Bava Metzia 41a — the Talmud in English

The owners’ knowledge is required

themselves, that they know of its return; but the knowledge of the custodian is not sufficient, because once the custodian has stolen, the owners no longer place trust in him and his custodianship has ended, and his knowledge is no longer like the knowledge of

the owners.

And we raise an objection:

If it is Rabbi Ishmael, why specifically

in the first clause: “One who deposits a barrel with another and

did not designate

the owners a place for it,” which implies: but if the owners designated a place for it, then he is liable for its accidents even after he returned it!? But

even if they designated

the owners a place for it,

also—since he returned it to the place they designated—

he should be exempt!?

And we answer: The Mishna’s intention in the first clause is not to say that if the owners designated a place for it, the law would be different, but the opposite:

It states the less obvious case

the tanna of the Mishna:

It is not necessary to state that if they designated a place for it

and he returned it to its place, he is exempt,

for

it is

its place,

and since he returned it in that place, it is a complete restoration

; rather, even if they did not designate

the owners a place for it,

for it is not its place,

nevertheless it is a restoration, for

we do not require the owners’ knowledge.

And we raise an objection: But

let us consider the latter clause

of our Mishna, in which it is clear that when they designated a place, the law changes, for it teaches in the latter clause:

If the owners designated a place for it, and he moved it and it broke, whether from his hand or after he had placed it

in the place designated for it,

if it was for his needs, he is liable; if it was for its needs, he is exempt.

And if the latter clause is Rabbi Ishmael, what difference is there whether the owners designated a place for it and he returned it to its place, or whether they did not designate a place for it!?

Rather, it is necessarily the case that the latter clause does not express the opinion of Rabbi Ishmael, but

we have arrived at Rabbi Akiva, who says: We require the owners’ knowledge.

And we raise an objection:

If

the latter clause

is Rabbi Akiva

itself,

why

specifically when they designated a place for it

that he is liable? But

even if they did not designate a place for it, also,

he should be liable, since he returned it without the owners’ knowledge!?

And we answer: The Mishna’s intention in the latter clause is not to say that he is liable specifically when the owners designated a place for it, but the opposite:

It states the less obvious case; it is not necessary to state that they did not designate a place for it

and he returned it without the owners’ knowledge, in which case he is liable,

for it is not its place

that was designated,

but even when they designated a place for it

the owners and he returned it there,

also, since it is its place,

nevertheless

we require the owners’ knowledge.

And since it is proven from the latter clause that it is Rabbi Akiva, the following objection arises: Is it really that

the first clause is Rabbi Rabbi Ishmael

and

the latter clause is Rabbi Akiva

!?

And we answer:

Yes, for Rabbi Yohanan said: Whoever interprets for me

the Mishna dealing with the law of a

barrel

according to one tanna, I shall carry his utensils after him to the bathhouse, [

whoever explains the first clause and the latter clause according to the method of one tanna, I shall carry his utensils after him to the bathhouse].

The Gemara brings here interpretations that amoraim stated regarding the Mishna, in order to explain that it is unnecessary to interpret the Mishna according to the method of two tannaim, and that all of them are directed toward one matter, as will be explained at the end of their words; rather, the amoraim disagree with one another regarding another detail, namely, how to interpret the beginning of the Mishna, where it is explained that if he moved it for his needs, he is liable for its accidents until he returns it. At first the Gemara conducts a dialectical discussion concerning this detail in their words, and only afterward does the Gemara conclude by bringing the interpretation of the latter clause, in which they do not disagree

He explained [A0135]]interpreted our Mishna]

the interpretation of our Mishna

Rabbi Yaakov bar Abba before Rav:

this that we learned, that if he moved it for his needs he is liable for its accidents, means

that

he lifted it and

took

the barrel

in order to steal it

entirely. And he becomes a robber with regard to it because of the law of misappropriation, by which the Torah made custodians liable even if the deposit suffered an accident after their misappropriation, as is explained in the passage concerning the custodians [Mishpatim 21], where the custodians—who seek to become exempt from accidents—swear: “If he did not send his hand into the work of his fellow

”. Rabbi Natan bar Abba explained before Rav

the statement that we learned, that if he moved it for his needs he became liable for its accidents, meaning in a case

where he took it

and lifted the barrel

in order to misappropriate it,

that is: in order to take part of it for himself, even though in the end he did not take it; and by the law of misappropriation of hand he becomes a robber with regard to the entire barrel.

And the Gemara explains

With regard to what do they disagree

these amoraim?

Regarding misappropriation of hand,

whether it

requires diminution

is what they disagree about:

The one who says—

Rabbi Yaakov bar Abba—“he took it in order

to steal it,” holds:

if he lifted it in order to take part of it but did not take it, he is not liable for accidents of the deposit, because

misappropriation of hand requires diminution; one who misappropriates a deposit is liable only if he intended to diminish it and indeed diminished it.

One who exercises control over a deposit is liable only if he intended to diminish it and actually diminished it.

And the one who says -

Rabbi Natan bar Abba - that he took it with the intention

of using it; he holds: sheliḥut yad does not require a deficiency, and everything that he lifted with the intention of making a deficiency in it, he is liable even though he did not actually make a deficiency in it -

and anyone who lifted it with the intention of taking some of it is liable even though he did not actually take any of it —

And therefore: Rabbi Yaakov bar Abba, who holds that it requires a deficiency, cannot explain that our Mishna is dealing with a case where he did not intend to steal all of it, but only a quarter of it, for if so he would become liable only if he diminished the quarter and took it for himself, whereas our Mishna does not imply that it is dealing with such a case; and necessarily, he moved it and intended to steal all of it, and then he is indeed liable by the law of sheliḥut yad, for there is a deficiency here, since he took all of it for himself.

Rav Sheshet raised an objection

to the two explanations that were stated:

Does it teach, “he took it,” which would imply that he took it with the intention of stealing all of it or part of it from it!? But it teaches,

which would imply that he took it with the intention of stealing all or part of it? But it states

“he moved it”

does it not!?

And this expression does not imply that he wished to steal all of it or part of it from it, but only that he took it for ordinary use.

Rather, Rav Sheshet said: Here

in our Mishna,

with what are we dealing? For example, he moved it

and lifted it

to place upon it

young birds,

and by this alone he became a thief with respect to it,

and

because

he holds

the tanna of our Mishna:

an unintentional

borrower is a thief.

And here the Gemara concludes the words of all the amoraim, who explain the latter clause in such a way that the entire Mishna follows the method of one tanna:

And the whole of it [

the entire Mishna, both the first clause and the latter clause]

is Rabbi Yishmael,

who holds: we do not require the owner’s knowledge, and therefore it is explained in the first clause that if the owners did not designate a place for it, he is exempt once he returned it, and all the more so when the owners designated a place for it and he returned it to its place

; and the latter clause,

which explains that if the owners designated a place for it, he is liable even if he put it down, means in a case

that he put down

the barrel

in a place that is not its place [not in the place designated by the owners], because since he did not put it in the place designated by the owners, this is not a return at all, and this does not depend on the dispute between Rabbi Yishmael and Rabbi Akiva.

And we explain:

And we explain:

And Rabbi Yohanan, who was pressed to explain our Mishna as involving two tannaim, therefore did not reconcile it according to these explanations of the amoraim, because the language of the latter clause of the Mishna,

who was forced to explain our Mishna as reflecting the views of two tannaim, did not reconcile it according to these explanations of the amoraim, because the wording of the latter clause of the Mishna—

“he put it down,”

implies in its place.

It was stated:

They disputed,

Rav and Levi:

One

of them

said: sheliḥut yad requires a deficiency.

And one

of them

said: sheliḥut yad does not require a deficiency.

But if the shepherd left his staff and bag on it [ on one sheep from the flock], he is liable for the actions of the wolf and the lion, because by placing the staff and bag on it, he became a thief with regard to it—as the Gemara proceeds to explain—and a thief is liable for accidents. We raise an objection: And is he liable merely because he placed his bag and staff on it? But he removed them [ for surely he took them from it]!? That is: Even if you say that placing his staff and bag on it is considered sending one’s hand [even though he did not pull it or perform an act of acquisition with it], nevertheless, as soon as he took his staff and bag from it, it is as though he returned it.

It will be concluded that it is Rav who said: sheliḥut yad does not require a deficiency,

from this

as it is taught: A shepherd who was shepherding his flock and left his flock

at the time when it is customary for shepherds to enter the city

and came to the city, and a wolf came and seized

a sheep from the flock and carried it to its lair to eat it [as is the way of wolves],

and a lion came and mauled

a sheep in the flock and ate it [as is the way of lions]:

They assess him: if he could have saved it had he not left his flock, he is liable.

And if not, that he could not have saved it even had he not left his flock -

he is exempt.

But if

the shepherd

left

his staff and his satchel upon it [upon one sheep from the flock],

upon one sheep from the flock],

he is liable

for the acts of the wolf and the lion, because through placing the staff and the satchel upon it he became a thief with respect to it—as it explains and proceeds—and a thief is liable for accidents.

And we raised it:

But is it

because he placed his satchel and his staff upon it

that he

is liable!?

But he removed them [and did he not take them from it]!? That is, even if you should say that placing his staff and his satchel upon it is considered sheliḥut yad [even though he did not pull it and perform an acquisition with it], nevertheless, as soon as he took his staff and his satchel from it, this is as though he had returned it.

and yet he took them off it]! That is, even if you say that placing his staff and pack upon it is considered misappropriation [even though he did not pull it or perform an act of acquisition with respect to it], nevertheless, as soon as he removed his staff and pack from it, it is as though he returned it.

And

Rav Naḥman said that Rabbah bar Avuha said that Rav

to reconcile the beraita: the beraita does not make him liable, but rather

while they are still upon it,

for this is sheliḥut yad, and sheliḥut yad makes him liable for accidents that occur to it afterward, since he did not take them off it and did not return it.

And we still raise it:

And what is the consequence if they are still upon it

[what of it]!?

But he did not pull it,

and whenever he has not performed an acquisition, such as pulling, this is not sheliḥut yad to make him liable for it!?

And Rav Shmuel bar Rav Yitzḥak said that Rav said:

the beraita makes him liable only when

he struck it with a stick and it ran before him,

and this is pulling, and since they are still upon it, he is liable for its accidents.

And from Rav’s explanation of this beraita, the Gemara proves that Rav holds: sheliḥut yad does not require a deficiency, for if not, this would be difficult:

But it was not diminished!?

Rather, is it not

necessarily

infer from this

that

he holds

Rav:

sheliḥut yad does not require a deficiency.

The Gemara rejects the proof:

Let us say

thus you should understand Rav’s words: “

that he weakened it with a stick

and it ran before him,” and if so, there was a deficiency.

This is also precise

from Rav’s wording, that he indeed weakened it, since

it teaches

in Rav’s words:

“that he struck it with a stick,”

and if he does not intend to say that he weakened it, why does he mention a stick?

And we conclude: indeed

infer from this

that he weakened it; and, on the contrary, it is proven that Rav holds: misappropriation requires a deficiency, for if not, why do I need the weakening?

And the Gemara adds:

And since Rav holds: misappropriation requires a deficiency,

necessarily

Levi holds: misappropriation does not require a deficiency.

And we explain:

What is Levi’s reason?

It is written in the passage concerning an unpaid bailee: “When a man gives to his fellow silver or vessels to guard, and it is stolen from the house of the man [the bailee will claim that it was stolen from him, and he is exempt from paying]; if the thief is found, he shall pay [the thief] double. If the thief is not found [as the bailee claimed], and the owner of the house [the bailee] shall come near [and has already come near] to the Divine beings [the court, for an oath], whether he did not send his hand into the property of his fellow [that is: the bailee swears that he did not send his hand into the deposit before the theft, for had he sent his hand, he would have become liable for all accidents and would not be exempt when he claims a thief’s claim; for then:] concerning every matter of transgression [in which he is found to be lying in his oath], concerning an ox, concerning a donkey, concerning a sheep, concerning a garment, concerning every lost item, which he will say [the witness] that this is it [that you swore concerning it that it was stolen from you; behold, it is in your possession, for you stole it], before the Divine beings [the court] shall come the matter of both of them [the witness and the bailee, and] whoever the Divine beings [the court] shall declare guilty [whichever one the court decides is the liar, the witness or the bailee] shall pay [the witness or the bailee] double to his fellow.”

And it is written in the passage concerning a paid bailee: “When a man gives to his fellow a donkey or an ox or a sheep, and every animal to guard, and it dies or is broken or is taken captive [these are accidents], there being no witness [there being no witnesses to the matter, for then], the oath of the Lord shall be between them, whether he did not send his hand into the property of his fellow,” and because if he sent his hand, he is liable even for accidents.

Rabbi Yohanan said in the name of Rabbi Yosei ben Nehorai:

The misappropriation mentioned with regard to a paid bailee differs from the misappropriation mentioned with regard to an unpaid bailee,

that is: the misappropriation mentioned with regard to a paid bailee is not similar to that with regard to an unpaid bailee, for that with regard to an unpaid bailee was stated in order to teach us the law of one who sends his hand into a deposit, that he is liable for its accidents; but that with regard to a paid bailee was not needed to teach the fundamental law of misappropriation, as will be explained, but rather to teach a novel law concerning misappropriation, as will be explained.