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Bava Metzia 98
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BAVA METZIA 98 (16 Adar) - dedicated by Mr. Avi Berger of Queens, N.Y. in
memory of his father, Reb Pinchas ben Reb Avraham Yitzchak, on the day of
his Yahrzeit.
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1) [line 17] UL'RAMI BAR CHAMA D'AMAR ARBA'AH SHOMRIM TZERICHIN KEFIRAH
B'MIKTZAS V'HODA'AH B'MIKTZAS (SHEVU'AH: SHEVU'AS HA'SHOMRIM)
(a) The Torah (Shemos 22:6-14) mentions four types of watchmen and the
different Halachos that apply to them:
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).
2. SHO'EL - the Sho'el, the borrower, is one who borrows an item in order to
use it and becomes obligated to take care of it. He is liable for damages in
cases of Peshi'ah (negligence), theft or loss, and Ones (an unavoidable
accident). He is exempt from damages only in a case of "Meisah Machmas
Melachah," when the item was damaged in the normal manner of usage, or if
the item was damaged while its owner was working for the borrower ("Be'alav
Imo").
3. NOSEI SACHAR - Nosei Sachar, or Shomer Sachar, is one who is paid to
watch an item but is not permitted to use it. He is liable for damages in
cases of Peshi'ah (negligence), theft or loss, but is not liable in a case
of Ones (an unavoidable accident).
4. SOCHER - the Socher, or renter, is one who pays money to rent an item. He
is liable for damages in cases of Peshi'ah (negligence), theft or loss, but
is not liable in a case of Ones (an unavoidable accident), just like a
Shomer Sachar, according to some of the Tana'im. Others assert that a Socher
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), just like a Shomer Chinam (Bava Metzia 93a).
(b) When one of the Shomrim exempts himself from payment by claiming that
the item was stolen, lost or Ne'enas (respective to their individual
liabilities, as above), the Torah obligates him to support his claim by
taking an oath (Shemos 22:7-10). Accordingly, a Shomer Chinam swears that he
was not negligent; a Shomer Sachar swears that the item was Ne'enas and a
Sho'el swears that the item was damaged in the normal manner of usage. In
addition, a Shomer Chinam or a Shomer Sachar must swear that they did not
use the object that they were guarding. (Using the object without the
owner's permission would make the Shomer liable even for Ones.) Only after
they swear are they exempt from payment. These oaths are among the Shevu'os
ha'Shomrim.
(c) In our Sugya (and earlier in Bava Metzia, Daf 5a), Rami bar Chama adds a
qualification to the Halachah of the oaths of the four Shomrim. The words
from which the Gemara (Shevu'os 39b) derives the Halachah of Modeh b'Miktzas
ha'Ta'anah (see Background to Bava Metzia 97:21) appear in the verses
regarding the oaths of the four Shomrim. Therefore, a Shomer only takes the
oath of the four Shomrim to exempt himself with the claim that part of the
Pikadon was lost or stolen or Ne'enas, etc., if he *also* admits that he is
liable to pay for part of the Pikadon (e.g. he admits that he was negligent
regarding one of the three bulls that he was entrusted to guard), *and* he
denies ever having received a third part of the Pikadon that the owner
claims. For example, a Shomer would take an oath if the owner asks for the
return of his three bulls and the Shomer claims that he only received two
bulls to guard, and one died due to his negligence while the other died
b'Ones.
98b---------------------------------------98b
2) [line 1] LHD"M - LO HAYU DEVARIM ME'OLAM - "There never was such a thing"
(this is the standard claim of a defendant who denies that the transaction
ever happened)
3) [line 6] MAH SHE'TA'ANO LO HODAH LO - what he (the plaintiff) claimed
from him (the defendant), he (the defendant) did not admit to him (and thus
the case cannot be one of "Modeh b'Miktzas")
4) [line 8] AL YEDEI GILGUL - by way of the extension of an oath (lit.
"rolling" an oath) (GILGUL SHEVU'AH)
(a) If a defendant has to take an oath in Beis Din in response to one claim
of a plaintiff, he can be required to include within his oath a response to
another outstanding claim from the same plaintiff, even though the second
claim was not the type of claim which normally requires an oath. This
Halachah is learned from the Shevu'ah of the Sotah woman (see Background to
Kidushin 80:27), where she is obligated to swear that she did not have
relations with the man whom her husband suspects. Beis Din is Megalgel onto
her oath the additional details that she did not have relations with any
other man, while she was an Arusah, etc., to which she must swear, also.
(b) Examples of claims that can be included in a person's oath through
Gilgul are Shevu'os that pertain to land, Kofer ba'Kol (denying an entire
loan), and even an oath that the defendant is not the slave of the claimant
(Kidushin 28a).
(c) The Halachah of Gilgul Shevu'ah applies whether the Shevu'ah is a
Shevu'ah d'Oraisa such as the Shevu'ah brought about by the testimony of a
solitary witness, or a Shevu'ah d'Rabanan such as Shevu'as Heses (Shevu'os
48b; see Rashi there).
5) [line 8] ISHTABA LI (EIZO) [IZI] MIHAS DECHE'DARKAH MESAH - swear to me,
then, at least that it died in its normal manner (according to the Girsa of
DIKDUKEI SOFRIM #30)
6) [line 12] MAMON HA'MUTAL B'SAFEK CHOLKIN
(a) Sumchus maintains that when the ownership of property is in doubt, it is
divided among the claimants.
(b) Even according to Sumchus, when a person possesses a certain object, and
another person claims that it is his, they do not divide the object between
them; rather, we rule "ha'Motzi me'Chaveiro Alav ha'Re'ayah" and allow the
object to remain in the possession of the person currently holding it.
Sumchus' ruling applies in a case where Beis Din has reason to doubt the
ownership of the object even before hearing the claims of the litigants. For
example, one case in which Sumchus' ruling is applied is when a bull gores a
cow and a dead calf is found next to the dead cow such that we do not know
whether the calf was killed by the bull or whether it was born and died
before the goring. Sumchus rules Mamon ha'Mutal b'Safek Cholkin, and the
owner of the bull pays for half of the calf.
(c) According to the Rabanan who disagree with Sumchus, as long as one of
the claimants has a Chazakah (i.e. evidence of prior ownership) over the
property in dispute, he need not pay until his opponent brings a proof of
his claim using witnesses. A Chazakah, with regard to this Halachah, can
mean either Chezkas Mamon, (the object is currently in his possession) or
Chezkas Marei Kama (he has evidence that he was once the owner of the
object, and nobody can show that it left his ownership since that time).
7) [line 15] SECHIRUS BI'SHE'EILAH MEISHACH SHAICHEI - [the level of
obligations incurred by] renting is a continuation of [the level of
obligations of] borrowing
8) [line 23] V'CHAZAR V'SHA'ALAH [SHE'LO BI'VE'ALIM] - [one borrowed a cow
together with its owner, and then he converted it to a rental without the
owner,] and then he again borrowed it [but without the owner] (according to
the Girsa of RASHI and DIKDUKEI SOFRIM #50)
9a) [line 24] HADAR ASYA LAH SHE'EILAH L'DUCHTAH - does the She'eilah
(transaction of borrowing the cow) revert back to its place (such that the
present She'eilah has the status of the original She'eilah, which was a
"She'eilah b'Ve'alim," and thus the borrower is exempt from liability)
b) [line 25] AFSIKA LAH SECHIRUS BEINI BEINI - [or] does the Sechirus
(transaction of renting the cow) interrupt between them (between the two
acts of She'eilah)
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