Yerushalmi Shevuot 8:1 ירושלמי שבועות ח׳:א׳

MISHNAH: ¹The same Mishnah already was part of Bava meṣi`a7:9. There are four kinds of keepers: The unpaid trustee and the borrower, the paid keeper, and the renter. The unpaid trustee swears about everything²He has to swear that he did not take anything and that in case anything was lost it was not his fault.; the borrower pays for everything; the paid keeper and the renter swear about breakage, abduction, and death, but pay for the lost and the stolen³They do not pay for what happened beyond their control..

HALAKHAH: “There are four kinds of keepers,” etc. Rebbi Joḥanan said, there are four kinds of keepers and they become liable only through acquisition⁴In the Babli, Bava qamma79a, this is treated as an old (tannaitic or pre-tannaitic) rabbinic institution. Since keepers incur financial responsibilities, the moment in time when responsibility is transferred from owner to keeper must be well defined. The rules of this transfer are borrowed from the rules of buying and selling. Any act which would transfer property from the seller also transfers responsibility from owner to keeper; absent such an act no responsibility is transferred.. Rebbi Jacob bar Aḥa in the name of Rebbi Eleazar: Also in matters of robbery they become liable only through acquisition. Rebbi Yose ben Rebbi Bun said, a baraita said so: “one who contracts with another for a field,”⁵Tosephta Bava meṣi`a9:12. If somebody contracts to care for a field and then neglects his duty so that there is no yield, he can be sued for damages only if there was an act of acquisition. etc. Rebbi Ḥananiah said, Rebbi Abun, also in theft cases they become liable only through acquisition<sup>6</sup>The act of stealing is completed andthe thief responsible for double restitution only after an act of acquisition, such as putting the stolen object in his pocket. If the thief is discovered while he is dragging away some object in the owner’s house, he is not liable for double restitution since as long as the object was not lifted it was not acquired by the thief as long as he did not reach the public domain.. Rebbi Ḥananiah in the name of Rebbi Phineas, our Mishnah said so: “If he was pulling it to lead it out but it died on the owner’s property, he is not liable. If he lifted it or had it led outside the owner’s property when it died, he is liable.<sup>7</sup>Mishnah Bava qamma7:8, Notes 83–84, describing rustling of animals.” If he lifted it inside the owner’s property it is as if he had taken it out of the entire property of the owner. If he was pulling it and it left, only after it left the entire property of the owner. Rebbi Abbahu in the name of Rebbi Joḥanan: If it was standing at his feeding trough<sup>8</sup>Babli Ketubot31b, an opinion ascribed to Rabinna II. An animal pulled or pushed into the public domain is not thereby acquired by the thief; it becomes acquired only when it is brought into the thief’s private property.. Rebbi Abun bar Ḥiyya asked: If it was standing at his feeding trough then even if he did not pull it<sup>9</sup>Since we hold that the property of a person acquires abandoned property found on it (cf. Giṭtin6:2, Note 71). Since the owners do not know where their lost object is, they cannot make a mental reservation which would annul the acquisition.! But we must deal with the case that it was standing in the public domain<sup>10</sup>In the Babli, loc. cit., opinion ascribed to Rav Aḥa (bar Rava), of the last generation of Babylonian Amoraim.. Does Rebbi Abun bar Ḥiyya follow the House of Shammai, since the House of Shammai say, “he shall be hit by less or more”<sup>11</sup>Mishnah Bava meṣi`a3:13. The dishonest keeper in the opinion of the House of Shammai has to pay the larger of the values of the object either at the time it was given to him or when it should have been returned. The House of Hillel makes him pay the value at the time he took possession, R. Aqiba the value at the time of the claim. This has nothing to do with the problem here. The Mishnah there continues: “If somebody intends to take the deposit, the House of Shammai hold him liable, but the House of Hillel say, he is liable only from the moment he takes it.” Since in the public domain acquisition is effected only by lifting the object, not by dragging it, liability for cattle rustling in the public domain exists only for the House of Shammai.? How do we hold? If it was standing in the public domain and he intended to rustle it when it died, according to everybody he became liable by that intention. If he did not start to pull it, according to everybody he is not liable¹²The statement is elliptic. If he intended to rustle an animal but did not do it, even the House of Shammai agree that thought without action is without legal consequences. If he pulled the animal along, and declared before witnesses that he intended to rustle this animal, even the House of Hillel will agree that he accepted liability for his act.. But we most hold that it was standing at a feeding trough on his property¹³The Mishnah in Bava meṣi`a notes that for the House of Shammai full liability starts when the animal enters the robber’s property while the House of Hillel require an act or at least a declared intent of acquisition.. As Rebbi Abun bar Ḥiyya said, following the House of Shammai. Rebbi Abun said, there he acquired without the knowledge of its owner; but here when he acquires with the knowledge of its owner¹⁴While an act of acquisition may be required for liability both of the keeper and of the thief, the details of what is considered as such an act are different in the two cases since acquisition by the will of the owner is less restrictive than that against his will..

¹⁵Babli Bava qamma93a. It is written: If a man give to another, etc’, to keep¹⁶Ex. 22:6.. To keep, not to tear it up. To keep, not to throw it away. To keep, not to give it away as a gift. Rebbi Yose said, only if he said to give it to anyone he likes. But if he said, to X, since he is obligated to keep it is as if he kept it for him¹⁷The paragraph gives the rules of the unpaid keeper who in case of loss has to swear that he did not appropriate the article for himself and that it was not lost by his negligence. But if he received the article in order to dispose of it, or to distribute it to the poor, even if it was lost there cannot be any oath. R. Yose points out that this applies only if the charge was to distribute to the poor, not if it was to be delivered to a designated person. Rashi explains in Bava qamma that the depositor cannot sue because he renounced ownership and the poor cannot sue since the keeper was free to give to any poor person of his choice..

It was stated: If it was stolen from the man’s house¹⁶Ex. 22:6.. Not from his roof. Rebbi Eleazar said, that means, from an unprotected roof. But a fortified roof is like a house¹⁸Taking anything from a flat roof visible from the outside is not theft but robbery since it was in the open. There can be no double restitution in this case. But if the roof was surrounded by a wall so that nothing deposited there could be seen from the street it is theft and subject to its laws. Keeping a deposit on an open roof is gross negligence on the part of the keeper..

It was stated, if it was stolen from the man’s house¹⁶Ex. 22:6.; not from the borrower’s house. If it was stolen from the man’s house; not from the house of the paid keeper or the renter¹⁹The verse speaks of the unpaid keeper, who swears that he did not take it and that he was not negligent but does not pay. The corresponding cases for the paid keeper and the borrower are not mentioned in the verses. The definite article is interpreted to mean that the verse insists that it was stolen from this man’s house; the rule does not apply to others. By the reason explained later it is clear that the borrower cannot swear; he must pay. There is no intrinsic reason in the verse to exempt the paid keeper and the renter. Why are they exempt? In the Babli Bekhorot11a, the verse is read to exclude institutions; cf. Bava qamma7:1 (5d 46), Notes 10 ff.? Since he is obligated to watch it, it is as if it referred to him²⁰There is a reason to extend the rule of the unpaid keeper to the paid one.; for you may say that there are three paragraphs²¹Ex. 22:6–8, 9–11, 13–14. A similar statement in the Babli, Bava meṣi`a94b.. The last one about the borrower, the middle one about the paid keeper and the renter, the first one about the unpaid keeper. The borrower who profits from all pays everything. The paid keeper or the renter, because he profits partially and gives partial profit, swears about part and pays part. The unpaid keeper who does not profit at all swears and leaves. What does he swear? I did not commit anything²²He did not take anything for his personal use and was not criminally negligent.. What is the situation if others know that he did not commit anything? Let us hear from the following: If the thief was found but has nothing with which to pay, may he say to him²³The owner of an object stolen from an unpaid keeper. If he cannot recoup his loss he might be tempted to let the keeper swear in the hope that he might prefer to pay rather than swear., swear to me that you were not thinking to take it? Let us hear from the following: If the thief was not found²⁴Ex. 22:7. If the thief was found, the unpaid keeper is absolved from any oath. Mekhilta dR. Ismael Neziqin15.. Therefore, it he was found he is not liable.

It is written, if a man give to his neighbor a donkey, or an ox, or a sheep²⁵Ex. 22:9. etc. An oath before the Eternal shall be between the two of them²⁶Ex. 22:10.. Stolen, if it was stolen stealing from him²⁷Ex. 22:11. The verse is intentionally misquoted; it is written וְאִם “and if”, not אִם “if”, as noted in the sequel.. Lost, and if, to include the lost one²⁸This is Rebbi Aqiba’s signature argument that all conjunctions which are not absolutely necessary imply an addition which can only be determined by tradition.. So far following Rebbi Aqiba. Following Rebbi Ismael? Rebbi Ismael stated: Since you say that he pays for theft which is close to duress, for loss which is not close to duress not so much more²⁹In the Babli, Bava meṣi`a94b, this is characterized not as a statement of R. Ismael but as a Galilean Amoraic statement in the spirit of R. Ismael. A different argument is in Mekhilta dR. Ismael Neziqin16, (ed. Horovitz-Rabin p. 305).?

For the borrower only the broken is written. From where loss and theft? It is logical. Since the paid keeper and the renter who do not pay for the broken or the dead have to pay for theft and loss, the borrower who pays for the broken or the dead certainly has to pay for theft and loss³⁰This an argument of R. Ismael; Mekhilta dR. Ismael Neziqin16, (ed. Horovitz-Rabin p. 306).. It was stated about this: This is an argument de minore ad majus which cannot be challenged. From where the abducted? It is said here, it was broken or died³¹Ex. 22:13.; and it is said there, it dies or was broken²⁵Ex. 22:9.. Since there the abducted was included, here also the abducted was included. So far following Rebbi Aqiba³²This is not an argument of R. Aqiba but of R. Ismael [Mekhilta dR. Ismael Neziqin16, (ed. Horovitz-Rabin p. 306)]. R. Aqiba’s argument is attributed here to R. Ismael.. Following Rebbi Ismael? Rebbi Ismael follows Rebbi Nathan. Rebbi Nathan says, or, to include the abducted. Or following Rebbi Meïr who said, an equal cut at the place it comes from³³Chapter 4, Note 33. If broken or died and died or was broken defines an equal cut, since the abducted is mentioned in v. 9 it also is implied in v. 13.. Since there one swears for duress, also here one swears for duress. Still following Rebbi Nathan, for Rebbi Nathan said, or it died³¹Ex. 22:13., to include the abducted one³⁴A follower of R. Aqiba has the choice of arguing either following R. Meïr or R. Nathan..

Rebbi Yudan asked: ³⁵The proviso that the keeper may have to pay double restitution is mentioned only for the unpaid keeper, where Ex. 22:8 is interpreted to mean that the keeper claimed the deposit was stolen but it was proven in court that he himself took it. The paid keeper or the renter must pay for stolen items (22:11); in general, a claim that the item was stolen by such a keeper is an agreement that he has to pay; even if the claim is false there is no reason for double restitution. But if the keeper claims that the item was abducted by force, he may swear to this fact to free himself from paying (v. 22:9). An argument is missing here, which is supplied in the Babli, Bava meṣi`a57b, viz., that in an orderly commonwealth an armed robber will hide his weapons in public and only show them to his intended victim. This makes armed robbery an instance of theft (Sanhedrin8:3, Notes 44ff.). Therefore the question arises whether a false claim of armed robbery makes the paid keeper or the renter liable for double restitution. If he claimed the claim of a thief and duress? He told him, an armed robber came and took it; does he have to pay double restitution of duress? Rebbi Yose said, if it were so one should state “the paid keeper and the renter;” but we have stated: We do not find that the paid keeper and the renter pay double restitution of duress. On this we have stated, “this is an argument de minore ad majus which is questionable”<sup>36</sup>The text is incorrect. The scribe first wrote correctly שאין עליו תשובה “which cannot be challenged” and then corrected it wrongly to the text given. The reference is to the argument de minore ad majus presented in the preceding paragraph where it was stated that the argument is un questionable. But if there are instances of theft where the paid keeper and the renter follow the rules of the unpaid keeper, the argument becomes invalid; it is more than questionable, it is shown to be false.. Rebbi Ḥanina said, if you say so, should you say, this is an argument de minore ad majus which is questionable<sup>36</sup>The text is incorrect. The scribe first wrote correctly שאין עליו תשובה “which cannot be challenged” and then corrected it wrongly to the text given. The reference is to the argument de minore ad majus presented in the preceding paragraph where it was stated that the argument is un questionable. But if there are instances of theft where the paid keeper and the renter follow the rules of the unpaid keeper, the argument becomes invalid; it is more than questionable, it is shown to be false., for he can tell him, let us say that the borrower pays double restitution. On this it was stated, this is an argument de minore ad majus which cannot be challenged<sup>37</sup>Therefore the claim of armed robbery is not a claim of theft; there never can be double restitution by the paid keeper or the renter. The Babli (Bava meṣi`a57a/b) disagrees and holds that in this case the paid keeper has to pay double restitution (Maimonides Hilkhot Genevah4:4)..

It was said, if its owners were with him, he does not have to pay³⁸Ex. 22:14. If the borrower had asked not only for the use of an animal and/or agricultural or mechanical implements but also had asked their owner to help him in his work, then the disposition over animals or tools never was transferred to the borrower; in case the animal died or it and the tools broke or were taken by force the borrower does not have to pay. But if the authority over animal and/or tools was transferred, the borrower has to pay if anything happens to them.. Does he have to swear? Rebbi Ze`ira said, he swears. Rebbi Ḥanina and Rebbi La both are saying, he does not swear<sup>39</sup>The Babli does not treat the question, which seems to be that even though the owner retains the power of disposition over his property, the borrower might have to swear that he was not in any way the cause of the accident.. A baraita supports Rebbi Ḥanina and Rebbi La: “Breakage, abduction, and death for which he is not liable in the cases of the paid keeper and the renter<sup>40</sup>Since Ex. 22:9 excuses the paid keeper in the case of an unobserved accident but requires an oath that the keeper did never ever use the animal or object for himself (or the renter that he never overstepped the conditions of his lease)., and the borrower with the owner is not liable, without the owner is liable<sup>31</sup>Ex. 22:13.; loss and theft where the paid keeper and the renter are liable, is it not that a fortiori the borrower be not liable with the owner but liable without the owner<sup>41</sup>There is no verse referring to the responsibility of the borrower for cases of loss and theft but it cannot be less than that of breakage, etc. It cannot be more since the conclusion of a logical argument cannot be stronger than the premise.?” For him who says it is obvious that he swears, should he not have to pay<sup>42</sup>Since the oath would absolve from payment, it is clear that R. Ze`ira holds that the borrower has to pay if he cannot swear. But this contradicts the argument of the baraita since it also applies to the case where the owner works with the borrower.? Rebbi Ḥanina⁴³This is the late Amora R. Ḥinnena, not the early R. Ḥanina mentioned earlier. in the name of Rebbi Yudan: A baraita supports Rebbi Ze`ira. “The borrower, for whom the Torah was restrictive, with the owner is not liable, without the owner is liable; the paid keeper, for whom the Torah was lenient, a fortiori with the owner should not be liable, without the owner should be liable.<sup>44</sup>In fact his responsibility depends on whether there was a formal act of transfer of responsibility, Note 4.” If you are saying, his problem was swearing, he should have stated “the paid keeper and the renter<sup>45</sup>Since in general the paid keeper and the renter follow the same rules. But since the renter pays the owner for the use, in matters of payment there is reason to differentiate between the two..” That means he only needs it for payment. It is difficult for Rebbi Ze`ira: the borrower swears if the owner was with him; if the owner was not with him he must pay. The unpaid keeper swears, whether the owner was with him or was not with him⁴⁶Ex. 22:8.. You are saying that where the borrower pays the paid keeper swears⁴⁷If the loss was because of the unlawful actions of third persons.. Where the paid keeper swears, the unpaid keeper should not be liable. Where the paid keeper pays, the unpaid keeper swears⁴⁸If the loss was because of the negligence of the keeper, when the object was lost, or probable negligence, when it was stolen.. What do you state about an unpaid keeper when the owner be with him⁴⁹As stated before, if there was no formal transfer of responsibility, the unpaid keeper does not even swear.? But some are asking, what do you state about an unpaid and a paid keeper, whether or not the owner be with him⁵⁰Since the distinction is made only for the borrower, we do not even know whether such a distinction is of any relevance for the other kinds of keepers.? Rebbi Abin said, any word of criminality^46,Ex. 22:8.⁵¹This explicitly excludes the distinction about the participation of the owner for paid and unpaid keeper; the previously quoted baraitot are contradicted.. Rebbi Mana said, do we not find that the Torah treated loss and theft equally for the borrower? Therefore, we shall treat breakage, abduction, and death equally both for the unpaid and the paid keepers⁴²Since the oath would absolve from payment, it is clear that R. Ze`ira holds that the borrower has to pay if he cannot swear. But this contradicts the argument of the baraita since it also applies to the case where the owner works with the borrower..

⁵³The remainder of the Halakhah does not refer to Mishnah 8:1 but to Bava meṣi`a3:13. There exists a full parallel in the Escurial ms. of Neziqin(E), reproduced above, and a not quite complete version published by R. H.Y.D. Azulai almost 200 years before the discovery of E; cf. Bava meṣi`a3:13, Note 89. The Leiden ms. there quotes only the first line followed by “etc.” This justifies considering the text of E as second source for the text here.
A short parallel to the discussion here is in the Babli, Bava meṣi`a44a. What is the reason of the House of Shammai? Any word of criminality<sup>46,</sup>Ex. 22:8.<sup>54</sup>Mishnah Bava meṣi`a3:13 states that according to the House of Shammai, a keeper becomes unfaithful and liable for any and all damages to the deposit if he thinks of appropriating it for his own use; according to the House of Hillel only the actual taking triggers liability. The House of Shammai include in “word of criminality” also unspoken words which would prevent the keeper from swearing to his innocence.. How do the House of Hillel explain the reason of the House of Shammai? “Criminality,” any word of criminality. Explain it if he appropriated it through an agent⁵⁵Giving orders certainly involves words. If the order was criminal, the person giving the order can no longer swear truthfully that he did not take the deposit even if he himself never touched it..

Rebbi Yose bar Ḥanina asked, what was said, to take? Took⁵⁶This refers to the second part of Mishnah Bava meṣi`a3:13: “If he tilted the [wine] amphora and took a quartarius, and then it broke, [the unpaid keeper] pays only for a quartarius. If he lifted it and took a quartarius, and then it broke, he pays for all.” It is assumed that the amphora did not break because of any action of the keeper’s; then the unpaid keeper does not have to pay for the loss. But if he lifted the amphora with the intent of stealing from it, it becomes his property and he is liable for the entire value of amphora and contents. The question now is whether “took” means that he actually removed anything from the amphora’s contents or whether just moving the amphora with the intent of taking triggers full liability. Since in a sale of movables it is not the payment which transfers property rights and liabilities from seller to buyer but the buyer’s moving the item, it is not unreasonable to read “took” as “intent to take” since action of moving is decisive.? Did not Rebbi Hoshaia state, “it broke”; if it turned into vinegar he pays for everything⁵⁷R. Hoshaia qualifies the first statement. If he only tilted the amphora but did not move it from its place and it broke he only pays for what he took, to apply only to the case of breakage. If he tilted the amphora, took some wine, and then the wine turned into vinegar, he is liable to pay for all the wine since we say that tilting the wine and pouring from it caused the rest to turn into vinegar.? It turned into vinegar only because of its spoilage⁵⁸Read with E: “the motion”.. Rebbi Samuel, Rebbi Abbahu in the name of Rebbi Eleazar. “Grabbing⁵⁹The biblical expression שָׁלַח יָדוֹ “sent his hand”, mentioned both in Ex. 22:7 and 10.” which was mentioned for the unpaid keeper makes him liable only if he diminished⁶⁰Only if he actually took from it, not if the volume diminished by his handling the amphora for his own purposes.. Rebbi Samuel asked before Rebbi Abbahu: What has been said about taking? That he diminished or even if he did not diminish? He said to him, is that not Rebbi Yose bar Ḥanina’s question, to take, took? If you say “to take”, even if he did not diminish⁶¹But it lost volume after he handled it not for its own sake.. If you say “took,” only when he diminished. If you say “to take”, if he returned it either to its former place or to another place he is not liable. If you say “took,” if he returned it to its former place he is not liable, to another place he is liable.

Rebbi Abbahu in the name of Rebbi Joḥanan: “Guarding” is mentioned for the unpaid keeper and “guarding” is mentioned for the paid keeper, but “guarding” mentioned for the unpaid keeper is not similar to “guarding” mentioned for the recipient of a fee. “Guarding” mentioned for the unpaid keeper; if he guarded it sufficiently he is not liable. For a paid keeper one estimates it only relative to his body. Therefore one judges him; if the guarding was appropriate he is not liable, otherwise he is liable⁶²Text of E: “Guarding mentioned for the paid keeper, even if he enclosed it in an iron wall one is not satisfied that he guarded. If it was in his power to save, he is liable. If it was not in his power to save, he is not liable.” This refers to the rule that the paid keeper is liable for theft and loss.. One does not say, if another had been there, he could have saved⁶³Since the keeper is paid, it would have been the responsibility of the owner to hire a sufficient number of guards to watch over his property.. If he saved, he is not liable; if he did not save, he is liable⁶⁴This belongs before the preceding sentence; cf. Note 62..

Rebbi Eleazar in the name of Rebbi Hoshaia: “Grabbing” is mentioned for the unpaid keeper and “grabbing” is mentioned for the paid keeper, but “grabbing” mentioned for the unpaid keeper is not comparable to “grabbing” mentioned for the paid keeper. “Grabbing” mentioned for the unpaid keeper does not make him liable unless he move it⁶⁵As made clear in Mishnah Bava meṣi`a3:13.. “Grabbing” mentioned for the paid keeper, he is liable from the moment he puts his staff and his bag on it⁶⁶Since the paragraph about the paid keeper (Ex. 22:9–11) refers to animals, the example given refers to animals. If the keeper has to shepherd an animal, he cannot use it as his beast of burden even for the most minute load to his own benefit.. Rebbi Yose ben Nehorai heard this and said, I am not accepting this, but in any case he is not liable unless he move it⁶⁷He requires an act of acquisition; he is liable only if he makes the animal move from the place where he put his bag on it.. Rebbi Immi in the name of Rebbi Eleazar: But did not Rebbi Hoshaia state it in this way? If “grabbing” had not been mentioned for the unpaid keeper as unnecessary⁶⁸Since earlier we had established a strict order of liabilities, the unpaid keeper being liable less than the paid keeper or renter who in turn are liable less than the borrower, a mention of liability after “grabbing”, appropriating the deposit, for the unpaid keeper would automatically imply the same for the paid keeper and the renter. In the first version, the argument is upside down as R. Yose points out., I would have inferred from the recipient of a fee. Since the recipient of a fee, with whom the Torah was strict, does not become liable unless he move it, it is only logical that an unpaid keeper, with whom the Torah was lenient, not be liable unless he move it. For which purpose was “grabbing” mentioned for the unpaid keeper since it was unnecessary? To be strict with the recipient of a fee; from the moment he puts his staff or his bag on it he is liable. Rebbi Yose said, if you say so, you infer about the premise to restrict it. For one could say to him, since the recipient of a fee, with whom the Torah was strict, does not become liable unless he move it, the unpaid keeper, with whom the Torah was lenient, should not be liable even if he move it. But it must be the following: “Grabbing” should not have been mentioned for the paid keeper as unnecessary, for I would have inferred from the unpaid keeper⁶⁸Since earlier we had established a strict order of liabilities, the unpaid keeper being liable less than the paid keeper or renter who in turn are liable less than the borrower, a mention of liability after “grabbing”, appropriating the deposit, for the unpaid keeper would automatically imply the same for the paid keeper and the renter. In the first version, the argument is upside down as R. Yose points out.. Since the unpaid keeper, with whom the Torah was lenient, is not liable unless he move it, the recipient of a fee, with whom the Torah was strict, becomes liable when he moves it. For which purpose was “grabbing” mentioned for the recipient of a fee since it was unnecessary? To be strict; from the moment he puts his staff or his bag on it he is liable⁶⁹Since the mention of “grabbing” in v. 10 is unnecessary if it meant the same as in v. 7, it follows that the rules of liability for the paid keeper are more strict than those for the unpaid keeper. The detail, in what these rules are more strict, is not mentioned in the biblical text; it must be left to the traditional understanding of these rules..