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BAVA METZIA 95 (8 Av) - Dedicated in honor of the fourth Yahrzeit of Mrs. Lily (Leah bas Pinchas) Kornfeld, a holocaust survivor who met all of life's challenges with courage and fortitude. Dedicated by her daughter and son-in-law Diane and Andy Koenigsberg and family.

1) PLOWING WITH AN OX

QUESTION: The Gemara (end of 94b) cites the Machlokes between Rebbi Yonasan and Rebbi Oshiyah with regard to the implication of the conjunctive "Vav" ("and"). Rebbi Yonasan says that a "Vav" between two words indicates that the Halachah applies to either one of them, even if they are not both together, unless the verse specifically states "Yachdav." As an example, RASHI quotes the verse, "Lo Sacharosh b'Shor uva'Chamor Yachdav" -- "Do not plow with an ox and a donkey together" (Devarim 22:10). Had the verse not written "Yachdav," it would have been understood to mean that one may not plow at all, either with an ox alone or with a donkey alone.

How could there have been an assumption that the Torah would prohibit plowing with an ox alone? The Torah explicitly commands that one must let his ox rest on Shabbos (Shemos 23:12). This implies that during the rest of the week one certainly may plow with an ox! It cannot be that the Torah's requirement that one let his ox rest on Shabbos refers to other forms of work on Shabbos, while plowing is forbidden on any day of the week. An ox is used primarily for plowing, and thus when the Torah requires a person to let his ox rest from work on Shabbos, it certainly refers to the primary form of work -- plowing. (RITVA in the name of TOSFOS)

ANSWERS:

(a) The RITVA quotes "some who answer" that even if the Torah had prohibited plowing altogether with an ox (which would have been the implication of the verse without the word "Yachdav"), it still would have been necessary for the other verse to command a person to let his ox rest on Shabbos. That verse would have been understood as a command that one not let even a Nochri plow with his ox on Shabbos (as a Nochri may plow with an ox during the week).

(b) The Ritva answers further that had the verse not written "Yachdav," it would have been understood as a prohibition for a man himself to plow with an ox or with a donkey, but it certainly would have been permitted to have an ox or a donkey plow by itself. The verse regarding Shabbos, therefore, would have been necessary to prohibit making one's ox plow by itself on Shabbos. The word "Yachdav" teaches that although a man himself may plow together with an ox or a donkey, he may not have an ox and a donkey plow together. (I. Alsheich)

2) THE SOURCE FOR THE LIABILITY OF A "SHO'EL" FOR "GENEIVAH V'AVEIDAH"

QUESTION: The Gemara asks what the source is for the Halachah that a Sho'el is obligated in cases of Geneivah and Aveidah. The Gemara answers that it is derived from a Kal va'Chomer from Shomer Sachar. (According to the conclusion of the Gemara later that "Vav Mosif Al Inyan Rishon," the "Vav Mosif" teaches that a Sho'el is obligated for Geneivah and Aveidah, and the Kal va'Chomer is no longer necessary, as TOSFOS (DH Vav) points out.)

Why does the Gemara need a Limud to teach that a Sho'el is obligated for Geneivah and Aveidah? A Sho'el's degree of liability certainly includes that of a Shomer Sachar. Since the liability of Shomer Sachar for Geneivah v'Aveidah is already known, a Sho'el certainly should be obligated as well. (RIVASH #279)

ANSWERS:

(a) The RIVASH answers that a Sho'el in fact differs from a Shomer Sachar and his liability does not include that of a Shomer Sachar. A Shomer Sachar receives payment in return for guarding the object, as that was the agreement made between the two parties. A Sho'el, in contrast, receives no benefits in exchange for guarding the object. (Although he benefits in that he is permitted to use the object, that benefit is not given to him in exchange for guarding it.) Rather, the two parties agreed that the owner would lend his object to the borrower for free, and the owner does not mind that the borrower will benefit from the usage of the object. A Sho'el therefore is obligated to guard the object like a Shomer Chinam, since he is not being paid to guard it, and thus a Sho'el's liability for Geneivah and Aveidah cannot be derived from the degree of liability of a Shomer Sachar.

(b) The Rivash answers further that it is necessary to have an independent source to teach that a Sho'el is obligated for Geneivah and Aveidah because without such a source it would have been logical to assume that he would be exempt. If a Sho'el would be liable for Geneivah and Aveidah because he is no less accountable than a Shomer Sachar, it would emerge that he is not the sole beneficiary of the arrangement; the owner of the object would also benefit because his object would be guarded by a Shomer Sachar. The Gemara, however, states that in a case of She'eilah, the Sho'el is the sole beneficiary ("Kol ha'Hana'ah Shelo"), and that is why a Sho'el is liable for Onsin. Hence, the liability of a Sho'el for Geneivah and Aveidah cannot be due to the fact that he is also a Shomer Sachar, and the Gemara must find a different source to establish that a Sho'el is liable for Geneivah and Aveidah. Without such a source, it would have been logical to understand that the Torah in fact exempts a Sho'el from such liability so that he will have an absolute status of "Kol ha'Hana'ah Shelo." (A similar answer is suggested by the TESHUVOS HA'RAN, cited by the SHACH CM 72:11. Similarly, the MACHANEH EFRAIM, Hilchos She'eilah #3, writes that a Sho'el who borrows Sifrei Kodesh is not the sole beneficiary of the She'eilah because the lender also benefits from the "Perutah d'Rav Yosef" when others are learning Torah from his books.) (I. Alsheich)

95b----------------------------------------95b

3) THE MORE IMPORTANT TYPE OF "HALACHAH"

QUESTION: The Amora'im argue whether the exemption of "Ba'alav Imo," written in the Torah in the Parshah of Sho'el (Shemos 22:14), refers also to Shomer Sachar (the preceding Parshah) and to Shomer Chinam (the Parshah before the preceding Parshah), or only to Shomer Sachar. If it does not refer to Shomer Chinam, then there is no source to exempt any Shomer in a case of Peshi'ah when "Ba'alav Imo." The Gemara attempts to prove from the Mishnah (94a) -- which mentions the exemption of "Ba'alav Imo" with regard to a Sho'el but does not mention it with regard to a Shomer Chinam -- that the exemption does not apply to a Shomer Chinam. The Gemara answers that the Mishnah does not mention a Shomer Sachar either, and thus it must be that the Mishnah mentions only a case in which the Torah explicitly writes the exemption of "Ba'alav Imo" (i.e. Sho'el), and it does not mention cases in which the exemption is derived through a Limud (i.e. a Shomer Sachar and a Shomer Chinam).

The MAHARATZ CHAYOS asks that an opposite idea is found elsewhere in the Gemara. The Gemara in Nedarim (3a) and Yevamos (2a) says that the Mishnayos there (2a) prefer to teach the laws that are derived through a Limud and are not written explicitly in the Torah, because "since it is derived through a Derashah, it is beloved [to the Tana]" (see also Bava Kama 17b, Bava Basra 108b, and elsewhere). How are these opposing Gemaras to be reconciled?

ANSWER: The MAHARATZ CHAYOS answers that in Nedarim and Yevamos, the Mishnah teaches both Halachos -- that which is derived through a Limud, and that which is written explicitly in the Torah. It merely teaches that which is derived through a Limud first. He explains this based on the words of RAV MOSHE KAZIS (in SEFER KIN'AS SOFRIM, and as cited by the YAD MALACHI #11) who asks why the Gemara there (Nedarim and Yevamos) says that "since [a Halachah] is derived through a Derashah, it is beloved?" It would have seemed more logical for the Gemara to say that such a Halachah is "more important." Rav Moshe Kazis explains that when one derives a Halachah through his own toil in applying the methods of Halachic derivation, that Halachah is more cherished and beloved to him because of the effort he exerted to learn it. Based on this, the Maharatz Chayos explains that in Nedarim and Yevamos, where the Tana teaches both Halachos, he prefers to write the one that is "beloved to him" first. That Halachah, though, is not more important than a Halachah written explicitly in the Torah, but is merely more beloved. Here, where the Mishnah mentions only one Halachah, it chooses the Halachah which is written explicitly in the Torah, for that indeed is the "more important" one to teach.

(Although this explains why the Mishnah in Nedarim explains the laws of Yados first, it does not explain why the Gemara in Nedarim says that the Mishnah there first mentions the Halachah that is explicit in the Torah (i.e. Kinuyim), and only afterward mentions that which is learned from a Derashah. The BEIS YOSEF, in his commentary to Halichos Olam, KLALEI HA'GEMARA 3:19, discusses this. See HALICHOS OLAM there, and see also YAVIN SHEMU'AH there.) (I. Alsheich)

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