BAVA KAMA 63 (23 Teves) - Dedicated in memory of Rivkah bas Reb Avraham Leib, who passed away on 15 Adar 5764, and her husband, Nachum ben Reb Shlomo Dovid (Mosenkis) Z"L, who passed away on 23 Teves 5700, by their son and daughter-in-law, Sid and Sylvia Mosenkis.

1)

FOR WHICH ITEMS DOES A THIEF PAY DOUBLE? (cont.)

(a)

Answer #1: If so, the Torah should have written only one Prat.

(b)

Question: Which one should it have written?

1.

Had it written only "ox (or Seh)", one might have thought that we include only animals that are offered on the Mizbe'ach!

2.

Had it written only "donkey", one might have thought that we only include animals for which the firstborn has Kedushah!

(c)

Answer #2: Rather, the Torah should have written only "ox and donkey." "Seh" is extra to include birds.

(d)

Suggestion: We should include only Tahor birds. They are more similar to a Seh, for their carcasses are Metamei (and even make Tamei the clothes of one who eats them);

1.

Tamei birds do not impart Tum'ah at all!

(e)

Answer #3: "All" is a Ribuy (inclusion. We do not expound it according to Klal u'Frat u'Chlal. Rather, it includes all birds.)

(f)

Question: We do not always expound 'all' like a Ribuy!

1.

It says 'all' regarding Ma'aser, but we expound according to Klal u'Frat u'Chlal!

2.

(Beraisa): "You will spend the money on whatever your soul desires" is a Klal. "On cattle, flock, wine and strong drink" are Peratim. "And on all that your soul requests" is another Klal;

i.

From a Klal u'Frat u'Chlal we learn everything that is like the Prat, (in this case) whatever reproduces and grows from the ground.

(g)

Answer #1: 'B'Chol (on all)' is a Klal. 'Kol (all)' is a Ribuy.

(h)

Answer #2: Normally, 'all' is a Klal. Here, it is a Ribuy.

1.

There already was a Klal u'Frat u'Chlal. "If a man will give to his fellow man" is a Klal. "Money or Kelim" are Peratim. "To guard" is another Klal;

2.

Had the Torah intended that "for any transgression" also be expound like a Klal u'Frat u'Chlal, it would have written the Peratim with the other Klalim ("when a man will give" and "to guard")!

3.

Rather, the Torah intended that "for any transgression" be expounded through Ribuyim (and Mi'utim (exclusions)).

(i)

Question: If so, what do the Peratim teach?

(j)

Answer: One excludes land, one excludes slaves, one excludes documents, and "garment" excludes something not specific (Rashi - it has no Simanim (ways to identify it; Tosfos - it has no measure, or half of something);

1.

"For any Aveidah" teaches like R. Chiya bar Aba.

i.

(R. Chiya bar Aba): If one who found a lost object (falsely) claimed that later it was stolen from him, he pays Kefel - "for any Aveidah that he will say".

63b----------------------------------------63b

2)

A CLAIM THAT THE ITEM WAS LOST OR STOLEN [line 2]

(a)

(Mishnah): If Shimon claimed that the item Reuven deposited with him was lost, and Reuven imposed an oath on him, and he answered "Amen", and witnesses testify that Shimon ate it, he pays the value;

1.

If he admits by himself, he pays the value, Chomesh (an added fifth, i.e. a fourth of the principal), and brings a Korban Asham.

(b)

If Shimon claimed that the item was stolen, and answered "Amen" to the oath, and witnesses testify that Shimon ate it, he pays Kefel;

1.

If he admits by himself, he pays the value, a Chomesh, and brings an Asham.

(c)

Inference: Kefel applies only to one who claims that it was stolen, but not to one who claims that it was lost;

1.

Even one who claims that it was stolen pays Kefel only if he swore!

(d)

Question: What is the source of these laws?

(e)

Answer #1 (Beraisa #1): "Im Yimatzei ha'Ganav (if the thief will be found)" discusses one who claims that it was stolen.

1.

Suggestion: Perhaps it discusses an actual thief!

2.

Rejection: "Im Lo Yimatzei" discusses one who claims that it was stolen, so also Im Yimatzei discusses one who claims that it was stolen.

(f)

Answer #2 (Beraisa #2): "Im Yimatzei ha'Ganav" discusses an actual thief.

1.

Suggestion: Perhaps it discusses one who claims that it was stolen!

2.

Rejection: "Im Lo Yimatzei" discusses one who claims that it was stolen, so Im Yimatzei discusses one who claims that it was stolen.

(g)

Question: Both Beraisos agree that "Im Lo ha'Ganav" discusses one who claims that it was stolen. How do we know this?

(h)

Answer (Rava): "Im Lo Yimatzei ha'Ganav" - it will not be found like he says, rather, he stole it, "he will pay Kefel."

(i)

Question: What is the source of that he pays only if he swore?

(j)

Answer (Beraisa): "The (Shomer) will draw close to the judges" - to swear.

1.

Suggestion: Perhaps he draws close for judgment, not to swear!

2.

Rejection: It mentions unauthorized use here (regarding a Shomer Chinam) and later (regarding a Shomer Sachar). Just like later he swears, also here.

(k)

Question: Granted, (the) Tana (of Beraisa) #2 holds that one verse discusses an actual thief, and one discusses a Shomer who claims that it was stolen;

1.

According to Tana #1, why do two verses both discuss a Shomer who claims that it was stolen?

(l)

Answer: One is needed to exclude a Shomer who claims that it was lost.

(m)

Question: How does Tana #2 learn this?

(n)

Answer: It says "the thief" ('the' excludes a claim that it was lost).

(o)

Question: What does Tana #1 learn from this?

(p)

Answer: He learns R. Chiya bar Aba's law;

1.

(R. Chiya bar Aba): If a Shomer (falsely) claimed that the item was stolen, he pays Kefel. If he slaughtered or sold it, he pays four and five.

2.

Question: What is Tana #2's source for this?

3.

Answer: The Torah writes the law of an actual thief adjacent to the law of one who claims that the item was stolen. This equates their laws.

(q)

Question: We understand Tana #2. (He holds that one verse discusses an actual thief, and teaches that an actual thief pays Kefel, and four and five.)

1.

Tana #1 holds that neither verse discusses an actual thief. What is his source that an actual thief pays Kefel, four and five?

2.

Suggestion: He learns from a Kal va'Chomer. One who claims that the item was stolen pays Kefel, four and five, all the more so, an actual thief pays them!

3.

Rejection: The principal of Dayo (a Kal va'Chomer cannot teach more than the source) allows us to learn only in the same situation, i.e. after swearing!

(r)

Answer: He learns like Tana d'Vei Chizkiyah (below).