SHEVUOS 49 - Two weeks of study material, including the Siyum of Maseches Shevuos, have been dedicated by Mrs. Estanne Abraham Fawer to honor the Yahrzeit of her father, Rav Mordechai ben Eliezer Zvi (Rabbi Morton Weiner) Z'L, who passed away on 18 Teves 5760. May the merit of supporting and advancing Dafyomi study -- which was so important to him -- during the weeks of his Yahrzeit serve as an Iluy for his Neshamah.

[49a - 34 lines; 49b - 37 lines]

1)[line 1]מגלגליןMEGALGELIN (GILGUL SHEVU'AH)

(a)See Background to 45:16.

(b)The Gemara here teaches that Beis Din may be "Megalgel" a Shevu'ah from any Shevu'ah mid'Rabanan except that of a worker. The reason is that the Shevu'ah of a worker is administered only to appease the employer.

2)[line 2]משכירMI'SACHIR- from a hired laborer

3)[line 3]לפתוח לוLIFTO'ACH LO- lit. to open up for him. This means that if the claimant does not assert that there should be a Gilgul Shevu'ah, Beis Din will step in and make the claim.

PEREK #8 ARBA'AH SHOMRIM

4)[line 7]שומר חינםSHOMER CHINAM (FOUR SHOMRIM)

(a)The Torah (Shemos 22:6-14) mentions four types of Shomrim (watchmen) and the different Halachos that apply to them:

1.SHOMER CHINAM - the Shomer Chinam is one who watches an item without demanding compensation from the owner. He is liable for damages only in cases of Peshi'ah (negligence), but not in cases of theft or loss, and certainly not in a case of Ones (an unavoidable accident).

2.SHO'EL - the Sho'el, the borrower, is one who borrows an item in order to use it and becomes obligated to take care of it. He is liable for damages in cases of Peshi'ah, theft or loss, and Ones. He is exempt from damages only in a case of "Meisah Machmas Melachah," when the item was damaged in the normal manner of usage, or if the item was damaged while its owner was working for the borrower ("Be'alav Imo").

3.NOSEI SACHAR - Nosei Sachar, or Shomer Sachar, is one who is paid to watch an item but is not permitted to use it. He is liable for damages in cases of Peshi'ah, theft or loss, but is not liable in a case of Ones.

4.SOCHER - the Socher, or renter, is one who pays money to rent an item. He is liable for damages in cases of Peshi'ah, theft or loss, but is not liable in a case of Ones, just like a Shomer Sachar, according to some of the Tana'im. Others assert that a Socher is liable for damages only in cases of Peshi'ah, but not in cases of theft or loss, and certainly not in a case of Ones, just like a Shomer Chinam (Bava Metzia 93a).

5.The Mishnah here lists the cases in which the Shomrim have an obligation, or no obligation, to swear.

5)[line 11]השבויהHA'SHEVUYAH- one who was taken captive

6)[line 20]מה אתה סחMAH ATAH SACH- what are you talking about?

7)[line 24]הקרןHA'KEREN- the principle. If a person asked, "Where is my ox," and the guardian answers that it was lost, Beis Din makes him swear. If witnesses give testimony that he consumed it, he must pay the value of the ox.

8)[line 25]קרן וחומשKEREN V'CHOMESH - principal and a fifth

(a)When a guardian who is holding the money of a fellow Jew swears falsely in Beis Din that he is not in possession of the money (he claims that he never received it, or that he returned it), and he later admits that he swore falsely, he must return what he stole, pay a fine of Chomesh (a fifth of the ensuing total, or a fourth of the original value of the money he withheld) and bring a Korban Asham to receive atonement (Vayikra 5:20-26). The Torah specifies that this Korban must be a ram worth at least two Sela'im. This applies regardless of why he was holding the other Jew's money - whether he stole it, found it, borrowed it, was watching it for the owner, damaged the other's property and did not compensate him, or he owed money for any other reason.

(b)In order for one to be obligated in the payments and Korban mentioned above, one must deny, with the oath, any liability for a monetary sum ("Mamon"), as opposed to a Kenas, because even if the accused admits to the Kenas he does not have to pay.

9)[line 27]תשלומי כפלTASHLUMEI KEFEL - a thief's double restitution

(a)If a thief surreptitiously steals an object from a fellow Jew, and is found guilty of the theft in court based on the testimony of valid witnesses, he must return the object (if it is still in its original state) or its value (if it is not) to its owner (Vayikra 5:23). In addition, the thief is obligated to pay the victim of the theft the value of the stolen object a second time. Restitution of the value of the stolen object is called "Keren," and the additional payment is known as "Kefel."

(b)Only a thief ("Ganav") who steals surreptitiously pays Kefel, and not a robber ("Gazlan"), who brazenly burglarizes and takes the possessions of others by force. Chazal explain that the Torah punishes a thief more stringently than a robber because of the disrespect he shows for the Creator. By taking care to avoid the eyes of man, while not being bothered in the least by the eye of the One Above that is constantly watching, he exhibits his lack of belief in HaSh-m (Bava Kama 79b).

(c)A thief does not pay Kefel unless he makes a "Kinyan," an act of acquisition, on the object that he steals (e.g. by lifting it up, bringing it into his own property, drawing it towards himself in a semi-secluded area, etc.). If he simply broke or ruined another person's object without making a Kinyan on it first, he is not considered to be a "Ganav" but a "Mazik" ("one who causes damage"), and he does not pay Kefel.

(d)A thief does not pay Kefel if he steals Shtaros (bills of ownership or promissory notes). Most Tana'im hold that a thief does not pay Kefel if he steals land or slaves (Bava Kama 117b).

(e)Kefel, like any other payment that involves over-compensation for a monetary loss, is considered a "Kenas" (penalty) rather than "Mamon" (compensation). As is true of every Kenas, a thief does not have to pay Kefel if he admits to his theft of his own accord. Only if witnesses testify to his guilt in court must he pay. If he admits to the theft of his own accord, and later witnesses testify to his guilt in court, the Amora'im argue as to whether or not he must pay the Kefel (Bava Kama 74b-75a - he is exempted from payment, according to the lenient opinion, only if his admission took place under specific circumstances). Until he is obligated to pay the Kefel in court, the thief is fully exempt from paying Kefel, and does not even have a moral obligation to pay it on his own accord (RASHBA Bava Kama 74b, see also RAMBAN in Milchamos at the end of the third Perek of Kesuvos).

(f)If a thief can make restitution of the Keren but not the Kefel, he is not sold as a slave to pay back the Kefel.

10)[line 30]טבחTAVACH- he slaughtered it

11)[line 31]תשלומי ארבעה וחמישהTASHLUMEI ARBA'AH V'CHAMISHAH - a thief's quadruple and quintuple restitution for the theft and subsequent slaughter or sale of a sheep or ox, respectively

(a)If a thief surreptitiously steals an object from a fellow Jew, and is found guilty of the theft in court based on the testimony of valid witnesses, he must return the object (if it is still in its original state) or its value (if it is not) to its owner (Vayikra 5:23). In addition, the thief is obligated to pay the victim of the theft the value of the stolen object a second time. Restitution of the value of the stolen object is called "Keren," and the additional payment is known as "Kefel" (see above, entry #9).

(b)If the object that was stolen was a live sheep or ox, and the thief either slaughtered or sold it, the Torah (Shemos 21:37) places an even stiffer fine on the thief. In the case of a stolen sheep that was slaughtered or sold, the thief must compensate the owner a total of four times its actual value ("Arba'ah"), while in the case of a stolen ox that was slaughtered or sold the thief must compensate the owner a total of five times its actual value ("Chamishah"). This law does not apply to any other object or animal that is stolen. Chazal (Bava Kama 79b) explain that the

Torah was more lenient with a person who steals a sheep than with one who steals an ox, since he already suffered a somewhat demeaning experience of walking with a sheep on his shoulders (as opposed to the ox-thief, who presumably led the ox on foot before him).

(c)A thief does not pay Arba'ah v'Chamishah for slaughtering a sheep or ox unless he, or a person he appoints, performs a proper ritual slaughter (i.e. a Shechitah of the type that normally permits an animal to be eaten). According to some Amora'im (Bava Kama 68a), a thief does not pay Arba'ah v'Chamishah for selling a sheep or ox unless he sold it after "Ye'ush Ba'alim" (i.e. the owner lost all hope of recovering the sheep or ox, see Background to Gitin 37:30:a), while according to others he only pays Arba'ah v'Chamishah if he sells it before Ye'ush Ba'alim.

(d)Arba'ah v'Chamishah, like any other payment that involves over-compensation for a monetary loss, is considered a "Kenas" (penalty) rather than "Mamon" (compensation). As is true of every Kenas, a thief does not have to pay Arba'ah v'Chamishah if he admits to his guilt of his own accord. Only if witnesses testify to his guilt in court must he pay. If he admits to his guilt of his own accord, and later witnesses testify to his guilt in court, the Amora'im argue as to whether or not he must pay Arba'ah v'Chamishah (Bava Kama 74b-75a - he is exempted from payment, according to the lenient opinion, only if his admission took place under specific circumstances). Until he is obligated to pay the Arba'ah v'Chamishah in court, the thief is fully exempt from payment and does not even have a moral obligation to pay it on his own accord (RASHBA Bava Kama 74b, see also RAMBAN in Milchamos HaSh-m at the end of the third Perek of Kesuvos).

49b----------------------------------------49b

12)[line 26]שבועת ביטויSHEVU'AS BITUY

See Background to 2:1.

13)[line 27]ליתא בלהבאLEISA B'LEHABA- it does not apply to the future. Shmuel maintains that since the oath does not apply to the future (i.e., one cannot swear that the object will be stolen), he is exempt from liability for making a Shevu'as Bituy.

14)[line 28]חדא זימנאCHADA ZIMNA- one time

15)[line 28]צרורTZROR- a stone

16)[line 29]דאיתא בלאו והןD'ISA B'LAV V'HEN - it exists in the negative and the positive forms (SHEVU'OS: LAV V'HEN)

(a)See Background to Shevuos 2:1.

(b)The verse that describes a Shevu'as Bituy states, "l'Hara O l'Hetiv" - "to do harm or to do good" (Vayikra 5:4). Certain Tana'im learn that a Shevu'ah can apply only to the future, since "l'Hara O l'Hetiv" is in the future tense. The Mishnah (Shevuos 2a) quotes the opinion of Rebbi Akiva, who learns from a Derashah that Shevu'os also can apply to the past (Shevuos 25a).

(c)Other Tana'im learn from this verse that the formulation of the Shevu'ah must be able to exist in a positive and negative form ("Isa b'Lav v'Hen"). For example, "I will eat" and exist in the negative form as well, "I will not eat." Reish Lakish here, who learns that the Torah does not prohibit less than a k'Zayis of a prohibited food, maintains that one fulfills the requirement of "Isa b'Lav v'Hen" with the Shevu'os of "I will eat a k'Zayis of Neveilah" or "I will not eat a k'Zayis of Neveilah."

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