If one "sends his hand" against a deposit, Beth Shammai say: He is "smitten" with diminution and increase [in the deposit, i.e., If one deposited with him a lamb full of wool, or pregnant, and it were shorn or gave birth after he sent his hand against it, he pays for it, its shearings, and its offspring — whereby he is smitten by its "diminution" while with him. And with "increase": If it became pregnant or wool-laden while with him, he pays it laden and pregnant, as it is now — whereby he is smitten with "increase."] And Beth Hillel say: (He pays) as at the time of being taken out from the owner's house, [if laden, laden; if "empty," "empty."] R. Akiva says: As at the time of the claim [before beth-din, it being written (Leviticus 5:24): "To whom it belongs he shall give it on the day of his guilt" — on the day he is made liable in judgment. The halachah is in accordance with Beth Hillel.] If one thinks to send his hand against a deposit [i.e., If he said before witnesses: "I shall take that man's deposit for myself"], Beth Shammai rule him liable, [it being written (Exodus 22:8): "For every d'var (lit. 'speaking') of violation" — From the time he speaks of sending his hand, he is a violator]. Beth Hillel say: He is not liable until he sends forth his hand, it being written (Exodus 22:7): "If he did not send his hand against the deposit of his neighbor." [As to "For every 'speaking' of violation," Beth Hillel expound it thus: Whence is it derived that if one told his bondsman or his messenger to send his hand against a deposit, he is liable? From: 'For every "speaking" of violation.'"] How so? [Now, Beth Hillel is being explicated. Others say: "How so?" is omitted, and an independent ruling follows.] If one inclined a jug (of wine) and took from it a revi'ith (a fourth of a log) and it broke (afterwards), he pays only a revi'ith. [For sending forth a hand does not render one liable for accidents until he pulls or lifts (the object), this effecting acquisition.] If he lifted it and took a revi'ith from it and it broke, he pays the worth of the whole. [Not necessarily "taking": for if he lifted it in order to take from it he is liable for accidents even if he took nothing from it. And if he took a revi'ith from the jug and the wine remaining in the jug turned sour thereafter, even if he did not lift the jug, he pays for all of the wine, having caused it to turn sour through his act.]
Bartenura on Mishnah Bava Metzia
ילקה בחסר וביתר – from what the deposit is missing and/or how much it increased, such as the case where a person deposited with him a ewe/sheep laden with wool, or pregnant, and it was sheered or it gave birth after he misappropriated it/made illegitimate use of it, he pays for it and for its shorn wool or its offspring, and it results that he is flogged for how much it became [worth] less, or increased, for if it had become pregnant or laden with wool while she was with him, he pays for it as it was laden or pregnant as it is currently, and he is flogged for an increase/addition.
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English Explanation of Mishnah Bava Metzia
If a man makes personal use of a deposit: Bet Shammai holds that he is at a disadvantage whether the value rises or falls. Bet Hillel says: [He must restore the deposit] at its value at the time at which he put it to use. Rabbi Akiva says: [He must restore the deposit] at its value at the time at which it is claimed. A guardian who uses a deposit for his own personal use without having permission to do so is liable to pay back the entire deposit if the deposit should be broken or otherwise lost. The question asked is, at what value is he obligated to do so. For instance if someone left a gold watch worth $500 with him. If he uses the watch and it then breaks or is stolen, he must pay back a watch. However, what would be the law if the price of gold went down and the watch was only worth $400 or vice versa and the price was worth $600. According to Bet Shammai the guardian always pays the higher amount, whether that amount was the initial value or current value. According to Bet Hillel the guardian must pay according to the value of the object when the guardian first used it, whether or not that is the higher amount or not. According to Rabbi Akiva, he must always pay the value at the time of the claim, again whether or not that is the higher amount.
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Bartenura on Mishnah Bava Metzia
ובית הלל אומרים: כשעת הוצאה – From the house of the owners, and if is laden, it is laden, and if it is bare, bare.
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English Explanation of Mishnah Bava Metzia
One who expresses his intention to use a deposit [for personal use]: Bet Shammai says he is liable [for any subsequent damage to the deposit, as if he had already made use of it]. Bet Hillel says: He is not liable until he actually uses it, as it says (Exodus 22:7): “If he had not put his hand onto his neighbor’s property”. How is this so? (1) If he tilted the jug and took a quarter-log of wine and the jug was then broken, he only pays the quarter-log. (2) If he lifted it and then took a quarter-log and the jug was then broken, he pays for the whole jug. According to Bet Shammai, the guardian is liable for the object even if he doesn’t actually use the deposit but lets it be known that he is thinking about using it. From that moment on the deposit has become available to him and he is therefore liable to repay it if it should be lost (and even if he is not negligent). According to Bet Hillel he is only liable if he actually takes the object. How this happens is explained in the end of the mishnah. Tilting a jug but leaving it on the ground is not legally considered “taking possession” of the object in order to be fully obligated for it. In such a case he is only liable for what he took. Only if he actually picks it up and uses it will he be subsequently liable if it breaks and therefore liable for the whole jug.
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Bartenura on Mishnah Bava Metzia
רבי עקיבא אומר כשעת התביעה – as the deposit is (i.e., the condition of the animal) at the time that of its appearance in court, as it is written (Leviticus 5:24): “…He shall pay it to its owner when he realizes his guilt.” He shall give like he is on the day of his guilt, on the day when he is found guilty in court. And the Halakha is according to the School of Hillel.
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English Explanation of Mishnah Bava Metzia
Questions for Further Thought: Mishnah twelve, section one: Explain the reasoning behind Bet Shammai, Bet Hillel and Rabbi Akiva’s statements. How do they each differ from one another?
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Bartenura on Mishnah Bava Metzia
החושב לשלוח יד בפקדון – he said in in the presence of witnesses, “I will take his the deposit of so-and-so for myself.”
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Bartenura on Mishnah Bava Metzia
בית שמאי מחייבים – As it is written (Exodus 22:8): “In all charges of misappropriation –[pertaining to an ox, an ass, a sheep, a garment, or any other loss, whereof one party alleges, ‘This is it,’]…” from the time that he spoke to misappropriate, he is considered negligent.
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Bartenura on Mishnah Bava Metzia
עד שישלח בו יד – As it is written (Exodus 22:7): “…that he has not laid hands on the other’s property.” And this, “In all charges of misappropriation” (Exodus 22:8), the School of Hillel expounds upon this. He says to his servant or to his agent to misappropriate the deposit. Froom when is he liable? There is a teaching in the Scriptural text to intimate, the text reads: “In all charges of misappropriation” (Exodus 22:8).
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Bartenura on Mishnah Bava Metzia
כיצד? הטה את החבית – Now he explains the words of the School of Hillel, and there are books which don’t read "כיצד"/how? And it is a matter for itself.
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Bartenura on Mishnah Bava Metzia
ונשברה – after a time
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Bartenura on Mishnah Bava Metzia
אינו משלם אלא רביעית – misappropriation does not make one liable for unavoidable accidents until he takes possession by drawing/seizing an object or lift it up which is acquisition.
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Bartenura on Mishnah Bava Metzia
הגביהה ונטל – not exactly took, for when it is lifted up in order to to take [something], he is liable for an unavoidable accident, even if he didn’t take anything from it. But if he took a fourth of a Log (a LOG = 6 eggs in volume) from the barrel, and the rest of the wine in the barrel fermented afterwards, even though he did not lift the barrel up, he pays for all the wine, for he caused the wine to ferment, and it is his act that helped it [get sour] (see Bava Metzia 44a).
