What does the Gemara mean that because this ta'ana is not so common, the baal might not be makneh keifel to the shoel for agreeing to pay instead of swearing falsely that the animal died while working? We know Misa Machmas Melacha is an actual ptur that a shoel can take a Shvua on and be patur from having to pay for, so it can't be that uncommon? Does the Gemara just mean that it's too hard for us to insert such an umdana into the daas of the baal all the way back at shaas mesirah, i.e. that he was thinking, "If the shoel ever pays when it gets stolen instead of swearing (falsely) to patur himself that it died while working, I'll be makneh him the keifel", because it's so unlikely an event we can't say that's what he was thinking back then? Also, if it indeed got stolen and the shoel were to falsely claim "Misa Machmas Melacha" to patur himself, would he not be asked to produce the body, which he obviously could not? That itself should preclude him from being able to claim that when it actually gets stolen!
Daniel Steinberg, Columbus, OH USA
1) The Chidushei (ascribed to) ha'Ritva writes that it is the Sho'el who never thought that he would try to exempt himself by arguing "Meisah Machmas Melachah," because this is unusual. The Ritva (ascribed) adds that even if the Sho'el did think of this, he still thinks that they will not believe him to say this, because they will say it is arrogant of him to say such an obvious lie, that the animal dropped dead in the middle of working.
Since we are discussing an argument with which the Sho'el is trying to get the double bonus, this has to be something which is credible for both sides, both the owner and the borrower.
2) If it was stolen the Sho'el could not falsely claim "Meisah Machmas Melachah," but if it died through an "Ones," the Sho'el can claim falsely "Meisah Machmas Melachah." The Sho'el is liable even if it died through an Ones; for instance, it became ill, not as a result of the work. He can claim that it died because of normal working, and he will be able to produce the body, and it may be difficult for us to prove that it died of illness rather than work.
Kol Tuv,
Dovid Bloom
Thank you, R'Dovid, This helps.
Just to clarify, in the 2nd question...
The way I understand R'Yochanan's chiddush, that even shomrim who tell the truth when the cow gets stolen and are michayev themselves to pay instead of swearing falsely to patur themselves...also receive the keifel.
(For e.g. a shomer sachar who's chayiv in geneiva admits the cow was stolen, though he could have sworn falsely that the cow was not stolen, rather it was lost through an oness and he would have been patur. Therefore, he receives the keifel for telling the truth when it gets stolen, that it was actually stolen.)
The Gemara discusses a shoel who admits the truth that a cow was stolen, and mentions there is only 1 way he could have sworn falsely and exempted himself in this case, i.e. by claiming misa machmas melacha instead of admitting that it was stolen.
My question is that he does not even have the ability to claim misa machmas melacha in a case where it was stolen, because he cannot produce the body.
The fact that a shoel can patur himself via a claim of misa machmas melacha in a case of an oness (and could indeed produce the body and we would not know the true cause) is really irrelevant to whether the baal would be makneh keifel to him in a case where it gets stolen, which seems be what the Gemara's agenda is with the other shomrim in the case of geneiva (e.g. shomer chinam > pashati, shomer sachar > nigneva, etc.)
Warm regards,
-Daniel Steinberg
I think that according to what the Toras Chayim writes here we may be able to give an answer to this question.
1) The Toras Chayim points out that the Gemara starts off with the shomer Chinam who says that he did something, namely "Pashati," that obligates him to pay. Then the Gemara continues with the Shomer Sachar who also says he did something that obligates him to pay, namely, he says it was stolen. The Chidush is that even though they did not say that they would pay, "Hareini Meshalem," they still acquire the Kefel.
2) Then, the Gemara continues and hints to us that Sho'el is very different from Shomer Chinam or Shomer Sachar. While the latter two do not even need to say that they will pay, with the Sho'el it is exactly the opposite: even if he does say he will pay, he does not get the Kefel. This is why the Gemara did not talk about the Sho'el who said he had an Ones, which is what one would have expected the Gemara to say, since this would make a symmetrical progresssion from the "Pashati" of the Shomer Chinam to the "Nignevah" of the Shomer Sachar. The Gemara wants to say an even bigger Chidush, that even if the Sho'el says he will pay, he still does not get the Kefel.
3) According to this, at any rate, we can say that this is why the Gemara never actually discusses the Sho'el who said it was stolen, since this argument was never on its agenda at all.
B'Hatzlachah Gedolah,
Dovid Bloom
Thank you for again for researching this for me, R' Dovid.
This does answer my question, albeit in a roundabout way.
However, I came across a Rashba in the beginning of the perek (quoted in the Shita, d.h. "Aval HaRashba Dacha Peirusho"), that I thought might more directly answer the question.
The Rashba, in arguing with the Ramban's shita (that when there are eidim that say the shomer was poshea, he does not get the keifel) says that when the Gemara says the baal is makneh keifel to a shomer chinam who says 'pashati' - because if he wants to, he could patur himself by saying it was stolen - and we also say that a shoel, even though he said 'hareini mishalem', the baal is not makneh him the keifel, because he could only patur himself with meisa machmas melacha, which is not schiach...
The Gemara is saying that the mafkid will be makneh keifel to whomever pays him and does not trouble him to court, and he has in mind to be makneh to all shomrim at shaas mesirah, whether it was stolen through oness or pshia, since there are relevant angles by which they can patur themselves with....
I understand the Rashba to be saying that it's not that the shomer needs to be able to b'poel have a tzad ta'anas ptur after the geneiva, rather, if he had a relevant ta'anas ptur at shaas mesirah, the baal will still be makneh him keifel, even if it's not relevant later on. In the Rashba's case of point, that is true even when there are eideim that say the shomer was poshea...
The Rashba concludes:
From the beginning, the baal decided to be makneh to the shomer any time that he does not trouble him to court, since there is to them a tzad ptur, because if they wanted to, they could patur themselves.
But a shoel, since he has no way to patur himself, outside of misa machmas melacha, which is not common, it does not occur to the baal to be makneh to him from the beginning.
I believe this answers my question about the shoel, not b'poel being able to patur himself after geneiva with a claim of meisa machmas melacha, since if it was indeed stolen, he would not be able to produce the body to support his false claim - yet the Gemara rejects his ability to make such a claim instead on the grounds that meisa machmas melacha is not common.
The Rashba is explaining that we're only concerned with the tzidadei ptur at shaas mesirah, as a means to determine if the baal had in mind to be makneh such a shomer keifel, should the situation arise later on. But the fact that the shomer may not be able to make such a claim to patur himself later on - that is not relevant to him anymore.
Does that follow?
B'chavod,
-Daniel Steinberg
That is a very important Rashba.
He is indeed saying that it depends on She'as Mesirah. But the Rashba writes that the reason why this does not apply to Sho'el is because, since Meisah Machmas Melachah is not Shachi'ach, this means that the Mafkid did not think about such a possibility at She'as Mesirah. The Rashba does not mention anything about not being able to produce the body to support his claim?
Kol Tuv,
Dovid Bloom