Aveida Midaat

Bava Batra (5:9) | Yisrael Bankier | 6 years ago

The Mishnah (5:9) discusses the case of one who sends his child to the store to buy some oil. The child is sent with a glass flask to contain the oil and a pundyon (a coin) to purchase it. The shopkeeper pours the oil into the flask and then give the child change. The Chachamim argue that the shopkeeper is responsible if the flask is dropped and breaks and the change is lost on the journey home. R' Yehuda disagrees. The Bartenura explains that the Chachamim maintain that the child was only sent inform the shopkeeper that the parent wanted to purchase oil and not that it should be sent back with the child whose not responsible to care for it.

The Bartenura continues that the Gemara asks why the shopkeeper would be responsible for the flask. From the outset it was given to the child to look after. With respect to the flask, it should be considered an aveida midaat – an intentional loss. The Gemara answers that in this case, the shopkeeper used the flask to measure out oil for other customers. In other words, he borrowed the flask without the knowledge of the owner, which is considered robbery. Consequently, from then until it reaches the hands of the owner, the shopkeeper is responsible for any damage caused to the flask.

The Tosfot Yom Tov cites the Tosfot who explain that the pundyon would also be considered aveida midaat. Nevertheless, since the pundyon reached the hand of the shopkeeper, he is responsible for that which he gave in exchange.

The Tifferet Yisrael however explains that despite the fact that the parent gave the child the pundyon, he could argue that the he was not concerned that the child would lose the large coin. The change, the issar, which is a smaller coin however is different. He could claim that he was not happy to trust the child it. Consequently the shopkeeper is responsible for the loss. R' Yonah argues similarly that if the flask falls it will break. If the pundyon falls, the child will simply retrieve it. Consequently it is not considered an aveida midaat.

How do we understand aveida midaat?

The Rambam (Gezeila VeAveida 11:11) explains, by way of example, that if one throws their wallet into the street, even though one is not allowed to take the wallet for themselves, they are nevertheless exempt from returning the lost object. Put simply aveida midaat exempts one from hashavat aveida.

The Tur (261:4) however disagrees and argues that aveida midaat is equivalent to hefker; it is considered as if the owner rendered it ownerless. The Beit Yosef however counters that just because one is not willing to take proper care if his belongings, this does not mean that they are rendered ownerless.

The Ketzot (261:1) cites our Mishnah as a difficulty on the Tur. Recall that the shopkeeper is responsible to return the pudyon in the event that the issar is lost and the tzluchit breaks. We cited the Tosfot that despite the pundyon being an aveida midaat, since it reached the shopkeeper's hand, he is responsible for that which it was exchanged for. The Ketzot explains that if aveida midaat is considered hefker, then once it reaches the shopkeeper's hand it should be considered his, and anything he gave to the child would then only be considered a gift for which he would not be responsible. Similarly, he should not be considered a robber when using the flask since according to the Tur it would be considered hefker. In short, according to the Tur, the shopkeeper should not be responsibility for any subsequently loss.

The Ketzot therefore reasons, that the Tur would agree in our case, where the items were placed in the care of a minor that they are not hefker. The opinion of the Tur, that the object is hefker, is only when object is placed in a completely unprotected area.

Based on the above distinction, the Ketzot takes issue with the Bach. The Bach rules that if one gave a ring to a child, and then another took that ring and used it for kiddushin (betrothal), then it would work. That is because, since the ring was given to the child to play with, it is considered an aveida midaat and the ring is hefker. Consequently, the ring used for betrothal belonged to the one performing. The Ketzot however argues, based on our Mishnah, that while the case is indeed an aveidah midaat, the Tur would agree that if it was in the child's care, it would not be considered hefker. Consequently the subsequent kiddushin would not be valid.

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