A SHOMER WHO INCITED A THIEF
Question (Abaye): If the shepherd taunted the thief, telling him that a certain place is protected by so many people, dogs, and slingshots, and the thief stole from there, what is the law?
Answer (Rava): That is like taking the flock to a place where wild animals are found. (He is liable for inciting the thief.)
STIPULATIONS OF LIABILITY
(Mishnah): A Shomer Chinam may stipulate to be exempt from swearing. A borrower may stipulate to be exempt from paying. A Shomer Sachar or renter may stipulate to be exempt from swearing or paying;
Any Tanai contrary to Torah is void. Any Tanai in which the Ma'aseh (the event governed by the Tanai) precedes the Tanai, the Tanai is void;
Any Tanai that can be fulfilled is valid.
(Gemara) Question: Why are the Shomrim's Tanayim valid? They are contrary to Torah. They should be void!
Answer #1: Our Mishnah is R. Yehudah, who says that a monetary Tanai contrary to Torah is valid.
(Beraisa - R. Meir): If one was Mekadesh a woman 'on condition that you have no claim against me for food, clothing or Onah (Bi'ah at regular intervals)', she is Mekudeshes, and the Tanai is void;
R. Yehudah says, monetary Tanayim (food and clothing) are valid.
Question: The Seifa proves that our Mishnah is not R. Yehudah!
(Mishnah): Any Tanai contrary to Torah is void.
This is like R. Meir!
Answer: Really, it is R. Yehudah. The Mishnah discusses a non-monetary Tanai.
Objection (Seifa): If a Tanai follows the Ma'aseh, the Tanai is void.
This is like R. Meir!
(Beraisa - Aba Chalifta citing R. Meir): If the Tanai precedes the Ma'aseh, the Tanai is valid. If not, it is void.
Answer #2 (to Question (c)): Really, our Mishnah is R. Meir. Here, the Tanai works because the Shomer never obligated himself (to have the full liability of a Shomer. Kidushin is different, for there is no such thing as partial Kidushin.)
(Beraisa): A Shomer Sachar can stipulate to be like a borrower.
Question: Is this through mere words?!
Answer #1 (Shmuel): The case is, he made an acquisition for the extra liability.
Answer #2 (R. Yochanan): No acquisition is needed. He obligates himself through the pleasure that he will get a reputation for trustworthiness.
(Mishnah): Any Tanai that can be fulfilled is valid.
(Rav Tavla): Our Mishnah is R. Yehudah ben Teima. Chachamim say that even if a Tanai cannot be fulfilled, it is valid.
(Beraisa): If one divorced on condition 'that you will go up to the sky' or 'that you will descend to the depth (of the ocean)' or 'that you will swallow a reed of 100 Amos', or 'you will cross the ocean on foot', if she fulfills the Tanai (e.g. through using a Name of Hash-m) she is divorced. If not, she is not divorced.
R. Yehudah ben Teima says, such a Get is valid;
R. Yehudah ben Teima says, the general rule is: if a Tanai cannot be fulfilled, it is just meant to tease. It is not a Tanai.
(Rav Nachman): The Halachah follows R. Yehudah ben Teima.
Support (Rav Nachman bar Yitzchak - Seifa): Any Tanai that can be fulfilled is valid.
Inference: Any Tanai that cannot be fulfilled is void. (Tosfos - one might have thought that the Seifa explains the Reisha: a Tanai contrary to Torah is invalid because it cannot be fulfilled. Rav Nachman bar Yitzchak teaches that this is not so. 'Any Tanai that can be fulfilled...' connotes that this is a new Halachah.)
(Mishnah): If Reuven borrowed Shimon's cow and at the same time asked or hired Shimon to work for him, or if he asked or hired Shimon to work and later borrowed it, and the cow died, Reuven is exempt - "Im Ba'alav Imo Lo Yeshalem";
If he borrowed Shimon's cow and later asked or hired Shimon to work for him and the cow died, he is liable - "Ba'alav Ein Imo Shalem Yeshalem."
(Gemara) Inference: The middle clause says 'and later borrowed the cow.' This implies that the Reisha, which says 'at the same time', means precisely at the same time.
Question: How is this possible? Shimon is hired as soon as Reuven asks, but the cow is not borrowed until Reuven does Meshichah (takes it to his premises)!
Answer #1: The cow was already in Reuven's Chatzer, so no Meshichah is needed.
Answer #2: Reuven asked Shimon to begin working for him when he does Meshichah.
LIABILITIES OF THE SHOMRIM
(Mishnah): There are four kinds of Shomrim: a Shomer Chinam, a borrower, a Shomer Sachar, and a renter:
A Shomer Chinam swears and is exempt for any loss; a borrower pays for any loss;
A Shomer Sachar or renter swears if it was broken, taken captive or died, and pays if it was stolen or lost.
Question: What is the source of this?
Answer (Beraisa): The first Parshah (of Shomrim in the Torah) discusses a Shomer Chinam, the second discusses a Shomer Sachar, and the third discusses a borrower.
Question: Granted, the third explicitly says "when one will borrow." However, perhaps the first Parshah discusses a Shomer Sachar, and the second discusses a Shomer Chinam!
Answer: Presumably, the second is a Shomer Sachar, for he is liable for theft or loss.
Question: Just the contrary! The first has greater liability. He pays Kefel (double) if he claims that it was stolen (and really, he stole it himself)!
Answer: It is more stringent to pay principal for theft, than to swear and be exempt (and pay Kefel if he stole it himself).
Support: A borrower gets free benefit (presumably, he should be most liable), and he never pays Kefel!
Question: His benefit is not free. He must feed the animal!
Answer #1: The case is, the animal grazes in the swamp. The borrower need not feed it.
Question: The borrower must guard it!
Answer: It is guarded by the guard of the city.
Answer #2: It suffices to say that a borrower gets most of the benefit.
Answer #3: He borrowed Kelim. (He need not feed them, and they are guarded just by being in his house.)
(Mishnah): A Shomer Sachar or renter swears if it was broken, taken captive or died, and pays if it was stolen or lost.
We have an explicit source for theft - "v'Im Ganov Yiganev";
Question: What is the source that he pays if it was lost?
Answer (Beraisa) Suggestion: Perhaps he pays only if it was stolen!
Rejection: The double expression "v'Im Ganov Yiganev" teaches even if it was lost.
This is like the opinion that does not say that (we need not expound the double expression, for) the Torah speaks the way people speak.
Question: According to the opinion that the Torah speaks like people do, how can we answer?
Answer (Chachamim of Eretz Yisrael): We learn from a Kal va'Chomer. Theft is close to Ones, yet he is liable for it. All the more so he is liable if he loses it, for this is close to negligence!
The opinion that the Torah does not speak like people do says that the verse teaches this, even though we could have learned it from a Kal va'Chomer.
(Mishnah): A borrower pays for any loss.
The Torah explicitly obligates if it is broken or dies - "v'Nishbar Oh Mes".
Question: What is the source to obligate if it is captured?
Suggestion: We learn from breakage or death.
Rejection: A person anticipates that such Onesim might happen, but he does not anticipate that it will be captured!
Answer #1: It says "v'Nishbar Oh Mes" regarding a borrower and regarding a Shomer Sachar. Just like being captured has the same law as breakage or death for a Shomer Sachar (he is exempt for either), also for a borrower (he is liable for either).
Objection: We cannot learn from a Shomer Sachar, who is exempt, that a borrower is liable! (Perhaps the Torah never obligates for being captured.)
Answer #2 (Beraisa - R. Nasan): "Oh" includes being captured.
Question: We need "Oh" to separate! One might have thought that he is liable only if it breaks and dies. "Oh" teaches that this is not so
This is not difficult for R. Yonason, but according to R. Yoshiyah, how can we answer?
(Beraisa - R. Yoshiyah): "If a man will curse Es Aviv v'Es Imo" teaches only if he curses both;
"Aviv v'Imo Kilel" includes even if he cursed only one of them.
R. Yonason says, the prefix 'Vov' connotes even one, unless the Torah explicitly says 'together' (like it does regarding Kilayim).