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BAVA METZIA 94 (7 Av) - Dedicated in memory of Dr. Simcha Bekelnitzky (Simcha Gedalya ben Shraga Feibush) of Queens, N.Y., by his wife and daughters to honor his twelfth Yahrzeit. G-d-fearing and knowledgeable, Simcha was well known in the community for his Chesed and Tzedakah. He will long be remembered.
If a shepherd insults and incites an armed bandit and as a result of the incitement the bandit robs the animals the shepherd is Chayav. (1)
A Shomer Chinam may make a condition to be Patur from a Shevu'ah and a Sho'el may make a condition to be Patur from paying and a Shomer Sachar and a Socher may make a condition to be Patur from Geneivah and Aveidah. (2)
Anyone who makes a condition against what is written in the Torah the condition is void. (3)
If someone is Mekadesh a woman on condition that he is not obligated in She'er Kesus and Onah the Kidushin is valid and the condition is void according to R. Meir.
R. Yehudah holds that the conditions regarding She'er and Ksus are valid since they are monetary condition. (4)
R. Meir says that a condition is valid only if was stated before the Ma'aseh, but if the Ma'aseh was stated first the condition is not valid.
A Shomer Sachar may make a condition to be like a Sho'el and to be Chayav in Onsim. (5)
If someone gives a Get to his wife on condition that she ascends to the sky, or descends to the depth, or on condition that she swallows a reed of 100 Amah or crosses the Mediterranean by foot according to the Tana Kama the Get is only valid if she fulfills the condition.
R. Yehudah Ben Teima says that the Get is valid even though it is impossible to fulfill the condition because of the Klal that any time a person makes a condition which is impossible to be fulfilled his words were meant to be sarcastic and were not meant to be a valid condition.
If someone borrows a cow and he also borrows or rents the services of the owner along with the cow, or he borrows or rents the services of the owner and than he borrows the cow if the cow dies he is Patur. (6)
If someone borrows a cow and afterwards he borrows or rents the services of the owner if the cow dies the Sho'el is Chayav. (7)
It is a Machlokes if a double Lashon in the Pasuk is meant for a Derashah or if the Torah speaks in the manner that people speak and it is not meant for a Derashah.
Geneivah is close to being an Ones and Aveidah is close to being a Peshi'ah.
A Sho'el is Chayav for all Onsim including Shevuyah even though it is an Ones that could not have been anticipated.
A BIT MORE
1. The shepherd is Chayav because it is akin to a Shomer bringing the animals to a place where wild animals are found.
2. Even though it is a condition against the Torah the condition is valid even according to R. Meir because the Shomer was only willing to take on the Shemirah with this condition and at the time he committed himself for the Shemirah and he did Meshichah he had already stated that he is only a Shomer on this condition.
3. A condition against the Torah is void and the Ma'aseh that was linked to the condition is valid even if the condition was not fulfilled, however according to R. Yehudah if the condition was monetary it is valid even though it is against the Torah.
4. However, the condition regarding Onah is not monetary and therefore the condition is void since it is a condition against the Torah.
5. Shmuel says that the Shomer Sachar only has the Din of a Sho'el if he makes a Kinyan otherwise it is merely words and a person is not committed with mere words, while R. Yochanan says that as a result of the fact that there is a Kol that he is a trustworthy person he completely commits himself to be Chayav for Onsim even without a Kinyan.
6. If someone borrows the item and the owner is with him in the Melachah he is Patur.
7. Even though the owner was with in the Melachah at the time of the Ones since he was not with him at the time he borrowed the cow he is Chayav.
ILL ADVISED INCITEMENT
If a shepherd insults and incites an armed bandit and as a result of the incitement the bandit robs the animals the Shomer is Chayav. The Maharik says even if the intention of the Shomer was good and he wanted to scare off the bandit he is Chayav because a Shomer Sachar is Chayav of he causes damage with his words. However, he is only Chayav if the bandit only stole the animal because of the incitement of the Shomer and without the incitement he would not have stolen the animals. The Ketzos ha'Choshen explains that according to the Maharik only a Shomer Sachar is Chayav even though his intention was good but a Shomer Chinam is Patur if his intention was good and he meant to scare off the bandits even though his incitement is what caused the bandit to steal the animals.
A SHOMER CHINAM
A Stam Shomer Chinam is only Chayav for negligence but if he made a condition to be Chayav also for Onsim he is Chayav with mere words even without a Kinyan. (Shulchan Aruch CM 291:27)
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