Bava Metzia - Daf 35
- Why a שבועה שאינה ברשותו would not force a גלגול שבועה on a משכון’s value
On the previous Daf, Rav Huna taught that even when a שומר pays for the lost פקדון, he must swear שאינה ברשותו – that it is not in his possession, because we suspect he may have taken it. This is challenged by a Baraisa in which a lender lost a borrower’s משכון, and the borrower claims the משכון was worth more than the loan, and the lender says it was equal to the loan. The מלוה does not swear, because he is not a מודה במקצת. But according to Rav Huna, that the מלוה must swear that the משכון is not in his possession, he should also have to swear about its value because of גלגול שבועה!?
Rav Kahana answered: תהא במאמינו – let [the Baraisa] be a case where he trusts [the מלוה] that the משכון is lost, so he does not swear. He does not trust the מלוה about the משכון’s value, because the מלוה is unfamiliar with it. The מלוה does not trust the לוה about the משכון’s value, despite being familiar with it, and the Gemara explains that the לוה applies to the מלוה: "תמת ישרים תנחם" – the perfection of the upright will lead them to good fortune (i.e., the lender’s honesty brought about his wealth), but the מלוה applies to the לוה: "וסלף בוגדים ישדם" – and the perverseness of traitors will plunder them (i.e., the borrower’s dishonesty caused his poverty).
- שומא הדר
The scholars of Nehardea say: שומא הדר עד תריסר ירחי שתא – property which was appraised and seized to pay a debt is returned to the debtor if he pays it until twelve months after the collection. Ameimar, who was also from Nehardea, said that seized property is returned forever. This is the halachah, because of the passuk: "ועשית הישר והטוב" – and you shall do what is right and good. If property seized by a creditor was collected by his own creditor, he would also have to return the property to the original owner for cash reimbursement, because he is no better than the first creditor from whom he obtained it. If the creditor sold it, left it as an inheritance, or gave it as a gift, ודאי הני מעיקרא אדעתא דארעא נחות – these second owners definitely entered the property originally with the intent of receiving land, and not money. Therefore, they are not required to return it to the original owner for money. A husband is considered a purchaser regarding his wife’s נכסי מלוג.
- Machlokes about a שוכר receiving payment when he lent the rented animal to another and it died
The next Mishnah states that if someone rented a cow, and lent it to someone else, and it died naturally, the שוכר swears that it died naturally (for which he is exempt), and the שואל pays the cow’s value to the שוכר. Rebbe Yose asked: כיצד הלה עושה סחורה בפרתו של חבירו – How can that renter do business with his friend’s cow? Rather, the payment is given to the cow’s owner. Rav Idi bar Avin asked Abaye that the שוכר presumably acquires the cow (and its subsequent payment) when he swears to the owner, so the owner should tell him: דל אנת ודל שבועתך – “Remove yourself and remove your shevuah, i.e., I forgive your shevuah, ואנא משתעינא דינא בהדי שואל – and I will litigate with the borrower myself.” Abaye responded that the שוכר acquires the cow as soon as it dies, and the shevuah is only כדי להפיס דעתו של בעל הבית – to ease the owner’s mind that the שוכר did not negligently cause the loss. Thus, the owner cannot prevent the שוכר from acquiring it. Tosafos says that Rebbe Yose holds that the שוכר acquires the cow through the shevuah, which the owner can prevent, as above.
