Shiur Supplement - Daf 94a-b

INTRODUCTION:

 

            This shiur is designed to facilitate learning of the daf - gemara, Rashi and central Tosafot. Thus, we will concern ourselves primarily with the understanding of the text as opposed to an exhaustive analysis of the topics dealt with by the gemara.

 

DAF 94a

A. Mishna - she'ila be-ba'alim - If one BORROWS a cow and contracts its owner (ba'al) to work for him, he is NOT liable for damages, should anything happen to the animal. However, there is one proviso: The ba'al must enter the employ of the sho'el either BEFORE the loan takes place or at the SAME time. If he enters the employ of the sho'el only AFTERWARDS, the sho'el assumes full liability.

 

NOTE: It is NOT necessary for the ba'al to receive compensation for his labour. Even if he volunteers his services to the sho'el, the din (law) of the mishna applies.

 

B. Rashi s.v. Ha-Sho'el - Rashi explains that our mishna deals exclusively with the din of a sho'el (borrower) and does not relate at all to the scenario where one HIRED an animal and contracted the owner to work for him. Apparently, there was an alternative version of the mishna according to which this scenario IS dealt with.

 

DAF 94b

B. Mi-diktani seifa ... imah mamash [lines 3-5]  The gemara notes that our mishna deals with THREE scenarios. Since the SECOND case deals with a scenario where the ba'al was contracted to work BEFORE the loan took place, the FIRST case (reisha) which relates to a scenario where the borrowed animal and the services of the ba'al were acquired TOGETHER, must relate to an instance where the two transactions took place at EXACTLY the same time.

 

C. Imah mamash ... para be-meshikha u-ba'alim be-amira [lines 5-6]  The gemara questions the feasibility of acquiring both the animal and the services of the ba'al at EXACTLY the same time: From the moment the owner pledges his services, he is considered to be in the employ of the sho'el. However, the sho'el acquires the cow only by causing it to move out of the domain of the owner (meshikha).

 

             NOTE: This question assumes that the ba'al offered his services at the same time that he agreed to lend the cow - BEFORE meshikha takes place. [See Rashi s.v. U-ba'alim be-amira] Although it is theoretically possible to stagger the two transactions so that the owner pledges his service at the very instant that the meshikha is completed - practically it is impossible to orchestrate with such precision termed "imah mamash". Thus, the gemara is forced to suggest methods of either doing away with the requirement of meshikha or delaying the effect of the owner's amira.

 

D. Tosafot s.v. Para (This Tosafot relates to 94b though it is printed at the bottom of 94a.)  According to Tosafot, we consider the ba'al to be in the employ of the sho'el only from the time he prepares himself for work or is actually on his way to work. If, however, a mere tentative verbal agreement has been made between the two parties, the owner is NOT considered to be in the employ of the sho'el. (This is in opposition to the opinion of Rashi mentioned in C.)

 

E. Tenan hatam... ve-et ha-gneiva [lines 10-15] There are four different types of shomrim:

1. Shomer chinam - one who watches over an object for FREE (chinam). He is not responsible for any loss that may occur to the object that he is guarding - on the condition he takes an oath (shevu'a) that he was not negligent (she-lo pasha bo) and that he did not attempt to steal the object at any stage (she-lo shalakh bo yad).

2. Shomer sakhar - one who watches over an object and receives PAYMENT (sakhar) for his efforts. He is liable for theft and loss but is NOT responsible for accidents (onnes) that may occur (subject to the conditions mentioned with regards to shomer chinam).

3. Sokher - one who HIRES an object. His liability is identical to that of a shomer sakhar. (There is an opinion on daf 93a that limits his liability even further to that of a shomer chinam.)

4. Sho'el - one who BORROWS an object. He is liable even in cases of accidental loss or damage to the object (for example if the animal falls and breaks its leg or dies or if it is captured by armed robbers).

 

F. Mina hani mili... shelishit be-sho'el [lines 15-17] The gemara now attempts find the source in the Torah for the laws mentioned above. You are advised to read through the section dealing with shomrim [Shemot 22:6-14] before continuing in the gemara.

 

            This section can be further subdivided into THREE parts:

1. Pesukim 6-8 - The shomer in this section is liable only if he was NEGLIGENT in performing his duties.

2. Pesukim 9-12 - The shomer in this section is liable for THEFT but is NOT responsible to pay if the animal dies, is injured or is captured (onnes).

3. Pesukim 13-14 - The shomer in this section (a sho'el) is responsible for onnes. A sokher is mentioned but we are not informed of the extent of his liability.

 

NOTE: The Torah does NOT specify which shomrim are being referred to in the first TWO sections and, therefore, it is not clear what the laws of shomer chinam and shomer sakhar are. However, the gemara bases itself on the premise that a shomer sakhar has greater liability than a shomer chinam. Thus, it is a matter of working out which of the two sections delineates greater liability (and applying it to shomer sakhar).

 

F. be- To'ein ta'anat ganav [lines 23-24]  If the shomer claims that the object was stolen but in reality HE is the thief, he is liable to pay the owner DOUBLE when his crime is discovered. The shomer in the SECOND section will never have to pay double - as soon as he claims that the object was stolen, he is liable to make full restitution to the owner. Thus, it is immaterial whether the crime was committed by a third party or not.

 

G. Bishlama geneiva... lo kol she-ken [lines 29-34]  The gemara has by now concluded that the SECOND section relates to a shomer sakhar. Although the Torah specifically mentions that the shomer sakhar is responsible for theft, there is no indication that he is liable if the object is lost (assuming, of course, that he was not negligent). Where is this din learnt from?

 

            According to one opinion, the fact that the Torah uses a double expression - "ganov yiganeiv" - is indicative that the shomer is liable for damages similar (though not identical) to geneiva - namely aveida (loss). However, there is a conflicting opinion that the Torah uses a double expression as this is the general language usage of people (dibra Torah kilshon bnei adam) and, therefore, we must rely on reasoning alone to prove that a shomer sakhar is liable for loss: There is more irresponsibility on the part of the shomer in a case where the object was lost than when it was stolen. If he is liable to pay even when he displayed responsibility (geneiva) he is most certainly liable to pay when he acted in a less responsible manner, which led to the object being lost.

 

H. Ma lishvura u-meita... she-ken onsa de-lo salik a-da'atei [lines 38-40]  The gemara differentiates between an onnes that is a more common occurrence (death or injury) and an onnes that happens more infrequently (capture by armed robbers). In the first instance, it is more likely that the sho'el should be held liable than in the second.

 

DAF 95a

I. Ma li shevura u-meita... de-efshar le-mitrach ve-atuyei [lines 5-7] There is a certain logic in making the sho'el liable for accidents (onnes) but NOT for theft or loss: In the former, there is no possibility of the animal being recovered (it is injured or dead) whereas in the latter, the animal is merely MISSING, and the possibility of its return still exists.

 

J. Listim mezuyan gazlan hu [lines 17-18] Although a shomer sakhar can absolve himself from payment by claiming that the object was captured by armed bandits, nevertheless, if in reality HE stole it, he is not liable to pay DOUBLE. The only time that one can be liable to pay back double is if he either STOLE the object or falsely claimed that it was stolen.

 

NOTE: Geneiva is defined as theft whereas gezeila is defined as armed robbery (i.e. the use or threat of force in order to gain possession of the object).