Let us say that a gratuitous bailee claims that an entrusted item was stolen. Witnesses then come and prove that he himself stole it. If he used the deposit before making his oath, he is exempt from the payment of double. What is the reason?
The way he derives this from the verses is as follows. The Torah is speaking about a bailee who comes before the court to swear that the item was stolen, but only when he did not use the item. If he used the deposit, even though he did not intend to do so improperly, then if it is later discovered that he lied in his oath, he is not liable for double payment. We had a dispute about this yesterday: in what case is a gratuitous bailee who claims that the item was stolen liable for double? Some said that he is liable only when he also used the deposit, while others said that he is liable even when he did not use it. According to the first opinion, the verse applies specifically when he did not use the deposit. Once he used it, he is exempt. That is how he derives the verses.
Rav Nachman asked: There are three oaths that a bailee who claims that an item was stolen must take. First, that he was not negligent; second, that he did not use or benefit from the item improperly; and third, that the item is no longer in his possession. When the bailee takes these three oaths—“I was not negligent, I did not use it, and it is not in my possession”—does the same reasoning apply to all of them?
Just as, when he swears that he did not use the item, and it is later revealed that he did use the deposit, he is liable for double, so too, when he swears that he was not negligent, and it is later revealed that he was negligent, should he be liable for double? The Gemara suggests that this would be the more obvious case: if he used the deposit, he should certainly be liable for double.
Rav says no. We compare the oath, “I was not negligent,” to the oath, “I did not use the deposit.” When it is revealed that he was negligent, he is exempt from double because he did not steal the item himself. It was stolen because of his negligence, but he is not the thief. Similarly, when he swears that he did not use the deposit and it is revealed that he did use it, he is exempt from double. According to this view, if he used the deposit before taking the oath, he is exempt.
Rami bar Hama then asked a question based on a halachah we learned earlier. When a person denies possessing a deposit, swears falsely, and later admits that he does possess it, he must pay the principal, an additional fifth, and bring a guilt-offering. However, if he claims that the deposit was stolen, swears, and witnesses then establish that he himself was the thief, he must pay double. We also learned in a baraita that if he subsequently admits the theft himself, he does not pay the additional fifth, because once he is liable for double, he does not pay the fifth.
What exactly is exempted by the payment of double? Is it the monetary obligation itself—that whenever there is an obligation to pay double, there is no additional fifth—or is it the oath that would have generated the obligation of double? In other words, what element exempts him from the fifth: the monetary payment or the oath?
The Gemara explains the case. He swore that the deposit had been stolen, and witnesses came for that first oath and established that he had possessed the deposit the entire time and was himself the thief. He became liable for double. He then admitted that a second oath he had made—that the item had been lost—was also false. He is liable for double for the first oath and for the additional fifth because of the second oath.
If the monetary obligation is what exempts him from the fifth, then since he is liable for double because of the first oath, he should not have to pay the fifth for the second oath. But if it is specifically an oath that would generate an obligation of double that exempts him, then the second oath would require the fifth, because that oath—that the item had been lost—does not generate an obligation of double. The Gemara will explain this further.
Consider another case. A person tells someone in the marketplace, “Where is the item that you stole?” The other person denies stealing it, and witnesses then come and establish that he did steal it. He must pay. If he admits the theft before the witnesses arrive, he pays the principal and the additional fifth. Here, however, the obligation to pay double comes from the witnesses and the theft itself, not from the oath. He would be liable for double even if he had never sworn.
Furthermore, if he admits after the witnesses arrive, he does not pay the fifth, because once the witnesses arrived, he became liable for double. If the oath itself were what generated the liability for double, then even after the witnesses arrived he should have to pay the fifth, since the oath did not generate the double payment; the witnesses did. The fact that he does not pay the fifth demonstrates that once a person is liable for double, he does not pay the fifth, regardless of whether the double payment resulted from the oath or from the witnesses.
Ravina raised another question. We have said that one person does not pay both double and the additional fifth. Perhaps that limitation applies only when one person would have to make both payments. What about two different people—one who swore falsely and is liable for the fifth, and another who claimed that the item was stolen and was found by witnesses to be the thief and is therefore liable for double? Do we say that the Torah objected only to one person paying both double and the fifth, but that two people may pay the two different amounts? Or is this still considered one payment in which both double and the fifth cannot be collected? The Gemara leaves this as a question.
Rav Papa asked: We have discussed double and the fifth. What about two additional fifths, or two payments of double? How could such cases arise?
One case is where a person claims that the item was lost, swears, admits that the oath was false, and then repeats the same process: he again claims that the item was lost, swears, and admits that the second oath was false. He would then be liable for two additional fifths.
As for two payments of double, he could claim that the item was stolen, swear, and have witnesses establish that he stole it. He could then make the same claim again regarding the same item, and witnesses could again establish that he stole it. Would we say that the Torah objected only to two different types of payments—double and the fifth—but that two payments of the same type are permitted? Or did the Torah prohibit two payments of any kind, even two fifths or two payments of double?
The Gemara answers by citing the verse, “And he shall pay its fifth.” The wording indicates that one item can generate several fifths. Therefore, one person can pay multiple fifths for the same item. The same reasoning applies to double: the Torah did not prohibit multiple payments of double for the same item.
The Gemara then returns to the case of a gratuitous bailee who claimed that the item was stolen. Suppose he did not want to swear. Instead, he paid the owner for the deposit. Later, the thief was found. Who receives the double payment?
The thief pays the double to the bailee, because the bailee paid the owner for the stolen item. Once the bailee paid, the owner transferred ownership of the stolen item to him. The bailee therefore becomes entitled to the double payment. The owner effectively says, “You did me a favor. You could have sworn and been exempt, but instead you paid me.” Since the bailee paid, the owner grants him the item, wherever it may be, and if the thief is found, the bailee receives the double.
What happens if the owner comes to the bailee and says, “Return my item”? In this case, the bailee swears that the item was stolen and is thereby exempt, but he nevertheless decides to pay the owner. Later, the thief is found. Who receives the double payment?
Abaye says that the original owner receives it. This case differs from the case in Bava Metzia, where the bailee did not swear at all and simply offered to pay. Here, the bailee actually swore, “I swear that the item was lost,” and only afterward decided to pay. Abaye says that the owner does not transfer ownership of the item to the bailee in this case.
Why? The owner had already brought the bailee to court and required him to swear. In the earlier case, the bailee immediately admitted that the item had been stolen and offered to pay, so he did not impose any trouble on the owner. The owner could say, “You are a good person; I will grant you the stolen item.” Here, however, the bailee initially denied responsibility and forced the owner to bring him to court and require an oath. Since he caused the owner that trouble, the owner does not transfer the item to him merely because he eventually paid. Therefore, the original owner receives the double payment.
The dispute between Abaye and Rava depends on how we read our Mishnah. The Mishnah states that when a deposit was stolen or lost, and the bailee paid rather than swore, he receives the double payment if the thief is later found. The continuation states that if he swore and did not want to pay, and the thief was then found, the thief pays the double payment to the owner.
Abaye derives his position from the first part of the Mishnah. It says that he paid because he did not want to swear. The implication is that this applies when he did not want to swear from the outset and paid immediately. If, however, he swore first and only afterward decided to pay, the owner would receive the double payment.
Rava derives his position from the continuation. The Mishnah says that he swore and did not want to pay. The implication is that if he swore and did want to pay, the bailee would receive the double payment. In other words, according to Rava, even if he swore and thereby became exempt, if he then decided not to rely on that oath and paid the owner, he receives the double payment.
How does Abaye understand the continuation? He reads it as follows: “He swore and did not want to pay before the oath.” That is, he did not want to pay before swearing; he wanted to swear instead. Once he swore, he was exempt, and even if he subsequently paid, the owner would not transfer ownership of the stolen item to him. That is how Abaye reads the continuation.
How does Rava understand the first part? He reads it as saying, “He paid and did not want to remain bound by his oath.” The point is that he paid rather than taking advantage of the exemption created by the oath. Even though he swore and became exempt, he did not want to rely on the oath. He paid, and therefore the double payment goes to the bailee. This is the well-known dispute between Abaye and Rava regarding a bailee who swore and then paid: Rava says that the bailee receives the double payment, while Abaye says that the original owner receives it.
The Gemara presents another case. The owner comes to the bailee and says, “Return my item.” The bailee goes to the thief and says, “Return the item.” The thief admits to the bailee that he stole it, but when the original owner confronts the thief, the thief denies possessing it. The owner then brings witnesses who establish that the thief had stolen it.
A person who admits liability for a fine is exempt from the fine. Therefore, the question is whether the thief’s admission to the bailee exempts him from double payment. Does the bailee’s ability to apprehend the thief make him sufficiently connected to the owner that the thief’s admission before him is treated as an admission before the owner? Or is the bailee merely an outsider, since the item belongs to the original owner and the bailee had already sworn that it was stolen?
Rava says that if the bailee swore truthfully—that the item had been stolen beyond his control—then the thief’s admission before him exempts the thief from double payment. Since the bailee was an honest bailee, we can assume that if the item were still in his possession, the owner would want him to continue watching it. The bailee remains connected to the owner, and his action in pursuing the thief is comparable to the owner’s action. Therefore, the thief’s admission before the bailee is treated as an admission before the owner.
However, if the bailee swore falsely—claiming that the item had been stolen when he had actually been negligent—then the relationship between him and the owner has been severed. The owner would not want him to continue serving as a bailee. He is now an outsider, and when he apprehends the thief, the thief’s admission before him has no effect. The thief must pay double to the original owner. Thus, everything depends on whether the bailee’s original oath was truthful.
Rava raises a technical question about this principle. What if the owner came to the bailee, and the bailee intended to swear falsely, but the court did not allow him to swear? He then found the thief, and the thief admitted the theft before him. Does the mere intention to swear falsely sever the relationship between the bailee and the owner, so that the thief’s admission before the bailee is ineffective? Or do we say that since he never actually swore falsely, the relationship remains intact and the admission is effective?
That is how Rava understood the question. There was another version of the question: What if the bailee actually swore falsely? If he swore truthfully, the thief’s admission is certainly effective. The question is whether, even after the bailee actually swore falsely, the thief’s admission before him might still be effective because the bailee remains connected to the owner in some respect. The Gemara leaves the matter unresolved.
The Gemara presents another case. The owner comes to the bailee, and the bailee pays him rather than swearing. The thief is then found. The owner goes to the thief, who admits that he stole the item. The bailee then goes to the thief, who denies possessing it, and the bailee brings witnesses who establish that the thief stole it.
Does the thief’s admission to the original owner exempt him from double payment, since one who admits to a fine is exempt? If so, the bailee would not receive double payment, because the thief already admitted the theft to the owner. Or do we say that once the bailee paid for the item, the owner transferred ownership to him? The bailee can say, “Since I paid you, you are no longer part of the matter. This is now my item.” Since the thief denied the theft to the bailee and witnesses then established it, the bailee should receive the double payment.
The owner, however, could respond: “Just as you did me a favor by paying me—even though you could have sworn and been exempt—I did you a favor by pursuing the thief. You paid me, and I went to find the item for you. The fact that the thief happened to admit the theft to me should not deprive you of the benefit of my efforts.” Perhaps, therefore, the owner remains part of the matter, and the thief’s admission to him exempts the thief from double payment. The Gemara leaves this question as well.
The Gemara now discusses another law. A gratuitous bailee is liable when he is negligent, but he is exempt if the item is stolen or lost through circumstances beyond his control. Suppose an animal entrusted to a bailee was stolen under circumstances beyond the bailee’s control—for example, a thief held him at gunpoint and took the animal. The bailee had not yet sworn that the item was stolen when the thief was found.
Abaye says that if the bailee was a gratuitous bailee, he has a choice. He can pay the owner for the stolen item and then pursue the thief himself, or he can swear to the owner that the item was stolen beyond his control and thereby become exempt, leaving the owner to pursue the thief.
If he was a paid bailee, however, Abaye says that he must pay the owner and then pursue the thief himself. A paid bailee is normally exempt in a case of theft beyond his control if he swears that this is what happened. Why, then, does he have to pay here? Since the thief has already been identified, it is easy for the paid bailee to pursue him. The paid bailee is being compensated to perform his duties, so we do not impose the trouble of pursuing the thief on the owner. Instead, the bailee must pay the owner and recover the money from the thief, even though he would ordinarily have been exempt if he had sworn.
Thus, according to Abaye, there is a distinction between a gratuitous bailee and a paid bailee. A gratuitous bailee is given flexibility: he may pay the owner and pursue the thief, or he may swear and exempt himself. A paid bailee must pay the owner and pursue the thief himself.
Rava disagrees with Abaye. According to Rava, in both cases the bailee must pay the owner and pursue the thief, whether he is a gratuitous bailee or a paid bailee.
This dispute appears to depend on a teaching sent by Rav Huna bar Avin: When an item was stolen and the thief has been identified, if the bailee is a gratuitous bailee, he may either pay and pursue the thief or swear; but if he is a paid bailee, he must pay and pursue the thief and may not swear. This teaching clearly follows Abaye, who distinguishes between the two types of bailees.
Rava responds that the teaching of Rav Huna bar Avin is discussing a case in which the bailee had already sworn before the thief was identified. Once he had sworn that the item was stolen beyond his control, he was already exempt. Therefore, when the thief is subsequently identified, the bailee does not have to pay. The teaching is not proof of a dispute between Abaye and Rava in a case where the bailee had not yet sworn.
According to Rava, when we say that the bailee must pay once the thief has been identified, that applies only before he has sworn. Once he has already sworn, he is exempt. Even if he is a paid bailee, he does not have to pay merely because the thief was later identified, since he was already exempt through his oath.
The Gemara examines the wording of Rav Huna bar Avin’s teaching. If the gratuitous bailee had already sworn, how can the teaching say that he may choose between paying and swearing? The Gemara answers that even after swearing, a gratuitous bailee may still choose to pay. He may stand by his oath and remain exempt, or he may pay the owner and then pursue the thief. The question is not whether he is exempt after the oath; he is. The question is whether he may nevertheless choose to pay.
Finally, Rabba Zutra raised the following question. An item was stolen from a bailee under circumstances beyond his control, and the thief later returned it to the bailee’s house. After the item was returned, it died because of the bailee’s negligence. Is the bailee liable?
Perhaps once the item was stolen, the original period of guardianship ended. When the thief returned it, this was a new situation, and the bailee was not employed to watch the item any longer. Even if he was negligent after its return, perhaps he is not liable as a bailee.
Alternatively, perhaps once the thief returned the item, the bailee returned to his original status as a bailee. Since he must pursue the thief and recover the item for the owner, the guardianship may never have ended. If the item is returned to his possession, he must continue to guard it, and negligence would make him liable.
The Gemara leaves this question unresolved.