Bava Kamma 57b — the Talmud in English

It is stated in the Torah that both an unpaid bailee and a paid bailee, if they sent a hand into the deposit that was entrusted to them, are henceforth liable even for matters for which they had previously been exempt: for example, an unpaid bailee becomes liable for theft and accidents, and a paid bailee for accidents.

And apparently, it would have been sufficient for the Torah to write the law of sending a hand concerning an unpaid bailee alone, and from it we would have learned by a kal va-chomer that a paid bailee too is liable for sending a hand.

And concerning this the beraita answers:

No!

It is impossible to learn by a kal va-chomer the law of a paid bailee who sends a hand into a deposit from an unpaid bailee, despite the fact that a paid bailee is more stringent than an unpaid bailee.

For one can refute it:

If you said concerning an unpaid bailee

that he is liable for sending a hand because there is a stringency in his case,

for

he

pays double payment

when he claims a thief’s claim concerning the deposit in his possession, and in the end it is found that he is a liar.

Can you say this concerning a paid bailee, who does not pay double payment!

For even if he makes a thief’s claim, his claim does not help him to become exempt from paying for the theft of the deposit, since a paid bailee is liable for theft and loss.

And since we have found one matter in which an unpaid bailee is more stringent than a paid bailee, it is therefore impossible to learn the law of sending a hand from an unpaid bailee to a paid bailee.

And Abaye proves:

And if it enters your mind that an armed robber is a thief,

then

it is found

that also

in the case of a paid bailee

there is a possibility that he

pays double payment,

for example,

when claiming, “An armed robber

stole it from me,”

who has the law of a thief both concerning double payment and concerning a bailee who makes a thief’s claim, who is liable for double payment?

Rav Yosef said to him

: In reality, an armed robber is a thief.

And

this is what

the beraita

says: No, if you said concerning an unpaid bailee, for

he

pays double payment for all his claims,

whether he claims that it was stolen from him by an ordinary thief or whether he claims that it was stolen from him by an armed robber, since an unpaid bailee is exempt for every theft.

Can you say this concerning a paid bailee, who pays double payment only when he makes the claim of an armed robber.

But not when he makes an ordinary thief’s claim, for then he would not pay double, because he would not exempt himself from paying for the theft; and consequently it is impossible for him to become liable for double payment on such a claim. And it is found that a paid bailee is less stringent in this matter than an unpaid bailee.

Abaye raised an objection

to Rav Yosef from that which was taught: It is stated concerning a borrower:

“And it is broken or dies,

he shall surely pay.”

I have only

that a borrower is liable for

breaking and dying,

which are accidents. For

theft and loss, whence

do we know that he is liable for them?

You have said: It is a kal va-chomer.

It

is this: What of a paid bailee, whom the verse exempted

from

breaking and dying

[as is explicit in the passage concerning a paid bailee], nevertheless he

is liable for theft and loss,

as is explicit there.

A borrower, who is liable for breaking and dying,

is it not

the law that he is liable for theft and loss!

And the beraita concludes:

And this is a kal va-chomer against which there is no answer!

And Abaye proves:

And if it enters your mind that an armed robber is a thief, why is there no answer against it?

For

there is an objection

to the kal va-chomer:

What is there concerning a paid bailee,

that it is the law that he should be liable for theft and loss because he is more stringent,

for

he

pays double payment when he claims an armed

robber.

Can you say this concerning a borrower, who is less stringent, for it is never possible for him to become liable for double payment, because even if he claims that an armed robber came upon him and stole it from him, he is not exempt from paying for this theft, since a borrower is liable even for accidents. And one who does not come through his claim to steal the principal from its owner is not liable to pay double for it when he is found to be a liar. And since in this matter the borrower’s liability is less than the paid bailee’s liability, it is the law that the borrower should not be liable for theft and loss.

He said to him

Rav Yosef:

This tanna holds

that he makes a kal va-chomer from a paid bailee to a borrower to make him liable for theft and loss: Even though a borrower has no possibility whatsoever of becoming liable for double payment, nevertheless he is more stringent than a paid bailee.

For even if there is a possibility that a paid bailee may become liable to pay double payment, nevertheless such a possibility of liability exists only when he swears concerning his claim that the object was stolen from him, and afterward witnesses establish that he swore falsely.

Whereas the principal payment, which a borrower must pay in the case of an accident [and through which he is more stringent than a paid bailee], he pays even without swearing falsely.

And therefore,

the principal

[the payment of the principal for which a borrower is liable for an accident that occurred to the object]

without an oath, is preferable,

it is more stringent

than double payment

[which a paid bailee pays for a thief’s claim, for which he becomes liable only if it was made]

with an oath.

That is, the principal payments made by a borrower are on account of the stringency of the level of custodianship of a borrower, whereas the double payments made by a paid bailee are only in the category of a penalty for having sworn falsely concerning the claim of theft, and not on account of the stringency of the level of custodianship of a paid bailee.

And we considered it:

Let us say that it supports

Rav Yosef, that an armed robber is a thief, from that which was taught:

One who rents a cow from another, and it is stolen

and the other said,

the renter:

I am prepared to pay

for the theft,

and I shall not swear

the oath of bailees in order to become exempt from payment.

And afterward the thief is found.

The thief

pays

the

payments of

the

double to the renter,

and not to the owners, because the renter acquired the double payment through his willingness to pay for the theft.

They thought,

the members of the academy who wished to prove from this beraita in support of Rav Yosef, that this beraita holds

like Rabbi Judah, who said,

“A renter is like a paid bailee.”

That the renter’s law is like that of a paid bailee with regard to the level of his custodial liability. And if so, he is liable for theft and loss.

And since it teaches

in the beraita,

“And he said, ‘I am prepared to pay and I shall not swear,’”

by inference

you learn this:

that if he wished,

if the renter had wished to swear that the cow was stolen, he would

have exempted himself by an oath,

he would have become exempt from paying for it.

And now one must consider:

What are the circumstances?

How is it possible that he would become exempt from paying by swearing that it was stolen, when a renter is liable for theft and loss!

Rather, certainly, it is referring to

a case in which he claims the claim of an armed robber,

which is an accident, and for this even a renter is exempt.

And it teaches

“And afterward the thief is found; he pays the payments of double to the renter.”

It follows that an armed robber pays double, like a thief.

Learn from this: An armed robber is a thief!

And we reject this:

They said: Do you hold

that the tanna of the beraita holds

like Rabbi Judah, who said that a renter is like a paid bailee?

Perhaps he holds like Rabbi Meir, who said: A renter is like an unpaid bailee.

And he is exempt from theft and loss. If so, one can explain the beraita according to its simple meaning: the renter claims that the animal was stolen in an ordinary manner and not by an armed robber, and therefore the thief pays double. But in reality, an armed robber is a robber.

If you wish, say

that in reality the beraita holds like Rabbi Judah. However, Rabbi Judah himself holds that the law of a renter is like that of an unpaid bailee. And

as Rabbah bar Avuha substitutes

the names of the tannaim in this dispute,

and teaches: “How does a renter pay?”

Rabbi Meir says,

like a paid bailee.

Rabbi Judah says, like an unpaid bailee.

Rabbi Zeira said:

In reality, the beraita holds that the law of a renter is like that of a paid bailee, and he is liable for theft and loss. Nevertheless, there is no proof from here for Rav Yosef, that an armed robber is a thief. For

with what are we dealing here? With one who makes the claim of an armed robber.

The renter indeed claims that the thief was an armed robber, but in the end

it is found

that he was

a robber who was not armed,

but an ordinary thief. Therefore the beraita says that if the thief is found, he pays double. Nevertheless, had the renter wished to swear falsely concerning his claim that an armed robber stole it from him, he would have thereby become exempt from paying, because according to his claim it was an accident. Therefore the beraita says that if he said, “I am prepared to pay and I shall not swear,” he thereby acquires the double payment. But in reality, an armed robber is a robber.

We learned in the Mishna:

“It fell into a garden and benefited; it pays what it benefited.”

Rav said:

The Mishna is speaking

when it was knocked against

the produce, and damaged it, and then it pays according to what it benefited from the produce that saved it from being knocked against the ground.

And we raised a difficulty concerning it: Does Rav intend to say that specifically when it was knocked against the produce is the law so,

but

if it

ate

from the produce,

it does not pay even what it benefited?!

Shall we say that Rav follows his own view,

that Rav follows his own reasoning, for we find Rav’s statement of a similar nature elsewhere?

For we learned his statement concerning the Mishna above [47a]: If one brought his produce into another’s courtyard without permission, and the other’s animal was injured by the produce, the owner of the produce is liable.

For Rav said:

This law applies only when the animal was injured because it slipped on the produce. But if it died because it ate too much of the produce, the owner of the produce is exempt, because

it should have

the animal

not eaten

from the produce!

And the Gemara discusses: Does Rav also hold here for this reason that the owner of the animal is entirely exempt when it ate through falling into the garden, because he can claim that regarding the falling he is compelled, whereas regarding the eating he can claim, “It should not have eaten,” and what can I do that it ate?

And we reject this:

They said: Is this comparable?!

What is the comparison?!

Granted that Rav said there,

the reasoning for exempting on the grounds that

“it should not have eaten,”

that applies only

where it was injured,

when the animal itself was injured by the produce,

for the owner of the produce can say to him,

as the owner of the produce can claim to the owner of the animal:

“I do not pay,”

because

“it should not have eaten!”

But here, where the issue is

to damage others,

when the animal damaged others,

that she should be exempt from paying,

that we should exempt her from paying for this with the claim that “it should not have eaten,”

who said this, Rav?!