Bava Kamma - Daf 112
- הניח להם אביהם פרה שאולה, when a borrower’s obligation begins
Rava said: הניח להם אביהם פרה שאולה – If their father died and left them a cow he borrowed, משתמשין בה כל ימי שאלתה – they may use it all the days of its loan. מתה אין חייבין באונסיה – If it died, they are not responsible for its unavoidable mishaps, since they never accepted responsibility for it. If they thought it was their father’s and consumed it, they pay דמי בשר בזול – meat at a cheap rate (the benefit of someone who otherwise would not consume meat). Rava concludes that if the father left them property, they are liable to pay from that property. In the Gemara’s first interpretation, they would even be responsible for the cow’s death, because the father’s responsibility for its mishaps began when he borrowed it, effecting a lien on his property. In the second interpretation, they are only responsible for consuming the cow if they inherited property, but not for its death. This version (but not the first) agrees with Rav Pappa, who taught that if one shechted a borrowed cow on Shabbos, he is exempt from paying (because of קם ליה בדרבה מיניה), because his liability is incurred by the time of shechting, and not the borrowing.
- Accepting testimony against קטנים or in the litigant’s absence
A Baraisa states that when the Torah required a robber to return "אשר גזל" – that he robbed, it teaches that he only returns it if it is extant. מכאן אמרו הגוזל ומאכיל את בניו פטורין מלשלם – From here they said: if one robs something and feeds it to his children, they are exempt from paying. הניח לפניהן – If he left it intact before them when he died, the Tanna Kamma says they must return it, whether they are adults or minors. Sumchos said קטנים do not have to return it, because he holds a minor cannot be sued in Beis Din. Based on this opinion, Rebbe Avin did not allow Rebbe Yirmiyah to present witnesses establishing a חזקה (of three years of occupation) in the house inherited by his father-in-law’s minor son. This ruling was questioned, because the halachah does not follow Sumchos. Rav Ashi quoted Rebbe Shabsai: מקבלין עדים שלא בפני בעל דין – we accept witnesses even in the litigant’s absence. The Gemara explains this is only where he is ill, or the witnesses are ill, or seek to go overseas, and the litigant did not come when summoned by Beis Din. Shmuel taught another exception, where Beis Din had already opened the case.
- The process when a defendant requests time to prove that a document is forged
Rav said: מקיימין את השטר שלא בפני בעל דין – we may certify a document in the litigant’s absence, because certification is only a Rabbinic requirement. Rebbe Yochanan said we do not, because testimony is only accepted in the litigant’s presence. Rava said the halachah follows Rav. Rava details the process where the defendant requests time to prove that the document is forged. If he does not come at the end of the allotted time, they wait for the following Monday, Thursday, and Monday, and then excommunicate him. Ninety days are allowed to enable him to find money or sell his property, and if he still does not come, כתבינן אדרכתא אניכסיה – we write a seizure warrant on his property. Time is only granted if he says he is coming; otherwise, the warrant is written immediately. One is also written immediately for a פקדון, where the item itself is being claimed, and not payment. A warrant is not written for the defendant’s מטלטלין, which may be consumed by the lender, leaving the borrower unable to retrieve them when he finally procures witnesses.
