Search

Bava Kamma 57

Want to dedicate learning? Get started here:

English
עברית
podcast placeholder

0:00
0:00




podcast placeholder

0:00
0:00




Summary

Today’s daf is sponsored by Cheryl & Avi Savitsky and family in loving memory of Cheryl’s father, Dr. Steven F. Stein, Shimon Feivish Ben Yisroel Yitzchak, on his 40th yahrzeit. “He is missed by all who knew him. Steve was a brilliant surgeon and loved his family and friends and had a true simchat ha’chaim that was palpable to anyone who met him.”

If someone finds a lost item that he is obligated to return, what level of obligation does he have for the item – is he considered like a shomer who watches an item for free or like one who gets paid? Raba and Rav Yosef disagree about this. Rav Yosef raises two difficulties against Raba. Raba and Abaye each raise difficulties against Rav Yosef. The second difficulty against Rav Yosef is resolved by explaining that a claim of armed robbery is considered theft for purposes of double payment. Two difficulties are raised against this argument and are resolved. They also try to strengthen this argument with a tannaitic source, but this is also rejected in three ways.

Bava Kamma 57

הֶחְזִירָהּ לִמְקוֹם שֶׁיִּרְאֶנָּה – אֵינוֹ חַיָּיב לִטַּפֵּל בָּהּ. נִגְנְבָה אוֹ אָבְדָה – חַיָּיב בְּאַחְרָיוּתָהּ.

If one found a lost item and he returned it to a place where its owner will see it, he is no longer responsible to deal with it. If the item was stolen or lost, the finder bears financial responsibility to compensate for the loss.

מַאי ״נִגְנְבָה אוֹ אָבְדָה״? לָאו נִגְנְבָה מִבֵּיתוֹ וְאָבְדָה מִבֵּיתוֹ?

Rav Yosef states his objection: What is meant by the expression: Was stolen or lost? Does it not mean that it was stolen from the finder’s house or lost from his house before he returned it? Since he is liable for theft or loss, it appears that he has the same status as a paid bailee.

לָא, מִמְּקוֹם שֶׁהֶחְזִירָהּ.

Rabba rejects this challenge: No, it means that it was stolen or lost from the place where the finder returned it, in which case even an unpaid bailee is liable on the grounds of negligence.

וְהָא קָתָנֵי: אֵינוֹ חַיָּיב לִיטַּפֵּל בָּהּ!

Rav Yosef challenges Rabba’s response: But the baraita teaches that the finder is no longer responsible to deal with it, indicating that failing to deal with it is not negligence, and the finder has no further responsibility for it.

אֲמַר לֵיהּ: הָכָא בְּמַאי עָסְקִינַן – כְּגוֹן שֶׁהֶחְזִירָהּ בַּצׇּהֳרַיִם.

Rabba said to him: With what are we dealing here, at the end of the baraita, where it teaches that the finder is liable? We are dealing with a case where he returned it at midday, which is a time when the owner of the lost item is not typically present. Therefore, the finder has not returned the item properly, and if it is then stolen or lost, he bears responsibility even if he is an unpaid bailee.

וְתַרְתֵּי קָתָנֵי, וְהָכִי קָתָנֵי: הֶחְזִירָהּ שַׁחֲרִית לִמְקוֹם שֶׁיִּרְאֶנָּה, וּשְׁכִיחַ דְּעָיֵיל וְנָפֵיק וְחָזֵי לַהּ – אֵינוֹ חַיָּיב לִיטַּפֵּל בָּהּ. הֶחְזִירָהּ בַּצׇּהֳרַיִם לִמְקוֹם שֶׁיִּרְאֶנָּה, דְּלָא שְׁכִיחַ דְּעָיֵיל וְנָפֵיק, דְּלָא חָזֵי לַהּ; וְנִגְנְבָה אוֹ אָבְדָה – חַיָּיב בְּאַחְרָיוּתָהּ.

And the baraita is teaching two separate halakhot, and this is what it is teaching: If the finder returned it in the morning, when people are typically present, to a place where the owner of the lost item will see it, and the owner typically enters and exits and it is likely that he will see it, the finder is no longer responsible to deal with it, nor does he bear responsibility if it is then stolen or lost. By contrast, if the finder returned it at midday to a place where the owner will see it, since it is a time when the owner does not typically enter and exit and will not see it, if it is then stolen or lost the finder bears financial responsibility for the loss.

אֵיתִיבֵיהּ: לְעוֹלָם הוּא חַיָּיב, עַד שֶׁיַּחְזִירֶנָּה לִרְשׁוּתוֹ. מַאי ״לְעוֹלָם״? לָאו אֲפִילּוּ מִבֵּיתוֹ? שְׁמַע מִינַּהּ כְּשׁוֹמֵר שָׂכָר דָּמֵי!

Rav Yosef again raised an objection to the opinion of Rabba from that which is taught in the continuation of the baraita: The finder of the lost item always bears responsibility if the item is stolen or lost until he returns it to the owner’s property. What does the word always add? Is it not teaching that even if the lost item was stolen from the finder’s house, he is liable? If so, learn from this that one who finds a lost item is considered like a paid bailee.

אֲמַר לֵיהּ: מוֹדֵינָא לָךְ בְּבַעֲלֵי חַיִּים, דְּכֵיוָן דְּנָקְטִי לְהוּ נִיגְרֵא בָּרָיָיתָא – בָּעֵי נְטִירוּתָא יַתִּירְתָּא.

Rabba said to Rav Yosef in reply: I concede to you in a case of one looking after lost animals that he is liable if they are stolen or lost. The reason is that since the animals have already taken to the habit of walking out of their usual path and not behaving in their typical manner, they require extra safeguarding, corresponding to that required of a paid bailee. But with regard to other items that are lost, those that do not move by themselves, the finder bears no greater responsibility to secure them than does an unpaid bailee.

אֵיתִיבֵיהּ רַבָּה לְרַב יוֹסֵף: ״הָשֵׁב״ – אֵין לִי אֶלָּא בְּבֵיתוֹ, לְגִינָּתוֹ וּלְחוּרְבָּתוֹ מִנַּיִן? תַּלְמוּד לוֹמַר: ״תְּשִׁיבֵם״ מִכׇּל מָקוֹם.

Rabba raised an objection to the opinion of Rav Yosef: The verse states in the context of returning lost items: “Return them” (Deuteronomy 22:1), repeating the verb “hashev teshivem.” The Sages expounded as follows: From the word hashev” I have derived only that one may return the item to the house of the owner of the lost article. From where do I derive that even if one returns it to his garden or to his ruin, i.e., an unused structure on his property, he has discharged his obligation and is no longer responsible for the item that he found? For this, the verse states: “Teshivem,” repeating the verb for emphasis, to teach that he fulfills the mitzva by returning the item to any place belonging to the owner.

מַאי ״לְגִינָּתוֹ וּלְחוּרְבָּתוֹ״? אִילֵימָא לְגִינָּתוֹ הַמִּשְׁתַּמֶּרֶת וּלְחוּרְבָּתוֹ הַמִּשְׁתַּמֶּרֶת, הַיְינוּ בֵּיתוֹ! אֶלָּא פְּשִׁיטָא, לְגִינָּתוֹ שֶׁאֵינָהּ מִשְׁתַּמֶּרֶת וּלְחוּרְבָּתוֹ שֶׁאֵינָהּ מִשְׁתַּמֶּרֶת. שְׁמַע מִינַּהּ כְּשׁוֹמֵר חִנָּם דָּמֵי!

What is the meaning of the phrase in the baraita: To his garden or to his ruin? If we say that the finder returned the lost item to the garden of the owner that is secured, i.e., properly enclosed, or to his ruin that is secured, it would be unnecessary to state this, as it is the same as his house, since these spaces are secured in the same way as his house. Rather, it is obvious that it means that he returned them to his garden that is not secured, or to his ruin that is not secured, and nevertheless, the finder is no longer liable for subsequent damage or theft of the found item. Conclude from it that a finder is like an unpaid bailee in terms of his liabilities, and this reduced level of safeguarding when returning the item is sufficient.

אֲמַר לֵיהּ: לְעוֹלָם לְגִינָּתוֹ הַמִּשְׁתַּמֶּרֶת וּלְחוּרְבָּתוֹ הַמִּשְׁתַּמֶּרֶת, וּדְקָא קַשְׁיָא לָךְ: הַיְינוּ בֵּיתוֹ, הָא קָא מַשְׁמַע לַן – דְּלָא בָּעֵינַן דַּעַת בְּעָלִים, כִּדְרַבִּי אֶלְעָזָר.

Rav Yosef said to him: Actually, one can explain that the baraita is referring to a case where the finder placed it in the owner’s garden that is secured, or his ruin that is secured; and with regard to that which poses a difficulty to you, that this is the same as his house, there is nevertheless a novelty in this ruling: This teaches us that in this case we do not require the owner’s knowledge that the article has been returned, and this is in accordance with the opinion of Rabbi Elazar.

דְּאָמַר רַבִּי אֶלְעָזָר: הַכֹּל צְרִיכִין דַּעַת בְּעָלִים, חוּץ מֵהֲשָׁבַת אֲבֵידָה – שֶׁהֲרֵי רִיבְּתָה בּוֹ תּוֹרָה הֲשָׁבוֹת הַרְבֵּה.

As Rabbi Elazar says: All those who are obligated to return items to their owners, e.g., a bailee or a thief, require the owner’s knowledge that they are returning it except for one fulfilling the mitzva of returning a lost item. This is because the Torah included many permitted ways of returning lost items by employing the double expression “hashev teshivem,” which serves to permit the return of the lost item without the knowledge of the owner.

אֲמַר לֵיהּ אַבָּיֵי לְרַב יוֹסֵף: וְאַתְּ לָא תִּסְבְּרָא דְּשׁוֹמֵר אֲבֵידָה כְּשׁוֹמֵר חִנָּם דָּמֵי? וְהָא אָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: הַטּוֹעֵן טַעֲנַת גַּנָּב בַּאֲבֵידָה – מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל. וְאִי סָלְקָא דַעְתָּךְ שׁוֹמֵר שָׂכָר הָוֵי, אַמַּאי מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל? קַרְנָא בָּעֵי שַׁלּוֹמֵי!

Abaye said to Rav Yosef: And you, do you not hold that one safeguarding a lost item is like an unpaid bailee? But doesn’t Rabbi Ḥiyya bar Abba say that Rabbi Yoḥanan says: With regard to one who finds a lost item but falsely states the claim that a thief stole the item from him and takes an oath to that effect, he must pay a double payment, i.e., twice the value of the item. And if it enters your mind that the finder of a lost item is considered to have the same status as a paid bailee, why in such a case must he pay a double payment? He should be required to pay only the principal, since a paid bailee is liable in any event if the article is stolen or lost, and he did not stand to benefit from the claim that the item was stolen.

אֲמַר לֵיהּ: הָכָא בְּמַאי עָסְקִינַן – כְּגוֹן שֶׁטּוֹעֵן טַעֲנַת לִסְטִים מְזוּיָּין.

Rav Yosef said to him: With what are we dealing here? It is with a case where the finder took a false oath stating the claim that the deposit was taken by an armed bandit, and in such a case even a paid bailee is exempt. Consequently, his claim would have absolved him from liability, and if the item is subsequently found in his possession, he is liable to pay double for his false claim that it was stolen.

אֲמַר לֵיהּ: לִיסְטִים מְזוּיָּין – גַּזְלָן הוּא!

Abaye said to him: But an armed bandit has the status of a robber and not of a thief, so according to this explanation, why did Rabbi Yoḥanan state that it was stolen by a thief?

אֲמַר לֵיהּ, שֶׁאֲנִי אוֹמֵר: לִסְטִים מְזוּיָּין, כֵּיוָן דְּמִיטַּמַּר מֵאִינָשֵׁי – גַּנָּב הוּא.

Rav Yosef said to him: The reason that only a thief pays the double payment and not a robber is that a thief denigrates God by exhibiting fear of people by stealing surreptitiously while not exhibiting fear of Heaven. This is in contrast to a robber, who robs openly. Accordingly, the reason that I say that an armed bandit is considered as a thief, is since he hides from people rather than stealing openly. Although he in fact does steal openly, since he does so by employing a weapon he also exhibits fear of people, and is akin to a thief. Therefore, armed bandits are liable to pay a double payment as is a thief, and a claim that the deposit was seized by armed bandits is considered to be the same as a claim that it was stolen by thieves. Consequently, since a paid bailee is absolved by means of such a claim, if it is determined that his claim was false he must pay double.

אֵיתִיבֵיהּ:

Abaye raised an objection to the opinion of Rav Yosef from that which is taught in a baraita:

לֹא; אִם אָמַרְתָּ בְּשׁוֹמֵר חִנָּם – שֶׁכֵּן מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל, תֹּאמַר בְּשׁוֹמֵר שָׂכָר – שֶׁאֵינוֹ מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל?

No, if you say that this is the halakha with regard to an unpaid bailee, who pays a double payment, shall you also say that this is the case with regard to a paid bailee, who does not pay a double payment?

וְאִי סָלְקָא דַעְתָּךְ לִסְטִים מְזוּיָּין גַּנָּב הוּא, נִמְצָא בְּשׁוֹמֵר שָׂכָר מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל – בְּטוֹעֵן טַעֲנַת לִסְטִים מְזוּיָּין!

Abaye states his objection: And if it enters your mind to say that an armed bandit is considered like a thief, it turns out that there is a case where a paid bailee pays a double payment, and it is when he states the claim that the deposit was taken by an armed bandit.

אֲמַר לֵיהּ, הָכִי קָאָמַר: לֹא; אִם אָמַרְתָּ בְּשׁוֹמֵר חִנָּם – שֶׁכֵּן מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל בְּכׇל טַעֲנוֹתָיו, תֹּאמַר בְּשׁוֹמֵר שָׂכָר – שֶׁאֵינוֹ מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל אֶלָּא בְּטוֹעֵן טַעֲנַת לִסְטִים מְזוּיָּין.

Rav Yosef said to him: This is what the baraita is saying: No, if you say that this is the halakha with regard to an unpaid bailee, who pays a double payment for any claim that he makes concerning the theft of the item if he is subsequently found to be lying, shall you also say that this is the case with regard to a paid bailee, who pays a double payment for a false claim only when he states the claim that the deposit was taken by an armed bandit.

אֵיתִיבֵיהּ: ״וְנִשְׁבַּר אוֹ מֵת״ – אֵין לִי אֶלָּא שְׁבוּרָה וּמֵתָה, גְּנֵיבָה וַאֲבֵידָה מִנַּיִן? אָמַרְתָּ קַל וָחוֹמֶר – וּמָה שׁוֹמֵר שָׂכָר, שֶׁפָּטַר בּוֹ שְׁבוּרָה וּמֵתָה, חַיָּיב בִּגְנֵיבָה וַאֲבֵידָה; שׁוֹאֵל, שֶׁחַיָּיב בִּשְׁבוּרָה וּמֵתָה – אֵינוֹ דִּין שֶׁחַיָּיב בִּגְנֵיבָה וַאֲבֵידָה? וְזֶהוּ קַל וְחוֹמֶר שֶׁאֵין עָלָיו תְּשׁוּבָה.

Abaye raised an objection to the opinion of Rav Yosef from that which is taught in another baraita: The Torah states with regard to a case where one borrows an object or an animal from another: “And it breaks or dies, he shall pay restitution [shalem yeshalem]” (Exodus 22:13). I have derived only that the borrower is liable in a case where the object or animal breaks or dies; but from where do I derive that he is also liable if it was stolen or lost? You can state the following a fortiori inference: And just as a paid bailee, whom the Torah rendered exempt in a case where the item breaks or dies, is nevertheless liable for a case of theft or loss, then with regard to a borrower, who is liable even if the item breaks or dies, is not it logical that he is liable for theft or loss? And this is an a fortiori inference that has no refutation.

וְאִי סָלְקָא דַּעְתָּךְ לִסְטִים מְזוּיָּין גַּנָּב הוּא, אַמַּאי אֵין עָלָיו תְּשׁוּבָה? אִיכָּא לְמִפְרַךְ: מָה לְשׁוֹמֵר שָׂכָר – שֶׁכֵּן מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל בְּטוֹעֵן טַעֲנַת לִסְטִים מְזוּיָּין!

And if it enters your mind to say that an armed bandit is considered like a thief, why is this an argument that has no refutation? It can be refuted as follows: What is notable about a paid bailee? He is notable in that he pays double payment if he states the claim that the deposit was taken by an armed bandit, whereas a borrower does not pay double in such a case, but only the principal amount.

אֲמַר לֵיהּ, קָסָבַר הַאי תַּנָּא: קַרְנָא בְּלֹא שְׁבוּעָה עֲדִיפָא מִכְּפֵילָא בִּשְׁבוּעָה.

Rav Yosef said to him: This tanna holds that the requirement of a borrower to pay the principal without having the option to exempt himself by taking an oath is stricter than the requirement of a paid bailee to pay the double payment when claiming that it was stolen by an armed bandit, as this obligation is in effect only where he took an oath. Therefore, this doubled payment pertaining to a paid bailee cannot be used as a refutation of the a fortiori inference.

לֵימָא מְסַיַּיע לֵיהּ: הַשּׂוֹכֵר פָּרָה מֵחֲבֵירוֹ, וְנִגְנְבָה, וְאָמַר הַלָּה: ״הֲרֵינִי מְשַׁלֵּם וְאֵינִי נִשְׁבָּע״, וְאַחַר כָּךְ נִמְצָא הַגַּנָּב – מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל לַשּׂוֹכֵר.

The Gemara asks: Let us say that the following baraita supports Rav Yosef’s opinion: In the case of one who rents a cow from another and it is stolen, and this renter says: I will pay for it and I am not taking an oath that the cow was stolen, since I do not wish to take an oath, and afterward the thief is found, the thief pays the double payment to the renter and not to the owner.

סַבְרוּהָ – כְּרַבִּי יְהוּדָה, דְּאָמַר: שׂוֹכֵר כְּנוֹשֵׂא שָׂכָר דָּמֵי; וּמִדְּקָתָנֵי: וְאָמַר ״הֲרֵינִי מְשַׁלֵּם וְאֵינִי נִשְׁבָּע״ – מִכְּלָל דְּאִי בָּעֵי, פָּטַר (לֵיהּ) נַפְשֵׁיהּ בִּשְׁבוּעָה.

The Gemara notes: The Sages who sought to use that baraita to support Rav Yosef’s opinion assumed that the baraita is in accordance with the opinion of Rabbi Yehuda, who says: A renter is like a paid bailee and is liable for theft or loss, but from the fact that it teaches: And he said: I will pay for it and I am not taking an oath that the cow was stolen, one can learn by inference that if the renter wants, he can exempt himself from payment by taking an oath.

הֵיכִי דָּמֵי – כְּגוֹן דְּקָא טָעֵין טַעֲנַת לִסְטִים מְזוּיָּין; וְקָתָנֵי: וְאַחַר כָּךְ נִמְצָא הַגַּנָּב – מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל לַשּׂוֹכֵר; שְׁמַע מִינַּהּ: לִסְטִים מְזוּיָּין גַּנָּב הוּא!

The Gemara clarifies: What are the circumstances? Is it not a case where the renter states a claim that the item was taken by an armed bandit, in which case, as a paid bailee, he does not bear liability? And despite this, the baraita teaches: And if afterward the thief was found, the thief pays the double payment to the renter. Conclude from it that an armed bandit is considered like a thief.

אָמְרִי, מִי סָבְרַתְּ כְּרַבִּי יְהוּדָה – דְּאָמַר: שׂוֹכֵר כְּנוֹשֵׂא שָׂכָר דָּמֵי? דִּלְמָא כְּרַבִּי מֵאִיר סְבִירָא לֵיהּ, דְּאָמַר: שׂוֹכֵר כְּשׁוֹמֵר חִנָּם דָּמֵי.

The Gemara says in rejection of this proof: Do you maintain that this baraita is in accordance with the opinion of Rabbi Yehuda, who says that a renter is considered like a paid bailee? Perhaps this tanna holds in accordance with the opinion of Rabbi Meir, who says that a renter is considered like an unpaid bailee, and on account of that he is absolved of responsibility even if he claimed it was a regular theft.

אִיבָּעֵית אֵימָא, כִּדְמַחְלֵיף רַבָּה בַּר אֲבוּהּ וְתָנֵי: שׂוֹכֵר כֵּיצַד מְשַׁלֵּם? רַבִּי מֵאִיר אוֹמֵר: כְּשׁוֹמֵר שָׂכָר, רַבִּי יְהוּדָה אוֹמֵר: כְּשׁוֹמֵר חִנָּם.

Alternatively, if you wish, say that the baraita is referring to an unarmed bandit and is in accordance with the opinion of Rabba bar Avuh, who reversed the opinions and teaches as follows: How does a renter pay? Rabbi Meir says he has the same liability as a paid bailee, whereas Rabbi Yehuda says he has the same liability as an unpaid bailee. Therefore, even if this baraita is in accordance with the opinion of Rabbi Yehuda, it does not provide support for Rav Yosef’s opinion.

רַבִּי זֵירָא אָמַר: הָכָא בְּמַאי עָסְקִינַן – בְּטוֹעֵן טַעֲנַת לִסְטִים מְזוּיָּין, וְנִמְצָא לִסְטִים שֶׁאֵינוֹ מְזוּיָּין.

Rabbi Zeira said: Even without reversing the opinions, it is possible to explain that the baraita does not provide support for Rav Yosef’s opinion by saying as follows: With what are we dealing here? We are dealing with a case where the renter states the claim that the deposit was taken by an armed bandit, and so he could have absolved himself by taking an oath, but afterward it is found that it was stolen by an unarmed bandit. On account of this, the bandit pays the double payment to the renter. No conclusive proof is brought as to whether one who found a lost item has the status of a paid or unpaid bailee.

נָפְלָה לְגִינָּה וְנֶהֱנֵית – מְשַׁלֶּמֶת מַה שֶּׁנֶּהֱנֵית. אָמַר רַב: בְּנֶחְבְּטָה;

§ The mishna teaches: If the animal fell into a garden and derives benefit, the owner pays for the benefit that it derives. Rav says: This is referring to a case where the vegetables softened the impact of striking the ground, and the owner pays for this benefit of the animal being saved from injury.

אֲבָל אָכְלָה – אֲפִילּוּ מַה שֶּׁנֶּהֱנֵית אֵינָהּ מְשַׁלֶּמֶת. לֵימָא רַב לְטַעְמֵיהּ, דַּאֲמַר רַב: הָיָה לַהּ שֶׁלֹּא תֹּאכַל?

The Gemara comments: This statement of Rav indicates that the owner pays only for what occurred while the animal landed, but if the animal then ate from the garden, the owner is not required to pay even for the benefit that the animal derives. Shall we say that Rav conforms to his standard line of reasoning? As Rav says that in a case where one placed his produce in the courtyard of another without permission, and an animal belonging to the owner of the courtyard ate the produce and was sickened thereby, the owner of the produce is not liable, as he can claim: The animal should not have eaten it. Similarly, here the owner of the animal can say: This animal fell through no fault of mine, and so it is not my fault that it ate.

אָמְרִי: הָכִי הַשְׁתָּא?! אֵימוֹר דְּאָמַר רַב הָתָם ״הָיָה לַהּ שֶׁלֹּא תֹּאכַל״ – הֵיכָא דְּאִיתַּזְקָא הִיא, דְּמָצֵי אֲמַר לֵיהּ מָרֵיהּ דְּפֵירֵי: ״לָא מְשַׁלַּמְנָא, הָיָה לַהּ שֶׁלֹּא תֹּאכַל״; לְאַזּוֹקֵי הִיא אַחֲרִינֵי, דִּפְטִירָה לְשַׁלּוֹמֵי, מִי אָמַר?!

The Sages of the Gemara say: How can these cases be compared? One could say that Rav said there that the animal should not have eaten the produce. This claim is relevant where the animal itself was injured by eating another’s produce, because the owner of the produce can say: I will not pay, because the animal should not have eaten. This is a claim to exempt the owner of the produce from paying the owner of the animal. Did Rav say that when the animal causes damage to another’s produce, the owner can exempt himself from paying the owner of the produce by stating this claim?

אֶלָּא

Rather,

New to Talmud?

Check out our resources designed to help you navigate a page of Talmud – and study at the pace, level and style that fits you. 

The Hadran Women’s Tapestry

Meet the diverse women learning Gemara at Hadran and hear their stories. 

I’ve been studying Talmud since the ’90s, and decided to take on Daf Yomi two years ago. I wanted to attempt the challenge of a day-to-day, very Jewish activity. Some days are so interesting and some days are so boring. But I’m still here.
Wendy Rozov
Wendy Rozov

Phoenix, AZ, United States

It has been a pleasure keeping pace with this wonderful and scholarly group of women.

Janice Block
Janice Block

Beit Shemesh, Israel

I began learning the daf in January 2022. I initially “flew under the radar,” sharing my journey with my husband and a few close friends. I was apprehensive – who, me? Gemara? Now, 2 years in, I feel changed. The rigor of a daily commitment frames my days. The intellectual engagement enhances my knowledge. And the virtual community of learners has become a new family, weaving a glorious tapestry.

Gitta Jaroslawicz-Neufeld
Gitta Jaroslawicz-Neufeld

Far Rockaway, United States

I started learning Dec 2019 after reading “If all the Seas Were Ink”. I found
Daily daf sessions of Rabbanit Michelle in her house teaching, I then heard about the siyum and a new cycle starting wow I am in! Afternoon here in Sydney, my family and friends know this is my sacred time to hide away to live zoom and learn. Often it’s hard to absorb and relate then a gem shines touching my heart.

Dianne Kuchar
Dianne Kuchar

Dover Heights, Australia

I had no formal learning in Talmud until I began my studies in the Joint Program where in 1976 I was one of the few, if not the only, woman talmud major. It was superior training for law school and enabled me to approach my legal studies with a foundation . In 2018, I began daf yomi listening to Rabbanit MIchelle’s pod cast and my daily talmud studies are one of the highlights of my life.

Krivosha_Terri_Bio
Terri Krivosha

Minneapolis, United States

I start learning Daf Yomi in January 2020. The daily learning with Rabbanit Michelle has kept me grounded in this very uncertain time. Despite everything going on – the Pandemic, my personal life, climate change, war, etc… I know I can count on Hadran’s podcast to bring a smile to my face.
Deb Engel
Deb Engel

Los Angeles, United States

I attended the Siyum so that I could tell my granddaughter that I had been there. Then I decided to listen on Spotify and after the siyum of Brachot, Covid and zoom began. It gave structure to my day. I learn with people from all over the world who are now my friends – yet most of us have never met. I can’t imagine life without it. Thank you Rabbanit Michelle.

Emma Rinberg
Emma Rinberg

Raanana, Israel

I started to listen to Michelle’s podcasts four years ago. The minute I started I was hooked. I’m so excited to learn the entire Talmud, and think I will continue always. I chose the quote “while a woman is engaged in conversation she also holds the spindle”. (Megillah 14b). It reminds me of all of the amazing women I learn with every day who multi-task, think ahead and accomplish so much.

Julie Mendelsohn
Julie Mendelsohn

Zichron Yakov, Israel

My husband learns Daf, my son learns Daf, my son-in-law learns Daf.
When I read about Hadran’s Siyyum HaShas 2 years ago, I thought- I can learn Daf too!
I had learned Gemara in Hillel HS in NJ, & I remembered loving it.
Rabbanit Michelle & Hadran have opened my eyes & expanding my learning so much in the past few years. We can now discuss Gemara as a family.
This was a life saver during Covid

Renee Braha
Renee Braha

Brooklyn, NY, United States

I began Daf Yomi with the last cycle. I was inspired by the Hadran Siyum in Yerushalayim to continue with this cycle. I have learned Daf Yomi with Rabanit Michelle in over 25 countries on 6 continents ( missing Australia)

Barbara-Goldschlag
Barbara Goldschlag

Silver Spring, MD, United States

See video

Susan Fisher
Susan Fisher

Raanana, Israel

I learned Mishnayot more than twenty years ago and started with Gemara much later in life. Although I never managed to learn Daf Yomi consistently, I am learning since some years Gemara in depth and with much joy. Since last year I am studying at the International Halakha Scholars Program at the WIHL. I often listen to Rabbanit Farbers Gemara shiurim to understand better a specific sugyiah. I am grateful for the help and inspiration!

Shoshana Ruerup
Shoshana Ruerup

Berlin, Germany

3 years ago, I joined Rabbanit Michelle to organize the unprecedented Siyum HaShas event in Jerusalem for thousands of women. The whole experience was so inspiring that I decided then to start learning the daf and see how I would go…. and I’m still at it. I often listen to the Daf on my bike in mornings, surrounded by both the external & the internal beauty of Eretz Yisrael & Am Yisrael!

Lisa Kolodny
Lisa Kolodny

Raanana, Israel

I began my Daf Yomi journey on January 5, 2020. I had never learned Talmud before. Initially it struck me as a bunch of inane and arcane details with mind bending logic. I am now smitten. Rabbanit Farber brings the page to life and I am eager to learn with her every day!

Lori Stark
Lori Stark

Highland Park, United States

I went to day school in Toronto but really began to learn when I attended Brovenders back in the early 1980’s. Last year after talking to my sister who was learning Daf Yomi, inspired, I looked on the computer and the Hadran site came up. I have been listening to each days shiur in the morning as I work. I emphasis listening since I am not sitting with a Gamara. I listen while I work in my studio.

Rachel Rotenberg
Rachel Rotenberg

Tekoa, Israel

I started my journey on the day I realized that the Siyum was happening in Yerushalayim and I was missing out. What? I told myself. How could I have not known about this? How can I have missed out on this opportunity? I decided that moment, I would start Daf Yomi and Nach Yomi the very next day. I am so grateful to Hadran. I am changed forever because I learn Gemara with women. Thank you.

Linda Brownstein
Linda Brownstein

Mitspe, Israel

When I began the previous cycle, I promised myself that if I stuck with it, I would reward myself with a trip to Israel. Little did I know that the trip would involve attending the first ever women’s siyum and being inspired by so many learners. I am now over 2 years into my second cycle and being part of this large, diverse, fascinating learning family has enhanced my learning exponentially.

Shira Krebs
Shira Krebs

Minnesota, United States

I started learning Dec 2019 after reading “If all the Seas Were Ink”. I found
Daily daf sessions of Rabbanit Michelle in her house teaching, I then heard about the siyum and a new cycle starting wow I am in! Afternoon here in Sydney, my family and friends know this is my sacred time to hide away to live zoom and learn. Often it’s hard to absorb and relate then a gem shines touching my heart.

Dianne Kuchar
Dianne Kuchar

Dover Heights, Australia

I started learning at the beginning of the cycle after a friend persuaded me that it would be right up my alley. I was lucky enough to learn at Rabbanit Michelle’s house before it started on zoom and it was quickly part of my daily routine. I find it so important to see for myself where halachot were derived, where stories were told and to get more insight into how the Rabbis interacted.

Deborah Dickson
Deborah Dickson

Ra’anana, Israel

When I began learning Daf Yomi at the beginning of the current cycle, I was preparing for an upcoming surgery and thought that learning the Daf would be something positive I could do each day during my recovery, even if I accomplished nothing else. I had no idea what a lifeline learning the Daf would turn out to be in so many ways.

Laura Shechter
Laura Shechter

Lexington, MA, United States

Bava Kamma 57

הֶחְזִירָהּ לִמְקוֹם שֶׁיִּרְאֶנָּה – אֵינוֹ חַיָּיב לִטַּפֵּל בָּהּ. נִגְנְבָה אוֹ אָבְדָה – חַיָּיב בְּאַחְרָיוּתָהּ.

If one found a lost item and he returned it to a place where its owner will see it, he is no longer responsible to deal with it. If the item was stolen or lost, the finder bears financial responsibility to compensate for the loss.

מַאי ״נִגְנְבָה אוֹ אָבְדָה״? לָאו נִגְנְבָה מִבֵּיתוֹ וְאָבְדָה מִבֵּיתוֹ?

Rav Yosef states his objection: What is meant by the expression: Was stolen or lost? Does it not mean that it was stolen from the finder’s house or lost from his house before he returned it? Since he is liable for theft or loss, it appears that he has the same status as a paid bailee.

לָא, מִמְּקוֹם שֶׁהֶחְזִירָהּ.

Rabba rejects this challenge: No, it means that it was stolen or lost from the place where the finder returned it, in which case even an unpaid bailee is liable on the grounds of negligence.

וְהָא קָתָנֵי: אֵינוֹ חַיָּיב לִיטַּפֵּל בָּהּ!

Rav Yosef challenges Rabba’s response: But the baraita teaches that the finder is no longer responsible to deal with it, indicating that failing to deal with it is not negligence, and the finder has no further responsibility for it.

אֲמַר לֵיהּ: הָכָא בְּמַאי עָסְקִינַן – כְּגוֹן שֶׁהֶחְזִירָהּ בַּצׇּהֳרַיִם.

Rabba said to him: With what are we dealing here, at the end of the baraita, where it teaches that the finder is liable? We are dealing with a case where he returned it at midday, which is a time when the owner of the lost item is not typically present. Therefore, the finder has not returned the item properly, and if it is then stolen or lost, he bears responsibility even if he is an unpaid bailee.

וְתַרְתֵּי קָתָנֵי, וְהָכִי קָתָנֵי: הֶחְזִירָהּ שַׁחֲרִית לִמְקוֹם שֶׁיִּרְאֶנָּה, וּשְׁכִיחַ דְּעָיֵיל וְנָפֵיק וְחָזֵי לַהּ – אֵינוֹ חַיָּיב לִיטַּפֵּל בָּהּ. הֶחְזִירָהּ בַּצׇּהֳרַיִם לִמְקוֹם שֶׁיִּרְאֶנָּה, דְּלָא שְׁכִיחַ דְּעָיֵיל וְנָפֵיק, דְּלָא חָזֵי לַהּ; וְנִגְנְבָה אוֹ אָבְדָה – חַיָּיב בְּאַחְרָיוּתָהּ.

And the baraita is teaching two separate halakhot, and this is what it is teaching: If the finder returned it in the morning, when people are typically present, to a place where the owner of the lost item will see it, and the owner typically enters and exits and it is likely that he will see it, the finder is no longer responsible to deal with it, nor does he bear responsibility if it is then stolen or lost. By contrast, if the finder returned it at midday to a place where the owner will see it, since it is a time when the owner does not typically enter and exit and will not see it, if it is then stolen or lost the finder bears financial responsibility for the loss.

אֵיתִיבֵיהּ: לְעוֹלָם הוּא חַיָּיב, עַד שֶׁיַּחְזִירֶנָּה לִרְשׁוּתוֹ. מַאי ״לְעוֹלָם״? לָאו אֲפִילּוּ מִבֵּיתוֹ? שְׁמַע מִינַּהּ כְּשׁוֹמֵר שָׂכָר דָּמֵי!

Rav Yosef again raised an objection to the opinion of Rabba from that which is taught in the continuation of the baraita: The finder of the lost item always bears responsibility if the item is stolen or lost until he returns it to the owner’s property. What does the word always add? Is it not teaching that even if the lost item was stolen from the finder’s house, he is liable? If so, learn from this that one who finds a lost item is considered like a paid bailee.

אֲמַר לֵיהּ: מוֹדֵינָא לָךְ בְּבַעֲלֵי חַיִּים, דְּכֵיוָן דְּנָקְטִי לְהוּ נִיגְרֵא בָּרָיָיתָא – בָּעֵי נְטִירוּתָא יַתִּירְתָּא.

Rabba said to Rav Yosef in reply: I concede to you in a case of one looking after lost animals that he is liable if they are stolen or lost. The reason is that since the animals have already taken to the habit of walking out of their usual path and not behaving in their typical manner, they require extra safeguarding, corresponding to that required of a paid bailee. But with regard to other items that are lost, those that do not move by themselves, the finder bears no greater responsibility to secure them than does an unpaid bailee.

אֵיתִיבֵיהּ רַבָּה לְרַב יוֹסֵף: ״הָשֵׁב״ – אֵין לִי אֶלָּא בְּבֵיתוֹ, לְגִינָּתוֹ וּלְחוּרְבָּתוֹ מִנַּיִן? תַּלְמוּד לוֹמַר: ״תְּשִׁיבֵם״ מִכׇּל מָקוֹם.

Rabba raised an objection to the opinion of Rav Yosef: The verse states in the context of returning lost items: “Return them” (Deuteronomy 22:1), repeating the verb “hashev teshivem.” The Sages expounded as follows: From the word hashev” I have derived only that one may return the item to the house of the owner of the lost article. From where do I derive that even if one returns it to his garden or to his ruin, i.e., an unused structure on his property, he has discharged his obligation and is no longer responsible for the item that he found? For this, the verse states: “Teshivem,” repeating the verb for emphasis, to teach that he fulfills the mitzva by returning the item to any place belonging to the owner.

מַאי ״לְגִינָּתוֹ וּלְחוּרְבָּתוֹ״? אִילֵימָא לְגִינָּתוֹ הַמִּשְׁתַּמֶּרֶת וּלְחוּרְבָּתוֹ הַמִּשְׁתַּמֶּרֶת, הַיְינוּ בֵּיתוֹ! אֶלָּא פְּשִׁיטָא, לְגִינָּתוֹ שֶׁאֵינָהּ מִשְׁתַּמֶּרֶת וּלְחוּרְבָּתוֹ שֶׁאֵינָהּ מִשְׁתַּמֶּרֶת. שְׁמַע מִינַּהּ כְּשׁוֹמֵר חִנָּם דָּמֵי!

What is the meaning of the phrase in the baraita: To his garden or to his ruin? If we say that the finder returned the lost item to the garden of the owner that is secured, i.e., properly enclosed, or to his ruin that is secured, it would be unnecessary to state this, as it is the same as his house, since these spaces are secured in the same way as his house. Rather, it is obvious that it means that he returned them to his garden that is not secured, or to his ruin that is not secured, and nevertheless, the finder is no longer liable for subsequent damage or theft of the found item. Conclude from it that a finder is like an unpaid bailee in terms of his liabilities, and this reduced level of safeguarding when returning the item is sufficient.

אֲמַר לֵיהּ: לְעוֹלָם לְגִינָּתוֹ הַמִּשְׁתַּמֶּרֶת וּלְחוּרְבָּתוֹ הַמִּשְׁתַּמֶּרֶת, וּדְקָא קַשְׁיָא לָךְ: הַיְינוּ בֵּיתוֹ, הָא קָא מַשְׁמַע לַן – דְּלָא בָּעֵינַן דַּעַת בְּעָלִים, כִּדְרַבִּי אֶלְעָזָר.

Rav Yosef said to him: Actually, one can explain that the baraita is referring to a case where the finder placed it in the owner’s garden that is secured, or his ruin that is secured; and with regard to that which poses a difficulty to you, that this is the same as his house, there is nevertheless a novelty in this ruling: This teaches us that in this case we do not require the owner’s knowledge that the article has been returned, and this is in accordance with the opinion of Rabbi Elazar.

דְּאָמַר רַבִּי אֶלְעָזָר: הַכֹּל צְרִיכִין דַּעַת בְּעָלִים, חוּץ מֵהֲשָׁבַת אֲבֵידָה – שֶׁהֲרֵי רִיבְּתָה בּוֹ תּוֹרָה הֲשָׁבוֹת הַרְבֵּה.

As Rabbi Elazar says: All those who are obligated to return items to their owners, e.g., a bailee or a thief, require the owner’s knowledge that they are returning it except for one fulfilling the mitzva of returning a lost item. This is because the Torah included many permitted ways of returning lost items by employing the double expression “hashev teshivem,” which serves to permit the return of the lost item without the knowledge of the owner.

אֲמַר לֵיהּ אַבָּיֵי לְרַב יוֹסֵף: וְאַתְּ לָא תִּסְבְּרָא דְּשׁוֹמֵר אֲבֵידָה כְּשׁוֹמֵר חִנָּם דָּמֵי? וְהָא אָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: הַטּוֹעֵן טַעֲנַת גַּנָּב בַּאֲבֵידָה – מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל. וְאִי סָלְקָא דַעְתָּךְ שׁוֹמֵר שָׂכָר הָוֵי, אַמַּאי מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל? קַרְנָא בָּעֵי שַׁלּוֹמֵי!

Abaye said to Rav Yosef: And you, do you not hold that one safeguarding a lost item is like an unpaid bailee? But doesn’t Rabbi Ḥiyya bar Abba say that Rabbi Yoḥanan says: With regard to one who finds a lost item but falsely states the claim that a thief stole the item from him and takes an oath to that effect, he must pay a double payment, i.e., twice the value of the item. And if it enters your mind that the finder of a lost item is considered to have the same status as a paid bailee, why in such a case must he pay a double payment? He should be required to pay only the principal, since a paid bailee is liable in any event if the article is stolen or lost, and he did not stand to benefit from the claim that the item was stolen.

אֲמַר לֵיהּ: הָכָא בְּמַאי עָסְקִינַן – כְּגוֹן שֶׁטּוֹעֵן טַעֲנַת לִסְטִים מְזוּיָּין.

Rav Yosef said to him: With what are we dealing here? It is with a case where the finder took a false oath stating the claim that the deposit was taken by an armed bandit, and in such a case even a paid bailee is exempt. Consequently, his claim would have absolved him from liability, and if the item is subsequently found in his possession, he is liable to pay double for his false claim that it was stolen.

אֲמַר לֵיהּ: לִיסְטִים מְזוּיָּין – גַּזְלָן הוּא!

Abaye said to him: But an armed bandit has the status of a robber and not of a thief, so according to this explanation, why did Rabbi Yoḥanan state that it was stolen by a thief?

אֲמַר לֵיהּ, שֶׁאֲנִי אוֹמֵר: לִסְטִים מְזוּיָּין, כֵּיוָן דְּמִיטַּמַּר מֵאִינָשֵׁי – גַּנָּב הוּא.

Rav Yosef said to him: The reason that only a thief pays the double payment and not a robber is that a thief denigrates God by exhibiting fear of people by stealing surreptitiously while not exhibiting fear of Heaven. This is in contrast to a robber, who robs openly. Accordingly, the reason that I say that an armed bandit is considered as a thief, is since he hides from people rather than stealing openly. Although he in fact does steal openly, since he does so by employing a weapon he also exhibits fear of people, and is akin to a thief. Therefore, armed bandits are liable to pay a double payment as is a thief, and a claim that the deposit was seized by armed bandits is considered to be the same as a claim that it was stolen by thieves. Consequently, since a paid bailee is absolved by means of such a claim, if it is determined that his claim was false he must pay double.

אֵיתִיבֵיהּ:

Abaye raised an objection to the opinion of Rav Yosef from that which is taught in a baraita:

לֹא; אִם אָמַרְתָּ בְּשׁוֹמֵר חִנָּם – שֶׁכֵּן מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל, תֹּאמַר בְּשׁוֹמֵר שָׂכָר – שֶׁאֵינוֹ מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל?

No, if you say that this is the halakha with regard to an unpaid bailee, who pays a double payment, shall you also say that this is the case with regard to a paid bailee, who does not pay a double payment?

וְאִי סָלְקָא דַעְתָּךְ לִסְטִים מְזוּיָּין גַּנָּב הוּא, נִמְצָא בְּשׁוֹמֵר שָׂכָר מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל – בְּטוֹעֵן טַעֲנַת לִסְטִים מְזוּיָּין!

Abaye states his objection: And if it enters your mind to say that an armed bandit is considered like a thief, it turns out that there is a case where a paid bailee pays a double payment, and it is when he states the claim that the deposit was taken by an armed bandit.

אֲמַר לֵיהּ, הָכִי קָאָמַר: לֹא; אִם אָמַרְתָּ בְּשׁוֹמֵר חִנָּם – שֶׁכֵּן מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל בְּכׇל טַעֲנוֹתָיו, תֹּאמַר בְּשׁוֹמֵר שָׂכָר – שֶׁאֵינוֹ מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל אֶלָּא בְּטוֹעֵן טַעֲנַת לִסְטִים מְזוּיָּין.

Rav Yosef said to him: This is what the baraita is saying: No, if you say that this is the halakha with regard to an unpaid bailee, who pays a double payment for any claim that he makes concerning the theft of the item if he is subsequently found to be lying, shall you also say that this is the case with regard to a paid bailee, who pays a double payment for a false claim only when he states the claim that the deposit was taken by an armed bandit.

אֵיתִיבֵיהּ: ״וְנִשְׁבַּר אוֹ מֵת״ – אֵין לִי אֶלָּא שְׁבוּרָה וּמֵתָה, גְּנֵיבָה וַאֲבֵידָה מִנַּיִן? אָמַרְתָּ קַל וָחוֹמֶר – וּמָה שׁוֹמֵר שָׂכָר, שֶׁפָּטַר בּוֹ שְׁבוּרָה וּמֵתָה, חַיָּיב בִּגְנֵיבָה וַאֲבֵידָה; שׁוֹאֵל, שֶׁחַיָּיב בִּשְׁבוּרָה וּמֵתָה – אֵינוֹ דִּין שֶׁחַיָּיב בִּגְנֵיבָה וַאֲבֵידָה? וְזֶהוּ קַל וְחוֹמֶר שֶׁאֵין עָלָיו תְּשׁוּבָה.

Abaye raised an objection to the opinion of Rav Yosef from that which is taught in another baraita: The Torah states with regard to a case where one borrows an object or an animal from another: “And it breaks or dies, he shall pay restitution [shalem yeshalem]” (Exodus 22:13). I have derived only that the borrower is liable in a case where the object or animal breaks or dies; but from where do I derive that he is also liable if it was stolen or lost? You can state the following a fortiori inference: And just as a paid bailee, whom the Torah rendered exempt in a case where the item breaks or dies, is nevertheless liable for a case of theft or loss, then with regard to a borrower, who is liable even if the item breaks or dies, is not it logical that he is liable for theft or loss? And this is an a fortiori inference that has no refutation.

וְאִי סָלְקָא דַּעְתָּךְ לִסְטִים מְזוּיָּין גַּנָּב הוּא, אַמַּאי אֵין עָלָיו תְּשׁוּבָה? אִיכָּא לְמִפְרַךְ: מָה לְשׁוֹמֵר שָׂכָר – שֶׁכֵּן מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל בְּטוֹעֵן טַעֲנַת לִסְטִים מְזוּיָּין!

And if it enters your mind to say that an armed bandit is considered like a thief, why is this an argument that has no refutation? It can be refuted as follows: What is notable about a paid bailee? He is notable in that he pays double payment if he states the claim that the deposit was taken by an armed bandit, whereas a borrower does not pay double in such a case, but only the principal amount.

אֲמַר לֵיהּ, קָסָבַר הַאי תַּנָּא: קַרְנָא בְּלֹא שְׁבוּעָה עֲדִיפָא מִכְּפֵילָא בִּשְׁבוּעָה.

Rav Yosef said to him: This tanna holds that the requirement of a borrower to pay the principal without having the option to exempt himself by taking an oath is stricter than the requirement of a paid bailee to pay the double payment when claiming that it was stolen by an armed bandit, as this obligation is in effect only where he took an oath. Therefore, this doubled payment pertaining to a paid bailee cannot be used as a refutation of the a fortiori inference.

לֵימָא מְסַיַּיע לֵיהּ: הַשּׂוֹכֵר פָּרָה מֵחֲבֵירוֹ, וְנִגְנְבָה, וְאָמַר הַלָּה: ״הֲרֵינִי מְשַׁלֵּם וְאֵינִי נִשְׁבָּע״, וְאַחַר כָּךְ נִמְצָא הַגַּנָּב – מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל לַשּׂוֹכֵר.

The Gemara asks: Let us say that the following baraita supports Rav Yosef’s opinion: In the case of one who rents a cow from another and it is stolen, and this renter says: I will pay for it and I am not taking an oath that the cow was stolen, since I do not wish to take an oath, and afterward the thief is found, the thief pays the double payment to the renter and not to the owner.

סַבְרוּהָ – כְּרַבִּי יְהוּדָה, דְּאָמַר: שׂוֹכֵר כְּנוֹשֵׂא שָׂכָר דָּמֵי; וּמִדְּקָתָנֵי: וְאָמַר ״הֲרֵינִי מְשַׁלֵּם וְאֵינִי נִשְׁבָּע״ – מִכְּלָל דְּאִי בָּעֵי, פָּטַר (לֵיהּ) נַפְשֵׁיהּ בִּשְׁבוּעָה.

The Gemara notes: The Sages who sought to use that baraita to support Rav Yosef’s opinion assumed that the baraita is in accordance with the opinion of Rabbi Yehuda, who says: A renter is like a paid bailee and is liable for theft or loss, but from the fact that it teaches: And he said: I will pay for it and I am not taking an oath that the cow was stolen, one can learn by inference that if the renter wants, he can exempt himself from payment by taking an oath.

הֵיכִי דָּמֵי – כְּגוֹן דְּקָא טָעֵין טַעֲנַת לִסְטִים מְזוּיָּין; וְקָתָנֵי: וְאַחַר כָּךְ נִמְצָא הַגַּנָּב – מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל לַשּׂוֹכֵר; שְׁמַע מִינַּהּ: לִסְטִים מְזוּיָּין גַּנָּב הוּא!

The Gemara clarifies: What are the circumstances? Is it not a case where the renter states a claim that the item was taken by an armed bandit, in which case, as a paid bailee, he does not bear liability? And despite this, the baraita teaches: And if afterward the thief was found, the thief pays the double payment to the renter. Conclude from it that an armed bandit is considered like a thief.

אָמְרִי, מִי סָבְרַתְּ כְּרַבִּי יְהוּדָה – דְּאָמַר: שׂוֹכֵר כְּנוֹשֵׂא שָׂכָר דָּמֵי? דִּלְמָא כְּרַבִּי מֵאִיר סְבִירָא לֵיהּ, דְּאָמַר: שׂוֹכֵר כְּשׁוֹמֵר חִנָּם דָּמֵי.

The Gemara says in rejection of this proof: Do you maintain that this baraita is in accordance with the opinion of Rabbi Yehuda, who says that a renter is considered like a paid bailee? Perhaps this tanna holds in accordance with the opinion of Rabbi Meir, who says that a renter is considered like an unpaid bailee, and on account of that he is absolved of responsibility even if he claimed it was a regular theft.

אִיבָּעֵית אֵימָא, כִּדְמַחְלֵיף רַבָּה בַּר אֲבוּהּ וְתָנֵי: שׂוֹכֵר כֵּיצַד מְשַׁלֵּם? רַבִּי מֵאִיר אוֹמֵר: כְּשׁוֹמֵר שָׂכָר, רַבִּי יְהוּדָה אוֹמֵר: כְּשׁוֹמֵר חִנָּם.

Alternatively, if you wish, say that the baraita is referring to an unarmed bandit and is in accordance with the opinion of Rabba bar Avuh, who reversed the opinions and teaches as follows: How does a renter pay? Rabbi Meir says he has the same liability as a paid bailee, whereas Rabbi Yehuda says he has the same liability as an unpaid bailee. Therefore, even if this baraita is in accordance with the opinion of Rabbi Yehuda, it does not provide support for Rav Yosef’s opinion.

רַבִּי זֵירָא אָמַר: הָכָא בְּמַאי עָסְקִינַן – בְּטוֹעֵן טַעֲנַת לִסְטִים מְזוּיָּין, וְנִמְצָא לִסְטִים שֶׁאֵינוֹ מְזוּיָּין.

Rabbi Zeira said: Even without reversing the opinions, it is possible to explain that the baraita does not provide support for Rav Yosef’s opinion by saying as follows: With what are we dealing here? We are dealing with a case where the renter states the claim that the deposit was taken by an armed bandit, and so he could have absolved himself by taking an oath, but afterward it is found that it was stolen by an unarmed bandit. On account of this, the bandit pays the double payment to the renter. No conclusive proof is brought as to whether one who found a lost item has the status of a paid or unpaid bailee.

נָפְלָה לְגִינָּה וְנֶהֱנֵית – מְשַׁלֶּמֶת מַה שֶּׁנֶּהֱנֵית. אָמַר רַב: בְּנֶחְבְּטָה;

§ The mishna teaches: If the animal fell into a garden and derives benefit, the owner pays for the benefit that it derives. Rav says: This is referring to a case where the vegetables softened the impact of striking the ground, and the owner pays for this benefit of the animal being saved from injury.

אֲבָל אָכְלָה – אֲפִילּוּ מַה שֶּׁנֶּהֱנֵית אֵינָהּ מְשַׁלֶּמֶת. לֵימָא רַב לְטַעְמֵיהּ, דַּאֲמַר רַב: הָיָה לַהּ שֶׁלֹּא תֹּאכַל?

The Gemara comments: This statement of Rav indicates that the owner pays only for what occurred while the animal landed, but if the animal then ate from the garden, the owner is not required to pay even for the benefit that the animal derives. Shall we say that Rav conforms to his standard line of reasoning? As Rav says that in a case where one placed his produce in the courtyard of another without permission, and an animal belonging to the owner of the courtyard ate the produce and was sickened thereby, the owner of the produce is not liable, as he can claim: The animal should not have eaten it. Similarly, here the owner of the animal can say: This animal fell through no fault of mine, and so it is not my fault that it ate.

אָמְרִי: הָכִי הַשְׁתָּא?! אֵימוֹר דְּאָמַר רַב הָתָם ״הָיָה לַהּ שֶׁלֹּא תֹּאכַל״ – הֵיכָא דְּאִיתַּזְקָא הִיא, דְּמָצֵי אֲמַר לֵיהּ מָרֵיהּ דְּפֵירֵי: ״לָא מְשַׁלַּמְנָא, הָיָה לַהּ שֶׁלֹּא תֹּאכַל״; לְאַזּוֹקֵי הִיא אַחֲרִינֵי, דִּפְטִירָה לְשַׁלּוֹמֵי, מִי אָמַר?!

The Sages of the Gemara say: How can these cases be compared? One could say that Rav said there that the animal should not have eaten the produce. This claim is relevant where the animal itself was injured by eating another’s produce, because the owner of the produce can say: I will not pay, because the animal should not have eaten. This is a claim to exempt the owner of the produce from paying the owner of the animal. Did Rav say that when the animal causes damage to another’s produce, the owner can exempt himself from paying the owner of the produce by stating this claim?

אֶלָּא

Rather,

Want to follow content and continue where you left off?

Create an account today to track your progress, mark what you’ve learned, and follow the shiurim that speak to you.

Clear all items from this list?

This will remove ALL the items in this section. You will lose any progress or history connected to them. This is irreversible.

Cancel
Yes, clear all

Are you sure you want to delete this item?

You will lose any progress or history connected to this item.

Cancel
Yes, delete