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1) WHO AUTHORED OUR MISHNAH?

(a) Question: Who is the Tana of the (first part of the) Mishnah (if it broke after he put it down, he is always exempt).
(b) Answer: It is R. Yishmael, who says that the owner need not know that his property was returned.

1. (Beraisa - R. Yishmael): One who steals a lamb from a flock or a coin from a wallet, he returns it to where he stole it from;
2. R. Akiva says, he must inform the owner.

(c) Question: If it is R. Yishmael, why does it say that he did not designate a place - even if he designated (he need not inform him)!
(d) Answer: The Mishnah teaches a bigger Chidush: not only if he designated a place, for then he returned it to its place - but even if he did not designate a place, he need not inform him.
(e) Question (end of the Mishnah): If Reuven designated where it should be kept, whether it broke while he was holding it or after he put it down, if he picked it up to use it, he is liable; if for its sake, he is exempt.

1. This is as R. Akiva, who says that he must inform the owner!
2. Question: If it is R. Akiva, why does it say that he designated a place - even if he did not (he must inform him)!
3. Answer: The Mishnah teaches a bigger Chidush: not only if he did not designate a place, for then it is not returned to its place - but even if he designated a place, he must inform him.

(f) Question: Is the beginning as R. Yishmael and the end as R. Akiva?!
(g) Answer #1: Yes!

1. (R. Yochanan): If someone can explain this Mishnah as 1 Tana, I will carry his clothes to the bathhouse.

(h) Answer #2 (R. Yakov bar Aba): The case is, Shimon picked it up to steal it (Answers 2-4 will be explained later).
(i) Answer #3 (R. Noson bar Aba): The case is, Shimon picked it up to make unauthorized usage of it.

1. Question: On what do R. Yakov and R. Noson argue?
2. Answer: Whether one who takes a deposit (to make unauthorized usage of it) is considered a robber without diminishing it.

i. R. Yakov says that he is not a robber until he diminishes the deposit - therefore, he established the Mishnah when he intended to steal it;
ii. R. Noson says that he is a robber without diminishing it, he establishes the Mishnah by intention to make unauthorized usage.

(j) Objection (Rav Sheshes): The Mishnah does not say that he took it (which would connote, for himself), rather he moved it!
(k) Answer #4 (Rav Sheshes): The case is, Shimon moved it so chicks will climb on it;

1. Rav Sheshes says that one who borrows without permission is considered a robber.

(l) R. Yakov, R. Noson and Rav Sheshes all say that the entire Mishnah is R. Yishmael; the end of the Mishnah is when he did not put it down in the designated place.

1. R. Yochanan did not answer thusly - 'put it down' connotes, in its place.

(a) (Rav or Levi): One who takes a deposit (to make unauthorized usage of it) is only considered a robber if he diminishes it;
(b) (The other of Rav and Levi): He is considered a robber even without diminishing it.
(c) The following shows that Rav says that he is a robber without diminishing it.

1. (Beraisa): A shepherd was grazing his flock. He left it and went to the city; a wolf or lion killed some of the flock - he is exempt;
2. If he had left his staff or bag on the killed animal, he is liable.
3. Question: Even if that is considered unauthorized usage - when he took back his staff or bag, he returned the animal (according to R. Yishmael, the Tana of our Mishnah)!
4. Answer (Rav): The case is, the animal was killed when the staff or bag was still on it.
5. Question: Even if it was still on - he never did Meshichah, he is not a robber!
6. Answer (Rav): He hit it with his staff and it ran in front of him (a form of Meshichah).
7. Question: The animal was not diminished!
8. Answer: Rav says that he is a robber without diminishing it.

(d) Rejection: Rav means, he weakened it with his staff - he says that he is only a robber if he diminishes it!

1. Support: He mentioned hitting it with a staff to show that it was a harsh blow.

(e) We conclude that Levi says that he is a robber without diminishing it.
(f) Question: What is Levi's reason?
(g) Answer #1 (R. Yochanan citing R. Yosi ben Nehurai): The mention of unauthorized usage by a paid watchman is unlike the mention by a free watchman.

(h) (R. Yochanan himself): It is not different.

1. R. Yosi says, there was no need to mention unauthorized usage by a paid watchman - we may learn from a Kal va'Chomer from a free watchman!

i. A free watchman is exempt by theft or loss, if he made unauthorized use, he is liable; a paid watchman is liable for theft or loss - all the more so, he is liable after unauthorized use!
ii. It is extra, to teach that unauthorized usage confers liability as a robber even without diminishing the deposit.

2. R. Yochanan says, it is not different, as R. Elazar, who says 'They are the same'.
3. Question: What does that mean?
4. Answer: We cannot learn from the Kal va'Chomer, because there is a stringency of a free watchman - he pays double if he claims it was stolen (and really stole it himself);

i. Therefore, the Torah had to say both, each only teaches about itself.

5. R. Yosi learns from the Kal va'Chomer - he reasons that paying principal (i.e. a paid watchman who claims it was stolen) without an option to swear (and be exempt) is more stringent than (a free watchman, who can exempt himself through) an oath that might lead to double payment.

(i) Answer #2 (Rava): There was no need to mention unauthorized usage by a paid watchman nor by a free watchman - - we may learn from a borrower.

1. A borrower uses it with the owner's permission, he is liable for Ones - all the more so, a free or paid watchman, who uses it without permission!
2. It was written (by one of these watchman) to teach that unauthorized usage confers liability as a robber even without diminishing the deposit;
3. The other place it was written is so we do not apply the principle of Dayo;

i. One might have thought, a borrower is exempt if the lender was working for him, unauthorized use is no more stringent - the extra verse teaches, this is not so (it is liable even then).

(j) Question: According to the opinion that he is considered a robber only if he diminishes it, what does he learn from these 2 verses?
(k) Answer: One teaches, so we do not say Dayo (as above);

1. The other teaches as the following.
2. (Beraisa): "V'Nikrav Ba'al ha'Bayis (The free watchman will come close)" - to swear.
3. Suggestion: Perhaps this is for judgment, not to swear!
4. Rejection: It mentions unauthorized usage by a free watchman and by a paid watchman. Just as the latter Parshah (a paid watchman) speaks of an oath, also the former (he only pays double payment if he swore that it was stolen).