We now arrive at Mishnah 12, the final mishnah in the third chapter of Tractate Bava Metzia. Before we discuss it, we must introduce two preliminary concepts.
First introduction - What is 'shelichus yad':
The source of this phrase is in the Torah section regarding watchmen, where it states: "If he has not laid his hand upon his neighbor's property" - provided he did not lay his hand upon his friend's belongings. Shelichus yad is the unauthorized use of someone else's object: a depositor gives a watchman a cookie jar to guard, and the watchman takes cookies from it for himself. Through this misappropriation of the deposit, the watchman ceases to be a watchman and becomes a robber, who is from then on liable even for unavoidable accidents.
We must distinguish between this law and that of a 'borrower without permission', which we dealt with in the previous mishnayos: A person who borrows without permission is treated as a robber, but he has the power to return the object and cease being a robber (and in certain cases, such as a car, he can only return it by notifying the owner, and this is the halachah). Furthermore: One who takes a single chair from a complete dining room set becomes a robber regarding that chair alone, since he did not intend to acquire the rest of the set or use it unlawfully.
Shelichus yad, by contrast, means taking from the deposit itself - consuming part of it or using it in a way that reduces its value and causes a loss to the owner. The law is that one who commits shelichus yad with a deposit becomes a robber for the entire deposit, and not just for the portion he took that is no longer there.
Second introduction - Two ways a deposit's value can change:
The mishnah seeks to clarify: If something happened to the deposit and its value changed over time, according to which time do we calculate the compensation the watchman must pay? A deposit's value can rise or fall in two different ways:
A change in the object itself: Even though market prices have not changed, the object improved or depreciated. A pregnant cow that was deposited at a value of two hundred and miscarried during the guarding period - is now worth one hundred and fifty. And conversely: a sheep that was deposited after shearing at a value of one hundred, and after a few months its wool grew back and it is again ready for shearing - is now worth one hundred and fifty.
A change in market prices: The exact same object, whether inanimate or an animal, except that the market price of cows or wine went up or down.
Therefore, the question is: I deposited a cow with you worth one hundred, and you committed shelichus yad - you took it to plow your fields, or you sheared the sheep's wool. Afterward an unavoidable accident occurred, and lightning struck the animal. Do you pay me according to its value at the time of the deposit, or according to its value at the time you used it unlawfully and committed shelichus yad, since at that time its value may have been different? The Tannaic sages disagree on this.
The dispute between Beis Shammai and Beis Hillel:
The mishnah begins: "Hasholei'ach yad befikadon" - A watchman who derives benefit from a deposit and uses it unlawfully. "Beis Shammai omrim: Yilkeh bachaser uveyeseir" - The watchman is always at a disadvantage, and the law operates in favor of the depositor: if the price dropped after the deposit, he pays the original value; and if the price rose, he pays its value at the time of the misappropriation.
"Uveis Hillel omrim: Kesha'as hotza'ah" - According to Beis Hillel, a stolen item is always evaluated according to the time of the robbery. "The time of removal" is the moment the object was removed from its status as a deposit and entered the domain of the watchman who committed shelichus yad. At the time he committed his transgression, he must pay according to that value. The halachah follows Beis Hillel, and this aligns consistently with the entire Torah: a thief becomes liable for the value the object had at the time he stole it.
The Opinion of Rabbi Akiva:
Rabbi Akiva addresses the second type of change in value. He too agrees with Beis Hillel that when the object itself appreciated or depreciated - for example, wool grew on it - the payment is determined according to the time the watchman misappropriated it. His question is: What is the law when at the time of the misappropriation its value was one hundred, whereas at the time he became liable in the court the price of a replacement cow stands at two hundred, or it went down to fifty? Does he pay according to the market price at the time of the misappropriation, or according to the current market price?
To this Rabbi Akiva says: "Kesha'as hateviah" - according to the time he becomes liable in a Torah court and must pay. Rabbi Akiva derives this from the verse "on the day of his guilt", the day he becomes liable for his guilt, and therefore the payment is determined according to the value of the cows at the time he became liable in court or the time the witnesses testified against him. However, the halachah follows Beis Hillel in both cases: the matter is always determined according to the value of the object at the time that thief misappropriated the deposit entrusted to him. This concludes the first part of the Mishnah.
"Hachoshev lishlo'ach yad b'fikadon" - One who plans to misappropriate a deposit:
The second part of the Mishnah is like a new Mishnah in its own right, and contains a new point: What is the law regarding a watchman who intends to misappropriate and expresses this verbally - according to Rashi, in front of witnesses - and says: "I intend to take cookies from the jar", but has not yet done an action. Has he already at that stage lost his status as a trusted watchman and become one who misappropriates who is liable for accidents?
"Beis Shammai omerim: chayav" - already at that moment he becomes liable for accidents. The term "hachoshev" which the Mishnah uses, which literally means a thought in the heart, means that he expressed the words with his mouth aloud and in front of witnesses: "I am taking this object". This law is derived from the verse "for every matter of trespass", since this expression is superfluous in its context, and Beis Shammai expound that "dvar pesha" comes to include even speech - a statement and declaration about the transgression of using the deposit. From the moment he said this aloud and two witnesses heard, he becomes liable for accidents even before he actually took or used it.
"U'Veis Hillel omerim: eino chayav ad sheyishlach bo yad" - the speech makes no difference, and as long as he did not actually take it, he is not liable. Beis Hillel do not derive this exposition, and according to their view the superfluous wording "dvar pesha" comes to teach a different matter: a watchman who instructed his agent or his slave to misappropriate a deposit and take from it - the watchman himself is liable.
This is seemingly astounding: The rule is that there is no agent for a transgression - if I commanded you to hit your friend and you hit him, you are the one doing evil and not me, as you should have listened to the voice of Hashem and not to my voice. Rather, a special law is stated regarding a watchman: his status as a guardian obligates him to a higher standard, and this is by virtue of the exposition "for every matter of trespass" - those forbidden spoken statements of instructing an agent or a slave to misappropriate and do an unlawful act. The Acharonim debate whether the agent is also liable in addition.
"Keitzad" - What is the act of misappropriation:
The Mishnah illustrates how the watchman carries out a misappropriation: "Hitah es hechavis venatal heimenah revi'is" - a barrel of wine is deposited in his hands, and the watchman tilted it in order to reach the wine and took a revi'is from it, a full cup, for his own need and to drink. "Venishberah" - afterwards an accident occurred that was out of his control, lightning or an earthquake, the barrel broke and all the wine was lost. "Eino meshalem ela revi'is" - he is only liable for that revi'is which he misappropriated.
The reason: Although one who misappropriates becomes liable for the entire deposit and not just for what he took, for this to happen he must perform an action that serves as an act of acquisition, through which he brings the object into his possession. Tilting a barrel in order to reach inside it is not an act of acquisition - one who tilts a barrel of wine that is sold to him does not acquire it thereby - and therefore he has not yet done an act that makes him liable for the entire barrel.
In contrast: "Im higbiah venatal heimenah revi'is venishberah - meshalem demei kulah" - if he lifted it and took a revi'is from it and it broke, he pays the value of all of it. Once he lifted the barrel, even though he intended to take only one cup from it, he performed an act of acquisition by lifting it and assumed responsibility for the entire barrel. Because of this, he ceased to be a watchman and became one who misappropriates, and is liable for accidents on the entire vessel.
A final point: Regarding a watchman who tilted the barrel but did not lift it, who is liable only for the quarter-log he took - if by merely opening the barrel he let air inside and caused the wine to spoil, he is liable for the entire barrel. This seems surprising at first glance, since he did not damage the wine directly; rather, the air that entered did. This is merely grama - indirect damage, for which one is generally exempt in monetary law. However, a watchman has a responsibility to guard the item deposited with him, and opening a barrel that is supposed to remain closed constitutes negligence in his very obligation to guard it. Because of this, he ceases to be an unpaid watchman and becomes liable even for the indirect damages caused by his negligent act, and he must pay for the entire barrel of spoiled wine.
In summary: In this Mishnah, we learned the law of one who misappropriates a deposit, thereby ceasing to be a watchman and becoming a robber liable for unavoidable accidents regarding the entire deposit. Regarding the assessment of payment, they disagree: Beis Shammai - "Yilkeh bechaser uveyeser" - he suffers the loss or the gain; Beis Hillel - "Kesha'as hotza'ah" - according to the time of removal; and Rabbi Akiva - "Kesha'as hatevi'ah" - according to the time of the claim, and the halachah follows Beis Hillel. We also learned about the dispute regarding one who plans to misappropriate, where Beis Hillel hold there is no liability until he performs an actual deed, and that the extra words "for every matter of trespass" teach, according to their view, the liability of a watchman who instructs his agent. Finally, we discussed the distinction between tilting and lifting, which is rooted in an act of acquisition, and how opening a barrel is an act of negligence that creates liability even for indirect damage.
With this, baruch Hashem, we have concluded the third chapter of Tractate Bava Metzia, and from here we will move on to the fourth chapter - the chapter of 'Hazahav'.