As anyone invested in the stock market in 1929 could have told you, the monetary value of an item can plummet overnight. And it works the other way too. Those who bought Apple stock in 1980 can attest that monetary value can skyrocket over time. While these two examples are extremes, there are small-scale fluctuations in the value of animals, objects and gold all the time — with important implications for the question of returning misappropriated funds.
Let’s say someone had agreed to guard another person’s money and instead invested the money in their own business. The value of that money changes over time. But if the court discovers the misappropriation and forces the custodian to repay, how much exactly is he obligated to repay?
Beit Shammai say: He is penalized for its decrease and its increase.
If the value of the money has decreased, he has to pay the larger original amount. If it increased, he is obligated to pay the new larger amount. Regardless of whether the new price is higher or lower, Beit Shammai punishes the thief for the act of misappropriation by always insisting on the larger amount. But where Beit Shammai offers an opinion, Beit Hillel is not far behind.
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And Beit Hillel say: in accordance with the time of removal.
According to Beit Hillel, the guardian owes the value of what he took when he took it. But now the mishnah adds a third opinion to the debate:
Rabbi Akiva says: in accordance with the time of the claim.
According to Rabbi Akiva, the misappropriating guardian owes the value of what he took at the moment when the original owner first takes him to court for misappropriation.
At this point in our journey through Daf Yomi, we have learned many times that when Beit Hillel and Beit Shammai disagree, Beit Hillel (almost always) wins. But who wins when we add a third voice to the chorus?
After an extended discussion of the rationales of Beit Shammai and Beit Hillel, the Gemara turns to this very question:
Rav Yehuda says that Shmuel says: The halakha is in accordance with Rabbi Akiva. And Rabbi Akiva concedes where there are witnesses. Why? It is as the verse states, “To whom it appertains shall he give it on the day of his being guilty” (Leviticus 5:24). And since there are witnesses, from that moment he is liable to him for his guilt.
The Gemara reads the verse in Leviticus as stating that one becomes liable to pay “on the day” that they become guilty. According to this reading then, Rabbi Akiva holds that the guardian is liable for what the item is worth on the day the claim is made unless there are reliable witnesses, in which case the guardian is liable for the value of the money at the time it was misappropriated.
But wait. There’s yet another way to read Leviticus 5:24:
Rav Oshaya said to Rav Yehuda: My teacher, is that what you say? This is what Rabbi Asi says that Rabbi Yohanan says: Rabbi Akiva was in disagreement even where there are witnesses. Why? As the verse states: “To whom it appertains shall he give it on the day of his being guilty,” and it is the court that renders him liable to him for his guilt.
It’s not the witnesses, but the actual judgment that determines someone is guilty, so Rabbi Akiva was right the first time, without any need for a caveat. And indeed, the discussion continues with an attempt at a new blanket rule:
This is what Rabbi Yohanan says: The halakhah is always in accordance with Rabbi Akiva.
Lest we think the conversation goes too smoothly, we get one final comment on today’s discussion:
And Rava says: The halakhah is in accordance with Beit Hillel.
While the debate over how much one who misappropriates a deposit needs to repay is interesting on its own terms, today’s daf also models the tension between fixed rules of interpretation and new information. We’ve learned many times that, just like rock beats scissors, Beit Hillel beats Beit Shammai. But today’s daf asks how we rule when we get a third opinion from a respected rabbi who lived almost a century after. Do we explore the third opinion at all? Do we revert to the hard and fast rules? Today’s daf offers one approach, but the discussion continues.
Read all of Bava Metzia 43 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on April 11th, 2024. If you are interested in receiving the newsletter, sign up here.
