BAVA METZIA 83 (Tamuz 25) - Dedicated in memory of Faiga bas Rav Moshe Shmuel z'l, mother of Les Wiesel of Queens NY, by Les and Sandy Wiesel.

OPINIONS: The Gemara quotes Isi ben Yehudah who rules that when a Shomer is guarding an object and an Ones happens to the object while in a public area, the Shomer must bring witnesses to attest that an Ones occurred. The Shomer cannot exempt himself from payment by merely making a Shevu'ah.
Does Isi ben Yehudah's ruling also apply when the fact that the Ones occurred in a public place is known only from the Shomer's admission? In such a case, is the Shomer required to bring witnesses in order to exempt himself? Perhaps in such a case the Shomer is believed -- without witnesses -- to say that an Ones happened, since he has a "Migu": he could have claimed that the Ones happened in a non-public place, in which case he certainly would have been believed without witnesses.
(a) The MAHARIT (Teshuvos) maintains that when the Shomer has a Migu, he indeed is believed about the Ones and he does not need to bring witnesses.
(b) The KETZOS HA'CHOSHEN (294:2) disagrees based on a rule established by the BA'AL HA'ME'OR in Bava Basra (17a of the pages of the Rif). The Ba'al ha'Me'or rules that a claim is not believed based on a Migu alone if it is easy to bring witnesses to support the claim. In the case of an Ones that occurred in a public place, the Shomer easily can find witnesses to attest to his claim. Hence, once he has admitted that the Ones occurred in a public place he is required to bring witnesses and his Migu is not accepted, since witnesses are readily available. (The NESIVOS HA'MISHPAT (187:1) cites further support for the view of the Ketzos ha'Choshen.) (Y. MARCUS)


QUESTION: A certain launderer made an insulting remark to Rebbi Elazar b'Rebbi Shimon. Rebbi Elazar discerned from the person's conduct that he must be a Rasha, and he had him arrested by the king's men. Later, when he saw that the launderer was hanged, he began to regret what he had done and was concerned that he may have wrongly caused a Jew to be punished by the king. He was then told that this launderer and his son had committed a most serious transgression -- they had defiled a Na'arah Me'urasah on Yom Kippur. When Rebbi Elazar heard this, he was consoled.
Why was the launderer deserving of being hanged? His transgression was that of "Bo'el Na'arah Me'urasah" which is punishable not by hanging but by Sekilah (stoning).
(a) RASHI (DH Al Na'arah) answers that the body of any person punished with Sekilah is hanged afterward, as the Mishnah teaches in Sanhedrin (45b), and hence it was appropriate that the launderer was hanged.
The RASHASH here points out that Rashi's answer is true only according to the opinion of Rebbi Eliezer in the Mishnah in Sanhedrin there, who maintains that all sinners who are punished with Sekilah are hanged afterward. The Chachamim there, however, maintain that only a blasphemer (Megadef) and an idol-worshipper are hanged after they are executed, but all other sinners who are punished with Sekilah are not hanged. Rashi's answer does not resolve the question according to the view of the Chachamim.
(b) TOSFOS in Kesuvos (beginning of 30b) answers that the launderer committed the sin with the Na'arah Me'urasah after his son had committed the sin, and thus she was not a Besulah at the time that the launderer (the father) defiled her. Therefore, he was deserving of Chenek, the punishment for every other case of "Bo'el Eshes Ish." Hanging, which is a form of strangulation, is considered equivalent to the punishment of Chenek (see Kesuvos 30b).
(c) The text of the incident as recorded by the TESHUVOS HA'BACH (#70) (and as cited by the BEN ARYEH here) is not that "they said to him [that he and his son had relations with a Na'arah Me'urasah on Yom Kippur]," but rather "he said to him," referring to the launderer himself who was still alive while he was hanging. This also seems to be the Girsa of Tosfos in Sotah (8b). The Bach there proves from this Girsa that the launderer was hanged by his hands, and not by his neck; this was the manner of criminal punishment of the governing authority during the time of the Tana'im. (According to our Girsa, however, there is no proof for this, as the Ben Aryeh points out.)