1)

ONE WATCHING AN AVEIDAH

(a)

(Rabah): One watching an a Aveidah (lost object) is considered a Shomer Chinam (he is exempt if he loses it or it is stolen);

(b)

(Rav Yosef): He is like a Shomer Sachar (he is liable for loss or theft).

1.

Rabah says that he is like a Shomer Chinam, for he gets no benefit.

2.

Version #1: Rav Yosef says that he is like a Shomer Sachar, for it is a Mitzvah to watch an Aveidah. This Mitzvah exempts him from giving bread to a poor man who requests.

3.

Version #2: Rav Yosef says, since the Torah obligated him to watch the Aveidah, he is like a Shomer Sachar.

(c)

Question (Rav Yosef - Beraisa): If the finder returned the Aveidah to a place where the owner can see it, this is enough. If it was stolen or lost, he is liable.

1.

Suggestion: It was stolen or lost from the finder's house.

(d)

Answer (Rabah): No, it was stolen or lost from the place to which he returned it.

(e)

Question: The Beraisa says that if he returned it to there, this is enough!

(f)

Answer: The case is, he returned it in the afternoon. The Beraisa teaches two laws:

1.

If he returned it in the morning to a place where the owner normally goes and can see it, this is enough;

2.

If he returned it in the afternoon to a place where it can be seen, but the owner doesn't normally go there, and it was stolen or lost, he is liable.

(g)

Question (Beraisa): He is always liable until he returns it to his premises.

1.

He is liable even (if it was stolen or lost) from the finder's house. This shows that he is a Shomer Sachar!

(h)

Answer: Rabah admits that one who finds an animal is liable. Since the animal learned to roam, it must be watched better (so he was negligent. Perhaps he is exempt for theft (Tosfos).).

(i)

Question (Rabah - Beraisa): "Return" - to his house. "You will return them" - even to his garden or (deserted) ruin.

1.

Question: What is the case of returning to his garden or ruin?

i.

If they are guarded, this is just like returning to his house!

2.

Answer #1: Rather, they are not guarded. This shows that the finder is like a Shomer Chinam (even a minimal guarding suffices)!

(j)

Answer (and Answer #2 to Question i:1 - Rav Yosef): Really, they are guarded. The Beraisa teaches that the owner need not know that they were returned.

1.

(R. Elazar): In all cases, the owner must know when his article was returned, except for an Aveidah, for the Torah mentioned "returning" it many times.

2)

ONE WHO CLAIMS THAT THE ITEM WAS STOLEN

(a)

Question (against Rav Yosef - Abaye): R. Chiya bar Aba cited R. Yochanan to say that if Levi found an Aveidah and swore that it was stolen from him (and later, it was found that Levi had it), he pays Kefel (double), like a thief.

1.

If a finder is a Shomer Sachar, when he claims that it was stolen, he must pay! (Since Levi was not trying to steal (he obligated himself), he would not pay Kefel.)

(b)

Answer (Rav Yosef): The case is, he claimed that armed robbers stole it. (He exempted himself, for this is Ones.)

(c)

Question (Abaye): Armed robbers never pay Kefel, only thieves!

(d)

Answer (Rav Yosef): Since they hide from people, they are like thieves, and they pay Kefel.

57b----------------------------------------57b

(e)

Question (Abaye - Beraisa): You cannot learn from a Shomer Chinam, who pays Kefel, to a Shomer Sachar, who does not pay Kefel.

1.

If armed robbers were like thieves and paid Kefel, also a Shomer Sachar would pay Kefel (when he claims that armed robbers took it)!

(f)

Answer (Rav Yosef): The Beraisa means 'you cannot learn from a Shomer Chinam, who pays Kefel for any (false) claim (of theft), to a Shomer Sachar, who pays Kefel only regarding a claim of armed robbers.'

(g)

Question (Abaye - Beraisa) Question: "(A borrower is liable) if it was broken or died." What is the source (that he is liable) even if it was stolen or lost?

1.

Answer: A Kal va'Chomer teaches this. A Shomer Sachar is exempt when it is broken or dies, but is liable for theft or loss. A borrower is liable when it is broken or dies. All the more so he is liable for theft or loss! This Kal va'Chomer cannot be challenged.

2.

If armed robbers are like thieves and pay Kefel, we can challenge this! A Shomer Sachar sometimes pays Kefel (when he claims that armed robbers took it), but a borrower never pays Kefel (so it is more lenient in this respect)!

(h)

Answer (Rav Yosef): This Tana holds that a Shomer Sachar is more lenient, since he can swear (that armed robbers took it) and be exempt, even though this can lead to paying Kefel.

(i)

Support (for Rav Yosef - Beraisa): 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.

1.

Assumption: This is like R. Yehudah, who says that a renter is like a Shomer Sachar. Reuven said 'I will pay and not swear.' This implies that he could have sworn and not paid.

2.

The case is, he claimed that armed robbers took it. If they are found later, they pay Kefel!

(j)

Rejection #1: Perhaps it is like R. Meir, who says that a renter is like a Shomer Chinam (and he claimed that a regular thief stole it).

(k)

Rejection #2: Perhaps it is like R. Yehudah, according to Rabah bar Avuha, who switches the opinions of R. Meir and R. Yehudah, and says that R. Yehudah holds that a renter is like a Shomer Chinam.

(l)

Rejection #3 (R. Zeira): The case is, Reuven claimed that armed robbers took it, and later, it was found that a thief took it.

3)

WHEN AN ANIMAL PAYS AS MUCH AS IT BENEFITED

(a)

(Mishnah): If it fell into a garden and benefited, Reuven pays the benefit (not the full damage).

(b)

(Rav): The case is, it fell on fruits.

(c)

Question: This implies that if it ate them, he does not pay at all!

1.

Suggestion: This is like Rav holds, that the animal should not have eaten.

2.

Rejection: No. Rav said so only to exempt the owner of fruits, when the animal ate and was damaged. Rav would not say that this is a reason to exempt it when it damages!

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