Question: If one guarded coins in the ground, and they were stolen from there, this requires investigation whether a Shomer Sachar is liable.

Answer #1: Bava Kama 57a connotes that he is liable, for Abaye challenged Rav Yosef "R. Yochanan said that [if one found] an Aveidah and claims that it was stolen, he pays Kefel";

If a Shomer Aveidah is a Shomer Sachar [like Rav Yosef holds], he pays principal!

What was the question? He should establish it when they were stolen b'Ones, e.g. he buried them 100 Amos below the ground, or he was overcome by sleep or sickness!

Inference: [He could not establish it like this, for] no theft is Ones [to exempt a Shomer Sachar], except for armed robbers.

Support: Also after this, [Abaye cited a Beraisa that says] "you cannot learn from a Shomer Chinam, for he pays Kefel" [and Abaye asked] if armed robbers are like Ganavim, also a Shomer Sachar can pay Kefel!

Inference: A Shomer Sachar is not exempt through a claim of theft, unless it is armed robbers! (If not, in any case of theft through Ones, a Shomer Sachar could pay Kefel.)

Rejection: We can reject these proofs. [Rav Yosef] could have said "also according to you [it is difficult]";

Even without this [saying that armed robbers are like Ganavim], he could say "also according to you, even if armed robbers are like Gazlanim, you find that a Shomer Sachar pays Kefel in a case of Shemirah b'Ba'alim [and he claimed that it was stolen, and it turns out that the Shomer stole it]."

Answer #2: We can bring a proof from below (95a). When we learn that a borrower is liable for theft or loss, from a Shomer Sachar, [we ask that] you cannot learn from a Shomer Sachar, for he pays Kefel when he claims that armed robbers took it;

We answered "or, you can say [that a Shomer Sachar cannot pay Kefel, for armed robbers are like] a Gazlan."

Inference: There is no theft for which a Shomer Sachar is exempt.

Question: This is astounding. Why is it not considered Ones [to exempt him] if he buried it 100 Amos below the ground? What should he have done?!

Alternatively, if he was overcome by sleep or a great sickness [why is he liable]? How is it possible that there is no theft that is total Ones like armed robbers?

Observation: Rabah holds below (93b) that if [a shepherd] went [to the city] when people normally go [and an animal fell into the water], he is exempt.

Inference: If so, there is a case of theft b'Ones [to exempt] a Shomer Sachar.

Rejection: We can reject this. Rabah holds like the other answer, that principal is better, like Rav Yosef in Bava Kama (57b, who holds that armed robbers are like Ganavim. However, we hold that armed robbers are like Gazlanim, and a Shomer Sachar can never pay Kefel, for he is always liable for theft!)

Question: In any case, it is totally unreasonable that there is no case of theft b'Ones for which a Shomer Sachar is exempt!

Suggestion: Since the Torah obligated a Shomer Sachar for theft, since it is close to Ones, like it says below (94b), he is liable even for every theft b'Ones.

Rejection: He is exempt for armed robbers, even though they are Ganavim according to Rav Yosef;

If so, what was the answer below (95a) that armed robbers are like Gazlanim? Still, we can ask that a Shomer Sachar can pay Kefel through a claim of theft through Ones...

We cannot learn to a borrower, for if we will learn that he is liable for theft and loss, he does not pay Kefel even through a claim of theft through Ones, for presumably, he must pay principal for all Onesim!

Support #1: The Gemara asks like this in Menachos (5b) regarding "ha'Tzon" to exclude a Tereifah [for a Korban. Ma'aneh Eliyahu - we ask from a law that we will know only after we learn! It seems that he refers to the suggestion there that a Kal v'Chomer should forbid offering a Tereifah, for it is forbidden even to people. We cannot ask from Minchas ha'Omer, which is forbidden to people, and we offer it, for it is different, for it permits itself (normally, one may not offer Chadash). Rav Acha mi'Difti said that we would learn from Minchas ha'Omer, which permits itself, that also a Tereifah may be offered, and it permits its Lav. This Limud applies only after we learn an Isur to offer a Tereifah!]

Support #2: And [it asks like this] in Bava Kama (40b) regarding whether a stadium ox (it is incited to gore) is Kosher for a Korban. (R. Shimon says that the Torah needed to teach that the law of a gorer depends on whether or not it was forced. We say that he cannot discuss Pesul to be a Korban, for even if the verse discusses this, it does not mention whether or not it was forced, and we would learn both cases.)

Answer: Since we learn a borrower from a Kal v'Chomer from a Shomer Sachar, we should not obligate him principal for theft b'Ones;

Dayo (it suffices) to make (a borrower,) which we learn from the Kal v'Chomer, to be like the source. Just like a Shomer Chinam is exempt for theft b'Ones, also a borrower.

Question: According to the truth, what is the source to obligate a borrower for theft b'Ones? We find that a borrower is exempt only for Mesah Machmas Melachah. We cannot learn [theft b'Ones] from a Shomer Sachar, like I explained!

Answer: We learn from "v'Chi Yish'al" - the Vov teaches that the law of the previous Parshah (a Shomer Sachar) applies. It is as if theft and loss are written explicitly regarding a borrower;

Since [it is as if] the Torah wrote theft, loss and Ones, we do not exempt for theft b'Ones.

Implied question: The Beraisa learns from a Kal v'Chomer!

Answer: It means that if not for the verse, we would have made a Kal v'Chomer.

Question: He is exempt from checking a hole due to danger of scorpions!

Answer #1: Here he can clear away the [debris of] the house that caved in [and there is no danger].

Answer #2: Here that there is Vadai Chametz, he is not exempt due to Safek lest there is a scorpion;

In Pesachim (10b) we asked about a loaf in a snake's mouth, whether or not he must get a snake charmer to remove it.

Support #1: It is proven like this below (93b) that the Halachah is that he is liable. Abaye asked "if so, the beginning was negligence and the end was Ones. He is liable!"

Support #2: It is proven like this also in Bava Kama (56a).

Limitation: This is only when it is possible that the Ones would not have occurred had he not been negligent at the beginning;

However, if he was negligent, and it went out to the swamp and died, he is exempt, for the angel of death [would have killed it no matter where it was].

Observation: We must say that the shack of willow branches was a good guarding regarding theft, just like in the ground. Therefore it is called Ones regarding theft.

Explanation (R. Tam): This means that [the owner] cannot say "I believe your oath, but not the other's (your wife or child's) oath;

However, if [his wife or child] was negligent, and they do not have [money or property] to pay, the Shomer pays.

Proof: If you would not say so, what is deposited with a Ba'al ha'Bayis, his wife will consume it and be exempt (for whatever she gets goes to her husband. Indeed, she is liable when she will have money, i.e. after she is widowed or divorced.)

Support: This is why [the Shomer's] mother swears that she put the coins in a chest, i.e. she was not negligent.

Implied question: [When we thought that his mother was negligent,] why does it say "we should tell his mother to pay"? This connotes that if she did not have [money] to pay, the Shomer would be exempt!

Answer: No, it means that [her son will pay now, and] she will pay her son when she gets money.

Inference: If not for this claim, he would be considered negligent, and liable.

Question: In Bava Kama (39a, if orphans' ox gores, Beis Din appoints an Apotropos, and witnesses testify in front of the Apotropos to make the ox Mu'ad. Future gorings are paid for from the Aliyah, i.e., not from the ox itself.) We say "from whose Aliyah (who pays)"?

Citation (39a - R. Yochanan): We collect from the orphans. If we would collect from the Apotropos, no one would agree to be an Apotropos!

Inference: [An Apotropos] is exempt for negligence.

Citation (Gitin 52a - Mishnah): If Beis Din appointed [the Apotropos], he does not swear. If the orphans' father appointed him, he swears (this will be explained);

Citation (cont.): Aba Sha'ul says oppositely. (If Beis Din appointed him, he swears. If their father appointed him, he does not swear.)

Suggestion: (He swears that he was not negligent with their property.) This proves that he is liable for negligence!

Rejection: We can say that the Shevu'ah is not that he was not negligent, rather, that he did not keep any of their property. [We suspect him, for] he rationalizes [keeping for himself] because he toiled for them.

Conclusion: Surely, an Apotropos is liable for negligence, like it connotes here. He will not refrain [from accepting to be an Apotropos, lest he need to pay], for [Beis Din] established him to be trustworthy [and he wants to get this reputation].

Distinction (and Answer to Question (b)): However, there he was not appointed for the orphans' need, rather, for Tikun ha'Olam, lest their ox damage others. Only there we are concerned lest he refrain [if he will be liable for negligence].

Support - Citation (Yerushalmi in Gitin): Does R. Yochanan (who said that if we would collect from the Apotropos, no one would agree to be an Apotropos) hold like Rabanan?

Explanation: [Does he hold like Rabanan] who say that if Beis Din appointed him, he does not swear?

[The Yerushalmi answers that] he can even hold like Aba Sha'ul. He wants to give in order to be called trustworthy. I.e. he wants to pay if he will be negligent, and he will not refrain, since he will be called trustworthy.

However, here he was appointed only for Tikun ha'Olam. We are concerned lest he refrain.

Citation (cont.): Does R. Yosi bar Chanina (who said that we collect from the Apotropos) hold like Aba Sha'ul?! He can even hold like Rabanan. A person evades swearing, but he does not evade paying.

Explanation: When he knows that he was negligent, he wants to pay. However, if it was lost, he does not want to swear that he was not negligent, for if so people suspect him.

Explanation: He is unsure about this law. According to R. Yosi, who says [35b, that when a renter lent the cow, and it died b'Ones] that the cow returns to the original owner...

Possibility #1 - Inference: This shows that the Maskir (who rented it out) is in place of the renter, and he has a Din with (case against) the borrower;

Also here, the wholesaler is in place of the orphans, and he has a Din with the shepherd, as if he was his Shomer.

Possibility #2: Or, perhaps here is different. There, surely the Maskir is in place of the renter, for the renter has a connection to the cow itself, for he rented it;

However, regarding the orphans, since it was a Mekach Ta'os, they own nothing in the ox itself. How can the wholesaler stand in place of them?!

Observation: Had the shepherd not claimed "I put it with the cattle", obviously he would have been liable, even though it is a Mekach Ta'os, and he has no Din with the wholesaler, since he was negligent;

The wholesaler demands from the orphans his ox, which died through negligence. They are a Shomer Chinam on it. The orphans pursue the shepherd to exempt them from the wholesaler, for he was negligent.

Explanation #1 (Rashi): He made a compromise between them.

Explanation #2 (R. Tam): This is an absolute law. Had [the shepherd] informed [the wholesaler], he would have slaughtered it immediately and sold [the meat] immediately [for a third less than usual]. He would not be able to leave it until the market day [when it sells for the full price], for it would have died beforehand.

Question: In Gitin (65b), one Beraisa says "[if one said] make an Eruv for me with dates", and the Shali'ach made an Eruv with figs, it is Vadai. Another Beraisa says that it is invalid;

Citation (cont.) Resolution: Here he was Me'arev with his own [Peros], and there he was Me'arev with his friend's;

The Gemara explains that when it was with his own Peros, he is adamant [the Eruv is invalid], even though he did not say "do not be Me'arev from these"!

Answer: Regarding two species, one is adamant, even if he did not say "do not be Me'arev from these."

Implied question: If one said [bring to me] from the window, and he brought to him from the sack [and it was Hekdesh], the Shali'ach transgressed Me'ilah, even though it is one species!

Answer: There, they (what he should have taken from, and what he took from) were not in one place. Here, the case is, that they were in one house, and the Shali'ach was not [responsible] to know that he said to take only from here.

Explanation #1 (Rashi): The hops were full of thorns, and improved the beer only a little.

Question: If so, obviously he does not give more, only what it is worth to put into beer!

Answer: Even though they were worth more for animal food, he pays only what they were worth for beer;

[Hops] are proper for animals, like it says in Shabbos (77b) "a camel has a short tail, for it eats hops. [The tail is short] so it will not get caught in it (thorns in the hops).

Explanation #2 (R. Chananel): Kisi is a kind of hops that must be softened. Without softening, it is not worth putting it in beer. Therefore, the beer was not good;

The Chidush is that he pays only like the beer is worth, even though [the hops] were worth much more, since for a small amount they can be softened.