Weekly DAFootnotes
Bava Metzia 44-50
Issue #24
21-27 Tevet 5762 / 5-11 Jan. 2002 
By Rabbi Mendel Weinbach, Dean, Ohr Somayach Institutions
=====================================

TWO SORTS OF STATEMENTS

A shomer - one charged with responsibility for guarding someone 
else's goods, whether paid for his services or not - is 
forbidden to make use of those goods for himself, and certainly 
cannot appropriate any part of them.  If he does so he is 
considered a thief with total responsibility to return those 
goods to their owner, and he is not entitled to the exemption 
from responsibility which the Torah gives a non-offending 
shomer in circumstances where he was not negligent in his 
guarding duties.

But what if the shomer himself did not actually appropriate the 
goods but merely intended to do so, or did so through an agent?

Key to answering this question are the passages in the laws of 
a shomer which speak of "his not putting his hand on his 
neighbor's goods" and of "all 'dvar' (manner) of trespass." 
(Shmot 22:7-8)

The Sages of Beit Shammai contend that even if the shomer 
merely declared before witnesses that he intends to appropriate 
the goods, he is already guilty.  This is based on the term 
"dvar" which, although in the context of this passage means 
"manner," also means "statement" and indicates that making such 
a statement is equivalent to the act itself.

The Sages of Beit Hillel disagree because they interpret the 
earlier description of "putting his hand" on the owner's goods 
as his actual appropriation and not as merely declaring his 
intention to do so.  Their interpretation of "dvar" also 
focuses on a statement, but it is the statement which the 
shomer makes to his servant or agent as an order to do the 
"putting of his hand" for him.  Although agency is generally 
not applicable when it comes to sinning, the guilt being 
entirely that of the agent, this law of a dishonest shomer is 
cited in the gemara (Kiddushin 42b) as one of the few 
exceptions, and the shomer is held responsible for the agent's 
action as if he had done it himself.

An observation, incidentally, has been made that while Rashi 
here defines intention in the opinion of Beit Shammai as making 
a statement, in his commentary on the aforementioned gemara in 
Kiddushin, Rashi writes that "dvar" can mean even just thinking 
about it.

Bava Metzia 44a


KEEPING YOUR WORD

Keeping your word is unquestionably a high moral value.  In our 
gemara we find a discussion of how much this value demands of a 
person where a loss is involved.

The Torah source for keeping your word is the passage which 
speaks of maintaining honest weights and measures.  After 
commanding us to maintain honest scales, the Torah instructs us 
to have an honest "aifah" weight and an honest "hin." (Vayikra 
19:36)  As Rashi explains, the aifah contains 72 "lug" units 
and the hin 12.  If the larger weight is already mentioned, 
there seems no need to mention the need for honesty in regard 
to the smaller one.  Rabbi Yossi bar Yehuda therefore concludes 
that the word "hin" should really be read as "hain" which means 
"yes."  This is the Torah's signal that both your "yes" and 
your "no" in dealing with others should be honest.

The application of this principle is, however, a matter of 
dispute.  Rabbi Yochanan applied it to a moral responsibility, 
though not a legally enforceable one, to go through with a 
business deal even though the market price of the merchandise 
changed in your disfavor since you promised to buy or sell.  
The Sage Rav disagrees that there is any moral obligation to 
suffer a loss by going through with such a deal.  His 
interpretation of your "yes" being honest is explained by the 
Sage Abaye as a warning not to make a commitment which you know 
in your heart you have no intention of honoring.

Rabbi Yochanan's position is the one codified as law (Shulchan 
Aruch Choshen Mishpat 204:7), but he also set a limit on the 
moral obligation of keeping your word in regard to a gift.  
Should you promise a gift to someone and it is of no great 
value, you are morally obligated to give it to him because he 
truly expected you to fulfill your promise.  But if the gift in 
question is of considerable value, there is no immorality in 
reneging, because there was no serious expectation on the part 
of the one to whom it was promised.

One final application of this principle is in regard to payment 
of a loan.  The gemara (Ketubot 86a) states that it is a 
mitzvah to repay a loan. Rashi there writes that the mitzvah is 
honoring the "yes" you said when you promised to pay the loan.

Bava Metzia 49a

=====================================
If you like this e-mail please share it with a friend.
=====================================
To subscribe to this list please e-mail DafYomi-subscribe@ohr.edu
To unsubscribe e-mail DafYomi-unsubscribe@ohr.edu
Weekly DAFootnotes is now available as part of the Ohr Somayach 
Interactive AvantGo channel!  See www.ohr.edu for details.
=====================================
(C) 2001 Ohr Somayach International - All rights reserved.