QUESTION: The Gemara discusses a case in which a Pikadon was stolen from a Shomer Chinam, who not only made a Shevu'ah that he did not steal the object but who also paid the owner for the value of the object. Later, the thief was caught. Who is entitled to receive the payment of Kefel which the thief must pay, the owner or the Shomer? Abaye rules that the owner of the Pikadon receives the Kefel. Rava rules that the Shomer receives the Kefel.

Abaye reasons that even though the Shomer paid for the object, the owner is not prepared to grant to the Shomer the ownership of the stolen object (such that the Shomer would receive the Kefel in the event that the thief is found), because the Shomer troubled the owner to come to Beis Din so that the Shomer could make a Shevu'ah. Rava, however, maintains that the fact that the Shomer paid the owner is sufficient to make the owner transfer to the Shomer the rights to the Kefel.

Abaye's logic is difficult to understand. What difference does it make that the Shomer made a Shevu'ah? Since the Shomer paid for the value of the object, the object now should belong to him. The original owner has nothing to do with the object anymore. When the thief is caught and pays Kefel, the money certainly should be paid to the Shomer because is the owner of the stolen object.

ANSWER: The TOSFOS RID (#59) answers that the Shomer does not actually acquire the object when he pays its value to its owner. Technically, when the thief is found, the object returns to the possession of its owner who then must return the money that the Shomer paid him. The money that the Shomer paid does not buy the object (and the rights to the Kefel) for him, because had the owner known that his animal would be found later, he would not have agreed to receive the money from the Shomer. Rather, the Shomer's rights to the Kefel come from the owner's voluntary transfer of the rights to him (which he does because of the Shomer's willingness not only to take an oath but also to pay for the object), and not as a result of any purchase of the object.

Accordingly, Abaye maintains that since the Shomer troubled the owner to come to Beis Din for the Shevu'ah, the owner does not have goodwill towards the Shomer under these circumstances, and he is not prepared to willingly transfer to the Shomer the rights to the Kefel.

The Tosfos Rid proves from the Gemara in Bava Metzia (34a) that the Shomer's payment in this case does not actually acquire the object for him. The Gemara there states that although the Kefel belongs to the Shomer, nevertheless wool that was sheared from a stolen sheep, or calves that the animal bore, belong to the owner and not to the Shomer. If the Shomer acquires the body of the animal through his payment, he also should acquire the wool and the calves. It must be that the Shomer's payment does not acquire the object for him; rather, the owner merely transfers to the Shomer the rights to the Kefel.

The Tosfos Rid in Bava Metzia (34a) explains the Gemara there according to his opinion here. The Gemara there asks, how can the owner transfer the Kefel to the Shomer? Such a transfer should be considered a Kinyan performed on something that does not yet exist in the world (such a Kinyan is invalid). The Gemara answers that the Kinyan is valid because it is considered as though the owner says to the Shomer at the time he hands over the object to him, "If it is stolen and you desire to pay me, my object is acquired to you from now on." (The Tosfos Rid notes that the Gemara does not mean that this is an ordinary Kinyan which enables the Shomer to keep the animal itself, but rather it is a Kinyan for the sake of receiving the rights to the Kefel.)

It should be noted that TOSFOS (Bava Metzia 33b, DH Kegon) disagrees with the Tosfos Rid and says that the Kefel indeed is transferred via the sale of the animal. Apparently, Tosfos understands that Abaye here qualifies the condition mentioned in Bava Metzia (34a) and maintains that the owner's conditional transfer to the Shomer of the rights to the Kefel is, "If it is stolen and you desire to pay me and you do not trouble me to go to Beis Din so that you can take an oath, my object is acquired to you from now on." The Gemara in Bava Metzia does not state this explicitly because it is uncommon that a Shomer would want to both swear and pay; if he seeks to conduct in a righteous way, let him just pay and not swear. Abaye therefore says that if the owner is troubled to go to Beis Din, the sale of the object was never included in his stipulation. (D. Bloom, Y. Montrose)

QUESTION: Rabah Zuti inquires about the Halachah in the case of an animal which was stolen by force (by armed robbers) from the Shomer with whom it was deposited. Later, the thief returned it to the house of the Shomer, where it died through the negligence of the Shomer. Is the Shomer exempt from liability since his responsibilities towards the object ceased at the time it was stolen from him by force, or does he became obligated to take care of the object again once the thief returns it to his domain? The Gemara gives no conclusive answer.

The RAMBAM (Hilchos She'eilah u'Pikadon 8:6) writes that in this case, there is a doubt whether the obligation of the Shomer to watch the animal ceases once it is stolen from him, and thus the Shomer is exempt from paying. However, if the owner of the animal seizes the money from the Shomer, Beis Din does not force him to give it back.

The ROSH, TUR, and SHULCHAN ARUCH (CM 294:6) make no mention of the case of Rabah Zuti, even though they cite the other laws mentioned in the Gemara here. Why did these Poskim not mention Rabah Zuti's case?

ANSWER: REBBI AKIVA EIGER explains that the Rosh and Tur follow the opinion of the RAMAH cited by the SHITAH MEKUBETZES. The Ramah writes that Rabah Zuti's question is not applicable according to both Abaye and Rava, who discuss (in the previous Gemara) the Halachah in the case of an animal stolen by force from a Shomer. Abaye maintains that if the Shomer was a Shomer Chinam, he may either pay the owner and receive his money back from the thief, or take an oath to the owner that it was stolen by force, and the owner will be paid back by the thief. Rava maintains that even a Shomer Chinam is obligated to deal with the thief and may not take an oath to the owner. However, if he was a Shomer Sachar, both Abaye and Rava agree that the Shomer must deal with the thief.

The Ramah explains why Rabah Zuti's question is not relevant according to Abaye. Rabah Zuti's question involves a Shomer Sachar, because in his case the animal was stolen by force, a situation from which a Shomer Sachar, and not only a Shomer Chinam, is also exempt. If his question would have involved a case in which the animal was stolen by an ordinary thief (and not by armed robbers), the Gemara could not have said that the obligation of the Shomer ceased, because a Shomer Sachar is liable when the object is stolen by an ordinary thief. Since Abaye would agree that a Shomer Sachar must deal with retrieving the object from an ordinary thief or he must pay for the object, he certainly is obligated to continue his Shemirah if the thief returns it to him without the Shomer having to retrieve it.

Even if the thief returns the object to a Shomer Chinam, Abaye would agree that the Shomer must continue to guard it. Abaye maintains that a Shomer Chinam may swear to the owner because he is not obligated to go to the trouble of dealing with the thief. If the thief returns it voluntarily, Abaye agrees that the Shomer's responsibility to guard the object continues.

The Ramah adds that it is even more obvious according to Rava that the Shomer's responsibilities continue. Rava maintains that in all cases, the Shomer is obligated to take the thief to Beis Din in order to retrieve the object, implying that he still is obligated to look after the animal. Certainly, if the animal is returned to the Shomer without any bother, the Shomer must continue to watch it until it is returned to the owner.

The Ramah writes that Rabah Zuti presents a third opinion. He disagrees with both Abaye and Rava. Even though it is clear to both Abaye and Rava that the Shomer's obligation does not cease when the object is stolen from him by force, Rabah Zuti is in doubt about this. The Halachah, however, follows the view of Abaye and Rava, and thus the Shomer's responsibilities do not cease. (See TOSFOS RID who agrees with the RAMAH's explanation. See also KETZOS HA'CHOSHEN 294:7.)

(With regard to the case in which Abaye and Rava disagree (i.e. whether a Shomer Chinam may swear to the owner), the Halachah follows the view of Rava (as it does in all disputes between Abaya and Rava with the exception of six cases; see Bava Metzia 22b), and thus the Shomer is always obligated to deal with the thief..)

Accordingly, perhaps the Rosh, Tur, and Shulchan Aruch agree with the Ramah's explanation that the Halachah does not follow Rabah Zuti, and that is why they omit his ruling. (D. Bloom)