003 HaMafkid - Hareni Meshalem 34a

§ The mishna teaches that if the guardian paid the owner and did not wish to take an oath, the thief pays the double payment to the guardian.

Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: When the mishna says: If the guardian paid, it does not mean that he actually paid. Rather, once the guardian said: I hereby choose to pay, even if he did not yet actually pay, he acquired the double payment and all other profits.

The Gemara raises an objection from that which we learned in the mishna: If the guardian paid the owner and did not wish to take an oath, the thief pays the double payment to the guardian. The Gemara infers: If the guardian paid, yes, he acquires these rights; if the guardian did not pay, he does not.

The Gemara answers: Say the latter clause of the mishna: In the case of a guardian who took an oath and did not wish to pay, the thief pays the double payment to the owner. The Gemara infers: The reason that the thief pays the owner is that the guardian did not wish to pay. But if the guardian wished to pay, although he did not actually pay, he acquires the rights to the double payment. Rather, because the inference from the first clause and the inference from the latter clause are contradictory, no inference is to be learned from this mishna.

The Gemara notes: It is taught in a baraita in accordance with the opinion of Rabbi Yoḥanan:

In the case of one who rents a cow from another, and it was stolen, and the other party, the renter, said: I hereby choose to pay and I will not take an oath, and the thief was located thereafter, the thief pays the double payment to the renter. Apparently, once the renter chooses to pay, he acquires the rights to the double payment.

Rav Pappa says: In the case of an unpaid guardian, once he stated: I was negligent, thereby rendering himself liable to compensate the owner, the owner transfers rights to the double payment to him, as, if the unpaid guardian wishes, he can exempt himself from that liability with the claim of theft. Admitting negligence is tantamount to agreeing to pay rather than taking an oath.

Likewise, in the case of a paid guardian, once he stated: It was stolen, the owner transfers rights to the double payment to him, as, if the paid guardian wishes, he can exempt himself from that liability with the claim that the animal was maimed or died due to circumstances beyond his control.

By contrast, in the case of a borrower who says: I hereby choose to pay, the owner does not transfer the rights to the double payment to him. The borrower’s statement that he chooses to pay is ineffectual, as he is liable to pay even without it. Because the statement is ineffectual, it does not confer any rights. With what claim would a borrower be able to exempt himself from payment? It is only with the claim that the animal died due to ordinary labor.

A case of an animal that died due to ordinary labor is uncommon, and this claim is therefore accepted only with corroborating proof.

Some say that Rav Pappa said: In the case of a borrower, once he stated: I hereby choose to pay, the owner transfers rights to the double payment to him, as, if a borrower wishes, he can exempt himself from that liability with the claim that the animal died due to ordinary labor.

Rav Zevid said to him that this is what Abaye said: A borrower acquires the rights to the double payment only when he actually pays for the item.

What is the reason for this?

Since all of the benefit accrues to the borrower, as he enjoys the use of the item without payment, the owner does not transfer the rights to the double payment to the borrower due to his statement that he chooses to pay.

The Gemara notes: It is taught in a baraita in accordance with the opinion of Rav Zevid:

In the case of one who borrows a cow from another, and it was stolen, and the borrower went ahead and paid, and the thief was located thereafter, the thief pays the double payment to the borrower. This indicates that the borrower receives the double payment only if he actually paid the owner for the item.

The Gemara answers: Rav Pappa could have said to you: Is the baraita stronger than the mishna, which teaches that the guardian receives the double payment if he already paid the owner, and nevertheless, we established that the mishna is referring to one who states his intent to pay but has not yet paid? Here, too, establish the baraita as referring to one who states his intent to pay but has not yet paid.

The Gemara asks: But from the fact that the tanna teaches the halakha in the baraita cited earlier with regard to a renter with the formulation: And he said that he would pay, and in the baraita with regard to a borrower the tanna uses the formulation: Went ahead, conclude from it that the baraita concerning a borrower is teaching specifically that he actually paid.

The Gemara rejects this proof: Are these two baraitot taught together so that one can draw a conclusion based on a discrepancy in their formulation? Perhaps the baraitot are unrelated and are simply formulated in different styles.