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Bava Kama, 63

1) EXCLUDING "AVADIM" FROM THE LAW OF "TASHLUMEI KEFEL"

QUESTION: The Gemara asks why are all of the specific exclusions in the verses of Tashlumei Kefel necessary ("Kol Hani Perati Lamah Li?"). It answers that one "Perat" is necessary to exclude Karka (teaching that one does not pay Tashlumei Kefel for stealing land), one "Perat" is necessary to exclude Avadim, and one "Perat" is necessary to exclude Shtaros.

Since there is a special Mi'ut in the verse excluding Karka, and a special Mi'ut excluding Avadim, from the law of Tashlumei Kefel, why does the Gemara earlier (62b) say that the reason Avadim are excluded is because of the Hekesh that compares Avadim to Karka? Even if there were no such Hekesh, Avadim would still be excluded because of the explicit "Perat" in the verse! (RASHBA)

ANSWER: The RASHBA answers that if the verse would have mentioned "Karka'os," "Avadim," and "Shtaros" explicitly when teaching the exceptions from the law of Tashlumei Kefel, then, indeed, we would have had no need for a Hekesh of Avadim to Karka'os. However, they are *not* written explicitly in the verse. Rather, the exclusions of Karka'os and Shtaros are derived through Mi'utim: one "Perat" teaches that only something that is movable ("Davar ha'Metaltel") is included in Tashlumei Kefel, thus excluding land, which is not movable. Another "Perat" teaches that only something that itself has monetary value ("Gufo Mamon") is included in Tashlumei Kefel, thus excluding Shtaros which have no intrinsic value of their own. How, though, are Avadim excluded? Avadim *are* movable, and they *do* have intrinsic monetary value, and thus they *should* be included in Tashlumei Kefel! Therefore, it is necessary to have a Hekesh that compares Avadim to Karka, for without the Hekesh, we would not have known that the third "Perat" is intended to exclude Avadim.

QUESTION: However, according to this, the opposite question arises. If we only know that Avadim are excluded from Tashlumei Kefel because of the Hekesh to Karka, then why is a special Mi'ut in the verse necessary at all for Avadim? (RASHBA, TOSFOS)

ANSWERS:

(a) The RASHBA answers that since there is a difference between Karka and Avadim, in that Karka is immobile while Avadim are immobile, we might have thought that we should not apply the Hekesh. Therefore, the verse adds a Mi'ut to exclude Avadim from Tashlumei Kefel.

(b) The Rashba answers further that since the verse also teaches a Ribuy (words to *include* an additional category of items in the laws of Tashlumei Kefel) and it might mean that we are to include all items, it was necessary to have a special Mi'ut for each category of items (Karka'os, Avadim, Shtaros) on its own. This is also the answer of TOSFOS (DH v'Chad l'Mi'utei).

The TOSFOS YOM TOV (Bava Metzia 4:9) writes that this explains an oddity in the wording of the Mishnah there, where it lists, "Avadim, Shtaros, and Karka'os," when it should have listed, "Avadim, Karka'os, and Shtaros" (placing Avadim together with Karka'os, since there is a Hekesh that compares them). The reason why the Mishnah separates Avadim from Karka'os is to show that Avadim are excluded on their own accord, by their own special Mi'ut in the verse, and not by virtue of their Hekesh to Karka'os.

OPINIONS: The Gemara teaches that the word "Salmah" ("garment") in the verse (Shemos 22:8) teaches that one does not pay Tashlumei Kefel for an item that is a "Davar she'Eino Mesuyam." What does the Gemara mean by a "Davar she'Eino Mesuyam?"

(a) RASHI explains that a "Davar she'Eino Mesuyam" is an item which has no identifiable feature ("Siman") for the owner to use as proof that the item is his. When a Ganav steals such an item, he is not required to pay Tashlumei Kefel.

TOSFOS challenges this explanation by asking what difference should it make for the law of Tashlumei Kefel whether or not the item has an identifiable feature? What logical reason is there to say that the Ganav should not pay Kefel?

The ME'IRI explains that Rashi means that the verse is referring to a person who was watching a lost item that he found, who then claims (when the owner comes to reclaim his item) that the item was stolen from him ("To'en Ta'anas Ganav"). Even though the continuation of the verse obligates such a person to pay Kefel ("Al Kol Aveidah"), he only pays Kefel when the lost item had a "Siman" by which the owner could have otherwise reclaimed his lost item. The logic behind this is that a person who finds an item that has no "Siman" has no obligation to return the item to its owner, and thus he does not have the status of a "Shomer Aveidah," and, consequently, the law of "To'en Ta'anas Ganav" does not apply to him (CHIDUSHEI HA'RAN, Bava Metzia 25a, cited by Yosef Da'as).

(b) TOSFOS, citing the RIVA, and other Rishonim explain that a "Davar she'Eino Mesuyam" is an item that has no measurable volume, weight, or other measure. The Mishnah in Shevuos (42b) teaches that one makes a Shevu'ah of "Modeh b'Miktzas" only when one admits partial liability for an item that is *measurable*. Our Gemara is deriving from the verse that if one claims from his friend, "I gave to you a house full [of items to watch]," and his friend claims, "What you left here is yours to take," without admitting to owing a specific measure or amount, then no Shevu'ah of "Modeh b'Miktzas" is made, and if the defendant claims that whatever was given to him was stolen and he is found to be the Ganav, he does not pay Kefel (that is, the verse refers to both the Halachah of Shevu'ah for "Modeh b'Miktzas" and the Halachah of Kefel; RASHBA). (This is in contrast to a case where the claimant says, "I gave you a house full [of items to watch], up to the window," and the defendant says, "[The items only reached] up to the pipe [below the level of the window]," which *is* a case of a "Davar Mesuyam" in which the defendant must make a Shevu'ah of "Modeh b'Miktzas.") The RA'AVAD (cited by the Shitah Mekubetzes), however, writes that "Salmah" in the verse is a Mi'ut only with regard to the Halachah of a Shevu'ah of "Modeh b'Miktzas," but not with regard to the Halachah of Kefel.

The RASHBA adds that the verse is excluding a Shomer who is "To'en Ta'anas Ganav" for an object that has no measure from paying Kefel, because a Shomer does not make a Shevu'ah for such an item. In contrast, a normal Ganav who steals an item that has no measure *does* pay Kefel, since his obligation to pay does not depend on a Shevu'ah (unlike a Shomer who is "To'en Ta'anas Ganav").

(c) TOSFOS and the RASHBA cite an additional explanation. They explain that "Davar she'Eino Mesuyam" refers to an item that is not a *complete* item. If a Ganav steals, for example, half of a fruit or half of a nut, he has no obligation of Tashlumei Kefel. According to this explanation, the Mi'ut of the verse of a "Davar she'Eino Mesuyam" from the law of Tashlumei Kefel is referring not just to "To'en Ta'anas Ganav," but to a normal case of Geneivah as well.

REBBI AKIVA EIGER (in GILYON HA'SHAS here) points out that Tosfos in Shabbos (93b, DH Amai) states that the law of Tashlumei Kefel applies for *any* item, of any size, regardless of whether the item is complete or incomplete.

RAV ELCHANAN WASSERMAN zt'l, Hy'd, in Kovetz Shi'urim (Bava Metzia) explains that Tosfos there is referring to a specific case of partners who stole an ox, in which case each partner is obligated to pay Kefel for *half* of the ox. Even Tosfos here would agree in such a case that one pays Kefel for *half* of an item (half of the ox), since a *whole* item was stolen (the ox); it is just that each Ganav is held accountable only for stealing half of it, since they stole it together. In such a case, the Ganavim are not exempt from Kefel.

(d) The RAMBAN in Bava Metzia (57b, DH Ha d'Tanu Rabanan) explains that a "Davar she'Eino Mesuyam" refers to a half of a Kli which is not worth two Ma'os of Kesef, and the verse is excluding such an item from the law of Tashlumei Kefel when a Shomer makes a claim of "Ta'anas Ganav." This is because the Shevu'ah made by a Shomer applies only to a Kli that is worth at least two Ma'os of Kesef (this applies when the Kli is incomplete, because for a complete Kli a Shomer makes a Shevu'ah even when it is worth less than two Ma'os).

63b

QUESTION: The Gemara inquires what the source is for the Halachah that a Shomer who falsely claims that the item that was deposited with him for safekeeping was stolen, when he himself stole it ("To'en Ta'anas Ganav"), must pay Tashlumei Kefel only when he made a Shevu'ah that the item was stolen. The Gemara quotes the verse, "The householder (the Shomer) shall come to the judges [that he did not send his hand upon the property of his friend]" (Shemos 22:7). The Gemara asks that perhaps this means that he approaches the court *not* for the purpose of making a Shevu'ah, but for the purpose of "Din." RASHI (DH O Eino Ela l'Din) explains that this means that the Shomer is brought to court by the owner of the item to make him pay (and not to make a Shevu'ah), since a Shomer Chinam (one who does not receive a wage for watching an item) must pay when he claims that the item was stolen.

It seems from the words of Rashi that the initial assumption of the Gemara is that a Shomer Chinam cannot exempt himself from paying by making a claim that the item was stolen. If he claims that the item was stolen, he must pay the Keren (principle).

According to this, though, when do we ever have a case of a Shomer who will have to pay Kefel for making a claim that the item was stolen, according to the Gemara's assumption at this stage (that a Shomer pays the Keren without a Shevu'ah)? If he pays only the Keren, then he does not pay Kefel, and yet the Gemara teaches earlier that everyone agrees that a Shomer who makes a claim of Geneivah must pay Kefel!

ANSWERS:

(a) The MAHARSHAL and MAHARAM write that Rashi's intention is not that the Shomer must pay Keren now, when he claims that the item was stolen. Rather, Rashi means that a Shomer Chinam who claims a "Ta'anas Ganav" is exempt from paying altogether, and if witnesses come later and testify that the Shomer himself stole the item, he must then pay Kefel, *even without a Shevu'ah*. This is the intention of Rashi here, and it is also what Rashi writes in Bava Metzia (41b).

(b) The MAHARSHA does not accept this answer, though, because Rashi's use of the word, "l'Pira'on" ("for compensatory payment"), implies that he is referring to a Shomer who is paying the Keren. Instead, the Maharsha explains that Rashi's intention is that the Shomer Chinam indeed pays the Keren now, and, nevertheless, if it is discovered later that he is the thief, he must pay Kefel because of the Gezeiras ha'Kasuv.