Bava Batra 46a — the Talmud in English

Rather, is it not necessarily

because

there are no witnesses

to the handing over—

and

nevertheless

it teaches

in the beraita, a tannaitic source not included in the Mishna, that as long as the garment is in the craftsman's possession,

the craftsman is trusted?

And this must necessarily be because of the principle:

since, if he had wished, he could have said to him

“It is purchased and belongs to me,”

that is, since he could have said, “That never happened; you did not give it to me to repair—I bought it from you,”

he is also trusted regarding his fee [that is, he is trusted concerning the payment owed to him]. We have therefore learned that he is trusted to claim, “It is purchased and belongs to me,” when there are no witnesses to the handing over, in accordance with Rabba and not in accordance with Abaye!?

!?

And we answer:

No,

not as you explained the beraita. Rather,

actually, it is a case where there are no witnesses

to the handing over. Nevertheless, the craftsman is not trusted because he could have said, “That never happened.” Rather, what are we dealing with here?

It is a case where he was not seen

and there are no witnesses that the garment is in his possession. He is trusted regarding his fee because of the migo that he could have said, “I returned it.”

Rav Naḥman bar Yitzḥak raises an objection

to Rabba from our Mishna, as it teaches:

“A craftsman” [“craftsmen”]

мастера»]

does not acquire presumptive ownership.

And it follows:

It is specifically a craftsman who does not acquire presumptive ownership; but another person

who is not a craftsman

does acquire presumptive ownership.

But

what are the circumstances

of our Mishna, which distinguishes between a craftsman and another person?

If it is a case where there are witnesses

to the handing over, as Rabba explained the Mishna—“The statement was taught only when he gave it to him in the presence of witnesses”—and the reason is that if he gave it to him without witnesses, even the craftsman would be trusted by the migo of “That never happened,” then

another person

who, like the craftsman, has witnesses that the homeowner gave the item to him as a deposit—

why does he acquire presumptive ownership?

Since we know how the item came into his possession, it is not possible to say: “Anything in a person's possession is presumed to be his.”

Rather, is it not necessarily

that our Mishna is dealing with a case such as

one where there are no witnesses

to the handing over,

and

nevertheless

it teaches

in our Mishna:

“A craftsman does not acquire presumptive ownership”;

and

this is a conclusive refutation of Rabba,

who holds that when there are no witnesses, the craftsman is trusted based on the migo of “That never happened.” It is therefore compelled to be in accordance with Abaye: The intent of our Mishna is to teach that anyone who works as a craftsman is not trusted, even when it is not known that the item came into his possession in his capacity as a craftsman, because perhaps it did come into his possession in that capacity.

And we conclude: Indeed,

this is a conclusive refutation

of Rabba from our Mishna.

The Sages taught: If the homeowner's utensils became exchanged with other utensils at the craftsman's house,

the owner

the homeowner may use them

for example, he gave his garment to a launderer, and the launderer gave him another garment in place of his own:

He—

the homeowner—

may use them,

that garment that the craftsman gave him,

until the other person comes—

the owner of the garment—

and takes his own.

The reason will be explained later in the discussion.

But if his utensils became exchanged

at a mourner's house or at a banquet,

where he took another person's utensil instead of his own:

He may not use them until the other person comes and takes his own.

And we raise a difficulty:

What is different in the first clause,

where his utensils became exchanged at the craftsman's house, so that he is permitted to use them,

and what is different in the latter clause,

where his utensils became exchanged at a mourner's house or at a banquet, so that he is prohibited from using them!?

He said—

Rabbi Ḥiyya explained:

“Is it not common for a person to say to a craftsman,

‘Sell’ [on my behalf]

для меня]

‘my garment’

to someone else”?

That is, as a matter of strict law, he certainly may not use an item that is not his, since this is using another's property without permission. Rather, the reason that when his garment was exchanged at the craftsman's house he is permitted to use it is that one may say: The owner of the garment that he received from the craftsman had told the craftsman to sell his garment on his behalf, but the craftsman mistakenly sold this person's garment. When the craftsman realized his mistake, he took the garment he had been told to sell and knowingly gave it to this person until he returned his own garment. Therefore, he is permitted to use the garment that the craftsman gave him—

But at a mourner's house or at a banquet, who permitted him to use another person's utensils!?

Rav Ḥiyya, son of Rav Naḥman, said:

The statement was taught only—

that he is permitted to use the garment given to him by the craftsman—

rather

when the garment was given to him by

him

[the craftsman himself].

But

if

the craftsman's wife and sons

were the ones who gave him the garment that was not his—

he may not

use it, because one may say that they mistakenly exchanged his garment for another person's garment.

And

the craftsman

also was not stated

to permit the recipient to use the garment when he gave him another garment,

except

in a case such as

when he said to him

at the time he handed over the garment: “Here is a

garment”

without specification.

In that case, one may say that the craftsman knew it was not his and knowingly gave him another garment—the one that had been given to him to sell.

But

if the craftsman said to him at the time he handed over the garment, “Here is

your garment”—

he may not

use it. Because

this is not his garment

[that is, this is not his garment]. In other words, in that case one may say that the craftsman mistakenly thought he was giving him his own garment.

Abaye said to Rava:

Come, I will show you the swindlers of Pumbedita

what they do,

[Come and I will show you how the swindlers of Pumbedita—the craftsmen there—deceive people]!

He said to him,

the homeowner to one of the craftsmen of Pumbedita:

“Give me my cloak”

[return my garment] that I gave you to repair!

He said to him,

that craftsman to the homeowner:

“That never happened,”

you never gave me a garment to repair!

The homeowner said to that craftsman:

And I have witnesses who saw it in your possession

[I have witnesses who saw a garment in your possession]!? However, the witnesses did not identify that garment as the homeowner's garment.

He said to him,

the craftsman to the homeowner:

“That was another one,”

[the garment that the witnesses saw in my possession belonged to someone else, not to you]!

The homeowner said to that craftsman:

“Take it out and let us see it”

[take out the garment, and let us see whether it is mine], so that you can clear yourself of suspicion!

That craftsman defended himself and

said to him

the homeowner:

“Indeed, I will not take it out,”

[in truth, I will not take it out]. That is, should I go and show you someone else's property merely because of the foolish claims you are making to me!?

Rava said: “He has answered you well,”

the craftsman answered Abaye well. That is, although they are swindlers, they are legally justified, and even the most upright Jews could make this claim.

And

for what reason

can the craftsman make this claim?