Bava Metzia 43b — the Talmud in English

Rather, it is obvious

necessarily: the “time of removal” of Beit Hillel, that is

as the time of removal from the owner’s possession,

namely, at the time of sheliaḥ yad, and this teaches us: he is not charged for the decrease and increase except as follows: just as for the decrease he pays according to the time of sheliaḥ yad, so for the increase he pays according to the time of sheliaḥ yad.

And the explanation of their dispute is:

Beit Shammai obligate him according to the time of removal from the world, because “at that moment he is robbing it,” since he removed it from the world with his hands.

Whereas Beit Hillel do not obligate him according to the removal from the world, even though he did so with his hands.

If so, this is difficult for Rabba:

shall we say

is it to be said that

Rabba stated [his view] in accordance with Beit Shammai,

and Beit Hillel indeed disputed him!? And the Gemara answers:

He said

he will reply

to you, Rabba:

“As the time of removal”—which Beit Hillel stated—means as the time of removal from the world. However, not as the Gemara had thought, that the dispute of Beit Hillel is concerning the increase, but rather:

with regard to the increase everyone does not dispute,

that is: they did not dispute concerning the increase; and just as Beit Shammai obligate him for the increase because of what I said, so Beit Hillel agree to this—

They dispute concerning the decrease, they disputed concerning the decrease: Beit Shammai obligate him according to the time of sheliaḥ yad, whereas Beit Hillel obligate him only according to the time of removal from the world—and what is difficult for you: Does anyone hold that a robber does not pay according to the time of the robbery!? It is not difficult, for we are not dealing with robbery, but with sheliaḥ yad, and in this they disputed:

[they disputed the case of a decrease]. Beit Shammai obligate him according to the time of sheliahut yad, whereas Beit Hillel obligate him only according to the time when it was removed from the world. And if this presents a difficulty to you: Is there anyone who maintains that a robber does not pay according to the time of the robbery? Do not raise this difficulty, for we are not dealing here with ordinary robbery, but with sheliahut yad, and they disputed the following:

Beit Shammai hold: sheliaḥ yad does not require a decrease,

and he becomes a robber at the time of lifting, even before he removed it and decreased it,

and when it decreased

it became cheaper after the lifting

in his possession

of the robber

it decreased,

that is: since the doctrine of sheliaḥ yad applies to the lifting alone, he already became a robber at that time, as though it were his own object that became cheaper; and he becomes liable to the depositor for the lifting that occurred at the time of the higher price, in accordance with the law of all robbers, who pay according to the time of the robbery.

And Beit Hillel hold: sheliaḥ yad requires a decrease,

and until he decreased it and removed it from the world, he does not become a robber concerning it,

and

if so,

when it decreased

it became cheaper

in the owner’s possession it decreased,

that is: it is the householder’s object that decreased, and he cannot collect that decrease from the bailee, since at the time of the higher price he had not yet become liable; only when he removed it from the world and decreased it at the time of the lower price—that is his time of robbery, and he pays according to the value of the deposit at that time. And we challenge:

But as for what Rava said

above, page 41b,

that sheliaḥ yad does not require a decrease, shall we say

and is it to be said

that Rava stated [his view] in accordance with Beit Shammai!?

For they hold like him that sheliaḥ yad does not require a decrease, whereas Beit Hillel disputed and hold that it requires a decrease.

Rather,

the Gemara explains their dispute in another way; and even according to this explanation, “the time of removal” means from the world. However, this removal does not specifically mean removal by hand, but also removal on its own; and according to this explanation as well, their dispute concerns “the decrease”:

Here

in our Mishna

what are we dealing with? For example, he moved it—

he lifted the barrel that had been in his possession as a deposit—in order

to bring fledglings upon it,

for the lifting is not considered sheliaḥ yad, but rather “borrowing without the owners’ knowledge”;

and concerning one who borrows without the owners’ knowledge,

if the law of a robber applies to him—

they dispute

whether Beit Shammai and Beit Hillel hold that he is a robber:

Beit Shammai hold: one who borrows without the owners’ knowledge is a robber, and when it decreased, in his possession

of the robber

it decreased,

that is: since the doctrine of robbery applies to the lifting alone, it is as though it were his own object that became cheaper, and he becomes liable to the depositor for the lifting that occurred at the time of the higher price, in accordance with the law of all robbers, who pay according to the time of the robbery; and this is what Beit Shammai said: “He is charged for the decrease.”

And Beit Hillel hold: one who borrows without the owners’ knowledge is a borrower, and

if so

when it decreased, in the owner’s possession it decreased,

that is: it is the householder’s object that decreased, and he cannot collect that decrease from the bailee, since at the time of the higher price he had not yet become liable; only when the deposit left the world—and even if this occurred on its own—that is his time of liability, for a borrower is liable for removal from the world, and he pays according to the value of the deposit at that time, and this is what Beit Hillel said: “As the time of removal,” and he is not charged for the decrease.

And we challenge this:

But as for what Rava said: One who borrows without the owners’ knowledge, according to the Rabbis

who dispute Rabbi Yehuda in Bava Batra 88a

is a robber,

and if so, it follows that he holds this way, and therefore explained the view of the Rabbis according to him; if so,

shall we say that Rava stated [his view] in accordance with Beit Shammai!?

And on account of this objection, the Gemara explains their dispute in another manner:

Rather,

we are dealing with misappropriation, and “the time of removal” means the time of removal from the owner’s house. However, the “decrease and increase” of our Mishna means: what the animal itself decreased and what the animal itself increased; that is: “decrease” is an animal that, at the time of the misappropriation, was laden with wool and was shorn; and “increase” is one that was empty of offspring and became pregnant with him.

And

with the increase of the robbery

we are referring to the fleeces that were shorn from the animal that had been laden with them at the time of the misappropriation, and the fetuses with which the animal that had been empty at the time of the misappropriation became laden

they dispute:

Beit Shammai hold: the increase of the robbery belongs to the robbed person,

and he “is stricken” through it, the one who misappropriated it, because he does not acquire it; and he must return everything to the owners.

And Beit Hillel hold: the increase of the robbery belongs to the robber,

that is: the fleeces from which it “decreased” belong to the robber, and he returns to the owners the value of the wool as it was at the time of the misappropriation; and the fetuses with which it “increased” are his, and he returns to the owners an empty animal.

And the reason of Beit Hillel is:

Because the Torah said: “And he shall return the robbery that he robbed,” and we learned: if it is “like that which he robbed,” he returns it as it is; but if the robbery is not as it was at the time of the robbery, it has not “changed,” the robber does not return it, for “change acquires”; and therefore the robber acquired all these, since they changed from the time of the robbery.

And the reason of Beit Shammai is explained in two ways:

The first: change does not acquire.

The second: it is a penalty that the Sages imposed, that he should not acquire the “increase,” even though change everywhere acquires.

And

Beit Shammai and Beit Hillel disputed

in the dispute of these tannaim [

in the following dispute of the tannaim ],

as it was taught:

One who robs a ewe, shears it and it gives birth, pays for it and for its fleeces and for its offspring, the words of Rabbi Meir,

and this is like the words of Beit Shammai.

Rabbi Yehuda says: the robbery returns in its form [

as it was at the time of the robbery ], and this is like the words of Beit Hillel.

It is precise also,

and so it is also possible to infer from the wording of our Mishna that “decrease and increase” means actual decrease and actual increase,

from what it teaches: Beit Shammai say: he is stricken with decrease and increase,

and

Beit Hillel say: as at the time of removal,

and the Mishna did not say, “he is stricken with cheapening and becoming dearer”; thus it follows that the Mishna came to teach us that with actual decrease and increase he is stricken—

And we conclude: indeed,

infer from it

as we explained their dispute, that of Beit Hillel and Beit Shammai!

We learned in the Mishna:

Rabbi Akiva says: as at the time of the claim:

The words of Rabbi Akiva are explained according to Tosafot.

Rav Yehuda said in the name of Shmuel: the halakha is like Rabbi

Akiva,

who says that “the time of the claim” [regarding cheapening, and even when he broke it by hand, and becoming dearer when it was not broken by hand] is the determining time, and not the time of the robbery, as held by Beit Hillel and Beit Shammai.

And

in any event,

Rabbi Akiva agrees where there are witnesses

who know how much it was worth at the time of the misappropriation or robbery and saw that he misappropriated it or robbed it from him, that he pays as at the time of the robbery.

And

for what reason

does he agree? Because

the verse says: “

To the one to whom it belongs he shall give it on the day of his guilt,” and “the day of his guilt” implies: if they claimed against him and he admitted, so that he becomes liable on his own admission, this day is the day of his guilt, and at that time he becomes liable to pay.

the verse states: “To the one to whom it belongs he shall give it on the day of his guilt.” “The day of his guilt” indicates that if the owner claims it from him and he admits, whereby he becomes liable on the basis of his own admission, that day is the day of his guilt, and he becomes liable to pay according to that time.

And

included in this is that if there are witnesses, he becomes liable as at the time the witnesses saw [it], because

since there are witnesses, from that time he became liable for his guilt.

He said,

he wondered

at Rabbi Yehuda: “Rabbi!

But

do you say so,

that Rabbi Akiva agrees where there are witnesses?”

But

this is what Rabbi Asi said in the name of Rabbi Yohanan: Rabbi Akiva disputed even where there are

witnesses!?

And

for what reason?

Because

the verse says: “And he shall return the robbery that he robbed … and he shall pay its principal, and he shall add its fifth to it;

the one to whom it belongs he shall give it on the day of his guilt,”

and the court

is what obligates him for his guilt,

and not the seeing of the witnesses.

Rabbi Zeira said to Rabbi Abba bar Pappa:

When you go there, go around the rock by way of the steps, and enter to Rabbi Yaakov bar Idi, and ask him whether Rabbi Yohanan heard that the halakha is in accordance with Rabbi Akiva, or whether the halakha is not in accordance with Rabbi Akiva

Rabbi Zeira said to Rabbi Abba bar Pappa:

When you go there, circle around the rock-ladder, and enter to Rabbi Yaakov bar Idi, and ask him: whether Rabbi Yohanan heard that the halakha is like Rabbi Akiva, or whether the halakha is not like Rabbi Akiva, [

when you go to the Land of Israel, lengthen your route to go there by way of the steps of the Rock Mountain, the place of Rabbi Yaakov bar Idi, and ask him: whether he heard from Rabbi Yohanan whether the halakha is like Rabbi Akiva, or whether the halakha is not like Rabbi Akiva ].

And he did so, and

he said to him

Rabbi Yaakov:

This is what Rabbi Yohanan said: the halakha is like Rabbi Akiva forever!

And we explain:

what is “

forever”?

Rav Ashi said:

Rabbi Yohanan used the expression “forever” for two reasons: a.

So that you should not say: This applies only where there are no witnesses, but where there are witnesses, no;

rather, say this: even where there are witnesses.

b.

Alternatively,

that is: Rabbi Yohanan said “forever” also to make known the halakhic ruling concerning one who misappropriated a deposit

and returned it to its place and

it broke [

that he returned it to its place and afterward it broke ], that he is liable for the breaking, because he is still a robber:

And in order

to exclude the view of Rabbi Yishmael, who says: we do not require the owners’ awareness

in returning, and according to his view he is exempt from paying, since he returned the deposit to its place—for this reason

he teaches us

Rabbi Yohanan, who said “forever,”

that we require the owners’ awareness

in returning, and he is liable, because the halakha is like Rabbi Akiva even in this, as explained above.

And Rava said:

The halakha is not like Rabbi Akiva, but

the halakha is like Beit Hillel

and he is stricken with cheapening and becoming dearer.

Mishna:

One who intends to misappropriate a deposit,

that is: one who says in the presence of two witnesses that he will misappropriate a deposit, even though he neither lifted nor performed an act of acquisition with the deposit.

Beit Shammai say: he is liable,

and in the beraita in the Gemara this is derived from the verse.

And Beit Hillel say: he is not liable until he misappropriates with it

his hand,

as it is stated: “

If he did not misappropriate the property of his fellow.”

And Beit Hillel say: He is not liable until he misuses it, as it is stated: “If he did not misuse his fellow’s property.”

If he tilted the barrel

that he received for safekeeping,

and took from it a quarter-log

of wine,

and it broke, he pays only

the value of the

quarter-log

that he took; but regarding the rest of the barrel he is not liable, because misappropriation does not make him liable for the entire barrel, unless he performed an act of acquisition with all of it in order to take a quarter-log from it.

But if he

lifted it,

which is an act of acquisition,

and took from it a quarter-log,

which is “misappropriation,”

and it broke,

which is an accident, then he

pays the value of the whole,

for one who misappropriates a deposit becomes a robber with regard to the entire deposit, and is liable to pay for it, and becomes liable for accidents.