POINT BY POINT SUMMARY
Prepared by Rabbi P. Feldman
of Kollel Iyun Hadaf, Yerushalayim
Rosh Kollel: Rabbi Mordecai Kornfeld
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Previous daf Bava Metzia 94
BAVA METZIA 91-95 - Ari Kornfeld has generously sponsored the Dafyomi
publications for these Dafim for the benefit of Klal Yisrael.
1) STIPULATIONS OF LIABILITY
(a) (Mishnah): An unpaid watchman may stipulate to be exempt
from swearing; a borrower may stipulate to be exempt from
paying; a paid watchman or renter may stipulate to be
exempt from swearing or paying;
2) IMPOSSIBLE STIPULATIONS
(b) Anyone who makes a stipulation contrary to Torah, the
stipulation is void; any stipulation in which the outcome
precedes the condition, the stipulation is void;
1. Any stipulation that can be fulfilled, it is valid.
(c) (Gemara) Question: Why are the watchmen's stipulations
valid - they are contrary to Torah, they should be void!
(d) Answer #1: Our Mishnah is R. Yehudah, who says that a
monetary stipulation contrary to Torah is valid.
1. (Beraisa - R. Meir): If one is Mekadesh a woman 'on
condition that you have no claim of food, clothing
or regular periods of relations' - she is
Mekudeshes, the stipulation is void;
(e) Answer #2: Really, our Mishnah is R. Meir; here, the
stipulation works because the watchman never obligated
himself (to have the full liability of a watchman;
Kedushin is different, for there is no such thing as
2. R. Yehudah says, monetary stipulations (food and
clothing) are valid.
3. Question: The next clause proves that our Mishnah is
not R. Yehudah!
i. (Mishnah): Anyone who makes a stipulation
contrary to Torah, the stipulation is void.
4. Answer: Really, it is R. Yehudah; the Mishnah speaks
of a non-monetary stipulation.
ii. This is like R. Meir!
5. Question (the next part of the Mishnah): Any
stipulation in which the outcome precedes the
condition, the stipulation is void.
i. This is like R. Meir!
ii. (Beraisa - Aba Chalifta citing R. Meir): If the
stipulation precedes the outcome, the
stipulation is valid; if not, it is void.
(f) (Beraisa): A paid watchman can stipulate to be like a
(g) Question: Is this through mere words?!
(h) Answer #1 (Shmuel): The case is, he made an acquisition
for the extra liability.
(i) Answer #2 (R. Yochanan): No acquisition is needed - with
the pleasure that he will get a reputation for
trustworthiness, he obligates himself.
(a) (Mishnah): Any stipulation that can be fulfilled is
***** PEREK HA'SHO'EL *****
(b) (Rav Tavla): Our Mishnah is R. Yehudah ben Teima;
Chachamim say that even a stipulation that cannot be
fulfilled, is valid.
1. (Beraisa): A man gave a Get to his wife, saying 'You
are divorced on condition that you go up to the sky'
or 'that you descend to the depth (of the ocean)' or
'that you will swallow a reed of 100 Amos', or 'you
will cross the ocean on foot' - if she fulfills the
stipulation (e.g. through using a Name of Hash-m)
she is divorced; if not, not.
(c) R.Yehudah ben Teima says, the general rule is: a
stipulation that cannot be fulfilled is just meant to
tease, it is not a stipulation.
2. R. Yehudah ben Teima says, such a Get is valid;
(d) (Rav Nachman): The Halachah follows R. Yehudah ben Teima.
(e) (Rav Nachman bar Yitzchak): Our Mishnah is indeed R.
Yehudah ben Teima.
1. (Tosfos - One might have thought, the Mishnah only
says that a stipulation which cannot be fulfilled
because it is contrary to Torah is valid) - since it
says 'Any stipulation that can be fulfilled, it is
valid', this implies that even if it is (only
physically) impossible to fulfill, it is void.
3) SHA'ALAH B'BA'ALIM
(a) (Mishnah): If Reuven borrowed Shimon's cow and at the
same time asked or hired Shimon to work for him, or if he
asked or hired Shimon to work and later borrowed it, and
the cow died, Reuven is exempt - "Im Ba'alav Imo Lo
(b) If he borrowed Shimon's cow and later asked or hired
Shimon to work for him and the cow died, he is liable -
"Ba'alav Ein Imo Shalem Yeshalem";
4) LIABILITIES OF THE WATCHMEN
(c) (Gemara): Inference: Since the middle clause says 'and
later borrowed the cow', this implies that the first
clause, which says 'at the same time', means precisely at
the same time.
(d) Question: How is this possible? Shimon is hired as soon
as Reuven asks, but the cow is not borrowed until Reuven
does Meshichah (pulls it to his domain)!
(e) Answer #1: The cow was already in Reuven's Chatzer, no
Meshichah is needed.
(f) Answer #2: Reuven asked that Shimon begin working for him
when he does Meshichah.
(a) (Mishnah): There are four kinds of watchmen: an unpaid
watchman, a borrower, a paid watchman, and a renter:
1. An unpaid watchman swears and is exempt for any
loss; a borrower pays for any loss;
(b) Question: What is the source of this?
2. A paid watchman or renter swears if it was broken,
taken captive or died, and pays if it was stolen or
(c) Answer (Beraisa): The first Parshah (of watchmen in the
Torah) speaks of an unpaid watchman, the second speaks of
a paid watchman, the third speaks of a borrower.
(d) Question: The third explicitly says "V'Chi Yishal" - but
perhaps the first Parshah speaks of a paid watchman, the
second is an unpaid watchman!
(e) Answer: Presumably, the second is a paid watchman, for he
is liable for theft or loss.
(f) Question: Just the contrary! The first is more liable, he
pays double if he claims that it was stolen (and really
stole it himself)!
(g) Answer: It is more stringent to pay principal for theft,
than to swear and be exempt (and pay double if he stole
1. Support: A borrower gets free benefit (presumably,
he should be most liable), and he never pays double!
(h) (Mishnah): A paid watchman or renter swears if it was
broken, taken captive or died, and pays if it was stolen
2. Question: His benefit is not free - he must feed the
3. Answer #1: The case is, the animal grazes in the
swamp, the borrower need not feed it.
i. Question: But the borrower must guard it!
4. Answer #2: It suffices to say that a borrower gets
most of the benefit.
ii. Answer: It is guarded by the guard of the city.
5. Answer #3: He borrowed vessels (they need not be
fed, and they are guarded just by having them in his
(i) We have an explicit source for theft - "V'Im Ganov
(j) Question: What is the source that he pays if it was lost?
(k) Answer (Beraisa): One might have thought that he pays
only if it was stolen - the double language "V'Im Ganov
Yiganev" teaches even if it was lost.
1. This answer is according to the opinion that the
Torah does not speak as people speak (therefore, we
expound the double language).
(l) Question: According to the opinion that the Torah speaks
as people speak, how can we answer?
(m) Answer (Chachamim of Eretz Yisrael): From a Kal
va'Chomer: theft is close to Ones, yet he is liable - all
the more so he is liable if he loses it, for this is
close to negligence!
1. The opinion that the Torah does not speak as people
speak says that the verse teaches something that
could have been learned from a Kal va'Chomer.
(n) (Mishnah): A borrower pays for any loss.
(o) The Torah explicitly obligates if it is broken or dies -
"V'Nishbar O Mes".
(p) Question: What is the source if it is captured?
1. Suggestion: We learn from breakage or death.
(q) Answer #1: It says "V'Nishbar O Mes" by a borrower and by
a paid watchman. Just as being captured has the same law
as breakage or death regarding a paid watchman (he is
exempt for either), also regarding a borrower (he is
liable for either).
2. Rejection: It occurs to a person that such Onesim
might happen, but he does not anticipate that it
will be captured!
(r) Objection: We cannot learn from a paid watchman, who is
exempt, that a borrower is liable (perhaps the Torah
never obligates for being captured!)
(s) Answer #2 (Beraisa - R. Noson): "O" includes being
(t) Question: We need "O" to separate - one might have
thought, he is only liable if it breaks and dies - "O"
teaches, this is not so
1. This is not difficult according to R. Yonason - but
according to R. Yoshiyah, how can we answer?
2. (Beraisa - R. Yoshiyah): "A man that will curse Es
Aviv v'Es Imo" - this only teaches if he curses
i. "Aviv v'Imo Kilel" - this includes, even if he
curses only one of them.
3. R. Yonason says, a Vov (and) connotes even one,
unless the Torah explicitly says 'together' (as it
does regarding Kilayim).