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BAVA KAMA 118 (1 Iyar) - Dedicated by Ari Friedman and family of Lawrence, N.Y., l'Iluy Nishmas Ari's father, Reb Yakov Yosef ben Rav Nosson Neta Z'L Friedman in honor of his third Yahrzeit. Jack Friedman exemplified true Ahavas Yisrael and Ahavas Chesed; may he be a Melitz Yosher for his children and grandchildren and for all of Klal Israel.
If someone steals, borrows or accepts a Pikadon from his friend in a settled place he may not return it in a desert.
If someone gives a Pikadon to his friend and notifies him he is going to the desert and the Shomer says I am also going to the desert if you want I will return it to you there, the Shomer has the right to return it to him in the desert.
A lender may claim a loan from the borrower anywhere but a Gezeilah and an Aveidah may only be claimed in the place where the Nigzal or Shomer lives.
If someone tells his friend I stole from you, or you lend me money, or you gave ne a Pikadon and I don't know if I returned it he is Chayav.
If he says I don't know if I stole from you or if you lent me money or if you gave me a Pikadon he is Patur. (1)
If someone claims that his friend owes him money and his friend says that he doesn't know R. Huna and R. Yehudah hold that he is Chayav because a claim that is certain wins over an uncertain claim.
R. Nachman and R. Yochanan hold that he is Patur because the money shall remain in the Chazakah of the person who is in possession of it. (2)
R. Yochanan agrees that to be Yotzei b'Yedei Shamayim he must pay him the Manah.
If someone steals a lamb from his friend's flock and he subsequently returns it to the flock Rav says if his friend is aware that it is stolen he must notify him that he returned it and if not he is Chayav if it is dies or it stolen.
If his friend is not aware that it was stolen and he returned it to the flock and the owner counted the sheep and found them to be complete he is Patur if the sheep dies or is stolen.
If the stolen sheep is spotted or striped it is sufficient to return it to the flock in the desert and he is Patur even if it wasn't counted because the sheep is immediately recognized by the shepherd.
Shmuel says that even if the owner is aware that it was stolen and he returned it to the flock without notifying him and the owner counted the sheep and found them to be complete he is Patur if the sheep dies or is stolen.
R. Yochanan agrees with Shmuel that if the owner was aware that it was stolen it is not necessary to notify the owner that he returned it as long as the owner counted the sheep.
However, R. Yochanan holds that if the owner wasn't aware that it was stolen and he returned it to the flock even if the owner didn't count the sheep he is Patur if it dies or is stolen. (3)
R. Chisda holds that if the owner was aware that it was stolen and he returned it he is Patur if the owner counted them, but if he wasn't aware that it was stolen he is only Patur if he notified the owner. (4)
If someone steals a sheep from a flock or a coin from a purse it is sufficient to return it to the place that it was stolen from according to R. Yishmael.
R. Akiva says the owner must be notified that it was returned.
Rava says the Machlokes between R. Yishmael and R. Akiva is in a case that a Shomer stole it; R. Akiva holds that since the Shomer stole it he no longer has a Din of a Shomer and therefore he must notify the owner that he returned it. (5)
R. Yishmael holds that he even though he stole it he still has a Din of a Shomer and it is sufficient that he returns the object to its previous place since the Shomer knows that it is returned.
If a person steals money from his friend and he returns it by way of slipping extra money while paying for a purchase it is a Machlokes Tana'im if he is Yotzei the Mitzvah of Hashavas ha'Gezeilah. (6)
It is forbidden to buy wool, milk, or goats from shepherds and it is forbidden to buy wood or fruit from people who guard fruit, however it is permitted to buy sewn garments from shepherds. (7)
It is permitted to buy from women woolen clothing in Yehudah and linen clothing in Galil and it is permitted to buy calves in the Sharon and it is permitted to buy eggs or roosters anywhere, however if they instruct you to hide it one may not buy from them. (8)
It is permitted to buy four or five sheep or sheerings from shepherds but not two sheep or two sheerings, R. Yehudah says if the sheep graze close to home one may even buy two sheep or sheerings. (9)
It is permitted to buy three healthy sheep from shepherds, but if the sheep are weak it forbidden to buy less than four.
A BIT MORE
1. According to R. Huna and R. Yehudah he is only Patur if he made the admission on his own initiative and his friend never made a claim, however R. Nachman and R. Yochanan hold that he is Patur even if his friend made a claim, however he must swear a Shevu'ah Heses that he is saying the truth and he really doesn't remember.
2. However, he must swear that he really doesn't know if he is Chayav.
3. Shmuel holds that even if the owner wasn't aware that it was stolen he is only Patur if the owner counted them and found them to be complete.
4. Rava says that the reason why R. Chisda is more stringent if the owner is not aware if it is stolen is because once a sheep is taken away from the flock it is more likely to stray from the flock in the future and it needs to be watched more carefully and therefore the owner needs to be notified that it was stolen and has now been returned.
5. Even though the owner is unaware that it was stolen he must notify him that he returned it because he holds like R. Chisda who says that when the owner is not aware that it is stolen he must be notified that it was returned.
6. According to one Lashon everyone agrees with R. Yitzchak that a person is constantly checking his purse to ensure that he has his money and the Machlokes is if it is sufficient to return an item if the owner counted and knows that it is returned or if it is necessary to notify him, according to the second Lashon everyone agrees that it is sufficient if the owner counted it but the Machlokes is if R. Yitzchak is correct that a person is constantly checking his purse. According to the third Lashon everyone agrees with R. Yitzchak and everyone agrees that it is sufficient if the owner counted it and the Tana who says he is Yotzei is referring to a case that he counted the money and put it in the pocket of the owner and the Tana who says he is not Yotzei is referring to a case that he counted the money and put it in the hand of the owner or Alternatively, in both cases he put the money in the pocket of the owner however in one case the owner had no other money in his pocket and therefore he was aware that the stolen money was returned and in the other case he had other money in his pocket.
7. We are concerned for the possibility that the shepherds stole these items from the owner, however sewn garment may be purchased from them because even if they are made from stolen wool the shepherds are Koneh with a Shinuy.
8. Sharon is a place where people raise calves and the calves are inexpensive and the shepherds buy the calves from their own money and therefore since we assume the calves are the personal property of the shepherds it is permitted to buy it from them.
9. R. Chisda says that it is permitted to buy four sheep from a small flock but from a big flock one may not buy less than five. According to the second Lashon R. Chisda says one may buy four sheep if the entire flock consists of only five sheep.
UNABLE TO SWEAR
If someone tells his friend I stole from you, or you lend me money, or you gave a Pikadon and I don't know if I returned it he is Chayav. If he says I don't know if I stole from you or if you lent me money or if you gave me a Pikadon he is Patur, however, he must swear that he really doesn't know if he is Chayav. R. Akiva Eiger asks since if he made a definite claim that he is Patur he must take a Shevu'ah in this case that he is unsure if he is Chayav why don't we say since he is unable to take a Shevu'ah that he must pay instead. R. Akiva Eiger answers that the Shevu'ah that he is Chayav is only a Shevu'as Heses which is a Shevu'ah mid'Rabanan and with respect to a Shevu'ah mid'Rabanan we dint say that someone who is unable to swear must pay.
RETURNING A GEZEILAH
If someone steals from his friend in a settled place and he returns it in the desert he is not Yotzei and if the Nigzal chooses he may refuse to take it until they reach a settlement. However, if he returns it in a settled place even if he doesn't return it to the same place where he stole it from he is Yotzei. (Shulchan Aruch CM 366:4)
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