(Permission is granted to print and redistribute this material
as long as this header and the footer at the end are included.)


prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

Previous daf

Bava Kama 108



(a) Rava resolves Rami bar Chama's She'eilah from a Beraisa which discusses a case where Shimon denies having stolen Reuven's ox and accepts Reuven's oath to that effect. The Tana rules there in a case where ...
1. ... witnesses then testify that he stole - that he pays Kefel.
2. ... he subsequently admitted that he swore falsely - that he pays Keren, Chomesh and Asham.
(b) We can extrapolate that if Shimon were to admit after the witnesses had testified - he would be Patur from the Chomesh and the Asham.

(c) Rava proves from here - that it must be the fact that he pays Kefel that exempts To'en Ta'anas Ganav from Chomesh ve'Asham, and not the Shevu'ah (seeing as here it is not the Shevu'ah which obligates him to pay Kefel but the witnesses).

(a) Ravina asks whether the fact that Reuven pays Kefel will exempt Shimon from paying Chomesh ve'Asham. The case is - when Levi handed his ox to Reuven and Shimon, who then claimed that the ox was stolen, only Reuven subsequently admitted to having sworn falsely, whilst witnesses testified that Shimon did so.

(b) The outcome of Ravina's She'eilah is - Teiku.

(c) Rav Papa asks whether the exemption of 'Mamon she'Eino Mishtalem be'Rosh' (where the obligation to pay Kefel exempts payment of the Chomesh [which is what we are currently discussing]) will extend to where the second payment is of the same kind as the first. The two cases that Rav Papa's She'eilah incorporate are - if the Shomer claimed that the object got lost and then confessed to having sworn falsely, or where he claimed that it was stolen and then witnesses testified to that effect.

(d) We resolve this She'eilah with Rava, who Darshens from the Pasuk "va'Chamishisav Yosef Alav" - that it is possible to pay Chomesh a number of times for one Keren, from which we can see that 'Mamon ha'Mishtalem be'Rosh' is confined to two different obligations, but does not apply when the two obligations are of the same kind (presumably, we learn that Kefel does not exempt Kefel from the fact that Chomesh does not exempt Chomesh [see also Tosfos ha'Rosh]).

(a) According to Abaye, if the Ganav is found after the Shomer first swore and then paid, the Kefel goes to the owner. Rava says - that it goes to the Shomer.

(b) Rava bases his reasoning on the fact that, when all's said and done, the Shomer has paid, so the owner grants him the Kefel. Abaye's disagrees however, on the grounds - that although he paid in the end, meanwhile he first upset the owner by exempting himself with a Shevu'ah.


1. Abaye infers his ruling from the Reisha of the Mishnah in 'Hamafkid', which grants the Kefel to the Shomer because 'he paid and didn't want to swear' - implying that if he would have sworn he would not have received the Kefel (in spite of the fact that he did eventually pay).
2. Rava infers his ruling from the Seifa, which grants the Kefel to the Shomer because 'he swore and didn't want to pay' - implying that, if he would have paid he would have received the Kefel (even though he opted to swear first).
1. According to Abaye, when the Tana says in the Seifa 'he swore and didn't want to pay', he means - before the Shevu'ah (but after the Shevu'ah, paying won't help him).
2. And according to Rava, when the Tana says in the Reisha 'he paid and didn't want to swear' he means - that he paid and didn't want to abide by his Shevu'ah.



(a) We ask what the Din will be in a case where a Shomer swears that he is Patur, then the Ganav who has been discovered, admits to the Shomer that he stole the article, but denies it when the owner claims it from him, and finally the owner brings witnesses - whether (based on the principle 'Modeh bi'K'nas Patur') his admission to the Shomer exempts him from having to pay Kefel.

(b) Despite the fact that the Ganav confessed to the Shomer, he might nevertheless be Chayav to pay Kefel - because when the Shomer swore, he forfeited his Shemirah, in which case, the Ganav's admission was meaningless.

(c) Rava resolves the She'eilah - by differentiating between when the Shomer swore correctly (in which case the owner retains his services and the Ganav's admission is valid), and when he swore falsely (in which case the owner rejects them).

(a) Another text reverses the logic. According to that text, the Ganav would be obligated to pay Kefel when the Shomer swore correctly - because then the Shomer has nothing more to do with the owner, and his claim from the Ganav would be meaningless; whereas if he swore falsely, the Ganav would be exempt from paying Kefel, seeing as the Shomer's connections with the owner remained intact, and his claim from the Ganav would be valid.

(b) We refute this text however - on the grounds that it would then be obvious that the ame would apply to a case where he only intended to swear but was prevented from doing so (where his ties with the owner are even stronger than when he actually swore, seeing as witnesses that he was negligent have yet to testify against him), . Consequently, the following She'eilah makes no sense.

(c) Rava also asks what the Din will be in a case where the Shomer wanted to swear falsely but was stopped from doing so - since, on the one hand, he did not swear falsely (so the owner still retains his services), whereas on the other, seeing as he wanted to swear falsely, the owner no longer trusts him.

(d) The outcome of the She'eilah is - 'Teiku'.

(a) The above is Rav Kahana's version of the She'eilah. According to Rav Tivyumi, Rava's She'eilah is whether, in the above case, the Ganav is exempt from Kefel if the Shomer swore falsely. He might be Patur - because having sworn falsely, he is bound to retract on that oath and pay, in which case his claim from the Ganav is a valid one.

(b) The outcome of this version of the She'eilah too is - Teiku.

(c) We then ask with what the Din will be in a case where the Shomer pays the owner, then the Ganav, who has been discovered, admits to the owner that he stole the article, but denies it when the Shomer claims from him, and finally the Shomer brings witnesses - whether the Ganav's admission to the owner exempts him from paying Kefel to the Shomer or not.

(d) On the one hand, the Shomer claims that the owner has already received his payment from him, in which case, he has nothing more to do with the case, and the Ganav's admission in meaningless. The owner counters this, on the other hand - with the argument that by finding the Ganav, he has already paid him back for having paid (rather than exemptinh himself with a Shevu'ah, so it will suffice if he takes the Keren that he laid out, and the owner takes the Kefel.

(e) The outcome of this She'eilah too, is - 'Teiku'.

(a) If an armed robber steals an article and the Ganav is discovered, the Din regarding payment in the case of ...
1. ... a Shomer Chinam is - Patur.
2. ... a Shomer Sachar is - Patur, too.
(b) Abaye gives the Shomer Chinam the choice - of either paying or of taking the Ganav to Beis-Din.

(c) A Shomer Sachar however - who has more responsibility than a Shomer Chinam, has no choice. He is obligated to open proceedings against the Ganav.

(d) According to Rava however - the Shomer Chinam has no choice either. He too, is obligated to open proceedings against the Ganav.

(a) In order to reconcile Rava with Rav Huna bar Avin, who appears to hold like Abaye, we establish the Machlokes between Abaye and Rava - when the Shomer already swore. Otherwise, Rava would concede that a Shomer Chinam would have the right to pay, leaving the owner to take the Ganav to Beis-Din.

(b) That being the case, when they said 'Ratza Nishba', they meant - that the Shomer has the choice of abiding by his Shevu'ah.

(c) Rabah Zuti asks whether if an armed robber steals the animal from the Shomer's house, and returns it - the Shomer is liable should it subsequently die due to his negligence. On the other hamd, maybe he is Patur because the Shomer's term of guarding came to an end when the animal was stolen from his house.

(d) The outcome of the She'eilah is - 'Teiku'.

(a) Our Mishnah rules that if the Shomer claims that the Pikadon got lost and swears to that effect ...
1. ... if witnesses then testify that he actually ate it - he pays the Keren.
2. ... if he then confessed that he ate it - he pays Keren, Chomesh ve'Asham.
(b) If, instead of claiming that the Pikadon got lost, he claims that it was stolen - then, in the former case (where witnesses testified that he ate it) he is Chayav to pay Kefel.
(a) If someone steals from his father, swears that he is innocent, and then, after his father's death (see Maharsha), he admits to his brothers or uncles that he swore falsely - he is obligated to pay the Chomesh to them.

(b) He is not even permitted to retain the amount corresponding to his own portion in his father's inheritance ...

(c) ... because of his obligation to fulfill the Mitzvah of Hashavah.

(d) In the event that he does not wish to lose his inheritance - he is permitted to borrow money and allow the creditors to claim their debt from his inheritance.

(a) Our Mishnah says that if a father declares to his son 'I Atah Neheneh mi'Sheli', the latter nevertheless inherits his property when he dies - unless he added 'be'Chayi *u've'Mosi'*.

(b) His portion then goes to his father's heirs (his brothers or his uncles).

(c) To save his inheritance, in the event that he does not have enough to live on - he can borrow money ... (as we explained earlier).

Next daf


For further information on
subscriptions, archives and sponsorships,
contact Kollel Iyun Hadaf,