Ask A Question about the Daf

Previous daf

Bava Metzia, 82

1) THE DEGREE OF LIABILITY OF ONE HOLDING A COLLATERAL

QUESTIONS: According to Rebbi Yitzchak, a Malveh acquires the collateral that he takes as security for the loan that he gave ("Ba'al Chov Koneh Mashkon"). What level of liability does the Malveh have for the object of collateral? RASHI (DH she'Koneh) says that since the Malveh acquires the Mashkon, he is liable even for damages or destruction caused by an Ones. The Rishonim have a number of difficulties with Rashi's opinion.

(a) TOSFOS and the RAMBAN ask that our Gemara uses Rebbi Yitzchak's statement to explain the Mishnah (80b). The Mishnah states that the Malveh is considered only a *Shomer Sachar* for the Mashkon, and he is not obligated in the case of an Ones! How, then, can Rashi says that the Malveh *is* obligated in the case of an Ones?

(b) The RAMBAN asks that the Gemara in Bava Kama (36b) says that if the victim of damages seizes the ox (Shor Tam) that damaged him as collateral for compensation, his liability for the ox is that of a Shomer Sachar. In the case of the Gemara there, the Mashkon was seized *after* the time of the damage, and yet the Gemara says the holder of the Mashkon has the liability of a Shomer Sachar, and not the liability of a Sho'el! How, then, can Rashi say that he is like a Sho'el?

ANSWERS: The SHACH (CM 72:9) defends the view of Rashi and offers the following answers. He first points out that the wording of Rebbi Yitzchak's statement itself, "Ba'al Chov *Koneh* Mashkon," supports the view of Rashi. Since it is a *Kinyan,* it follows that all of the responsibility for the object rests with him.

(a) The Shach answers that when Rashi says that the Malveh acquires the Mashkon completely such that he is liable for any Ones that occurs, Rashi is referring only to when the Mashkon was taken *after* the loan was given. In contrast, the Mishnah (80b) is referring to a case in which the Mashkon was taken at the same time as the loan, in which case even Rashi agrees that the Malveh has only the liability of a Shomer Sachar. The Gemara later says that Rebbi Yitzchak was discussing only a Mashkon that was taken *after* the time of the loan, in which case the Malveh is liable for Onsin. Rebbi Yitzchak was not discussing a Mashkon taken at the time of the loan, and thus perhaps the Malveh is not responsible at all, in such a case, for an Ones that happens to the Mashkon.

(b) The Shach answers that the Gemara in Bava Kama is discussing a case in which the Mashkon that was seized was an ox, a Shor Tam. The Mazik -- the owner of the ox -- is not obligated to pay for the damages caused by his Shor Tam until Beis Din issues a verdict that he must pay. Hence, at the moment that the Nizak seized the Shor Tam, the Mazik was not yet obligated to pay for damages. Even though the Shor Tam had already done damage, the owner has no obligation pay for the damage until Beis Din issues its verdict that he must pay. When Rashi says that a Malveh acquires the Mashkon completely and is liable for Onsin, he is referring only to where the Malveh obtained the Mashkon as a payment for the loan. In the case of the Shor Tam in Bava Kama, though, there was no monetary obligation yet, and thus it is obvious that the Mashkon cannot be considered as payment for the debt, because there is no debt yet. The Shor Tam is only a Pikadon, similar to the item that a craftsman worked on, which he holds merely in order to ensure that he gets paid for his work, and for which he is considered a Shomer Sachar. (Y. Marcus)

QUESTION: RASHI (DH v'Hacha b'Shomer) explains that one who is watching an Aveidah is exempt from giving Tzedakah because of the principle of "ha'Osek ba'Mitzvah Patur Min ha'Mitzvah" -- "One who is involved in one Mitzvah is exempt from another Mitzvah." Hence, in the case of our Gemara, the person who is involved in the Mitzvah of Hashavas Aveidah is exempt from the Mitzvah of Tzedakah.

TOSFOS (Sukah 25a, DH Sheluchei Mitzvah) asks that according to this, one who is wearing Tzitzis or Tefilin should be exempt from all other Mitzvos!

ANSWERS:

(a) TOSFOS answers that only when the second Mitzvah would interrupt one's performance of the first Mitzvah, is the person exempt from the second Mitzvah. If one could perform the second Mitzvah without affecting his performance of the first Mitzvah (such as is the case when wearing Tzitzis or Tefilin), he is not exempt from the second Mitzvah.

The OR ZARU'A questions this answer of Tosfos. It is obvious that one may not stop performing one Mitzvah in order to perform another. Why would we have thought to give precedence to one Mitzvah over another, had the verse not taught us otherwise?

We could answer that Tosfos learns from the verse that one who is involved in one Mitzvah is exempt from other Mitzvos even in a case where the opportunity for the second Mitzvah will pass if it is not done right away. One might have thought that in such a situation, one should halt the performance of the first Mitzvah and fulfill the second Mitzvah. The verse teaches us that even in such a case, one may not leave the first Mitzvah to perform the second. (M. Kornfeld)

(b) RASHBA in the name of RAV HAI GA'ON, the MAGID MISHNAH (Hilchos Sukah 6:4) in the name of the GE'ONIM, and the OR ZARU'A (Hilchos Sukah) explain that as long as a person is involved in preparing to fulfill a Mitzvah, such as when he is traveling in order to perform a Mitzvah, he is not obligated by the Torah to perform other Mitzvos even if they do not distract him from the first Mitzvah. The Almighty does not give us two things to do at one time.

With regard to Tzitzis and Tefilin, however, one has already done what was needed to fulfill the Mitzvah. He is now in the process of *fulfilling* the Mitzvah, and not in the process of *preparing to fulfill* the Mitzvah. The exemption from other Mitzvos applies only when one has not yet fulfilled the first Mitzvah, and is doing something in order to fulfill the Mitzvah.

(c) The RAN (Sukah 25a) makes a compromise. He agrees with the Rashba that one is exempt from the second Mitzvah even if performing it does not distract him from the first Mitzvah. However, if there is a way to fulfill the second Mitzvah while still performing the first Mitzvah *in its normal manner*, then one is not exempt from the second Mitzvah (as the Ran writes, "Why not fulfill a Mitzvah if nothing is lost in the process?"). Only when one must change his normal way of performing the first Mitzvah in order to fulfill the second Mitzvah is he exempt from the second Mitzvah.

(It could be that according to the Ran, the obligation to do the second Mitzvah does not stem from the normal obligation to perform Mitzvos, but rather from the requirement not to disgrace a Mitzvah. Technically, he may be exempt since he is involved in another Mitzvah. But in practice, since the second Mitzvah could be performed without making any change from one's normal way of performing the first Mitzvah, it would be disgraceful to the second Mitzvah not to perform it. -M. Kornfeld)

HALACHAH: The REMA (Orach Chayim 38:8) cites the opinion of the Ran as the Halachah; when there is a way to fulfill the second Mitzvah while still performing the first Mitzvah in its normal manner, then one is not exempt from the second Mitzvah. Otherwise, he is exempt.

82b