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Bava Kama 107



(a) The Torah writes "Ki Hu Zeh" - by To'en Ta'anas Ganav of a Pikadon.

(b) Rebbi Chiya bar Aba Amar Yochanan learns from "Ki Hu Zeh" - that a 'To'en Ta'anas Ganav be'Pikadon' is only Chayav a Shevu'ah if he is 'Modeh be'Miktzas ha'Ta'anah' (meaning that he denies part of the claim and admits to part of it [as is implied by "Ki Hu Zeh"]).

(c) Rebbi Chiya bar Yosef disagrees with Rebbi Yochanan. When he says 'Eiruv Parshiyos Kasuv Ka'an, he means - that although the Pasuk is written by Pikadon, it pertains exclusively to a Milveh (a loan), as we shall now see.

(a) With regard to a Pikadon, Rebbi Chiya bar Yosef will hold - that the Shomer is Chayav a Shevu'ah even if he denies the entire claim.

(b) He bases the distinction between Milveh and Pikadon on a statement of Rabah who explains that a Kofer ba'Kol (someone who denies the entire claim) is Patur from a Shevu'ah - because if he was not telling the truth, he wouldn't have the gall to deny the entire claim into the face of the very person who did him a favor and lent him the money.

(c) Despite the fact that he doesn't have the gall to deny the creditor's claim, he doesn't admit to the entire claim either - because he cannot afford to pay the full amount, so he decides to deny half the claim until such time as he has the money, when he will pay his debt in full. Hence the Shevu'ah.

(d) This distinction will not apply to a Pikadon however - because there, he has no qualms about denying the entire claim (seeing as the owner did not do him any favors). Consequently, he will have to swear even if he denied everything.




(a) Rami bar Chama, citing a Beraisa - requires all four Shomrim to admit to part of the claim, before being required to swear.

(b) Rava reveals Rami's sources. His source for this ruling with regard to a Shomer Chinam is - "Ki Hu Zeh", which, as we have already explained, is written by a Shomer Chinam.

(c) Rami bar Chama's source for a Shomer Sachar is the 'Gezeirah-Shavah' "Nesinah" "Nesinah" from a Shomer Chinam, and for ...

1. ... a Sho'el - "ve'Chi Yish'al", 'Vav Mosif al Inyan Rishon' (the 'Vav' connects the Sho'el with the Shomer Sachar which precedes him).
2. ... a Socher - the fact that he either has the Din of a Shomer Sachar, or of a Shomer Chinam (depending on the opinions of Rebbi Meir and Rebbi Yehudah, as we will learn in Bava Metzi'a).
(a) The Pasuk which obligates a To'en Ta'anas Ganav to pay Kefel, first writes "ve'Nikrav Ba'al ha'Bayis el ha'Elohim im Lo Shalach Yado bi'Meleches Re'eihu". The phrase "ve'Nikrav Ba'al ha'Bayis el ha'Elohim" relates to a Shevu'ah.

(b) Rebbi Chiya bar Yosef now learns from the Pasuk - that a To'en Ta'anas Ganav by a Pikadon is Patur, unless he first used the object illegally.

(c) This means - that a To'en Ta'anas Ganav is Patur from paying the Kefel if he did not first use the article, but not that he does not need to return the article.

(d) Rebbi Chiya bar Aba however, quotes Rebbi Yochanan as saying - that Chazal obligated the Shomer to pay when the animal is standing by the feeding-trough ('al ha'Avusah' [and was not used by him]).

(a) Rebbi Zeira asked Rebbi Chiya bar Aba with regard to Rebbi Yochanan's opinion in 'Shalach Bah Yad' - whether he meant specifically when the animal is standing by the feeding-trough, but not when he used it, or whether he meant *even* when it is standing by the feeding-trough, and certainly when he used it.

(b) The Shomer ought to be Chayav when he used the animal, 'Kal va'Chomer' from when he did not. But he might nevertheless be Patur - because when he used it he acquired it, in which case his subsequent Shevu'ah is meaningless.

(c) Rebbi Chiya bar Aba replied - that although he did not hear anything from Rebbi Yochanan about this case directly, he did, however, hear his opinion regarding a similar issue, quoted by Rav Asi.

(a) Rav Asi quotes Rebbi Yochanan as saying that if a To'en Ta'anas Avad after swearing, is To'en Ta'anas Ganav and swears again, and witnesses counter his second Shevu'ah - he is Patur from Kefel.

(b) Rebbi Chiya bar Aba - on the assumption that the Shomer is Patur because he acquired the object with the first Shevu'ah (obligating him to pay for Onsin, but exempting him from any obligations brought on by subsequent Shevu'os), concludes that using the object acquires it too.

(c) This reminds us of the opinion of Rav Sheishes (whose opinion we discussed above, and) - who says that a Shomer who denies having been give a Pikadon, becomes a Gazlan, and is subsequently Chayav Onsin.

(d) According to Rebbi Chiya bar Aba, everyone will agree with Rav Sheishes in our case - because here the Shomer made a Shevu'ah, which certainly acquires the article (even if denial does not). And consequently, he concludes, they will also agree in the case where he used the object beforehand (since we have learned in Bava Metzi'a that the object is considered to be in his Reshus) a proof for Rav Sheishes.

(a) We counter Rebbi Chiya bar Aba's proof from this Beraisa - by suggesting that the Shomer's P'tur is not based on the fact that he acquired it with the first Shevu'ah, but because, having already sworn to the owner, he cannot be Chayav a second Shevu'ah (without admitting that the first Shevu'ah was false).

(b) We know this explanation to be correct - because it is corroborated by Rebbi Avin Amar Rebbi Ila'a, quoting Rebbi Yochanan.

(c) Rav Sheishes exempts a To'en Ta'anas Ganav who uses the object before swearing - from the Din of a To'en Ta'anas Ganav.

(d) He extrapolates this from the Pasuk "ve'Nikrav Ba'al ha'Bayis ... *Im Lo Shalach Yado* bi'Meleches Re'eihu" - by inferring that if he did use it, the Din of To'en Ta'anas Ganav will no longer apply.

(a) A Shomer is obligated to make three Shevu'os: 1. that he wasn't negligent, 2. that he didn't use the object - and 3. that it is not in his domain.

(b) Rav Nachman tries to compare the Shevu'ah that he didn't use the object to the Shevu'ah that the object is not in his Reshus - with respect to if his Shevu'ah turns out to be false, which in the latter case, renders him Chayav (a Kashya on Rav Sheishes).

(c) Rav Nachman replies that we actually compare the Shevu'ah that he did not use the object to the Shevu'ah that he was not negligent, where the Shomer is Patur (like Rav Sheishes). The reason that he is he Patur in the latter case is - because a To'en Ta'anas Ganav only pays Kefel if it transpires that he himself stole the object, whereas here it turned out that it was stolen, just as he claimed (and there is no Chiyuv Kefel for being negligent).

(a) We learned in Perek Merubah that a To'en Ta'anas Ganav who pays Kefel is exempt from paying Chomesh. Rami bar Chama is not sure why he is Patur. It might be the fact that he pays more than the Keren - or it might be the Shevu'ah that obligates him to pay more that exempts him from the Chomesh.

(b) The ramifications of Rami's She'eilah are - a case where the Shomer is first a To'en Ta'anas Ganav and then a To'en Ta'anas Avad, then witnesses testify on the first Shevu'ah, and he admits on the second one. On the one hand, he is Chayav Kefel for the first Shevu'ah, but on the other hand, the second Shevu'ah does not obligate him to pay Kefel.

(c) If it was the Shevu'ah that exempted him, he would have been Patur if, in the same case, he would have admitted to the *first* Shevu'ah after the witnesses had testified, but not when he admitted to the *second* one. Nor is he Patur because he has already fulfilled his obligation to the owner with the first Shevu'ah - because we only apply that S'vara when it is witnesses who subquently testify on the second Shevu'ah but not when he admits, as we learned earlier.

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