[106a - 44 lines; 106b - 47 lines]
1)[line 7]"ולקח בעליו ולא ישלם""V'LAKACH BE'ALAV V'LO YESHALEM"- "[An oath of HaSh-m shall be between the two of them...] and the owner shall accept it and he shall not pay" (Shemos 22:10).
2)[line 15]והאלהיםVEHA'ELOKIM- Indeed! (using "ha'Elokim," which is an oath, for emphasis)
3)[line 21]דנשבע חוץ לבית דיןD'NISHBA CHUTZ L'VEIS DIN- he made a Shevu'ah outside of Beis Din; it was not a judicially-mandated Shevu'ah
4)[line 22]והעדים מעידים אותו שגנבוVEHA'EDIM ME'IDIM OSO SHE'GENAVO - and the witnesses testify about him that he stole it (TO'EN TA'ANAS GANAV)
(a)The Torah establishes the degree of responsibility that a Shomer has when he accepts upon himself to guard his friend's object and he does not specify any other acceptance of responsibility at the time the object is given to him. The Torah divides the degrees of responsibility into four categories of Shomrim: Shomer Chinam, Shomer Sachar, Socher, and Sho'el - see Background to Bava Kama 104:6.
(b)A Shomer Chinam is liable for damages only in cases of Peshi'ah (negligence), but not in cases of theft or loss, and certainly not in a case of Ones (an unavoidable accident). When the Shomer Chinam claims that the object was stolen or lost or that an Ones occurred, he must a three-fold oath:
1.that he was not negligent (Poshe'a) in guarding the object,
2.that he did not send forth his hand to use the object without permission,
3.that the object is not in his possession. Once he makes this Shevu'ah, he is exempt from paying the owner for the object.
(c)If the Shomer claimed that the object was lost or that an Ones happened and he made a Shevu'ah as mentioned above, and then witnesses came and testified that he himself stole the object and that the object is still in his possession, he is obligated to return the object to its owner (if he made the Shevu'ah in Beis Din after the Beis Din required that he make the abovementioned oath, there is an opinion that maintains that he is exempt from paying, since he acquired the object by making a Shevu'ah; see Insights). If, after making a Shevu'ah, the Shomer admitted that he stole the item (whether he admits before witnesses come or after witnesses come), he must pay the principal of the object that he stole, and he must add to it a Chomesh, an additional fifth (of the ensuing total, or a quarter of the original value), and he must bring a Korban Asham Gezeilos. This is called "To'en Ta'anas Avad," or "To'en Ta'anas Ones."
(d)If the Shomer claimed that the object was stolen and he exempted himself from paying for it by making the three Shevu'os mentioned above, and then witnesses came and testified that he himself stole it, the Shomer is obligated to pay Kefel (double the value of the object), for the Torah gives him the status of a Ganav (which is what he claimed happened to the object), and not just the status of a Gazlan (who does not pay Kefel). This is called "To'en Ta'anas Ganav." If he admitted on his own before witnesses came, he must pay the principle, Chomesh, and bring a Korban Asham, and he is exempt from paying Kefel, since Kefel is a Kenas (penalty) and one who admits to the Chiyuv of a Kenas is exempt from paying it (see Background to Bava Kama 14:20). If he admitted after witnesses came, he must pay Kefel (since he made a claim that the item was stolen, "To'en Ta'anas Ganav"), and he must bring a Korban Asham, but he is exempt from paying a Chomesh because it is included in the Kefel. (This is according to the Chachamim, Bava Kama 65b; there is one opinion that says that under certain circumstances he also pays a Chomesh, and there is another opinion that says that the Kefel even exempts him from bringing the Korban Asham.)
(e)One who is "To'en Ta'anas Ganav" with regard to an animal that was entrusted with him, and then he slaughtered or sold it, he is obligated to pay Arba'ah v'Chamishah, like a Ganav who stole an animal and slaughtered or sold it (Bava Kama 106b). Similarly, one who found a lost object (Aveidah) and is guarding it, and then claims that it was stolen ("To'en Ta'anas Ganav b'Aveidah") is obligated to pay Kefel.
5)[line 25]מיהו שינויא דחיקא לא משנינן לךMIHU SHINUYA DECHIKA LO MESHANINAN LACH- but I will not answer you with forced answers
6)[line 26]בקפץB'KAFATZ- he jumped [and made an oath without having been told to do so]
7)[line 27]משכוני נפשך אדרב למה לך?MASHCHUNI NAFSHACH AD'RAV, LAMAH LACH?- Why do you need to collateralize yourself for Rav (to stand in his place and defend his opinion)?
8)[line 28]לכל הנשבעין שבתורה נשבעין ולא משלמיןKOL HA'NISHBA'IN SHEBA'TORAH NISHBA'IN V'LO MESHALMIN
All Shevu'os d'Oraisa, oaths of Torah origin, involve making a Shevu'ah to exempt oneself from payment or liability, and not making a Shevu'ah to extract payment from someone. This is derived from the verse, "Shevu'as HaSh-m Tiheyeh Bein Sheneihem... v'Lakach Be'alav v'Lo Yeshalem" - "An oath of HaSh-m shall be between the two of them... and the owner shall accept it and he shall not pay" (Shemos 22:10).
9)[line 30]השביע עליו חמשה פעמיםHISHBI'A ALAV CHAMISHAH PE'AMIM- he was enjoined to make an oath five times
10)[line 34]הוא מותיב לה והוא מפרק להHU MOSIV LAH, V'HU MEFAREK LAH- he asked the question and he himself answered it
11)[line 34]לצדדין קתניLI'TZEDADIN KETANI- the two statements are dealing with different cases
12)[line 37]משלם תשלומי כפל ואשםMESHALEM TASHLUMEI KEFEL V'ASHAM- he pays Tashlumei Kefel, the double payment, for stealing, and he must bring a Korban Asham for making a false oath and admitting it. See Background to Bava Kama 103:13.
106b----------------------------------------106b
13)[line 2]אמטו להכיAMATU L'HACHI- because of this
14a)[line 9]הטוען טענת גנבTO'EN TA'ANAS GANAV- see above, entry #4
b)[line 10]תשלומי כפלTASHLUM KEFEL- see Background to Bava Kama 84:28
c)[line 11]תשלומי ארבעה וחמשהTASHLUM ARBA'AH V'CHAMISHAH (TASHLUMEI ARBA'AH VA'CHAMISHAH)- see Background to Bava Kama 84:29
15)[line 20]היקישא היא ואין משיבין על היקישאHEIKEISHA HI V'EIN MESHIVIN AL HEIKEISHA (HEKESH/EIN MESHIVIN AL HA'HEKESH)
(a)One of the methods that Chazal use for extracting the Halachah from the verses of the Torah is Hekesh, in which two subjects that are mentioned in a verse are compared. If there are a few possible Halachos that the Hekesh teaches, we learn them all ("Ein Hekesh l'Mechtzah"). We do not say that it teaches us only one or two of the Halachos (unless we have an explicit teaching that excludes a specific Halachah).
(b)Normal questions that can invalidate a Kal va'Chomer (see Background to Bava Kama 25:1) or a Gezeirah Shavah (see Background to Bava Kama 25:19) will not invalidate a Hekesh ("Ein Meshivin Al ha'Hekesh").
16)[line 21]הניחא למאן דאמר חד בגנב וחד בטוען טענת גנבHANICHA L'MAN D'AMAR CHAD B'GANAV V'CHAD B'TO'EN TA'ANAS GANAV- this answer suffices for the opinion that maintains that one verse is referring to a Ganav, and one verse is referring to one who is To'en Ta'anas Ganav (see above, entry #4), and thus there is a Hekesh between Ganav and To'en Ta'anas Ganav. These two verses are Shemos 22:6 and 22:7 - "If a man gives to his friend money or utensils to guard, and they are stolen from the house of the person, then if the thief is found, he shall pay double. If the thief is not found, the owner of the house shall be brought to the judges to swear that he did not misuse (lit. send his hand upon) his friend's possession."
17a)[line 23]"אם ימצא הגנב""IM YIMATZEI HA'GANAV"- "[If a man gives to his friend money or utensils to guard, and they are stolen from the house of the person, then] if the thief is found, [he shall pay double]" (Shemos 22:6).
b)[line 23]"ואם לא ימצא""IM LO YIMATZEI"- "If the thief is not found, [the owner of the house shall be brought to the judges to swear that he did not misuse (lit. send his hand upon) his friend's possession]" (Shemos 22:7).
18a)[line 28]נבילהNEVEILAH
A Neveilah is a carcass of an animal that died without a Halachic slaughtering. The Torah states, "You shall not eat anything that dies by itself (Neveilah). You shall give it to the stranger who is in your gates, that he may eat it, or you may sell it to a Nochri, for you are a holy people to HaSh-m, your El-okim" (Devarim 14:21). The flesh of a Neveilah is prohibited to be eaten, and a k'Zayis or more of a Neveilah makes an object Tamei through Maga (contact) and Masa (carrying).
b)[line 28]טריפהTEREIFAH- A Tereifah is an animal that has acquired or was born with a fatal defect that will result in its death within a year. (There are some who maintain that a Tereifah can live for more than a year - see Chulin 42a-b.)
19)[line 28]שחיטה שאינה ראויה שמה שחיטהSHECHITAH SHE'EINAH RE'UYAH SHEMAH SHECHITAH
(a)A proper Shechitah (ritual slaughter) that does not permit the animal to be eaten is referred to as a Shechitah she'Einah Re'uyah. (A Shechitah that was not performed properly is not a Shechitah she'Einah Re'uyah. It is not a Shechitah at all.)
(b)There is a Machlokes Tana'im whether a Shechitah that does not permit the animal to be eaten has the title of "Shechitah" (for various Halachic purposes other than for eating, such as to obligate a Ganav - who slaughters an animal that is found to be a Tereifah - to pay Arba'ah v'Chamishah).
20)[line 29]בבן פקועהBEN PEKU'AH- an animal that is taken out alive from its slaughtered mother's womb. There is a Machlokes Tana'im whether such an animal needs Shechitah in order to be eaten, or whether the Shechitah of its mother is considered a valid Shechitah for it as well (even though it actually dies much later).
21)[line 30]צא תן לוTZEI TEN LO- if the Beis Din said, "Go give him (pay him back)"
22)[line 31]כיון דפסקיה למילתיהKEIVAN D'PASKEI L'MILSEI- since they passed his verdict. By commanding him to pay back the stolen animal, this constitutes the Gemar Din (Shitah Mekubetzes 68b); once his verdict has been formally issued, if he continues to refuse to give back the animal he is considered a Gazlan and not a Ganav, and a Gazlan does not pay Arba'ah v'Chamishah for slaughtering the stolen animal (see Background to Bava Kama 93:19)
23)[line 33]כל כמה דלא פסיקא ליה מילתאKOL KAMAH D'LO PESIKA LEI MILSA- as long as his verdict (the Gemar Din) has not been passed
24)[line 34]בשותף שטבח שלא מדעת חבירוB'SHUTAF SHE'TAVACH SHE'LO MI'DA'AS CHAVEIRO- a partner [in the stealing of the animal] who slaughtered the animal without his fellow partner's knowledge. When two partners steal an animal together and one of them then slaughters the animal without the other partner's knowledge, the one who slaughtered the animal is exempt from paying Arba'ah v'Chamishah, as is derived from verses (see Bava Kama 78b).
25)[line 35]חדא מתרי ותלתא נקטCHADA MI'TREI U'TELASA NAKAT- he chose one [answer] out of two or three [answers]
26)[line 37]"...על כל אבדה אשר יאמר [כי הוא זה עד האלקים יבא דבר שניהם אשר ירשיען אלקים ישלם שנים לרעהו]""... AL KOL AVEIDAH ASHER YOMAR [KI HU ZEH, AD HA'EL-OKIM YAVO DEVAR SHENEIHEM; ASHER YARSHI'UN EL-OKIM YESHALEM SHENAYIM L'RE'EIHU]"- "...or for any kind of lost thing, about which he will say [that this is it, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double to his neighbor]" (Shemos 22:8).
27)[line 38]"כי יתן איש""KI YITEN ISH"- "If a man gives [to his friend money or utensils to guard, and they are stolen from the house of the person, then if the thief is found, [he shall pay double]" (Shemos 22:6).
28)[line 44]אבידה קא אתיא מכח בן דעתAVEIDAH KA ASYA MI'KO'ACH BEN DA'AS- a lost object came to his hands from the authority of a person with intelligence (i.e. an adult); that is, the item was previously in the possession of a person with intelligence, in contrast to an item that was previously in the possession of a Katan, who is not a Ben Da'as (Ra'avad)
29)[line 46]עד שיכפור במקצת ויודה במקצתAD SHE'YICHPOR B'MIKTZAS V'YODEH V'MIKTZAS - until he denies part and admits to part (MODEH B'MIKTZAS HA'TA'ANAH)
If a person admits that he owes part of a claim, the Torah suspects that the person wants to temporarily postpone part of the payment but does not have the audacity to completely deny the claim. He is therefore required to take an oath, mid'Oraisa, on the part he denies (Shemos 22:8), or otherwise he must pay the entire amount being claimed.
30)[last line]"כי הוא זה""KI HU ZEH"- see above, entry #26