Bava Metzia 34b — the Talmud in English

A.

If

he said

first: “

Behold, I am paying” ![](pamud.bmp "

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and he retracted

from it

and said: “

I am not paying,”

what

will be his legal status regarding entitlement to the thief’s payments?

The sides of the uncertainty are:

Do we say: He is retracting from his statement

indeed, his intention is to retract his agreement, and if so he does not become entitled.

Or perhaps:

still

he stands by his statement

he stands by his word,

and

what he is saying now, “I am not paying,”

is merely postponing him

the depositor, because he wishes to postpone the time of his payments, and if so his right to the thief’s payments has not lapsed.

B.

The Gemara further raises an uncertainty:

the father

the bailee

said: “

Behold, I am paying,”

and died before he managed to pay,

and his sons said: “We are not paying; what

will be their legal status regarding entitlement to the thief’s payments?

The sides of the uncertainty are:

Do we say: They are retracting from their statement

his sons retracted and do not intend to pay, and if so they did not become entitled to the thief’s payments.

Or perhaps: They stand by their father’s statement

they stand by their father’s word, and intend to fulfill it,

and are merely postponing him

temporarily.

C.

The Gemara further raises an uncertainty: If

the sons paid

of the bailee who died after the animal was stolen,

what?

The sides of the uncertainty are:

Can the depositor say to them

the father’s sons:

When I transferred the double payment, it was to your father, who brought me satisfaction

he brought me satisfaction many times, but

to you

to you, the sons, who did not bring me satisfaction,

not.

Or perhaps: It makes no difference.

D.

The Gemara further raises an uncertainty:

the bailee paid

the bailee

to the sons

of the depositor, who died before the theft:

what?

The sides of the uncertainty are:

Can the depositor’s sons say to him

the depositor’s sons:

When our father transferred the double payment to you,

meaning: our father indeed would have transferred the double payment to you had you paid him, because

you brought him satisfaction

because you brought him satisfaction many times,

but we, for ourselves, not.

Or perhaps: It makes no difference.

H.

The Gemara further raises an uncertainty:

the sons paid

of the bailee

to the sons

of the depositor,

what?

The sides of the uncertainty are: in this case, the owner of the deposit received no satisfaction from the one who paid or from his father, and the one who paid brought satisfaction neither to the owner of the deposit nor to his father; perhaps in such a case he does not transfer the double payment to him.

Or perhaps: It makes no difference.

V.

The Gemara further raises an uncertainty:

he paid

the bailee

half

of the deposit’s value, and so he stated initially that he would pay only half,

what

is the law—did he become entitled to half of the theft payments?

Z.

The Gemara further raises an uncertainty: If you conclude that one does not become entitled to half the theft payments for one animal, if

he borrowed two animals and paid for one of them

only,

what

—that he should become entitled to its payments? The sides of the uncertainty are:

Should we say: Since he paid for one animal, he acquires its payments.

Or perhaps: Since the two animals are one deposit, this is like one who paid half, who becomes entitled to nothing.

H.

The Gemara further raises an uncertainty:

he borrowed from partners and paid one of them

his share alone,

what?

The sides of the uncertainty are:

Should we say that since this partner received everything due to him, he transfers the theft payments.

Or perhaps, since from the deposit as a whole he paid only half, this is like one who paid half the deposit, who becomes entitled to nothing.

T.

The Gemara further raises an uncertainty:

partners who borrowed, and one of them paid

[of the borrowers] his share,

what?

The sides of the uncertainty are: should we say that since, from his side, he paid everything imposed upon him, it is proper that he become entitled to half the theft payments?

Or perhaps: ultimately, only half the deposit was paid.

Y.

The Gemara further raises an uncertainty:

he borrowed from the woman

her female slave’s cow,

and paid

for the animal

to her husband, what

is the bailee’s law regarding becoming entitled to the double payment, which belongs to the woman?

The sides of the uncertainty are:

Should we say: Since the principal does not belong to her husband, this is not a valid payment through which to acquire the double payment. Or perhaps: Since he is the administrator of his wife’s property, consuming its produce, he is like the owner of the animal, and it is a payment.

Or perhaps: Since he is the administrator of his wife’s property and consumes its produce, he is considered like the owner of the cow, and this is a payment.

11.

The Gemara further raises a doubt:

a woman who borrowed

a cow for the purpose of working land belonging to her nichsei melog property,

and her husband paid, what is the law?

Rav Huna said:

They administer an oath to him,

the one paying the value of

the animal, who did not wish to take an oath:

“An oath that it is not in his possession!”

And we explain:

What is the reason,

because

we are concerned perhaps

it is in the possession of the bailee, and he pays because

he set his eyes upon it,

upon the animal that had been deposited with him.

It raises an objection

against Rav Huna from a Mishna in Shevuot:

A. One who lends money to his fellow against a pledge, and the pledge is lost, even through an unavoidable accident affecting the lender, the lender loses the debt corresponding to the pledge.

B. And if the value of the pledge was greater than the debt, he is subject to the law of a paid bailee, who is liable for theft and loss of the pledge, and exempt in the case of an unavoidable accident.

C. One who claims money from his fellow, and the latter admits part of the claim, must take a Torah oath; but one who denies the entire claim is exempt from an oath.

D. A sela is four dinars, and a shekel is half a sela.

E. By Torah law, one who becomes obligated to take an oath to his fellow can be compelled by the one administering the oath to include in it oaths to which he was not legally obligated.

One who lends money to his fellow against a pledge, and the pledge is lost:

The Mishna is divided into two parts, which are four: the first clause deals with the lender’s claim against the borrower, and the latter clause deals with the borrower’s claim against the lender; and in each of them, the first clause deals with one who “denies the entire claim,” and the latter clause deals with one who “admits part.”

The first clause of the first clause:

And he said to him,

the lender to the borrower: “

I lent you a sela against it,

whereas the pledge—which, corresponding to it, you need not pay, since it was lost—

was worth a shekel

only,

and was worth

so that it follows that you still owe me one shekel from the remainder of the loan”

! And the other—

the borrower—denies the entire claim and

says: “

No! Rather, I lent you a sela against it,

and the pledge too

was worth a sela,

and I owe you nothing”:

The borrower is

exempt

from an oath, because he denies the entire claim, and one who denies the entire claim is exempt from an oath.

The latter clause of the first clause:

And if the lender said to the borrower: “

I lent you a sela against it,

whereas the pledge

was worth a shekel,

and you owe me a shekel”

! And the other—

the borrower—admits part of the claim, and

says: “

No! Rather, I lent you a sela against it,

and the pledge

was worth three dinars,

and I owe you one dinar, but not a shekel as you claim”:

He is liable

the borrower to take an oath, for he admits part of the claim, and everyone who admits part of the claim is liable to take an oath.

The first clause of the latter clause:

And if the borrower said to the lender: “

I lent you a sela against it,

whereas the pledge

two

selas

was worth,

and you are a paid bailee, and you owe me the additional sela by which the value of the pledge exceeds the loan”

! And the other—

the lender—denies the entire claim and

says: “

No! Rather, I lent you a sela against it,

and the pledge as well, corresponding to it,

a sela

only

was worth,

and I owe you nothing, for my liability was offset against your debt.”

The lender is therefore

exempt

from an oath, because he denies the entire claim, and one who denies the entire claim is exempt from an oath.

The latter clause of the latter clause:

And if the borrower said to the lender: “

I lent you a sela against it,

whereas the pledge

two

selas

was worth,

and you owe me the sela remaining from the value of the pledge”

! And the other—

the lender—admits part of the claim and

says: “

No! Rather, I lent you a sela against it,

and the pledge

five dinars

only

was worth,

and I owe you only one dinar.”

The lender is liable

to take an oath.

And although the obligation to take the oath in its basic form does not rest upon the lender, nevertheless:

Who takes the oath?

The one with whom the deposit

is

with him, namely, the lender, for otherwise there is concern:

Perhaps this one will take an oath,

the borrower,

and the other will take out

the lender

the deposit,

and everyone will see that the value of the pledge is not as the borrower swore, and the borrower will be disqualified from testimony and from taking an oath, according to the law of one who swears falsely; and the Gemara explains it as it proceeds.

The Gemara first explains the final clause of the beraita, and afterward the Gemara raises an objection from this clause against Rav Huna:

With regard to which

clause does the beraita say that because of this concern the lender takes the oath, and not the borrower, upon whom the oath rests?

If you say it is referring to the latter clause [

the latter clause of the latter clause], namely, what we learned: “I lent you a sela against it; it was worth two sela-im, and the other says, ‘No! Rather, I lent you a sela against it; it was worth five dinars,’ he is liable”—this cannot be said, because:

And

behold,

it follows that

even without this reason,

the oath

by basic law

belongs to the lender, for

he is the one who

admits part of the claim [

he is the one who admitted part of the claim, and the oath rests upon him], and if so, it is impossible to explain that the Sages imposed the oath upon the lender, for he is the one who is liable to take an oath by basic law.

Rather, he said—

he explained—

Shmuel:

The final clause of the beraita corresponds

to the first clause

of the beraita, which deals with the lender’s claim against the borrower.

And we explain:

What does “to the first clause” mean [

to which clause of the first clause does this final clause correspond]?

To the latter clause of the first clause,

and this is what we learned: “

I lent you a sela against it; it was worth a shekel, and the other said: ‘No! Rather, I lent you a sela against it; it was worth three dinars,’ he is liable”—

For the oath

by basic law

belongs to the borrower,

for he admitted part of the claim,

and

nevertheless

the Rabbis said: Let the lender take the oath,

and not the borrower, because

perhaps

this one will take an oath,

the borrower,

and the other will take out

the lender

the deposit,

which is the pledge in his possession, and disqualify the borrower from testimony and from taking an oath, when he proves that the borrower lied in his oath.

And from here the Gemara raises a difficulty against Rav Huna:

And if