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Bava Kama 57

BAVA KAMA 57 (Rosh Hashanah) - dedicated by Rabbi Eli Turkel and his wife, Jeri. May they be blessed with much Nachas from their children and grandchildren and may all of their prayers be answered l'Tovah!



(a) The Beraisa says that if someone returns a lost article to a place where the owner will see it - he is no longer responsible for it.

(b) If it got stolen or lost, the Tana continues, the finder is liable. We initially think that this presents Rabah (who holds that a Shomer Aveidah is a Shomer Chinam) with a Kashya - because we assume it to be an independent case, meaning that if the article got stolen or lost from *his house*, he is liable to pay. In that case, a Shomer Aveidah is clearly a Shomer Sachar, like Rav Yosef.

(c) Rabah therefore - establishes the Seifa of the Beraisa as a continuation of the Reisha (when the animal was stolen from *the place where he returned it*).

(d) The Tana obligates him here, even though in the Reisha, he exempted him for the same thing - because the Reisha and the Seifa are speaking about two different times; the Reisha is speaking about returning the article (to the garden) in the morning, when the owner will generally see it, whereas the Seifa is talking about returning it in the afternoon, when he won't (which explains why he is liable).

(a) Rav Yosef asks on Rabah from another Beraisa 'Le'olam Hu Chayav ad she'Yachzirenah li'Reshuso'. 'Le'olam comes to include - where the article was stolen from the finder's house (indicating that he is a Shomer Sachar, a Kashya on Rabah).

(b) Rabah reconciles his opinion with this Beraisa - by stressing that this Tana refers specifically to a lost animal. Having strayed from its owner once, the finder should have known that it is likely to stray again, and he is liable, because not guarding against this is considered negligence.

(a) The Pasuk "Hashev ... le'Achicha" obligates the finder of a lost article to return it to the owner. The Torah adds the word "Teshivem", says the Beraisa - to permit the finder to return it even to the owner's garden or ruin.

(b) Rabah establishes this Beraisa by an unguarded garden - because otherwise, there would be no difference between it and a house, in which case there would be no point in including it. This is a Kashya on Rav Yosef - who considers a Shomer Aveidah a Shomer Sachar, who is required to guard the article properly.

(c) Rav Yosef however, establishes the Beraisa by a guarded garden or ruin (though not an open one) and we nevertheless need a Pasuk to include them - to teach us that a lost article, unlike other cases (which we will describe shortly), may be returned without the knowledge of the owner.

(d) Besides a thief and a robber - 'other things that one returns' incorporates the four Shomrim.

4) Rebbi Elazar's distinction between a lost article and other things - is based on the fact that the Torah uses a double expression "Hashev Teshivem" ('she'Ribsah Bo Torah Hashavos Harbeh'), as we just learned in the Beraisa.


(a) Someone who is 'To'en Ta'anas Ganav' by a Pikadon is Chayav to pay double. A 'To'en Ta'anas Ganav' - is someone who counters an allegation that he still has the Pikadon in his possession, by alleging (and swearing) that the article was stolen, and it is subsequently discovered that he is the thief.

(b) Rebbi Chiya bar Aba Amar Rebbi Yochanan says that a 'To'en Ta'anas Ganav' by a Shomer Aveidah - is liable just like he is by a Pikadon.

(c) Abaye asked Rav Yosef how he would reconcile his opinion (that a Shomer Aveidah is a Shomer Sachar and therefore liable to pay when he alleges that the article was stolen) with Rebbi Yochanan. He replied by establishing the case - by an armed robber, who is Patur because it is an O'nes.

(d) And when Abaye commented that an armed robber is a Gazlan (who does not pay double - only a To'en Ta'anas *Ganav*), he replied - that, in his opinion an armed robber is a Ganav (because he hides from people before attacking them).




(a) The Chumra stated by the Beraisa that a Shomer Chinam has over a Shomer Sachar is - that whereas he swears by To'en Ta'anas Ganav and pays double should he turn out to have sworn falsely, a Shomer Sachar pays immediately (consequently, he does not swear and never has to pay double).

(b)The Kashya this poses on Rav Yosef's latest statement is - that if, as Rav Yosef maintains, an armed robber is considered a Ganav, then we have a case of a Shomer Sachar who also pays double (by To'en Ta'anas Listim Mezuyan [who is an O'nes - as we just explained]).

(c) Rav Yosef therefore explains - that when the Tana says that a Shomer Sachar does not pay double, he means that (unlike the Shomer Chinam, who always pays double when he claims that the article was stolen) he only pays double by To'en Ta'anas Listim Mezuyan, but not by To'en Ta'anas Ganav.

(a) The Torah obligates a Sho'el to pay if he alleges that an O'nes occurred. The Beraisa learns that he is also liable if the article got stolen or lost from a 'Kal va'Chomer' from Shomer Sachar, who is Patur from O'nes, yet he is liable for theft or loss, so a Sho'el, who is liable for O'nes, should certainly be liable for theft or loss.

(b) We ask on the Beraisa however (particularly on the concluding words 'This is a 'Kal va'Chomer' that is 'Pircha-free') - that if an armed robber is a Ganav, then Shomer Sachar has a Chumra over Sho'el, inasmuch as a To'en Ta'anas Ganav pays double, whereas a Sho'el does not.

(c) This is a Kashya on Rav Yosef - because according to Abaye (and presumably Rabah), who holds that an armed robber has the Din of a Gazlan (who does not pay double), this would not be a Pircha.

(d) We refute the Pircha however - on the grounds that a Sho'el is still more stringent than a Shomer Sachar, because having to paying the principle immediately is considered more stringent than having to pay double but only after having sworn falsely.

(a) In a case where Reuven rents a cow from Shimon and it is stolen, and Reuven volunteers to pay (even though he has the option to swear), if the thief is then found - the Beraisa rules that he pays double to the Socher.

(b) From the fact that the Beraisa speaks about Reuven volunteering to pay, we can extrapolate - that had he wanted, he could have exempted himself from liability by swearing.

(c) The Rabbanan initially establish the Beraisa by an armed robber is - because they assume that a Socher has the same Din as a Shomer Sachar (like Rebbi Yehudah), and that consequently, had he just alleged that the article was stolen, he would not have been able to swear, because he would have been liable.

(a) We could answer the Kashya by establishing the Beraisa like Rebbi Meir - who considers a Socher like a Shomer Chinam (who swears and is exempt from paying when he alleges that the article was stolen).

(b) It is possible however, to establish the Beraisa even like Rebbi Yehudah - by following the opinion of Rabah bar Avuhah, who switches the opinions of Rebbi Meir and Rebbi Yehudah ('Socher Keitzad Meshalem? Rebbi Meir Omer ke'Shomer Sachar, Rebbi Yehudah Omer ke'Shomer Chinam').

(c) Rebbi Zeira even establishes the Beraisa like Rebbi Yehudah, who considers a Socher like a Shomer Sachar. In spite of the fact that we are still speaking when the Shomer alleged that the article was stolen by an armed robber, it is nevertheless possible for the thief to have subsequently had to pay double - in a case where, when the thief was eventually caught, it transpired that he was a plain thief and not an armed robber at all.

(a) Rav qualifies the Din in our Mishnah 'Naflah le'Ginah, ve'Nehenis, Meshalemes Mah she'Nehenis' - by establishing the Mishnah when the benefit that the sheep received when it fell was from the produce on which it landed (and which it spoilt) which broke his fall.

(b) Rav says that in a case where the fruit that Reuven brought into Shimon's Chatzer without permission and that his animal subsequently ate, gave it diarrhea - Reuven is Patur, because no-one asked it to eat the fruit.

(c) We reject the suggestion that Rav here follows his reasoning there - because that S'vara holds water when it is the Nizak that ate the fruit, but not the Mazik.

(d) What Rav therefore said was that the Tana obligated the owner of the sheep to pay for the Hana'ah - *even* if it benefited from the produce as it landed (for reasons that we shall now see), but certainly if it ate the produce after it landed.

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