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BAVA KAMA 57

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BRIEF INSIGHT AN ARMED BANDIT   Rebbi Yosef holds that an armed bandit is a Ganav and if a Shomer Aveidah claims it was stolen by an armed bandit he is Patur and if it is found in his hands he pays Kefel. Why is it imperative for Rebbi Yosef to hold that an armed bandit is a Ganav? Even if he holds that an armed bandit is a Gazlan it is still possible for a Shomer Aveidah to pay Kefel even though he is a Shomer Sachar according to Rebbi Yosef if he claims that it was stolen by way of an Ones, for example he guarded it properly by placing in the ground and it was stolen anyway. If he claims that it was stolen with an Ones and it was found in his hands the Shomer Aveidah pays Kefel. The Ri answers that a Shomer Sachar is obligated to pay for a Geneivah even if it was stolen with an Ones. Although he is Patur for an armed robbery that is because it is regarded as a Shevuyah (captive) but regarding a Geneivah he is obligated to pay even if it was stolen b'Ones. The reason is that since the Torah obligates a Shomer Sachar to pay for a Geneivah even though it is close to being an Ones he is Chayav for every Geneivah even if it is a complete Ones. QUICK HALACHAH A BURNED MASHKON   If someone borrows from his friend an animal or movable objects and an Ones occurs and it dies or breaks its bones or was captured he is Chayav. However, he is only Chayav if the Ones was as a result of the Sho'El, but if the Ones was a result of the lender he is Patur. Therefore, someone who has a Mashkon with a Nochri and he lends it to his friend so that his friend can borrow money on the Mashkon and it is consumed in a fire he is Patur because it would have been consumed in the fire anyway even if he had not borrowed it. (Shulchan Aruch CM 340:1)

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