Babylonian Talmud: Tractate Baba Kamma

Folio 57a

If a person returns [the lost article which he had found] to a place where the owner is likely to see it, he is not required any longer to concern himself with it. If it is stolen or lost¹  he is responsible for it.²  Now, what is meant by 'If it is stolen or lost'? Does it not mean, 'If it is stolen while in his house or if it is lost while in his house'?³  — No; it means from the place to which it had been returned.⁴  But was it not stated, 'He is not required any longer to concern himself with it'?⁵  — He answered him: We are dealing here with a case where he returned it in the afternoon,⁶  Two separate cases are, in fact, stated in the text, which should read thus: If he returned it in the morning to a place where the owner might see it [at a time] when it was usual with him to go in and out so that he would most likely see it, he would no more be required to concern himself with it, but if he returned it in the afternoon to a place where the owner might see it⁷  [since it was at the time] when it was not usual with him to go in and out [of the house] and he could thus not be expected to see it, if it was stolen or lost there, he would still be responsible for it. He then brought another objection [from the following]: He is always responsible [for its safety] until he has returned it to the keeping of its owner.⁸  Now, what is the meaning of [the term] 'always'? Does it not mean 'even while in the keeper's house'⁹  thus proving that he was like a paid bailee?¹⁰  — Rabbah said to him: I agree with you in the case of living things, for since they are in the habit of running out into the fields they need special watching.¹¹

Rabbah [on the other hand] brought an objection to the view of R. Joseph [from the following: The text says] 'Return';¹²  this tells me only [that it can be returned] to the house of the owner. Whence [could it be derived that it may also be returned] to his garden and to his deserted premises? It says therefore further: Thou shalt return them¹²  [that is to say] 'everywhere'.¹³  Now, to what kind of garden and deserted premises [may it be returned]? If you say to a garden which is closed in and to deserted premises which are closed in, are these not equivalent to his house? It must surely therefore refer to a garden that is not closed in and to deserted premises that are not closed in. Does not this show that a person taking care of a lost article [which he has found] is like an unpaid bailee?¹⁴  — He replied: In point of fact it refers to a garden which is closed in and to deserted premises which are closed in, and as for your questions, 'Are these not equivalent to his house?' [the answer would be that] it is thereby indicated to us that it is not necessary to notify the owner, as indeed [stated by] R. Eleazar,¹³  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.¹⁵

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?¹⁶  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?¹⁷  — He replied:¹⁸  We are dealing here with a case where, for instance, he pleads [that it was taken] by all armed malefactor.¹⁹  But, he rejoined:²⁰  All armed malefactor is surely considered a robber?²¹  — He replied:¹⁸  I hold that an armed malefactor, having regard to the fact that he hides himself from the public, is considered a thief.²²

He²³  brought a [further] objection [from the following]:

1. V. the discussion later.
2. Tosef. B.M. II.
3. But if he would have to pay where the article was stolen or lost this would prove that he is subject to the law of Paid Bailee.
4. The liability would therefore be for carelessness.
5. Why then should he be liable to pay when it was stolen or lost there?
6. When the owner is usually in the fields and not at home.
7. Had he been at home.
8. V. p. 330, n. 8.
9. Where it was stolen or lost.
10. V. p. 330, n. 9.
11. In which case any loss amounts to carelessness.
12. Literal rendering of Deut. XXII, 1.
13. B.M. 31a.
14. And need not take as much care as a paid bailee would have to do.
15. By doubling the verb 'in return', [H]
16. If his false defence of theft has already been corroborated by all oath, v. infra 63a; 106b.
17. 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.
18. I.e. R. Joseph to Abaye.
19. [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.
20. I.e. Abaye to R. Joseph.
21. 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.
22. 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.
23. I.E., Abaye.

No.¹  Because you say that [a certain liability falls on] the unpaid bailee who is subject to pay double payment,²  it does not follow that you can say the same in the case of the paid bailee who does not pay double payment.³  Now if you assume that an armed malefactor is considered a thief,⁴  it would be possible that even a paid bailee would [in some cases] have to make double payment, as where he pleaded that [the articles in his charge were taken] by an armed malefactor!⁵  — He replied:⁶  What was meant is this: No. Because you say that a certain liability falls on the unpaid bailee, who has to make double payment,²  whatever pleas he puts forward,⁷  it does not follow that you can say the same in the case of the paid bailee who could not have to make a double payment except where he puts forward the plea that an armed malefactor⁵  [took away the article in his charge]. He⁸  again brought an objection [from the following]: [From the text] And it be hurt or die⁹  I learn only the case of breakage or death. Whence [could there also be derived cases of] theft and loss?¹⁰  An a fortiori argument may be applied here: If in the case of Paid Bailee who is exempt for breakage and death¹¹  he is nevertheless liable for theft¹²  and loss, in the case of Borrower who is liable for breakage and death⁹  would it not be all the more certain that he should be liable [also] for theft and loss? This a fortiori has indeed no refutation.¹³  Now, if you assume that an armed malefactor is considered a thief why could there be no refutation [of this a fortiori]? It could surely be refuted [thus]: Why [is liability attached] to Paid Bailee if not because he might have to pay double payment where he puts forward the plea [that] an armed malefactor⁵  [took the articles in his charge]?¹⁴  — He said to him:¹⁵  This Tanna held that the liability to pay the principal in the absence of any oath¹⁶  is of more consequence than the liability for double payment which is conditioned by taking the oath.¹⁷

May we say that he¹⁸  derives support [from the following]: If a man hired a cow from his neighbour and it was stolen, and the hirer said, 'I would prefer to pay and not to swear'¹⁹  and [it so happened that] the thief was [subsequently] traced, he should make the double payment to the hirer.²⁰  Now it was presumed that this statement followed the view of R. Judah²¹  who said that Hirer²²  is equal [in law] to Paid Bailee.²³  Since then it says 'the hirer said "I would prefer to pay and not to swear"',¹⁹  this shows that had he wished he could have freed himself by resorting to the oath. Under what circumstances [could this be so]? Where, for instance, he advances the plea that an armed malefactor [took it].²⁴  Now seeing that it says, '… and it so happened that the thief was [subsequently] traced, he should pay the double payment to the hirer',²⁵  can it not be concluded from this that an armed malefactor is considered as a thief?²⁶  — I might answer: Do you presume that this statement follows the view of R. Judah who said that Hirer²²  is equal [in law] to Paid Bailee?²³  Perhaps it follows the view of R. Meir who said that Hirer is equal [in law] to Unpaid Bailee.²⁷  If you wish²⁸  I may say: [We should read the relevant views] as they were transposed by Rabbah b. Abbuha, who [taught thus]: How is the payment [for the loss of articles] regulated in the case of Hirer? R. Meir says: As in the case of Paid Bailee. R. Judah, however, says: As in the case of Unpaid Bailee.²⁹  R. Zera said:³⁰  We are dealing here with a case where the hirer advances the plea [that it was taken by] an armed malefactor, and it was afterwards discovered that [it was taken by] a malefactor without arms.³¹

IF A SHEEP [ACCIDENTALLY] FELL INTO A GARDEN AND DERIVED BENEFIT [FROM THE FRUITS THERE], PAYMENT WOULD HAVE TO BE MADE TO THE EXTENT OF THE BENEFIT. Rab said: [This applies to benefit derived by the animal] from [the lessening of] the impact.³²  But what when it consumed them? Would there be no need to pay even to the extent of the benefit? Shall we say that Rab is here following the principle laid down by him [elsewhere]? For did Rab not say, 'It should not have eaten'?³³  — But what a comparison! Rab said 'It should not have eaten' only there where it was injured [by over-eating itself], so that the owner of the fruits could say [to the plaintiff], 'I will not pay as it should not have eaten [my fruits]'. But did Rab ever say this in the case where the animal did damage to others that there should be exemption?

1. This is a continuation of a Baraitha (now partly lost), which sought at the outset to derive a certain liability (undefined) in the case of a paid bailee by an a fortiori from the case of an unpaid bailee.
2. V. p. 332, n. 2.
3. V. p. 332, n. 3.
4. V. p. 332, n. 9.
5. V. p. 332, n. 5.
6. I.e., R. Joseph to Abaye.
7. I.e., by a thief whether armed or unarmed.
8. I.e. Abaye.
9. Ex. XXII, 13 dealing with a borrower.
10. To involve liability.
11. In accordance with Ex. ibid. 9-10.
12. Ibid. 11.
13. B.M. 95a.
14. Whereas in the case of Borrower there could never be an occasion for double payment, as any plea of theft whether by an armed malefactor or by an ordinary thief would involve the payment of the principal and would thus be an admission of liability and not a defence at all.
15. I.e., R. Joseph to Abaye.
16. Such as is the case with the Borrower.
17. Such as in the case of a Paid Bailee. Cf. also B.M. 41b and 94b.
18. I.e. R. Joseph who maintains that a malefactor in arms is subject to the law applicable to an ordinary thief.
19. In corroboration of my defence.
20. For by offering to pay the value of the cow he acquired title to all possible payments with reference to it, B.M. 34a.
21. As this view was followed in B.M. VII, 8; 36a; 97a; Jeb. 66b; Sheb. VIII, 1 and elsewhere; cf. also 'Er. 46b.
22. Dealt with in Ex. XXII, 14.
23. V. p. 330, n. 3.
24. V. p. 332, n. 5.
25. For by offering to pay the value of the cow he acquired title to all possible payments with reference to it.
26. V. p. 332, n. 9.
27. Who is exempt also where the article was stolen by an ordinary thief, in which case the thief referred to in the Baraitha did not necessarily mean a malefactor in arms but an ordinary thief.
28. To bring the ruling into accord with R. Judah though the reason stated in n. 10 may not apply.
29. V. p. 334, n. 8.
30. That a hirer might be subject to the law of Paid Bailee, and still the Baraitha affords no support to R. Joseph.
31. I.e. an ordinary thief who has to pay double, whereas if he would have been with arms he might perhaps have been subject to the law applicable to a robber, and there would have been no place for double payment.
32. As the fruits protected the animal from being hurt too much.
33. V. supra 47b. And so here the owner of the animal might plead, 'it should not have eaten'.