Bava Metzia - Daf 34
- How the שומר acquires the כפל, which is a דבר שלא בא לעולם
Ram bar Chama asked, how does the שומר acquire כפל by volunteering to pay for the lost פקדון, since it is a דבר שלא בא לעולם – something which has not come into the world, which one cannot transfer!? Even Rebbe Meir, who holds he can transfer it (e.g, selling the future fruit of a palm tree), that is only because they are עבידי דאתי – likely to come forth, but this כפל may never materialize: it may never be stolen, and even if it is, the thief may never be discovered; even if he is, he may confess and avoid paying כפל!?
Rava answered: נעשה כאומר לו – it is as if [the owner] told [the שומר] when giving him the animal, לכשתגנב ותרצה ותשלמני – “when the cow is stolen, and you will agree to pay me for it, הרי פרתי קנויה לך מעכשיו – me cow is transferred to you, retroactively from now.” Since he acquires the actual cow, it is not a דבר שלא בא לעולם. Since this should grant the שומר all the shearings and offspring in the interim, which is contradicted by a Baraisa, Rebbe Zeira adds that it is as if he said, “except for the shearings.” In another version, Rava said it is as if he told the שומר he can acquire it just before the theft, avoiding the above problem.
- Agreeing to pay is tantamount to paying
Rebbe Yochanan said: לא שילם שילם ממש – The Mishnah’s statement that [the שומר] paid does not mean that he literally paid. אלא כיון שאמר הריני משלם – Rather, once he said, “I will pay,” אף על פי שלא שילם – even though he did not yet pay, he acquires the כפל. A Baraisa supports this ruling.
Two versions of a statement of Rav Pappa are presented, whether or not a שואל would also acquire כפל based on his agreeing to pay, since he can only exempt himself by claiming מתה מחמת מלאכה – [the animal] died because of normal work, which is uncommon. Rav Zevid quoted Abaye saying that a שואל only acquires כפל if he actually pays and explains: הואיל וכל הנאה שלו – since all benefit of the loan is his (since he may use it without paying rent), בדיבורא לא מקני ליה כפילא – [the lender] does not transfer כפל to him in exchange for a mere verbal agreement to pay. A Baraisa supports this position.
- Numerous questions about payments of heirs, partial payments, or a wife’s property
The Gemara presents a series of various scenarios of payments, and asks if the שומר acquires the כפל:
-Heirs’ payments: שלמו בנים – If the שומר dies and his heirs pay, or if the owner dies and the שומר pays his heirs, or both die and the שומר’s heirs pay the owner’s heirs, is כפל acquired? These questions center on whether only the owner agrees to transfer כפל, and only to the שומר, who has personally pleased the owner in the past. -Half payments: שילם מחצה – If he paid half of the stolen cow’s value, would he acquire half the כפל? What if he paid for one of two cows borrowed, or paid one of two partners for his loss? What if two partners borrowed, and one paid for his share? Wife’s property: If one borrowed from a wife’s נכסי מלוג, does paying the husband entitle him to כפל? If one’s wife borrows something needed for her נכסי מלוג, does her husband’s paying the loss entitle her to כפל? Is the husband considered an “owner” regarding this halachah? All these inquiries are left unresolved.
