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CHARTS FOR LEARNING THE DAILY DAF

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Bava Metzia Chart #18 (from Hebrew chart)

Bava Metzia Daf 94b-95a

THE FORMS OF LIABILITY OF THE FOUR TYPES OF SHOMRIM (AND
THEIR SOURCES)
INTRODUCTION

"1st Parshah" (Shemos 22:6-8) : Shomer Chinam(1)
"2nd Parshah" (Shemos 22:9-12) : Shomer Sachar(1)
"3rd Parshah" (Shemos 22:13-14): Sho'el
"4th Parshah" (Shemos 22:14) : Socher

  (A)
SHOMER CHINAM		 (B)
SHOMER SACHAR		 (C)
SHO'EL		 (D)
SOCHER
1) PESHI'AH
(NEGLIGENCE)		 Chayav
(v. 8: "Al Kol Davar Pesha")(3) 		Chayav
(Kal v'Chomer from Shomer Chinam)(2)		 Chayav
(Kal v'Chomer from Shomer Chinam)(2)		 Chayav
(Kal v'Ch. from Sh. Chimam)(2)
- - - - - - - -
2) AVEIDAH(7)
(LOST) 		Patur(6) Chayav(5)
(Kal v'Chomer from Geneivah)		 Chayav
(Kal v'Chomer from Shomer Sachar)		 Machlokes
(4)
3) GENEIVAH
(STOLEN)		 Patur
(v. 7)		 Chayav
(v. 11)		 Chayav
(Kal v'Chomer from Shomer Sachar) 		Machlokes
(4)
- - - - - - - -
4) SHEVURAH OR MESAH
(BROKE OR DIED)		 Patur(8)
(Kal v'Chomer from Geneivah) 		Patur
(v. 9) 		Chayav
(v. 13) 		Patur
(v. 14)
5) SHEVUYAH(10)
(TAKEN CAPTIVE)		 Patur(8)
(Kal v'Chomer from Geneivah)		 Patur
(v. 9)		 Chayav(9)
(v. 13: "v'Nishbar *O* Mes")		 Patur
(Kal v'Ch. from Shevurah u'Mesah)
==========
FOOTNOTES:
==========
 (1) The verses do not explicitly mention "Shomer Chinam" or "Shomer Sachar." We deduce, however, that the first Parshah is discussing Shomer Chinam and the second is discussing Shomer Sachar from the fact that the second Parshah obligates the Shomer for Geneivah v'Aveidah, which shows that the Shomer of the second Parshah has a greater responsibility of Shemirah (and thus a greater degree of liability) than the Shomer of the first Parshah. Hence, it must be that the first Parshah is discussing a Shomer who receives no wage, while the second is discussing a Shomer who receives a wage.
(2) So says the Gemara (end of 95a).
(3) So writes Rashi (95a, DH a'Shomer Chinam - even though the simple understanding of the verse is that it is referring to something else, see Rashi on the Chumash there). The Acharonim (see Even ha'Azel and others) point out that from the words of the Rambam (Hilchos Sechirus 1:2, 2:3) it seems that the Chiyuv of Shomrim for a Peshi'ah is derived from logic, and not from the verse: the Shomer is Chayav since the owner, who gave his money or item to the Shomer, stopped protecting it himself based upon the promise of the Shomer to protect it. (This is similar to the Chiyuv of an Arev, who becomes obligated to pay the lender because it was on his word that the lender loaned money to the borrower; see Ritva, Bava Metzia 99a.) That is why the Shomer is Chayav if he fails to protect it properly. From our Sugya (end of 95a), though, it seems that the Chiyuv for Peshi'ah is learned from the verse of Shomer Chinam, as Rashi explains, and not through logic alone. Indeed, the Yerushalmi (Shevuos 7:1) states so explicitly.
(4) Rebbi Yehudah and Rebbi Meir argue whether a Socher is like a Shomer Chinam or like a Shomer Sachar with regard to the Chiyuv for Geneivah and Aveidah, as these Halachos are not mentioned explicitly in the verse.
(5) The Gemara explains that according to the opinion which holds that "Lo Dibrah Torah k'Lashon B'nei Adam," this Halachah is also learned from the verse, "Im Ganov Yiganev," and even though it is a Kal v'Chomer the Torah also writes it explicitly -- "Tarach v'Kasav Lah Kra."
(6) Although this Halachah is clear, and is taught explicitly in the Mishnah (93a) and other places, we do not find any source for it in the Gemara or in the Rishonim. The verse which exempts a Shomer Chinam for Geneivah cannot be used as a source for this Halachah, since perhaps the Torah only exempts a Shomer Chinam for Geneivah, and *not* for Aveidah. The logic for making such a distinction is clear: Geneivah is closer to Ones, while Aveidah is closer to Peshi'ah, as our Gemara itself explains (with regard to the Chiyuv of a Shomer Sachar for Aveidah; see following footnote). From where, then, do we know that a Shomer Chinam is exempt from liability for Aveidah? (See MA'AYAN HA'CHOCHMAH who raises this point. The MITZPEH EISAN's answer -- that we learn the exemption of a Shomer Chinam in a case of Aveidah from the Gemara in Bava Kama (63b) which exempts a Shomer Chinam from paying Kefel in a case of "To'en Ta'anas Aveidah" -- is problematic. Even if a Shomer Chinam is Chayav for Aveidah, the extra verse that exempts him from Kefel would be needed to exempt him from Kefel in a case of "To'en Ta'anas *Ones*," as Rashi says in Bava Kama (57a, DH Listim), and to exempt him from Kefel in a case of "To'en Ta'anas *Gazlan*.")
The SHITAH MEKUBETZES in the name of RABEINU SHNEUR asks a similar question to ours: from where do we learn that a Shomer Sachar is exempt in a case of Aveidah when the owner is with him ("Ba'alav Imo")? This, too, is not written in the verse anywhere (according to the opinion that "Dibrah Torah k'Lashon B'nei Adam) and thus we cannot learn it from Sho'el through the "Vav Mosif" any more than Peshi'ah b'Va'alim. Rav Shneur answers that even the opinion that says "Dibrah Torah k'Lashon B'nei Adam" would agree here that we derive Aveidah from "Ganov Yiganev," since besides the extra word "Yiganev" there is a Kal v'Chomer. Hence, the Chiyuv for Aveidah is indeed written with regard to Shomer Sachar. (This would seem to contradict the Gemara's statement that there is *no need* for the verse to write the Chiyuv of Aveidah for a Shomer Sachar, and the Torah writes it only because of "Tarach v'Kasav Lah Kra" (see Shitah Mekubetzes ibid.), since according to the Shitah Mekubetzes the verse is indeed teaching that a Shomer Sachar is Patur for Aveidah b'Va'alim. The answer to this could be that if the only reason to write the Chiyuv for Aveidah in the verse of Shomer Sachar was in order to teach that he is *exempt* for Aveidah when "Ba'alav Imo," the Torah should have written Aveidah in the verse of Shomer Chinam, which discusses his *exemption* from liability. It should have written there "Im Ganov *Yiganev* mi'Beis ha'Ish" to include Aveidah in the *exemptions* of a Shomer Chinam, and thereby to show that the Halachos of Geneivah and Aveidah are always identical. Since the Torah wrote the Halachah of Aveidah in a verse which discusses the *obligations* of a Shomer and not the *exemptions* of a Shomer, it would indicate that it is necessary to teach us that a Shomer Sachar is not only *obligated* to pay for Geneivah, but also for Aveidah.) If we accept Rav Shneur's answer we can answer our question as well. Even if "Dibrah Torah k'Lashon Bnei Adam," there is a Hekesh from Aveidah to Geneivah from the words "Ganov Yiganev" (written in the verse of Shomer Sachar) which compares the all laws of Geneivah to the laws of Aveidah. Therefore, since a Shomer Chinam is exempt in a case of Geneivah, the same applies in a case of Aveidah. (M. Kornfeld)
(7) Aveidah is a greater liability than Geneivah, because it is closer to negligence, Peshi'ah, while Geneivah is closer to Ones. (The reason for this is since Aveidah does not occur as a result of the actions of anyone else, like Geneivah does (RITVA), or because Aveidah does not result from an Ones such as when the Shomer falls asleep, like Geneivah does (RA'AVAD in Shitah Mekubetzes).).
(8) This is obvious, even though it is not written explicitly in our Sugya.
(9) The word "O" ("or") is extra, since there was no need to write it in order to teach that a Sho'el is Chayav for *either one* of the two mishaps (as opposed to being Chayav only when both occur), even according to Rebbi Oshiya. This is because once the verse obligates him for Mesah, we would know that he is also obligated for Shevurah alone, because there is no essential difference between the entire animal dying and part of it "dying" (i.e. breaking).
(10) The case of Ones of Shevuyah involves lesser liability than an Ones of Shevurah or Mesah, because it is an Ones that the Sho'el was not expected to have in mind (and thus, at the time that he borrowed the animal, he had no reason to stipulate that he does not accept liability for Shevuyah). (Rashi 94b DH she'Ken)

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