Rabbi Chiya bar Abba’s third statement in the name of Rabbi Yochanan is that one in not liable to payment for claiming an item one is watching is stolen unless there is a partial confession and partial denial (modeh b’miktzat). This is a subject of debate between him and Rabbi Chiya bar Yosef who holds that modeh b’miktzat is not relevant in this type of case – only in a loan. What is the logic behind his distinction? There is a three-way argument regarding the relationship between shlichut yad (where the shomer used the item he was watching) and the case where the shomer claims the item was stolen. If the shomer used the item and then claimed it was stolen, is he/she obligated in the double payment or do we say that first he/she was obligated for shlichut yad in which case he/she acquires the object and is now responsible even for accidental damage or do we say that the obligation for claiming it was stolen is only in a case where there is shlichut yad? Or possibly both are options.
Bava Kamma 107
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Masechet Bava Kamma is sponsored by the Futornick Family in loving memory of their fathers and grandfathers, Phillip Kaufman and David Futornick.
This month’s learning is dedicated to the refuah shleima of our dear friend, Phyllis Hecht, גיטל פעשא בת מאשה רחל by all her many friends who love and admire her. Phyllis’ emuna, strength, and positivity are an inspiration.
This week’s learning is sponsored by the Miller Rotenberg family in loving memory of their daughter Tanielle Miller on her 21st yahrzeit. “We honor and celebrate her memory by continuing the paths she forged, keeping her love of community, chesed, Israel, and learning, alive and vibrant.”
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Bava Kamma
Masechet Bava Kamma is sponsored by the Futornick Family in loving memory of their fathers and grandfathers, Phillip Kaufman and David Futornick.
This month’s learning is dedicated to the refuah shleima of our dear friend, Phyllis Hecht, גיטל פעשא בת מאשה רחל by all her many friends who love and admire her. Phyllis’ emuna, strength, and positivity are an inspiration.
This week’s learning is sponsored by the Miller Rotenberg family in loving memory of their daughter Tanielle Miller on her 21st yahrzeit. “We honor and celebrate her memory by continuing the paths she forged, keeping her love of community, chesed, Israel, and learning, alive and vibrant.”
Bava Kamma 107
עֵירוּב פָּרָשִׁיּוֹת כָּתוּב כָּאן, וְכִי כְּתִיב: ״כִּי הוּא זֶה״ – אַמִּלְוָה הוּא דִּכְתִיב. וּמַאי שְׁנָא מִלְוָה?
A merging of Torah portions is written here, and the halakha written in this passage is in fact meant to be applied to a different passage. And when it is written: “This is it,” from which the halakha of a partial admission is derived, it is written concerning a loan, not a deposit. The Gemara asks: And what is different about a loan that this halakha would apply only there?
כִּדְרַבָּה – דְּאָמַר רַבָּה, מִפְּנֵי מָה אָמְרָה תּוֹרָה: מוֹדֶה בְּמִקְצָת הַטַּעֲנָה יִשָּׁבַע? חֲזָקָה אֵין אָדָם מֵעִיז פָּנָיו בִּפְנֵי בַּעַל חוֹבוֹ; וְהַאי – בְּכוּלֵּי[הּ] בָּעֵי דְּנִכְפְּרֵיהּ, וְהַאי דְּלָא כַּפְרֵיהּ – מִשּׁוּם דְּאֵין אָדָם מֵעִיז פָּנָיו.
The Gemara answers: It is in accordance with the statement of Rabba, as Rabba says: For what reason did the Torah say that one who admits to a part of the claim must take an oath? It is because there is a presumption that a person does not exhibit insolence by lying in the presence of his creditor, who had done him a favor by lending money to him. And this person who denies part of the claim actually wants to deny all of the debt, so as to be exempt, and this fact that he does not deny all of it is because a person does not exhibit insolence.
וּבְכוּלֵּי[הּ] בָּעֵי דְּלוֹדֵי לֵיהּ, וְהַאי דִּכְפַר לֵיהּ בְּמִקְצָת – סָבַר: אִי מוֹדֵינָא לֵיהּ בְּכוּלֵּיהּ – תָּבַע לִי בְּכוּלֵּיהּ; אֶישְׁתְּמֵיט לֵי[הּ] מִיהָא הַשְׁתָּא אַדְּהָווּ לִי זוּזֵי, וּפָרַעְנָא. הִלְכָּךְ רְמָא רַחֲמָנָא שְׁבוּעָה עִילָּוֵיהּ – כִּי הֵיכִי דְּלוֹדֵי לֵיהּ בְּכוּלֵּיהּ.
Rabba continues: And in order not to exhibit insolence, he wants to admit to the creditor with regard to all of the debt, and this fact that he denies owing him in part is because he reasons: If I admit to him with regard to all of the debt, he will lodge a claim against me with regard to all of it, and right now I do not have the money to pay. I will evade him at least for now until I have money, and then I will pay him all of it. This rationalization enables one to falsely deny part of a claim. Therefore, the Merciful One imposes an oath on him, in order to ensure that he will admit to him with regard to all of the debt.
וְגַבֵּי מִלְוָה הוּא דְּאִיכָּא לְמֵימַר הָכִי, אֲבָל גַּבֵּי פִּקָּדוֹן – מֵעִיז וּמֵעִיז.
The Gemara completes its answer: And it is with regard to a loan that this can be said, as the basis for this explanation is that one will not exhibit insolence before his creditor, who did him a favor by lending him money; but with regard to a deposit, one will certainly exhibit insolence, as the claimant did him no favor. Therefore, there is no reason to say that one who completely denies a claim concerning a deposit is deemed credible any more than one who admitted to part of it, and he is obligated to take an oath in either case.
תָּנֵי רָמֵי בַּר חָמָא: אַרְבָּעָה שׁוֹמְרִין
§ Rami bar Ḥama teaches this baraita: All four types of bailees
צְרִיכִין כְּפִירָה בְּמִקְצָת וְהוֹדָאָה בְּמִקְצָת, וְאֵלּוּ הֵן: שׁוֹמֵר חִנָּם וְהַשּׁוֹאֵל, נוֹשֵׂא שָׂכָר וְהַשּׂוֹכֵר.
require denial of a part of the claim and admittance of a part of the claim in order to be obligated to take an oath when someone claims to have given them an item as a deposit, and these are they: An unpaid bailee, and a borrower, a paid bailee, and a renter.
אָמַר רָבָא: מַאי טַעְמָא דְּרָמֵי בַּר חָמָא? שׁוֹמֵר חִנָּם – בְּהֶדְיָא כְּתִיב בֵּיהּ: ״כִּי הוּא זֶה״. שׁוֹמֵר שָׂכָר – יָלֵיף ״נְתִינָה״–״נְתִינָה״ מִשּׁוֹמֵר חִנָּם.
The Gemara quotes the source for this statement. Rava said: What is the reasoning for the statement of Rami bar Ḥama? Concerning an unpaid bailee, it is explicitly written with regard to him: “This is it,” as explained earlier. Concerning a paid bailee, Rami bar Ḥama learns by means of a verbal analogy to the term giving used with regard to a paid bailee from the term giving used with regard to an unpaid bailee, since the verses about both a paid and an unpaid bailee begin: “If a man gives his neighbor” (Exodus 22:6, 9).
שׁוֹאֵל – ״וְכִי יִשְׁאַל״, וָיו מוֹסִיף עַל עִנְיָן רִאשׁוֹן. שׂוֹכֵר – אִי לְמַאן דְּאָמַר כְּשׁוֹמֵר שָׂכָר, הַיְינוּ שׁוֹמֵר שָׂכָר; אִי לְמַאן דְּאָמַר כְּשׁוֹמֵר חִנָּם, הַיְינוּ שׁוֹמֵר חִנָּם.
Rava continues: Rami bar Ḥama learns the halakha concerning a borrower from the verse: “And if [vekhi] a man borrow” (Exodus 22:13). There is a principle that the conjunction “and,” represented by the letter vav, adds to the previous topic. Based on this principle, the halakhot of a borrower are connected to those of the subject of the previous verse, the bailee. Concerning a renter, if Rami bar Ḥama is stating his ruling according to the one who says that a renter is like a paid bailee, this is the same as a paid bailee; if he is stating his ruling according to the one who says that a renter is like an unpaid bailee, this is the same as an unpaid bailee.
וְאָמַר רַבִּי חִיָּיא בַּר יוֹסֵף: הַטּוֹעֵן טַעֲנַת גַּנָּב בְּפִקָּדוֹן, אֵינוֹ חַיָּיב עַד שֶׁיִּשְׁלַח בּוֹ יָד. מַאי טַעְמָא? ״וְנִקְרַב בַּעַל הַבַּיִת אֶל הָאֱלֹהִים, אִם לֹא שָׁלַח יָדוֹ בִּמְלֶאכֶת רֵעֵהוּ״, מִכְּלָל דְּאִי שָׁלַח בָּהּ יָד – מִיחַיַּיב; לְמֵימְרָא דִּבְשָׁלַח בָּהּ יָד עָסְקִינַן.
§ And Rabbi Ḥiyya bar Yosef says: With regard to an unpaid bailee who falsely states the claim, with regard to a deposit, that a thief stole it, and is discovered to have lied, he is not liable to pay double payment unless he misappropriates it, i.e., uses it for his own needs, before taking his oath. What is the reason for this? The verse states: “If the thief shall not be found, the owner of the house shall approach the judges to determine if he misappropriated his neighbor’s goods” (Exodus 22:7), and the following verse concludes: “The one whom the judges convict shall pay double to his neighbor.” By inference, one can learn that if he misappropriated it, he is liable for double payment; that is to say that we are dealing only with a case where he misappropriates it.
אֲמַר לְהוּ רַבִּי חִיָּיא בַּר אַבָּא, הָכִי אָמַר רַבִּי יוֹחָנָן: בְּעוֹמֶדֶת עַל אֲבוּסָהּ שָׁנוּ. אֲמַר לֵיהּ רַבִּי זֵירָא לְרַבִּי חִיָּיא בַּר אַבָּא: דַּוְקָא בְּעוֹמֶדֶת עַל אֲבוּסָהּ קָאָמַר, אֲבָל שָׁלַח בָּהּ יָד – קָנָה, וּשְׁבוּעָה לָא מַהְנְיָא בֵּיהּ כְּלוּם; אוֹ דִלְמָא, אֲפִילּוּ עוֹמֶדֶת עַל אֲבוּסָהּ קָאָמַר?
Rabbi Ḥiyya bar Abba said to his students: This is what Rabbi Yoḥanan says: They taught this halakha that one who falsely claims that the deposit was stolen is liable for double payment with regard to an animal still standing over its feeding trough, i.e., the bailee is still safeguarding it for its owner. Rabbi Zeira said to Rabbi Ḥiyya bar Abba: Is he stating his ruling specifically with regard to an animal standing over its feeding trough, but if the bailee misappropriated it before taking an oath, he has acquired it, and an oath is not effective for him at all, not even to cause him to be liable to pay double payment? Or perhaps he is stating his ruling even with regard to an animal standing over its feeding trough, in addition to an animal that the bailee misappropriated?
אֲמַר לֵיהּ: זוֹ לֹא שָׁמַעְתִּי, כַּיּוֹצֵא בָּהּ שָׁמַעְתִּי; דְּאָמַר רַבִּי אַסִּי אָמַר רַבִּי יוֹחָנָן: הַטּוֹעֵן טַעֲנַת אָבַד וְנִשְׁבַּע, וְחָזַר וְטָעַן טַעֲנַת גַּנָּב וְנִשְׁבַּע, וּבָאוּ עֵדִים – פָּטוּר. מַאי טַעְמָא, לָאו מִשּׁוּם דְּקָנָה בִּשְׁבוּעָה רִאשׁוֹנָה?
Rabbi Ḥiyya bar Abba said to him: I did not hear this ruling, so I cannot transmit Rabbi Yoḥanan’s opinion, but I did hear something similar to it, as Rabbi Asi says that Rabbi Yoḥanan says: With regard to an unpaid bailee who falsely states the claim that the deposit was lost and takes an oath to that effect, and retracted and falsely states the claim that a thief stole the deposit and takes an oath to that effect, and witnesses came and testified that he lied, he is exempt from double payment for the second claim. What is the reason; is it not due to the fact that he already acquired the item with the first oath, and therefore the second oath is disregarded, which is why he is not liable for double payment for a false claim of theft? So too, one who misappropriates the deposit thereby acquires it and is no longer obligated to take an oath.
אֲמַר לֵיהּ: לָא, הוֹאִיל וְיָצָא יְדֵי בְּעָלִים בִּשְׁבוּעָה רִאשׁוֹנָה.
Rabbi Zeira said to him: No, there is no proof from there, because one could argue that the reason is not because he acquired the item with the first oath; rather, since it left the owner’s possession with the bailee taking the first oath, he is exempt from taking an additional oath with regard to the same claim, but his oath will be significant even after having misappropriated the item.
אִיתְּמַר נָמֵי, אָמַר רַבִּי אָבִין אָמַר רַבִּי אִילְעָא אָמַר רַבִּי יוֹחָנָן: הַטּוֹעֵן טַעֲנַת אֲבֵידָה בְּפִקָּדוֹן וְנִשְׁבַּע, וְחָזַר וְטָעַן טַעֲנַת גְּנֵיבָה וְנִשְׁבַּע, וּבָאוּ עֵדִים – פָּטוּר, הוֹאִיל וְיָצָא יְדֵי בְּעָלִים בִּשְׁבוּעָה רִאשׁוֹנָה.
It was also stated: Rabbi Avin says that Rabbi Ile’a says that Rabbi Yoḥanan says: With regard to one who falsely states the claim, with regard to a deposit, that it is now lost, and takes an oath to that effect, and retracts and falsely states the claim that the deposit was taken through theft and takes an oath to that effect, and witnesses come and testify that he lied with regard to the claim of theft, he is exempt from double payment for the second claim, since it left the owner’s possession with the bailee taking the first oath.
אָמַר רַב שֵׁשֶׁת: הַטּוֹעֵן טַעֲנַת גַּנָּב בְּפִקָּדוֹן, כֵּיוָן שֶׁשָּׁלַח בּוֹ יָד – פָּטוּר. מַאי טַעְמָא? הָכִי קָאָמַר רַחֲמָנָא: ״וְנִקְרַב בַּעַל הַבַּיִת אֶל הָאֱלֹהִים, אִם לֹא שָׁלַח יָדוֹ וְגוֹ׳״, הָא שָׁלַח יָדוֹ – פָּטוּר.
The Gemara cites an amora who disputes the ruling of Rabbi Ḥiyya bar Yosef. Rav Sheshet says: With regard to an unpaid bailee who falsely states the claim, with regard to a deposit, that a thief stole it, and is discovered to have lied, once he misappropriated it before he took an oath he is exempt. What is the reason for this? This is what the Merciful One is saying, i.e., this is how the verse is to be understood: “If the thief shall not be found, the owner of the house shall approach the judges if he has not misappropriated his neighbor’s goods” (Exodus 22:7), indicating that this verse speaks specifically with regard to a case where he did not misappropriate the deposit; consequently, if he misappropriated it, he is exempt from double payment.
אֲמַר לֵיהּ רַב נַחְמָן, וַהֲלֹא שָׁלֹשׁ שָׁבוּעוֹת מַשְׁבִּיעִין אוֹתוֹ: ״שְׁבוּעָה שֶׁלֹּא פָּשַׁעְתִּי בָּהּ״; ״שְׁבוּעָה שֶׁלֹּא שָׁלַחְתִּי בָּהּ יָד״; ״שְׁבוּעָה שֶׁאֵינָהּ בִּרְשׁוּתִי״. מַאי, לָאו ״שְׁבוּעָה שֶׁלֹּא שָׁלַחְתִּי בָּהּ יָד״ – דֻּומְיָא דִּשְׁבוּעָה שֶׁאֵינָהּ בִּרְשׁוּתִי״? מָה ״שְׁבוּעָה שֶׁאֵינָהּ בִּרְשׁוּתִי״, כִּי מִיגַּלְּיָא מִילְּתָא דְּאִיתֵיהּ בִּרְשׁוּתֵיהּ – חַיָּיב; ״אַף שְׁבוּעָה שֶׁלֹּא שָׁלַחְתִּי בָּהּ יָד״, כִּי מִיגַּלְּיָא מִילְּתָא דִּשְׁלַח בָּהּ יָד – חַיָּיב!
Rav Naḥman said to Rav Sheshet: But aren’t three oaths administered by the court to any unpaid bailee who claims that the deposit was stolen from him? The first is: An oath that I was not negligent in safeguarding it, thereby enabling it to be stolen; the second is: An oath that I did not misappropriate it; the third is: An oath that it is not in my possession. What, is it not so that: An oath that I did not misappropriate it, is similar to: An oath that it is not in my possession, in the following manner: Just as with regard to: An oath that it is not in my possession, when the matter becomes revealed that it is in his possession, he is liable, so too, with regard to: An oath that I did not misappropriate it, when the matter becomes revealed that he did misappropriate it, he should be liable?
אֲמַר לֵיהּ: לָא; ״שְׁבוּעָה שֶׁלֹּא שָׁלַחְתִּי בָּהּ יָד״ – דּוּמְיָא דְּ״שֶׁלֹּא פָּשַׁעְתִּי בָּהּ״. מָה ״שְׁבוּעָה שֶׁלֹּא פָּשַׁעְתִּי בָּהּ״ – כִּי מִיגַּלְּיָא מִילְּתָא דְּפָשַׁע בָּהּ, פָּטוּר מִכֶּפֶל; אַף ״שְׁבוּעָה שֶׁלֹּא שָׁלַחְתִּי בָּהּ יָד״ – כִּי מִיגַּלְּיָא מִילְּתָא דִּשְׁלַח בָּהּ יָד, פָּטוּר מִכֶּפֶל.
Rav Sheshet said to him: No, there is no proof from there, because one could say that the halakha of: An oath that I did not misappropriate it, is similar to the halakha of: An oath that I was not negligent in safeguarding it, in the following manner: Just as with regard to: An oath that I was not negligent in safeguarding it, when the matter becomes revealed that he was negligent in safeguarding it, he is exempt from double payment, so too, with regard to: An oath that I did not misappropriate it, when the matter becomes revealed that he did misappropriate it, he is exempt from double payment. Since the comparison can be made between different pairings of the oaths to suggest opposite conclusions, none of these comparisons are definitive.
בָּעֵי רָמֵי בַּר חָמָא: מָמוֹן הַמְחַיְּיבוֹ כֶּפֶל פּוֹטְרוֹ מִן הַחוֹמֶשׁ, אוֹ דִלְמָא שְׁבוּעָה הַמְחַיַּיבְתּוֹ כֶּפֶל פּוֹטַרְתּוֹ מִן הַחוֹמֶשׁ?
§ The baraita quoted earlier (65b) teaches that a bailee who would be liable for double payment if witnesses were to testify that he had in fact stolen a deposit about which he had taken an oath attesting to its theft does not pay the additional one-fifth payment normally imposed upon one who takes a false oath with regard to a monetary claim. The Gemara explores the reason for this halakha. Rami bar Ḥama raises a dilemma: Is it the monetary obligation that renders him liable for double payment which exempts him from the additional one-fifth payment, or perhaps is it the taking of the oath that renders him liable for double payment which exempts him from the additional one-fifth payment?
הֵיכִי דָּמֵי? כְּגוֹן שֶׁטָּעַן טַעֲנַת גַּנָּב וְנִשְׁבַּע, וְחָזַר וְטָעַן טַעֲנַת אָבַד וְנִשְׁבַּע;
The Gemara explains: What are the circumstances in which there is a practical difference between these possibilities? It is in a case where he falsely states the claim that a thief stole the deposit and takes an oath to that effect, and retracts and falsely states the claim that it was lost and takes an oath to that effect,
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Bava Kamma 107
עֵירוּב פָּרָשִׁיּוֹת כָּתוּב כָּאן, וְכִי כְּתִיב: ״כִּי הוּא זֶה״ – אַמִּלְוָה הוּא דִּכְתִיב. וּמַאי שְׁנָא מִלְוָה?
A merging of Torah portions is written here, and the halakha written in this passage is in fact meant to be applied to a different passage. And when it is written: “This is it,” from which the halakha of a partial admission is derived, it is written concerning a loan, not a deposit. The Gemara asks: And what is different about a loan that this halakha would apply only there?
כִּדְרַבָּה – דְּאָמַר רַבָּה, מִפְּנֵי מָה אָמְרָה תּוֹרָה: מוֹדֶה בְּמִקְצָת הַטַּעֲנָה יִשָּׁבַע? חֲזָקָה אֵין אָדָם מֵעִיז פָּנָיו בִּפְנֵי בַּעַל חוֹבוֹ; וְהַאי – בְּכוּלֵּי[הּ] בָּעֵי דְּנִכְפְּרֵיהּ, וְהַאי דְּלָא כַּפְרֵיהּ – מִשּׁוּם דְּאֵין אָדָם מֵעִיז פָּנָיו.
The Gemara answers: It is in accordance with the statement of Rabba, as Rabba says: For what reason did the Torah say that one who admits to a part of the claim must take an oath? It is because there is a presumption that a person does not exhibit insolence by lying in the presence of his creditor, who had done him a favor by lending money to him. And this person who denies part of the claim actually wants to deny all of the debt, so as to be exempt, and this fact that he does not deny all of it is because a person does not exhibit insolence.
וּבְכוּלֵּי[הּ] בָּעֵי דְּלוֹדֵי לֵיהּ, וְהַאי דִּכְפַר לֵיהּ בְּמִקְצָת – סָבַר: אִי מוֹדֵינָא לֵיהּ בְּכוּלֵּיהּ – תָּבַע לִי בְּכוּלֵּיהּ; אֶישְׁתְּמֵיט לֵי[הּ] מִיהָא הַשְׁתָּא אַדְּהָווּ לִי זוּזֵי, וּפָרַעְנָא. הִלְכָּךְ רְמָא רַחֲמָנָא שְׁבוּעָה עִילָּוֵיהּ – כִּי הֵיכִי דְּלוֹדֵי לֵיהּ בְּכוּלֵּיהּ.
Rabba continues: And in order not to exhibit insolence, he wants to admit to the creditor with regard to all of the debt, and this fact that he denies owing him in part is because he reasons: If I admit to him with regard to all of the debt, he will lodge a claim against me with regard to all of it, and right now I do not have the money to pay. I will evade him at least for now until I have money, and then I will pay him all of it. This rationalization enables one to falsely deny part of a claim. Therefore, the Merciful One imposes an oath on him, in order to ensure that he will admit to him with regard to all of the debt.
וְגַבֵּי מִלְוָה הוּא דְּאִיכָּא לְמֵימַר הָכִי, אֲבָל גַּבֵּי פִּקָּדוֹן – מֵעִיז וּמֵעִיז.
The Gemara completes its answer: And it is with regard to a loan that this can be said, as the basis for this explanation is that one will not exhibit insolence before his creditor, who did him a favor by lending him money; but with regard to a deposit, one will certainly exhibit insolence, as the claimant did him no favor. Therefore, there is no reason to say that one who completely denies a claim concerning a deposit is deemed credible any more than one who admitted to part of it, and he is obligated to take an oath in either case.
תָּנֵי רָמֵי בַּר חָמָא: אַרְבָּעָה שׁוֹמְרִין
§ Rami bar Ḥama teaches this baraita: All four types of bailees
צְרִיכִין כְּפִירָה בְּמִקְצָת וְהוֹדָאָה בְּמִקְצָת, וְאֵלּוּ הֵן: שׁוֹמֵר חִנָּם וְהַשּׁוֹאֵל, נוֹשֵׂא שָׂכָר וְהַשּׂוֹכֵר.
require denial of a part of the claim and admittance of a part of the claim in order to be obligated to take an oath when someone claims to have given them an item as a deposit, and these are they: An unpaid bailee, and a borrower, a paid bailee, and a renter.
אָמַר רָבָא: מַאי טַעְמָא דְּרָמֵי בַּר חָמָא? שׁוֹמֵר חִנָּם – בְּהֶדְיָא כְּתִיב בֵּיהּ: ״כִּי הוּא זֶה״. שׁוֹמֵר שָׂכָר – יָלֵיף ״נְתִינָה״–״נְתִינָה״ מִשּׁוֹמֵר חִנָּם.
The Gemara quotes the source for this statement. Rava said: What is the reasoning for the statement of Rami bar Ḥama? Concerning an unpaid bailee, it is explicitly written with regard to him: “This is it,” as explained earlier. Concerning a paid bailee, Rami bar Ḥama learns by means of a verbal analogy to the term giving used with regard to a paid bailee from the term giving used with regard to an unpaid bailee, since the verses about both a paid and an unpaid bailee begin: “If a man gives his neighbor” (Exodus 22:6, 9).
שׁוֹאֵל – ״וְכִי יִשְׁאַל״, וָיו מוֹסִיף עַל עִנְיָן רִאשׁוֹן. שׂוֹכֵר – אִי לְמַאן דְּאָמַר כְּשׁוֹמֵר שָׂכָר, הַיְינוּ שׁוֹמֵר שָׂכָר; אִי לְמַאן דְּאָמַר כְּשׁוֹמֵר חִנָּם, הַיְינוּ שׁוֹמֵר חִנָּם.
Rava continues: Rami bar Ḥama learns the halakha concerning a borrower from the verse: “And if [vekhi] a man borrow” (Exodus 22:13). There is a principle that the conjunction “and,” represented by the letter vav, adds to the previous topic. Based on this principle, the halakhot of a borrower are connected to those of the subject of the previous verse, the bailee. Concerning a renter, if Rami bar Ḥama is stating his ruling according to the one who says that a renter is like a paid bailee, this is the same as a paid bailee; if he is stating his ruling according to the one who says that a renter is like an unpaid bailee, this is the same as an unpaid bailee.
וְאָמַר רַבִּי חִיָּיא בַּר יוֹסֵף: הַטּוֹעֵן טַעֲנַת גַּנָּב בְּפִקָּדוֹן, אֵינוֹ חַיָּיב עַד שֶׁיִּשְׁלַח בּוֹ יָד. מַאי טַעְמָא? ״וְנִקְרַב בַּעַל הַבַּיִת אֶל הָאֱלֹהִים, אִם לֹא שָׁלַח יָדוֹ בִּמְלֶאכֶת רֵעֵהוּ״, מִכְּלָל דְּאִי שָׁלַח בָּהּ יָד – מִיחַיַּיב; לְמֵימְרָא דִּבְשָׁלַח בָּהּ יָד עָסְקִינַן.
§ And Rabbi Ḥiyya bar Yosef says: With regard to an unpaid bailee who falsely states the claim, with regard to a deposit, that a thief stole it, and is discovered to have lied, he is not liable to pay double payment unless he misappropriates it, i.e., uses it for his own needs, before taking his oath. What is the reason for this? The verse states: “If the thief shall not be found, the owner of the house shall approach the judges to determine if he misappropriated his neighbor’s goods” (Exodus 22:7), and the following verse concludes: “The one whom the judges convict shall pay double to his neighbor.” By inference, one can learn that if he misappropriated it, he is liable for double payment; that is to say that we are dealing only with a case where he misappropriates it.
אֲמַר לְהוּ רַבִּי חִיָּיא בַּר אַבָּא, הָכִי אָמַר רַבִּי יוֹחָנָן: בְּעוֹמֶדֶת עַל אֲבוּסָהּ שָׁנוּ. אֲמַר לֵיהּ רַבִּי זֵירָא לְרַבִּי חִיָּיא בַּר אַבָּא: דַּוְקָא בְּעוֹמֶדֶת עַל אֲבוּסָהּ קָאָמַר, אֲבָל שָׁלַח בָּהּ יָד – קָנָה, וּשְׁבוּעָה לָא מַהְנְיָא בֵּיהּ כְּלוּם; אוֹ דִלְמָא, אֲפִילּוּ עוֹמֶדֶת עַל אֲבוּסָהּ קָאָמַר?
Rabbi Ḥiyya bar Abba said to his students: This is what Rabbi Yoḥanan says: They taught this halakha that one who falsely claims that the deposit was stolen is liable for double payment with regard to an animal still standing over its feeding trough, i.e., the bailee is still safeguarding it for its owner. Rabbi Zeira said to Rabbi Ḥiyya bar Abba: Is he stating his ruling specifically with regard to an animal standing over its feeding trough, but if the bailee misappropriated it before taking an oath, he has acquired it, and an oath is not effective for him at all, not even to cause him to be liable to pay double payment? Or perhaps he is stating his ruling even with regard to an animal standing over its feeding trough, in addition to an animal that the bailee misappropriated?
אֲמַר לֵיהּ: זוֹ לֹא שָׁמַעְתִּי, כַּיּוֹצֵא בָּהּ שָׁמַעְתִּי; דְּאָמַר רַבִּי אַסִּי אָמַר רַבִּי יוֹחָנָן: הַטּוֹעֵן טַעֲנַת אָבַד וְנִשְׁבַּע, וְחָזַר וְטָעַן טַעֲנַת גַּנָּב וְנִשְׁבַּע, וּבָאוּ עֵדִים – פָּטוּר. מַאי טַעְמָא, לָאו מִשּׁוּם דְּקָנָה בִּשְׁבוּעָה רִאשׁוֹנָה?
Rabbi Ḥiyya bar Abba said to him: I did not hear this ruling, so I cannot transmit Rabbi Yoḥanan’s opinion, but I did hear something similar to it, as Rabbi Asi says that Rabbi Yoḥanan says: With regard to an unpaid bailee who falsely states the claim that the deposit was lost and takes an oath to that effect, and retracted and falsely states the claim that a thief stole the deposit and takes an oath to that effect, and witnesses came and testified that he lied, he is exempt from double payment for the second claim. What is the reason; is it not due to the fact that he already acquired the item with the first oath, and therefore the second oath is disregarded, which is why he is not liable for double payment for a false claim of theft? So too, one who misappropriates the deposit thereby acquires it and is no longer obligated to take an oath.
אֲמַר לֵיהּ: לָא, הוֹאִיל וְיָצָא יְדֵי בְּעָלִים בִּשְׁבוּעָה רִאשׁוֹנָה.
Rabbi Zeira said to him: No, there is no proof from there, because one could argue that the reason is not because he acquired the item with the first oath; rather, since it left the owner’s possession with the bailee taking the first oath, he is exempt from taking an additional oath with regard to the same claim, but his oath will be significant even after having misappropriated the item.
אִיתְּמַר נָמֵי, אָמַר רַבִּי אָבִין אָמַר רַבִּי אִילְעָא אָמַר רַבִּי יוֹחָנָן: הַטּוֹעֵן טַעֲנַת אֲבֵידָה בְּפִקָּדוֹן וְנִשְׁבַּע, וְחָזַר וְטָעַן טַעֲנַת גְּנֵיבָה וְנִשְׁבַּע, וּבָאוּ עֵדִים – פָּטוּר, הוֹאִיל וְיָצָא יְדֵי בְּעָלִים בִּשְׁבוּעָה רִאשׁוֹנָה.
It was also stated: Rabbi Avin says that Rabbi Ile’a says that Rabbi Yoḥanan says: With regard to one who falsely states the claim, with regard to a deposit, that it is now lost, and takes an oath to that effect, and retracts and falsely states the claim that the deposit was taken through theft and takes an oath to that effect, and witnesses come and testify that he lied with regard to the claim of theft, he is exempt from double payment for the second claim, since it left the owner’s possession with the bailee taking the first oath.
אָמַר רַב שֵׁשֶׁת: הַטּוֹעֵן טַעֲנַת גַּנָּב בְּפִקָּדוֹן, כֵּיוָן שֶׁשָּׁלַח בּוֹ יָד – פָּטוּר. מַאי טַעְמָא? הָכִי קָאָמַר רַחֲמָנָא: ״וְנִקְרַב בַּעַל הַבַּיִת אֶל הָאֱלֹהִים, אִם לֹא שָׁלַח יָדוֹ וְגוֹ׳״, הָא שָׁלַח יָדוֹ – פָּטוּר.
The Gemara cites an amora who disputes the ruling of Rabbi Ḥiyya bar Yosef. Rav Sheshet says: With regard to an unpaid bailee who falsely states the claim, with regard to a deposit, that a thief stole it, and is discovered to have lied, once he misappropriated it before he took an oath he is exempt. What is the reason for this? This is what the Merciful One is saying, i.e., this is how the verse is to be understood: “If the thief shall not be found, the owner of the house shall approach the judges if he has not misappropriated his neighbor’s goods” (Exodus 22:7), indicating that this verse speaks specifically with regard to a case where he did not misappropriate the deposit; consequently, if he misappropriated it, he is exempt from double payment.
אֲמַר לֵיהּ רַב נַחְמָן, וַהֲלֹא שָׁלֹשׁ שָׁבוּעוֹת מַשְׁבִּיעִין אוֹתוֹ: ״שְׁבוּעָה שֶׁלֹּא פָּשַׁעְתִּי בָּהּ״; ״שְׁבוּעָה שֶׁלֹּא שָׁלַחְתִּי בָּהּ יָד״; ״שְׁבוּעָה שֶׁאֵינָהּ בִּרְשׁוּתִי״. מַאי, לָאו ״שְׁבוּעָה שֶׁלֹּא שָׁלַחְתִּי בָּהּ יָד״ – דֻּומְיָא דִּשְׁבוּעָה שֶׁאֵינָהּ בִּרְשׁוּתִי״? מָה ״שְׁבוּעָה שֶׁאֵינָהּ בִּרְשׁוּתִי״, כִּי מִיגַּלְּיָא מִילְּתָא דְּאִיתֵיהּ בִּרְשׁוּתֵיהּ – חַיָּיב; ״אַף שְׁבוּעָה שֶׁלֹּא שָׁלַחְתִּי בָּהּ יָד״, כִּי מִיגַּלְּיָא מִילְּתָא דִּשְׁלַח בָּהּ יָד – חַיָּיב!
Rav Naḥman said to Rav Sheshet: But aren’t three oaths administered by the court to any unpaid bailee who claims that the deposit was stolen from him? The first is: An oath that I was not negligent in safeguarding it, thereby enabling it to be stolen; the second is: An oath that I did not misappropriate it; the third is: An oath that it is not in my possession. What, is it not so that: An oath that I did not misappropriate it, is similar to: An oath that it is not in my possession, in the following manner: Just as with regard to: An oath that it is not in my possession, when the matter becomes revealed that it is in his possession, he is liable, so too, with regard to: An oath that I did not misappropriate it, when the matter becomes revealed that he did misappropriate it, he should be liable?
אֲמַר לֵיהּ: לָא; ״שְׁבוּעָה שֶׁלֹּא שָׁלַחְתִּי בָּהּ יָד״ – דּוּמְיָא דְּ״שֶׁלֹּא פָּשַׁעְתִּי בָּהּ״. מָה ״שְׁבוּעָה שֶׁלֹּא פָּשַׁעְתִּי בָּהּ״ – כִּי מִיגַּלְּיָא מִילְּתָא דְּפָשַׁע בָּהּ, פָּטוּר מִכֶּפֶל; אַף ״שְׁבוּעָה שֶׁלֹּא שָׁלַחְתִּי בָּהּ יָד״ – כִּי מִיגַּלְּיָא מִילְּתָא דִּשְׁלַח בָּהּ יָד, פָּטוּר מִכֶּפֶל.
Rav Sheshet said to him: No, there is no proof from there, because one could say that the halakha of: An oath that I did not misappropriate it, is similar to the halakha of: An oath that I was not negligent in safeguarding it, in the following manner: Just as with regard to: An oath that I was not negligent in safeguarding it, when the matter becomes revealed that he was negligent in safeguarding it, he is exempt from double payment, so too, with regard to: An oath that I did not misappropriate it, when the matter becomes revealed that he did misappropriate it, he is exempt from double payment. Since the comparison can be made between different pairings of the oaths to suggest opposite conclusions, none of these comparisons are definitive.
בָּעֵי רָמֵי בַּר חָמָא: מָמוֹן הַמְחַיְּיבוֹ כֶּפֶל פּוֹטְרוֹ מִן הַחוֹמֶשׁ, אוֹ דִלְמָא שְׁבוּעָה הַמְחַיַּיבְתּוֹ כֶּפֶל פּוֹטַרְתּוֹ מִן הַחוֹמֶשׁ?
§ The baraita quoted earlier (65b) teaches that a bailee who would be liable for double payment if witnesses were to testify that he had in fact stolen a deposit about which he had taken an oath attesting to its theft does not pay the additional one-fifth payment normally imposed upon one who takes a false oath with regard to a monetary claim. The Gemara explores the reason for this halakha. Rami bar Ḥama raises a dilemma: Is it the monetary obligation that renders him liable for double payment which exempts him from the additional one-fifth payment, or perhaps is it the taking of the oath that renders him liable for double payment which exempts him from the additional one-fifth payment?
הֵיכִי דָּמֵי? כְּגוֹן שֶׁטָּעַן טַעֲנַת גַּנָּב וְנִשְׁבַּע, וְחָזַר וְטָעַן טַעֲנַת אָבַד וְנִשְׁבַּע;
The Gemara explains: What are the circumstances in which there is a practical difference between these possibilities? It is in a case where he falsely states the claim that a thief stole the deposit and takes an oath to that effect, and retracts and falsely states the claim that it was lost and takes an oath to that effect,
