הָא – דְּטָעוּ, הָא – דְּלָא טָעוּ. אִי דְּלָא טָעוּ מַאי יְכוֹלִים לִמְחוֹת? יְכוֹלִים לִמְחוֹת בְּרוּחוֹת.

In this case, where Rav Naḥman ruled that their transaction is void, in accordance with the Rabbis, the court erred by one-sixth. But in that case, where Rav Naḥman ruled that the orphans cannot protest when they grow up, they did not err by one-sixth. The Gemara asks: If Rav Naḥman’s ruling that the orphans cannot protest is referring to a case where they did not err by one-sixth, why did Shmuel say that they can later protest; what is the nature of their protest? The Gemara answers: They can protest with regard to the locations. One of the orphans can contend that he prefers property in a different location than he was given.

אָמַר רַב נַחְמָן: הָאַחִין שֶׁחָלְקוּ הֲרֵי הֵן כְּלָקוֹחוֹת. פָּחוֹת מִשְּׁתוּת – נִקְנֶה מִקָּח; יָתֵר עַל שְׁתוּת – בָּטֵל מִקָּח; שְׁתוּת – קָנָה וּמַחֲזִיר אוֹנָאָה.

§ Rav Naḥman says: With regard to brothers who divided property received as an inheritance, they are considered like they are purchasers from each other, and the halakhot of fraud are like those for regular transactions: If there was an error of less than one-sixth in the distribution, the transaction is acquired, i.e., valid. If it was more than one-sixth, the transaction is void. If the error was precisely one-sixth, it is acquired, and the one who received more than his fair share must return the amount of the fraud.

אָמַר רָבָא: הָא דַּאֲמָרַן פָּחוֹת מִשְּׁתוּת נִקְנֶה מִקָּח – לָא אֲמָרַן אֶלָּא דְּלָא שַׁוְּיֵהּ שָׁלִיחַ, אֲבָל שַׁוְּיֵהּ שָׁלִיחַ – אָמַר: לְתַקּוּנֵי שְׁדַרְתִּיךְ, וְלָא לְעָווּתֵי.

Rava says: That which we said, that with regard to less than one-sixth the transaction is valid and the item is acquired, we said only in a case where the brother receiving a smaller share did not appoint an agent to deal with the distribution on his behalf. But if the brother receiving a smaller share appointed an agent, this halakha does not apply, as the one who appointed the agent can say: I sent you to act for my benefit and not to my detriment. The agent’s right to act in this capacity did not extend to a case where it was to the detriment of the one who appointed him.

וְהָא דַּאֲמָרַן יָתֵר מִשְּׁתוּת בָּטֵל מִקָּח – לָא אֲמָרַן אֶלָּא דְּלָא אֲמַר ״נִיפְלִיגַן בְּשׁוּמָא דְּבֵי דִּינָא״, אֲבָל אֲמַר ״נִפְלוֹג בְּשׁוּמָא דְּבֵי דִּינָא״ – מִכְרָן קַיָּים. דִּתְנַן: שׁוּם הַדַּיָּינִים שֶׁפִּיחֲתוּ שְׁתוּת אוֹ הוֹתִירוּ שְׁתוּת – מִכְרָן בָּטֵל, רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: מִכְרָן קַיָּים.

Rava continues: And that which we said, that if the brothers erred by more than one-sixth the transaction is void, we said only when the brother receiving a smaller share did not say: Let us divide the estate by an appraisal of the court. But if he said: Let us divide it by an appraisal of the court, the transaction is valid, as we learned in a mishna (Ketubot 99b): This is the halakha with regard to the appraisal of an article’s value in order to sell it, as done by the judges: In a case where they decreased the price by one-sixth of its market value or added one-sixth to its market value, their sale is void. Rabban Shimon ben Gamliel says: Their sale is valid.

וְהָא דַּאֲמָרַן שְׁתוּת קָנָה וּמַחֲזִיר אוֹנָאָה – לָא אֲמָרַן אֶלָּא בְּמִטַּלְטְלֵי, אֲבָל בִּמְקַרְקְעֵי – אֵין אוֹנָאָה לְקַרְקָעוֹת. וּבִמְקַרְקְעֵי לָא אֲמָרַן אֶלָּא דִּפְלוּג בְּעִילּוּיָא, אֲבָל פְּלוּג בְּמִשְׁחָתָא – לָא, כִּדְרַבָּה. דְּאָמַר רַבָּה: כָּל דָּבָר שֶׁבְּמִדָּה וְשֶׁבְּמִשְׁקָל וְשֶׁבְּמִנְיָן, אֲפִילּוּ פָּחוֹת מִכְּדֵי אוֹנָאָה – נַמִי חוֹזֵר.

Rava continues: And that which we said, that if the brothers erred by one-sixth the one receiving a larger share acquired it and he must return the amount of the fraud, we said only with regard to movable property. But with regard to land, the halakha is that there is no fraud with regard to land. And with regard to land, we said that the halakha of fraud does not apply only when they divided it according to the value of the land. But if they divided it by measure and erred in the measurement, we do not say that there is no fraud. This is in accordance with the statement of Rabba, as Rabba said: Any matter that is according to measure, or according to weight, or according to number, if it turned out to be in error, even if the error was less than the amount that constitutes fraud, it is also returned.

וְהָא דִּתְנַן: הַשּׁוֹלֵחַ אֶת הַבְּעֵירָה בְּיַד חֵרֵשׁ שׁוֹטֶה וְקָטָן – פָּטוּר מִדִּינֵי אָדָם, וְחַיָּיב בְּדִינֵי שָׁמַיִם. שִׁילַּח בְּיַד פִּיקֵּחַ – פִּיקֵּחַ חַיָּיב.

§ The Gemara returns to discuss various aspects of agency. And there is a difficulty from that which we learned in a mishna (Bava Kamma 59b): In the case of one who sends an item that causes a fire in the hands of a deaf-mute, an imbecile, or a minor, the one who sent it is exempt according to human laws but liable according to the laws of Heaven. If he sent it in the hands of a halakhically competent person, only the halakhically competent person is liable.

וְאַמַּאי? נֵימָא: שְׁלוּחוֹ שֶׁל אָדָם כְּמוֹתוֹ! שָׁאנֵי הָתָם, דְּאֵין שָׁלִיחַ לִדְבַר עֲבֵירָה. דְּאָמְרִינַן: דִּבְרֵי הָרַב וְדִבְרֵי תַּלְמִיד דִּבְרֵי מִי שׁוֹמְעִים.

But why is the halakhically competent person liable? Let us say that the legal status of a person’s agent is like that of himself. The Gemara answers: There it is different, as there is no agency for transgression, as we say: When there is a conflict between the words of the Master, i.e., God, and the words of the student, i.e., a human being, whose words should be listened to? Consequently, the agent is considered to have acted of his own accord, and the one who sent him bears no responsibility.

וְהָדְתַנְיָא: שָׁלִיחַ שֶׁלֹּא עָשָׂה שְׁלִיחוּתוֹ – שָׁלִיחַ מָעַל. עָשָׂה שְׁלִיחוּתוֹ – בַּעַל הַבַּיִת מָעַל. כִּי עָשָׂה שְׁלִיחוּתוֹ דְּבַעַל הַבַּיִת – בַּעַל הַבַּיִת מִיהָא מָעַל, אַמַּאי? נֵימָא: אֵין שָׁלִיחַ לִדְבַר עֲבֵירָה!

The Gemara comments: And there is a difficulty from that which is taught in a baraita with regard to the halakhot of misuse of consecrated property: an agent who did not perform his agency but deviated from the instructions of the one who appointed him and made use of consecrated property, the agent has misused consecrated property and is liable to bring the guilt-offering for that sin. In the case of an agent who performed his agency, the owner has misused consecrated property and is liable to bring the offering. The Gemara asks: The baraita states that when the agent performed the agency of the owner, the owner has in any event misused consecrated property. Why? Let us say that there is no agency for transgression.

שָׁאנֵי מְעִילָה, דְּיָלְפָא ״חֵטְא״ ״חֵטְא״ מִתְּרוּמָה. מַה תְּרוּמָה מְשַׁוֵּי שָׁלִיחַ – אַף מְעִילָה מְשַׁוֵּי שָׁלִיחַ.

The Gemara answers: The case of misuse of consecrated property is different, as it is derived by means of a verbal analogy of “sin” in this case and “sin” from teruma, as the verse states: “And sin through error” (Leviticus 5:15), with regard to misuse of consecrated property, and it states: “Lest they bear sin for it” (Leviticus 22:9) with regard to teruma: Just as with teruma one can appoint an agent, so too with misuse of consecrated property one can appoint an agent, although the latter is a transgression.

וְנֵילַף מִינָּהּ! מִשּׁוּם דְּהָוֵי מְעִילָה וּשְׁלִיחוּת יָד שְׁנֵי כְתוּבִים הַבָּאִים כְּאֶחָד, וְכָל שְׁנֵי כְתוּבִים הַבָּאִים כְּאֶחָד אֵין מְלַמְּדִין. מְעִילָה – הָא דַּאֲמָרַן. שְׁלִיחוּת יָד מַאי הִיא?

The Gemara suggests: And let us derive a principle from misuse of consecrated property, that one can appoint an agent even to perform a transgression. The Gemara explains: This is not done because misuse of consecrated property and misappropriation of a deposit, i.e., a bailee using an item that was deposited with him, are two verses that come as one, i.e., they teach the same matter, that an agent can be appointed to perform a transgression. And any two verses that come as one do not teach their common aspect to apply to other cases. The Gemara clarifies this statement: The verse pertaining to misuse of consecrated property is that which we said, but what is the verse pertaining to misappropriation?

דְּתַנְיָא: ״עַל כָּל דְּבַר פֶּשַׁע״; בֵּית שַׁמַּאי אוֹמְרִים: לְחַיֵּיב עַל הַמַּחְשָׁבָה כְּמַעֲשֶׂה. וּבֵית הִלֵּל אוֹמְרִים: אֵינוֹ חַיָּיב עַד שֶׁיִּשְׁלַח בּוֹ יָד, שֶׁנֶּאֱמַר: ״אִם לֹא שָׁלַח יָדוֹ״ וגו׳.

This is as it is taught in a baraita: The Torah uses the inclusive term “every” with regard to one suspected of misappropriating a deposit: “For every matter of trespass” (Exodus 22:8). Beit Shammai say: This inclusive term “every” serves to render one liable for speech and thought, i.e., intent to misappropriate, like action. And Beit Hillel say: One is liable only if he actually misappropriates it, as it is stated: “Whether he has not put his hand unto his neighbor’s goods” (Exodus 22:7).

אָמְרוּ בֵּית שַׁמַּאי לְבֵית הִלֵּל: וַהֲלֹא נֶאֱמַר ״עַל כָּל דְּבַר פֶּשַׁע״! אָמְרוּ לָהֶם בֵּית הִלֵּל לְבֵית שַׁמַּאי: וַהֲלֹא נֶאֱמַר ״אִם לֹא שָׁלַח יָדוֹ בִּמְלֶאכֶת רֵעֵהוּ״. אָמְרוּ בֵּית שַׁמַּאי לְבֵית הִלֵּל: אִם כֵּן ״עַל כָּל דְּבַר פֶּשַׁע״ לָמָּה לִי? שֶׁיָּכוֹל אֵין לִי אֶלָּא הוּא. אָמַר לְעַבְדּוֹ וְלִשְׁלוּחוֹ מִנַּיִן? תַּלְמוּד לוֹמַר: ״עַל כָּל דְּבַר פֶּשַׁע״.

Beit Shammai said to Beit Hillel: But isn’t it stated: “For every matter of trespass,” which indicates that one is liable without actually misappropriating the deposit? Beit Hillel said to Beit Shammai: But isn’t it stated: “Whether he has not put his hand unto his neighbor’s goods”? Beit Shammai said to Beit Hillel: If so, if one is liable only for actual misappropriation, why do I need: “For every matter of trespass”? Beit Hillel replied: It is necessary, as one might have thought that I have derived liability only if he himself misappropriated it; from where do I derive that he is liable also if he told his slave or his agent to do so? The verse states: “For every matter of trespass,” to teach that the bailee is liable if one acting on his behalf misappropriates the deposit.

הָנִיחָא לְבֵית הִלֵּל. אֶלָּא לְבֵית שַׁמַּאי דְּמוֹקְמֵי לֵיהּ לְהַאי קְרָא בְּמַחֲשָׁבָה כְּמַעֲשֶׂה,

The Gemara explains further: This answer, that misuse of consecrated property and misappropriation are two verses that come to teach the same matter, works out well according to the opinion of Beit Hillel. But according to the opinion of Beit Shammai, who establish this verse as rendering one liable for thought like action and do not learn from here that the bailee is liable if one acting on his behalf misappropriates the deposit,