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Bava Kama 105



(a) We learned in our Mishnah that the Ganav does not need to take less than a Shaveh P'rutah to Madai. Rav Papa in the first Lashon qualifies this - by restricting it to a case where the actual object that he stole is no longer available. In the event that it is, he is obligated to return it - because we contend with the fact that its value might rise.

(b) In the second Lashon - Rav Papa maintains that the Tana incorporates where the stolen object is available, and does not take into account the possibility that the price might rise.

(c) In spite of this same Mishnah, Rava rules that if someone stole three bundles worth three P'rutos, and paid back two of them after their total price had dropped to two P'rutos, that he remains obligated to return the third one - because at the time when he stole it, it was worth a P'rutah.

(d) And we prove this from the Mishnah above 'Gazal Chametz she'Avar Alav ha'Pesach Omer Lo Harei she'Lecha Lefanecha', from which we can infer - that if the Chametz was not available, he would be obligated to return it, even though it is no longer worth a P'rutah, because it was worth a P'rutah at the time when he stole it.

(a) In a case where the Ganav stole two bundles worth a P'rutah and returned one of them, Rava is initially unsure whether he is obligated to return the other one. He might be Patur because the one still owing is not worth a P'rutah. He might nevertheless be Chayav - because since when he returned one of the bundles he did not fulfill the Mitzvah of Hashavah, the obligation still remains.

(b) Initially, Rava concludes 'Gezeilah Ein Ka'an, Hashavah Ein Ka'an'. We reject this however - on the basis of what Rava stated in the She'eilah that if anything, the S'vara of 'Gezeilah Ein Ka'an' is based on the fact that the Hashavah is sound (if it is unsound, then the Gezeilah remains).

(c) What he really means to say is - that despite the fact that there is no Gezeilah, he has not fulfilled the Mitzvah of Hashavah either (see Tosfos DH 'Mitzvas Hashavah').

(a) At least two hairs must remain on a Nazir, to require the Mitzvah of Gilu'ach.

(b) Rava asks what the Din will be if a Nazir shaves off one of the last two remaining hairs and the other one falls out. This is not really a She'eilah - because it is obvious that he is not obligated to shave them off simultaneously, and that consequently, he fulfilled the Mitzvah of Gilu'ach when he shaved the first hair.

(c) Rava's She'eilah must therefore be - when one of the two hairs fell out first and he then shaved the second one, whether he is Yotze because there are no hairs left, or whether he did not fulfill it, because at the time when he carried out the Gilu'ach, only one hair remained.

(d) Rava concludes - that even though no hairs remain, he has not fulfilled the Mitzvah of shaving.

(a) Rava quotes the Mishnah in Keilim. When the Tana states that an earthenware barrel with a hole in it which the dregs stop up, saves it - he is referring to the case of a corpse that is lying in a downstairs room and this barrel fills the skylight between the room and the attic. The barrel saves the attic and all which it contains from Tum'as Meis.

(b) When Rava asks 'Agaf Chetzyah Mahu' - he means to ask whether the same will apply if the hole in the barrel was half cemented, reducing it to less than the Shi'ur (that allows Tum'ah to penetrate the barrel [in which case the barrel would be disqualified from serving as a Mechitzah against Tum'ah]).

(c) Rav Yeimar tries to resolve Rava's She'eilah with the continuation of the Mishnah. The Mishnah states that in a case where someone stopped up the barrel with ...

1. ... a branch - the barrel will prevent the Tum'ah from rising to the attic, provided the branch is cemented to the barrel.
2. ... two branches - the branches also need to be cemented together.
(d) Rav Ashi rejects Rav Yeimar's proof from the fact that one needs to cement the gap in between the two branches that the hole must be stopped up properly (and that the fact that the hole no longer has the Shiur is insufficient) - on the grounds that this case is different, inasmuch as without cement in the middle, the branches will not remain in place, in which case, they cannot be considered a permanent filler (like dregs and cement).



(a) We already learned that if someone stole Chametz before Pesach, he can say to the owner after Pesach 'Harei she'Lecha Lefanecha'. Rava asks what the Din will be if the Ganav swears that he did not steal it, after the Chametz became forbidden. He might be Chayav a Chomesh and an Asham despite the fact that the Chametz has no intrinsic value - because of its 'Davar ha'Gorem le'Mamon' value, seeing as could have returned it to its owner and exempted himself from having to pay.

(b) Rabah states that if Reuven claims that Shimon stole his ox and Shimon replies that he did not (and swears accordingly), but that he is ...

1. ... a Shomer Chinam on it - he is Chayav because his Shevu'ah exempted him from Geneivah va'Aveidah.
2. ... a Shomer Sachar on it - he is Chayav because his Shevu'ah exempted him from Onsin.
3. ... a Sho'el on it - he is Chayav because his Shevu'ah exempted him from - Meisah Machmas Melachah (even though, in all three cases, he admits that he owes him the actual article.
(c) We see from here - that although Rava is uncertain whether the Ganav is Chayav in such a case, Rabah is sure that he is.
(a) The Beraisa learns from the Pasuk "ve'Chichesh Bah" - that one is only Chayav a Chomesh and an Asham if he denies the actual object, but not if he claims, for example, that it was chasing after his ox or that he was a Shomer on it (seeing as he does not deny the actual article, as we explained earlier).

(b) To reconcile Rabah with the Beraisa, we establish ...

1. ... the Beraisa - by 'Heilech', when the animal is available and he offers it to the owner as it is.
2. ... Rabah - when it is not a case of 'Heilech'.
(c) Among the cases that the Tana cites are 'Atah Mecharto Li, Atah Nesato Li, Avicha Nasno Li and To'eh ba'Derech Metzasiv'. He includes in 'Modeh be'Ikar' ...
1. ... 'Atah Mecharto Li' - when he claims that the owner sold him the animal, but that, since he had not yet paid him, he should take his animal back.
2. ... 'Atah Nesato Li, Avicha Nasno Li' - when he claims that either of them gave him the ox on condition that he repaid the son with a certain favor, but that, because he had not fulfilled his side of the bargain, he should take the ox back.
(d) Shmuel's father explains that when the Ganav said 'To'eh ba'Derech Metzasiv', he claimed and swore that he found the lost animal, and that he took it home and failed to return it to the owner, - because he did not know who the owner was?
(a) Ben Azai lists three cases regarding Shevu'as ha'Eidus - when someone asks witnesses to testify on his behalf, and the potential witnesses deny any knowledge of the case.

(b) ben Azai is talking about a single witness.

(c) The first case is when the potential witness claimed and swore that he recognized the animal but not the owner, and the second, the reverse. The third case cannot be when he recognized neither - because then he would not have sworn falsely.

(d) The third case must therefore be - when he recognized both the animal and the owner.

(a) The above Machlokes Amora'im is connected to a Machlokes Tana'im. The Tana Kama in the Beraisa holds 'ha'Mashbi'a Eid Echad, Patur. Rebbi Elazar b'Rebbi Shimon says - Chayav.

(b) The basis of their Machlokes is whether 'Davar ha'Gorem le'Mamon ke'Mamon Dami'.

1. The Tana Kama holds Patur - because one witness obligates the litigant to swear. True, he might have preferred to pay rather than swear falsely, but that is a 'Davar ha'Gorem le'Mamon', and the Tana Kama holds 'La'av ke'Mamon Dami'. Consequently, by declining to testify, he did not cause the litigant a monetary loss.
2. ... Rebbi Shimon ben Elazar holds Chayav - because the Chiyuv Shevu'ah can lead to the litigant paying (and he holds 'Davar ha'Gorem le'Mamon ke'Mamon Dami').
(a) Rav Sheishes says - that a Shomer Chinam who denies the Pikadon (even without a Shevu'ah) - becomes a Ganav (and is Chayav Onsin, even though, had he not denied it, he would have been Patur).

(b) We try to prove his opinion from a Beraisa. The Tana there, learns the punishment of a Shomer Chinam who denies that he is a Shomer from the words "ve'Chichesh Bah", and from "ve'Lo Sechachashu" - the warning (since every punishment must have a corresponding warning).

(c) We initially think that the Tana is referring to - the punishment of the Chiyuv Onsin (as we just explained).

(d) We are trying to prove from here that once the Shomer denies that he is a Shomer, he becomes a Ganav (like the opinion of Rav Sheishes).

(a) We reject the proof for Rav Sheishes from the Beraisa however, by establishing the case by 'Onesh Shevu'ah'. But we query this from the Seifa - which specifically refers to Onesh Shevu'ah (and why would we need two different Pesukim to teach us the same thing)?

(b) The Seifa learns from the Pasuk ...

1. ... "ve'Nishba al Sheker" - Onesh Shevu'ah.
2. ... "Lo Seshakru" - the warning.
(c) Nevertheless, we establish the Reisha too, where the Shomer swore. The Tana finds it necessary to present two cases of where he swore - the Reisha where it was two witnesses who subsequently revealed the truth, the Seifa, where he admitted that he swore falsely.

(d) The difference between the Onesh in the Reisha and the Onesh in the Seifa is - that, in the Reisha, he has to pay for Onsin (as we explained earlier), whereas in the Seifa, he pays Keren and a Chomesh, and has to bring an Asham.

(a) Another Beraisa discusses 'Kenegdo Chashud al ha'Shevu'ah' - which means that although, min ha'Torah, it is always the defendant who swears, there where the defendant is unable to swear, because he is suspected of swearing falsely, then the Chachamim switched the Shevu'ah to the claimant.

(b) The Tana gives three examples of a Chashud. He refers to cases of Shevu'as ha'Eidus, Shevu'as ha'Pikadon - and of Shevu'as Shav.

(c) Shevu'as Shav is different than the other two cases - inasmuch as it does not involve money, and that it renders him 'Ra la'Shamayim', but not 'Ra la'Beri'os (like the other two). Nevertheless, he is Chashud.

(d) Rami bar Chama asks from this Beraisa on Rav Sheishes - according to whom, in the case of Shevu'as ha'Pikadon, the Tana should have considered the Shomer Chashud from the time he denied the Pikadon, even without having sworn.

(a) We answer Rami bar Chama's Kashya by establishing the Beraisa when the ox was standing in a meadow, in which case - had he not sworn, we would have assumed that his denial was only to give him time to go and fetch it; whereas Rav Sheishes is speaking when witnesses testify that the article was actually in his domain when he denied it.

(b) And we support this answer with a statement by Rav Idi bar Avin, who ruled that if someone denies ...

1. ... a loan - he remains a valid witness (because he is only stalling for time, as we just explained).
2. ... a Pikadon (when witnesses testify that the article was actually in his domain when he denied it, as we establish in Bava Metzi'a) - he is Chayav.
(c) The difference between the two cases is based on the fact - that a loan is intended for spending, whereas a Pikadon is expected to be intact.
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