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BAVA KAMA 108 - dedicated by Rabbi Kornfeld's father in memory of his aunt, Malka Gitel bas Reb Yakov Mordechai (Malvina Marmorstein), who took him into her home and raised him like her own child after the Holocaust. Her Yahrzeit is 20 Nisan.
If a Shomer swears the object he was guarding was stolen and than he swears it was lost and he admits that he stole it and witnesses testify that at the time of the first Shevu'ah it was in his possession he pays Kefel but not an additional fifth. (1)
If a Ganav swears that he did not steal and witnesses testify that he stole he pays Kefel; if he admits on his own he pays the principle plus an additional fifth. (2)
If two people are guarding an animal together and they both swear it was stolen and one admitted that he stole it and than witnesses testify on the other witness that he stole the animal it is a Safek if the one who admitted must pay a fifth. (3)
If a Shomer swears the object that he was guarding was lost and he admits he was lying and than he swears again that it was lost he pays an additional fifth for each Shevu'ah.
If an object that a Shomer Chinam is guarding is stolen and he pays for it and than the Ganav is found the Kefel is paid to the Shomer. (4)
If the Shomer swears that it is stolen and he doesn't pay and subsequently the Ganav is found the Kefel is paid to the owner.
If a Shomer Chinam swears that the object he was guarding was stolen and than he decides to pay and subsequently the Ganav is found the Kefel is paid to the Shomer according to Abaye, while Rava says it is paid to the Shomer. (5)
If a Shomer swears that the object he was guarding was stolen and the Ganav admitted that he stole to the Shomer but he denied it to the owner and than witnesses testified that he stole, if the Shomer swore truthfully the Ganav is Patur from Kefel but if not he is Chayav. (6)
If the object that a Shomer was guarding was stolen and the Shomer paid for it and the Ganav admitted that he stole it to the owner, but he denied it to the Shomer, and than witnesses testified that he stole, it is a Safek if the Ganav is Patur from Kefel. (7)
If a Shomer Chinam was guarding an object and it was stolen and the Ganav was found the Shomer has the choice to swear that it was stolen and he is Patur or he may pay for the object and collect the money from the Ganav according to Abaye.
If he is a Shomer Sachar and it was stolen with an Ones if the Ganav is found he must pay for the object and than he may collect the money from the Ganav. (8)
Rava says that if the Ganav was found even a Shomer Chinam must pay for the object, however if he swore before the Ganav was found he is Patur. (9)
If a Shomer claims that the object he was guarding was lost if witnesses testify that he consumed it he pays the principle, if he admits it he pays an additional fifth.
If the Shomer claims it was stolen and witnesses testify that he stole it himself he pays Kefel, if he admits on his own he pays the principle plus a fifth and he brings a Korban Asham.
If a person steals from his father and swears falsely and than his father dies he must pay the principle plus a fifth to his brothers or the brothers of his father. (10)
If he is unable or doesn't want to pay the entire amount he should borrow moony and his Ba'al Chov may collect the debt from his portion of the inheritance that he gave to his brothers.
If someone makes a Neder that his son may not benefit from him when he dies his son takes a share of the inheritance.
A BIT MORE
1. He doesn't pay an additional fifth because someone who pays Kefel doesn't pay a fifth. Even though the first Shevu'ah is Mechayev him Kefel he is not Chayav a fifth for the second Shevu'ah because the payment of Kefel dismisses him from paying a fifth even if he swore twice.
2. However, if he admits after the witnesses testify he doesn't pay an additional fifth because someone who pays Kefel doesn't pay an additional fifth.
3. A person who pays Kefel doesn't pay a fifth, however in this case he doesn't pay Kefel, only his partner pays Kefel, and it is a Safek in a case that the partner pays Kefel if there is a Chiyuv for the one who admitted to pay a fifth.
4. A Shomer Chinam is Patur with a Shevu'ah if the object he is guarding is stolen, however if he chooses to pay instead of taking a Shevu'ah and subsequently the Ganav is found the Kefel belongs to the Shomer.
5. If the Shomer had chosen to pay without first swearing the Kefel is paid to him, however in this case since he swore before he decided to pay the owner is not Makneh to him the Kefel even though he ended to paying according to Abaye, while Rava holds that since he ended up paying even though he originally swore the owner is Makneh the Kefel to him.
6. if the Shomer swore truthfully he retains his status as a Shomer because if the object is found it is likely that the owner would ask him to continue guarding therefore the object therefore it is his business to try and find the Ganav and consequently when the Ganav admits to him it is a valid admittance and he is Patur from Kefel, however if the Ganav swore falsely and claimed that it died or it was stolen b'Ones he loses his status as a Shomer and therefore it is not his business to find the Ganav and if the Ganav admits to him it is not an admittance and he is not Patur from Kefel.
7. Since the Shomer paid for it the Kefel belongs to him and therefore maybe the admittance of the Ganav to the owner doesn't Patur him from Kefel, or maybe the owner can say to the Shomer just like you did me a favor and paid for it even though you were Patur, I also wanted to do a favor for you and help you retrieve the payment form the Ganav and therefore the admittance of the Ganav to the owner dismisses him from Kefel.
8. Even though a Shomer Sachar is Patur if it was stolen with a Ones however since the Ganav was found he is obligated to pay for the object and than he can collect the money from the Ganav.
9. A Shomer Sachar must pay for the object however, even if he already swore before the Ganav was found.
10. Even though he inherits the property of his father he must pay the entire amount that he stole including the portion that he inherited.
KEFEL AND A FIFTH
Ravina asks if two people are guarding a Shor together and they both swear that it was stolen and one admits and than witness testify if the one who admitted must pay Kefel. Tosfos explains that it is only a Safek if he admitted prior to the testimony of the witnesses, however if the witnesses testify first they are both Chayav Kefel because the witnesses are testifying on both of them and therefore the Chiyuv of a fifth does not apply.
COLLECTING FROM THE GANAV
If a Pikadon was stolen with an Ones and subsequently the Ganav was found both a Shomer Chinam and a Shomer Sachar must take the Ganav to Din and they may not swear. If they already swore before the Ganav was found, a Shomer Chinam may stick with his Shevu'ah or he may take the Ganav to Din, while a Shomer Sachar must take the Ganav to Din. (Shulchan Aruch CM 294:6)
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