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1) STIPULATIONS OF LIABILITY

(a) (Mishnah): An unpaid watchman may stipulate to be exempt from swearing; a borrower may stipulate to be exempt from paying; a paid watchman or renter may stipulate to be exempt from swearing or paying;
(b) Anyone who makes a stipulation contrary to Torah, the stipulation is void; any stipulation in which the outcome precedes the condition, the stipulation is void;

1. Any stipulation that can be fulfilled, it is valid.

(c) (Gemara) Question: Why are the watchmen's stipulations valid - they are contrary to Torah, they should be void!
(d) Answer #1: Our Mishnah is R. Yehudah, who says that a monetary stipulation contrary to Torah is valid.

1. (Beraisa - R. Meir): If one is Mekadesh a woman 'on condition that you have no claim of food, clothing or regular periods of relations' - she is Mekudeshes, the stipulation is void;
2. R. Yehudah says, monetary stipulations (food and clothing) are valid.
3. Question: The next clause proves that our Mishnah is not R. Yehudah!

i. (Mishnah): Anyone who makes a stipulation contrary to Torah, the stipulation is void.
ii. This is like R. Meir!

4. Answer: Really, it is R. Yehudah; the Mishnah speaks of a non-monetary stipulation.
5. Question (the next part of the Mishnah): Any stipulation in which the outcome precedes the condition, the stipulation is void.

i. This is like R. Meir!
ii. (Beraisa - Aba Chalifta citing R. Meir): If the stipulation precedes the outcome, the stipulation is valid; if not, it is void.

(e) Answer #2: Really, our Mishnah is R. Meir; here, the stipulation works because the watchman never obligated himself (to have the full liability of a watchman; Kedushin is different, for there is no such thing as partial Kidushin).
(f) (Beraisa): A paid watchman can stipulate to be like a borrower.
(g) Question: Is this through mere words?!
(h) Answer #1 (Shmuel): The case is, he made an acquisition for the extra liability.
(i) Answer #2 (R. Yochanan): No acquisition is needed - with the pleasure that he will get a reputation for trustworthiness, he obligates himself.

(a) (Mishnah): Any stipulation that can be fulfilled is valid.
(b) (Rav Tavla): Our Mishnah is R. Yehudah ben Teima; Chachamim say that even a stipulation that cannot be fulfilled, is valid.

1. (Beraisa): A man gave a Get to his wife, saying 'You are divorced on condition that you go up to the sky' or 'that you descend to the depth (of the ocean)' or 'that you will swallow a reed of 100 Amos', or 'you will cross the ocean on foot' - if she fulfills the stipulation (e.g. through using a Name of Hash-m) she is divorced; if not, not.
2. R. Yehudah ben Teima says, such a Get is valid;

(c) R.Yehudah ben Teima says, the general rule is: a stipulation that cannot be fulfilled is just meant to tease, it is not a stipulation.
(d) (Rav Nachman): The Halachah follows R. Yehudah ben Teima.
(e) (Rav Nachman bar Yitzchak): Our Mishnah is indeed R. Yehudah ben Teima.

1. (Tosfos - One might have thought, the Mishnah only says that a stipulation which cannot be fulfilled because it is contrary to Torah is valid) - since it says 'Any stipulation that can be fulfilled, it is valid', this implies that even if it is (only physically) impossible to fulfill, it is void.

3) SHA'ALAH B'BA'ALIM

(a) (Mishnah): If Reuven borrowed Shimon's cow and at the same time asked or hired Shimon to work for him, or if he asked or hired Shimon to work and later borrowed it, and the cow died, Reuven is exempt - "Im Ba'alav Imo Lo Yeshalem";

(b) If he borrowed Shimon's cow and later asked or hired Shimon to work for him and the cow died, he is liable - "Ba'alav Ein Imo Shalem Yeshalem";
(c) (Gemara): Inference: Since the middle clause says 'and later borrowed the cow', this implies that the first clause, which says 'at the same time', means precisely at the same time.
(d) Question: How is this possible? Shimon is hired as soon as Reuven asks, but the cow is not borrowed until Reuven does Meshichah (pulls it to his domain)!
(e) Answer #1: The cow was already in Reuven's Chatzer, no Meshichah is needed.
(f) Answer #2: Reuven asked that Shimon begin working for him when he does Meshichah.

(a) (Mishnah): There are four kinds of watchmen: an unpaid watchman, a borrower, a paid watchman, and a renter:

1. An unpaid watchman swears and is exempt for any loss; a borrower pays for any loss;
2. A paid watchman or renter swears if it was broken, taken captive or died, and pays if it was stolen or lost.

(b) Question: What is the source of this?
(c) Answer (Beraisa): The first Parshah (of watchmen in the Torah) speaks of an unpaid watchman, the second speaks of a paid watchman, the third speaks of a borrower.
(d) Question: The third explicitly says "V'Chi Yishal" - but perhaps the first Parshah speaks of a paid watchman, the second is an unpaid watchman!
(e) Answer: Presumably, the second is a paid watchman, for he is liable for theft or loss.
(f) Question: Just the contrary! The first is more liable, he pays double if he claims that it was stolen (and really stole it himself)!
(g) Answer: It is more stringent to pay principal for theft, than to swear and be exempt (and pay double if he stole it himself).

1. Support: A borrower gets free benefit (presumably, he should be most liable), and he never pays double!
2. Question: His benefit is not free - he must feed the animal!
3. Answer #1: The case is, the animal grazes in the swamp, the borrower need not feed it.

i. Question: But the borrower must guard it!
ii. Answer: It is guarded by the guard of the city.

4. Answer #2: It suffices to say that a borrower gets most of the benefit.
5. Answer #3: He borrowed vessels (they need not be fed, and they are guarded just by having them in his house).

(h) (Mishnah): A paid watchman or renter swears if it was broken, taken captive or died, and pays if it was stolen or lost.
(i) We have an explicit source for theft - "V'Im Ganov Yiganev";
(j) Question: What is the source that he pays if it was lost?
(k) Answer (Beraisa): One might have thought that he pays only if it was stolen - the double language "V'Im Ganov Yiganev" teaches even if it was lost.

1. This answer is according to the opinion that the Torah does not speak as people speak (therefore, we expound the double language).

(l) Question: According to the opinion that the Torah speaks as people speak, how can we answer?
(m) Answer (Chachamim of Eretz Yisrael): From a Kal va'Chomer: theft is close to Ones, yet he is liable - all the more so he is liable if he loses it, for this is close to negligence!

1. The opinion that the Torah does not speak as people speak says that the verse teaches something that could have been learned from a Kal va'Chomer.

(n) (Mishnah): A borrower pays for any loss.
(o) The Torah explicitly obligates if it is broken or dies - "V'Nishbar O Mes".
(p) Question: What is the source if it is captured?

1. Suggestion: We learn from breakage or death.
2. Rejection: It occurs to a person that such Onesim might happen, but he does not anticipate that it will be captured!

(q) Answer #1: It says "V'Nishbar O Mes" by a borrower and by a paid watchman. Just as being captured has the same law as breakage or death regarding a paid watchman (he is exempt for either), also regarding a borrower (he is liable for either).
(r) Objection: We cannot learn from a paid watchman, who is exempt, that a borrower is liable (perhaps the Torah never obligates for being captured!)
(s) Answer #2 (Beraisa - R. Noson): "O" includes being captured.
(t) Question: We need "O" to separate - one might have thought, he is only liable if it breaks and dies - "O" teaches, this is not so

1. This is not difficult according to R. Yonason - but according to R. Yoshiyah, how can we answer?
2. (Beraisa - R. Yoshiyah): "A man that will curse Es Aviv v'Es Imo" - this only teaches if he curses both;

i. "Aviv v'Imo Kilel" - this includes, even if he curses only one of them.

3. R. Yonason says, a Vov (and) connotes even one, unless the Torah explicitly says 'together' (as it does regarding Kilayim).