Bava Metzia 44a — the Talmud in English

Gemara:

We learned in the Mishna: If the bailee intended to use the deposit as his own, Beit Shammai say that he is liable:

And we explain the reason for the opinion of Beit Shammai:

From where are these words derived:

that for speech alone he is liable?

As the Sages taught:

It is stated in the Torah: “The owner of the house shall approach the judges [to take an oath] that he did not use his fellow’s property as his own:

for every matter of wrongdoing.”

The Torah thus included the apparently superfluous word “matter,” since it could have said: “for every wrongdoing.” Beit Shammai and Beit Hillel disagree about the interpretation of this word:

Beit Shammai say: The verse teaches

that when it says “matter,”

that he is liable for the thought

[or speech] of using the deposit as his own,

as for an action.

This is what the verse means by “a matter of wrongdoing”: speech concerning wrongdoing.

And Beit Hillel say: He is not liable

,

until he actually uses it as his own,

and this is because

it is stated: “

that he did not use his fellow’s property as his own.”

This indicates that he actually used the deposit as his own, and not that he merely intended to do so.

Beit Shammai said to Beit Hillel: But it has already been stated: “

for every matter of wrongdoing,”

which indicates that the one who intended to use the deposit as his own is also included.

Beit Hillel said to Beit Shammai: On the contrary,

but

it has already been stated: “

that he did not use his fellow’s property as his own,”

which indicates actual use as one’s own.

:

If so—

that one who merely intended to use the deposit as his own is not liable—

what is the meaning of: “

for

every matter of wrongdoing”?

What does the word “matter” come to include?

They said to them:

It could have been thought

—

I would know only that he,

the bailee himself, who used his deposit as his own, is liable. But if he

said to his slave or to his agent

to use the deposit as his own on behalf of the principal,

from where

do we know that he is liable, even though throughout the Torah the principle is: “An agent cannot act on behalf of another in committing a transgression”?

Therefore,

the verse states: “

for every matter of wrongdoing,”

to include one who tells his agent to use the deposit as his own on his behalf, and the agent does so; the bailee is liable.

We learned in the Mishna:

If he tilted the barrel

and took one-quarter of a log from it, and it broke, he pays only for the one-quarter:

Rabba said:

They taught

that he does not pay for the entire barrel

only when it broke

and the wine spilled, since this was not the result of his action.

But if the barrel fermented,

the barrel from which he had taken one-quarter,

he pays for the entire barrel,

by the law governing one who causes damage.

And we explain:

What is the reason?

Because

his own arrows are what acted upon it

[the bailee’s arrows caused the wine to ferment]. By reducing the amount in the barrel, he caused it to ferment, since wine tends to ferment in a partially empty vessel.

We learned in the Mishna:

If he lifted it and took from it

one-quarter, and it broke, he pays the value of the entire barrel.

Shmuel said:

“He did not take” means that he did not literally take,

meaning: when the Mishna holds liable one who lifted the barrel and took one-quarter from it, this liability does not apply only when he actually took one-quarter from it.

Rather, once he lifted it in order to take from it, even though he did not take anything,

.

The Gemara asks:

Should we say that Shmuel holds that using a deposit as one’s own does not require taking anything from it,

and for this reason Shmuel holds that he need not actually diminish the deposit; it is sufficient that he lift it with the intention of diminishing it? This is necessary even according to the one who says: “Using a deposit as one’s own does not require taking anything from it.”

They said

to reject this inference:

No,

you cannot prove from here that Shmuel holds that using a deposit as one’s own does not require taking anything from it. Rather, this case is different, because

here he is pleased that this entire barrel should serve as a base for this one-quarter

[he is pleased that the barrel should serve as the container for the one-quarter that he wants for his own use]. Since he is pleased that the one-quarter should remain stored inside the barrel, it is as though he took it for his own use and then returned it to the barrel. He is therefore liable for the one-quarter under the law of using a deposit as one’s own, and for the rest of the barrel he is liable under the law of an unauthorized borrower. b.

And regarding what Rit va wrote, he said: “And he is liable for the rest of the barrel under the law of an unauthorized borrower, since in such a case one who borrows without the owner’s knowledge is considered an unauthorized borrower [and not a thief], because this borrowing does not trouble the owner.” His intention apparently refers to the reasoning that he wrote above, on page 41a, regarding a shepherd who placed his staff and pack on an animal, for which he is liable; the Gemara proves from this that using a deposit as one’s own does not require taking anything from it. Rashi raised the following difficulty there: Perhaps he is liable because one who borrows without the owner’s knowledge is considered a thief, and not because of using a deposit as one’s own. Ritva wrote: “Some explain that he is considered liable as one who borrows without the owner’s knowledge only when he performs extensive work with it, which is likely to diminish it. But when he temporarily places his pack and staff on it, since this does not trouble the owner, there is no liability for borrowing without the owner’s knowledge.” Although Rashi himself did not give this reason there, this is because Ritva rejected that explanation of the Gemara there for the reason explained there; nevertheless, Rashi agrees with the essential principle. c. Rit va there was perplexed by Ras hi: “It appears from his words that one who lifts a deposit with the intention of using part of it as his own, or who uses part of it as his own, is liable only for the part that he used as his own and not for the rest of the deposit, even though it is one single entity, unless he becomes liable for it under the law of an unauthorized borrower.” The following difficulty was raised against him: Nevertheless, Rashi’s explanation still presents a difficulty: since he said, “He did not take means that he did not literally take,” this implies that all the more so, if he took one-quarter from it, he is liable for the value of the entire barrel. But why? There is no unauthorized borrower with regard to the rest of the barrel, and it cannot be explained as referring to a case in which he took it and returned it there, since that is not what the wording implies.” d. And in Terumat HaKeri, on section 292, regarding the words “But in my poverty,” he elaborated on the wording of Ras hi and on the explanation of his method. In his view, Rashi did not mean, as Ritva understood his words, that because “he is pleased” it is as though he had diminished the contents. Rather, he certainly did not diminish them; nevertheless, he is liable for the entire barrel under the law of an unauthorized borrower. Although using a deposit as one’s own requires taking something from it, theft does not require taking anything from it. Thus, with regard to the one-quarter, he has the status of a thief. When we consider the entire barrel, since he is not one who “uses a deposit as his own” in the special sense introduced by the Torah—that using part of a deposit as one’s own creates liability for the entire deposit—we should not hold him liable for the entire barrel except on the basis of Rashi’s reasoning that he is an unauthorized borrower with regard to the entire barrel. See more on this in section zayin. h. e. And in the Novellae of Rabbi Meir Simha, above, page 41a, regarding the words “And Rashi’s words,” he explains Rashi’s words not as Ritva understood them: that he is truly liable only under the law of an unauthorized borrower for the rest of the barrel. Rather, had he not become an unauthorized borrower with regard to the entire barrel, he would not even be considered to have used the one-quarter as his own, since it was mixed with the rest of the depositor’s wine. See there. v. And Rit va explained the words of the Gemara: “For this reason they explained—and see Ramban, Rashba, and Ran—that this is what it means: ‘He is pleased that this barrel should serve as a base for this one-quarter,’ and it is as though he took it and diminished the contents, since using a deposit as one’s own requires taking something from it. Once he used part of it as his own, he became liable for the entire deposit by virtue of using a deposit as one’s own.” z. Ran wrote above, page 41b, regarding the words “But it was not diminished”: “Certainly, these amoraim who disagree over whether using a deposit as one’s own requires taking something from it disagree about this: The one who says that it requires taking something from it holds that what the Torah innovated—namely, that one who steals part of a deposit is liable for the entire deposit—is an innovation, and one may apply an innovation only to the extent of its explicit scope. Therefore, only when he actually diminishes part of it does he make the part equivalent to the whole; but when he lifts it with the intention of diminishing it and does not diminish it, he does not make the part equivalent to the whole. Accordingly, although one who lifts it with the intention of stealing the entire deposit is liable, one who lifts it with the intention of stealing only part is not liable for the whole [this is the wording in Shita Mekubetzet], since this liability is not based on an ordinary legal principle but on a special decree of the Torah, and one may apply it only to the extent of its innovation. In its simple sense, this is precisely the meaning of Rashi’s words here—and this is how his intention was explained in Terumat HaKeri there—where he wrote: ‘He is pleased that the entire barrel should serve as a base for this one-quarter, so that the one-quarter will be preserved and will not ferment ; but using a deposit as one’s own with regard to another item, other than a barrel of wine, always requires taking something from it. One who takes a deposit and lifts it in order to use it as his own—that is, with the intention of stealing part of the barrel [because with regard to the entire barrel this is “using a deposit as one’s own” and not theft]— as long as he has not diminished it, he is not liable for lifting it, since he did not take it in order to steal the entire thing but to use part of it as his own. That is: if he had taken it in order to steal the entire barrel, common reasoning would make him liable like any other thief, and the fact that he had not yet diminished it would not matter. But that is not the case: he is stealing only part, and one seeks to make him liable, by virtue of the Torah’s innovation, for stealing the whole because he stole part of it. And using a deposit as one’s own—that is, the Torah’s innovation that using part of a deposit as one’s own makes him liable for the whole— without taking something from it is not applicable, since one may apply an innovation only to the extent of its innovation.” According to this, later authorities noted that this contradicts what emerges from Rashi’s words above, page 43b: “They disagree when it has been diminished, and Beit Hillel say: according to the time when it was removed from the world, and not according to the time when it was lifted. And if this is difficult for you: But it is stated: All thieves pay according to the value at the time of the theft, and the time of theft is surely the time when it was lifted, so he should have to pay according to its value at that time—this is not difficult, because if this were actual theft from the beginning, that is, if we were discussing an ordinary person who stole an object from the owner’s house, so that it was in his hands as a stolen object from the outset, so too we would say that once his theft was completed when he lifted the deposit, he must always pay according to its value at that time. But here, it came into his possession lawfully, and therefore one does not seek to hold him liable as a thief, since the law of a thief does not apply to one who decides to steal an object that came into his possession lawfully. Rather, because of the law of using a deposit as one’s own, it makes him liable, and therefore it does not necessarily follow that he becomes liable from the moment he lifted it. And this is what they disagree about: whether taking something from it is required, in which case his theft is completed only when he diminishes it, and he pays according to its value at that time rather than at the time of lifting; or whether taking something from it is not required, in which case the bailee is like an ordinary person whose theft is completed when he lifts it, and he pays according to its value at that time.” It is thus clear from Rashi’s words above that since the deposit came into the bailee’s possession lawfully, he cannot be held liable under the ordinary law of a thief; whereas Rashi’s words here indicate that common reasoning would make him liable, were it not that the Torah makes him liable for the whole on account of the part. This is all the more so according to what Terumat HaKeri wrote in explaining Rashi, that in the case of the barrel his entire liability derives only from the general law concerning a thief. h. Nevertheless, Ritva certainly did not understand Rashi’s wording here in this manner, because if so, Rashi’s words explicitly indicate that using part of a deposit as one’s own creates liability for the entire deposit, contrary to Ritva’s understanding of Rashi’s words. And according to him, Rashi’s intention must be explained on the basis of what emerges from Tosafot above, page 41a [also cited in the notes above, page 43b]: One who takes the entire deposit with the intention of stealing it is liable under the law of using a deposit as one’s own, and this is considered using it as one’s own with taking something from it, since he takes it for himself. But when he takes an entire barrel with the intention of taking only part of it, it is not enough that he intends to steal part for himself for it to be considered using it as one’s own with taking something from it; rather, he must separate the one-quarter from the depositor’s barrel. This is also Rashi’s distinction: Had he taken it with the intention of stealing the entire thing, no other taking would have been necessary, since taking it is itself its diminution. But when he takes it with the intention of stealing one-quarter, it has not yet been diminished until he takes that one-quarter out of the barrel. According to this, there is no contradiction between Rashi’s words here and his words above. And see what was explained in the notes on Rashi’s commentary to the Mishna, where he interpreted the wording of the Mishna, “the one who intended to use a deposit as his own,” as referring to one who says: “I will take this person’s deposit for myself.”] Rav Ashi raised a dilemma: If he lifted my purse in order to take a coin from it, but did not take it, what is the law as to whether he becomes liable for the entire purse according to Shmuel, just as he is liable for the entire barrel? It may be said: It is wine that is not preserved except together with other wine, but a coin is preserved [wine is indeed preserved only together with other wine, but money is preserved by itself]. Therefore, this case is not similar to the case of the barrel. Or perhaps: Nevertheless, even in this case he is pleased that the coin should remain in the purse, because the protection of a purse differs from the protection of a coin

[the protection of a purse that appears full differs from the protection of a single coin], since a single coin is more likely to be lost. Therefore, the law of a purse should be like the law of a barrel. And we conclude:

The question remains without a resolution!

каково

его положение — становится ли он, согласно Шмуэлю, обязанным за весь кошелек, подобно тому как в случае с бочкой он обязан за всю бочку?

Возможно, следует сказать:

вино сохраняется только вместе с другим вином, но монета сохраняется

[действительно, вино сохраняется только вместе с другим вином, но деньги сохраняются и сами по себе], и тогда этот случай не подобен бочке.

Или, возможно,

в любом случае и здесь ему желательно, чтобы динар находился в кошельке, поскольку

сохранность кошелька отличается от сохранности динара

[отличается сохранность кошелька, который выглядит полным, от сохранности отдельного динара], так как отдельный динар легче потерять; следовательно, к кошельку применим тот же закон, что и к бочке. И мы заключаем:

We have completed the chapter “The One Who Deposits.”

Мы завершили [изучение] твоего раздела «Хранитель, которому вверили имущество».

Мы завершаем трактат «Бава Мециа», главу «Ха-мафкид».

The first Mishna of this chapter deals with the law of the sale of movable property, and teaches a principle: only the drawing of the movable property [such as a utensil or produce] by the buyer effects the acquisition, and not the giving of the money to the seller for the object being purchased.

Therefore, as long as the buyer has not drawn the object being purchased to himself, even if the buyer has already paid the price of the object, there is still the possibility [for the seller, or the buyer, or both, as will be explained] to regret the transaction and cancel it, if he wishes.

Likewise, the Mishna teaches that if two people exchange between themselves two types of coins, one type useful and the second type less useful, the less useful coin is considered merchandise [called in the words of the Sages “peiri,” produce, and also called “movable property”], and the one who gives it is considered the seller of the merchandise, whereas the useful type of coin is considered money [“money”], and the one who gives it is considered the buyer of the merchandise, as the Mishna will explain.

Therefore, if a person gave his fellow a type of coin less useful, considered peiri, and the latter undertook to pay him in return a useful coin, the acquisition takes effect when the latter draws the less useful coin to himself. Here the acquisition takes place through the seller’s drawing the “merchandise” to himself, and he is now obligated to pay the money for the merchandise he purchased.

But, on the other hand, if the owner of the useful money first gave his money to the owner of the less useful money, then the drawing of the useful coins, which are considered “money,” does not complete the acquisition of the less useful money, because they are considered merchandise, and it is still possible to regret and cancel it.

The Hazon Ish, in his introduction to the chapter “The Gold,” defines “coin” as something that serves two purposes:

The first, a means for determining a price.

The second, a means of payment.

A thing that constitutes a means of payment but does not constitute a means for determining a price, or a thing that constitutes a means for determining a price but does not constitute a means of payment, is not considered a coin, but rather “peiri.”

When one sells something to his fellow, the buyer is obligated to give him payment for the object in coins, but the seller cannot establish an obligation of payment in other merchandise, unless he did so by an acquisition of exchange; and then the other merchandise is not considered payment for the transaction, but is acquired for him by an acquisition of exchange!

All “movable property” is called in the Gemara’s discussion “produce.” A gold coin, which is less useful, is considered “peiri” [“movable property”] in relation to a silver coin, which is more useful.

On the other hand, a silver coin is considered “money” in relation to a gold coin, since a silver coin “passes for trade” more than a gold coin.

Mishna:

Therefore, the drawing of the coin

of gold

by the one who undertakes to pay silver coins for it, is

“acquisition” [

obligates the one who purchases it to pay in exchange for it ]

the

coin

of silver

which he undertook to pay for the gold, for the drawing of the produce effects the acquisition, and the buyer becomes obligated to give the price of the transaction — which is silver denarii.

But the coin

of silver does not effect acquisition [

does not obligate ]

the

seller of the coin

of gold

to give it to the buyer, for merely giving “money” does not acquire the object. And likewise, a silver coin “passes for trade” more than a copper coin; therefore, a copper coin is considered peiri in relation to a silver coin, which is like “money” in comparison with the copper coin.

Therefore, the drawing of the coin

of copper acquires the

coin

of silver, and

whereas

the silver does not acquire the copper.

Bad money,

which was disqualified from use,

acquires the

money

good,

which is fit for use, since “bad money” is like movable property in relation to “good money.”

And

money

good does not acquire the

money

bad,

and if he wishes, he may retract from the transaction, like any giving of “money” that does not acquire movable property. "

An “asימון” is a piece of metal the size of a coin, upon which they have not yet stamped the customary form and design of that coin.

“An asימון”

is like movable property and

acquires

by its drawing

the coin, and the coin does not acquire the

the

and he may retract from the transaction until he draws the asימון.

All the

movable property acquires

through their drawing

the coin; a coin does not acquire movable property

and he may retract until he draws the movable property.

All movable property acquires one another,

and once one of them has drawn, his fellow acquires his.

How

does movable property — “produce” — acquire the money, while money does not acquire the produce?

The buyer drew

the buyer

from him,

from the seller, the

produce, and did not give him money

he acquired and

he cannot retract,

since the drawing of the produce acquires.

The buyer gave

the buyer

to him,

to the seller, the

money, and did not draw from him

the

produce; he can

the buyer, and likewise the seller,

retract

from the transaction.

And although he may retract,

nevertheless,

in any event,

they said:

“He who exacted punishment [

the Holy One, blessed is He, who exacted punishment ]

from the people of the generation of the Flood,

and punished them for their deeds,

and

He who exacted punishment

from the generation of the Dispersion,

He is destined to exact punishment from one who does not stand by his word,

and punish him.

The Meiri wrote: “As long as they did not retract and upheld their sale, the buyer acquired from the first moment. And if they consecrated it, gave it, or sold it between the giving of the money and the drawing, once he draws it, in any event, the consecrated property, the buyer, or the recipient of the gift acquires it, since he acquired it from the first moment, and it is his that he consecrates, sells, or gives. [It is possible that these words of the Meiri are only according to the one who says (47b) that money acquires by Torah law.”] Rabbi Shimon says:

I disagree with the Tanna Kamma, who holds that both the buyer and the seller can retract after the money has been given, as long as the buyer has not pulled the produce.

Rather,

as long as the money is in his possession,

the seller, who received the money into his possession,

his hand is uppermost,

and only he can retract, if he wishes to accept upon himself the curse of the Sages, that the One who exacted payment from the generation of the Flood and from the generation of the Dispersion will exact payment from him.

But the buyer, who has neither the money in his possession nor the produce, cannot retract; and if the seller wishes to uphold the sale, the buyer must accept the produce against his will, and he cannot cancel the sale.

Gemara:

Rabbi taught it to Rabbi Shimon his son,

Rabbi taught his son Rabbi Shimon our Mishna in this wording:

The gold acquires the silver,

as we learned in our Mishna, that a gold coin is considered “produce” in relation to a silver coin.

Rabbi Shimon was astonished and

said to him,

to his father:

Rabbi

[my teacher], behold,

you taught us

and instructed us

in your youth

[in your younger years]:

The silver acquires the gold,

since a silver coin is not so important, and is considered “produce” in relation to a gold coin, and therefore the buyer of the silver is obligated to pay for it with a gold coin.

And

if

you retract

from your words

and teach us in your old age

that

the gold acquires the silver?!

But Rabbi did not retract from what he had now taught his son, for indeed Rabbi changed his view in his old age, and held that the gold acquires the silver.

And the Gemara explains:

What did he hold in his youth

Rabbi,

and what did he hold in his old age

Rabbi? What was Rabbi’s initial view, and why did he change his view?

And we explain:

In his youth he held

Rabbi: when one coin is evaluated against another coin, in order to regard one as “produce” and the other as “money,” the more important coin is “money,” and the less important one is “produce.”

Therefore,

gold,

a gold coin,

which is important, is “currency,”

and a coin of

silver, which is not important

so much,

is “produce”

[a fruit] in relation to the gold coin.

And the produce acquires it,

the pulling of the silver coin

for the currency,

the obligation to pay in the gold coin.

But

in his old age he held

Rabbi: the coin that is “sharp” to be spent, and “passes in commerce,” is considered “money” in relation to the coin that is less “sharp” to be spent, which is considered “produce.”