Bava Metzia 3

הַמַּפְקִיד אֵצֶל חֲבֵרוֹ בְּהֵמָה אוֹ כֵלִים, וְנִגְנְבוּ אוֹ שֶׁאָבְדוּ, שִׁלֵּם וְלֹא רָצָה לִשָּׁבַע, שֶׁהֲרֵי אָמְרוּ שׁוֹמֵר חִנָּם נִשְׁבָּע וְיוֹצֵא, נִמְצָא הַגַּנָּב, מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל. טָבַח וּמָכַר, מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה. לְמִי מְשַׁלֵּם, לְמִי שֶׁהַפִּקָּדוֹן אֶצְלוֹ. נִשְׁבַּע וְלֹא רָצָה לְשַׁלֵּם, נִמְצָא הַגַּנָּב, מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל, טָבַח וּמָכַר, מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה. לְמִי מְשַׁלֵּם, לְבַעַל הַפִּקָּדוֹן:

If one deposited with his neighbor a beast or vessels, and they were stolen or lost, and he (the neighbor) paid, not wishing to swear [the oath of the watchers (Shemoth 22:10), whereby he could have exempted himself, if he had sworn that he had not been derelict and had not "sent forth his hand" against it], for they said that one who watches gratis (shomer chinam) swears and is exempt — If the thief were found, he pays kefel. If he slaughtered and sold it, he pays four and five. To whom does he pay? To the one it (the animal) was deposited with. [For since he paid, he acquired all of its payments. And even if he did not pay, but only said in beth-din: "I shall pay," he acquires all of its payments, whether kefel or four and five.] If he swore, not wishing to pay, if the thief were found, he pays kefel. If he slaughtered and sold it, he pays four and five. To whom does he pay? To the owner of the deposit.

הַשּׂוֹכֵר פָּרָה מֵחֲבֵרוֹ וְהִשְׁאִילָהּ לְאַחֵר, וּמֵתָה כְדַרְכָּה, יִשָּׁבַע הַשּׂוֹכֵר שֶׁמֵּתָה כְדַרְכָּה, וְהַשּׁוֹאֵל יְשַׁלֵּם לַשּׂוֹכֵר. אָמַר רַבִּי יוֹסֵי, כֵּיצַד הַלָּה עוֹשֶׂה סְחוֹרָה בְּפָרָתוֹ שֶׁל חֲבֵרוֹ, אֶלָּא תַחֲזֹר פָּרָה לַבְּעָלִים:

If one hired a cow from his neighbor and lent it to another [with the owner's permission (for we rule that one watcher who gives to another without permission is liable)], and it died normally, the hirer swears [to the owner] that it died normally, [and he is exempt from payment, a hirer being exempt (from payment) for accidents (like death)], and the borrower, [who is liable for accidents] pays the hirer. R. Yossi said: If so, he (the hirer) "does business" with his neighbor's cow! Rather (payment for) the cow is returned to the owner. [The halachah is in accordance with R. Yossi.]

אָמַר לִשְׁנַיִם, גָּזַלְתִּי לְאֶחָד מִכֶּם מָנֶה, וְאֵינִי יוֹדֵעַ אֵיזֶה מִכֶּם, אוֹ, אָבִיו שֶׁל אֶחָד מִכֶּם הִפְקִיד לִי מָנֶה, וְאֵינִי יוֹדֵעַ אֵיזֶה הוּא, נוֹתֵן לָזֶה מָנֶה וְלָזֶה מָנֶה, שֶׁהוֹדָה מִפִּי עַצְמוֹ:

If he said to two (men): "I stole a maneh from one of you, and I do not know which one," or (if he said:) "The father of one of you deposited a maneh with me, and I do not know which," he gives one a maneh and the other a maneh, having admitted this of himself. [("If he said to two":) and they claim nothing, but he comes to satisfy the "claims of Heaven," he gives each one a maneh. But if two make a claim upon him, and he admits that he stole from one of them, each one of them swears that he stole from him, and he gives a maneh to each one, the sages penalizing him for transgressing the interdict against theft. Likewise, if two made a claim against someone, each one saying: "My father deposited a maneh with you," and he saying: "The father of one of you did so, but I do not know which," each one of them swears that his father deposited a maneh with him, and he gives each one a maneh, being guilty of dereliction. For he should have taken care to remember who deposited it with him.]

שְׁנַיִם שֶׁהִפְקִידוּ אֵצֶל אֶחָד, זֶה מָנֶה וְזֶה מָאתַיִם, זֶה אוֹמֵר שֶׁלִּי מָאתָיִם וְזֶה אוֹמֵר שֶׁלִּי מָאתָיִם, נוֹתֵן לָזֶה מָנֶה וְלָזֶה מָנֶה, וְהַשְּׁאָר יְהֵא מֻנָּח עַד שֶׁיָּבֹא אֵלִיָּהוּ. אָמַר רַבִּי יוֹסֵי, אִם כֵּן מַה הִפְסִיד הָרַמַּאי. אֶלָּא הַכֹּל יְהֵא מֻנָּח עַד שֶׁיָּבֹא אֵלִיָּהוּ:

If two deposited with him, one a hundred; the other, two hundred [as when they deposited it at the same time, one right before the other] — the first says: "The two hundred is mine"; the second: "The two hundred is mine," he gives the first a hundred and the second a hundred, and the rest is set aside until Eliyahu comes. [For he can tell them: "You were not particular about each other, that the other might claim the two hundred — I, too, did not have to be particular to know who gave me the two hundred." So that it is as if they placed all three hundred in a bundle before him, it not devolving upon him to learn what in it belonged to the one, and what to the other.] R. Yossi said: "If so, what did the deceiver lose!" [He never will admit the truth.] Rather, the whole is set aside until Eliyahu comes.

וְכֵן שְׁנֵי כֵלִים, אֶחָד יָפֶה מָנֶה וְאֶחָד יָפֶה אֶלֶף זוּז, זֶה אוֹמֵר יָפֶה שֶׁלִּי וְזֶה אוֹמֵר יָפֶה שֶׁלִּי, נוֹתֵן אֶת הַקָּטָן לְאֶחָד מֵהֶן, וּמִתּוֹךְ הַגָּדוֹל נוֹתֵן דְּמֵי קָטָן לַשֵּׁנִי, וְהַשְּׁאָר יְהֵא מֻנָּח עַד שֶׁיָּבֹא אֵלִיָּהוּ. אָמַר רַבִּי יוֹסֵי, אִם כֵּן מַה הִפְסִיד הָרַמַּאי. אֶלָּא הַכֹּל יְהֵא מֻנָּח עַד שֶׁיָּבֹא אֵלִיָּהוּ:

Similarly, two vessels, one worth a hundred; the other, a thousand, one man saying: "The dearer is mine"; the other: "The dearer is mine" — the smaller is given to one of them, and from the larger, the value of the smaller is given to the other, and the rest is set aside until Eliyahu comes. [This is required for the rabbis, to teach us: "Not only here, but also here.", i.e., Not only in (the above instance of) one hundred and two hundred, where there is no need to break a vessel, do the rabbis say that each is given one hundred, but even in an instance of two vessels, where a loss is involved, it being necessary to break the large vessel in order to give from it the value of the smaller — so that when Eliyahu comes, the owner of the large vessel will be found to have lost, his vessel having been broken — so that it might be thought that in such an instance the rabbis would concur with R. Yossi that all is to be set aside until Eliyahu comes — we are, therefore, apprised otherwise. The halachah is in accordance with the sages.] R. Yossi says: If so, what did the deceiver lose! Rather, all is to be set aside until Eliyahu comes.

הַמַּפְקִיד פֵּרוֹת אֵצֶל חֲבֵרוֹ, אֲפִלּוּ הֵן אֲבוּדִין לֹא יִגַּע בָּהֶן. רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר, מוֹכְרָן בִּפְנֵי בֵית דִּין, מִפְּנֵי שֶׁהוּא כְמֵשִׁיב אֲבֵדָה לַבְּעָלִים:

If one deposits fruits with his neighbor, even if they undergo loss [because of mice or decay], he may not touch them [to sell them. For "a man prefers one measure of his own to nine measures of his neighbor." His measure is beloved by him because he worked for it, more (beloved) than nine measures of others that he would receive for selling it. The rabbis say: "He may not touch them," only if they undergo the normal loss indicated in our Mishnah (below): for wheat and rice, nine half-kavin to a kor, etc. But if they undergo more than the normal loss, the sages concede to R. Shimon b. Gamliel that he sells them through beth-din. The halachah is in accordance with the sages.] R. Gamliel says: He sells them before beth-din, for he is like one returning a lost object to its owner.

הַמַּפְקִיד פֵּרוֹת אֵצֶל חֲבֵרוֹ, הֲרֵי זֶה יוֹצִיא לוֹ חֶסְרוֹנוֹת. לְחִטִּין וּלְאֹרֶז, תִּשְׁעָה חֲצָאֵי קַבִּין לְכוֹר, לִשְׂעֹרִין וּלְדֹחַן, תִּשְׁעָה קַבִּין לְכוֹר, לְכֻסְמִין וּלְזֶרַע פִּשְׁתָּן, שָׁלשׁ סְאִין לְכוֹר. הַכֹּל לְפִי הַמִּדָּה, הַכֹּל לְפִי הַזְּמָן. אָמַר רַבִּי יוֹחָנָן בֶּן נוּרִי, וְכִי מָה אִכְפַּת לָהֶן לָעַכְבָּרִין, וַהֲלֹא אוֹכְלוֹת בֵּין מֵהַרְבֵּה וּבֵין מִקִּמְעָא. אֶלָּא אֵינוֹ מוֹצִיא לוֹ חֶסְרוֹנוֹת אֶלָּא לְכוֹר אֶחָד בִּלְבָד. רַבִּי יְהוּדָה אוֹמֵר, אִם הָיְתָה מִדָּה מְרֻבָּה, אֵינוֹ מוֹצִיא לוֹ חֶסְרוֹנוֹת, מִפְּנֵי שֶׁמּוֹתִירוֹת:

If one deposited fruits with his neighbor [and the latter mixed them up with his fruits and ate of them without knowing how much, when he comes to return them,] he deducts for [the normal] loss: for wheat and rice, nine half-kavin to a kor. [The kor is thirty sa'ah; the sa'ah is six kavin.] For barley and millet, nine kavin to a kor. For spelt and flax seed, three sa'ah to a kor, all according to the amount [i.e., the same for each kor], all according to the time [that he left them with him. For each year he deducts that amount.] R. Yochanan b. Nuri said: What difference does it make to the mice? Do they not eat [the same amount] from a large measure as from a small one? [Therefore,] he deducts the loss only for one kor, [i.e., nine half-kavin for a year, whether for one kor or for ten.] R. Yehudah says: If it were a large amount [i.e., if he deposited with him a large amount, ten korim and above], he does not deduct for loss, for there is a surplus. [For in the time of threshing, when the grain is deposited, it is dry; and in the rainy season, when it is returned, it is swollen, so that too much is not lost because of the mice, the mice not eating that much from ten korim. Therefore, the swelling compensates for the eating of the mice. The halachah is neither in accordance with R. Yehudah nor with R. Yochanan b. Nuri. All of these measurements obtain in Eretz Yisrael and in the days of the tannaim. But in other lands and in these times, all is in accordance with the normal loss of seeds in those lands and times.]

יוֹצִיא לוֹ שְׁתוּת לְיַיִן. רַבִּי יְהוּדָה אוֹמֵר, חֹמֶשׁ. יוֹצִיא לוֹ שְׁלשֶׁת לֻגִּין שֶׁמֶן לְמֵאָה, לֹג וּמֶחֱצָה שְׁמָרִים, לֹג וּמֶחֱצָה בָּלַע. אִם הָיָה שֶׁמֶן מְזֻקָּק, אֵינוֹ מוֹצִיא לוֹ שְׁמָרִים. אִם הָיוּ קַנְקַנִּים יְשָׁנִים, אֵינוֹ מוֹצִיא לוֹ בָּלַע. רַבִּי יְהוּדָה אוֹמֵר, אַף הַמּוֹכֵר שֶׁמֶן מְזֻקָּק לַחֲבֵרוֹ כָּל יְמוֹת הַשָּׁנָה, הֲרֵי זֶה מְקַבֵּל עָלָיו לֹג וּמֶחֱצָה שְׁמָרִים לְמֵאָה:

He deducts a sixth for wine [if he deposited wine with him, and it got mixed up with his wine. (The vessels absorb a sixth.)] R. Yehudah says: A fifth. [For the earth from which the vessels were made in the locale of R. Yehudah absorbed a fifth; all according to the locale.] He deducts three logs of oil to a hundred — a log and a half for lees; a log and a half for absorption. If it were refined oil, he does not deduct for lees. If they were old vessels, he does not deduct for absorption. R. Yehudah says: Also if one sells refined oil to his neighbor all the days of the year, he (the buyer) accepts (a deduction of) one and a half to a hundred for lees. [Just as they stipulated (a deduction for) lees for the depositor, so they stipulated it for the seller, viz.: If one sells oil to his neighbor and gives him from his jugs refined oil which he constantly uses, the buyer accepts a deduction of a log and a half to each hundred for lees. The halachah is not in accordance with R. Yehudah.]

הַמַּפְקִיד חָבִית אֵצֶל חֲבֵרוֹ, וְלֹא יִחֲדוּ לָהּ הַבְּעָלִים מָקוֹם, וְטִלְטְלָהּ וְנִשְׁבְּרָה, אִם מִתּוֹךְ יָדוֹ נִשְׁבְּרָה, לְצָרְכּוֹ, חַיָּב, לְצָרְכָּהּ, פָּטוּר. אִם מִשֶּׁהִנִּיחָהּ נִשְׁבְּרָה, בֵּין לְצָרְכּוֹ בֵּין לְצָרְכָּהּ, פָּטוּר. יִחֲדוּ לָהּ הַבְּעָלִים מָקוֹם, וְטִלְטְלָהּ וְנִשְׁבְּרָה, בֵּין מִתּוֹךְ יָדוֹ וּבֵין מִשֶּׁהִנִּיחָהּ, לְצָרְכּוֹ, חַיָּב, לְצָרְכָּהּ, פָּטוּר:

If one deposited a jug with his neighbor and the owner did not designate a place for it [in the house of the watcher, saying: "Lend me this corner"], and he (the watcher) moved it and it were broken — If it were broken (by falling) from his hand: If (he moved it) for his need, [i.e., to use it], he is liable; for its need, [it being in a place where it was likely to be broken], he is not liable. If it were broken after he put it down, whether for his need or for its need, he is not liable. [If after using it he put it in a guarded place, whether he had moved it in the beginning for his need or for its need, he is not liable. For we say that when he returns it (to its place), it is in the domain of the owner as before, and his status is that of an unpaid watcher, who is not liable for accidents, even though he did not apprise the owner, saying: "I took it and returned it." The first part of the Mishnah is in accordance with R. Yishmael, who says that if one steals a lamb from the flock and returns it to its place, he is not liable, it not being necessary to apprise the owner. As to "and the owner does not designate a place for it," this is a "Not only" construction, i.e.: Not only when the owner designates a place for it, and he returns it to its designated place after using it for his need is he not liable even if he did not apprise the owner, having returned it to its designated place — but even when the owner does not designate a place for it, there being no special place for it, if he returns it he is not liable, having returned it to a guarded place, it not being necessary to apprise the owner.] If the owner designated a place for it, and he moved it and it were broken, whether from his hand or after having put it down — If for his need, he is liable; if for its need, he is not liable. [This latter part (of the Mishnah) is in accordance with R. Akiva, who says that if one steals a lamb from the flock and returns it to its place and it met with mishap, he is always liable unless he had apprised the owner that he had stolen and returned it. The same applies after he had used it for his need and become a thief in respect to it — Even if he puts it down in a guarded place, he is liable. As to its being stated in this latter part: "If the owner designates a place for it," this is a "Not only" construction, i.e.: Not only when he does not designate a place is he liable when he puts it down after using it for his need, not having put it down in a place designated for it; but even when he designates a place and he puts it down again in that place, he is liable, it being necessary to apprise the owner. The first part (of the Mishnah) is in accordance with R. Yishmael, and the second part, with R. Akiva. Thus is it construed in the Gemara.]

הַמַּפְקִיד מָעוֹת אֵצֶל חֲבֵרוֹ, צְרָרָן וְהִפְשִׁילָן לַאֲחוֹרָיו, אוֹ שֶׁמְּסָרָן לִבְנוֹ וּלְבִתּוֹ הַקְּטַנִּים, וְנָעַל בִּפְנֵיהֶם שֶׁלֹּא כָרָאוּי, חַיָּב, שֶׁלֹּא שָׁמַר כְּדֶרֶךְ הַשּׁוֹמְרִים. וְאִם שָׁמַר כְּדֶרֶךְ הַשּׁוֹמְרִים, פָּטוּר:

If one deposited money with his neighbor and he bound it [in his scarf] and slung it over his shoulder, [even though this is bona fide guarding, he is liable. For if one takes money deposited with him from place to place, the only valid guarding is in his hand, it being written (Deuteronomy 14:25): "And you shall bind the money in your hand" — Though it is bound, it must be in your hand. And in a house, it is guarded only in the ground. And in a wall, in the handbreadth close to the ceiling or the handbreadth close to the ground, thieves not being likely to search there. If he guarded them in any other way, he is considered derelict, and he is liable — unless he stipulated ab initio with the depositor that he accepts it only on condition that he not be liable for all of these "guardings."]; or if he gave it to his minor son or daughter, and "closed up" inadequately before them, he is liable, for he did not watch in the manner of the watchers. But if he watched in the manner of the watchers, he is not liable. [But if he gave it to grown ones, they swear that they guarded it in the manner of the watchers and they are not liable. And we do not say in such an instance that a watcher who gives to a watcher is liable. For it is customary for one to deposit with his wife or children what has been deposited with him. And one who deposits something with another does it with this understanding.]

הַמַּפְקִיד מָעוֹת אֵצֶל שֻׁלְחָנִי, אִם צְרוּרִין, לֹא יִשְׁתַּמֵּשׁ בָּהֶם, לְפִיכָךְ אִם אָבְדוּ אֵינוֹ חַיָּב בְּאַחֲרָיוּתָן, מֻתָּרִין, יִשְׁתַּמֵּשׁ בָּהֶן, לְפִיכָךְ אִם אָבְדוּ חַיָּב בְּאַחֲרָיוּתָן. אֵצֶל בַּעַל הַבַּיִת, בֵּין צְרוּרִין וּבֵין מֻתָּרִים לֹא יִשְׁתַּמֵּשׁ בָּהֶן, לְפִיכָךְ אִם אָבְדוּ אֵינוֹ חַיָּב בְּאַחֲרָיוּתָן. חֶנְוָנִי כְּבַעַל הַבַּיִת, דִּבְרֵי רַבִּי מֵאִיר. רַבִּי יְהוּדָה אוֹמֵר, חֶנְוָנִי כַּשֻּׁלְחָנִי:

If one deposits money with a money changer, if it is bound [and sealed or tied with a distinct knot], he may not use it. Therefore, if it is lost, he is not liable for restoration. [But if it is not sealed or tied with a distinct knot, even though it is bound, it is regarded as open and not bound at all, and he may use it.] If it is unbound, he may use it. Therefore, if it is lost, he is liable for restoration, [Even if he did not use it, he is like a hired watchman in respect to it, for he can use it, and he is liable for theft or loss. And if he uses it, it is like a loan to him, and he is liable, also, for accident.] (If he deposits it) with a homeowner, whether bound or unbound, he may not use it. Therefore, if it is lost, he is not liable for restoration. A shopkeeper is like a homeowner. These are the words of R. Meir. R. Yehudah says: A shopkeeper is like a money lender. [The halachah is in accordance with R. Yehudah.]

הַשּׁוֹלֵחַ יָד בְּפִקָּדוֹן, בֵּית שַׁמַּאי אוֹמְרִים, יִלְקֶה בְחָסֵר וּבְיָתֵר. וּבֵית הִלֵּל אוֹמְרִים, כִּשְׁעַת הוֹצָאָה. רַבִּי עֲקִיבָא אוֹמֵר, כִּשְׁעַת הַתְּבִיעָה. הַחוֹשֵׁב לִשְׁלֹחַ יָד בְּפִקָּדוֹן, בֵּית שַׁמַּאי אוֹמְרִים, חַיָּב. וּבֵית הִלֵּל אוֹמְרִים, אֵינוֹ חַיָּב עַד שֶׁיִּשְׁלַח בּוֹ יָד, שֶׁנֶּאֱמַר (שמות כב) אִם לֹא שָׁלַח יָדוֹ בִּמְלֶאכֶת רֵעֵהוּ. כֵּיצַד. הִטָּה אֶת הֶחָבִית וְנָטַל הֵימֶנָּה רְבִיעִית, וְנִשְׁבְּרָה, אֵינוֹ מְשַׁלֵּם אֶלָּא רְבִיעִית. הִגְבִּיהָהּ וְנָטַל הֵימֶנָּה רְבִיעִית, וְנִשְׁבְּרָה, מְשַׁלֵּם דְּמֵי כֻלָּהּ:

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.]