[bm41a. We begin 15 lines from the top, addressing the question of what the mishna meant when referring to moving an item for "his" (i.e., the custodian's) benefit.]

R. Yaakov b. Abba explained [the mishnaic phrase "for his benefit"] before Rav: He took it in order to rob (the owner of) it.

R. Nathan b. Abba explained: He took it to misappropriate it.

["Robbery," in this context, means that there was intent to take the entire cask. Misappropriation means that the intent was to take only part of the contents.]

What is the basis of the disagreement? It was on whether misappropriation requires loss. One (R. Yaakov, who said that the mishna refers to robbery) holds that misappropriation depends on loss. [Since our mishna dealt with a case in which the custodian did not cause any loss, it cannot refer to misappropriation, and must therefore be referring to a case of outright robbery.] And the one (R. Nathan) who says that it is misappropriation, holds that misappropriation does not require loss [which is the case in the mishna].

Rav Sheshet objected: Does the mishna say "he took it?" It says "he moved it" [so that there is no evidence at all of any intent to misappropriate or rob].

Instead, Rav Sheshet said, what are we dealing with? For example, he moved it to get fledgings [Rashi: to stand on it to reach a bird's nest]. And he (Rav Sheshet) holds that borrowing without permission is robbery.

And the entire mishna is according to R. Yishmael [who holds that the return of a stolen item without the owner's knowledge nullifies the theft]. And the second part of the mishna [that the custodian is responsible even if he returned it] is when he put it somewhere other than its designated place.

[Summary: The first part of the mishna refers to a case in which the owner did not designate a place for storage; under such circumstances, as soon as the item - even the motive for moving it was robbery - has been put in a safe place, the custodian's previous action of having moved it is nullified. The second part of the mishna refers to a case in which the owner _did_ designate a place for storage. Rav Sheshet explains that borrowing without permission is equivalent to robbbery, and the custodian is as responsible as a robber until it is returned to its designated place. R. Yaakov and R. Nathan do not agree with Rav Sheshet on borrowing without permission, and thus interpret the mishna are referring to a case of robbery or misappropriation; again, the custodian will have the liability of a robber until the item is returned to its designated place.]

And R. Yohanan [who, in the previous installment, did not accept the possibility that both mishnaic clauses were according to R. Yishmael, based his position on the mishna's phrase in the second clause] "he (he custodian) put it down" implies (that he returned it to) its designated place. [Since the second clause holds him responsible after he put it down whereas first clause does not, the two clauses contradict one another and cannot be ascribed to the same author. The first is consistent with the R. Yishmael's view that return of a stolen item nullifies the theft, and the second is consistent with R. Akiva's position, according to which the theft is not nullified unless the stolen item is returned with the owner's knowledge.]

[A question was raised in the preceding section about misppropriation, referred to in Ch. 22 of Exodus as "put[ting] his hand unto his neighbor's goods". It differs from robbery or theft in that the misappropriated item is taken with the intent to use part of it, but not to steal all of it. In the present context it refers to a custodian who moves the barrel in order to take only some of its contents rather than to take possession of the barrel itself or all of its contents. The gemara returns to the question: Does his responsibility begin as soon as he takes it, or only when the misappropriation actually starts?]

It was said: Rav and Levi -- one said that misapproprition requires loss [it starts when the goods are taken out of the barrel] and one said that misappropriation does not require loss [it starts at the moment the barrel was moved with intent to misappropriate].

We can determine that it was Rav who said that misappropriation does not require loss, for we learned in a b'raita: If a shepherd was tending a flock, and left the flock and entered the city, and a wolf came and devoured the sheep, or a lion came and clawed the sheep, he (the shepherd) is not liable. [Rashi explains that the attack was unavoidable. The shepherd was not guilty of negligence; either he left the flock at a time when shepherds customarily take lunch breaks, or he fled when he heard the predator approaching.] But if he put his staff or knapsack on the sheep, he is liable. And they asked: Because he put his staff or knapsack on the sheep, he is liable? He removed them [before the attack]. [Rashi: The gemara assumes that the b'raita is according to R. Yishmael, who held that returning an item does not require the knowledge of the owners.] So Rav Nachman said in the name of Rabbah bar Avuha in the name of Rav: (This ruling applies) where they (the staff and knapsack) were still on the sheep (at the time of the attack). So what if they were still on the sheep? He (the shepherd) did not pull it.

[Whether one buys, steals, or misappropriates an item, taking possession requires "lifting" or "pulling". In the case of sheep mor cattle, it is either literal pulling or prodding or calling the animal from the original owner's property to another place. Since there was no apparent pulling described in the b'raita,the change in ownership required for misappropriation never took place.] So Rav Shmuel b. Rav Yitzchak said in the name of Rav: Where he (the shepherd) hit is (the sheep) with his staff [forcing the animal to move, and thus effecting the acquisition]. But he did not cause a loss [i.e., the shepherd did not cause any loss in the course of his misappropriation]. >From here we can conclude that he (Rav) holds that misappropriation does not require loss.

[The gemara rejects this conclusion:] We might say that he weakened (the sheep by hitting it) with his staff. And this is supported by precise reading of "he hit it with his staff" [rather than simply "he hit it"]. From this we can conclude [that Rav holds that misappropriation _does_ depend on loss].

[A intriguing linguistic point may be raised: In Hebrew, "he hit it" is "hikishah" whereas he weakened it is "hik`hishah", with one additional letter, "`het", inserted. The phonetic distinction is slight.]

And if Rav holds that misappropriation requires loss, Levi must hold that misappropriation does not require loss.

What is Levi's rationale? R. Yohanan said in the name of R. Yosei b. Nehorai: There is a difference between misappropriation by a paid custodian and misappropriation by an unpaid custodian. But I (R. Yohanan) say that there is no difference.

[The Tanakh refers explicitly to misappropriation (put[ting] hands unto his neighbor's goods) twice: Exodus 22:6-8 and Exodus 22:9-10. The Talmud (B.M. 94b) concludes that the first citation refers to the unpaid custodian and the second to a paid custodian. We have already encountered the basic talmudic assumption that nothing in the bible is repeated unnecessarily. Either the two cases are similar, in which case citation in which the "extra" phrase in the second citation has a different function from that of the first, i.e. it must be read exegetically as adding a new halakhic element (R. Yosei b. Nehorai). Alternatively, the two cases are inherently different, so the repeated phrase should not be read exegetically, because it is simply making the same ruling for the second case as it did for the first (R. Yohanan).]

[R. Yosei's opinion is explained]. How are they (the citations for paid and unpaid custodians) different? Misappropriation by a paid custodian need not have been mentioned explicitly; we could have derived it logically from misappropriation by an unpaid custodian. An unpaid custodian who is not liable for loss or theft is liable for [unavoidable damage after misappropriation], even more so that a paid custodian who _is_ liable for loss or theft [would be liable for unavoidable damage after misappropriation]. For what halakha did the Merciful One write [both cases in the Torah]? -- To teach you that misappropriation does not require loss.

[We end on the seventh line of 41b.]

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