Bava Metzia 29a — the Talmud in English

Up to this point, Rabbi Tarfon and Rabbi Akiva disagree

only when he used them

the finder [when he has permission to use them], for then Rabbi Tarfon says that he is liable for them, because he has benefit from the money, since he can use it when a purchase happens to come his way.

But

if

he did not use them [that is, if he is forbidden to use them],

[that is, if he is forbidden to use them],

if they were lost—

according to everyone, he is

exempt

from liability for them.

Let it be

our Mishna

a refutation of Rav Yosef!

It was stated: The guardian of a lost item,

the finder of a lost item, who must guard it until he returns it to its owners—which law of guardianship applies to him?

Rabba said:

His law is

like

the law of a

gratuitous guardian,

for he does not receive payment in exchange for his guarding it. And the law of a gratuitous guardian is that if the object that was under his guardianship was stolen or lost, he is exempt, and he is liable only if he was negligent in guarding it.

Rav Yosef said:

His law is

like

the law of a

paid guardian,

who is liable for theft and loss, and exempt in a case in which the object that was under his guardianship was damaged or lost through circumstances beyond his control.

And why is the guardian of a lost item considered a paid guardian? What payment does he receive in exchange for guarding it?

Since by guarding the lost item he performs a mitzva, and through this he is exempt from giving bread to a poor person at that time, because one who is occupied with one mitzva is exempt from another mitzva.

But our Mishna itself proves that the guardian of a lost item is like a gratuitous guardian!

Rav Yosef could say to you:

Do not infer from our Mishna as you inferred. Rather,

with regard to theft and loss, everyone

does not disagree—

he is liable,

because the law of the guardian of a lost item is that of a paid guardian.

They disagree

Rabbi Tarfon and Rabbi Akiva—this is what they disagreed about: Whether the guardian of a lost item is liable even

for circumstances beyond his control,

as is the law

of a borrower,

who is liable even for circumstances beyond his control.

Rabbi Tarfon holds: The Sages permitted him to use them [they permitted the finder to use them], and if so,

[they permitted the finder to use them], and therefore

he is a borrower with regard to them,

and not merely a paid guardian, for a paid guardian is forbidden to use the thing that he is guarding; therefore, the guardian of a lost item is liable even for circumstances beyond his control.

And Rabbi Akiva holds: The Sages did not permit him to use them [the Sages did not permit him to use them],

[the Sages did not permit him to use them];

therefore he is not a borrower with regard to them,

but only a paid guardian.

And we raise an objection:

If so, “therefore

he is not liable for them

,” which Rabbi Akiva said

in our Mishna—

why do I need it?

For what purpose were these words stated?

Granted, if you say

that

with regard to theft and loss they disagree, this is what it is teaching: Rabbi Akiva says: He may not use them. Therefore, if they were lost—

he is not liable for them.

Because

it might enter your mind

that the guardian of a lost item, although he is forbidden to use the lost item, nevertheless

is a paid guardian

because of the benefit of the mitzva, and

as Rav Yosef said, with regard to theft and loss—

he is liable!

It teaches us

what we learned: He may not use them;

therefore,

if they were lost, he is not liable for them, for

now that you say that he may not use them,

it follows that

he is not a paid guardian,

even though he has the benefit of the mitzva, because this benefit is not considered payment,

and

therefore

he is not liable for theft and loss.

But if you say

that

that

with regard to theft and loss everyone does not disagree that he is liable, and they disagree—

everyone agrees that he is liable, and the disagreement concerns

with regard to circumstances beyond the control of a borrower, what is the “therefore” of Rabbi Akiva?

This is what it should have been necessary

for the tan[n]ai

to teach: Rabbi Akiva says: He may not use them,

and that is sufficient, and the tan[n]ai need not explain further.

And I know that since he may not use them, he is not a borrower, and he is not liable for them,

for there is no reason to make him liable for circumstances beyond his control!

And if so,

the “therefore” of Rabbi Akiva—

why do I need it?!

And we answer: The fact that the tan[n]ai taught “therefore” in the words of Rabbi Akiva was

because

he needed to teach

the “therefore” of Rabbi Tarfon.

And we are astonished:

And “therefore

he is liable for them”

of Rabbi Tarfon—

why do I need it?

For it is obvious that if he used the money, he is liable for them!

And the Gemara explains:

This is what it is saying: Since the Sages permitted him

the finder

to use them [to use the money], even though he has not yet used them,

[to use the money], even though he has not yet used them,

it is considered as though he used them—

and he is liable for them,

because the right of use itself is what makes him liable, and not the use itself.

And we are astonished:

But “

therefore, if

they were lost,” it teaches

in our Mishna, and not as we explained our Mishna according to Rav Yosef’s view, that it is speaking of circumstances beyond his control, for according to him it should have taught, “If they were taken by circumstances beyond his control”!?