Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 43a

and he must pay him the value of the thorns.¹

MISHNAH. IF A MAN DEPOSITS MONEY WITH A MONEY-CHANGER, IF BOUND UP, HE MUST NOT USE IT: THEREFORE IF IT IS LOST, HE DOES NOT BEAR THE RISKS THEREOF;²  IF LOOSE, HE MAY USE IT; THEREFORE IF IT IS LOST, HE BEARS THE RISKS.³  [BUT IF HE DEPOSITS IT] WITH A PRIVATE INDIVIDUAL, WHETHER IT IS BOUND UP OR LOOSE, HE MAY NOT USE IT; THEREFORE IF IT IS LOST, HE DOES NOT BEAR THE RISKS THEREOF. A SHOPKEEPER IS AS A PRIVATE INDIVIDUAL: THIS IS R. MEIR'S VIEW. R. JUDAH SAID: A SHOPKEEPER IS AS A MONEY-CHANGER.

GEMARA. Because it is bound up he may not use it!⁴  — Said R. Assi in Rab Judah's name: This was taught of [money] bound up and sealed.⁵  R. Mari said: [It means that it was tied] with an unusual knot.⁶  Others say, R. Mari propounded: What if [it was tied with] an unusual knot? — The question stands.

IF LOOSE, HE MAY USE IT, etc. R. Huna said: Even if an [unpreventable] accident happened thereto [he is responsible]. But he [the Tanna] states, [IF] LOST!⁷  — It is as Rabbah [said]. For Rabbah said [elsewhere]: 'Stolen' means by armed robbers; 'lost,' that his ship foundered at sea.⁸  R. Nahman [however] said: If an [unpreventable] accident happened thereto, [he is] not [responsible].⁹  Raba objected to R. Nahman: According to you, who maintain that [he is] not [responsible] if an unpreventable accident happened to it, thus showing that he is not [accounted] a borrower in respect of it: but if not a borrower, he is not a paid bailee either!¹⁰  — He replied to him: In this I agree with you, but since he may benefit therefrom, he must confer benefit;¹¹  in return for the benefit [he enjoys] that should he come across a purchase shewing profit he can buy it therewith, he becomes a paid bailee in respect thereto,¹²

R. Nahman raised an objection to R. Huna's ruling: If he [the treasurer of the Sanctuary] deposits money¹³  with a money-changer, if bound up, he may not use it; therefore if he expends it, the treasurer is not liable to a trespass offering.¹⁴  If loose, he may use it; therefore if he expends it, the treasurer is liable to a trespass offering.¹⁵  But if you Say, even if an [unpreventable] accident befalls it [the money changer is responsible], why particularly if he expends it? Even if he does not expend it, he should likewise be [liable]!¹⁶  — He replied: The same law holds good even if he does not expend it; but since the first clause states [if he expends it],¹⁷  the second clause teaches likewise, [if] he expends it.

MISHNAH. IF A MAN MAKES [UNLAWFUL] USE OF A BAILMENT: BETH SHAMMAI MAINTAIN: HE IS PUNISHED IN RESPECT OF DECREASE AND INCREASE.¹⁸  BETH HILLEL RULE: [HE MUST PAY ITS VALUE] AS WHEN IT IS WITHDRAWN.¹⁹  R. AKIBA SAID: AS WHEN THE CLAIM IS MADE.

GEMARA. Rabbah²⁰  said: If one steals a barrel of wine from his neighbour, originally [i.e., at the time of theft] worth a zuz, but now [when he disposes thereof] worth four [zuz], if he breaks or drinks it, he must pay four; if it is broken of itself, he must pay a zuz. Why? Since if it were in existence, it would be returnable to its owner as it is, it is precisely when he drinks or breaks it that he robs him thereof, and we learnt: All robbers pay according to the time of robbery.²¹  'If it is broken of itself, he must pay a zuz.' Why? He does nothing at all to it then: for what do you declare him liable? For the time of the robbery!²²  But then it was worth [only] a zuz.

We learnt: BETH HILLEL RULE: [HE MUST PAY ITS VALUE] AS WHEN IT IS WITHDRAWN. What is the meaning of AS WHEN IT IS WITHDRAWN? Shall we Say, as when it is withdrawn from the world:²³  and in what [case do Beth Hillel differ]? If in the case of depreciation,²⁴  — but is there any such opinion? Did we not learn, All robbers pay as at the time of robbery? And if in the case of appreciation, then it is identical with Beth Shammai['s ruling]!

1. Whereby these had benefited the beer.
2. A gratuitous bailee not being responsible for loss.
3. The fact that he may use it makes him a paid trustee.
4. Surely the depositor may have bound it up for safety, not to shew that the money-changer was not to use it!
5. Which was not necessary for mere safety, but to intimate that it was not to be used.
6. Which he must have made to prevent the money-changer from opening the package.
7. Which implies that he is not responsible for (unpreventable) accidents.
8. Which are unpreventable accidents. 'Lost' in our Mishnah has the same meaning.
9. Regarding him as a paid bailee, who is not responsible for unpreventable accidents, whereas R. Huna accounts him a borrower.
10. For his only payment is his right to use it, but that makes him a borrower, who uses his bailment, and if that right is disregarded, he receives nothing to turn him into a paid bailee.
11. By accepting the risks of a paid bailee.
12. I.e., when he actually uses it, he does indeed become a borrower. But until then his benefit is only potential, and it is sufficient that this potential benefit shall render him a paid bailee, and not a borrower.
13. Of the Sanctuary, in error thinking it his own.
14. In accordance with Lev. V, 15, for putting money dedicated to the Sanctuary to secular use. Since it was bound up, the treasurer had not authorised him to use it, and therefore the money-changer is liable.
15. Tosef. Me'il. II.
16. For since the money-changer is responsible for unpreventable accidents, he is evidently regarded as a borrower from the moment it reaches his hand, even before he actually uses it. But in that case the treasurer has already withdrawn it from the possession of the Sanctuary, and that alone involves a trespass offering.
17. And there it is necessary to show that even then the treasurer is not liable.
18. If the bailment itself cannot be returned for any reason, being destroyed or otherwise disposed of. The meaning of this is discussed in the Gemara.
19. V. Gemara.
20. Alfasi reads: Raba.
21. B.K. 93b, i.e., what its value was then.
22. I.e., for the act of taking it.
23. I.e., when destroyed or otherwise disposed of.
24. After he had taken it; Beth Hillel maintaining that he must pay its depreciated value.

Hence it is obvious [that it means] as when it is withdrawn from its owner's possession.¹  Shall we [then] say that Rabbah rules in accordance with Beth Shammai?²  — Rabbah can answer you: In the case of appreciation, none dispute.³  When do they dispute? In the case of depreciation:⁴  Beth Shammai maintain, [unlawful] use need involve no loss,⁵  and when it depreciates it is in his possession that it does so;⁶  whereas Beth Hillel maintain that [unlawful] use must involve loss,⁷  and when it depreciates, it does so in the possession of its owner.⁸  If so, when Raba said, [Unlawful] use need not involve damage,⁹  are we to say that Raba ruled as Beth Shammai? — But we treat here of, e.g., one who moves it in order to fetch down birds [whilst standing] upon it, and they differ in respect to an unauthorised borrower. Beth Shammai maintain: An unauthorised borrower is a robber, and therefore, when it depreciates, it does so in his possession. Whereas Beth Hillel hold that an unauthorised borrower is not a robber, and when it depreciates, it does so in the owner's possession. If so, when Raba said, An unauthorised borrower, in the view of the Rabbis, is accounted a robber,¹⁰  are we to say that Raba ruled as Beth Shammai? — But there they differ in respect of the increments of a stolen article.¹¹  Beth Shammai maintain: The increments in the stolen article belong to the robbed person;¹²  whereas Beth Hillel hold that they belong to the robber.¹³  And [they differ] in the [same] controversy as the following Tannaim. For it has been taught: If one steals a ewe and shears it, or it bears young, he must pay for that itself, its shearings, and its young: this is R. Meir's view. R. Judah said: The stolen article returns in its original state.¹⁴  This [interpretation] may also be inferred, because it is stated, BETH SHAMMAI MAINTAIN, HE IS PUNISHED IN RESPECT OF DECREASE AND INCREASE. BETH HILLEL RULE: [HE MUST PAY] AS WHEN IT IS WITHDRAWN.¹⁵  This proves it.

R. AKIBA SAID: AS WHEN THE CLAIM IS MADE. Rab Judah said in Samuel's name: The halachah agrees with R. Akiba. Yet R. Akiba admits in a case where there are witnesses.¹⁶  Why? Because Scripture saith, He shall give it unto him to whom it appertaineth, in the day of his trespass offering,¹⁷  and since there are witnesses, he incurs a trespass offering at that very moment. R. Oshaia said to Rab Judah: Rabbi, you say so. But R. Jose said in R. Johanan's name thus: R. Akiba differed even in a case where there are witnesses. Why? Because Scripture saith, He shall give it unto him to whom it appertaineth, in the day of his trespass offering,¹⁸  and it is the court that declares him liable to a trespass offering.¹⁹  R. Zera said to R. Abba b. Papa: When you go there [sc. to Palestine], take a circuitous route by the promontory of Tyre and make your way up to R. Jacob b. Idi and ask him if he had heard from R. Johanan whether the halachah is as R. Akiba or not. He answered him: Thus did R. Johanan say, The halachah is as R. Akiba in every case.²⁰  What is meant by 'in every case?' — Said R. Ashi: That you should not say, That is only if there are no witnesses, but not if there are. Alternatively, it may also refer to the case where he [the thief] returned it to its place and it was injured, [and 'in every case' was said] in opposition to R. Ishmael, who maintained: The owner's knowledge is unnecessary;²¹  therefore we are informed that the owner's knowledge is required.²²  But Raba said: The halachah is as Beth Hillel.

MISHNAH. IF A MAN INTENDS TO MAKE USE OF A BAILMENT:²³  BETH SHAMMAI MAINTAIN, HE IS [FORTHWITH] RESPONSIBLE [FOR ALL ACCIDENTS]; BUT BETH HILLEL RULE, HE IS NOT RESPONSIBLE UNTIL HE [ACTUALLY] MAKES USE THEREOF, FOR IT IS SAID, [THEN THE MASTER OF THE HOUSE SHALL BE BROUGHT UNTO THE JUDGES, TO SEE] WHETHER HE HAD PUT HIS HAND UNTO HIS NEIGHBOUR'S GOODS.²⁴  IF HE [THE BAILEE] INCLINES THE BARREL [GIVEN INTO HIS KEEPING] AND TAKES A REBI'ITH²⁵  [OF WINE] THEREFROM, AND [LATER ON] IT IS BROKEN, HE MUST PAY ONLY FOR THE REBI'ITH. BUT IF HE LIFTS IT AND TAKES A REBI'ITH FROM IT AND IT IS BROKEN [AFTER A TIME], HE MUST PAY ITS ENTIRE VALUE.²⁶

1. Lit., 'house'. And they dispute the case if it subsequently appreciated. Beth Shammai maintain that he must pay its value as when he disposes thereof, whilst Beth Hillel hold that he must pay its value at the time of the theft.
2. Whereas it is a fixed principle that the halachah always agrees with Beth Hillel.
3. That it must be paid for as at the time of disposal, 'AS WHEN IT IS WITHDRAWN,' meaning when it is withdrawn from the world.
4. And as for the general rule, all robbers pay as at the time of robbery — that is only in the case of real robbery; here, however, it did not come into his hands at the outset through robbery but as a bailment.
5. Therefore the bailee is accounted a robber from the time he takes it, when it immediately passes into his ownership, in the sense that he is henceforth responsible for it.
6. Therefore he must pay its worth at the time of taking.
7. But mere taking it for use does not make the trustee a thief.
8. And he therefore pays according to the value at the time he disposes of it.
9. Supra 41b.
10. B.B. 88a.
11. When the Mishnah speaks of increase and decrease, it does not refer to a rise or fall in the market price of the article, but to profit and loss attached thereto. E.g., a sheep is stolen, bearing a certain quantity of wool, and after it has grown more, the thief shears it; shorn, it shews a decrease on its state when stolen. Likewise, if the sheep conceives whilst in the thief's possession and lambs, thus shewing an increase.
12. Therefore when repayment is made, the shearings and lamb must also be paid for.
13. Hence he must pay the animal's worth at the time of the theft.
14. I.e., he is only responsible for its value at the time of the robbery.
15. But it does not state, He is punished in respect of depreciation and appreciation, which would connote a fall or rise in market price.
16. Of the theft. Then he must pay its value at the time of the theft.
17. Lev. V, 24. This is interpreted: he shall give it (i.e., pay for it) … as on the day he incurs a trespass offering.
18. Interpreting as before.
19. Hence he must pay its value at the time of the trial.
20. Lit., 'always'.
21. Having returned it whole, though not informing the owner, he ceases to be responsible for it.
22. Hence he remains responsible for its injury, since he did not inform the owner of its return, in accordance with the view of R. Akiba, supra 40b-41a.
23. I.e., expresses his intention in the presence of witnesses.
24. Ex. XXII, 7, 10; the first verse refers to a gratuitous bailee; the second to a paid trustee: Then shall an oath of the Lord be between them both, that he hath not put his hand unto his neighbour's goods.
25. A quarter log.
26. A depositary is not responsible for accidents after putting a bailment to use unless he takes possession of it by drawing it to himself or lifting it up. Hence, if he merely inclines the barrel, it does not pass into his possession to render him responsible, and he must pay only for the actual amount he took. But if he lifts it up, it becomes his, and he is responsible for the whole of it.