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Bava Kama 104



(a) When Rav Chisda says 'Sheli'ach she'As'o be'Eidim, Havi Sheli'ach' he means - that the creditor appointed a Sheli'ach in front of witnesses to claim the money from the debtor.

(b) The ramifications of Rav Chisda's statement are - that the Sheli'ach is his Sheli'ach, and the debtor will not be held longer responsible, should anything happen to the money on the way.

(c) Rabah says - 'Sheli'ach she'As'o be'Eidim, Lo Havi Sheli'ach' (and the debtor retains responsibility).

(d) Rav Chisda's reason is because, it is evident from the fact that the creditor appointed the Sheli'ach in front of witnesses, that he intended to appoint him his official Sheli'ach. According to Rabah however - the witnesses were only meant to assure the debtor that he was a good man, and that he (the debtor) could rely on him to bring him the money.

(a) The Mishnah in 'ha'Sho'el' states that if Reuven asks to borrow a cow from Shimon, who sends it to him through a son, an Eved, or a Sheli'ach belonging to either of them, and the cow died on the way - the borrower is Patur, proving that 'Sheli'ach she'As'o be'Eidim Lo Havi Sheli'ach' (whereas according to Rav Chisda, he does).

(b) The Sheli'ach must have been appointed in front of witnesses - because otherwise, how would the owner know that he was in fact, a Sheli'ach?

(c) We learned in our Mishnah that the Ganav may not send the stolen article on which he swore via the owner's son or Sheli'ach, from which we can extrapolate the same as we extrapolated from the Mishnah in 'ha'Sho'el'. In order to reconcile his opinion with this Mishnah - Rav Chisda establishes it by 'Sechiro u'Lekito' (where the Ganav would have known that he was the owner's Sheli'ach, even if there were no witnesses).

(d) 'Sechiro' means a paid worker. 'Lekito' might mean a man who gathers in the crops. It might also mean - a man who came to live with him to keep him company.

(a) We reconcile the Mishnah in 'ha'Sho'el' with Rav Chisda - in exactly the same way as we just reconciled our Mishneh ('bi'Sechiro u'Lekito').

(b) It transpires that, according to Rav Chisda, the Tana of our Mishnah will hold that, had the owner appointed the Sheli'ach with witnesses, the Ganav would be permitted to send the stolen article with him. Nevertheless, he preferred in the Seifa, to refer to a Sheli'ach Beis-Din (rather than present the case of a Sheli'ach who was appointed with witnesses) - because he has the advantage of being a valid Sheli'ach (in this regard) irrespective of who instigated his appointment, the Ganav or of the owner; whereas a private Sheli'ach who was appointed with witnesses, is only valid if he was appointed at the instigation of the owner, but not, of the Ganav.

(c) Rebbi Shimon ben Elazar in a Beraisa disagrees with this ruling however. He says that if a Sheli'ach Beis-Din who is appointed at the instigation of either the Ganav or the owner only - he is not a Shli'ach (and the Ganav may not give him the article).

(a) Rebbi Yochanan and Rebbi Elazar rule like Rav Chisda?

(b) Aside from Rav Chisda's answer ('bi'Sechiro u'Lekito'), they establish our Mishnah - when the owner sent a Sheli'ach to present himself to the Gazlan and offer his services (in which case witnesses are not required to identify the Sheli'ach).




(a) Rav Yehudah Amar Shmuel, 'Ein Meshalchin Ma'os bi'Deyukni', meaning - that if the creditor signed a letter requesting the debtor, who lived in a different town, to hand the money that he owed to his Sheli'ach, the debtor should not comply.

(b) Nor will it make any difference if witnesses signed on the letter to back the request, according to him. But to Rebbi Yochanan - if witnesses back the request, the debtor is obligated to comply.

(c) Were he to hand the Sheli'ach the money, the problem would be - that if anything happened to the money, he would have to pay again.

(a) To get round the problem of claiming a debt from someone who lives in another town, Shmuel cited the incident of Rebbi Aba who was owed money by Rav Yosef bar Chama (though this is difficult seeing as Shmuel lived long before Rav Yosef) - who asked Rav Safra to collect the money and bring it back, when he had occasion to visit there.

(b) Before handing Rav Safra the money, Rav Yosef's son Rava, advised his father - to get Rebbi Aba to sign a receipt containing the word 'Hiskabalti' ('I have received the debt').

(c) What caused Rava B'rei de'Rav Yosef to retract from his previous ruling was - Rebbi Aba's old age, and the fear that, by the time the Sheli'ach arrived with the money, he may no longer have been alive, in which case, his heirs would be able to claim the debt again, since the receipt that was signed by their father, does not cover them.

(d) So he advised Rav Safra to tell Rebbi Aba to do what Rav Papa would do at a later date. Rav Papa ...

1. ... asked Rav Shmuel bar Aba to retrieve his debt from the Bei Chuza'i - after being Makneh him the debt together with a piece of land. Rav Shmuel bar Aba then wrote 'Hiskabalti', thereby exempting the Bei Chuza'i from having to pay again.
2. ... went to meet Rav Shmuel bar Aba upon his return - demonstrating his joy at receiving his debt.
(a) From the fact that the Tana of our Mishnah found it necessary to exempt the Ganav from taking the Chomesh to Madai together with the principle - we infer that the Chomesh is considered Mamon (and not a Kaparah), in which case, the heirs are obligated to pay it after their father's death.

(b) We prove this again from ...

1. ... the continuation of our Mishnah 'Nasan Lo es ha'Keren ve'Nishba al ha'Chomesh' - which concludes 'Harei Mosif Chomesh al Chomesh'.
2. ... a Beraisa, which rules that if someone steals and swears, and then dies - his heirs are obligated to pay the Keren and the Chomesh, but not the Asham.
(c) The Beraisa learns from the Pasuk "Asher Gazal va'Asher Ashak" that a son does not need to pay a Chomesh for what his father stole if neither his father nor he swore. The Tana then goes on to add - that the same will apply even if one of them, and even both of them, did swear.

(d) Rav Nachman reconciles the previous Beraisa (which obligates a son to pay Keren ve'Chomesh for the father's theft) with this Beraisa - by establishing the former when the father had admitted that he swore falsely before he died.

(a) We can infer from the latter Beraisa, which only speaks about a Chomesh - that the son is liable to pay the Keren.

(b) This poses a Kashya on Rav Nachman - because if, as Rav Nachman just explained, this Beraisa speaks when the father did not admit to having sworn falsely, then there is no reason for the son to pay the Keren.

(a) Another Beraisa states - that a son is obligated to pay Keren for his father's theft, irrespective of whether either of them swore or not.

(b) The Beraisa concludes 'Talmud Lomar Gezeilah, ve'Oshek, Aveidah. u'Pikadon; Yesh Talmud'. Rabah bar Rav Huna asked his father - whether the correct text ought not to be 'Yishtalmu'.

(c) The difference between the two texts is - that whereas 'Yesh Talmud' implies that we learn the son's obligation to pay the Keren from the fact that the Torah inserts all these cases, 'Yishtalmu' implies that it is a S'vara which is not based on the Pasuk.

(d) Rav Huna replied - that the correct version is the one that appears in the Beraisa?

(a) The latter Beraisa, which is a continuation of the previous one, is a further proof that this Tana does obligate the sons to pay the Keren, which makes no sense if there was no admission. So we qualify the 'Lo Hodeh' of Rav Nachman to mean - that the father did not admit, but the son did.

(b) Even though the son swore and then admitted, he does not pay a Chomesh on his own admission - because the Tana speaks when the stolen object is no longer available (and the heirs are only obligated to pay their father's theft, if it is available).

(c) He nevertheless pays the Keren - because the Tana speaks when their father left other property, in which case, the Chachamim obligated the heirs to pay out of respect for their father.

(d) Rav Huna B'rei de'Rav Yehoshua explains that he is nevertheless exempt from paying the Chomesh, because one never pays Chomesh for any denial that involved Karka. The reason for this - because one does not swear on a denial involving Karka.

(a) According to some texts, we ask that even if the father did leave Karka, it is no better than an oral loan - because one cannot claim an oral loan from either the heirs or the buyers. Consequently, the son ought not to have to pay even the Keren.

(b) We answer - that the Tana speaks when the father had been to Beis-Din and his case had been concluded (in which case, the heirs become Chayav to pay.

(c) We reject this text however, in view of ...

1. ... the Kashya. Because the Sugya says later says that if the father left Karka - the heirs are obligated to pay even an oral loan out of respect for their father (in which case the Kashya us meaningless).
2. ... the answer - because what is the point of establishing the case when the father had been to Beis-Din, seeing as he did not admit? (See Tosfos DH 'Milveh al Peh', who defends this text against Rashi's Kashyos)
(d) The other problem with the answer 'be'she'Amad ba'Din' is - that this implies that, until now, the Sugya has been speaking when the father had not been to Beis-Din. But that cannot be, since the Tana specifically stated 'Nishba Hu ve'Aviv'.
(a) Rava has another way of explaining why the Beraisa obligates the son to pay the Keren but not the Chomesh. He establishes the case 'K'gon she'Haysah Diskaya shel Aviv Mufkedes be'Yad Acheirim', meaning - that a saddle-bag containing the father's money had been deposited by a third person (a fact of which the son was unaware).

(b) The son ...

1. ... therefore pays the Keren - because the money that the father had stolen is available ...
2. ... but not the Chomesh - because he swore in complete innocence, believing what his statement to be true.
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