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BAVA METZIA 41

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BAVA METZIA 41 (5 Cheshvan) - Dedicated l'Iluy Nishmas Reb Naftali ben Reb Menachem Mendel Bodner Z"L by his wife, Alice Bodner. A man who loved Chesed, Tuli Bodner applied his many talents to help everyone he knew in any way he could. His cheerful greeting is warmly remembered by all who knew him. He was Niftar on 5 Cheshvan.
PAST DEDICATION
BAVA METZIA 41 - Dedicated by Andy & Nancy Neff in memory of Leah Miriam bat Yisroel -- Lucy Rabin, beloved wife of Sidney Rabin and mother of Nancy Neff and Valerie, Doug and Andy Rabin. Her Yahrzeit is 14 Sivan.

SUMMARY

If someone steals a lamb from the flock or a coin from a purse he may return it to the place that he stole it from according to R. Yishmael.
 
R. Akiva holds he must notify the owner that he returned it. (1)
 
According to R. Yishmael if someone is Mafkid a jug with his friend even if the owner did not specify a place where it shall be kept if the Shomer moves the jug and after he put it back in its place the jug breaks he is Patur even if he moved it for his own purposes. (2)
 
According to R. Akiva if someone is Mafkid a jug with his friend even if the owner specified a place where it shall be kept if the Shomer moves the jug and it breaks if he moved it for his own purposes he is Chayav even if it breaks after he put it down. (3)
 
R. Ya'akov, R. Nasan Bar Abba and R. Sheshes hold that the Mishnah which states in the Seifa that if the Shomer moved the Pikadon and put it down and than the jug breaks he is Chayav if it was moved for his own purposes is in accordance with R. Yishmael and he put it down in a place other than the spot that was specified by the owner. (4)
 
R. Sheshes holds that someone who borrows something without permission is regarded as a Gazlan.
 
Rav holds that a Shomer who was Shole'ach Yad (took it in order to use it for himself) on a Pikadon is only Chayav for Onsim if some of it is missing, while Levi holds he is Chayav even if it is not missing anything.
 
If a shepherd left his flock and went to the city and a lion or wolf killed sheep he is Patur. (5)
 
If the shepherd placed his staff on one of the lambs and hit the lamb with it causing it to move if the staff was still on the lamb when it was killed by the lion the shepherd is Chayav since he was Shole'ach Yad. (6)
 
A Shomer Chinam is Patur for Geneivah and Aveidah while a Shomer Sachar is Chayav.
 
A Shomer Chinam who claims that the Pikadon was stolen and it turns it that he has it in his possession must pay Kefel.
 
If the owner of a borrowed object is together with the Sho'el he is Patur from Onsim, however a Shomer who is Shole'ach Yad even if it is in the presence of the owner he is Chayav for Onsim.
 
A Shomer Chinam who swore that the Pikadon he was guarding was stolen and it was found that the Shomer stole it he must pay Kefel.

A BIT MORE

1. If he doesn't notify the owner he is responsible to pay if it is lost or stolen because when he stole it is in his Reshus until he does a valid Hashavah.
 
2. R. Yishmael holds that it is not necessary to notify the owner that he is returning the jug and therefore once he put it down it is regarded that he has returned it to the owner and he is Patur for an Ones that occurs after that point.
 
3. R. Akiva holds that it is necessary to notify the owner that he is returning it and therefore even though he put it down in its place since he didn't notify the owner he is regarded as a Ganav and he Chayav even for Onsim
 
4. The entire Mishnah is in accordance with R. Yishmael and in the Reisha the Shomer is Patur for Onsim if it breaks after he put it down since anywhere he put it down is the right place, however in the Seifa since the owner specified a place and he put it down somewhere else he is Chayav in Onsim since he took it to steal it or to be Shole'ach Yad or to borrow it without permission.
 
5. It is regarded as an Ones since it was killed by a lion. Even though the shepherd abandoned the flock he is Patur because he abandoned the flock at a time that it is normal for the shepherd goes to the city, or alternatively he abandoned his flock because he heard the roar of the lion.
 
6. Since he caused the animal to move he is regarded as a Shole'ach Yad. However, once he removes his staff it is regarded as returning the animal to its owner and according to R. Yishmael who holds that it is not necessary to notify the owner when he returns it he is Patur for any subsequent Onsim.

BRIEF INSIGHT

MESHICHAH ON AN ANIMAL
 
If a shepherd left his flock and went to the city and a lion or wolf killed sheep he is Patur. If the shepherd placed his staff on one of the lambs and hit the lamb with it causing it to move if the staff was still on the lamb when it was killed by the lion the shepherd is Chayav since he was Shole'ach Yad. The Meiri says that he is only Chayav if he was in the habit if placing his staff on the animal and the owner is Makpid. However, if he did it only infrequently and the owner is not Makpid it is not regarded as Shelichus Yad and he is Patur.

QUICK HALACHAH

CHIYUV OF A SHEPHERD
 
If a shepherd left his flock and went to the city whether it is the time that shepherds usually go to the city or not and a wolf or a lion killed sheep we do not say that if he was there he would have saved it and instead we evaluate if the shepherds could have fought it off with sticks he is Chayav, but if not he is Patur. If it is not certain if it could have been saved it or not he is Chayav. According to some opinions if the shepherd entered the city a time that it is not usual for a shepherd to go he is Chayav no matter what because it is negligence in the beginning and an Ones at he end. (Shulchan Aruch CM 303:10)

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