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1) [line 2] KOL KARKA HEILACH HU! - all land is presented in its current state [since it cannot be stolen, lost, or destroyed]! 2) [line 4] CHAFAR BAH - he dug in [the land, thereby changing its state] 3a) [line 4] BOROS - round wells b) [line 4] SHICHIN - elongated ditches [used for water storage] c) [line 4] ME'AROS - caves [used for water storage] 4) [line 5] HODAH B'CHELIM - he admitted to the utensils [which are not necessarily "Heilach"] 5) [line 6] ARBA'AH SHOMRIN TZERICHIN KEFIRAH B'MIKTZAS V'HODA'AH B'MIKTZAS (ARBA'AH SHOMRIN - The Four Custodians) (a) There are "Arba'ah Shomrim" ("Four Custodians") - four classes of those who guard the item of another. Their level of responsibility for the object they guard varies according to what, if anything, they receive from the agreement. (b) There are four classifications of damages that can occur to an item. These are: 1. PESHI'AH - damage incurred through negligence 2. GENEIVAH O AVEIDAH - theft or loss 3. ONES - damage incurred through an unavoidable accident 4. MESAH MACHMAS MELACHAH - death as a result of normal, expected use (c) The four Shomrim and the degree of responsibility for which they are held accountable are: 1. SHOMER CHINAM - one who guards an item and receives no compensation. He is liable to pay for damages only in the case of Peshi'ah. He is exempt in the case of Geneivah or Aveidah, and certainly in that of Ones. A Shomer Chinam has no permission to use the item that he is guarding; if he does so, he is responsible even for Onsim. 2. SHO'EL - one who borrows an item with intent to utilize it. He is liable to pay for damages in cases of Peshi'ah, Geneivah or Aveidah, and Ones. He is exempt only in a case of Mesah Machmas Melachah, or if the damage was incurred while the owner of the item was working for the borrower ("Be'alav Imo"). 3. NOSEI SACHAR or SHOMER SACHAR - one who receives compensation for guarding an item. He is liable to pay for damages in cases of Peshi'ah and Geneivah or Aveidah, but not in a case of Ones. A Shomer Sachar has no permission to use the item that he is guarding; if he does so, he is responsible even for Onsim. 4. SOCHER - one who rents an item. Rebbi Meir rules that his level of responsibility is identical to that of a Shomer Chinam. Rebbi Yehudah maintains that his level is equal to that of a Shomer Sachar. (d) When a Shomer claims that he is exempt from paying damages since they occurred in a manner for which he is not accountable, he is not exempt until he supports his claim with an oath. A Shomer Chinam, for example, may swear that he was not negligent; a Shomer Sachar may swear that the item was Ne'enas; and a Sho'el may swear that they were not negligent in guarding the item. In addition, a Shomer Chinam and a Shomer Sachar must swear that they had not used or taken the item that they were meant to guard (Shemos 22:6-14; Bava Metzia 93a). Mid'Rabanan, these Shomrim must also swear that the item in not currently in their possession (34b). (e) Rami bar Chama maintains that mid'Oraisa, the four Shomrim are required to take an oath only under specific circumstances. The Halachos of Modeh b'Miktzas ha'Ta'anah (see Background to 3:28) are derived from words written in the Parshah of the four Shomrim (Shevu'os 39b). Rami bar Chama therefore understands that the conditions of Modeh b'Miktzas ha'Ta'anah apply to the Shomrim as well. This would be possible only if the Shomer denies that he ever received part of what the owner claims he deposited, admits to owing another part, and claims that he is exempt from paying for a third part. This case is presumably one in which he was asked to take care of three cows. When the owner requests them back, the Shomer claims that he only received two, and offers back one of them as requested. He them claims that the remaining one died as a result of an Ones (or Geneivah or Aveidah if he was a Shomer Chinam). 6) [line 8] SHOMER CHINAM, VEHA'SHO'EL, NOSEI SACHAR, VEHA'SOCHER - see previous entry 7) [line 11] CHADA LO HAYU DEVARIM ME'OLAM - one of them I never received (lit. never existed) 8) [line 13] D'BA'INA SHELUMEI LACH - for which I must pay you 9) [line 14] AVUHA D'REBBI AFTORIKI - the father of Rebbi from Aftoriki 10) [line 14] LED'REBBI CHIYA KAMAISA - [that poses a contradiction to] the first [Halachah cited in the name of] Rebbi Chiya (namely, that when witnesses testify that a creditor owes half of a debt that he had completely denied, he must swear that he does not indeed owe the rest; 3a) 11) [line 17] YACHOL - I might have thought 12) [line 17] "... AL KOL AVEIDAH ASHER YOMAR, 'KI HU ZEH', [AD HA'ELOKIM YAVO DEVAR SHENEIHEM; ASHER YARSHI'UN ELOKIM YESHALEM SHENAYIM L'RE'EIHU.]" - "... regarding any loss about which he will say, 'This is how it was', [to the judges their litigation shall come; he whom the judges convict shall pay double to his fellow]" (Shemos 22:8). Although this verse is written regarding a Shomer Chinam (see above, entry #5), Chazal derive the Halachos of Modeh b'Miktzas ha'Ta'anah from the words "Ki Hu Zeh" (Shevu'os 39b). 13) [line 20] ' MASNISA KA RAMIS ALEI D'REBBI CHIYA - you are posing a contradiction to the opinion of Rebbi Chiya from a Beraisa 14) [line 20] REBBI CHIYA TANA HU U'PALIG - Rebbi Chiya May Argue with Tana'im (a) Mishnayos, Beraisos, and Toseftos were authored by Tana'im. The commentary on the Mishnayos, called the Gemara, was authored by Amora'im. Together, these texts constitute the main body of the Oral Torah. Since the Tana'im (as a group) lived many years before the Amora'im, they were the greater Torah authorities. Therefore, an Amora cannot disagree with a Tana unless his opinion is shared by a different Tana. As such, the Gemara will often attempt to disprove the statement of an Amora from a Mishnah, Beraisa, or Tosefta. If no other Tana is known to share the opinion of the Amora, the Gemara will either explain the statement of either the Tana or Amora in such a way that they are not contradictory, or it will conclude that the opinion of the Amora has been disproved. (b) Rav was a first-generation Amora. Although he was a contemporary of Rebbi (Rebbi Yehudah ha'Nasi), who organized the Mishnayos and is quoted extensively within, the opinion of Rav is never found in a Mishnah or Beraisa. The Gemara therefore poses questions on his opinions from these texts. If possible, the Gemara will find a Tana who agrees with Rav or will otherwise explain the contradiction away. However, the Gemara will never conclude that Rav is incorrect. This is because "Rav Tana Hu u'Palig" - "Rav has the status of a Tana and may disagree [with them]". In certain instances, Rav clearly disagrees with Tana'im (see, for example, Bava Basra 175b). (c) TOSFOS DH Rav maintains that Rebbi Yochanan, at least, did not agree with this classification of Rav, for otherwise he would never have disagreed with him. (The KOVETZ SHI'URIM to Bava Basra 170b argues that Rav Sherira Ga'on disagrees with Tosfos and understands that Rebbi Yochanan agreed that Rav had the ability to disagree with Tana'im.) (d) Six times throughout Shas Rav is described as a Tana. Our Gemara uses this argument in defense of Rebbi Chiya, and the Gemara in Shabbos (64b) applies it to Rebbi Yishmael b'Rebbi Yosi (whose father was the Tana, Rebbi Yosi). As is true regarding Rav, Rebbi Chiya and Rebbi Yishmael b'Rebbi Yosi were contemporaries of Rebbi Yehudah ha'Nasi. 15) [line 25] V'IDACH - and the other (namely, Rebbi Chiya) [would contend] 16) [line 25] MODEH MI'MIN HA'TA'ANAH - [that which one must swear in a case of Modeh b'Miktzas is only when] his admission is to that which the claim was made upon 17) [line 28] PATUR - he is exempt [from paying even for the barley to which he admitted, since there was no claim upon it] 18) [line 29] RAYA - a shepherd 19) [line 29] MASREI - they would give 20) [line 29] CHEIVASA B'SAHADEI - animals in front of witnesses [while stipulating that he must return them in front of witnesses as well (TOSFOS DH Masrei)] 21) [line 33] IM ISA - lit. if it exists; i.e., if it is correct 22) [line 34] A'SHARA - on the rest [of the claim (in this case, the rest of the flock)] 23) [line 35] HA GAZLAN HU! - he is a thief [and therefore disqualified as a witness (see Background to 4:10)]! 24) [line 35] SHEKE'NEGDO (HIPUCH SHEVU'AH) (a) Should one be obligated to take an oath mid'Oraisa, but he is unable to since he has been established as a Rasha (see Background to 4:10), then an enactment of the Chachamim states that the claimant shall take the oath. Therefore, in a case of Modeh b'Miktzas, if the defendant is a known thief, the claimant ought to swear that he is owed the full amount and then collect. 25) [line 35] KA'AMINA - is what I meant to say 26) [last line] SHEVU'AS HESES - A Rabbinically Enacted Oath (a) Mid'Oraisa, one must swear only when he partially admits to a claim that he owes another money. This is because he is assumed to be loathe to be so brazen as to deny the entire loan, and yet he wishes to buy time to come up with the money (see Background to 3:28). (b) Rav Nachman teaches that the Rabanan enacted that one must swear even though he has denied the entire claim. This is because we may also assume that one does not claim that another owes him money when it is not true. We suspect therefore that that which the defendant denies the entire claim is not a true denial, but rather an attempt to buy time (Shevu'os 40b). such a Shevu'ah is termed a Shevu'as Heses, since the Chachamim have "swayed" (Hisis) him to take it. (c) A Shevu'as Heses is taken even upon real estate, even though as a general rule one does not swear upon land (TOSFOS to Bava Metzia 6a DH Ela, citing Rav Hai Ga'on). 27a) [last line] D'RAV NACHMAN TAKANTA HI - (the Gemara answers) that [Shevu'ah] of Rav Nachman is a Rabbinic enactment
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