1) THE DEGREE OF LIABILITY OF A "SHOMER CHINAM" AND A "SHOMER SACHAR" FOR DESPOSITS OF SLAVES, LEGAL DOCUMENTS, LAND, AND HEKDESH
OPINIONS: The Mishnah states that the laws of Kefel and Arba'ah v'Chamishah do not apply to slaves, legal documents, land, and Hekdesh.
Similarly, a Shomer Chinam entrusted to guard such things is not obligated to make a Shevu'ah to exempt himself from liability, and a Shomer Sachar is not obligated to pay for such things. What exactly does the Mishnah mean? Does it mean that these Shomrim are absolved of all liability, or does it mean that their liability is limited, but they are still obligated to make a Shevu'ah or pay under certain circumstances?
(a) TOSFOS (57b, DH Shomer Chinam) writes that neither a Shomer Chinam nor a Shomer Sachar ever has to pay for any of these objects, even if he is negligent in his duty. The Gemara later (58a) questions the Mishnah from a Beraisa which states that a Shomer is liable for objects of Hekdesh. If the Mishnah means that a Shomer has some degree of liability for these things if he is negligent, why does the Gemara not answer simply that the Shomer in the Beraisa's case is liable because he was negligent, while the Mishnah exempts him from liability in all cases other than negligence (such as Geneivah and Aveidah)? It must be that the Mishnah maintains that these Shomrim are never liable for slaves, legal documents, land, and Hekdesh.
(b) The RAMBAM (Hilchos Sechirus 2:3) rules that a Shomer is liable for negligence when he is entrusted to watch slaves, legal documents, and land. How does the Rambam refute the proof of Tosfos?
1. The SHACH (CM 66:126) answers that the Gemara says that because a Shomer of Hekdesh is not paid for guarding the Hekdesh on Shabbos, he is not liable for anything that happens to it on Shabbos. This implies that if not for Shabbos, he would be liable like an ordinary Shomer Sachar who is liable for negligence as well as for the theft or loss of the object. The Gemara therefore cannot answer that the Beraisa refers solely to negligence.
2. The KEHILOS YAKOV (#34) points out that the proof of Tosfos does not pose a problem to the Rambam, because the Rambam writes that the only obligations from which these Shomrim are exempt are obligations related to watching the items. However, "anyone who is negligent is called a damager." In the Beraisa's case of Hekdesh (58a), the Shomer is required to tell people that the grain in a certain part of the field is set aside for the Korban ha'Omer. He is not allowed to use force to stop them, because the Omer may not be brought from barley which has been fully guarded (see Tosfos to 58a, DH Lishmor, and Insights there). The Shomer cannot be held liable if the barley of Hekdesh is damaged, because the barley is in a state of vulnerability even after the Shomer has fulfilled his obligations of Shemirah. He can be held liable only for not fulfilling the obligations of Shemirah which he accepted upon himself. This is why the Gemara does not answer that he was negligent.
The Kehilos Yakov explains that Tosfos fundamentally argues with the Rambam (as do many other Rishonim) with regard to a Shomer's liability for negligence. Tosfos categorizes this as passive negligence, not as though the Shomer himself damaged the item. Accordingly, when the Shomer accepted upon himself the responsibility of a Shomer he also accepted not to be negligent in guarding the item. The fact that the Gemara does not answer that the Beraisa refers to negligence shows that according to the Mishnah a Shomer Chinam and Shomer Sachar are exempt even from negligence. (Y. MONTROSE)
2) "ONA'AH" OF PLANTED WHEAT
OPINIONS: The Mishnah (end of 56a) teaches that the laws of Ona'ah do not apply to land. Rava asks whether the laws of Ona'ah apply to wheat planted in the ground. Is the wheat considered separate from the land (and it is like wheat "cast into a jar") and thus subject to the laws of Ona'ah, or is the wheat considered Batel to, and part of, the land?
What exactly is Rava's question?
(a) RASHI (DH Yesh Lahem Ona'ah) explains that Rava is asking what the Halachah is when someone sells wheat which he planted.
Does Rashi mean that Rava is asking about wheat which one planted and sold immediately afterward (before it grew), or that Rava is asking about wheat which one sells at a later stage of its growth?
1. The TUR (CM 227) understands that Rashi refers to wheat sold together with the land on which it grows, right after it is planted. Is the wheat considered Metaltelin since it has not yet taken root, or is it considered part of the land since it was sold together with the land? That is Rava's question.
2. The BACH understands that Rashi refers to one who sells the wheat kernels separate from the land in which they were planted, immediately after he planted them. The buyer purchases the wheat for the wheat crop which eventually will grow (he hopes) due to the planting. Are the seeds still considered Metaltelin and thus are subject to the laws of Ona'ah, or are the seeds considered part of the ground since the wheat which they eventually will yield will be attached to the ground? That is Rava's question.
(b) The RAMBAM (Hilchos Mechirah 13:16) understands that Rava's question involves a landowner who supplies the seeds and pays a worker to plant his field. The Rambam writes that it is doubtful whether there is Ona'ah if the worker does not plant the field correctly.
The RASHBA and RAMBAN do not understand how this can be the explanation of Rava's question in the Gemara here. Rava's question involves a sale, while the Rambam's case does not involve a sale but a question of whether or not an employer must pay a worker who does a poor job.
The KESEF MISHNEH answers that in the Rambam's case, the worker definitely did his job, and the field yielded a wheat crop. The worker therefore must be paid for planting the field. The only question is whether or not the small amount of wheat that was sold by the worker to his employer has the status of land or Metaltelin. (Y. MONTROSE)