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Bava Metzia, 40

1) DEDUCTING A STANDARD AMOUNT FROM DEPOSITED FRUIT

QUESTION: The Mishnah states that when a Shomer returns fruit to its owner after it was deposited with him, he deducts the amount that that type of fruit normally diminishes within that amount of time. The Gemara explains that this applies only when the Shomer put the fruit together with his own fruit, and thus it is not possible to determine exactly how much the deposited fruit diminished. Since the total amount of fruit (the Mafkid's and the Shomer's) has diminished, it is assumed that each person's fruit diminished equally.

Why, though, do we not apply the principle of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah?" Since the Shomer is presently in possession of all of the fruit ("Muchzak"), the Shomer should be able to claim that his fruit did not diminish at all, and that all of the decrease occurred in the fruit of the Mafkid! Since there is no clear proof otherwise, the Shomer should be able to deduct the entire decrease (and not just half) from what he returns to the Mafkid.

ANSWERS:

(a) The S'MA (CM 292:10) writes that, indeed, if the Mafkid was particular to receive in return only his own items, then the Shomer could say to him that it was his items that diminished. For example, when a person entrusts his animals, such as his goats, to a Shomer, he certainly wants to receive the same animals back. If the Mafkid gave a goat or goats to the Shomer, and the Shomer placed them (or they accidentally became placed) among his own goats and it is no longer evident which ones belong to the Mafkid, and then one of the goats became lost, the Shomer can claim that it was the Mafkid's goat that was lost, based on the principle of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah."

In contrast, when a person deposits fruit with a Shomer, he does not care whose fruit he receives in return. In such a case, the Shomer is not considered "Muchzak," and "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" does not apply. From the time that the fruit is deposited with the Shomer and mixed with his own fruit, the fruit is not considered to be two distinct groups of fruit. The fruit of the Mafkid and the fruit of the Shomer are considered a single entity and thus the decrease occurs to the entire entity.

(b) The SHA'AREI YOSHER (3:24, DH v'Hineh) questions the explanation of the S'ma and offers a different explanation. He says that since the Mafkid does not mind that his fruit is mixed up with the Shomer's fruit, and it is considered as though the Shomer mixed them with the Mafkid's consent, the act of putting the fruit together is considered an act of a Kinyan of partnership, for we find that mixing fruit together is an act of a Kinyan of partnership (Shulchan Aruch CM 176). Hence, the Shomer and the Mafkid have become joint owners in all of the fruit, and any decrease in the fruit must be burdened equally.

Based on this, the Sha'arei Yosher suggests that if the Shomer mixed the fruit together against the will of the Mafkid (or by accident), then they do not become joint owners of all the fruit and the Shomer indeed may claim that it was the Mafkid's fruit which suffered the entire decrease, based on "ha'Motzi me'Chaveiro Alav ha'Ra'ayah." (I. Alsheich)

QUESTION: The Mishnah states that when a Shomer returns fruit to its owner after it was deposited with him, he deducts the amount that that type of fruit normally diminishes within that amount of time. The Gemara explains that this applies only when the Shomer put the fruit together with his own fruit, and thus it is not possible to determine exactly how much the deposited fruit diminished. When, however, the Shomer designated a specific place for the Mafkid's fruit, then he returns the fruit in whatever state it is in. This implies that even if the fruit has diminished *more* than the normal rate, the Shomer still returns it in that state (the RITVA says that in such a situation the Shomer must make a Shevu'ah that he was not negligent in protecting the fruit, and the TALMID HA'RASHBA says that he also must make a Shevu'ah that he did not use the fruit for his own personal use).

Why, though, may the Shomer return the fruit to the Mafkid in its diminished state? We learned earlier (38a) that Raban Shimon ben Gamliel rules that when a Shomer sees that the fruit that was entrusted with him is diminishing, he must sell it in the presence of Beis Din in order to prevent the owner from suffering a larger loss. Even the Tana Kama there, who maintains that the Shomer does not sell the fruit, agrees that the Shomer must sell it when the fruit has diminished beyond its normal rate. Accordingly, since the Shomer is obligated to sell the fruit when he sees that it is diminishing beyond its normal rate, if he does not do so it is considered negligence and he must compensate the owner for the loss (see MAGEN AVRAHAM CM 443:5)! Why, then, does our Gemara say that he may return the fruit to the owner in whatever state it is?

ANSWERS:

(a) The MA'AYANEI HA'CHOCHMAH answers that since it is rare that fruit should diminish more than its normal rate, the Shomer is not held responsible to presume that the fruit has diminished so much.

(b) The NEFESH CHAYAH answers that when the Gemara says that the Shomer "designated for him (the Mafkid) a corner [in which to place his fruit]," it means that the Shomer expressly stated that he was not accepting any liability for the fruit, but rather he merely gave permission to the Mafkid to place the fruit in his domain. He cites proof for this from the Gemara in Pesachim (6a) which says that when a Nochri enters the property of a Jew during Pesach holding Chametz, and the Jew "designates for him a room," the Jew is not obligated to get rid of that Chametz because, as Rashi there explains, he has not accepted liability for the Nochri's possessions, but he has merely given him permission to place his items in his domain.

(According to this answer, the Shomer is not technically a Shomer at all, since he did not accept upon himself the obligations of a Shomer. This, however, is not consistent with the Rishonim mentioned above who require that the Shomer make a Shevu'as ha'Shomrim when he returns the fruit that has diminished.) (I. Alsheich)

40b

QUESTION: The Mishnah (40a) states that old wine barrels do not absorb any wine, and therefore the Shomer does not deduct any wine from the amount that was deposited with him. Rav Nachman in the Gemara explains that the Mishnah is referring to old barrels lined with pitch. Abaye says that even old barrels that are not lined with pitch do not absorb wine, because since they have already absorbed their fill, they no longer absorb any more wine.

The Acharonim question this Gemara from the well-known principle of the laws of Isur v'Heter: when a prohibited food item is cooked in a pot, the pot absorbs the item and it, too, becomes prohibited to be used, and no distinction is made between an old pot and a new pot. According to our Gemara, though, an old pot can no longer absorb additional amounts of food and thus it should *not* become prohibited! (TAZ YD 93:2, KEREISI U'PLEISI there, and others)

ANSWERS:

(a) The TAZ (also cited by the P'nei Yehoshua here) answers that our Gemara is correct in saying that an old pot does not absorb additional material, and it is also true that an old pot in which a prohibited item is cooked because prohibited because of the absorption. He explains that the act of cooking causes the pot to *expel* some of the material it has absorbed into its walls, and thus room is made to *absorb* the prohibited material. That is why the pot becomes prohibited.

The same occurs when wine is stored in an old barrel. The soaking of the wine for a long period of time causes the barrel to expel some of the wine that it has absorbed already, thus making room to absorb some new wine. The net amount of wine in the barrel, though, remains the same. That is why the Shomer does not deduct any wine when he returns it to the owner.

(The IMREI MAHARSHACH points out that according to this answer, if the barrels had previously been used to hold water, then now the barrel has expelled water and has absorbed wine! He answers that it is not the custom for people to be particular about this, since the presence of such a small amount of water in the wine is immaterial.)

(b) The KEREISI U'PLEISI and CHAVOS YA'IR (#104) answer that it is true that an old pot or barrel does not absorb any liquid or food material. However, it does absorb *taste* ("Ta'am"). A pot in which a prohibited food was cooked absorbs the *taste* of that food and becomes prohibited. "Taste" is absorbed by a pot even if the pot has already absorbed its capacity of liquid or food material.

(The CHAVOS YA'IR adds that the concept of our Gemara that once a barrel has absorbed its capacity it no longer absorbs more applies only to earthenware vessels. Wooden vessels, in contrast, always absorb more. This is the subject of discussion among the Acharonim. See there.) (I. Alsheich)