Continuing our line of thought. Similarly, it would appear to explain with respect to the concept of "כאן נמצא כאן היה" in the obligation of "שאלה ומזיק".
TKO - [Thinking Kippot (or Kaps] On]: The Gemara [Niddah 58a] says:
בדקה חלוקה והשאילתו לחבירתה היא טהורה וחבירתה תולה בה. אמר רב ששת ולענין דינא תנן אבל לענין טומאה היא טהורה וחבירתה טמאה.
If a woman examined her shirt and then [having made sure that it is clean] lent it to her friend [who found a stain] she is clean, but her friend may attribute it [the stain] to her. R. Sheshes explained: This was learnt only in regard to the civil law [the lender, having no valid proof that the shirt was clean when she had lent it to the other, has no legal claim on the other for the cost of washing]
but as regards the law of uncleanness the lender is clean while her friend is unclean.
Asked Tosfos:
The borrower should have to pay for the cleaning because the stain was found in her רשות?! Just as we find in numerous cases - "כאן נמצא כאן היה". Since the stain was found in the רשות of the borrower, she should have to pay. Answered Tosfos in their second answer [it seems - the language is quoted in front of you so you can decide for yourself] that we only say כאן נמצא כאן היה to hold on to money but not to extract it from someone else! Since ours is a case of extracting money, we can't employ this principle!!
Asked the Sidrei Tahara [quoted by the Aruch La-ner]: NOT SO!! In Ksubos [76b] we see that "כאן נמצא כאן היה" also works to extract money!! The case is of a שוחט who purchased an animal that was subsequently found to be a טריפה [that could sort of rain on one's parade...] and the דין is that even though he has not yet paid for the animal, since we assume that it only became a טריפה in his רשות, but at the time of purchase it was kosher, he must NOW pay!!! So we see that even להוציא ממון we say "כאן נמצא כאן היה"?!! So why don't we say the same about the borrower of the garment and make her pay for the stain found in her possession!
Dum de dum dum - dummmmmmmmmmmmmmmmmmmmmmmmmmmmm!!!!
We can interpret Tosfos as follows, by answering a question - with a question. So Jewish!!
What is the reason that a borrower is obligated to wash a stain that came about when in his possession: Is it מדין מזיק, that when the stain was created while the garment was in his possession he damaged it and he therefore must either pay or clean it in order to undo the damage. Or is the obligation מדין שואל - a borrower must return an object in the same condition in which he received it.
It appears that there is a distinction in this with respect to the דין of כאן נמצא כאן היה when it comes to a stain. If the חיוב is בתורת שואל, then his obligation is not because of the act of creating the stain but rather because of the מציאות of the stain. He has to return a garment as he received it and the reality of the stain is a barrier to fulfillment of that obligation. Since the issue at hand is the stain qua stain, we say "כאן נמצא כאן היה". The place the stain was found is assumed to be the place of its birth [MAZEL TOOOIIIIVVV on the birth of your stain!!].
However, if we say that the obligation is בתורת מזיק then the root of the obligation is not that the stain was born in his רשות, but rather it is the ACT of damaging [מעשה מזיק] the garment that is the source of the obligation. But if we are not sure when the stain happened or who is responsible then we cannot say "כאן נמצא כאן היה" because the "מעשה מזיק" was never "found"!! All we have is a proof that at some point there was such an occurrence. So now we have a true, objective doubt as to when the damage occurred and "כאן נמצא כאן היה" will not help us. The fact that we found the in the possession of the borrower doesn't tell us that it actually happened in his possession - just that it happened at some point.
So "כאן נמצא כאן היה" IS effective to extract money, just as the Sidrei Tahara proved. But that doesn't help us when it comes to the stain on the garment, if we learn that the obligation to pay is בתורת מעשה מזיק.
The only problem is fitting our explanation into the worlds [I meant to say "words" but I like the typo, so I'll keep it] of Tosfos....
[עפ"י תורת מורינו הגאון רבי חיים שמואלביץ זצ"ל]
