2) THE MENTION OF "SHELICHUS YAD" IN THE VERSES OF "SHOMRIM"
QUESTION: The Gemara explains why it was necessary for the Torah to include a reference to "Shelichus Yad" both in the verse that discusses Shomer Chinam and in the verse that discusses Shomer Sachar. The Gemara quotes one opinion which maintains that the second mention of "Shelichus Yad" teaches that a Shomer is Chayav for "Shelichus Yad" (and attains the status of a Ganav) even if his usage of the object does not decrease its value. The Gemara concludes that according to the other opinion (that a Shomer is Chayav only when the object's value decreases), the Torah mentions "Shelichus Yad" in the second verse for the following reason. The verse (Shemos 22:7) says that the Shomer Chinam "shall be brought to the judges," but it does not specify for what purpose. One might have thought that the verse means only that he must be brought to Beis Din to be judged, but he is not obligated to swear. The fact that the Torah mentions "Shelichus Yad" here, in the verse of a Shomer Chinam, and later, in the verse of a Shomer Sachar, teaches that just as a Shomer Sachar must make a Shevu'ah, a Shomer Chinam also must make a Shevu'ah. RASHI (DH Af Kan l'Shevu'ah, and in Bava Kama 63b, DH O Eino Ela l'Din) writes that this verse teaches that a Shomer Chinam becomes obligated to pay Kefel only when he swears falsely that the object was stolen, but if he merely claims that it was stolen (without a Shevu'ah) then he does not pay Kefel. Rashi adds that the verse also teaches that a Shevu'ah exempts a Shomer Chinam from paying for an object that was stolen or lost.

Rashi implies that the Gemara initially assumes that a Shomer Chinam cannot exempt himself from payment if he merely claims that the object was stolen. Rather, if he claims that the object was stolen, he must pay the Keren (principal). If he must pay the principal in such a case, how does the Gemara understand the law that a Shomer who is "To'en Ta'anas Ganav" (makes a false claim that the object was stolen) must pay Kefel? If a Shomer always pays the Keren when he claims the object was stolen, there is never a case in which the Shomer is found to have made that claim falsely with a Shevu'ah. The Gemara in Bava Kama (63b), however, says that everyone agrees that a Shomer who makes a false claim of Geneivah must pay Kefel. According to the Gemara's initial assumption, how can there ever be such a case? (MAHARSHA)

ANSWERS:
(a) The MAHARSHAL and MAHARAM in Bava Kama (63b) write that Rashi's intention is not that the Gemara thought the Shomer would pay Keren immediately when he claims that the object was stolen. Rather, Rashi means that a Shomer Chinam who makes a "Ta'anas Ganav" would be exempt from paying altogether, and if witnesses come later and testify that the Shomer himself stole the object, he then must pay Kefel, even without a Shevu'ah. They infer this from the words of Rashi here (DH Atah Omer), "from the time that he claims in Beis Din that it was stolen, even though he does not make a Shevu'ah he must pay Kefel if witnesses come." Hence, the Havah Amina was only that a Shomer Chinam who was "To'en Ta'anas Ganav" would have to pay Kefel later even if he did not make a Shevu'ah; the Havah Amina was not that he would pay the Keren at the moment that he claims the object was stolen.

(b) The MAHARSHA (Bava Kama 63b) does not accept this answer (see Insights to Bava Kama 63:3). He asserts that it is not possible to suggest that a Shomer Chinam would be Chayav to pay Kefel if he did not make a Shevu'ah. If he would have been obligated to pay Kefel in such a case, then it would have been unnecessary for the Torah to teach that a Ganav (who does not make a Shevu'ah) is Chayav to pay Kefel, for it could have learned that Halachah through a Kal va'Chomer from a Shomer who is "To'en Ta'anas Ganav." It must be that a Shomer is Chayav to pay Kefel only when he is "To'en Ta'anas Ganav" with a Shevu'ah, and therefore the Torah must teach that a Ganav pays Kefel even without a Shevu'ah.

The Maharsha gives a different answer to explain the words of Rashi. He writes that the Havah Amina indeed was that the Shomer Chinam pays the Keren immediately, and, nevertheless, if it is discovered later that he was the thief, he must pay Kefel because of the Gezeiras ha'Kasuv. According to this Havah Amina, the Torah must teach the Chiyuv of Kefel in the case of a Ganav because that case itself is the Chiyuv of Kefel of the Shomer who is "To'en Ta'anas Ganav," for he pays the Kefel later when he is found to be a Ganav.

(How do the Maharshal and Maharam answer the question of the Maharsha -- why, according to the Havah Amina, does the Torah need to teach that a Ganav has a Chiyuv of Kefel, when that law can be derived through a Kal va'Chomer from a Shomer who is "To'en Ta'anas Ganav"? The Maharam in Bava Kama cites the TOSFOS YESHANIM who gives several answers. One answer is that according to the Havah Amina, the Chiyuv of Kefel of a Ganav indeed could have been derived from the law of a Shomer, but "Milsa d'Asi b'Kal va'Chomer, Tarach v'Chasav Lah Kra.") (I. Alsheich)