Bava Metzia 34

A family affair?

The mishnah on yesterday’s daf taught that if someone agrees to watch your vessels or animals for free, and they were either lost or stolen:

The unpaid caretaker takes an oath (that he did not steal the animal himself) and he is released from liability.

If the unpaid animal sitter doesn’t want to take an oath (after all, a formal legal oath is a big deal), they can choose to pay for the lost or stolen animal. But what happens if the caretaker chose to pay and it turned out the animals were stolen and now the thief has been discovered and the animals recovered?

If the thief is found, he pays the double payment. If he slaughtered or sold it, he pays the fourfold or fivefold payment. To whom does he pay? To the one who had the deposit in his domain.

The idea is that when the unpaid caretaker paid the original owner, ownership of the animal transferred to him. So now the thief’s penalties are his as well. 

On today’s daf, we get an extension of this ruling: 

Rabbi Hiyya bar Abba says Rabbi Yohanan says: “paid,” it does not mean that he actually paid. Rather, once he said: “I hereby pay,” even if he did not pay.

According to this statement, as soon as the unpaid caretaker announces his intention to pay instead of taking an oath, the items transfer to him — even before he’s given the original owner any money. The Talmud then asks a series of questions about this idea. Let’s look at a few of them: 

He said: “I hereby pay,” and died, and his sons said: “We are not paying,” — what is the halakhah? Do we say they are retracting, or perhaps they uphold their father’s statement and are postponing?

If the caretaker didn’t want to take an oath, but announced that he would pay the owner instead, but died before actually making the payment, and then his heirs said that they would not actually pay, do we take that announcement as a final statement or as a delaying tactic? If the thief is found and obligated to pay the double penalty, who should get the money?

Alternatively, what if the original owner of the object died, and the unpaid caretaker is dealing with his heirs?  

If he paid his sons, what is the halakhah? Can they say to him: “When our father transferred the double payment to you, you pleased him, but not us?” Or perhaps it is no different?

Does the mishnah’s ruling only apply if the caretaker is paying the original owner? Does it transfer over to his heirs in the case of an untimely death? 

You might have already guessed the next scenario: What if both the original owner and the unpaid caretaker both died and the heirs of the caretaker paid the heirs of the owner? What then? 

The Gemara today is going to answer all these ever-more-unlikely hypotheticals with one word: teyku, the Talmudic phrase that means that the question stands unresolved. The Talmud just isn’t sure how to rule in these situations.

But while we don’t get a conclusion to these questions, I do think we can draw some conclusions from the discussion as a whole. Because all three challenges assume that the social and financial activities of a father have an impact on his children. In this case, everyone involved is an adult, and in theory could be living their own separate lives. And yet, one person agreeing to do a favor for a friend and watch his sheep for free continues to impact the financial situation of his own sons as well as the sons of sheep’s owner. These cases encourage us to see ourselves as continually financially and socially networked with our children. If the next generation is ultimately responsible for our decisions, what does that mean about how we should act in the world?

Read all of Bava Metzia 33 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on April 1st, 2024. If you are interested in receiving the newsletter, sign up here.

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