[bm 41b.1: We begin on the seventh line. The gemara had discussed R. Josei b. Nehorai's opinion that the liability of a paid custodian for misappropriation can be learned by "kal va'homer" (even more so) from Ex. 22:6-8, which refers to an unpaid custodian, and that therefore, Ex. 22:9-10 must have a different meaning: that "misappropriation requires loss". R. Yohanan had said that there was no difference in the function of 22:6-9 and 22:9-10; the latter establishes the liability of a paid custodian for misappropriation just as the former establishes the liability of an unpaid custodian. The gemara will now discuss R. Yohanan's position.]

[Citing R. Yohanan's statement:] "And I say that there is no difference" [between a paid and an unpaid custodian with respect to misappropriation]. This is consistent with R. Elazar, who says that one is the same as the other [i.e., that the two biblical references to misappropriation are both necessary, and you cannot learn one from the other using a "kal va'homer" argument that the paid custodian is certainly liable if the unpaid custodian is liable].

What does "one is the same as the other" mean? (It means that) the kal va'homer argument can be refuted. [We might use the kal va'homer to logically prove the liability of the unpaid custodian. This would leave the reference to the liability of the unpaid custodian as an unnecessary biblical phrase that could be used for exegesis. But R. Elazar holds that the kal va'homer argument cannot be used to derive the liability of the unpaid custodian, so that both biblical phrases are necessary, and there is no room for additional exegesis of an "extra" biblical phrase.]

Behold, an unpaid custodian pays a double payment (restitution plus a penalty) for a claim that an item was stolen. [If an unpaid custodian takes the deposit for himself and claims that the item was stolen, he is liable for a double payment. But a paid custodian is never liable for the penalty, because he has to pay the owner for stolen items anyway. Thus, there is a sense in which the unpaid custodian's liability is greater than that of the paid custodian, and no kal va'homer argument is possible.]

And the one who does not reject [the kal va'homer] holds that the [paid custodian's liability] to repay the principal even if he has not sworn falsely [that the item was stolen] is more severe than the [unpaid custodian's liability for] double payment [after swearing falsely]. [Thus, the paid custodian is still treated more severely, and the kal va-homer is acceptable. This leaves the biblical phrase about the liability of the unpaid custodian open for exegesis, which R. Yosei b. Nehorai used to show that misappropriation does not depend on loss.]

Rava said: Misappropriation does not have to be explicitly mentioned either in the case of the paid custodian or in the case of the unpaid custodian, because it can be derived from the law of the borrower [Ex. 13-14]. Just as the borrower who acts with the consent of the owner is liable as soon as he misappropriates the item, even more so the paid and unpaid custodians [who, unlike the borrower, never had the owner's permission to use the item].

So why is it said [why are there explicit biblical references to misappropriation by paid and unpaid custodians]? One is to teach that misappropriation does not depend on loss, and one so that you should not say "it is enough that the derived law [misappropriation, derived via the kal va'homer] is the same as the core law [the law of the borrower]" -- [in other words, you should not conclude that] just as the borrower who employed the owner is not liable for unavoidable loss, so is the paid or unpaid custodian not liable. [Ex 22:14, "if the owner thereof be with it, he shall not make it good"] Normally, a law derived by a kal va'homer cannot be more demanding that the core law from which it was derived. The extra verse in our case teaches us that the derived case of the custodians _is_ more stringent than the core case of the borrower's liability.]

And according to the one who says that misappropriation depends on loss, why do we need two (extra biblical verses)? One to teach that you should not say that the derived law should be the same as the core law, and the other for what was taught in the following b'raita [referring to Ex. 22:6-8, and specifying that an unpaid custodian who claims that an item was stolen must take an oath; if he swears falsely, he ia liable for a double payment]: "The master of the house [i.e., the unpaid custodian] shall come near unto G-d" -- for an oath.

You say it is for an oath. Perhaps is it simply for judgment [and the unpaid custodian who falsely claims that an item was stolen would be liable for the double paymenty even if he had not taken an oath]?

[The gemara answers:] Misappropriation is specified below (Ex 22:9-12, regarding a paid custodian) and misappropriation is specified above (Ex 22:6-8, the case of an unpaid custodian). Just as an oath is required there [Ex 22:10 explicitly requires an oath by the paid custodian], so it is (also) required here (in the case of the unpaid custodian).

[We end at the bottom of bm 41b.]

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