Bava Metzia 29a (כט.) — the Talmud in English

The disagreement between Rabbi Tarfon and Rabbi Akiva applies only

when he uses them

—the finder [when he is permitted to use them]. In that case, Rabbi Tarfon says that he is liable for them, because he derives benefit from the money, as he can use it when he happens upon a purchase.

But

if

he does not use them

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

if they are lost

—according to everyone,

he is exempt

from liability for them.

Shall we say that

our Mishna is

a refutation of Rav Yosef

? For it was stated: The guardian of a lost article,

the finder of a lost article, who must safeguard it until he returns it to its owner—which category of bailee applies to him?

Rabba said:

His status is

that of

a

an unpaid bailee,

since he receives no payment in exchange for safeguarding it. The law governing an unpaid bailee is that if the item entrusted to his safekeeping is stolen or lost, he is exempt, and he is liable only if he was negligent in safeguarding it.

Rav Yosef said:

His status is

that of

a

paid bailee,

who is liable for theft and loss, but exempt if the item entrusted to his safekeeping was damaged or lost through circumstances beyond his control.

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

Since by safeguarding the lost article he fulfills a mitzva, and thereby is exempt at that time from giving bread to a poor person, because one who is occupied with one mitzva is exempt from another mitzva.

But surely our Mishna proves that the guardian of a lost article has the status of an unpaid bailee!

Rav Yosef could say to you:

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

with regard to theft and loss, everyone

agrees—

he is liable,

since the status of the guardian of a lost article is that of a paid bailee.

The disagreement

between Rabbi Tarfon and Rabbi Akiva concerns the following: Is the guardian of a lost article liable even

for accidents,

like

a borrower,

who is liable even for accidents?

Rabbi Tarfon holds: The Sages permitted him to use them

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

he is a borrower with regard to them,

and not merely a paid bailee. A paid bailee is forbidden to use the item that he is safeguarding; therefore, the guardian of a lost article is liable even for accidents.

And Rabbi Akiva holds: 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 bailee.

And we raise a difficulty:

If so, “therefore

he is not liable for them

,” which Rabbi Akiva said

in our Mishna—

why do I need it

? What is the purpose of these words?

Granted, if you say

that

the disagreement concerns theft and loss, this is why it teaches: Rabbi Akiva says, “He may not use them. Therefore, if they are lost,”

he is not liable for them.

Because

it might have entered your mind

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

he has the status of a paid bailee

because of the benefit of the mitzva,

as Rav Yosef says, and with regard to theft and loss

he is liable!

It teaches us

what we learned: He may not use them;

therefore,

if they are lost, he is not liable for them, because

now that you have said that he may not use them,

automatically

he does not have the status of a paid bailee,

even though he derives benefit from the mitzva, because this benefit is not considered payment,

and

therefore

he is not liable for theft and loss.

But if you say

that

with regard to theft and loss

—

everyone agrees that he is liable, and the disagreement concerns

accidents, as in the case of a borrower—what is the purpose of Rabbi Akiva’s “therefore”?

This is what the tanna should have taught

:

Rabbi Akiva says, “He may not use them,”

and that alone would suffice; the tanna 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,

since there is no reason to make him liable for accidents!

And if so,

Rabbi Akiva’s “therefore”

why do I need it?!

And we answer: The reason the tanna taught “therefore” in Rabbi Akiva’s statement was

because

he needed to teach

Rabbi Tarfon’s “therefore.”

And we question this:

And “therefore,

he is liable for them,”

of Rabbi Tarfon

—

why do I need it? It is obvious that if he used the money, he is liable for it!

The Gemara explains:

This is what he is saying: Since the Sages permitted the finder

to

to use 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 it is the right to use them that renders him liable, and not the actual use itself.

And we question this:

But

“if they are

lost,” it teaches

in our Mishna, and not as we explained our Mishna according to Rav Yosef’s approach, that it is referring to accidents—for according to him, it should have taught, “If they are subject to an accident”?!