Bava Metzia 34b (לד:) — the Talmud in English

a.

If

he said

at first: “

I am prepared to pay”

and then retracted

from it

and said: “

I am not paying,”

what

will be his status with regard to acquiring the thief’s payment?

The two sides of the uncertainty are:

Perhaps we say: He is retracting his position

[indeed, he intends to retract his agreement], and if so, he does not acquire it.

Or perhaps:

he still

maintains his position

[he stands by his statement],

and

what he now says—“I am not paying”—

is merely a means of delaying him

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

b.

The Gemara further raises an uncertainty:

the

father, who was the bailee,

said: “

I am prepared to pay,”

and died

before he had time to pay. His sons said: “We are not paying.” What

will be their status with regard to acquiring the thief’s payment?

The two sides of the uncertainty are:

Perhaps we say: They are retracting their position

[his sons retracted and do not intend to pay], and if so, they did not acquire the thief’s payment.

Or perhaps: They maintain their father’s position

[they stand by their father’s statement and intend to fulfill it],

and they are merely delaying him

temporarily.

c.

The Gemara further raises an uncertainty: If

the sons paid

of the bailee who died after the animal was stolen,

what is the halakha?

The two sides of the uncertainty are:

Can the depositor say to them

the sons:

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

[he had often gratified me], but

to you

[to you, the sons, who did not give me satisfaction]

not.

Or perhaps: It makes no difference.

d.

The Gemara further raises an uncertainty:

If the bailee paid

the bailee

to the sons

of the depositor, who died before the theft:

what is the halakha?

The two sides of the uncertainty are:

Can the depositor’s sons say to him

the sons of the depositor:

Our father would have transferred the double payment to you

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

you gave him satisfaction

[because you often gave him satisfaction],

but as for us, not.

Or perhaps: It makes no difference.

e.

The Gemara further raises an uncertainty:

The sons paid

of the bailee

to the sons

of the depositor

what is the halakha?

The two sides of the uncertainty are: In this case, the owner of the deposit received no satisfaction from the person who paid or from his father, and the person who paid gave satisfaction neither to the owner of the deposit nor to his father. One might therefore say that in such a case he does not transfer the double payment to him.

Or perhaps: It makes no difference.

f.

The Gemara further raises an uncertainty:

If the bailee paid

the bailee

half

of the value of the deposit, having initially stated that he would pay only half,

what

is the law? Does he acquire half of the thief’s payment?

g.

The Gemara further raises an uncertainty: If we can say that one does not acquire half of the payment for the theft of a single cow, if

he borrowed two cows and paid for only one of them

alone,

what

is the halakha? Does he acquire the payment for one cow? The two sides of the uncertainty are:

Perhaps we should say: Since he paid for one cow, he acquires its payment.

Or perhaps: Since the two cows constitute a single deposit, this is like one who paid half, who acquires nothing.

h.

The Gemara further raises an uncertainty:

If he borrowed from partners and paid one of them

his share alone,

what is the halakha?

The two sides of the uncertainty are:

Perhaps we should say: Since this partner received everything due to him, he transfers the thief’s payment.

Or perhaps: Since, in the deposit as a whole, he paid only half, this is like one who paid half the deposit, who acquires nothing.

i.

The Gemara further raises an uncertainty:

If partners borrowed and one of them paid

[of the borrowers] his share,

what is the halakha?

The two sides of the uncertainty are: Perhaps we should say that since, from his perspective, he paid everything incumbent upon him, it is right that he acquire half of the thief’s payment.

Or perhaps: Ultimately, only half of the deposit was paid.

j.

The Gemara further raises an uncertainty:

If he borrowed from a woman

her cow from property designated as nichsei melug,

and paid

the cow

to her husband, what is the status of the bailee with regard to acquiring the double payment, which belongs to the woman?

The two sides of the uncertainty are:

Perhaps we should say: Since the principal does not belong to her husband, this is not a proper payment through which to acquire the double payment.

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

if a woman borrowed

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

and her husband paid, what is the halakha?

Rav Huna said:

They administer an oath to him

who pays the value of

the animal but does 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 that perhaps

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

he has set his eyes upon it

the animal that was deposited with him.

Meytivi

an objection to Rav Huna from a Mishna in tractate Shevuot:

A. One who lends money to another against collateral, and the collateral is lost, even through an unavoidable accident affecting the lender, the lender forfeits the portion of the debt corresponding to the collateral.

B. If the value of the collateral exceeded the debt, he has the status of a paid bailee with regard to it, liable for theft and loss of the collateral but exempt in a case of unavoidable accident.

C. One who claims money from another, 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, when one is obligated to take an oath to his fellow, the one administering the oath may have him include in it oaths concerning matters for which he was not legally obligated to take an oath.

One who lends money to another against collateral, and the collateral is lost:

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

The first clause of the first part:

And he said to him

the lender to the borrower: “

I lent you a sela against it

and as for the collateral—in whose place you do not have to pay, since it was lost—

a shekel

only

was it worth,

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

!” And the other

the borrower—denies the entire claim and

says: “

That is not so! Rather, I lent you a sela against it,

and the collateral too

was worth a sela,

and I owe you nothing”:

The latter clause of the first part:

And if the lender said to the borrower: “

I lent you a sela against it,

but the collateral

was worth a shekel,

and you owe me a shekel

!” And the other

the borrower—admits part of the claim, and

says: “

That is not so! Rather, I lent you a sela against it,

and the collateral

was worth three dinars,

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

He is liable

the borrower must take an oath, since he admits part of the claim, and anyone who admits part of the claim is liable to take an oath.

The first clause of the latter part:

And if the borrower said to the lender: “

You lent me a sela against it,

but the collateral

was worth two

selas

and since you are a paid bailee, you are liable to me for the sela by which the value of the collateral exceeded the loan

!” And the other

the lender—denies the entire claim and

says: “

That is not so! Rather, I lent you a sela against it,

and the collateral as well, corresponding to it,

was

a sela

only

in value,

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

Thus the lender 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 latter part:

And if the borrower said to the lender: “

You lent me a sela against it,

but the collateral

was worth two

selas

and you owe me the remaining sela of the value of the collateral

!” And the other

the lender—admits part of the claim and

says: “

That is not so! Rather, I lent you a sela against it,

and the collateral

was worth five dinars

only

in value,

and I owe you only one dinar

.”

The lender is liable

to take an oath.

Although the obligation to take the oath in principle does not rest upon the lender, nevertheless:

Who takes the oath?

The one with whom the deposit

is

that is, the lender, for otherwise there is concern:

Perhaps this one will take an oath

the borrower,

and the other will produce

the lender

the deposit,

and everyone will see that the collateral is not worth the amount concerning which the borrower swore, and the borrower will be disqualified from testimony and from taking oaths, as is the law concerning one who swears falsely;

and the Gemara proceeds to explain it.

Concerning which case

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

If you say it refers to the latter clause

[the latter clause of the latter part], namely, what we learned: “You lent me a sela against it; it was worth two selas. And the other said: ‘That is not so! Rather, I lent you a sela against it; it was worth five dinars.’ He is liable”—this cannot be said, because:

And

after all,

it follows that

even without this reason,

the oath

by fundamental law

belongs to the lender, for

he

admits part of the claim, [that is, 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, since he is the one who is fundamentally obligated to take it.

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, Shmuel said

that he explained:

The final clause

of the beraita applies

to the first clause

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

And we explain:

What does it mean that it applies to the first clause

[to which case in the first clause does this final clause apply]?

It applies to the latter clause of the first part,

which is what we learned: “

I lent you a sela against it; it was worth a shekel. And the other said: ‘That is not so! Rather, you lent me a sela against it; it was worth three dinars.’ He is liable”—

The oath

by fundamental law

belongs to the borrower,

for he admitted part of the claim,

but

nevertheless

the Sages 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 produce

the lender

the deposit, which is the collateral in his possession, and thereby disqualify the borrower from testimony and from taking oaths, when he demonstrates that the borrower lied in his oath.

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

And if