Bava Metzia 34a (לד.) — the Talmud in English

1.

Who can say that it will be stolen [

how do we know that the animal will be stolen at all]?

2.

And

even

if you should say that it will be stolen, who can say that a thief will be found [

how do we know that the thief will be found]?

3.

And

even

if a thief is found, who can say that he will pay [

even if the thief is found, perhaps he will not be liable to pay], because

perhaps he will admit and be exempt [

perhaps he will confess before witnesses arrive and thereby become exempt], since one who admits to a fine is exempt, even if witnesses come after his admission.

Rava said—

he answered:

It is as though he said to him

the depositor to the bailee at the time he delivered the deposit:

When it is stolen, and you wish to pay me, behold, my cow is acquired by you from now,

and the bailee acquired it by drawing the cow!

Rabbi Zeira challenges:

If so—

Rabbi Zeira raised an objection:

If so—

according to your words, that he transfers the cow to him from now if he pays for it—

even its wool and offspring,

that it produced from the time of the deposit onward,

also

would be acquired by the bailee if the animal were ultimately stolen, since the depositor transferred the animal to him from the time it came into his possession;

then [

and why]

is it taught

in the beraita:

except for its wool and offspring?!

Rather,

Rabbi Zeira said: It is as though he said to him: Except for its wool and offspring.

And what establishes this, how do you know to determine and say that every depositor wishes to transfer the animal so that the bailee will receive the theft payment, but does not wish to transfer even its wool and offspring?!

And what determines this?

How do you know that you may decide and say that every depositor wants to transfer the animal so that the bailee will receive the theft payment, but does not want to transfer even its wool clippings and offspring!?

And they answer:

As a general matter

[this is the ordinary assumption]:

And they answer:

As a matter of course, [

this is the ordinary assumption]:

appreciation that comes from elsewhere, a person is inclined to transfer [

appreciation that comes to the depositor from outside the body of the animal, such as its wool and offspring]

the appreciation that comes from elsewhere, a person is inclined to transfer it [

a person is inclined to transfer it] so that he will be assured of the theft payment.

But

the

appreciation that comes from the body

of the animal, such as its wool and offspring,

a person is not inclined to transfer [

a person is not inclined to transfer it].

Some say:

Thus Rava said:

It is as though he said to him

the depositor to the bailee:

When it is stolen and you wish to pay me, close to the time of its theft

it shall be acquired by you, and not from the time of the deposit, as in the first version. And the Gemara explains: What is the practical difference between them [ what practical difference is there between the two versions]? There is a practical difference between them:

a.

Rabbi Zeira’s objection,

who raised the following difficulty: “If so, even its shearings and offspring as well; why, then, is it taught in the beraita: ‘Except for its shearings and offspring’?” This objection applies only according to the first formulation. But according to the latter formulation, from the moment he acquires the cow, he also acquires its shearings and offspring. And that which we learned: “Except for its shearings and offspring” refers to the period before the theft, when he had not yet acquired the cow in any respect.

b.

Alternatively,

there is another difference between them: For example, when

the animal is standing

in a field

at the marsh

at the time of the theft—a place that is not one in which the bailee can acquire it—according to the latter formulation, the bailee cannot acquire possession of it.

We learned in the Mishna:

“He paid and did not wish to take an oath,”

for they said that an unpaid bailee takes an oath and is discharged. It follows that if the thief is found, he pays double payment; if he slaughtered or sold the animal, he pays fourfold or fivefold payment. To whom does he pay? To the one with whom the deposit was entrusted.

Rabbi Hiyya bar Abba said that Rabbi Yohanan said:

This that we learned in our Mishna, that if “he paid and did not wish to take an oath,” he becomes entitled to the thief’s payments,

does not mean that he

paid

actually paid

before the theft was discovered.

Rather, once he said: “I am prepared to pay,” even though he

still

had not paid

when the thief was found, the thief pays his payments to the bailee.

And we raise an objection from that which

we learned

in our Mishna:

“He paid and did not wish to take an oath ...

the thief was found and paid ... To whom does he pay? To the one with whom the deposit was entrusted,” and this implies: If he

paid

before the thief was found,

yes, he becomes entitled to the thief’s payments; but if he

he acquires the thief’s payments; but if

had not paid

before the thief was found,

no, he does not become entitled to the thief’s payments. This is difficult for Rabbi Yohanan!

he does not acquire the thief’s payments. This is a difficulty for Rabbi Yohanan!

And we answer: On the contrary,

come and hear the latter clause

of our Mishna: “

He took an oath and did not wish to pay,

the thief was found and paid ... To whom does he pay? To the owner of the deposit,” and this implies:

The reason is that he did not wish

the bailee to pay, in which case he does not become entitled to the thief’s payments;

but if he wished

the bailee to pay,

even though he

still

had not paid,

the bailee became entitled to the thief’s payments, in accordance with Rabbi Yohanan.

Rather,

it must necessarily be that

from this—

from the wording of our Mishna—

nothing can be inferred,

and no proof can be brought either way.

A beraita was taught in accordance with Rabbi Yohanan:

“One who rents a cow from another, and it was stolen,

and he is liable for it,

and the other said

[the renter]: Indeed, the animal was stolen, and

I am prepared to pay and will not take an oath

that it was forcibly taken,

and afterward the thief was found,

the thief

pays the double payment to the renter.”

We have therefore learned that even if the thief was found before he paid, once he said, “I am prepared to pay,” he became entitled to the double payment.

Rav Pappa said:

An unpaid bailee—

who is liable only for negligence—

once he

admits and

says, “

I was negligent,”

the depositor transfers to him

the double payment,

for

he

could have exempted himself through a

claim and oath of

theft [that is, he could have exempted himself by claiming and swearing that it had been stolen], but he did not do so.

A paid bailee—

who is liable even for theft and loss, but exempt in cases of unavoidable circumstances—

once he

admits and

says: “It was stolen,”

the depositor transfers to him

the

double payment, for

he

could have exempted himself through a

claim and oath of

breakage and death,

which are unavoidable circumstances for which he is exempt.

But

a borrower who said: “

I am prepared to pay”

the lender does not transfer to him

the

double payment,

because

with what could he have exempted himself

[that is, through what claim could he have exempted himself]!? He could have done so only

through the

claim of “

It died through the course of its work,” but

but

“it died through the course of its work” is something that

is something that

is not common, and he is therefore not comfortable making such a claim.

and he is not comfortable making such a claim.

Some say: Rav Pappa said:

A borrower as well, once he said: “

I am prepared to pay,”

the lender transfers to him

the

double payment, for

he

could have

the borrower

exempted himself through the

claim of “

It died through the course of its work,”

even though this claim is uncommon.

Rav Zevid said

to Rav Pappa:

This is what Abaye said: A borrower

does not become entitled to the thief’s payments

until he pays;

but merely saying, “I am prepared to pay,” does not cause the double payment to be transferred to him!

And we explain:

What is the reason? Since

the borrower has

all benefit—

from the item borrowed—

for himself, therefore

therefore

through speech

alone

the lender does not transfer to him

the

double payment, for since all the benefit is his, he needed to appease the lender who had lent it to him gratuitously, and he did not do him any favor by saying, “I am prepared to pay.”

A beraita was taught in accordance with Rav Zevid

and not in accordance with Rav Pappa:

“One who borrows a cow from another, and it was stolen, and the borrower promptly paid, and afterward the thief was found, pays the double payment to the borrower,”

which demonstrates that the borrower becomes entitled to the thief’s payments only when he paid before the thief was found; merely saying, “I am prepared to pay,” is insufficient.

The Gemara adds:

According to Rav Pappa’s first formulation—

who said: When a borrower says, “I am prepared to pay,” the double payment is not transferred to him, for with what could he have exempted himself? Through the claim, “It died through the course of its work,” and this claim is uncommon—

it is certainly not a refutation

from this beraita. Although the beraita seemingly establishes that even a borrower becomes entitled to the thief’s payments, nevertheless it is not a refutation, because:

Rav Pappa said only that if he said, “I am prepared to pay,” the double payment is not transferred to him. But if he promptly paid, Rav Pappa concedes that he becomes entitled to the double payment, and there is no difficulty from the beraita.

But

according to Rav Pappa’s latter formulation—

who said: A borrower as well, once he says, “I am prepared to pay,” the double payment is transferred to him—

shall we say that it is a refutation of him

from this beraita!? For we learned in this beraita: “The borrower promptly paid,” which implies that through speech alone the double payment is not transferred to him!?

Rav Pappa could have said to you:

Is the beraita stronger

than the Mishna,

which teaches

in our Mishna

“he paid,” and

we established it as referring to

“he said,” [that is, is the beraita stronger than the Mishna, where we are forced to explain the wording “he paid” as meaning that he said, “I am prepared to pay”]!?

Here too,

in the beraita, although we learned, “The borrower promptly paid,” we will interpret it as

having said

merely, while he still had not paid; and therefore he does not become entitled to the double payment.

And we challenge this:

Are the cases comparable

[that is, is the wording of the beraita comparable to the wording of the Mishna]!?

There,

in our Mishna,

it does not teach: “He

promptly

paid,” but only “he paid.” But

here—

in the beraita—

it does teach: “He

promptly paid”!

And we answer: Rav Pappa could have said to you:

What does

“promptly” mean?

He promptly said!

And we are astonished at this:

But since it teaches

in the first beraita mentioned above,

with regard to a renter: “

And the other said: I am prepared to pay,” whereas

I hereby undertake to pay,” whereas

with regard to a borrower

it teaches in this beraita: “

And the borrower promptly

paid,”

infer from it—from the change in wording—

that with regard to a borrower

specifically

he must promptly pay,

it teaches,

but if he merely said it, he does not become entitled to the double payment!?

Rav Pappa could have said to you:

Were they taught together

[that is, were these two beraitot taught in the study hall as a single unit]!? You cannot prove from the difference in wording that “promptly paid” is meant specifically.

Ask the tannaim of the academies of Rabbi Hiyya and Rabbi Oshaya,

who arranged the beraitot: Were these two beraitot taught together?

And they said: They were taught together

[as one unit]!

Indeed, the beraita is a difficulty for Rav Pappa’s latter formulation.

The Gemara introduces its forthcoming uncertainties concerning the law of our Mishna by stating that this law

is obvious: If he

if he

said

at first, “

I will not pay,” and

the bailee changed

his mind

and said: “

I am prepared to pay,”

he becomes entitled to the thief’s payments, for

he has said: “

I am prepared to pay,” even though initially he did not wish to pay.

Rather—

the matter about which there is uncertainty is: