Bava Kamma 104a (קד.) — the Talmud in English

Since he had already admitted on his own and sought to fulfill his obligation before Heaven, he is not exempt from punishment until the stolen property reaches the victim. Accordingly, the Mishna’s ruling would apply when he admitted, even if he did not take an oath; yet the wording of the Mishna implies that it applies specifically when he took an oath?

and he sought to fulfill his obligation before Heaven, he is not exempt from punishment until the stolen property reaches the person from whom it was stolen. According to this, the case in the Mishna would be when he admitted, even if he did not take an oath. But the wording of the Mishna implies that it is specifically when he took an oath?

And we answered:

Rather, Rava said:

The dispute between Rabbi Tarfon and Rabbi Akiva applies whether he took an oath or did not take an oath. They disagree concerning the fundamental law of returning stolen property: whether he fulfills his obligation when the stolen property has not yet reached the victim. And our Mishna can be understood as following either Rabbi Tarfon or Rabbi Akiva.

The Mishna is different

in that it maintains that he is not obligated to bring the stolen property to the victim if he did not take an oath. Only when he does not know from whom he stole does he fail to fulfill his obligation before Heaven by placing the stolen property somewhere, since it is possible that the victim will never receive his property. That is not the case in our Mishna,

for since he knows from whom he stole and admitted it to him, since it is possible to return the money to its owner

as the victim is known,

it is as though he said to him

the victim,

“Let

the money

be in your possession”

as a deposit.

Therefore,

since

he took an oath, although he said to him, “Let it be in your possession,” since he requires atonement, it is insufficient until it reaches his possession

he does not achieve atonement through this until it reaches the victim’s possession.

But

if

he did not take an oath,

and he is subject to no obligation of atonement, but only to monetary restitution,

it remains a deposit in his possession until the victim comes and takes it.

We learned in the Mishna:

He may give it neither to his son nor to his agent

of the victim, to bring it to the victim; and if he gave it to him and it was lost through circumstances beyond his control, the robber is not exempt:

It was stated: With regard to an agent whom he appointed in the presence of witnesses,

one who had a deposit in another person’s possession, and the depositor appointed an agent to bring his deposit to him from the bailee, and did so in the presence of witnesses:

Rav Ḥisda said: He is an agent,

meaning, if the bailee handed the deposit to this agent, the bailee is no longer liable for it.

Rabba said:

Even an agent whom he appointed in the presence of witnesses

is not an agent,

and he is obligated to pay if the deposit is lost through circumstances beyond the agent’s control.

Rav Ḥisda said: He is an agent: This is why I troubled myself and established him

in the presence of witnesses, so that it would enter his authority

[Therefore, the depositor took the trouble to appoint the agent in the presence of witnesses so that, when the agent received the deposit, it would be as though it had entered the depositor’s possession.]

Rabba said: He is not an agent:

Because

this is what he said

the depositor to the bailee: “Know that

he is a trustworthy person;

this agent.

If you rely

on him,

rely;

and

if you wish to send it with him, send it with him” [Know that this agent is trustworthy, and if you wish to rely on him and send the deposit with him, send it with him], but he did not intend to place it in the agent’s possession as soon as it reached the agent.

know that this agent is trustworthy, and if you wish to rely on him and send the deposit through him, send it through him]. However, he did not intend for the deposit to enter the agent’s authority as soon as it reached the agent.

And the Gemara raises an objection to Rav Ḥisda from that which

we learned

in Bava Metzia 98b:

If one borrowed a cow, and the lender sent it

the lender to the borrower

by means of his son,

the lender’s, or

by means of his slave,

or

by means of his agent,

the lender’s,

or

if he sent it

by means of his son, by means of his slave, or by means of the borrower’s agent, and it died—

he is exempt,

the borrower, from liability for accidents involving the cow, and he does not become liable for them until the cow comes into his possession.

But

this “

agent”

of the borrower,

what are the circumstances

[In what manner did the borrower appoint him as an agent]?

If he did not appoint him

as such

in the presence of witnesses, how do we know

at all that he appointed him as an agent, such that the tanna calls him “his agent”?

Rather,

necessarily,

he appointed

him as an agent

in the presence of witnesses,

and it became known from them that he had appointed him as an agent,

and

nevertheless

it teaches

in the Mishna there that he is

exempt—

and if so,

it is difficult for Rav Ḥisda,

for according to Rav Ḥisda, since he appointed him in the presence of witnesses, we should say that once it came into the agent’s possession, it was as though it had entered the borrower’s possession, since that was the borrower’s intention; and if so, he should be liable!?

And we answer:

As Rav Ḥisda said

[later in the passage] in explaining the agent mentioned elsewhere, that he is

his hired worker or tenant

of the sender, since in that manner we know that he sent him, even when he did not appoint him in the presence of witnesses.

Here too,

this Mishna can be explained as not dealing with an agent whom the borrower appointed in the presence of witnesses, but rather

with his hired worker

of the borrower [a worker hired by him for a period]

or his tenant

[his roommate, whom he brought in to keep him company], for we know that he is his agent, although he did not appoint him in the presence of witnesses.

We further raise an objection to Rav Ḥisda from that which

we learned

in our Mishna:

He may not give

the robber

either to his son or to his agent,

of the victim; but:

This “

agent,”

what are the circumstances!?

If the victim did not appoint him

as his agent

in the presence of witnesses, how do we know!?

Rather, is it not that the victim appointed him

as his agent

in the presence of witnesses; and nevertheless we learned that he may not give it to him, which is difficult for Rav Ḥisda!?

They explained

[they interpreted our Mishna]

[he interpreted our Mishna]

Rav Ḥisda: With his hired worker or tenant

of the victim.

And we raise an objection to this:

But if it is an agent whom he appointed in the presence of witnesses, what is the law? Is it indeed also the case that he is an agent!?

But if so, the following difficulty arises:

Rather than teach in the latter clause

of our Mishna: “He may not give it ... to his agent,

but he may give it to an agent of the court,”

it should follow that, according to Rav Ḥisda:

let the tanna distinguish

the tanna

and teach the distinction within that case

[let the tanna distinguish with regard to the ordinary agent of whom he spoke initially], as follows:

When are these matters stated,

that he may not give it to him? Only

with regard to an agent whom he did not appoint in the presence of witnesses; but with regard to an agent whom he appointed in the presence of witnesses, it is indeed the case that he is an agent;

and since the tanna distinguished only between two types of agents, this implies that he may not give it to the victim’s agent under any circumstances, which is difficult for Rav Ḥisda!?

They said

the scholars of the academy, rejecting the proof: It can be said that he may indeed give it even to an agent whom he appointed in the presence of witnesses, but the tanna did not mention this distinction because

it is not conclusive for him;

this law is not fixed and absolute in every case, as will be explained, and he therefore cannot state without qualification: “But he may give it to an agent whom he appointed in the presence of witnesses.”

An agent of the court,

for

it makes no difference,

there is no difference in the law between

whether the victim appointed him or whether the robber appointed him—he is an agent; it is conclusive for him

[the law is fixed and absolute], and the tanna can state without qualification: “But he may give it to an agent of the court.”

But

with regard to an agent whom he appointed in the presence of witnesses, since when the victim appointed him he is an agent, but when the robber appointed him he is not an agent, it is not conclusive for him

to state without qualification: “But he may give it to an agent whom he appointed in the presence of witnesses.”

And

since it is compelled by our Mishna—that is, from the fact that it did not distinguish with regard to the agent himself—that an agent of the court includes even one whom the robber appointed, we learn from our Mishna

to exclude

[to remove]

from

the view of

this tanna, as it was taught:

Rabbi Shimon ben Elazar says: An agent of the court whom the victim appointed and

nevertheless

not

when

the robber appointed him, or

even if

the robber appointed him, and the latter sent

[the victim]

an agent who took his property from him,

and afterward it was lost through circumstances beyond his control,

he is exempt

the robber. Thus, according to this tanna, when the robber appointed an agent of the court and the property was lost through circumstances beyond the agent’s control, the robber is not exempt; whereas the view of our Mishna is not so. Rather, even when the robber appointed an agent of the court, he is exempt.

Rabbi Yoḥanan and Rabbi Elazar both said,

they both stated the view of Rav Ḥisda, that

an agent

whom he appointed in the presence of witnesses is an agent.

And they further said:

And if you would say

to raise an objection against our words from

our Mishna

[as the Gemara objected to Rav Ḥisda], for it implies that even an agent whom he appointed in the presence of witnesses is not an agent!?

We would say to you: What are the circumstances of our Mishna? It deals

with presenting him—

the victim to the robber—

with an agent;

that is, in a case where

he said to him,

the victim to the agent: “

I have money with so-and-so, and he is not sending it; go and show yourself to him, perhaps he is a person who cannot find someone to send it with” [I have money in the possession of so-and-so; go and appear before him, for perhaps he cannot find an agent to whom he can send it, and he will send it with you]. Consequently, he did not appoint him as his own agent; rather, he provided the robber with an agent.

I have money in the possession of so-and-so; go and show yourself to him, since perhaps he cannot find an agent to send it through, and he will send it through you. It follows that he did not appoint him as an agent, but rather he established an agent for the robber.

Alternatively,

our Mishna can be explained

in accordance with Rav Ḥisda,

who explained it as dealing

with his hired worker or tenant.

Rav Yehuda said in the name of Shmuel: