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Steinsaltz

Rabbi Yoḥanan continues: And I say that misappropriation by a paid bailee is not different.

The Gemara elaborates: And what is meant by: Misappropriation that is stated with regard to a paid bailee is different from misappropriation that is stated with regard to an unpaid bailee? As one could claim: Let misappropriation not be stated with regard to a paid bailee, and derive it from misappropriation with regard to an unpaid bailee by means of an a fortiori inference: And if an unpaid bailee, who is exempt in cases where he claims theft and loss, misappropriated the deposit, he is liable to pay, then a paid bailee, who is liable in cases where he claims theft and loss, all the more so is it not clear that he is liable if he misappropriated the deposit? With regard to what halakha did the Merciful One write misappropriation in the case of a paid bailee? It is to say to you: Misappropriation does not require loss; intent to misappropriate is enough to render him liable to pay.

Rabbi Yoḥanan stated: And I say that it is not different, in accordance with the opinion of Rabbi Elazar, who says: This case and that case are one. The Gemara elaborates: What is the meaning of: This and that are one? It means that it was necessary to teach misappropriation in both cases due to the fact that it can be refuted by an a fortiori inference: What is notable about an unpaid bailee? He is notable in that he pays the double payment when he falsely states the claim that a thief stole the deposit. A paid bailee reimburses the owner only for the cost of the deposit in that case. The legal status of the paid bailee is not consistently more stringent than that of an unpaid bailee, and therefore no a fortiori inference is possible.

The Gemara comments: And the one who does not refute the a fortiori inference holds: The absolute requirement to pay the principal even without having taken a false oath is more stringent than the requirement to pay the double payment that is effected only with the bailee taking a false oath. In his opinion, the legal status of the paid bailee is consistently more stringent than that of an unpaid bailee, and therefore an a fortiori inference is possible.

Rava says: The verse should not state misappropriation, neither with regard to an unpaid bailee nor with regard to a paid bailee, and one can derive it by means of an a fortiori inference from misappropriation with regard to a borrower: And if a borrower, who utilizes the deposit with the knowledge of the owner, misappropriated the deposit, he is liable to pay, then with regard to an unpaid bailee and a paid bailee, who may not utilize the deposit at all, all the more so is it not clear that they are liable to pay if they misappropriate the deposit?

Why, then, is the halakha of misappropriation stated in the cases of the unpaid and paid bailees? One mention is to say to you: Misappropriation does not require loss. And the other mention is so that you will not say: With regard to this a fortiori inference, there is principle: It is sufficient for the conclusion inferred from an a fortiori inference to be like the source of the inference, and thereby conclude: Just as a borrower who is in partnership with the owner is exempt, so too, an unpaid bailee and a paid bailee who are in partnership with the owner are exempt. Consequently, it was necessary for the verse to mention the halakha of misappropriation with regard to both the paid and unpaid bailee.

The Gemara asks: And according to the one who says: Misappropriation requires a loss, why do I need these two mentions of misappropriation? The Gemara explains: One mention is so that you will not say with regard to this a fortiori inference the principle: It is sufficient for the conclusion that emerges from an a fortiori inference to be like its source.

And the other mention is for that which is taught in a baraita. It is written: “And the master of the house shall approach the judges to determine whether he misappropriated his neighbor’s goods” (Exodus 22:7). This is stated with regard to an oath. Do you say that it is stated with regard to an oath, or is it stated only with regard to judgment? Misappropriation is stated below, in a later verse in the chapter: “Whether he misappropriated his neighbor’s goods” (Exodus 22:10), and misappropriation is stated above, in an earlier verse in the chapter: “Whether he misappropriated his neighbor’s goods” (Exodus 22:7). Just as below it is stated explicitly with regard to an oath: “The oath of the Lord shall be between them both to determine whether he misappropriated his neighbor’s goods” (Exodus 22:10), so too here, it is stated with regard to an oath and not merely for judgment.

Talmud - Bavli - The William Davidson digital edition of the Koren No=C3=A9 Talmud
with commentary by Rabbi Adin Steinsaltz Even-Israel (CC-BY-NC 4.0)
אדם סלומון
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