Bava Kamma 118a (קיח.) — the Talmud in English

Rav Pappa said: What are we dealing with there

what is the case under discussion -

for example, where he robbed another of a field and there was

a cow crouching in it,

and the robber did not pull the cow, [and therefore the status of the cow is like that of the land],

and a river swept it away; this is in accordance with Rabbi Elazar’s reasoning,

who said that land can be robbed and that one acquires the cow together with it, and is liable to pay, because movable property is acquired along with land,

while the Rabbis follow their own reasoning,

as he does not acquire either the field or the cow in it, and therefore he is exempt for what was lost.

Mishna:

One who robs another

of an object,

or one who borrows money from him,

money,

or one to whom he entrusted

an object, and the robbery, loan, or deposit took place

in a settled area.

He may not return it to him in the wilderness,

because if the other does not demand it, he cannot compel him to accept his debt or deposit in the wilderness, as the wilderness is not a place of safekeeping. And the other can say to him: Since you took it from me in a settled area, I want you to return it to me in a settled area and not in the wilderness.

But if he received a loan or deposit from another

on the condition that he leave for the wilderness

and repay him there,

he may return it to him in the wilderness,

and the other cannot prevent him.

Gemara:

We learned in the Mishna that if he borrowed from the lender in a settled area, he may not return it to him in the wilderness.

And we raise a contradiction

to this from what we learned in a beraita:

A loan

may be collected in any place. A lost object and a deposit

may be collected only in their place!

This implies that he may return the loan even in the wilderness.

Abaye said: This is what it means

to explain the beraita:

A loan is given to be claimed

by the lender

in any place,

for the lender has the upper hand and may demand the debt from the borrower anywhere after the repayment date; however,

a lost object and a deposit are not given to be claimed

by the owner of the lost object or deposit

except in their place.

We learned in the Mishna: If he borrowed

on the condition that he leave for the wilderness

and return it to him there, he may return it to him in the wilderness against the lender’s will.

And we inquire about it:

It is obvious

that he may return the loan in the wilderness, since he borrowed it on that condition.

And we answer:

It is necessary

for the Mishna to state this law only to introduce a case

in which he said to him,

the lender to the borrower:

“Let this

money be

a deposit with you”

in your possession,

“for I am leaving for the wilderness,”

as I am leaving for the wilderness,

and he said to him,

the borrower:

“I too want to leave for the wilderness;

if

I wish to return it to you there, I will return it to you,”

if I wish to return the money to you there, I will return it to you.

In such a case, he may return the money to the lender in the wilderness.

The novel point is that even though the borrower did not stipulate an absolute condition with the lender, since he said, “If I wish,” nevertheless, once the lender knew that the borrower too was leaving for the wilderness, he must accept the money.

Mishna:

One who says to another, “I robbed you,”

or who says to another,

“You lent me money,”

or who says,

“You deposited an item with me,”

meaning: I admit your claim that I robbed you, or that I received a loan or deposit from you, but

“I do not know whether I returned it to you or whether I did not return it to you” -

he is liable to pay.

Since the claimant asserts with certainty that the defendant owes him, and the defendant likewise admits that he owed him, but is uncertain whether he repaid him, uncertainty cannot displace certainty, and he is liable to pay.

But if he said to him,

the defendant to the claimant:

“I do not know

whether I robbed you, whether you lent me money, or whether you deposited an item with me,” -

as he is uncertain about the claim itself -

he is exempt from payment.

Gemara:

It was stated:

One who claims against another with certainty:

“A maneh

is

in your possession!” And the other,

the defendant,

says

with uncertainty:

“I do not know

whether you have a maneh in my possession.”

Rav Huna and Rav Yehuda say: He is liable

the defendant is liable to pay.

And Rav Naḥman and Rabbi Yoḥanan say: He is exempt

from payment, but he is liable to take an oath that he does not know that he owes him anything, since a claim based on uncertainty is no stronger than a claim made with certainty; and had he asserted with certainty that he owed him nothing, they would have imposed upon him a shevuat heset.

Rav Huna and Rav Yehuda say: He is liable

to pay, because they maintain that when one party asserts a claim with

certainty and

the other asserts a claim with

uncertainty -

the claim of

certainty is stronger,

and we accept his claim that the defendant owes him a maneh.

Rav Naḥman and Rabbi Yoḥanan say: He is exempt

from payment, because they maintain:

“Establish the money in the possession of its owner,”

leave the money in the presumptive possession of its owner, and one does not extract money from the defendant.

We learned

in our Mishna:

“But if he said to him

to another,

‘I do not know whether you lent me money’” -

he is exempt.

And we inquire about it:

What are the circumstances

of the case?

If we say that he did not demand it from him,

if the case is one in which his fellow did not demand from him with a claim made with certainty: “I lent you a maneh,” and he is therefore exempt when he claims with uncertainty, “I do not know whether you lent me money” -

if so,

the first clause also

deals with a case

in which he did not demand it from him,

in which he did not demand it from him with a claim made with certainty; and it is difficult:

why is he liable

to pay when the borrower claims that he certainly borrowed and does not know whether he repaid? After all, money is not extracted from a person merely because he is uncertain whether he owes it.

Rather,

one must say that the Mishna is speaking of a case

in which he demanded it from him,

and the claimant asserts with certainty that the defendant owes him money,

and it teaches in the latter clause:

that if the defendant asserts with uncertainty, “I do not know whether you lent me money,” he is

exempt from payment!

This presents a difficulty for Rav Yehuda and Rav Huna, who maintain that when the claimant asserts with certainty and the defendant asserts with uncertainty, we follow the claimant’s claim of certainty, and the defendant is liable to pay the claimant.

And we answer:

No,

there is no necessity to establish the Mishna as referring to a case in which the claimant demands it from him with a claim of certainty. Rather,

in all cases

the Mishna is speaking of a case

in which he did not demand it from him, and the first clause,

which says that he is liable to pay, is speaking

of one who seeks to fulfill his obligation before Heaven,

because since he admits that he certainly borrowed or robbed the item, he does not fulfill his obligation before Heaven until he returns the loan or the stolen property. But as a matter of strict law he is indeed exempt, since he does not know whether he is liable and his fellow does not demand it from him.

But in the latter clause of the Mishna, since neither the borrower nor the lender knows, and there is no claim of certainty at all, he need not fulfill his obligation before Heaven.

It was stated likewise,

that where one seeks to fulfill his obligation before Heaven, even the one who says that he is exempt under human law when the claimant asserts with certainty and the defendant with uncertainty agrees that he is liable under the laws of Heaven when there is at least some claim of certainty, as

Rabbi Ḥiyya bar Abba said that Rabbi Yoḥanan said: One who says to another, “I have a maneh in your possession,” and the other says, “I do not know” -

is liable when seeking to fulfill his obligation before Heaven.

Mishna:

One who steals a lamb from the flock and returns it

the thief returns it to the flock without informing the owners.

And it dies

the lamb

or is stolen -

the thief is liable

the original thief

for its responsibility,

because from the moment he stole the lamb, it entered his possession, and the return he performed is not considered a valid return until he informs the owners that he returned it.

The owners did not know either of its theft or of its return, and they counted

the owners counted

the flock

after the thief returned it,

and it was complete,

the flock, with none of the sheep missing -

he is exempt,

because the owners’ awareness regarding the stolen sheep is present, since it was found among their flock.

\Gemara:\

Rav said:

the theft

known

to the owners—if the owners knew that a lamb had been stolen from them—

requires

the

knowledge

of the owners when the stolen animal returns to the owners’ possession in order to fulfill the mitzva of returning the stolen item. If he did not inform the owners that the stolen animal had returned, even though the owners counted the flock, and it emerged that the entire flock was in their possession, the thief is nevertheless still liable for the stolen item. Since the owners knew of the theft, the theft is considered a complete robbery, and in order to return the stolen item, an exemplary return with the owners’ knowledge is required.

And if the theft was

unknown

to the owners, as they had not realized before the thief returned the stolen animal that one was missing from the flock, and after the thief returned the flock the owners counted the flock and found that all of them were present,

the count

that the owners conducted

exempts

the thief from liability for the theft.

And when it teaches

in the Mishna:

“and they counted

the owners

the flock, and it was complete”—

according to Rav, this refers

to the latter clause

and applies to a case in which the owners did not realize either the theft or its return. But in a case in which the owners knew of the theft, counting is not effective; rather, they must know that the stolen animal has returned.

And Shmuel said:

A theft

whether known

to the owners

or unknown

to the owners—

a count

by which the owners count their flock and see that the animal [which had been stolen without their knowledge] is present

exempts

the thief from liability, and through this the requirement to return the stolen animal to its owners has been fulfilled.

And when it teaches

in the Mishna:

“and they counted

the owners the flock

and it was complete, he is exempt

the thief from liability”—according to Shmuel,

the entire Mishna

is being discussed, and even when the owners recognized the theft before the thief returned the animal to the flock, the thief fulfills the requirement of returning the stolen item when the owners count the flock.

And Rabbi Yoḥanan says:

A theft

known

to the owners—

a count

by which the owners count the flock in the fold and know the number of animals in the fold

exempts

the thief from liability.

But a theft

unknown

to the owners, as the owners did not know of the theft before the thief returned the animal

even a count

to count the flock

is also not required

for the thief to be exempt from liability; rather, as soon as he returned it to the flock, he became exempt from liability.

And when it teaches

in the Mishna:

“and they counted

the owners

the flock, and it was complete”—

according to Rabbi Yoḥanan, this refers

to the first clause,

where the owners knew of the theft before the thief returned the animal. And this is how the Mishna is to be explained: One who steals a lamb, and the owners know of the theft, remains liable for the animal as long as the owners have not counted the flock. But if the owners did not know of its theft or its return, then even if the owners did not count the flock—or if the owners counted the flock, even if they did know of the theft—the thief is exempt from liability.

Rav Ḥisda said:

A theft

known

to the owners—

a count

by which the owners count the flock that had been stolen

exempts

the thief from liability.

And a theft

unknown

to the owners

requires

the

knowledge

of the owners at the time the stolen item is returned. As long as the owners do not know, even if they counted the flock and knew the number of animals in their possession, the thief remains liable for the stolen item.

And when it teaches

in the Mishna:

“and they counted

the owners

the flock, and it was complete”—

according to Rav Ḥisda, this refers

to the first clause,

and this is how the Mishna is to be explained: “He is liable for the animal” applies whether the owners counted the flock or whether they did not count it. When does this apply? When the owners did not know of its theft or its return. But if the owners who knew of the theft counted the flock after the stolen animal’s return, the thief is exempt from liability.