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Today's Daf Yomi

October 30, 2016 | ื›ืดื— ื‘ืชืฉืจื™ ืชืฉืขืดื–

  • This month's learning is sponsored by Joanna Rom and Steven Goldberg in loving memory of Steve's mother Shirley "Nana" Goldberg (Sura Tema bat Chaim v'Hanka)

Bava Metzia 34

A shomer who can be exempt from payment and decides to pay anyway, acquires rights to the double payment (or the 4 or 5 payment for an animal that the robber slaughtered and sold) in the event that the robber is caught down the road. ย The gemara discusses how this mechanism works if it mean that the owner is giving him rights to something that is not yet in existence. ย The gemara also discusses whether it is enough if he just says he will pay or if he actually needs to pay in order to exempt himself. ย Various scenarios are brought to question whether or not in those scenarios the owner would give rights to the double payment to the shomer (for example is the shomer died and it was to his sons – maybe he only gave rights to the shomer himself). ย All the questions raised are left unanswered. ย A halacha is brought that one must swear before

Study Guide Bava Metzia 34

ืžื™ ื™ื™ืžืจ ื“ืžื’ื ื‘ื ื•ืื ืชืžืฆื™ ืœื•ืžืจ ื“ืžื’ื ื‘ื ืžื™ ื™ื™ืžืจ ื“ืžืฉืชื›ื— ื’ื ื‘ ื•ืื™ ืžืฉืชื›ื— ื’ื ื‘ ืžื™ ื™ื™ืžืจ ื“ืžืฉืœื ื“ืœืžื ืžื•ื“ื™ ื•ืžืคื˜ืจ ืืžืจ ืจื‘ื ื ืขืฉื” ื›ืื•ืžืจ ืœื• ืœื›ืฉืชื’ื ื‘ ื•ืชืจืฆื” ื•ืชืฉืœืžื ื™ ื”ืจื™ ืคืจืชื™ ืงื ื•ื™ื” ืœืš ืžืขื›ืฉื™ื•

who could say that the deposit will be stolen? And if you say it will be stolen, who could say that the thief will be found? And even if the thief will be found, who could say that he will pay the double payment? Perhaps he will confess and will be exempted from the double payment. Rava said in response: It is as though the owner said to the bailee at the time that he gave him the deposit: When it will be stolen, and you will wish to refrain from taking an oath, and you will pay me instead, ownership of my cow is hereby transferred to you from this time, and the cow is an entity that already came into the world. Since ownership of the cow is retroactively transferred to the bailee from the time of the deposit, any profits generated by the cow, e.g., the double payment, belong to the bailee.

ืžืชืงื™ืฃ ืœื” ืจื‘ื™ ื–ื™ืจื ืื™ ื”ื›ื™ ืืคื™ืœื• ื’ื™ื–ื•ืชื™ื” ื•ื•ืœื“ื•ืชื™ื” ื ืžื™ ืืœืžื” ืชื ื™ื ื—ื•ืฅ ืžื’ื™ื–ื•ืชื™ื” ื•ื•ืœื“ื•ืชื™ื” ืืœื ืืžืจ ืจื‘ื™ ื–ื™ืจื ื ืขืฉื” ื›ืื•ืžืจ ืœื• ื—ื•ืฅ ืžื’ื™ื–ื•ืชื™ื” ื•ื•ืœื“ื•ืชื™ื”

Rabbi Zeira objects to this: If so, then even the fleece and offspring of the animal that grew while it was in the baileeโ€™s possession should be the property of the bailee. Why, then, is it taught in a baraita that the bailee receives all profits generated by the animal except for its fleece and its offspring? Rather, Rabbi Zeira says that it is as though the owner said to the bailee: My animal is hereby transferred to you from this time except for its fleece and its offspring.

ื•ืžืื™ ืคืกืงื ืกืชืžื ื“ืžืœืชื ืฉื‘ื—ื ื“ืืชื ืžืขืœืžื ืขื‘ื™ื“ ืื™ื ื™ืฉ ื“ืžืงื ื™ ืฉื‘ื—ื ื“ืžื’ื•ืคื” ืœื ืขื‘ื™ื“ ืื™ื ื™ืฉ ื“ืžืงื ื™

The Gemara asks: If so, why was this halakha stated in the mishna without qualification? Does every owner necessarily have that condition in mind? The Gemara answers: Typically, profit that comes from elsewhere, e.g., the double payment from a thief, which is difficult to anticipate, a person is apt to transfer to the bailee. But profit that originates from the body of the animal, which can be anticipated, a person is not apt to transfer to the bailee.

ืื™ื›ื ื“ืืžืจื™ ืืžืจ ืจื‘ื ื ืขืฉื” ื›ืื•ืžืจ ืœื• ืœื›ืฉืชื’ื ื‘ ื•ืชืจืฆื” ื•ืชืฉืœืžื ื™ ืกืžื•ืš ืœื’ื ื™ื‘ืชื” ืงื ื•ื™ื” ืœืš ืžืื™ ื‘ื™ื ื™ื™ื”ื•

Some say that Rava says his response differently. It is as though the owner said to the bailee at the time of the deposit: When it will be stolen, and you will wish to refrain from taking an oath, and you will pay me instead, ownership of my animal is transferred to you adjacent to, i.e., immediately before, its theft. The Gemara asks: What is the difference between the formulations in Ravaโ€™s two responses?

ืื™ื›ื ื‘ื™ื ื™ื™ื”ื• ืงื•ืฉื™ื ื“ืจื‘ื™ ื–ื™ืจื ืื™ ื ืžื™ ื“ืงื™ื™ืžื ื‘ืื’ื

The Gemara answers: There is a difference between them with regard to the difficulty raised by Rabbi Zeira with regard to fleece and offspring, which is irrelevant according to the second formulation. Alternatively, there is a difference in a case where the animal is standing in a marsh [baโ€™agam] at the time of its theft. Since the animal was not on the baileeโ€™s property at that time, he could not acquire it.

ืฉื™ืœื ื•ืœื ืจืฆื” ืœื™ืฉื‘ืข [ื•ื›ื•ืณ] ืืžืจ ืจื‘ื™ ื—ื™ื™ื ื‘ืจ ืื‘ื ืืžืจ ืจื‘ื™ ื™ื•ื—ื ืŸ ืœื ืฉื™ืœื ืฉื™ืœื ืžืžืฉ ืืœื ื›ื™ื•ืŸ ืฉืืžืจ ื”ืจื™ื ื™ ืžืฉืœื ืืฃ ืขืœ ืคื™ ืฉืœื ืฉื™ืœื

ยง The mishna teaches that if the bailee paid the owner and did not wish to take an oath, the thief pays the double payment to the bailee. Rabbi แธคiyya bar Abba says that Rabbi Yoแธฅanan says: When the mishna says: If the bailee paid, it does not mean that he actually paid. Rather, once the bailee said: I hereby choose to pay, even if he did not yet actually pay, he acquired the double payment and all other profits.

ืชื ืŸ ืฉื™ืœื ื•ืœื ืจืฆื” ืœื™ืฉื‘ืข ืฉื™ืœื ืื™ืŸ ืœื ืฉื™ืœื ืœื ืื™ืžื ืกื™ืคื ื ืฉื‘ืข ื•ืœื ืจืฆื” ืœืฉืœื ื˜ืขืžื ื“ืœื ืจืฆื” ื”ื ืจืฆื” ืืฃ ืขืœ ืคื™ ืฉืœื ืฉื™ืœื ืืœื ืžื”ื ืœื™ื›ื ืœืžืฉืžืข ืžื™ื ื”

The Gemara raises an objection from that which we learned in the mishna: If the bailee paid the owner and did not wish to take an oath, the thief pays the double payment to the bailee. The Gemara infers: If the bailee paid, yes, he acquires these rights; if the bailee did not pay, he does not. The Gemara answers: Say the latter clause of the mishna: In the case of a bailee who took an oath and did not wish to pay, the thief pays the double payment to the owner. The Gemara infers: The reason that the thief pays the owner is that the bailee did not wish to pay. But if the bailee wished to pay, although he did not actually pay, he acquires the rights to the double payment. Rather, because the inference from the first clause and the inference from the latter clause are contradictory, no inference is to be learned from this mishna.

ืชื ื™ื ื›ื•ืชื™ื” ื“ืจื‘ื™ ื™ื•ื—ื ืŸ ื”ืฉื•ื›ืจ ืคืจื” ืžื—ื‘ื™ืจื• ื•ื ื’ื ื‘ื” ื•ืืžืจ ื”ืœื” ื”ืจื™ื ื™ ืžืฉืœื ื•ืื™ื ื™ ื ืฉื‘ืข ื•ืื—ืจ ื›ืš ื ืžืฆื ื”ื’ื ื‘ ืžืฉืœื ืชืฉืœื•ืžื™ ื›ืคืœ ืœืฉื•ื›ืจ

The Gemara notes: It is taught in a baraita in accordance with the opinion of Rabbi Yoแธฅanan: In the case of one who rents a cow from another, and it was stolen, and the other party, the renter, said: I hereby choose to pay and I will not take an oath, and the thief was located thereafter, the thief pays the double payment to the renter. Apparently, once the renter chooses to pay, he acquires the rights to the double payment.

ืืžืจ ืจื‘ ืคืคื ืฉื•ืžืจ ื—ื ื ื›ื™ื•ืŸ ืฉืืžืจ ืคืฉืขืชื™ ืžืงื ื” ืœื™ื” ื›ืคื™ืœื ื“ืื™ ื‘ืขื™ ืคื˜ืจ ื ืคืฉื™ื” ื‘ื’ื ื™ื‘ื” ืฉื•ืžืจ ืฉื›ืจ ื›ื™ื•ืŸ ืฉืืžืจ ื ื’ื ื‘ื” ืžืงื ื” ืœื™ื” ื›ืคื™ืœื ื“ืื™ ื‘ืขื™ ืคื˜ืจ ื ืคืฉื™ื” ื‘ืฉื‘ื•ืจื” ื•ืžืชื”

Rav Pappa says: In the case of an unpaid bailee, once he stated: I was negligent, thereby rendering himself liable to compensate the owner, the owner transfers rights to the double payment to him, as, if the unpaid bailee wishes, he can exempt himself from that liability with the claim of theft. Admitting negligence is tantamount to agreeing to pay rather than taking an oath. Likewise, in the case of a paid bailee, once he stated: It was stolen, the owner transfers rights to the double payment to him, as, if the paid bailee wishes, he can exempt himself from that liability with the claim that the animal was maimed or died due to circumstances beyond his control.

ืฉื•ืืœ ืฉืื•ืžืจ ื”ืจื™ื ื™ ืžืฉืœื ืœื ืžืงื ื™ ืœื™ื” ื›ืคื™ืœื ื‘ืžืื™ ื”ื•ื” ืœื™ื” ืœืžืคื˜ืจ ื ืคืฉื™ื” ื‘ืžืชื” ืžื—ืžืช ืžืœืื›ื” ืžืชื” ืžื—ืžืช ืžืœืื›ื” ืœื ืฉื›ื™ื—

By contrast, in the case of a borrower who says: I hereby choose to pay, the owner does not transfer the rights to the double payment to him. The borrowerโ€™s statement that he chooses to pay is ineffectual, as he is liable to pay even without it. Because the statement is ineffectual, it does not confer any rights. With what claim would a borrower be able to exempt himself from payment? It is only with the claim that the animal died due to ordinary labor. A case of an animal that died due to ordinary labor is uncommon, and this claim is therefore accepted only with corroborating proof.

ืื™ื›ื ื“ืืžืจื™ ืืžืจ ืจื‘ ืคืคื ืฉื•ืืœ ื ืžื™ ื›ื™ื•ืŸ ืฉืืžืจ ื”ืจื™ื ื™ ืžืฉืœื ืžืงื ื™ ืœื™ื” ื›ืคื™ืœื ื“ืื™ ื‘ืขื™ ืคื˜ืจ ื ืคืฉื™ื” ื‘ืžืชื” ืžื—ืžืช ืžืœืื›ื” ืืžืจ ืœื™ื” ืจื‘ ื–ื‘ื™ื“ ื”ื›ื™ ืืžืจ ืื‘ื™ื™ ืฉื•ืืœ ืขื“ ืฉื™ืฉืœื ืžืื™ ื˜ืขืžื ื”ื•ืื™ืœ ื•ื›ืœ ื”ื ืื” ืฉืœื• ื‘ื“ื™ื‘ื•ืจื ืœื ืžืงื ื™ ืœื™ื” ื›ืคื™ืœื

Some say that Rav Pappa said: In the case of a borrower, once he stated: I hereby choose to pay, the owner transfers rights to the double payment to him, as, if a borrower wishes, he can exempt himself from that liability with the claim that the animal died due to ordinary labor. Rav Zevid said to him that this is what Abaye said: A borrower acquires the rights to the double payment only when he actually pays for the item. What is the reason for this? Since all of the benefit accrues to the borrower, as he enjoys the use of the item without payment, the owner does not transfer the rights to the double payment to the borrower due to his statement that he chooses to pay.

ืชื ื™ื ื›ื•ื•ืชื™ื” ื“ืจื‘ ื–ื‘ื™ื“ ื”ืฉื•ืืœ ืคืจื” ืžื—ื‘ื™ืจื• ื•ื ื’ื ื‘ื” ื•ืงื™ื“ื ื”ืฉื•ืืœ ื•ืฉื™ืœื ื•ืื—ืจ ื›ืš ื ืžืฆื ื”ื’ื ื‘ ืžืฉืœื ืชืฉืœื•ืžื™ ื›ืคืœ ืœืฉื•ืืœ

The Gemara notes: It is taught in a baraita in accordance with the opinion of Rav Zevid: In the case of one who borrows a cow from another, and it was stolen, and the borrower went ahead and paid, and the thief was located thereafter, the thief pays the double payment to the borrower. This indicates that the borrower receives the double payment only if he actually paid the owner for the item.

ืœืœื™ืฉื ื ืงืžื ื“ืจื‘ ืคืคื ื•ื“ืื™ ืœื ื”ื•ื™ื ืชื™ื•ื‘ืชื ืœืœื™ืฉื ื ื‘ืชืจื ืœื™ืžื ืชื™ื”ื•ื™ ืชื™ื•ื‘ืชื™ื”

The Gemara comments: According to the first version of the statement of Rav Pappa, that the owner transfers rights to the double payment to the borrower only if he actually pays the owner, this baraita certainly is not a conclusive refutation [teyuvta] of the opinion of Rav Pappa, as the baraita corresponds to his opinion. According to the latter version of Rav Pappaโ€™s statement, that the owner transfers rights to the double payment to the borrower even if the borrower merely says that he chooses to pay, shall we say that this baraita would be a conclusive refutation of the opinion of Rav Pappa?

ืืžืจ ืœืš ืจื‘ ืคืคื ืžื™ ืืœื™ืžื ืžืžืชื ื™ืชื™ืŸ ื“ืงืชื ื™ ืฉื™ืœื ื•ืื•ืงื™ืžื ื ื‘ืืžืจ ื”ื›ื ื ืžื™ ื‘ืืžืจ

The Gemara answers: Rav Pappa could have said to you: Is the baraita stronger than the mishna, which teaches that the bailee receives the double payment if he already paid the owner, and nevertheless, we established that the mishna is referring to one who states his intent to pay but has not yet paid? Here, too, establish the baraita as referring to one who states his intent to pay but has not yet paid.

ืžื™ ื“ืžื™ ื”ืชื ืœื ืงืชื ื™ ืงื™ื“ื ื”ื›ื ืงืชื ื™ ืงื™ื“ื ืžืื™ ืงื™ื“ื ืงื™ื“ื ื•ืืžืจ

The Gemara questions this: Are these cases comparable? There, in the mishna, it is not taught that he went ahead and paid. Here, in the baraita, it is taught that he went ahead and paid, which indicates that he actually paid and not merely that he agreed to pay. The Gemara responds: What is the meaning of went ahead? It means that he went ahead and stated his intent to pay, although he did not yet actually pay.

ื”ื ืžื“ืงืชื ื™ ื’ื‘ื™ ืฉื•ื›ืจ ื•ืืžืจ ื•ื’ื‘ื™ ืฉื•ืืœ ืงื™ื“ื ืฉืžืข ืžื™ื ื” ื“ื•ืงื ืงืชื ื™ ืžื™ื“ื™ ื’ื‘ื™ ื”ื“ื“ื™ ืชื ื™ื

The Gemara asks: But from the fact that the tanna teaches the halakha in the baraita cited earlier with regard to a renter with the formulation: And he said that he would pay, and in the baraita with regard to a borrower the tanna uses the formulation: Went ahead, conclude from it that the baraita concerning a borrower is teaching specifically that he actually paid. The Gemara rejects this proof: Are these two baraitot taught together so that one can draw a conclusion based on a discrepancy in their formulation? Perhaps the baraitot are unrelated and are simply formulated in different styles.

ืฉื™ื™ืœื™ื ื”ื• ืœืชื ืื™ ื“ื‘ื™ ืจื‘ื™ ื—ื™ื™ื ื•ื“ื‘ื™ ืจื‘ื™ ืื•ืฉืขื™ื ื•ืืžืจื™ ื’ื‘ื™ ื”ื“ื“ื™ ืชื ื™ื™ืŸ

The Gemara comments: The Sages asked the tannaโ€™im of the school of Rabbi แธคiyya and Rabbi Oshaya, experts in mishnayot and baraitot, if these baraitot were formulated together. And they said that the baraitot were taught together as one long baraita, and therefore one can draw a conclusion based on a discrepancy in their formulation.

ืคืฉื™ื˜ื ืืžืจ ืื™ื ื™ ืžืฉืœื ื•ื—ื–ืจ ื•ืืžืจ ื”ืจื™ื ื™ ืžืฉืœื ื”ื ืงืืžืจ ื”ืจื™ื ื™ ืžืฉืœื ืืœื ืืžืจ ื”ืจื™ื ื™ ืžืฉืœื

ยง The Gemara comments that it is obvious that if the bailee initially said: I will not pay, and then said: I hereby choose to pay rather than taking an oath, he is entitled to the double payment, as didnโ€™t he ultimately say: I hereby choose to pay? The Gemara raises a dilemma: But if he initially said: I hereby choose to pay,

ื•ื—ื–ืจ ื•ืืžืจ ืื™ื ื™ ืžืฉืœื ืžืื™ ืžื™ ืืžืจื™ื ืŸ ืžื”ื“ืจ ืงื ื”ื“ืจ ื‘ื™ื” ืื• ื“ืœืžื ื‘ืžืœืชื™ื” ืงืื™ ื•ื“ื—ื•ื™ื™ ื”ื•ื ื“ืงื ืžื“ื—ื™ ืœื™ื”

and then said: I will not pay, what is the halakha? Do we say he is retracting his intention to pay and therefore has no right to the double payment? Or, perhaps he stands committed to his initial statement and is merely postponing payment to a later date, in which case he maintains rights to the double payment.

ืืžืจ ื”ืจื™ื ื™ ืžืฉืœื ื•ืžืช ื•ืืžืจื• ื‘ื ื™ื• ืื™ืŸ ืื ื• ืžืฉืœืžื™ืŸ ืžืื™ ืžื™ ืืžืจื™ื ืŸ ืžื”ื“ืจ ืงื ื”ื“ืจื™ ื‘ื”ื• ืื• ื“ืœืžื ื‘ืžืœืชื ื“ืื‘ื•ื”ื•ืŸ ืงื™ื™ืžื™ ื•ื“ื—ื•ื™ื™ ื”ื•ื ื“ืงื ืžื“ื—ื• ืœื™ื”

The Gemara raises another dilemma. If the bailee said: I hereby choose to pay, and then he died before paying, and his sons said: We are not paying, what is the halakha? Do we say they are retracting their fatherโ€™s decision to pay, or perhaps they stand committed to fulfilling their fatherโ€™s statement and are merely postponing payment to a later date when they will be able to pay?

ืฉืœืžื• ื‘ื ื™ื ืžืื™ ืžืฆื™ ืืžืจ ืœื”ื• ื›ื™ ืืงื ืื™ ื›ืคื™ืœื ืœืื‘ื•ื›ื•ืŸ ื“ืขื‘ื“ ืœื™ ื ื™ื™ื— ื ืคืฉืื™ ืœื“ื™ื“ื›ื• ืœื ืื• ื“ืœืžื ืœื ืฉื ื

The Gemara raises another dilemma. If the father died before he declared his willingness to pay and the sons paid, what is the halakha? Can the owner say to them: When I transferred rights to the double payment, I transferred them to your father, who pleased me, but to you, I did not transfer those rights? Or perhaps this case is no different, and the owner transfers rights to the double payment provided that he receives payment, and it does not matter whether it was the bailee or his sons who paid him.

ืฉื™ืœื ืœื‘ื ื™ื ืžืื™ ืžืฆื• ืืžืจื™ ืœื™ื” ื›ื™ ืืงื ื™ ืœืš ืื‘ื•ื ื ื›ืคื™ืœื ื“ืขื‘ื“ืช ืœื™ื” ื ื™ื™ื— ื ืคืฉื™ื” ืื‘ืœ ืื ืŸ ืœื“ื™ื“ืŸ ืœื ืื• ื“ืœืžื ืœื ืฉื ื ืฉืœืžื• ื‘ื ื™ื ืœื‘ื ื™ื ืžืื™

If the owner of the deposit died and the bailee paid the payment to the ownerโ€™s sons, what is the halakha? Can the sons say to the bailee: When our father transferred rights to the double payment to you, it was because you pleased him, but as far as we are concerned, you did not please us? Or perhaps it is no different, and the bailee receives the double payment. Likewise, if both the owner and the bailee died, and sons of the bailee paid the sons of the owner, what is the halakha?

ืฉื™ืœื ืžื—ืฆื” ืžืื™ ืฉืืœ ืฉืชื™ ืคืจื•ืช ื•ืฉื™ืœื ืื—ืช ืžื”ืŸ ืžืื™ ืฉืืœ ืžืŸ ื”ืฉื•ืชืคื™ืŸ ื•ืฉื™ืœื ืœืื—ื“ ืžื”ืŸ ืžืื™ ืฉื•ืชืคื™ืŸ ืฉืฉืืœื• ื•ืฉื™ืœื ืื—ื“ ืžื”ืŸ ืžืื™ ืฉืืœ ืžืŸ ื”ืืฉื” ื•ืฉื™ืœื ืœื‘ืขืœื” ืžืื™ ืืฉื” ืฉืฉืืœื” ื•ืฉื™ืœื ื‘ืขืœื” ืžืื™ ืชื™ืงื•

The Gemara raises additional dilemmas: If the bailee paid half the value of the deposit before the thief was discovered, what is the halakha? If one borrowed two cows, and they were stolen, and he paid the value of one of them, what is the halakha? If one borrowed an item from partners, and he paid one of them, what is the halakha? In the case of partners who borrowed an item and one of them paid, what is the halakha? If one borrowed an item from a woman and paid her husband, what is the halakha? In the case of a woman who borrowed an item, and her husband paid, what is the halakha? The Gemara concludes: All of these dilemmas shall stand unresolved [teiku].

ืืžืจ ืจื‘ ื”ื•ื ื ืžืฉื‘ื™ืขื™ืŸ ืื•ืชื• ืฉื‘ื•ืขื” ืฉืื™ื ื” ื‘ืจืฉื•ืชื• ืžืื™ ื˜ืขืžื ื—ื™ื™ืฉื™ื ืŸ ืฉืžื ืขื™ื ื™ื• ื ืชืŸ ื‘ื”

ยง Rav Huna says: Even if the bailee declares his intention to pay for the deposit, the court administers an oath to him that the item was actually stolen or lost and is not in his possession. What is the reason for this oath? We are concerned that perhaps he coveted that item.

ืžื™ืชื™ื‘ื™ ื”ืžืœื•ื” ืืช ื—ื‘ื™ืจื• ืขืœ ื”ืžืฉื›ื•ืŸ ื•ืื‘ื“ ื”ืžืฉื›ื•ืŸ ื•ืืžืจ ืœื• ืกืœืข ื”ืœื•ื™ืชื™ืš ืขืœื™ื• ืฉืงืœ ื”ื™ื” ืฉื•ื” ื•ื”ืœื” ืื•ืžืจ ืœื ื›ื™ ืืœื ืกืœืข ื”ืœื•ื™ืชื ื™ ืขืœื™ื• ืกืœืข ื”ื™ื” ืฉื•ื” ืคื˜ื•ืจ

The Gemara raises an objection from a mishna (Shevuot 43a): In the case of one who lends money to another on the basis of collateral, and the collateral was lost, and the creditor says to the debtor: I loaned you a sela on the basis of that collateral and that collateral was worth a shekel, i.e., a half-sela. Therefore you owe me a shekel. And the other individual, the debtor, says in response to that claim: That is not the case. Rather, you loaned me a sela on the basis of that collateral, and the collateral was worth a sela; I owe you nothing. In this case, the debtor is exempt from payment.

ืกืœืข ื”ืœื•ื™ืชื™ืš ืขืœื™ื• ืฉืงืœ ื”ื™ื” ืฉื•ื” ื•ื”ืœื” ืื•ืžืจ ืœื ื›ื™ ืืœื ืกืœืข ื”ืœื•ื™ืชื ื™ ืขืœื™ื• ืฉืœืฉื” ื“ื™ื ืจื™ื ื”ื™ื” ืฉื•ื” ื—ื™ื™ื‘

The mishna continues: If the creditor claimed: I loaned you a sela on the basis of that collateral and it was worth a shekel. And the other individual, the debtor, says: That is not the case; rather, you loaned me a sela on the basis of that collateral and the collateral was worth three dinars, i.e., three-quarters of a sela. In this case, the debtor is obligated to take an oath, due to the fact that he responded to the claim of the creditor with a partial admission.

ืกืœืข ื”ืœื•ื™ืชื ื™ ืขืœื™ื• ืฉื ื™ื ื”ื™ื” ืฉื•ื” ื•ื”ืœื” ืื•ืžืจ ืœื ื›ื™ ืืœื ืกืœืข ื”ืœื•ื™ืชื™ืš ืขืœื™ื• ืกืœืข ื”ื™ื” ืฉื•ื” ืคื˜ื•ืจ

The mishna continues: If the debtor said: You loaned me a sela on the basis of that collateral and the collateral was worth two sela, so now you owe me a sela. And the other party, i.e., the creditor, said: That is not the case; rather, I loaned you a sela on the basis of that collateral and the collateral was worth a sela. Here, the creditor is exempt.

ืกืœืข ื”ืœื•ื™ืชื ื™ ืขืœื™ื• ืฉื ื™ื ื”ื™ื” ืฉื•ื” ื•ื”ืœื” ืื•ืžืจ ืœื ื›ื™ ืืœื ืกืœืข ื”ืœื•ื™ืชื™ืš ืขืœื™ื• ื—ืžืฉื” ื“ื™ื ืจื™ื ื”ื™ื” ืฉื•ื” ื—ื™ื™ื‘

If the debtor said: You loaned me a sela on the basis of that collateral and the collateral was worth two sela. And the other party, i.e., the creditor, said: That is not the case; rather, I loaned you a sela on the basis of that collateral and the collateral was worth five dinars. Here, the creditor is obligated to take an oath due to the fact that he responded to the claim of the debtor with a partial admission.

ืžื™ ื ืฉื‘ืข ืžื™ ืฉื”ืคืงื“ื•ืŸ ืืฆืœื• ืฉืžื ื™ืฉื‘ืข ื–ื” ื•ื™ื•ืฆื™ื ื”ืœื” ืืช ื”ืคืงื“ื•ืŸ

The mishna concludes: Who takes the oath? The one in whose possession the deposit was located, i.e., the creditor, who took collateral from the debtor. The Sages instituted this provision lest this party, i.e., the debtor, take an oath and the other party, i.e., the creditor, produce the deposit and prove the oath false.

ืื”ื™ื™ื ืื™ืœื™ืžื ืืกื™ืคื ื•ืชื™ืคื•ืง ืœื™ื” ื“ืฉื‘ื•ืขื” ื’ื‘ื™ ืžืœื•ื” ื”ื™ื ื“ื”ื ืงื ืžื•ื“ื™ ืžืงืฆืช ื”ื˜ืขื ื” ืืœื ืืžืจ ืฉืžื•ืืœ ืืจื™ืฉื

The Gemara seeks to clarify the mishna: To which case in the mishna is this halakha referring? If we say it is referring to the latter clause of the mishna, where the debtor claims that the creditor owes him money, the mishnaโ€™s explanation is unnecessary: Derive that the obligation to take the oath is incumbent upon the creditor due to the fact that he admits to part of the debtorโ€™s claim, which renders one obligated to take an oath by Torah law. Rather, Shmuel says: This halakha is referring to the first clause of the mishna.

ืžืื™ ืืจื™ืฉื ืืกื™ืคื ื“ืจื™ืฉื ืกืœืข ื”ืœื•ื™ืชื™ืš ืขืœื™ื• ืฉืงืœ ื”ื™ื” ืฉื•ื” ื•ื”ืœื” ืื•ืžืจ ืœื ื›ื™ ืืœื ืกืœืข ื”ืœื•ื™ืชื ื™ ืขืœื™ื• ืฉืœืฉื” ื“ื™ื ืจื™ืŸ ื”ื™ื” ืฉื•ื” ื—ื™ื™ื‘ ื“ืฉื‘ื•ืขื” ื’ื‘ื™ ืœื•ื” ื”ื•ื ื•ืืžื•ืจ ืจื‘ื ืŸ ืœืฉืชื‘ืข ืžืœื•ื” ืฉืžื ื™ืฉื‘ืข ื–ื” ื•ื™ื•ืฆื™ื ื”ืœื” ืืช ื”ืคืงื“ื•ืŸ

The Gemara clarifies further: What is the meaning of Shmuelโ€™s statement that this halakha is referring to the first clause of the mishna? It is referring to the latter part of the first clause: The creditor says: I loaned you a sela on the basis of that collateral and it was worth a shekel. And the other individual, the debtor, says: That is not the case; rather, you loaned me a sela on the basis of that collateral and the collateral was worth three dinars. Here, the halakha is that the debtor is obligated to take an oath. Fundamentally, the obligation to take the oath is that of the borrower, as he is the one who responds to the creditorโ€™s claim with a partial admission. But the Sages said: Let the creditor take the oath to bolster his claim, lest this party, the debtor, take an oath and the other party, the creditor, produce the deposit.

ื•ืื

After explaining this mishna from tractate Shevuot, the Gemara analyzes its connection to the statement of Rav Huna: But if

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Bava Metzia 34

The William Davidson Talmud | Powered by Sefaria

Bava Metzia 34

ืžื™ ื™ื™ืžืจ ื“ืžื’ื ื‘ื ื•ืื ืชืžืฆื™ ืœื•ืžืจ ื“ืžื’ื ื‘ื ืžื™ ื™ื™ืžืจ ื“ืžืฉืชื›ื— ื’ื ื‘ ื•ืื™ ืžืฉืชื›ื— ื’ื ื‘ ืžื™ ื™ื™ืžืจ ื“ืžืฉืœื ื“ืœืžื ืžื•ื“ื™ ื•ืžืคื˜ืจ ืืžืจ ืจื‘ื ื ืขืฉื” ื›ืื•ืžืจ ืœื• ืœื›ืฉืชื’ื ื‘ ื•ืชืจืฆื” ื•ืชืฉืœืžื ื™ ื”ืจื™ ืคืจืชื™ ืงื ื•ื™ื” ืœืš ืžืขื›ืฉื™ื•

who could say that the deposit will be stolen? And if you say it will be stolen, who could say that the thief will be found? And even if the thief will be found, who could say that he will pay the double payment? Perhaps he will confess and will be exempted from the double payment. Rava said in response: It is as though the owner said to the bailee at the time that he gave him the deposit: When it will be stolen, and you will wish to refrain from taking an oath, and you will pay me instead, ownership of my cow is hereby transferred to you from this time, and the cow is an entity that already came into the world. Since ownership of the cow is retroactively transferred to the bailee from the time of the deposit, any profits generated by the cow, e.g., the double payment, belong to the bailee.

ืžืชืงื™ืฃ ืœื” ืจื‘ื™ ื–ื™ืจื ืื™ ื”ื›ื™ ืืคื™ืœื• ื’ื™ื–ื•ืชื™ื” ื•ื•ืœื“ื•ืชื™ื” ื ืžื™ ืืœืžื” ืชื ื™ื ื—ื•ืฅ ืžื’ื™ื–ื•ืชื™ื” ื•ื•ืœื“ื•ืชื™ื” ืืœื ืืžืจ ืจื‘ื™ ื–ื™ืจื ื ืขืฉื” ื›ืื•ืžืจ ืœื• ื—ื•ืฅ ืžื’ื™ื–ื•ืชื™ื” ื•ื•ืœื“ื•ืชื™ื”

Rabbi Zeira objects to this: If so, then even the fleece and offspring of the animal that grew while it was in the baileeโ€™s possession should be the property of the bailee. Why, then, is it taught in a baraita that the bailee receives all profits generated by the animal except for its fleece and its offspring? Rather, Rabbi Zeira says that it is as though the owner said to the bailee: My animal is hereby transferred to you from this time except for its fleece and its offspring.

ื•ืžืื™ ืคืกืงื ืกืชืžื ื“ืžืœืชื ืฉื‘ื—ื ื“ืืชื ืžืขืœืžื ืขื‘ื™ื“ ืื™ื ื™ืฉ ื“ืžืงื ื™ ืฉื‘ื—ื ื“ืžื’ื•ืคื” ืœื ืขื‘ื™ื“ ืื™ื ื™ืฉ ื“ืžืงื ื™

The Gemara asks: If so, why was this halakha stated in the mishna without qualification? Does every owner necessarily have that condition in mind? The Gemara answers: Typically, profit that comes from elsewhere, e.g., the double payment from a thief, which is difficult to anticipate, a person is apt to transfer to the bailee. But profit that originates from the body of the animal, which can be anticipated, a person is not apt to transfer to the bailee.

ืื™ื›ื ื“ืืžืจื™ ืืžืจ ืจื‘ื ื ืขืฉื” ื›ืื•ืžืจ ืœื• ืœื›ืฉืชื’ื ื‘ ื•ืชืจืฆื” ื•ืชืฉืœืžื ื™ ืกืžื•ืš ืœื’ื ื™ื‘ืชื” ืงื ื•ื™ื” ืœืš ืžืื™ ื‘ื™ื ื™ื™ื”ื•

Some say that Rava says his response differently. It is as though the owner said to the bailee at the time of the deposit: When it will be stolen, and you will wish to refrain from taking an oath, and you will pay me instead, ownership of my animal is transferred to you adjacent to, i.e., immediately before, its theft. The Gemara asks: What is the difference between the formulations in Ravaโ€™s two responses?

ืื™ื›ื ื‘ื™ื ื™ื™ื”ื• ืงื•ืฉื™ื ื“ืจื‘ื™ ื–ื™ืจื ืื™ ื ืžื™ ื“ืงื™ื™ืžื ื‘ืื’ื

The Gemara answers: There is a difference between them with regard to the difficulty raised by Rabbi Zeira with regard to fleece and offspring, which is irrelevant according to the second formulation. Alternatively, there is a difference in a case where the animal is standing in a marsh [baโ€™agam] at the time of its theft. Since the animal was not on the baileeโ€™s property at that time, he could not acquire it.

ืฉื™ืœื ื•ืœื ืจืฆื” ืœื™ืฉื‘ืข [ื•ื›ื•ืณ] ืืžืจ ืจื‘ื™ ื—ื™ื™ื ื‘ืจ ืื‘ื ืืžืจ ืจื‘ื™ ื™ื•ื—ื ืŸ ืœื ืฉื™ืœื ืฉื™ืœื ืžืžืฉ ืืœื ื›ื™ื•ืŸ ืฉืืžืจ ื”ืจื™ื ื™ ืžืฉืœื ืืฃ ืขืœ ืคื™ ืฉืœื ืฉื™ืœื

ยง The mishna teaches that if the bailee paid the owner and did not wish to take an oath, the thief pays the double payment to the bailee. Rabbi แธคiyya bar Abba says that Rabbi Yoแธฅanan says: When the mishna says: If the bailee paid, it does not mean that he actually paid. Rather, once the bailee said: I hereby choose to pay, even if he did not yet actually pay, he acquired the double payment and all other profits.

ืชื ืŸ ืฉื™ืœื ื•ืœื ืจืฆื” ืœื™ืฉื‘ืข ืฉื™ืœื ืื™ืŸ ืœื ืฉื™ืœื ืœื ืื™ืžื ืกื™ืคื ื ืฉื‘ืข ื•ืœื ืจืฆื” ืœืฉืœื ื˜ืขืžื ื“ืœื ืจืฆื” ื”ื ืจืฆื” ืืฃ ืขืœ ืคื™ ืฉืœื ืฉื™ืœื ืืœื ืžื”ื ืœื™ื›ื ืœืžืฉืžืข ืžื™ื ื”

The Gemara raises an objection from that which we learned in the mishna: If the bailee paid the owner and did not wish to take an oath, the thief pays the double payment to the bailee. The Gemara infers: If the bailee paid, yes, he acquires these rights; if the bailee did not pay, he does not. The Gemara answers: Say the latter clause of the mishna: In the case of a bailee who took an oath and did not wish to pay, the thief pays the double payment to the owner. The Gemara infers: The reason that the thief pays the owner is that the bailee did not wish to pay. But if the bailee wished to pay, although he did not actually pay, he acquires the rights to the double payment. Rather, because the inference from the first clause and the inference from the latter clause are contradictory, no inference is to be learned from this mishna.

ืชื ื™ื ื›ื•ืชื™ื” ื“ืจื‘ื™ ื™ื•ื—ื ืŸ ื”ืฉื•ื›ืจ ืคืจื” ืžื—ื‘ื™ืจื• ื•ื ื’ื ื‘ื” ื•ืืžืจ ื”ืœื” ื”ืจื™ื ื™ ืžืฉืœื ื•ืื™ื ื™ ื ืฉื‘ืข ื•ืื—ืจ ื›ืš ื ืžืฆื ื”ื’ื ื‘ ืžืฉืœื ืชืฉืœื•ืžื™ ื›ืคืœ ืœืฉื•ื›ืจ

The Gemara notes: It is taught in a baraita in accordance with the opinion of Rabbi Yoแธฅanan: In the case of one who rents a cow from another, and it was stolen, and the other party, the renter, said: I hereby choose to pay and I will not take an oath, and the thief was located thereafter, the thief pays the double payment to the renter. Apparently, once the renter chooses to pay, he acquires the rights to the double payment.

ืืžืจ ืจื‘ ืคืคื ืฉื•ืžืจ ื—ื ื ื›ื™ื•ืŸ ืฉืืžืจ ืคืฉืขืชื™ ืžืงื ื” ืœื™ื” ื›ืคื™ืœื ื“ืื™ ื‘ืขื™ ืคื˜ืจ ื ืคืฉื™ื” ื‘ื’ื ื™ื‘ื” ืฉื•ืžืจ ืฉื›ืจ ื›ื™ื•ืŸ ืฉืืžืจ ื ื’ื ื‘ื” ืžืงื ื” ืœื™ื” ื›ืคื™ืœื ื“ืื™ ื‘ืขื™ ืคื˜ืจ ื ืคืฉื™ื” ื‘ืฉื‘ื•ืจื” ื•ืžืชื”

Rav Pappa says: In the case of an unpaid bailee, once he stated: I was negligent, thereby rendering himself liable to compensate the owner, the owner transfers rights to the double payment to him, as, if the unpaid bailee wishes, he can exempt himself from that liability with the claim of theft. Admitting negligence is tantamount to agreeing to pay rather than taking an oath. Likewise, in the case of a paid bailee, once he stated: It was stolen, the owner transfers rights to the double payment to him, as, if the paid bailee wishes, he can exempt himself from that liability with the claim that the animal was maimed or died due to circumstances beyond his control.

ืฉื•ืืœ ืฉืื•ืžืจ ื”ืจื™ื ื™ ืžืฉืœื ืœื ืžืงื ื™ ืœื™ื” ื›ืคื™ืœื ื‘ืžืื™ ื”ื•ื” ืœื™ื” ืœืžืคื˜ืจ ื ืคืฉื™ื” ื‘ืžืชื” ืžื—ืžืช ืžืœืื›ื” ืžืชื” ืžื—ืžืช ืžืœืื›ื” ืœื ืฉื›ื™ื—

By contrast, in the case of a borrower who says: I hereby choose to pay, the owner does not transfer the rights to the double payment to him. The borrowerโ€™s statement that he chooses to pay is ineffectual, as he is liable to pay even without it. Because the statement is ineffectual, it does not confer any rights. With what claim would a borrower be able to exempt himself from payment? It is only with the claim that the animal died due to ordinary labor. A case of an animal that died due to ordinary labor is uncommon, and this claim is therefore accepted only with corroborating proof.

ืื™ื›ื ื“ืืžืจื™ ืืžืจ ืจื‘ ืคืคื ืฉื•ืืœ ื ืžื™ ื›ื™ื•ืŸ ืฉืืžืจ ื”ืจื™ื ื™ ืžืฉืœื ืžืงื ื™ ืœื™ื” ื›ืคื™ืœื ื“ืื™ ื‘ืขื™ ืคื˜ืจ ื ืคืฉื™ื” ื‘ืžืชื” ืžื—ืžืช ืžืœืื›ื” ืืžืจ ืœื™ื” ืจื‘ ื–ื‘ื™ื“ ื”ื›ื™ ืืžืจ ืื‘ื™ื™ ืฉื•ืืœ ืขื“ ืฉื™ืฉืœื ืžืื™ ื˜ืขืžื ื”ื•ืื™ืœ ื•ื›ืœ ื”ื ืื” ืฉืœื• ื‘ื“ื™ื‘ื•ืจื ืœื ืžืงื ื™ ืœื™ื” ื›ืคื™ืœื

Some say that Rav Pappa said: In the case of a borrower, once he stated: I hereby choose to pay, the owner transfers rights to the double payment to him, as, if a borrower wishes, he can exempt himself from that liability with the claim that the animal died due to ordinary labor. Rav Zevid said to him that this is what Abaye said: A borrower acquires the rights to the double payment only when he actually pays for the item. What is the reason for this? Since all of the benefit accrues to the borrower, as he enjoys the use of the item without payment, the owner does not transfer the rights to the double payment to the borrower due to his statement that he chooses to pay.

ืชื ื™ื ื›ื•ื•ืชื™ื” ื“ืจื‘ ื–ื‘ื™ื“ ื”ืฉื•ืืœ ืคืจื” ืžื—ื‘ื™ืจื• ื•ื ื’ื ื‘ื” ื•ืงื™ื“ื ื”ืฉื•ืืœ ื•ืฉื™ืœื ื•ืื—ืจ ื›ืš ื ืžืฆื ื”ื’ื ื‘ ืžืฉืœื ืชืฉืœื•ืžื™ ื›ืคืœ ืœืฉื•ืืœ

The Gemara notes: It is taught in a baraita in accordance with the opinion of Rav Zevid: In the case of one who borrows a cow from another, and it was stolen, and the borrower went ahead and paid, and the thief was located thereafter, the thief pays the double payment to the borrower. This indicates that the borrower receives the double payment only if he actually paid the owner for the item.

ืœืœื™ืฉื ื ืงืžื ื“ืจื‘ ืคืคื ื•ื“ืื™ ืœื ื”ื•ื™ื ืชื™ื•ื‘ืชื ืœืœื™ืฉื ื ื‘ืชืจื ืœื™ืžื ืชื™ื”ื•ื™ ืชื™ื•ื‘ืชื™ื”

The Gemara comments: According to the first version of the statement of Rav Pappa, that the owner transfers rights to the double payment to the borrower only if he actually pays the owner, this baraita certainly is not a conclusive refutation [teyuvta] of the opinion of Rav Pappa, as the baraita corresponds to his opinion. According to the latter version of Rav Pappaโ€™s statement, that the owner transfers rights to the double payment to the borrower even if the borrower merely says that he chooses to pay, shall we say that this baraita would be a conclusive refutation of the opinion of Rav Pappa?

ืืžืจ ืœืš ืจื‘ ืคืคื ืžื™ ืืœื™ืžื ืžืžืชื ื™ืชื™ืŸ ื“ืงืชื ื™ ืฉื™ืœื ื•ืื•ืงื™ืžื ื ื‘ืืžืจ ื”ื›ื ื ืžื™ ื‘ืืžืจ

The Gemara answers: Rav Pappa could have said to you: Is the baraita stronger than the mishna, which teaches that the bailee receives the double payment if he already paid the owner, and nevertheless, we established that the mishna is referring to one who states his intent to pay but has not yet paid? Here, too, establish the baraita as referring to one who states his intent to pay but has not yet paid.

ืžื™ ื“ืžื™ ื”ืชื ืœื ืงืชื ื™ ืงื™ื“ื ื”ื›ื ืงืชื ื™ ืงื™ื“ื ืžืื™ ืงื™ื“ื ืงื™ื“ื ื•ืืžืจ

The Gemara questions this: Are these cases comparable? There, in the mishna, it is not taught that he went ahead and paid. Here, in the baraita, it is taught that he went ahead and paid, which indicates that he actually paid and not merely that he agreed to pay. The Gemara responds: What is the meaning of went ahead? It means that he went ahead and stated his intent to pay, although he did not yet actually pay.

ื”ื ืžื“ืงืชื ื™ ื’ื‘ื™ ืฉื•ื›ืจ ื•ืืžืจ ื•ื’ื‘ื™ ืฉื•ืืœ ืงื™ื“ื ืฉืžืข ืžื™ื ื” ื“ื•ืงื ืงืชื ื™ ืžื™ื“ื™ ื’ื‘ื™ ื”ื“ื“ื™ ืชื ื™ื

The Gemara asks: But from the fact that the tanna teaches the halakha in the baraita cited earlier with regard to a renter with the formulation: And he said that he would pay, and in the baraita with regard to a borrower the tanna uses the formulation: Went ahead, conclude from it that the baraita concerning a borrower is teaching specifically that he actually paid. The Gemara rejects this proof: Are these two baraitot taught together so that one can draw a conclusion based on a discrepancy in their formulation? Perhaps the baraitot are unrelated and are simply formulated in different styles.

ืฉื™ื™ืœื™ื ื”ื• ืœืชื ืื™ ื“ื‘ื™ ืจื‘ื™ ื—ื™ื™ื ื•ื“ื‘ื™ ืจื‘ื™ ืื•ืฉืขื™ื ื•ืืžืจื™ ื’ื‘ื™ ื”ื“ื“ื™ ืชื ื™ื™ืŸ

The Gemara comments: The Sages asked the tannaโ€™im of the school of Rabbi แธคiyya and Rabbi Oshaya, experts in mishnayot and baraitot, if these baraitot were formulated together. And they said that the baraitot were taught together as one long baraita, and therefore one can draw a conclusion based on a discrepancy in their formulation.

ืคืฉื™ื˜ื ืืžืจ ืื™ื ื™ ืžืฉืœื ื•ื—ื–ืจ ื•ืืžืจ ื”ืจื™ื ื™ ืžืฉืœื ื”ื ืงืืžืจ ื”ืจื™ื ื™ ืžืฉืœื ืืœื ืืžืจ ื”ืจื™ื ื™ ืžืฉืœื

ยง The Gemara comments that it is obvious that if the bailee initially said: I will not pay, and then said: I hereby choose to pay rather than taking an oath, he is entitled to the double payment, as didnโ€™t he ultimately say: I hereby choose to pay? The Gemara raises a dilemma: But if he initially said: I hereby choose to pay,

ื•ื—ื–ืจ ื•ืืžืจ ืื™ื ื™ ืžืฉืœื ืžืื™ ืžื™ ืืžืจื™ื ืŸ ืžื”ื“ืจ ืงื ื”ื“ืจ ื‘ื™ื” ืื• ื“ืœืžื ื‘ืžืœืชื™ื” ืงืื™ ื•ื“ื—ื•ื™ื™ ื”ื•ื ื“ืงื ืžื“ื—ื™ ืœื™ื”

and then said: I will not pay, what is the halakha? Do we say he is retracting his intention to pay and therefore has no right to the double payment? Or, perhaps he stands committed to his initial statement and is merely postponing payment to a later date, in which case he maintains rights to the double payment.

ืืžืจ ื”ืจื™ื ื™ ืžืฉืœื ื•ืžืช ื•ืืžืจื• ื‘ื ื™ื• ืื™ืŸ ืื ื• ืžืฉืœืžื™ืŸ ืžืื™ ืžื™ ืืžืจื™ื ืŸ ืžื”ื“ืจ ืงื ื”ื“ืจื™ ื‘ื”ื• ืื• ื“ืœืžื ื‘ืžืœืชื ื“ืื‘ื•ื”ื•ืŸ ืงื™ื™ืžื™ ื•ื“ื—ื•ื™ื™ ื”ื•ื ื“ืงื ืžื“ื—ื• ืœื™ื”

The Gemara raises another dilemma. If the bailee said: I hereby choose to pay, and then he died before paying, and his sons said: We are not paying, what is the halakha? Do we say they are retracting their fatherโ€™s decision to pay, or perhaps they stand committed to fulfilling their fatherโ€™s statement and are merely postponing payment to a later date when they will be able to pay?

ืฉืœืžื• ื‘ื ื™ื ืžืื™ ืžืฆื™ ืืžืจ ืœื”ื• ื›ื™ ืืงื ืื™ ื›ืคื™ืœื ืœืื‘ื•ื›ื•ืŸ ื“ืขื‘ื“ ืœื™ ื ื™ื™ื— ื ืคืฉืื™ ืœื“ื™ื“ื›ื• ืœื ืื• ื“ืœืžื ืœื ืฉื ื

The Gemara raises another dilemma. If the father died before he declared his willingness to pay and the sons paid, what is the halakha? Can the owner say to them: When I transferred rights to the double payment, I transferred them to your father, who pleased me, but to you, I did not transfer those rights? Or perhaps this case is no different, and the owner transfers rights to the double payment provided that he receives payment, and it does not matter whether it was the bailee or his sons who paid him.

ืฉื™ืœื ืœื‘ื ื™ื ืžืื™ ืžืฆื• ืืžืจื™ ืœื™ื” ื›ื™ ืืงื ื™ ืœืš ืื‘ื•ื ื ื›ืคื™ืœื ื“ืขื‘ื“ืช ืœื™ื” ื ื™ื™ื— ื ืคืฉื™ื” ืื‘ืœ ืื ืŸ ืœื“ื™ื“ืŸ ืœื ืื• ื“ืœืžื ืœื ืฉื ื ืฉืœืžื• ื‘ื ื™ื ืœื‘ื ื™ื ืžืื™

If the owner of the deposit died and the bailee paid the payment to the ownerโ€™s sons, what is the halakha? Can the sons say to the bailee: When our father transferred rights to the double payment to you, it was because you pleased him, but as far as we are concerned, you did not please us? Or perhaps it is no different, and the bailee receives the double payment. Likewise, if both the owner and the bailee died, and sons of the bailee paid the sons of the owner, what is the halakha?

ืฉื™ืœื ืžื—ืฆื” ืžืื™ ืฉืืœ ืฉืชื™ ืคืจื•ืช ื•ืฉื™ืœื ืื—ืช ืžื”ืŸ ืžืื™ ืฉืืœ ืžืŸ ื”ืฉื•ืชืคื™ืŸ ื•ืฉื™ืœื ืœืื—ื“ ืžื”ืŸ ืžืื™ ืฉื•ืชืคื™ืŸ ืฉืฉืืœื• ื•ืฉื™ืœื ืื—ื“ ืžื”ืŸ ืžืื™ ืฉืืœ ืžืŸ ื”ืืฉื” ื•ืฉื™ืœื ืœื‘ืขืœื” ืžืื™ ืืฉื” ืฉืฉืืœื” ื•ืฉื™ืœื ื‘ืขืœื” ืžืื™ ืชื™ืงื•

The Gemara raises additional dilemmas: If the bailee paid half the value of the deposit before the thief was discovered, what is the halakha? If one borrowed two cows, and they were stolen, and he paid the value of one of them, what is the halakha? If one borrowed an item from partners, and he paid one of them, what is the halakha? In the case of partners who borrowed an item and one of them paid, what is the halakha? If one borrowed an item from a woman and paid her husband, what is the halakha? In the case of a woman who borrowed an item, and her husband paid, what is the halakha? The Gemara concludes: All of these dilemmas shall stand unresolved [teiku].

ืืžืจ ืจื‘ ื”ื•ื ื ืžืฉื‘ื™ืขื™ืŸ ืื•ืชื• ืฉื‘ื•ืขื” ืฉืื™ื ื” ื‘ืจืฉื•ืชื• ืžืื™ ื˜ืขืžื ื—ื™ื™ืฉื™ื ืŸ ืฉืžื ืขื™ื ื™ื• ื ืชืŸ ื‘ื”

ยง Rav Huna says: Even if the bailee declares his intention to pay for the deposit, the court administers an oath to him that the item was actually stolen or lost and is not in his possession. What is the reason for this oath? We are concerned that perhaps he coveted that item.

ืžื™ืชื™ื‘ื™ ื”ืžืœื•ื” ืืช ื—ื‘ื™ืจื• ืขืœ ื”ืžืฉื›ื•ืŸ ื•ืื‘ื“ ื”ืžืฉื›ื•ืŸ ื•ืืžืจ ืœื• ืกืœืข ื”ืœื•ื™ืชื™ืš ืขืœื™ื• ืฉืงืœ ื”ื™ื” ืฉื•ื” ื•ื”ืœื” ืื•ืžืจ ืœื ื›ื™ ืืœื ืกืœืข ื”ืœื•ื™ืชื ื™ ืขืœื™ื• ืกืœืข ื”ื™ื” ืฉื•ื” ืคื˜ื•ืจ

The Gemara raises an objection from a mishna (Shevuot 43a): In the case of one who lends money to another on the basis of collateral, and the collateral was lost, and the creditor says to the debtor: I loaned you a sela on the basis of that collateral and that collateral was worth a shekel, i.e., a half-sela. Therefore you owe me a shekel. And the other individual, the debtor, says in response to that claim: That is not the case. Rather, you loaned me a sela on the basis of that collateral, and the collateral was worth a sela; I owe you nothing. In this case, the debtor is exempt from payment.

ืกืœืข ื”ืœื•ื™ืชื™ืš ืขืœื™ื• ืฉืงืœ ื”ื™ื” ืฉื•ื” ื•ื”ืœื” ืื•ืžืจ ืœื ื›ื™ ืืœื ืกืœืข ื”ืœื•ื™ืชื ื™ ืขืœื™ื• ืฉืœืฉื” ื“ื™ื ืจื™ื ื”ื™ื” ืฉื•ื” ื—ื™ื™ื‘

The mishna continues: If the creditor claimed: I loaned you a sela on the basis of that collateral and it was worth a shekel. And the other individual, the debtor, says: That is not the case; rather, you loaned me a sela on the basis of that collateral and the collateral was worth three dinars, i.e., three-quarters of a sela. In this case, the debtor is obligated to take an oath, due to the fact that he responded to the claim of the creditor with a partial admission.

ืกืœืข ื”ืœื•ื™ืชื ื™ ืขืœื™ื• ืฉื ื™ื ื”ื™ื” ืฉื•ื” ื•ื”ืœื” ืื•ืžืจ ืœื ื›ื™ ืืœื ืกืœืข ื”ืœื•ื™ืชื™ืš ืขืœื™ื• ืกืœืข ื”ื™ื” ืฉื•ื” ืคื˜ื•ืจ

The mishna continues: If the debtor said: You loaned me a sela on the basis of that collateral and the collateral was worth two sela, so now you owe me a sela. And the other party, i.e., the creditor, said: That is not the case; rather, I loaned you a sela on the basis of that collateral and the collateral was worth a sela. Here, the creditor is exempt.

ืกืœืข ื”ืœื•ื™ืชื ื™ ืขืœื™ื• ืฉื ื™ื ื”ื™ื” ืฉื•ื” ื•ื”ืœื” ืื•ืžืจ ืœื ื›ื™ ืืœื ืกืœืข ื”ืœื•ื™ืชื™ืš ืขืœื™ื• ื—ืžืฉื” ื“ื™ื ืจื™ื ื”ื™ื” ืฉื•ื” ื—ื™ื™ื‘

If the debtor said: You loaned me a sela on the basis of that collateral and the collateral was worth two sela. And the other party, i.e., the creditor, said: That is not the case; rather, I loaned you a sela on the basis of that collateral and the collateral was worth five dinars. Here, the creditor is obligated to take an oath due to the fact that he responded to the claim of the debtor with a partial admission.

ืžื™ ื ืฉื‘ืข ืžื™ ืฉื”ืคืงื“ื•ืŸ ืืฆืœื• ืฉืžื ื™ืฉื‘ืข ื–ื” ื•ื™ื•ืฆื™ื ื”ืœื” ืืช ื”ืคืงื“ื•ืŸ

The mishna concludes: Who takes the oath? The one in whose possession the deposit was located, i.e., the creditor, who took collateral from the debtor. The Sages instituted this provision lest this party, i.e., the debtor, take an oath and the other party, i.e., the creditor, produce the deposit and prove the oath false.

ืื”ื™ื™ื ืื™ืœื™ืžื ืืกื™ืคื ื•ืชื™ืคื•ืง ืœื™ื” ื“ืฉื‘ื•ืขื” ื’ื‘ื™ ืžืœื•ื” ื”ื™ื ื“ื”ื ืงื ืžื•ื“ื™ ืžืงืฆืช ื”ื˜ืขื ื” ืืœื ืืžืจ ืฉืžื•ืืœ ืืจื™ืฉื

The Gemara seeks to clarify the mishna: To which case in the mishna is this halakha referring? If we say it is referring to the latter clause of the mishna, where the debtor claims that the creditor owes him money, the mishnaโ€™s explanation is unnecessary: Derive that the obligation to take the oath is incumbent upon the creditor due to the fact that he admits to part of the debtorโ€™s claim, which renders one obligated to take an oath by Torah law. Rather, Shmuel says: This halakha is referring to the first clause of the mishna.

ืžืื™ ืืจื™ืฉื ืืกื™ืคื ื“ืจื™ืฉื ืกืœืข ื”ืœื•ื™ืชื™ืš ืขืœื™ื• ืฉืงืœ ื”ื™ื” ืฉื•ื” ื•ื”ืœื” ืื•ืžืจ ืœื ื›ื™ ืืœื ืกืœืข ื”ืœื•ื™ืชื ื™ ืขืœื™ื• ืฉืœืฉื” ื“ื™ื ืจื™ืŸ ื”ื™ื” ืฉื•ื” ื—ื™ื™ื‘ ื“ืฉื‘ื•ืขื” ื’ื‘ื™ ืœื•ื” ื”ื•ื ื•ืืžื•ืจ ืจื‘ื ืŸ ืœืฉืชื‘ืข ืžืœื•ื” ืฉืžื ื™ืฉื‘ืข ื–ื” ื•ื™ื•ืฆื™ื ื”ืœื” ืืช ื”ืคืงื“ื•ืŸ

The Gemara clarifies further: What is the meaning of Shmuelโ€™s statement that this halakha is referring to the first clause of the mishna? It is referring to the latter part of the first clause: The creditor says: I loaned you a sela on the basis of that collateral and it was worth a shekel. And the other individual, the debtor, says: That is not the case; rather, you loaned me a sela on the basis of that collateral and the collateral was worth three dinars. Here, the halakha is that the debtor is obligated to take an oath. Fundamentally, the obligation to take the oath is that of the borrower, as he is the one who responds to the creditorโ€™s claim with a partial admission. But the Sages said: Let the creditor take the oath to bolster his claim, lest this party, the debtor, take an oath and the other party, the creditor, produce the deposit.

ื•ืื

After explaining this mishna from tractate Shevuot, the Gemara analyzes its connection to the statement of Rav Huna: But if

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