QUESTIONS: The Beraisa derives from the verse, "When a man gives to his friend money or utensils to guard, and they are stolen from the house of the person, if the thief is found he shall pay double" (Shemos 22:6), that that the watchman is liable only if he was instructed "to guard" it, but not if he was instructed to distribute it to the poor.

RASHI (DH Lishmor) writes that the Shomer is not liable for negligence if the money was entrusted to him in order to distribute it to charity, since the money was not given to him "Lishmor," "to guard," but rather to distribute. As soon as the Mafkid tells him to distribute the money, it no longer belongs to the Mafkid. Consequently, no one can demand the money back from the Shomer. The poor people also cannot claim the money, because to the Shomer can reply to each poor person that he was not intending to give the money to him but rather to other poor people.

The Gemara later relates an incident in which a wallet of charity money came to Pumbedisa. Rav Yosef, the Gabai of Tzedakah funds, deposited it with a guardian. The guardian was negligent with it and as a result thieves stole it. Rav Yosef ruled that the Shomer must pay for the stolen wallet. Abaye challenged Rav Yosef's ruling from the Beraisa. Rav Yosef replied that a fixed amount of money was allocated to the poor people of Pumbedisa, and thus the verse "Lishmor" indeed applied to them. Rashi (DH Kayitz) explains that since there was a fixed stipend for every poor person, the money was considered "Mamon she'Yesh Lo Tov'im" -- "money that has claimants," and thus the condition of "Lishmor" applied. The individual poor people thus could claim their money from the Shomer, since the money was being watched for them.

Two questions may be asked on Rashi's explanation:

Rashi's introduction of the concept, "Mamon she'Yesh Lo Tov'im," is difficult to understand. If the money indeed was "Mamon she'Yesh Lo Tov'im," why is a special verse of "Lishmor" needed to teach that the poor people may claim their money? Similarly,, if the money would have no claimants, no verse would be needed to teach that the Shomer is liable, because there is no one to whom he would be liable to pay.

Moreover, the Gemara later (117b) relates that a wallet full of money that was collected for the redemption of captives was deposited with a Shomer. Bandits came and threatened to kill him. The Shomer took the wallet and gave it to the bandits. Rabah ruled that the Shomer was not required to reimburse the charity fund. Abaye challenged Rabah's ruling: since the Shomer saved his own life with other people's money, he should be required to return the money to its owners. Rabah replied that there was no greater redemption of captives than what the Shomer in fact did with the money. The Shomer himself was considered a captive, and he therefore was entitled to redeem himself with the money since the money had been collected for that purpose.

Why did Rabah argue that the Shomer's use of the money was the greatest form of redemption of captives? He should have said simply that the Shomer was exempt from repaying the money to the Tzedakah fund because the money was "Mamon she'Ein Lo Tov'im" -- there was no individual, specific captive who could claim that the money was supposed to be allotted for him.

ANSWER: The MACHANEH EFRAIM (Hilchos Shomrim 16, DH v'Nireh and DH v'Hashta) prefaces his answer by quoting the words of Rashi in Gitin. The Mishnah there (54b) states that if a Kohen disqualifies someone's Korban by making it Pigul (he sacrifices it with intent to eat it at the wrong time), the Kohen must compensate the owner with the value of the animal. Rashi there (53a, DH Chayavin) writes that even if the Korban was a Nedavah (a free-will offering) which the owner is not obligated to replace in the event that the specific animal he designated cannot be offered, the Kohen still must pay because the owner wants to bring a Korban as a gift to Hash-m and is upset that the animal he designated cannot be offered.

The Machaneh Efraim writes that the same reasoning applies in the case of the Gemara here. Even though the poor people cannot collect the money that was lost by the negligence of the Shomer, nevertheless the donors of the money have a claim against the Shomer. They wanted the money which they donated to reach a needy recipient. Therefore, if not for the Derashah of "Lishmor," which implies that the Shomer is liable only when he was instructed "to guard" the money but not when he was instructed to distribute it to the needy, the negligent Shomer would have to replace the lost charity funds.

This approach also answers the question from the Gemara later (117b). Although there are no potential captives who may demand the money back from the Shomer, nevertheless the donors could have demanded that he reimburse them if not for the fact that the Shomer used their money for the purpose of the redemption of captives (i.e. himself).

The Machaneh Efraim adds that the Derashah of "Lishmor" may not provide sufficient grounds to exempt the Shomer in this case. Perhaps the Derashah of "Lishmor" exempts the Shomer only when the Shomer was negligent in guarding the deposit. In the case of the Gemara later, where the Shomer actively handed the money to the bandits, he would have been liable if not for the fact that he was redeeming himself from captivity with the money. (D.Bloom)

QUESTION: The Mishnah states that if someone stole wood and made utensils from it, or he stole wool and made clothes from it, he must repay according to its value at the time of the theft. RASHI (DH Meshalem) explains that this means that he pays the value of the wood or the wool that he stole, and he does not need to return the utensils or clothing, because he acquired them through the "Shinuy" ("change") that he made in the raw material.

The Mishnah continues and teaches that if someone stole a pregnant cow and it gave birth, or he stole a sheep with a full fleece of wool and he sheared the wool, he must pay the owner the value of a pregnant cow before birth or the value of a sheep with a full fleece. Rashi (DH u'Demei) explains that after he pays the value of the object that he stole, the extra amount that the calf or the wool is worth now belongs to the thief because he acquired it through as a result of the Shinuy.

The NIMUKEI YOSEF (beginning of 33b of the pages of the Rif) writes that when the Mishnah states that he must pay the value of the animal before birth or before it was sheared, it refers to the embryo in the womb or the fleece when it was on the animal. The Mishnah does not refer to the animal itself; the act of giving birth or being sheared is not a Shinuy in the animal itself. The animal is no different from an animal which excretes dung; such an act certainly is not considered a Shinuy. What has changed is that the calf was previously an embryo and is now a live calf, or that the wool was part of an animal and now it is wool that is ready to be made into clothing. The Nimukei Yosef writes that this is also the intent of Rashi. (See Insights to 96b.)

The Mishnah continues that if one stole a cow and it became pregnant while in the possession of the thief, or he stole a sheep that later grew wool while in his possession, the thief must pay the value of the object at the time of the theft. According to the Nimukei Yosef's ruling in the previous case of the Mishnah, it seems that the thief must return the animal. Since the Nimukei Yosef maintains that giving birth is not considered a Shinuy, becoming pregnant also should not be considered a Shinuy.

If these two cases indeed are similar, and in both cases the thief must return the animal in its present state, but he may keep the calf or wool and pay merely its value at the time of the theft, why does the Mishnah express them differently? In the second case, the Mishnah states that the thief must return the value of the animal "about to give birth" or "about to be sheared." In the last case, however, the Mishnah states merely that he must pay according to the value at the time of the theft. This is also the term used in the first case in the Mishnah (which discusses wood he turned into utensils). Why do the first and third cases in the Mishnah both state "Meshalem k'She'as ha'Gezeilah" -- "he pays like the [value at the] time it was stolen," while the second case says he pays "k'Parah ha'Omedes Leiled, "like a cow about to give birth?" (See TOSFOS YOM TOV, DH Gozel.)

ANSWER: The PNEI YEHOSHUA (95a, on Rashi DH Gezeilah) answers that the Mishnah is teaching a novel leniency in the second case. The leniency is apparent when the animal itself lost value after the theft. The Gemara (94a) states that according to Rebbi Shimon ben Elazar, if the animal became weaker after it was stolen, the thief still may say to the owners, "Harei Shelcha Lefanecha" -- "your stolen object is in front of you," and the owner is obligated to receive it as is. (The Halachah follows Rebbi Shimon ben Elazar.)

One might have thought that "Harei Shelcha Lefanecha" is a valid claim only when one returns every part of the animal. In the middle case of the Mishnah, the thief does not return everything he stole. He keeps the baby or the wool, and returns only their lower value at the time of the theft. Accordingly, one might have thought that the thief is not given two leniencies. The Mishnah therefore says that he must return the baby or wool only according to their value before birth or shearing, and it implies that this law applies whether or not the animal depreciated in value. This teaches that not only may he return a weaker animal from the one that he stole, but he also may keep the baby or wool, and is required to return only the lower rate of the value at the time of the theft. (D. Bloom)