Bava Kamma 118a — the Talmud in English

Rav Pappa said: There we are dealing with what?

what is the case there -

for example, he robbed a field from his fellow, and there was

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a cow lying in it,

and the robber did not lead away the cow, [and therefore the law of the cow is like the law of the land],

and a river swept it away; Rabbi Elazar follows his reasoning,

for he said that a field can be robbed and acquires the cow together with it, and he is obligated to pay , because movable property is acquired along with land ,

whereas the Rabbis follow their reasoning,

that he does not acquire the field, nor the cow within it, and therefore he is exempt for what was lost.

Mishna:

One who robs his fellow

an object,

or one who borrowed from him

money,

or one to whom he entrusted

an object, and the robbery, the loan, or the deposit was made

in an inhabited place.

He may not return it to him in the wilderness,

for if his fellow does not claim it from him, he cannot compel him to accept his debt or his deposit in the wilderness , because the wilderness is not a place of safekeeping. And his fellow can say to him: “Since you took it from me in an inhabited place, I want you to return it to me in an inhabited place and not in the wilderness.”

But if he received a loan or a deposit from his fellow

on the condition of departing into the wilderness

and repaying him there -

he returns it to him in the wilderness,

and his fellow cannot prevent him.

Gemara:

For we learned in the Mishna: If he borrowed from the lender in an inhabited place, he may not return it to him in the wilderness.

And we raise a contradiction

from what we learned in a beraita:

A loan -

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

may be collected only in their place!

It follows that he may return the loan even in the wilderness.

Abaye said: This is what it means

the beraita must be explained in this way:

A loan is given to be claimed

by the lender

in every place,

for the lender’s hand is uppermost, to claim from the borrower after the repayment time in every place; but

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

by the owner of the lost object and the deposit

except in their place.

We learned in the Mishna: If he borrowed

on the condition of departing into the wilderness

and returning 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, for he borrowed precisely on this condition.

And we answer:

It is necessary

The Mishna needed to state this law only in order to introduce the case

in which he said to him

the lender to the borrower:

Let this

this money

be a deposit with you ]with you],

in your possession],

for I am going out to the wilderness

for I am going out to the wilderness],

and he said to him

the borrower:

I too want to go out to the wilderness

I too want to go out to the wilderness]

if I want to return it to you there, I will return it to you

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

In this manner he may return the money to the lender in the wilderness.

And the novelty in this is that even though the borrower did not stipulate with the lender a complete condition, for he said, “if I want,” nevertheless, since the lender knew that the borrower too was going out to the wilderness, he must accept the money.

Mishna:

One who says to his fellow, “I robbed you,”

or who says to his fellow

“You lent me,”

or who says

“You deposited it with me,”

meaning: I admit your claim that I robbed you, or that I received a loan or a 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 obligated to pay.

Since the claimant asserts with certainty that the defendant owes him, and the defendant too admits that he owed him, except that he is uncertain whether he returned it, therefore uncertainty does not remove certainty, and he is obligated 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, whether you deposited it with me” -

for he is uncertain about the claim itself -

he is exempt from paying.

Gemara:

It was stated:

One who claims from his fellow with a certainty-claim:

“A maneh”

there is

“for me in your possession!” And the other,

the defendant,

says

with an uncertainty-claim:

“I do not know

that you have a maneh with me.”

Rav Huna and Rav Yehuda say: He is obligated

the defendant is obligated to pay.

And Rav Naḥman and Rav Yoḥanan say: He is exempt

from paying, but he is obligated to take an oath that he does not know that he owes him anything, for an uncertainty-claim is not superior to a certainty-claim; and if he had asserted with certainty that he owed him nothing, they would have imposed upon him an oath of inducement.

Rav Huna and Rav Yehuda say: He is obligated

to pay, because they hold that if one asserts a

certainty

claim and the other asserts an

uncertainty

claim - the

certainty-claim is superior,

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

Rav Naḥman and Rav Yoḥanan say: He is exempt

from paying, because they hold:

Establish the money in the possession of its owner,

establish the money as being in the possession of its owner, and we do not remove money from the defendant’s possession.

We learned

in our Mishna:

But if he said to him

to his fellow

“I do not know whether you lent to me” -

he is exempt.

And we inquire about it:

What are the circumstances

how is this the case?

If you say that he did not claim it from him,

if it is a case in which his fellow did not claim it from him with a certainty-claim: “I lent you a maneh,” and therefore he is exempt with his claim, which he asserts as an uncertainty-claim: “I do not know whether you lent to me.”

If so,

the first clause also

is a case

in which he did not claim it from him,

in which he did not claim it from him with a certainty-claim, and this is difficult:

why is he obligated

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

Rather,

it must be said that the Mishna speaks of a case

in which he claims it from him,

and the claimant asserts with a certainty-claim that he owes him money,

and it teaches the latter clause:

that if the defendant asserts an uncertainty-claim, “I do not know whether you lent to me,”

he is exempt from paying !

And this is difficult for Rav Yehuda and Rav Huna, who hold that when the claimant asserts certainty and the defendant asserts uncertainty, we follow the claim of the claimant, who asserts certainty, and the defendant is obligated to pay the claimant.

And we answer:

No,

there is no necessity to establish the Mishna as a case in which the claimant claims it from him with a certainty-claim; rather,

always

the Mishna speaks of a case

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

which says that he is obligated to pay speaks of a case

of coming out by the standards of Heaven,

for since he admits that he certainly borrowed or robbed, he does not come out by the standards of Heaven until he returns the loan or the robbed property; but according to the strict law he is truly exempt, since he does not know whether he owes, and his fellow does not claim it from him.

But in the latter clause of the Mishna, since neither the borrower knows nor the lender knows, and there is no certainty-claim at all, he need not come out by the standards of Heaven.

It was also stated,

that where he comes out by the standards of Heaven, even the one who holds that he is exempt by human law when the claimant asserts certainty and the defendant asserts uncertainty admits that he is obligated by the standards of Heaven when there is some certainty-claim, for

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

he is obligated when coming out by the standards of 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 it is stolen -

the first thief is obligated

the first thief

for its responsibility,

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

The owners knew neither of its theft nor of its return, and they counted

and counted

the flock

after the thief returned it,

and it was complete

the flock, and nothing was missing from the flock -

he is exempt,

since the owners’ awareness applies to the flock, for the stolen lamb was found in its possession.

Gemara:

Rav said:

theft

with the owners' knowledge

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

requires

the

knowledge

of the owners at the time when the stolen property returns to the domain of the owners, in order to fulfill the mitzva of returning it. And if he did not inform the owners that the stolen property had returned, even though the owners counted the flock, and it was found that the entire flock was in his possession, the thief is still liable for the theft, because since the owners knew of the theft, the theft is considered a complete robbery, and in order to return the robbery, an excellent return, with the knowledge of the owners, is required.

And if the theft was

without the owners' knowledge,

as the owners had not recognized it before he returned the stolen property, because 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 counting

that the owners conducted

absolves

the thief from liability for the theft.

And when it teaches

in the Mishna:

“And they counted

the owners

the flock and it was intact”—

according to Rav

it is stated about the latter clause,

in a case where the owners did not recognize the theft and its return. But in a case where the owners knew of the theft, counting is not effective; rather, they must know with knowledge that the theft has returned.

And Shmuel said:

theft

whether with the knowledge

of the owners

or without the knowledge

of the owners—

counting,

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

absolves

the thief from liability, and through this the law of returning the theft to the owners has been fulfilled.

And when it teaches

in the Mishna:

“And they counted

the owners the flock

and it was intact, he is exempt”

the thief from liability—it is stated according to Shmuel

the entire Mishna is consumed,

and even in a case where the owners recognized the theft before the thief returned it to the flock, the thief fulfills the law of returning it when the owners count the flock.

And Rabbi Yoḥanan says:

theft

with the knowledge

of the owners—

counting,

where the owner counts the flock that is in the herd and knows the number of sheep in the herd,

absolves

the thief from liability.

But theft

without the knowledge

of the owners, where the owners did not learn of the theft before the thief returned it—

even counting

to count the flock,

is also not required

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

And when it teaches

in the Mishna:

“And they counted

the owners

the flock and it was intact”—

it is stated according to Rabbi Yoḥanan

about the first clause,

that the owners knew of the theft before the thief returned it. And thus the Mishna is to be explained: One who steals a lamb, and the owners knew of the theft, the thief is liable for it as long as the owners have not counted the flock; but if the owners did not know of its theft and its return, even if the owners did not count the flock, or if the owners counted the flock even if they knew of the theft, the thief is exempt from liability.

Rav Ḥisda said:

theft

with the knowledge

of the owners—

counting,

where the owners count the flock that had been stolen,

absolves

the thief from liability.

And theft

without the knowledge

of the owners—

requires

the

knowledge

of the owners at the time of returning the theft; and as long as the owners did not know, even if they counted the flock and knew the number of sheep in their possession, the thief is liable for the theft.

And when it teaches

in the Mishna:

“And they counted

the owners

the flock and it was intact”—

it is stated according to Rav Ḥisda

about the first clause,

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