1) WHEN MUST THE OWNER BE WITH THE BORROWER FOR THE EXEMPTION OF "BA'ALAV IMO" TO APPLY
QUESTION: The Gemara derives from verses that a Sho'el is granted the exemption of "Ba'alav Imo" as long as the owner of the animal is with him at the time of the She'eilah, even if the owner is not with him at the time that the animal dies. The Gemara asks why the exemption of "Ba'alav Imo" depends upon the owner being with the Sho'el at the time of She'eilah; perhaps it should depend upon the time of the animal's death, because it is at that moment that the Sho'el would become Chayav (when the owner is not with him) to pay for the Ones. The Gemara concludes that the time of She'eilah is more important because it is at that moment that the Sho'el becomes obligated to feed the animal.
What is the connection between the Sho'el's obligation to feed the animal and the exemption of "Ba'alav Imo"?
(a) The MA'AYANEI HA'CHOCHMAH answers that the Sho'el's liability for Onsin takes effect at the same moment that his obligation to feed the animal takes effect. The Gemara here rejects its previous assumption that the Sho'el's obligation to pay for an Ones takes effect at the time that the Ones occurs (i.e. when the animal dies). To prove this, the Gemara points out that the Sho'el becomes obligated to feed the animal at the moment he borrows it. This shows that all of his obligations take effect at that moment, including the obligation to pay for the animal if an Ones occurs. Accordingly, it is logical the Sho'el is exempt if the owner was with him at the time that he borrowed the animal. (See Kesuvos 34b, where the Gemara suggests (in its Havah Amina) that since the Sho'el becomes obligated to feed the animal at the moment he does Meshichah, he becomes obligated in Onsin from that moment as well. The Gemara here follows the Havah Amina of the Gemara in Kesuvos.)
(b) The DARCHEI DAVID answers that the Gemara cites the Sho'el's obligation to feed the animal as an example of an obligation that takes effect at the moment of She'eilah. The Gemara means to say that at the moment of She'eilah, all of the laws and obligations of the Sho'el take effect. It follows logically, then, that the exemption of "Ba'alav Imo" takes effect at the same moment that the obligations of the Sho'el take effect, because the law of "Ba'alav Imo" itself suspends some of the obligations of the Sho'el. (I. Alsheich)
2) HALACHAH: BORROWING AN ITEM TO BENEFIT FROM IT IN A WAY OTHER THAN USING IT
OPINIONS: The Gemara asks whether a borrower is obligated for Onsin when he borrows an item merely in order to be seen with it (so that people think he is wealthy and will not refrain from selling to him on credit) but does not actually use the item. If the obligation for Onsin applies whenever one derives monetary benefit from borrowing the item, then the borrower would be obligated for Onsin in such a case since he does derive monetary benefit (in that people will sell to him on credit). If, however, the obligation for Onsin applies only when the benefit comes from the item itself, then this borrower would not be obligated for Onsin since he does not benefit from the item itself. The Gemara leaves this question unanswered. The Halachah is that "ha'Motzi me'Chaveiro Alav ha'Re'ayah" and the Sho'el does not have to pay in the event of an Ones.
This question has other important ramifications.
(a) The MACHANEH EFRAIM (Hilchos She'eilah #3; see also Insights to Bava Metzia 95:2) and the KETZOS HA'CHOSHEN (72:34) cite the RAN (in a Teshuvah) who writes that a person who borrows a Sefer is not obligated to pay if the Sefer is destroyed in an Ones. The Ran explains that this case of She'eilah differs from a normal case of She'eilah. In a normal case of She'eilah, a Sho'el is obligated for Onsin because he is the sole beneficiary ("Kol ha'Hana'ah Shelo"). A person who borrows a Sefer, however, is not the sole beneficiary of the She'eilah; the lender also benefits when he loans a Sefer since he does a Mitzvah by enabling someone else to learn with his Sefer, and thus he is exempt from Tzedakah at that moment because of the rule of "Perutah d'Rav Yosef." (The Machaneh Efraim questions whether the exemption of "Perutah d'Rav Yosef" would apply in such a case.)
The Machaneh Efraim and Ketzos ha'Choshen give a different reason for why the Sho'el should be exempt from Onsin. The fact that the lender benefits from the Mitzvah that he does is not a reason to exempt the Sho'el, because there is a principle that "Mitzvos Lav Leihanos Nitnu," Mitzvos were not given for the benefit derived from them, and any benefit is not considered Hana'ah. Thus, the lender is not considered as though he benefits from the She'eilah. However, the same principle dictates that when the Sho'el learns from the Sefer, the Mitzvah that he does is not considered Hana'ah. Hence, this type of She'eilah is identical to the case discussed by the Gemara here, in which the Sho'el receives no benefit from the actual object itself, although he does receive indirect monetary benefit from the object (in that he is exempt from giving a Perutah to a poor person while he is using the object). Since the Gemara leaves this question unanswered, the Halachah follows the rule of "ha'Motzi me'Chaveiro Alav ha'Re'ayah," and thus the lender cannot demand that the Sho'el pay for an Ones.
(b) The NESIVOS HA'MISHPAT (72:17) challenges the Ketzos ha'Choshen's assertion that the case of a borrowed Sefer is similar to the case of one who borrows an item in order to appear wealthy. The TAZ (YD 221:43) writes that the principle that "Mitzvos Lav Leihanos Nitnu" does not apply to the Mitzvah of learning Torah. The Torah gladdens man's heart and gives him pleasure. The Taz explains that since one experiences pleasure from learning Torah, he may not lend a Sefer to someone whom he has prohibited, with a Neder, from benefiting from his property. If he would lend a Sefer to such a person, the borrower would receive Hana'ah from the Madir, which is forbidden. Similarly, the pleasure that the borrower derives from learning with the Sefer certainly should be considered Hana'ah and he should be obligated for Onsin (if not for the reason of the Ran).
The Ketzos ha'Choshen responds (in MESHOVEV NESIVOS) that although the words of the Taz present a difficulty to his approach, his approach is supported by the words of the HAGAHOS MAIMONIYOS (cited by the BEIS YOSEF YD 221). The Hagahos Maimoniyos gives a different reason for why, in the case of a Neder, one may not lend a Sefer to a person who is prohibited to receive Hana'ah from him. The Hagahos Maimoniyos explains that since the owner of the Sefer would be able to rent out the Sefer in exchange for money, when he lends it for free the borrower benefits by saving the money he otherwise would have had to pay in order to rent the Sefer. That is why the Madir may not lend a Sefer to the Mudar, even though "Mitzvos Lav Leihanos Nitnu" and the learning itself is not considered Hana'ah. (However, the view of the Taz is supported by the words of RABEINU AVRAHAM MIN HA'HAR in Nedarim (48a) who rules that the pleasure of learning Torah is considered Hana'ah. See Insights to Nedarim 48:1 for a discussion of whether the principle of "Mitzvos Lav Leihanos Nitnu" applies to learning Torah.)
(c) The OR SAME'ACH (Hilchos She'eilah 7:4) challenges the assertion of the Machaneh Efraim and the Ketzos ha'Choshen in a different way. He argues that borrowing a Sefer is not comparable to borrowing an item in order to appear wealthy. In general, the Torah obligates a Sho'el to pay for Onsin because the Sho'el becomes the "owner" (temporarily) of the item that he borrows, since it enters his possession and the original owner loses his right to use it. Just as the real owner would have to suffer the loss if an Ones occurred to his object, so, too, the Sho'el must suffer any loss caused by an Ones.
Consequently, when a Sho'el borrows an item merely in order to be seen with it, he is not considered the full owner (even temporarily) of the item since he did not borrow it in order to use it. The Hana'ah which he gets is not from the actual usage of the item, and thus he is not using it in the manner of an owner. Therefore, the Gemara has a doubt in such a case as to whether the Sho'el has the status of a normal, full-fledged Sho'el.
In contrast, when one borrows a Sefer in order to learn from it, he uses the Sefer in the way that a Sefer is intended to be used (when a person buys a Sefer, that is the purpose for which he buys it). Hence, this Sho'el is like the "owner" of the Sefer while it is in his possession; he uses the Sefer in the same way that its real owner would use it. (I. Alsheich)
3) TRANSGRESSING "ME'ILAH" BY MERELY INHERITING PROPERTY
QUESTION: The Halachah is that when a married woman inherits property her husband obtains control over it. Rami bar Chama asks: When a married woman inherits property that was sanctified as Hekdesh but the woman and her husband are unaware that it is Hekdesh, who transgresses the Isur of Me'ilah when the property enters the domain of the husband? Rava challenges Rami bar Chama's question and asserts that no one could possibly be Chayav for Me'ilah. The husband cannot be Chayav, because he wants to acquire only permitted property from his wife's inheritance, and had he known that this property was Hekdesh he would not have agreed to acquire it. Likewise, the wife could not be Chayav, because she also did not want to be Makneh to her husband property that was forbidden. The Gemara concludes that the husband will transgress Me'ilah, not when he receives the property but only when he uses or spends it (as is the case of any person who unintentionally spends money of Hekdesh and thereby causes it to leave the domain of Hekdesh).
The TALMID RABEINU PERETZ (cited by the Shitah Mekubetzes) asks that the same question should be asked regarding every case of Me'ilah. Every case of Me'ilah involves a person who accidentally makes personal use of Hekdesh. Clearly, if the person would have known that the item or money was Hekdesh, he never would have acquired it for himself. According to Rava's reasoning, how can anyone ever be Chayav for Me'ilah?
ANSWER: The TALMID RABEINU PERETZ answers that the Gemara's case is not comparable to a normal case of Me'ilah with Hekdesh. In a normal case, even though the person is not aware that the money he spends is money of Hekdesh, he is aware of the action that he does with the money; he has full intention to spend the money and take it out of its present domain. In the Gemara's case, however, not only does the husband not know that the item is Hekdesh, but he also has no intention to remove it from its present domain. Even when he physically takes the money, he thinks that it already belongs to him and he does not intend to acquire it with that action. Therefore, the Gemara asks that he should not be Chayav for Me'ilah. (I. Alsheich)