QUESTION: The Gemara asks why all of the specific exclusions in the verses of Tashlumei Kefel are necessary ("Kol Hani Prati Lamah Li?"). It answers that one "Prat" is necessary to exclude Karka (i.e. one does not pay Tashlumei Kefel for stealing land), one "Prat" is necessary to exclude Avadim, and one "Prat" is necessary to exclude Shtaros.

Since Karka and Avadim are excluded from the law of Tashlumei Kefel by two special Mi'utim, why does the Gemara earlier (62b) state that the reason why Avadim are excluded is the Hekesh which compares Avadim to Karka? Even without that Hekesh, Avadim would be excluded because of the explicit "Prat" in the verse! (RASHBA)

ANSWER: The RASHBA answers that if the verse would have mentioned "Karka'os," "Avadim," and "Shtaros" explicitly when teaching the exceptions from the law of Tashlumei Kefel, then indeed there would have been no need for a Hekesh of Avadim to Karka'os. However, they are not written explicitly in the verse. Rather, the exclusions of Karka'os and Shtaros are derived through Mi'utim: one "Prat" teaches that only something that is movable ("Davar ha'Metaltel") is included in Tashlumei Kefel, thus excluding land which is not movable. Another "Prat" teaches that only something that itself has monetary value ("Gufo Mamon") is included in Tashlumei Kefel, thus excluding Shtaros which have no intrinsic value of their own. How, though, are Avadim excluded? Avadim are movable and they do have intrinsic monetary value, and thus they should be included in Tashlumei Kefel! Therefore, it is necessary to have a Hekesh which compares Avadim to Karka; without the Hekesh it would not be known that the third "Prat" is intended to exclude Avadim.

However, according to this explanation, the opposite question arises. If it is known that Avadim are excluded from Tashlumei Kefel because of the Hekesh to Karka, why is a special Mi'ut in the verse necessary at all for Avadim? (RASHBA, TOSFOS)

1. The RASHBA answers that since Karka is immobile while and Avadim are mobile, one might have thought that the Hekesh should not apply. Therefore, the verse adds a Mi'ut to exclude Avadim from Tashlumei Kefel.

2. The Rashba answers further that since the verse also teaches a Ribuy (words to include an additional category in the laws of Tashlumei Kefel) and it might mean that all items are to be included, it was necessary to have a special Mi'ut for each category of items (Karka'os, Avadim, Shtaros). This is also the answer of TOSFOS (DH v'Chad l'Mi'utei).

The TOSFOS YOM TOV (Bava Metzia 4:9) writes that this explains an oddity in the wording of the Mishnah there, where it lists, "Avadim, Shtaros, and Karka'os," when it should have listed instead, "Avadim, Karka'os, and Shtaros" (placing Avadim together with Karka'os, since a Hekesh compares them). The reason why the Mishnah separates Avadim from Karka'os is to teach that Avadim are excluded on their own accord, by their own special Mi'ut in the verse, and not by virtue of their Hekesh to Karka'os.

OPINIONS: The Gemara teaches that the word "Salmah" ("garment") in the verse (Shemos 22:8) teaches that one does not pay Tashlumei Kefel for an item that is a "Davar she'Eino Mesuyam." What does the Gemara mean by a "Davar she'Eino Mesuyam"?

(a) RASHI explains that a "Davar she'Eino Mesuyam" is an item which has no identifiable feature ("Siman") for the owner to use as proof that the item is his. When a Ganav steals such an item, he is not required to pay Tashlumei Kefel.

TOSFOS challenges this explanation by asking what difference should it make for the law of Tashlumei Kefel whether or not the item has an identifiable feature? What logical reason is there to say that the Ganav should not pay Kefel?

The ME'IRI explains that Rashi means that the verse refers to a person who was watching a lost item that he found, who then claims (when the owner comes to reclaim his item) that the item was stolen from him ("To'en Ta'anas Ganav"). Although the continuation of the verse obligates such a person to pay Kefel ("Al Kol Aveidah"), he pays Kefel only when the lost item had a "Siman" by which the owner could have otherwise reclaimed it. The logic behind this is that a person who finds an item which has no "Siman" has no obligation to return the item to its owner, and thus he does not have the status of a "Shomer Aveidah," and, consequently, the law of "To'en Ta'anas Ganav" does not apply to him (CHIDUSHEI HA'RAN, Bava Metzia 25a, cited by YOSEF DA'AS).

(b) TOSFOS (in the name of the RIVA) and other Rishonim explain that a "Davar she'Eino Mesuyam" is an item which has no quantifiable volume, weight, or other measure. The Mishnah in Shevuos (42b) teaches that one makes a Shevu'ah of "Modeh b'Miktzas" only when one admits partial liability for an item that is measurable. The Gemara here derives from the verse that if one claims from his friend, "I gave to you a house full [of items to watch]," and his friend responds, "What you left here is yours to take," without admitting to owing a specific measure or amount, no Shevu'ah of "Modeh b'Miktzas" is made. If the defendant claims that whatever was given to him was stolen and then he is found to be the thief, he does not pay Kefel. (That is, the verse refers to both the Halachah of Shevu'ah for "Modeh b'Miktzas" and the Halachah of Kefel. See RASHBA.) This is in contrast to a case in which the claimant says, "I gave you a house full [of items to watch] up to the window," and the defendant says, "[The items only reached] up to the pipe [below the level of the window]," which is a case of a "Davar Mesuyam" in which the defendant must make a Shevu'ah of "Modeh b'Miktzas." The RA'AVAD (cited by the Shitah Mekubetzes), however, writes that "Salmah" in the verse is a Mi'ut only with regard to the Halachah of a Shevu'ah of "Modeh b'Miktzas" but not with regard to the Halachah of Kefel.

The RASHBA adds that the verse excludes from the law of Kefel a Shomer who is "To'en Ta'anas Ganav" for an object that has no measure, because a Shomer does not make a Shevu'ah for such an item. In contrast, an ordinary Ganav who steals an item that has no measure does pay Kefel, since his obligation to pay does not depend on a Shevu'ah (unlike a Shomer who is "To'en Ta'anas Ganav").

(c) TOSFOS and the RASHBA cite another explanation. They explain that "Davar she'Eino Mesuyam" refers to an item that is not a complete item. For example, if a Ganav steals half of a fruit or half of a nut, he has no obligation of Tashlumei Kefel. According to this explanation, the Mi'ut of the verse of a "Davar she'Eino Mesuyam" from the law of Tashlumei Kefel refers not only to "To'en Ta'anas Ganav" but to an ordinary case of Geneivah as well.

REBBI AKIVA EIGER (in GILYON HA'SHAS here) points out that Tosfos in Shabbos (93b, DH Amai) states that the law of Tashlumei Kefel applies to any item of any size, regardless of whether the item is complete or incomplete.

RAV ELCHANAN WASSERMAN Hy'd (in Kovetz Shi'urim, Bava Metzia) explains that Tosfos there refers to a specific case of partners who stole an ox. Each partner is obligated to pay Kefel for half of the ox. Even Tosfos here would agree in such a case that one pays Kefel for half of an item (half of the ox), since a whole item was stolen (the ox); it is just that each Ganav is held accountable only for half of it since they stole it together. In such a case, the Ganavim are not exempt from Kefel.

(d) The RAMBAN in Bava Metzia (57b, DH Ha d'Tanu Rabanan) explains that a "Davar she'Eino Mesuyam" refers to a half of a Kli which is not worth two Ma'os of Kesef. The verse excludes such an item from the law of Tashlumei Kefel when a Shomer makes a claim of "Ta'anas Ganav." This is because the Shevu'ah made by a Shomer applies only to a Kli that is worth at least two Ma'os of Kesef. (This applies when the Kli is incomplete. For a complete Kli, a Shomer makes a Shevu'ah even when it is worth less than two Ma'os.)

QUESTION: The Gemara seeks the source for the Halachah that a Shomer -- who stole an item that was deposited with him for safekeeping and claims falsely that the item was stolen from him ("To'en Ta'anas Ganav") -- must pay Tashlumei Kefel only when he makes a Shevu'ah that the item was stolen from him. The Gemara quotes the verse, "[If the thief is not found,] the owner of the house (the Shomer) shall be brought to the judges [that he did not misuse his friend's possession]" (Shemos 22:7). The Gemara asks that perhaps this means that he approaches the court not for the purpose of making a Shevu'ah, but for the purpose of "Din." RASHI (DH O Eino Ela l'Din) explains that this means that the Shomer is brought to court by the owner of the item to make him pay (and not to make him swear), since a Shomer Chinam (one who does not receive payment for watching the item) must pay when he claims that the item was stolen.

The words of Rashi imply that the initial assumption of the Gemara is that a Shomer Chinam cannot exempt himself from paying by making a claim that the item was stolen. If he claims that the item was stolen, he must pay the Keren (principal).

According to the Gemara's assumption at this stage (that a Shomer pays the Keren without a Shevu'ah), when is there ever a case of a Shomer who pays Kefel for making a claim that the item was stolen? If he pays only the Keren, he does not pay Kefel, and yet the Gemara earlier teaches that everyone agrees that a Shomer who makes a claim of Geneivah must pay Kefel.

(a) The MAHARSHAL and MAHARAM write that Rashi's intention is not that the Shomer must pay Keren now when he claims that the item was stolen. Rather, Rashi means that a Shomer Chinam who claims a "Ta'anas Ganav" is exempt from paying altogether, and if witnesses come later and testify that the Shomer himself stole the item, he must pay Kefel even without a Shevu'ah. This is the intention of Rashi here, and it is also what Rashi writes in Bava Metzia (41b).

(b) The MAHARSHA does not accept this answer because Rashi's use of the word, "l'Pira'on" ("for compensatory payment"), implies that he refers to a Shomer who is paying the Keren. Instead, the Maharsha explains that Rashi's intention is that the Shomer Chinam indeed pays the Keren now and, nevertheless, if it is discovered later that he is the thief, he must pay Kefel because of the Gezeiras ha'Kasuv.