בבא קמא דף קו

בפקדון – פסול לעדות.

but one who denies a claim concerning having taken a deposit is disqualified from bearing witness, because if it is clear that the deposit is in his possession, yet he denies it, he must be lying.

והאמר אילפא: שבועה קונה: שבועה היא דקניא, אבל כפירה לא קניא! הכא נמי – דקיימא באגם.

The Gemara raises a further difficulty with regard to Rav Sheshet’s opinion: But didn’t Ilfa say that an oath effects acquisition, meaning that once he testified falsely that he did not become a bailee, the item in question becomes his property, rendering him liable as a robber even for damage or loss resulting from accidents? The Gemara infers: It is the taking of an oath that effects acquisition, but mere denial of having become a bailee does not effect acquisition. The Gemara rejects this distinction: Here too, Ilfa must be referring to a case where the deposit stands in a place not in the bailee’s possession, e.g., a swamp, and as long as he does not take an oath, it can be assumed that his intention is simply to be evasive. But if the animal was standing in his house, then he acquires it as soon as he denies the claim.

ואיבעית אימא: מאי ״שבועה קונה״ – כדרב הונא; דאמר רב הונא אמר רב: ״מנה לי בידך״, והלה אומר: ״אין לך בידי״; ונשבע,

And if you wish, say instead: What is the meaning of Ilfa’s statement that an oath effects acquisition? It is in accordance with the statement of Rav Huna, as Rav Huna says that Rav said that if one party says: I have one hundred dinars in your possession, and the other party says: You do not have any money in my possession, and the latter took an oath to that effect, and later, witnesses came and testified that his oath was false, he is exempt, as it is stated: “The oath of the Lord shall be between them both, to see whether he has not put his hand unto his neighbor’s goods; and the owner thereof shall accept it, and he shall not make restitution” (Exodus 22:10); teaching that once the owner received an oath, the one who took the oath no longer pays monetary restitution. Ilfa’s statement that an oath effects acquisition means that the bailee will no longer have to pay monetary restitution, and it does not relate to Rav Sheshet’s statement that the bailee becomes responsible for damage resulting from accidents as soon as he denies the claim.

ואחר כך באו עדים – פטור, שנאמר: ״ולקח בעליו ולא ישלם״ – כיון שקבלו הבעלים שבועה, שוב אין משלם ממון.

גופא. אמר רב הונא אמר רב: ״מנה לי בידך״, והלה אומר: ״אין לך בידי כלום״; ונשבע, ובאו עדים – פטור, שנאמר:

§ Having mentioned Rav’s ruling, the Gemara addresses the matter itself: Rav Huna says that Rav says that if one party says: I have one hundred dinars in your possession, and the other party says: You do not have any money in my possession, and the latter takes an oath to that effect, and later, witnesses came and testified that his oath was false, he is exempt, as it is stated: “And the owner thereof shall accept it, and he shall not make restitution” (Exodus 22:10); teaching that once the owner received an oath, the one who took the oath no longer pays monetary restitution.

״ולקח בעליו ולא ישלם״ – כיון שקבלו בעלים שבועה, שוב אין משלמין ממון.

אמר רבא: מסתברא מילתיה דרב – במלוה, דלהוצאה ניתנה; אבל פקדון – ברשותיה דמריה קאי. והאלהים – אמר רב אפילו בפקדון; דכי כתיב קרא – בפקדון כתיב.

Rava said: Rav’s statement is reasonable in the case of one who denies having taken a loan, which is intended for expenditure. Since the money is no longer in his possession, the Torah exempts him from monetary restitution once he takes an oath. But in the case of one who denies having accepted a deposit, it remains in the owner’s possession and must be returned intact, and it is not considered to be monetary restitution. Rava continues: But, by God, Rav said his statement even in the case of one who denies having accepted a deposit, as when this verse exempting him from payment is written, it is written in the case of one who denies having accepted a deposit.

יתיב רב נחמן וקאמר להא שמעתא. איתיביה רב אחא בר מניומי לרב נחמן: ״היכן פקדוני?״ אמר לו: ״אבד״. ״משביעך אני״, ואמר: ״אמן״,

§ The Gemara relates that Rav Naḥman was sitting and saying this halakha. Rav Aḥa bar Minyumi raised an objection to Rav Naḥman from that which was taught in a mishna (108b): If the owner asked the bailee: Where is my deposit, and the bailee said to him: It is lost, and the owner said: I administer an oath to you, and the bailee said: Amen, thereby accepting the oath, and the witnesses testify about the bailee that he consumed the deposit, then he must pay the principal. If he admitted of his own accord that he had taken a false oath, then he must pay the principal and the additional one-fifth payment, and bring a guilt-offering. This indicates that one is required to pay monetary restitution for a deposit even after taking an oath.

והעדים מעידים אותו שאכלו – משלם את הקרן. הודה מעצמו – משלם קרן וחומש ואשם!

אמר ליה רב נחמן: הכא במאי עסקינן – כגון דנשבע חוץ לבית דין. אמר ליה: אי הכי, אימא סיפא: ״היכן פקדוני״? אמר לו: ״נגנב״. ״משביעך אני״, ואמר: ״אמן״,

Rav Naḥman said to him: With what are we dealing here? We are dealing with a case where one takes an oath outside of court, which does not exempt him from paying restitution. Rav Aḥa bar Minyumi said to him: If so, say the latter clause of the mishna: If the owner asked the bailee: Where is my deposit, and the bailee said to him: It was stolen, and the owner said: I administer an oath to you, and the bailee said: Amen, thereby accepting the oath; and the witnesses testify about the bailee that he stole it, he must pay the payment of double the principal. If he admitted of his own accord that he had taken a false oath, then he must pay the principal and the additional one-fifth payment, and bring a guilt-offering. And if it enters your mind that this oath was taken outside of court, is there an obligation of double payment in such a circumstance?

והעדים מעידים אותו שגנבו – משלם תשלומי כפל. הודה מעצמו – משלם קרן וחומש ואשם. ואי סלקא דעתך חוץ לבית דין, מי איכא כפל?

אמר ליה, יכילנא לשנויי לך: רישא חוץ לבית דין, וסיפא בבית דין; מיהו שינויא דחיקא לא משנינא לך. אידי ואידי בבית דין – ולא קשיא; כאן בקפץ,

Rav Naḥman said to him: I am able to answer you by saying that the first clause of the mishna is referring to one who took an oath outside of court, and the latter clause of the mishna is referring to one who took an oath in court, but we will not answer you with a forced answer. Instead, I will explain it in this manner: Both this clause and that clause are referring to an oath taken in court, and it is not difficult. Here, the ruling of the first clause is with regard to one who leaped to take an oath as soon as the other litigant stated his claim, even though the court had not yet required him to do so, which is not considered a full-fledged oath. There, the ruling of the latter clause is with regard to one who did not leap but took an oath only when required by the court.

כאן בשלא קפץ.

אמר ליה רמי בר חמא לרב נחמן: מכדי דרב לא סבירא לך, משכוני נפשך אדרב למה לך? אמר ליה: לפרושה לדרב, דרב הכי מתרץ לה למתניתין.

Rami bar Ḥama said to Rav Naḥman: After all, you do not hold in accordance with the statement of Rav; why are you pledging yourself to explain the statement of Rav so that it not be contradicted by the mishna? Rav Naḥman said to him: I said this not to justify Rav’s ruling but to clarify the statement of Rav, as Rav would explain the mishna in this manner, as I did.

והא רב קרא קאמר! אמרי: קרא ל״כל הנשבעין שבתורה – נשבעין ולא משלמין״ הוא דאתא, ״ולקח בעליו ולא ישלם״ – מי שעליו לשלם, הוא נשבע.

The Gemara asks: But Rav quoted a verse, so how could Rav Naḥman not agree with his statement? The Sages said in response: This verse was not written to teach the ruling of Rav; rather, it comes to teach the halakha that all those discussed in the Torah who are required to take oaths, take oaths and do not pay; as the verse should be interpreted as follows: “And the owner thereof shall accept it, and he shall not make restitution” (Exodus 22:10), teaching that one who has the obligation to pay is the one who takes an oath, and not the one demanding payment.

מתיב רב המנונא: השביע עליו חמשה פעמים, בין בפני בית דין ובין שלא בפני בית דין, וכפר עליו – חייב על כל אחת ואחת.

Rav Hamnuna raises an objection to Rav’s statement from a different mishna (Shevuot 36b), which states: If an owner requested the return of his deposit and the purported bailee denied having received it, and the owner administered an oath to the bailee about the deposit five times, whether before the court or not before the court, and the bailee denied the claim each time, he is liable for each and every one of the oaths and must pay the additional one-fifth payment and bring a guilt-offering for each one. And Rabbi Shimon says: What is the reason? Since he is able to retract and admit after each oath, at which point he would be liable to pay, therefore each subsequent false oath is a denial of that liability. It can be seen from this mishna that one who admits liability after having taken a false oath is liable to pay, counter to the statement of Rav.

ואמר רבי שמעון: מה טעם? הואיל ויכול לחזור ולהודות!

והכא, קפץ לא מצית אמרת – ״השביע עליו״ קתני; חוץ לבית דין לא מצית אמרת – ״בפני בית דין״ קתני!

And here, you cannot say that the mishna in Shevuot is referring to a case where the bailee leaped to volunteer his oath, because it teaches explicitly that the owner administered an oath to the bailee about the deposit. And you cannot say that the mishna in Shevuot is referring to a case where the bailee took his oath outside of court, because it teaches explicitly that the halakha applies whether the oath was taken before the court or not before the court.

הוא מותיב לה, והוא מפרק לה; לצדדין קתני: השביע עליו – חוץ לבית דין, ובבית דין – קפץ.

The Gemara explains: He, Rav Hamnuna, raised the objection and he resolved it: The tanna teaches it disjunctively, i.e., the rulings of the mishna are stated with regard to different circumstances. Where it teaches that the owner administered an oath to the bailee about the deposit, that is referring to outside of court, and when it discusses an oath taken before the court, it is referring to a case where the bailee leaped and volunteered his oath. Therefore, the mishna does not discuss the case with regard to which Rav issued his ruling, where the bailee was forced to take an oath before the court.

מתיב רבא: בעל הבית שטען טענת גנב בפקדון ונשבע, והודה, ובאו עדים – אם עד שלא באו עדים הודה, משלם קרן וחומש ואשם; ואם משבאו עדים הודה,

Rava raises an objection to Rav’s statement from a baraita: In the case of a homeowner acting as a bailee who falsely claimed, with regard to a deposit, that a thief stole it, and he took an oath to that effect and subsequently admitted that he was lying and that in fact he took the item himself, and witnesses came and testified that the bailee himself indeed took the item, then if he admitted his guilt before the witnesses came and testified, he pays the principal value of the item and the additional one-fifth payment, and he must also bring a guilt-offering. But if he admitted his guilt after the witnesses came and testified, he pays the double payment and brings a guilt-offering. This baraita rules that one who takes an oath is not exempt from payment, counter to the statement of Rav.

משלם תשלומי כפל ואשם.

והכא חוץ לבית דין וקפץ לא מצית אמרת – ״כפל״ קתני!

And here, in this baraita, you cannot say that it is referring to an oath taken outside of court or that he leaped and volunteered his oath, because double payment is taught in the baraita, and one is obligated to pay double payment only when the accused has an oath administered to him before the court.

אלא אמר רבא: כל הודה, לא שנא טוען טענת אבד, ולא שנא טוען טענת גנב – נמי לא אמר רב, דהא כתיב ״והתודה״ – דבעי שלומי קרן וחומש.

Rather, Rava said: In any case where one admits to having taken a false oath, there is no difference whether one falsely states the claim that the deposit was lost, and there is no difference whether one falsely states the claim that a thief stole the deposit as well; in these cases, Rav did not say that taking an oath exempts the bailee from restitution, because it is written in the Torah portion discussing a false oath taken with regard to a deposit: “And they shall confess the sin that they performed, and he shall return the principal for his guilt, and he shall add to it one-fifth, and he gives it to the one with regard to whom he is guilty” (Numbers 5:7), teaching that anyone who admits to a false oath concerning a deposit is required to pay the principal and the additional one-fifth payment.

טוען טענת גנב ובאו עדים נמי לא אמר רב – דהא כתיב תשלומי כפל. כי קאמר, כגון שטוען טענת אבד, ונשבע ולא הודה, ובאו עדים.

The Gemara continues Rava's statement: Additionally, in a case where one falsely states the claim that a thief stole the deposit and takes an oath to that effect and witnesses come and say that he had stolen it, as well, Rav did not say that taking an oath exempts the bailee from restitution, because double payment is written in the Torah (see Exodus 22:8). When he says that taking an oath exempts the bailee from restitution, it is in a case where one falsely states the claim that the deposit was lost and takes an oath to that effect, and did not admit it, and witnesses come and testify that he had stolen it.

אזל רב גמדא, ואמרה לשמעתא קמיה דרב אשי. אמר ליה: השתא ומה רב המנונא, תלמידיה דרב – וידע דאמר רב הודה, וקמותיב הודה; ואת אמרת:

The Gemara relates that Rav Gamda went and said that halakha before Rav Ashi. Rav Ashi said to him: Now consider: And even Rav Hamnuna, who was Rav’s student and knew that Rav says that one who takes a false oath is exempt from paying restitution even in a case where he admitted it; and Rav Hamnuna therefore challenged him from a mishna that teaches that one is not exempt in a case where he admitted it. And you say that Rav did not say his halakha in a case where one admitted that he took a false oath? Presumably, Rav Hamnuna, as Rav’s student, was aware of the scope of his teacher’s ruling. How, then, can you limit it as being narrower than Rav Hamnuna’s interpretation?

הודה לא אמר רב?!

אמר ליה רב אחא סבא לרב אשי, רב המנונא הכי קא קשיא ליה:

Rav Aḥa the Elder said to Rav Ashi: Rav Hamnuna did not raise a difficulty against Rav with regard to the case of one admitting to having taken a false oath, rather, with regard to the case where witnesses came after he took the oath, and this is what is difficult for him:

אי אמרת בשלמא נשבע – כי אתו עדים מיחייב, אמטו להכי מחייבינן ליה קרבן אשבועה בתרייתא, הואיל ויכול לחזור ולהודות;

Granted, if you say that when one takes a false oath and then witnesses come, he is liable to pay, that is why we hold him liable for a guilt-offering for the final oath, since he can still retract and admit his liability and incur an obligation to pay. Consequently, the fact that he took another false oath constitutes an additional false denial of his monetary liability.

אלא אי אמרת כי אתו עדים פטור, מי איכא מידי דאילו אתו סהדי ומסהדי ביה – פטור, ואנן ניקו ניחייביה קרבן אשבועה הואיל ויכול לחזור ולהודות?!

But if you say, as Rav did, that even when witnesses come he is exempt from paying, then the mishna’s ruling is difficult, as is there any similar case where if witnesses come and testify with regard to it, he would be exempt, and yet we would stand and obligate him to bring a guilt-offering for a later oath, for no reason other than since he can still retract and admit his liability? As of now, in any event, he has not admitted to any liability and has no extant debt, and any further oaths that he takes are not denials of monetary liability. It follows, then, that Rava’s explanation of Rav’s opinion cannot be undermined by Rav Hamnuna’s challenge.

השתא מיהת לא אודי!

אמר רבי חייא בר אבא אמר רבי יוחנן: הטוען טענת גנב בפקדון – משלם תשלומי כפל. טבח ומכר – משלם תשלומי ארבעה וחמשה.

§ The Gemara cites another ruling concerning the topic of a bailee who claims that a deposit in his possession was stolen. Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: One who falsely states the claim, with regard to a deposit, that a thief stole it, and it becomes clear that he stole it himself, pays double payment. If he slaughtered or sold it, he must pay fourfold or fivefold payment.

הואיל וגנב משלם תשלומי כפל, וטוען טענת גנב משלם תשלומי כפל – מה גנב, שהוא משלם כפל, טבח ומכר משלם תשלומי ארבעה וחמשה; אף טוען טענת גנב בפקדון,

He explains his ruling by means of a comparison: Since a thief pays double payment, and one who falsely states the claim that a thief stole the deposit also pays double payment, it follows that just as a thief, who ordinarily pays double payment, and if he slaughtered or sold an animal he stole pays fourfold or fivefold payment, so too, one who falsely states the claim that a thief stole a deposit, who ordinarily pays double payment, if he slaughtered or sold the animal he received as a deposit pays fourfold or fivefold payment.

כשהוא משלם תשלומי כפל, טבח ומכר משלם תשלומי ארבעה וחמשה.

מה לגנב – שכן משלם תשלומי כפל שלא בשבועה, תאמר בטוען טענת גנב – שאין משלם תשלומי כפל אלא בשבועה?!

The Gemara asks: What is notable about the halakha of a thief? It is notable in that he pays double payment even without having taken a false oath; will you say that this stringency should apply with regard to one who falsely states the claim that a thief stole the deposit, who pays double payment only upon taking a false oath? Therefore, one cannot derive from the obligation of a thief to pay fourfold or fivefold payment to the case of one who falsely states the claim that the deposit was stolen.

אמרי: היקישא היא, ואין משיבין על היקישא.

The Sages say in response: Rabbi Yoḥanan did not base his ruling on a logical inference; rather, it is a derivation based upon a juxtaposition, as the verses discussing a thief and one who falsely states the claim that a deposit was stolen are juxtaposed, and one cannot refute through analysis a derivation based upon juxtaposition.

הניחא למאן דאמר חד בגנב וחד בטוען טענת גנב, שפיר. אלא למאן דאמר האי ״אם ימצא הגנב״, ו״אם לא ימצא״ – תרוייהו בטוען טענת גנב; מאי איכא למימר?

The Gemara asks: This works out well according to the one who says that one verse is stated with regard to a thief and one verse is stated with regard to one who falsely states the claim that a thief stole the deposit. According to him, there is a juxtaposition, and one can well derive one from the other. But according to the one who says that both this verse: “If the thief shall be found, he shall pay double” (Exodus 22:6), and: “If the thief shall not be found” (Exodus 22:7), are referring to one who falsely states the claim that a thief stole the deposit, and neither verse is referring to a thief, what is there to say?

אמרי: ״גנב–הגנב״.

The Sages say in response: Rabbi Yoḥanan’s ruling is derived from an amplification indicated by the verse not employing the term “thief [gannav],” and instead employing the expanded term “the thief [hagannav].” This teaches that the halakha of the fourfold and fivefold payment applies to one who falsely states the claim that the deposit was stolen, as well.

איתיביה רבי חייא בר אבא לרבי יוחנן: ״היכן שורי?״ ״נגנב״. ״משביעך אני״, ואמר: ״אמן״, והעדים מעידים אותו שאכלו – משלם תשלומי כפל. והא הכא,

Rabbi Ḥiyya bar Abba raised an objection to the statement of Rabbi Yoḥanan from a baraita: In a scenario where one said to an unpaid bailee: Where is my ox? Then the bailee responded: It was stolen. And the owner said: I administer an oath to you, and the bailee said: Amen. And the witnesses testify about the bailee that he ate it, he pays double payment. But here, the halakha is that it is impossible to eat even an olive-bulk of meat without slaughtering the animal first, indicating that it must have been slaughtered, and nevertheless it teaches that he pays double payment. It can be inferred that double payment, yes, he pays; but fourfold or fivefold payment, no, he does not pay.

דאי אפשר לכזית בשר בלא שחיטה, וקתני: משלם תשלומי כפל; תשלומי כפל – אין, תשלומי ארבעה וחמשה – לא!

הכא במאי עסקינן – כגון שאכלו נבילה.

Rabbi Yoḥanan answers: With what are we dealing here? We are dealing with a case where he ate it as an unslaughtered animal carcass. Since it was not killed according to the halakhot of ritual slaughter, the thief does not pay the fourfold or fivefold payment.

ולישני ליה כגון שאכלו טריפה! כרבי מאיר, דאמר: שחיטה שאינה ראויה – שמה שחיטה.

The Gemara asks: And let Rabbi Yoḥanan answer Rabbi Ḥiyya bar Abba by saying that it is a case such as where he ate it as an animal with a wound that will cause it to die within twelve months [tereifa], in accordance with Rabbi Shimon’s opinion that the legal status of an act of slaughter that is not fit for accomplishing its full ritual purpose is not considered an act of slaughter for which the thief must pay the fourfold or fivefold payment. The Gemara responds that Rabbi Yoḥanan holds in accordance with the opinion of Rabbi Meir, who says that the legal status of an act of slaughter that is not fit for accomplishing its full ritual purpose is considered an act of slaughter, and the thief would pay the fourfold or fivefold payment.

ולישני ליה בבן פקועה! כרבי מאיר, דאמר: בן פקועה טעון שחיטה.

The Gemara further asks: And let Rabbi Yoḥanan answer Rabbi Ḥiyya bar Abba by saying that the ruling of the baraita is stated with regard to an animal removed from its mother’s womb after the mother was ritually slaughtered [ben pekua], which is permitted for consumption without slaughter, so that there is a possibility that the thief ate it without first slaughtering it. The Gemara responds that Rabbi Yoḥanan holds in accordance with the opinion of Rabbi Meir, who says that a ben pekua requires slaughter.

ולישני ליה כגון שעמד בדין, ואמרו לו: ״צא תן לו״! דהא אמר רבא: ״צא תן לו״, טבח ומכר – פטור. מאי טעמא? כיון דפסקיה למילתיה,

The Gemara further asks: And let Rabbi Yoḥanan answer Rabbi Ḥiyya bar Abba by saying that it is a case where the bailee stood in judgment in court, and the judges said to him: Go out and give him the stolen animal, and he did not do so, and subsequently slaughtered or sold it? In this case he would not pay the fourfold or fivefold payment, as doesn’t Rava say that if the judges instruct a thief: Go out and give him the stolen animal, and he instead slaughtered or sold it, he is exempt from paying the fourfold or fivefold payment. What is the reason for this? Once the court ruled on his matter, requiring him to give the animal to the owner, and he did not heed the court’s ruling but slaughtered or sold the animal, he is considered a robber, and not a thief; and a robber does not pay fourfold or fivefold payment.

וטבח ומכר – הוי גזלן, וגזלן לא משלם תשלומי ארבעה וחמשה.

״חייב אתה ליתן לו״, וטבח ומכר – חייב. מאי טעמא? כל כמה דלא פסיקא ליה מילתא, אכתי גנב הוא.

Rava continues: But if the judges say only: You are obligated to give the animal to him, and he did not heed the court’s statement but slaughtered or sold the animal, then he is obligated to pay the fourfold or fivefold payment. What is the reason for this? Since the court has not issued a definitive ruling in this matter, he is still considered a thief rather than a robber.

אמרי: וליטעמיך, לישני ליה בשותף שטבח שלא מדעת חבירו! אלא חדא מתרי ותלתא נקט.

The Sages say in response: And according to your reasoning, let Rabbi Yoḥanan answer Rabbi Ḥiyya bar Abba by saying that the ruling of the baraita is stated with regard to a partner who slaughtered an animal stolen by him and his partner without the other partner’s knowledge, as the halakha is that in such a case, the thief, i.e., the partner who slaughtered the animal, does not pay fourfold or fivefold payment. Rather, Rabbi Yoḥanan selected one of two or three possible answers but did not mean to say that it was the only possible answer.

ואמר רבי חייא בר אבא אמר רבי יוחנן: הטוען טענת גנב באבידה, משלם תשלומי כפל. מאי טעמא? דכתיב: ״על כל אבדה אשר יאמר״.

§ The Gemara cites a related ruling: And Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: With regard to one who falsely states the claim, with regard to a lost item, that a thief stole it, i.e., he found a lost item, and when the owner requested its return, he claimed that it had been stolen from him, and it became known that he lied and had taken the item himself, he pays double payment. What is the reason for this? As it is written in the verse concerning double payment for a thief: “For any matter of trespass, from an ox, for a donkey, for a sheep, for a garment, or for any lost item about which one shall say: This is it, the claims of both of them shall come before the judges; the one whom the judges convict shall pay double to his neighbor” (Exodus 22:8). It can be seen from here that double payment applies to a false claim of theft even with regard to a lost item.

איתיביה רבי אבא בר ממל לרבי חייא בר אבא: ״כי יתן איש״ – אין נתינת קטן כלום. ואין לי אלא שנתנו כשהוא קטן,

Rabbi Abba bar Memel raised an objection to Rabbi Ḥiyya bar Abba from a baraita: The verse states: “If a man gives his neighbor money or vessels to safeguard, and it was stolen from the house of the man, if the thief shall be found, he shall pay double” (Exodus 22:6). The use of the word “man” indicates that the giving of a deposit by a minor is nothing. And I have derived only a case where he gives the deposit when he is a minor and lodges the claim concerning it against the bailee when he is still a minor. From where is it derived that the halakha would be the same in a case where he gives the deposit when he is a minor and lodges the claim concerning it against the bailee when he is an adult? The verse states: “The claims of both of them shall come before the judges” (Exodus 22:8), i.e., the claim is valid only when the giving of the deposit and the claim are equal, both done when he is an adult.

ותבעו כשהוא קטן; נתנו כשהוא קטן ותבעו כשהוא גדול – מנין? תלמוד לומר: ״עד האלהים יבא דבר שניהם״ – עד שתהא נתינה ותביעה שוין כאחד.

ואם איתא, תיהוי נמי כאבידה! אמר ליה: הכא במאי עסקינן – כגון שאכלו כשהוא קטן.

Based on the ruling of this baraita, Rabbi Abba bar Memel raises his objection: And if it is so that even one who finds a lost item pays double payment for claiming falsely that it was stolen, indicating that the giving of the item as a deposit by the owner is not an essential condition to render the thief liable for double payment, then the claim of a minor should be like a lost item as well, and one who received a deposit from a minor should be liable for double payment. Rabbi Ḥiyya bar Abba said to him: With what are we dealing here? We are dealing with a case where the bailee consumed the deposit when the owner was still a minor, so that at the time it was consumed, the owner had no legal standing. Therefore, the bailee is not obligated to pay.

אבל כשהוא גדול מאי, הכי נמי דמשלם? אי הכי, אדתנא: עד שתהא נתינה ותביעה שוין כאחד, ליתני: עד שתהא אכילה ותביעה שוין כאחד! אמר ליה, תני:

Rabbi Abba bar Memel questions this answer: But had the bailee consumed it when the owner was already an adult, what is the halakha; indeed, would the halakha be that the bailee pays? If so, rather than teaching: The claim is valid only when the giving of the deposit and the claim are equal, let the baraita teach: The claim is valid only when the consumption of the deposit and the claim are equal, which would be a more precise ruling. Rabbi Ḥiyya bar Abba said to him: Emend the baraita and teach: The claim is valid only when the consumption of the deposit and the claim are equal.

עד שתהא אכילה ותביעה שוין כאחד.

רב אשי אמר: לא דמי; אבידה – קא אתיא מכח בן דעת, והא – לא אתיא מכח בן דעת.

Rav Ashi said a different answer to Rabbi Abba bar Memel’s objection: The two cases are not comparable, so an objection to Rabbi Ḥiyya bar Abba’s statement concerning a lost item cannot be derived from the case of a minor giving a deposit, because the lost item came into the possession of the finder by the power of one who is mentally competent, as the one who lost it is presumed to be an adult, though he did not personally give it to the finder; but this deposit given by a minor did not come into his possession by the power of one who is mentally competent, as from a halakhic perspective, a minor is not considered mentally competent. Therefore, he has no grounds for a claim.

ואמר רבי חייא בר אבא אמר רבי יוחנן: הטוען טענת גנב בפקדון, אינו חייב עד שיכפור במקצת ויודה במקצת. מאי טעמא? דאמר קרא: ״כי הוא זה״.

§ The Gemara quotes a related ruling: And Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: With regard to one who falsely states the claim, with regard to a deposit, that a thief stole it, he is not obligated to take an oath, nor to pay double payment, until he denies part of the claim and admits to part of the claim. What is the reason for this? As the verse states: “About which one shall say: This is it” (Exodus 22:8), indicating an admittance of only this part, but no more. The Gemara notes: And this disagrees with the ruling of Rabbi Ḥiyya bar Yosef, as Rabbi Ḥiyya bar Yosef says:

ופליגא דרבי חייא בר יוסף – דאמר רבי חייא בר יוסף: