Bava Metzia - Daf 41
- A שומר who steals a פקדון and returns it without the owner’s knowledge, or to the wrong place
The Mishnah on the previous Daf taught that if one left a keg with his friend, without designating a place for it, and the שומר moved it and it broke through an אונס, he is only responsible if he had not put it back and had moved it for his own purposes (which is like stealing it). The Mishnah then says that if the owner did designate a place for his keg, the שומר is responsible for moving it for his own purposes, even after putting it down. The first case follows Rebbe Yishmael’s view, that returning a stolen item does not require דעת בעלים – the owner’s knowledge to end the thief’s liability, so the שומר is exempt after putting it back. The Gemara asks that the second case seems to reflect Rebbe Akiva’s view, that returning stolen items does require the owner’s knowledge, so the שומר is liable even after returning it.
After Amoraim give three explanations for how the שומר in the Mishnah stole the keg, the Gemara answers that the whole Mishnah is Rebbe Yishmael. His liability in the second case is because he placed the keg in a different place from its designated place and is not considered to have returned it.
- Machlokes if שליחות יד צריכה חסרון
Rav and Levi argue if שליחות יד צריכה חסרון – misappropriation of a פקדון requires a partial loss for the שומר to be liable. The Gemara attempts to prove that Rav holds it does not require a loss: a Baraisa teaches that a shepherd is exempt for attacks of a wolf or lion, but if he placed his staff or pouch on the sheep (constituting שליחות יד), he is liable. Rav added that it was still on the sheep when the attack occurred (so it was not considered “returned”). Although he must acquire the פקדון to be liable, Rav explained: שהכישה במקל – he struck it with his staff, ורצתה לפניו – and it ran before him, which qualifies as משיכה. Since Rav did not mention that the sheep was harmed, he seems to hold that שליחות יד does not require a חסרון to be liable. The Gemara responds that Rav meant: שהכחישה במקל – that he weakened [the sheep] when he struck it with the staff, and Rav holds a חסרון is required. This is supported by Rav’s choosing a case of striking with a staff.
- An extra passuk of שליחות יד
Having established that Levi holds שליחות יד does not require a loss, the Gemara asks for his source. Rebbe Yochanan explains: the Torah wrote the law of שליחות יד both regarding a שומר חנם and regarding a שומר שכר. Levi holds, since it applies to a שומר חנם, who is only liable for negligence, it certainly applies to a שומר שכר, who is also liable for theft and loss, and its mention there is superfluous. Rather, it is written to teach that שליחות יד is liable even without any loss. Rebbe Yochanan himself holds it is not superfluous, because a שומר חנם has a stringency to pay כפל if he swears falsely that the פקדון was stolen (as opposed to a שומר שכר, who is liable for theft). Rava said that שליחות יד did not need to be written by שומר חנם or שומר שכר, because it can be derived from a שואל: a borrower, who has permission to use the item, and becomes liable for all אונסין when he takes it to use. Any שומר without permission to use it should certainly be liable for taking it to use!? One of these two extra passages teaches that שליחות יד does not require a loss to be liable. The Gemara defends the other opinion.
