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BAVA METZIA 36 - Dedicated by Drs. Shalom and Syma Kelman of Baltimore in honor of their children and grandchildren.

1) EXEMPTING ONESELF FROM AN OBLIGATORY PAYMENT

QUESTION: Rebbi Yirmeyah gives various scenarios in which a Socher lent a rented animal to a Sho'el and they each make the same false Shevu'ah. In one case, they are both Chayav a Korban Chatas for the false Shevu'ah, because the Shevu'ah does not exempt them from payments in which they otherwise would have been Chayav. In another case, they are both Chayav a Korban Asham for the false Shevu'ah, since the false Shevu'ah exempts them from payments in which they otherwise would have been Chayav. In another case, one is Chayav a Korban Chatas and the other is Chayav a Korban Asham.

The Gemara says that if the animal dies naturally and the Socher makes a Shevu'ah that it was taken by force by armed robbers, the Socher is not Chayav a Korban Asham, because he would be exempt from payment regardless of whether it died naturally or it was taken by armed robbers.

However, it seems that the Socher does exempt himself from a payment with this particular Shevu'ah. If he had admitted the truth, that the animal died naturally, then he would have been obligated to return the Neveilah (corpse) to its owner. When he swears that the animal was taken by armed robbers, he exempts himself from the obligation to return the Neveilah to the owner since he claims that there is no Neveilah to be had. Why, then, is he not Chayav a Korban Asham? (CHIDUSHEI HA'RITVA, Yeshanos, 35b)

ANSWER: The CHIDUSHEI HA'RITVA answers that the Gemara refers to a case in which the Neveilah has no monetary value. Therefore, he does not exempt himself from a monetary obligation since, anyway, he would not have to return anything to the owner. (Such a situation is indeed possible, and is mentioned in the Mishnah in Bava Kama 33a.)

Alternatively, the Gemara refers to a case in which the animal died, and after it died its Neveilah fell into a river (b'Ones) and was lost.

36b----------------------------------------36b

2) LET THE SECOND "SHOMER" TESTIFY ON BEHALF OF THE FIRST "SHOMER"

QUESTION: Rava rules that a Shomer who gives a Pikadon to another Shomer is liable for anything that happens to the object, even an Ones. Not only is a Shomer Sachar liable if he gives the object to a Shomer Chinam to watch (in which case he decreases the degree of Shemirah on the item), but even a Shomer Chinam is liable if he gives the object to a Shomer Sachar to watch (in which case he increases the degree of Shemirah). Rava explains that he is liable because the owner may claim that he trusts only the Shevu'ah of the original Shomer, and he does not trust the Shevu'ah of the second Shomer.

According to Rava, the first Shomer's act of giving the object to the second Shomer is not itself an act of Peshi'ah, negligence (in contrast to the view of Abaye). The first Shomer is liable to pay for the object not because he was Poshe'a, but because a Shevu'ah must be made in order for him to be exempt. The second Shomer cannot make a Shevu'ah because the owner does not trust his word, and the first Shomer cannot make a Shevu'ah because he did not see what happened to the object. Therefore, the first Shomer must pay.

Why, though, must he pay? The second Shomer should be able to testify, as an Ed Echad, on behalf of the first Shomer that the object was destroyed because of an Ones. According to RABEINU TAM (cited by the ROSH 1:3), an Ed Echad can exempt a person from the obligation to make a Shevu'ah (this is called an "Ed ha'Mesaye'a"). For example, an Ed Echad can obligate a person to make a Shevu'ah ("Shevu'as Ed Echad") when he supports the claim of a lender against a borrower and testifies that the borrower owes money. The borrower then must either pay or swear that he does not owe anything. However, Rabeinu Tam rules that when a second Ed Echad supports the claim of the borrower (whose claim is contradicted by the testimony of an Ed Echad), this exempts him from a Shevu'ah. Here, too, the second Shomer should be able to testify as an Ed Echad that the object was destroyed b'Ones and exempt the first Shomer from his obligation to make a Shevu'ah or pay.

Indeed, the RAMBAN (in Milchamos) proves from this Sugya that an Ed Echad does not exempt a person from a Shevu'ah. How, though, does Rabeinu Tam understand this Gemara?

ANSWER: The ROSH answers that because the first Shomer is unable to swear (because he does not know for certain what happened), he is automatically obligated to pay. He does not have an obligation of a Shevu'ah from which an Ed Echad can exempt him.

This answer is difficult to understand. The entire obligation of the first Shomer to pay is only because he cannot make a Shevu'ah. Just as an Ed Echad can obligate a person to pay when the person is unable to make a Shevu'ah (such as when a borrower claims that he does not know whether or not he owes money, and an Ed Echad testifies that he does owe money), an Ed Echad should also be able to exempt a person from payment when he is unable to make a Shevu'ah, such as in this case. The Ed Echad should exempt him from the obligation of a Shevu'ah and, consequently, he should not be obligated to pay.

1. HA'GAON RAV NAFTALI TROP explains that Rava maintains that the second Shomer becomes the owner's Shomer. As mentioned above, Rava does not view the first Shomer's act of giving the object to a second Shomer as an act of negligence; the second Shomer's Shemirah is a valid Shemirah (but his Shevu'ah is not accepted by the owner). Since the second Shomer, in essence, is guarding the object for the owner, it is he who is obligated to make a Shevu'ah to the owner to exempt himself. The owner, however, does not trust his word, and therefore the Shevu'ah is transferred to the first Shomer, because only he can swear as to what happened to the object. Consequently, the second Shomer cannot serve as an Ed Echad to exempt the first Shomer from his obligation to swear, because the primary obligation to swear is upon him, and thus he cannot serve as a witness to exempt himself from a Shevu'ah.

2. RAV SHACH zt'l in AVI EZRI (Hilchos Sechirus 4:3) explains as follows. The primary obligation of the Shomer is to return the object itself to the owner. If he does not do so, he is obligated to pay. The Torah, however, allows the Shomer to swear and exempt himself from paying. As such, this Shevu'ah differs from all other cases of Shevu'ah. In all other cases (such as Ed Echad and Modeh b'Miktzas), the person is primarily exempt from any monetary obligation, but the Torah requires him to make a Shevu'ah before he can achieve that exemption. In contrast, when a Shomer claims that a Pikadon was destroyed due to an Ones, he essentially is not believed and he must pay for the object, unless he brings witnesses to support his claim. The Torah allows him to make a Shevu'ah to exempt himself. (Only when he claims that he returned the item is he essentially believed, since that is normally what is done with a Pikadon.) Thus, in this case of a Shomer's Shevu'ah, the Shevu'ah acts to exempt him from an existing monetary obligation, while in other cases, the obligation to pay is created only when the defendant does not make a Shevu'ah.

Accordingly, in the case of the Gemara here, the first Shomer is obligated to pay because he cannot claim with certainty that the animal died b'Ones. It is not because he cannot make a Shevu'ah that he must pay. Rather, the primary obligation of a Shomer is that he must pay for the object, but since he cannot make a Shevu'ah to exempt himself from that obligation, he must pay. The second Shomer cannot testify as an Ed Echad to exempt him, because an Ed Echad can exempt a person only from a Shevu'ah but he cannot exempt a person from a primary obligation to pay that is not the result of a Chiyuv Shevu'ah.

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