The mishnah on 40b considers cases in which a person charged with caring for another person’s barrel moves the barrel and it breaks. Is the caretaker liable? According to the mishnah, that depends on whether the owner had designated a place for the barrel to be stored, whether the person moved it for their own benefit (perhaps to reclaim space) or for the barrel’s benefit (perhaps to protect it), and whether or not the barrel broke in the course of being moved or much later.
The suggestion that a person might move another person’s barrel for their own benefit inspires the Gemara to segue into a more in-depth discussion about the rules of shlichut yad, literally “laying of the hand,” by which the rabbis mean misappropriation. The term is derived from Exodus 22:7 which states that if a deposit is stolen and the thief isn’t found, the caretaker takes an oath that they did not “lay a hand” (shalach yado) on the item.
If by inappropriately using an item or animal the caretaker harms or destroys it, it’s obvious the caretaker is liable. But what if no harm is done by the misappropriation? The Gemara introduces a dispute on this subject:
It was stated that there is a dispute between Rav and Levi. One says: Misappropriation requires loss. And one says: Misappropriation does not require loss.
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In the case of the one who says liability for misappropriation does not require loss, they are not referring to a case where no harm is done at all. Rather, they’re talking about a case in which the caretaker uses the item and causes no recognizable loss through that use, but then something else happens to the item (even something that would have been unavoidable without the misappropriation). Here’s an example the Gemara brings from a beraita:
In the case of a shepherd who was herding his flock, which included the animals of others, and he abandoned his flock and went to the city, and a wolf came and devoured an animal, and a lion came and clawed an animal, the shepherd is exempt, as the attacks occurred through circumstances beyond his control. But if he placed his staff and his satchel on the animal that was later attacked, he is liable to pay for the animal.
The working assumption is that placing a staff and satchel on someone else’s animal wouldn’t cause the animal any recognizable damage. Nonetheless, because the shepherd has benefited from the use of this other person’s animal when they weren’t permitted to do so, they’re now liable for any harm that comes to it when it is attacked by a wild animal – a higher level of responsibility than they previously held.
Through the course of discussion, the Gemara determines that Rav holds that responsibility is incurred only with loss caused directly by the caretaker’s misappropriation and Levi holds that responsibility is incurred even without loss. From here, the Gemara seeks to anchor that position in the Torah.
Ultimately, both Maimonides and the Shulchan Aruch rule like Levi, that one assumes full responsibility for damage even when their misappropriation caused no discernible loss. While the Gemara on today’s daf provides a formal derivation for this rule, there’s also an intuitive logic. If something is entrusted to our care, we’re only given the full benefit of the doubt and thorough exemption when it can be assumed that we looked after it as promised; once somebody has broken the trust of the original owner and transgressed their agreement, even if no loss is incurred at that moment, we’re no longer willing to give them the benefit of the doubt.
Read all of Bava Metzia 41 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on April 9th, 2024. If you are interested in receiving the newsletter, sign up here.
