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Bava Kama 106

BAVA KAMA 106 (24 Cheshvan) - dedicated by Dr. Moshe and Rivkie Snow to the memory of Rivkie's father, the Manostrishtcher Rebbe, Hagaon Rav Yitzchak Yoel ben Gedaliah Aharon Rabinowitz Ztz"l. The personification of a Torah scholar, the Rebbi was born in Uman (Ukraine) but lived most of his life in Brooklyn, NY, where his warm ways changed many lives.



(a) According to Rav Sheishes, who holds that a Shomer who denies that he is a Shomer, we might establish Ilfa, who says 'Shevu'ah Koneh', when the animal is standing in the meadow, as we just explained earlier. The ramifications of 'Shevu'ah Koneh' are then - that the Shomer is Chayav Onsin.

(b) Alternatively, we might establish it like Rav Huna Amar Rav, who says that if the Shomer denies that he has the money that the owner is claiming from him and swears accordingly, should witnesses subsequently substantiate the owner's claim - the Shomer is Patur from paying.

(c) And he learns this from the Pasuk - "ve'Lakach Be'alav ve'Lo Yeshalem", which teaches us that, once the owner has accepted a Shevu'ah, he can no longer claim the money.

(d) The ramifications of 'Shevu'ah Koneh' according to this explanation are - that he acquires the money completely.

(a) Rava restricts Rav Huna Amar Rav's ruling to a loan, but not to a Pikadon - because whereas a loan is given to the borrower to spend, and it is feasible to say that when he swears, he becomes exempt from paying, a deposit belongs to the owner, and it is not logical to say that the trustee acquires it with a Shevu'ah?

(b) That cannot be what Rav Huna Amar Rav really said - because the Pasuk that he quotes is referring to a deposit and not to a loan.

(c) Neither can Rav's Din extend even to a case where the trustee later admits that he swore falsely - because that is where the Torah specifically obligates the trustee to pay Keren, Chomesh and an Asham.

(a) Rav Acha bar Minyumi asked Rav Nachman on this from a Beraisa. The Tana there cites a case where after the trustee swore that the deposit got lost, witnesses testified to the contrary, and ruled that he is liable to pay Keren. He does not pay Kefel - because Kefel only applies where the trustee claims that the money or the object was stolen, not that it got lost.

(b) And in the case where the trustee admits that he swore falsely - the Tana obligates him to pay Keren, Chomesh and Asham (as we just explained).

(c) Rav Nachman initially reconciles the Reisha of the Beraisa (which obligates the trustee to pay Keren even after he swore falsely) with Rav Huna Amar Rav - by establishing it when he swore outside Beis-Din (whereas Rav speaks exclusively when he swore inside Beis-Din).

(d) The problem with the Seifa, which speaks about the equivalent case as in the Reisha, but where the trustee claimed that the money was stolen (as opposed to lost), and which obligates him to pay Kefel is - that one does not pay Kefel on a Shevu'ah that was made outside Beis-Din.

(a) To answer this Kashya, Rav Nachman prefers not to establish the Reisha when he swore outside Beis-Din (like he just explained) and the Seifa, when he swore inside - because that would be a Dochek (a pushed answer).

(b) He therefore establishes both cases inside Beis-Din, and the reason that he does not acquire the money with his Shevu'ah is - because it speaks when the trustee jumped and swore without having been asked to do so by Beis-Din.

(c) Rami bar Chama asked Rav Nachman, who disagrees with Rav Huna Amar Rav, why he bothered to explain the Mishnah according to him, to which he replied - that, even if though he did not hold like him, he still wanted to reconcile Rav with the Mishnah.

(d) As we just saw, Rav Nachman disagrees with Rav. He explains the Pasuk "ve'Lakach Be'alav ve'Lo Yeshalem" to mean - that one only swears in order to become exempt from paying, but not to claim payment.

(a) Rav Hamnuna asks on Rav from the Beraisa, 'Hishbi'a Alav Chamishah Pe'amim, Bein bi'Fnei Beis-Din Bein she'Lo bi'Fnei Beis-Din, ve'Kafar Alav, Chayav al Kol Achas ve'Achas' - Keren, Chomesh ve'Asham' (assuming he confessed to each one).

(b) According to Rebbi Shimon there, he is Chayav - because each time, he could have admitted and been obligated to pay, in which case, whenever he denied, he denied Mamon.

(c) The Beraisa is clearly speaking in Beis-Din (because 'Hishbi'a Alav' [as opposed to 'Hishbi'o'] implies the Beis-Din and not the owner), so we cannot establish it outside Beis-Din, as we did the earlier Beraisa. Rav Hamnuna himself therefore interprets ...

1. ... 'Bein Bi'Fnei Beis-Din' to mean - when he jumped and swore in Beis-Din (as we explained earlier)?
2. ... 'Bein she'Lo Bi'Fnei Beis-Din' - when Beis-Din obligated him to swear, but he opted to swear outside Beis-Din.
(a) Another Beraisa says that a To'en Ta'anas Ganav who swore and admitted ...
1. ... before witnesses testified against him - pays Keren, Chomesh and an Asham.
2. ... after witnesses testified against him - pays Keren and Kefel and an Asham.
(b) This Beraisa cannot be speaking either when he jumped and swore in Beis-Din, not when he swore outside Beis-Din - because then, there would be no Chiyuv to pay Kefel.

(c) So Rava finally reconciles these Beraisos with Rav - be pointing out that wherever the trustee admitted that he had sworn falsely, and wherever the Torah obligates him to pay Kefel, he is obligated to pay.

(a) Where the trustee admitted that he had sworn falsely, we just concluded, even Rav concedes that he is Chayav to pay, should witnesses testify against him, irrespective of whether it is a case of To'en Ta'anas Ganav or To'en Ta'anas Avad. The reason that Rav concedes by To'en Ta'anas Avad is because the Torah writes "ve'Hisvadu". The reason by To'en Ta'anas Ganav is - because the Torah obligates payment of Kefel (in both cases, in the equivalent circumstances to Rav).

(b) In fact, the sole case where Rav holds that he acquires the deposit and is Patur is - when he claims that the article is lost, swears and then witnesses testify that he swore falsely.

(c) When Rav Gamda told this explanation to Rav Ashi, he objected, Based on Rav Hamnuna's earlier Kashya - Rav Hamnuna, he argues, was a disciple of Rav, and would have known had Rav conceded that Hodeh is different, yet he still asked on Rav from the Beraisa of Hodeh. Clearly then, Rav does not differentiate between Hodeh and Lo Hodeh (as Rava claims he does).

(d) Amri Bei Rav is Rav Hamnuna.

(a) Rav Acha Saba therefore reinterprets Rav Hamnuna's Kashya. In fact, it is not the fact that he could admit that makes it Mamon (as we initially interpreted Rebbi Shimon) - but from the fact that if witnesses then testify, he will be obligated to pay (contrary to Rav's opinion). That is why he would have to bring a Korban for the last Shevu'ah.

(b) He is not Patur on account ofs the principle 'Ein Shevu'ah Chalah al Shevu'ah' - because, since he is able to admit after each Shevu'ah, each Shevu'ah is considered a separate denial.

(c) In fact, the criterion of whether or not, it is called Mamon, cannot be determined by whether he admits to having sworn falsely, because we are speaking when he did not in fact admit. Consequently, if witnesses would not obligate him to pay after he swore falsely (as Rav asserts), it would not be considered Mamon, and he would not be Chayav for each Shevu'ah.




(a) We know that a To'en Ta'anas Ganav by Pikadon pays Kefel. Rebbi Chiya bar Aba Amar Rebbi Yochanan rules that should a To'en Ta'anas Ganav by Pikadon then sell or Shecht the sheep or cow that he is guarding - he pays Daled ve'Hey.

(b) And he learns this - from a Ganassv, who pays Kefel for stealing the sheep or the cow and then Daled ve'Hey for Shechting or selling it.

(c) Assuming this to be a 'Mah Matzinu', we ask - how we can possibly learn a To'en Ta'anas Ganav, who only pays Kefel after making a Shevu'ah. from a Ganav, who pays Kefel whether he swore or not.

(d) We answer that Rebbi Yochanan does not learn a To'en Ta'anas Ganav from a Ganav using a 'Mah Matzinu', but from a 'Hekesh' (since the Pasuk of To'en Ta'anas Ganav ("ve'Im Lo Yimatzei ha'Ganav") is juxtaposed next to that of Ganav ("Im Yimatzei ha'Ganav").

(a) Having learned To'en Ta'anas Ganav from Ganav with a Hekesh, we find it necessary to then learn it from the extra 'Hey' in "Ganav ha'Ganav" of To'en Ta'anas Ganav - according to those who maintain that both Pesukim refer to To'en Ta'anas Ganav, and that we learn Ganav from another Pasuk ("Im Himatzei Simatzei be'Yado ha'Geneivah"). Consequently, we no longer have a Hekesh.

(b) We extrapolate from the Beraisa which obligates a To'en Ta'anas Ganav to pay Kefel if witnesses testified that he ate the sheep that he claimed was stolen - that he pays Kefel, but not Daled ve'Hey.

(c) Rebbi Chiya bar Aba asks on Rebbi Yochanan from this Beraisa - that to have eaten the sheep, he must have Shechted it, in which case, he ought to be Chayav Daled ve'Hey, according to his ruling.

(d) Rebbi Yochanan answers by establishing the Beraisa - when the Shomer ate the sheep as a Neveilah.

(a) Rebbi Yochanan declines to answer that he ate it ...
1. ... when it was a T'reifah - because he establishes the Mishnah like Rebbi Meir, who holds 'Shechitah she'Einah Re'uyah Sh'mah Shechitah' (in which case, he would still have to pay Daled ve'Hey [because a T'reifah is a Shechitah she'Einah Re'uyah]).
2. ... when it was a ben Peku'ah - because here too, according to Rebbi Meir (according to whom we just established the Beraisa), a ben Peku'ah requires Shechitah.
(b) A ben Peku'ah is a live calf that one finds inside a Shechted cow, and which, according to the Rabbanan, may be eaten without Shechitah (because its mother's Shechitah covers it, too).

(c) Rava maintains that a Ganav who Shechted or sold an animal after Beis-Din ruled 'Tzei Ten Lo' - is a Gazlan, who does not pay Daled ve'Hey, whereas if he did so after they only said 'Chayav Atah Liten Lo' (which is not a final ruling), he is not a Gazlan, and will therefore be Chayav Daled ve'Hey.

(d) According to Rava, to reconcile his opinion with the Beraisa, Rebbi Yochanan might then have answered - that the Tana is speaking when he Shechted it after Beis-Din had ruled 'Tzei Ten Lo'.

(a) We might also have established the Beraisa when one of two partners who stole a sheep Shechted it without the second partner's consent. He would be Patur from Daled ve'Hey - either because of the D'rashah "Chamishah Bakar", 've'Lo Chamishah Chatza'ei Bakar', or because of "u'Tevacho" 'Kulei be'Isura (ve'Lo Chetzyo be'Isura)'.

(b) Rebbi Yochanan does not give either of these answers, choosing to answer when the Ganav ate it as a Neveilah - because he considered it sufficient to give one answer (even though there are more).

(c) Rebbi Chiya bar Aba learns from the Pasuk "al Kol Aveidah Asher Yomar ... Yeshalem Shenayim"- that a To'en Ta'anas Ganav ba'Aveidah is obligated to pay Kefel.

(a) The Beraisa learns from "Ki Yiten Ish", that one neither swears nor pays Kefel on the claim of a Katan. And from the Pasuk "ad ha'Elohim Yavo D'var Sheneihem" - he learns that the same will apply even if he has already grown-up at the time of the claim, seeing as he was a Katan when he handed the trustee the object to look after.

(b) Rebbi Aba bar Mamal queries Rebbi Yochanan from here. According to Rebbi Yochanan, he asks - why should the Tana exempt him from a Shevu'ah and from Kefel in the latter case, any more than a To'en Ta'anas Ganav ba'Aveidah (where there was no Nesinah at all), yet he is Chayav to pay Kefel.

(a) To reconcile Rebbi Yochanan with the Beraisa, we establish the latter - when the trustee ate the sheep whilst the owner was still a Katan.

(b) In that case, instead of 'ad she'Tehei *Nesinah* u'Tevi'ah Shavin ke'Echad', the Tana should rather have said 'ad she'Tehei *Achilah* u'Tevi'ah Shavin ke'Echad'.

(c) We answer this - by amending the Beraisa to read 'ad she'Tehei Achilah u'Tevi'ah Shavin ke'Echad'.

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