Commentary for Bava Metzia 66:14

אבל הכא

<b><i>MISHNAH</i></b>. IF A MAN ENTRUSTS AN ANIMAL OR UTENSILS TO HIS NEIGHBOUR, AND THEY ARE STOLEN OR LOST, AND HE [THE BAILEE] PAYS [FOR THEM], DECLINING TO SWEAR (SINCE IT WAS RULED THAT A GRATUITOUS BAILEE MAY SWEAR AND BE QUIT); THE THIEF, IF HE IS FOUND, MUST RENDER DOUBLE, AND IF HE HAS SLAUGHTERED OR SOLD [THE ANIMAL], HE MUST REPAY FOURFOLD OR FIVEFOLD.<span class="x" onmousemove="('comment',' In accordance with Ex. XXI, 37. ');">¹²</span> TO WHOM MUST HE PAY IT? TO HIM WITH WHOM THE BAILMENT WAS DEPOSITED.<span class="x" onmousemove="('comment',' I.e., the bailee: since he paid for the bailment, all rights thereof vest in him; hence the thief must make restitution to him. ');">¹³</span> IF HE SWEARS, NOT WISHING TO PAY, THE THIEF, IF FOUND, MUST REPAY DOUBLE, AND IF HE HAS SLAUGHTERED OR SOLD [THE ANIMAL], MUST REPAY FOURFOLD OR FIVEFOLD. TO WHOM MUST HE PAY IT? TO THE BAILOR. <b><i>GEMARA</i></b>. Why must he state both ANIMAL and UTENSILS? — They are necessary. For if ANIMAL [alone] were stated, I might have said that only in the case of an animal does he [the bailor] make over the double repayment to him,<span class="x" onmousemove="('comment',' When he receives payment for his bailment. ');">¹⁴</span> because it requires considerable attention, to be led in and out [of its stable]. But as for utensils, which do not require much attention, I might think that he does not make over the twofold repayment to him.<span class="x" onmousemove="('comment',' It should be observed that the double payment is not regarded as becoming the bailee's automatically on account of the compensation he makes. That is because the liability is incurred on account of the theft, and the animal then belonged to the bailor. ');">¹⁵</span> And if UTENSILS [alone] were stated, I might have argued that only in the case of utensils does he [the bailor] make over the twofold repayment to him, because their multiplication is not great.<span class="x" onmousemove="('comment',' The thief can never be required to pay more than twofold. ');">¹⁶</span> But in the case of an animal, for which, if slaughtered or sold, he [the thief] must repay fourfold or fivefold, I might think that he [the bailor] does not make over the multiplied principal to him. Hence both are necessary. Rami b. Hama objected: But one cannot transfer that which is non-existent!<span class="x" onmousemove="('comment',' Lit., 'which has not come into the world.' — How then can the bailor make over the twofold repayment to the bailee? ');">¹⁷</span> And even according to R. Meir, who maintained, One can transfer that which is non-existent, — that is only in the case of, e.g.. the fruit of a palm tree, which will naturally come [into existence].<span class="x" onmousemove="('comment',' Hence we can sell his future crop. ');">¹⁸</span> But here,

Rashi on Bava Metzia