REVACH L'DAF
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SUMMARY
If an animal is stolen from a Shomer Chinam and he chooses to pay instead of swearing if the Ganav is found the Kefel and four or five is paid to the Shomer.
Rava says the Kefel is given to the Shomer because it is as if the owner told the Shomer at the time he gave him the animal that if it is stolen and you decide to pay the animal is yours from now with the exception of the sheerings and offspring. (1)
In the second Lashon Rava says that it is as if the owner told the Shomer if it is stolen and you decide to pay the animal is yours immediately prior to the Geneivah.
According to the second Lashon if the animal is in a swamp at the time that it is stolen the Shomer is not Koneh the Kefel. (2)
R. Yochanan says if the Shomer says he will pay for the stolen animal even though he has not yet paid for it if the Ganav is found the Kefel or four five is given to the Shomer.
If someone rents a cow and it is stolen from him and he says that he will pay if the Ganav is found the Kefel is paid to the renter. (3)
If a Shomer Chinam says that he was Poshei'a (negligent) he is Koneh the Kefel because he could have said that it was stolen and he would have been Patur.
If a Shomer Sachar says that the object he was guarding was stolen he is Koneh the Kefel because he could have said that an Ones occurred and he would have been Patur.
R. Papa says if a Sho'el says that he will pay for the animal that he borrowed he is not Koneh the Kefel even though he could have said that it died from routine usage and he would have been Patur because it is not usual for an animal to die from routine usage.
R. Papa says in the second Lashon if a Sho'el says that he will pay for the animal that he borrowed he is Koneh the Kefel since he could have said that it died from routine usage.
R. Zevid says in the name of Abaye that a Sho'el is only Koneh the Kefel once he pays for the item because he receives benefit [without paying anything].
If a Shomer says that he will not pay for the stolen item and he subsequently says that he will pay he is Koneh the Kefel.
If a Shomer says that he will pay for the stolen item and he subsequently says that he will not pay or if he dies and his children say they will not pay it is a Safek he is Koneh the Kefel. (4)
If the Shomer dies before he has a chance to say that he will pay for the stolen item and the children pay for the item it is a Safek if they are Koneh the Kefel. (5)
If the owner dies and the Shomer pays the children for the stolen item it is a Safek if he is Koneh the Kefel. (6)
If both the Shomer and the owner dies and the children of the Shomer pay the children of the owner it is a Safek if they are Koneh the Kefel.
If a Shomer pays for half of the stolen item, or he borrowed two cows and he paid for one it is a Safek if he is Koneh the Kefel
If an item is owned by two people and a Sho'el pays one of them, or two people borrow an item and one of them pays or it is a Safek if he is Koneh the Kefel.
If a Shomer is guarding Nichsei Melug of a woman and he pays the husband or a woman is guarding an item and the husband pays for the stolen item it is a Safek if he is Koneh the Kefel. (7)
R. Huna says if a Shomer says the object he was guarding was stolen and he is willing to pay he must swear that the object is not in his possession because if the concern that he has his eye on it.
If someone lent a Sela on a Mashkon and the Mashkon is lost if the lender claims the Mashkon is worth a Shekel (half of a Sela) and the borrower says it was worth the entire Sala he is Patur from a Shevu'ah. (8)
If the lender claims the Mashkon was worth a Shekel and the borrower claims that it was worth three Dinarim (3/4 of a Sela) he swears a Shevu'as Modeh b'Miktzas.
Even though the borrower is the one who is Modeh b'Miktzas the Chachamim decreed that the lender is the one who swears because of the concern that the lender will pull out the Mashkon after the Shevu'ah of the borrower.
If someone borrowed a Sela on a Mashkon and the borrower claims the Mashkon was worth two Sela'im and the lender claims it was worth only one Sela he is Patur from a Shevu'ah. (9)
If the borrower claims the Mashkon was worth two Sela'im and the lender claims it was only worth only five Dinarim he must swear a Shevu'as Modeh b'Miktzas.
A BIT MORE
1. We assume that the owner would rather be assured of the principle in return for giving up the Kefel and four or five; however he is not willing to give up the sheerings and offspring since they comes from the Guf of the animal.
2. Since the animal was not in the Reshus of the Shomer at the time that it was stolen his Chatzer can't be Koneh it for him.
3. Even though a renter is Chayav for Geneivah and Aveidah, since he could have sworn falsely that an Ones occurred and he would have been Patur, when he admits that it was stolen the owner is Makneh to him the Kefel.
4. Maybe he sincerely is retracting his promise to pay or maybe he is just trying to buy some time until he has the money to pay.
5. Maybe the owner is only Makneh the Kefel to the father because he received favors from him but he is not Makneh the Kefel to the sons.
6. Maybe only the father is Makneh the Kefel since he received favors from the Shomer but the sons who never receives any favors from him is not Makneh the Kefel.
7. Nichsei Melug is property that is owned by the wife but the husband has the right to the Peiros of the property and therefore maybe even though he borrowed the item from the wife since the husband has a right to use the item he is considered the caretaker of the item and he may pay the husband for the item
8. The lender is regarded as a Shomer Sachar on the Mashkon and he is Chayav if it is lost or stolen and consequently the lender is claiming the difference between the value of the Mashkon and the amount that he lent.
9. In this case the borrower is claiming a Sela from the borrower which is the difference between the value of the Mashkon and the amount of the loan.
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BRIEF INSIGHT
PROMISING TO PAY
If a Shomer says that he will pay for the stolen item and he subsequently says that he will not pay it is a Safek he is Koneh the Kefel. Even though once the Shomer says in front of Beis Din that he will pay he may not back out and therefore he is Chayav to pay even after he retracted and said he won't pay it is a Safek that maybe since he attempted to back out he no longer is Koneh the Kefel. The Rosh proves that once the Shomer says he will pay he may not back out because the Gemara says that once a Shomer says he will pay even though he has not yet paid he is Koneh the Kefel and if he could back out after saying that he will pay he would not be Koneh the Kefel by simply promising to pay without actually paying.
QUICK HALACHAH
SHEVU'AS HA'SHOMRIM
A Shomer Chinam who says I will pay and will not swear if the guarded item is something ubiquitous that is readily available in the market, such as fruit, wool, flax, or unadorned beams, or anything similar he may pay without taking a Shevu'ah, but if the item is an animal or an ornamented garment or utensil or anything that is not readily available in the market we are concerned that the Shomer has his eyes on the item and we make him swear [with a Sefer Torah] that the item is not in his possession and after he swears he pays for the item. (Shulchan Aruch CM 295:1)
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