Bava Kamma 108b — the Talmud in English

This

if

he swore, even though he paid

him the value of the deposit, he does not transfer to him the right to the double payment. Rather,

to whom does

the thief pay the double payment, or four or five times the amount?

To the owner of the deposit.

And

Rava inferred this from the latter part. For it teaches: He swore and did not wish to pay,

the double payment belongs to the owner of the deposit. And he inferred: The principal

reason

that he does not transfer to him the double payment is because of

he did not wish to pay.

For if not, it should have said simply, “He swore,” without the continuation. And since the tanna added and said, “and did not wish to pay,” it may be proved:

if he paid,

even though he

also

swore,

the depositor transfers to him the right to the double payment. And

to whom does

the thief pay the double payment, or four or five times the amount?

To the one from whom the deposit

was stolen

while it was with him.

And now this is difficult for us: these inferences contradict one another. If so:

For Abaye, the latter part is difficult,

which is the source of Rava’s inference, for if he paid at the end, it is acceptable.

And we answer:

Abaye could say to you:

Do not infer as Rava inferred, that “he swore and did not wish to pay” means that he did not wish to pay at all, and then conclude that if he ultimately paid, he transfers the double payment to him. Rather,

this is what it teaches: He swore and did not wish to pay before the oath,

and not that he did not wish to pay at all,

but

even though he wished to pay

after the oath

[as is apparent from his actions, since he ultimately paid]. In any event, he does not transfer the double payment to the bailee, but

to whom does

the thief pay the double payment, etc.?

To the owner of the deposit.

And for Rava, the inference

from

the first part is difficult,

from there Abaye proved his ruling.

Rava could say to you:

Do not infer as Abaye did: “He paid and did not wish to swear, but if he also swore, he would not receive the double payment.” Rather,

this is what it teaches: He paid and did not wish to remain in the

exemption by which he was exempted from the depositor through

his oath, but

he also came

and paid,

the depositor retroactively transfers the deposit to him [and consequently the double payment belongs to him].

To whom does

the thief pay the double payment?

To the one from whom the deposit

was stolen

while it was with him.

The Gemara further discusses the law of the oath of bailees, which removes him from the status of bailee through his oath:

The owners sued the bailee

to return their deposit, and he claimed, “It was stolen from me,”

and swore

to this,

and the thief was identified,

and

the bailee sued him

in court,

and he admitted

that he had stolen it, and afterward

the owners sued

the thief in court

and he denied

the theft,

and they brought

the owners

witnesses

that the object was found in his possession and that he had stolen it.

Since there is the rule that one who admits a fine is exempt, and payment of the double amount is a fine,

do

we say that

the thief is exempt through his admission

to the

bailee,

from whom it was stolen, and he was the interested party; therefore, his claim against the thief is considered a claim, and likewise his admission is considered an admission? For it is obvious that if the thief admits his theft merely to a stranger, this is not an admission that exempts from the fine.

Or

do we say that

the thief is not exempt

from the double payment

through his admission

to the

bailee,

because once the bailee swore that it was stolen, he was thereby immediately released from the depositor, and he is no longer the interested party, and his claim is not a claim; consequently, the thief’s admission to him is not considered an admission that exempts from the double payment?

And we resolve it:

Rava said:

It depends on how the bailee swore.

If he truly swore

that it was stolen from him and not through negligence,

the thief is exempt through his admission

to the

bailee.

Since it is clear to us that if it had not been stolen, this bailee would have continued guarding it, for he is a genuine bailee and it is beneficial for the owners to leave it in his hands. Consequently, his guardianship did not cease through the theft and the oath, and the thief’s admission was to the interested party.

However,

if the bailee swore falsely,

claiming that it had died, broken, or been stolen through unavoidable circumstances, and it became clear that this was not so,

the thief is not exempt through his admission

to the

bailee,

for certainly the owners would not have continued leaving the deposit in his hands, and his guardianship ended; consequently, the thief did not admit to the interested party, and this is not an admission that exempts from the fine.

And further we raise a question:

Rava inquired:

Where the

bailee stood

to swear

falsely, and they did not let him

swear,

what is

the law? That is, is it because he stood ready to swear falsely that the owners already no longer believe him and he ceases to be a bailee? Or, since he has not yet sworn, he remains trustworthy to them and is properly considered a bailee, and the thief’s admission is considered an admission?

Teyku.

Rav Kahana taught

Rava’s words

as follows

—as we explained above, that when he swore falsely, it was obvious to him that the thief’s admission is not an admission.

But

Rav Taviyומי taught

Rava’s words

as follows:

Rava inquired: He swore

the bailee

falsely; what is the law?

Since he swore falsely, he will ultimately regret it and pay, and therefore his claim against the thief is a claim, for he is still obligated to pay; consequently, the thief’s admission is an admission to the interested party.

Or perhaps, since he swore falsely, he ceased being a bailee, and the thief’s admission to him is not considered an admission that exempts from the fine.

Teyku.

And further we inquire the opposite of the above:

The owners sued

the unpaid bailee to return his deposit,

and he paid,

for the law is that the double payment belongs to him.

And

afterward

the thief was identified, and the owners sued him, and he admitted

that he had stolen it, and afterward

the bailee sued him, and he denied

it to him. And the bailee went

and brought witnesses

that in truth he had stolen it.

Whether

the thief is exempt through his admission

that he admitted to the

owners, or not

exempt through this admission.

And the reason for the uncertainty is:

Do we say

[do we say] that

the bailee can say to the owners:

Indeed, the object was yours when it was in my possession, but now

you, since you took the value from me,

[since you took from me the value of the deposit for yourselves]

have withdrawn from here,

and your claim against the thief is no longer considered the claim of an interested party; consequently, his admission too is not considered an admission that exempts from the fine.

Or perhaps, they can say to him:

the owners can say to the bailee: I am still the interested party, for

just as you acted for us

[did for me]

a favor

—namely, you paid me the value of the deposit although you were not obligated to do so—so

we too

are obligated to do you a favor, and

we will do for you

the favor to which I became obligated, namely

we will trouble ourselves after the thief,

and then

we will take for ourselves

the deposit

that is ours, and you take the money that is yours,

and consequently he is considered the interested party, and his claim is the claim of an interested party, and likewise the thief’s admission is an admission that exempts from the double payment.

Teyku.

Until now we have learned that the bailee’s oath removes him from being a bailee. Now the Gemara discusses whether he can remove himself through an oath:

It was stated: It was stolen through unavoidable circumstances

by armed bandits.

And

before the bailee managed to swear about this,

the thief was identified,

and now he has two possibilities: one, to swear that it was taken through unavoidable circumstances and be exempt; and the second, to sue the thief, since he is the bailee of the object.

Abaye said:

The matter depends:

if he is an unpaid bailee,

since an unpaid bailee is exempt from theft, he is not obligated to pursue it, and consequently the two possibilities mentioned above are available to him.

If he wishes,

the bailee pays the owners beyond the strict letter of the law,

and he brings him

[the thief]

to judgment

—he sues him in court. And if

he wishes

not to pay,

he swears

and is exempt, and the owners will deal with the thief.

If he is a paid bailee,

who is liable for theft, he pays the owners the value of the stolen object, and

he brings him

—that is, the robber—

to judgment.

For it is incumbent upon him to return the object to the owners and not have it remain in the hands of thieves.

Although he is exempt in cases of unavoidable circumstances, his exemption is only from payment; and here he will in fact not pay, since the thief is before us and he will pay. But he is obligated to return the object to its owners from the hands of the thief, because a paid bailee is liable for theft.

And Rava

disagreed

and said

that there is no difference between a paid bailee and an unpaid bailee; rather,

both the one and the other

pay the money to the owners,

and bring him

—the robber—

to judgment.

For it is a mitzva for the bailee to pursue the lost object.

And the Gemara raises an objection:

Let us say that Rava disagrees

with

the

method of

Rav Huna bar Avin?

For Rav Huna bar Avin sent: It was stolen through unavoidable circumstances

by an armed bandit,

and the thief was identified; if he is an unpaid bailee

—who is exempt from theft—

if he wishes,

he pays beyond the strict letter of the law

and brings him

—the robber—

to judgment,

and if

he wishes

not to pay,

he swears

and is exempt, and the owners sue the thief.

And the Gemara answers:

Rava could say to you:

Rav Huna too holds that an unpaid bailee also brings him to judgment.

Rather,

here,

with Rav Huna,

with what are we dealing

[what did he speak about]?

For example, he preceded and swore

before the thief was apprehended, in which case he was exempt according to his law through the oath and had already withdrawn from his guardianship.

But this is difficult: it is impossible to interpret it this way,

for it says, “if he wishes, he brings him to judgment; if he wishes, he swears,”

which implies that he had not yet sworn.

And the Gemara answers:

This is what it says:

If

the unpaid bailee wishes, he stands by his oath

that he swore before the thief was found, and is exempt. And if

he wishes

to act beyond the strict letter of the law, even though he has already sworn, he pays

and brings him

—the thief—

to judgment.

We learn above that Abaye and Rava hold that the guardianship of a paid bailee does not end through theft under unavoidable circumstances; rather, where the money will not be lost, he is obligated to see to returning the deposit to its owners. However, there is one who apparently disagrees with them:

For

Rabba Zuta formulated it

for this law about which Abaye and Rava were speaking

as follows:

It was stolen through unavoidable circumstances

from the house of a paid bailee [for if it were speaking of an unpaid bailee, it should have said simply, “It was stolen”],

and the

thief

returned his theft and placed it

in the bailee’s house, and

afterward

it died through negligence; what is

the law of this one?

Do we say

[do we say]

since it was stolen through unavoidable circumstances

and a paid bailee is exempt in cases of unavoidable circumstances,

his guardianship is ended

[ended]

and

he is no longer its bailee?

Or perhaps, since it returned

to his domain,

it returned

[the deposit returned]

to his guardianship.

Teyku.

Mishna:

1. One who accepts a deposit to guard it according to the law of an unpaid bailee, and the owner of the house came and demanded,

“Where is my deposit?”

and

he said

to him, the bailee,

“It was lost. I adjure you,” and he said

the bailee,

“Amen”

—and thereby accepted an oath upon himself—

and

there came

the witnesses

and

testified against him that he had consumed it,

and it was found that he had sworn falsely,

he pays the principal.

But if, after they sued him and he swore falsely, he subsequently

admitted of his own accord,

the law is that he

pays the principal, a fifth, and a guilt-offering,

as it is stated: “When a man or woman commits any of the sins of man, etc., and they confess their sin which they committed, he shall restore his guilt in its principal, and add its fifth to it, and give it to the one to whom he is guilty.” The Sages expounded from the fact that it is written, “and they confess,” that one who swore falsely pays a fifth and a guilt-offering only when he admits of his own accord.

2. He said to the bailee,

“Where is my deposit?” He said to him, “It was stolen. I adjure you,” and he said, “Amen,”

—and accepted an oath upon himself—

and

there came

the witnesses

and

testified against him that he had stolen it

for himself;

he pays a double payment,

for one who claims a claim of theft concerning a deposit pays like the thief himself.

But if, after he denied the deposit and swore, he subsequently

admitted of his own accord, he pays the principal, a fifth, and a guilt-offering

as the law of one who swore falsely, and he does not pay the double payment, because one who admits a fine is exempt.

3.

One who robs his father and swears to him

that he did not rob him,

and

his father dies, and afterward he admits that he robbed him ,

even though he has a share in the robbery by the law of inheritance,

he pays

the entire principal and

the

fifth

and the guilt-offering

to his sons

of the robbed party, who are the robber’s brothers,

or to his brothers

of the robbed party when he has no sons.

Because he must fulfill his obligation before Heaven and remove the robbery from his possession.

And if he does not wish

to lose his share in the inheritance,

or he does not have

sufficient assets by which he could relinquish his share, the Sages enacted that he

borrow

money in the amount of the share he has in the robbed object,

and the

creditors come and collect

from his brothers his share in the inheritance.

4.

One who says to his son, “Konam,”

the wording of a vow,

“You shall not benefit from what is mine; if he dies,

the father,

we shall inherit him,”

his son inherits him, because after his death his assets are no longer his but his son’s.