Bava Metzia 41b — the Talmud in English

Rabbi Yohanan added and said:

And I—

Rabbi Yohanan, the student of Rabbi Yosei ben Nehorai—

say:

not so, and

it is not unusual,

and he proceeds to explain it.

And we explain:

And what is “unusual”

that Rabbi Yosei ben Nehorai said?!

For there is no need to write it in order to teach the law of misappropriation, as the misappropriation stated with regard to a gratuitous bailee requires it; and because

you cannot say misappropriation with regard to a paid bailee, and derive it

from

a gratuitous bailee,

and derive it as follows:

And if a gratuitous bailee, who is exempt for theft and loss,

when

he misappropriated it, is liable

even for accidents,

a paid bailee, who is liable for theft and loss, is it not all the more so

that he should be liable for accidents if he misappropriated it?!

Rather,

for what halakhic purpose did the Merciful One write them

[for what purpose did the Torah write misappropriation with regard to a paid bailee], in order

to tell you: misappropriation does not require a deficiency.

And as for what Rabbi Yohanan said:

“And I say: it is not unusual,”

he is

like Rabbi Elazar, who said: “This one and that one are one”

[this one and that one are one; that is: this is not different from that].

And we explain:

What is

“this one and that one are one,”

that is, why did the Torah need to teach misappropriation also with regard to a paid bailee, and did we not derive it from a gratuitous bailee?!

Because there is a basis for refuting

the derivation from a gratuitous bailee:

What is special about a gratuitous bailee is that he pays double payment when he claims the claim of a thief,

as it is stated: “whom the judges condemn, he shall pay double to his fellow”; since he is exempt for theft, it is found that he exempted himself when he claimed the claim of a thief. Can you say this with regard to a paid bailee, who is liable for theft? If he claimed the claim of a thief and the thief was found, he is not liable for double payment, for he did not exempt himself, but rather admitted to the liability.

And the one—

Rabbi Yosei ben Nehorai—

who does not refute

the derivation from a gratuitous bailee, it is because

he holds:

A paid bailee is more stringent, because

the principal

[payment of the principal alone] that a paid bailee pays when he claims “it was stolen,” even

without an oath, is preferable

[more stringent]

to the double payment

that a gratuitous bailee pays when he claims “it was stolen”—only

with an oath.

Rava said:

Even according to Rabbi Elazar, who said: “This one and that one are one,” nevertheless one can derive that misappropriation does not require a deficiency, because

you cannot say misappropriation

to make him liable for accidents that occur to the deposit

neither with a gratuitous bailee nor with a paid bailee, and derive it from a borrower,

who misappropriates the deposit [with permission] and is liable for accidents; and we derive it as follows:

And if a borrower acts with the knowledge of the owners, for he misappropriated it

[for he misappropriates the deposit with the knowledge of the owners], that is: the use that he makes of the borrowed object—is it not with the knowledge of the owners? And nevertheless

he is liable

for accidents.

A gratuitous bailee and a paid bailee,

who misappropriate the deposit without the knowledge of the owners,

are they not all the more so

liable for accidents once they have misappropriated the deposit? And if so,

why is it stated

misappropriation with regard to both of them?

One

of them is

to tell you: misappropriation does not require a deficiency.

And the other [purpose]: so that you should not say:

“It is sufficient for what is derived through an a fortiori inference to be like the subject from which it is derived,”

[it is sufficient for the derived case, namely a gratuitous bailee and a paid bailee, to be like the case from which it teaches, namely a borrower],

just as a borrower when the owners are with him

[when, at the beginning of the borrowing, the owners were engaged with the borrower in the borrower’s work]

is exempt, so too a gratuitous bailee and a paid bailee when the owners are with them are exempt;

therefore the Torah needed to write another section concerning misappropriation, to teach us that one who misappropriates a deposit is liable even when its owner is with him.

And

we explain:

according to the one who says—

Rav—

that misappropriation requires a deficiency, why do I need these two instances of misappropriation

stated with regard to a gratuitous bailee and a paid bailee

at all?!

For one can derive them from a borrower.

And we answer:

one [purpose is] so that you should not say: “It is sufficient for what is derived through an a fortiori inference to be like the subject from which it is derived,”

as above.

And the other [purpose]

the section concerning misappropriation was written for the purpose

of that which was taught:

It is written in the section concerning a gratuitous bailee:

“And the master of the house shall approach the judges

if he did not misappropriate the property of his fellow.” This approaching

is for an oath

!

You say it is for an oath

and he does not become liable when it is found that he stole it unless he swore,

or is it only for judgment,

and the one who claims the claim of a thief becomes liable even without an oath, if it is found that he stole it?

Misappropriation was stated below

with regard to a paid bailee,

and misappropriation was stated above

with regard to a gratuitous bailee.

Just as there,

with regard to a paid bailee, this approaching

is for an oath,

for you cannot say that it is to make him liable as one who claims the claim of a thief, since in the section concerning a paid bailee the law of one who claims the claim of a thief is not stated, and he is exempt from double payment for it,

so too here,

with regard to a gratuitous bailee, it is

for an oath,

and we learn that one who “claims the claim of a thief” and is found to have stolen it is liable only if he first swore.