פירוש על בבא מציעא 11:3
Tosafot on Bava Metzia
[An unpaid custodian who claims that the deposit was stolen must] swear that he did not1Literally the words – לא שלח ידו - mean that he did not stretch his hand to the deposited item. This of course cannot be understood literally. What difference would it make if he stretched his hand to the deposited item? Rashi therefore explains that the intent of the verse is that he did not “stretch his hand to the item” in a way that would make him liable for the accident that eventually occurred to the animal. This would happen if he used the animal for his personal use. He is a thief and becomes liable even for accidents. We have translated the words according to the meaning and not literally for the sake of clarity. use it for his personal needs. Why is this oath required? What will change if the custodian did use the deposited item for his own needs?We must first be aware that custodians have different levels of liability.
a) An unpaid custodian is liable only for negligence. He is exempt for loss, theft and unavoidable accidents.
b) A paid custodian is liable for loss and theft, but exempt for unavoidable accidents.
c) A borrower is liable even for unavoidable accidents.
Rashi explained: That if he did 1 use it for his personal needs, he is a thief and even if it was destroyed by an unavoidable accident he is liable. As an a) unpaid custodian he is liable only for negligence. However, a thief is comparable to a borrower2See Rashi below (41b) ד'ה תיתי משואל. and liable even for unavoidable accidents. When an unpaid custodian uses the deposited item for his own needs, he is legally a thief and is consequently liable even for unavoidable accidents.
Even though when [the custodian/thief] returns [the deposit] to its designated place after he used it for his personal needs, he has effectively returned the stolen object and is exempt from future liability for unavoidable accidents, as we learned in HaMafkid (Below 40b), and if so, what difference does it make that he used the deposit for his personal needs, since at this point he is no longer a thief? Even so, perhaps it was damaged by accident before he returned the deposit to its place and he is liable for damages at that time. The custodian must therefore swear that he carries no additional liability as a result of misappropriating the deposited item.
But there is a difficulty with [the Gemara] at the end of Ha’umnim (below 83a), where [the Gemara] says in explanation of a verse in the passage dealing with a paid custodian (Shemos 22, 9) “if it was broken or captured, and nobody saw” he must swear in order to clear himself, the Gemara deduces, but if witnesses did see, the custodian may bring witnesses to testify in his behalf and [the custodian] is exempt from swearing. But how can the Gemara say that the custodian is unequivocally exempt, perhaps he used it for his personal needs and is liable even for unavoidable accidents because he is a thief? The witnesses testify only that the deposit was destroyed by an accident, they does not tell us that the custodian never used the deposit for his personal needs and is not liable for accidents.
We can answer: That the Gemara is saying only that [the custodian] is exempt from swearing that it was destroyed by an accident, but he must still swear that he did not use it for his personal needs.
This explanation limits the exemption in the Gemara (83a). Although the Gemara says that the custodian is exempt, we are compelled to say that he is only exempt from an oath that it was destroyed by accident, because he has witnesses who testify to that. However, he is still obligated to swear that he did not use the deposit for his personal needs. Thus, he is not completely exempt from swearing. The simple reading of the Gemara leads us to believe that the exemption is complete. Tosfos will now offer an approach to the Gemara (83a) that concurs with the simple reading.
Alternatively, one swears that he did not use the deposit for his personal needs only via the process of devolving3See הרמב"ם הל' שאלה ופקדון פ"ד ה"א who also uses the term ,מגלגלין when describing the oaths of a custodian. from the original mandatory oath wherein he states, “I was not negligent”. It is only when the custodian must swear that he was not negligent that another oath - stating that “I did not use the deposited item for my personal needs” devolves upon him. However, when there are witnesses who testify that [the deposit] was destroyed by accident, [the custodian] is completely exempt from swearing. There is no need to swear that it was destroyed by accident, since there are witnesses, and he need not swear that he did not pick it up to use it for his personal needs, because he is obligated to take that oath only when he must swear that it was destroyed by accident.
Until this point, Tosfos follows Rashi’s explanation that the oath - “I did not stretch my hand to it” means that I did not take it to use as my own and I am therefore not subject to the liabilities of a thief. Tosfos will now cite Rabbeinu Tam’s explanation of the oath “I did not stretch my hand to it”,4See note 1. which differs radically with Rashi’s explanation.
Rabbeinu Tam explains that even via the process of devolving a non-mandatory oath via a mandatory oath, one need not swear that he did not misappropriate the animal when [the animal] is dead before us.5Tosfos stresses that the animal before us is dead, because there is no need to swear that he did not consume the animal. We see that it is in front of us. We will only require an oath that he did not eat the animal when the custodian claims that it was eaten by another animal and there is no carcass to prove that it was not eaten by the custodian. For devolving a second oath is only required when the secondary oath is for something likely to have happened. The original oath proves that the animal did not die as a result of negligence. The secondary oath that he did not use the animal for his personal needs is unlikely and unrelated. For what might cause us to think that the custodian may have used [the deposit] for his personal needs when nothing is pointing in that direction?
Therefore, Rabbeinu Tam concludes that “I did not stretch my hand to it” means something entirely different, as we will soon see. First Tosfos wants to dispel the idea that one can require an oath by devolving even when the second oath is for something unlikely. The Mishna teaches that partners may demand an oath from each other at anytime. However, if partners or the sharecroppers split up, [their former partner or employer] cannot impose an oath upon him concerning their past relationship. If an oath devolved upon [a former partner or sharecropper] from somewhere else, an oath for all claims devolves upon [the former partner or sharecropper].
We do see that when one is obligated to swear to his litigant about a financial matter, he may be asked to swear about additional matters that are unrelated to the present claim. Rabbeinu Tam maintains that even when one is liable to swear that he was not negligent there is no reason to ask him to swear that he did not use the deposit for his personal needs. How does Rabbeinu Tam deal with the Mishna in Shavuous (45a)?
For it is only in the case of partners who divided their assets and one was obligated to swear from somewhere else that he must also swear about matters other than the original oath, via the process of devolving a non-mandatory oath via a mandatory oath, because it is the nature of partners that one rationalizes when dealing with partnership property. Since there is reason to believe that a partner might have stepped beyond the strict letter of the law when dealing with partnership assets, when we have a primary oath obligation on one of the former partners, a secondary oath devolves upon that partner to swear that he did not misappropriate any of the partnership assets. This does not contradict Rabbeinu Tam at all. When an animal is killed, the custodian must swear that it did not happen as a result of his negligence, but there is no reason to suspect him of using it for his personal needs.
If so, what is the oath “that I did not stretch my hand to it”2See Rashi below (41b) ד'ה תיתי משואל. about? The oath that “I did not stretch my hand to it”, Rabbeinu Tam explains, means that I did not eat it which is not included6For the sake of clarity, we will paint the scenery of the custodian’s oath as it happens in בית דין according to Tosfos.
A) The court: What happened to the deposited sheep.
B) Custodian: It was eaten by a lion.
C) Court: Perhaps it was a result of your negligence? Do you have witnesses to prove that it was truly an accident?
D) Custodian: No.
E) Court: You must take an oath that you were not negligent. In addition to that oath, you must also swear that you did not eat the animal and that it is not presently in your possession.
Tosfos understands that the text of the oaths cited by the Gemara are to be taken literally. When the custodian swears that “he was not negligent”, it is understood that a lion did not eat it as a result of his negligence. This does not preclude that it may still be in his possession or that he might have eaten the sheep himself. When he swears that he did not eat the animal, this too, does not preclude the possibility that the animal is presently in his possession. So too, when swearing that the animal is not in his possession, he does not preclude that he did not eat the animal himself. Rambam’s understanding of the practicality of these oaths is substantially different. See רמב"ם ibid. in the oaths that he was not negligent and that it is not presently in his domain. If the custodian ate the animal, he could swear that he was not negligent and it is not in his possession at this point in time. The oath “I did not stretch my hand to it” is needed to verify that he did not consume the animal.
a) An unpaid custodian is liable only for negligence. He is exempt for loss, theft and unavoidable accidents.
b) A paid custodian is liable for loss and theft, but exempt for unavoidable accidents.
c) A borrower is liable even for unavoidable accidents.
Rashi explained: That if he did 1 use it for his personal needs, he is a thief and even if it was destroyed by an unavoidable accident he is liable. As an a) unpaid custodian he is liable only for negligence. However, a thief is comparable to a borrower2See Rashi below (41b) ד'ה תיתי משואל. and liable even for unavoidable accidents. When an unpaid custodian uses the deposited item for his own needs, he is legally a thief and is consequently liable even for unavoidable accidents.
Even though when [the custodian/thief] returns [the deposit] to its designated place after he used it for his personal needs, he has effectively returned the stolen object and is exempt from future liability for unavoidable accidents, as we learned in HaMafkid (Below 40b), and if so, what difference does it make that he used the deposit for his personal needs, since at this point he is no longer a thief? Even so, perhaps it was damaged by accident before he returned the deposit to its place and he is liable for damages at that time. The custodian must therefore swear that he carries no additional liability as a result of misappropriating the deposited item.
But there is a difficulty with [the Gemara] at the end of Ha’umnim (below 83a), where [the Gemara] says in explanation of a verse in the passage dealing with a paid custodian (Shemos 22, 9) “if it was broken or captured, and nobody saw” he must swear in order to clear himself, the Gemara deduces, but if witnesses did see, the custodian may bring witnesses to testify in his behalf and [the custodian] is exempt from swearing. But how can the Gemara say that the custodian is unequivocally exempt, perhaps he used it for his personal needs and is liable even for unavoidable accidents because he is a thief? The witnesses testify only that the deposit was destroyed by an accident, they does not tell us that the custodian never used the deposit for his personal needs and is not liable for accidents.
We can answer: That the Gemara is saying only that [the custodian] is exempt from swearing that it was destroyed by an accident, but he must still swear that he did not use it for his personal needs.
This explanation limits the exemption in the Gemara (83a). Although the Gemara says that the custodian is exempt, we are compelled to say that he is only exempt from an oath that it was destroyed by accident, because he has witnesses who testify to that. However, he is still obligated to swear that he did not use the deposit for his personal needs. Thus, he is not completely exempt from swearing. The simple reading of the Gemara leads us to believe that the exemption is complete. Tosfos will now offer an approach to the Gemara (83a) that concurs with the simple reading.
Alternatively, one swears that he did not use the deposit for his personal needs only via the process of devolving3See הרמב"ם הל' שאלה ופקדון פ"ד ה"א who also uses the term ,מגלגלין when describing the oaths of a custodian. from the original mandatory oath wherein he states, “I was not negligent”. It is only when the custodian must swear that he was not negligent that another oath - stating that “I did not use the deposited item for my personal needs” devolves upon him. However, when there are witnesses who testify that [the deposit] was destroyed by accident, [the custodian] is completely exempt from swearing. There is no need to swear that it was destroyed by accident, since there are witnesses, and he need not swear that he did not pick it up to use it for his personal needs, because he is obligated to take that oath only when he must swear that it was destroyed by accident.
Until this point, Tosfos follows Rashi’s explanation that the oath - “I did not stretch my hand to it” means that I did not take it to use as my own and I am therefore not subject to the liabilities of a thief. Tosfos will now cite Rabbeinu Tam’s explanation of the oath “I did not stretch my hand to it”,4See note 1. which differs radically with Rashi’s explanation.
Rabbeinu Tam explains that even via the process of devolving a non-mandatory oath via a mandatory oath, one need not swear that he did not misappropriate the animal when [the animal] is dead before us.5Tosfos stresses that the animal before us is dead, because there is no need to swear that he did not consume the animal. We see that it is in front of us. We will only require an oath that he did not eat the animal when the custodian claims that it was eaten by another animal and there is no carcass to prove that it was not eaten by the custodian. For devolving a second oath is only required when the secondary oath is for something likely to have happened. The original oath proves that the animal did not die as a result of negligence. The secondary oath that he did not use the animal for his personal needs is unlikely and unrelated. For what might cause us to think that the custodian may have used [the deposit] for his personal needs when nothing is pointing in that direction?
Therefore, Rabbeinu Tam concludes that “I did not stretch my hand to it” means something entirely different, as we will soon see. First Tosfos wants to dispel the idea that one can require an oath by devolving even when the second oath is for something unlikely. The Mishna teaches that partners may demand an oath from each other at anytime. However, if partners or the sharecroppers split up, [their former partner or employer] cannot impose an oath upon him concerning their past relationship. If an oath devolved upon [a former partner or sharecropper] from somewhere else, an oath for all claims devolves upon [the former partner or sharecropper].
We do see that when one is obligated to swear to his litigant about a financial matter, he may be asked to swear about additional matters that are unrelated to the present claim. Rabbeinu Tam maintains that even when one is liable to swear that he was not negligent there is no reason to ask him to swear that he did not use the deposit for his personal needs. How does Rabbeinu Tam deal with the Mishna in Shavuous (45a)?
For it is only in the case of partners who divided their assets and one was obligated to swear from somewhere else that he must also swear about matters other than the original oath, via the process of devolving a non-mandatory oath via a mandatory oath, because it is the nature of partners that one rationalizes when dealing with partnership property. Since there is reason to believe that a partner might have stepped beyond the strict letter of the law when dealing with partnership assets, when we have a primary oath obligation on one of the former partners, a secondary oath devolves upon that partner to swear that he did not misappropriate any of the partnership assets. This does not contradict Rabbeinu Tam at all. When an animal is killed, the custodian must swear that it did not happen as a result of his negligence, but there is no reason to suspect him of using it for his personal needs.
If so, what is the oath “that I did not stretch my hand to it”2See Rashi below (41b) ד'ה תיתי משואל. about? The oath that “I did not stretch my hand to it”, Rabbeinu Tam explains, means that I did not eat it which is not included6For the sake of clarity, we will paint the scenery of the custodian’s oath as it happens in בית דין according to Tosfos.
A) The court: What happened to the deposited sheep.
B) Custodian: It was eaten by a lion.
C) Court: Perhaps it was a result of your negligence? Do you have witnesses to prove that it was truly an accident?
D) Custodian: No.
E) Court: You must take an oath that you were not negligent. In addition to that oath, you must also swear that you did not eat the animal and that it is not presently in your possession.
Tosfos understands that the text of the oaths cited by the Gemara are to be taken literally. When the custodian swears that “he was not negligent”, it is understood that a lion did not eat it as a result of his negligence. This does not preclude that it may still be in his possession or that he might have eaten the sheep himself. When he swears that he did not eat the animal, this too, does not preclude the possibility that the animal is presently in his possession. So too, when swearing that the animal is not in his possession, he does not preclude that he did not eat the animal himself. Rambam’s understanding of the practicality of these oaths is substantially different. See רמב"ם ibid. in the oaths that he was not negligent and that it is not presently in his domain. If the custodian ate the animal, he could swear that he was not negligent and it is not in his possession at this point in time. The oath “I did not stretch my hand to it” is needed to verify that he did not consume the animal.
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