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Bava Metzia, 40
1) DEDUCTING A STANDARD AMOUNT FROM DEPOSITED FRUIT
QUESTION: The Mishnah states that when a Shomer returns fruit to its owner
after it was deposited with him, he deducts the amount that that type of
fruit normally diminishes within that amount of time. The Gemara explains
that this applies only when the Shomer put the fruit together with his own
fruit, and thus it is not possible to determine exactly how much the
deposited fruit diminished. Since the total amount of fruit (the Mafkid's
and the Shomer's) has diminished, it is assumed that each person's fruit
diminished equally.
Why, though, do we not apply the principle of "ha'Motzi me'Chaveiro Alav
ha'Ra'ayah?" Since the Shomer is presently in possession of all of the fruit
("Muchzak"), the Shomer should be able to claim that his fruit did not
diminish at all, and that all of the decrease occurred in the fruit of the
Mafkid! Since there is no clear proof otherwise, the Shomer should be able
to deduct the entire decrease (and not just half) from what he returns to
the Mafkid.
ANSWERS:
(a) The S'MA (CM 292:10) writes that, indeed, if the Mafkid was particular
to receive in return only his own items, then the Shomer could say to him
that it was his items that diminished. For example, when a person entrusts
his animals, such as his goats, to a Shomer, he certainly wants to receive
the same animals back. If the Mafkid gave a goat or goats to the Shomer, and
the Shomer placed them (or they accidentally became placed) among his own
goats and it is no longer evident which ones belong to the Mafkid, and then
one of the goats became lost, the Shomer can claim that it was the Mafkid's
goat that was lost, based on the principle of "ha'Motzi me'Chaveiro Alav
ha'Ra'ayah."
In contrast, when a person deposits fruit with a Shomer, he does not care
whose fruit he receives in return. In such a case, the Shomer is not
considered "Muchzak," and "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" does not
apply. From the time that the fruit is deposited with the Shomer and mixed
with his own fruit, the fruit is not considered to be two distinct groups of
fruit. The fruit of the Mafkid and the fruit of the Shomer are considered a
single entity and thus the decrease occurs to the entire entity.
(b) The SHA'AREI YOSHER (3:24, DH v'Hineh) questions the explanation of the
S'ma and offers a different explanation. He says that since the Mafkid does
not mind that his fruit is mixed up with the Shomer's fruit, and it is
considered as though the Shomer mixed them with the Mafkid's consent, the
act of putting the fruit together is considered an act of a Kinyan of
partnership, for we find that mixing fruit together is an act of a Kinyan of
partnership (Shulchan Aruch CM 176). Hence, the Shomer and the Mafkid have
become joint owners in all of the fruit, and any decrease in the fruit must
be burdened equally.
Based on this, the Sha'arei Yosher suggests that if the Shomer mixed the
fruit together against the will of the Mafkid (or by accident), then they do
not become joint owners of all the fruit and the Shomer indeed may claim
that it was the Mafkid's fruit which suffered the entire decrease, based on
"ha'Motzi me'Chaveiro Alav ha'Ra'ayah." (I. Alsheich)
2) A SHOMER WHO LETS FRUIT DIMINISH BEYOND ITS NORMAL RATE
QUESTION: The Mishnah states that when a Shomer returns fruit to its owner
after it was deposited with him, he deducts the amount that that type of
fruit normally diminishes within that amount of time. The Gemara explains
that this applies only when the Shomer put the fruit together with his own
fruit, and thus it is not possible to determine exactly how much the
deposited fruit diminished. When, however, the Shomer designated a specific
place for the Mafkid's fruit, then he returns the fruit in whatever state it
is in. This implies that even if the fruit has diminished *more* than the
normal rate, the Shomer still returns it in that state (the RITVA says that
in such a situation the Shomer must make a Shevu'ah that he was not
negligent in protecting the fruit, and the TALMID HA'RASHBA says that he
also must make a Shevu'ah that he did not use the fruit for his own personal
use).
Why, though, may the Shomer return the fruit to the Mafkid in its diminished
state? We learned earlier (38a) that Raban Shimon ben Gamliel rules that
when a Shomer sees that the fruit that was entrusted with him is
diminishing, he must sell it in the presence of Beis Din in order to prevent
the owner from suffering a larger loss. Even the Tana Kama there, who
maintains that the Shomer does not sell the fruit, agrees that the Shomer
must sell it when the fruit has diminished beyond its normal rate.
Accordingly, since the Shomer is obligated to sell the fruit when he sees
that it is diminishing beyond its normal rate, if he does not do so it is
considered negligence and he must compensate the owner for the loss (see
MAGEN AVRAHAM CM 443:5)! Why, then, does our Gemara say that he may return
the fruit to the owner in whatever state it is?
ANSWERS:
(a) The MA'AYANEI HA'CHOCHMAH answers that since it is rare that fruit
should diminish more than its normal rate, the Shomer is not held
responsible to presume that the fruit has diminished so much.
(b) The NEFESH CHAYAH answers that when the Gemara says that the Shomer
"designated for him (the Mafkid) a corner [in which to place his fruit]," it
means that the Shomer expressly stated that he was not accepting any
liability for the fruit, but rather he merely gave permission to the Mafkid
to place the fruit in his domain. He cites proof for this from the Gemara in
Pesachim (6a) which says that when a Nochri enters the property of a Jew
during Pesach holding Chametz, and the Jew "designates for him a room," the
Jew is not obligated to get rid of that Chametz because, as Rashi there
explains, he has not accepted liability for the Nochri's possessions, but he
has merely given him permission to place his items in his domain.
(According to this answer, the Shomer is not technically a Shomer at all,
since he did not accept upon himself the obligations of a Shomer. This,
however, is not consistent with the Rishonim mentioned above who require
that the Shomer make a Shevu'as ha'Shomrim when he returns the fruit that
has diminished.) (I. Alsheich)
40b
3) OLD BARRELS THAT NO LONGER ABSORB
QUESTION: The Mishnah (40a) states that old wine barrels do not absorb any
wine, and therefore the Shomer does not deduct any wine from the amount that
was deposited with him. Rav Nachman in the Gemara explains that the Mishnah
is referring to old barrels lined with pitch. Abaye says that even old
barrels that are not lined with pitch do not absorb wine, because since they
have already absorbed their fill, they no longer absorb any more wine.
The Acharonim question this Gemara from the well-known principle of the laws
of Isur v'Heter: when a prohibited food item is cooked in a pot, the pot
absorbs the item and it, too, becomes prohibited to be used, and no
distinction is made between an old pot and a new pot. According to our
Gemara, though, an old pot can no longer absorb additional amounts of food
and thus it should *not* become prohibited! (TAZ YD 93:2, KEREISI U'PLEISI
there, and others)
ANSWERS:
(a) The TAZ (also cited by the P'nei Yehoshua here) answers that our Gemara
is correct in saying that an old pot does not absorb additional material,
and it is also true that an old pot in which a prohibited item is cooked
because prohibited because of the absorption. He explains that the act of
cooking causes the pot to *expel* some of the material it has absorbed into
its walls, and thus room is made to *absorb* the prohibited material. That
is why the pot becomes prohibited.
The same occurs when wine is stored in an old barrel. The soaking of the
wine for a long period of time causes the barrel to expel some of the wine
that it has absorbed already, thus making room to absorb some new wine. The
net amount of wine in the barrel, though, remains the same. That is why the
Shomer does not deduct any wine when he returns it to the owner.
(The IMREI MAHARSHACH points out that according to this answer, if the
barrels had previously been used to hold water, then now the barrel has
expelled water and has absorbed wine! He answers that it is not the custom
for people to be particular about this, since the presence of such a small
amount of water in the wine is immaterial.)
(b) The KEREISI U'PLEISI and CHAVOS YA'IR (#104) answer that it is true that
an old pot or barrel does not absorb any liquid or food material. However,
it does absorb *taste* ("Ta'am"). A pot in which a prohibited food was
cooked absorbs the *taste* of that food and becomes prohibited. "Taste" is
absorbed by a pot even if the pot has already absorbed its capacity of
liquid or food material.
(The CHAVOS YA'IR adds that the concept of our Gemara that once a barrel has
absorbed its capacity it no longer absorbs more applies only to earthenware
vessels. Wooden vessels, in contrast, always absorb more. This is the
subject of discussion among the Acharonim. See there.) (I. Alsheich)
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