Shalom. First of all, I wanted to wish you a sincere yasher koach and express my hakaras hatov for your tremendous work. I, as well as many other people, really get a tremendous amount from your service, and it is greatly appreciated.
I also just had a basic question regarding the scenario of a shomer who's chayav kefel (or according to some 4 and 5 as well) for claiming that the pikadon he was watching was stolen. The Gemarah here proves that he's only chayav if he took a shevuah in beis din, and THEN eidim came and discredited him. My question is what's the relationship between this shevuah and eidus? In other words, is the shevua a type of eidus? If it is, wouldn't the fact that he was later found to be a rasha d'chamas (because he stole someone else's mammon l'teyavon) RETROACTIVELY make his shevuah invalid (especially if you hold according to Sanhedrin 27 that eid zomemim l'mafreiah hu nifsal), making it impossible to EVER have a case where a to'en ta'anas ganav would be chayav kefel?
Also, on a more basic level, how exactly does the shelichus yad work? Does the shomer have to make a formal kinyan on the object (hagbahhah, meshicha, etc), or do we hold like Beis Hillel on Kiddushin 42 that his machshava alone suffices to make him a ganav? Thank you so much for your help.
Zev, USA
A Shevu'ah is not an Eidus, rather it is an independent type of Ne'emanus. However, it is true to say that a Rasha d'Chamas would not be Ne'eman to make a Shevuah. However, even with Eidim Zomemim, according to the Shitah that they are Nifsalim retroactively, their Eidus is still considered an Eidus as far as being m'Chayav the Eidim themselves. Even if we were to say that this is only because we see that the Torah was m'Chayav Eidim Zomemim, so it must be that it is considered an Eidus at least as far as being m'Chayav them is concerned, we could still say the same in our case. We could also say that the Chiyuv of Kefel is an Onesh, and is therefore applicable even if the Shevuah should not have been believed in the first place. It does not need the Ne'emanus of the Shevuah. The person that makes a false Shevuah has done an Isur, irrespective of whether the Beis Din should have believed his Shevuah in the first place.
Actually, it is Beis Shamai who hold that Machshavah is sufficient. The Gemara in Bava Metziya 41a assumes that a Kinyan is necessary for Shelichus Yad. See also Rashi (ibid.) DH Ha Lo Mashach. This is also clear in the Gemara (Bava Metziya 44a) and in the Ritva in both places. This Din is brought in Shulchan Aruch CM 292:1 (see also Bi'ur ha'Gra Likut).
Dov Freedman