Implied Question #1: And when the Gemara wants to establish the Machlokes as being that of Rabah and Rav Yosef, where Rabah holds like Rebbi Eliezer, who is a Shamuti?

Implied Question #2: And moreover, when, after suggesting that Rav Yosef is a Machlokes Tana'im, the Gemara concludes that he goes according to everyone, implying that Rabah is a Machlokes Tana'im ...

Implied Question #2 (cont.): Which can only mean that he holds like Rebbi Eliezer and not like Rebbi Akiva ...

Implied Question #2 (concl.): According to whom he will be a Shomer Sachar.

Answer: It is impossible to say that, since Rabah must hold that even according to Rebbi Akiva, he will be a Shomer Chinam ...

Proof: Because, if, in 'Eilu Metzi'os (Bava Metzi'a, Daf 29. & 29b), according to Rebbi Tarfon, who allows him to use it, he is nevertheless merely a Shomer Sachar, according to Rebbi Akiva, he will be no more than a Shomer Chinam.

Rabah: It therefore seems that Rabah will not establish the Machlokes by a Shomer Aveidah at all, since, in his opinion, they all agree that he is a Shomer Chinam ...

Rabah (cont.): And they are actually arguing over Shmuel, in that Rebbi Akiva holds like Shmuel, that 'If he loses the handle of the scythe, he loses a thousand Zuz' (Bava Metz'i'a 82a).

Rav Yosef: And even when Rav Yosef establishes the Machlokes like Shmuel, Rebbi Eliezer does not hold like him, since he exempts the lender who loses the Mashkon, even from the value of the Mashkon.

Clarification: Consequently, when he establishes the Machlokes by a Shomer Sachar, like Rebbi Akiva, the Gemara says 'Does this mean that Rav Yosef is a Machlokes Tana'im?'

Clarification (cont.): Since Rabah is definitely not a Machlokes Tana'im, since he establishes the Machlokes with reference to Shmuel.

Clarification (concl.): The Gemara concludes however, that everyone holds like Rav Yosef.

Mishnah in Shevu'os: And when the Mishnah in Shevu'os (Daf 43a & 43b) states, in the case where the borrower says to the debtor 'You lent me a Sela on it (the Mashkon), but it was worth two!', implying that the lender is Chayav to pay for the Mashkon that he lost ...

Mishnah in Shevu'os (cont.): According to Rabah, who holds that he ('Malveh al ha'Mashkon') is a Shomer Chinam, it speaks where he lost it due to negligence.

Clarification: And even a Shomer Chinam is Chayav, seeing as he was a Poshe'a.

Clarification: This is the Seifa of the Beraisa mentioned earlier, a Tosefta in Bava Metzi'a (Perek 2, See there).

Clarification (cont.): Hence the Gemara is justified in extrapolating from it that when it says 'Chayav', the Tana means for Geneivah va'Aveidah.

Explanation #1: It speaks where it was stolen in such a way that it was caused by its tendency to stroll out.

Explanation #1 (cont.): And this answer did not occur to the Gemara earlier, which is why the Gemara asked there whether it was stolen from his house.

Explanation #2: Alternatively, the Seifa refers specifically where the animal got lost, which its tendency to stroll out caused to happen.

Explanation #2 (cont): And that is why the Gemara could not give this answer in the Reisha, seeing as the Tana pecifically mentioned that the animal was stolen.

Clarification: This means that it was only guarded against a regular wind, and it teaches us that he is like a Shomer Chinam, whose Shemirah is finished.

Clarification: Because, since he undertook to pay its value, he is Patur from Kefel even if it turns out that he stole it.

Question: Why does the Gemara establish the case by an armed robber, and is therefore pushed to answer that he is a Ganav ...

Question (cont.): Why not rather establish it where he claims that it was stolen via a big Oneis ...

Example #1: Such as where he guarded money in a dug out pit in the ground, which can only stolen via underground tunnels, which is an Oneis akin to armed robbers?

Example #2: Or where he had a mental seizure, or where he fell asleep be'Oneis, or some other Oneis which rendered him incapable of guarding.

Example #3 (according to Rabah): According to Rabah, who rules at the end of 'ha'Po'alim' (Bava Metzi'a, Daf 93b) that a Shomer who goes to town or who sleeps when everybody else does, is Patur, we have a case of To'en Ta'anas Ganav who pays double if he claims that it was stolen at a time when people tend to go into town or when people are sleeping.

Conclusion: Whereas according to the Amora'im who argue with him, it is nevertheless applicable in the way that Tosfos just explained.

Answer: One can answer that the Gemara here does not bother to give this answer, since it answers well by establishing it by an armed robber, which it considers a Ganav.

Answer Extension: And when the Gemara will shortly ask on the Beraisa 'Lo Im Amarta ... ', it could also have answered 'And according to you (the questioner), who holds that he is a Gazlan, one can also ask that we find a Shomer Sachar who pays double by To'en Ta'anas Ganav be'Oneis'?

Question: But there is a Kashya on the Gemara, which says (on Amud Beis) 'Kal va'Chomer she'Ein alav Teshuvah' ...

Question (cont.): Since in Perek ha'Sho'el (Bava Metzi'a, Daf 95a) the Gemara concludes that 'This Tana considers An armed robber a Gazlan'.

Question (concl.): So what if he does; The Kashya remains, 'Whereas a Shomer Sachar pays Kefel by To'en Ta'anas Ganav be'Oneis ... '?

Refuted Answer: Nor can one answer that since Geneivah be'Oneis is not common, one cannot consider it a Pircha, whereas An armed robber is more common ...

Refutation #1: Since in many places the Gemara asks from Chumros that are not common.

Refutation #2: Moreover, even if it is not common, he can still use it as a claim.

Answer: The Ri therefore explains that since the Torah declares a Shomer Sachar Chayav for Geneivah, and S'tam Geneivah is close to Oneis, as the Gemara says in 'ha'Sho'el' (Ibid.) ...

Answer (cont.): It is a S'vara to say that whatever form the Geneivah takes, he will be Chayav, based on the Gezeiras ha'Kasuv, even if it is a complete Oneis.

Question: Even though the Torah declares Patur, the case of an armed robber (which is synonymous with the 'Shevuyah' mentioned in the Torah), even though the Oneis there is no greater!

Dochek: This is a Dochek however (See Tosfos, Bava Metzi'a, Daf 42a DH 'Amar Shmuel').

Clarification: It appears that this refers to the Gemara in 'ha'Mafkid' (Bava Metzi'a, Daf 41b and 42a), which tries to learn (the Chiyuv of) Sh'lichus Yad a Shomer Sachar from a Shomer Chinam ...

Implied Question: Despite the fact that a Shomer Sachar is Chayav to pay Keren even without a Shevu'ah ...

Answer: Because the Gemara thinks that 'Kefel with a Shevu'ah is stronger than Keren without a Shevu'ah'.

Question #1: According to this Tana, from where do we know that the first Parshah (of Parshiyos Shomrim) is speaking about a Shomer Chinam, and the second, about a Shomer Sachar, and not the other way round?

Question #1 (cont.): Since in Perek ha'Sho'el (Ibid. Daf 94a) we only know this due to the fact that 'Keren without a Shevu'ah is stronger than Kefel with one'?

Question #2: Furthermore, the Gemara shortly, in connection with 'Kal va'Chomer on which there is no Pircha', asks 'Whereas a Shomer Sachar pays Kefel ... ', in which case it is right that he is Chayav for Geneivah va'Aveidah' (See Hagahos ve'Tziyunim) ...

Question #2 (cont.): On the contrary, since it (Kefel) is a Chumra, it ought to say that he is Patur, so that he will become Chayav to pay Kefel?

Answer: It is nevertheless obvious that the Chumra of 'Karna be'Lo Shevu'ah' is stronger than that that of 'Kefeila bi'Shevu'ah' ...

Reason: Because who knows that it will come to that?

Answer (cont.): Consequently, we need to establish the second Parshah, which declares Chayav Keren by Geneivah by a Shomer Sachar which is more stringent, and the first Parshah, which declares him Patur, by a Shomer Chinam ...

Answer (cont.): Since it is obvious that the former is more stringent than the latter.

Answer (concl.): On the other hand, the Gemara is perfectly justified in asking a Pircha on the Kal va'Chomer from Kefel, even though it is only a small Pircha, since it is not in the Lameid (Shomer Sachar), and even though the Lameid contains another Chumra that is more stringent than it.

Clarification: And the Tana who shortly holds 'Karna be'Lo Shevu'ah is stronger', maintains that one cannot even use that of 'Kefeila bi'Shevu'ah' as a Pircha.

Reason: Seeing as it is its leniency (that the Shomer Chinam is initially Patur) that causes it to become Chayav Kefel, whereas it is the other one (the Shomer Sachar)'s Chumra that causes it to be Patur from Kefel.

Conclusion: And a similar S'vara exists at the beginning of Bava Metzi'a (Daf 4a) when the Gemara says 'Rebbi Chiya Toras Hazaah Lo Parich'.

Clarification: But if he would be a Gazlan, it would be in order, since 'Someone who claims Ta'anas Gazlan, and the is subsequently discovered in his domain, does not pay Kefel.

Question: Even a Shomer Sachar pays Kefel, in a case of To'en Ta'anas Ganav be'Ba'alim?

Answer #1: Perhaps there is no Din of Kefel by To'en Ta'anas Ganav in such a case.

Answer #2: And even if there is, there is no problem if one can ask 'u'le'Ta'amech' but doesn't.

Question #1: According to Rav Yosef, who holds earlier according to this Tana that 'Listim Mezuyan is a Ganav', and he also initially thinks that 'Kefeila bi'Shevu'ah Adif', from where does he know that Geneivah va'Aveidah is Chayav by a Sho'el ...

Question #1 (cont.): Seeing as one cannot learn it from Shomer Sachar?

Question #2: One can ask the same Kashya on Rebbi Yochanan, on whose opinion the Gemara concluded earlier that Listim Mezuyan is a Ganav, and it is evident in ha'Mafkid (Bava Metzi'a, Daf 41b) that he also holds ' Kefeila bi'Shevu'ah Adifa' (in the Sugya of 'Shelichus Yad Tzericha Chesaron')

Question #3: And on Rebbi Elazar, who holds there and in 'Merubeh' (later, on Daf 79b & 80a) that someone who hides from people is a Ganav, even if the owner sees him, and one can assume that he says the same about an armed robber?

Answer: They all learn it from "ve'Chi Yish'al", since 'the 'Vav connects it (Sho'el) with the previous Parshah (Shomer Sachar), in which case we learn the the latter from the former and the former from the latter.

Implied Question: According to that conclusion, the Kal va'Chomer cited in the current Beraisa, is no longer necessary.

Implied Question (cont.): And the Gemara cites it there ...

Answer: Before it became aware of the D'rashah of "ve'Chi Yish'al", from which we learn the latter from the former.

Halachah: Because this is how we Pasken ...

Proof #1: Like the S'tam Mishnah in the last Perek of Shevu'os (Daf 49a) which states that 'a Nosei Sachar and a Socher must pay for ha'Geneivah and Aveidah'.

Proof #2: And Rebbi Yirmiyah too, holds like this in 'ha'Mafkid' (Bava Metzi'a, Daf 36a & 36b) in the Sugya of 'Sometimes they both bring a Chatas ...

Proof #3: And in Yevamos, at the beginning of Perek Almanah (Daf 66b & 67a) in the Sugya of 'A Kohen who rented a cow from a Yisrael', where the Gemara concludes 'Granted that he is Chayav to pay for Geneivah and Aveidah'.

Proof #4: And in 'ha'Sho'el' (Bava Metzi'a, Daf 97a) too, in connection with the case of Mar bar Chin'na who rented out a mule to bei Chuza'i, where Rava obligated him to pay, and where the Gemara concludes that it was stolen.

Implied Question: This answer has no ramifications ...

Answer #1: Only the Gemara wants to answer those who suggested that it goes according to Rebbi Yehudah.

Sugya in ha'Umnin: We have a similar case in 'ha'Umnin' (Bava Metzi'a, Daf 80b) where it says 've'Iba'is Eima ke'de'Machlif Rabah bar Avuhah'.

Sugya in ha'Umnin (cont.): Only there it fits better, because the Gemara wants to establish the Mishnah like Rebbi Meir.

Answer #2: That being the case, perhaps the Gemara here is merely copying the answer there.

Clarification: Provided that is, that the animal was unable to descend ...

Reason: Because if it was, then even if it fell, he would be Chayav to pay for the full damage, since it was a case of 'Techilaso bi'Peshi'ah ve'Sofo be'Oneis'.

Implied Question: And when the Seifa then says that 'the animal descended' ...

Answer: That is the norm., but in fact, he will be Chayav even if it fell down.