Let's take the words top, I guess, here in בבא קמא, דף ס״ב עמוד ב׳, פרק מרובה. So the משנה starts with מרובה מידת תשלומי כפל ממידת תשלומי ארבעה וחמישה, that the דין of paying כפל is more than the דין of paying ארבעה וחמישה. כפל you pay if you're a גנב. A person who steals and he's caught has to pay double, that's כפל. Then there's another דין that if you steal a שה or a שור, a sheep or an ox, and you שחט it or you sell it, that's called טביחה ומכירה, then you have to pay for this שה, for the sheep you have to pay four times as much, and for the ox you have to pay five times as much, a special דין. So the משנה says here that כפל is more, includes more cases than the case of ארבעה וחמישה. Why? שתשלומי כפל נוהג בין בדבר שיש בו רוח חיים ובין בדבר שאין בו רוח חיים. כפל you pay whether it's something that's living or an object that doesn't have life, whether you steal an animal or you steal any other object, and you're caught, you have to pay double. But מידת תשלומי ארבעה וחמישה אינו נוהג אלא בשור ושה בלבד. But this דין that you have to pay sometimes four or five times as much only applies if it happens to be a שור, an ox, then you pay five, or a שה, then you pay four. שנאמר, because the פסוק says: כי יגנוב איש שור או שה וטבחו או מכרו, if you גנב, you steal an ox or a sheep, and you שחט it or you sell it, וגו׳ etc., the פסוק continues, that's when you pay four times the amount of the sheep and five times the amount of the ox. That's the משנה. Comes the גמרא, and the גמרא says that the משנה here only mentions one difference between כפל and ארבעה וחמישה. There's

another difference that we could have mentioned, and I'll say in a moment what it is, and since the משנה does not mention that difference, obviously the משנה holds that there is no difference. What is the other difference? The גמרא says: אילו מידת תשלומי כפל נוהג בין בגנב ובין בטוען טענת גנב, ומידת תשלומי ארבעה וחמישה אינו נוהג אלא בגנב בלבד ולא בטוען. There are—there is a דין of a גנב—we need a lot of introduction here—there is a דין of a גנב, and there is a דין of a טוען טענת גנב. טוען טענת גנב means somebody who טוענ׳ס that it was stolen. Basically this is talking by a שומר. If you give someone to watch your object, and you come to him and you tell him give it back, and he answers you it got stolen, and he swears—these are all the conditions—and he swears that it got stolen, and then we catch him that he's lying, so the דין is that this guy has to pay כפל. That's what we learn out from a פסוק in the גמרא later on. We learn...huh? שומר חינם, שומר שכר. If he says it got stolen, חייב, because a שומר שכר pays for it, for if it got stolen. שומר חינם, who normally, if it would actually have gotten stolen would have been פטור, so he tried to get out of it, and he said that it got stolen, and also he swore, that's the whole thing, he swore, then we catch him. So he has a דין like a גנב, and we learn out from a פסוק that he pays כפל, he pays double as if he would have stolen himself. Now the

question is, what happens if he not only טוענ׳ד, but then later is טבח ומכר? What? Well, what happens if he says it got lost, and then we catch him that he took it? He doesn't pay כפל. Only if he טוענ׳ס טענת גנב. Not what he did, he טוענ׳ד it got stolen, and then we, and he swore, and then we caught him, he has a דין like a גנב. Because not every time that you steal from somebody you're חייב כפל. A גזלן is not חייב כפל, only a גנב. Because a גז—I've made the חילוק—a גנב is someone who is a thief quietly. A גזלן, he comes openly, makes a holdup, takes, so he doesn't pay כפל. Only a גנב pays, so there's a special דין by a גנב. Here we have another דין, that a טוען טענת גנב, that's what we call him, a טוען טענת גנב, who is the שומר, the one that watched an object and claimed it got stolen and swore and was caught that he lied, he also has to pay כפל. Now what is the דין if not only did he claim it got stolen and we found that he did it, but he שחט-ed it, and it happened to be an ox, or he שחט, it happens to be a שה, will he pay ארבעה וחמישה? So the גמרא says: לכאורה we would think there's a difference, that he only כפל, the דין of טוען טענת גנב only pays כפל, but there is no דין of ארבעה וחמישה. But if that would be true, then the משנה would have mentioned it. The משנה is trying to tell us the difference between כפל and ארבעה וחמישה, and it says כפל applies to everything, ארבעה וחמישה only to an ox and a שה. Now, if it was שחט-ed and was, or it was sold, the משנה did not say that there's another difference between the two, that כפל applies by a גנב and a טוען טענת גנב, and ארבעה וחמישה only applies to a גנב, not to a טוען טענת גנב. The משנה didn't say that. Obviously the משנה holds that a טוען טענת גנב also will pay ארבעה וחמישה. So the

גמרא says, מסייע ליה לרבי חייא בר אבא. This fact that the משנה does not make that difference proves that רבי חייא בר אבא is right. What did he say? דאמר רבי חייא בר אבא אמר רבי יוחנן, הטוען טענת גנב בפקדון, if someone טוען's by a פקדון, by an object that was given to him to watch that it got stolen, משלם תשלומי כפל, so he pays כפל, and he adds, טבח ומכר, if he שחט it or sold it and it happened to be an ox or a or a שה, משלם תשלומי ארבעה וחמישה, he does pay. So a טוען טענת גנב pays ארבעה וחמישה also. That's one לשון in the גמרא. איכא דאמרי, there's another לשון. Some say differently, some say the גמרא asked, do we have such a ראיה from our משנה? And the גמרא says it's no ראיה, maybe the משנה left it out. The משנה doesn't have to write everything, every difference that is written, תנא ושייר. And ממילא there is no ראיה from the משנה. And therefore, it's possible that a טוען טענת גנב pays כפל, but does not pay ארבעה וחמישה. Pays double if you catch him took it, but if he שחט it or and if it's a שה or a שור, he doesn't pay. Huh? But תוספות asks, מאי שייר דהאי שייר? And then goes in there are other things that could be left out. Yeah, we're dealing with this case now. Now, clearly the the גמרא did not make two opinions whether a טוען טענת גנב pays ארבעה וחמישה or not. All the גמרא was wondering whether we have a proof from our משנה. So, one opinion says there is a proof, the fact that the משנה didn't mention it, a סימן there is no difference, and there is no proof. But there is no argument whether the דין is like that. On the other hand, the fact that the משנה the גמרא is looking to see whether there is a proof in the משנה, maybe the משנה is not a proof, and maybe the פשט is that he's פטור, a סימן that there are two sides to it. So, we do see in the גמרא that there are two sides to this concept whether a טוען טענת גנב will pay ארבעה וחמישה or not. דאס הייסט אזוי, for sure a טוען טענת גנב pays כפל, that is not a question because that's learned out from a פסוק, there is not a שאלה. The discussion here is whether a טוען טענת גנב will also have the other דין of a גנב, that if טבח ומכר by a שור ושה, will he pay ארבעה וחמישה? Now we have two sides. What we have to focus on, what are the two sides to under to see whether a טוען טענת גנב will pay ארבעה וחמישה or will not pay ארבעה וחמישה? That's one thing here. Later on in the גמרא, we find something along the same lines. The גמרא later on, on דף סג עמוד ב, discusses this דין of a טוען טענת גנב that he does pay ארבעה וחמישה. But the גמרא wants to know where we know it from. One opinion says that we know it from an extra פסוק where it says גנב, הגנב. It should have said גנב, and it says הגנב. Anyway, we have an extra לימוד that teaches us that a טוען טענת גנב pays ד' וה', pays ארבעה וחמישה. There's another opinion in the גמרא that it's not learned out from that extra פסוק, because the extra פסוק is not extra, it has another דין. So what do we how do we know a טוען טענת גנב pays ארבעה וחמישה? So the גמרא says, well, we compare it to a גנב, and because it's next written in the פסוק next to a גנב, we compare it to a גנב. Just like a גנב pays כפל, so by a שור ושה, טבח ומכר pays ארבעה וחמישה, so a טוען טענת גנב does the same. Now, we see here again something similar: that one opinion says we can't just compare it to a גנב, we gotta have a special לימוד. That's to say the fact that a טוען טענת גנב pays כפל is not enough to tell me, so automatically he pays ד' וה'. No, we gotta have a special פסוק, because we would not have known it directly from a גנב. The other opinion says no, we could compare it to a גנב, and just like a גנב, just like he pays כפל, pays ארבעה וחמישה, a טוען טענת גנב pays כפל, pays ארבעה וחמישה also. So again we see another two opinions here whether we על פי שכל can compare and learn out the fact that a טוען טענת גנב pays ד' וה' from the fact that he pays כפל, and we'll compare it to a גנב. So one opinion says we can't, we need a special פסוק for it, and one opinion says we could. Again, we have to see what is the two sides, whether it's a logical thing and we don't need a special פסוק for it, or it's not. Why would he? He's not a גנב. He's a טוען טענת גנב, but not a גנב. So a טוען טענת אבד also? So any a גזלן is also we call a גנב? What happens if somebody denies a מלוה? And if someone denies if I owe someone money, someone owes me money and he denies it, does he pay כפל? And we catch him, he pay כפל? No. כפל is only paid by a גנב. He's, in our terms, in the לשון בני אדם, we would Oh, this guy's a גנב! He didn't pay his loan, didn't pay his debt. But he doesn't have a דין of a גנב. A גזלן, a גזלן is worse than a גנב, but still doesn't pay כפל. I'm saying, so כפל is strictly by a גנב. So here, the חידוש of the תורה is that טוען טענת גנב also pays כפל. But the שאלה is what about ד׳ וה׳? Does that, and that דין is a big חידוש that you pay ד׳ וה׳. So, so do you or don't you? So one סברא says that you don't. I mean, you do, but normally you wouldn't, we need a פסוק. And one סברא says, no, the fact we compare the two, so we need the two sides. Okay. Let's look, in order to understand that, let's look to see בכלל how do we describe the difference between a גנב and טוען טענת גנב? So the גמרא on דף ס״ד עמוד ב׳ gives us a term, and says like this. The difference is by a גנב, by a טוען טענת גנב, בהיתרא אתא לידיה. And by a גנב, באיסורא אתא לידיה. How did it get to his hand? How did he get the object? So a גנב got it באיסור. He actually stole it. A טוען טענת גנב got it בהיתר. Now he decided to lie. So that's the difference. This difference is not only here. This difference we had earlier in the גמרא. Earlier on דף ד׳ עמוד ב׳, we already had this. And I think in one of the שיעורים this came up. There we have רבי חייא and רבי אושעיא. רבי אושעיא says that not only are there four אבות נזיקין, there are 13 אבות נזיקין. Among the 13 אבות נזיקין, he mentions a שומר חינם. If you're a שומר, so sometimes, if you're lying, you have to pay. And then more comes רבי חייא, says, I have more! I have 24 אבות נזיקין. Amongst רבי חייא's 24 אבות נזיקין, he has a גנב. One of them is a גנב. So the גמרא asks, how come רבי אושעיא did not count all those that רבי חייא counted? Why didn't רבי אושעיא? And the גמרא gives reasons, because many of the things that רבי חייא counts happen to be a קנס, and רבי אושעיא doesn't deal with קנס. Then concerning גנב, why doesn't רבי אושעיא mention גנב? The גמרא says I'll tell you why. Because he feels it's included in what he already mentioned. Since he mentioned one of the נזיקין, אבות נזיקין is a שומר, that a שומר is a watchman who denies the object, and we catch him, he has to pay. Now one of the ways of his denial is that he's a טוען טענת גנב. So he's a טוען טענת גנב, and he pays כפל like a גנב. So when רבי אושעיא said that one of the אבות נזיקין is a שומר, which includes טוען טענת גנב, that includes גנב already. So why does he have to repeat and say that there's another one גנב? It's included. Then the גמרא asks, so how come רבי חייא doesn't include it? How come רבי חייא considers it as separate? Because he mentions all the 13 of רבי אושעיא, which one of them is a שומר, and then he mentions separately גנב. So the גמרא says because he divides it into two. What's the difference? He counts separately when the object came to him באיסור, and separately that the object came בהיתר. So a גנב is a מזיק where the object came to him באיסור, and according to רבי, to רבי אושעיא, and, and the טוען טענת גנב came בהיתר. So that's why he does count as this. Now

let's us understand, why doesn't רבי אושעיא do that? Why doesn't he count it as two just like רבי חייא does for the same reason? So obviously they're arguing like this: the fact is they both agree to the מציאות. There's no question. A גנב got it באיסור, and he got it בהיתר, that's not a question. The מחלוקת is whether is that enough to divide it into two categories. So the סברא to say it's one category, that's רבי אושעיא. Even though this came בהיתר, this came באיסור, it's still considered one category. And רבי חייא holds two categories. What's the basis of this, this difference? Whether it's considered is one category, מחלוקת is whether it's one category or two categories. So the basis of it is this: first I'll say the basis, and then I'll explain the, where this comes from. The basis is based, you could say at least, this is a סברא, that it's based on a חקירה. It can be quite clever. When the תורה said that a טוען טענת גנב pays כפל like a גנב, what did the תורה mean to say? If the תורה said that טוען טענת גנב becomes a גנב, the תורה says that a טוען טענת גנב is a גנב. We thought that a גנב is only somebody goes and pickpockets. The תורה says no, a טוען טענת is also a גנב! And therefore, just like this guy pays כפל, you can pay כפל. Or you can say the תורה says no, a טוען טענת גנב is not a גנב. But the תורה says that he also pays כפל. Who says, we are under impression that only a גנב pays כפל. Comes the תורה, says not only a גנב, there is another case: he happens not to be a גנב, but the תורה said also. A גזלן doesn't pay כפל, a טוען טענת גנב does. So the שאלה is, is a טוען טענת גנב one category with a גנב, in other words, טוען טענת גנב became a גנב, and or did the טוען טענת גנב remain not a גנב, but אף על פי כן the תורה is מחייב? What is this based on? Why would we say these two סברות? In order to understand why we would have these two סברות, we have to go back to something I think, I

think it happened to be the last שיעור we had. I don't, I'm not sure if it was the last one, where we discussed the concept of ספק. And I said that there is a גדר, discussion concerning ספק שמירה. And we started it with like this, that there are certain things that if it's a ספק whether it is that, then not the פשט that you have a ספק of the not that you have this, you have a ספק this. It's nothing. There are certain things which their whole מציאות is only if it's ודאי, if it's for sure. If it's a ספק, then it's ודאי nothing. And I remember the example I gave which now fits more in this time of the year, ספירה. Is there such a thing as counting ספירה with a ספק? The משל if someone doesn't know which night is tonight, it's the night the tenth or eleventh. So what's the problem? Make a ברכה and count both! So ממה נפשך one of them is right. So the דבר אברהם says there is no such thing, because the whole concept of counting is an opposite of a ספק. Counting means I'm counting in order to know what I have. Imagine if I count and count and count and at the end I still don't know what I have. I didn't count. I mean, I used I attempted to count it, but I didn't do any מציאות of counting. Now, someone might ask, but sometimes, let's say, you don't know exactly, but you know it בערך. You counted and you didn't It's or 99 or 100. So that I so I explained, it's ממה נפשך. If you're interested in knowing בערך, then it's ודאי, then it's not a ספק. You know for sure what בערך it is. If you're interested in knowing exactly, so then you don't know. So you don't know, so there's no such thing as counting with ספק. So what does this mean? That the there is such a thing that if it's a ספק of it, then it's automatically nothing, because there are certain things which the whole מציאות of that concept is בירור, is ודאי. To have a ספק of that, then you don't have the בירור. It's like saying there is a concept that maybe we have a ספק ודאי. ודאי is not ספק, and ספק is not ודאי. You can have a ספק ברכה, but you can't have a ספק ודאי. So those things which their whole מציאות is ודאי, is בירור, you can't have a ספק בירור. So כדרך, like to give an example, the other example I gave that time, was from the גט, the case of the שטר שחרור by an עבד, if someone writes a שטר to an עבד, he is משחרר, he is free, but what he wrote was, \"All my possessions are given over to you.\" He is part of his possessions, so he gives him himself over. So the guy In a case like that, the guy becomes free and gets everything that the master owns. What happens, the גמרא says, if he wrote, \"All my possessions belong to you are given over, except his house?\" And the גמרא says, not only doesn't he get the house, he doesn't get anything. He doesn't He doesn't even become free. And the גמרא says why? No, but tell him you could give somebody because we're afraid that maybe when he left out something, that house, maybe he meant to leave something else out also, and that something else could be him, so we don't know. And the question is, so we don't know, maybe. Maybe not. But the גמרא feels that the the גמרא feels that sometimes a person would want to make him feel good, not write clearly, so this is how people would write. So there is a ספק in that. But we're not sure. Maybe he meant what he wrote. Maybe he meant he's giving him his freedom, giving him everything except his house. So why is So the גמרא should have said that this guy, we're not so sure he is free because we don't know what the guy meant, so he should be a ספק משוחרר. He should be free ספק, maybe a ספק עבד, ספק בן חורין. But the גמרא says no. He is definitely not free at all. And the גמרא gives the reason, because לאו כריתות גיטה הוא. It's not cutting off, which means the ענין of a גט or a שטר שחרור, which is the same concept, is to cut off between the two. If when you cut it off there still remains a connection, it's not. Remember, I used the example of the גמרא where it says if The גמרא gives the example if you give a גט with strings attached and you're holding on to the string, it's not a גט. Why? Because there's some attachment. Same thing here. If you give a גט and there is a ספק if the if the גט cuts off, so not the פשט she is a ספק מגורשת. So there is no גט whatsoever because there is still a connection between the two, the fact that there is a ספק. So there is nothing. So לאו כריתות. So here again we see that a גדר of a גט, כריתות, is ודאי. The moment it's ספק, it's not כריתות at all. So כדרך like any שטר. What's the whole concept of writing a שטר? Writing a שטר is so we should verify something. Imagine you write a שטר and and after you read the שטר it's still not clear if he owes him the money or not. So you say, \"Well, it's a such a שטיקל שטר.\" It's not a שטר at all! The whole concept of a שטר is to know for sure. And if you write a שטר and you don't know for sure, it's nothing. It's a ספק שטר. And there are other examples, I think I gave last time, in the בית המקדש. So we came to that at that time, we came to ספק שמירה. If you have something and it's a ספק if the guy will watch it or not, or if it's called a שמירה, so is it Okay, that's not a good שמירה, because you're not sure, but is it any שמירה? So on one hand, you could say ספק שמירה is nothing, because the whole idea of שמירה, of watching, is a general concept of being sure. If I give you something to watch, which means I want to be guaranteed, at least as much as possible in human behavior. That time we were talking about an אכסנאי, that an אכסנאי was a ספק שמירה. But I'm just here bringing out the general idea. So if you give a guy something to watch and it's a ספק if he'll watch it, so on one hand, if you look, watching, giving to watch means that I feel comfortable, guaranteed that I'm it's

it's it's safe. So there's no such thing, if it's a ספק, I'm not guaranteed, so it's not a so not watch. On the other hand, you could say no, that who says that it's at least it's better than nothing. So it's a little bit of שמירה. There is a concept of a מקצת שמירה. There is a concept what we find in in גמרא of שמירה מעולה, שמירה פחותה. There's a better שמירה, a weaker שמירה. So this a weak שמירה, but it's also שמירה. So it depends on what? Whether שמירה, the concept of שמירה means one general concept of that guarantee, which some of שמירה doesn't have that, so it's nothing, or you look at it, no, specifically, that little bit that I feel better is is good enough, and it's something. And we made said then מחלוקת רש״י and תוספות, מחלוקת רבי יוחנן וריש לקיש. So I want to go from that to another step. זמן שמירה. זמן שמירה. If I give somebody to watch something for 30 days, so do we look at all of it as one idea of the whole time as one, or every time is separate? It means like this: if the whole concept of שמירה is a one general look, so when I'm leaving the house, and I'm leaving you in charge for 30 days, I want to feel comfortable that I'm, this house is safe. If the person will watch it only for 10 days, and the other 10 days he won't watch it, so the 10 days don't count either, because if שמירה is looked upon as one general נקודה of guarantee, I don't have that, because there are certain days he doesn't watch. On the other hand, you could say no, that שמירה is the day that's watched is fine, the day that's not watched is bad, but you can't say that the days that are watched are no good. In other words, I would use these words using the ראגאטשאווער style, is the time of שמירה one נקודה for the whole זמן, or is every moment of the שמירה a נקודה for itself? This is watched, this is a נקודה for itself. See, the ראגאטשאווער has a חקירה like this by זמן בכלל, which is not what we're talking about. In general, he says, anytime you borrow something for a time or you listen for a time, is זמן one נקודה, or every moment is, and he makes a very interesting difference. It depends what you're interested in. If you're interested in the המשך הזמן, in the in the שטח הזמן, in the space of time, then everyone is a נקודה. If you're interested in the end, then it's all one נקודה. For instance, at certain times, if I want to go to your house, and to get to your house I have to go three blocks, it's all one נקודה. I'm not interested in these steps. As a matter of fact, if you lived closer, I'd be happier. But if the doctor tells somebody, you know, every day you have to walk three blocks, so every step is part of the three blocks, so every step is a separate נקודה. But if you're interested in the end, okay, I then it's all only a הכשר, only that. But that's נוגע to זמן. We're not talking about זמן here, we're talking about שמירה, the זמן of שמירה, because we're looking at if we say like I said before that שמירה is one general idea, so there's one נקודה of שמירה. If we say that שמירה is not a general concept of I am guaranteed this will be, but we're looking at it individually, so every moment of the שמירה now it's watched is fine, if it's not watched later, it's not fine. It seems that we could say that this is a מחלוקת in the ראשונים, earlier on. There's a

דין in גמרא here דף י״ט, מסר שורו לחמשה בני אדם, a person gives over his ox to five people to watch, ופשע בו אחד מהן, and one of them did not watch it, והזיק, and the שור went out and was מזיק, חייב. This one guy is חייב. And the גמרא explains: היכי דמי, what is the case? אילימא דבלאו איהו לא הוי מיתר, if it's a case that because he dropped out, he gave it over to five because you need five people to watch it, and when he went away, it cannot be watched, פשיטא, דקא עביד! Certainly, he's a it's his he did it! אלא, what is the חידוש that we're saying that the guy is חייב? דבלאו איהו נמי מיתר. That באמת if he drops out, it could be watched by the other four. Then the גמרא asks: מאי קא עביד? So what did he do? Why is he חייב? Now, these words מאי קא עביד, what did he do, why is he חייב, is a מחלוקת רש״י and תוספות. רש״י learns מאי קא עביד means ואינו חייב כלום. This guy who was given to watch and dropped out, but that could be watched without him, should not be חייב at all, because when he dropped out, it still could be watched! תוספות says when it says מאי קא עביד, it means מאי קא עביד טפי מאחריני? Why is he responsible more than the others? Should all be חייב, but he also, in other words, he should be part of it, he should also be חייב. So there's a מחלוקת רש״י and תוספות here. No, רש״י says he is not. The guy who dropped out? Yeah. No, but it's according to תוספות, all five of them, all five of them were needed? No, no, no, no. So according to תוספות, they Not according, the גמרא mentions, what is the case, דין in the case where all five are not needed? If they're all needed, for sure he dropped out, he's חייב completely. But if they could be it's watched without him, so רש''י so the גמרא said that he shouldn't be חייב. So רש''י says it means he shouldn't be חייב at all. תוספות says that he still should be חייב like everybody else. Liable part. He liable part, that's what תוספות says, a liable partner. And רש''י says no, this guy should be פטור completely. This is the מחלוקת. So we have a מחלוקת רש''י and תוספות. The

רמב''ם rules like תוספות. The רמב''ם says in a case like this, כולם, they're all responsible, אף he's responsible together with them, they're all responsible. The רא''ש and automatically the טור, because the טור follows usually the רא''ש because it was his father, so the says like רש''י, that he's פטור completely. And let's see what the רא''ש says. The רא''ש explains why he feels his שיטה is. He's פטור and the other ones are חייב? They were Yeah, they didn't watch it properly, they could have watched and they didn't. But he says like this: ולאו איהו נמי מנטר, without him it could be watched too, מאי קא עביד, so what did he do? כלומר, ופטור לגמרי. And explains, כגון שהאחרים לא סילקו עצמם משמירת השה, the other ones didn't drop, didn't push take themselves away from watching it, כשפרש ההוא אחד, when this guy didn't, ולא ראו לפרוש, and didn't want, they said we're ready to continue. וכיון שנשארו בשמירת השה, since they continued watching the שה, ויכולין לשמרו בלא ההוא אחד, and they could watch it without this one guy, הן חייבין והוא פטור, so they're חייב and he's פטור. Why is he פטור? שהרי מסר לכולם השה, cause he gave over to all, the guy who gave over, the owner, who gave it to watch, gave it to all of them, לכל מי שיכול לשמרו, anybody who wants, ונתרצו לשמרו אפילו בלעדיו, and they agreed to watch it without him. אבל אם אמרו, had they said to him, no, if you leave we leave too, he had no right to leave. But the case here is where they agreed we'll watch. Now if the case is they agreed to watch, so the שאלה is now on תוספות. Why would why would תוספות say he's חייב? Why would תוספות Huh? Okay. No, שומר, if you take upon yourself to watch you'll watch. So the שאלה is now that the רא''ש is מסביר why that the טור says the same thing, why he's פטור לגמרי, because what's the problem? They could watch it, they agreed to watch it. Why does תוספות say you're חייב? So some אחרונים explain that תוספות says you're חייב, why? Because he had no right to drop out. Since he was מקבל upon himself to watch it, you can't drop out, you have responsibility to to continue because you were מקבל upon yourself. So the שאלה is now, okay, makes a lot of sense. You were מקבל, so you you promised you're going to watch it, you why how could you drop out? So what's the סברא of the רא''ש? The רא''ש says well, because they are able to watch it. But why doesn't he say, well, but you accepted it? It seems like according to רש''י and תוספות it matters who you're answering to. If you're answering to the guy who gave it to them, if I give it to five people and they make up between each other who you know, one, four of them say to the other one you can go, we don't care, we'll still watch it. I don't care what you guys made up, to me you're still liable, all five. On the other hand, if it matters what the four people made up, and as long as the owner gets paid, How how could they made up on his חשבון? That's that's what תוספות that's what תוספות would say. How can you make up on my חשבון? I gave it to all five, one drops out and you come to me. Right, exactly. Right, and what does the רא''ש say? So that's a The רא''ש says listen, owner, you're going to get paid. It's just a matter of which what which people have to pay. No, but the but he could טענה these guys טענה, \"We only want to pay a fourth. You took us back a quarter, we don't want to pay the whole thing.\" So, it's according to the רא''ש, you go to these four and you say, \"Listen, you Why, why? because you wanted to let the guy off.\" Yeah, but this guy was part of it! This guy took responsibility like they did! Then they can say they can say, \"We would have never taken the job had we known No, no, when he dropped out they agreed! agreed? Oh, they agreed. But still to the owner, they could say to the owner, \"We agreed that's us, but we are only four and we could have watched it and didn't watch it.\" So that's but we have but we have the two sides here. The שאלה is, what are the two sides? So, לכאורה, what it comes out is the two sides are like this: what I want to I want to say is I want to divide this into two parts. We have the שמירה, the actual watching it, and then we have the קבלת השמירה, the accepting to watch. These are two ענינים. The שמירה has no problem here, it's being watched with the other four. The problem is the קבלת השמירה, he accepted, now how could you drop out? So, I want to say that whether his dropping out of the קבלת השמירה is a problem or not will depend on this חקירה that we said before. What did we say before? That there's a שאלה whether all the נקודות of the whole time is one נקודה, or each moment is another נקודה. And the difference would be, when he accepted upon it to watch, if it's all one נקודה, by him dropping dropping out after 10 days that he accepted 30 days, \"I'll watch it for you,\" after 10 days he went dropped out, so not only did he not keep the שמירה, as far as he's concerned, he didn't keep the קבלה, because there's one קבלה for all. So, he broke the קבלה. That's a problem. If you hold that it's every second another thing, so what's the פשט? He, the first רגע he was accepted, he kept it, the next רגע kept it for 10 days, and now what he did, now he didn't continue watching it. But there is really basically nothing wrong that he did. The קבלה that he accepted, he kept. The שמירה of the object is being done, so what's his problem? I'll put it in other words: there's a חקירה that we could ask, and it will be connected to this: is the קבלת השמירה, the fact that he accepts the watching, is it a פעולה נמשכת or not? I'll explain it. Is the פשט that you accept once to watch, and that once, that's it? Now you are responsible to be the watchman. Or do we say it's as if every second you Because I accepted for 30 days, every second it's renewed again. I have to watch it. Now, as if I accepted it again, as if I accept that. Similar to what we spoke about שליחות. When a person is appointed to be a שליח, so we have a חקירה there: is the פשט that you appoint him once, now he is the שליח, now he goes and does what the guy wants? The guy made him a שליח to be מקדש את האישה, now he can go and מקדש the woman, or we say no, every second it's as if he renewed the שליחות again? And it's not סתם a חקירה, but it's נוגע to a מחלוקת, as I explained once the מחלוקת between the רמב\"ם and the טור: if someone makes a שליח to give a גט, and then the משלח, the man that gave that made the שליח, became a שוטה, cracked up, he's not normal anymore, can the שליח go to give a גט? So, the רמב\"ם says that מדאורייתא you could. The רבנן said you can't, but מדאורייתא you could. And the טור says, \"No, מדאורייתא you can't.\" So, some of the אחרונים explain it like this: it depends if you hold מינוי השליחות, making a שליח, is a פעולה נמשכת or not. If it's a one-time thing, then when he made him into a שליח, he was normal. Now he is a שליח, now he's not normal, and therefore he could go ahead and give the גט. The אי, what happens if the if the משלח would have died? Then he still can't give he can't give the גט, but a different reason: because you have no husband for whom to divorce her. Not yeah, not because the שליחות is no good. There's no husband. But as long as there is husband is alive, א, he's a שוטה, so now he couldn't give the גט, or he couldn't make a שליח, but when he made it, it was good, so he can give it. If you hold it's a פעולה נמשכת, what's the פשט? That every second, so the reason that he's able to give the גט later, because a minute ago he made me into a שליח. Why? Because a minute ago before that. But if a minute ago he can't make you into a שליח, because he's a שוטה now, so I can't be a שליח, so you can't give the גט. So מדאורייתא there's no שליחות. So we see a מחלוקת between these two whether בשעתו we have a פעולה נמשכת or not. These two cases, whether it's The same thing you could say, just like we're talking about מינוי השליחות as appointing a שליח, the same thing would be by קבלת השמירה. If I accept to watch, it's not my thing, I'm not responsible for it, I took responsibility. Is the פשט, I once took response- קבלה and that's it? Or, every second I renew it as if it's renewed? Now, what would be the difference? If it's every If it's one קבלה, if I later stop watching it in middle of the time, what am I doing? I am destroying that קבלה. I'm not keeping that, because there is only one קבלה. I'm not I'm destroying the קבלה. If every רגע is a second קבלה is, so I watched it for 10 days, I was מקבל and I watched it, and then the קבלה renewed itself and I watched it. What's now is, I'm not continuing, that's all it is. I'm not continuing the קבלה, but I'm not breaking the קבלה that I did. So it comes out as, I'm not continuing the קבלה, but the קבלה that I did before was good. As far as the object is concerned, it's being watched, because if the other four can't watch it, then there's another problem: I'm responsible for it to make sure it's watched. But this case, where the other four could, is being watched, so what's the problem? Because since it's a פעולה נמשכת, I'm not destroying what happened in the beginning, I'm just not continuing. על דרך, I'll give you an example of a שיחה from this week's פרשה, from פרשת קדושים, that the רבי explains, brings the רוגטשובר. The רוגטשובר speaks about גנבה and גזלה. And the רוגטשובר says like this, that when a person steals, it's a פעולה נמשכת. A person steals, it's not that you stole it once and you did one עבירה. Every second you are stealing again, as if you're stealing again, you're stealing again, you're stealing again. It is. It's a פעולה נמשכת. נמשכת means it is It's an ongoing thing. It is a פעולה נמשכת. And the רוגטשובר says, based on this, he explains the רמב\"ם. The רמב\"ם says that if a person steals, you don't get מלקות. Why don't you get מלקות? So the רמב\"ם says, because this is a לאו הניתן לתשלומים. It's a לאו that you can pay for. And the rule is, a לאו that you can pay for, you don't get מלקות. Fragged the רוגטשובר, the רמב\"ם should have said it's a לאו הניתק לעשה. There's a דין that any לאו that has it's a negative commandment, that has a positive commandment that fixes the לאו, then you don't get מלקות for it. למשל, it says by שילוח הקן, it says don't take the mother together with the בנים. If you did take it, שלח תשלח, it says send it away. So by sending it away, you will fix the לאו. So the רמב״ם should have said that by גנבה וגזילה there's a לאו, לא תגנוב, לא תגזול, and then there's a עשה, והשיב את הגזילה. So it should be a... So he says, why doesn't the רמב״ם say it's a לאו הניתק לעשה? He said because it's not. When is a לאו הניתק לעשה fixes up, if it's a one-time thing, you did an עבירה, then the תורה says do the עשה. What do you think the תורה meant? By doing the עשה, you will fix what you did. But if it's a לאו that continues, when you do the עשה, you know what you do? You just stop it from continuing. That's all, but you don't fix what happened before. So he says since גנבה is a פעולה נמשכת, so it's not a לאו הניתק לעשה, it doesn't fix before. I'm using the same logic here. If you, if קבלת השמירה is a פעולה נמשכת, then when you stop watching it, you're not destroying all the קבלה that you had before. What you are stopping is the continuation. But who cares? It's being watched by the other guys. So according to this סברא, there's nothing that you did. You kept your קבלה, and the שמירה is done. If you hold it's not a פעולה נמשכת, it's only one because there's one big גדר of שמירה, and it's all one big thing. So all the time, the thirty days that you watch is all one thing. And if I stop in the middle, I'm breaking that big balloon, I'm breaking that big קבלה. So I destroying what I did before, that I can't do. And if I do it, even though it's being watched, but I am destroying my קבלה, I have to pay. And that's a מחלוקת רש״י and תוספות, and the רמב״ם, and and the רמב״ם against הרא״ש and the טור. So what comes out to be the bottom line of all this? The bottom line is that we

have two ways of looking at שמירה, which is נוגע to several, like שמירה, נוגע to זמן, but the נקודה is, do we look at it's all one נקודה the whole time, or is it נקודות נקודות, and by not watching it, I don't break it? Based on this, let's go back to טוען טענת גנב. When a person, we said that there is a סברא to say that the טוען טענת גנב is a גנב. We said two סברות. One סברא is he's not a גנב, but he's חייב כפל. Other סברא is no, maybe he is a גנב. The question is, what can, how can you say he's a גנב? I mean, he's a thief, but he's not a גנב in הלכה. He's a bad guy. He's taking someone's money. But to be a גנב, you have to do the פעולה of גנבה. You have to steal. You have to go, take something away. You have to steal. This guy didn't steal. So why would I even think that maybe he's a גנב? I'll tell you why. If you hold that שמירה is one big big thing, when you stop שמירה in the middle, you are breaking the קבלה. So when this guy took the object from the, from the guy to watch, and the watching is one big thing, and today he decided to deny it, what he did was, the time, the taking that he did then was גנבה. So he did a פעולה of גנבה. If you hold that it's, למפרע? Now למפרע it was גנבה. If you did not, if we say שמירה is נקודות נקודות, so till now what he took it for watching, he watched it, and it's fine. אלא מאי, he should continue watching it. Today is stopping, but today is not taking it. But if you're saying that by doing today is breaking what he took before, so it comes out that what he took before, גלויי מילתא למפרע, למפרע that he took it, so he is a גנב. Huh? It kind of holds like that, right. And so לפי זה what comes out, that this guy did a פעולה of גנבה. So when we look at אתא לידו בהיתר, that טוען טענת גנב he got it בהיתר, when he took it, it was בהיתר, but retroact- active, looking at later, what he took it then was באיסור. And that's the difference. If you hold that its whole זמן is one big thing, so then he is a real גנב, and he took it באיסור. If you say it's not, then he took it בהיתר. Huh? No, yeah. You could say no, no, you could... he might not be talking about שמירה, talking about the קבלה. Yeah, sure. Could be, there's not one. Not if you say one thing פעולה נמשכת, everything has to be... Yeah, גנבה the ר׳ אלחנן says it is. Yes, yeah. אבל שמירה, קבלת שמירה is לאו דווקא. Yeah, yeah, I'm saying it doesn't mean that if you hold by one, you have to hold by the other. Each, each case could be dealt, you could hold here yes and here not. But what I'm coming out, comes out like this. We said before that what's the מחלוקת the פר״ח and הב״ש? Whether we consider גנב and טוען טענת גנב as

two categories or not. And what was the reason? Why should it be two categories? One is בהיתר, one is באיסור. That's what the פר״ח held. The ב״ש we said no, he doesn't make a difference. But we asked why. Now we know why, because he said it's not called taking בהיתר, because they're both taken באיסור, because a טוען טענת גנב is a גנב. So it comes out that what we have here is two שיטות. We have two שיטות whether a טוען טענת גנב is a גנב, or טוען טענת גנב is not a גנב. But what comes out of result? If a טוען טענת גנב is a גנב, for sure he pays ארבעה וחמשה, like every גנב. A גנב pays ארבעה וחמישה. If he's not a גנב, then he the תורה tells you he pays כפל, fine. How do you know he pays ארבעה וחמישה? I don't know, he's not in the פסוק. But other, but but maybe he doesn't even pay, because there's no דין, but the other one we have to pay. We need a פסוק. Why do we need a פסוק? Because any, after all, it's a גנב, but it's retroactive. So there are conditions, there are extra little cases to make it, but the general נקודה is that he's a גנב. So when we started off by saying that in the משנה, in the גמרא it comes out that there are two, two סברות, whether a טוען טענת גנב pays ארבעה וחמישה or not, this is the two sides. The two sides are, if he's a real גנב, you automatically pay ארבעה וחמישה. If he's only a, he's not a real גנב, why? Because he did not steal, the תורה is מחדש that by טוען טענת גנב you pay כפל, but what's the ראיה for ארבעה וחמישה? So we talked it out. Then even if you hold that yes, you can also say, is it a שכל'דיקע זאך or not? So we said there are two סברות in the גמרא. One סברה is that we need an extra פסוק for it, and one סברה is that of a שכל, we learn to compare it to a גנב. The one that holds that he becomes the real גנב, so we don't need the extra פסוק for this. He became a גנב, so just like a גנב pays כפל, and ארבעה וחמישה he also pays. But if not, then we have to have that extra פסוק, and that's why he has the פסוק גנב יגנב. What are all? Talking All what? All, what? Retroactive, but why is this a נקודה of a זמן? I don't see how the זמן, you could think It's not, we're not talking about זמן. He's giving an example of זמן, but we're talking about שמירה. But even this זמן, but Oh, that's it. For a גנב like or שמירה? For all, we're all, every עבירה is a גנב. It's a מעשה, רב חיים said that, he brought it to him. He

says this כולה נמשכת, רב חיים did not accept it. The next day he gave him a מזל טוב. He said to him, \"Why?\" He said, \"I just got married.\" According to your שיטה, I just got married, isn't it? Yeah, because רב חיים did not accept this סברה of כולה נמשכת. Like a תשובה, חיים בריסקער. Like a תשובה, it has this, a big thing, like the רבי כולה נמשכת, you have so many שיחות and the רבי has a big Yeah. Even though some places he argues, good for him, but רב חיים בריסקער did not, no, it's like they don't, this whole סברה of כולה נמשכת they don't, doesn't hold. Nah, they fight with this. I once said this to somebody who worked for someone, for Briskers in yeshiva, \"Ah, this is a וויץ!\" A what? A joke, a joke. A וויץ is a joke. וויץ. They don't. No, no, they they don't they don't negate everything. But well, I don't understand why the שמירה is, I understand the idea of the נקודה of the כולה נמשכת, but if somebody tells you straight out, \"I'm giving you this for a period from today for 30 days from now,\" all your theories sort of fall out because you're being very specific. You're telling him that Let me ask you a question. I

hire you for 30 days to watch my object and I pay you $500 to keep an eye on this for 30 days, right, right? $10 a day. 10 days later you turn around and say \"I'm not watching this.\" I owe you I owe you $100? I owe you nothing. Well, the truth is you you don't owe anything. That is a Why? Maybe I owe you for 10 days? No, no, but that's the point. If you make a contract for 30 days, That depends. you breach on the 29th day, you breach it. That depends, it depends if it's all one or not, and maybe whatever I did I did. But I I understand the theory of whatever you did you did, but I'm I'm sort of that's if if there's a void, you don't know and you're trying to figure out what he meant, which the גמרא tries to do a lot, but if I know what you meant, you meant 30 days, you were Yeah, but you know why you meant it, because you wanted it to be watched. Exactly. And it was watched, by the other guys! That's a different story. That that But what if so what if he only had one guy, let's say they never had the four guys. He's חייב. Then there's no question he's חייב. Then why But he's חייב not because of כולה נמשכת or anything or not for, because he didn't watch it! Because, if I said there is a case where the שמירה is not being done, then you're certainly חייב, or if these four people couldn't watch it and you drop out, you're you're חייב. That's for sure. But the

case where everything is the שמירה is done, the guy wanted to be watched, it's watched. So then why do you even talk about the Well the שאלה is, is this guy חייב? If it failed, it wasn't, but if it failed, something happened to it, if a payer was מזיק. So why talk about כולה נמשכת? Why why do you even have to get into that whole Oh, because we're trying to say why is this guy not responsible? He's not responsible because he because it was watched by No, but what does what do what do they say פשט in תוספות? Because after all you accepted to watch and you're not keeping it. You're part of this group. You're part of the group and you're not. So, but you didn't keep it when they were watching it either. You didn't keep it, let's say you kept it for 10 days then you walked away, Right. according to תוספות you still didn't keep it, you didn't keep the שמירה, not the not the Yeah, that's No, the שמירה is on the object. It's You is the קבלה, you were מקבל, the object has to be שמור. Right. So that object is שמור. The problem is you, that's the whole ווארט. If the object is שמור, as far as the בעלים is concerned, it's done. But the שאלה is, is am I responsible because I So that's that's קבלה, that's not שמירה. I'm holding you guilty in theory, and practically the item was watched. No, but who cares? But the other guys could say, \"We're only paying each one is paying a fifth, and you pay the other fifth.\" This is not about the other guys. This is about you're guilty in theory. No, it is. No, no, these guys don't want to pay. We're talking do they have a right to say, \"We're not paying and you pay a fifth\"? And they'll tell him, \"You pay a fifth\", and the שאלה, can he say, \"No\"? So from from the other guy's perspective, it's a it's an issue of שמירה. The other guys are talking about No, but he gave him also. But the שאלה is, since he was מקבל, does he have that responsibility? I I understand. Did he do anything wrong? So the the

way they're מסביר פשט in תוספות is that he did wrong.