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Bava Metzia, 94

1) EXEMPTING ONESELF FROM LIABILITY IN CASE OF A "PESHI'AH"

QUESTION: The Mishnah states that a Shomer Chinam may stipulate, at the time that he receives the object to watch, that in case of lost, theft, or Ones, he will be exempt from paying without having to make a Shevu'ah. Likewise, a Sho'el -- who is normally Chayav to pay in cases of lost, theft, or Ones -- may stipulate that he will be exempt from liability.

The Rishonim ask why the Mishnah does not also say that a Shomer Chinam can stipulate that he will be exempt from having to pay in case of Peshi'ah? Just like a Sho'el can stipulate that he will be exempt in cases in which he normally would have to pay, so, too, a Shomer Chinam should be able to stipulate that he will be exempt in a case of Peshi'ah!

ANSWERS:

(a) RABEINU YEHONASAN (cited by the Shitah Mekubetzes) answers that no sane person would presume to make such a condition -- to exempt himself from paying in a case of Peshi'ah -- because such a person is not called a "Shomer" at all, but a "Mazik!" The owner of the object is giving it to the second person in order for him to guard it, and not to harm it. Hence, every Shomer accepts upon himself to guard the object to some degree; the only flexibility exists with regard to exempting himself from a Shevu'ah in a case of loss, theft, or Ones.

(b) The HAGAHOS ASHIRI writes that from the fact that the Mishnah does not list this as one of the stipulations that a Shomer may make, we learn that a Shomer Chinam is *always* Chayav to pay in a case of Peshi'ah, even if he made a stipulation to exempt himself.

It seems that there is a practical difference in Halachah between these two answers. According to the Hagahos Ashiri, if a Shomer *does* make such a stipulation to exempt himself from liability if he is Poshe'a, he will still be obligated to pay. According to Rabeinu Yehonasan, he indeed will be exempt from liability. This is also the view of TOSFOS (93b, DH Iy) and the ME'IRI.

(c) RAV SHLOMO EIGER (in Gilyon Maharsha) cites the SHEVUS YAKOV who answers this question as follows. It is obvious that when a Shomer Chinam stipulates that he will be exempt in a case of Peshi'ah, the stipulation is valid and he is indeed exempt from payment. By making such a stipulation, he removes from himself the obligation to guard the object. It is similar to making a stipulation that he will be permitted to be negligent with the object, in which case he certainly is not a Shomer. In each case of a stipulation that the Mishnah mentions, there is a Havah Amina that the stipulation would not be effective because it runs counter to the law that is written in the Torah, and thus is "Masneh Al Mah she'Kasuv ba'Torah." In contrast, the stipulation of a Shomer Chinam not to be Chayav in a case of Peshi'ah is clearly not a case of "Masneh Al Mah she'Kasuv ba'Torah," because the person is not a Shomer at all such that we would think that the laws of Shomrim apply to him; by stipulating that he is exempt from Peshi'ah, it is as if he is saying, "I am not a Shomer." Hence, the Mishnah does not need to mention that case. In the other cases, the person accepts upon himself the title (and laws) of a Shomer, and he is just stipulating to exempt himself from a Shevu'ah or from a certain form of liability. (I. Alsheich)

QUESTION: The Mishnah states that a Sho'el may stipulate, at the time that he borrows the object, receives the object, that in case of lost, theft, or Ones, he will be exempt from liability. Why does the Mishnah not mention that a Sho'el may stipulate that he will be exempt from a Shevu'ah in a case of "Meisah Machmas Melachah" (where the animal died in the course of normal work), in which a Sho'el is normally exempt from paying but he must make a Shevu'ah?

ANSWER: The D'VAR YAKOV answers that this Mishnah is a continuation of the previous Mishnah (93a). Since the previous Mishnah does not discuss the exemption of a Sho'el in a case of "Meisah Machmas Melachah," the Mishnah here does not mention it either. (I. Alsheich)

94b

QUESTION: The Gemara asks what the source is for the Halachah that a Shomer Sachar is Chayav in a case of Aveidah. The Gemara answers that we learn that a Shomer Sachar is Chayav in a case of Aveidah from the repetitiveness of the verse, "Im Ganov Yiganev" (Shemos 22:11). This answer suffices according to the opinion that maintains that the Torah does not speak in the style of man. According to the opinion that maintains that the Torah does speak in the style of man, though, we cannot infer anything from the extra word in the verse. What, then, is the source that a Shomer Sachar is Chayav for Aveidah? The Gemara answers that it is a Kal v'Chomer: if the Torah obligates a Shomer Sachar if the object is stolen, even though Geneivah is closer to Ones, then certainly he should be obligated to pay for the object if it is lost, since Aveidah is closer to negligence!

If there is a Kal v'Chomer, then what is the purpose of the repetitiveness of the verse "Im Ganov Yiganev" according to the opinion that maintains that the Torah does not speak in the style of man? The Gemara answers that "Milsa d'Asya b'Kal v'Chomer, Tarach v'Chasav Lah Kra" -- "The Torah troubles itself to write out explicitly that which can be learned from a Kal v'Chomer."

What is the logic behind this principle? If we know the Halachah through a Kal v'Chomer, then why does the Torah need to add extra words to teach this Halachah? Moreover, we know that a person may use the rules of Kal v'Chomer to derive a Halachah without having any tradition to make such a Kal v'Chomer, in contrast to a Gezeirah Shavah, for which there must be a tradition from Sinai. Since a Kal v'Chomer is the most logical and understood of the thirteen methods that Chazal use for extracting the Halachah from the verses of the Torah, why is it necessary for the verse to repeat what we know from a Kal v'Chomer? Indeed, this principle is never mentioned by the Gemara with regard to any other of the thirteen methods of Halachic derivation, such as a Gezeirah Shavah, although it would seem to make more sense that the Torah would trouble itself to write a Halachah that can be learned through a Gezeirah Shavah, since a Gezeirah Shavah does not have any apparent logic to it.

ANSWER: The B'NEI YISSACHAR (Chodesh Adar, Ma'amar 10, cited by YOSEF DA'AS) explains that all of the thirteen methods are not based on human logic, but are purely methods that have been taught at Sinai. The only exception is a Kal v'Chomer, which, in addition to having been taught to us at Sinai, also has some logical basis. In order to teach that all of the Mitzvos of the Torah are beyond logical understanding, and must be followed merely because they are the will of Hashem, the Torah troubles itself to write explicitly a law that can be learned *through a Kal v'Chomer* (i.e. a law which has logical basis to it).

Perhaps this is also the explanation for the principle expressed in Shabbos (132a) and Pesachim (81b) that "Ein Danin Kal v'Chomer me'Halachah" -- we cannot use a Kal v'Chomer to teach a second Halachah from a Halachah l'Moshe mi'Sinai. RASHI there explains "that Torah she'Ba'al Peh is not given to be expounded with the thirteen methods." If a Kal v'Chomer is a logical tool, then why should we be restricted from making a Kal v'Chomer even from a Halachah l'Moshe mi'Sinai? The answer is, as mentioned above, that even though a Kal v'Chomer has a logical basis, nevertheless had the methods of Halachic derivation not been taught to us at Sinai, we would not have the prerogative to extract any Halachah through any method, regardless of how logical it might be. We are able to apply the methods of Halachic derivation only because the Torah teaches us that we may do so with regard to laws written explicitly in the Torah. Since we are not given that license with regard to Torah she'Ba'al Peh, we may not apply even a Kal v'Chomer. This is the reasoning behind the principle, "Ein Danin Kal v'Chomer me'Halachah." (I. Alsheich)