Baba Mezi'a 41a
The owner's knowledge is required.1 If R. Ishmael, why particularly if he designated [a place]: even if he did not, it is still the same! — This is a case of 'it goes without saying.' [Thus:] It goes without saying that if he designated [a place for it, the owner's knowledge of its return is not required,] since it is its place:2 but even if no designation was made, so that it is not its place,3 yet the owner's knowledge is not required. Then consider the second clause: IF THE OWNER DESIGNATES A PLACE FOR IT, AND HE MOVES IT AND IT IS BROKEN, WHETHER IN HIS HAND OR AFTER HE PUTS IT DOWN, — [IF HE MOVED IT] FOR HIS PURPOSE, HE IS RESPONSIBLE; IF FOR ITS OWN NEED, HE IS NOT LIABLE. That agrees with R. Akiba, who ruled, The owner's knowledge is required. If R. Akiba, why particularly if designation is made: even if not,it is likewise so?4 — This is a case of 'it goes without saying.' [Thus:] It goes without saying that if he did not designate [a place for it, the owner's knowledge of its return is required,] since it is not its place;5 but even if designation was made, so that it is its place,6 the owner's knowledge is still required. Then the first clause agrees with R. Ishmael, and the second with R. Akiba? — Even so, for R. Johanan said: He who will explain me [the Mishnah of] BARREL so as to agree with one Tanna, I will carry his attire after him to the baths.7 R. Jacob b. Abba interpreted it before Rab as meaning that he took it with the intention of stealing it; R. Nathan b. Abba interpreted it before Rab as meaning that he took it with the intention of using it.8 Wherein do they [sc. R. Jacob b. Abba and R. Nathan b. Abba] differ? — In whether [unlawful] use must be accompanied by damage.9 He who says, [He must have taken it] in order to steal it, holds that [unlawful] use must result in damage;10 whilst he who maintains that it was in order to use it, is of the opinion that [unlawful] use need not result in damage.11 R. Shesheth raised an objection: Does he [the Tanna] State 'he took it?' he actually Says, HE MOVES IT!12 But, said R. Shesheth, this treats of one who took it in order to reach down birds [whilst standing] upon it,13 and he [the Tanna of the Mishnah] holds that a borrower without permission is regarded as a robber. Thus the whole of it [sc. the Mishnah] agrees with R. Ishmael, the second clause meaning that he did not return it to its place.14 And R. Johanan?15 — 'HE PUTS IT DOWN' implies in its own place.16
It has been stated: Rab and Levi: One maintained, [Unlawful] use [by the bailee] must involve damage; and the other maintained, It need not.17 It may be proved that it was Rab who ruled that [unlawful] use need not involve damage. For it has been taught: If a shepherd who was guarding his flock left it and entered the town: then a wolf came and destroyed a sheep, or a lion, and tore it to pieces, he is free from liability. If he put his staff or wallet upon it, he is liable.18 Now we pondered thereon: because he put his staff or wallet upon it, he is liable: but he [also] took them away!19 Whereupon R. Nahman said in the name of Rabbah b. Abbuha in Rab's name: It means that it is still upon it. Yet even if it was still upon it, what of that? but he had not taken possession of it!20 R. Samuel son of R. Isaac answered in Rab's name: It means that he smote it with his staff and it ran before him.21 But he had inflicted no damage upon it! Hence this Surely proves that he [Rab] holds that [unlawful] use need not involve damage! — [No.] Say thus: He had weakened it with his staff.22 This follows too from the fact that he states, He smote it with his staff.23 This proves it. Now, since Rab holds that [unlawful] use must involve damage, it follows that Levi maintains that it does not: what is Levi's reason?24 — Said R. Johanan on the authority of R. Jose b. Nehorai: [Unlawful] use stated in connection with a paid bailee differs from that stated in connection with a gratuitous bailee;25
Original footnotes renumbered.
- V. n. 2.
- To which he returns it.
- Sc. that to which he returns it, since it has no fixed place which can be called its own.
- Tosaf.: the assumption that R. Ishmael and R. Akiba maintain their views in both cases, whether a particular place was assigned for the misappropriated article or not, is based on the fact that the two instances given are a lamb and a coin: a lamb has no particular place, going from pasture to pasture, whilst a coin has one, viz., the purse, and the purse too generally has a particular place.
- To which he returns it, so that it is not a perfect restoration.
- V. n. 1.
- I will act as his servant.
- Lit., 'to put forth his hand' — the language is Biblical; v. Ex. XXII, 7. These two Amoraim explain the Mishnah so that the whole may agree with one Tanna. R. Jacob b. Abba: The first clause means that he returned it to its place, since no particular place having been assigned to it, wherever he puts it is its place. Therefore, if it is broken, he is free from responsibility, the author of the Mishnah being R. Ishmael, who maintains that the owner's knowledge of the article's return is unnecessary. But in the second clause the meaning is that it is not returned to its place: therefore he is liable. For though R. Ishmael holds that the owner's knowledge is unnecessary, yet it must be put back into its place before the purloiner is freed of his responsibility. This, however, holds good only if he takes the barrel in the first place intending to steal it; if he merely desires to borrow it, we are not so strict, and wherever he put it back, even not in the place assigned to it, suffices to free him. R. Nathan b. Abba: He explains it likewise, but holds that even if the depositary takes it with the mere intention of using some of its contents, he forthwith becomes responsible (though he does not carry out his intention) for the whole of it (v. infra 44a), and remains so until he returns it to its own place. The assumption that the second clause means that he does not return it to its own place is implicit on both explanations, but these are interrupted whilst certain objections are raised.
- V. Ex. XXII, 9f: If a man deliver unto his neighbour … any beast to keep, and it die, or be hurt (i.e., suffer through an unpreventable accident) … Then shall an oath of the Lord be between them both, that he hath not put his hand unto his neighbour's goods — i.e., made use of them, which, being a bailee, he had no right to do. Thus Scripture teaches that if the depositary misappropriates the bailment to his own use, he is responsible for subsequent accidents. These two Amoraim differ as to whether that holds good always, or only if his use thereof resulted in damage.
- But otherwise it throws no responsibility upon the bailee. Hence, if he takes it merely to use it and did not use it, he is not liable, seeing that no damage was done.
- Hence the mere taking to use it is sufficient.
- Which certainly indicates that he took it for use, not to steal.
- I.e., he borrowed it without intending to steal it. (V. infra p. 257.)
- As explained on p. 245, n. 5; the last passage 'the second clause meaning etc.' applies to the three answers.
- Why does he find it so difficult to make the Mishnah reflect the view of one Tanna only?
- Therefore he could not accept that explanation.
- V. n. 1.
- V. infra 93b.
- Before the animal was attacked.
- Lit., 'pulled'. And a bailee does not become responsible on account of (unlawful) use unless he takes possession of the bailment by means of 'pulling' meshikah, (v. Glos.) as appears from the Mishnah infra 43b, q.v.
- Which is the equivalent of meshikah. Thus there had been (unlawful) use (by putting his staff or wallet upon it) and meshikah.
- He had smitten it so hard as to weaken it; this is damage.
- Which would inflict a heavy blow. Otherwise he should simply have stated, He smote it and it ran before him (Rashi), or perhaps 'smote' too is unnecessary, since he could have said, He made it go by shouting at it. (R. Han. and Tosaf.).
- Rab's reason is not asked, for it stands to reason that no liability should be imposed unless his (unlawful) use causes loss, as otherwise it can hardly be called so.
- For the former v. p. 246, n. 1, to whom the verses quoted refer. An unpaid bailee: Ibid. 6f: If a man shall deliver unto his neighbour money or stuff to keep, and it be stolen out of the man's house; if the thief be found, let him pay double. If the thief be not found, then the master of the house shall he brought unto the judges, to see whether he have put his hand unto his neighbour's goods (i.e., made use thereof).
Baba Mezi'a 41b
but I say,1 It is not different. Wherein [and why] is it different? — For [unlawful] use should not have been stated in connection with a paid bailee, and it would have been inferred from a gratuitous bailee: if an unpaid bailee, who is not responsible for theft or loss, is nevertheless liable if he puts it [the bailment] to use; then a paid bailee, who is responsible for theft or loss, is surely [liable if he puts it to use]. Why then did Scripture state them [both]? To teach you that [unlawful] use need not involve damage.2 'But I Say, It is not different,' in accordance with R. Eleazar, who maintained: Both have the same purpose. How Say, 'both have the same purpose'?3 — Because one can refute [that argument]. As for a gratuitous bailee, [he may be liable if he used it] because he must repay double on a [false] plea of theft.4 And he who does not refute [it thus] is of the opinion that [liability to] the principal without [the option of] an oath5 is a greater responsibility than [having to pay] double after a [false] oath.6
Raba said: [Unlawful] use need not have been mentioned in connection with either an unpaid or a paid bailee, and it could have been inferred from a borrower.7 If a borrower, who in using it acts with its owner's permission, is [nevertheless] responsible [for unpreventable accidents]; surely the same applies to unpaid and paid bailees! Then why is it stated [in connection with these two]? Once, to teach you that [unlawful] use need not involve damage.8 And the other: that you should not say: It is sufficient that that which is deduced a minori shall be as that from which it is deduced: just as a borrower is exempt if the owner [is in his service],9 so also are unpaid and paid bailees exempt, if the owner [is in their service.]10
Now, on the view that [unlawful] use must involve damage, what is the purpose of these two [statements] on [unlawful] use?11 — One, that you should not say, It is sufficient that that which is deduced a minori shall be as that from which it is deduced. And the other, for what was taught: [If a man shall deliver unto his neighbour money or stuff to keep, and it be stolen … If the thief be not found,] then the master of the house shall be brought unto the judges12 — for an oath.13 You say, 'for an oath'. But perhaps it is not so, the meaning being for judgment?14 [Unlawful] use is stated below;15 and [unlawful] use is stated above:16 just as there, [the reference is] to an oath, so here too, for an oath [is meant].
Original footnotes renumbered.
- R. Johanan stating his own opinion.
- That is the meaning of 'it differs' — i.e., not that its actual definition differs, but that its purpose in being stated is different. Thus: its mention in the section on a gratuitous bailee is to shew the actual law, whilst it is stated in the section on a paid bailee for the purpose of definition.
- In view of the above argument.
- In this respect his responsibility exceeds that of a paid bailee (v. B.K. 63b); therefore it might also have been regarded as greater in respect of misappropriation. Consequently it must be mentioned in connection with a paid bailee too, for its own purpose, and not for mere definition; hence it must involve damage.
- As in the case of a paid bailee.
- As in the case of a gratuitous bailee.
- A borrower is responsible for accidents, and when a bailee makes use of his bailment, he automatically becomes in a sense a borrower, but without permission.
- [The bailee consequently becomes liable for the whole bailment as soon as he takes it with the intention of putting to use a mere part thereof. This distinguishes him from a borrower authorised or unauthorised, whose liability is limited to the part actually borrowed. V. R. Nissim, Hiddushim, a.l.]
- Ibid. 13f: And if a man borrow aught of his neighbour, and it be hurt or die, the owner thereof being not with it, he shall surely make it good. But if the owner thereof be with it, he shall not make it good. The Rabbis interpret this as meaning that if the owner is in the borrower's service when the article is borrowed and/or when the accident occurs (v. 94a and 95b) he is not liable.
- Therefore (unlawful) use is mentioned in their case to show that even then they are responsible.
- As Raba observed.
- Ibid. 6, with reference to a gratuitous bailee.
- I.e., to swear that it was stolen. The verse is accordingly translated thus: If it be not found (that he spoke the truth, but) he himself is the thief, and the mister of the house has already been brought unto the judges, i.e., has already sworn that it was stolen, then, whom (sc. the bailee) the judges shall condemn, he shall pay double unto his neighbour. Hence a bailee must pay double only if he actually swore that it was stolen, but not on his mere plea.
- To plead that it was stolen, and the plea itself is sufficient to impose the penalty of twofold repayment.
- In connection with a paid bailee: Then shall an oath of the Lord be between them both, that he hath not put his hand unto his neighbour's goods; ibid. 10.
- In connection with an unpaid bailee: Then the mister of the house should be brought unto the judges, to see whether he have put his hands unto his neighbour's goods. (Ibid. 7.)