POINT BY POINT OUTLINE
prepared by Rabbi P. Feldman of Kollel Iyun Hadaf, Yerushalayim
Rosh Kollel: Rabbi Mordecai Kornfeld
1) HOW THE SHOMER GETS KEFEL
(a) Version #1 - Answer #1 (Rava): It is considered as if Reuven stipulated (when he gave over the deposit) 'if it will be stolen and you will want to pay, it is acquired to you from now.'
(b) Objection (R. Zeira): If so, the shearings and offspring (from when he took the deposit) should belong to Shimon (but this is not so)!
1. (Beraisa): Shimon receives everything, except for the shearings and offspring.
(c) Answer #2 (R. Zeira): It is considered as if Reuven stipulated 'if it will be stolen and you will want to pay, it is acquired to you from now, except for the shearings and offspring.'
(d) Question: Why should Reuven stipulate this way?
(e) Answer: People normally give away profit that comes from another source (Kefel), but not profit that comes from their own property.
(f) Version #2 - Answer (Rava): It is considered as if Reuven stipulated 'if it will be stolen and you will want to pay, it is acquired to you just before it is stolen.'
(g) Question: What is the difference between the two versions?
(h) Answer #1: R. Zeira's question does not apply to Version #2.
(i) Answer #2: The animal was in a swamp just before it was stolen. (Since it cannot be acquired there, Shimon would not get Kefel.)
2) MUST THE SHOMER ACTUALLY PAY?
(a) (Mishnah): If he paid and did not want to swear...
(b) (R. Chiya bar Aba): Even if he did not pay, once he said that he wants to pay, he acquires Kefel.
(c) Question: The Mishnah said 'if he paid and did not want to swear.' This shows that he must pay!
1. Counter-question (Reisha): If Shimon swore and did not want to pay...
2. He does not get Kefel because he did not want to pay. Had he wanted to pay, he would get it!
3. Conclusion: The inferences contradict one another. We cannot determine which is correct. The Mishnah neither supports nor refutes R. Chiya.
(d) Support (Beraisa): If Reuven rented a cow from Shimon, and it was stolen, and Reuven said 'I will pay and not swear', and the thief was found, he pays Kefel to Reuven.
(e) (Rav Papa): A Shomer Chinam acquires Kefel once he says that he was negligent (the owner consents), for he could have exempted himself by saying that it was stolen;
(f) A Shomer Sachar acquires Kefel once he says that he was stolen, for he could have exempted himself by saying that it died through Ones;
(g) Version #1: If a borrower says that he will pay, he does not acquire;
1. He could exempt himself only by saying that it died while working, and this is uncommon. (He is reluctant to claim this, lest people suspect that he is lying.)
(h) Version #2: Also a borrower acquires once he says that he will pay, for he could have exempted himself by saying that it died while working. (end of Version #2)
(i) Question (Rav Zvid): Abaye said that a borrower does not acquire until he actually pays!
1. Question: What is Abaye's reason?
2. Answer: Since a borrower gets free benefit, the owner does not want him to acquire with mere words.
(j) Support (for Abaye - Beraisa): If Shimon borrowed a cow from Reuven and it was stolen, and Shimon paid first, and then the thief was found, Shimon receives Kefel.
(k) Question: This does not refute Rav Papa according to Version #1 (Rav Papa did not say what the law is if he actually pays);
1. However, it refutes Version #2 of Rav Papa (he gets Kefel only because he paid)!
(l) Answer: We can answer like we answered the Mishnah (which said similarly). The same applies once he says that he will pay.
(m) Question: The Beraisa says 'he paid first.' The Mishnah did not say this!
(n) Answer: It means, he said first (that he will pay, before the thief was found).
(o) Question: Regarding a renter, it says 'he said.' Regarding a borrower it says 'he paid', to show that he must pay first!
(p) Answer: This inference is invalid, for a different Beraisa discusses a renter.
(q) Rejection: We asked the Chachamim who learn the Tosefta (authenticated Beraisos) of R. Chiya and R. Oshiya. They said that they are parts of the same Beraisa.
3) IN WHICH SITUATIONS DOES THE SHOMER GET KEFEL?
(a) Clearly, if the Shomer first said that he will not pay, and then decided to pay, he acquires.
(b) Question #1: If first he said that he will pay, and then decided not to pay, what is the law?
1. Since he retracted, he does not acquire?
2. Or, perhaps he really intends to pay, but not right now?
(c) Question #2: If Shimon said that he will pay, then he died, and his heirs say that they will not pay, what is the law?
1. Since they retract, they do not acquire?
2. Or, perhaps they really intend to pay, but not right now?
(d) Question #3: If Shimon's heirs paid, what is the law?
1. Can Reuven say 'I wanted only your father to get Kefel, since he was very nice to me, but not that you should get it!'
2. Or, is there no difference?
(e) Question #4: If (Reuven died and) Shimon paid Reuven's heirs, what is the law?
1. Can they say 'our father would have given you Kefel, since you were very nice to him.' We do not give it to you!
2. Or, is there no difference?
(f) Questions: What is the law in the following cases:
1. Shimon's heirs paid Reuven's heirs;
2. Shimon paid half;
3. Shimon borrowed two cows and paid for one;
4. Shimon borrowed from two partners and paid one of them;
5. Two partners borrowed, and one of them paid;
6. Shimon borrowed from a married woman, and paid her husband;
7. A married woman borrowed, and her husband paid.
(g) None of these questions are resolved.
4) THE SHOMER MUST SWEAR
(a) (Rav Huna): A Shomer who wants to pay must swear that the deposit is not in his premises.
(b) Question: What is the reason?
(c) Answer: We suspect lest he wants to keep the deposit for himself. (The question from the following Mishnah appears at the top of 35a. First, the Gemara explains the Mishnah.)
(d) Question (Mishnah): Reuven lent Shimon and took a security, and he lost the security. Reuven says that he lent one Sela, and the security was worth half a Sela (he demands payment of half a Sela):
1. If Shimon says that the security was worth one Sela, the same as the loan, Shimon is exempt from swearing (since he says that he does not owe anything);
2. If Reuven says like above (that he lent a Sela, and the security was worth half a Sela), and Shimon says that the loan was one, and the security was worth three quarters, Shimon must swear (since he admits that he owes a quarter, i.e. part of the claim).
3. If Shimon says 'I borrowed one Sela, and the security was worth two. You owe me one', and Reuven says that the loan and security were both worth one, Reuven need not swear (he denies owing anything);
4. If Shimon says like above (he claims one), and Reuven says that the loan was one, and the security was worth one and a quarter, Reuven must swear.
5. The one holding the security swears, lest one will swear and the other will show the security (and prove that the first swore falsely about its value).
6. Question: To which case does this refer?
i. Suggestion: It applies to case 4.
ii. Rejection: Even without this concern, Reuven swears, for he partially admits to the claim!
7. Answer (Shmuel): This applies to the Reisha (when Reuven claims from Shimon).
8. Question: There are two cases in the Reisha (1 and 2). To which does Shmuel refer?
9. Answer: He refers to case 2, in which Shimon partially admitted. Mid'Oraisa, Shimon must swear. Chachamim enacted that instead Reuven swears, lest Shimon swear and Reuven show the security to prove that Shimon swore falsely about its value.