Bava Metzia 35a — the Talmud in English

It was stated in accordance with Rav Huna:

he says that even one who pays for the deposit and does not exempt himself [from the obligation] must take an oath that it is not in his possession — if so, why did the Sages transfer the oath to the lender? And behold,

since

necessarily

the lender takes an oath that it is not

the collateral

in his possession, how can he take it out

how can he produce it!?

Rava said,

he answered:

Rav Yosef said:

the beraita is dealing with a case in which

there are witnesses that it was burned ,

and the lender need not take an oath that it is not in his possession.

И мы возразили:

If so—

since it certainly burned, what concern is there if the borrower takes the oath imposed upon him? After all,

from where will he bring it

from where will the lender produce it in order to contradict the borrower!?

Но сказал Рав Йосеф

в объяснение: барайта говорит о случае,

когда есть свидетели, что залог был украден.

And we still ask:

In the end, from where will the lender bring it,

since it was certainly stolen!?

And we answer: There is concern

that the lender will trouble himself

the lender

and bring it

the collateral [he will trouble himself to search for the thief and bring the collateral].

And we ask about this:

If so—

if you are concerned lest one of them trouble himself to find it in order to contradict the one taking the oath, what benefit did the Sages accomplish through their ordinance? After all,

when the lender takes an oath as well, let the borrower trouble himself and bring it

let the borrower also trouble himself to bring it in order to contradict the lender!?

And we answer:

Granted, the lender

can trouble himself and find the thief, because

he knows who enters and leaves his house

he knows who the members of his household are who enter and leave, and from among them he will search for the thief

; but the borrower—how would he know who enters and leaves the house of the lender

does he know the members of the lender’s household who enter and leave, so that he could find the thief from among them!?

Rav Ashi said

to answer the difficulty from the Mishna against Rav Huna:

The Mishna does not mean that the lender takes an oath and not the borrower concerning how much it was worth. Rather, the Mishna means that even

this—

the lender—

takes an oath, and apart from what

помимо того, что

this—

the borrower—

takes an oath;

how so?

This—

the lender—

takes an oath that it is not in his possession,

as Rav Huna said.

And this—

the borrower—

takes an oath concerning how much it was worth,

for the oath is imposed upon him.

And what we learned in the Mishna: “Who takes an oath? The one with whom the deposit is found,”

следует понимать так:

this is what it says:

Who

of them

takes an oath first? The lender

is the one who

takes an oath first,

that the collateral is not in his possession, for otherwise

perhaps this one will take an oath

the borrower concerning how much it was worth,

and the other will produce—

the lender—

the deposit.

Rav Huna bar Taḥlifa said in the name of Rava:

The first clause of the final section—

which deals with the borrower’s claim against the lender—is

a refutation of Rav Huna!

.

For we learned in the first clause of the final section:

“You lent me a sela against it; it was worth two. And the other says, ‘No, I did not lend you a sela against it; it was worth a sela.’ He is exempt.”

The lender is exempt from an oath because he is denying the entire claim.

And if Rav Huna’s statement is valid

if Rav Huna’s words are correct—that the lender must take an oath that the collateral is not in his possession—if so, why is he exempt from an oath? Even though he denied the entire claim,

through the fact

from the fact that

the lender takes an oath that it is not in his possession,

as Rav Huna said,

let him also take an oath through the rolling of an oath

let him also swear concerning what the borrower rolls upon him:

how much was it worth!?

Сказал Рав Аши:

I stated the teaching,

I stated Rav Huna’s words, and Rav Huna bar Taḥlifa’s difficulty against him,

before Rav Kahana

before Rav Kahana,

and he said to me

to answer Rav Huna’s words:

Let it be referring to one who believes him,

the Mishna is dealing with a case in which the borrower believes the lender that the collateral is not in his possession, and he need not take an oath concerning this; if so, it is impossible to roll an oath upon him.

And we ask about this: If you establish the Mishna as referring to a borrower who believes the lender, then

let the borrower also believe the lender concerning this: how much was it worth,

let him also believe him in his claim concerning the value of the collateral; and for what purpose does he make him take any oath at all!?

И мы отвечаем: действительно, заемщик верит ему в том, что заимодавец не присваивает залог; однако заемщик полагает, что

And we answer: Indeed, the borrower believes him that he is not robbing him, but the borrower maintains that

it is not established for the lender

with regard to it

the lender, who is not the owner of the collateral, does not recognize the collateral and is mistaken in calculating its value; therefore he makes him take an oath.

And we still ask: Since you explain that the Mishna deals with a case in which the borrower believes the lender,

let the lender believe

he too

the borrower

concerning how much it was worth,

for

ведь

it is established

for the borrower

with regard to it

how much the collateral is worth!?

And we answer:

He does not believe him

the lender does not consider the borrower trustworthy.

And we ask:

What is different about the borrower, that he believes the lender, and what is different about the lender, that he does not believe the borrower!?

That is, what reason is there to explain that the tanna is dealing with a particular case in which the borrower believes the lender, while the lender does not believe the borrower?

And we answer: Ordinarily, this is the situation, because

the borrower fulfills through the lender

the verse has made the wealthy man fulfill:

“The integrity of the upright guides them”

the integrity of the upright leads them; that is, were he not a trustworthy and upright person, Heaven would not have enriched him.

But

the lender fulfills through the borrower

the verse has made the poor man fulfill:

“And the perversity of the treacherous despoils them”

it despoils them; that is, he is a treacherous and non-upright man, and therefore he is poor and despoiled.

There was an incident involving

a certain man who deposited earrings

earrings

with his fellow

an incident involving a man who deposited earrings with his fellow.

After some time,

he said to him

the depositor said to the bailee:

Give me my earrings

give me my earrings!

He said to him

the bailee said to the depositor:

I do not know where I placed them

I do not know where I put them.

He came

the bailee

before Rav Naḥman

to ask about his law:

Rav Naḥman said to him

Rav Naḥman said to the bailee:

Every

one who says

“I do not know”

is negligence,

and therefore

go, pay

the depositor his earrings; nevertheless, the bailee did not comply with the judgment, and

did not pay

the bailee.

Rav Naḥman went and collected his mansion from him

he went and collected his mansion from him, according to the value of the earrings.

то есть впоследствии серьги были найдены,

In the end, the earrings were found

and they increased in value

the earrings became more expensive in the meantime, and were worth more than the value of the mansion that had been paid for them.

Rav Naḥman said:

The earrings return to their owner, and the mansion returns to its owner

the earrings return as they are to their owner, and the mansion returns to the bailee from whom it had been collected.

Rava said:

I was sitting before Rav Naḥman,

I was sitting at that time—when this case came before him—before Rav Naḥman,

and we were studying the tractate “

The Depositor”

was

in our chapter, the chapter “The Depositor,” we were engaged ,

and I said to him

I challenged him:

See the “Otzar Mefarshei HaTalmud” for the reason Rava mentioned that they were studying this chapter at that time. For we learned in our Mishna: “One who deposits an animal or vessels with another, and they were stolen or lost,

he paid and did not wish to take an oath ... the thief is found and pays double payment ... To whom does he pay? To the one with whom the deposit was found”; and we should have said: Just as he acquires the double payment, so does he acquire the increase in value! Since the bailee paid for the earrings and did not exempt himself through an oath, by law the increase in value should belong to him!?

!?

But he did not answer me

Rav Naḥman did not answer my difficulty,

and he acted well by not answering me

he did well not to answer me, for this is not a difficulty!

What is the reason:

because

there—

in our Mishna—

he did not trouble

the bailee [to appear] before the depositor

in court

[he did not trouble him to sue him in court]; rather, immediately when he sued him privately, he agreed to pay.

But

here—

in the incident of the earrings—indeed

he troubled

the bailee [to appear] before the depositor

to

sue him in

court, and in this manner, even when he paid, he did not confer upon him either the double payment or the appreciation in value.

And the Gemara raises an objection against Rav Naḥman, who ruled to return the property and annul the collection: Does this mean that Rav Naḥman holds: a valuation

—

the borrower’s property that the court valued and gave to the creditor in repayment of his debt—

returns

to the borrower if he wishes to repay his debt with money!? For so it appears from the fact that Rav Naḥman returned the mansion to the one who paid!?

And we answer: One may always say that Rav Naḥman holds that a valuation does not return, but

there it is different,

in that incident,

for the valuation was in error, since the earrings had existed from the outset,

for at the beginning of the valuation the earrings were in his possession, but he did not know this; and had he known, they would not have valued the mansion. But a valuation that the court makes because he has no money and owes him is like a

complete sale and does not return.

The Nehardeans said:

A valuation returns up to twelve months

[it returns at the borrower’s request for up to twelve months].

Ameimar said: I am from Nehardea, and

nevertheless

I hold: a valuation returns forever,

and not only for twelve months.

And the halakha is: a valuation returns forever, because it is stated: “

And you shall do what is upright and good.”

The Gemara brings here rulings of halakha concerning the law of “a valuation returns”:

These laws are

obvious:

A. If

the court valued for him

the property

for a creditor

of one who borrowed from him,

and he went

[and the creditor went]

and valued it for his creditor

[he paid those properties to his own creditor], then

we say to him

the second creditor:

You are no better than the man from whom you came

[you are no better than the one through whom you came], and just as the first was required to return it, so too you, who came through his power, must return it to the first borrower for whom the court had valued it.

And it is also obvious: if

he sold it [

the lender sold the land that the court had assessed from the borrower's property], or

he inherited it [

bequeathed it to his sons],

and gave it as a gift [

or gave it as a gift],

certainly

we say:

these —

the purchaser, heir, and recipient of the gift —

initially descended with the intention of acquiring the land and not with the intention of acquiring money, [

from the outset, they descended upon it with the intention of acquiring land, and not with the intention of acquiring money], and they do not have to return it and receive money in exchange for it.

And it is also obvious: if

they assessed for a woman

the property of one who borrowed from her,

and she married [

she married],

or

if

they assessed from the woman [

or she was the borrower and they assessed her property],

and she married and died:

the husband with regard to

usufruct property [property whose produce the husband consumes, while the substance belongs to the woman] of

his wife

who died,

“a purchaser”

he is

with regard to the substance of the land, and not an “heir” like other heirs, and therefore:

he neither returns it nor can we return it to him [

he does not return it, and he cannot demand that it be returned to him], just as a purchaser does not return it and cannot demand that the assessment be returned to him.

And because

of

this

Rabbi Yosei son of Rabbi Hanina said: In Usha [

when the Sanhedrin, which had sat in the Chamber of Hewn Stone, was exiled there],

they instituted:

A woman who sold usufruct property —

the substance belonging to her —

during her husband's lifetime, and died, the husband extracts

the substance of the land

from the purchasers.

Thus, “a purchaser” is the one who preceded the purchasers, because if he were an “heir,” he would not be able to extract it from the purchasers, for a son who is an “heir” cannot extract it from purchasers who bought from his father during his lifetime.