Bava Kamma 104a — the Talmud in English

since he had already admitted it of his own accord, and came to fulfill the obligation before Heaven, he is not exempt from punishment until the stolen property reaches the one who was robbed. And according to this, the law of the Mishna would be when he admitted, even if he had not sworn; whereas from the wording of the Mishna it follows that it is specifically when he swore

?

And we answered:

Rather, Rava said:

The dispute between Rabbi Tarfon and Rabbi Akiva is whether he swore or whether he did not swear, and they disputed the fundamental law of returning the property: whether he fulfills his obligation when the stolen property has still not reached the one who was robbed. And our Mishna can be established either according to Rabbi Tarfon or according to Rabbi Akiva.

The Mishna is different

because it holds that he is not obligated to bring the stolen property to the one who was robbed if he did not swear. It is only when he does not know from whom he stole that he does not fulfill his obligation before Heaven by depositing the stolen property, since it is possible that the one who was robbed will never receive his property. This is not so in our Mishna,

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

for the one who was robbed is known,

it is as though he said to him

the one who was robbed:

Let there be for me

the money

in your possession

as a deposit.

Therefore,

since

he swore, even though he said to him, “Let there be for me in your possession,” since he requires atonement, it is not sufficient until it reaches his possession,

he is not atoned for by this until it reaches the possession of the one who was robbed.

But

if

he did not swear,

and there is no obligation of atonement upon him, but only payment,

it is a deposit with him until he comes and takes it.

We learned in the Mishna:

He may not give it either to his son or to his agent

of the one who was robbed, to bring it to the one who was robbed; and if he gave it to him and it was lost through an unavoidable accident, the robber is not exempt:

It was stated: An agent whom he appointed through witnesses,

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

Rav Ḥisda said: He is an agent,

that is, if the depositary handed the deposit over to this agent, the depositary is no longer responsible for it.

Rabba said:

Even an agent whom he appointed through witnesses

is not an agent,

and he is obligated to pay if the deposit was lost through an unavoidable accident while in the agent’s possession.

Rav Ḥisda said: He is an agent: For this reason I took the trouble and established him

through witnesses, so that it would stand in his authority

so the depositor took the trouble to appoint the agent through witnesses, in order that when the agent received the deposit, it would be as though it had entered the authority of the depositor.

Rabba said: He is not an agent:

For

this is what he said

the depositor to the depositary: “Know that

he is a reliable person,

this agent;

if you rely

on him,

rely,

and

if you wish to send it through him, send it through him”

Know that this agent is a reliable person, and if you wish to rely upon him and send the deposit through him, send it through him; but he did not intend to place it in the agent’s authority as soon as it reached the agent’s possession.

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

we learned

in Bava Metzia 98b:

If one borrowed the cow, and the lender sent it

the lender to the borrower

by means of his son,

the son of the lender, or

by means of his slave,

or

by means of his agent,

of the lender,

or

if he sent it

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

he is exempt,

the borrower, from liability for unavoidable 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 which the borrower made him an agent!?

If he did not appoint him

as an agent

through witnesses, how do we know

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

Rather,

necessarily

he appointed

him, the borrower, as an agent

through witnesses,

and through them it became known that he 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 through witnesses, we should say: once it came into the agent’s possession, it is as though it came into the borrower’s authority, since this was the borrower’s intention; and if so, he should become liable!?

And we answer:

As Rav Ḥisda said

later in the discussion, to explain the agent mentioned elsewhere, that he is

his hired laborer and tenant

of the sender, and through this we know that he sent him even when he did not appoint him through witnesses.

Here too

this Mishna may be explained as not dealing with an agent whom the borrower appointed through witnesses, but

with his hired laborer

of the borrower—a worker hired by him for a period

and tenant

whom he brought into his room, whom he gathered to be in his company— so that we know that he is his agent, but he did not appoint him through witnesses.

We further raise an objection against 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 one who was robbed; but:

This “

agent”

what are the circumstances!?

If the one who was robbed did not appoint him

as an agent

through witnesses, how do we know!?

Rather, is it not that he appointed him

the one who was robbed

through witnesses,

and nevertheless we learned that he may not give it to him; and this is difficult for Rav Ḥisda!?

Rav Ḥisda explained it

he explained our Mishna

as referring to his hired laborer and tenant

of the one who was robbed.

And we raise an objection to this:

But an agent whom he appointed through witnesses—what of him? Is it indeed also the case that he is an agent!?

For if so, there is a difficulty:

Rather than teaching the latter clause

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

but he may give it to a court agent,”

it follows that if it is as Rav Ḥisda said,

let the tanna distinguish

the tanna

and teach it with regard to this case

let the tanna distinguish regarding the ordinary agent of whom the tanna spoke at the outset, and distinguish as follows:

When are these words applicable,

that he may not give it to him? Only

with regard to an agent whom he did not appoint through witnesses; but an agent whom he appointed through witnesses—indeed, he is also an agent;

and since the tanna distinguished only between two types of agents, it follows that he may not give it to the agent of the one who was robbed under any circumstances, and this is difficult for Rav Ḥisda!?

They said

the members of the academy, rejecting the proof, that one may say: In fact, he may give it even to an agent whom he appointed through witnesses; but the tanna did not mention this distinction because

it is not definite for him,

this law is not fixed and absolute in every circumstance, as he proceeds to explain, and he cannot state without qualification: “But he may give it to an agent whom he appointed through witnesses”!

A court agent,

for

it makes no difference,

there is no difference in the law between

whether the one who was robbed appointed him or whether the robber appointed him, he is an agent; it is definite for him

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

But

an agent whom he appointed through witnesses: when the one who was robbed appointed him, he is an agent; when the robber appointed him, he is not an agent—it is not definite for him

to state without qualification: “But he may give it to an agent whom he appointed through witnesses.”

And

since it is compelled by our Mishna—from the fact that it did not distinguish with regard to the agent himself—that “a court agent” means even one appointed by the robber, we have learned from our Mishna

to exclude

to remove

from

the view of

this tanna, for it was taught:

Rabbi Shimon ben Elazar says: A court agent whom the one who was robbed appointed and

however

not

when

the robber appointed him, or

even

when the robber appointed him, and the other sent

the one who was robbed

an agent, and he took what belonged to him from his possession,

and afterward it was lost through an unavoidable accident,

he is exempt,

the robber. Thus, according to this tanna: when the robber appointed a court agent and the property was lost through an unavoidable accident while in the agent’s possession, he is not exempt; whereas the view of our Mishna is not so, but even when the robber appointed a court agent, he is exempt.

Rabbi Yoḥanan and Rabbi Elazar both said,

they both stated in accordance with the view of Rav Ḥisda, that

an agent

whom he appointed through witnesses is an agent.

And they added to say:

And if you should say

to raise an objection against our words from

our Mishna

as the Gemara raises an objection against Rav Ḥisda, for it follows that even an agent whom he appointed through witnesses is not an agent!?

We will say to you: With what are we dealing here, in our Mishna?

With one who presents to him

the one who was robbed to the robber

an agent;

that is, in a case where

he said to him

the one who was robbed to the agent: “

I have money with so-and-so, but he is not sending it; appear before him, perhaps he is a person who cannot find someone to send it to him,”

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 may be explained

according to Rav Ḥisda,

who explained it

as referring to his hired laborer and tenant.

Rav Yehuda said in the name of Shmuel: