May these words of Torah serve as a merit le’iluy nishmat Menachem Mendel Ben Harav Yoel David Balk, a”h.
This week we learned Bava Metzia 46 and 47. These are some highlights.
Bava Metzia 46: The customer left his purchases in the store. They were stolen. Is the store owner liable?
A customer purchased two boxes worth of groceries in the store. He could not carry all the goods home. He paid for the goods. He left them in the store for the store owner promised that the next morning he would have his worker deliver the goods to the customer. That night there was a break-in to the store. Thieves stole the boxes of goods. Did the store owner have to replace all the goods that had been stolen?
The halacha teaches that a paid watchman, shomer sachar, must pay for loss or theft. An unpaid watchman does not need to work as hard. He is not held to the same standard. An unpaid watchman does not need to pay for loss or theft. Our customer had purchased the items. The store owner had promised to watch the goods and deliver them the next morning. Was the store owner a shomer chinam (an unpaid watchman)? If he was an unpaid custodian he should be exempt. If the store owner was considered a shomer sachar he would be obligated to pay in the instance of theft.
Our Gemara mentioned the view of Rav Yochanan. Rav Yochanan felt that, Biblically, merely paying for an item made the item the possession of the buyer. However, the Sages legislated that the item would not belong to the buyer until the buyer actually lifted the item. They did this for if a man purchased wheat, paid for the wheat, but had not yet lifted the wheat he had purchased, perhaps if a fire broke out the seller would not try to save the wheat. The seller would reason, I have been paid, I do not care if my customer loses money as his wheat burns. However, now that the item does not yet belong to the buyer, for he has not lifted the wheat, the seller has a motivation to save the grain from fire for he knows that the grain might appreciate in value and he can renege on the deal and gain that appreciation. Our case is similar, in that after the item was purchased it was lost.
Beit Yosef (Choshen Mishpat Siman 198) rules: “Rabbeinu Yerucham wrote, one who acquired in a manner in which neither party can renege and change the deal, if the item is still in the domain of the seller, some sages say the seller is an unpaid watchman, other say that he is even less responsible than an unpaid watchman. This point of view seems to be most correct.” This seems to address our case. The customer paid for and lifted the groceries. They belonged fully to the buyer. Neither the buyer nor the grocer could renege. Beit Yosef rules that the grocer is less than an unpaid watchman. As a result, he should not be responsible for theft.
Rav Zilberstein argued that perhaps this case would be different from the scenario of the Beit Yosef. Beit Yosef may not have been dealing with a grocery store. In our case, it is possible that the grocer charges a fee for delivery. If the customer will pay for the delivery the grocer is a paid watchman. Furthermore, even if there was no charge for delivery, the store owner is happy to deliver the goods. He knows that without offering a delivery service he would not get customers to purchase from his store. Perhaps, the pleasure of having a customer renders him a paid watchman. Since a shomer sachar is liable for g’neiva ve’aveida (theft and loss), the grocer must pay even though the items were stolen from his store. (Chashukei Chemed)
Bava Metzia 47: Can a rabbi use a soiled napkin at a wedding?
Rav Zilberstein suggested that our Gemara might teach a cautionary lesson to rabbis arranging marriages. At a Jewish wedding, some business matters are taken care of. At the groom’s reception, the officiating rabbi administers a kinyan chalifin (a mechanism for acquisition) with the groom. The groom lifts a utensil or garment such as a handkerchief. Through his lifting he transmits a lien on his property to his wife for the value of the ketubah. Our Gemara contains many lessons about chalifin.
It teaches that klei maroka cannot be used for chalifin. Rashi explains that klei maroka are utensils made out of dried excrement. Apparently, a disgusting object may not create the chalifin acquisition.
Rav Zilberstein argued that if someone were to lift a soiled plastic cup from the garbage and wish to use it for chalifin, it would be a modern-day klei maroka and unusable for chalifin. The same should hold true for a plastic cup that had been used in a doctor’s office to collect a urine sample. A metal soda can from which the soda had already been drunk should also be disqualified.
Rabbis often use a handkerchief to effect chalifin at a wedding. A handkerchief can become soiled if a man sneezed into it. It might have stains on it that cannot be removed. In light of the law of klei maroka, perhaps such an item would be disqualified. An object that is clean and pleasant is what should be used for chalifin. (Chashukei Chemed)
Rabbi Zev Reichman teaches Daf Yomi in his shul, East Hill Synagogue.
