Bava Kamma - Daf 11
- אין שמין לא לגנב ולא לגזלן אלא לנזקין
Shmuel said: אין שמין לא לגנב ולא לגזלן – We do not evaluate for a thief or a robber (i.e., the carcass of a stolen animal which died, rather, they keep the carcass and pay in full). אלא לנזקין – We only evaluate a carcass for cases of damages. ואני אומר אף לשואל – And I say the same applies to a borrower as well, ואבא מודה לי – and Abba (i.e., Rav) agrees with me. Tosafos explains that although generally, one can pay with anything of value, thieves cannot, because the Torah requires them to fully replace the stolen item (or its value in money). The Gemara asks if Shmuel means that a borrower has the same halachah as thieves, and the carcass is not evaluated, or the same as damages, and it is. A proof is attempted from an incident where someone borrowed his friend’s ax and broke it, and Rav required him to pay for a new ax, without evaluating the broken pieces. However, the Gemara counters that the opposite conclusion can be drawn because Rav Kahana and Rav Assi objected to Rav’s ruling: דינא הכי – “Is this the law?” and Rav was silent, indicating his agreement.
- An amniotic sac which emerges over two days
Ulla quoted Rebbe Elazar: If an amniotic sac partially emerged during a miscarriage on one day, and finished emerging the next day, מונין לה מן הראשון – we count her tumah of childbirth from the first day. Although no fetus was found, we assume it dissolved in the sac. We consider her tamei from the first day, because the majority of the fetus may have emerged then. Rava clarified that we cannot calculate her fourteen days of tumah from the first day, since the majority may have emerged the second day. Rather, Rava said: לחוש חוששת – she must be concerned that she is tamei the first day, but only calculates her tumah days from the second day. Ulla is teaching: דאין מקצת שליא בלא ולד – that there is no part of an amniotic sac which does not contain at least part of a fetus, causing a concern that a majority emerged the first day.
- שומר שמסר לשומר
Ulla quoted Rebbe Elazar: שומר שמסר לשומר פטור – A shomer who transferred something he was watching to another shomer is exempt from damages to the item. He adds that this is not only so where a שומר חנם – unpaid shomer gave over the deposit to a שומר שכר - a paid shomer, דעלויי עלייה לשמירתו – where he raised the level of [the deposit’s] watching (because the second shomer, being additionally liable for theft and loss, guards it more diligently), but even in the reverse case, where a שומר שכר transferred it to a שומר חנם, thereby decreasing its protection, he is still exempt, שהרי מסר לבן דעת – because he transferred it to a mentally competent person capable of guarding it, and was not negligent. Rava holds that a shomer who transfers the deposit to another is always liable. This is not only so where a שומר שכר transferred it to a שומר חנם, thereby decreasing its watching, but even in the reverse case, whereby he upgraded its watching, he is liable, because the owner can say to him: את מהימנת לי בשבועה – “You are believed by me with a shevuah to claim the deposit was lost without negligence, but the second shomer was never entrusted by me, and I am not obligated to accept his shevuah.”
