Commentary for Bava Kamma 113:17

איתיביה

for R. Eleazar said: In all cases notification must be given to the owner, with the exception, however, of returning a lost article, as the Torah uses in this connection many expressions of returning.<span class="x" onmousemove="('comment',' By doubling the verb 'in return', [H] ');">¹⁵</span> Said Abaye to R. Joseph: Do you really not accept the view that a person minding a lost article [which he has found] is like an unpaid bailee? Did R. Hiyya b. Abba not say that R. Johanan stated that if a man puts forward a plea of theft [to account for the absence of] an article [which had been found by him] he might have to make double payment?<span class="x" onmousemove="('comment',' If his false defence of theft has already been corroborated by all oath, v. infra 63a; 106b. ');">¹⁶</span> Now, if you assume that [the person minding the lost article] is like a paid bailee, why should he have to refund double [seeing that] he has to return the principal?<span class="x" onmousemove="('comment',' For in his case the plea of an alleged theft would not be a defence but an admission of liability, and no oath would usually be taken to corroborate it. Moreover, the paid bailee could in such circumstances not be required to pay double even after it was found out that he himself had misappropriated the article in his charge. ');">¹⁷</span> — He replied:<span class="x" onmousemove="('comment',' I.e. R. Joseph to Abaye. ');">¹⁸</span> We are dealing here with a case where, for instance, he pleads [that it was taken] by all armed malefactor.<span class="x" onmousemove="('comment',' [G], 'a rover'. This case is a mere accident as the bailee is not to blame and would not have to pay the principal; this plea would therefore be not an admission of liability but a defence, and if substantiated by a false oath he would have to pay double. ');">¹⁹</span> But, he rejoined:<span class="x" onmousemove="('comment',' I.e. Abaye to R. Joseph. ');">²⁰</span> All armed malefactor is surely considered a robber?<span class="x" onmousemove="('comment',' And if traced would have to pay the principal and not make double payment (v. infra). The bailee making use of such a defence should therefore never have to pay double, as his plea was not an alleged theft but an alleged robbery. ');">²¹</span> — He replied:<span class="x" onmousemove="('comment',' I.e. R. Joseph to Abaye. ');">¹⁸</span> I hold that an armed malefactor, having regard to the fact that he hides himself from the public, is considered a thief.<span class="x" onmousemove="('comment',' And would therefore have to pay double when traced. The bailee by submitting such a defence and substantiating it by a false oath should similarly be liable to double payment as his defence was a plea of theft, although had it been true, he would not have to pay even the principal, because the case of an armed malefactor is one of accident, v. note 5. ');">²²</span> He<span class="x" onmousemove="('comment',' I.E., Abaye. ');">²³</span> brought a [further] objection [from the following]:

Explore commentary for Bava Kamma 113:17. In-depth commentary and analysis from classical Jewish sources.