Acquiring the rights of kefel TB Baba Metzia 34

Today’s daf Baba Kama 34 is the continuation of the Mishnah found on yesterday’s daf. We are introduced to three different categories of guardians. The first guardian (shomer khinom-שׁוֹמֵר חִנָּם) accepts to watch the object without any payment. He is only liable for negligence. The next guardian is paid (shomer sakhar- שׁוֹמֵר שּׂוֹכֵר) to watch the object. He is also liable for theft and lost.  The last guardian is a borrower (shoel- שׁוֹאֵל). He is liable for everything except when the animal died due to ordinary labor (מֵתָה מֵחֲמַת מְלָאכָה).

If the guardian takes an oath that he fulfilled his obligation and not liable, he does not have to reimburse the owner. “In the case of a bailee (in this case a shomer khinom-gg) who took an oath and did not wish to pay, if the thief is then found and required to pay the double payment (kefel- כֶפֶל),  or if he slaughtered or sold the animal and is required to pay the fourfold or fivefold payment, to whom does the thief pay? He gives the payment to the owner of the deposit, not the bailee.” (TB Baba Metzia 33b, Sefaria.com translation)

The guardian also has the opportunity to pay for the animal and thus acquire the rights to the double payment or the fourfold or fivefold payment. Rabbi Yoḥanan introduces a khidush (חִידוּשׁ), an innovation. All the guardian has to choose to pay for the animal even though he has not yet paid, acquires the rights of kefel. Rav Pappa qualifies Rabbi Yoḥanan’s innovation. The guardian has to have the ability to exempt himself from all payment.

“Rav Pappa says: In the case of an unpaid bailee, once he stated: I was negligent, thereby rendering himself liable to compensate the owner, the owner transfers rights to the double payment to him, as, if the unpaid bailee ((shomer khinom-שׁוֹמֵר חִנָּם)) wishes, he can exempt himself from that liability with the claim of theft. Admitting negligence is tantamount to agreeing to pay rather than taking an oath. Likewise, in the case of a paid bailee (shomer sakhar- שׁוֹמֵר שּׂוֹכֵר), once he stated: It was stolen, the owner transfers rights to the double payment to him, as, if the paid bailee wishes, he can exempt himself from that liability with the claim that the animal was maimed or died due to circumstances beyond his control.” (Sefaria.org translation)

The borrower (shoel- שׁוֹאֵל) doesn’t have the same benefit of just choosing to pay for the animal and acquiring the rights of kefel. He has all the benefits of the animal and the owner has none. Consequently, if he wants to acquire the rights of kefel, he must pay for the animal outright. Even though he is exempt from payment if he swears that the animal died due to ordinary labor, dying do to ordinary labor is so rare he has to bring collaborating proof before being exempt.