Bava Kamma 216

הא נשבע אע"פ ששילם למי משלם לבעל הפקדון

but where he did take an oath, even though he subsequently paid, the thief would surely have to pay the owner of the deposit; but Raba deduces his ruling from the concluding clause where it was stated: 'But if the bailee took an oath [to defend himself] rather than pay&nbsp;…', this is so only where he was not willing to pay, but where he did pay even though he first denied the claim on oath, the thief would of course have to pay him with whom the deposit was in charge. Does not the implication of the concluding clause contradict the view of Abaye? — Abaye would say to you: What it means to say is this: 'If the bailee swore rather than pay before having taken the oath, though he did so after he took the oath, to whom will the thief pay? To the owner of the deposit.' But does not the implication of the commencing clause contradict the view of Raba? — Raba could say to you that the meaning is this: 'If the bailee paid, as he was not willing to take his stand upon his oath and consequently paid, to whom should the thief pay? To him with whom the deposit was in charge. Suppose the owner had claimed [his deposit] from the bailee, and the latter denied upon oath, and the actual thief was then identified and the bailee demanded payment from him and he confessed the theft, but when the owner [of the deposit] demanded payment from him he denied it and witnesses were brought, did the thief become exempt<span class="x" onmousemove="('comment',' From paying the fine. ');">¹</span>

רבא דייק מסיפא נשבע ולא רצה לשלם טעמא דלא רצה לשלם הא שילם אע"פ שנשבע למי משלם למי שהפקדון אצלו

through his confession to the bailee,<span class="x" onmousemove="('comment',' In accordance with supra p. 427. ');">²</span> or did the thief not become exempt<span class="x" onmousemove="('comment',' From paying the fine. ');">¹</span>

לאביי קשיא סיפא אמר לך אביי הכי קתני נשבע ולא רצה לשלם קודם השבועה אלא לאחר השבועה למי משלם לבעל הפקדון לרבא קשיא רישא אמר לך רבא הכי קתני שילם ולא רצה לעמוד בשבועתו אלא שילם למי משלם למי שהפקדון אצלו

through his confession to the bailee?<span class="x" onmousemove="('comment',' The problem is whether the bailee had an implied mandate to approach the thief or not, as a confession made not to the plaintiff or his authorised agent but to a third party uninterested in the matter is of no avail to exempt from the fine; cf. however the case of R. Gamaliel and his slave Tabi, supra p. 428. ');">³</span> — Said Raba: If the oath [taken by the bailee] was true, the thief would become exempt through his confession to the bailee,<span class="x" onmousemove="('comment',' As in this case the trust in the bailee has not been impaired and the implied mandate not cancelled. ');">⁴</span>

תבעוהו בעלים לשומר ונשבע והוכר הגנב תבעו שומר והודה תבעוהו בעלים וכפר והביאו עדים מי נפטר הגנב בהודאת שומר או לא נפטר הגנב בהודאת שומר

but if he perjured himself in the oath<span class="x" onmousemove="('comment',' I.e., he advanced another defence, e.g., accidental death. ');">⁵</span> the thief would not become exempt through his confession to the bailee.<span class="x" onmousemove="('comment',' Who could no longer be trusted and thus had no right to represent the depositor any more. ');">⁶</span>

אמר רבא אם באמת נשבע נפטר הגנב בהודאת שומר אם בשקר נשבע לא נפטר הגנב בהודאת שומר

But Raba asked: What would be the law where the bailee was prepared to swear falsely but [it so happened that for some reason or other] he was not allowed to do so?<span class="x" onmousemove="('comment',' Has the trust in him thereby been impaired or not? ');">⁷</span> — This must remain undecided. But while R. Kahana was stating the text thus, R. Tabyomi was reading it as follows: 'Rab asked: What would be the law where the bailee has sworn falsely [to defend himself]?'<span class="x" onmousemove="('comment',' Shall it be said that though he had already sworn inaccurately he would sooner or later have been compelled by his conscience to make restoration, as he in fact exerted himself to look for the thief and should therefore still retain the trust reposed in him, especially since the article had really been stolen though he advanced for some reason another plea; R. Tabyomi had thus not read the concluding clause in the definite statement made above by Raba. ');">⁸</span>

בעי רבא עמד לישבע בשקר ולא הניחוהו מהו תיקו רב כהנא מתני הכי רב טביומי מתני בעי רבא נשבע לשקר מהו תיקו

— This must stand undecided. Suppose the owner claimed [his deposit] from the bailee who thereupon paid him, and the thief was then identified and when the owner demanded payment from him he confessed, whereas when the bailee demanded payment from him he denied it, and witnesses appeared [against him], should the thief become exempt<span class="x" onmousemove="('comment',' V. p. 632. n. 1. ');">⁹</span>

תבעוהו בעלים לשומר ושילם והוכר הגנב תבעוהו בעלים והודה תבעו שומר וכפר והביא עדים נפטר גנב בהודאת בעלים או לא

through his confession to the owner or not? Shall we maintain that the bailee is entitled to say to the owner: 'Since you have received the value [of your deposit] your interest has completely lapsed<span class="x" onmousemove="('comment',' Lit., 'removed'. ');">¹⁰</span> in this matter', or can the owner say to him: 'Just as you did us a favour,<span class="x" onmousemove="('comment',' By paying us for the deposit and not resisting our claim. ');">¹¹</span>

מי אמרינן מצי אמר ליה שומר לבעלים אתון כיון דשקליתו לכו דמי אסתליקתו לכו מהכא או דלמא מצי אמרי ליה כי היכי דאת עבדת לן מילתא אנן נמי עבדינן לך טרחינן בתר גנבא שקלנא אנן דידן ושקול את דידך תיקו

we also are willing to do you the same and are therefore hunting after the thief. Let us take back what belonged to us and you receive back what belonged to you'? — This must stand undecided. It was taught:<span class="x" onmousemove="('comment',' Cf. B.M. 93b. ');">¹²</span>

אתמר נגנבה באונס והוכר הגנב אמר אביי אם שומר חנם הוא רצה עושה עמו דין רצה נשבע אם שומר שכר הוא עושה עמו דין ואינו נשבע רבא אמר אחד זה ואחד זה עושה עמו דין ואינו נשבע

Where the deposit was stolen through violence<span class="x" onmousemove="('comment',' By an armed robber; v. supra, 57a. ');">¹³</span> and the thief was identified, Abaye said that if the bailee was unpaid he has the option of going to law with him,<span class="x" onmousemove="('comment',' I.e. the thief. ');">¹⁴</span>

לימא פליגא אדרב הונא בר אבין דשלח רב הונא בר אבין נגנבה באונס והוכר הגנב אם שומר חנם הוא רצה עושה עמו דין רצה נשבע ואם שומר שכר הוא עושה עמו דין ואינו נשבע

or of [clearing himself by] an oath [so that the owner will himself have to deal with the thief], whereas if it was a paid bailee he would have to go to law with the thief and he cannot take an oath to discharge his liability.<span class="x" onmousemove="('comment',' For since he was paid, though he is exempt in the case of theft by violence, it is nevertheless his duty to take the trouble to litigate with the thief, since the thief is identified. ');">¹⁵</span> But Raba said: Whichever he is<span class="x" onmousemove="('comment',' I.e., unpaid as well as paid. ');">¹⁶</span>

אמר לך רבא הכא במאי עסקינן כגון שקדם ונשבע והא רצה עושה עמו דין רצה נשבע קאמר הכי קאמר רצה שומר חנם עומד בשבועתו רצה עושה עמו דין

he would have to go to law with the thief and not take an oath. May we say that Raba differs from the view of R. Huna b. Abin, for R. Huna b. Abin sent word that where the deposit was stolen by violence and the thief was identified, if the bailee was unpaid he had the option of going to law with him or of [clearing himself by] an oath, whereas if he was a paid bailee he would have to go to law with the thief and could not clear himself by an oath?<span class="x" onmousemove="('comment',' B.M. 93b. ');">¹⁷</span> — Raba could say to you that [in this last ruling] we are dealing with a case where the paid bailee took the oath before [the thief was identified].<span class="x" onmousemove="('comment',' In which case the depositor will himself have to deal with the case. ');">¹⁸</span>

רבה זוטי בעי לה הכי נגנבה באונס והחזיר גנב בבית שומר ומתה בפשיעה מהו מי אמרינן כיון דנגנבה באונס כליא ליה שמירתו או דלמא כיון דהדרה הדרה לשמירתו תיקו:

But did R. Huna not say: 'He had the option of going to law or of clearing himself by an oath'?<span class="x" onmousemove="('comment',' Which makes it clear that the oath has not yet been taken. ');">¹⁹</span> — What he meant was this: 'The unpaid bailee had the choice of taking his stand on his oath<span class="x" onmousemove="('comment',' 'Already taken by him. ');">²⁰</span>

<big><strong>מתני׳</strong></big> היכן פקדוני אמר לו אבד משביעך אני ואמר אמן והעדים מעידים אותו שאכלו משלם קרן [הודה מעצמו משלם קרן וחומש ואשם]

or of going to law with him.' Rabbah Zuti asked thus: Where the deposited animal was stolen by violence and the thief restored it to the house of the bailee where it then died through carelessness [on the part of the bailee], what should be the law? Shall we say that since it was stolen by violence, the duty of bailment came to an end,<span class="x" onmousemove="('comment',' So that the bailee should no more be subject to the law of bailment. ');">²¹</span> or perhaps since it was restored to him it once more came into his charge [which thus revived]?<span class="x" onmousemove="('comment',' To make the law of bailment still applicable. ');">²²</span>

היכן פקדוני אמר לו נגנב משביעך אני ואמר אמן והעדים מעידים אותו שגנבו משלם תשלומי כפל הודה מעצמו משלם קרן חומש ואשם

— This must stand undecided. <b><i>MISHNAH</i></b>. [IF A MAN SAYS TO ANOTHER] 'WHERE IS MY DEPOSIT?' AND HE<span class="x" onmousemove="('comment',' Being an unpaid bailee. ');">²³</span>

הגוזל את אביו ונשבע לו ומת הרי זה משלם קרן וחומש ואשם לבניו או לאחיו ואם אינו רוצה או שאין לו לוה ובעלי חוב באין ונפרעים

REPLIES: 'IT IS LOST' [AND THE DEPOSITOR THEN SAYS]. 'I PUT IT TO YOU ON OATH.' AND THE OTHER REPLIES. 'AMEN', IF WITNESSES TESTIFY AGAINST HIM THAT HE HIMSELF HAD CONSUMED IT, HE HAS TO PAY ONLY THE PRINCIPAL, WHEREAS IF HE CONFESSES ON HIS OWN ACCORD HE HAS TO REPAY THE PRINCIPAL TOGETHER WITH A FIFTH AND BRING A TRESPASS OFFERING.<span class="x" onmousemove="('comment',' In accordance with Lev. V, 21-25. ');">²⁴</span> [BUT IF THE DEPOSITOR SAYS] 'WHERE IS MY DEPOSIT?' AND THE BAILEE REPLIES: 'IT WAS STOLEN' [AND THE DEPOSITOR THEN SAYS] I PUT IT TO YOU ON OATH, AND THE BAILEE REPLIES, AMEN, IF WITNESSES TESTIFY AGAINST HIM THAT HE HIMSELF HAD STOLEN IT HE HAS TO REPAY DOUBLE,<span class="x" onmousemove="('comment',' In accordance with Ex. XXII, 8. ');">²⁵</span>

האומר לבנו קונם אי אתה נהנה משלי אם מת ירשנו

WHEREAS IF HE CONFESSES ON HIS OWN ACCORD HE HAS TO REPAY THE PRINCIPAL TOGETHER WITH A FIFTH AND BRING A TRESPASS OFFERING.<span class="x" onmousemove="('comment',' In accordance with Lev. V, 21-25. ');">²⁴</span> IF A MAN ROBBED HIS FATHER AND, [WHEN CHARGED BY HIM,] DENIED IT ON OATH, AND [THE FATHER AFTERWARDS] DIED,<span class="x" onmousemove="('comment',' When the son confessed the theft. ');">²⁶</span> HE WOULD HAVE TO REPAY THE PRINCIPAL AND A FIFTH [AND A TRESPASS OFFERING]<span class="x" onmousemove="('comment',' The phrase in parenthesis occurs in the Mishnaic text but not in Rashi. [And rightly so, for what have the children etc. to do with the trespass offering.] ');">²⁷</span> TO HIS [FATHER'S] CHILDREN<span class="x" onmousemove="('comment',' I.e., to his own brothers, for if he would retain anything for himself he would not obtain atonement, since he did not make full restoration (Rashi). [Tosaf.: to his own children, or to his own brothers in the absence of any children to him, v. B.B. 159a.] ');">²⁸</span> OR TO HIS [FATHER'S] BROTHERS;<span class="x" onmousemove="('comment',' I.e., his uncles, in the absence of any other children to his father. ');">²⁹</span> BUT IF HE IS UNWILLING TO DO SO,<span class="x" onmousemove="('comment',' I.e., to forfeit his own share in the payment which he has to make. ');">³⁰</span> OR HE HAS NOTHING WITH HIM,<span class="x" onmousemove="('comment',' To be in a position to do so. ');">³¹</span> HE SHOULD BORROW [THE AMOUNT FROM OTHERS AND PERFORM THE DUTY OF RESTORATION TO ANY OF THE SPECIFIED RELATIVES] AND THE CREDITORS CAN SUBSEQUENTLY COME AND [DEMAND TO] BE PAID<span class="x" onmousemove="('comment',' From the amount restored. ');">³²</span> [THE PORTION WHICH WOULD BY LAW HAVE BELONGED TO THE ROBBER AS HEIR]. IF A MAN SAID TO HIS SON: 'KONAM BE<span class="x" onmousemove="('comment',' I.e., Let it be forbidden as sacrifice; v. Ned. I, 2. ');">³³</span> WHATEVER BENEFIT YOU HAVE OF MINE,'<span class="x" onmousemove="('comment',' [J.: 'that you do not benefit out of anything belonging to me.'] ');">³⁴</span> AND SUBSEQUENTLY DIED, THE SON WILL INHERIT HIM.<span class="x" onmousemove="('comment',' For through the death of the father his possessions passed out of his ownership and the son is no more benefiting out of anything belonging to him; cf. Ned. V, 3. ');">³⁵</span>