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.
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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.

[41a - 43 lines; 41b - 28 lines]

1)[line 13]מאן דמתרגם לי "חבית" אליבא דחד תנאMAN D'METARGEM LI "CHAVIS" ALIBA D'CHAD TANA- anyone who can explain our Mishnah of "ha'Mafkid Chavis" (Daf 40b) according to one Tana (referring to two separate instances)

2)[line 14]מובלנא מאניה בתריה לבי מסותאMOVILNA MANEI BASREI L'VEI MASUSA- I will carry his clothes after him to the bathhouse (like a servant)

3a)[line 16]שנטלהSHE'NATLAH- he moved it [and lifted it up]

b)[line 16]על מנת לגוזלהAL MENAS L'GOZLAH- with the intention of stealing it (but regretted his intentions later and returned it, either to its original place - the Reisha - or to a place not designated as the place where it belongs - the Seifa)

c)[line 18]על מנת לשלוח בה ידAL MENAS LISHLO'ACH BAH YAD- with the intention of using part of it (which he later regretted and did not do)

4)[line 19]בשליחות יד צריכה חסרוןB'SHELICHUS YAD TZERICHAH CHISARON (SHELICHUS YAD)

(a)The Torah (Shemos 22:6-8) teaches that when a person deposits an object with a Shomer Chinam or a Shomer Sachar to watch, and the Shomer uses the object without the owner's permission, the Shomer is treated as a thief and assumes full responsibility for the object. From that point on, the Shomer becomes obligated to return the value of the object to the owner even if an Ones (an uncontrollable accident) occurs and destroys it (see below, entry #20). The Shomer cannot simply stop using the object and return to being a Shomer Chinam or Shomer Sachar; once he becomes a "thief" by being Shole'ach Yad, he does not become exempt from responsibility for Ones until he returns the object to the property of the owner.

(b)The Shomer must fulfill two conditions in order to be classified a "Shole'ach Yad."

1.The Shomer must make a Kinyan on the object, by pulling (Meshichah) or lifting (Hagbahah) the object, just as any thief becomes responsible for what he steals only after making a Kinyan on it (Rashi 41a DH Ha).

2.According to those who maintain that "Sho'el she'Lo mi'Da'as Lav Gazlan Hu" (see below, entry #6), the Shomer must use the object in a manner that "uses up" part or all of the object (Rashi 41a DH v'Ha, and Rishonim).

(c)With regard to the second of the two conditions listed above, the Amora'im argue whether the Shomer is only responsible for the object if he actually depletes or uses up part of it ("Shelichus Yad Tzerichah Chisaron"), or whether he becomes responsible for it even if he makes a Kinyan on it with the intention of depleting part of it ("Shelichus Yad Einah Tzerichah Chisaron"). If the Shomer picks up the object in order to steal it all, it is equivalent to having already depleted all of it, since he removed all of it from the owner's domain by picking it up for himself (Rashi, 41a DH v'Rebbi Nasan and 44a DH d'Nicha - see Ramban and Ritva 41a, though, who argue that it is not considered as though he already depleted the object if the Shomer planned on taking it all for himself and compensating the owner for it.). (This discussion is only according to the opinion of Beis Hillel, 43b. According to Beis Shamai, all agree that the Shomer becomes responsible for the object even if he simply says (or thinks, according to some Rishonim, see Shitah Mekubetzes) that he will deplete the object by using it for himself.).

(d)Any use of an animal is considered to be "depleting" the animal, since doing work weakens the animal (Rashi 41a DH v'Ha; however the Ra'avad, cited by the Ritva and Rishonim, argues).

(e)The Amora'im argue as to whether a "Sho'el she'Lo mi'Da'as," a person who uses another person's object without permission, is classified as a "Sho'el" or as a "Gazlan." Those who maintain that "Sho'el she'Lo mi'Da'as Gazlan Hu" do not require that the Shomer "use up" or deplete the object in order for him to become responsible for it as a Shole'ach Yad. According to this opinion, anytime the Shomer uses the object in a manner that could possibly damage the object (for example, he moves it from place to place in order to use it, which might cause the object to inadvertently fall and break), the Shomer is immediately considered a Gazlan, even if he planned to use the object in a manner that would not deplete it at all (for example, climbing on the object in order to reach a high shelf). However, if the Shomer used the object in a manner that neither depleted the object nor put it into a position of insecurity, all Amora'im agree that the Shomer is not considered a Gazlan (Ritva, 41a).

5)[line 25]להביא עליה גוזלותL'HAVI ALEHA GOZALOS- to use it as a step for fledglings that [can hop about but] cannot yet fly

6)[line 25]שואל שלא מדעת גזלן הויSHO'EL SHE'LO MI'DA'AS GAZLAN HEVEI

(a)If a person borrows another person's item without receiving prior permission from the owner, the Amora'im argue as to whether he is given the status of a Sho'el (one of the Four Shomrim, see below, entry #20), or that of a Gazlan (a thief).

(b)There is no practical difference whether the person is considered a Sho'el or a thief for most Halachic matters. In either case, it is prohibited to borrow the item in the first place (since no prior permission was received), and if the object becomes destroyed by Peshi'ah, Geneivah, Aveidah, or Ones, the borrower is responsible for its damage (see below, entry #20:a:2). Even if the object becomes destroyed in the normal manner of usage, the borrower is certainly obligated to replace it (since its owner never allowed him to use it; Ritva 41a). Similarly, if the owner of the object is working for the borrower at the time he borrows it, the borrower is not exempt from damages (as a normal Sho'el is), since he borrowed the object without permission (Daf 41b). The practical difference between whether he is a Sho'el or Gazlan arises when a Shomer Chinam or Shomer Sachar uses the object that is deposited with him without the permission of its owner. If "Sho'el she'Lo mi'Da'as" is not considered a Gazlan, the Shomer is still considered to be appointed by the owner to watch the object. Therefore, as soon as he stops using the object, he returns to being a Shomer Chinam or Shomer Sachar. However, if "Sho'el she'Lo mi'Da'as" is considered to be a Gazlan, he no longer can be considered a Shomer who is appointed by the owner to watch the object. Therefore, even after he finishes using the object, he remains responsible for damages caused by Ones, just like a thief, until he returns the object to the property of the owner (or to property that the owner borrowed or rented). (The Tana'im argue, both here and when any other thief returns a stolen object, if it is necessary to tell the owner that the object was returned, as the Gemara here and elsewhere discusses.)

(c)A "Sho'el she'Lo mi'Da'as" is only called a Gazlan (according to those who maintain that he has that status) if he uses the object in a manner that could possibly damage the object. (See above, entry #4:e.)

7)[line 30]תסתייםTISTAYEM- conclude

8)[line 33]זאבZE'EV- a wolf

9)[line 33]וטרףV'TARAF- killed [its prey and dragged it to its lair to eat]

10)[line 34]אריARI- a lion

11)[line 34]ודרסV'DARAS- attacked with its paws or claws [and ate it on the spot]

12a)[line 34]מקלוMAKLO- his staff

b)[line 34]ותרמילוV'TARMILO- (O.F. boteile - Yevamos 86b) a small leather pouch or a leather bag in which a shepherd carries his food, and on which he sleeps

13)[line 35]והוינן בהV'HAVINAN BAH- and we ask about it

14)[line 36]שקלינהוSHAKLINHU- he took them off

15)[line 37]בעודן עליהB'ODAN ALEHA- while (the staff and pouch)are still on it

16)[line 38]הא לא משכהHA LO MASHCHAH (KINYAN MESHICHAH)

(a)When a person acquires an object, he must make a Ma'aseh Kinyan, a formal Halachically-binding act denoting his acquisition of the object, in order for the acquisition to be irrevocably binding. In order for a Gazlan to become liable for an object that he steals, or for a Shomer to become responsible to guard the item entrusted to him, they also must make a Ma'aseh Kinyan on the item. Depending on the object involved, different Kinyanim may be used.

(b)One of the forms of Kinyan that may be used for the acquisition of Metaltelin (mobile items) is Meshichah, i.e. pulling the item or causing it to move. Meshichah can only accomplish a Kinyan in a private or semi-private area (such as an alleyway), but not in Reshus ha'Rabim. It may be accomplished not only by pulling the object towards one's self, but even by causing it to come towards one's self, such as by calling an animal and causing it to come closer.

(c)The Amora'im (Bava Metzia 47b) argue as to whether Kinyan Meshichah is recognized by the Torah, or whether it is a Rabbinic institution that was established in order to replace the Kinyan of Kesef (which is recognized by the Torah but which was invalidated by the Rabanan). According to those who maintain that Kinyan Meshichah is mid'Oraisa, its source in the Torah is from the verse "אוֹ קָנֹה מִיַּד עֲמִיתֶךָ" "O Kanoh mi'Yad Amisecha" (Vayikra 25:14), which implies that one may transfer property by handing it over to the buyer (Bava Metzia ibid.).

17)[line 39]שהכישה במקל ורצתה לפניוSHE'HIKISHAH B'MAKEL V'RATZESAH LEFANAV- he hit the animal with a stick and it ran before him (in the direction of his domain)

18)[line 40]שהכחישה במקלSHE'HIKCHISHAH B'MAKEL- he made it languish with his stick

19)[last line]משונה שליחות ידMESHUNEH SHELICHUS YAD...- the term "Shelichus Yad" is used with regard to the Shomer Chinam (Shemos 22:7) and the Shomer Sachar (Shemos 22:10), and they are different in that one is necessary in context and the other is not. The second one, therefore, must be written to teach that Shelichus Yad does not need a Chisaron (see above, entry #4)

41b----------------------------------------41b

20)[line 2]בשומר שכר / משומר חנםSHOMER SACHAR / SHOMER 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).

21)[line 11]בטוען טענת גנבTO'EN TA'ANAS GANAV

(a)The Torah establishes the degree of responsibility that a Shomer has when he accepts upon himself to guard someone's object (and he does not specify any other degree of responsibility at the time the object is given to him). The Torah divides the degrees of responsibility into four categories of Shomrim: Shomer Chinam, Sho'el, Shomer Sachar, and Socher - see previous entry.

(b)A Shomer Chinam 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). When the Shomer Chinam claims that the object was stolen or lost or that an Ones occurred, he must make three Shevu'os: 1. that he was not negligent (Poshe'a) in guarding the object, and 2. that he did not use the object for himself (Shelichus Yad - see above, entry #4) without permission, and 3. that the object is not in his possession. Once he makes these Shevu'os, he is exempt from paying the owner for the object.

(c)If the Shomer's claim was that the object was lost or that an Ones happened, he must make the Shevu'os as mentioned above. This is called "To'en Ta'anas Avad," or "To'en Ta'anas Ones." If witnesses then testify that he himself stole the object and that the object is still in his possession, he is obligated to return the object to its owner. (If he made the Shevu'os in Beis Din after the Beis Din required that he make the abovementioned oaths, there is an opinion that maintains that he is exempt from paying, since he acquired the object by making the Shevu'os; see Insights to Bava Kama 106a). If, after making the Shevu'os, the Shomer himself admits that he stole the item (whether he admits before or after witnesses come), he must pay the principle of the object that he stole, and he must add to it a Chomesh, an additional fifth (of the ensuing total, or a quarter of the original value), and he must bring a Korban Asham Gezeilos.

(d)If the Shomer claimed that the object was stolen and he exempted himself from paying for it by making the three Shevu'os mentioned above, this is called "To'en Ta'anas Ganav." If witnesses then testified that he himself stole it, the Shomer is obligated to pay Kefel (double the value of the object), for the Torah gives him the status of a Ganav (which is what he claimed happened to the object), and not just the status of a Gazlan (who does not pay Kefel). If he admitted on his own before witnesses came, he must pay the principle, Chomesh, and bring a Korban Asham, and he is exempt from paying Kefel, since Kefel is a Kenas (penalty) and one who admits to the Chiyuv of a Kenas is exempt from paying it (see Background to Bava Metzia 34:1). If he admitted after witnesses came, he must pay Kefel (since he made a claim that the item was stolen, "To'en Ta'anas Ganav"), and he must bring a Korban Asham, but he is exempt from paying a Chomesh because it is included in the Kefel. (This is according to the Chachamim, Bava Kama 65b. There is another opinion that says that under certain circumstances he pays the Chomesh as well, and a third opinion that the Kefel even exempts him from bringing the Korban Asham.)

(e)One who is "To'en Ta'anas Ganav" with regard to an animal that was entrusted with him, and then he slaughtered or sold it, is obligated to pay Arba'ah v'Chamishah, like a Ganav who stole an animal and slaughtered or sold it (Bava Kama 106b). Similarly, one who found a lost object (Aveidah) and is guarding it, and then claims that it was stolen ("To'en Ta'anas Ganav b'Aveidah") is obligated to pay Kefel.

22)[line 12]קרנא בלא שבועה עדיפא מכפילא בשבועהKARNA B'LO SHEVU'AH ADIFA MI'KEFEILA BI'SHEVU'AH- [the Pirchah asked by the Gemara (line 10) that shows that a Shomer Chinam is more Chamur (stringent) than a Shomer Sachar is not a Pirchah, since receiving] the principle [paid by a Shomer Sachar for a stolen object] without [the trouble of making him take] an oath [in Beis Din] is more Chamur than (lit. is preferable to) [receiving] the Kefel [paid by a Shomer Chinam] with an oath [after the trouble of going to Beis Din for him to swear, having him swear falsely and having witnesses testify that he swore falsely]

23)[line 19]דיו לבא מן הדין להיות כנדוןDAYO LA'BA MIN HA'DIN LIHEYOS KA'NIDON- it is sufficient to give the Halachah learned from a Kal va'Chomer the exact status of the Halachah from which it was learned.

24)[line 19]שואל בבעלים פטורSHO'EL B'VA'ALIM PATUR- A Sho'el (see above, entry 20:a2) is exempt from damages that occurred to an object if the item was damaged while its owner was working for the borrower ("Be'alav Imo").

25)[line 24]"[אִם לֹא יִמָּצֵא הַגַּנָּב] וְנִקְרַב בַּעַל הַבַּיִת אֶל הָאֶלֹקִים [אִם לֹא שָׁלַח יָדוֹ בִּמְלֶאכֶת רֵעֵהוּ]""[IM LO YIMATZEI HA'GANAV,] V'NIKRAV BA'AL HA'BAYIS EL HA'ELOKIM [IM LO SHALACH YADO BI'MLECHES RE'EHU.]"- "[If the thief is not found,] the owner of the house shall be brought to the judges [to swear] [that he did not misuse (lit. send his hand upon) his friend's possession." (Shemos 22:7)

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