הָא נִשְׁבַּע – אַף עַל פִּי שֶׁשִּׁילֵּם, לְמִי מְשַׁלֵּם? לְבַעַל הַפִּקָּדוֹן.

but if he took an oath, even though he subsequently paid, to whom does the thief pay double payment? To the owner of the deposit.

רָבָא דָּיֵיק מִסֵּיפָא: נִשְׁבַּע וְלֹא רָצָה לְשַׁלֵּם; טַעֲמָא דְּלֹא רָצָה לְשַׁלֵּם, הָא שִׁילֵּם – אַף עַל פִּי שֶׁנִּשְׁבַּע, לְמִי מְשַׁלֵּם? לְמִי שֶׁהַפִּקָּדוֹן אֶצְלוֹ.

Rava inferred the halakha from the wording of the latter clause. It teaches: If the bailee took an oath and did not want to pay, the thief must pay the penalty to the owner of the deposit. Rava infers from here that the reason the thief pays the owner is specifically that he did not want to pay, but if he did pay, even though he took an oath previously, to whom does the thief pay double payment? To the one in whose possession the deposit was when it was lost.

לְאַבַּיֵי קַשְׁיָא סֵיפָא! אָמַר לָךְ אַבַּיֵי, הָכִי קָתָנֵי: נִשְׁבַּע, וְלֹא רָצָה לְשַׁלֵּם קוֹדֶם הַשְּׁבוּעָה אֶלָּא לְאַחַר הַשְּׁבוּעָה, לְמִי מְשַׁלֵּם? לְבַעַל הַפִּקָּדוֹן. לְרָבָא קַשְׁיָא רֵישָׁא! אָמַר לָךְ רָבָא, הָכִי קָתָנֵי: שִׁילֵּם, וְלֹא רָצָה לַעֲמוֹד בִּשְׁבוּעָתוֹ אֶלָּא שִׁילֵּם, לְמִי מְשַׁלֵּם? לְמִי שֶׁהַפִּקָּדוֹן אֶצְלוֹ.

The Gemara notes: The inference from the latter clause is difficult for the opinion of Abaye. The Gemara explains. Abaye could have said to you: This is what the latter clause of the mishna is teaching: If the bailee took an oath and did not want to pay initially before taking the oath, but rather wanted to pay only after having taken the oath, in this case to whom does the thief pay double payment? To the owner of the deposit. Similarly, the Gemara notes: The inference from the first clause is difficult for the opinion of Rava. The Gemara explains. Rava could have said to you: This is what the first clause of the mishna is teaching: If he paid, meaning he had taken an oath and did not want to stand by his oath, but instead paid in order to nullify the oath he had taken, to whom does the thief pay double payment? To the one in whose possession the deposit was when it was lost.

תְּבָעוּהוּ בְּעָלִים לַשּׁוֹמֵר וְנִשְׁבַּע, וְהוּכַּר הַגַּנָּב, תְּבָעוֹ שׁוֹמֵר וְהוֹדָה, תְּבָעוּהוּ בְּעָלִים וְכָפַר, וְהֵבִיאוּ עֵדִים, מִי נִפְטָר הַגַּנָּב בְּהוֹדָאַת שׁוֹמֵר אוֹ לֹא נִפְטָר הַגַּנָּב בְּהוֹדָאַת שׁוֹמֵר?

§ The Gemara relates another dilemma concerning the status of a bailee and stolen deposits. If the owner of a deposit demanded from a bailee that he return their deposit, and he claimed that it had been stolen from him and took an oath to that effect; and then the thief was recognized, and the bailee demanded of the thief to pay and he admitted to having stolen it; and then the owner demanded of the thief to pay and he denied the claim, and the owner brought witnesses that he had stolen it, did the thief become exempt from double payment through his admission to the bailee, as is the halakha when one admits liability to a penalty? Does the bailee have standing vis-à-vis the thief despite having exempted himself by taking an oath to the owner, or did the thief not become exempt through his admission to the bailee?

אָמַר רָבָא: אִם בֶּאֱמֶת נִשְׁבַּע – נִפְטָר הַגַּנָּב בְּהוֹדָאַת שׁוֹמֵר, אִם בְּשֶׁקֶר נִשְׁבַּע – לֹא נִפְטָר הַגַּנָּב בְּהוֹדָאַת שׁוֹמֵר.

Rava says: If he took an oath truthfully, i.e., if it now becomes clear through the testimony of witnesses that the bailee’s oath was true, he is assumed to be someone the owner would rely on to collect the stolen item for him, and he remains a bailee. Therefore, the thief became exempt through his admission to the bailee. If his oath was taken falsely, e.g., he took an oath that the animal given as a deposit died naturally and it is now clear that his oath was false, he is assumed to be someone whom the owner would not rely on to collect the stolen item for them, and he is no longer a bailee. In this case, the thief did not become exempt through his admission to the bailee.

בָּעֵי רָבָא: עָמַד לִישָּׁבַע בְּשֶׁקֶר וְלֹא הִנִּיחוּהוּ, מַהוּ? תֵּיקוּ. רַב כָּהֲנָא מַתְנֵי הָכִי. רַב טַבְיוּמֵי מַתְנֵי, בָּעֵי רָבָא: נִשְׁבַּע לַשֶּׁקֶר, מַהוּ? תֵּיקוּ.

Rava raises a dilemma concerning the previous ruling: If a bailee rose to take a false oath but the owner did not let him, what is the halakha ? Should he be considered as one who had taken a false oath, as that was his intention, and he is no longer a bailee; or, since he never actually took the false oath, he is still a bailee? The Gemara comments: The question shall stand unresolved. The Gemara notes that Rav Kahana would teach Rava’s question like this, as quoted above. Rav Tavyumei would teach Rava’s question differently: Rava raises a dilemma: If he actually took a false oath, what is the halakha ? shall stand unresolved.

תְּבָעוּהוּ בְּעָלִים לַשּׁוֹמֵר וְשִׁילֵּם, וְהוּכַּר הַגַּנָּב, תְּבָעוּהוּ בְּעָלִים וְהוֹדָה, תְּבָעוֹ שׁוֹמֵר וְכָפַר, וְהֵבִיא עֵדִים, נִפְטָר גַּנָּב בְּהוֹדָאַת בְּעָלִים אוֹ לֹא?

The Gemara relates another dilemma concerning the status of a bailee and stolen deposits: If the owners of a deposit demanded from a bailee that he return their deposit and he paid them instead of taking an oath, and then the thief was recognized, and the owners demanded of the thief to pay and he admitted to having stolen it; and then the bailee demanded of the thief to pay and he denied the claim, and the bailee brought witnesses that he had stolen it, did the thief become exempt from double payment through his admission to the owners, as is the halakha when one admits liability to a penalty, or not?

מִי אָמְרִינַן, מָצֵי אָמַר לֵיהּ שׁוֹמֵר לַבְּעָלִים: אַתּוּן כֵּיוָן דְּשָׁקְלִיתוּ לְכוּ דְּמֵי אִסְתַּלֵּיקְתוּ לְכוּ מֵהָכָא, אוֹ דִּלְמָא מָצֵי אָמְרִי לֵיהּ: כִּי הֵיכִי דְּאַתְּ עָבְדַתְּ לָן מִילְּתָא אֲנַן נַמִי עָבְדִינַן לָךְ, טָרְחִינַן בָּתַר גַּנָּבָא, שָׁקֵלְנָא אֲנַן דִּידָן, וּשְׁקוֹל אַתְּ דִּידָךְ? תֵּיקוּ.

The Gemara explains: Do we say that the bailee can say to the owners: Once you took your money from me you removed yourselves from here and have no further connection to this deposit. Therefore, I am now considered the owner of the stolen item and the right to the double payment is mine, and the thief’s admission to you is meaningless. Or perhaps the owners can say to him: Just as you performed a service for us by paying us when you were not obligated, we performed a service for you as well. Instead of granting acquisition of the double payment to you, to enable you to be repaid we took the trouble to search after the thief. We will take what is ours, i.e., the stolen item, and you take what is yours, the money you paid us. The Gemara comments: The question shall stand unresolved.

אִתְּמַר: נִגְנְבָה בְּאוֹנֶס וְהוּכַּר הַגַּנָּב, אָמַר אַבַּיֵי: אִם שׁוֹמֵר חִנָּם הוּא – רָצָה עוֹשֶׂה עִמּוֹ דִּין, רָצָה נִשְׁבָּע. אִם שׁוֹמֵר שָׂכָר הוּא – עוֹשֶׂה עִמּוֹ דִּין וְאֵינוֹ נִשְׁבָּע; רָבָא אָמַר: אֶחָד זֶה וְאֶחָד זֶה – עוֹשֶׂה עִמּוֹ דִּין וְאֵינוֹ נִשְׁבָּע.

§ It was stated: If an animal given as a deposit was stolen in circumstances beyond the control of the bailee, who is therefore exempt from liability regardless of whether he was paid, and the thief was recognized, Abaye says: If he is an unpaid bailee, then if he so desires he can choose to enter into judgment with the thief, he so desires he can take an oath that he was not responsible and the owner can demand his money from the thief. If he is a paid bailee he enters into judgment with the thief and does not have the option to take an oath to become exempt, as the responsibility to collect payment from the thief is part of his duty as a paid bailee. Rava says: Whether this unpaid bailee or that paid bailee enters into judgment with the thief, he does not have the option to take an oath.

לֵימָא, פְּלִיגָא אַדְּרַב הוּנָא בַּר אָבִין, דְּשָׁלַח רַב הוּנָא בַּר אָבִין: נִגְנְבָה בְּאוֹנֶס וְהוּכַּר הַגַּנָּב, אִם שׁוֹמֵר חִנָּם הוּא – רָצָה עוֹשֶׂה עִמּוֹ דִּין, רָצָה נִשְׁבָּע, וְאִם שׁוֹמֵר שָׂכָר הוּא – עוֹשֶׂה עִמּוֹ דִּין וְאֵינוֹ נִשְׁבָּע?

The Gemara suggests: Shall we say that Rava disagrees with the ruling of Rav Huna bar Avin? As Rav Huna bar Avin sent this ruling: If an animal given as a deposit was stolen in circumstances beyond the control of the bailee and the thief was recognized, if he is an unpaid bailee, then if he so desires he can choose to enter into judgment with the thief; and if he so desires he can take an oath that he was not responsible, and the owner can demand his money from the thief. And if he is a paid bailee, then he enters into judgment with the thief and does not have the option to take an oath.

אָמַר לָךְ רָבָא: הָכָא בְּמַאי עָסְקִינַן – כְּגוֹן שֶׁקָּדַם וְנִשְׁבַּע. וְהָא רָצָה עוֹשֶׂה עִמּוֹ דִּין, רָצָה נִשְׁבָּע קָאָמַר! הָכִי קָאָמַר: רָצָה שׁוֹמֵר חִנָּם עוֹמֵד בִּשְׁבוּעָתוֹ, רָצָה עוֹשֶׂה עִמּוֹ דִּין.

The Gemara responds: Rava could have said to you: With what are we dealing here? We are dealing with a case where it happened that first the bailee took an oath, before the thief was recognized. The Gemara questions this explanation: But Rav Huna bar Avin says: If he so desires he can choose to enter into judgment with the thief; and if he so desires he can take an oath that he was not responsible, indicating that the bailee had not yet taken an oath. The Gemara answers: Rather, this is what Rav Huna bar Avin is saying: Having first taken an oath before the thief was recognized, if an unpaid bailee so desires he can remain with his oath and not pay the owner, and if he so desires he can choose to enter into judgment with the thief.

רַבָּה זוּטִי בָּעֵי לָהּ הָכִי: נִגְנְבָה בְּאוֹנֶס, וְהֶחֱזִיר גַּנָּב בְּבֵית שׁוֹמֵר וּמֵתָה בִּפְשִׁיעָה, מַהוּ? מִי אָמְרִינַן: כֵּיוָן דְּנִגְנְבָה בְּאוֹנֶס כַּלְיָא לֵיהּ שְׁמִירָתוֹ, אוֹ דִּלְמָא כֵּיוָן דְּהָדְרָה הָדְרָה לִשְׁמִירָתוֹ? תֵּיקוּ.

Rabba Zuti raises the dilemma like this: If an animal given as a deposit was stolen in circumstances beyond the control of the bailee, and the thief returned the animal to the place from where he had stolen it, and it is now in the house of the bailee, and it then died through the bailee’s negligence, what is the halakha ? Do we say that once it was stolen in circumstances beyond the bailee’s control his guardianship is completed and he has no more responsibility for the animal, even for subsequent negligence? Or perhaps once it was returned, it returned to his guardianship, and an unpaid bailee is liable for loss resulting from negligence? The Gemara comments: The question shall stand unresolved.

מתני׳ ״הֵיכָן פִּקְדוֹנִי?״ אָמַר לוֹ: ״אָבַד״, ״מַשְׁבִּיעֲךָ אֲנִי״ וְאָמַר: ״אָמֵן״, וְהָעֵדִים מְעִידִים אוֹתוֹ שֶׁאֲכָלוֹ – מְשַׁלֵּם קֶרֶן, [הוֹדָה מֵעַצְמוֹ – מְשַׁלֵּם קֶרֶן וְחוֹמֶשׁ וְאָשָׁם].

If the owner asked the bailee: Where is my deposit? And the bailee said to him: It was lost. And the owner said: I administer an oath to you, and the bailee said: Amen, therefore accepting the oath; and the witnesses testify about the bailee that he consumed it, then he must pay the principal. If the bailee admitted on his own that he had taken a false oath, then he must pay the principal and the additional one-fifth payment, and bring a guilt-offering.

״הֵיכָן פִּקְדוֹנִי?״ אָמַר לוֹ: ״נִגְנַב״, ״מַשְׁבִּיעֲךָ אֲנִי״, וְאָמַר: ״אָמֵן״, וְהָעֵדִים מְעִידִים אוֹתוֹ שֶׁגְּנָבוֹ – מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל, הוֹדָה מֵעַצְמוֹ – מְשַׁלֵּם קֶרֶן חוֹמֶשׁ וְאָשָׁם.

If the owner asked the bailee: Where is my deposit, and the bailee said to him: It was stolen; and the owner said: I administer an oath to you, and the bailee said: Amen, therefore accepting the oath; and the witnesses testify about the bailee that he stole it, he must pay the payment of double the principal. If the bailee admitted on his own that he had taken a false oath, then he must pay the principal, the additional one-fifth payment, and bring a guilt-offering.

הַגּוֹזֵל אֶת אָבִיו וְנִשְׁבַּע לוֹ וּמֵת – הֲרֵי זֶה מְשַׁלֵּם קֶרֶן וְחוֹמֶשׁ וְאָשָׁם לְבָנָיו אוֹ לְאֶחָיו, וְאִם אֵינוֹ רוֹצֶה אוֹ שֶׁאֵין לוֹ – לֹוֶה וּבַעֲלֵי חוֹב בָּאִין וְנִפְרָעִים.

The mishna continues: In the case of one who robs his father and the father demands that he return the stolen item, and he takes an oath to his father that he did not rob him; and then the father dies; and then the son admits that he robbed him and took a false oath, necessitating the return of the principal and the giving of the additional one-fifth payment to his father’s heirs, of which he is either one of several or the only one; what should he do? This son pays the principal and the additional one-fifth payment to his father’s sons or brothers, and brings a guilt-offering and does not keep his own share. And if he does not want to forfeit his share or where he does not have sufficient funds to pay the other heirs while forfeiting his share, he borrows money in the amount of the value of the stolen item and the creditors come and are repaid in part from his share in the stolen item.

הָאוֹמֵר לִבְנוֹ ״קוֹנָם אִי אַתָּה נֶהֱנֶה מִשֶּׁלִּי״, אִם מֵת – יִרָשֶׁנּוּ;

In the case of one who says to his son in a vow: It is forbidden like an offering [ konam ], and for that reason you may not derive benefit from my property, if the father then dies the son inherits from him, because it is no longer the father’s property once he dies.