POINT BY POINT SUMMARY
Prepared by Rabbi P. Feldman
of Kollel Iyun Hadaf, Yerushalayim
Rosh Kollel: Rabbi Mordecai Kornfeld
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Previous daf Bava Metzia 41
BAVA METZIA 41 (18 Teves) - Mrs. Estanne Abraham-Fawer has
dedicated two weeks of learning to honor the second Yahrzeit
of her father, Reb Mordechai ben Eliezer Zvi (Weiner, who
passed away 18 Teves 5761). May the merit of supporting and
advancing the study of the Talmud be l'Iluy Nishmaso.
1) WHO AUTHORED OUR MISHNAH?
(a) Question: Who is the Tana of the (first part of the)
Mishnah (if it broke after he put it down, he is always
2) UNAUTHORIZED USAGE
(b) Answer: It is R. Yishmael, who says that the owner need
not know that his property was returned.
1. (Beraisa - R. Yishmael): One who steals a lamb from
a flock or a coin from a wallet, he returns it to
where he stole it from;
(c) Question: If it is R. Yishmael, why does it say that he
did not designate a place - even if he designated (he
need not inform him)!
2. R. Akiva says, he must inform the owner.
(d) Answer: The Mishnah teaches a bigger Chidush: not only if
he designated a place, for then he returned it to its
place - but even if he did not designate a place, he need
not inform him.
(e) Question (end of the Mishnah): If Reuven designated where
it should be kept, whether it broke while he was holding
it or after he put it down, if he picked it up to use it,
he is liable; if for its sake, he is exempt.
1. This is as R. Akiva, who says that he must inform
(f) Question: Is the beginning as R. Yishmael and the end as
2. Question: If it is R. Akiva, why does it say that he
designated a place - even if he did not (he must
3. Answer: The Mishnah teaches a bigger Chidush: not
only if he did not designate a place, for then it is
not returned to its place - but even if he
designated a place, he must inform him.
(g) Answer #1: Yes!
1. (R. Yochanan): If someone can explain this Mishnah
as 1 Tana, I will carry his clothes to the
(h) Answer #2 (R. Yakov bar Aba): The case is, Shimon picked
it up to steal it (Answers 2-4 will be explained later).
(i) Answer #3 (R. Noson bar Aba): The case is, Shimon picked
it up to make unauthorized usage of it.
1. Question: On what do R. Yakov and R. Noson argue?
(j) Objection (Rav Sheshes): The Mishnah does not say that he
took it (which would connote, for himself), rather he
2. Answer: Whether one who takes a deposit (to make
unauthorized usage of it) is considered a robber
without diminishing it.
i. R. Yakov says that he is not a robber until he
diminishes the deposit - therefore, he
established the Mishnah when he intended to
ii. R. Noson says that he is a robber without
diminishing it, he establishes the Mishnah by
intention to make unauthorized usage.
(k) Answer #4 (Rav Sheshes): The case is, Shimon moved it so
chicks will climb on it;
1. Rav Sheshes says that one who borrows without
permission is considered a robber.
(l) R. Yakov, R. Noson and Rav Sheshes all say that the
entire Mishnah is R. Yishmael; the end of the Mishnah is
when he did not put it down in the designated place.
1. R. Yochanan did not answer thusly - 'put it down'
connotes, in its place.
(a) (Rav or Levi): One who takes a deposit (to make
unauthorized usage of it) is only considered a robber if
he diminishes it;
(b) (The other of Rav and Levi): He is considered a robber
even without diminishing it.
(c) The following shows that Rav says that he is a robber
without diminishing it.
1. (Beraisa): A shepherd was grazing his flock. He left
it and went to the city; a wolf or lion killed some
of the flock - he is exempt;
(d) Rejection: Rav means, he weakened it with his staff - he
says that he is only a robber if he diminishes it!
2. If he had left his staff or bag on the killed
animal, he is liable.
3. Question: Even if that is considered unauthorized
usage - when he took back his staff or bag, he
returned the animal (according to R. Yishmael, the
Tana of our Mishnah)!
4. Answer (Rav): The case is, the animal was killed
when the staff or bag was still on it.
5. Question: Even if it was still on - he never did
Meshichah, he is not a robber!
6. Answer (Rav): He hit it with his staff and it ran in
front of him (a form of Meshichah).
7. Question: The animal was not diminished!
8. Answer: Rav says that he is a robber without
1. Support: He mentioned hitting it with a staff to
show that it was a harsh blow.
(e) We conclude that Levi says that he is a robber without
(f) Question: What is Levi's reason?
(g) Answer #1 (R. Yochanan citing R. Yosi ben Nehurai): The
mention of unauthorized usage by a paid watchman is
unlike the mention by a free watchman.
(h) (R. Yochanan himself): It is not different.
1. R. Yosi says, there was no need to mention
unauthorized usage by a paid watchman - we may learn
from a Kal va'Chomer from a free watchman!
(i) Answer #2 (Rava): There was no need to mention
unauthorized usage by a paid watchman nor by a free
watchman - - we may learn from a borrower.
i. A free watchman is exempt by theft or loss, if
he made unauthorized use, he is liable; a paid
watchman is liable for theft or loss - all the
more so, he is liable after unauthorized use!
2. R. Yochanan says, it is not different, as R. Elazar,
who says 'They are the same'.
ii. It is extra, to teach that unauthorized usage
confers liability as a robber even without
diminishing the deposit.
3. Question: What does that mean?
4. Answer: We cannot learn from the Kal va'Chomer,
because there is a stringency of a free watchman -
he pays double if he claims it was stolen (and
really stole it himself);
i. Therefore, the Torah had to say both, each only
teaches about itself.
5. R. Yosi learns from the Kal va'Chomer - he reasons
that paying principal (i.e. a paid watchman who
claims it was stolen) without an option to swear
(and be exempt) is more stringent than (a free
watchman, who can exempt himself through) an oath
that might lead to double payment.
1. A borrower uses it with the owner's permission, he
is liable for Ones - all the more so, a free or paid
watchman, who uses it without permission!
(j) Question: According to the opinion that he is considered
a robber only if he diminishes it, what does he learn
from these 2 verses?
2. It was written (by one of these watchman) to teach
that unauthorized usage confers liability as a
robber even without diminishing the deposit;
3. The other place it was written is so we do not apply
the principle of Dayo;
i. One might have thought, a borrower is exempt if
the lender was working for him, unauthorized
use is no more stringent - the extra verse
teaches, this is not so (it is liable even
(k) Answer: One teaches, so we do not say Dayo (as above);
1. The other teaches as the following.
2. (Beraisa): "V'Nikrav Ba'al ha'Bayis (The free
watchman will come close)" - to swear.
3. Suggestion: Perhaps this is for judgment, not to
4. Rejection: It mentions unauthorized usage by a free
watchman and by a paid watchman. Just as the latter
Parshah (a paid watchman) speaks of an oath, also
the former (he only pays double payment if he swore
that it was stolen).