[Our mishna said:] If he [the custodian] paid, and did not want to swear [he gets any future payment if the thief is apprehended].
R. Hiyya bar Abba said in the name of R. Yohanan: "Paid" does not literally mean paid, but because he said "I will pay" [he gains the rights to future penalties to be paid by the thief] even if he did not yet pay.
[The gemara now questions this analysis:] We learned in our mishna: "[If he] paid but did not want to swear" -- if he paid, yes [he gets rights to future penalties], but if he did not pay, no [he does not].
[The gemara provides an alternative view:] I will cite the latter part of the mishna: "If he swore but did not want to pay [the owner retains the rights]". The reason [the custodian does not gain the rights] is that he did not want to pay -- if he _did_ w ant to pay [he would gain the rights] even if he did not yet pay.
Instead [the gemara concludes], we cannot derive [the ruling on whether intent to pay is binding] from our mishna.
Instead [the gemara concludes], we cannot derive [the ruling on whether intent to pay is binding] from our mishna.
A b'raita was taught supporting R. Yohanan's position [that intent to pay is sufficient]: If a person rents a cow from his fellow-Jew, and it is stolen, and he [the renter] says "I will pay and not swear," and the thief is apprehended, he [the thief] pays the double payment to the renter [even though the renter only _promised_ to pay, but had not yet actually made the payment].
Rav Pappa said: An unpaid custodian [of a deposit that was lost or stolen] -- once he says "I was negligent," acquires the right to double payment, because if he wanted to absolve himself of responsibility, he could have said it was stolen. [Remember that an unpaid custodian is not responsible if the deposit was stolen.] Once a paid custodian says "It was stolen," he acquires the right to the double payment, for he could have absolved himself of responsibility by saying it broke or died [i.e, circumstance s beyond the custodian's control]. [Remember: a paid custodian is not responsible for damage that comes about due to uncontrollable circumstances. Thus, both the paid and unpaid custodians could have absolved themselves of any responsibility; by voluntari ly taking responsibility, they acquire the right to get the double payment.] But a borrower who says "I will pay" does not acquire rights for the double payment.
How could the borrower have absolved himself from responsibility? Only by claiming that the animal died in the course of its normal work, and dying in the course of normal work is uncommon.
There are those who say that Rav Pappa said: Once a borrower says "I will pay," he _does_ acquire the right to double payment, because he could have said that the animal died in the course of normal work.
[According to this second version] Rav Zvid said [to Rav Pappa]: Here is what Abbaye said: A borrower does not acquire [rights to the penalty payment] until he actually pays. Why? Because all the benefit is his [i.e., a borrower gains benefit, but the len der does not], he [the lender] does not transfer double payment rights for a mere verbal commitment (to pay).
A b'raita was taught consistent with Rav Zvid: If a man borrowed a cow from a fellow-Jew and it was stolen, and the borrower immediately paid for the loss, and the thief was caught, he [the thief] pays the double penalty to the borrower [i.e., the borrowe r acquires rights only by actual payment, not by a promise to pay].
According to the first version of Rav Pappa [that a borrower could claim that the animal died in the course of normal work], the b'raita is cerainly not a refutation. [In this version, Rav Pappa holds that the borrower cannot acquire the right by a mere p romise to pay, but he would agree that the borrower _does_ acquire the right by actual payment to the owner.] But isn't the b'raita a refutation of the second version of Rav Pappa's statement [that the borrower acquires rights even by a mere verbal commit ment]?
[Perhaps not.] Rav Pappa could answer: Is the b'raita a stronger refutation than the mishna itself? [The mishna taught] "He pays" -- and I demonstrated that this refers to _intent_ to pay. Here too [in the b'raita], he [the borrower] _said_ [that he would pay, but had not yet done so].
[The gemara objects to Rav Pappa's hypothetical answer:] Are they [the mishna and the b'raita] similar? There [in the mishna] it does not say [that he paid] "immediately." Here [in the b'raita] it says "immediately" [implying that the borrower actually pa id].
[Rav Pappa could respond:] What does "immediately" mean? -- He immediately _said_ that he would pay.
[The gemara rebuts this suggestion:] Since the b'raita taught that a renter [acquires rights to the penalty] because "he said," and yet with respect to a borrower the term is "immediately", this shows that [the second b'raita, which refers to a borrower] requires actual payment [and not just intent].
[The gemara objects to this exegesis:] Were these [two b'raitot taught] together? [We can only use precise exegesis if both were taught at the same time; if not, we cannot draw conclusions based on slight differences in wording.]
[The gemara responds:] The students asked the mishnaists ["tannaim": in the Amoraic period, this term refers to teachers who specialize in memorizing the mishna and extensive b'raitot rather than talmudic analysis] of the academies [established by] R. Hiy ya and R. Oshaiya, and they said that they were taught together.
[R. Hiyya, disciple of Rabbi, compiler of the Mishna, and his disciple R. Oshaiya are credited with editing the Tosephta, the authoritative compilation of b'raitot. It is stated (Hulin 141a,b): "Any mishnah that was not taught in the academies of R. Hiyya and R. Oshaiya is currupt, and should not be cited in the study hall".]
[Thus, the two b'raitot were indeed taught at the same time, and we _can_ draw conclusions based on subtle differences in phrases ... and the second version of Rav Pappa's statement [that a verbal commitment is sufficient] is conclusively refuted. A borro wer must indeed pay; expressed intent to pay is insufficient.]
[We are two lines from the bottom of bm 34a.]