Bava Metzia 41b (מא:) — the Talmud in English

Rabbi Yohanan added and said:

“And I”—

Rabbi Yohanan, the student of Rabbi Yosei ben Nehorai—

say

that this is not so, and

it is not superfluous,

and he proceeds to explain it.

And we explain:

And what is the meaning of “superfluous”

as stated by Rabbi Yosei ben Nehorai?

Because there is no need to write it in order to teach the law of sheliḥut yad—misappropriation of a deposit—as there is need for the sheliḥut yad stated with regard to an unpaid bailee. This is because

you should not say that the law of sheliḥut yad applies to a paid bailee, and derive it

by inference

from an unpaid bailee

as follows:

And just as an unpaid bailee, who is exempt for theft and loss,

if

he misappropriated it, is liable

even for accidents,

a paid bailee, who is liable for theft and loss, all the more so

should he be liable for accidents if he misappropriated it.

Rather,

for what halakhic purpose did the Torah write it

[for what purpose did the Torah write the law of sheliḥut yad with regard to a paid bailee]? In order

to tell you: sheliḥut yad does not require depletion.

And as for what Rabbi Yohanan said:

“And I say: It is not superfluous,”

this is

in accordance with the opinion of Rabbi Elazar, who said: “This one and that one are one and the same.”

[This and that are one and the same; that is, the two are not different from one another.]

And we explain:

What is the meaning of

“This one and that one are one and the same,”

that is, why did the Torah need to teach the law of sheliḥut yad also with regard to a paid bailee, rather than deriving it from an unpaid bailee?

Because there is room to refute

the derivation from an unpaid bailee:

What is distinctive about an unpaid bailee is that he pays double payment when he falsely claims that the deposit was stolen,

as it is stated: “Whom the judges condemn shall pay double to his fellow.” Since he is exempt for theft, when he falsely claims that the deposit was stolen he thereby exempts himself; can you say the same with regard to a paid bailee, who is liable for theft? If he falsely claims that the deposit was stolen and the thief is found, he does not pay double, since he did not exempt himself but rather admitted that he was liable.

And who is the one

—Rabbi Yosei ben Nehorai—

who does not refute

the derivation from an unpaid bailee? It is because

he holds:

A paid bailee is subject to a more stringent law, because

the principal

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

without an oath, is preferable

[more stringent]

to the double payment

that an unpaid bailee pays when he claims that the deposit was stolen—only

with an oath.

Rava said:

Even according to Rabbi Elazar, who said: “This one and that one are one and the same,” one can nevertheless derive that sheliḥut yad does not require depletion, because

you should not say that the law of sheliḥut yad

—making him liable for accidents that occur to the deposit—

applies neither to an unpaid bailee nor to a paid bailee, and derive it from a borrower

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

And just as a borrower acts with the owners’ knowledge when he misappropriates it

[the borrower misappropriates the deposit with the owners’ knowledge—that is, the use he makes of the borrowed item is with the owners’ knowledge], and nevertheless

is liable

for accidents,

an unpaid bailee and a paid bailee,

who misappropriate the deposit without the owners’ knowledge,

all the more so

should they be liable for accidents once they have misappropriated the deposit. And if so,

why is

the law of sheliḥut yad stated with regard to both of them?

One

of the reasons

is to tell you: sheliḥut yad does not require depletion.

And the other:

You should not say: “The conclusion derived by inference cannot be more stringent than the premise,”

[it is sufficient that the derived case—that of an unpaid bailee and a paid bailee—be like the case from which it is derived, that of a borrower],

just as a borrower in a case where the owner is engaged in his service

[at the beginning of the borrowing, the owner was engaged with the borrower in the borrower’s work]

is exempt, so too an unpaid bailee and a paid bailee, when the owner is engaged in their service, are exempt;

therefore the Torah needed to write an additional passage concerning sheliḥut yad, in order to teach us that one who misappropriates a deposit is liable even when its owner is engaged in his service.

And

we explain:

According to the one who says—

Rav—

that sheliḥut yad requires depletion, why do I need these two passages concerning sheliḥut yad

stated with regard to an unpaid bailee and a paid bailee

at all?

They can be derived from a borrower.

And we answer:

One reason is: You should not say, “The conclusion derived by inference cannot be more stringent than the premise,”

as above.

And the other

reason that the passage concerning sheliḥut yad was written

is as it was taught in a beraita:

It is written in the passage concerning an unpaid bailee:

“The owner of the house shall approach the judges

if he did not misappropriate his fellow’s property.” This approach

is for an oath

!

You say it is for an oath

and he becomes liable when it is found that he stole it only after he swore,

or perhaps it is only for judgment,

and one who falsely claims that the deposit was stolen becomes liable even without an oath, if it is found that he stole it.

The law of sheliḥut yad is stated below

with regard to a paid bailee,

and the law of sheliḥut yad is stated above

with regard to an unpaid bailee.

Just as there

with regard to a paid bailee, this approach

is for an oath,

for you cannot say that it is intended to make him liable as one who falsely claims that the deposit was stolen, since in the passage concerning a paid bailee the law of one who falsely claims that the deposit was stolen is not stated, and he is exempt from double payment for such a claim,

so too here,

with regard to an unpaid bailee, it is

for an oath,

and we learn that one who falsely claims that the deposit was stolen and is found to have stolen it becomes liable only if he first swore.