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)

WHO AUTHORED OUR MISHNAH?

(a)

Question: If it is R. Yishmael, why does it say that he did not designate a place? The same applies even if he designated (he need not inform him)!

(b)

Answer: The Mishnah teaches a bigger Chidush. He need not inform him, not only if he designated a place, for then he returned it to its place, but even if he did not designate a place.

(c)

Question (Seifa): If Reuven designated where it should be kept, whether it broke while he was holding it or after he put it down, if he picked it up to use it, he is liable. If it was for its sake, he is exempt.

1.

This is like R. Akiva, who obligates telling the owner!

2.

Question: If it is R. Akiva, why does it say that he designated a place? The same applies to even if he did not (he must inform him)!

3.

Answer: The Mishnah teaches a bigger Chidush. He must inform him, not only if he did not designate a place, for then it is not returned to its place, but even if he designated a place.

(d)

Question: Is the Reisha like R. Yishmael and the Seifa like R. Akiva?!

(e)

Answer #1: Yes!

1.

(R. Yochanan): If someone can explain this Mishnah like one Tana, I will carry his clothes to the bathhouse!

(f)

Answer #2 (R. Yakov bar Aba): The case is, Shimon picked it up to steal it. (Answers 2-4 will be explained later.)

(g)

Answer #3 (R. Nasan bar Aba): The case is, Shimon picked it up to be Shole'ach Yad (to take some for himself).

1.

Question: What do R. Yakov and R. Nasan argue about?

2.

Answer: They argue about whether Shelichus Yad requires Chisaron (it applies only if the deposit was diminished).

i.

R. Yakov holds that Shelichus Yad requires Chisaron, therefore, he established the Mishnah to be when he intended to steal it;

ii.

R. Nasan says that Shelichus Yad does not require Chisaron, so he establishes the Mishnah to be when he was Shole'ach Yad.

(h)

Objection (Rav Sheshes): The Mishnah does not say that he took it (which would connote, for himself), rather he moved it!

(i)

Answer #4 (Rav Sheshes): The case is, Shimon moved it (to use it in place of a ladder) in order to bring chicks (from a high nest);

1.

Rav Sheshes says that one who borrows without permission is considered a Gazlan (robber).

(j)

R. Yakov, R. Nasan and Rav Sheshes all say that the entire Mishnah is R. Yishmael. In the Seifa, he did not put it down in the designated place.

1.

R. Yochanan did not answer this way, for 'put it down' connotes in its place.

2)

DOES SHELICHUS YAD REQUIRE CHISARON?

(a)

(Rav or Levi): Shelichus Yad requires Chisaron;

(b)

(The other of Rav and Levi): It does not require Chisaron.

(c)

The following shows that Rav says that it does not require Chisaron.

1.

(Beraisa): If a shepherd was grazing his flock, and left it and went to the city, and a wolf or lion killed some of the flock, he is exempt;

2.

If he had left his staff or bag on the killed animal, he is liable.

3.

Question: Even if that is considered Shelichus Yad, when he took back his staff or bag, he returned the animal! (We assume that the Stam Beraisa is like R. Yishmael, the Tana of our Stam Mishnah.)

4.

Answer (Rav): The case is, the animal was killed when the staff or bag was still on it.

5.

Question: Even if it was still on it, he never did Meshichah (taking to one's premises, so Shelichus Yad does not apply)!

6.

Answer (Rav): Hikishah (he hit it) with his staff and it ran in front of him (a form of Meshichah).

7.

Conclusion: There was no Chisaron! This shows that Rav says that Shelichus Yad does not require Chisaron.

(d)

Rejection: Rav said that Hichchishah (he weakened it) with his staff. This is Shelichus Yad only because there is Chisaron!

(e)

Support: He mentioned hitting it with a staff to show that it was a harsh blow.

(f)

Conclusion: Levi holds that Shelichus Yad does not require Chisaron.

(g)

Question: What is Levi's reason?

(h)

Answer #1 (R. Yochanan citing R. Yosi ben Nehorai): The Shelichus Yad written regarding a Shomer Sachar is unlike that written regarding a Shomer Chinam.

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

(i)

(R. Yochanan himself): It is not different.

1.

R. Yosi says, there was no need to mention Shelichus Yad regarding a Shomer Sachar. We may learn from a Kal va'Chomer from a Shomer Chinam!

i.

A Shomer Chinam is exempt for theft or loss, but if he was Shole'ach Yad, he is liable. A Shomer Sachar is liable for theft or loss. All the more so, he is liable if he was Shole'ach Yad!

ii.

It was written superfluously to teach that Shelichus Yad does not require Chisaron.

2.

R. Yochanan says, it is not different, like R. Elazar, who says 'they are the same.'

3.

Question: What does that mean?

4.

Answer: We cannot learn from the Kal va'Chomer, because there is a stringency of a Shomer Chinam. He pays Kefel if he claims that it was stolen (and really, he stole it himself);

i.

Therefore, the Torah needed to write both. Each teaches only about itself.

5.

R. Yosi learns from the Kal va'Chomer. He holds that paying principal (i.e. a Shomer Sachar who claims that it was stolen) without an option to swear (and be exempt) is more stringent than (a Shomer Chinam, who can exempt himself through) an oath that might lead to Kefel.

(j)

Answer #2 (Rava): There was no need to mention unauthorized usage regarding a Shomer Sachar nor regarding a Shomer Chinam. We can learn from a borrower.

1.

A borrower uses it with the owner's permission, yet he is liable for Ones. All the more so, a Shomer Chinam or Shomer Sachar, who uses it without permission, is liable for Ones!

2.

It was written superfluously (regarding one of these two Shomrim) to teach that Shelichus Yad does not require Chisaron.

3.

It was written regarding the other, lest we apply the principal of Dayo;

i.

One might have thought that just like a borrower is exempt if the lender was working for him, Shelichus Yad is no more stringent. The extra verse teaches that this is not so (it is liable even then).

(k)

Question: One opinion holds that Shelichus Yad requires Chisaron. What does he learn from these two verses?

(l)

Answer: One teaches that we do not say Dayo (like above). The other teaches like the following.

1.

(Beraisa): "V'Nikrav Ba'al ha'Bayis (the Shomer Chinam will come close)" - to swear.

2.

Suggestion: Perhaps he comes for judgment, but not to swear!

3.

Rejection: The Torah writes Shelichus Yad regarding a Shomer Chinam and regarding a Shomer Sachar. Just like the latter Parshah (a Shomer Sachar) discusses an oath, also the former (he pays Kefel only if he swore that it was stolen).

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