Bava Kamma

but where he did take an oath, even though he subsequently paid, the thief would surely have to pay the owner of the deposit; but Raba deduces his ruling from the concluding clause where it was stated: 'But if the bailee took an oath [to defend himself] rather than pay …', this is so only where he was not willing to pay, but where he did pay even though he first denied the claim on oath, the thief would of course have to pay him with whom the deposit was in charge. Does not the implication of the concluding clause contradict the view of Abaye? — Abaye would say to you: What it means to say is this: 'If the bailee swore rather than pay before having taken the oath, though he did so after he took the oath, to whom will the thief pay? To the owner of the deposit.' But does not the implication of the commencing clause contradict the view of Raba? — Raba could say to you that the meaning is this: 'If the bailee paid, as he was not willing to take his stand upon his oath and consequently paid, to whom should the thief pay? To him with whom the deposit was in charge. Suppose the owner had claimed [his deposit] from the bailee, and the latter denied upon oath, and the actual thief was then identified and the bailee demanded payment from him and he confessed the theft, but when the owner [of the deposit] demanded payment from him he denied it and witnesses were brought, did the thief become exempt  through his confession to the bailee,  or did the thief not become exempt  through his confession to the bailee?  — Said Raba: If the oath [taken by the bailee] was true, the thief would become exempt through his confession to the bailee,  but if he perjured himself in the oath  the thief would not become exempt through his confession to the bailee.  But Raba asked: What would be the law where the bailee was prepared to swear falsely but [it so happened that for some reason or other] he was not allowed to do so?  — This must remain undecided. But while R. Kahana was stating the text thus, R. Tabyomi was reading it as follows: 'Rab asked: What would be the law where the bailee has sworn falsely [to defend himself]?'  — This must stand undecided. Suppose the owner claimed [his deposit] from the bailee who thereupon paid him, and the thief was then identified and when the owner demanded payment from him he confessed, whereas when the bailee demanded payment from him he denied it, and witnesses appeared [against him], should the thief become exempt  through his confession to the owner or not? Shall we maintain that the bailee is entitled to say to the owner: 'Since you have received the value [of your deposit] your interest has completely lapsed  in this matter', or can the owner say to him: 'Just as you did us a favour,  we also are willing to do you the same and are therefore hunting after the thief. Let us take back what belonged to us and you receive back what belonged to you'? — This must stand undecided. It was taught:  Where the deposit was stolen through violence  and the thief was identified, Abaye said that if the bailee was unpaid he has the option of going to law with him,  or of [clearing himself by] an oath [so that the owner will himself have to deal with the thief], whereas if it was a paid bailee he would have to go to law with the thief and he cannot take an oath to discharge his liability.  But Raba said: Whichever he is  he would have to go to law with the thief and not take an oath. May we say that Raba differs from the view of R. Huna b. Abin, for R. Huna b. Abin sent word that where the deposit was stolen by violence and the thief was identified, if the bailee was unpaid he had the option of going to law with him or of [clearing himself by] an oath, whereas if he was a paid bailee he would have to go to law with the thief and could not clear himself by an oath?  — Raba could say to you that [in this last ruling] we are dealing with a case where the paid bailee took the oath before [the thief was identified].  But did R. Huna not say: 'He had the option of going to law or of clearing himself by an oath'?  — What he meant was this: 'The unpaid bailee had the choice of taking his stand on his oath  or of going to law with him.' Rabbah Zuti asked thus: Where the deposited animal was stolen by violence and the thief restored it to the house of the bailee where it then died through carelessness [on the part of the bailee], what should be the law? Shall we say that since it was stolen by violence, the duty of bailment came to an end,  or perhaps since it was restored to him it once more came into his charge [which thus revived]?  — This must stand undecided. MISHNAH. [IF A MAN SAYS TO ANOTHER] 'WHERE IS MY DEPOSIT?' AND HE  REPLIES: 'IT IS LOST' [AND THE DEPOSITOR THEN SAYS]. 'I PUT IT TO YOU ON OATH.' AND THE OTHER REPLIES. 'AMEN', IF WITNESSES TESTIFY AGAINST HIM THAT HE HIMSELF HAD CONSUMED IT, HE HAS TO PAY ONLY THE PRINCIPAL, WHEREAS IF HE CONFESSES ON HIS OWN ACCORD HE HAS TO REPAY THE PRINCIPAL TOGETHER WITH A FIFTH AND BRING A TRESPASS OFFERING.  [BUT IF THE DEPOSITOR SAYS] 'WHERE IS MY DEPOSIT?' AND THE BAILEE REPLIES: 'IT WAS STOLEN' [AND THE DEPOSITOR THEN SAYS] I PUT IT TO YOU ON OATH, AND THE BAILEE REPLIES, AMEN, IF WITNESSES TESTIFY AGAINST HIM THAT HE HIMSELF HAD STOLEN IT HE HAS TO REPAY DOUBLE,  WHEREAS IF HE CONFESSES ON HIS OWN ACCORD HE HAS TO REPAY THE PRINCIPAL TOGETHER WITH A FIFTH AND BRING A TRESPASS OFFERING.  IF A MAN ROBBED HIS FATHER AND, [WHEN CHARGED BY HIM,] DENIED IT ON OATH, AND [THE FATHER AFTERWARDS] DIED,  HE WOULD HAVE TO REPAY THE PRINCIPAL AND A FIFTH [AND A TRESPASS OFFERING]  TO HIS [FATHER'S] CHILDREN  OR TO HIS [FATHER'S] BROTHERS;  BUT IF HE IS UNWILLING TO DO SO,  OR HE HAS NOTHING WITH HIM,  HE SHOULD BORROW [THE AMOUNT FROM OTHERS AND PERFORM THE DUTY OF RESTORATION TO ANY OF THE SPECIFIED RELATIVES] AND THE CREDITORS CAN SUBSEQUENTLY COME AND [DEMAND TO] BE PAID  [THE PORTION WHICH WOULD BY LAW HAVE BELONGED TO THE ROBBER AS HEIR]. IF A MAN SAID TO HIS SON: 'KONAM BE  WHATEVER BENEFIT YOU HAVE OF MINE,'  AND SUBSEQUENTLY DIED, THE SON WILL INHERIT HIM.