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Bava Metzia, 43
1) THE LIABILITY OF A "SHULCHANI"
QUESTION: The Mishnah states that when a person leaves money with a
Shulchani that is not wrapped and sealed, the Shulchani has permission to
use the money. Therefore, if the money is lost, the Shulchani is obligated
to compensate the owner, even if the Shulchani had not yet used the money.
Rav Nachman says that until the Shulchani uses the money, he has only the
status of a Shomer Sachar, who is Chayav for Geneivah v'Aveidah. If an Ones
happens to the money, though, the Shulchani is exempt, for he is not
considered a Sho'el (who is Chayav for Onsin) until he actually uses the
money. Rava asks that if the Shulchani is not considered a Sho'el because he
has not yet had any benefit from the money, then why is he considered a
Shomer Sachar? What "Sachar," or benefit, has the Shulchani received from
Rav Nachman answers that the Shulchani has indeed received benefit from the
money, since he is permitted to use it if the opportunity to make a profit
arises. Due to that benefit, he is a Shomer Sachar.
How does this explain, though, why the Shulchani is not a Sho'el? Once he
has permission to use the money, he should have the obligations of a Sho'el
whether he uses the money or not, just like any case of one who borrows an
object -- the borrower is Chayav for Onsin right away, even before he uses
(a) The S'MA (Choshen Mishpat 292:16) writes, based on the RA'AVAD, that
this "usage" -- the rights to use the money if an opportunity to profit
arises -- is an inferior type of usage, because the Shulchani is reluctant
to use the money lest the owner come suddenly and demand his deposit back.
Therefore, before the Shulchani actually uses the money, he is not
considered a Sho'el, because a normal Sho'el has no reluctance to use the
object that he borrowed, while the Shulchani does have reluctance to use the
money entrusted with him.
(b) The LEVUSH YESHA answers that in a normal case of a Sho'el, a person
borrows an object completely for his own benefit. Here, though, the
Shulchani has received the money from its owner in order to do a service --
guard the money -- for the owner. Therefore, even though the Shulchani has
the right to use the money, he is not yet considered a Sho'el since the
money was not given to him exclusively for his own benefit. (I. Alsheich)
2) "HA'CHOSHEV LI'SHLO'ACH YAD"
OPINIONS: Beis Shamai and Beis Hillel argue concerning a Shomer who
"thought" about using a Pikadon for his personal use without permission of
the owner, but who did not yet actually use it. Beis Shamai says that the
Shomer is considered to have been "Shole'ach Yad" and has the status of a
Ganav, even though he did not actually use the object but merely "thought"
about using it.
Does Beis Shamai literally require only that the Shomer thinks about using
the object, or must the Shomer do more than just think about using the
object in order to become Chayav?
(a) TOSFOS, the RAMBAN, and the RITVA explain that it does not suffice for
the Shomer to merely think about being "Shole'ach Yad," but rather he must
*verbally state* his intentions in order to be Chayav. (This also seems to
be the view of RASHI in our Sugya. The BACH, however, points out that Rashi
in Kidushin explains otherwise. See (b) below.)
The reason why Beis Shamai says that he "thinks" about being "Shole'ach Yad"
is because, as the Ramban explains, one who says that he is going to do an
action but has not yet actually done it is called one who "thinks" to do an
The Ritva explains that the reason why Beis Shamai says that the Shomer is
Chayav when he "thinks" about being "Shole'ach Yad" is because the Shomer
does not have to say his intentions specifically in front of witnesses in
order to be Chayav. (Why, then, does Rashi here specifically write that he
says his intentions "in front of witnesses?" The GILYONEI HA'SHAS answers
that Rashi is adding this only for a practical reason. Since the Mishnah
implies that Beis Din makes the Shomer Chayav, they need proof to be
Mechayev him. The witnesses serve as proof to what the Shomer said.
Alternatively, the NEFESH CHAYAH writes that the Chiyuv of Shelichus Yad
engendered by merely the Shomer's speech is -- according to Rashi -- a
Chiyuv of Kenas, penalty, because no actual action was done. In order to
become Chayav for a Kenas, there must be witnesses.)
(b) RASHI in Kidushin (42b, DH l'Chayev Al ha'Machshavah) writes that if the
Shomer "said *or* thought" to be "Shole'ach Yad," he is Chayav. This is also
the view of the ROSH (in Hilchos Ketanos, Hilchos Sefer Torah 3) in the name
of RABEINU BARUCH.
The Ramban explains, according to this opinion, that even though the verse
says, "Al Kol *Davar* Pesha" (Shemos 22:8), implying that one is Chayav only
when he uses speech to express his intentions, thought and speech are
considered identical as long as no action has been done. (I. Alsheich)