Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 34a

who can say that it [the bailment] will be stolen? And should you assume that it will be stolen, who can say that the thief will be found? And even if the thief be found, who can say that he will repay [double]: perhaps he will confess [before his guilt is attested]. and thus be exempt?¹  — Said Raba: It becomes as though he [the bailor] had said to him, 'If it be stolen, and you are willing to pay me [for it], then my cow be yours from this moment [of delivery]'²  If so, even its shearings and offsprings too [should belong to the bailee].³  Why has it been taught: Excepting its shearings and offsprings? — But. said R. Zera, it is as though he had said to him, 'Except its shearings and offsprings.' And why make this an absolute assumption? It may be taken for granted that one gives over those improvements which come from elsewhere, but not those which come from the stock itself.

Others state, Raba said: It becomes as though he said to him, 'If it is stolen, and you are willing to reimburse me, then it is yours from just before the theft.' Wherein do they [sc. the two versions of Raba's reply] differ? — They differ in respect of the difficulty posited by R. Zera;⁴  or if it was standing in the meadow.⁵

AND HE [THE BAILEE] PAYS [FOR THEM], DECLINING TO SWEAR etc. R. Hiyya b. Abba said in R. Johanan's name: HE PAYS is not literally meant, but once he said, 'I will pay,' even if he has not done so, [the law of the Mishnah holds good].⁶

We learnt: AND HE PAYS, DECLINING TO SWEAR; [this implies,] only if he actually pays, but not otherwise? But consider the second clause: IF HE SWEARS, NOT WISHING TO PAY; [which implies] only if he did not consent, but if he consented, even if he had not actually paid [the double repayment is his]! Hence no inference can be drawn from this.⁷

It has been taught in accordance with R. Johanan: If one hires a cow from his neighbour and it is stolen, and he declares, 'I will pay and not swear,'⁸  and then the thief is discovered, he must pay double to the hirer.⁹

R. Papa said: If a gratuitous bailee merely says, 'I was negligent,' he [the bailor] assigns the twofold repayment to him, since he could have freed himself by [the plea of] theft. If a paid bailee merely says, 'It was stolen', the twofold repayment is made over to him, since he could, if he wished, have freed himself by pleading that it was hurt or had died. But if a borrower says, 'I will pay,' he [the bailor] does not assign him the twofold repayment; for how could he have freed himself? By [the plea], it died on account of its work? That is a rare occurrence.¹⁰

Others state, R. Papa said: A borrower too, once he says 'I will pay,' the double repayment becomes his, since he could, if he wished, free himself by [the plea], 'It died on account of its work.' Thereupon R. Zebid observed to him, Thus did Abaye say: As for a borrower, [the twofold repayment is not his] unless he has actually paid. Why? — Since all the benefit [of the loan] is his, he [the lender] does not make over the double repayment to him on the strength of mere words.

It has been taught in accordance with R. Zebid. If one borrows a cow from his neighbour and it is stolen, and the borrower hastens and pays for it, and then the thief is found, he must repay double to the borrower. Now, on the first version of R. Papa's dictum,¹¹  this is certainly not a refutation;¹²  but must we say that it is a refutation of the second version?¹³  — R. Papa can answer you: Is this stronger than our Mishnah, which states, HE PAYS, yet we interpreted it as meaning, he declares [that he will pay]; so here too, it means that he says [that he will pay]. How compare? There [in our Mishnah] it is not stated that 'he hastens', whilst here it says, 'he hastens'! — What is the meaning of 'he hastens'? He hastens to promise. But since [the teaching] in respect of a hirer is stated, 'and he says' [that he will pay], whilst [that] in respect of a borrower is stated, 'and he hastens'; this proves that it is stated advisedly [so]! — Were they then taught together?¹⁴  The tannaim of the schools of R. Hiyya and R. Oshaia¹⁵  were asked, and they affirmed that they were taught together.

Now it is obvious that if he [the bailee] declared, 'I will not pay,' and then said, 'I will pay' — then he has said, 'I will pay'.¹⁶  But what if he [first] declared, 'I will pay.'

1. One who confesses before his guilt is attested is exempt from the money fine attaching to his crime; v. B.K. 75a.
2. For it may be taken as axiomatic that one is willing to forego a possible twofold repayment in return for the safety of the principal.
3. Since the ownership of the bailee is assumed to be retrospective, the shearings and offsprings from the time of its delivery as a bailment should be his.
4. It arises on the first version, but not the second.
5. just before the theft. Since this does not belong to the bailee, he cannot acquire it just then (for in order to acquire it, either he must perform meshikah (v. Glos.) or it must be standing within his domain); consequently the additional repayment made by the thief over and above the principal will belong to the bailor.
6. This refutes the ruling reported in the name of R. Johanan.
7. Only one clause is stated exactly, so that no particular inference can be drawn.
8. Though a hirer is liable for theft, he could swear that an unpreventable accident had occurred, in which case he is free from responsibility.
9. The Baraitha does not state that he actually paid, but merely declared his willingness to pay, yet the twofold repayment thereby becomes his.
10. Hence a palpable lie, which one does not care to state.
11. According to which the borrower does not acquire the double payment by his mere promise to pay.
12. Since the Baraitha expressly states that the borrower actually paid.
13. Which states that the borrower is entitled to the double payment on his mere promise to pay.
14. They are separate Baraithas, and therefore the phraseology of one does not illumine the other.
15. These were the principal authorities for the Baraitha.
16. Hence the double repayment of the thief belongs to him.

and then declared, 'I will not pay': do we say, he has retracted; or perhaps, he intended keeping his word, and was merely repulsing him [the bailor]?¹  [Again,] if he declared, 'I will pay,' and died, whilst his sons declared, 'We will not pay,' what then? Do we say, they have retracted: or perhaps, they are keeping to their father's word, but merely repulsed him? [Again,] what if the sons did pay? Can he [the bailor] say to them, 'I made over the [right of receiving] double repayment to your father only, because he did me a favour,²  but not to you': or perhaps, there is no difference? What if he [the bailee] paid to the sons?³  Can they say to him, 'Our father made over the double repayment to you because you did him a favour; but as for ourselves, you have done nothing for us'; or perhaps, there is no difference? What if the heirs [of the bailee] paid to the heirs [of the bailor]? What if he paid a half?⁴  What if he borrowed two cows and paid for one of them?⁵  What if he borrowed from partners and paid one of them?⁶  What if partners borrowed and one of them paid?⁷  What if one borrowed from a woman and paid her husband?⁸  What if a woman borrowed and her husband paid? The questions stand.

R. Huna said: He [the bailee] is made to swear that it is not in his possession.⁹  Why? We fear that he may have cast his eyes upon it.¹⁰

An objection is raised: If one lends his neighbour on a pledge and the pledge is lost, and he [the lender] says to him [the debtor], 'I lent you a sela' on it, and it was [only] worth a shekel';¹¹  whilst the other maintains, 'Not so; you did lend me a sela' upon it and it was worth a sela':' he is free [from an oath].¹²  'I lent you a sela' on it and it was worth a shekel, whilst the other maintains, 'Not so; you did lend me a sela' on it, and it was worth three denarii;'¹³  he is liable [to an oath].¹⁴  [If the debtor pleads,] 'You did lend me a sela' on it, whilst it was worth two;' and the other replies, 'Not so: I lent you a sela' on it and it was worth a sela';' he is free [from an oath].¹⁵  'You did lend me a sela' on it and it was worth two,' whilst the other replies, 'Not so: I lent you a sela' on it and it was worth five denarii,' he is liable [to an oath]. Now, who must swear? He who has the bailment [i.e., the creditor], lest the other swear and then this one produce the bailment.¹⁶  To what does this¹⁷  refer? Shall we say, to the second clause; but that [the oath rests upon the creditor] follows from the fact that it is he who makes partial admission!¹⁸  — But, said Samuel, it refers to the first clause. How can it refer to the first clause?¹⁹  — He means the second subsection of the first clause, [viz.,] 'I lent you a sela' on it and it was worth a shekel,' whilst the other maintains, 'Not so: you did lend me a sela' on it, and it was worth three denarii:' he is liable [to an oath]. Now, the onus of the oath lies upon the debtor,²⁰  yet the Rabbis ordered that the creditor should swear, lest this one [sc. the debtor] swear and then the other produce the pledge. But if

1. Perhaps he was importuning him for the money, which he could not pay just then. Nevertheless, he might have intended to pay, and therefore the twofold repayment should belong to him.
2. By taking care of the bailment.
3. The bailor having died.
4. I.e., he consented to pay half: does he acquire half of the double repayment?
5. If it be assumed that when one consents to pay half only he does not acquire half of the double repayment, what if he consents to pay for one cow out of two: can this be regarded as a separate transaction altogether?
6. His share: is he entitled to his half of the twofold repayment? Do we regard it as though he had paid the whole of one particular person's bailment, or must he have paid for the whole bailment itself?
7. Has he a right to his half of the double repayment, since he paid for the whole of his share; or must the whole bailment be paid for?
8. The reference is to 'property of plucking', q.v. p. 234. n. 10. Do we say, since the principal does not belong to the husband, restitution to him does not entitle the bailee to the double repayment; or perhaps, since the husband enjoys the usufruct, it does?
9. This refers to the Mishnah. Though he offers to pay, he must nevertheless swear.
10. I.e., coveted it, and so trumped up a story that it was stolen.
11. Half a sela'.
12. Since he maintains that he owes him nothing at all, there is no partial admission of the claims.
13. One sela' = 4 denarii.
14. Since there is partial admission of indebtedness. The Gemara discusses below the meaning of 'he.'
15. V. n. 2 which applies here too, though the debtor is now the claimant.
16. Because it is derogatory to the institution of the oath to swear when a matter may be practically proved (Tosaf.); Mishnah, Shebu. 43a.
17. The last passage in the cited Mishnah.
18. Why then state a different reason?
19. Seeing that there no oath is taken.
20. Since he is the defendant who makes partial admission.