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Bava Metzia, 41

1) "I SHALL CARRY HIS CLOTHING AFTER HIM TO THE BATHHOUSE!"

QUESTION: The Gemara is forced to conclude that the first part of the Mishnah (40b) is expressing the view of Rebbi Yishmael, and the second part of the Mishnah is expressing the view of Rebbi Akiva who argues with Rebbi Yishmael. The Gemara quotes Rebbi Yochanan who said, "Whoever can explain to me the Mishnah concerning the 'barrel' [i.e. our Mishnah] in accordance with one Tana -- I shall carry his clothing after him to the bathhouse!" Rebbi Yochanan was saying that whoever can explain the Mishnah in accordance with a single Tana would be considered greater than he, and he would personally serve him as a student serves his teacher (TORAS CHAIM).

Is there any reason why Rebbi Yochanan specifically referred to a bathhouse? If his intention was to say that he would serve the person as a student serves his teacher, then any form of service would suffice! Why did he specifically say that he would carry the person's clothes to the bathhouse?

ANSWERS:

(a) The TORAS CHAIM cites the Gemara in Pesachim (51a) which states that a student may not enter a bathhouse with his teacher, out of deference. However, the Gemara there says that if the student is serving the teacher in the bathhouse in some way, then it is permitted for him to enter with him. For this reason, Rebbi Yochanan emphasized that he would serve the person whom he would consider his teacher, even in a bathhouse by carrying his clothes.

(b) The MAHARATZ CHIYUS cites the Gemara in Kidushin (22b) which states that when an Eved brings a person's clothes to the bathhouse for him, the person is Koneh that Eved through a Kinyan Chazakah, because that act of service is a normal labor of an Eved. The Gemara in Kesuvos (96a) rules that any service which an Eved is required to do for his master, a student is required to do for his teacher. For this reason, Rebbi Yochanan said that he would carry the person's clothes to the bathhouse; Rebbi Yochanan was emphasizing that he would do a service which a student is obligated to do for his teacher.

(c) The BE'ER SHEVA (Teshuvos #11) first asks why it is that it is only Rebbi Yochanan who uses this exclamation, in a number of places in the Gemara, and no other Amora ever says such a thing.

He cites the Gemara in Kesuvos (96a) that says that any service which an Eved is required to do for his master, a student is required to do for his teacher "except for removal of the shoe in a place where they do not recognize him, lest they say that he is actually an Eved." The Gemara adds that this limitation does not apply when the student is wearing Tefilin upon his head. When he is wearing Tefilin, then it is evident to all that he is not an Eved, and he may do any labor for his teacher even in a place where he is not known.

It is clear that when the student is not wearing Tefilin and is in a place where he is not known, he may not do *any* of the labors that an Eved must do for his master (and not just removal of the shoe), such as carrying his clothes for him to the bathhouse. Since Rebbi Yochanan's physical health prevented him from wearing Tefilin upon his head at all times, he therefore exclaimed that he would carry the person's clothes to the bathhouse to emphasize that not only would he act with respect towards the person who would explain the Mishnah to him, but he would do for that person even that which a student is *not* required to do for his teacher in a place where he is not recognized. Moreover, he would do a labor for the person which everyone could see (carrying the clothes to the bathhouse), even though he would not be wearing Tefilin and even though people would therefore say that Rebbi Yochanan is an Eved! (The MA'AYAN HA'CHOCHMAH questions this approach, though, saying that it would have been prohibited for Rebbi Yochanan to do something that would cause others to say that he is an Eved.) (I. Alsheich)

41b

QUESTION: The Gemara explains why it was necessary for the Torah to include reference to "Shelichus Yad" in both the verse that discusses Shomer Chinam and the verse that discusses Shomer Sachar. The Gemara concludes that according to the opinion that maintains that a Shomer is Chayav for "Shelichus Yad" (and becomes like a Ganav) only when he causes the object to decrease in value, the reason why the Gemara mentions "Shelichus Yad" in the second verse is to teach the following. The verse (Shemos 22:7) says that the Shomer Chinam "shall be brought to the judges," but it does not specify for what purpose. We might have thought that it means only that he must be brought to Beis Din to be judged and not to swear. The fact that the Torah mentions "Shelichus Yad" here, in the verse of a Shomer Chinam, and later, in the verse of a Shomer Sachar, teaches that just as the verse of a Shomer Sachar is discussing a Shevu'ah, so, too, the verse of a Shomer Chinam is discussing a Shevu'ah. RASHI (DH Af Kan l'Shevu'ah, and in Bava Kama 63b, DH DH O Eino Ela l'Din) writes that we learn from here that the Shomer Chinam does not pay Kefel merely by claiming falsely that the object was stolen, but rather by swearing falsely that the object was stolen. Rashi adds that we also learn from here that a Shevu'ah exempts the Shomer Chinam from paying for the object when it was stolen or lost.

It seems from the words of Rashi that the initial assumption of the Gemara is that a Shomer Chinam cannot exempt himself from paying by making a claim that the object was stolen. If he claims that the object was stolen, he must pay the Keren (principle). According to this, though, when do we ever have a case of a Shomer who will have to pay *Kefel* for "To'en Ta'anas Ganav," for making a false claim that the object was stolen, according to the Gemara's assumption at this stage (that a Shomer pays the Keren without a Shevu'ah)? If he pays the Keren right away at the time that he claims the object was stolen, then he will never reach a point where he is found to have made that claim falsely with a Shevu'ah such that he must pay Kefel! The Gemara in Bava Kama (63b) though says that everyone agrees that a Shomer who makes a false claim of Geneivah must pay Kefel! (MAHARSHA)

ANSWERS:

(a) The MAHARSHAL and MAHARAM in Bava Kama (63b) write that Rashi's intention is not that the Shomer must pay Keren now, when he claims that the object was stolen. Rather, Rashi means that a Shomer Chinam who claims a "Ta'anas Ganav" is exempt from paying altogether, and if witnesses come later and testify that the Shomer himself stole the object, he must then pay Kefel, *even without a Shevu'ah*. They infer this from the words of Rashi in our Sugya, where Rashi (DH Atah Omer) says that "from the time that he claims in Beis Din that it was stolen, *even though he does not make a Shevu'ah* he must pay Kefel if witnesses come." Hence, the Havah Amina was only that the Shomer Chinam will have to pay Kefel later, even without having made a Shevu'ah, if witnesses come and show that he was "To'en Ta'anas Ganav;" the Havah Amina was not that he pays the Keren now at the moment that he claims the item was stolen.

(b) The MAHARSHA (in Bava Kama 63b) does not accept this answer, though (see Insights to Bava Kama 63:3). He asserts that it is not possible to suggest that a Shomer Chinam is Chayav to pay Kefel without a Shevu'ah. If it were possible to pay Kefel without a Shevu'ah, then the Torah should have no need to write the Chiyuv of Kefel with regard to a Ganav (who pays Kefel without a Shevu'ah), for it could have learned it through a Kal v'Chomer from a Shomer who is "To'en Ta'anas Ganav." It must be that a Shomer is Chayav to pay Kefel only when he is "To'en Ta'anas Ganav" with a Shevu'ah, and therefore the Torah had to teach that a Ganav pays Kefel even without a Shevu'ah.

Because of this question, the Maharsha explains Rashi's words differently. Indeed, the Havah Amina was that the Shomer Chinam pays the Keren now, and, nevertheless, if it is discovered later that he is the thief, he must pay Kefel because of the Gezeiras ha'Kasuv. According to this Havah Amina, the Torah must teach us the Chiyuv of Kefel in the case of a Ganav, because that itself is the Chiyuv of Kefel of the Shomer who is "To'en Ta'anas Ganav," for he pays the Kefel later when he is found to be a Ganav.

(How do the Maharshal and Maharam answer the question of the Maharsha? That is, why, according to the Havah Amina, does the Torah need to write the Chiyuv of Kefel with regard to a Ganav, when it can be derived through a Kal v'Chomer from a Shomer who is "To'en Ta'anas Ganav?" The Maharam in Bava Kama cites the TOSFOS YESHANIM who gives several answers. One answer is that according to the Havah Amina, indeed the Torah did not have to write the Chiyuv of Kefel with regard to Ganav and we would have known it from Shomer, but "Milsa d'Asi b'Kal v'Chomer, Tarach v'Kasav Lah Kra.") (I. Alsheich)