Shiur Supplement - Daf 95a

DAF 95a

A. Eshkechan le-chiyuv liftor minalan [line 18]  Until this point in the gemara, we have dealt with the liability of the sho'el. From the pasuk itself, we know only that the sho'el is obligated to pay if the animal is injured or if it dies. Thus, it was necessary to examine the source of his liability for theft, loss and capture by armed robbers.

            As mentioned in our mishna, however, if the ba'al enters the employ of the sho'el either BEFORE the loan takes place or at the SAME time, the sho'el is exempt from all liability - no matter what happens to the object.  It is clear from the Torah that this applies in case of death or injury.  How do we know that the sho'el is EXEMPT in cases of theft, loss and capture by armed robbers?

            Rashi [s.v. Eshkechan le-chiyuv] explains that the gemara's query relates ONLY to geneive ve-aveida (i.e., there is no question of the sho'el exemption if the object was captured by armed robbers).  This makes sense based on the gemara above which learns that a sho'el is liable for capture by armed robbers (if the ba'al was not in the employ of the sho'el) from the word "o" (ve-nishbar O met).  It is as if this case was specifically mentioned in the Torah - both in terms of the sho'el's liability and his exemption.

B. Ve-Khi teima neilif mi-shvura u-meita... she-ken oness hu [lines 19-20]  The sho'el is liable for oness, even though he is not at all to blame for what happened. With regards to geneiva ve-aveida, however, although the sho'el was not negligent, he could perhaps have avoided the occurrence had he been more vigilant.  Thus, we may still require him to pay in the latter case, DESPITE the fact that the ba'al is in his employ.

            In order to understand the next few lines of the gemara, it is important to keep the following in mind:

1. We are inclined to be more lenient with a shomer sakhar than with a sho'el.

2. We are more inclined to require the shomer to pay in a case of geneiva or aveida than under the circumstance of oness.

C. Dayo lavo min ha-din lihyot ka-nidon [lines 31-34]  The principle of "dayo" is mentioned in a beraita (Bava Kamma 25a, Bava Batra 111a, Zevachim 69b) and can be defined as follows: When comparing two cases by means of a kal ve-chomer, one can apply no more to the inferred case than is implied in the original case. 

            For example, with regards to Miriam (Bamidbar 12:14) Hashem says to Moshe: "If her father had spat in her face, she would require confinement for SEVEN days; (how much more so) now (that I, Hashem, have given her leprosy) should she be removed from the camp for SEVEN days."

            Hashem does not say: "If her father had spat in her face, she would require confinement for SEVEN days; (how much more so) now (that I, Hashem, have given her leprosy) should she be removed from the camp for FOURTEEN days."

            The kal ve-chomer (inference from a mild case to a more extreme scenario) permits inference of only that which is included in the former and no more.