BAVA METZIA 94 (7 Av) - Dedicated in memory of Dr. Simcha Bekelnitzky (Simcha Gedalya ben Shraga Feibush) of Queens, N.Y., by his wife and daughters to honor his twelfth Yahrzeit. G-d-fearing and knowledgeable, Simcha was well known in the community for his Chesed and Tzedakah. He will long be remembered.

[94a - 51 lines; 94b -46 lines]

1)[line 1]איכא בהדןIKA BA'HADAN- we have with us

2)[line 2]כך וכך זוקתא פסיקא לןKACH V'CHACH ZUKASA PESIKA LAN- we have a steady guard of such-and-such a number of people armed with slingshots

3)[line 7]כל המתנה על מה שכתוב בתורה, תנאו בטלKOL HA'MASNEH AL MAH SHE'KASUV BA'TORAH, TENA'O BATEL

(a)It is possible to make a condition in all Kinyanim (acquisitions; the word Kinyan connotes a change of ownership or status, such as sales, gifts, Gitin and Kidushin) or Nedarim (vows; see Background to Nedarim 2a) such that the Kinyan or Neder will not take effect unless one or both of the parties involved fulfill the specified condition. However, the Torah established that not all conditional statements are valid. Rather, the wording of the conditional statement must follow a specific formulation (Kidushin 61a).

(b)It is debated among the Tana'im and Amora'im if it is possible to alter a Halachic effect (such as a Kinyan or Nezirus) that the Torah or the Rabanan describe, through a Tenai. For instance, the Torah says that the Kinyan of Kidushin (betrothal) obligates the husband with certain marital and financial obligations towards his wife upon their marriage. If a person specifies that he wants to make a Kidushin on the condition that the Kidushin will not commit him to those obligations, it is called "Masneh Al Mah she'Kasuv ba'Torah," a Tenai that is attempting to change obligations (of Kidushin, in this case) that the Torah specifies. Another example of this would be if a person attempts to make himself a Nazir on the condition that he be permitted to become Tamei Mes. Some Tana'im rule that a condition which attempts to change any Kinyan, either one that is mid'Oraisa or one that is mid'Rabanan, is not valid. Others hold that a condition can change only a Kinyan that is mid'Rabanan (which is weaker), while yet others rule that it can only change a Kinyan that is mid'Oraisa (since the Rabanan were more stringent with their institutions, lest people belittle them). Finally, there are those who rule that it can change either a Kinyan that is mid'Oraisa or one that is mid'Rabanan.

(c)If the Tenai is not formulated properly, or if it contradicts a rule in the Torah (as described above), the Tenai is not valid and the action (i.e. the Kinyan) takes effect even if the parties do not fulfill the specified conditions. That is, the Tenai is disregarded.

4)[line 8]וכל תנאי שיש מעשה בתחילתוKOL TENAI SHE'YESH MA'ASEH B'TECHILASO (TENAI BENEI GAD U'VNEI REUVEN: TENAI KAFUL - The two-sided conditional statement)

(a)It is possible to make a condition in all Kinyanim (acquisitions; the word Kinyan connotes a change of ownership or status, such as sales, gifts, Gitin and Kidushin) such that the Kinyan will not take effect unless one or both of the parties involved fulfill the specified condition. However, the Torah established that not all conditional statements are valid. Rather, the wording of the conditional statement must follow a specific formulation (Kidushin 61a):

(b)According to Rebbi Meir, one requirement for a conditional statement is that the statement of the condition must precede the statement of the action. Reversing the order invalidates the condition (i.e., if it was stipulated that "the Kinyan will take effect if you do such-and-such," we disregard the condition and the Kinyan takes effect). According to those who rule that a Tenai Kaful is required , the condition must also be double-sided ("Tenai Kaful"; i.e. both the positive and the negative sides of the condition must be explicitly stated) and the positive side must precede the negative side. For example, "If you do such-and-such, the Kinyan will take effect; and if not, the Kinyan will not take effect. (Rebbi Chanina ben Gamliel argues, and does not require that a conditional statement be double-sided, since the inverse may be inferred from the first half of the statement - mi'Chlal Hen Atah Shome'a Lav - Kidushin ibid.)

(c)The format for conditional statements is learned from the condition that Moshe Rabeinu made with the men of the tribes of Gad and Reuven (Bamidbar 32:28-30). They received portions in the land of Ever ha'Yarden (modern-day Jordan) on condition that they fight alongside the other tribes in the wars of conquest of Eretz Yisrael proper (Kidushin ibid.).

(d)There are Rishonim who write that even according to the opinion that a double-sided statement is necessary, it is not necessary under all circumstances:

1.According to some, if the words "Al Menas" ("on the condition that...") are included in the words of the conditional statement, it is considered as if the statement is double-sided, and the second side need not be stated explicitly (RAMBAM Hilchos Ishus 6:17).

2.There are those who are of the opinion that the rules governing the working of a Tenai only apply to Gitin and Kidushin, but not to sales and gifts (see RAMBAM and RA'AVAD Hilchos Zechiyah u'Matanah 3:8).

(e)Even if the wording of the conditional statement is properly formulated, there are still certain instances in which a Tenai will not work. For example, the condition and the action cannot affect the same subject ("Tenai u'Ma'aseh b'Davar Echad," - Kidushin ibid.); the condition must be physically possible to perform (Gitin 84a); and the condition must not be dependent upon the concept of Bereirah (according to the opinion that rules Ein Bereirah - Gitin 25b, see Background to Bava Kama 69:17). There are also rules as to which types of actions can be qualified by a Tenai. A Tenai can only be stipulated for the types of actions which one is able to perform through an agent (a Shali'ach), such as the purchase or sale of land or other objects, or such as effecting a marriage or divorce (Kidushin or Gerushin). When performing actions such as Chalitzah, which cannot be performed through a Shali'ach, a Tenai cannot be stipulated.

(f)If the Tenai is not formulated properly, or if it does not fulfill one of the above points, the Tenai is not valid and the action (that is the Kinyan) takes effect even if the parties do not fulfill the specified conditions. That is, the Tenai is disregarded.

5)[line 13]בדבר שבממון, תנאו קייםB'DAVAR SHEB'MAMON, TENA'O KAYAM- regarding a monetary matter, a stipulation [made contrary to Torah law] is binding

6)[line 14]הרי את מקודשת ליHAREI AT MEKUDESHES LI- Behold, you are betrothed (with Kidushin) to me

7a)[line 15]על מנת שאין ליך עליAL MENAS SHE'EIN LICH ALAI- on the condition that I am not obligated to you in the following:

b)[line 15]שאר כסות ועונהSHE'ER, KESUS V'ONAH- food, clothing and the obligation of a husband with regard to marital relations (the three primary obligations of a husband towards his wife)

8)[line 17]בדבר שבממוןB'DAVAR SHEB'MAMON- i.e. food and clothing

9)[line 27]דמעיקרא לא שעבד נפשיהD'ME'IKARA LO SHI'ABED NAFSHEI- from the onset [of his task as a Shomer,] he did not obligate himself [in all of the Halachos pertaining to his particular type of Shomer]

10)[line 29]בשקנו מידוBESHE'KANU MI'YADO- when he made a Kinyan Sudar (see Background to Bava Metzia 45:8) obligating himself [to pay if he fails in his Shemirah]

11a)[line 31]בההיא הנאה דקא נפיק ליה קלא דאיניש מהימנא הואBEHA'HI HANA'AH D'KA NAFIK KALA D'INISH MEHEIMNA HU- with the [small] benefit that he receives from having the word spread that he is a trustworthy person

b)[line 32]גמיר ומשעבד נפשיהGAMIR U'MESHA'ABED NAFSHEI- he decides [to accept the additional responsibility] and obligates himself

12)[line 38]לתהוםTEHOM- the depths

13)[line 38]שתבלעי קנה של מאה אמהSHE'TIVLE'I KANEH SHEL ME'AH AMAH- that you swallow a reed that is one hundred Amos long

14)[line 40]הים הגדולHA'YAM HA'GADOL- the Great Sea, or (a) the Mediterranean sea; it is called the Great Sea because it is the sea of Eretz Yisrael (MISHNAH BERURAH 228:2); (b) the Atlantic Ocean

15)[line 50]כמפליגהK'MAFLIGAH- to annoy her; to put her off (but the stipulation is invalid and she is divorced)


16)[line 56]השואל את הפרה ושאל בעליה עמהHA'SHO'EL ES HA'PARAH V'SHA'AL BE'ALEHA IMAH - one who borrows a cow and asks its owner to work for him at the same time (SHE'EILAH BI'VE'ALIM)

(a)A Sho'el (see Background to Bava Metzia 93:11) is exempt from theft, loss or damages that occurred to an object if the item was stolen, lost or damaged while its owner was working for the Sho'el ("Be'alav Imo"). The Gemara (Bava Metzia 95b) rules that as long as the owner was working for the Sho'el at the onset of the Sho'el's obligation to guard the object, he gains the exemption of Be'alav Imo.

(b)This Halachah applies to the Socher and the Nosei Sachar (see Background ibid.) as well. There is an argument as to whether this Halachah applies to a Shomer Chinam (ibid.) for whom the owner of the item being guarded is working. That is, some rule that he is exempt from theft, loss or damages that occur to the object as a result of his own Peshi'ah (negligence), while others rule that this Halachah does not apply to the negligence of a Shomer Chinam.


17)[line 6]פרה במשיכה ובעלים באמירה!PARAH BI'MESHICHAH U'VE'ALIM B'AMIRAH!- The cow is [borrowed (i.e. the person attains the status of a Sho'el)] through a Kinyan Meshichah (see Background to Bava Metzia 44:5c) and [the work of] its owner is [acquired] through a verbal agreement!

18)[line 7]כגון דקיימא פרה בחצרו דשואל, דלא מחסרא משיכהKEGON D'KAIMA PARAH B'CHATZEIRO D'SHO'EL, D'LO MECHSERAH MESHICHAH- we are dealing with a case where the cow is standing in the yard of the Sho'el, where the Kinyan Meshichah is not necessary (see Background to Bava Metzia 9:10, Kinyan Chatzer)

19)[line 10]ארבעה שומרים הם: שומר חנם, והשואל, נושא שכר, והשוכרARBA'AH SHOMRIM HEM: SHOMREI CHINAM VEHA'SHO'EL NOSEI SACHAR VEHA'SOCHER

See Background to Bava Metzia 93:11.

20a)[line 13]השבורהHA'SHEVURAH- [an animal that] broke [a limb]

b)[line 13]השבויהHA'SHEVUYAH- [an animal that was] captured

c)[line 14]המתהHA'MESAH- [an animal that] died as a result of an unavoidable accident

21a)[line 15]פרשה ראשונהPARSHAH RISHONAH- the first section (Shemos 22:6-8)

b)[line 16]שניהSHENIYAH- the second [section] (Shemos 22:9-12)

c)[line 16]שלישיתSHELISHIS- the third [section] (Shemos 22:13-14)

22)[line 23]שכן משלם תשלומי כפל בטוען טענת גנבSHE'KEN MESHALEM TASHLUMEI CHEFEL B'TO'EN TA'ANAS GANAV- since he (the watchman described by the first section) pays the thief's double restitution when he claims (falsely) that the object [that he was watching] was stolen (see Background to Bava Metzia 41:21, To'en Ta'anas Ganav)

23)[line 24]אפילו הכי, קרנא בלא שבועה עדיפא מכפילא בשבועהAFILU HACHI, KARNA B'LO SHEVU'AH ADIFA MI'KEFEILA BI'SHEVU'AH- Even so, [it is more reasonable that the second section deals with a Shomer Sachar, since receiving] the principle [paid by the Shomer mentioned in the second section 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 the Shomer mentioned in the first section] 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]

24)[line 26]דקיימא באגםD'KAIMA B'AGAM- (O.F. maresc) it is standing in the marsh

25)[line 27]בנטר מתאB'NATAR MASA- we are dealing with a case where the cow is guarded by the city watchman

26)[line 28]בשאילת כליםB'SHE'EILAS KELIM- when he borrows utensils [that do not need to be fed and are watched in the Sho'el's home]

27)[line 32]דברה תורה כלשון בני אדםDIBRAH TORAH K'LASHON BENEI ADAM - the Torah [in this instance] speaks in the manner of man

Every word in the Torah is holy and contains worlds of insights and nuances. However, certain sages of the Mishnah felt that there were some phrases recorded in the Torah that paralleled people's speech, and should not be used for homiletics or insights.

28)[line 33]אמרי במערבאAMREI B'MA'ARAVA- they (the Sages) answered in Eretz Yisrael

29)[line 35]מילתא דאתיא בקל וחומר טרח וכתב לה קראMILSA D'ASYA B'KAL VA'CHOMER TARACH V'CHASAV LAH KRA - the Torah troubles itself to write out explicitly that which can be learned from a Kal va'Chomer (KAL VA'CHOMER)

(a)In the Introduction to the Sifra (the Halachic Midrash to Vayikra), Rebbi Yishmael lists thirteen methods that Chazal use for extracting the Halachah from the verses of the Torah. One of them is called a Kal va'Chomer (an argument a fortiori, also known as "Din" in the language of the Gemara), by which a Halachic inference is made from a Halachah of lesser consequence to a Halachah of greater consequence, or vice versa.

(b)Unlike a Gezeirah Shavah (see Background to Bava Kama 25:19), the Kal va'Chomer inference need not be received as a tradition from one's teacher, since it is based upon logic. And unlike a Hekesh (see Background to Bava Kama 106:15), it can be refuted based on logical grounds.

30)[line 36]"וְכִי יִשְׁאַל אִישׁ מֵעִם רֵעֵהוּ וְנִשְׁבַּר אוֹ מֵת...""V'CHI YISH'AL ISH ME'IM RE'EHU V'NISHBAR O MES..."- "And if a man borrows anything from his neighbor, and it breaks [a limb] or dies, [its owner being not with it, he shall surely pay]." (Shemos 22:13)

31)[line 42]האי "או" מיבעיא ליה לחלקHAI "O" MIBA'I LEI L'CHALEK- that word "אוֹ" - "or," is necessary to [teach the Halachah that the two concepts (of Shevurah and Mesah) are] split (and the Sho'el is liable whether the animal breaks a limb or dies, i.e. his liability is not limited to the case where the animal breaks a limb and dies)

32)[line 44]"[כִּי אִישׁ] אִישׁ אֲשֶׁר יְקַלֵּל אֶת אָבִיו וְאֶת אִמּוֹ, [מוֹת יוּמָת;] אָבִיו וְאִמּוֹ קִלֵּל [דָּמָיו בּוֹ]""[KI ISH] ISH ASHER YEKALEL ES AVIV V'ES IMO, [MOS YUMAS;] AVIV V'IMO KILEL, [DAMAV BO]"- "[For] anyone who curses his father or his mother [shall be surely put to death;] he has cursed his father or his mother, [his blood shall be upon him]." (Vayikra 20:9)