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1) LIABILITIES OF THE WATCHMEN (cont.)

(a) Answer: This is even like R. Yoshiyah - here, we do not need "O" to separate.

1. Question: Why not?
2. Answer: Breakage is like partial death - since he is liable for full death, he should also pay for partial death.

(b) Question: What is the source that a borrower is liable for theft or loss?

1. Suggestion: We learn from breakage or death.
2. Rejection: There he is liable because the owner cannot retrieve it - by theft or loss, the owner may toil and retrieve it!

(c) Answer (Beraisa): "V'Nishbar O Mes" - we learn theft or loss from a Kal va'Chomer:

1. A paid watchman is exempt for breakage or death, yet he is liable for theft or loss - a borrower, who is liable for breakage or death, all the more so he is liable for theft or loss!
2. This is an unrefutable Kal va'Chomer.
3. Question: What does this mean?
4. Answer: The following question does not refute the Kal va'Chomer.

i. Question: There is a stringency of a paid watchman, he pays double if he claims that it was stolen by armed robbers (and really stole it himself)!
ii. Answer #1: It is more stringent to pay principal, than to swear and be exempt (and pay double if he stole it himself).
iii. Answer #2: The Tana holds that armed robbers are like regular robbers (double payment is only by a claim of theft).

(d) Question: What is the source that if one borrows b'Ba'alim (from his employee) he is exempt for theft or loss?

1. Suggestion: We learn from breakage or death.
2. Rejection: We cannot learn from them, they are Onesim!

(e) Answer #1: Rather, we learn from a paid watchman.

1. Question: What is the source that a paid watchman is exempt for these b'Ba'alim (if the depositor was working for the watchman)?
2. Answer: We learn the liabilities of a paid watchman (theft or loss) from the liabilities (explicit in the Torah) of a borrower (breakage or death): just as a borrower is exempt b'Ba'alim, also a paid watchman.
3. Question: What method teaches this?

i. If 'Mah Matzinu' (just as we find here, also there) - we cannot learn from breakage or death, they are Onesim!

4. Answer: Rather, "V'Chi Yishal" - the Vov teaches that the former Parshah (a paid watchman) is learned from the latter (a borrower).

(f) Objection: We cannot learn from a paid watchman, for he is exempt for breakage or death!
(g) Answer #2: Rather, we learned that a borrower is liable for theft or loss from (a Kal va'Chomer from) a paid watchman - Dayo (we only learn as much as the source, i.e. not b'Ba'alim).

1. Question: This is according to the opinion that we say Dayo - according to the opinion that argues on Dayo, how can we answer?

(h) Answer#3: "V'Chi Yishal" - the Vov connects the Parshiyos, we learn each from the other.

(a) (Rav Acha or Ravina): One who borrowed b'Ba'alim and was negligent is liable.
(b) (The other of Rav Acha and Ravina): He is exempt.

1. The first opinion holds that we learn the exemption of b'Ba'alim to the previous Parshah (a paid watchman), not to the Parshah before the previous Parshah (an unpaid watchman);

i. Therefore, an unpaid watchman (who is only liable for negligence) is liable b'Ba'alim. We learn from a Kal va'Chomer that a paid watchman or borrower is liable for negligence b'Ba'alim.
ii. The exemption of b'Ba'alim was only written regarding the other obligations of a paid watchman and borrower.

2. The latter opinion holds that we learn also learn to two Parshiyos earlier. (An unpaid watchman is only liable for negligence, and he is exempt b'Ba'alim - there is no source to obligate other watchmen for negligence b'Ba'alim).

(c) (Implied question: what is the law?)
(d) Answer #1 (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.

1. The Mishnah does not say that an unpaid watchman is exempt b'Ba'alim (it must be, he is liable)!

(e) Rejection: It does not mention a paid watchman, even though he is exempt!

1. We must say, the Tana only teaches a borrower because the Torah wrote b'Ba'alim by a borrower.

(f) Answer #2 (Beraisa): If Reuven borrowed Shimon's cow and (at the same time) asked Shimon to work for him, or if he rented the cow and hired Shimon, or he borrowed the cow and hired Shimon, or he rented the cow and asked Shimon to work - even if Shimon was working somewhere else when the cow died, Reuven is exempt.

1. We are thinking that the Beraisa is R. Yehudah, who says that a renter has the law of a paid watchman.
2. Even though the Tana teaches a renter, (even though his exemption b'Ba'alim is learned by expounding), he does not teach an unpaid watchman - we conclude that an unpaid watchman is liable b'Ba'alim!

(g) Rejection #1: The Beraisa is R. Meir, who says that a renter has the law of an unpaid watchman;

1. The Tana teaches that an unpaid watchman is exempt b'Ba'alim, the same applies to a paid watchman.

(h) Rejection #2: The Beraisa is R. Yehudah, but according to Rabah bar Avuha, who switches the opinions.

1. (Rabah bar Avuha): R. Meir says that a renter is a paid watchman; R. Yehudah says, he is an unpaid watchman;

(a) Rav Hamnuna: Reuven (the borrower) is liable unless the owner was working with his animal, and he was working for Reuven from the moment he borrowed it until it broke or died.

1. He holds that "Ba'alav Imo" applies to the entire Parshah.

(b) Question #1 (Rava - Beraisa): If (at the same time) Reuven borrowed Shimon's cow and asked Shimon to work for him, or if he rented the cow and hired Shimon, or he borrowed the cow and hired Shimon, or he rented the cow and asked Shimon to work - even if Shimon was working somewhere else when the cow died, Reuven is exempt.

1. Suggestion: Shimon was not working on the same task as his cow.

(c) Answer: No, he was working on the same task.

1. Question: But it says, even if Shimon was working somewhere else!
2. Answer: It means, he was softening the ground in front of it.
3. Question: Since the end of the Beraisa says that he was on (i.e. working with) the animal, the beginning of the Beraisa means he was doing a different task!

i. (End of the Beraisa): If Reuven borrowed Shimon's cow and later asked Shimon to work for him, or if he rented the cow and later hired Shimon - even if Shimon was on the cow when it died, Reuven is liable.

4. Answer: In both clauses, Shimon was working with it; each clause teaches a Chidush.

i. The first clause teaches that even though he was not on it, just engaged in the same task, since he was hired from the beginning of the rental, Reuven is exempt;
ii. The second clause teaches that even though he was on it, since he was not hired from the beginning of the rental, Reuven is liable.

(d) Rejection: If in the first clause he was doing a different task and in the second clause he was engaged in the same task, each would be a Chidush;

1. But if in both clauses, Shimon was engaged in the same task, what difference does it make it he was on it?

(e) Question #2 (Beraisa): "Im Ba'alav Imo Lo Yeshalem" - we can infer, "Ba'alav Ein Imo Shalem Yeshalem"!

1. The latter verse is extra, to teach that the exemption is only if Shimon was working for him when the animal was borrowed - it does not matter whether or not he was working for him when it broke or died.

(f) Question #3 (Beraisa): "Ba'alav Ein Imo Shalem Yeshalem" - we can infer, "Im Ba'alav Imo Lo Yeshalem"!

1. The verse "Im Ba'alav" is extra, to teach if the animal was borrowed b'Ba'alim, whenever it may die (even after the owner stops working for the borrower) he is exempt.

(g) Rav Hamnuna is refuted.
(h) Abaye holds like R. Yoshiyah, and expounds the verses as R. Yoshiyah; Rava holds like R. Yonason, and expounds the verses as R. Yonason.
(i) (Abaye): "Ba'alav Ein Imo Shalem Yeshalem" - he is liable because the owner was not working for him at either time, not the time of borrowing nor the time of death;

1. If he was working for him at one time, he is exempt.

(j) Question: But it says "Im Ba'alav Imo Lo Yeshalem" - he is exempt only if the owner was working for him at both times;

1. If he was working for him at only one time, he is liable!

Answer: If he was working for him only at the time of borrowing, he is exempt; if he was working only at the time of death, he is liable!