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1) [line 13] MAN D'METARGEM LI "CHAVIS" ALIBA D'CHAD TANA - anyone who can explain our Mishnah of "ha'Mafkid Chavis" (Daf 40b) according to one Tana (referring to two separate instances) 2) [line 14] MOVILNA MANEI BASREI L'VEI MASUSA - I will carry his clothes after him to the bathhouse (like a servant)
3a) [line 16] NATLAH - he moved it [and lifted it up]
4) [line 19] SHELICHUS YAD TZERICHAH CHISARON (SHELICHUS YAD) 1. The Shomer must make a Kinyan on the object, by pulling (Meshichah) or lifting (Hagbahah) the object, just as any thief becomes responsible for what he steals only after making a Kinyan on it (Rashi 41a DH Ha).(c) With regard to the second of the two conditions listed above, the Amora'im argue whether the Shomer is only responsible for the object if he actually depletes or uses up part of it ("Shelichus Yad Tzerichah Chisaron"), or whether he becomes responsible for it even if he makes a Kinyan on it with the *intention* of depleting part of it ("Shelichus Yad Einah Tzerichah Chisaron"). If the Shomer picks up the object in order to steal it all, it is equivalent to having *already* depleted all of it, since he removed all of it from the owner's domain by picking it up for himself (Rashi, 41a DH v'Rebbi Nasan and 44a DH d'Nicha -- see Ramban and Ritva 41a, though, who argue that it is not considered as though he already depleted the object if the Shomer planned on taking it all for himself and *compensating the owner* for it.). (This discussion is only according to the opinion of Beis Hillel, 43b. According to Beis Shamai, all agree that the Shomer becomes responsible for the object even if he simply *says* (or thinks, according to some Rishonim, see Shitah Mekubetzes) that he will deplete the object by using it for himself.). (d) Any use of an animal is considered to be "depleting" the animal, since doing work weakens the animal (Rashi 41a DH v'Ha; however the Ra'avad, cited by the Ritva and Rishonim, argues). (e) The Amora'im argue as to whether a "Sho'el she'Lo mi'Da'as," a person who uses another person's object without permission, is classified as a "Sho'el" or as a "Gazlan." Those who maintain that "Sho'el she'Lo mi'Da'as *Gazlan* Hu," do not require that the Shomer "use up" or deplete the object in order for him to become responsible for it as a Shole'ach Yad. According to this opinion, anytime the Shomer uses the object in a manner that could possibly damage the object (for example, he moves it from place to place in order to move it, which might cause the object to inadvertently fall and break), the Shomer is immediately considered a Gazlan, even if he planned on using the object in a manner that would not deplete it at all (for example, climbing on the object in order to reach a high shelf). However, if the Shomer used the object in a manner that neither depleted the object nor put it into a position of insecurity, all Amora'im agree that the Shomer is not considered a Gazlan (Ritva, 41a). 5) [line 25] L'HAVI ALEHA GOZALOS - to use it as a step for fledglings that [can hop about but] cannot yet fly
6) [line 25] SHO'EL SHE'LO MI'DA'AS GAZLAN HEVEI
7) [line 30] TISTAYEM - conclude
13) [line 35] V'HAVINAN BAH - and we ask about it
16) [line 38] HA LO MASHCHAH (KINYAN MESHICHAH) 17) [line 39] HIKISHAH B'MAKEL V'RATZESAH LEFANAV - he hit the animal with a stick and it ran before him (in the direction of his domain)
18) [line 40] HIKCHISHAH B'MAKEL - he made it languish with his stick
20) [line 2] SHOMER SACHAR / SHOMER CHINAM (FOUR SHOMRIM) 1. SHOMER CHINAM - the Shomer Chinam is one who watches an item without demanding compensation from the owner. He is liable for damages only in cases of Peshi'ah (negligence), but not in cases of theft or loss, and certainly not in a case of Ones (an unavoidable accident).21) [line 11] TO'EN TA'ANAS GANAV (a) The Torah establishes the degree of responsibility that a Shomer has when he accepts upon himself to guard someone's object and he does not specify any other acceptance of responsibility at the time the object is given to him. The Torah divides the degrees of responsibility into four categories of Shomrim: Shomer Chinam, Sho'el, Shomer Sachar, and Socher -- see previous entry. (b) A Shomer Chinam is liable for damages only in cases of Peshi'ah (negligence), but not in cases of theft or loss, and certainly not in a case of Ones (an unavoidable accident). When the Shomer Chinam claims that the object was stolen or lost or that an Ones occurred, he must make three Shevu'os: 1. that he was not negligent (Poshe'a) in guarding the object, and 2. that he did not use the object for himself (Shelichus Yad -- see above, entry #4) without permission, and 3. that the object is not in his possession. Once he makes these Shevu'os, he is exempt from paying the owner for the object. (c) If the Shomer claimed that the object was lost or that an Ones happened and he made the Shevu'os as mentioned above, and then witnesses came and testified that he himself stole the object and that the object is still in his possession, he is obligated to return the object to its owner. (If he made the Shevu'os in Beis Din after the Beis Din required that he make the abovementioned oaths, there is an opinion that maintains that he is exempt from paying, since he acquired the object by making the Shevu'os; see Insights to Bava Kama 106a). If, after making the Shevu'os, the Shomer admitted that he stole the item (whether he admits before witnesses come or after witnesses come), he must pay the principle of the object that he stole, and he must add to it a Chomesh, an additional fifth (of the ensuing total, or a *quarter* of the original value), and he must bring a Korban Asham Gezeilos. This is called "To'en Ta'anas *Avad*," or "To'en Ta'anas *Ones*." (d) If the Shomer claimed that the object was *stolen* and he exempted himself from paying for it by making the three Shevu'os mentioned above, and then witnesses came and testified that he himself stole it, the Shomer is obligated to pay Kefel (double the value of the object), for the Torah gives him the status of a Ganav (which is what he claimed happened to the object), and not just the status of a Gazlan (who does not pay Kefel). This is called "To'en Ta'anas Ganav." If he admitted on his own before witnesses came, he must pay the principle, Chomesh, and bring a Korban Asham, and he is exempt from paying Kefel, since Kefel is a Kenas (penalty) and one who admits to the Chiyuv of a Kenas is exempt from paying it (see Background to Bava Metzia 34:1). If he admitted *after* witnesses came, he must pay Kefel (since he made a claim that the item was stolen, "To'en Ta'anas Ganav"), and he must bring a Korban Asham, but he is exempt from paying a Chomesh because it is included in the Kefel. (This is according to the Chachamim, Bava Kama 65b; there is one opinion that says that under certain circumstances he also pays a Chomesh, and there is another opinion that says that the Kefel even exempts him from bringing the Korban Asham.) (e) One who is "To'en Ta'anas Ganav" with regard to an animal that was entrusted with him, and then he slaughtered or sold it, is obligated to pay Arba'ah v'Chamishah, like a Ganav who stole an animal and slaughtered or sold it (Bava Kama 106b). Similarly, one who found a lost object (Aveidah) and is guarding it, and then claims that it was stolen ("To'en Ta'anas Ganav b'Aveidah") is obligated to pay Kefel. 22) [line 12] KARNA B'LO SHEVU'AH ADIFA MI'KEFEILA BI'SHEVU'AH - [the Pirchah asked by the Gemara (line 10) that shows that a Shomer Chinam is more Chamur (stringent) than a Shomer Sachar is not a Pirchah, since receiving] the principle [paid by a Shomer Sachar for a stolen object] without [the trouble of making him take] an oath [in Beis Din] is more Chamur than (lit. is preferable to) [receiving] the Kefel [paid by a Shomer Chinam] with an oath [after the trouble of going to Beis Din for him to swear, having him swear falsely and having witnesses testify that he swore falsely] 23) [line 19] DAYO LA'BA MIN HA'DIN LIHEYOS KA'NIDON - it is sufficient to give the Halachah learned from a Kal va'Chomer the exact status of the Halachah from which it was learned. 24) [line 19] SHO'EL B'VA'ALIM PATUR - A Sho'el (see above, entry 20:a2) is exempt from damages that occurred to an object if the item was damaged while its owner was working for the borrower ("Be'alav Imo"). 25) [line 24] "[IM LO YIMATZEI HA'GANAV,] V'NIKRAV BA'AL HA'BAYIS EL HA'ELOKIM [IM LO SHALACH YADO BI'MLECHES RE'EHU.]" - "[If the thief is not found,] the owner of the house shall be brought to the judges [to swear] [that he did not misuse (lit. send his hand upon) his friend's possession. (Shemos 22:7)
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