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.

1) "I SHALL CARRY HIS CLOTHING AFTER HIM TO THE BATHHOUSE!"

QUESTION: The Gemara concludes that the first part of the Mishnah (40b) expresses the view of Rebbi Yishmael, and the second part of the Mishnah expresses the view of Rebbi Akiva who argues with Rebbi Yishmael. The Gemara quotes Rebbi Yochanan who said, "Whoever can explain to me the Mishnah concerning the 'barrel' in accordance with one Tana -- I shall carry his clothing after him to the bathhouse!" Rebbi Yochanan meant that if someone could explain the Mishnah in accordance with a single Tana, that person would be considered greater than he, and Rebbi Yochanan would personally serve him as a student serves his teacher (TORAS CHAIM).

Is there any reason why Rebbi Yochanan referred specifically to a bathhouse? If his intention was that he would serve the person as a student serves his teacher, then any form of service would suffice. Why did he specify that he would carry the person's clothes to the bathhouse?

ANSWERS:

(a) The TORAS CHAIM cites the Gemara in Pesachim (51a) which teaches that a student may not enter a bathhouse with his teacher, out of deference. However, the Gemara there says that if the student serves the teacher in the bathhouse in some capacity, then he is permitted to enter with his teacher. For this reason, Rebbi Yochanan emphasized service in a bathhouse when he said that he would serve the person whom he would consider his teacher.

(b) The MAHARATZ CHAYOS cites the Gemara in Kidushin (22b) which teaches that one of the forms of Kinyan with which a person acquires an Eved is when the Eved brings the person's clothes to the bathhouse for him. That act of service constitutes a normal labor of an Eved, and thus the person is Koneh that Eved through a Kinyan Chazakah. The Gemara in Kesuvos (96a) rules that a student is required to perform for his teacher any service which an Eved is required to perform for his master. For this reason, Rebbi Yochanan said that he would carry the person's clothes to the bathhouse; Rebbi Yochanan was emphasizing that he would do a service which a student is obligated to do for his teacher.

(c) The BE'ER SHEVA (Teshuvos #11) asks why Rebbi Yochanan is the only Amora who uses this exclamation, in a number of places in the Gemara, while no other Amora ever says such a thing.

He cites the Gemara in Kesuvos (96a) which says that a student is required to perform for his teacher any service which an Eved is required to perform for his master, "except for removal of a shoe in a place where they do not recognize him, lest they say that he is actually an Eved." The Gemara adds that this limitation does not apply when the student has Tefilin upon his head. When he is wearing Tefilin, it is evident to all that he is not an Eved, and he may perform any service for his teacher even in a place where he is not known.

It is clear that when a student is not wearing Tefilin and is in a place where he is not known, he may not do any of the labors that an Eved must do for his master (and not just the removal of a shoe), such as carrying his clothes for him to the bathhouse. Rebbi Yochanan's physical health prevented him from wearing Tefilin upon his head at all times, and he therefore would not have been required to perform such a service for his teacher. Rebbi Yochanan wanted to emphasize that he would not only act with respect towards a person who would explain the Mishnah to him, but he would even do something which a student is not required to do for his teacher in a place where he is not recognized. Moreover, he would serve the person in a way which everyone could see (carrying his clothes to the bathhouse), even though he would not be wearing Tefilin and people would think that Rebbi Yochanan was an Eved! (The MA'AYAN HA'CHOCHMAH questions this approach, however, and argues that it would have been prohibited for Rebbi Yochanan to do something that would cause others to think that he was an Eved.) (I. Alsheich)

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

2) THE MENTION OF "SHELICHUS YAD" IN THE VERSES OF "SHOMRIM"

QUESTION: The Gemara explains why it was necessary for the Torah to include a reference to "Shelichus Yad" both in the verse that discusses Shomer Chinam and in the verse that discusses Shomer Sachar. The Gemara quotes one opinion which maintains that the second mention of "Shelichus Yad" teaches that a Shomer is Chayav for "Shelichus Yad" (and attains the status of a Ganav) even if his usage of the object does not decrease its value. The Gemara concludes that according to the other opinion (that a Shomer is Chayav only when the object's value decreases), the Torah mentions "Shelichus Yad" in the second verse for the following reason. The verse (Shemos 22:7) says that the Shomer Chinam "shall be brought to the judges," but it does not specify for what purpose. One might have thought that the verse means only that he must be brought to Beis Din to be judged, but he is not obligated to swear. The fact that the Torah mentions "Shelichus Yad" here, in the verse of a Shomer Chinam, and later, in the verse of a Shomer Sachar, teaches that just as a Shomer Sachar must make a Shevu'ah, a Shomer Chinam also must make a Shevu'ah. RASHI (DH Af Kan l'Shevu'ah, and in Bava Kama 63b, DH O Eino Ela l'Din) writes that this verse teaches that a Shomer Chinam becomes obligated to pay Kefel only when he swears falsely that the object was stolen, but if he merely claims that it was stolen (without a Shevu'ah) then he does not pay Kefel. Rashi adds that the verse also teaches that a Shevu'ah exempts a Shomer Chinam from paying for an object that was stolen or lost.

Rashi implies that the Gemara initially assumes that a Shomer Chinam cannot exempt himself from payment if he merely claims that the object was stolen. Rather, if he claims that the object was stolen, he must pay the Keren (principal). If he must pay the principal in such a case, how does the Gemara understand the law that a Shomer who is "To'en Ta'anas Ganav" (makes a false claim that the object was stolen) must pay Kefel? If a Shomer always pays the Keren when he claims the object was stolen, there is never a case in which the Shomer is found to have made that claim falsely with a Shevu'ah. The Gemara in Bava Kama (63b), however, says that everyone agrees that a Shomer who makes a false claim of Geneivah must pay Kefel. According to the Gemara's initial assumption, how can there ever be such a case? (MAHARSHA)

ANSWERS:

(a) The MAHARSHAL and MAHARAM in Bava Kama (63b) write that Rashi's intention is not that the Gemara thought the Shomer would pay Keren immediately when he claims that the object was stolen. Rather, Rashi means that a Shomer Chinam who makes a "Ta'anas Ganav" would be exempt from paying altogether, and if witnesses come later and testify that the Shomer himself stole the object, he then must pay Kefel, even without a Shevu'ah. They infer this from the words of Rashi here (DH Atah Omer), "from the time that he claims in Beis Din that it was stolen, even though he does not make a Shevu'ah he must pay Kefel if witnesses come." Hence, the Havah Amina was only that a Shomer Chinam who was "To'en Ta'anas Ganav" would have to pay Kefel later even if he did not make a Shevu'ah; the Havah Amina was not that he would pay the Keren at the moment that he claims the object was stolen.

(b) The MAHARSHA (Bava Kama 63b) does not accept this answer (see Insights to Bava Kama 63:3). He asserts that it is not possible to suggest that a Shomer Chinam would be Chayav to pay Kefel if he did not make a Shevu'ah. If he would have been obligated to pay Kefel in such a case, then it would have been unnecessary for the Torah to teach that a Ganav (who does not make a Shevu'ah) is Chayav to pay Kefel, for it could have learned that Halachah through a Kal va'Chomer from a Shomer who is "To'en Ta'anas Ganav." It must be that a Shomer is Chayav to pay Kefel only when he is "To'en Ta'anas Ganav" with a Shevu'ah, and therefore the Torah must teach that a Ganav pays Kefel even without a Shevu'ah.

The Maharsha gives a different answer to explain the words of Rashi. He writes that the Havah Amina indeed was that the Shomer Chinam pays the Keren immediately, and, nevertheless, if it is discovered later that he was the thief, he must pay Kefel because of the Gezeiras ha'Kasuv. According to this Havah Amina, the Torah must teach the Chiyuv of Kefel in the case of a Ganav because that case itself is the Chiyuv of Kefel of the Shomer who is "To'en Ta'anas Ganav," for he pays the Kefel later when he is found to be a Ganav.

(How do the Maharshal and Maharam answer the question of the Maharsha -- why, according to the Havah Amina, does the Torah need to teach that a Ganav has a Chiyuv of Kefel, when that law can be derived through a Kal va'Chomer from a Shomer who is "To'en Ta'anas Ganav"? The Maharam in Bava Kama cites the TOSFOS YESHANIM who gives several answers. One answer is that according to the Havah Amina, the Chiyuv of Kefel of a Ganav indeed could have been derived from the law of a Shomer, but "Milsa d'Asi b'Kal va'Chomer, Tarach v'Chasav Lah Kra.") (I. Alsheich)

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