Bava Metzia 43b (מג:) — the Talmud in English

Rather, it is obvious [necessarily]:

the “time of removal” according to Beit Hillel means

the time of removal from the owner’s possession,

namely, at the time of sheliahut yad. And this teaches us: he is not assessed for the decrease or increase in value except as at the time of sheliahut yad. Just as, in the case of a decrease, he pays according to the value at the time of sheliahut yad, so too, in the case of an increase, he pays according to the value at the time of sheliahut yad.

The explanation of their dispute is as follows:

Beit Shammai obligate him according to the time when the item was removed from the world, because “at that moment he is stealing it,” since he removed it from the world with his own hands.

Whereas Beit Hillel do not obligate him according to the time when he removed it from the world, even though he did so with his own hands.

If so, this presents a difficulty for Rabba:

Shall we say

[should it be said]

that Rabba stated his ruling in accordance with the opinion of Beit Shammai,

and that Beit Hillel indeed disagreed with him!? The Gemara answers:

He said

he would reply

to you, Rabba:

In fact, “according to the time of removal”—as stated by Beit Hillel—means according to the time when it was removed from the world. However, this is not as the Gemara initially understood, that Beit Hillel and Beit Shammai disputed the case of an increase in value. Rather:

with regard to an increase, everyone agrees,

that is, they did not dispute the case of an increase. Just as Beit Shammai obligate him in the case of an increase for the reason I stated, so too Beit Hillel agree with this.

They disagree with regard to a decrease,

[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: sheliahut yad does not require a decrease,

and he becomes a robber at the time of lifting, even before he removes it and decreases it.

And when it decreased

[its value fell] after the lifting,

it decreased in his domain

[the robber’s domain],

it decreased.

That is, since the law of sheliahut yad applies by virtue of the lifting alone, he had already become a robber at that moment, as though it were his own object whose value had fallen. He is therefore liable to the depositor according to the lifting, which occurred when the item was more valuable, in accordance with the law that all robbers pay according to the time of the robbery.

And Beit Hillel hold: sheliahut yad requires a decrease,

and until he decreases it and removes it from the world, he does not become a robber with regard to it.

And

if so,

when it decreased

[its value fell],

it decreased in the domain of its owner,

that is, it is the owner’s object that decreased in value, and he cannot collect that decrease from the bailee, since at the time when the item was more valuable he had not yet become liable. Only when he removed it from the world and decreased it, at a time when it was less valuable, did the time of his robbery arrive, and he pays according to the value of the deposit at that time. And we raise an objection:

But concerning that which Rava said

[above, 41b],

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

[should it be said]

that Rava stated his ruling in accordance with Beit Shammai!?

For they hold like him that sheliahut yad does not require a decrease, whereas Beit Hillel disagree and hold that it does require a decrease.

Rather,

the Gemara explains their dispute in a different manner. Even according to this interpretation, “the time of removal” means removal from the world. However, this removal does not necessarily mean removal by hand; it may also mean that the item left the world on its own. And according to this interpretation as well, their dispute concerns a decrease:

Here,

in our Mishna,

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

he lifted the barrel that had been deposited with him—in order

to place fledglings upon it,

for the lifting is not considered sheliahut yad, but rather “borrowing without the owner’s knowledge.”

And with regard to one who borrows without the owner’s knowledge,

whether he is subject to the law of a robber,

they disagree—

Beit Shammai and Beit Hillel disagree over whether he is a robber:

Beit Shammai hold: One who borrows without the owner’s knowledge is a robber, and when it decreased, it decreased in his domain

[the robber’s domain],

it decreased.

That is: since the law of robbery applies by virtue of the lifting alone, it is as though it were his own object whose value had fallen, and he is liable to the depositor according to the lifting, which occurred when the item was more valuable, in accordance with the law that all robbers pay according to the time of the robbery. This is what Beit Shammai said: “He is assessed for the decrease.”

And Beit Hillel hold: One who borrows without the owner’s knowledge is a borrower, and

if so,

when it decreased, it decreased in the domain of its owner,

that is, it is the owner’s object that decreased in value, and he cannot collect that decrease from the bailee, since at the time when the item was more valuable he had not yet become liable. Only when the deposit left the world—even on its own—did the time of his liability arrive, since a borrower is liable for an item’s leaving the world, and he pays according to the value of the deposit at that time. This is what Beit Hillel said: “According to the time of removal,” and he is not assessed for the decrease.

The Gemara raises an objection to this:

But concerning that which Rava said: One who borrows without the owner’s knowledge, according to the Rabbis

[who disagree with Rabbi Yehuda in Bava Batra 88a],

is a robber,

and it follows that he holds this way, and therefore explained the opinion of the Rabbis in accordance with it. If so,

shall we say that Rava stated his ruling in accordance with Beit Shammai!?

And on the basis of this objection, the Gemara explains their dispute in a different manner:

Rather,

we are dealing with misuse of a deposit, and “the time of removal” means the time when it was removed from the owner’s premises. However, the “deficiency and surplus” mentioned in our Mishna means what the animal itself lost and what the animal itself gained. That is: “deficiency” refers to an animal that, at the time of the misuse of the deposit, was laden with wool and was sheared; and “surplus” refers to an animal that was barren and subsequently became pregnant while in his possession.

And

here they disagree with regard to the enhancement of a stolen item—

that is, the fleeces shorn from the animal that had been laden with them at the time he misused the deposit, and the fetuses with which the animal that had been barren at the time he misused the deposit became laden—

they disagree:

Beit Shammai hold: The enhancement of a stolen item belongs to the one robbed,

and the one who misused the deposit is “flogged” on its account, because he does not acquire it; and he must return everything to the owners.

And Beit Hillel hold: The enhancement of a stolen item belongs to the robber.

That is: The fleeces through which it became “deficient” belong to the robber, and he returns to the owners the value of the wool as it was at the time he misused the deposit. And the fetuses through which it became “surplus” belong to him, and he returns to the owners a barren animal.

And the reasoning of Beit Hillel is:

Because the Torah states: “And he shall return the stolen item that he stole.” We learn from this: If it is “like what he stole,” he returns it as it is; but if the stolen item is no longer as it was at the time of the theft, it has not “changed,” the robber does not return it, because “change effects acquisition.” Therefore, the robber acquired all these things, since they changed from the time of the theft.

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

The first: Change does not effect acquisition.

The second: It is a penalty that the Sages imposed, so that he would not acquire the “enhancement,” even though change effects acquisition everywhere.

And

they disagreed, Beit Shammai and Beit Hillel,

with regard to the dispute between these tanna’im

as it is taught:

“One who robs a ewe, shears it and it gives birth, pays for it, for its fleeces, and for its offspring; this is the statement of Rabbi Meir,

and this accords with the statement of Beit Shammai.

Rabbi Yehuda says: The stolen item is returned as it is

as it was at the time of the theft,

and this accords with the statement of Beit Hillel.

It is precise as well,

and likewise it can be inferred from the wording of our Mishna that “deficiency and surplus” means actual deficiency and actual surplus,

from what it teaches: “Beit Shammai say: He is flogged for deficiency and surplus,”

and

Beit Hillel say: As at the time of removal—yet the Mishna did not say, “He is flogged for the decrease and increase in price.” It is therefore apparent that the Mishna comes to teach us that for actual deficiency and surplus he is flogged—

and we conclude: Indeed,

infer from this

that this is how we explained the dispute between Beit Hillel and Beit Shammai!

We learned in the Mishna:

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

The statement of Rabbi Akiva is explained according to the Tosafot.

Rav Yehuda said in the name of Shmuel: The halakha is in accordance with Rabbi Akiva, who says that “the time of the claim” [with regard to a decrease in price, even if he broke it with his hands, and an increase in price when he did not break it with his hands] is the determining time, and not the time of the theft, as maintained by Beit Hillel and Beit Shammai.

And

in any event,

Rabbi Akiva concedes in a case where there are witnesses

who know how much it was worth at the time of the misuse of the deposit or the theft, and who saw that he misused it or stole it from him,

that he pays according to the time of the theft.

And

what is the reason that he concedes? Because

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 of the time the witnesses saw it, because

once there are witnesses, it is from that moment that he becomes liable for his guilt.

He

objected

to him, Rabbi Oshaya, to Rav Yehuda: Rabbi!

But

are you saying this,

that Rabbi Akiva concedes in a case where there are witnesses!?

But

Rabbi Asi said in the name of Rabbi Yohanan precisely as follows: Rabbi Akiva disagreed even in a case where there are

witnesses!?

And

what is the reason?

Because

the verse states: “And he shall return the stolen item that he stole … and he shall pay its principal, and he shall add its fifth to it;

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

the court

is what makes him liable for his guilt,

and not the testimony 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

when you go to Eretz Yisrael, lengthen your route by going there by way of the steps of Mount Tzur, the place where Rabbi Yaakov bar Idi was located, and ask him whether he heard from Rabbi Yohanan whether the halakha is in accordance with Rabbi Akiva or not.

He did so, and

he said to him,

Rabbi Yaakov:

This is what Rabbi Yohanan said: The halakha is in accordance with Rabbi Akiva in every case!

And we explain:

What is meant by

“in every case”?

Rav Ashi said:

Rabbi Yohanan used the expression “in every case” for two reasons: A.

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

rather, say this: Even in a case where there are witnesses.

B.

Alternatively,

that is, Rabbi Yohanan said “in every case” also to make known the halakhic ruling concerning one who misused a deposit,

who returned it to its place

and it broke—

and he is liable for the breakage because he is still a robber:

And in order

to exclude the view of Rabbi Yishmael, who said: The owner’s awareness is not required for returning it, and according to his view he is exempt from payment, since he returned the deposit to its place—therefore

he teaches us

Rabbi Yohanan, by saying “in every case,”

that the owner’s awareness is required

when returning it, and he is liable, because the halakha is in accordance with Rabbi Akiva even in this case, as explained earlier on Bava Metzia 40b and 41a, where Rabbi Akiva disagrees with Rabbi Yishmael on this matter.

And Rava said:

There is no halakha in accordance with Rabbi Akiva; rather,

the halakha is in accordance with Beit Hillel,

and he is flogged for the decrease or increase in price.

Mishna:

One who contemplated misusing a deposit,

that is, one who said in the presence of two witnesses

that he would misuse a deposit, even though he did not lift the deposit or perform an act of acquisition with it.

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 misuses it, as it is stated: “If he did not misuse his fellow’s property.”

He tilted the barrel

that he had 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 he is not liable for the rest of the barrel, because misuse of a deposit does not make him liable for the entire barrel unless he performed an act of acquisition with regard to all of it with the intention of taking 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 “misuse of a deposit,”