Talmud - Bava Kamma 118a בבא קמא קי״ח א׳

a prone cow in it, and a river washed it away. Rabbi Elazar conforms to his standard line of reasoning, as he maintains that land is included in the category of items that are not subject to the halakhot of robbery. Consequently, the robber acquires the land and simultaneously becomes liable to return it. Since he acquires the land, he acquires the cow that is on the land as well, and is liable to compensate its owner when it gets washed away by the river. And the Rabbis conform to their standard line of reasoning, as they hold that land was excluded by the verse. Therefore, the robber does not acquire the land and also does not acquire the cow.

MISHNA: With regard to one who robs another or who borrowed money from him, or one with whom another had deposited an item, if any of these interactions took place in a settled area, he may not return the item to him in an unsettled area, where it is of little benefit to the owner and he cannot safeguard it. If the loan or deposit was given on the condition that the recipient may go out and return it to the owner in an unsettled area, he may return it to him in an unsettled area.

GEMARA: The Gemara raises a contradiction to the mishna from a baraita: A loan may be repaid in any location, while a lost item and a deposit are returned only in their location, i.e., the same type of place, settled or unsettled, where they were found or received. Abaye said: This is what the baraita is saying: A loan may be claimed by the creditor in any location. Yet, if the borrower initiates the process of repaying the loan in an unsettled area, the creditor may refuse to accept the repayment until they reach a settled area. Conversely, a lost item and a deposit may be claimed only in their location.

The mishna teaches that if the loan or deposit was given on the condition that the recipient may go out and return it to the owner in an unsettled area, he may do so. The Gemara asks: Isn’t it obvious that an explicit stipulation to this effect is binding? The Gemara answers: No, it is necessary, as the mishna is discussing a case where the depositor said to the bailee: Let this deposit be with you, as I am going out to an unsettled area, and the bailee said to him: I also need to go out to an unsettled area, so if I need to return the deposit to you there, I will return it to you there.

MISHNA: In the case of one who says to another: I robbed you, or: You lent me money, or: You deposited an item with me, and I do not know if I returned your property to you or if I did not return it to you, he is liable to pay the sum or item in question. But if he said to him: I do not know if I robbed you, or: I do not know if you lent me money, or: I do not know if you deposited an item with me, he is exempt from paying the sum or item in question.

GEMARA: The Gemara cites a related dispute: It was stated that if one individual says to another: I have one hundred dinars in your possession, and the other says: I do not know whether or not this is true, Rav Huna and Rav Yehuda say that he is liable to pay the plaintiff, and Rav Naḥman and Rabbi Yoḥanan say that he is exempt from paying.

The Gemara explains the reason for each opinion: Rav Huna and Rav Yehuda say that he is liable to pay, because when there is a certain claim and an uncertain claim, the certain claim is superior. Rav Naḥman and Rabbi Yoḥanan say that he is exempt from paying because of the principle: Establish the money in the possession of its owner, i.e., money is not taken from one’s possession without clear proof that he is liable to pay it.

The Gemara attempts to derive a proof: We learned in the mishna: But if he said to him: I do not know if you lent me money, he is exempt from paying. What are the circumstances? If we say that the mishna is discussing a case where the lender did not claim the money from him, the first clause must also discuss a situation where the lender did not claim the money from him. If so, why is the borrower liable to pay in the case discussed in the first clause? Rather, the mishna must be discussing a case where the lender did claim the money from him, and the latter clause nevertheless teaches that the borrower is exempt from paying, even though his claim is uncertain and that of the lender is certain. This supports the opinion of Rav Naḥman and Rabbi Yoḥanan.

The Gemara answers: No, actually the mishna is referring to a case where the lender did not claim the money from him, and the first clause is discussing a case where the borrower comes to fulfill his obligation to Heaven.

The Gemara adds that it was also stated: Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: In the case of one who says to another: I have one hundred dinars in your possession, and the other individual says: I do not know whether or not this is true, the latter is liable to pay. This applies where he comes to fulfill his obligation to Heaven even though he cannot be forced to pay. This statement is in accordance with the opinion of Rav Huna and Rav Yehuda.

MISHNA: In the case of one who stole a lamb from a flock and returned it without informing the owner that he had done so, and then it died or was stolen, the thief is liable to pay restitution for it. If the lamb’s owners did not know about the entire incident, i.e., they did not know that it was stolen and they did not know that it was returned, and they counted the flock of sheep and found it whole, the thief is exempt from paying.

GEMARA: The Gemara presents several ways to understand the mishna: Rav says: In a case where the owners had knowledge of the fact that their lamb was stolen, the thief is required to return it with the knowledge of the owners in order to be exempt from liability if the lamb is subsequently harmed. In a case where the owners had no knowledge that the lamb was taken, their count of the flock after the thief returned it exempts the thief from further liability. And when the mishna teaches: And they counted the flock of sheep and found it whole, it is referring specifically to the latter clause, i.e., the case where the owners were unaware that the lamb was stolen, as it is specifically in that case that the count exempts the thief from liability.

And Shmuel says: Whether the owners had knowledge of the theft or whether they did not have knowledge of it, their count of the flock exempts the thief from payment. And when the mishna teaches: And they counted the flock of sheep and found it whole, the thief is exempt, it is referring to the entire mishna, as this exempts the thief from liability in both cases mentioned in the mishna.

And Rabbi Yoḥanan says: In a case where the owners had knowledge of the theft, their count of the flock exempts the thief, and in a case where the owners had no knowledge of the theft, even counting is not required for the thief to be exempt. And when the mishna teaches: And they counted the flock of sheep and found it whole, it is referring specifically to the first clause of the mishna, as it is particularly in that case that the count is relevant.

Rav Ḥisda says: In a case where the owners had knowledge of the theft, their count of the flock exempts the thief. In a case where the owners had no knowledge of the theft, the thief is required to return the lamb with their knowledge in order to become exempt from liability for future damage. And when the mishna teaches: And they counted the flock of sheep and found it whole, it is referring specifically to the first clause of the mishna, where the owners were aware of the theft, as it is only in that case that counting the flock is sufficient to exempt the thief from further liability.

Rava says:

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaKamma 118a explores stolen land and animals swept away by rivers, then examines rules for returning loans and deposits in settled versus unsettled areas.