1) HOW THE SHOMER ACQUIRES THE "KEFEL" OF THE OBJECT HE IS WATCHING
QUESTION: The Mishnah (33b) states that when an object is stolen from a Shomer and the Shomer chooses to compensate the owner instead of exempting himself with a Shevu'ah, he is entitled to receive the Kefel from the Ganav when the Ganav is found. The Gemara explains that the reason for this is that at the time the owner gave the object to the Shomer, he also gave him any Kefel payment that might later accrue because of the object. The Gemara asks that this conflicts with the normal rule of "Ein Adam Makneh Davar she'Lo Ba l'Olam" -- a person cannot be Makneh an object that does not yet exist in the world (such as the Kefel payment, in this case).
Rava answers that the Shomer acquires the Kefel because when the owner of the object gave him the object, it was as if the owner said to him, "When it is stolen and you agree to pay me for it, my object will become your property from this moment." Thus, the owner sells the object to the Shomer on condition, and if the condition is fulfilled the sale takes place retroactively from the moment the object entered his possession.
How does Rava answer the question? Granted, Rava explains that the object that is acquired is not a "Davar she'Lo Ba l'Olam" (since the owner gives the object, rather than the future Kefel, to the Shomer). However, the owner still makes the acquisition dependent on factors that do not exist yet (the theft of the object, and the Shomer's payment for it). Since the fulfillment of the conditions for the acquisition is "Lo Ba l'Olam," how can the acquisition take effect?
This question is relevant in every case of a Kinyan that depends on the future fulfillment of a condition. (With regard to why such a Tenai does not involve a problem of Bereirah, see Insights to Gitin 25:2, and see following Insight.)
ANSWER: The TESHUVOS MAHARAM BAR'REBBI BARUCH (#50), cited by the MORDECHAI (Bava Metzia 1:247), proves from the Gemara here that as long as all of the principal parties involved in a sale are in existence (the buyer, the seller, and the object being sold) and are fit to conduct the sale, there is no problem of "Davar she'Lo Ba l'Olam" even if the sale is made dependent on another condition that does not exist yet. This is also the view of the Rishonim (see TOSFOS to Kesuvos 42a; ROSH, Bava Basra 4:7; RASHBA and NIMUKEI YOSEF there, and others).
This principle -- that there is no problem of "Davar she'Lo Ba l'Olam" when the buyer, seller, and object being sold are all in existence -- can be explained as follows. Three reasons are given for why a person cannot make a Kinyan on a "Davar she'Lo Ba l'Olam." The first reason is that since the object does not exist yet, there is not complete intention to finalize the transaction (Gemirus Da'as) on the part of the buyer and seller (see Gemara earlier, 16a). The second reason is that since the object does not exist yet, the act of Kinyan, of transferring the ownership of the item, is lacking (KOVETZ SHI'URIM). The third reason is that since the object is not in the world, the owner does not fully own it and therefore cannot transfer its ownership (CHIDUSHEI RABEINU CHAIM HA'LEVI). None of these three reasons apply when the buyer, seller, and object are in existence (such as in the case of Rava's answer). (I. Alsheich)
2) HOW THE SHOMER ACQUIRES THE OBJECT HE IS WATCHING A MOMENT BEFORE IT IS STOLEN
QUESTION: The Gemara quotes two versions of Rava's explanation as to why the Shomer is Koneh the Kefel, even though the Kefel is a "Davar she'Lo Ba l'Olam." The first version is that when the object was given to him, it was as if the owner said to him, "When it is stolen and you agree to pay me for it, my object will become your property from this moment." Thus, the owner sells the object to the Shomer on condition, and if the condition is fulfilled the sale takes place retroactively from the moment the animal entered his possession. Since the object itself exists in the world, the Shomer can be Koneh it (retroactively).
The second version of Rava's answer is that at the time that the owner gave the object to the Shomer, it was as if the owner said to him, "When it is stolen, and you agree to pay me for it, my object will become your property from a moment before it is stolen." Thus, the owner sells the object to the Shomer on condition, and if the condition is fulfilled (i.e., the Shomer agrees to pay for the object after it is stolen), the sale takes place retroactively from a moment before the animal was stolen.
The second version of Rava's answer is difficult to understand, because it seems to depend on "Bereirah" -- the ability of a future event to affect a Kinyan retroactively. The time at which the Kinyan will take effect (i.e. the moment before the item will be stolen) is not known at the time that the owner gives the object to the Shomer. Why does this Kinyan take effect if the Halachah follows the opinion of "Ein Bereirah?"
(a) This question can be answered based on the words of the RAMBAN in Gitin (25b). The Ramban there discusses why there is no problem of Bereirah in all cases when a Kinyan is made that is dependent upon a condition being fulfilled in the future. The Ramban explains that in such cases, the unknown factor is external to the object of the Kinyan. Since the item being acquired is not in question and only the external condition is not known, this does not constitute Bereirah.
This, however, does not suffice to answer the aforementioned question on the second version of Rava's answer. It does answer the question (see previous Insight) on the first version of Rava's answer, regarding why the Kinyan takes effect now and is not subject to the issue of "Davar she'Lo Ba l'Olam" (since the condition has not been fulfilled yet). In the second version, though, the time when the Kinyan is to occur is not known (because the stipulation is "right before it is stolen"), and even when that time comes (the moment before the item is stolen), it is not known at that moment that the Kinyan should take place. Since the moment of the Kinyan can never be known until later, this should still be a problem of Bereirah. (KETZOS HA'CHOSHEN, end of #61; REBBI AKIVA EIGER)
(b) The KETZOS HA'CHOSHEN answers based on the MAHARSHA here. Rava's explanation that "it is as if the owner says to the Shomer that he will be Koneh the animal a moment before it is stolen," does not mean that it is as if the owner says this to the Shomer at the time that he gives him the animal to watch (as Rashi explains). Rather, Rava means that it is as if the owner says this to the Shomer a moment before the animal is stolen, at the moment that the Kinyan occurs (see also SHITAH MEKUBETZES). Since the owner makes the Kinyan at the moment before the animal is stolen, on condition that the animal is stolen one moment later, the animal becomes the property of the Shomer at this moment, and the Kinyan is not subject to Bereirah. The Kinyan takes place at a known, given moment (rather than at one unknown moment among many other moments). The only unknown factor is whether the animal will be stolen or not, but that is an external factor which becomes known immediately thereafter.
(c) The CHAZON ISH (Demai 16:13) proves from this Gemara that there is no problem of Bereirah with regard to monetary matters. (Indeed, all of the cases throughout the Gemara in which the issue of Bereirah is discussed do not involve monetary matters.) (I. Alsheich)
3) TRANSFERRING THE "SHEVU'AH" FROM THE BORROWER TO THE LENDER
QUESTION: The Gemara cites the Mishnah in Shevuos (43a) which presents the case of a lender who lent a Sela to a borrower and received an item of collateral from the borrower, which he subsequently lost. The lender and borrower now dispute how much the item of collateral was worth. The lender claims that it was worth one Shekel (or two Dinarim, which is half of a Sela), and thus the borrower still owes him two Dinarim. The borrower claims that it was worth three Dinarim, and thus he owes only one Dinar. Since the borrower is "Modeh b'Miktzas" (he agrees that he owes money to the lender, but he disputes the sum that the lender claims), he must make a Shevu'ah d'Oraisa of "Modeh b'Miktzas" and swear that the value of the collateral was three Dinarim. The Mishnah there teaches that in this case the lender must swear instead of the borrower, because if the borrower swears, then the lender might present the collateralized item to the court and prove that the borrower swore falsely. RASHI explains that the lender thereby would disqualify the borrower from giving any testimony and from taking any oaths.
The reason to transfer the Shevu'ah to the lender is difficult to understand. If the Rabanan fear that the lender may invalidate the trustworthiness of the borrower by showing the item after the borrower swears, then they should make the borrower swear, not the lender. The borrower certainly will tell the truth, for he knows what the potential consequences are if he lies. Moreover, if the Rabanan are concerned that he may lie, why do they make an enactment (to transfer the Shevu'ah to the lender) for his benefit? Why should the Rabanan protect someone who is suspected of lying?
(a) RABEINU TAM (cited by Tosfos) rejects the explanation of Rashi because of this question, and he quotes the explanation of RABEINU CHANANEL. He explains that the Rabanan fear that after the borrower swears, the lender may show the item to the court and it will seem that a Shevu'ah was made in vain. It is a disgrace for a Shevu'ah to be made if the facts subsequently will be determined anyway.
(b) The RASHBA and RITVA (cited by the Shitah Mekubetzes) explain Rashi's intention. Rashi does not mean that the Rabanan are concerned that the borrower may be lying when he says that the collateral was worth more than the lender claims. Rather, Rashi means that the Rabanan are concerned that the borrower may mistakenly think that it is worth that much. This is indeed how Rashi explains the Gemara in Shevuos (43a): "perhaps this [borrower] did not estimate [the value of the collateral object] accurately."
RAV SHLOMO ZALMAN AUERBACH zt'l (in Minchas Shlomo, end of #83) adds that a person might inaccurately estimate the value of his item when his mind is not settled. For the same reason, he might make a Shevu'ah in his unsettled state.
(c) The SHACH (CM 87:79) also explains that Rashi does not mean that the borrower may be lying about the value of the collateral. Rather, Rashi means that the object may have decreased in value after the borrower gave it to the lender. His Shevu'ah, then, is not a false Shevu'ah, as the item really was worth that amount the last time he saw it. However, since everyone now sees that the object is worth less than he stated in his Shevu'ah, he will be rumored to be dishonest.
(Tosfos himself (DH v'Chi Seima) initially suggests this explanation of Rashi, but he refutes it based on the continuation of the Gemara. The CHASAM SOFER offers answers to the questions of Tosfos.) (I. Alsheich)