The Gemara on 34b poses the following question: When a Shomer says "Hareini Mishalem" and subsequently says "Aini Mishalem", does he mean to renege on his original pledge, or is he just stalling, but still intends to pay?
The consensus of the Rishonim is that a Shomer becomes Chayiv once he says "Hareini Mishalem" (in front of Beis Din). Their reasoning is based on several other Gemaros (see Tosfos d.h. "V'Chazar"), as well as Svaros in our Gemara (see Rashba and Ramban, quoted in Shita).
M'koach those Gemaros and Svaros, the Rishonim therefore reinterpret our Gemara's question as: Does the Baal perceive the Shomer's actions as an attempt to renege on his original pledge, even though he actually cannot?
On this Tzad of the Gemara's question ("Hadar Ka M'Hadar Bei"), the Rishonim explain that the Shomer would lose the Keifel because the Baal perceives him to be troubling him to have to collect payment in court.
The precedent for Tircha being a cause for the Shomer to lose his rights to the Keifel is the case of Kipi, on 35a, where Rav Nachman ruled that a Shomer had been negligent in guarding jewelry and ordered him to pay the Baal for their loss. The Shomer did not pay, and in the end Rav Nachman had to collect from the Shomer's property to compensate the Mafkid. Later. when the Kipi turned up and had appreciated in value from the time of the initial deposit, Rav Nachman ruled that the Mafkid, not the Shomer, was entitled to the Kipi and their appreciation in value. Rava concluded that it was Tircha that caused the Shomer to lose the Yukra in the Kipi case.
However, the Tircha caused by the Shomer in our Gemara (34b) - as explained by the Rishonim - seems to be on a lesser level than the Tircha caused by the Shomer in the Kipi case. Pashtus, the Tircha in the Kipi case was that Beis Din (i.e. Rav Nachman) had to get involved to collect payment from the Shomer. It is understandable, then, why the Baal would not be Makneh him the Keifel under those circumstances.
But the Tircha in our Gemara is that the Shomer merely expressed an unwillingness to pay, before Beis Din actually got involved to collect. Based on our precedent of Tircha from the Kipi case - it is difficult to understand why the Shomer should lose the Keifel at such an early stage.
It is possible that the Tircha in the Kipi case began prior to Rav Nachman's collecting from the Shomer's property. Indeed, the Gemara tells us that Rav Nachman had instructed the Shomer to pay ("Zil Shlim") and he did not ("Lo Shelem").
However the language of the Rishonim on the Sugya seems to imply that it's specifically the collection factor in the Kipi case which was the Tircha that caused the Shomer to lose the Yukra (See Rabbeinu Yehonason, quoted in the Shita: "...She'Shelem B'Sof K'R'Tzono", Tosfos 35a d.h. 'Atrichei': "...Aval Rav Nachman Hutzrach L'Gabos Apadno", and Ramban, also quoted in the Shita: "...D'Mitrach L'Bei Dina L'Afukei Mamona Ba'al Korcho, V'Haynu Uvdah D'Apadnah").
So, again, we are left with the question: The Tircha caused by the Shomer in our Gemara, i.e. merely refusing to pay, seems to be on a lesser level, and at an earlier stage than the Tircha caused by the Shomer in the Kipi case, i.e. Beis Din having to collect. So why in our Gemara should the Shomer lose the rights to Keifel?
(Presumably, this is how Rabbeinu Tam, who learns the question of "Hadar Ka M'Hadar Bei" at face value, understands Tircha. It is only when the Shomer troubles the Baal to the point where Beis Din gets involved to collect, or takes a Shvua to Patur himself according to Abaye in Bava Kamma 108a, that he loses the rights to the Keifel. But just expressing an unwillingness to pay does not affect anything.)
I thought to propose the following resolution.
We've been operating with the assumption that the Mekor for the concept of Tircha being a cause for a Shomer to lose Keifel/Yukra is the Kipi case, where the Shomer troubled the Baal to the point where Beis Din got involved to collect on his behalf, he lost the Yukra, and Rava concluded, "Hacha, Atrichei L'Bei Dina".
But what if it was the other way around? What if the Mekor for Tircha was our sugya, and that is from where Rava concluded that Tircha to collect can cause a Shomer to lose Keifel/Yukra?
M'koach the Gemaros and Svaros that lead the Rishonim to hold that a Shomer becomes Chayiv once he says "Hareini Mishalem", they cannot interpret the Tzad of "Hadar Ka M'Hadar Bei'' at face value. Perhaps, as a means of reinterpreting the Gemara's question, they are Michadesh the concept of Tircha as a cause for the Shomer losing Keifel, and the Pshat of "Hadar Ka M'Hadar Bei'' now becomes: Does the Baal perceive the Shomer's actions as an attempt to renege on his original pledge (even though he actually cannot), in which case he'll lose the Keifel for troubling the Baal to have to go to court to collect.
In other words, at its core, the Tzad of "Hadar Ka M'Hadar Bei" (according to the Pshat of the Rishonim) expresses the Chiddush concept called Tircha that causes a Shomer to lose Keifel. And that Tzad was Rava's precedent for concluding in the Kipi case that it was Tircha that caused the Shomer to lose Keifel.
Seen from this perspective, it is not problematic that the Tircha in the Kipi case is greater than the Tircha caused by the Shomer in our Sugya. Since our Sugya is the source and precedent for the concept that a Shomer loses Keifel by merely refusing to pay, then Kol She'Kain, the Shomer will lose Keifel if Beis Din (Rav Nachman) has to collect on the Baal's behalf. It is only if you learn the other way around, that the Mekor for the concept of Tircha is the Kipi case, that it doesn't follow that a Shomer should lose Keifel for merely refusing to pay, even before Beis Din gets involved to collect.
Is there any merit to this Mehalech?
B'chavod.
Daniel Steinberg, Columbus
1) Reb Daniel, I have absolutely no doubt whatsoever that this Mehalech has a great merit! It has emerged from learning the Sugya b'Iyun and investing a tremendous amount of thought and effort and this in itself is a great Zechus!
Whether the Mehalech is Emes la'Amito, I am not so sure. It seems to me to be too great of a Chidush to say that our Sugya is the Mekor since the Sugya on 35a states Atrechei l'Bei Dina and our Sugya does not.
I think the key may lie in what Tosfos Rabeinu Peretz writes here. He writes that the Shomer wants to renege but he cannot because the Beis Din will force him to pay. Rabeinu Peretz writes that since he wants to force the Beis Din to pay, it follows that the owners do not give him the Kefel.
Therefore, since the inevitable result of his actions is that the Beis Din will have to collect from him, this is considered Atrechei l'Bei Dina even though they have not yet actually collected.
So it does all depend on collecting, as you cited in the name of Rabeinu Yehonasan, Tosfos, and Ramban.
2) I found, bs'd, that the source of Rabeinu Peretz that I cited above is possibly from Tosfos himself in Bava Basra 128a (DH Hachi). Tosfos cites our Gemara and writes that since the Shomer wants to renege and make a Tircha for Beis Din, the owner does not give him Kefel. I understand the thinking behind this to be that the Shomer is showing disrespect to Beis Din. He wants to make trouble for them. The Bi'ur ha'Gra (Shulchan Aruch CM 17:12) writes that the problem with "Atruchei Bei Dina" is that it represents a "Zilusa"; Beis Din is being made light of. Now we have also seen before (with support from the Gemara on 34b) that Kefel is often something that the owner gives to friends or associates so they will be happy to look after his property and sometimes pay up themselves in the case of damage being done to the ox. Since Kefel is given because of the personal factors involved, it makes sense to say that the owner of the Shor does not want to give Kefel to a person who is arrogant towards Beis Din.
(I even found, bs'd, a beautiful explanation according to which if someone is Matri'ach the Beis Din, he is actually disrepectful to Hash-m. This is from Sefer Avraham Es Yado by Rav Avraham Falaji zt'l, in the first Shabbos ha'Gadol Derashah, page 112, column 4, DH veha'Gaon. We say at the end of davening, every Tuesday morning, from Tehilim 82:1, "Elokim stands in the Divine assembly; in the midst of the judges He will judge." We learn from this that Hash-m is with the Beis Din. The Shechinah is there. Anyone who makes light of the Beis Din is also showing a lack of honor towards Hash-m.)
3) Concerning the suggestion that the source for Tircha is the Gemara on 34b, not 35a, I have a historical question on this. The Gemara which starts two lines before the end of 34a seems to be a piece which was written at the time the Gemara was compiled. There are no names of earlier scholars mentioned. (I argue that this may be similar to a Gemara that starts two lines from the end of Sukah 3b. Rashi there (DH Hayesah) writes that these are rulings from all the members of the yeshiva who were in the Beis Midrash of Rav Ashi who compiled the Gemara.)
In contrast, the Gemara (35a) which mentions explicitly the concept of Tircha to Beis Din clearly states that this was from the time of Rav Nachman and Rava, who lived before Rav Ashi. How could the Mekor of Rava be from a Gemara that was stated only in a later genaration?!
Kesivah v'Chasimah Tovah,
Dovid Bloom