The Gemara lists two reasons for why the Baal will not Makneh Keifel to a Shoel until he actually pays - either because a Shoel's only avenue of Ptur is Meisa Machamas Melacha, a claim that is "Lo Schiach" (Rav Papa #1), or because since "Kol Hana'a Shelo" the Baal does not feel the need to Makneh Keifel to a Shoel on the basis of mere Dibbur. (Rav Zvid).
Tosfos d.h. "Shoel Ad She'Yishalem" (34a) describes a Nafka Mina between the two reasons, namely a situation where the Shoel stipulated that his responsibilities resemble that of a Shomer Chinam. On the one hand, the Shoel now possesses avenues of Ptur that ARE Schiach, so according to Rav Papa #1, the Baal WOULD be Makneh Keifel on the mere basis of the Shoel's verbal commitment to pay ("Hareini Mishalem"). But on the other hand, the Shoel is still deriving all the benefit out of the relationship, and according to Rav Zvid, the Baal would STILL NOT be Makneh the Keifel until he actually pays. The Chiddushei HaRitva brings a similar Nafka Mina.
The Rashash on the above Tosfos provides an additional Nafka Mina between R'Papa (#1) and R'Zvid - namely, a case where a Shoel actually went ahead and claimed Meisa Machmas Melacha - and then said "Hareini Mishalem' afterwards. According to R'Papa, such a Shoel WOULD get the Keifel with mere Dibbur now. R'Papa had only excluded the Shoel from receiving Keifel until he actually paid because he had no Schiach avenue of Ptur. But after going ahead and actually making the claim of Meisa Machmas Melacha, he's Patur V'Omed now! However, according to R'Zvid, this makes no difference. The Shoel still must pay in order to get the Keifel, since Kol Hana'a Shelo.
It would seem to me that Tosfos (and the Ritva), by omission, would not agree with the Rashash's Nafka Mina. If the Rashash were correct, then wouldn't it make more sense for Tosfos to offer that Nafka Mina, than the one Tosfos actually does list? Instead of changing the circumstances of the normal Shmirah responsibilities of a Shoel (i.e. where the Shoel stipulated to have the responsibilities of a different type of Shomer) in order to uncover a Nafka Mina..."Liflug V'Lisna B'Didah"! Let Tosfos offer a Nafka Mina within the regular parameters of Shmirah for a Shoel, like the Rashash does. It's Mashma to me that such a Nafka Mina (i.e. where a Shoel actually went ahead and claimed Meisa Machmas Melacha) was NOT a viable option of Nafka Mina to Tosfos and the Ritva.
R'Akiva Eiger argues on the Rashash's conclusion, and says that even if the Shoel went ahead and claimed Meisa Machmas Melacha, R'Papa would still say he doesn't get the Keifel. Perhaps we can say that by omission, this Tosfos (and the Ritva) would seem to hold like R'Akiva Eiger concludes, against the Rashash's Nafka Mina L'Halacha.
Does that make sense?
Daniel Steinberg, Columbus
1) It seems to me that there is no proof that Tosfos does not agree with the Rashash. One can argue that the reason that Tosfos does not give the Nafka Minah of the Rashash is because it is a more specific argument, more of a detail, while Tosfos chooses a more general example that applies even before the Shemirah starts. In contrast, the Nafka Minah of the Rashash only applies after the animal disappeared.
2) In addition, the Nafka Minah of Tosfos is mentioned in the Mishnah below (94a) that says that a Sho'el can specify that he will be exempt from paying, and Tosfos in fact uses almost the same words as the Tosefta (8:7): "A Sho'el can make a condition to be like a Shomer Chinam." Therefore, Tosfos preferred that his example should be one already mentioned by Chazal.
3) I also assert that just because Tosfos does not mention a particular example, this does not necessarily mean that he does not agree with it. I would apply here the words of the Gemara in Gitin (beginning of 33a), "Should the Tana count everything like a peddler?!" Tosfos is not obligated to mention all the possibilites even if they are true.
4) I would just add that the way of the Rashash is not to disagree with Rishonim, so if we see that the Rashash adds on something to what Tosfos wrote, this means that he is not intending to differ, but rather is aware that Tosfos does not say all the possible Nafka Minos and he wants to add one that Tosfos did not consider it sufficiently important or common to mention.
Warm regards,
Dovid Bloom
Thank you for this. I would not have necessarily viewed the Nafka Mina of the Rashash (that if the Shomer claims Misa Machmas Melacha, and then says "Hareini Mishalem", he will still get the Keifel) as a detail in the argument between R'Papa and R'Zvid, and the Nafka Mina that Tosfos does provide (a Shoel who stipulates to be like a Shomer Chinam/Sachar) as a general example. Thank you for explaining that.
It was also insightful to learn that such a consideration, i.e. the preference for a more general example of Nafka Mina would trump a consideration for a Nafka Mina that is within the same category of Shmira (the "Liflug V'Lisnah B'Didah" consideration I suggested).
That, plus the Mishnah on 94a that Tosfos seems to be citing, and the concept that the Rashash does not intend to argue with Tosfos, are very compelling arguments that I was grateful to learn.
(I was not consciously implying that the Rashash was arguing on Tosfos, as he says the word "Nami" in his comments; which always implied to me that he was adding a Nafka Mina. But I suppose that if what I was suggesting, that Tosfos could not agree with his Nafka Mina, and presumably the Rashash learned Tosfos better than I and knew the consideration of "Liflug V'Lisnah B'Didah", it could only mean that he was coming to argue by providing a more fundamental Nafka Mina, which I understand from your email is not the case.)
Thanks again, and Yasher Koach!
Warm regards,
-Daniel Steinberg