, the lender will not claim that he never received it, because if he does he will not be able to retrieve the object from the Ganav. (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A SHOMER WHO GAVE TO A SHOMER</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven rented Shimon's cow, and lent
               it to Levi, and it died normally, Reuven swears that
               it died normally, and Levi pays Reuven.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>36a (Rav):</font></b> If Reuven was guarding a deposit, and he
               gave it to another Shomer, Reuven is exempt;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> He is liable.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Abaye):</font></b> Rav exempts because he gives it to one with
               intellect. R. Yochanan obligates because the owner
               does not want his object in others' hands.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (against R. Yochanan - R. Aba bar Mamal -
               Mishnah):</font></b> If Reuven rented Shimon's cow, and lent it
               to Levi, and it died normally, Reuven swears that it
               died normally, and Levi pays Reuven.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We do not say that (Reuven is liable because)
                    Shimon does not want his object in others'
                    hands!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (R. Ami):</font></b> The case is, Shimon permitted
               Reuven to lend the cow 'if you want.'
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 36b (Rava):</font></b> The Halachah is, a Shomer who gave to a
               Shomer is liable, for the owner can say that he
               trusts the oath of the first Shomer, but not of the
               second.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Rava citing Rabah):</font></b> If a Shomer was negligent, and
               the animal went to the swamp (where it is not
               guarded), and died normally, he is exempt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is even according to the opinion that
                    exempts when the beginning was negligence and
                    the end was Ones. The angel of death would have
                    killed it no matter where it was.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> R. Aba bar Mamal asked from the
               Mishnah, and R. Ami said that it discusses a renter
               who had permission to lend it. He did not answer
               that the angel of death would have killed it no
               matter where it was!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer (Rava):</font></b> You understand that a Shomer who gave
               to a Shomer is liable because the owner does not
               want his object in others' hands. Therefore, R. Aba
               could ask. I obligate because the owner trusts only
               an oath of the first Shomer, but not of the second.
               R. Aba has no question! (In the Mishnah, the first
               Shomer saw it die, and can swear that it died
               normally.)
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Gitin 29a (Mishnah):</font></b> If Reuven told Shimon to
               receive something from his wife when he gives the
               Get, Shimon may not make a Shali'ach. We assume that
               Reuven does not want his deposit to be in the hands
               of others.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Reish Lakish):</font></b> In our Mishnah, Rebbi taught that
               one who borrows or rents an object may not lend or
               rent it to someone else.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (3:6):</font></b> The Halachah is, even a Shomer
               Chinam who gave to a Shomer Sachar is liable, for
               the owner can say that he trusts the oath of the
               first Shomer, but not of the second. (It is not like
               Abaye, who obligates because the owner does not want
               his object in others' hands.) Therefore, if
               witnesses saw that the latter Shomer guarded
               normally and Ones occurred, the first Shomer is
               exempt. The owner cannot say 'I do not trust the
               oath of the second Shomer', for there is no oath!
               This is even if he says that he did not want his
               object in others' hands. Reish Lakish derived that
               one who borrows or rents an object may not lend or
               rent it to someone else. This is l'Chatchilah.
               B'Di'eved, he is not liable if he did, if we know
               that there was no negligence. This is why in the
               Mishnah, the renter need not pay. The Halachah does
               not follow R. Meir (78a), who says that one who
               deviates from the owner's desire is a thief.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> The Rif connotes that it is not enough for
               witnesses to see that it died b'Ones. They must know
               that there was no negligence or Shlichus Yad. He
               also connotes that if any oath was incumbent on the
               first Shomer, the owner can say 'I do not trust the
               second Shomer's oath.' There is a side to say that
               the primary oath of a Shomer Chinam, Shomer Sachar
               or borrower is 'it was stolen', 'it died b'Ones',
               and 'it died while working', respectively; the rest
               is only Agav (due to the primary oath). If so, if
               witnesses know that it died b'Ones, there is no
               oath. The Halachah follows Rava against Abaye, for
               this is not one of the six exceptions. R. Chananel
               rules like Abaye, for we hold like Rabah, who
               obligates when the beginning was negligence and the
               end was Ones. This is wrong. Rava agrees that he is
               liable, just he holds that giving a deposit (without
               permission) to one with Da'as is not negligence.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 1:4):</font></b> A borrower (or
               renter) may not lend (or rent) the item to another,
               even a Sefer Torah, that everyone who reads in it
               does a Mitzvah. The owner can say that he does not
               want his object in others' hands. If a Shomer gave
               to a second Shomer, if witnesses know that the
               second Shomer guarded normally and Ones occurred,
               the first Shomer is exempt, for there are witnesses
               of Ones. If there are no witnesses, the first Shomer
               must pay because he gave to another Shomer, and he
               claims from the second Shomer.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Nizkei Mamon 4:11):</font></b> A Shomer who
               gave to a Shomer is liable, for the owner can say 'I
               trust your oath, but not the oath of the second
               Shomer.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rif wrote that the first
                    Shomer is exempt also if he saw and can swear
                    that Ones occurred. This is clear.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (1:3):</font></b> Some ask an empty question, that the
               second Shomer should exempt the first through his
               testimony that it died b'Ones. Really, the first
               Shomer is liable because he cannot swear. He owes
               money. The second Shomer cannot exempt from a debt
               to pay money.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (CM 291:46):</font></b> If there is a second witness
                    with the second Shomer, they exempt the first
                    Shomer. However, others say that the second
                    Shomer is not a witness, for he is partial.
                    This is primary.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Mordechai (270):</font></b> If the first Shomer can swear about
               the Ones, he is exempt. R. Chananel rules like
               Abaye, for Rav and R. Yochanan argue about when the
               beginning was negligence and the end was Ones, and
               Abaye holds like Rabah, who obligates for this. This
               is wrong, for even Rava exempts only when we cannot
               attribute the Ones to the negligence.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 291:26):</font></b> If a Shomer gave to a
               Shomer, the first Shomer is liable. The owner can
               say 'I trust your oath, but not the oath of the
               second Shomer.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (41):</font></b> If the second Shomer was negligent,
                    the owner can collect from either. The second
                    cannot say 'you have no claim against me.' This
                    is like a thief who stole from a thief. Even if
                    the second borrowed b'Ba'alim (the first Shomer
                    was working for him; normally, this totally
                    exempts.), he is liable, for the item does not
                    belong to the first Shomer.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> However, if a Shomer gave to a Shomer in front
               of the owner and the owner did not protest, the
               first Shomer is exempt.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If witnesses know that the
               second Shomer guarded normally, the first Shomer is
               exempt. Even if there were no witnesses, if the
               first Shomer saw and can swear, he swears and is
               exempt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav):</font></b> Tosfos says
                    that when the first Shomer can swear, or there
                    are witnesses, he is exempt, even if he gave it
                    to a Cheresh, lunatic or minor and it died in
                    their Reshus, for the angel of death would have
                    killed it also in the first Shomer's house.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (49):</font></b> He swears that the second Shomer was
                    not negligent and was not Shole'ach Yad.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Shach 48):</font></b> The Rambam and Shulchan
                    Aruch hold that the primary oath is that it was
                    stolen. The other oaths are only through
                    Gilgul. If witnesses say that it was stolen,
                    there is no need for the other oaths. The same
                    applies if the first Shomer can swear that it
                    was stolen. The Rosh and Tur say so. The Bach
                    requires witnesses to exempt from all three
                    oaths. This is wrong.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Ketzos ha'Choshen (14):</font></b> The <b>SMA</b> is correct. The
                    Rosh says that when witnesses exempt from the
                    primary oath, there is no Gilgul. However, when
                    the first Shomer swears that it is not in the
                    second's Reshus, but does not know if it was
                    lost through negligence or Ones, since he
                    cannot swear he must pay. This applies even to
                    a Gilgul oath. The Shach himself (75:51) says
                    so! The <b>SMA</b> obligates the first Shomer for
                    Shlichus Yad of the second; it seems that the
                    Rosh agrees. Granted, he is liable for
                    negligence of the second. Why should he be
                    liable for Shlichus Yad of the second? How can
                    he swear that the second was not Shole'ach Yad?
                    Must we say that the first Shomer was with the
                    second the entire time?! The Ritva exempts for
                    Shlichus Yad of the second, for Ein Shali'ach
                    l'Devar Aveirah. This is difficult, for
                    regarding Shlichus Yad, Yesh Shali'ach l'Devar
                    Aveirah! It seems that the Halachah follows the
                    Rosh, but the first Shomer need not swear about
                    Shlichus Yad of the second, for all agree that
                    it is only a Gilgul oath.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>ONE WHO GAVE TO A BETTER OR WORSE SHOMER </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rav Acha or Ravina):</font></b> If Shimon willingly gave Reuven his
          field (to pay his debt), later Shimon can pay money and
          take back his field.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(The other of Rav Acha and Ravina):</font></b> Shimon has no right
          to get back his field.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The latter opinion considers collection of the field
               like a sale, for he willingly gave it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The first opinion says that Shimon did not want to
               give it. He gave it to avoid the embarrassment of
               going to Beis Din.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> From when may the lender eat the Peros of the
          land he collected?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #1 (Rabah):</font></b> It is from when he receives the
          Adrachta (a document authorizing him to take Reuven's
          property for payment).
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #2 (Abaye):</font></b> (It is from the day the Adrachta is
          signed.) When witnesses sign a document, the receiver
          acquires immediately.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer #3 (Rava):</font></b> It is from when the days of
          announcement (to sell the field) are over.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A RENTER WHO LENT THE OBJECT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven rented Shimon's cow, and lent it to
          Levi and it died normally, Reuven swears that it died
          normally, and Levi pays Reuven;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yosi says, one may not do business with through
          another's property! Rather, Levi pays Shimon.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Rav Idi bar Avin) Question:</font></b> Reuven (exempts
          himself, and thereby) acquires the cow through his oath.
          Why can't Shimon say 'don't swear. I will demand my cow 
          from Levi'?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> Reuven does not acquire it through his
          oath, rather, through the death;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The oath is merely to placate the owner.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Zeira):</font></b> Sometimes the owner pays multiple cows to the
          renter!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven rented Shimon's cow for 100 days, and lent it
               back to Shimon for 90 days. Reuven rented it back
               for 80 days, and lent it back to Shimon for 70 days.
               It died during the 70 days. Shimon must pay a cow to
               Reuven for each time he borrowed it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Acha mi'Difti):</font></b> The same cow was rented and
          borrowed each time. It should suffice that Shimon pay one
          cow (for all the times he borrowed, and provide Reuven
          with a second cow to use for the 20 days that the rentals
          cumulatively exceeded the borrowings)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> If the cow were alive, it would suffice
          to return it  (for all the times he borrowed it! However,
          it is not.).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mar bar Rav Ashi):</font></b> Reuven never need return more than
          two cows, one for the borrowing, one for the rental;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The cow for the borrowing Shimon keeps. The cow for
               the rental he keeps for 20 days (like above).
<br>

sjt:
</p><p>
<font><b>2) A 'SHEVU'AH' TO APPEASE</b></font><b>
<br>QUESTION:</b> The Mishnah states that when someone (a Socher) rents an animal from its owner and then lends it to someone else (a Sho'el) and it dies in the Sho'el's possession, the Sho'el must pay the value of the animal to the Socher, and the Socher must make a Shevu'ah that the animal died a normal death, and he is then not required to compensate the owner. In the Gemara, Abaye explains that the Socher receives payment from the Sho'el because he actually 'acquires' the animal at the moment of its death. The Socher's obligation to make a Shevu'ah is merely 'in order to appease the owner' so that he will not think that the Socher was negligent ('Poshe'a') in guarding his animal.
</p><p>
Why does the Gemara need to give a reason for this Shevu'ah? The Torah always requires a Shomer to make a Shevu'ah (a 'Shevu'as ha'Shomrin') whenever he exempts himself from payment for a Pikadon. Why does the Gemara need to provide the additional reason for the Shevu'ah, 'to appease the owner'? (Acharonim)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>REBBI AKIVA EIGER</b> answers that the Shevu'ah that the Socher must make is not a Shevu'ah d'Oraisa. In general, the primary Shevu'ah of a Shomer, which is the Shevu'ah that the object is not in his possession, is a Shevu'ah d'Oraisa, and the other Shevu'os that a Shomer must make are all because of 'Gilgul Shevu'ah.' In the case of the Mishnah, the Socher is <i>exempt</i> from a Shevu'ah that the object is not in his possession, because the Sho'el himself makes a Shevu'ah (or brings witnesses to testify) that the animal died a normal death. Since the Socher has the right to lend out the animal, and since he does not have to make a Shevu'ah that the animal is not in his possession, mid'Oraisa he is exempt from any Shevu'ah. Hence, the only reason why he must make a Shevu'ah in this case is that he receives money from the Sho'el as compensation for the animal, and thus he profits from property that belongs to someone else (the animal's owner). The Chachamim therefore instituted that the Socher must make a Shevu'ah in order to appease the owner of the animal.
</p><p>
(b) The <b>AVNEI KODESH</b> answers that the Gemara adds this reason to explain why the Socher makes a Shevu'ah according to the view of Rami bar Chama. Rami bar Chama is of the opinion (Bava Kama 107a) that a Shomer does not make any Shevu'ah unless he is 'Modeh b'Miktzas' and 'Kofer b'Miktzas.' (The Gemara there explains that the Shomer makes a Shevu'ah only if he was given three animals to watch and he returns one, claims to have lost another (Modeh b'Miktzas), and completely denies the third (Kofer b'Miktzas)). The Mishnah here, though, clearly discusses only one animal, and, consequently, there should be no Shevu'ah according to Rami bar Chama. Therefore, the Gemara explains that the reason for this Shevu'ah, according to Rami bar Chama, is a Takanah of the Chachamim in order to appease the owner.
</p><p>
(c) The <b><b><b>OR</b></b> SAME'ACH</b> (Hilchos To'en v'Nit'an 1:12) explains that the 'Shevu'as ha'Shomrin' actually is not like any other Shevu'ah d'Oraisa. The reason why the Torah itself requires the Shomer to swear is in order to appease the owner. Hence, the Gemara is explaining the reason why the <i>Torah</i> requires a Shomer to swear. (I. Alsheich)
</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE KORBANOS FOR FALSE OATHS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Yirmeyah):</font></b> (In the setting of the Mishnah, if the
          renter and borrower swore falsely and later repented -)
          sometimes each brings a Korban Chatas. Sometimes each
          brings an Asham. Sometimes the renter brings a Chatas and
          the borrower brings an Asham, and sometimes vice-versa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> For a false oath that denies money, one brings an
               Asham. For a false oath of Bituy (utterance, that
               does not deny money) he brings a sin-offering.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Each brings a Chatas, e.g. it died normally, and they
          swore that it died through Ones;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even had they sworn truthfully, the law would be the
               same. The renter is exempt, and the borrower is
               liable.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Each brings an Asham, e.g. it was stolen, and they swore
          that it died while working;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Really, each is liable. By swearing falsely, they
               exempted themselves.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	The renter brings a Chatas and the borrower brings an
          Asham, e.g. it died normally, and they swore that it died
          while working;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Really, the renter is exempt, and the borrower is
               liable. By swearing falsely, the borrower exempted
               himself.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	The renter brings an Asham and the borrower brings a
          Chatas, e.g. it was stolen, and they swore that it died
          normally;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Really, each is liable. By swearing falsely, the
               renter exempted himself.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What Chidush did R. Yirmeyah come to teach?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> He teaches unlike R. Ami, who says that any oath
          administered by Beis Din is not considered an oath of
          Bituy for which one brings a Chatas.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Ami learns from 'Ki Sishava (when will swear).'
               This connotes that he himself chose to swear.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A SHOMER WHO GAVE TO A SHOMER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> If Reuven was guarding a deposit, and he gave it
          to another Shomer, Reuven is exempt;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> He is liable.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Abaye):</font></b> Rav's law is not only when a Shomer Chinam gave
          it to a Shomer Sachar, who guards it better (he is liable
          for theft and loss);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, even if a Shomer Sachar gave it to a Shomer
               Chinam, who does not guard it as well, he is exempt.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> He gives it to one with intellect.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Abaye):</font></b> R. Yochanan's law is not only when a Shomer
          Sachar gave it to a Shomer Chinam, who does not guard as
          well;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, even if a Shomer Chinam gave it to a Shomer
               Sachar, who guards it better, he is liable.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The owner does not want others handling his
          object.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Chisda):</font></b> Rav did not say his law explicitly, rather
          it was inferred from the following episode.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There were some gardeners who used to deposit their
               hoes with a certain woman. One day, they left them
               by Reuven (one of the gardeners). He heard a
               wedding, and left them with her. They were stolen.
               Rav exempted Reuven.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The one who heard this ruling inferred that Rav
               (normally) exempts a Shomer who gave to another
               Shomer is exempt. This is wrong!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rather, because they always deposited their
                    hoes with her, they showed that they consent
                    for her to guard them.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (against R. Yochanan - R. Aba bar Mamal -
          Mishnah):</font></b> If Reuven rented Shimon's cow, and lent it to
          Levi, and it died normally, Reuven swears that it died
          normally, and Levi pays Reuven.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We do not say that (Reuven is liable because) Shimon
               does not want others handling his object!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (R. Ami):</font></b> The case is, Shimon permitted Reuven to
          lend the cow.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> If so, it is as if Levi borrowed from Shimon.
          He should pay Shimon!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> Shimon told Reuven 'if you want to lend the cow,
          that is your decision.'
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (Rami bar Chama - Mishnah):</font></b> If Shimon deposited
          coins with Reuven, and Reuven wrapped them and carried
          them (hanging) over his back, or gave them to his
          children (minors) to guard, or locked them up
          inadequately, he is liable, for people do not guard like
          this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> If his children were adults, he would be
               exempt. We do not say that Shimon does not want
               others handling his coins!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> One who deposits expects that the Shomer
          will entrust the deposit with (adult) members of the
          Shomer's family.
<br>
<br>

sjt:
<font><b>1) EXEMPTING ONESELF FROM AN OBLIGATORY PAYMENT</b></font><b>
<br>QUESTION:</b> Rebbi Yirmeyah gives various scenarios in which a Socher lent a rented animal to a Sho'el and they each make the same false Shevu'ah. In one case, they are both Chayav a Korban Chatas for the false Shevu'ah, because the Shevu'ah does not exempt them from payments in which they otherwise would have been Chayav. In another case, they are both Chayav a Korban Asham for the false Shevu'ah, since the false Shevu'ah exempts them from payments in which they otherwise would have been Chayav. In another case, one is Chayav a Korban Chatas and the other is Chayav a Korban Asham.
</p><p>
The Gemara says that if the animal dies naturally and the Socher makes a Shevu'ah that it was taken by force by armed robbers, the Socher is not Chayav a Korban Asham, because he would be exempt from payment regardless of whether it died naturally or it was taken by armed robbers.
</p><p>
However, it seems that the Socher <i>does</i> exempt himself from a payment with this particular Shevu'ah. If he had admitted the truth, that the animal died naturally, then he would have been obligated to return the Neveilah (corpse) to its owner. When he swears that the animal was taken by armed robbers, he exempts himself from the obligation to return the Neveilah to the owner since he claims that there is no Neveilah to be had. Why, then, is he not Chayav a Korban Asham? (<b>CHIDUSHEI HA'RITVA</b>, Yeshanos, 35b)
</p><p>
<b>ANSWER:</b> The <b>CHIDUSHEI HA'RITVA</b> answers that the Gemara refers to a case in which the Neveilah has no monetary value. Therefore, he does not exempt himself from a monetary obligation since, anyway, he would not have to return anything to the owner. (Such a situation is indeed possible, and is mentioned in the Mishnah in Bava Kama 33a.)
</p><p>
Alternatively, the Gemara refers to a case in which the animal died, and after it died its Neveilah fell into a river (b'Ones) and was lost.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO GAVE TO A BETTER OR WORSE SHOMER</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> If Reuven was guarding a deposit, and he gave
               it to another Shomer, Reuven is exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> He is liable.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Abaye):</font></b> Rav's law is not only when a Shomer Chinam
               gave it to a Shomer Sachar, who guards it better (he
               is liable for theft and loss). Rather, even if a
               Shomer Sachar gave it to a Shomer Chinam, who does
               not guard it as well, he is exempt. This is because
               he gives it to one with Da'as.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Abaye):</font></b> R. Yochanan obligates even a Shomer Chinam
               who gave it to a Shomer Sachar, who guards it
               better, for the owner does not want his object in
               others' hands.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rav Chisda:</font></b> A case occurred in which gardeners used
               to deposit their hoes with Leah. One day, they left
               them with Reuven (one of the gardeners). He heard a
               wedding, and left them with her. They were stolen.
               Rav exempted Reuven. Since they always deposited
               with her, they showed that they consent for her to
               guard them.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 36b (Rava):</font></b> The Halachah is, not only a Shomer
               Sachar who gave to a Shomer Chinam is liable,
               rather, even a Shomer Chinam who gave to a Shomer
               Sachar is liable, for the owner can say that he
               trusts the oath of the first Shomer, but not of the
               second.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (3:6):</font></b> The Halachah is, even a Shomer
               Chinam who gave to a Shomer Sachar is liable, for
               the owner can say that he trusts the oath of the
               first Shomer, but not of the second.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> A Shomer Sachar who gave to a Shomer Chinam
               reduced the Shemirah, for the latter does not strive
               so hard to guard it. However, this is not
               negligence, for he gave it to one with Da'as. If the
               owner normally deposits this with the second Shomer,
               the first Shomer is exempt if there was no decrease
               in Shemirah. If he decreased the Shemirah, e.g. a
               Shomer Sachar gave it to a Shomer Chinam, or a
               borrower gave it to a Shomer Sachar, the first
               Shomer was negligent, and he pays, even if he
               borrowed or rented b'Ba'alim (the owner was working
               for him; normally this totally exempts). If
               witnesses know that the second Shomer guarded
               normally, the first Shomer is exempt. Even if there
               were no witnesses, if the first Shomer saw and can
               swear, he swears and is exempt. If the owner
               normally deposits this with the second Shomer, he
               cannot say that he does not trust him. If we do not
               know that he trusts him, even if it is known that he
               is more straight and honest than the first Shomer,
               te owner can say 'I trust your oath, but not that of
               the second Shomer. You cannot force me to trust one
               with whom I have no dealings.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Nizkei Mamon 4:11):</font></b> Even a Shomer
               Chinam who gave to a Shomer Sachar is liable, for
               the owner can say 'I trust your oath, but not the
               second Shomer's oath. Therefore, if the owner always
               deposited with the second Shomer, the first Shomer
               is exempt. He can tell the owner 'what you deposited
               with me, you deposited with him Emesh (last night).'
               This is only if he did not reduce the Shemirah. If a
               Shomer Sachar gave it to a Shomer Chinam, or a
               borrower gave it to a Shomer Sachar, since he
               decreased the Shemirah, he was negligent and he
               pays. This is even if he borrowed or rented
               b'Ba'alim (from his employee). This is because he
               removed what was guarded with himself and give it to
               another Shomer.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rif exempts the first Shomer
                    if he saw and can swear that Ones occurred.
                    This is clear. When the owner regularly
                    deposited with the second Shomer, the first
                    Shomer is exempt even if the second Shomer went
                    away or has no money to pay. He is exempt
                    because the owner showed that he trusts the
                    second Shomer. Giving to an inferior Shomer is
                    the ultimate negligence, for the owner showed
                    that he wanted a better Shemirah! Normally,
                    Shemirah b'Ba'alim is exempt even for Ones.
                    This is only for the one who borrowed
                    b'Ba'alim, but not when he gave to another
                    Shomer. This requires investigation.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 291:26):</font></b> If a Shomer gave to a
               Shomer, the first Shomer is liable, even a Shomer
               Chinam who gave to a Shomer Sachar. The owner can
               say 'I trust your oath, but not the oath of the
               second Shomer', even if it is known that the second
               is better and more Kosher than the first.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Omar):</font></b> R. Yerucham
                    says that some argue about this. Maharik (6)
                    says that a Shomer may not give to a Shomer
                    even if the first is the lowliest of people and
                    the latter is the greatest.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (45):</font></b> Tosfos (Bava Kama 11b DH At) exempts
                    the first Shomer when the second is more
                    trustworthy.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Therefore, if the owner
               always deposits this with the second Shomer, the
               first Shomer is exempt, if there was no decrease in
               Shemirah. If he decreased the Shemirah, e.g. a
               Shomer Sachar gave it to a Shomer Chinam, or a
               borrower gave it to a Shomer Sachar, the first
               Shomer was negligent, and he pays, even if he
               borrowed or rented b'Ba'alim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Zeh):</font></b> R. Yerucham (30:2 83:3)
                    says that most Poskim challenged the Rambam
                    about this and exempt even if he decreased the
                    Shemirah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (46,47):</font></b> Rava said 'not only a Shomer
                    Sachar who gave to a Shomer Chinam is
                    liable...' This connotes that this itself
                    suffices to obligate him. Abaye exempts a
                    Shomer Sachar who gave it to a Shomer Chinam
                    for he gave it to one with Da'as, but this is
                    only according to Rav. Tosfos (93b DH Iy) holds
                    that giving to a Shomer with less liability is
                    not negligence, for Shomrim often guard even
                    from what they are not liable for.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH Kosav ha'Ritva):</font></b> The Ritva says
                    that if the owner normally deposited with
                    Ploni, and Ploni became poor or suspected, we
                    do not exempt a Shomer who gave to Ploni.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Beis Yosef (DH v'Chosav Maharil, and Bedek
                    ha'Bayis):</font></b> Mahari Veil (31) says that if the
                    owner deposited with David one or two times,
                    perhaps he trusted him only in pressed
                    circumstances. He can claim 'I did not want
                    (him to have the deposit)'; also the Rambam
                    mentions a Shomer that the owner regularly
                    used. I disagree. The Rambam concludes 'he can
                    tell the owner 'what you deposited with me, you
                    deposited with him Emesh.'' This is even if he
                    trusted him only occasionally. Further,
                    according to Mahari Veil he is exempt only if
                    he deposited with him every day, but not if he
                    missed a day. This is absurd. The Rambam merely
                    cited the Gemara, which said 'always'. Perhaps
                    'always' excludes if he deposited only in dire
                    times. Sometimes, one who panics deposits with
                    one whom he would not normally trust. 'Always'
                    connotes that he deposited in calm times. Or,
                    'always' excludes if he used to deposit with
                    Ploni, and Ploni became poor or suspected.
                    'Emesh' also connotes that he is not exempt in
                    such a case.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Drishah (25 DH u'Mah):</font></b> We learn from 'Emesh',
                    because it is unusual for one to change to
                    quickly (to become poor or suspected).
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Beis Yosef (DH u'Mah she'Chosav):</font></b> Tosfos says
                    that when the first Shomer can swear, or there
                    are witnesses, he is exempt, even if he gave it
                    to a Cheresh, lunatic or minor and it died in
                    their Reshus, for the angel of death would have
                    killed it also in the first Shomer's house.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Shach (46):</font></b> The Shulchan Aruch connotes that
                    when there are witnesses, the first Shomer is
                    exempt even if he gave it to an inferior
                    Shomer. Also the Bach, Rambam and Semag say so.
                    The Yam Shel Shlomo disagrees. I say that even
                    an oath should help when the owner regularly
                    used the second Shomer, even if he reduced the
                    Shemirah. I say that the Rambam admits. He said
                    'as long as he did not reduce the Shemirah' to
                    teach that if he swears that it was stolen and
                    the first Shomer was a Shomer Sachar, he is
                    liable. However, the Rambam says that he was
                    negligent. The Yam Shel Shlomo explained that
                    the first Shomer is exempt because the Ones was
                    not due to the negligence. This exempts even if
                    the owner did not regularly use the second
                    Shomer. However, the primary Perush is like the
                    Rosh, who says that this is not negligence, for
                    the second Shomer has Da'as.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>A SHOMER WHO GAVE TO A SHOMER </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Support (Chachamim of Neharde'a- Mishnah):</font></b> He gave them
          to his children (minors);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> If his children were adults, he would be
               exempt. This distinction applies only to his own
               children. If he gave to other people, children or
               adults, he would be liable!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the distinction between children and adults
               always applied, it should just say 'he gave to
               children'!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Rava):</font></b> The Halachah is, not only a Shomer Sachar who
          gave to a Shomer Chinam (who does not guard as well) is
          liable, rather, even a Shomer Chinam who gave to a Shomer
          Sachar (who guards it better) is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The reason is, the owner can say that he trusts the
               oath of the first Shomer, but not of the second.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE BEGINNING WAS NEGLIGENCE AND THE END WAS ONES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Abaye citing Rabah):</font></b> If Reuven was negligent with the
          animal he was guarding, and it went to the swamp (where
          it is not guarded), and died normally, he is liable.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava citing Rabah):</font></b> He is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Abaye:</font></b> He is liable not only according to the opinion
          that obligates when the beginning was negligence and the
          end was Ones. Rather, even the opinion that exempts in
          that case obligates in this case;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (Perhaps) the hot air of the swamp caused the death.
               It died due to the negligence.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rava:</font></b> He is exempt not only according to the opinion that
          exempts when the beginning was negligence and the end was
          Ones. Rather, even the opinion that obligates in that
          case exempts in this case;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The angel of death would have killed it no matter
               where it was.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Abaye admits that if he returned it to the owner's house
          (after being negligent, and it died there) he is exempt.
          The hot air of the swamp did not cause the death.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Rava admits that if it was stolen from the swamp and died
          in the thief's house, Reuven is liable.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Even had it not died, Reuven would be liable. The
          theft was due to his negligence.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> R. Aba bar Mamal asked (why the renter
          in the Mishnah is exempt), and R. Ami said that the case
          is, he had permission to lend it. He did not merely say
          that the angel of death would have killed it no matter
          where it was!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> You understand that a Shomer who gave to a
          Shomer is liable because the owner does not want others
          handling his object. Therefore, R. Aba could ask;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> I obligate because the owner trusts only an oath of
               the first Shomer, but not of the second. R. Aba has
               no question (for in the Mishnah, the first Shomer
               saw it die, and can swear that it died normally)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (against Abaye - Rami bar Chama - Mishnah):</font></b> If a
          Shomer brought the animal up a steep mountain and it
          fell, this is not Ones, he is liable.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Had it died by itself, he would be
               exempt. We do not say that the cold air of the
               mountain or the exertion killed it!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the Shomer took it to a good pasture
          (this is normal care of an animal).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> If so, he should be exempt even if it fell!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> He should have grabbed it.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> The previous clause taught that if the animal
          went up by itself and it fell, this is Ones, and he is
          exempt!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he tried to grab it, and it evaded
          him and went up. He tried to grab it, and it evaded him
          and went down.
<br>

<p>

sjt:
</p><p>
<font><b>2) LET THE SECOND 'SHOMER' TESTIFY ON BEHALF OF THE FIRST 'SHOMER'</b></font><b>
<br>QUESTION:</b> Rava rules that a Shomer who gives a Pikadon to another Shomer is liable for anything that happens to the object, even an Ones. Not only is a Shomer Sachar liable if he gives the object to a Shomer Chinam to watch (in which case he decreases the degree of Shemirah on the item), but even a Shomer Chinam is liable if he gives the object to a Shomer Sachar to watch (in which case he increases the degree of Shemirah). Rava explains that he is liable because the owner may claim that he trusts only the Shevu'ah of the original Shomer, and he does not trust the Shevu'ah of the second Shomer.
</p><p>
According to Rava, the first Shomer's act of giving the object to the second Shomer is not itself an act of Peshi'ah, negligence (in contrast to the view of Abaye). The first Shomer is liable to pay for the object not because he was Poshe'a, but because a Shevu'ah must be made in order for him to be exempt. The second Shomer cannot make a Shevu'ah because the owner does not trust his word, and the first Shomer cannot make a Shevu'ah because he did not see what happened to the object. Therefore, the first Shomer must pay.
</p><p>
Why, though, must he pay? The second Shomer should be able to testify, as an Ed Echad, on behalf of the first Shomer that the object was destroyed because of an Ones. According to <b>RABEINU TAM</b> (cited by the <b>ROSH</b> 1:3), an Ed Echad can exempt a person from the obligation to make a Shevu'ah (this is called an 'Ed ha'Mesaye'a'). For example, an Ed Echad can obligate a person to make a Shevu'ah ('Shevu'as Ed Echad') when he supports the claim of a lender against a borrower and testifies that the borrower owes money. The borrower then must either pay or swear that he does not owe anything. However, Rabeinu Tam rules that when a second Ed Echad supports the claim of the borrower (whose claim is contradicted by the testimony of an Ed Echad), this exempts him from a Shevu'ah. Here, too, the second Shomer should be able to testify as an Ed Echad that the object was destroyed b'Ones and exempt the first Shomer from his obligation to make a Shevu'ah or pay.
</p><p>
Indeed, the <b>RAMBAN</b> (in Milchamos) proves from this Sugya that an Ed Echad does <i>not</i> exempt a person from a Shevu'ah. How, though, does Rabeinu Tam understand this Gemara?
</p><p>
<b>ANSWER:</b> The <b>ROSH</b> answers that because the first Shomer is unable to swear (because he does not know for certain what happened), he is automatically obligated to pay. He does not have an obligation of a Shevu'ah from which an Ed Echad can exempt him.
</p><p>
This answer is difficult to understand. The entire obligation of the first Shomer to pay is only because he cannot make a Shevu'ah. Just as an Ed Echad can obligate a person to pay when the person is unable to make a Shevu'ah (such as when a borrower claims that he does not know whether or not he owes money, and an Ed Echad testifies that he does owe money), an Ed Echad should also be able to exempt a person from payment when he is unable to make a Shevu'ah, such as in this case. The Ed Echad should exempt him from the obligation of a Shevu'ah and, consequently, he should not be obligated to pay.
</p><p>
1. <b>HA'GAON RAV NAFTALI TROP</b> explains that Rava maintains that the second Shomer becomes the owner's Shomer. As mentioned above, Rava does not view the first Shomer's act of giving the object to a second Shomer as an act of negligence; the second Shomer's Shemirah is a valid Shemirah (but his Shevu'ah is not accepted by the owner). Since the second Shomer, in essence, is guarding the object for the owner, it is <i>he</i> who is obligated to make a Shevu'ah to the owner to exempt himself. The owner, however, does not trust his word, and therefore the Shevu'ah is transferred to the first Shomer, because only he can swear as to what happened to the object. Consequently, the second Shomer cannot serve as an Ed Echad to exempt the first Shomer from his obligation to swear, because the primary obligation to swear is upon <i>him</i>, and thus he cannot serve as a witness to exempt <i>himself</i> from a Shevu'ah.
</p><p>
2. <b>RAV SHACH</b> zt'l in <b>AVI EZRI</b> (Hilchos Sechirus 4:3) explains as follows. The primary obligation of the Shomer is to return the object itself to the owner. If he does not do so, he is obligated to pay. The Torah, however, allows the Shomer to swear and exempt himself from paying. As such, this Shevu'ah differs from all other cases of Shevu'ah. In all other cases (such as Ed Echad and Modeh b'Miktzas), the person is primarily exempt from any monetary obligation, but the Torah requires him to make a Shevu'ah before he can achieve that exemption. In contrast, when a Shomer claims that a Pikadon was destroyed due to an Ones, he essentially is not believed and he must pay for the object, unless he brings witnesses to support his claim. The Torah allows him to make a Shevu'ah to exempt himself. (Only when he claims that he returned the item is he essentially believed, since that is normally what is done with a Pikadon.) Thus, in this case of a Shomer's Shevu'ah, the Shevu'ah acts to exempt him from an existing monetary obligation, while in other cases, the obligation to pay is created only when the defendant does not make a Shevu'ah.
</p><p>
Accordingly, in the case of the Gemara here, the first Shomer is obligated to pay because he cannot claim with certainty that the animal died b'Ones. It is not <i>because</i> he cannot make a Shevu'ah that he must pay. Rather, the <i>primary</i> obligation of a Shomer is that he must pay for the object, but since he cannot make a Shevu'ah to exempt himself from that obligation, he must pay. The second Shomer cannot testify as an Ed Echad to exempt him, because an Ed Echad can exempt a person only from a Shevu'ah but he cannot exempt a person from a primary obligation to pay that is not the result of a Chiyuv Shevu'ah.
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DOES R. YOSI ARGUE IN THE FIRST MISHNAH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Yosi):</font></b> One may not profit through another's
          property. Rather, Levi pays Shimon.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yehudah citing Shmuel):</font></b> The Halachah follows R.
          Yosi.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Shmuel bar Yehudah):</font></b> You said in Shmuel's
          name that R. Yosi argues even in the first Mishnah (and
          says that even if a Shomer chooses to pay, the owner
          receives Kefel). Does the Halachah follow R. Yosi also
          there?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> Yes.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	R. Elazar agreed that R. Yosi argues there and that the
          Halachah follows him.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> R. Yosi agrees with Chachamim in the first
          Mishnah, because he already paid.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Is it only because he paid? R. Chiya bar Aba
          cited R. Yochanan to say that even saying that he will
          pay is enough!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Yochanan means that R. Yosi agrees in the
          first Mishnah, because he already said that he will pay.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONE WHO DOES NOT KNOW WHOM HE OWES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah #1):</font></b> If Reuven told two people 'I stole from one
          of you, and I don't know from which', or 'one of your
          fathers deposited money with me, but I don't know which',
          he pays both, because he admitted by himself.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If one person deposited 100 Zuz with Reuven, and another
          person deposited 200, and each claims that he gave 200,
          and Reuven does not know who gave which, he gives each
          100. We leave the rest until Eliyahu comes;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Yosi says '(this is improper,) for if so, the swindler
          does not lose (he has no incentive to admit)! Rather, all
          the money is left until Eliyahu comes (or one admits).
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Similarly, if they deposited Kelim, and each claims the
          bigger Kli, one gets the smaller Kli, we give the other
          the value of the smaller from the larger, and we leave
          the rest (until Eliyahu comes);
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	R. Yosi says, we leave all of it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Gemara) Inference:</font></b> The Reisha teaches that when in
          doubt, we make someone pay. We do not say 'to take money
          from another, one must bring proof';
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Contradiction:</font></b> In the Seifa, Reuven does not pay due to
          his doubt!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> If one stole, Chachamim fined him to pay out of
          doubt. They did not fine one who accepted deposits.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Contradiction #1:</font></b> Sometimes one who takes deposits is
          fined. When one of the fathers deposited money, Reuven
          pays both!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> There, Reuven is liable for forgetting who
          deposited (like two people who deposited money, each
          wrapped by itself);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven is exempt when two people deposited in front
               of each other, for this shows that they trust each
               other. He is not responsible to ensure that he
               remembers who gave which (it is like two people who
               deposited money wrapped together as one).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Contradiction #2:</font></b> Sometimes a thief is not fined!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah #2 - R. Tarfon):</font></b> If Reuven stole from one
               of five people, and he does not know from which, and
               all of them say 'you stole from me', Reuven leaves
               in front of them what he stole, and walks away.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Inference:</font></b> When in doubt, we do not make someone
               pay. Rather, we follow Chazakah, and leave the money
               with the one holding it!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What is the source that our Tana is R.
               Tarfon? (Perhaps it is R. Akiva, who argues!)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Beraisa):</font></b> R. Tarfon admits that if one told
               two people 'I stole from one of you, but I don't
               know from which'; that he pays both.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> In Mishnah #2, they claim from him. Letter of the
          law, he leaves in front of them what he stole, and walks
          away;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In Mishnah #1, Reuven wants to fulfill his
               obligation b'Yedei Shamayim, so he pays each.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Support:</font></b> Mishnah #1 says that he is liable 'because he
          admitted by himself.'
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> We said that in Mishnah #2, they claim from
          him. What does he say?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah citing Rav):</font></b> He is silent.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #2 (Rav Masnah citing Rav):</font></b> He says that he does
          not recognize any of them. If he were silent, this would
          be considered an admission.
<br>
<br>

sjt:
<font><b>1) MAKING THE SHOMER PAY EACH CLAIMANT</b></font><b>
<br>QUESTION:</b> The Mishnah discusses the case of 'Maneh Shelishis.' This is a case in which one person gave one Maneh to a Shomer and another person gave him two Maneh, and each person now claims that it is he who gave two to the Shomer. The Tana Kama rules that the Shomer should give one Maneh to each claimant, and the third Maneh should be left in escrow until Eliyahu comes, or until one of the claimants can prove that it is his.
</p><p>
Why is the Shomer not obligated to give <i>two</i> Maneh to each of the claimants? Since the Shomer admits to part of each claimant's claim (one Maneh out of the two), he should be obligated to make a Shevu'ah of 'Modeh b'Miktzas.' However, since he does not know if that claimant gave him the second Maneh, he cannot swear that he does not owe the second Maneh to that claimant. Consequently, he should be obligated to pay because of the rule (Bava Metzia 98a) that whenever a person is obligated to make a Shevu'ah but he is unable to swear, he must pay ('Mitoch she'Eino Yachol li'Shava, Meshalem'). (<b>RAMBAN</b>, <b>RASHBA</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAN</b> answers that the Torah requires a Shevu'ah only when a person keeps for himself the money that he denies owing. The purpose of the Shevu'ah is to motivate the person to admit that he owes the money. (Thus, if the Shomer would have claimed that each person gave him only one Maneh, he indeed would have been required to make a Shevu'ah of 'Modeh b'Miktzas' to confirm his claim.) In this case, however, the Shomer admits that he owes all three Maneh, and there is no reason to obligate him to make a Shevu'ah (and to obligate him to pay <i>four</i> since he cannot make a Shevu'ah). The purpose of a Shevu'ah is to motivate a person to admit to what he owes, and this Shomer does not deny that he owes money, so there is no reason to obligate him to make a Shevu'ah.
</p><p>
The <b>RASHBA</b> explains further. Had the Shomer known to which claimant the extra Maneh belonged, he certainly would have been believed and would not have had to make a Shevu'ah, because the two claimants together agree that there is a debt of only three Maneh, which the Shomer does not deny. Therefore, when he says that he does not know who owns the third Maneh, there is no obligation for him to make a Shevu'ah because he has not denied anything.
</p><p>
(The <b>NESIVOS HA'MISHPAT</b> (76:2) also writes that when a Shomer knows which claimant gave him only one Maneh, he is believed because of the Chazakah that a person does not sin with someone else's money. Since the Shomer is not trying to steal the Maneh for himself, this Chazakah states that he is not suspected of lying.)
</p><p>
(b) The <b>NESIVOS HA'MISHPAT</b> (76:2) gives an answer similar to that of the Ramban. He adds another explanation for why a Shomer is not obligated in the Shevu'ah of 'Modeh b'Miktzas' when he knows for sure which of the claimants gave him two Maneh. In that case, it would seem that the Shomer should be obligated to make a Shevu'ah to the second claimant, for that person claims that the Shomer owes him two Maneh while the Shomer asserts that he owes only one. The Nesivos ha'Mishpat explains that the whole purpose of the Shevu'ah of 'Modeh b'Miktzas' is to ensure that the defendant is not merely trying to gain more time to pay back. That reason would not apply in this case, because the Shomer clearly states that the other Maneh belongs to the second claimant. The Shomer is not trying to stall until he can repay the Maneh; on the contrary, he claims that the Maneh belongs to a different person. Hence, there is no obligation to make a Shevu'ah.
</p><p>
(c) <b>RAV ISER ZALMAN MELTZER</b> zt'l in <b>EVEN HA'AZEL</b> (in the additions at the end of Sefer Mishpatim) answers this question based on the words of the <b>KETZOS HA'CHOSHEN</b> (73). The Ketzos ha'Choshen writes that a defendant becomes obligated to make a Shevu'ah d'Oraisa only when a Beis Din tells him that he must either swear or pay. Here, Beis Din cannot tell the Shomer to pay two Maneh to each claimant because he certainly is not obligated to give back more than three Maneh. Therefore, he has no obligation to make a Shevu'ah. (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO DOES NOT KNOW FROM WHOM HE BOUGHT</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah #1):</font></b> If Reuven told two people 'I stole
               from one of you. I don't know from which', or 'one
               of your fathers deposited money with me. I don't
               know which', he pays both, because he admitted by
               himself.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Contradiction (Mishnah #2 - R. Tarfon):</font></b> If Reuven
               stole from one of five people, he does not know from
               which; all of them say 'you stole from me', Reuven
               leaves in front of them what he stole and goes away.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> The Tana of Mishnah #1 is not R.
                    Tarfon.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> (Yevamos 118b (Seifa of Mishnah #1 - R. Akiva):
                    To clear himself from sin, he must pay the
                    amount stolen to each one.)
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rejection (Beraisa):</font></b> R. Tarfon admits that if
                    one tells two 'I do not know from which of you
                    I stole', that he pays both.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> In Mishnah #2, they claim from him. Letter
               of the law, he leaves in front of them what he stole
               and withdraws. In Mishnah #1, he wants to fulfill
               his obligation b'Yedei Shomayim, he pays each.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Mishnah):</font></b> He leaves in front of them what he stole
               and withdraws.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Will they divide it and walk away?! R. Aba
               bar Zavda taught that one does not take any Metzi'ah
               that is Safek Hinu'ach (perhaps it was left
               intentionally). If he took it, he does not return
               it!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (Rav Safra):</font></b> The Mishnah means, he leaves
               what he stole (until Eliyahu comes or one brings
               proof or the others admit).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Bava Kama 103b (Beraisa - R. Shimon ben Elazar):</font></b> R.
               Tarfon and R. Akiva agree that if he bought from one
               of five people (without paying), he hands over the
               money and withdraws. They argue about when he stole.
               R. Tarfon says that he pays once. R. Akiva says that
               he pays to each.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Inference:</font></b> R. Shimon ben Elazar says that they do
               not argue about buying. We infer that the first Tana
               in the Beraisa says that they argue!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Beraisa):</font></b> A case occurred in which a Chasid was
               unsure from which of two men he bought. R. Tarfon
               said ' it suffices to leave the money in front of
               them.' R. Akiva said 'to clear yourself you must pay
               each of them.'
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (Yevamos 44a and 15:11):</font></b> We establish
               the Mishnah like R. Shimon ben Elazar: all agree
               that if he bought from one of five, he hands over
               the money and withdraws. They argue about when he
               stole. R. Tarfon says that he pays once. R. Akiva
               says that he pays to each.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif (Bava Metzi'a 20b):</font></b> He pays all to be Yotzei
               Yedei Shomayim. Letter of the law he needs to pay
               only once. The Halachah is that if one is unsure
               whether or not he owes Ploni, he is exempt, like Rav
               Nachman. All agree that one who bought from one of
               five need not pay all. They argue about one who
               transgressed or was negligent with a deposit.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Milchamos Hash-m:</font></b> The Tana before R. Shimon ben
                    Elazar holds that R. Akiva obligates even a
                    buyer to pay each one, even though he not be
                    careful to note from whom he buys. The Rif says
                    to give the money to Beis Din; perhaps they can
                    clarify the matter. If they cannot, it stays in
                    his Reshus until Eliyahu comes.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> Also the Magid Mishneh says that the Rif
                    says to leave the money in Beis Din. Our text
                    of the Rif says 'between them.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 20:2):</font></b> If one bought from
               one of five and each of them claims from him, and he
               is unsure, he hands over the money and withdraws.
               The money stays there until they admit or until
               Eliyahu comes. A Chasid pays each one to be Yotzei
               Yedei Shomayim.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos She'alah 5:4):</font></b> If Reuven and David
               deposited different amounts with Moshe and each
               claims the larger and Moshe is unsure, each of them
               swears that he gave the larger. Moshe gives the
               larger amount to each of them and suffers the loss,
               for he was negligent. He should have written the
               names on each deposit. If they deposited together in
               the same bundle Moshe pays the smaller amount to
               each and holds the rest until one of them admits.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> He learns from Bava Metzi'a. To
                    be Yotzei Yedei Shomayim, one must pay each,
                    even regarding a deposit.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Lechem Mishneh:</font></b> Tosfos (37a DH Gozal) says that
                    Rav Nachman's law is independent of the
                    argument of R. Akiva and R. Tarfon. The Rif
                    disagrees. According to to the Tana that they
                    argue even about a buyer, Rav Nachman is like
                    R. Tarfon and Rav Yehudah is like R. Akiva. If
                    so, how could the Gemara (Bava Metzi'a 37b) try
                    to refute these Amora'im? We must say that it
                    only suggested that a Stam Mishnah opposes each
                    of them.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Tosfos (Bava Kama 104a DH she'Chevar):</font></b> Surely, the
               Chasid wanted to be Yotzei Yedei Shomayim. Why did
               R. Tarfon tell him that he need not pay both? We
               must say that first he asked what is letter of the
               law. Alternatively, even b'Yedei Shomayim R. Tarfon
               requires paying each only if he transgressed. Bava
               Metzi'a 37a supports this. It distinguishes whether
               or not one seeks to be Yotzei Yedei Shomayim
               regarding theft, but not regarding a purchase.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 222:2):</font></b> If one does not know from
               which of five he bought and each claims from him, he
               hands over the money between them and leaves. Beis
               Din holds it until they admit or until Eliyahu
               comes.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Shach 5):</font></b> The Shulchan Aruch was
                    swayed by the Magid Mishneh, who says that the
                    Rambam means that the money is left in Beis
                    Din. This is difficult. Regarding a Shomer the
                    Rambam and Shulchan Aruch (300:1) explicitly
                    say that it is left with him. Rashi, the Ba'al
                    ha'Ma'or and Ramban all say so explicitly about
                    a thief, and surely the same applies here.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Nesivos ha'Mishpat (Bi'urim 76:5):</font></b> The Shach
                    says the same about one who borrowed from two
                    and is unsure who lent the larger amount. It
                    seems that all agree about a loan. If he would
                    give the money to Beis Din and it was lost he
                    would still be liable to the lender (if the
                    lender brought proof). Regarding a deposit or
                    theft, once he gives it to Beis Din he is
                    exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch:</font></b> A Chasid pays each to be Yotzei
               Yedei Shomayim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (6):</font></b> If they do not claim from him, he need
                    not pay them even to be Yotzei Yedei Shomayim.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> The Shulchan Aruch (300:3) says so about
                    a Nifkad. It brings two opinions about whether
                    one must pay to be Yotzei Yedei Shomayim if he
                    is unsure from whom he borrowed and they do not
                    claim from him (76:3).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (3):</font></b> We do not distinguish whether they
                    claimed from him even before he admitted, only
                    whether or not they are sure.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Question:</font></b> The buyer is negligent for forgetting
                    from whom he took. He should need to pay each,
                    like one who took a deposit!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b></b> Answers (Ramban Bava Metzi'a 37b DH v'Iy):
                    Normally, a buyer pays immediately. He did not
                    need to suspect that another would have the
                    audacity to claim that he sold it.
                    Alternatively, the sellers were together, yet
                    they did not tell him to note from whom he
                    buys. It was reasonable for him to assume that
                    they trusted each other or they were partners,
                    so he pays only once and is Yotzei Yedei
                    Shomayim. Regarding a buyer, the Halachah
                    follows R. Tarfon. He told the Chasid that he
                    need pay only once, even though surely he
                    wanted to be Yotzei Yedei Shomayim.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Bach (DH Ela):</font></b> 'He bought from one of five'
                    connotes that the sellers were together. A
                    Nifkad need not be careful to label deposits
                    that people gave together; the same applies
                    here. The Gemara compares a buyer to a thief.
                    We cannot say that a thief should have
                    remembered. The only difference is that he
                    sinned.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Rebuttal (Shach 4):</font></b> The Rif, Rambam and
                    Shulchan Aruch do not exempt a Nifkad if
                    depositors were together at the time, unless
                    they gave one bundle! Rather, one must suspect
                    lest a depositor claim the bigger amount, but
                    one need not suspect that one who sold nothing
                    will claim that he sold. The Nimukei Yosef says
                    that only a Nifkad must be careful, for people
                    deposit for a long time (like the Ramban's
                    first answer). According to this, even if the
                    sellers were not together the buyer pays only
                    once.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Nesivos ha'Mishpat (Chidushim 5):</font></b> According to
                    the Nimukei Yosef, if he bought on credit this
                    is like a deposit.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Question (Shach 6):</font></b> Regarding a (blameless)
                    Nifkad, the Shulchan Aruch does not require
                    paying each to be Yotzei Yedei Shomayim!
                    Perhaps the Shulchan Aruch distinguishes a
                    buyer from a Nifkad. However, it explains that
                    the buyer is blameless!
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Answer (Ketzos ha'Choshen 5):</font></b> Often the
                    Shulchan Aruch teaches liability b'Yedei
                    Shomayim. He teaches that a Chasid must pay
                    each to be Yotzei Yedei Shomayim; others need
                    not.
<br>             <b>  <b><font color='darkgreen'>xi. </font></b><font color='darkgreen'> Gra (3):</font></b> The Halachah follows R. Akiva (a buyer
                    must pay everyone to be Yotzei Yedei Shomayim).
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>TWO WHO CLAIM THE BIGGER DEPOSIT </b></b>(</font><font color='darkblue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Yehudah holds that here, his silence is not an
               admission. He can say 'I was silent to each, for I
               was thinking that perhaps this is the one.'
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> He leaves in front of them what he stole, and
          withdraws.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Question:</font></b> Will they divide it and walk away?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Aba bar Zavda taught that one may not take any
               Metzi'ah that is Safek Hinu'ach (perhaps it was left
               intentionally). If he took it, he does not return
               it! (Rashi - if someone that claims he lost it, he
               must bring proof. Here also, the thief cannot give
               it up without proof. Ra'avad - just like one may not
               take when in doubt, the people who claim to own it
               may not split it without proof!)
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer (Rav Safra):</font></b> The Mishnah means that he leaves what
          he stole (until Eliyahu or until one of them brings
          proof).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>R. AKIVA'S OPINION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> In Mishnah #2, R. Akiva says 'to clear
          himself from transgression, he must pay every one.' When
          in doubt, we make someone pay. We do not leave money in
          its Chazakah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Mishnah #3):</font></b> If a house fell on a man
               and his mother, and his heirs say that she died
               first (so the son inherited her), and her heirs say
               that he died first (and they inherit her), Beis
               Hillel and Beis Shamai agree that they split her
               property;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Akiva says, I admit in this case that the
               property stays in its Chazakah. (Amora'im argue if
               he means that the son's or mother's heirs get it.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> There, both parties are unsure. Regarding
          the theft, the claims against Reuven are definite, Reuven
          is unsure.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> In our Mishnah (when he stole from one of two
          people) all the claims are doubtful, and he pays each!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> (The question assumes that our Tana is R.
               Akiva.) What is the source for this?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Beraisa):</font></b> R. Tarfon admits that if one tells
               two people 'I stole from one of you, but I don't
               know from which', he pays both;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Tarfon admits to R. Akiva, with whom he
                    argues in the Mishnah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What is the source that the claims against
               the thief are uncertain?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #1:</font></b> It does not say that they claim from him.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #2 (Beraisa - R. Chiya):</font></b> The case is, each
               says that he does not know if he was the victim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> We said that our Mishnah discusses one who wants
          to fulfill his obligation b'Yedei Shamayim.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>TWO DEPOSITORS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> Did Rava really say that when two
          depositors gave money in two bags, the Shomer must
          remember who gave which?
<br>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Rava - some say, Rav Papa]):</font></b> All
               agree that two people who deposited (different
               numbers of) animals with a shepherd, the shepherd
               leaves the animals in front of them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> That is when they deposited the
          animals in his herd without his knowledge.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Similarly, if they deposited Kelim...
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	The Mishnah needed to teach both cases.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had it taught only about money, one might have
               thought that there Chachamim say to return 100 to
               each, for there is no loss, but regarding Kelim,
               there is a loss (Rashi - part of the big Kli is
               broken off; Nimukei Yosef - we sell the larger Kli,
               and it will not return to the owner), so Chachamim
               admit to R. Yosi;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had it taught only about Kelim, one might have
               thought that there R. Yosi says that we leave them
               until Eliyahu comes, but regarding money, since we
               can give each 100 without a loss, he admits to
               Chachamim.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> But R. Yosi's reason is in order that the
          swindler will admit! (Surely he argues even when there is
          no loss!)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Retraction:</font></b> Rather, both cases come to taught to teach
          Chachamim's opinion. The case of Kelim is a bigger
          Chidush than the case of money.
<br>

<p>

sjt:
</p><p>
<font><b>2) LEAVING AN ITEM WHOSE OWNERSHIP IS IN DOUBT IN THE HANDS OF NO ONE</b></font><b>
<br>QUESTION:</b> The Gemara cites a Mishnah (Yevamos 118b) which discusses a case in which a person stole something from one of five people, each of whom claims to be the object's owner, and the Ganav does not know from which person he stole it. Rebbi Tarfon rules that the Ganav 'should place the stolen item among them and leave.' The Gemara questions this ruling from the statement of Rebbi Aba bar Zavda, who states that an item which is 'Safek Hinu'ach' may not be picked up, and if it was picked up then the person may not return it. Rashi explains that he may not return it to a person who claims to be its owner; rather, it must remain in his possession until the identity of the owner is clarified. The Gemara asks that this Ganav should also be required to keep the stolen item in his possession until the identity of the owner becomes known. Why does Rebbi Tarfon allow him to abandon the object in front of the claimants? The Gemara answers that this indeed is what Rebbi Tarfon rules. Rebbi Tarfon's statement means that the Ganav should first place the stolen item in front of the claimants in Beis Din and instruct them to clarify to whom it belongs. He then should take the item and leave, keeping it in his possession until the owner's identity becomes known.
</p><p>
Why does the Gemara question Rebbi Tarfon's ruling from the statement of Rebbi Aba bar Zavda? It should ask the same question from the Mishnah here (37a) which -- in the case of 'Maneh Shelishis' -- teaches that an item whose ownership is in doubt must be left in the possession of the person holding it. (<b>SHITAH MEKUBETZES</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARSHA</b> and <b>MAHARAM SHIF</b> answer that the case of the Mishnah is not comparable to the ruling of Rebbi Tarfon. In the case of the Mishnah, the money of doubtful ownership came into the Shomer's possession in a permissible manner (it was deposited with him). The owner of the money is at fault for the confusion; he should have made it clear that the additional Maneh was his. Therefore, the Shomer may keep the money until the owner brings proof that it belongs to him. In contrast, in the case of the Ganav, he acquired the item in a prohibited manner (he stole it). Thus, even if the Shomer may keep the item in his possession, the Ganav may be obligated to remove it from his possession. This is why the Gemara questions Rebbi Tarfon's ruling from the statement of Rebbi Aba bar Zavda, which also discusses a case of someone who obtained an object in a prohibited manner (he took a Metzi'ah that he should have left in its place).
</p><p>
This answer suffices only according to the opinion that maintains that the Shomer keeps the third Maneh until the owner's identity is clarified. According to that opinion, it makes sense to differentiate between the case of the Mishnah here and the case of a Ganav who stole from one of five people. However, according to the opinion (that of the <b>MORDECHAI</b> cited by the <b>REMA</b> CM 300:1) that the third Maneh is left in escrow in Beis Din, there should be no difference between the case of the Mishnah and the case of the Ganav who stole from one of five people. If, in the case of the Mishnah, the third Maneh is left in escrow in Beis Din, then certainly the Ganav should leave the stolen item in Beis Din and not abandon it in front of the claimants!
</p><p>
(b) The <b>MA'AYAN HA'CHOCHMAH</b> answers based on the <b>RITVA</b> as follows. The Gemara could not have questioned Rebbi Tarfon's ruling from the Mishnah because in the case of the Mishnah, if the Shomer were to leave the third Maneh in front of the claimants, the claimant who is lying might take it for himself. Thus, if the Shomer leaves the money in front of both claimants, he may be aiding the liar in his unlawful gain. It is better that the third Maneh be left in Beis Din so that there will not be a possibility that the liar will obtain it. (Although the true owner will also be unable to retrieve it, at least he will retain a chance of retrieving it in the future). A Ganav, however, has an obligation to return any item that he stole, and as long as that obligation has not been fulfilled, the item is in his possession b'Isur, illegally. Therefore, there are grounds to suggest that he should leave the item in front of the claimants, because he thereby will create a possibility that the rightful owner will regain it, which would absolve the Ganav of the sin he committed. In contrast, if he keeps the item in his own possession or leaves it in Beis Din, then he <i>certainly</i> will not fulfill his obligation to return it.
</p><p>
(c) The <b>ERECH SHAI</b> answers that the Gemara could not question Rebbi Tarfon's ruling based on the Mishnah, because there is a basic difference between a stolen item and a Pikadon. In the case of a Pikadon, the Shomer's possession of the item that the owner deposited is considered a Chezkas Mamon on behalf of the owner. Thus, in the Mishnah's case, the Shomer's custody of the money gives each of the owners a Chezkas Mamon on it. (This is like the opinion of Tosfos at the beginning of the Masechta. Tosfos writes that the rule of 'Kol d'Alim Gavar' is not applied when both claimants are holding on to the item, because they both have a Chezkas Mamon.) In the case of the third Maneh, it is as if each claimant is holding the Maneh because the Shomer has possession of it. Therefore, the Shomer is not permitted to remove the Maneh from his possession, because doing so would remove the Maneh from the Chazakah of its rightful owner.
</p><p>
In contrast, a Ganav who has a stolen item is not considered to be holding it on behalf of the owner, which would give the owner a Chezkas Mamon on the item. (This is evident from the fact that the owner cannot be Makdish the item or sell it while it is in the Ganav's possession). Therefore, it might have been logical to allow the Ganav to leave the stolen item in front of the different claimants and let the rule of 'Kol d'Alim Gavar' take effect.
</p><p>
This is why the Gemara questions Rebbi Tarfon's ruling from Rebbi Aba bar Zavda's statement and not from the Mishnah. In Rebbi Aba bar Zavda's case of 'Safek Hinu'ach,' the finder is not holding the object on behalf of anyone, and yet he still may not remove it from his possession. The Gemara asks that the same should apply to the case of the Ganav. (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A DEPOSIT OF PEROS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven deposited produce with Shimon, even
          if it is rotting, Shimon should leave it;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Shimon ben Gamliel says, he should sell it in front of
          Beis Din. This is like returning an Aveidah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why should Shimon let it rot?
<br>
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rav Kahana):</font></b> A person prefers one measure of
          his own Peros more than nine measures of others' Peros.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rav Nachman bar Yitzchak):</font></b> We cannot sell
          them, lest Reuven declared them to be Terumah or Ma'aser
          on other Peros.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven deposited Peros with
          Shimon; even if it is rotting, Shimon should leave it.
          Therefore, Reuven may make it Terumah or Ma'aser on other
          Peros.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Rav Kahana, 'therefore' makes sense,
               but according to Rav Nachman bar Yitzchak it does
               not !
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> It means that after Chachamim ruled that Shimon
          must leave the produce (even if rotting) lest Reuven made
          it Terumah or Ma'aser on other produce, Reuven may do so.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rabah bar bar Chanah):</font></b> The Tana'im argue in a case when
          the loss (due to rotting) is within the specified amount
          (in the Mishnah 40a). If the loss exceeds this, all agree
          that Shimon should sell it in Beis Din.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Surely, this argues with Rav Nachman bar Yitzchak. (If we
          are concerned that they were made Terumah, they may never
          be sold.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Must we say that this argues with Rav Kahana?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> No. Rav Kahana agrees that only a small loss
          should be endured.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> He said that one prefers one measure of his own
          to nine measures of another's. Shimon should not sell
          until the loss is 90 percent!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> Nine is an exaggeration.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>AFTER IT ROTTED TOO MUCH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Question (against Rabah bar bar Chanah - Beraisa):
          Therefore, Reuven may make it Terumah or Ma'aser on other
          Peros;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We should be concerned lest the loss exceeded the
               specified amount, and it was sold in Beis Din! (If
               so, Reuven's Terumah is invalid, and he will eat
               Tevel (untithed Peros)!)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> It is rare that the loss exceeds the specified
          amount. We are not concerned for this.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If it occurs, why may we sell the Peros?
          Perhaps Reuven made them Terumah or Ma'aser!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> We sell it to Kohanim who pay for it (and eat it)
          as if it were Terumah.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Rav Nachman bar Yitzchak is concerned lest it
          was made Terumah. We should sell it to Kohanim as if it
          were Terumah!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> They argue as follows. Rabah bar bar Chanah holds
          that it is rare that the loss exceeds the specified
          amount. Surely, he did not leave the Peros to be Tevel so
          long (he either separated Terumah on it or made it
          Terumah);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In either case, this was before we sell it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Nachman bar Yitzchak holds that the loss often
               exceeds the specified amount in a short time.
               Perhaps he did not yet tithe it, and he will later
               make it Terumah. (Therefore, we cannot sell it, less
               Reuven's separation will be invalid.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Beraisa - R. Meir):</font></b> If Reuven deposited produce
          with Shimon and it rotted, or wine or honey and it
          soured, or oil and it stank, Shimon should not touch it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim say, he should fix the situation and sell
               them in Beis Din.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He sells them only to others, but not to himself.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Similarly, if collectors of Tzedakah have no poor
               people to give Perutos to (and they fear lest the
               coins rust), they exchange them for bigger coins
               with other people, but not with themselves.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> If collectors of the Tamchuy (food collected to be
               given to the poor) have no one to give it to, they
               sell the food to other people, but not to
               themselves.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Summation of question - suggestion:</font></b> The Beraisa
               discusses produce that rotted, i.e. even if it
               rotted more than the specified amount.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> No, it was no more than the specified amount.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> It also teaches wine or honey that soured, and
          oil that stank. These are more than the specified amount!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Those are different. Once they soured or stank,
          no further loss will come, but produce will rot more!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> What use is there for stinking oil or soured
          honey? (The Beraisa says that we sell them.)
<br>
<br>

sjt:
<font><b>1) FRUITS THAT ARE ROTTING</b></font><b>
<br>QUESTION:</b> The Tana Kama in the Mishnah states that when a person deposits fruit with a Shomer, the Shomer may not sell the fruit even if it is rotting. Rav Kahana in the Gemara explains that the reason is that 'a person prefers a Kav of his own produce over nine Kavim of his friend's produce,' and therefore even if the owner's produce is rotting, the Shomer may not sell it.
</p><p>
The Gemara earlier (28b), however, teaches that when a person finds a lost animal whose upkeep costs more than what the animal produces, the finder should sell the animal. He thus protects the assets of the owner, who otherwise would have to pay for the upkeep of the animal when he retrieves it. Here, too, the Shomer should sell the fruit to prevent the owner from suffering a loss. Alternatively, if the logic of 'a person prefers a Kav of his own produce...' applies to this case, then it should apply to the case of the earlier Gemara as well, and the finder should not be allowed to sell the animal. What is the difference between the two cases? (Acharonim)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAGEN GIBORIM</b> answers that the Gemara earlier, which rules that a finder should sell an animal in order to protect the owner from a loss, refers only to an <i>Aveidah</i>. There is a special Halachah in the laws of Hashavas Aveidah that requires the finder to do whatever he can to prevent the owner from suffering further loss. This Halachah is derived from the verse, 'va'Hashevoso Lo' (Devarim 22:2), which teaches that a person must do whatever he can to ensure that a lost object is returned to its owner without the owner incurring any further monetary loss. If a person finds an animal that is worth one Maneh, for example, he must ensure that one Maneh and not less is returned to the owner. This Gezeiras ha'Kasuv, however, applies only to an Aveidah and not to the case of the Mishnah here, which is a case of a <i>Pikadon</i>. In the case of a Pikadon, the Tana Kama reasons that 'a person prefers a Kav of his own produce...' since there is no Gezeiras ha'Kasuv that teaches otherwise.
</p><p>
(b) The <b>RASHASH</b> answers that the Tana Kama's logic that 'a person prefers a Kav of his own produce' applies specifically to a Shomer. He bases this assertion on the Mishnah later (40a) which teaches that when a person deposits his fruit with a Shomer, the Shomer deducts the 'Chesronos' from the fruit when he returns it to the owner. The Gemara there explains that this Halachah applies when the Shomer places the other person's fruit together with his own, and they become mixed together. Since it is normal for a volume of fruit to decrease (due to rats and other factors), the Shomer may assume that some of the owner's fruit was depleted, and he therefore may deduct the standard amount of depletion from the fruit that he returns.
</p><p>
It is clear from that Sugya that a person who deposits fruit with a Shomer is fully aware that the volume of his fruit will decrease and he accepts that decrease. It can be assumed that the owner would prefer that his fruit be returned to him in its present state, even if it means that he will receive slightly less fruit, for, otherwise, he would have sold his fruit rather than leave it with a Shomer. Since he entrusted his fruit to a Shomer with the knowledge that it would decrease, it is clear that he 'prefers a Kav of his own produce over nine Kavim of his friend's produce.' (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO DOES NOT KNOW WHO GAVE WHICH DEPOSIT</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 37a (Mishnah):</font></b> If Reuven told two people 'I stole
               from one of you, and I don't know from which', or
               'one of your fathers deposited money with me, but I
               don't know which', he pays both, because he admitted
               by himself.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If one person deposited 100 Zuz with Reuven, and
               another person deposited 200, and each claims that
               he gave 200, and Reuven does not know who gave
               which, he gives each 100. We leave the rest until
               Eliyahu comes;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yosi says '(this is improper,) for if so, the
               swindler does not lose (he has no incentive to
               admit)! Rather, all the money is left until Eliyahu
               comes.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Similarly, if they deposited Kelim, and each claims
               the bigger Kli, one gets the smaller Kli, we give
               the other the value of the smaller from the larger,
               and we leave the rest;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> R. Yosi says, we leave all of it.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Inference:</font></b> The Reisha teaches that when in doubt, we
               make someone pay. We do not say 'to take money from
               another, one must bring proof';
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Contradiction:</font></b> In the Seifa, Reuven does not pay due
               to his doubt!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> If one stole, Chachamim fined him to pay out
               of doubt. They did not fine one who accepted
               deposits.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Contradiction:</font></b> In our Mishnah, a thief is fined. In
               another Mishnah, he leaves in front of them what he
               stole, and walks away!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer:</font></b> In that Mishnah, they claim from him. Letter
               of the law, he leaves in front of them what he
               stole, and walks away. In our Mishnah, Reuven wants
               to fulfill his obligation b'Yedei Shamayim, so he
               pays each.
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> The Mishnah needed to teach about deposits or money
               and Kelim:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Had it taught only about money, one might have
                    thought that there Chachamim say to return 100
                    to each, for there is no loss, but regarding
                    Kelim, there is a loss, and Chachamim would
                    admit to R. Yosi;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Had it taught only about Kelim, one might have
                    thought that there R. Yosi says that we leave
                    them until Eliyahu comes, but regarding money,
                    since we can give each 100 without a loss, he
                    admits to Chachamim.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Objection:</font></b> R. Yosi's reason is in order that the
               swindler will admit! (Surely he argues even when
               there is no loss!)
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Retraction:</font></b> Rather, both cases come to taught to
               teach Chachamim's opinion. The case of Kelim is a
               bigger Chidush than the case of money.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> The Shomer must pay, for he was negligent for
               not writing how much each gave, lest he forget.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos She'elah 5:4):</font></b> If one person
               deposited 100 Zuz with Reuven, and another person
               deposited 200, and each claims that he gave 200, and
               Reuven does not know who gave which, each swears,
               like one who swears and receives, that he gave 200.
               Reuven pays 200 to each, and loses 100 from his
               money. He was negligent; he should have written the
               name of each depositor on his bag.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> Even though Reuven admits that
                    he owes 100 to each and is unsure about the
                    rest, this is unlike one who admits to half a
                    claim and is unsure about the rest. There,
                    (since he cannot swear,) he pays without any
                    oaths. Here, he knows that he received only
                    300, and due to his negligence he pays extra
                    improperly. Therefore, it is proper that those
                    who take must swear. The Rashba says so. Also,
                    this law is even if he says Heilach (and gives
                    the 100 to each that he admits to), and then
                    Modeh b'Miktzas does not apply.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (ibid):</font></b> Similarly, if they deposited Kelim,
               and each claims the bigger Kli, they both swear, and
               he gives the big Kli to one, its value to the other,
               and keeps the small one. If they deposited together
               one bundle, he gives the smaller Kli to one, its
               value to the other from the big Kli, and holds the
               rest until one of them admits, or forever. Similar,
               if two claim a deposit, and Reuven says 'it was from
               one of you; I do not know which', he pays both of
               them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rosh (3:8):</font></b> The Reisha discusses when their
                    fathers deposited. If they themselves
                    deposited, Reuven would be exempt even b'Yedei
                    Shamayim, for they would be negligent for
                    forgetting. If one of two deposited and does
                    not claim, Reuven is exempt even b'Yedei
                    Shamayim, for the depositor should have been
                    careful to remember. If two claim a deposit,
                    and Reuven says 'it was one of you; I do not
                    know which', each of them swears and collects.
                    If they do not claim from him, he is exempt
                    even b'Yedei Shamayim, for the depositor should
                    have been careful.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 300:1):</font></b> If one person deposited
               100 Zuz with Reuven, and another person deposited
               200, and each claims that he gave 200, and Reuven
               does not know who gave which, each swears that he
               gave 200. Reuven pays 200 to each, and loses 100
               from his money. He was negligent; he should have
               written the name of each depositor on his bag.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (1):</font></b> Each takes a severe oath, like one who
                    swears and receives (82:2).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (1):</font></b> This is like a grocer who ordered to
                    pay workers (and they argue about whether or
                    not he paid them), or two lenders. They would
                    collect without swearing if there were no
                    dispute.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If they do not make Vadai
               claims from him, to be Yotzei Yedei Shamayim he is
               liable. He is exempt b'Yedei Adam.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (3):</font></b> He can say 'I was careful to see who
                    gave 200, and I forgot.' They themselves
                    forgot, for they did not claim from him!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (5):</font></b> If they do not claim at all, the
                    last 100 is split among the depositors, for
                    there is no liar.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> Similarly, if they deposited
               Kelim, and each claims the bigger Kli, they both
               swear, and he gives the big Kli to one, its value to
               the other, and keeps the small one. If they
               deposited together one bundle, he gives the smaller
               Kli to one, its value to the other, and the rest is
               left until one of them admits, or forever.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (10):</font></b> The Gemara said that one might have
                    thought that regarding Kelim we do not cause a
                    loss, and Chachamim would admit to R. Yosi. The
                    extra clause teaches that this is not so. The
                    Tur omitted this, for it is obvious.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (9):</font></b> This is like the Rambam (we sell the
                    larger Kli - Lechem Mishneh), unlike Rashi (37a
                    DH Mitoch, who says that we break a piece off
                    the larger Kli). According to the Rambam, this
                    is called a loss because a person prefers his
                    own things.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (3):</font></b> Similar, if two claim a deposit,
               and Reuven says 'it was one of you; I do not know
               which', he pays both of them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (11):</font></b> He pays them after they swear. When
                    one does not remember from whom he bought, he
                    pays only once (222:2). The Nimukei Yosef
                    explains that this is because a buyer normally
                    pays immediately, and he was not obligated to
                    be careful. A Shomer often guards for a long
                    time; he should have been careful.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz:</font></b> Tosfos (37a DH Hasam) asked from a Chasid
                    who bought from one of two. He holds that that
                    one who buys must be careful, unlike the
                    Nimukei Yosef.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema:</font></b> If they do not claim from him, he is exempt,
               even to be Yotzei Yedei Shamayim. If he says 'one of
               your fathers deposited with me; I do not know
               which', he pays both of them to be Yotzei Yedei
               Shamayim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (12):</font></b> Since there was only one depositor,
                    he can say that he expected only the depositer
                    to claim it, so he did not need to be careful.
                    This is why he must pay when one of their
                    fathers deposited. The Shomer was negligent.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Shulchan Aruch (76:3):</font></b> If Reuven says to two 'one of
               you lent to me. I do not know which', and they do
               not claim from him, he is exempt even b'Yedei
               Shamayim. Some say that he must pay both be Yotzei
               Yedei Shamayim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (5):</font></b> Since they do not claim from him, this
                    shows that the lender was not careful. Since
                    the borrower saw this, he himself was not
                    careful.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (16):</font></b> Piplulei Charifta (8:8) says that
                    here he was not negligent, for he did not
                    expect the lender to forget.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (18):</font></b> In Siman 300, the Rema: brought
                    only the first opinion. Why didn't he comment
                    here that it is primary? Surely we cannot
                    distinguish a deposit from a loan! Sefer
                    ha'Terumos (39:3:1) equates them. Also the Tur
                    here learns from what the Rosh said about a
                    deposit!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (4):</font></b> The first opinion holds that the
                    Mishnah mentions a father, for had the
                    depositor himself forgotten, the Shomer would
                    be exempt even b'Yedei Shamayim. The latter
                    opinion holds that it merely gives a common
                    case. Normally, one does not forget what he
                    deposited.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>TWO WHO DEPOSITED TOGETHER </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> The oil can be used to anoint leather, and the
          honey for a wound on a camel's back.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Beraisa - Chachamim):</font></b> He should fix the
          situation and sell them in Beis Din.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> What does he fix? (Wine, honey and oil will not
               spoil any further!)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> He fixes the Kelim (so they will not
          rot).
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> What do the Tana'im argue about?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> They argue about whether we are concerned for a
          small loss (Peros that rot less than the specified
          amount, or the Kelim). Chachamim are concerned, and R.
          Meir is not.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>APPOINTING RELATIVES OVER PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Shimon ben Gamliel):</font></b> He sells them in Beis
          Din. This is like returning an Aveidah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Aba b'Rebbi Yakov citing R. Yochanan):</font></b> The Halachah
          follows R. Shimon ben Gamliel.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> The Halachah follows Chachamim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why did R. Yochanan need to say this? We
          already know his opinion from another of his teachings!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah bar bar Chanah citing R. Yochanan):</font></b> The
               Halachah always follows R. Shimon ben Gamliel in a
               Mishnah, with three exceptions: the Mishnayos of a
               cosigner, the Get in Tzidon, and a litigant who
               found witnesses after the allotted time.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Amora'im argue about the opinion of R. Yochanan.
          (R. Aba says that R. Yochanan never gave such a general
          rule. Rabah says that R. Yochanan did not (need to) rule
          about our particular Mishnah.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Inferences:</font></b> From R. Shimon (ben Gamliel), we learn that
          when one is captured, we (i.e. Beis Din) appoint a
          relative (an heir) over his property. From Chachamim, we
          learn that we do not appoint a relative over property of
          a minor (these will be explained).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> Perhaps R. Shimon permits selling only in
          our case, lest the principal be lost, but he would not
          permit appointing a relative for the sake of Peros!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> Perhaps Chachamim forbid selling only in
          our case, for the reason of Rav Kahana or Rav Nachman bar
          Yitzchak, but they would permit appointing a relative!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> This implies that these two laws are
          independent. However, Shmuel said that the Halachah
          follows R. Shimon, and he also permitted appointing a
          relative over property of a captured person!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Because he rules like R. Shimon, he
               permits appointing a relative.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> No. Neither law follows from the other.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Support:</font></b> Rav Nachman said that the Halachah follows R.
          Shimon, and he permits appointing a relative over
          property of a captured person!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This shows that the reasons for the two laws are not
               the same.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rav):</font></b> We do not appoint a relative over property of a
          captive.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> We appoint a relative.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If we heard that the captive died, all agree that we
               appoint a relative. They argue in a case when we did
               not hear.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav is concerned lest he cause a loss to the
               property (he will plant constantly, without
               fertilizing), since he is afraid that he has the
               field for a limited time;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Shmuel says, since he is paid like a sharecropper
               (if the owner returns and the land reverts to him),
               we are not concerned lest he cause a loss.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (Beraisa - R. Eliezer):</font></b> 'V'Horagti Eschem...
          v'Hayu Nesheichem Almanos u'Vneichem Yesomim' -
          obviously, if they will die, their wives and children
          will be widows and orphans!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, this teaches that the widows will not get
               permission to remarry (because their husbands were
               captured and we do not know if they died, and for
               the same reason), the orphans will not be given
               their father's property.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> That teaches that the orphans will not be
          given permission to sell it, but they will be allowed to
          use it.
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	Based on this Beraisa, Rav Sheshes ruled in a case in
          Neharde'a (and forbade an heir to use the property).
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question (Rav Amram):</font></b> Perhaps the Beraisa teaches that
          the orphans may not sell it, but they may use it!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Rejection (Rav Sheshes):</font></b> Only Chachamim of Pumbadisa
          (e.g. Rava) would establish the Beraisa in such a
          difficult way!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Presumably, the orphans are like the widow. Just
               like she is not permitted (to marry) at all, also
               the orphans are not given the land at all.
<br> <b>    <b><font color='darkgreen'>(s)</font></b></b>  	Tana'im argue about whether or not we appoint a relative
          over property of a captive.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven started working on property of
               a captive, we do not remove it from him. Even if he
               heard that the owner is coming, and he harvested and
               consumed the Peros, he profits from his zealousness.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The case of property of a captive is when
                    Shimon went overseas, and we heard that he
                    died. His son, brother or heir started working
                    on the property.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If one started working on Netushim (abandoned)
               property, we remove it from him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Netushim property is when Shimon went overseas,
                    and we did not hear that he died. His son,
                    brother or heir started working on the
                    property.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Shimon ben Gamliel says, Netushim property is
               like property of a captive, but if one started
               working on Retushim (another kind of abandoned)
               property we remove it from him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The case of Retushim property is when we do not
                    know where Shimon went, and  his son, brother
                    or heir started working on the property.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Why is the former called Netushim, and the
               latter Retushim?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Netushim connotes against his will -
               'Tishmetenah u'Netashtah (you will refrain from
               working the land in Shemitah, and it will be
               abandoned)' - the King commanded so;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Retushim connotes willingly - 'Em Al Banim
                    Rutashah (they abandoned their wives and
                    children)'.
<br>

<p>

sjt:
</p><p>
<font><b>2) 'A PERSON PREFERS A KAV OF HIS OWN PRODUCE'</b></font><b>
<br>OPINIONS:</b> Rav Kahana teaches the principle that 'a person prefers a Kav of his own produce over nine Kavim of his friend's produce.' <b>RASHI</b> explains that the reason is that the person 'toiled for [his own produce]' and thus it is beloved to him.
</p><p>
Does Rashi mean that only fruits which a person toiled to produce (by plowing, sowing, irrigating, harvesting, etc.) are beloved to him, or does he mean that even fruits that a person did not personally toil to produce, but for which he paid money and worked hard to obtain, are also beloved to him?
</p><p>
(a) The <b>RASHASH</b> and others infer from Rashi's wording ('she'Amal Bahen') that only fruits which a person himself toiled to produce are especially beloved to him. (The Rashash concludes, however, that the logic for this is not clear and requires further elucidation.)
</p><p>
The <b>RAMBAN</b> also explains that a person prefers a Kav of his own produce over nine Kavim of someone else's produce because a person experiences great pleasure when he benefits from his own labor, as the verse states, 'When you eat the labor of your hands, you are fortunate and it is good for you' (Tehilim 128:2). (See also <b>MICHTAV ME'ELIYAHU</b>, beginning of volume 3, and <b>SICHOS MUSAR</b> (5731:19 and 5732:22) of <b>RAV CHAIM SHMUELEVITZ</b> zt'l, as cited by <b>YOSEF DA'AS</b> here.)
</p><p>
(b) The <b>RITVA</b> at first writes that it appears that only produce from a person's own field is especially beloved to him. He concludes, though, that 'perhaps even produce that did not grow in his own field is also beloved to him, because he toiled to obtain it and to purchase it.'
</p><p>
(c) The <b>MITZPEH EISAN</b>, like the Rashash, interprets Rashi to mean that only fruits which a person himself toiled to produce are especially beloved to him. However, unlike the Rashash, he does not infer this from the wording of Rashi here ('she'Amal Bahen'). Rather, he explains that Rashi follows the teaching of Rav Papa in the Gemara in Yevamos (63a). Rav Papa says that 'one should rather sow than buy,' meaning that it is better to sustain one's family with the produce that one grows himself rather than to buy food in the market, because a blessing rests on produce that a person himself cultivates. Rashi there explains that a blessing is found in items that are not bought and that are not consumed quickly. Accordingly, only produce which a person himself cultivates would be especially beloved to him, because of the blessing which rests upon it.
</p><p>
However, the Mitzpeh Eisan's explanation does not seem consistent with the words of Rashi here. Rashi emphasizes that one's own fruits are <i>beloved</i> to him because he <i>toiled</i> to produce them. According to the Gemara in Yevamos, one's own fruits are beloved to him not because he toiled for them, but because whatever he himself cultivates (rather than purchases) contains a blessing. Moreover, the Gemara there does not state that home-grown produce is preferable because it is beloved to a person. The Gemara considers it preferable because a blessing rests upon it. Thus, according to the Gemara there, a person's single Kav of produce would be worth more to him because of the blessing upon it, not because it is beloved to him. Indeed, the Gemara here discusses a case of fruits that are rotting, which indicates that the blessing did not come to fruition. Therefore, it seems that the owner's preference for his own fruits is not because of the blessing on them, but rather because of the effort he expended to produce them. (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE LAW OF THE OVERSEER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Regarding all of them, the one working the
          property is paid like a sharecropper.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> To which case does this refer?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It cannot refer to property of a captive. The worker
               can harvest and keep it, surely he is paid for
               improvements!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, it refers to Retushim property.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection:</font></b> It says that we remove it from him! (It is as
          if he worked it without permission. Surely he does not
          receive like a sharecropper)!!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, it refers to Netushim property.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> According to whom is he paid like a
          sharecropper?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim say that we remove it from him!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon says that it is like property of a
               captive!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Shimon means, in some ways it is like property
          of a captive, and in some ways, it is not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We do not remove it from him, It is like property of
               a captive;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It is unlike property of a captive, for there, he
               can harvest and keep it. Here, he is paid like a
               sharecropper.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between this and the
          following?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one spent money on his wife's Nichsei
               Melug, whether he spent a lot and consumed a little,
               or vice-versa, there is no compensation (when she
               gets it back after she is widowed or divorced).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Property of a captive resembles the following.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> If his wife was a minor, and he spent
               money on her property, he is like one who spends on
               a stranger's property. (If he consumed less than he
               spent, he is paid like a sharecropper.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Since he is unsure if he will keep the property
               (perhaps she will do Mi'un), Chachamim enacted (that
               he is paid like a sharecropper) so that he will work
               the property properly (and not try to reap a quick
               profit, causing a long term loss). Also regarding a
               captive, he is unsure whether the captive will
               return!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa said 'regarding all of them, the
          overseer is paid like a sharecropper.' What does this
          come to include?
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>APPOINTING RELATIVES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer:</font></b> It includes Rav Nachman's case.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Nachman citing Shmuel):</font></b> We appoint a relative
               over property of a captive; but not over property of
               someone who willingly went abroad.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Nachman himself):</font></b> One who flees is like a
               captive.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Why did he flee?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it was to avoid the head-tax, he willingly
                    left!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, he had killed someone, and feared
               that he would be killed.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If one was captured before harvesting his
          standing crop, grapes, dates or olives, Beis Din appoints
          an overseer to harvest them, then they appoint a relative
          over the property.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> They should appoint an overseer permanently!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> We do not appoint (strangers to be) overseers for
          adults. (We do so only for children. This is a Mitzvah
          for which people volunteer.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> We do not appoint a minor over property of a
          captive, nor a relative over property of a minor, nor a
          relative of a relative of a minor.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We do not appoint a minor over property of a
               captive, lest he cause a loss;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We do not appoint a relative of a relative of a
               minor, such as a maternal brother (of the minor's
               brother), nor a relative of the minor, lest they
               make a Chazakah and claim the land for themselves
               (since no one protests).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rava):</font></b> We learn from Rav Huna that one cannot make a
          Chazakah in property of minors, even if he remains on the
          land three years after the minor matures.
<br>
<br>

sjt:
<font><b>1) THE MECHANISM OF THE HEFKER OF SHEMITAH</b></font><b>
<br>OPINIONS:</b> The Gemara defines the word 'Netushim' (which is used by the Tosefta cited on 38b) as landowners who abandoned their land against their will. The word is derived from the verse, 'veha'Shevi'is Tishmetenah u'Netashtah' (Shemos 23:11), in which 'u'Netashtah' indicates that the fruit of one's land automatically becomes Hefker in the Shemitah year, regardless of whether the owner wants it to become Hefker.
</p><p>
The Mefarshim discuss exactly how the fruit of one's land becomes Hefker at the arrival of the Shemitah year.
</p><p>
(a) The <b>MAHARIT</b> (1:43, in the name of his father, the <b>MABIT</b>) proves from this Sugya and from other places that the fruits of one's field indeed become Hefker against his will. The <b>MINCHAS CHINUCH</b> (#84) writes that if the owner does not 'make' his fruit Hefker, it becomes Hefker anyway, and his refusal to let others into his field is more than a mere lack of fulfillment of the Mitzvas Aseh to make his field Hefker; it constitutes an act of Gezeilah from the public (since the fruits automatically become Hefker and the public has the right to take them).
</p><p>
(b) The <b>BEIS YOSEF</b> (cited by the Maharit 1:44), however, maintains that the fruit of the field does not become Hefker unless the owner makes it Hefker. Nevertheless, the Gemara here calls the fruit 'an appropriation of the King' ('Afka'asa d'Malka') because the Torah commands the owner to make it Hefker. (I. Alsheich)
</p><p>
<br><font size='+1' color='darkblue'><center><b>39b---------------------------------------- 39b</b></center></font>
</p><p>
<font><b>2) CONCERN FOR THE POSSIBILITY OF DEATH</b></font><b>
<br>QUESTION:</b> Rav Huna (39a) rules that Beis Din may not appoint a minor to manage the estate of a relative who has been taken captive (or has involuntarily abandoned his land in some other manner), because of the concern that the minor may not take proper care of the land. Rav Huna also rules that Beis Din may not appoint a relative to manage the estate of a minor, lest the relative claim that the estate fell to him, and not to the minor, as an inheritance (and the minor will not be able to make a counter-claim).
</p><p>
The Gemara demonstrates the application of these rules with an actual incident that occurred. An elderly woman had three daughters, one of whom had a son who was a minor. One daughter, the mother of the child, died. The elderly woman and one of her daughters were taken captive, leaving one daughter and one grandson. Abaye questioned what should be done with the land of the elderly woman and the daughter who were taken captive. Normally, it would be entrusted to the care of the remaining relatives. In this case, however, it could not be given to the child because of Rav Huna's ruling that Beis Din may not appoint a minor to manage the estate of a relative in captivity. On the other hand, the land could not be placed in the care of the remaining sister, because perhaps the elderly woman had died, leaving her land to her three daughters, and the child inherited his mother's portion of the land. In such a case, Rav Huna rules that Beis Din may not appoint a relative to manage the estate of a minor.
</p><p>
Why was Abaye concerned that the elderly woman may have died? The Gemara in Gitin (28a) teaches that the Rabanan are never concerned with the possibility that a person may have died, because there is always a Chazakah that a person is alive (that is, since he was alive until now, it is assumed that he is still alive until proof is brought that he died). This Chazakah applies even to an old person; the Mishnah in Gitin there teaches that if an elderly man sends a Shali'ach to give a Get to his wife, the Shali'ach may give the Get and need not be concerned that the man may have died. Why, then, is the Gemara here concerned that the elderly woman may have died?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> and <b>TOSFOS RABEINU PERETZ</b> answer that the elderly woman in this incident had already reached the age of 'Gevurah' (over the age of 80; see Moed Katan 28a, and Avos 5:27). The Gemara in Gitin says that there is no longer a Chazakah that a person is alive once that person has reached the age of Gevurah.
</p><p>
However, Tosfos and Tosfos Rabeinu Peretz question this answer based on Abaye's ruling in this incident. Abaye ruled that the remaining sister should receive half of her elderly mother's land (and the other half should be given to an Apotropos and not to the child), because if the elderly woman and her daughter had both died, then the remaining sister and the grandson would split the estate. Based on the Gemara in Gitin, however, the remaining sister should have received two thirds; she should have received the amount (one third) that she might have inherited from her mother if her mother died, and she should also be placed in charge of the portion of her sister in captivity, which is also one third of the land. Her sister certainly would be assumed to be alive, since she certainly did not reach the age of Gevurah yet. If the sister had reached the age of Gevurah, then the mother would have reached that age long before, and the Gemara in Gitin says that once a person has reached the age of Gevurah and has continued to live for a long time, Beis Din again disregards the possibility that the person may have died. Thus, if the sister reached the age of Gevurah and there is no Chazakah that she is still alive, there would be no reason to suspect that her mother died. It thus would be impossible to suspect that both the daughter and the mother had died.
</p><p>
Tosfos rejects his initial answer because of this problem. Tosfos Rabeinu Peretz, however, defends it (as does the <b>RITVA</b>) and argues that a person who has passed the age of Gevurah can be assumed to be alive only when that person has reached the age of 100. In this incident, it was possible that the elderly mother had reached the age of Gevurah but had not reached 100 (for example, she was 97), and her daughter had reached Gevurah as well (for example, she was 80). Therefore, it is logical that Abaye was concerned that they both may have died. (The <b>RAMBAN</b> in Gitin says about this answer that 'Lav Milsa Hi,' it is not a valid answer. Tosfos here does not give this answer presumably because he sees no reason to differentiate between one who has lived passed the age of Gevurah by just a few years, and one who has lived passed Gevurah for twenty years. See also <b>RASHI</b> in Gitin there who writes that 'one who is 81 or more, <i>until ninety</i>, is close to death,' implying that once a person has passed the age of ninety he is assumed to be alive and the Chachamim do not suspect that he has died. See also the <b>TOSFOS RID</b> there.)
</p><p>
(b) In another answer, <b>TOSFOS</b> explains that only with regard to giving a Get do the Chachamim apply the Chazakah that a person is still alive even to an old person. In the case of a Get, there is a concern that the woman will be left an Agunah, because no one will know whether or not her husband died, and the Chachamim therefore were lenient and allowed the woman to become divorced on the assumption that her husband is still alive at the time the Get is given. Similarly, a Kohen may eat Terumah or the meat of a Korban without concern that an immediate relative of his may have died (even though he would then be forbidden to eat Kodshim). In contrast, in the case of questionable ownership of land, the Chachamim are <i>stringent</i> with regard to determining the most appropriate and responsible course of action to take with the estate. In order to protect the interests of the heirs who are minors, the Chachamim <i>do</i> take into account the possibility that the captives may have died. This is why Abaye did not appoint the relative as manager over the estate that the minor might have inherited. (See <b>TERUMAS HA'DESHEN</b> (#349, 'Amnam Ki Daikinan') for further explanation of this answer of Tosfos.)
</p><p>
Tosfos gives an alternative reason for why, in this case, Abaye was stringent to take into consideration the possibility that a person may have died. Tosfos says that since the elderly woman and her daughter were <i>taken captive</i>, there was a strong reason to assume that they had died, since captors tend to afflict their captives and cause them to die.
</p><p>
(c) The <b>RAMBAN</b> in Gitin (as cited by the <b>RITVA</b> here), the <b>CHIDUSHEI HA'RAN</b> in Gitin, and <b>RABEINU KRESKAS</b> answer that when the property of a minor is being held by Beis Din, the members of Beis Din are obligated to do whatever necessary -- and to take into consideration any possibility -- in order to ensure that their decision is proper and just. Therefore, Beis Din must take into account the possibility that the captives may have died. In contrast, in the case in Gitin there is no need to take into account all of the possibilities, since that case does not involve a ruling of Beis Din, and the one giving the Get therefore may rely on the Chazakah that the person is still alive. The Ramban in Gitin explains further that in the case of the Gemara here, Beis Din has a clear course of action to take with regard to the land, even when taking into account the possibility that the captives may have died. In Gitin, however, if the Shali'ach were to be concerned that the man may have died, then he would have no appropriate course of action to take, and the woman would be left as an Agunah. (I. Alsheich)
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>INTIMIDATING LITIGANTS</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Ploni came from Bei Chuzai and said that he is the
               brother of Mari bar Isak, and asked to divide their
               father's inheritance. Mari denied knowing him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Chisda:</font></b> It is reasonable that Mari would not
               recognize his brother - 'they (Yosef's brothers) did
               not recognize him' because Yosef left them before he
               had a beard, and now he had a beard. Ploni must
               bring witnesses that he is a brother in order to
               share the inheritance.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Ploni:</font></b> I have witnesses, but they fear Mari, for he
               is intimidating!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Chisda (to Mari):</font></b> Go bring witnesses that he is
               not your brother.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Mari:</font></b> Is that the law?! Ha'Motzi mi'Chavero Alav
               ha'Re'ayah (the one who seeks to take money from
               another, he must bring proof)!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rav Chisda:</font></b> This is the law for bullies.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Mari:</font></b> If you are concerned that they fear me, even
               if witnesses testify for me, it will not help!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rav Chisda:</font></b> Witnesses would not transgress two
               matters due to fear.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> Witnesses testified that Ploni is his brother. Ploni
               asked for half the vineyards and orchards, which
               Mari had improved. Rav Chisda agreed, for a Mishnah
               says that if minors and adults inherited, and the
               adults improved the property, the minors share in
               the improvements.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Objection (Abaye):</font></b> There, the adults knew that they
               have minor brothers, and they improved the property
               knowing that this will be shared with the minors.
               Mari did not know that he had a brother. He improved
               for himself!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Bava Kama 112b (R. Yosi bar Chanina):</font></b> If the
               claimant is sick, or if the witnesses must leave
               town, and the defendant was summonsed and did not
               come, we accept witnesses in his absence.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> Rav Chisda told Mari to bring Ploni's
               witnesses.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Mari):</font></b> Even without a reason
                    why Mari would not recognize his brother, Ploni
                    must bring proof! Perhaps because Mari was a
                    bully and a swindler, he would not be believed
                    without a reason. This is why Rav Chisda forced
                    him to bring witnesses in the end. Do not say
                    that if so, anyone can take advantage of
                    bullies. There were Raglayim l'Davar (grounds
                    to believe) that Ploni's claim was true and
                    Mari was lying. It is not common that a
                    stranger claims 'you are my brother', and that
                    one does not know whether or not he has a
                    brother. The end of the Sugya (Abaye) proves
                    that Mari did not know that he had a brother.
                    If Mari could not find witnesses that Ploni is
                    not his brother, Ploni would get half the
                    property.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Edus 3:12):</font></b> If Beis Din knows that a
               defendant is intimidating and the claimant says that
               the witnesses will not testify because they fear
               him, Beis Din forces the defendant to bring the
               witnesses. In all such cases, this is how we deal
               with bullies.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (3:14):</font></b> Ploni brought a proof that he had
               witnesses, but they fear Mari. When he told the
               witnesses to testify, they said 'why should we make
               trouble for ourselves?! We will not testify
               anything. Therefore, Rav Chisda told Mari to bring
               those witnesses to testify that Ploni is not his
               brother, of that they do not know him. He told Mari
               that this is the law for bullies because there were
               Raglayim l'Davar that they feared to testify.
               Witnesses would not transgress two matters due to
               fear. I.e. they would withhold testimony, but they
               would not lie.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ritva (39b DH u'Farkinan):</font></b> Yisre'elim are not
                    suspected of false testimony! Rather, they
                    would not transgress two matters, i.e. to
                    withhold testimony, and later to say that they
                    do not know.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Tosfos (39b DH Zil):</font></b> Will we say that every rich
               bully must bring witnesses that one who claims from
               him is not his brother?! Here is different, for
               Ploni had witnesses who feared to testify.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Tosfos (Kesuvos 27b DH Omar):</font></b> The Ri says that Ploni
               brought witnesses, and they said 'we will not tell
               you anything about this testimony.' This is Raglayim
               l'Davar that Mari is a bully. If there are no
               Raglayim l'Davar, one is not believed to say that
               his opponent is a bully. If not, everyone will claim
               this and say 'my opponent must bring witnesses, and
               if he does not, he must pay.'
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 28:5):</font></b> If Beis Din knows that a
               defendant is a bully and the claimant says that the
               witnesses will not testify because they fear him
               (Rema - and there is a proof for his words), Beis
               Din forces the defendant to bring the witnesses. In
               all such cases, this is how we deal with bullies.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Im):</font></b> Tosfos and the Rosh say
                    that Rav Chisda told Mari to get Ploni's
                    witnesses to testify that Ploni is not his
                    brother, or that they do not know him. Rashi
                    and the Nimukei Yosef say that he required Mari
                    to bring Ploni's or other witnesses to testify
                    that Ploni is not his brother. I.e. it does not
                    suffice if they say that they do not know.
                    Perhaps this is even if there are no Raglayim
                    l'Davar. Do not say that if so, anyone can
                    swindle. Beis Din must know that the defendant
                    is established to be a bully. Perhaps the
                    Rambam holds like this. He requires that Beis
                    Din knows that the defendant is a bully, and
                    the claimant says that the witnesses fear him.
                    Do not say that if so, anyone can take
                    advantage of bullies. This is how we deal with
                    them until they repent and act like everyone
                    else! The Nimukei Yosef connotes that we force
                    the bully to bring proof only when there are
                    Raglayim l'Davar that he is lying, and even if
                    the witnesses do not say 'why should we make
                    trouble for ourselves?' However, if there are
                    no Raglayim l'Davar that he is lying, even if
                    the witnesses say 'why should we make trouble
                    for ourselves?', we do not obligate him to
                    bring witnesses. The Tur rules like Tosfos, for
                    the Rosh holds like Tosfos.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Lechem Mishneh (Hilchos Edus 3:12):</font></b> One need
                    not say that the Rambam holds like Rashi.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (29):</font></b> The Mechaber did not say 'there is a
                    proof for his words.' He holds like the Rambam,
                    that it suffices if Beis Din knows that he is a
                    bully.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Taz:</font></b> The Tur teaches that even he is
                    established to be a bully, the claimant must
                    bring a proof (that the witnesses fear him).
                    However, a proof that the witnesses fear him
                    suffices to establish him to be a bully.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Urim (22):</font></b> If he proves that the witnesses are
                    afraid to testify, this is reason to obligate
                    the defendant to bring a proof, even if he is
                    not a bully! The Rema requires a proof. He
                    should have mentioned that the Beis Din need
                    not know that he is a bully!
<br>             <b>  <b><font color='darkgreen'>vi. </font></b></b> Pischei Teshuvah (17, citing Tiferes l'Moshe):
                    The Tur connotes that he must be established to
                    be a bully, <i>and</i> the claimant must proves that
                    the witnesses fear him, but Tosfos holds that
                    it suffices if he is established. It seems that
                    when he is merely established, he just needs to
                    get the witnesses to say that they do not know.
                    If we know that the witnesses fear him, he must
                    bring a proof.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch ((15):</font></b> We do not accept testimony not
               in front of the litigant. If it was accepted, we do
               not judge according to it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Some disagree and say that if it was accepted,
               b'Di'eved it is Kosher. Therefore, if a litigant is
               a bully and witnesses fear to testify in front of
               him, we accept their testimony not in front of him,
               and judge according to it. However, if it is
               possible to force the bully (to bring proof) like we
               said in Sa'if 5, this is better.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Terumas ha'Deshen (175):</font></b> If witnesses fear a
                    litigant, they should write their testimony for
                    him. Ra'avan says that when there is Ones,
                    testimony in the litigant's absence is Kosher
                    l'Chatchilah. This includes when the litigant
                    would use his power to delay acceptance of the
                    testimony.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question:</font></b> Rav Chisda did not accept the
                    witnesses in Mari's absence! A bully is not
                    listed among cases in which we accept testimony
                    not in front of the litigant!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer (Terumas ha'Deshen 176):</font></b> The Gemara
                    connotes that Mari knew who the witnesses were.
                    They feared to testify even in his absence. If
                    not, surely Rav Chisda would have told them to
                    testify in Mari's absence, rather than annul
                    'ha'Motzi mi'Chavero Alav ha'Re'ayah.' The
                    Pesul of testimony not in front of the litigant
                    is lenient; we override it due to illnesss,
                    witnesses who need to leave, and for validation
                    of documents. Hefker Beis Din allows us to
                    force an intimidating defendant to bring a
                    proof or accept testimony in his absence. The
                    Gemara taught when letter of the law, we accept
                    testimony in the litigant's absence. The law
                    for a bully is a fine. Also, it does not always
                    apply, e.g. when witnesses fear to testify even
                    in his absence.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Darchei Moshe (9):</font></b> Rav Chisda did not accept
                    the witnesses in Mari's absence. Perhaps they
                    feared to testify in his absence.
                    Alternatively, it is better to force the bully
                    to bring a proof.
<br>

<p>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We are concerned only for relatives such as paternal
               uncles (who could claim that he inherited it), not
               maternal uncles.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Even paternal uncles are forbidden only for land,
               but not for houses (since the neighbors know that it
               belongs to the minor).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Even land is permitted if a document of division of
               the inheritance was written, for this has publicity.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> All these three points are wrong. We
               never make a relative an overseer on a minor's
               property.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	A case occurred in which Leah and one of her three
          daughters (Chanah) were captured. One of the remaining
          daughters died, leaving a child (Reuven).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Abaye):</font></b> We cannot appoint the remaining daughter (Dinah)
          over the property. Perhaps Leah died (and Reuven owns
          some of the property), and we do not appoint a relative
          over a minor's property!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We cannot appoint the child over the property.
               Perhaps Leah is alive, and we do not appoint a minor
               over a captive's property!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Therefore, Dinah oversees half the property, and we
               appoint a stranger to oversee half. (We are
               concerned lest Leah and Chanah both died. If we
               would know that Leah died and Chanah is alive, we
               could appoint Dinah over two thirds.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rava):</font></b> Once we must appoint a stranger to oversee half,
          we appoint him over all the property.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	Later, they heard that Leah died.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Abaye):</font></b> We give a third of the property to Dinah
          (surely, she inherits at least a third.) We give a third
          to Reuven. (If Chanah is alive, she owns the last third.
          If not, Dinah and the child split it.) Dinah oversees a
          sixth (half of the last third), and we appoint a stranger
          to oversee the other sixth.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rava):</font></b> Once we must appoint a stranger to oversee a
          sixth, we appoint him over both sixths.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>TESTIMONY AGAINST POWERFUL PEOPLE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Ploni came from Bei Chuzai and said that he is the
          brother of Mari bar Isak, and asked to divide the
          inheritance of their father. Mari denied knowing him.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rav Chisda:</font></b> It is reasonable that Mari would not
          recognize his brother - 'Hem Lo Hikiruhu (Yosef's
          brothers did not recognize him)' because Yosef left them
          before he had a beard, and now he had a beard;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Ploni must bring witnesses that he is a brother in
               order to share the inheritance.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Ploni:</font></b> I have witnesses, but they fear Mari, for he is
          powerful!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rav Chisda:</font></b> Mari must bring (those witnesses, or other)
          witnesses to testify that Ploni is not his brother.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Mari:</font></b> Is that the law?! The one who seeks to take money
          from another, he must bring proof!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rav Chisda:</font></b> This is the law for powerful people.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Mari:</font></b> If you are concerned that they fear me, even if
          witnesses testify for me, it will not help!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rav Chisda:</font></b> Witnesses would not transgress two matters
          due to fear. (They would withhold testimony, but they
          would not lie or deny what they know.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Witnesses testified that Ploni is his brother. Ploni
          asked for half the vineyards and orchards, even though
          Mari had improved them.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rav Chisda:</font></b> Ploni is correct:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven died, leaving minor and adult
               children, and the adults improved the property, the
               minors share in the improvements.
<br>

<p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DO WE COMPENSATE ONE WHO MADE IMPROVEMENTS?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Objection #1 (Abaye):</font></b> That is different! There, the
          adults knew that they have minor brothers, and they
          improved the property knowing that this will be shared
          with the minors;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Mari did not know that he had a brother. He improved
               for himself!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection #2 (R. Ami):</font></b> We learned a bigger Chidush than
          this. If a relative worked on land of a captive, when the
          captive returns, he gets the improved land. The relative
          is paid like a sharecropper. All the more so, Mari (who
          thought that it is his) gets this much!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> That is different, for Beis Din
          appoints relatives over land of captives. Mari did not
          consult with Beis Din;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Also, Ploni was a minor. We do not put a relative on
               the land of a minor! (Rif - this also answers
               Abaye's question.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Ami:</font></b> They did not tell me that Ploni was a minor!
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>STANDARD LOSS OF PEROS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven deposited Peros with Shimon, when he
          takes them back, he deducts the normal losses, as
          follows:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> For wheat or rice, nine half-Kavim per Kor (a Kor is 
               30 Sa'im, which is 180 Kavim);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> For barley or millet, nine Kavim per Kor;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> For spelt and flax seed, three Sa'im per Kor.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	The losses are according to the amount of Peros and the
          season.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Yochanan ben Nuri says, mice eat the same amount,
          regardless of how much there is! Rather, he deducts the
          amount specified for one Kor.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Yehudah says, if he deposited a large amount, he does
          not deduct anything, for the Peros expand (enough to
          compensate for the losses).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> The losses for rice are more than nine
          half-Kavim per Kor!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rabah bar bar Chanah):</font></b> The Mishnah discusses
          peeled rice.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> For spelt and flax seed - three Sa'im per Kor;
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> The Mishnah discusses flax seed in the
          stalk (but the seeds themselves would not decrease so
          much).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> For unpeeled rice he deducts three
          Sa'im per Kor.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The losses are according to the amount of
          Peros.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> He deducts these amounts for each Kor, for
          each year.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> R. Yochanan ben Nuri says...
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Beraisa - Chachamim):</font></b> Much of the Peros get lost and
          scattered.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> The Mishnah discusses when Shimon mixed
          Reuven's Peros with his own. If he left them by
          themselves, he gives them back to Reuven as they are.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> When he mixed it, he should return to Reuven
          the percentage that was his!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> Shimon has been taking from the mixture, and we
          do not know how much he took.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHEN WE DO NOT DEDUCT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Yehudah):</font></b> If he deposited a large amount...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is considered a large amount?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rabah bar bar Chanah):</font></b> It is 10 Korim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Beraisa supports this.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(A reciter of Beraisos):</font></b> The Mishnah discusses one who
          measured and returned to him from the granary. If he
          measured from the granary and returned from the house, he
          does not deduct, for the house measure is smaller.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (Rav Nachman):</font></b> Does the Mishnah discuss fools,
          who give a large measure and take back a small measure?!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Suggestion (Rav Nachman):</font></b> Perhaps your Beraisa means, the
          Mishnah is when he measured and returned to him at the
          time of the granary, but if he measured at the time of
          the granary (after the Peros dried in the sun) and
          returned in winter, he does not deduct, for the Peros 
          expand.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> If the Peros expand, a barrel that
          was full in summer should break in winter!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Indeed, that once happened.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Because the Peros are tightly packed, they do
          not expand.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>LOSSES DUE TO ABSORPTION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One deducts a sixth of the wine deposited;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yehudah says, he deducts a fifth.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	One deducts three Lugim of oil for every 100, one and a
          half for dregs, and one and a half for absorption (of the
          barrel).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the oil was clear, he does not deduct for dregs.
               If the barrels had held oil before, he does not
               deduct for absorption.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, even if one sells clear oil all
               year round, the buyer must accept one and a half
               Lugim of (pure) dregs per 100.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara):</font></b> Chachamim and R. Yehudah do not argue about
          wine. Each teaches the law for his place.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Explanation #1:</font></b> Where the barrels are smeared with
               wax, they absorb less, so he deducts a sixth. Where
               they are smeared with Zefes (pitch), they absorb
               more, so he deducts a fifth.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Explanation #2:</font></b> The clay from which the barrels are
               made affects the absorption. The clay in R.
               Yehudah's area absorbs more than that in Chachamim's
               area.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	In Rav Yehudah's area, there were 48 Kuz in a barrel; the
          price was six Zuz for a barrel. Rav Yehudah would sell
          six Kuz for a Zuz.
<br>
<br><font size='+1' color='darkblue'><center><b>40b---------------------------------------- 40b</b></center></font>
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He would get back the six Zuz he paid after selling
               36 Kuz of the barrel. Eight Kuz (a sixth) were
               absorbed in the barrel, his whole profit was four
               Kuz.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Shmuel taught, one (who sells life
               essentials) may not profit more than a sixth! (Rav
               Yehudah was entitled to take a bigger profit. Why
               didn't he?!)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> He would also keep the barrel itself and the
               dregs (he received 48 Kuz of clear wine and dregs
               for six Zuz).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> If so, he profited more than a sixth!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> He was entitled to more for his toil. Also,
               he needed to pay the merchant who sold his wine
               (some explain - the one who would open the barrel).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If the oil...(if the barrels had held oil
          before, he does not deduct for absorption).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Even old barrels absorb something!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1 (Rav Nachman):</font></b> The Mishnah discusses old
          barrels that were smeared. They do not absorb any more.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (Abaye):</font></b> Even barrels that were not smeared do
          not absorb any more once they are saturated.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>IMPURITIES IN OIL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Yehudah):</font></b> Even if one sells clear oil all
          year round, the buyer must accept one and a half Lugim of
          (pure) dregs.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Inference (Abaye):</font></b> R. Yehudah permits mixing dregs, and
          Chachamim forbid this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah obligates a buyer to accept dregs because
               a seller is allowed to mix them in.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> The buyer should be able to say 'if they were
          mixed in, I would have sold the oil with the dregs, but
          no one will buy pure dregs!' (The buyer must accept dregs
          even if he cannot mix them with the clear oil, e.g. he
          already sold or consumed the clear oil.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the buyer buys for his own
          consumption, he prefers clear oil.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Why can't the buyer say, since you did not mix
          in dregs, you waived your right. I will not accept pure
          dregs!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> This is like R. Yehudah holds elsewhere, that we
          do not say that a person pardons things (unless he
          explicitly says so);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one sold the yoke, he did not sell the
               oxen. If one sold the oxen, he did not sell the
               yoke;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, the money reveals what he sold. If
               he paid 200 (Zuz) for a yoke, surely this includes
               the oxen.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim say, the money is not a proof (he pardoned
               the extra money).
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Chachamim forbid mixing dregs because the buyer did not
          accept dregs.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (against Abaye - Rav Papa):</font></b> Just the contrary!
          Chachamim permit mixing. The buyer need not accept dregs,
          because the seller waived his right by not mixing them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah forbids mixing. The buyer accepts dregs
               because the seller was not allowed to mix them in
               (and he relies on selling the dregs to make a
               profit).
<br>
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A buyer and a depositor have the same law
          regarding Piktim (Rashi - refuse of the pits that floats
          on top; Aruch - cloudy oil above the dregs).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What is their law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> A depositor need not accept them, just
               like a buyer need not.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> The Shomer can say 'what should I do
               about them?!'
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, just like a depositor must accept them,
          also a buyer.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Version #1 - Question (Beraisa - R. Yehudah):</font></b> Cloudy oil
          is a loss to the seller, because the buyer accepts a Log
          and a half of dregs (Aruch - alone, without the cloudy
          oil; Rashi - therefore, the oil must be clear).
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	Version #2 (Tosfos) - Question (Beraisa - R. Yehudah):
          The seller bears the loss when he sells cloudy oil, since
          the buyer accepts only a Log and a half of dregs when he
          gets clear oil.(end of Version #2)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> If the buyer gave money in Tishrei (according to
          the low price of Tishrei, when most oil is cloudy) to
          receive oil in Nisan, he accepts Piktim; if he gives
          money in Nisan for oil in Nisan (when oil is clear and
          expensive), he does not accept Piktim.
<br><b>
<br></b><b><b><font color='blue'>6) </font></b><font color='blue'>ONE WHO MOVED THE DEPOSIT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven deposited a barrel with Shimon, and
          Reuven did not designate where it should be kept, and
          Shimon moved it and it broke:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it broke while he was holding it, if he picked it
               for his needs, he is liable. If he picked it up for
               its needs, he is exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it broke after he put it down, whether he picked
               it up for his needs or for its needs, he is exempt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven designated where it should be kept, whether it
          broke while he was holding it or after he put it down, if
          he picked it up for his needs, he is liable. If it was
          for its needs, he is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Who is the Tana of the (first part of the)
          Mishnah (if it broke after he put it down, he is always
          exempt)?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> It is R. Yishmael, who does not obligate telling
          the owner that his property was returned.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yishmael):</font></b> If one stole a lamb from a
               flock or a coin from a wallet, he returns it to
               where he stole it from;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Akiva says, he must inform the owner.
<br>

sjt:
<font><b>1) DEDUCTING A STANDARD AMOUNT FROM DEPOSITED FRUIT</b></font><b>
<br>QUESTION:</b> The Mishnah states that when a Shomer returns fruit that was deposited with him, he deducts the amount that that type of fruit normally diminishes within the amount of time that it was in his possession. The Gemara explains that this applies only when the Shomer put the fruit together with his own fruit, and thus it is not possible to determine exactly how much the deposited fruit diminished. Since the total amount of fruit (the Mafkid's and the Shomer's) has diminished, it is assumed that each person's fruit diminished equally.
</p><p>
Why does the principle of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' not apply to this case? Since the Shomer is presently in possession of all of the fruit (he is 'Muchzak'), the Shomer should be able to claim that his fruit did not diminish at all, and that all of the decrease occurred in the fruit of the Mafkid. Since there is no clear proof otherwise, the Shomer should be able to deduct the entire decrease (and not just half) from what he returns to the Mafkid.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>S'MA</b> (CM 292:10) writes that, indeed, if the Mafkid gives his object to a Shomer and insists that he must receive in return only his own object, the Shomer may claim that the Mafkid's object may have been the one that diminished or was lost. For example, when a person entrusts his animals, such as his goats, to a Shomer, he certainly wants to receive the same animals back. If the Mafkid gives a goat or goats to the Shomer, and the Shomer places them (or they accidentally become placed) among his own goats and it is no longer evident which ones belong to the Mafkid, and then one of the goats becomes lost, the Shomer may claim that the Mafkid's goat was lost, based on the principle of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah.'
</p><p>
In contrast, when a person deposits fruit with a Shomer, he does not care whose fruit he receives in return. In such a case, the Shomer is not considered 'Muchzak,' and 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' does not apply. From the moment at which the fruit is deposited with the Shomer and mixed with his own fruit, there are no longer two distinct groups of fruit. The fruit of the Mafkid and the fruit of the Shomer are considered a single group and thus the decrease occurs to the entire group.
</p><p>
(b) The <b>SHA'AREI YOSHER</b> (3:24, DH v'Hineh) questions the explanation of the S'ma and offers a different explanation. He says that since the Mafkid does not mind that his fruit is mixed with the Shomer's fruit, and it is considered as though the Shomer mixed the two groups of fruit with the Mafkid's consent, the act of putting the fruit together is considered an act of a Kinyan of partnership, as the act of mixing fruit together is an act of a Kinyan of partnership (Shulchan Aruch CM 176). Hence, the Shomer and the Mafkid have become joint owners in all of the fruit, and any decrease in the fruit must be distributed equally.
</p><p>
Based on this, the Sha'arei Yosher suggests that if the Shomer mixed the fruit together against the will of the Mafkid (or by accident), they do <i>not</i> become joint owners of all the fruit, and the Shomer indeed may claim that it was the Mafkid's fruit which suffered the entire decrease, based on 'ha'Motzi me'Chaveiro Alav ha'Re'ayah.' (I. Alsheich)
</p><p>


<font><b>2) A SHOMER WHO LETS FRUIT DIMINISH BEYOND ITS NORMAL RATE</b></font><b>
<br>QUESTION:</b> The Mishnah states that when a Shomer returns fruit that was deposited with him, he deducts the amount that that type of fruit normally diminishes within the amount of time that it was in his possession. The Gemara explains that this applies only when the Shomer put the fruit together with his own fruit, and thus it is not possible to determine exactly how much the deposited fruit diminished. If the Shomer designated a specific place for the Mafkid's fruit, then he returns the fruit in whatever state it is in. This implies that even if the fruit has diminished <i>more</i> than the normal amount, the Shomer still returns it in that state. (The <b>RITVA</b> writes that in such a situation the Shomer must make a Shevu'ah that he was not negligent in protecting the fruit. The <b>TALMID HA'RASHBA</b> adds that he also must make a Shevu'ah that he did not use the fruit for his own personal use.)
</p><p>
Why may the Shomer return the fruit to the Mafkid in its diminished state? Raban Shimon ben Gamliel rules (38a) that when a Shomer sees that the fruit that was entrusted to him is diminishing, he must sell it in the presence of Beis Din in order to prevent the owner from suffering a greater loss. Even the Tana Kama there, who maintains that the Shomer may not sell the fruit, agrees that the Shomer must sell it when the fruit has diminished beyond the normal amount. Accordingly, since the Shomer is obligated to sell the fruit when he sees that it is diminishing more than it normally should diminish, if he does not do so it should be considered negligence and he should be required to compensate the owner for his loss! (See <b>MAGEN AVRAHAM</b> CM 443:5.) Why, then, does the Gemara say that he may return the fruit to the owner in its present state?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MA'AYANEI HA'CHOCHMAH</b> answers that since fruit rarely diminishes more than its normal amount, the Shomer is not responsible to presume that the fruit has diminished so much.
</p><p>
(b) The <b>NEFESH CHAYAH</b> answers that in the case of the Gemara in which the Shomer 'designated for him [the Mafkid] a corner [in which to place his fruit],' the Shomer expressly stated that he did not accept any liability for the fruit, but merely gave permission to the Mafkid to place the fruit in his domain. The Nefesh Chayah cites proof for this from the Gemara in Pesachim (6a) which states that when a Nochri brings Chametz into the property of a Jew during Pesach and the Jew 'designates for him a room,' the Jew is not obligated to get rid of that Chametz because he has not accepted liability for the Nochri's possessions (as Rashi there explains), but has merely given the Nochri permission to place his items in his domain.
</p><p>
(According to this answer, the Shomer technically is not a Shomer at all, since he did not accept upon himself the obligations of a Shomer. This, however, is not consistent with the Rishonim mentioned above who require that the Shomer make a Shevu'as ha'Shomrim when he returns the fruit that has diminished.) (I. Alsheich)
</p><p>
<br><font size='+1' color='darkblue'><center><b>40b---------------------------------------- 40b</b></center></font>
</p><p>
<font><b>3) OLD BARRELS THAT NO LONGER ABSORB</b></font><b>
<br>QUESTION:</b> The Mishnah (40a) states that old wine barrels do not absorb wine, and therefore a Shomer who placed wine in old barrels may not deduct any wine from the amount that was deposited with him. In the Gemara, Rav Nachman explains that the Mishnah refers to old barrels lined with pitch. Abaye says that even old barrels that are not lined with pitch do not absorb wine, because once they have absorbed their fill they no longer absorb any more wine.
</p><p>
The Acharonim question this Gemara from the well-known principle in the laws of Isur v'Heter that when a prohibited food item is cooked in a pot, the pot absorbs the item and it, too, becomes prohibited to be used. With regard to that principle, no distinction is made between an old pot and a new pot. According to Abaye, an old pot should no longer be able to absorb additional food and thus it should <i>not</i> become prohibited! (<b>TAZ</b> YD 93:2, <b>KEREISI U'PLEISI</b> there, and others)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TAZ</b> (also cited by the Pnei Yehoshua here) answers that the Gemara here is correct that an old pot does not absorb additional material, yet it is also true that an old pot becomes prohibited when a prohibited item is cooked in it. He explains that the act of cooking causes the pot to <i>expel</i> some of the material its walls have absorbed, and this creates room to <i>absorb</i> the prohibited material. That is why the pot becomes prohibited.
</p><p>
The same occurs when wine is stored in an old barrel. When wine is soaked for a long period of time, this causes the barrel to expel some of the wine that it has absorbed already, thus making room to absorb new wine. The total amount of wine in the barrel, though, remains the same. That is why the Shomer may not deduct any wine when he returns it to the owner.
</p><p>
(The <b>IMREI MAHARSHACH</b> points out that according to this answer, if the barrels had previously been used to hold water, then now the barrels would have expelled water and absorbed wine. He answers that people are not normally particular about this, since the presence of such a small amount of water in the wine is immaterial.)
</p><p>
(b) The <b>KEREISI U'PLEISI</b> and <b>CHAVOS YA'IR</b> (#104) answer that it is true that an old pot or barrel does not absorb any liquid or food material. However, it does absorb <i>taste</i> ('Ta'am'). A pot in which a prohibited food was cooked absorbs the <i>taste</i> of that food and becomes prohibited. 'Taste' is absorbed by a pot even if the pot has already absorbed its capacity of liquid or food material.
</p><p>
(The <b>CHAVOS YA'IR</b> adds that the concept of the Gemara here, that once a barrel has absorbed its capacity it no longer absorbs more, applies only to earthenware vessels. Wooden vessels, in contrast, always absorb more. This is the subject of discussion among the Acharonim.) (I. Alsheich)
</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SHLICHUS YAD DOES NOT REQUIRE CHISARON</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 40b (Mishnah):</font></b> If one deposited a barrel with Shimon
               and designated where it should be kept, and Shimon
               picked it up for his needs, he is liable if it broke
               while he was holding it, but not if it broke after
               he put it down.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the owner designated where to keep it, whether it
               broke while Shimon was holding it or after he put it
               down, he is liable.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Beraisa - R. Yishmael):</font></b> If one stole a lamb from a
               flock or a coin from a wallet, he returns it to
               where he stole it from;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Akiva says, he must inform the owner.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> The Reisha of our Mishnah always exempts after he
               put it down. It is R. Yishmael, who allows returning
               theft without telling the owner, and all the more
               so, if he designated a place, for then he returned
               it to its place!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> The Seifa is like R. Akiva, who obligates
               telling the owner! All the more so, if he did not
               designate a place, he must inform him, for then we
               cannot say that he returned it to its place!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #1:</font></b> R. Yochanan said the Mishnah is not like
               one Tana.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #2 (Rav Sheshes):</font></b> Shimon moved it (to use it
               like a ladder) in order to bring chicks (from a high
               nest. The entire Mishnah is R. Yishmael. In the
               Seifa, he did not put it down in the designated
               place.)
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> Rav Sheshes holds that Sho'el she'Lo mi'Da'as (one
               who borrows without permission) is considered a
               thief. R. Yochanan did not answer this way, for 'put
               it down' connotes in its place.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> 41b (Rava):</font></b> There was no need to mention Shlichus
               Yad regarding a Shomer Sachar or a Shomer Chinam. A
               borrower, who uses it with the owner's permission,
               is liable for Ones. All the more so, a Shomer Chinam
               or Shomer Sachar, who uses it without permission, is
               liable for Ones! It was written superfluously to
               teach that Shlichus Yad does not require Chisaron.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 43b (R. Yochanan):</font></b> The Halachah follows R. Akiva
               always.
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> 'Always' includes even if he returned it to its
               place, and it broke later, i.e. the Halachah is
               unlike R. Yishmael, who does not require telling the
               owner.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> Presumably, the Halachah follows R. Yochanan,
               who establishes the Seifa like R. Akiva. We rule
               like R. Akiva against his colleague R. Yishmael.
               According to Rav Sheshes, the Stam Mishnah is like
               R. Yishmael, so the Halachah follows him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (3:19):</font></b> The Rif rules like R. Yochanan.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rif and Rosh (3:20):</font></b> We rule like R. Akiva against
               his colleague R. Yishmael. The Halachah is that
               Shlichus Yad does not require Chisaron, for Rava
               says so, and he is Basra.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh:</font></b> Once he picked up the deposit to be Shole'ach
               Yad and cause a loss, it is in his Reshus to be
               liable for Ones.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 3:11):</font></b> If one intended to
               be Shole'ach Yad in a deposit, he is not liable
               until he did so. Once he was Shole'ach Yad he is
               liable, even though there he did not diminish it at
               all, rather, he took it from one place to another in
               his Reshus in order to be Shole'ach Yad. Shlichus
               Yad does not require Chisaron.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 292:1):</font></b> A Shomer may not be
               Shole'ach Yad in a deposit. If he was, even if he
               did not intend to steal it, just to use it, it is in
               his Reshus and he is liable for Ones, even though he
               did not use it yet. Shlichus Yad does not require
               Chisaron. Rather, if he lifted it for a use that
               causes a loss, he is liable as if he caused a loss.
               If he lifted it for a use that causes no loss, he is
               not liable until he uses it. He is not liable for
               Shlichus Yad, for he is not Shole'ach Yad since he
               does not diminish it. Rather, he borrows without
               permission, which is like a thief.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (3):</font></b> One who borrows with Da'as of the
                    owner is liable from when he takes it from the
                    owner's Reshus. Tosfos explains that since he
                    intends to use it, it is as if he already used
                    it. Here, it was deposited with him not for
                    usage, so it is in the owner's Reshus until he
                    uses it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ketzos ha'Choshen (66:44):</font></b> The Rashba (952)
                    holds that the oath that one was not Shole'ach
                    Yad applies to documents. What is the reason?
                    In any case he is exempt, for documents cannot
                    be stolen! Perhaps Shlichus Yad is more
                    stringent, because he was a Shomer.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If he returned it to the place from where he
               took it, he resumes his law of a Shomer, since he
               was a mere borrower.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (6):</font></b> If Reuven deposited a barrel
               with Shimon, whether or not Reuven designated where
               it should be kept, and Shimon moved it for his own
               use and it broke, he is liable, whether it broke
               before or after he returned it to its place. If he
               picked it up for its needs, he is exempt, whether it
               broke while he was holding it or after he placed it
               elsewhere.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (11 and Drishah 10):</font></b> The Gemara derived
                    that he is liable for <i>moving</i> it, even if he
                    did not take it from its place.mid'Oraisa. This
                    is why the Rambam and Shulchan Aruch said
                    'move', and not 'Sholach Yad.' Even though the
                    Tur said 'Sholach Yad', he agrees that he is
                    liable even if he did not intend to cause a
                    loss. If not, he should have distinguished! It
                    seems that he wrote this because the owner was
                    particular not to use it for this, like the
                    Nimukei Yosef said. If the owner were not
                    particular, the Shomer would be exempt after
                    returning it. However, if so, the Tur should
                    have explained this. Rather, the Tur was
                    imprecise. The Rif and Rosh brought Rav
                    Sheshes, even though they rule like R.
                    Yochanan, for Rav Sheshes' law is true (one is
                    liable even without intent to cause a loss). R.
                    Yochanan disagreed only because the Mishnah
                    connotes that he returned it to its place. Ir
                    Shushan says that one is liable only if he
                    intended to cause a loss. This is wrong.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (15):</font></b> Semag, Hagahos Ashri (1:10) and
                    Hagahos Maimoniyos (Hilchos Geneivah 4:2) rule
                    like R. Yishmael. Rashi (41a DH Ha Shaklinhu)
                    says that we established the Mishnah like R.
                    Yishmael.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> If he moved it for the need of its place he is
               liable for negligence and exempt for Ones. If the
               Ones was due to the change of place, if the owner
               designated a place, he is liable even after he
               returned it to its place. If the owner did not
               designate a place, he is exempt after he put it
               down.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (16):</font></b> He is exempt for Ones, for Shlichus
                    Yad and even Sho'el she'Lo mi'Da'as is only
                    when he intended to use the deposit itself.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bach (10 DH v'Im):</font></b> The Mishnah said 'if he
                    picked it up for its needs, he is exempt.' It
                    did not say 'if he picked it up <i>not</i> for <i>his</i>
                    needs, he is exempt. This teaches that if he
                    picked it up because he needed its place, he
                    has some liability, i.e. for what results from
                    his negligence (of moving it).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Taz:</font></b> If a place was designated and the Ones was
                    due to the place, the beginning was negligence
                    and the end was Ones. If no place was
                    designated, there was no negligence.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> R. Akiva Eiger:</font></b> If he moved it for the need of
                    its place, he is not Shole'ach Yad because he
                    did not intend to use the deposit itself, but
                    it is negligence.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> SMA (13):</font></b> If the owner designated a place, even
                    if the Shomer put it in a place more secure
                    from thieves and it was stolen, he is liable,
                    for we can say that had he not moved it, the
                    thieves would not have found it  If no place
                    was designated whenever he puts it is its
                    place.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Rebuttal (Nesivos ha'Mishpat Bi'urim 7):</font></b> Even
                    giving to another Shomer is not negligence, all
                    the more so putting it in a better place! If
                    the new place is more prone to a certain
                    damage, e.g. burning, he is liable for any Ones
                    that can be attributed to the new place. Even
                    though a Shomer Chinam is not liable if it was
                    burned, since a place was designated, it is as
                    if the owner stipulated that it be in a place
                    safe from burning.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>THE DIFFERENCE BETWEEN SHELICHUS YAD AND SHO'EL SHE'LO MI'DA'AS </b></b>(</font><font color='blue'>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHO AUTHORED OUR MISHNAH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> If it is R. Yishmael, why does it say that he
          did not designate a place? The same applies even if he
          designated (he need not inform him)!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah teaches a bigger Chidush. He need not
          inform him, not only if he designated a place, for then
          he returned it to its place, but even if he did not
          designate a place.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Seifa):</font></b> If Reuven designated where it should be
          kept, whether it broke while he was holding it or after
          he put it down, if he picked it up to use it, he is
          liable. If it was for its sake, he is exempt.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like R. Akiva, who obligates telling the
               owner!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> If it is R. Akiva, why does it say that he
               designated a place? The same applies to even if he
               did not (he must inform him)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The Mishnah teaches a bigger Chidush. He
               must inform him, not only if he did not designate a
               place, for then it is not returned to its place, but
               even if he designated a place.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Is the Reisha like R. Yishmael and the Seifa
          like R. Akiva?!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Yes!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> If someone can explain this Mishnah
               like one Tana, I will carry his clothes to the
               bathhouse!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (R. Yakov bar Aba):</font></b> The case is, Shimon picked
          it up to steal it. (Answers 2-4 will be explained later.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #3 (R. Noson bar Aba):</font></b> The case is, Shimon picked
          it up to be Shole'ach Yad (to take some for himself).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What do R. Yakov and R. Noson argue about?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> They argue about whether Shlichus Yad
               requires Chisaron (it applies only if the deposit
               was diminished).
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yakov holds that Shlichus Yad requires
                    Chisaron, therefore, he established the Mishnah
                    to be when he intended to steal it;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Noson says that Shlichus Yad does not
                    require Chisaron, so he establishes the Mishnah
                    to be when he was Shole'ach Yad.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection (Rav Sheshes):</font></b> The Mishnah does not say that he
          took it (which would connote, for himself), rather he
          moved it!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #4 (Rav Sheshes):</font></b> The case is, Shimon moved it (to
          use it in place of  a ladder) in order to bring chicks
          (from a high nest);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Sheshes says that one who borrows without
               permission is considered a Gazlan (robber).
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	R. Yakov, R. Noson and Rav Sheshes all say that the
          entire Mishnah is R. Yishmael. In the Seifa, he did not
          put it down in the designated place.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan did not answer this way, for 'put it
               down' connotes in its place.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DOES SHLICHUS YAD REQUIRE CHISARON?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav or Levi):</font></b> Shlichus Yad requires Chisaron;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(The other of Rav and Levi):</font></b> It does not require
          Chisaron.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	The following shows that Rav says that it does not
          require Chisaron.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If a shepherd was grazing his flock, and
               left it and went to the city, and a wolf or lion
               killed some of the flock, he is exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he had left his staff or bag on the killed
               animal, he is liable.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Even if that is considered Shlichus Yad,
               when he took back his staff or bag, he returned the
               animal! (We assume that the Stam Beraisa is like R.
               Yishmael, the Tana of our Stam Mishnah.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rav):</font></b> The case is, the animal was killed
               when the staff or bag was still on it.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Even if it was still on it, he never did
               Meshichah (taking to one's premises, so Shlichus Yad
               does not apply)!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (Rav):</font></b> Hikishah (he hit it) with his staff
               and it ran in front of him (a form of Meshichah).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Conclusion:</font></b> There was no Chisaron! This shows that
               Rav says that Shlichus Yad does not require
               Chisaron.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> Rav said that Hichchishah (he weakened it)
          with his staff. This is Shlichus Yad only because there
          is Chisaron!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Support:</font></b> He mentioned hitting it with a staff to show 
          that it was a harsh blow.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Conclusion:</font></b> Levi holds that Shlichus Yad does not require
          Chisaron.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is Levi's reason?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1 (R. Yochanan citing R. Yosi ben Nehurai):</font></b> The
          Shlichus Yad written regarding a Shomer Sachar is unlike
          that written regarding a Shomer Chinam.
<br>
<br>

sjt:
<font><b>1) 'I SHALL CARRY HIS CLOTHING AFTER HIM TO THE BATHHOUSE!'</b></font><b>
<br>QUESTION:</b> The Gemara concludes that the first part of the Mishnah (40b) expresses the view of Rebbi Yishmael, and the second part of the Mishnah expresses the view of Rebbi Akiva who argues with Rebbi Yishmael. The Gemara quotes Rebbi Yochanan who said, 'Whoever can explain to me the Mishnah concerning the 'barrel' in accordance with one Tana -- I shall carry his clothing after him to the bathhouse!' Rebbi Yochanan meant that if someone could explain the Mishnah in accordance with a single Tana, that person would be considered greater than he, and Rebbi Yochanan would personally serve him as a student serves his teacher (<b>TORAS CHAIM</b>).
</p><p>
Is there any reason why Rebbi Yochanan referred specifically to a bathhouse? If his intention was that he would serve the person as a student serves his teacher, then any form of service would suffice. Why did he specify that he would carry the person's clothes to the bathhouse?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TORAS CHAIM</b> cites the Gemara in Pesachim (51a) which teaches that a student may not enter a bathhouse with his teacher, out of deference. However, the Gemara there says that if the student serves the teacher in the bathhouse in some capacity, then he is permitted to enter with his teacher. For this reason, Rebbi Yochanan emphasized service in a bathhouse when he said that he would serve the person whom he would consider his teacher.
</p><p>
(b) The <b>MAHARATZ CHAYOS</b> cites the Gemara in Kidushin (22b) which teaches that one of the forms of Kinyan with which a person acquires an Eved is when the Eved brings the person's clothes to the bathhouse for him. That act of service constitutes a normal labor of an Eved, and thus the person is Koneh that Eved through a Kinyan Chazakah. The Gemara in Kesuvos (96a) rules that a student is required to perform for his teacher any service which an Eved is required to perform for his master. For this reason, Rebbi Yochanan said that he would carry the person's clothes to the bathhouse; Rebbi Yochanan was emphasizing that he would do a service which a student is obligated to do for his teacher.
</p><p>
(c) The <b>BE'ER SHEVA</b> (Teshuvos #11) asks why Rebbi Yochanan is the only Amora who uses this exclamation, in a number of places in the Gemara, while no other Amora ever says such a thing.
</p><p>
He cites the Gemara in Kesuvos (96a) which says that a student is required to perform for his teacher any service which an Eved is required to perform for his master, 'except for removal of a shoe in a place where they do not recognize him, lest they say that he is actually an Eved.' The Gemara adds that this limitation does not apply when the student has Tefilin upon his head. When he is wearing Tefilin, it is evident to all that he is not an Eved, and he may perform any service for his teacher even in a place where he is not known.
</p><p>
It is clear that when a student is not wearing Tefilin and is in a place where he is not known, he may not do <i>any</i> of the labors that an Eved must do for his master (and not just the removal of a shoe), such as carrying his clothes for him to the bathhouse. Rebbi Yochanan's physical health prevented him from wearing Tefilin upon his head at all times, and he therefore would not have been required to perform such a service for his teacher. Rebbi Yochanan wanted to emphasize that he would not only act with respect towards a person who would explain the Mishnah to him, but he would even do something which a student is <i>not</i> required to do for his teacher in a place where he is not recognized. Moreover, he would serve the person in a way which everyone could see (carrying his clothes to the bathhouse), even though he would not be wearing Tefilin and people would think that Rebbi Yochanan was an Eved! (The <b>MA'AYAN HA'CHOCHMAH</b> questions this approach, however, and argues that it would have been <i>prohibited</i> for Rebbi Yochanan to do something that would cause others to think that he was an Eved.) (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>THE DIFFERENCE BETWEEN SHLICHUS YAD AND SHO'EL SHE'LO MI'DA'AS</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 40b (Mishnah):</font></b> If one deposited a barrel with Shimon
               and designated where it should be kept, and Shimon
               picked it up for his needs, he is liable if it broke
               while he was holding it, but not if it broke after
               he put it down.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the owner designated where to keep it, whether it
               broke while Shimon was holding it or after he put it
               down, he is liable.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Beraisa - R. Yishmael):</font></b> If one stole a lamb from a
               flock or a coin from a wallet, he returns it to
               where he stole it from;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Akiva says, he must inform the owner.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> The Reisha of our Mishnah always exempts after he
               put it down. It is R. Yishmael, who allows returning
               theft without telling the owner, and all the more
               so, if he designated a place, for then he returned
               it to its place!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> The Seifa is like R. Akiva, who obligates
               telling the owner! All the more so, if he did not
               designate a place, he must inform him, for then we
               cannot say that he returned it to its place!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #1:</font></b> R. Yochanan said the Mishnah is not like
               one Tana.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #2 (R. Yakov bar Aba):</font></b> The case is, Shimon
               picked it up to steal it. (In Answers 2,3 and 4, the
               entire Mishnah is R. Yishmael. In the Seifa, he did
               not put it down in the designated place.)
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #3 (R. Noson bar Aba):</font></b> The case is, Shimon
               picked it up to be Shole'ach Yad (to take some for
               himself).
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yakov and R. Noson argue about whether
                    Shlichus Yad requires Chisaron (it applies only
                    if the deposit was diminished).
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Objection (and Answer #4 - Rav Sheshes):</font></b> The Mishnah
               does not say that he took it (for himself), rather 
               he moved it! Rather, Shimon moved it (to use it like
               a ladder) in order to bring chicks (from a high
               nest).
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> Rav Sheshes holds that Sho'el she'Lo mi'Da'as (one
               who borrows without permission) is considered a
               thief. R. Yochanan did not answer this way, for 'put
               it down' connotes in its place.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Beraisa):</font></b> If a shepherd abandoned the flock, and a
               wolf killed some of the flock, he is exempt. If he
               had left his staff on the killed animal, he is
               liable.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question:</font></b> Even if the animal was killed when the
               staff was still on it (so he did not return it after
               being Shole'ach Yad), he never did Meshichah (taking
               to one's premises. If, so Shlichus Yad does not
               apply!)
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer (Rav):</font></b> Hikishah (he hit it) with his staff
               and it ran in front of him. (This is Meshichah).
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Inference:</font></b> Rav holds that Shlichus Yad does not
               require Chisaron.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> Rejection:</font></b> Rav said that Hichchishah (he weakened
               it) with his staff. This is Shlichus Yad only
               because there is Chisaron!
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> Support:</font></b> He hit it <i>with a staff</i> connotes that it
               was a harsh blow.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (3:20):</font></b> Shlichus Yad does not require
               Chisaron, for Rava says so, and he is Basra.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> Once he picked up the deposit to be Shole'ach
               Yad and cause a loss, it is in his Reshus to be
               liable for Ones.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 3:11):</font></b> If one intended to
               be Shole'ach Yad in a deposit, he is not liable
               until he did so. Once he was Shole'ach Yad he is
               liable, even though he did not diminish it at all,
               rather, he took it from one place to another in his
               Reshus in order to be Shole'ach Yad.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rashi (41a DH v'Ha):</font></b> What was the proof that Rav
               holds that Shlichus Yad does not require Chisaron?
               Perhaps he is a Sho'el she'Lo mi'Da'as! Sho'el
               she'Lo mi'Da'as does not apply to animals, for they
               normally weaken.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Maharam):</font></b> This is no reason to be
                    more lenient according to the opinion that
                    Shlichus Yad requires Chisaron!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer #1 (Ba'al ha'Ma'or):</font></b> Indeed, we derived
                    that Rav holds that Sho'el she'Lo mi'Da'as is a
                    thief even without Chisaron, and likewise
                    Shlichus Yad does not require Chisaron.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (and Answer #2 - Milchamos Hash-m):</font></b> We
                    cannot learn from one to another. Even the
                    opinion that Shlichus Yad requires Chisaron
                    agrees that Sho'el she'Lo mi'Da'as does not
                    require Chisaron. (Shlichus Yad is more
                    stringent, for it obligates even after he
                    returned it.) Rather, Sho'el she'Lo mi'Da'as is
                    only if he intended to remove it from the
                    owner's Reshus. Shlichus Yad is even without
                    such intent.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Defense (Gra CM 292:2):</font></b> It is difficult to say
                    that it depends on intent to remove it from the
                    owner's Reshus. Rather, a Shole'ach Yad is
                    surely Sho'el she'Lo mi'Da'as. For a deposit,
                    this is Shlichus Yad. R. Yakov holds that
                    Shlichus Yad requires Chisaron, and all the
                    more so Sho'el she'Lo mi'Da'as does. R. Noson
                    holds that Shlichus Yad does not require
                    Chisaron, but Sho'el she'Lo mi'Da'as does. Rav
                    Sheshes holds that Sho'el she'Lo mi'Da'as does
                    not require Chisaron if he does not intend to
                    cause Chisaron, and all the more so Shole'ach
                    Yad, who intended to cause Chisaron, applies
                    even without Chisaron.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Nimukei Yosef (23a DH Masnisin (2)):</font></b> A Shomer
                    becomes liable in three ways. (1) He lifted it
                    with intent to steal it, or (2) even to cause a
                    loss and take a little. This is Shlichus Yad,
                    even if it broke before he took. (3) If he
                    lifted it with intent to use it, he is a thief
                    even before he used it. This is called Sho'el
                    she'Lo mi'Da'as. Normally, a borrower is liable
                    because he gets all the benefit. Here, the
                    owner benefits, for he wanted it to be in the
                    Shomer's house! We hold like R. Akiva, that
                    once he used it in a way that the owner objects
                    to, he ceases to be a Shomer, and the owner has
                    no benefit.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 292:1):</font></b> If a Shomer lifted the
               deposit for a use that causes no loss, he is not
               liable until he uses it. He is not liable for
               Shlichus Yad, since he does not diminish it. Rather,
               he is a Sho'el she'Lo mi'Da'as, which is like a
               thief.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (2):</font></b> This entire Sa'if is from the Tur. We
                    do not find that Rashi, Tosfos or any Poskim
                    hold that Shlichus Yad applies without intent
                    to take (and cause a loss). The opinion that
                    Shlichus Yad does not require Chisaron requires
                    that he intended to cause a loss. The Ra'avad
                    holds that Shlichus Yad is only if he intended
                    to take the entire deposit. Rashi asked how we
                    learned about Shlichus Yad from the shepherd.
                    Perhaps he is a Sho'el she'Lo mi'Da'as! The Tur
                    answered that a borrower is only after he used
                    it; Shlichus Yad applies to animals even before
                    using them. We must say like Rashi, that if the
                    labor will cause a loss, he is Shole'ach Yad,
                    and if it will not cause a loss, he is a
                    borrower. Both of these are even before using
                    it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shitah Mekubetzes (41a DH Tirgema, citing the
                    Ritva):</font></b> Any person can be a thief or Sho'el
                    she'Lo mi'Da'as, but Shlichus Yad applies only
                    to a Shomer. All of these are only after
                    Meshichah. Without Meshichah, it is in the
                    owner's Reshus. If one took with intent to
                    steal part or whole or cause a loss and not
                    pay, he is liable for Ones even before causing
                    a loss. A Shole'ach Yad intends to cause a loss
                    and pay for it. If something is normally
                    rented, a Sho'el she'Lo mi'Da'as intends to pay
                    the rental, but the owner could lose from his
                    usage. If no loss can occur, no one would
                    consider Sho'el she'Lo mi'Da'as to be a thief.
                    This is like Rashi, the Ramban, Tosfos and the
                    Rashba, unlike the Ba'al ha'Ma'or.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Ketzos ha'Choshen (2):</font></b> According to this, if
                    the owner left it in front of David and David
                    did not accept Shemirah, he cannot become
                    Shole'ach Yad. If he intends to pay, he is
                    exempt for Ones. The Rambam and Shulchan Aruch
                    (Sa'if 2) obligate swearing that he was not
                    Shole'ach Yad. This refers to what applies even
                    not to a Shomer (theft and Sho'el she'Lo
                    mi'Da'as). The Chidush that one is liable
                    through a Shali'ach applies only to true
                    Shlichus Yad of a Shomer.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gilyon Maharsha (359:2 DH Afilu):</font></b> Even though
                    one may not steal with intent to pay, the
                    Shitah holds that he is not liable for Ones
                    like a thief. The Rashba holds that a Shomer
                    who gave to a Shomer is a thief, even though he
                    intends to return it. It seems that the Rambam
                    agrees. It seems that Tosfos (36a DH Ein)
                    exempts from Ones (according to the Halachah)
                    one who gave to a Cheresh, lunatic or minor.
                    This is like the Shitah. Tosfos (30a DH
                    l'Tzorcho) holds that one is not a thief if the
                    item cannot be harmed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If he returned it to the place from where he
               took it, he resumes his law of a Shomer, since he
               was a mere borrower.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (6):</font></b> If one deposited a barrel with
               Shimon, whether or not he designated a place for it,
               and Shimon moved it for his own use and it broke, he
               is liable, whether it broke before or after he
               returned it to its place.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> If he moved it for the need of its place he is
               liable for negligence and exempt for Ones. If the
               Ones was due to the change of place, he is liable
               before putting it down. If the owner designated a
               place, he is liable even after he put it down.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (16):</font></b> He is exempt for Ones, for Shlichus
                    Yad and even Sho'el she'Lo mi'Da'as is only
                    when he intended to use the deposit itself.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>SHLICHUS YAD DOES NOT REQUIRE CHISARON </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(R. Yochanan himself):</font></b> It is not different.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yosi says, there was no need to mention Shlichus
               Yad regarding a Shomer Sachar. We may learn from a
               Kal va'Chomer from a Shomer Chinam!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  A Shomer Chinam is exempt for theft or loss,
                    but if he was Shole'ach Yad, he is liable. A
                    Shomer Sachar is liable for theft or loss. All
                    the more so, he is liable if he was Shole'ach
                    Yad!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> It was written superfluously to teach that
                    Shlichus Yad does not require Chisaron.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yochanan says, it is not different, like R.
               Elazar, who says 'they are the same.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What does that mean?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> We cannot learn from the Kal va'Chomer,
               because there is a stringency of a Shomer Chinam. He
               pays Kefel if he claims that it was stolen (and
               really, he stole it himself);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Therefore, the Torah needed to write both. Each
                    teaches only about itself.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> R. Yosi learns from the Kal va'Chomer. He holds that
               paying principal (i.e. a Shomer Sachar who claims
               that it was stolen) without an option to swear (and
               be exempt) is more stringent than (a Shomer Chinam,
               who can exempt himself through) an oath that might
               lead to Kefel.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> There was no need to mention
          unauthorized usage regarding a Shomer Sachar nor
          regarding a Shomer Chinam. We can learn from a borrower.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A borrower uses it with the owner's permission, yet
               he is liable for Ones. All the more so, a Shomer
               Chinam or Shomer Sachar, who uses it without
               permission, is liable for Ones!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It was written superfluously (regarding one of these
               two Shomrim) to teach that Shlichus Yad does not
               require Chisaron.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> It was written regarding the other, lest we apply
               the principal of Dayo;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  One might have thought that just like a
                    borrower is exempt if the lender was working
                    for him, Shlichus Yad is no more stringent. The
                    extra verse teaches that this is not so (it is
                    liable even then).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> One opinion holds that Shlichus Yad requires
          Chisaron. What does he learn from these two verses?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> One teaches that we do not say Dayo (like above).
          The other teaches like the following.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'V'Nikrav Ba'al ha'Bayis (the Shomer
               Chinam will come close)' - to swear.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps he comes for judgment, but not
               to swear!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> The Torah writes Shlichus Yad regarding a
               Shomer Chinam and regarding a Shomer Sachar. Just
               like the latter Parshah (a Shomer Sachar) discusses
               an oath, also the former (he pays Kefel only if he
               swore that it was stolen).
<br>

<p>

sjt:
</p><p>
<font><b>2) THE MENTION OF 'SHELICHUS YAD' IN THE VERSES OF 'SHOMRIM'</b></font><b>
<br>QUESTION:</b> The Gemara explains why it was necessary for the Torah to include a reference to 'Shelichus Yad' both in the verse that discusses Shomer Chinam and in the verse that discusses Shomer Sachar. The Gemara quotes one opinion which maintains that the second mention of 'Shelichus Yad' teaches that a Shomer is Chayav for 'Shelichus Yad' (and attains the status of a Ganav) even if his usage of the object does not decrease its value. The Gemara concludes that according to the other opinion (that a Shomer is Chayav only when the object's value decreases), the Torah mentions 'Shelichus Yad' in the second verse for the following reason. The verse (Shemos 22:7) says that the Shomer Chinam 'shall be brought to the judges,' but it does not specify for what purpose. One might have thought that the verse means only that he must be brought to Beis Din to be judged, but he is not obligated to swear. The fact that the Torah mentions 'Shelichus Yad' here, in the verse of a Shomer Chinam, and later, in the verse of a Shomer Sachar, teaches that just as a Shomer Sachar must make a Shevu'ah, a Shomer Chinam also must make a Shevu'ah. <b>RASHI</b> (DH Af Kan l'Shevu'ah, and in Bava Kama 63b, DH O Eino Ela l'Din) writes that this verse teaches that a Shomer Chinam becomes obligated to pay Kefel only when he swears falsely that the object was stolen, but if he merely claims that it was stolen (without a Shevu'ah) then he does not pay Kefel. Rashi adds that the verse also teaches that a Shevu'ah exempts a Shomer Chinam from paying for an object that was stolen or lost.
</p><p>
Rashi implies that the Gemara initially assumes that a Shomer Chinam cannot exempt himself from payment if he merely claims that the object was stolen. Rather, if he claims that the object was stolen, he must pay the Keren (principal). If he must pay the principal in such a case, how does the Gemara understand the law that a Shomer who is 'To'en Ta'anas Ganav' (makes a false claim that the object was stolen) must pay <i>Kefel</i>? If a Shomer always pays the Keren when he claims the object was stolen, there is never a case in which the Shomer is found to have made that claim falsely with a Shevu'ah. The Gemara in Bava Kama (63b), however, says that everyone agrees that a Shomer who makes a false claim of Geneivah must pay Kefel. According to the Gemara's initial assumption, how can there ever be such a case? (<b>MAHARSHA</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARSHAL</b> and <b>MAHARAM</b> in Bava Kama (63b) write that Rashi's intention is not that the Gemara thought the Shomer would pay Keren immediately when he claims that the object was stolen. Rather, Rashi means that a Shomer Chinam who makes a 'Ta'anas Ganav' would be exempt from paying altogether, and if witnesses come later and testify that the Shomer himself stole the object, he then must pay Kefel, <i>even without a Shevu'ah</i>. They infer this from the words of Rashi here (DH Atah Omer), 'from the time that he claims in Beis Din that it was stolen, <i>even though he does not make a Shevu'ah</i> he must pay Kefel if witnesses come.' Hence, the Havah Amina was only that a Shomer Chinam who was 'To'en Ta'anas Ganav' would have to pay Kefel later even if he did not make a Shevu'ah; the Havah Amina was not that he would pay the Keren at the moment that he claims the object was stolen.
</p><p>
(b) The <b>MAHARSHA</b> (Bava Kama 63b) does not accept this answer (see Insights to Bava Kama 63:3). He asserts that it is not possible to suggest that a Shomer Chinam would be Chayav to pay Kefel if he did not make a Shevu'ah. If he would have been obligated to pay Kefel in such a case, then it would have been unnecessary for the Torah to teach that a Ganav (who does not make a Shevu'ah) is Chayav to pay Kefel, for it could have learned that Halachah through a Kal va'Chomer from a Shomer who is 'To'en Ta'anas Ganav.' It must be that a Shomer is Chayav to pay Kefel only when he is 'To'en Ta'anas Ganav' with a Shevu'ah, and therefore the Torah must teach that a Ganav pays Kefel even without a Shevu'ah.
</p><p>
The Maharsha gives a different answer to explain the words of Rashi. He writes that the Havah Amina indeed was that the Shomer Chinam pays the Keren immediately, and, nevertheless, if it is discovered later that he was the thief, he must pay Kefel because of the Gezeiras ha'Kasuv. According to this Havah Amina, the Torah must teach the Chiyuv of Kefel in the case of a Ganav because that case itself is the Chiyuv of Kefel of the Shomer who is 'To'en Ta'anas Ganav,' for he pays the Kefel later when he is found to be a Ganav.
</p><p>
(How do the Maharshal and Maharam answer the question of the Maharsha -- why, according to the Havah Amina, does the Torah need to teach that a Ganav has a Chiyuv of Kefel, when that law can be derived through a Kal va'Chomer from a Shomer who is 'To'en Ta'anas Ganav'? The Maharam in Bava Kama cites the <b>TOSFOS YESHANIM</b> who gives several answers. One answer is that according to the Havah Amina, the Chiyuv of Kefel of a Ganav indeed could have been derived from the law of a Shomer, but 'Milsa d'Asi b'Kal va'Chomer, Tarach v'Chasav Lah Kra.') (I. Alsheich)
</p><p>



</p><p>


lvr: 42
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE BEST WAY TO GUARD MONEY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven deposited coins with Shimon, he is
          liable if they were lost through one of the following
          ways: Shimon wrapped them and cast them on his back (and
          carried them), or gave them to his small children
          (minors) to guard, or he locked in front of them
          improperly;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is because this is not the way people guard.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he guarded normally, he is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> The other cases we understand, but why
          is he liable for wrapping them and casting them on his
          back? What else should he have done?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> 'V'Tzarta ha'Kesef b'Yadecha' - even if
          the money is wrapped, it should be in your hand.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Yitzchak):</font></b> A person's money should always be in his
          hand - 'v'Tzarta ha'Kesef b'Yadecha'.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(R. Yitzchak):</font></b> One should invest a third of his money in
          land, a third in merchandise, and leave a third in coins.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(R. Yitzchak):</font></b> Blessing only comes on something hidden
          from view - 'ha'Berachah ba'Asamecha' (an expression of
          Samuy, hidden).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Tana d'Vei R. Yishmael):</font></b> Blessing only comes on
          something that cannot be seen - 'ba'Asamecha' (in your
          storehouse, which is hidden).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> When one who goes to measure his grain, first
          he should ask Hash-m to send a Berachah on it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> While measuring, he blesses Hash-m to thank Him;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he requests after measuring. this is a vain
               prayer, for Berachah does not take effect on
               anything weighed, measured or counted, only on
               something that is not seen.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> The only proper guarding of coins is in the
          ground.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rava):</font></b> Shmuel admits that if Levi receives a deposit of
          coins just before Shabbos, he is not obligated to bury it
          then;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he does not bury it immediately after Shabbos,
               this is negligence, and he is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the depositor is a Chacham, Levi need not bury
               them immediately. Perhaps the Chacham needs money
               for the needs of Havdalah;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Nowadays, thieves use rods to feel for where (there
               is a hollow under the ground suggesting that) coins
               may be buried there, so money should be concealed in
               the roof rafters;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Nowadays, thieves break roofs, so money should be
               concealed between layers of a wall.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rava):</font></b> Shmuel admits that money may be hidden in a wall.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Nowadays, thieves feel for hollows in the wall, so
               coins should be buried in the Tefach closest to the
               ground or the ceiling.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Rav Acha brei d'Rav Yosef - Mishnah):</font></b> If the
          ceiling caved in and buried Chametz, it is considered
          Mevu'ar (eradicated);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon ben Gamliel says, if a dog cannot uncover
               it, it is Mevu'ar.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> A dog can dig up three Tefachim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Summation of question:</font></b> Are three Tefachim needed to
               guard money?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> Three Tefachim are needed for a dog,
          that is how far it can smell;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> To guard money, it suffices that it is hidden. Three
               Tefachim are not needed.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> How much is needed?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer (Rafram of Sichra):</font></b> One Tefach is needed.
<br> <b>    <b><font color='darkgreen'>(q)</font></b></b>  	A case occurred in which Reuven deposited coins with
          Shimon, who put them in a shack of willow branches. They
          were stolen.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> This is guarded from thieves, but it is
          negligence regarding a fire (had a fire erupted, they
          would have perished);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1:</font></b> When the beginning was negligence and
               the end was Ones, he is liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2:</font></b> When the beginning was negligence and
               the end was Ones, he is exempt.
<br> <b>    <b><font color='darkgreen'>(s)</font></b></b>  	The Halachah is, he is liable.
<br> <b>    <b><font color='darkgreen'>(t)</font></b></b>  	A case occurred in which Reuven deposited coins with
          Shimon; when he claimed them, Shimon forgot where he put
          them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rava:</font></b> This is negligence. Shimon must pay.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>LOSS DUE TO LACK OF KNOWLEDGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	A case occurred in which Reuven deposited coins with
          Shimon, who gave them to his mother to guard. She put
          them in a chest, and they were stolen.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> We cannot make Shimon pay. One who deposits
          expects that the Shomer will entrust the deposit with
          (adult) members of the Shomer's family.
<br>
<br>

sjt:
<font><b>1) PROPER PROTECTION OF MONEY</b></font><b>
<br>OPINIONS:</b> Shmuel rules that the only proper way to protect money is by burying it in the ground. Is this indeed what a Shomer is required to do in order to properly guard money entrusted to him?
</p><p>
(a) Most Rishonim (see <b>RAMBAN</b>, <b>RASHBA</b>, <b>NIMUKEI YOSEF</b>) maintain that the proper way to protect money depends on the particular time and the place. Shmuel refers only to those eras and places where thieves were very common. In modern times, it suffices to lock money in a secure place, just as a person normally handles his own money.
</p><p>
The Rishonim cite proof to this from the Yerushalmi which states that if a Shomer puts the money in a place which is well protected and where a person would normally put his own money, he is exempt if anything happens to the money. However, the <b>RASH</b> of <b>VIDASH</b> (cited by the Shitah Mekubetzes) -- although he agrees with the logic of this view -- refutes the proof from the Yerushalmi; he argues that the Yerushalmi may be referring to objects other than money. <b>RABEINU YEHONASAN</b> also suggests for the same reason that the Yerushalmi may not be a proof. Rabeinu Yehonasan adds that, logically, if the Shomer himself does not bury his own money in order to protect it, then when the owner of the money entrusts his money to the Shomer, it can be assumed that he does so with the knowledge that the Shomer will not bury it, and it is as if he expressly stipulates that the Shomer does not need to bury it.
</p><p>
(b) The <b>TALMID HA'RASHBA</b> maintains that Shmuel's ruling applies in <i>all</i> places and at <i>all</i> times, and the only proper way to protect money is burial. The <b>BEIS YOSEF</b> (CM 291) writes the same thing in order to explain the view of the <b>RAMBAM</b> who does not differentiate between different times and places.
</p><p>
This also seems to be the view of the <b>HAGAHOS ASHIRI</b> in the name of the <b><b><b>OR</b></b> ZARU'A</b>. He adds that even if the Shomer places his own money into a secure chest for protection, he does not have the right to do that with the money of others, but rather he must bury it in the ground, and if he does not bury it he is Chayav if anything happens to it.
</p><p>

<b>HALACHAH: RAV MOSHE FEINSTEIN</b> zt'l in <b>IGROS MOSHE</b> (CM 2:53) writes that in our times, in countries that have banks where money can be deposited and withdrawn with no expense or bother, and where there is no risk of capital loss, a Shomer who is entrusted with money is obligated to put the money in a bank. That is the most ideal form of Shemirah, and it is even better than burial in the ground. (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN MAY A SHOMER GIVE TO A SHOMER?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 36a (Rav):</font></b> If Reuven was guarding a deposit, and he
               gave it to another Shomer, Reuven is exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> He is liable.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Abaye):</font></b> Rav exempts because he gives it to one with
               intellect. R. Yochanan obligates because the owner
               does not want his object in others' hands.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'>(Rav Chisda):</font></b> Rav did not say his law explicitly.
               Rather, it was inferred from an episode in which
               gardeners used to deposit their hoes with Leah. One
               day, they left them with Reuven (one of the
               gardeners). He heard a wedding, and left them with
               her. They were stolen. Rav exempted Reuven.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The one who heard this ruling inferred that Rav
                    (normally) exempts a Shomer who gave to another
                    Shomer is exempt. This is wrong! Rather,
                    because they always deposited with her, they
                    showed that they consent for her to guard them.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 36b (Rava):</font></b> The Halachah is, a Shomer who gave to a
               Shomer is liable, for the owner can say that he
               trusts the oath of the first Shomer, but not of the
               second.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 42a (Mishnah):</font></b> If Reuven deposited coins with
               Shimon, and Shimon gave them to his small children
               (minors) to guard (and they were lost), he is
               liable, for this is not the way people guard.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'>(Rava):</font></b> One who deposits expects that the Shomer will
               entrust the deposit with (adult) members of the
               Shomer's family.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (Bava Metzia 3:23):</font></b> Rava taught that a
               depositor expects the Shomer to entrust the deposit
               with members of the Shomer's family.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> If people of the Shomer's family were
               negligent, the Shomer is liable. If the Shomer would
               be exempt, his wife and children would consume the
               deposit, for also they are exempt (they have no
               money to pay)!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> If it is known that the Shomer
                    does not guard things himself, rather, he gives
                    them to others, it is as if the owner himself
                    deposited with the one that the Shomer normally
                    gives it to. The first Shomer is totally
                    exempt, even if the latter Shomer was
                    negligent.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (6):</font></b> If the owner normally deposits this with
               the second Shomer, the first Shomer is exempt. The
               owner cannot say that he does not trust him.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Nizkei Mamon 4:11):</font></b> If a Shomer gave
               to a Shomer, the first Shomer is liable for damage.
               The owner says 'why did you give it to another, and
               not guard it yourself?! Pay me, and go to Din with
               the second Shomer. I trust your oath, but not the
               second Shomer's oath.' Therefore, if the owner
               always deposited with the second Shomer, the first
               is exempt. He tells the owner 'what you deposited
               with me, you deposited with him Emesh (last night).'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos She'elah 4:8):</font></b> If a Shomer gave the
               deposit to his minor children, he is liable, unless
               the second Shomer proves that he was not negligent.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Mordechai (271):</font></b> If the owner normally deposited
               different things with Levi, he can say 'I did not
               want <i>this</i> in his hands', like Abaye. Rav Chisda
               taught that even R. Yochanan <i>according to Rava</i>
               would exempt in the case of the gardeners, but Abaye
               holds that R. Yochanan would obligate.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Mordechai (272):</font></b> If Shimon returned Reuven's deposit
               to Reuven's wife, and she has Da'as and Reuven lets
               her buy and sell, Shimon swears and he is exempt.
               Surely Rava exempts, for Reuven trusts her with
               everything. Even Abaye exempts, like the case of the
               gardeners. Also, one who deposits expects the Shomer
               to entrust it with members of the Shomer's family;
               this is similar.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Maharik (77):</font></b> The gardeners used to deposit
                    their hoes with Leah. Rav Chisda concluded
                    'since they used to deposit with her', without
                    mentioning the hoes, for he holds like Rava,
                    therefore, a Shomer would be exempt even for a
                    different deposit. Rav Ashi (who arranged the
                    Gemara) put Rav Chisda after Abaye's teaching
                    to teach that Abaye agrees that we cannot infer
                    Rav's opinion from here (since they used to
                    deposit the same item). Since Reuven lets his
                    wife buy and sell, it is as if he normally
                    deposits everything with her.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 291:26):</font></b> If a Shomer gave to a
               Shomer, the first Shomer is liable. The owner can
               say 'I trust your oath, but not the oath of the
               second Shomer.' Therefore, if the owner always
               deposits this with the second Shomer, the first
               Shomer is exempt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (42):</font></b> The same applies if it is known
                    that the first Shomer does not guard things
                    himself, rather, he gives them to others.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (46):</font></b> 'Always' means that he deposits with
                    him most of the time. The Tur gives this
                    exemption in Siman 305 regarding a Shomer
                    Sachar, and does not say 'always'. All the more
                    so, a Shomer Chinam is exempt even if the owner
                    did not always use the second Shomer!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH v'Yesh):</font></b> The Rambam connotes
                    that he is exempt only if the owner used to
                    deposit this item with the second Shomer. This
                    is unreasonable. If he trusts him with money,
                    it does not matter which property! It seems
                    that the Rambam just cited Gemara. However,
                    this is difficult, for he said twice that he
                    used to deposit this same item! Perhaps he
                    teaches that we exempt only for a deposit no
                    bigger than he normally deposited. This
                    requires investigation.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Beis Yosef (DH v'Heicha):</font></b> If Yosef used to
                    deposit with Levi, and David gave Yosef's
                    deposit to Levi and Levi was negligent and
                    cannot pay, this is like one who gave to his
                    wife to watch, and she cannot pay (Sefer
                    ha'Terumos 3:3). The Tur discussed this in
                    Siman 72 (David is liable).
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Beis Yosef (DH Kosvu Talmidei, citing Talmidei
                    ha'Rashba):</font></b> The Ramban and Rashba say that if a
                    Shomer Sachar gave to his wife or children or
                    one with whom the owner used to deposit, and
                    the second Shomer swore that he was not
                    negligent and it was stolen or lost, the first
                    Shomer is liable. Even though we are unsure,
                    the second Shomer is exempt, and the first
                    Shomer cannot say 'perhaps it was Ones.' He
                    must clarify it. If the second Shomer does not
                    want to swear or went away, the first Shomer
                    must pay. Rabbeinu exempts even if the owner
                    says that he knows that it was stolen, for the
                    first Shomer says that perhaps it was Ones.
                    This is like one who claims Vadai, and the
                    other is unsure whether he owes to him.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Shach (44):</font></b> Rabbeinu's opinion is difficult.
                    Even when a Shomer Chinam gave to a Shomer
                    Sachar and the latter wants to swear, the owner
                    can refuse to trust his oath, and the first
                    must pay. All the more so the first must pay
                    when the second does not swear! Perhaps
                    Rabbeinu explains that this is when we do not
                    know where the deposit is, but if we know that
                    it is not in the second Shomer's house, he is
                    believed. This is not primary. The Terumas
                    ha'Deshen obligates a Shomer even if we are
                    unsure if was lost through negligence or Ones,
                    for he must swear clearly. He cannot say 'I do
                    not know.' The Nimukei Yosef in the name of the
                    Ro'oh exempts, but the Rema brings only the
                    Rosh and Tur, who disagree. I say that even if
                    the owner is unsure (and also the Shomer), he
                    is liable. This is unlike one who does not know
                    if Ploni owes him (and also Ploni is unsure).
                    The Nimukei Yosef exempts, like one who does
                    not know whether or not he borrowed. Tosfos
                    equates him to one who does not know whether or
                    not he returned.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Ketzos ha'Choshen (12):</font></b> Hagahos Ashri says that
                    if the Shomer gave it to one whom the owner
                    normally deposits it with, even if the latter
                    says that it was lost through negligence, the
                    first Shomer is exempt. He can say 'you trusted
                    him; I did not.' This implies that if we knew
                    that he was negligent, the first Shomer would
                    be liable, like the Rosh.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Note:</font></b> Our text of Hagahos Ashri totally exempts
                    the first Shomer.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema (72:30):</font></b> If Shimon lent to Reuven and took a
               security, and he gave the security to Levi, and it
               was lost due to Levi's negligence, and Levi cannot
               pay, Shimon is liable. Reuven's claim is against
               him, even if he normally deposits with Levi.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (96):</font></b> Even though we say that a depositor
                    expects the Shomer (David) to entrust the
                    deposit with (adult) members of David's family,
                    if his wife or child was negligent, David is
                    liable, for he received the deposit. The Rambam
                    holds that the wife or child is liable, but not
                    David. He agrees that when David gave it to a
                    stranger (Levi), David is liable, even if the
                    owner normally deposits with Levi. This is
                    negligence.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 134):</font></b> The opposite is more
                    reasonable! Even R. Tam and the Rosh (who
                    obligate one for his family's negligence) agree
                    here. The Yam Shel Shlomo (Bava Kama 1:32) says
                    that if the owner took Levi to Din and could
                    not collect, David is exempt. One is liable for
                    his family's negligence, lest one give the
                    deposit to his household and they will consume
                    it. This is not necessarily true; the Mordechai
                    (Bava Metzia 281) holds that R. Tam obligates
                    also here. Sefer ha'Terumos and the Tur agree.
                    In any case, surely the Rambam and Shulchan
                    Aruch exempt also here. The Beis Yosef, Darchei
                    Moshe, Bach, Mordechai and Agudah say so.
                    Perhaps there is a printing mistake in the <b>SMA</b>,
                    and instead of 'Mechaber' it should say 'Rema'.
                    Even so, I disagree. In Siman 291 the Rema
                    brought two opinions. Here he relies on what he
                    wrote there.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>A SHOMER WHO GAVE TO A SHOMER </b></b>(</font><font color='blue'>


lvr: 42
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We cannot make his mother pay. She was not told that
               it was another's money, so she did not know that she
               should bury it!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Shimon is negligent for not telling her
               it is another's money.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> All the more so, if she thinks it is her
               son's she will guard it well!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Conclusion:</font></b> Shimon swears that he gave them to his
               mother, she swears that they were stolen from the
               chest, and they are exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	An overseer of orphans bought an ox for them. He gave it
          to a cattle herder (Levi). It did not have (Rashi - gums
          or) teeth. It could not eat, so it died.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rami bar Chama):</font></b> We cannot obligate the overseer. He
          gave it to Levi!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We cannot obligate Levi. He put it with the other
               cattle and put food in front of it. He did not know
               it was not eating!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Levi was being paid by the orphans. He
               should have checked!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Indeed, if the orphans stood to lose money,
               Levi would be liable;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The case is, the orphans found the seller and
                    recovered their money from him.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> If so, who was claiming to be paid?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> The seller is upset that they did not tell
               him (immediately that it has no teeth, and they want
               to return it).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> It was his animal. He knew it was a
               mistaken sale!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, the seller buys and sells
               animals. He did not know that it had no teeth.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Conclusion:</font></b> The seller swears that he did not know
               that it had no teeth, and the herdsman pays (the
               seller) for the meat at a discount (two thirds of
               the full price, and returns the skin. Rashi - this
               is a compromise. Tosfos - this is what it was worth,
               for the seller would have had to slaughter it
               immediately. It would not have lived until the
               market day to get the full price.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Reuven deposited hops with Shimon. Shimon told his
          servant (Levi) 'take from here (Shimon's hops) and put in
          my beer.' Levi took Reuven's.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Amram):</font></b> We cannot obligate Shimon. He told Levi to
          take from Shimon's own hops!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We cannot obligate Levi. Shimon did not say not to
               take from the other pile!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> If Levi delayed long enough so that Shimon
               could tell that he went to take Reuven's, this shows
               that Shimon consented!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, he did not delay so long.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> What was the loss? Shimon's hops were not
               taken, he will give them to Reuven!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #1 (Rav Sama brei d'Rava):</font></b> The case is, the
               beer soured.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2 (Rav Ashi):</font></b> The hops had thorns mixed in,
               so he did not want them in his beer,
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The Halachah is, Shimon must pay Reuven the
                    amount that his beer increased in value.
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sjt:
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<font><b>2) THE TOOTHLESS OX</b></font><b>
<br>QUESTION:</b> The Gemara relates an incident in which an Apotropos, who was appointed to manage the property of orphans, purchased an ox for the orphans and deposited it with a shepherd to watch. Shortly afterwards, the ox died of starvation, since it had no teeth and was unable to eat. Rami bar Chama asked how the judges should rule in such a case. They could not obligate the Apotropos to compensate the orphans, for he could claim that he did nothing wrong -- he gave the animal to the shepherd to watch and it was the shepherd's responsibility to make sure that the ox was eating.
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How can the Apotropos exempt himself with the claim that he gave the ox to the shepherd to watch? He nevertheless acted negligently when he bought the ox without looking into its mouth to make sure that it had teeth! (Rishonim)
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<b>ANSWERS:</b>
<br>(a) The <b>RAMBAN</b> answers that when the Apotropos bought the ox he did not act negligently, because it was not apparent that the ox could not eat. Only afterwards (when the ox died) did it become apparent that the ox could not eat.
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(b) The Ramban answers further that perhaps the ability to discern whether an animal can eat is a matter that requires expertise, and most people are not veterinary experts. Therefore, there was no negligence on the part of the Apotropos, since it was not possible for him to know at the time of the purchase that the animal could not eat.
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(c) The Ramban cites others who answer that the Apotropos was not responsible to check that the animal had teeth, since it is very uncommon for an animal to have no teeth (it is a 'Milsa d'Lo Shechicha'). His failure to check for teeth, therefore, was not negligence. The shepherd, however, should have noticed that the animal was not eating.
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The <b>RASHBA</b> adds that this is why the Apotropos' claim must include mention that he gave the animal to the shepherd. He must claim that he relied on the shepherd to check that the animal had teeth. (I. Alsheich)
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