Bava Metzia 41a (מא.) — the Talmud in English

the owners’ awareness is required

the owners themselves must know that it has been returned. But the awareness of the bailee is not sufficient, because once the bailee has stolen, the owners no longer place their trust in him, and his guardianship has ended; consequently, his awareness is no longer equivalent to the awareness of

the owners.

And we challenge this:

If it is Rabbi Yishmael, why specifically

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

the owners did not designate

a place for it,” implying that if the owners did designate a place for it, then he is liable for accidents even after he returned it!? But

even if they designated

a place for it,

also—

since he returned it to the place they designated— he should be exempt!?

And we answer: The first clause of the Mishna does not intend to say that if the owners designated a place for it, the law would be different. On the contrary:

The tanna of the Mishna stated the less obvious case:

the tanna of the Mishna said:

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

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

for

it is

its place,

and since he returned it to that place, it is a complete return

; but even if they did not designate

a place for it,

so that it is not its place,

nevertheless, it is a return,

for the owners’ awareness is not required.

And we challenge this:

But say the latter clause

of our Mishna, which indicates that when a place was designated, the law changes, as it teaches in the latter clause:

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

in the place they designated for it,”

“if he moved it for his own purposes, he is liable; if he moved it for its purposes, he is exempt.”

And if the latter clause is according to Rabbi Yishmael, what difference is there between the owners designating a place for it and his returning it to its place, and their not designating a place for it!?

Rather, necessarily, the latter clause does not reflect the view of Rabbi Yishmael. Instead,

we have arrived at Rabbi Akiva, who says: the owners’ awareness is required.

And we challenge this:

If

the latter clause

is Rabbi Akiva

’s view,

why

specifically when they designated

a place for it is he liable?

Even if they did not designate a place, as well,

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

And we answer: The latter clause of the Mishna does not intend to say that he is liable specifically when the owners designated a place for it. On the contrary:

The tanna stated the less obvious case: it is not necessary to state that when they did not designate a place

and he returned it without the owners’ awareness, he is liable,

for it is not the designated place

that

it is; rather, even when they designated

a place for it and he returned it there,

it is also its place,

nevertheless,

the owners’ awareness is required.

And since it is proven from the latter clause that it is Rabbi Akiva’s view, the following difficulty arises: Is it possible that

the first clause is Rabbi Yishmael Rabbi

’s view,

and the latter clause is Rabbi Akiva

’s view!?

And we answer:

Yes, for Rabbi Yohanan said: “Whoever interprets for me

the Mishna dealing with the law of a

barrel

according to the view of a single tanna, I will carry his utensils after him to the bathhouse,”

whoever explains the first and latter clauses according to the view of a single tanna, I will carry his utensils after him to the bathhouse].

The Gemara cites here interpretations that amoraim gave of the Mishna, in order to explain that it is unnecessary to interpret the Mishna as reflecting the views of two tannaim; rather, they all direct their words toward one matter, as will be explained at the end of their statements. However, the amoraim disagree with one another regarding another detail: how to interpret the beginning of the Mishna, which explains that if he moved it for his own purposes, he is liable for accidents until he returns it. At first, the Gemara analyzes this detail in their statements, and only afterward concludes by citing the interpretation of the latter clause, regarding which they do not disagree.

Rabbi Yaakov bar Abba expounded

the interpretation of our Mishna

before Rav:

The statement we learned, that if he moved it for his own purposes he is liable for accidents, means

that

he lifted it and

took

the barrel

with the intention of stealing it

in its entirety. He thereby became a robber with regard to it by virtue of the law of shlihut yad, “exercising control over a deposit,” through which the Torah made custodians liable even if the deposit was subsequently destroyed by accident, as explained in the section concerning custodians [Exodus 22], where custodians seeking to exempt themselves from liability for accidents swear: “That he did not send his hand against his fellow’s property.”

Rabbi Natan bar Abba expounded before Rav

the statement we learned, that if he moved it for his own purposes he becomes liable for accidents, meaning in a case

where he took

and lifted the barrel

with the intention of exercising control over it,

that is, with the intention of taking part of it for himself, although in the end he did not take any. By virtue of the law of exercising control over a deposit, he becomes a robber with regard to the entire barrel.

And the Gemara explains:

With regard to what do these amoraim disagree

with one another?

With regard to exercising control over a deposit,

whether it

requires diminution

is the issue over which they disagree:

The one who says—Rabbi Yaakov bar Abba—

that he took it with the intention

of stealing it, holds: If he lifted it with the intention of taking part of it but did not take any, he is not liable for accidents involving the deposit, because

exercising control over a deposit requires diminution.

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 sending his hand into it, holds that sending one’s hand does not require a deficiency;

and anyone who lifted it with the intention of diminishing it is liable, even though he did not actually diminish it -

Therefore: Rabbi Yaakov bar Abba, who holds that sending one’s hand requires a deficiency, cannot explain that our Mishna is dealing with a case in which 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 it does not appear that our Mishna is dealing with such a case. Rather, it must be that he moved it and intended to steal all of it; in that case he is indeed liable by the law of “sending one’s hand,” since there is a deficiency here, as he took all of it for himself.

Rav Sheshet challenged the two explanations that had been 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 “he moved it”! Does it teach this!?

And this wording does not imply that he wanted to steal all of it or part of it, but merely that he took it for ordinary use.

Rather, Rav Sheshet said: Here,

in our Mishna,

with what are we dealing? With a case in which he moved it

and lifted it

to place fledglings upon it,

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

and

because

he holds

that the tanna of our Mishna

holds: An unauthorized borrower is a thief.

Here the Gemara concludes the words of all the amoraim, who explain the latter clause in a manner that makes the entire Mishna the view of one tanna:

And the entire Mishna [

both the first clause and the latter clause]

is Rabbi Yishmael,

who holds that the owner’s awareness is not required. Therefore, it is explained in the first clause that if the owners did not designate a place for it, he is exempt once he returns it, and certainly 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, is referring to a case

in which he put 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 it is unrelated to the dispute between Rabbi Yishmael and Rabbi Akiva.

is the opinion of Rabbi Yishmael,

who holds that the owner’s knowledge is not required for a proper return. Therefore, the first clause teaches that if the owners did not designate a place for it, he is released from liability once he returns it—and certainly when the owners designated a place and he returned it to that place

;

the latter clause, which teaches that when the owners designated a place he remains liable even if he put it down, is referring to a case in which

he put

the barrel

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

And we explain:

And Rabbi Yohanan, who was forced to explain our Mishna as referring to two tannaim, did not reconcile it according to these explanations of the amoraim, because the wording of the Mishna in the latter clause, “he put it down,” implies in its place. It was stated: They disagreed, Rav and Levi: One of them said: Sending one’s hand requires a deficiency. And one of them

said: Sending one’s hand does not require a deficiency.

Conclude that it was Rav who said: Sending one’s hand does not require a deficiency,

from this

as it was taught:

A shepherd who was tending his flock, and left his flock

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

and entered the city, and a wolf came and seized

a sheep from the flock and carried it to its den to eat it [as wolves do],

and a lion came and trampled

a sheep in the flock and ate it [as lions do]:

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

But if not—if he could not have saved it even had he not left his flock—

he is exempt.

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 can be established that it is Rav who said: Misappropriation does not require depletion,

from the following

as it was taught: A shepherd who was tending his flock, and left his flock

at the time when shepherds customarily enter the city,

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

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

and a lion came and mauled

a sheep in the flock and ate it [as lions do]:

They assess him: If he could have saved the sheep had he not left his flock, he is liable.

But if not—if he could not have saved it even had he not left his flock—

he is exempt.

But if

the shepherd

left

placed his staff and his pack upon it [

And

Rav Naḥman said that Rabba bar Avuha said that Rav

to reconcile the beraita: The beraita does not render him liable except

while they are still upon it,

for this is sending one’s hand, and sending one’s hand renders him liable for accidents that occur to it afterward, since he did not remove them from it and did not return it.

But we still raise an objection:

And what is the significance if they are still upon it [

what difference does that make]!?

But he did not pull it,

and any act of acquisition such as pulling is required; without it, this is not sending one’s hand that renders him liable for it!?

And Rav Shmuel bar Rav Yitzhak said that Rav: The beraita renders him liable only in a case where he struck it with a stick and it ran before him, which constitutes pulling, and since they are still upon it, he is liable for accidents that befall it. From Rav’s interpretation of this beraita, the Gemara proves that Rav holds that sending one’s hand does not require a deficiency, for otherwise the difficulty would arise:

But it was not diminished!?

Rather, is it not

necessarily

learned from here that Rav

holds:

Sending one’s hand does not require a deficiency.

what follows from that]!

He did not pull it,

and whenever he has not performed an act of acquisition, such as pulling, this is not misappropriation that makes him liable for it

! And Rav Shmuel bar Rav Yitzḥak said that Rav:

The beraita makes him liable only when he

struck it with a staff and it ran before him,

and this is considered pulling. Since they still remain upon it, he is liable for accidents that happen to them.

From Rav’s interpretation of this beraita, the Gemara proves that Rav holds that misappropriation does not require depletion. For otherwise, the difficulty would arise:

But it was not depleted!

Rather, is it not

necessarily

learned from this that

he

holds

Rav

that misappropriation does not require depletion?

The Gemara rejects the proof:

Say that this is how you should state Rav’s words: “

which he made thin with a stick

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

This is also precise in Rav’s wording, which indeed indicates that he made it thin, from

the fact that it teaches in Rav’s words:

“which he struck with a stick,”

and if his intention is not to say that he made it thin, why mention the stick?

And we conclude: Indeed,

infer from here that he made it thin. On the contrary, it is proven that Rav holds that misappropriation requires a deficiency; for otherwise, why do I need the statement that he made it thin?

And the Gemara adds:

And since Rav holds that misappropriation requires a deficiency,

it necessarily follows that

Levi holds that misappropriation does not require a deficiency.

And we explain:

What is Levi’s reason?

It is written in the passage concerning an unpaid bailee: “If a man gives his fellow money 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 payment]; if the thief is found, he shall pay double [the thief]. If the thief is not found [as the bailee claimed], and the owner of the house [the bailee] is brought [and has already been brought] before God [the court, for an oath], that he did not misappropriate his fellow’s property [that is, the bailee swears that he did not misappropriate the deposit before the theft, for had he misappropriated it, he would become liable even for accidents and would not be exempt when he claims that it was stolen; for then:] concerning every matter of transgression [in which he is found to have lied in his oath], concerning an ox, concerning a donkey, concerning a sheep, concerning a garment, concerning every lost article, about which he will say [the witness] that this is it [the very item concerning which you swore that it was stolen from you; it is in your possession, for you stole it], before God [the court] shall come the matter of both of them [the witness and the bailee], and whomever God [the court] condemns [whomever the court determines to be the liar, whether the witness or the bailee] shall pay double to his fellow.”

And it is written in the passage concerning a paid bailee: “If a man gives his fellow a donkey or an ox or a sheep, or any animal, to guard, and it dies or is injured or is captured [these are accidents], with no witness [there are no witnesses to the matter; in that case], the oath of the Lord shall be between them, that he did not misappropriate his fellow’s property.” And since, if he misappropriated it, 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 comparable to that mentioned with regard to an unpaid bailee. The one mentioned with regard to an unpaid bailee was stated in order to teach us the law of one who misappropriates a deposit, namely, that he is liable for accidents involving it; but the one mentioned with regard to a paid bailee was not needed to teach the basic law of misappropriation, as will be explained. Rather, it was stated to teach a novel law concerning misappropriation, as will be explained.