מִי יֵימַר דְּמִגַּנְבָא, וְאִם תִּמְצֵי לוֹמַר דְּמִגַּנְבָא – מִי יֵימַר דְּמִשְׁתְּכַח גַּנָּב, וְאִי מִשְׁתְּכַח גַּנָּב – מִי יֵימַר דִּמְשַׁלֵּם, דִּלְמָא מוֹדֵי וּמִפְּטַר? אָמַר רָבָא: נַעֲשָׂה כְּאוֹמֵר לוֹ, לִכְשֶׁתִּגָּנֵב וְתִרְצֶה וּתְשַׁלְּמֵנִי הֲרֵי פָּרָתִי קְנוּיָה לְךָ מֵעַכְשָׁיו.

who could say that the deposit will be stolen? And if you say it will be stolen, who could say that the thief will be found? And even if the thief will be found, who could say that he will pay the double payment? Perhaps he will confess and will be exempted from the double payment. Rava said in response: It is as though the owner said to the bailee at the time that he gave him the deposit: When it will be stolen, and you will wish to refrain from taking an oath, and you will pay me instead, ownership of my cow is hereby transferred to you from this time, and the cow is an entity that already came into the world. Since ownership of the cow is retroactively transferred to the bailee from the time of the deposit, any profits generated by the cow, e.g., the double payment, belong to the bailee.

מַתְקֵיף לַהּ רַבִּי זֵירָא: אִי הָכִי, אֲפִילּוּ גִּיזּוֹתֶיהָ וּוַלְדוֹתֶיהָ נָמֵי! אַלְּמָה תַּנְיָא חוּץ מִגִּיזּוֹתֶיהָ וּוַלְדוֹתֶיהָ? אֶלָּא אָמַר רַבִּי זֵירָא: נַעֲשָׂה כְּאוֹמֵר לוֹ, חוּץ מִגִּיזּוֹתֶיהָ וּוַלְדוֹתֶיהָ.

Rabbi Zeira objects to this: If so, then even the fleece and offspring of the animal that grew while it was in the bailee’s possession should be the property of the bailee. Why, then, is it taught in a baraita that the bailee receives all profits generated by the animal except for its fleece and its offspring? Rather, Rabbi Zeira says that it is as though the owner said to the bailee: My animal is hereby transferred to you from this time except for its fleece and its offspring.

וּמַאי פְּסָקַאּ? סְתָמָא דְּמִלְּתָא שְׁבָחָא דְּאָתֵא מֵעָלְמָא, עֲבִיד אִינִישׁ דְּמַקְנֵי. שְׁבָחָא דְּמִגּוּפַהּ, לָא עֲבִיד אִינִישׁ דְּמַקְנֵי.

The Gemara asks: If so, why was this halakha stated in the mishna without qualification? Does every owner necessarily have that condition in mind? The Gemara answers: Typically, profit that comes from elsewhere, e.g., the double payment from a thief, which is difficult to anticipate, a person is apt to transfer to the bailee. But profit that originates from the body of the animal, which can be anticipated, a person is not apt to transfer to the bailee.

אִיכָּא דְּאָמְרִי, אָמַר רָבָא: נַעֲשָׂה כְּאוֹמֵר לוֹ, לִכְשֶׁתִּגָּנֵב וְתִרְצֶה וּתְשַׁלְּמֵנִי, סָמוּךְ לִגְנֵיבָתָהּ קְנוּיָה לָךְ. מַאי בֵּינַיְיהוּ?

Some say that Rava says his response differently. It is as though the owner said to the bailee at the time of the deposit: When it will be stolen, and you will wish to refrain from taking an oath, and you will pay me instead, ownership of my animal is transferred to you adjacent to, i.e., immediately before, its theft. The Gemara asks: What is the difference between the formulations in Rava’s two responses?

אִיכָּא בֵּינַיְיהוּ קוּשְׁיָא דְּרַבִּי זֵירָא. אִי נָמֵי דְּקָיְימָא בַּאֲגַם.

The Gemara answers: There is a difference between them with regard to the difficulty raised by Rabbi Zeira with regard to fleece and offspring, which is irrelevant according to the second formulation. Alternatively, there is a difference in a case where the animal is standing in a marsh [ba’agam] at the time of its theft. Since the animal was not on the bailee’s property at that time, he could not acquire it.

שִׁילֵּם וְלֹא רָצָה לִישָּׁבַע [וְכוּ׳]. אָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: לֹא ״שִׁילֵּם״ – שִׁילֵּם מַמָּשׁ, אֶלָּא כֵּיוָן שֶׁאָמַר ״הֲרֵינִי מְשַׁלֵּם״, אַף עַל פִּי שֶׁלֹּא שִׁילֵּם.

§ The mishna teaches that if the bailee paid the owner and did not wish to take an oath, the thief pays the double payment to the bailee. Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: When the mishna says: If the bailee paid, it does not mean that he actually paid. Rather, once the bailee said: I hereby choose to pay, even if he did not yet actually pay, he acquired the double payment and all other profits.

תְּנַן: שִׁילֵּם וְלֹא רָצָה לִישָּׁבַע. שִׁילֵּם – אִין, לֹא שִׁילֵּם – לָא. אֵימָא סֵיפָא: נִשְׁבַּע וְלֹא רָצָה לְשַׁלֵּם. טַעְמָא דְּלֹא רָצָה, הָא רָצָה אַף עַל פִּי שֶׁלֹּא שִׁילֵּם. אֶלָּא מֵהָא לֵיכָּא לְמִשְׁמַע מִינַּהּ.

The Gemara raises an objection from that which we learned in the mishna: If the bailee paid the owner and did not wish to take an oath, the thief pays the double payment to the bailee. The Gemara infers: If the bailee paid, yes, he acquires these rights; if the bailee did not pay, he does not. The Gemara answers: Say the latter clause of the mishna: In the case of a bailee 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 bailee did not wish to pay. But if the bailee 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.

תַּנְיָא כְּוָתֵיהּ דְּרַבִּי יוֹחָנָן: הַשּׂוֹכֵר פָּרָה מֵחֲבֵירוֹ, וְנִגְנְבָה, וְאָמַר הַלָּה: ״הֲרֵינִי מְשַׁלֵּם וְאֵינִי נִשְׁבָּע״, וְאַחַר כָּךְ נִמְצָא הַגַּנָּב – מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל לַשּׂוֹכֵר.

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.

אָמַר רַב פָּפָּא: שׁוֹמֵר חִנָּם, כֵּיוָן שֶׁאָמַר ״פָּשַׁעְתִּי״, מַקְנֵה לֵיהּ כְּפֵילָא. דְּאִי בָּעֵי פָּטַר נַפְשֵׁיהּ בִּגְנֵיבָה. שׁוֹמֵר שָׂכָר, כֵּיוָן שֶׁאָמַר ״נִגְנְבָה״, מַקְנֵה לֵיהּ כְּפֵילָא. דְּאִי בָּעֵי פָּטַר נַפְשֵׁיהּ בִּשְׁבוּרָה וּמֵתָה.

Rav Pappa says: In the case of an unpaid bailee, 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 bailee 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 bailee, once he stated: It was stolen, the owner transfers rights to the double payment to him, as, if the paid bailee wishes, he can exempt himself from that liability with the claim that the animal was maimed or died due to circumstances beyond his control.

שׁוֹאֵל שֶׁאוֹמֵר ״הֲרֵינִי מְשַׁלֵּם״ – לָא מַקְנֵי לֵיהּ כְּפֵילָא, בְּמַאי הֲוָה לֵיהּ לְמִפְטַר נַפְשֵׁיהּ? בְּמֵתָה מֵחֲמַת מְלָאכָה, מֵתָה מֵחֲמַת מְלָאכָה לָא שְׁכִיחַ.

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.

אִיכָּא דְּאָמְרִי, אָמַר רַב פָּפָּא: שׁוֹאֵל נָמֵי כֵּיוָן שֶׁאָמַר ״הֲרֵינִי מְשַׁלֵּם״ – מַקְנֵי לֵיהּ כְּפֵילָא, דְּאִי בָּעֵי פָּטַר נַפְשֵׁיהּ בְּמֵתָה מֵחֲמַת מְלָאכָה. אֲמַר לֵיהּ רַב זְבִיד: הָכִי אָמַר אַבָּיֵי: שׁוֹאֵל עַד שֶׁיְּשַׁלֵּם. מַאי טַעְמָא? הוֹאִיל וְכׇל הֲנָאָה שֶׁלּוֹ, בְּדִיבּוּרָא לָא מַקְנֵי לֵיהּ כְּפֵילָא.

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.

תַּנְיָא כְּווֹתֵיהּ דְּרַב זְבִיד: הַשּׁוֹאֵל פָּרָה מֵחֲבֵירוֹ וְנִגְנְבָה, וְקִידֵּם הַשּׁוֹאֵל וְשִׁילֵּם, וְאַחַר כָּךְ נִמְצָא הַגַּנָּב – מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל לַשּׁוֹאֵל.

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.

לְלִישָּׁנָא קַמָּא דְּרַב פָּפָּא – וַדַּאי לָא הָוְיָא תְּיוּבְתָּא. לְלִישָּׁנָא בָּתְרָא לֵימָא תֶּיהְוֵי תְּיוּבְתֵּיהּ?

The Gemara comments: According to the first version of the statement of Rav Pappa, that the owner transfers rights to the double payment to the borrower only if he actually pays the owner, this baraita certainly is not a conclusive refutation [teyuvta] of the opinion of Rav Pappa, as the baraita corresponds to his opinion. According to the latter version of Rav Pappa’s statement, that the owner transfers rights to the double payment to the borrower even if the borrower merely says that he chooses to pay, shall we say that this baraita would be a conclusive refutation of the opinion of Rav Pappa?

אָמַר לְךָ רַב פָּפָּא: מִי אַלִּימָא מִמַּתְנִיתִין? דְּקָתָנֵי ״שִׁילֵּם״, וְאוֹקֵימְנָא, בְּאָמַר הָכָא נָמֵי בְּאָמַר.

The Gemara answers: Rav Pappa could have said to you: Is the baraita stronger than the mishna, which teaches that the bailee 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.

מִי דָּמֵי? הָתָם לָא קָתָנֵי ״קִידֵּם״, הָכָא קָתָנֵי ״קִידֵּם״! מַאי ״קִידֵּם״? קִידֵּם וְאָמַר.

The Gemara questions this: Are these cases comparable? There, in the mishna, it is not taught that he went ahead and paid. Here, in the baraita, it is taught that he went ahead and paid, which indicates that he actually paid and not merely that he agreed to pay. The Gemara responds: What is the meaning of went ahead? It means that he went ahead and stated his intent to pay, although he did not yet actually pay.

הָא מִדְּקָתָנֵי גַּבֵּי שׂוֹכֵר ״וְאָמַר״, וְגַבֵּי שׁוֹאֵל ״קִידֵּם״ – שְׁמַע מִינַּהּ דַּוְקָא קָתָנֵי! מִידֵּי גַּבֵּי הֲדָדֵי תַּנְיָא?

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.

שַׁיְילִינְהוּ לְתַנָּאֵי דְּבֵי רַבִּי חִיָּיא וּדְבֵי רַבִּי אוֹשַׁעְיָא, וְאָמְרִי: גַּבֵּי הֲדָדֵי תַּנְיָין.

The Gemara comments: The Sages asked the tanna’im of the school of Rabbi Ḥiyya and Rabbi Oshaya, experts in mishnayot and baraitot, if these baraitot were formulated together. And they said that the baraitot were taught together as one long baraita, and therefore one can draw a conclusion based on a discrepancy in their formulation.

פְּשִׁיטָא: אָמַר ״אֵינִי מְשַׁלֵּם״ וְחָזַר וְאָמַר ״הֲרֵינִי מְשַׁלֵּם״, – הָא קָאָמַר ״הֲרֵינִי מְשַׁלֵּם״. אֶלָּא אָמַר ״הֲרֵינִי מְשַׁלֵּם״

§ The Gemara comments that it is obvious that if the bailee initially said: I will not pay, and then said: I hereby choose to pay rather than taking an oath, he is entitled to the double payment, as didn’t he ultimately say: I hereby choose to pay? The Gemara raises a dilemma: But if he initially said: I hereby choose to pay,