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Bava Metzia, 34

1) HOW THE "SHOMER" ACQUIRES THE "KEFEL" OF THE OBJECT HE IS WATCHING

QUESTION: The Mishnah (33b) states that when an item is stolen from a Shomer and, instead of exempting himself with a Shevu'ah, the Shomer chooses to compensate the owner, he is entitled to receive the Kefel from the Ganav when the Ganav is found. The reason for this, the Gemara explains, is because at the time the owner gave the item to the Shomer, he also gave to him any Kefel payment that might later come about because of this object. The Gemara asks that this conflicts with the normal rule of "Ein Adam Makneh Davar she'Lo Ba l'Olam" -- a person cannot be Makneh at item that does not yet exit in the world (such as the Kefel payment, in our case).

Rava answers that the reason the Shomer is Koneh the Kefel is because, at the time that the object was given to him, it was as if the owner said to him, "When it will be stolen, and you will be willing to pay me for it, my object will become your property from this moment." Thus, the owner is selling the object to the Shomer on condition, and if the condition is fulfilled the sale will take place retroactively from this moment.

How does Rava answer the question? Granted, Rava is explaining that the item that is being acquired is not a "Davar she'Lo Ba l'Olam" (since the owner is giving the *object* to the Shomer, and not the future Kefel). However, the owner is still making the sale dependent on factors that do not exist in the world (the theft of the object, and the Shomer's payment for it). That is, the fulfillment of the conditions for the execution of the sale is "Lo Ba l'Olam!" How, then, can the sale take effect?

This question is relevant in all cases of a Kinyan that is made dependent on conditions being fulfilled in the future. (With regard to why such a case of a Tenai does not involve a problem of Bereirah, see Insights to Gitin 25:2, and see following Insight.)

ANSWER: The TESHUVOS MAHARAM BAR'REBBI BARUCH (#50), cited by the MORDECHAI (Bava Metzia 1:247) proves from this Gemara the principle that as long as all of the principle parties involved in the sale are in existence (i.e. the buyer, the seller, and the object being sold) and are fit to conduct the sale, there is no problem of "Davar she'Lo Ba l'Olam" even though the sale is made dependent on the fulfillment of a condition that is not yet in the world. This is also the view of the Rishonim (such as TOSFOS in Kesuvos 42a; ROSH in Bava Basra 4:7; RASHBA and NIMUKEI YOSEF there, and others).

This principle -- that there is no problem of "Davar she'Lo Ba l'Olam" when the buyer, seller, and object being sold are all in existence -- can be explained as follows. There are three reasons given for why a person cannot make a Kinyan on a "Davar she'Lo Ba l'Olam." First, since the item has not yet come into the world, there is a lack of intention (Gemirus Da'as) on behalf of the buyer and/or seller (based on the Gemara earlier, 16a). Second, since the item does not exist yet, the act of Kinyan, of transferring the ownership of the item, is lacking (KOVETZ SHI'URIM). Third, since the item is not in the world, the owner does not fully own it such that he can transfer the ownership (CHIDUSHEI RABEINU CHAIM HA'LEVI in "stencils"). None of these three reasons apply in a case where the buyer, seller, and object are in the world (such as in the case of Rava's answer). (I. Alsheich)

QUESTION: The Gemara quotes two versions of Rava's answer for why the Shomer is Koneh the Kefel, even though the Kefel is a "Davar she'Lo Ba l'Olam." The first version of Rava's answer is that at the time that the owner handed the object to the Shomer, it was as if the owner said to him, "When it will be stolen, and you will be willing to pay me for it, my object will become your property from this moment." Thus, the owner is selling the object to the Shomer on condition, and if the condition is fulfilled the sale will take place retroactively from this moment. Since the object exists in the world, the Shomer can be Koneh it (retroactively).

The second version of Rava's answer is that at the time that the owner handed the object to the Shomer, it was as if the owner said to him, "When it will be stolen, and you will be willing to pay me for it, my object will become your property *from a moment before it is stolen." Thus, the owner is selling the object to the Shomer on condition, and if the condition is fulfilled (the Shomer agrees to pay for the object after it is stolen), the sale will take place retroactively from a moment before the animal was stolen.

The second version of Rava's answer is difficult to understand, because it seems to depend on "Bereirah" -- the ability of a future event to affect a Kinyan retroactively. The time at which the Kinyan will take effect (i.e. the moment before the item will be stolen) is not known at that moment! Why does this Kinyan take effect if we rule "Ein Bereirah?"

ANSWERS:

(a) This question can be answered based on the words of the RAMBAN in Gitin (25b). The Ramban writes that the reason why there is no problem of Bereirah in all cases of a Kinyan that is dependent upon a condition being fulfilled in the future is because the unknown factor is *external* to the object of the Kinyan. The item being acquired is not in question. It is only the external condition that is not known. This does not constitute an issue of Bereirah.

This, however, does not suffice to answer the question on the second version of Rava's answer. It answers our previous question (see previous Insight) on the first version of Rava's answer, regarding why the Kinyan takes effect now (retroactively) when the condition is going to be fulfilled only in the future. In the second version, though, the time of the Kinyan is not known ("right before it is stolen"), and even when that time occurs (the moment before the item is stolen), it is not known at that moment! Since the moment of the Kinyan can never be known until later, this should still be a problem of Bereirah! (KETZOS HA'CHOSHEN, end of #61; REBBI AKIVA EIGER)

(b) The KETZOS HA'CHOSHEN answers based on the MAHARSHA here. When Rava says that "it is as if the owner says to the Shomer that he will be Koneh the animal a moment before it is stolen," he is not saying that it is as if the owner says this to the Shomer at the time that he gives him the animal to watch (as Rashi explains). Rather, Rava means that it is as if the owner says this to the Shomer *a moment before the animal is stolen* (see also SHITAH MEKUBETZES). Since the owner makes the Kinyan at the moment before the animal is stolen, saying that if the animal is stolen at the next moment then the animal will become the property of the Shomer at *this* moment, it is not a problem of Bereirah. The Kinyan is taking place at a known, given moment (and it is not taking place at one unknown moment among many other moments). The only unknown factor is whether the animal will be stolen or not, but that is an external factor which will become known immediately thereafter.

(c) The CHAZON ISH (Demai 16:13) writes that we can prove from this Gemara that there is no problem of Bereirah in any case of monetary matters. (Indeed, all of the cases throughout the Gemara in which the issue of Bereirah is discussed do not involve monetary matters.) (I. Alsheich)

34b

QUESTION: The Gemara cites the Mishnah in Shevu'os (43a) which presents a case of a lender who lent a Sela to a borrower. The lender received -- and lost -- an item of collateral from the borrower. The lender and borrower now dispute how much the item of collateral was worth. The lender says that it was worth one Shekel (or two Dinars, which is half of a Sela), and thus the borrower still owes him two Dinars. The borrower says that it was worth three Dinars, and thus he owes only one Dinar. Since the borrower is "Modeh b'Miktzas" (he agrees that he owes money to the lender, but he does not agree to the sum that the lender claims), he must make a Shevu'ah d'Oraisa of "Modeh b'Miktzas" and swear that the value of the collateral was there Dinars. The Mishnah there teaches that, in this case, the borrower does not swear, but rather the lender must swear, because if the borrower swears, then the lender might present the collateralized item to the court, proving the borrower to have sworn falsely. RASHI explains that the lender thereby will cause the borrower to become invalid for giving any testimony and for making any Shevu'ah.

The logic of transferring the Shevu'ah to the lender is difficult to understand. If there is a fear that the lender will invalidate the trustworthiness of the borrower by showing the item after the borrower swears as to its value, then we should make the *borrower* swear, because then he will certainly tell the truth, for he knows what the potential consequences are! Moreover, if we are afraid that he will lie, then why do we make an enactment (i.e. of transferring the Shevu'ah to the lender) for his benefit?

ANSWERS:

(a) Because of this question, RABEINU TAM (cited by Tosfos) rejects the explanation of Rashi and instead explains like RABEINU CHANANEL. He explains that the fear is that if the borrower swears and then the lender shows the item to the court, then it will seem as though a Shevu'ah was made in vain, and it is a disgrace for a Shevu'ah to be made in a situation where the facts will be shown to be different than so declared in the Shevu'ah.

(b) The RASHBA and RITVA (cited by the Shitah Mekubetzes) explain what Rashi here means. Rashi is not saying that we are concerned that the borrower is *lying* when he says that the collateral was worth more than the lender claims that it was worth. Rather, Rashi is saying that we are concerned that the borrower *thinks* that it is worth as much as he says it is worth, and he is mistaken. This is indeed how Rashi explains the Gemara in Shevu'os (43a) -- "perhaps this [borrower] did not estimate [the value of the collateral object] accurately."

RAV SHLOMO ZALMAN AUERBACH zt'l (in Minchas Shlomo, end of #83) adds that the reason a person might not have accurately estimated the value of his item is because his mind is not settled. For the same reason, he might make a Shevu'ah in his unsettled state.

(c) The SHACH (CM 87:79) also explains that Rashi does not mean that the borrower might by lying about the value of the collateral. Rather, Rashi means that we are afraid that perhaps after the borrower gave the object to the lender, the object decreased in value. His Shevu'ah, then, is not a false Shevu'ah -- the object really was worth that amount the last time he saw it. However, since everyone now sees that the object is worth less than he stated in his Shevu'ah, rumors will start to spread about his dishonesty.

(Tosfos himself (DH v'Chi Seima) offers this as an answer to the explanation of Rashi, but he refutes it based on the continuation of the Gemara. The CHASAM SOFER offers answers to the questions of Tosfos.) (I. Alsheich)