Bava Metzia 33b (לג:) — the Talmud in English

Rabbi Yohanan said:

What we learned: “The study of Torah—you have no greater measure than this,”

was taught in the days of Rabbi,

who edited the Mishnayot,

this Mishna.

But when Rabbi saw that, as a result,

everyone abandoned the Mishna,

that they all ceased reviewing and memorizing the text of the Mishna,

and pursued the Talmud,

engaging only in study to clarify the reasons, Rabbi feared that the Mishnayot would thereby be forgotten, that the names of the Sages would be confused, and that they would confuse exempt with liable and forbidden with permitted. Therefore—

he again

returned and

expounded to them: “And always be running to the Mishna”—

more than to the Talmud,

so that they would study the Mishna as well.

What did he expound

at first, when they had said that Talmud is greater?

As Rabbi Yehuda, son of Rabbi Elai, expounded:

What is the meaning of that which is written

in the Book of Isaiah [Isaiah 58]: “Call with the throat, do not hold back; like a shofar raise your voice, and

declare to My people their transgression and to the house of Jacob their sins”?

Why did the prophet use the term “their transgression” with regard to “My people,” which is a deliberate sin, and the term “their sins” with regard to “the house of Jacob,” which is an inadvertent transgression?

Thus the Holy One, blessed be He, said to the prophet:

“Declare to My people their transgression.” “

My people”—

these are Torah scholars, whose inadvertent transgressions

are rendered for them as deliberate sins,

and therefore I call their inadvertent transgressions “transgression.” And the reason that their inadvertent transgressions are rendered as deliberate sins is that they should have devoted attention to the reasons for the Mishna, which would have enabled them to determine which Mishna is authoritative, rather than issuing rulings from a Mishna that is not authoritative.

“And to the house of Jacob their sins.” “

The house of Jacob”—

these are the unlearned,

the rest of the people,

whose deliberate sins

are rendered for them as inadvertent transgressions,

for even regarding their deliberate transgressions I use the term “sin.” For their sin results from lack of knowledge, and therefore even their deliberate sins are regarded by the Holy One, blessed be He, as an inadvertent transgression.

And this is what we learned: Rabbi Yehuda says: Be careful in

the study of

Talmud,

in clarifying the reasons for the Mishnayot and their underlying reasoning; and likewise, if you hear a Mishna from your teacher, be careful to ask him for its reasons and who taught it. For

an inadvertent error in Talmud,

if you erred and did not know the correct reason for the Mishna, but thought that its reason was different, and as a result applied the Mishna to a case that came before you and issued an improper ruling—

rises,

that sin is counted against you as though you had committed it

deliberately!

You are considered deliberate in that you did not ask for the reason when you studied from your teacher!

It is also written in the Book of Isaiah: “Hear the word of the Lord, you who tremble at His word: Your brethren who hate you, who exclude you, for the sake of My name honor the Lord, and we shall see your joy, and they shall be ashamed.”

Rabbi Yehuda, son of Rabbi Elai, expounded: What is

the meaning of

that which is written

in the Book of Isaiah [66]:

“Hear the word of the Lord, you who tremble at His word!

Your brethren, who hate you, who exclude you: For the sake of My name the Lord will be honored, and we shall see your joy, and they shall be ashamed!” “You who tremble at His word”—

these are Torah scholars,

masters of Talmud, who are “disciples of the Sages”; that is, they served many Sages and heard from each of them the reasons for their Mishnayot in various matters. For not everyone is equally proficient in every matter, and therefore one who studies from several Sages can know the Torah in a more excellent manner than one who studies only from a single Sage.

“Your brethren”—

these are masters of Scripture,

who are considered “brothers” of the masters of Gemara, because with their assistance the latter know how to issue halakhic rulings. They do not issue halakhic rulings from Scripture, since it does not contain the Oral Torah.

“Those who hate you,”

the haters of the masters of Talmud—

these are “masters of Mishna,”

who hate the masters of Talmud, because the masters of Talmud say of the masters of Mishna that they are “destroyers of the world” [from a term meaning deterioration and loss], as it is stated in tractate Sota: The “Tannaim” [those people who merely recite chapters of Mishnayot] are “destroyers of the world,” because they issue halakhic rulings solely from their Mishna, without understanding its reasons.

“Those who exclude you,”

those who exclude the masters of Talmud—

these are the unlearned,

for Torah scholars are hated by them and abhorred by them like a menstruant woman.

And each of these groups says: For the sake of My name, the Lord will be honored, and we shall see your joy!

That is, they all together await the time when the glory of the Lord will be revealed, and then everyone will see the joy of the Torah scholars.

Lest you say: Their hope has ended and the expectation of all these has come to naught,

for the verse says: “They say, Your brethren, who hate you, who exclude you: For the sake of My name the Lord will be honored.” This implies that they indeed say this and await it, but they will in fact not merit seeing their request fulfilled!?

The verse states: “And we shall see your joy.”

The prophet said, “And we shall see your joy,” rather than, “And I shall see your joy.” This implies that the prophet said as follows: I, your brethren, those who hate you, and those who exclude you—we shall all see your joy.

Lest you say

that the words of the verse, “And they shall be ashamed,” refer to those who are not Torah scholars, and that these, although they are part of

Israel, shall be ashamed

in the future—

The verse states: “And they shall be ashamed.”

This implies that only

the gentiles,

who are not of us and are not identified by the name Israel—

shall be ashamed, whereas Israel—

shall rejoice!

We have completed the chapter “These Are the Finds.”

The law of bailees and of the borrower is explicitly stated in the Torah, in Parashat Mishpatim [chapter 22]:

The section concerning an unpaid bailee: “

When a man gives his fellow money or vessels for safekeeping, and it is stolen from the man’s house [that is, the bailee claims that it was stolen from his house, and therefore he is exempt from payment, since a bailee is liable for theft only when it resulted from negligence], if the thief is found, he shall pay double.” We learn from this that an unpaid bailee is not liable for theft, and likewise is not liable for loss, unless these resulted from negligence. “

If the thief is not found, the owner of the house shall approach the judges, [having sworn] that he did not lay a hand on the property of his fellow [that is, the bailee has already sworn that he did not lay a hand on his fellow’s deposit]. For every matter of wrongdoing ... .”

We learn from this that a bailee is released from payment to the owners only when he first swears that he did not lay a hand on the deposit. For if he did lay a hand on the deposit, he is then liable to pay even if the deposit was subsequently lost through circumstances beyond his control.

And the Sages said [above, 6a]: He is made to take three oaths: an oath that he was not negligent with it; an oath that he did not lay a hand on it; and an oath that the deposit is not in his possession.

The section concerning a paid bailee: “

When a man gives his fellow a donkey, an ox, a sheep, or any animal for safekeeping [in exchange for payment], and it dies [in its usual manner], or is injured [the deposit was damaged through circumstances beyond his control], or is captured [by armed bandits], and there is no witness [to testify to the matter, but he makes this claim].” “

The oath of the Lord shall be between them, that he did not lay a hand on his fellow’s property; and its owner shall accept [the oath] and he shall not pay [the bailee, since all these are circumstances beyond his control, for a paid bailee is exempt in such cases].” “

But if it is stolen from him [from the bailee], he shall pay its owner.” [And he is likewise liable for loss.] “

If it was torn apart [the animal deposited with him], he shall bring it as evidence [he shall bring witnesses that it was torn apart through circumstances beyond his control]; he shall not pay for the torn animal [since a paid bailee is not liable for circumstances beyond his control].”

The section concerning a borrower: “

And if a man borrows [without payment, rather than for a fee] from his fellow, and it is injured or dies [even though these are circumstances beyond his control], its owner not being with him [if the owner was not with the borrower in the borrower’s work at the time the borrowing began], he shall surely pay [since a borrower is liable even for circumstances beyond his control, but is exempt when the owner was with him in his work]. If its owner was with him, he shall not pay [the borrower; and likewise, all bailees are exempt when their owners are with them in their work].”

The renter

The Torah did not specify his law. Rather, it said: “If he is a hired worker, it is in exchange for his wages,” and the tannaim disagreed [below, 93a] concerning his law: Rabbi Meir says: A renter has the status of an unpaid bailee; and Rabbi Yehuda says: A renter has the status of a paid bailee.

The general principles are:

a. An unpaid bailee is liable only for negligence; a paid bailee is liable even for theft and loss; a borrower is liable in all cases, even for circumstances beyond his control; and the law of a renter is the subject of a dispute among the tannaim.

b. Although the Torah made a borrower liable for all circumstances beyond his control, it exempted him when the owner was with him in his work; and likewise all bailees [except an unpaid bailee for negligence, concerning which the amoraim disagree below, 95a].

c. The Sages derived an additional exemption for a borrower through reasoning: If the animal died because of the work for which it was borrowed, the borrower is not liable, because the borrower can say to the lender: “Was this not precisely what I borrowed it for?!”

d. Bailees are not exempt even in cases of circumstances beyond their control unless they take the three oaths, as explained.

Mishna:

If one deposits with another

without payment

an animal or vessels, and they are stolen or lost,

for he is not liable for them, since an unpaid bailee is liable only for negligence—if

the bailee paid

the depositary

and did not wish to swear

that it had been stolen without his negligence, although he could have done so,

as they said: An unpaid bailee swears and goes free:

If

the thief is found, he

then

pays the double payment,

and if it is found that the thief also

slaughtered and sold

the animal, he

pays the fourfold or fivefold payment.

And

to whom does

the thief pay

the one with whom the deposit is held,

that is, the bailee, because the depositor transfers the double payment to him, as will be explained in the Gemara, under what circumstances this transfer of ownership takes effect.

But if

the depositary swore

that he was exempt from liability for the deposit

and did not wish to pay—

If

the thief is found, he

then

pays the double payment,

and if the thief also

slaughtered and sold

the animal, he

pays the fourfold or fivefold payment,

and

to whom does he pay: to the owner of the deposit,

whose property the thief slaughtered and sold.

Gemara:

We learned in the Mishna: If one deposits with another an animal or vessels:

And they challenge:

Why does he need

the tanna

to teach:

“One who deposits an animal with another,”

and why does he need to teach

also

utensils—when it would have sufficed for the tanna to teach only one of them?!

And they answer: Both animals and utensils

are necessary

to be taught in our Mishna!

For had he taught

only

an animal [

had the tanna taught only an animal]:

I would have said [

I would have said]: When one deposited

an animal, he [

only then]

transfers the double payment to him [

the depositor transfers the double payment to the bailee], and

because the labor is greater

with an animal [

the labor of caring for an animal is extensive] to bring it in and take it out [

to bring it in and take it out]; and because the bailee expended much effort on it, he therefore transfers to him the thief’s payment.

But

when one deposited

utensils, whose care does not involve much labor [

the bailee’s labor in caring for utensils is not extensive]—

I would say,

I would say that the depositor

does not transfer to him

the

double payment,

even though he paid; therefore the tanna had to teach the case of utensils.

And had he taught

only

utensils [

had the tanna taught only utensils]:

I would have said: It is with regard to utensils that he transfers to him

the depositor to the bailee

the double payment, because their double payment is not extensive [

the double payment for utensils is not great]. That is to say: The thief pays only double, and not fourfold or fivefold, as in the case of an animal—

But an animal,

for which there is a payment greater than double,

for

it is the case

that if he slaughtered and sold

the thief

he pays a fourfold or fivefold payment, I would say: He does not transfer to him

even

the double payment,

and certainly not the fourfold or fivefold payment.

Therefore,

it is necessary

to teach both animals and utensils!

Rami bar Hama raised an objection

to the ruling of our Mishna:

But a person cannot transfer ownership of something that has not yet come into the world,

so how can the depositor transfer the thief’s payment to the bailee before the thief has become liable to pay it?!

And even according to Rabbi Meir, who says: A person can transfer ownership of something that has not yet come into the world,

that statement applies

only in a case such as the fruits of a date palm

that are destined to come [

they are expected to come]—

But here, in the case of the double payment for theft, where there are several uncertainties as to whether he will in fact receive a double payment, even Rabbi Meir agrees that he cannot transfer it before it comes into existence. The uncertainties are: