Bava Metzia 43a (מג.) — the Talmud in English

Indeed

indeed,

he pays him

the bailee

the value of the thorns

[the value of the thorns, according to the amount by which they appreciated], but in any event he does not pay the full value by virtue of the law governing a bailee, for the reason stated by Rav Amram.

Mishna:

One who deposits money with a money changer

gratuitously:

If he deposited it tied

[bound]

he may not use it

the money changer, since he tied it for the purpose that the money changer should not use it [and the Gemara will explain this further],

therefore, if it was lost, he is not liable for it

for he is merely an unpaid bailee, and an unpaid bailee is exempt from liability for loss.

But if he deposited it

untied,

,

he may use it

the money changer, since the money changer constantly requires money, and the depositor likewise deposited it with him so that he would use it,

therefore, if it was lost, he is liable for it,

and the Gemara will explain for what reason he is liable.

But one who deposits money gratuitously

with a householder

[that is, a person who is neither a money changer nor a shopkeeper], who does not constantly require money:

Whether

he deposited it

tied,

and

whether

he deposited it

untied, he may not use it

the householder,

therefore, if it was lost, he is not liable for it,

since he is an unpaid bailee.

And if he deposited it with a

shopkeeper,

his status is

like that of a householder

who is forbidden to use the money and is not liable for loss, because a shopkeeper does not constantly require money; a shopkeeper ordinarily purchases on credit, and it is sufficient for him to have only a small amount of money in his possession,

the words of Rabbi Meir.

Rabbi Yehuda says: A shopkeeper is like a money changer

who is permitted to use the money and is liable if it is lost, because sometimes he regularly exchanges money like a money changer; therefore, his status is like that of a money changer.

Gemara:

We learned in the Mishna: One who deposits money with a money changer, if it was tied, he may not use it:

And we raise an objection: Is it

because it was tied

that he deposited it

that he may not use it!?

But there is no indication here that he does not want the money changer to use it, since everyone ordinarily ties up his money.

Rav Asi said

he explained:

Rav Yehuda said: They taught this with regard to money that was tied and sealed,

so that he may not use it.

Rav Mari said:

Our Mishna is discussing a case in which he tied it

with an unusual knot.

There are those who say

that Rav Mari did not explain our Mishna as referring to an unusual knot.

Rather,

Rav Mari raised a dilemma: What is the status of an unusual knot?

Does it have the same status as money that is tied and sealed?

And we conclude:

The dilemma remains unresolved.

We learned in the Mishna: One who deposits money with a money changer,

if it was untied, he may use it,

therefore, if it was lost, he is liable for it:

Rav Huna said: And even if it was forcibly taken

while the money was in the money changer’s possession, he is liable, because from the time of the deposit he has the status of a borrower with regard to the money, since the money was given to him for use.

We challenge this:

But “

if it was lost

it teaches”

in our Mishna, indicating: If it was lost, he is liable because he has the status of a paid bailee by virtue of his right to use the money; but if it was forcibly taken, he is not liable, because he does not have the status of a borrower with regard to the money! We answer: When our Mishna teaches “if it was lost,” this is

as

he explained

Rabba

elsewhere,

as Rabba said: “

If it was stolen”

means that it was stolen

by an armed bandit,

which is an unavoidable accident. “

If it was lost”

means

that his ship sank at sea,

which is an unavoidable accident—

And here, too, the intention of the Mishna is loss through an unavoidable accident, such as the sinking of his ship at sea.

And Rav Naḥman

disagreed with Rav Huna and

said:

If

the money was forcibly taken,

the money

is not

the money changer’s responsibility, even if it was deposited with him untied, because he has merely the status of a paid bailee with regard to the money, as will be explained below.

Rava said

he challenged

Rav Naḥman:

According to your statement

that if

it was forcibly taken, he is not

liable for it,

apparently he does not have the status of a borrower with regard to it—

And if so,

if he does not have the status of a borrower,

even

does he not have the status of a paid bailee!?

That is: In either case, the matter is difficult. If you say that he is a paid bailee even though he received no other payment for the guardianship, but only the right to use the money, then by that very reasoning he should have the status of a borrower, since he has all the benefit of the money, as does a borrower; and if he is not a borrower because of the permission to use it, why should he be a paid bailee on account of that permission?

He said to him

Rav Naḥman to Rava:

In this matter I concede to you,

meaning: With regard to his status as a paid bailee, I concede that the permission to use the money makes him a paid bailee.

Since he benefits

in that he may use it,

he provides benefit

to the depositor, because

through that benefit, if a business opportunity should happen to present itself to him that contains a profit, he purchases with it

[through this benefit: if a profitable business opportunity should arise for him and he needs ready cash, he may take it from this money; in return for this benefit]

he has the status of a paid bailee with regard to it.

Rav Naḥman raised an objection to Rav Huna

who maintains that the money changer is liable even in cases of unavoidable accident, from what we learned in tractate Me'ila:

A treasurer

who deposits money

belonging to the Sanctuary unwittingly

with a money changer, if it was tied, he may not use it

the money changer,

therefore, if he spent it,

the money changer spent the money,

the treasurer has not misappropriated sacred property,

since he did not tell him to spend it.

And if it was untied,

the treasurer deposited it,

he may use it

the money changer,

therefore, if he spent it,

the money changer,

the treasurer has misappropriated sacred property;

because when the treasurer deposited it with him, this was equivalent to granting the money changer permission to spend it, and the money changer thereby became the treasurer’s agent. And it is an established principle that with regard to misappropriation of sacred property, a person is liable for the act of his agent, even though this is agency for the performance of a transgression.

And if you say

that when he deposited it untied, the depositor is liable

even

if

the money was forcibly taken

while in the bailee’s possession, then

why specifically

in that Mishna—that the treasurer misappropriated sacred property when he deposited it untied—if

he spent

the money changer the money? For according to your statement,

even if

he had still

not spent

the money changer the money,

also should the treasurer who deposited it have misappropriated sacred property!? For from the moment the treasurer deposited it with him, it left the domain of the Sanctuary and entered the domain of the money changer, and he became as one who lent it to him; and there is no greater expenditure than this.

the depositing treasurer should have misused consecrated property? After all, from the moment the treasurer deposited it with him, it left the domain of consecrated property and entered the money changer’s domain, and it became as though he had lent it to him; and there is no greater act of taking it out than that.

He said to him

Rav Huna to Rav Naḥman:

Indeed,

the same law applies: when it was handed over untied, the treasurer misappropriated sacred property

even when it was handed over

although

still

the money changer had not spent

the money,

and the reason that we learned: “if he spent it,” is

because since the tanna taught

in

the first clause—when the money changer spent the money that had been deposited with him tied—“

and

if he spent it,”

therefore

the tanna also taught in the latter clause: “

if he spent it.” A robber is discharged by returning the stolen object itself, even if its value decreased from the time of the theft until the time of its return, unless the stolen object underwent a change.

A robber is discharged from liability by returning the stolen object itself, even if its value decreased between the time of the robbery and the time of its return, unless the stolen object underwent a change.

But if the stolen item is no longer intact, or if it has undergone a change, and he comes to pay its value, he pays according to the value of the stolen item at the time of the theft, and not according to its value at the time of payment, whether the stolen item decreased or increased in value. Our Mishna deals with the law governing payment by one who sends his hand into a deposit, when the deposit is no longer intact and he is liable for its payment like a robber: How does he pay if the deposit decreased in value between the act of sending his hand into it and the payment? .

Mishna: .

One who sends his hand into a deposit

and afterward removes it from the world:

Beit Shammai say: He is liable for the decrease and the increase,

meaning: If the value of the deposit decreased from the time he sent his hand into it, he pays according to its value at the time of payment; and if the deposit increased in value, he pays according to its value at the time he removed it from the world. The Gemara will explain why he pays according to its value at the time he removed it from the world. .

And Beit Hillel say: According to the time of removal,

The Gemara will explain whether this means the time when he removed it from the world or the time when he removed it from the owner’s premises, and with regard to which detail of Beit Shammai’s statement Beit Hillel disagrees. .

Rabbi Akiva says:

He pays

according to

the value of the deposit at

the time of the claim,

when the depositor claims payment from the bailee; and the Gemara will explain the reason. .

Gemara: .

Rabba said: In the case of one who steals a barrel of wine from another

and the wine is no longer intact, and he comes to pay money for it,

initially it was worth one zuz,

and

now it is worth four

zuz, [that is, one who stole a barrel of wine from another, which was worth one zuz at the time of the theft, and now, at the time it broke, is worth four]; how does he pay the value of the wine? .

If

he broke it or drank it [

he broke the barrel with his hands and its wine spilled, or he drank the wine], he

pays four

zuz, according to what it is worth at this time. .

But if

it broke on its own [

the barrel broke by itself] and the wine spilled, he does not

pay

anything except

one zuz,

its value at the time of the theft. .

The Gemara explains the reason for both parts of Rabba’s ruling: If he broke it or drank it, he pays four

What is the reason?

Since, had it remained intact, it would have been returned to its owner intact, the moment when he drank it or broke it is the moment when he stole it from him.

That is, until he broke it or drank its wine, it was supposed to be returned to its owner as it was. Therefore, the time of the breaking or drinking is the time of the theft,

and

indeed

we learned: Every robber pays according to the value of the item at the time of the theft.

If it broke on its own, he pays one zuz; what is the reason?

Because

now,

at the time it broke, he himself

did not do anything to it,

and you do not hold him liable for this moment;

why

[what is the basis for this liability]

do you hold him liable?

After all, only

for that moment when he stole it,

and

at that moment it was worth only one zuz [

after all, now he is doing nothing, and his liability is for the initial time of the theft, when it was worth only one zuz].

The Gemara raises a difficulty against Rabba, who obligates the robber to pay according to the value at the time of the breaking.

We learned

in our Mishna: One who sends his hand into a deposit—Beit Shammai say: He is liable for the decrease and the increase; and

Beit Hillel say: According to the time of removal.

But

what

, meaning, what is Beit Hillel’s intention when they say

“according to the time of removal”?

If you say it means according to the time of removal from the world

, this cannot be said, because the following difficulty arises:

And with regard to what

, meaning: With regard to which detail of Beit Shammai’s statement, “he suffers the loss or gain,” do Beit Hillel disagree?

If it is with regard to a decrease

—that is, the deposit decreased in value from the time of the unlawful appropriation until the time of its removal from the world—this is what Beit Shammai said: “He suffers the loss,” meaning that he pays according to its value at the time of the unlawful appropriation. And you would say that Beit Hillel disagree and maintain that he pays according to its value at the time of removal from the world—

This cannot be said, because:

Is there anyone who would say

[can anyone really maintain this]!?

We learned: All robbers pay according to the value at the time of the theft

, and the time of the unlawful appropriation is the time of the theft. Certainly he pays according to the increased value at the time of the theft, as Beit Shammai said.

And if it is with regard to an increase

—that the deposit increased in value until the time of removal—this is the point of their dispute: Beit Hillel say that he pays according to its increased value at the time of removal from the world,

This too cannot be said, because if so,

this is exactly Beit Shammai

, who said: “He suffers the gain,” meaning that he pays according to its value at the time of removal from the world. In what, then, do Beit Hillel disagree with Beit Shammai?