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Bava Metzia, 96

1) WHEN MUST THE OWNER BE WITH THE "SHO'EL" FOR THE EXEMPTION OF "BA'ALAV IMO" TO APPLY

QUESTION: Regarding the exemption from liability in a case of "Ba'alav Imo," the Gemara derives from verses that as long as the owner of the animal is with the Sho'el at the time of the She'eilah, the Sho'el is exempt, even if the owner is not with him at the time that the animal dies. The Gemara asks why the exemption of "Ba'alav Imo" depends upon the owner being with the Sho'el at the time of She'eilah -- perhaps it should depend upon him being with the Sho'el at the time of the animal's death, because it is at that moment that the Sho'el would otherwise become Chayav to pay for the Ones. The Gemara concludes that the time of She'eilah is more important, because it is at that moment that the Sho'el becomes obligated to feed the animal.

What does feeding the animal have to do with being exempt from liability because of "Ba'alav Imo?"

ANSWERS:

(a) The MA'AYANEI HA'CHOCHMAH answers that the Sho'el's liability for Onsin takes effect at the same moment that his obligation to feed the animal takes effect. The Gemara is refuting the suggestion that the Sho'el becomes obligated to pay for the Ones at the moment that the Ones occurs (i.e. when the animal dies) by pointing out that the Sho'el becomes obligated to feed the animal at the moment he borrows the animal. This shows that *all* of his obligations take effect at the moment, including the obligation to pay for the animal if an Ones will occur. Logically, then, the Sho'el will be exempt if the owner was with him at that moment. (See Kesuvos 34b, where the Gemara, in its Havah Amina, suggests that since the Sho'el becomes obligated to feed the animal at the moment he does Meshichah, so, too, he becomes obligated in Onsin from that moment as well. The Gemara here is following the Havah Amina of the Gemara in Kesuvos.)

(b) The DARCHEI DAVID answers that when the Gemara says that the moment of She'eilah is more important because the obligation to feed the animal takes effect at that moment, it is merely giving an example of one of the Sho'el's obligations that takes effect at the moment of She'eilah. The Gemara means to say that at the moment of She'eilah, *all* of the laws and obligations of the Sho'el take effect. It follows logically, then, that the law of "Ba'alav Imo" takes effect at the same moment that the laws and obligations of the Sho'el take effect, because the law of "Ba'alav Imo" itself suspends some of the obligations of the Sho'el. (I. Alsheich)

OPINIONS: The Gemara asks what the Halachah is in a case where a person borrows an item merely in order to be seen with it (so that people think he is wealthy and will not refrain from selling to him on credit, -RASHI), but not actually to use the item. Will the borrower be Chayav for Onsin in such a case? If the Chiyuv for Onsin depends on getting monetary benefit from borrowing the item, then this borrower will be Chayav for Onsin, since he gets monetary benefit (in that people will sell to him on credit). If the Chiyuv for Onsin depends on getting benefit from the item itself, then this borrower will not be Chayav for Onsin, since he does not benefit from the item itself. The Gemara leaves this question unanswered, and thus the Halachah is that "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" and the Sho'el does *not* have to pay for an Ones.

This question of the Gemara has other important ramifications.

(a) The MACHANEH EFRAIM (Hilchos She'eilah #3; see also Insights to Bava Metzia 95:2) and the KETZOS HA'CHOSHEN (72:34) cite the RAN (in a Teshuvah) who writes that in a case where a person who lends a Sefer to his friend and an Ones happens at the Sefer is destroyed, the borrower is *not* Chayav. The Ran writes that the reason is because this case of She'eilah differs from a normal case of She'eilah, because in a normal case of She'eilah, the Sho'el is the sole beneficiary ("Kol ha'Hana'ah Shelo"), and that is the reason why a Sho'el is Chayav for Onsin. Here, though, when a person borrows a Sefer, the Sho'el is not the sole beneficiary of the She'eilah, because the lender also benefits by having his Sefer loaned out, since he is doing a Mitzvah by enabling someone else to learn with his Sefer and thus he is exempt from other Mitzvos at that moment because of the rule of "Perutah d'Rav Yosef" (the Machaneh Efraim questions whether the exemption of "Perutah d'Rav Yosef" would apply in such a case).

The Machaneh Efraim and Ketzos ha'Choshen say that the Sho'el is exempt for a different reason. They say that the fact that the lender benefits from the Mitzvah that he is doing is not a reason to exempt the Sho'el, because there is a principle that "Mitzvos Lav Leihanos Nitnu," Mitzvos were not given for the benefit derived from them, and any benefit is not considered Hana'ah. By the same token, however, the Mitzvah that the Sho'el is doing by learning from the Sefer is also not considered Hana'ah. Hence, this type of She'eilah is identical to the case discussed by our Gemara, in which the Sho'el receives no benefit from the actual object itself, but he does receive monetary benefit apart from the object (in that he is exempt from giving a Perutah to a poor person while he is using the object)! Since the Gemara leaves this question unanswered, the Halachah is that in cases of doubt we follow the rule of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah," and thus the lender cannot make the Sho'el pay for an Ones.

(b) The NESIVOS HA'MISHPAT (72:17) challenges the assertion of the Ketzos ha'Choshen that the case of a borrowed Sefer is similar to the case of our Gemara. The TAZ (YD 221:43) writes that the principle that "Mitzvos Lav Leihanos Nitnu" does *not* apply to the Mitzvah of learning Torah. The Torah gladdens man's heart and he experiences pleasure from it. This is the reason, writes the Taz, why one who makes a Neder prohibiting another person from benefiting from his property may not lend a Sefer for him to learn from -- he is thereby receiving Hana'ah from the Madir, which is Asur. Similarly, the pleasure that the borrower gets from learning with the Sefer is certainly considered Hana'ah and he should be Chayav for Onsin (if not for the reason of the Ran).

The Ketzos ha'Choshen responds (in MESHOVEV NESIVOS) that while the Nesivos might have a difficulty on his approach from the words of the Taz, he himself has support for his approach from the words of the HAGAHOS MAIMONI (cited by the BEIS YOSEF YD 221), who gives a different reason why, in the case of a Neder, one may not lend a Sefer to the person who is prohibited from getting Hana'ah from him. The Hagahos Maimoni says that since the owner of the Sefer would be able to *rent* out the Sefer in return for money, when he lends it for free to the borrower, the borrower is benefiting by saving the money he otherwise would have had to pay in order to rent the Sefer. That is why the Madir may not lend a Sefer to the Mudar, even though "Mitzvos Lav Leihanos Nitnu" and the learning itself is not considered Hana'ah. (However, we find that another Rishon, RABEINU AVRAHAM MIN HA'HAR in Nedarim 48a, writes, like the Taz, that the pleasure of learning Torah *is* considered Hana'ah. See Insights to Nedarim 48:1 for a discussion of whether the principle of "Mitzvos Lav Leihanos Nitnu" applies to learning Torah.)

(c) The OR SAME'ACH (Hilchos She'eilah 7:4) challenges the assertion of the Machaneh Efraim and the Ketzos ha'Choshen in a different way. He says that borrowing a Sefer is not comparable to borrowing an item in order to appear wealthy. The main reason why the Torah obligates a Sho'el to pay for Onsin is because the Sho'el acquires the title of "owner" (temporarily) for this item when he borrows it, since it is now in his possession and the original owner has no right to use it. Just like the owner would have to suffer the loss incurred by any Ones that might occur to it, so, too the Sho'el must suffer the loss incurred by any Ones that might occur to it.

Consequently, when the Sho'el borrows the item merely in order to be seen with it, he is not considered the full (albeit temporary) owner of the item since he did not borrow it in order to *use* it. The Hana'ah which he gets is not from the actual usage of the item, and thus he is not using it in the manner of an owner. Therefore, the Gemara has a doubt in such a case whether or not the Sho'el has the status of a normal, full-fledged Sho'el, or whether he is not the same as a normal Sho'el and is Chayav for Onsin.

In contrast, when one borrows a Sefer in order to learn from it, he is using the Sefer itself in the way that a Sefer is intended to be used (for when a person buys a Sefer, that is what he buys it for). Hence, this Sho'el is like the owner of the Sefer for the time that the Sefer is in his possession; he is using the Sefer in the same way that its real owner would use it. (I. Alsheich)

96b

QUESTION: When a married woman inherits property, her husband gets dominion over it. Rami bar Chama asks about a case in which the inherited property had been sanctified as Hekdesh by the one who died, but the wife and husband were not aware that it was Hekdesh. Who transgresses the Isur of Me'ilah when the property is removed from the domain of Hekdesh and put into the domain of the husband? Rava questions who could possibly be Chayav for Me'ilah -- it could not be the husband, because he only wants to acquire permitted property from his wife's inheritance, and had he known that this property was Hekdesh he would not have agreed to acquire it. Likewise, it could not be the wife, because she also did not want to be Makneh to her husband property that was forbidden. (The Gemara concludes that it is the husband who will transgress Me'ilah, but not when he receives the property, but only when he spends it (as is the case of any person who unintentionally spends money of Hekdesh, thereby causing it to leave the domain of Hekdesh).)

The TALMID RABEINU PERETZ (cited by the Shitah Mekubetzes) asks that we should ask the same question in every case accidental personal use of Hekdesh -- had the person known that the item or money was Hekdesh, he never would have acquired it for himself! How, then, according to the Gemara's question, can anyone ever be Chayav for Me'ilah?

ANSWER: The TALMID RABEINU PERETZ answers that the case of our Gemara is not comparable to every normal case of Me'ilah with Hekdesh. In every normal case, even though the person was not aware that the money that he was spending was money of Hekdesh, he *was* aware of the action that he was doing with the money -- he had full intention to spend the money and take it out of its present domain. In the case of our Gemara, though, not only does the husband not know that the item is Hekdesh, but he also has no intention to remove it from its present domain. He lifts it up thinking that it rightfully belongs to him. Therefore, the Gemara asks that he should not be Chayav for Me'ilah. (I. Alsheich)