BAVA METZIA 36 (25 Adar I) - Dedicated l'Iluy Nishmas Leah Rosenbaum, who passed away on 25 Adar I 5779, in honor of her Yahrzeit. Sponsored by her son, Ze'ev Rosenbaum of Yerushalayim.

[36a - 53 lines; 36b - 50 lines]


A person who steals money from a fellow Jew (or denies owing him an object that was deposited in his care), and swears falsely that he holds no such money (and thereby exempts himself from paying), and later admits his sin, must return what he stole, pay a fine of Chomesh, an additional fifth (of the ensuing total, or a quarter of the original value), and bring a Korban Asham to receive atonement. The animal offered is a ram that costs at least two Sela'im (Vayikra 5:20-26).

2)[line 21]כל שבועה שהדיינים משביעים אותה, אין חייבין עליה משום שבועת ביטויKOL SHEVU'AH SHEHA'DAYANIM MASHBI'IM OSAH, EIN CHAYAVIN ALEHA MISHUM SHEVU'AS BITUY - for any oath which the judges (in Beis Din) administer, one is not Chayav for Shevu'as Bituy (SHEVU'AS BITUY)

See Background to Bava Metzia 35:32.

3)[line 25]שומר שמסר לשומרSHOMER SHE'MASAR L'SHOMER

When a Shomer gives an object he is supposed to watch to another Shomer and the object is lost or damaged in any manner, there is a Machlokes whether he (the first Shomer) is Chayav (even to pay for an Ones that happened to the object). According to the view that he is Chayav, the reason he is Chayav is because the owner can claim that he trusted only the first Shomer to guard his object, and not the second Shomer, and thus the first Shomer was negligent in his Shemirah by giving the object to someone else. Alternatively, the owner can claim that he trusts the first Shomer's word to make a Shevu'ah (to exempt himself), but he does not trust the second Shomer's word. According to the view that he is Patur, the reason he is Patur is because he was not negligent in giving the object to a second Shomer, since the second Shomer is an adult of sound mind who is capable of properly guarding the object.

4a)[line 28]דעלויי עלייה לשמירתוILUYEI ALYEI LI'SHEMIRASO- he improved its Shemirah (he increased the degree of protection of the object)

b)[line 29]דגרועי גרעה לשמירתוGERU'EI GAR'AH LI'SHEMIRASO- he reduced its Shemirah

5)[line 36]לאו בפירוש אתמר, אלא מכללא [אתמר]LAV B'FEIRUSH ITMAR, ELA MI'KELALA [ITMAR]- it was not said explicitly by Rav, rather it was derived through something else he said or did not say

6)[line 37]גינאיGINA'EI- gardeners

7)[line 38]מרייהוMARAIHU- (O.F. fossoir) their hoes

8)[line 38]סבתאSAVTA- elderly woman

9)[line 39]שמע קלא בי הלולאSHAMA KALA BEI HILULA- he heard the sound of a wedding celebration

10)[line 41]אדאזל ואתא אגנוב מרייהוAD'AZAL V'ASA IGNUV MARAIHU- while he went and came back, their hoes were stolen

11)[line 46]וקאמר לה להא שמעתאV'KA'AMAR LAH L'HA SHEMA'TA- and he was saying over this teaching [of his teacher, Rebbi Yochanan, who says that a Shomer she'Masar l'Shomer is Chayav]

12a)[line 51]צררןTZERARAN- if he tied them in a bundle

b)[line 51]והפשילן לאחוריוV'HIFSHILAN LA'ACHORAV- and he slung them behind him (over his shoulder)


13)[line 10]את מהימנת לי בשבועהAT MEHEIMNAS LI BI'SHEVU'AH- I trust you with a Shevu'ah. This claim obligates a Shomer to pay, preventing him from exempting himself with a Shevu'ah, when he gives the object that he was guarding to another Shomer. The owner can claim that he does not trust the word of the second Shomer.

14)[line 11]האיךHA'ICH- this other person

15)[line 16]תחילתו בפשיעה וסופו באונסTECHILASO BI'PESHI'AH V'SOFO B'ONES - although the eventual damage that occurred was an Ones and something for which the Shomer would not normally be responsible, he was negligent in the first place in such a way that could have led to the type of damage(s) for which he would have been Chayav

(a)The Gemara (42a) records an incident in which a person deposited some money with a Shomer. The Shomer placed the money inside of a hunter's hut for safekeeping, where it would be protected from thieves, but not protected from a fire. Thieves then stole the money. When the Shomer placed the money in the hut, it was an appropriate act of Shemirah to prevent thieves from taking it, but it was an act of negligence (Peshi'ah) with regard to a fire. In the end, thieves found it there (an Ones).

(b)The Gemara (42a) cites two views regarding the liability of the Shomer in a case of "Techilaso bi'Peshi'ah v'Sofo b'Ones." According to the view that the Shomer is Chayav, the reason is because the Shomer's act was an act of Peshi'ah with regard to a fire. Even though the money was lost through an Ones (i.e. it was stolen), that loss occurred as a result of the act that the Shomer did (by putting the money in the hunter's hut), and thus he is Chayav.

(c)According to the view that the Shomer is Patur, the reason is because the act of Shemirah was a valid Shemirah with regard to theft, and thus when the money was stolen, it was not within the Shomer's ability to prevent such a loss from occurring, because he did what he was supposed to do with regard to theft.

(d)The Gemara (42a) rules in accordance with the view that says that the Shomer is Chayav.

16)[line 18]הבלא דאגמא קטלהHEVLA D'AGMA KATLAH- the damp (hot) air of the swamp killed it

17)[line 26]דאי הדרא לבי מרהIY HADRAH L'VEI MARAH- if it returned to its owner's house

18)[line 30]דאי שבקה מלאך המות, בביתיה דגנבא הוה קיימאIY SHAVKAH MAL'ACH HA'MAVES, B'VEISEI D'GANAVA HAVAH KAIMA- if the Mal'ach ha'Maves would have left it alone, in the house of the thief it would remain

19)[line 36]איכא לאותבה לההיאIKA L'OSVAH LEHA'HI- it is possible to ask that (the question of Rebbi Aba bar Mamal)

20)[line 39]העלה לראשי צוקיןHE'ELAH L'ROSHEI TZUKIN- he brought it up to the heights of cliffs

21a)[line 41]אוירא דהר קטלהAVIRA D'HAR KATLAH- the [thin] air of the mountain killed it

b)[line 42]אובצנא דהר קטלהUVTZENA D'HAR KATLAH- the exertion/exhaustion of [walking up] the mountain killed it

22)[line 43]למרעה שמן וטובMIR'EH SHAMEN V'TOV- a fat and good pasture

23)[line 44]שהיה לו לתוקפה ולא תקפהHAYAH LO L'SOKFAH V'LO SAKFAH- he should have grabbed it and held on to it, and he did not grab it

24)[line 45]עלתה לראשי צוקיןALSAH L'ROSHEI TZUKIN- it went up [on its own] to the heights of cliffs

25)[line 47]שתקפתו ועלתה, תקפתו וירדהSHE'TAKAFTO V'ALSAH, TAKAFTO V'YARDAH- it (the animal) held on to him (the Shomer) and went up the mountain, it held on to him and went down the mountain