Levi, Baruch She-kivanta to the Ayeles Hashachar here!

1) Rashi Bava Kama 107b DH Af Shevua writes that if he swore that he was not Shalach Ba Yad and was found to be a liar, then he must pay double. Rashi writes "Chayav Keifel Mishum Shevua She-Ein Birshuso". Rashi is relating to the question why does he have to pay Keifel, since we know that Keifel is paid as a penalty for stealing; Geneiva. Rashi implies that one is not liable for Keifel for Shalach Ba Yad because Shalach Ba Yad does not necessarily mean that he stole it. He may have used it and returned it. That is why Rashi writes that he is liable for Keifel for the oath that it is not in his possession, when it transpires that it really is in his possession.

2) Ayeles Hashachar Bava Kama 107b DH Eino Chayav (page 458) writes that we learn from Rashi that if he had already eaten up the item he was guarding by the time he took the oath, then he would be not be Chayav Keifel, because the Shevua of Eino Birshuso was not false, since at that time it was not in his possession.

3) Ayeles Hashachar writes that Tosfos 107b DH Ad She-Yishlach disagrees with Rashi. Rabbi Chiya bar Yosef said (near top 107b) that if he claimed that the deposit had been stolen, he is only liable if he was Shalach Ba Yad. Tosfos DH Ad She-Yishlach writes that the Gemara above 106a which states "And the witnesses testify that he stole it, so he pays Keifel" means that the witnesses said that he Shalach Ba Yad. Ayeles Hashachar writes that we learn from Tosfos that Shalach Ba Yad is in itself the Geneiva, and for this he must pay Keifel.

4) So we have a dispute between Rashi and Tosfos. Rashi learns that he pays Keifel because of the false oath She-Eino Birshuso" which is tantamount to stealing since we proved that in reality it is in his possession. According to Rashi, Shalach Ba Yad itself is not sufficient to make him pay Keifel; whilst according to Tosfos, Shalach Ba Yad itself is Geneiva and he has to pay Keifel for it.

5) Ayeles Hashacar proves that that Tosfos is arguing on Rashi but the proof is from Tosfos DH Ad She-Yishlach, not from Tosfos DH veHalo Shalosh Shevuos.

Dovid Bloom

Follow-up reply:

We can explain a bit further the difference between Rashi and Tosfos:-

1) Rashi above 57b DH Karna writes that a Shomer only pays Keifel if he takes a false oath that it was stolen from him and later on witnesses came and contradicted him. Rashi writes that Keifel is a fine given to him by the Torah because of the false Shevua. This strengthens what we saw in Rashi 107b DH Af Shevuah that he is liable for Keifel because of the Shevua, that it is not Birshuso, which turned out to be false. According to this we do not have to say that Shalach Ba Yad is directly linked to Shevua She-Eino Birshuso.

2) I do not see that Tosfos 107b DH veHalo Shalosh Shevuos is discussing keifel. He does say that one could be chayav other things even if it was not Birshuso but he had been Shalach Ba Yad. As we saw from Tosfos 107b DH Ad She-Yishlach, keifel is paid because of Shalach Ba Yad.

Best wishes

Dovid Bloom

Another short comment on Tosfos:-

Tosfos 107b DH veHalo Shalosh Shevuos does not mention Keifel explicitly, but one can say that his discsussion includes Keifel also. Tosfos writes that one is liable for shalach ba yad alone, even if there was no negligence and the item is no longer in his possession. It follows that, according to Tosfos, one can be liable for keifel for shalach ba yad alone. This is consistent with Tosfos DH Ad She-Yishlach, since we saw in my first reply that Tosfos learns that

shalach ba yad is itself geneiva and one must pay keifel for it. In my first reply I wrote that there is a dispute between Rashi and Tosfos DH Ad She-Yishlach, and now we can say that Tosfos DH veHalo Shalosh agrees with Tosfos DH Ad She-Yishlach so there is a dispute also between Rashi and Tosfos DH veHalo. Rashi learns that one is liable for keifel as a penalty for the false oath, whilst Tosfos learns that one is liable for keifel because he was Shalach Ba Yad.

Dovid Bloom