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Bava Metzia 34

Any payment that involves over-compensation for a monetary loss is considered a "Kenas" (penalty) rather than "Mamon" (compensation). In every case of Kenas, the liable party does not have to pay the Kenas if he admits to his guilt of his own accord. Only if witnesses testify to his guilt in court must he pay. If he admits to his guilt of his own accord, and later witnesses testify to his guilt in court, the Amora'im argue as to whether or not he must pay the Kenas (Bava Kama 74b-75a -- he is exempted from payment, according to the lenient opinion, only if his admission took place under specific circumstances). Until one is obligated to pay a Kenas in court, he is fully exempt from payment and does not even have a moral obligation to pay it on his own accord (RASHBA to Bava Kama 74b, see also RAMBAN in Milchamos HaSh-m at the end of the third Perek of Kesuvos).

2) [line 6] GIZOSEHA U'VELADOSEHA - its shearings and offspring
3) [line 6] ALAMAH - why
4) [line 9] U'MAI PASKAH? - Why did the Tana write it without qualification (that a person has the intention to sell to his Shomer the Kefel but not the Gizos and Velados)?

5) [line 9] SETAMA D'MILSA - the standard case

6a) [line 9] SHIVCHA D'ASA ME'ALMA - the extrinsic appreciation of the animal; the increase in value that comes from sources outside of the body of the animal
b) [line 10] SHIVCHA DEMI'GUFAH - the intrinsic appreciation of the animal; the increase in value that comes from the body of the animal

7) [line 15] D'KAIMA B'AGAM - (O.F. maresc) it is standing in the marsh

8) [line 22] HA'SOCHER
The Socher, or the one who rents an animal or object, is one of the four watchmen mentioned in the Torah (see Background to Bava Kama 44:21). There is a Machlokes Tana'im in Bava Metzia (93a) whether the Socher has the status of the Nosei Sachar, or the status of a Shomer Chinam. The Halachah follows the opinion that he has the status of a Nosei Sachar, and as such he is liable for damages in cases of Peshi'ah (negligence), theft or loss, but is not liable in a case of Ones (an unavoidable accident).

9) [line 23] HALAH - this one (the one who rented the cow)
10) [line 23] HAREINI MESHALEM V'EINI NISHBA - I hereby [want to] pay and I am not going to take an oath [to exempt myself] (the oath taken to exempt himself would have been a lie, i.e. to claim that it died because of Ones, since a Socher is obligated in theft. Nevertheless, the owner is willing to sell the Socher the future rights to collect the Kefel when he pays for the animal -- RASHI)

11) [line 26] MAKNEH LEI KEFEILA - he (the owner) sells him the future rights to collect the Kefel payment

12) [line 27] D'IY BA'I PATAR NAFSHEI B'NIGNEVAH - since he could have exempted himself by claiming that it was stolen

13) [line 29] SHEVURAH U'MESAH - breaking a limb or dying, both due to an unavoidable accident

14) [line 31] MESAH MACHMAS MELACHAH - it died or was damaged in the normal manner of usage

15) [line 48] MIDI GABEI HADADI TANYA?! - Were they taught together (in the same Beraisa such that we may make a distinction between the words "Amar" and "Kidem")?!


16) [line 1] MEHADER KA HADAR BEI - he changed his mind, and as a result, the rights to collect the Kefel return to the owner

17) [line 2] B'MILSEI KAI, U'DECHUYEI HU D'KA MADCHI LEI - he remains in the same situation (that he owns the rights to collect the Kefel), and he was just trying to push him (the owner) off, i.e. delay the payment

18) [line 8] D'AVAD LI NEYACH NAFSHAI - who did favors for me many times

19) [line 10] KI AKNI LACH (AVUNA KEFEILA) [KEFEILA, AVUNA], D'AVDAS LEI NEYACH NAFSHEI - our father sold you the rights to collect the Kefel since you did him favors
b) [line 11] AVAL ANAN, L'DIDAN, LO - but [as to] us, [you did not do any favors] for us, [and as such,] no, [we will not sell you the rights to collect the Kefel]

A woman brings into her marriage two types of possessions, as follows:

1. Possessions that the wife owned before marriage, the values of which were estimated and written in the Kesuvah, to be returned to her in full upon divorce or the husband's death. These are called Nichsei Tzon Barzel ("Iron Flock Properties") because their value does not change between the time of marriage and the time of divorce or the husband's death.
2. Possessions that were not estimated and their values were not specified in the Kesuvah. Upon divorce or the husband's death, the property is returned as is, regardless of its appreciation or depreciation (or deterioration) over the years. These are referred to as Nichsei Milug ("Properties that are Plucked"), because for the duration of the marriage the husband may take ("pluck") the produce (Peiros) of these possessions (e.g. reaping the fruit of a field, or plowing with an ox). However, he may not "use up" the property itself (e.g. by digging trenches in the field or slaughtering the ox). The father, in contrast, does not have the right to the Peiros of his betrothed daughter's property (i.e. if she inherited property from her mother's relatives).
(a) A Shomer Chinam who watches an item without demanding compensation from the owner is liable for damages only in cases of Peshi'ah (negligence), but not in cases of the object's theft or loss. Nevertheless, the Shomer can choose to pay for the object that was lost or stolen rather than taking the necessary Shevu'as ha'Shomrim (i.e. swearing that he did not lose the object due to Peshi'ah, see Background to Bava Metzia 5:2). When the Shomer chooses this option and the object is later found, it is given to the Shomer, along with the Kefel or other payments that accompany it.
(b) When a Shomer opts to pay for a Pikadon that he claims was lost or stolen, Beis Din makes him swear that he did not take the Pikadon for himself. We suspect that the Shomer may have coveted the Pikadon and is trying to "buy" it without the knowledge of its owner.

22) [line 19] SHEMA EINAV NASAN BAH - (lit. perhaps he put his eyes on it) perhaps he coveted it
23) [line 20] HA'MALVEH ES CHAVEIRO AL HA'MASHKON - one who loans someone money and takes collateral (the Mishnah brought here from Shevu'os 43a discusses the claims of the creditor and the debtor when the item of collateral is lost and the creditor must pay for it, since the Tana is of the opinion that a creditor watches a Mashkon with the liabilities of a Shomer Sachar -- see Background to Bava Metzia 5:2:a:3)

24) [line 21] SELA / SHEKEL / DINAR (CURRENCY)
(a) Equivalents of coins and amounts used in the Gemara:

  • 1 Maneh = 25 Sela'im = 100 Dinerin [of Kesef, silver]
  • 1 Dinar Zahav = 25 Dinerin
  • 1 Sela = 4 Dinerin
  • 1 Dinar = 6 Ma'in
  • 1 Me'ah = 2 Pundeyonin
  • 1 Pundeyon = 2 Isarin
  • 1 Isar = 6-8 Perutos (based on Kidushin 12a)
(b) Another name for a Dinar of Kesef is a *Zuz*. All of the coins listed above are silver except for the Dinar Zahav, which is gold, and the Perutos, which are copper.
(c) The word "Shekel," as used in the phrase "Machatzis ha'Shekel," refers to the Shekel that was in use at the time of Moshe Rabeinu, which was equivalent to the "Sela" of the times of the Gemara. Machatzis ha'Shekel is half of a Sela, or two Dinerin. People became accustomed to calling the coin that was valued at half of a Sela, "Shekel," since it was "paid out" ("Shoklim" Oso) in order to fulfill the Mitzvah of Machatzis ha'Shekel each year (RAMBAN to Shemos 30:13). Likewise, the Shekel to which our Gemara refers is worth half of a Sela or two Dinerin.

25) [line 22] LO CHI, ELA... - not as [you say], but rather...

26) [line 23] PATUR - exempt [from making a Shevu'ah (and from paying)] (KOFER HA'KOL)
(a) The Torah only obligates a person to swear if he admits to part of the claim against him, but not if he is Kofer ha'Kol, i.e. he denies the entire claim.
(b) When the debtor claims that the Mashkon was worth as much as his debt, he has just been Kofer ha'Kol with regard to his financial obligations to his creditor.

27) [line 26] CHAYAV - liable [to make a Shevu'ah (and to pay that which he claims that he still owes)] (MODEH B'MIKTZAS HA'TA'ANAH)
(a) If a person admits that he owes part of a claim, we suspect that the claim is true and the debtor wants to temporarily postpone part of the payment but does not have the audacity to completely deny the claim. He is therefore required to take an oath, mid'Oraisa, that he does not owe the part he denies (Shemos 22:8). If he refuses to take the oath, he must pay the entire amount being claimed.
(b) When the debtor claims that the Mashkon was worth less than his debt, he has just been Modeh b'Miktzas ha'Ta'anah, and has obligated himself to make a Shevu'ah d'Oraisa.

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