I was wondering about the Loshon of the Mishnah, that calls the Shomer who gets the Keifel, "the one whom the Pikadon is/was by".
According to the Maskanah of the Gemara, though, that the Shomer actually becomes the Baal HaParah prior to the theft (either from Shaas Mesirah or Samuch L'Geneivah), could that be why the Mishnah refers to him as "the one whom the Pikadon is/was by"? Because it is actually inaccurate to still refer to him as the Shomer, and/or it would be confusing to refer to him as the Baal HaPikadon?
B'chavod.
Daniel
Daniel Steinberg, Columbus
Reb Daniel, this is a beautiful Pshat! I have always found it strange why the Mishnah said this round-about wording and now I have an answer!
1) I also now had a chance to look in the Mefarshim on this issue. I see that the Tiferes Yisrael (#8) also asks the question. He answers that the Mishnah is telling us a new Din: that if the first Shomer passes it on to a second Shomer, even though he is not allowed to do so (see Bava Metzia 36a that there is a dispute between Rav and Rebbi Yochanan about whether a Shomer who passes it on to a second Shomer is liable or not, but everyone agrees that l'Chatchilah he should not do this), if the second Shomer says, "I will pay the Keren," he also acquires the Kefel in this way. The deposit is now "with him" so the second Shomer gets the Kefel.
2) The Chidushei ha'Rim (written by the grandfather of the Sefas Emes) answers that the Mishnah is coming to tell us that if the cow was in the Agam at the time it was stolen, the owner does not have to pay the Kefel to the Shomer according to the conclusion of the Gemara (the second Lashon of the Gemara on 34a) that he is Makneh the cow just before it is stolen. So it follows that just before the theft happened, it was not "with him" in his courtyard so that his Chatzer could acquire it for him.
3) I saw an interesting answer in the name of Rav Chaim Greineman zt"l, in Chidushim u'Vi'urim, based on the Mishnah later (80b) which states that if the Mafkid asks the Shomer to watch over an item for him and the Shomer replies, "Place it in front of me," the Shomer thereby becomes a Shomer Chinam. Rav Greineman suggests that even though he is a Shomer Chinam, this is still not considered that the Pikadon is "with him" since he told him to place it in front of him. Accordingly, the owner does not pay Kefel to such a Shomer. This is why our Mishnah states "the one whom the Pikadon is with" -- to exclude a scenario where it is not actually "with him" but merely in front of him.
Reb Daniel, I think your Peshat is just as good as theirs!
3) Those are the explanations of some of the Acharonim on the Lashon of the Mishnah. Now we will look, bs'd, at some of the explanations of the Rishonim.
We start with the Rambam (Hilchos She'elah u'Pikadon 8:1) who writes, "To whom does he pay? -To the one holding the Pikadon."
You already noted in your question, Reb Daniel, when you wrote "is/was," that there is a possibility that it reads "was with" and this is indeed the text of the Rambam. However, as far as I know, the Rambam is the first, and possibly the only, Mefaresh (as far as I am aware at the moment) who actually writes "was" and I could not find any Girsa in the Mishnah which reads "was."
However, I argue that the Rambam may help us understand the Rosh (#1) who writes that the Halachah follows the first Lashon of Rava on 34a. The Rosh learns this from the fact that the Mishnah states "Stama," according to every possibility, and it does not matter whether the cow was in the field or in the Reshus of the Shomer; he always receives kefel. The Rosh is saying the opposite of the Chidushei ha'Rim that I cited above. The Chidushei ha'Rim learns from the fact that the Mishnah states whom the Pikadon "is with" that it must be with him now, and not in the Agam. The Rosh learns that it is sufficient that it "was" originally in the Reshus of the Shomer and it does not bother us that it is now in the field.
Based on what the Rosh writes, I think we may understand better what the Tur (the son of the Rosh) writes, in Choshen Mishpat 295. The Tur writes, "He pays the Kefel to the Nifkad, whether or not the cow was standing in his Reshus at the time it was stolen." We notice that the Tur totally changes the Lashon of the Mishnah. He makes no mention of the words "to the one who the Pikadon is/was with." This is because the Mishnah had to say this Lashon to teach that even if it is in the Agam at the time of the theft, he still receives Kefel, since it was in the Shomer's Reshus at the beginning. But once we know this Halachah, there is no need for the Tur to mention the original Lashon of the Mishnah and it is sufficient for him simply to use the word "Nifkad," that he pays to the Nifkad whether or not it was in his Reshus at the time of the theft.
B'Hatzlachah Rabah,
Dovid Bloom
Greetings, R'Dovid!
The Beraisa on 34b, "HaMalveh Es Chaveiro Al HaMashkon" uses the same Loshon of "L'Mi She'HaPikadon Etzlo" to identify the Shomer, i.e. the Malveh, as being the one to take the Shvuah, even though in this scenario of the Beraisa, there's no ambiguity as to the identify of the Baal HaPikadon/Mafkid (the Loveh) or the Shomer/Nifkad (the Malveh), like there is in our Mishnah.
Could it be that once the Mishnah in the beginning of HaMafkid, out of necessity (based on my explanation), uses the Loshon of "L'Mi She'HaPikadon Etzlo" to identify the Shomer, that now becomes the default term to describe the Nifkad for all relevant Halachic purposes, for e.g. who gets the Keifel, who takes the Shvua, etc...Meaning, in order to maintain a consistency of Loshon, the Tanna uses this term to describe the Nifkad - even in unambiguous situations?
To state it in a more narrow, less general type of way....Perhaps the Loshon of "Mi She' HaPikadon Etzlo" is used for consistency in Loshon - specifically in situations where we deviate from the normal operating procedure between the Mafkid and the Nifkad.
For e.g. in our Mishnah, the Shomer/Nifkad is the one who gets the Keifel, as opposed to the Mafkid/Baal HaPikadon. And in the Beraisa of Malveh Al HaMashkon, the Shevuah of Modeh B'Miktzas is transferred from the Loveh, who is the Mafkid/Baal HaPikadon, who should be swearing as the Nitba, to the Malveh, who is Nifkad/Shomer and the Tovea.
(And even according to Rav Ashi in the Gemara on 35a, who says that the Shvua of Modeh B'Miktzas is not transferred to the Malveh, who is the Nifkad/Shomer here, and the Loveh, who is the Mafkid/Baal HaPikadon here does swear Modeh B'Miktzas as the Nitba, as usual; still, the Beraisa is telling us who swears first, i.e. the Shomer/Nifkad, who takes a Shvua She'Aino B'Rshuso, prior to the Modeh B'Miktzas of the Mafkid/Baal HaPikadon - which presumably would be a deviation from the normal operating procedure, if the Beraisa needed to tell us that.)
Warm regards,
-Daniel Steinberg
1) I would have thought, on a simplistic level, that the term used in the Mishnah at the end of the sixth chapter of Shevuos, "Mi she'ha'Pikadon Etzlo," and cited in the Gemara here (34b), is less problematic than the same term used in the first Mishnah of the third chapter here, because on 34b it is not a Shomer being referred to, but rather a Malveh holding on to a pledge to ensure that the borrower really will pay up. I argue that this is why the Tiferes Yisrael (Shevuos 6:61) merely writes that the Mishnah refers to the Malveh, and he does not ask why it does not state "Shomer" as he asked in Bava Metzia 3:8. The answer is that in Shevuos, the crucial point is that the Malveh received a pledge and lost it, so it is logical for the Mishnah there to point out that the Pikadon started off by him.
2) I found that Rashi uses the term "Mi she'ha'Pikadon Etzlo" in several places. The first one is on 46a, DH v'Akninhu. There it seems that Rashi could have easily written "ha'Nifkad," so the fact that he did not seems to support the suggestion that once the Mishnah (33b) used this term, it became standard. The second place is in Kesuvos 84a, in Rashi DH Yinosnu. Again Rashi could have written "Nifkad," so this is another support for the idea.
However, I am still not convinced that it is necessary to say this in Bava Metzia 34b, because there the Mishnah refers to an article which was specially deposited as a collateral and the Malveh is not chiefly a Shomer on the item, as he is in the Mishnah on 33b, but rather someone who specifically took the item with the intent of it serving as a Pikadon.
3) I found, bs'd, also in Rashi to Shevuos 36b (on the Mishnah, DH bi'Kerovim) that he uses the words, "b'Zeh she'ha'Pikadon Etzlo," even though there does not seem to be any reason not to write "Nifkad."
4) I really do not want to make things more confusing, but I have found that one of the well-known Acharonim, Rav Refael Hamburger zt'l (1722-1803), the Rav of Hamburg and one of the great authorities of his time and who is cited quite widely by the Poskim, asks in Teshuvos v'Shav ha'Kohen (#79, end of DH u'LFAN"D Din Zeh) the question, why does the Tana cited in the Gemara (34b) say, 'Who takes a Shevu'ah? -The one who has the Pikadon by him"? Why does the Tana not say, "Who takes a Shevu'ah? -The Malveh"?
5) The v'Shav ha'Kohen answers based on a Din stated in the Mordechai, Bava Metzia #363, and cited by the Shulchan Aruch CM 72:3 in the name of the RI. Reuven lent money to Shimon with a Mashkon and then Reuven returned the Mashkon to Shimon before the loan was paid back. Then, the Mashkon went missing when in the house of Shimon. The Din is that Shimon is exempt from paying because a person who lent money and took a Mashkon is a Shomer Sachar on that Mashkon since his "payment" is the assurance that he will be repaid. In contrast, the borrower is only a Shomer Chinam on the Mashkon, since he does not receive any gain from the fact that he is guarding the Mashkon. Therefore, when Reuven returns the Mashkon to Shimon, Reuven remains a Shomer Sachar, which is what he would have been if he would have given it to a third, independent, party (Levi). There is no difference if Reuven gives it to Shimon or Levi.
6) Now Shimon argues that the lost Mashkon was worth 2 Sela'im, which is equivalent to 8 Dinarim, and Reuven argues that it was only worth 5 Dinarim. The Din is that the Loveh (Shimon) must take the oath because if Reuven takes the oath, Shimon might later produce the Pikadon and show that Reuven's oath was false. But if Reuven had not returned the Mashkon to Shimon, then it would be Reuven who would have to take the oath. This is why the Mishnah, cited in 34b, states that the person holding the Pikadon has to take the Shevu'ah, to cover this scenario where the Pikadon was switched from Reuven to Shimon, since we see from this that it is not always the Malveh who takes the Shevu'ah.
Kol Tuv,
Dovid Bloom
Yasher Koach, R'Dovid, for your well-thought out and comprehensive answers, as usual!
I think we crossed wires, as I received your most recent email immediately after I sent mine.
I believe my answer for the use of the phrase "Mi She HaPikadon Etzlo" on 34b closely resembles that of the v'Shav HaKohen.
However, my explanation wasn't taking alternative scenarios into account. I was just saying that the Tanna described the Malveh/Nifkad as "Mi She HaPikadon Etzlo" (even though "Malveh" or "Shomer" might have been acceptable and more straightforward) in order to stress the reason for the concern of "Shema Yotzi", i.e. because the Pikadon is/was by him, and that's why there's a reason to be concerned that the Malveh might produce it after the Shvuah of the Loveh.
The answer of the v'Shav HaKohen (as I understand) is more fundamental: Were the Tanna of the Beraisa to refer to the person whom the Shvuah is transferred to as "The Malveh", we would not automatically apply the Chiddush Din of the Beraisa, i.e. the transference of Shevuah from Nitba to Tovea, to scenarios where, for the stated reason of "Shema Yotzi..." Svara would dictate that the Shvua be taken by the Loveh.
(Or, perhaps even if we would apply it, now the Loshon of the Beraisa would be in conflict or inaccurately reflecting the actual Halacha in those scenarios.)
But ultimately, according to both explanations, the answer is that the Tanna of the Beraisa is stressing that the most important thing is that whoever has access to the Pikadon not Pasul the other party after they've already taken their Shvuah.
Thank you again!
Warm regards,
-Daniel Steinberg
1) I found also that while the v'Shav ha'Kohen (#79) relates to the Gemara in 34b as I wrote above, in #49 (at the end) he also relates to the Mishnah on 33b. He asks, why does the Mishnah (33b) not state that he pays to the Nifkad, and he answers that this comes to cover a scenario where the first Nifkad transferred the Pikadon to a second Nifkad, in which case the owner will pay the Kefel to the new Nifkad. This is the same as what the Tiferes Yisrael (3:8, in parentheses) wrote, as I cited in a previous reply
2) I would like to try to make it a little easier to understand why, according to the Tiferes Yisrael and the v'Shav ha'Kohen, there are two Mishnayos in Shas which refer to people transferring deposits which have been entrusted with them, and why the Shulchan Aruch (who, generally speaking, refers only to fairly frequent scenarios, not to unusual cases) in Choshen Mishpat 72:3 (as we saw above) refers to a scenario where the Malveh received a Mashkon and then transferred it to the Loveh (which in itself seems to be a somewhat strange thing to do).
3) My suggestion is based on Yevamos 109a (5th and 4th lines from the bottom) where Bar Kapara states that one should always try to keep far away from Pikdonos. The Shach (YD 317:45) writes that Chazal taught, "Keep far away from Pikdonos," and this is why the Rema there (#48) discusses a person who made a Neder not to accept a Pikadon. It is a weighty responsibility to accept a Pikadon, so one should try to refrain from it.
(I read in "Gedolah Shimushah," by Rav Tzvi Weisfish, that Rav Elyashiv zt'l always tried to avoid accepting Pikdonos, and now I understand a little better why.)
4) This is why Rashi on the Mishnah in Kesuvos (84a, DH Yinosnu) and in Bava Metzia (46a, DH v'Akninhu) and on the Mishnah in Shevous (36b, DH b'Kerovim) writes, "Mi she'ha'Pikadon Etzlo" -- becauses a Pikadon is something that is liable to move around since people do not want to hold on to it for long, and Rashi is telling us that the crucial point is not where the Pikadon started off, but rather where it is now.
Yasher Ko'ach Gadol!
Dovid Bloom