- Returning a lost item without the owner’s knowledge
Rabbah challenged Rav Yosef (who holds that someone guarding a lost item is a שומר שכר), from a Baraisa which derives that one may return a lost item not only to the owner’s house, but even לגינתו ולחורבתו – to his garden or deserted building. If the garden and deserted house are secure (and can protect the item even from abnormal mishaps, such as an unusually strong wind), it is not a greater novelty than returning to his house! Rather, it must be a garden שאינה משתמרת – which is not secure, yet he may return the item there. This proves his responsibility is only equal to a שומר חנם!?
The Gemara answers that the garden is secure, and the additional novelty is that he may return it there without the owner’s awareness. This reflects Rebbe Elazar’s ruling: הכל צריכין דעת בעלים – Every item being returned (such as a stolen item or פקדון) requires the owner’s awareness that it was returned (otherwise, he is still responsible for it), חוץ מהשבת אבידה – except when returning a lost item, which may be returned without the owner’s knowledge, שהרי ריבתה בו תורה השבות הרבה – because the Torah included many types of returning.
- הטוען טענת לסטים מזויין
Abaye attempted to prove to Rav Yosef that a שומר אבידה is a שומר חנם, based on Rebbe Yochanan’s statement: הטוען טענת גנב באבידה – One who makes a claim and swears about a thief having stolen a lost item he had found, when in truth he was holding it for himself, משלם תשלומי כפל – he pays double payment as if he had stolen it. If someone caring for a lost item is a שומר שכר, as Rav Yosef said, he would be liable to pay the principle when claiming it was stolen (and would not pay double for the false claim)!? Rav Yosef answered that the case is: כגון שטוען טענת לסטים מזויין – where he makes a claim it was stolen by an armed robber, which is an אונס, for which even a שומר שכר is exempt. Therefore, he pays double for falsely claiming so. Although one only pays double for a claim of theft by a גנב (one who steals secretively), and not a גזלן (one who robs openly through force), Rav Yosef holds about an armed robber: כיון דמיטמר מאינשי – since he hides from people, גנב הוא – he is classified as a גנב.
- One who volunteers to pay for a rented cow which was stolen from him
A Baraisa is quoted in support of Rav Yosef’s assertion that an armed robber is considered a גנב: If someone rented a cow and it was stolen, and instead of swearing to exempt himself he said: הריני משלם ואיני נשבע – I shall pay and not swear, and the thief was later found, משלם תשלומי כפל לשוכר – he pays the double payment to the renter (because by paying for it voluntarily, he acquires the stolen cow). The Gemara assumes that this Tanna holds that a שוכר – renter has the same responsibilities as a שומר שכר, and would be liable for theft. If so, the Baraisa which says he could have sworn to exempt himself must refer to a theft by a לסטים מזויין, which is an אונס, yet it still teaches that the robber pays double, which proves that a לסטים מזויין is considered a גנב! The Gemara answers that this Tanna holds that a שוכר has the responsibilities of a שומר חנם, and the Baraisa may refer to an ordinary גנב, for which he could be exempt by swearing.
