Bava Metzia 34a — the Talmud in English

A.

Who says that it will be stolen [how do we know that the animal will be stolen at all].

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

B.

And

even

if you should conclude that it will be stolen, who says that a thief will be found [how do we know that the thief will be found].

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

C.

And

even

if a thief is found, who says that he will pay [even if the thief is found, perhaps he will not be obligated to pay], for

[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 admit before witnesses come, and become exempt], since one who admits to a fine is exempt, even if witnesses came after his admission.

[perhaps he will confess before witnesses come and will thereby be exempt], since one who admits liability for a fine is exempt, even if witnesses come after his admission.

He said

he answered

Rava: It is treated as though he said to him

the depositor to the bailee at the time of handing over the deposit:

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

and the bailee acquired it through the pulling of the cow!

Rabbi Zeira raises an objection:

If so—

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

even

the

its fleeces and its offspring

that it had from the time of the deposit onward,

also

the bailee should acquire them if the animal is ultimately stolen, for the depositor granted him the animal from the time it came into his hand, and

why then

[why]

is it taught

in the beraita:

except for its fleeces and its offspring?!

Rather,

Rabbi Zeira said: It is treated as though he said to him: “Except for its fleeces and its 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 is the basis,

how do you know to decide and say that every depositor wishes to grant the animal so that he will acquire the theft payments, but does not wish to grant even its fleeces and offspring?!

And we answer:

as a matter of course [this is the ordinary state of the matter]:

[this is the ordinary assumption]:

the appreciation that comes from elsewhere, a person is accustomed to grant [the appreciation that comes to the depositor not from the body of the animal, a person is accustomed to grant it], so that he will be secure in the theft payments.

[an increase that comes to the depositor from outside the body of the animal, a person is likely to transfer it], so that he will be secure in receiving the theft payment.

But

appreciation that comes from the body

of the animal, such as fleeces and offspring,

a person is not accustomed to grant [a person is not accustomed to grant it].

[a person is not generally likely to transfer it].

There are those who say:

This is how

Rava said as follows: It is treated as though he said to him

the depositor to the bailee:

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

it shall be

acquired by you, and not from the time of the deposit, as in the first formulation.

And the Gemara explains:

what is between them [what practical difference is there between the two formulations]?

[what practical difference is there between the two versions]?

There is between them:

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 objection: “If so, even its fleeces and its offspring as well; why, then, was it taught in a beraita: ‘Except for its fleeces and its offspring’?” This objection applies only according to the first formulation, but according to the latter formulation, from the moment that he acquires the cow, he also acquires its fleeces and its offspring. And that which we learned: “Except for its fleeces and its offspring” refers to before the theft, when the cow had still not been acquired by him 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 swear,”

for they said that a gratuitous bailee swears and departs; it follows that if the thief is found, the thief pays double payment, and if he slaughtered or sold it, he pays fourfold or fivefold payment. To whom does he pay? To the one with whom the deposit is situated.

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 swear,” he acquires the thief’s payments,

not

“he paid”

actually paid

before the theft was found,

but 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 swear” ...

“the thief was found and paid ... To whom does he pay? To the one with whom the deposit is situated,” and it is implied:

he paid

before the thief was found,

yes,

indeed he acquires the thief’s payments, but if

he had not paid

before the thief was found,

no,

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

And we answer: On the contrary,

say the latter clause

of our Mishna: “

He swore and did not wish to pay,

the thief was found and paid ... To whom does he pay? To the owner of the deposit,” and it is implied:

the reason is that he did not wish

the bailee to pay; therefore, he does not acquire the thief’s payments.

But if he wished

the bailee to pay,

even though

he still

had not paid,

the bailee acquired the thief’s payments, in accordance with Rabbi Yohanan—

Rather,

necessarily,

from this—

from the wording of our Mishna—

there is nothing to infer,

there is no proof either one way or the other.

A beraita was taught in accordance with Rabbi Yohanan:

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

and he is liable for it,

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

he said,

‘I am prepared to pay and I am not swearing’

that it was taken by accident,

and afterward the thief was found,

the thief

pays double payment to the renter.”

We have therefore learned that even when the thief was found before he paid, if he said, “I hereby undertake to pay,” he acquired the double payment.

Rav Pappa said:

A gratuitous bailee—

who is liable only for negligence—

once he

admits and

says: “

I was negligent,”

he transfers to him

the depositor transfers to the bailee

the double payment, for

he

could have exempted himself with the

claim and oath of

theft [for he could have exempted himself with the claim and oath that it was stolen], but he did not do so.

A paid bailee—

who is liable also for theft and loss and is exempt for an accident—

once he

admits and

says: “It was stolen,”

he transfers to him

the depositor

the double payment, for

he

could have exempted himself with the

claim and oath of

breakage and death,

which are accidents and for which he is exempt.

But

a borrower who said: “

I am prepared to pay”

the lender does not transfer to him

the lender

the double payment,

because

with what could he have exempted himself [with what could he have exempted himself]!? After all, only

with the claim of “

It died through the work,”

and “

It died through the work” is something that

is not common,

and he is not comfortable making such a claim.

is something that

is not common,

and he is not comfortable making such a claim.

Some say: Rav Pappa said:

A borrower too, once he said: “

I am prepared to pay,”

he transfers to him

the lender

the double payment, for

he

could have

the borrower

exempted himself with the

claim of “

It died through the work,”

even though it is not common.

Rav Zevid said

to Rav Pappa:

This is what Abaye said: A borrower

does not acquire the thief’s payments

until he pays,

but merely by saying, “I am prepared to pay,” he does not transfer the double payment to him!

And we explain:

What is the reason? Since

the borrower’s

entire benefit—

of the borrowed object—

is his,

therefore

by speech

alone

the lender does not transfer to him

the lender

the double payment, for since the entire benefit is his, he should have placated the lender who lent it to him for free, and he did him no favor by saying, “I am prepared to pay.”

A baraita was taught in support of Rav Zevid

A beraita was taught in accordance with Rav Zevid and not in accordance with Rav Pappa:

“One who borrows a cow from his fellow, and it was stolen, and the borrower hurried and paid, and afterward the thief was found, he pays double payment to the borrower,”

for the borrower acquires the thief’s payments only when he paid before the thief was found, and it is insufficient that he said, “I am prepared to pay.”

The Gemara adds:

According to Rav Pappa’s first formulation—

who said: A borrower who said, “I am prepared to pay,” does not transfer the double payment to him; with what could he have exempted himself? With “It died through the work”; “It died through the work” is not common—

it is certainly not a refutation

from this beraita. Although it is seemingly explained in the beraita that even a borrower acquires the thief’s payments, nevertheless it is not a refutation, because:

Rav Pappa said only that if he said, “I am prepared to pay,” he does not transfer the double payment to him; but if he hurried and paid, Rav Pappa concedes that he acquires the double payment, and there is no difficulty from the beraita.

But

But according to the latter formulation

of Rav Pappa—who said: A borrower too, once he said, “I am prepared to pay,” transfers the double payment to him—

let us say that it should be a refutation of him

from this beraita!? For in this beraita we learned: “The borrower hurried and paid,” which implies that by speech alone he does not transfer the double payment to him!?

Rav Pappa could say to you:

Is

the beraita

stronger than the Mishna, which teaches

in our Mishna

“he paid,”

and we established it as “

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

Here too,

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

saying

alone, while he still had not paid; and therefore he does not acquire the double payment.

And we raise an objection to this:

Are they comparable [Is the wording of the beraita comparable to the wording of the Mishna]!?

[does the wording of the baraita resemble the wording of the Mishna]!?

There,

in our Mishna,

it does not teach: “

He hurried

and paid,” but only “he paid”; whereas

here—

in the beraita—

it teaches “

he hurried”!

And we answer: Rav Pappa could say to you:

What does “

he hurried” mean?

He hurried and said!

And we raise a difficulty concerning this:

But since it teaches

in the first beraita mentioned above

concerning a renter: “

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

I hereby undertake to pay,” whereas

concerning a borrower

it teaches in this beraita: “

And the borrower hurried

and paid,”

learn from it—from the change in wording—that concerning a borrower

that with regard to a borrower,

specifically

he hurried and paid

it teaches, but if he only said it, he does not acquire the double payment!?

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

Rav Pappa could say to you:

Were they taught concerning one another [Were these two beraitot taught in the study hall as one]!? Before you come to prove from the change in wording that “he hurried and paid” is specifically literal.

[were these two baraitot taught in the study hall as one unit]!? You cannot prove from the change in wording that “acted first and paid” is meant specifically.

Ask the tannaim of the school of Rabbi Hiyya and the school of Rabbi Oshaya, [ask the tannaim in the academies of Rabbi Hiyya and Rabbi Oshaya] who arranged the beraitot: Were these two beraitot taught together?

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

And they said: They were taught concerning one another [they were taught together]!

[they were taught as one unit]!

Indeed, a difficulty is raised from the beraita against the latter formulation of Rav Pappa.

The Gemara precedes its following uncertainties concerning the law of our Mishna by stating that this law

is obvious:

if he

said

at first, “

I am not paying,”

and the bailee retracted

from this

and said: “

I am prepared to pay,”

then he acquires the thief’s payments, for

he said: “

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

Rather—the matter about which there is uncertainty is:

the matter that remains uncertain is: