ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Bava Metzia 34
(a) We just cited Rami bar Chama's Kashya on our Mishnah, where the owner
grants the Shomer the right to the Kefel, even though it appears to be a
'Davar she'Lo Ba le'Olam', which is not acquirable. Rava initially answers
the Kashya - by explaining that it is not a matter of granting the Shomer
the rights to the Kefel, but of being Makneh him the cow itself, which the
Sho'el acquires retroactively from the time of the Kinyan, should the cow
get stolen and he agrees to pay.
(b) The problem that Rebbi Zeira then has with this is - why the Shomer does
not also take the shearings and the babies retroactively too?
(c) We know that he doesn't - because the Beraisa explicitly says so?
(d) So he amends Rava's answer, adding 'Chutz mi'Gizosehah u'V'ladosehah' -
justifying this distinction by pointing out that it is normal for the owner
to grant the Shomer the external benefits, but not the intrinsic ones.
(a) The second version of Rava's answer is - that the owner is Makneh the
cow to the Shomer, not retroactively, but from the moment before it is
(b) Beside the fact that it dispenses with Rebbi Zeira's Kashya, the other
difference between the two versions is - if at that crucial moment, the
animal is standing in a public meadow, in which case the Shomer will not
(c) The initial Meshichah that he made when receiving to cow for
safeguarding is not good enough - because we have already learned in Kesuvos
that a Kinyan that is made either takes now or not at all.
(a) Rebbi Chiya bar Aba quoting Rebbi Yochanan teaches us - that it is not
necessary for the Shomer to actually pay, in order to acquire the Kefel. If
he declares willingness to pay, but, before he has a chance to do so, the
Ganav is found - it will suffice.
(b) The Reisha of our Mishnah 'Shalom ve'Lo Ratzah Lishava ... ' is not a
proof that he has to actually pay - because the Seifa 'Nishba ve'Lo Ratzah
Le'shalem ... ' implies the exact opposite. So we decline to extrapolate
(c) The Beraisa says that a Socher who admits that the Pikadon was stolen
(and who therefore has to pay) rather than swear that an O'nes happened -
receives the Kefel (corroborates Rebbi Yochanan).
(a) Rav Papa says that ...
1. ... a Shomer Chinam who admits that he was negligent - receives the
Kefel, since he could have claimed that the Pikadon was stolen.
(b) The owner does not grant the Sho'el the Kefel, since he could have
claimed 'Meisah Machmas Melachah' (that it died naturally due to regular
work) - because this is an unusual argument to present (so, as far as the
owner is concerned, it is not an argument that the Sho'el might think of
claimong, and he does not feel grateful to the Sho'el for not presenting
2. ... a Shomer Sachar who admits that the Pikadon was stolen - receives the
Kefel, because he could have claimed that it died an accidental death.
3. ... a Sho'el who offers to pay - does not receive the Kefel, since there
is no alternative claim by which he could have exempted himself from paying.
(c) In the second Lashon, Rav Papa says - that the Sho'el receives the Kefel
in this last case, too.
(d) Rav Z'vid, quoting Abaye disagrees. He holds that the owner does not
grant a Sho'el the Kefel until he has actually paid - due to the fact that
the Sho'el already has all the benefits, whereas he (the owner) gains
(a) We prove from the Beraisa which states 'ha'Sho'el Parah me'Chaveiro
ve'Nignevah, ve'Kidam ha'Sho'el ve'Shilem ve' ... Nimtza ha'Ganav, Meshalem
... Kefel le'Sho'el' - that it is only if the Sho'el has actually paid that
the owner grants him the Kefel (like Rav Z'vid).
(b) This Beraisa certainly poses no problem with the first Lashon of Rav
Papa (see Tosfos DH 'le'Lishna'). The problem with the second Lashon is -
that Rav Papa grants the Sho'el the Kefel. whereas the Beraisa says 'Kidem
(c) We refute the suggestion that ...
1. ... just like our Mishnah says 'Shalom', yet we interpret it to mean
'Amar', so too can we interpret the Beraisa in the same way - on the grounds
that since the Beraisa changes from the Lashon of our Mishnah adding
've'Kidem', it implies that the Sho'el actually has to pay before the owner
will grant him the Kefel.
2. ... the change in Lashon does not prove anything, since the Beraisos may
have been learned by two different Tana'im (one of whom uses the Lashon
'Shalom', the other 'Kidem ve'Shilem' - on the grounds that the Chachamim in
the Batei Medrash of Rebbi Chiya and Rebbi Oshaya (the greatest authorities
on Beraisos) both testified that the Beraisa was learned together with our
(a) The Halachah in the case of a Shomer who first denies liability, and
then admits that he is Chayav is clear-cut - he receives the Kefel (since he
has undoubtedly retracted from his original stance).
(b) In the reverse case however, we think that he might receive the Kefel
even though he currently denies liability - because of the possibility that
he really abides by his initial admission, and is only stalling for time
(until he obtains money with which to pay).
(c) We ask whether, if, after the Shomer admitted that he is Chayav, he dies
and his sons deny liability - they mean to retract or whether, they are only
stalling for time. This She'eilah only makes sense if, in the previous one
we assume that he is only stalling for time.
(d) On the assumption that the sons really mean to retract - we ask whether
the owner is willing to grant them the Kefel if they actually paid, bearing
in mind that they are not the ones who did him the favor of looking after
(a) In a case where the owner died, and the Shomer paid (or agreed to pay)
his sons, we ask - whether the sons are willing to pay the Kefel to the
Shomer who, when all's said and done did not do *them* any favors.
(b) Assuming that, in these two cases, the owner or his son is Makneh the
Kefel (where at least a favor was performed either by the Shomer's father to
the owner, or by the Shomer to the current owner's father - whether the sons
will also be Makneh the Kefel to the sons (seeing as the one did not perform
any favors and the other did not receive any).
(c) We ask whether, if a Sho'el paid half the animal, he receives half the
Kefel. When we then go on to ask what the Din will be if he paid for one of
two animals - we assume that in the previous case, the owner would not be
Makneh the Kefel, because he did not receive payment for a complete article.
(d) We then ask whether, if ...
1. ... a Sho'el paid to one of the joint owners his half - he receives half
the Kefel, seeing as he paid that owner in full; or whether he only receives
the Kefel when he pays for the entire object.
2. ... one of the joint borrowers paid the owner for his half - he receives
half the Kefel, seeing as he paid for his full portion; or whether he only
receives the Kefel when he has paid for the object in full.
(a) Finally, we ask what the Din will be if someone borrowed a cow of
Nichsei Milug from a woman from her husband and pays the husband, or if a
woman borrowed a cow to plow her Nichsei Milug and her husband pays. The ...
1. ... first She'eilah is - whether or not, he receives the Kefel if the
Ganav is found - seeing as, on the one hand, the Keren does not belong to
the husband, it is not considered a proper payment (see Tosfos and Shitah
Mekubetzes); whereas on the other, since Chazal placed a woman's property in
the charge of her husband, it is as if he was the owner.
(b) The outcome of all these She'eilos is - Teiku ('Tishbi Yetaretz Kushyos
2. ... second She'eilah is - whether the husband paying is as if his wife
(a) In all of the above cases where the Shomer volunteers to pay - Rav Huna
obligates him to swear that he doesn't have the object in his possession,
because we suspect that he may have taken a fancy to it (and doesn't mind
(b) In a case where the creditor loses the security he received against the
loan and claims that the loan was a Sela, and the security was worth a
Shekel (half a Sela), if the debtor counters that it was worth ...
1. ... a Sela, and that he therefore owes him nothing - the Beraisa rules
that debtor is Patur from a Shevu'ah.
(c) And in a case where the debtor claims that the security was worth two
Sela'im (in which case it is the creditor who owes him a Sela), and the
creditor counters that it was worth only ...
2. ... three Dinrim and he owes him one Dinar - the Beraisa rules that he is
Chayav a Shevu'ah.
1. ... one, and that they are quits - the Tana rules that the creditor is
(d) This Tana considers a creditor vis-a-vis the security - to be a Shomer
Sachar (who is Chayav for Geneivah va'Aveidah).
2. ... five Dinrim and that he therefore owes him only one Dinar - he rules
that he pays him the Dinar and swears on the rest.
(a) The Beraisa concludes that it is the creditor who swears how much the
security is worth, and not the debtor - to eliminate the possibility of the
debtor swearing, and the creditor producing the security to prove that he
(b) This final statement cannot refer to the (Seifa of the) Seifa - because
there it is the creditor who is denying the debtor's claim and who is
therefore the one to have to swear anyway.
(c) It therefore refers to the Reisha (the Seifa of the Reisha to be
(d) This poses a Kashya on Rav Huna - who has just ruled that the creditor
has to swear that the security is not in his possession (so how can he
possibly produce it)?