QUESTION: Rebbi Yirmiyah gives various scenarios of cases in which the
Socher and the Sho'el (in a case where the Socher lent a rented animal to
the Sho'el and it died naturally) each make the same false Shevu'ah. In one
case, they are both Chayav a Korban Chatas for the false Shevu'ah, for the
Shevu'ah did not enable them to exempt themselves when they otherwise would
have been Chayav. In another case, they are both Chayav a Korban Asham for
the false Shevu'ah, since the false Shevu'ah exempted them from paying when
they otherwise would have been Chayav to pay. In another case, one is Chayav
a Korban Chatas and the other is Chayav a Korban Asham.
The Gemara says that in the case where the animal died naturally and the
Socher makes a Shevu'ah that it was taken by force by armed robbers, the
Socher is not Chayav a Korban Asham, because whether it died naturally or
whether it was taken by armed robbers, he is exempt from payment.
However, it seems that the Socher *is* exempting himself from paying money
by making this particular Shevu'ah! Had he claimed, truthfully, that the
animal died naturally, then he would have been obligated to give back the
*Neveilah* (corpse) to its owner. By claiming, and swearing, that the animal
was taken by armed robbers, he is exempting himself from the obligation to
return the Neveilah to the owner, since he is claiming that there is no
Neveilah to be had! Why, then, is he not Chayav a Korban Asham? (RITVA)
ANSWER: The RITVA answers that the Gemara is referring to a case in which
the Neveilah is worth nothing. Therefore he is not exempting himself from
paying, since, anyway, he would not have to return anything to the owner.
(Such a situation is indeed possible, and is mentioned in the Mishnah in
Bava Kama 33a.)
Alternatively, the Gemara is referring to a case in which the animal died,
and after it died its Neveilah fell into a river (b'Ones) and became lost.
QUESTION: Rava rules that a Shomer who gives the Pikadon to another Shomer
is Chayav for anything that happens to the object, even an Ones. Not only is
he Chayav when he is a Shomer Sachar and he gives the object to a Shomer
Chinam to watch (in which case he decreases the degree of Shemirah being
used to watch the item), but he is Chayav even when he is a Shomer Chinam
and he gives the object to a Shomer Sachar to watch (in which case he
increases the degree of Shemirah). The reason he is Chayav, explains Rava,
is because the owner can claim that he trusts only the Shevu'ah of the
original Shomer, but he does not trust the Shevu'ah of the second Shomer.
According to Rava, the first Shomer's act of giving the object to the second
Shomer is not itself an act of Peshi'ah, of negligence, in guarding the
object (in contrast to the view of Abaye). The first Shomer is Chayav to pay
for the object not because he was Poshe'a, but because a Shevu'ah needs to
be made in order to exempt him. The second Shomer cannot make a Shevu'ah
because the owner does not trust his word, and the first Shomer cannot make
a Shevu'ah because he did not see what happened to the object. Therefore,
the first Shomer must pay.
Why, though, must he pay? Let the second Shomer testify, as an Ed Echad, on
behalf of the first Shomer that the object was destroyed through an Ones.
According to RABEINU TAM (cited by the ROSH 1:3), an Ed Echad can exempt a
person from the obligation to make a Shevu'ah (this is called an "Ed
ha'Mesaye'a"). For example, an Ed Echad can obligate a person to make a
Shevu'ah ("Shevu'as Ed Echad"), in a case where he supports the claim of a
lender against a borrower and he says that the borrower owes money. The
borrower must then either pay or swear that he does not owe anything.
However, Rabeinu Tam rules that when a second Ed Echad supports the claim of
the borrower (whose claim is contradicted by the testimony of an Ed Echad),
he exempts him from a Shevu'ah. Here, too, the second Shomer should be able
to testify as an Ed Echad that the object was destroyed through an Ones and
exempt the first Shomer from his obligation to make a Shevu'ah or pay!
Indeed, the RAMBAN (in Milchamos) proves from our Sugya that an Ed Echad
does *not* exempt a person from a Shevu'ah. How, though, does Rabeinu Tam
understand our Gemara?
ANSWER: The ROSH answers that since the first Shomer is unable to swear
(because he does not know for certain what happened), he is automatically
obligated to pay. There is no obligation of a Shevu'ah from which an Ed
Echad can exempt him.
This answer is difficult to understand, though, because the entire
obligation of the first Shomer to pay is based on his obligation to make a
Shevu'ah; since he cannot make a Shevu'ah, he must pay. Just like an Ed
Echad can obligate a person to pay when the person is unable to make a
Shevu'ah (such as when a borrower claims that he does not know whether or
not he owes money, and an Ed Echad testifies for the lender that the
borrower does owe money), an Ed Echad should also be able to exempt a person
from payment where he is unable to make a Shevu'ah, such as in our case! The
Ed Echad should exempt him from the obligation of a Shevu'ah and,
consequently, he should be exempt from paying.
1. HA'GAON RAV NAFTALI TROP explains that Rava holds that the second Shomer
becomes the owner's Shomer. This is because, as we mentioned above, Rava
does not view the first Shomer's act of giving the object to a second Shomer
to be an act of negligence; the second Shomer's Shemirah is a valid Shemirah
(it is just that his Shevu'ah is not accepted by the owner). Since the
second Shomer is, in essence, guarding the object for the owner, it is *he*
who is obligated to make a Shevu'ah to the owner to exempt himself. Here,
though, the owner does not trust his word, and therefore the Shevu'ah is
transferred to the first Shomer; because only he can prove what happened to
the object. Consequently, the second Shomer cannot serve as an Ed Echad to
exempt the first Shomer from the obligation to swear, because the primary
obligation to swear is upon *him*, and thus he cannot serve as a witness to
exempt *himself* from a Shevu'ah.
2. RAV SHACH, zt'l, in AVI EZRI (Hilchos Sechirus 4:3) explains as follows.
The primary obligation of the Shomer towards the owner is to pay back the
object. If he does not do so, he is obligated to pay. The Torah, however,
allows the Shomer to swear and exempt himself from paying. As such, this
Shevu'ah differs from all other cases of Shevu'ah. In all other cases (such
as Ed Echad and Modeh b'Miktzas), the person is primarily exempt from any
obligation, yet the Torah is stringent with him and requires he make a
Shevu'ah before he achieves that exemption.
When a Shomer claims that the object was destroyed through an Ones, he
essentially is not believed and must pay for the object, unless he brings
witnesses to support his claim. The Torah, though, allows him to make a
Shevu'ah and exempt himself. (Only when he claims that he returned the item
is he essentially believed, since that is normally what is done with a
Accordingly, in our Gemara, the first Shomer cannot make a claim of
certainty that the animal died b'Ones and thus he should have to pay. It is
not *because* he cannot make a Shevu'ah that he must pay, but rather because
the *primary* obligation of a Shomer is that he must pay for the object.
Since here he cannot make a Shevu'ah to exempt himself from that obligation,
he must pay. The second Shomer cannot testify for him as an Ed Echad to
exempt him, because an Ed Echad can only exempt a person from a Shevu'ah,
but he cannot exempt a person from a primary obligation to pay that is not
the result of a Chiyuv Shevu'ah.