Bava Metzia 42b (מב:) — the Talmud in English

Indeed,

everyone who entrusts an item does so relying on the wife and children

of the bailee,

and he entrusts it; therefore, if a bailee entrusts the item to another bailee who is a member of his family, he is not liable.

Perhaps you will say: Perhaps one should say to his mother:

Go and pay

—he should say to his mother, “Go and pay,” since she did not guard the deposit properly.

She could say

[in her defense]: “After all,

my son did not tell me

that

they were not his, so that I should bury them”

[that is, “My son did not tell me that they were not his, but rather that they were a deposit in his possession, so that I should bury them.”]

Perhaps you will say:

Let us say to him

—to the bailee:

Why did you not tell her

that they were a deposit in your possession?

He said

—the latter could say in his defense: “I thought:

All the more so, if I tell her that they are mine, she will be more

careful with them”

—I thought that if she believed they were mine, she would take greater care of them.

Rather, Rava said: He takes an oath that he gave those coins to his mother

—the bailee swears that he gave the money to his mother.

And his mother takes an oath that she placed those coins in the chest, and they were stolen

—his mother swears that she put the money in the chest and it was stolen,

and he is exempt

—the bailee is exempt from paying.

There was an incident involving

a certain guardian of orphans who purchased an ox for the orphans, entrusted it to a herdsman, and it had no large or small teeth with which to eat, and it died

—an incident involving a guardian of orphans who purchased an ox for them with their money and entrusted it to a herdsman. It turned out that the ox did not have large and small teeth with which to eat, and the ox died.

Rami bar Hama said: How should the judges judge this case!?

If

we say to the guardian: Go and pay.

Indeed,

he said

—he will say:

I entrusted it to the herdsman

—I entrusted it to the herdsman, and he should have informed me that it was unable to eat.

Lest you say,

Perhaps you will say:

Let us say to the herdsman

—to the herdsman: Go and pay,

He said: I placed it together with my oxen, put food before it, and did not know that it did not eat

—I placed it among the other oxen, put food before it as I did before all the oxen, and did not know that it was unable to eat.

The Gemara is perplexed: What was Rami bar Hama’s uncertainty?

Granted,

indeed,

this herdsman

The Gemara wonders what Rami bar Hama’s question was:

is the orphans’ paid bailee

—the herdsman is the orphans’ paid bailee—and if so,

he should have inspected

—he should have checked whether the ox was eating. That is to say: There is indeed no negligence on the part of the herdsman here; however, the herdsman is a paid bailee, and a paid bailee is liable for an enhanced level of care. Included among his obligations is the obligation to inspect whether the ox entrusted to him for safekeeping is eating the food placed before it. Since he did not inspect, he must pay!?

And we answer: Indeed,

if there is a loss to the orphans,

for whom he is a paid bailee,

so too!

Had the orphans suffered a loss because of his failure to pay attention, the herdsman would indeed have had to pay them—

But

nevertheless,

here, with what are we dealing? With a case in which there is no loss to the orphans,

since

they found

the orphans

the owner of the ox, and the orphans took their money from him.

That is, the case brought before Rami bar Hama was one in which the orphans suffered no loss at all from the ox’s death, because they found the seller of the ox, who returned to them the money that the guardian had paid for it from their funds, since the transaction was based on a mistaken premise. Therefore, the herdsman is not liable to pay the orphans.

But the Gemara is perplexed:

Rather,

since the orphans did not suffer a loss,

who is making the claim

—who is demanding payment, and what is the uncertainty in Rami bar Hama’s statement regarding who must pay!?

And we explain:

The owner of the ox is making the claim: “

He should have

informed us”

—the owner of the ox is the one making the claim, because they did not inform him that the ox he sold them had no teeth.

The Gemara is perplexed:

What are we to inform him!?

After all,

he surely knew that it was a mistaken transaction

—what is there to inform him of? He himself knows that he sold them an ox without teeth.

And we answer: Here we are dealing

with

a case in which the seller

was a middleman who purchased here and sold there

—the seller of the ox was a livestock dealer, who bought from one person and sold to another on the same day. Therefore, he did not know that this ox had no teeth, since it did not remain in his possession at all.

Therefore, had they informed him that the ox had no teeth, he would have slaughtered it immediately or returned it to the person who had sold it to him.

It was concerning this claim of the middleman that Rami bar Hama deliberated.

Therefore,

since it was not clear to Rami bar Hama what the law was, Rami bar Hama imposed a compromise between them:

He takes an oath that he did not know

—the middleman swears that he did not know about the missing teeth,

and

the

herdsman pays him the value of inexpensive meat

—the herdsman must pay him the value of the ox calculated as inexpensive meat. This amount is two-thirds of the price of the ox’s meat.

The Gemara now relates an incident involving

a certain man who deposited hops with another

—he deposited with his fellow a type of vegetable called hops, from which beer is made.

He also had a heap of hops of his own.

The bailee likewise had a heap of hops.

He said to his servant: Take from this one and throw it in! He went and threw it in from the other one!

The bailee asked his servant to take hops from his own heap and place them in the vat to make beer [but he did not specify that he had another heap of hops that did not belong to him and that the servant should not take from it. The worker, unaware of this, took hops from the deposited heap and put them into his employer’s beer vat].

Rav Amram said: How should the judges judge this case!?

If

we say to him

—to the bailee:

Go and pay!

He said

—he will say:

I told him: Take from this one and throw it in!

—I told him to take from my other heap, which was mine!

Perhaps you will say:

Let us say to the servant

—to the worker:

Go and pay!

He said

—he will say:

He did not tell me, ‘Take from this one, and do not take from that one’

—he did not tell me to take specifically from one heap and not from the other.

Therefore, both are exempt, and the depositor suffers the loss.

The Gemara asks:

But if he delayed for the amount of time needed to bring it to him and did not bring it to him, he demonstrated that he was pleased with it

—if the employer’s heap of hops was nearby while the depositor’s heap was farther away, and the bailee saw that the worker was taking longer than he would have taken had he brought hops from his own nearby heap, he understood that the worker was taking from the deposited heap and was content with this. If so, the bailee should pay!?

And we answer: Here, with what are we dealing?

With a case in which he did not delay,

the worker.

The Gemara nevertheless asks:

Ultimately, what loss is there!?

He has benefited from it

—the bailee profited by putting his fellow’s hops into the beer, thereby leaving his own hops intact as they had been. If so, the bailee should have to pay the depositor for this reason; why is there any need to discuss payment on account of the law of a bailee!?

Rav Sama, son of Rava, said:

Here, with what are we dealing?

With a case in which the beer turned sour

—the beer fermented improperly, so it is found that he did not benefit from his fellow’s hops, and he is exempt from paying.

Rav Ashi said in resolving the last question: Here, with what are we dealing?

With a case

in which it was inferior

—the hops belonging to his fellow were of poor quality, and the beer did not improve as the bailee wished; indeed, he was displeased that they had been put into it—