Jerusalem Talmud Bava Metzia 3:1

משנה: הַמַּפְקִיד אֵצֶל חֲבֵירוֹ בְּהֵמָה אוֹ כֵלִים וְנִגְנְבוּ אוֹ שֶׁאָבְדוּ שִׁילֵּם וְלָא רָצָה לִישָּׁבַע שֶׁהֲרֵי אָמְרוּ שׁוֹמֵר חִנָּם נִשְׁבָּע וְיוֹצֵא. נִמְצָא הַגַּנָּב מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל טָבַח וּמָכַר מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה. לְמִי מְשַׁלֵּם לְמִי שֶׁהַפִּיקָּדוֹן אֶצְלוֹ. נִשְׁבָּע וְלָא רָצָה לְשַׁלֵּם נִמְצָא הַגַּנָּב מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל טָבַח וּמָכַר מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה. לְמִי מְשַׁלֵּם לְבַעַל הַפִּיקָּדוֹן. MISHNAH: If one deposited an animal or vessels with another¹Without paying for the service. The paid trustee has to pay except for an act of God or armed robbery. and they were stolen or lost: If the other paid and did not want to swear²Since he avoids all oaths because of religious scruples. although they said that the unpaid trustee swears and is absolved³Mishnah 7:8, based on Ex. 22:6–8. He has to swear (1) that the object deposited is not in his possession and (2) that he was not negligent., in case the thief was found, he pays double restitution⁴Ex. 22:6.; if he slaughtered or sold it, he pays quadruple or quintuple restitution⁵Ex. 21:37.. To whom does he pay? To the person with whom it was deposited⁶Who had acquired the right to the deposited object by paying for it..
If the other had sworn and did not pay, in case the thief was found, he pays double restitution; if he slaughtered or sold it, he pays quadruple or quintuple restitution. To whom does he pay? To the owner of the deposit.

הלכה: הַמַּפְקִיד אֵצֶל חֲבֵירוֹ כול׳. מֲנָן תֵּיתֵי לֵיהּ. אִם הִמָּצֵא תִמָּצֵא בְיָדוֹ הַגְּנֵיבָה. וְכִי אֵין אָנוּ יוֹדְעִין שֶׁאִם יִמָּצֵא הַגַּנָּב יְשַׁלֵּם שְׁנַיִם. וּמַה תַלְמוּד לוֹמַר שְׁנַיִם יְשַׁלֵּם. אִם אֵינוֹ עִנְיָין לוֹ תְּנֵיהוּ עִנְיָין לְשֶׁלְּפָנָיו. רִבִּי [ ] עָאַל לְפִירְקָא דְרִבִּי יוּדָן. אָמַר קוֹמֵיהּ הָדָא. אָמַר לֵיהּ. אֱמוֹר דְּבַתְרָהּ. נִשְׁבָּע וְלָא רָצָה לְשַׁלֵּם נִמְצָא הַגַּנָּב מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל. טָבַח וּמָכַר מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה. לְמִי מְשַׁלֵּם. לְבַעַל הַפִּיקָּדוֹן. וִישַׁלֵּם לְמִי שֶׁהַפִּקָּדוֹן אֶצְלוֹ. רִבִּי נָסָה בְשֵׁם רִבִּי יוֹנָה. חַיִּים שְׁנַיִם יְשַׁלֵּם. לְמָקוֹם שֶׁהַקֶּרֶן מְהַלֵּךְ שָׁם הַכֶּפֶל מְהַלֵּךְ. רִבִּי יוֹחָנָן וְרִבִּי לָעְזָר. רִבִּי נָסָה מוֹסִיף בְשֵׁם רִבִּי יוֹסֵי בֶּן חֲנִינָה. לֹא סוֹף דָּבָר שִׁילֵּם אֶלָּא מִכֵּיוָן שֶׁקִּיבֵּל עָלָיו לְשַׁלֵּם כְּמִי שֶׁשִּׁילֵּם. HALAKHAH: “If one deposited an animal or vessels with another,” etc. From where does he bring this⁷That the fine has to be paid to the trustee if the latter had refused to swear.? “If the stolen object be found in his hand⁸Ex. 22:3: “If the stolen object be found in his hand … double he shall pay.”.” Do we not know that if the thief is found that he has to pay double⁹Since this is explicit in Ex. 22:6 (for money or vessels), why does it have to be stated in v. 3 for livestock?? Why does the verse say, “double he shall pay”? If the verse is not needed for the case¹⁰If the objects were stolen from their owner; Ex. 21:37–22:3., use it for the following subject¹¹If they were stolen from the unpaid trustee, Ex. 22:6–8.. Rebbi [ ]¹²The name of an Amora is missing here. The discussion cannot be between Rebbi and the Tanna R. Jehudah (bar Ilai) since Rebbi was a student of R. Jehudah’s son and never used Aramaic in learned discussions. E reads “Rav Naḥman”. S. Lieberman suggests that he might be R. Naḥman from Jaffa [Gen. r. 53(4)], one of the rabbis of Caesarea. went to the “term”^12*The “term” is the twice-yearly period of public lectures. of Rebbi Yudan and asked this question before him. He answered, refer to what is stated afterwards: “If the other had sworn and did not pay, in case the thief was found, he pays double restitution; if he had slaughtered or sold it, he pays quadruple or quintuple restitution. To whom does he pay? To the owner of the deposit.” Should he not pay to the person with whom it was deposited¹³Since one has to assume that the thief has to pay to the person from whom he stole. Then the trustee would have to pay the restitution to the object’s owner but could retain the fine for himself.? Rebbi Nasa in the name of Rebbi Jonah: “Alive, double he shall pay¹⁴Ex. 22:3..” To the place where the capital goes, there the double fine goes¹⁵Since it says “double”, not “he has to pay the value of the theft and then a fine in an equal amount”, it follows that double restitution is one payment to one recipient.. Rebbi Joḥanan and Rebbi Eleazar; Rebbi Nasa adds in the name of Rebbi Yose ben Ḥanina: Not only when he paid, but even when he stated his willingness to pay it is as if he had paid¹⁶Babli 34a,37a. Since by necessity the transaction between owner and trustee happened before the thief was apprehended, when neither one of the two were in possession, the right to ownership is transferred by agreement, rather than by actual payment..

אָמַר. מְשַׁלֵּם אֲנִי. חוֹשְׁשִׁין שֶׁמָּא שָׁלַח בּוֹ יָד. אָמַר. נִשְׁבָּע אֲנִי. וְרָאָה אוֹתָן שֶׁמְגַלְגְּלִין עָלָיו שְׁבוּעוֹת אֲחֵרוֹת וְחָזַר וְאָמַר. מְשַׁלֵּם אֲנִי. חוֹשְׁשִׁין. אָמַר רִבִּי יוֹסֵי. לֹא חִיְיבָה אוֹתוֹ הַתּוֹרָה שְׁבוּעָה לְהַחֲמִיר עָלָיו אֶלָּא לְהָקֵל. שֶׁאִם רָצָה לְשַׁלֵּם יְשַׁלֵּם וְאִם רָצָה לִישָּׁבַע יִשְׁבָּע. הָיוּ לוֹ עֵדִים שֶׁנִּגְנְבָה בְאוֹנֶס הָדָא הִיא דָּמַר רִבִּי לָעְזָר. הַמּוֹכֵר קְנָסָיו לְאַחֵר לֹא עָשָׂה כְּלוּם. הָיוּ לוֹ עֵדִים שֶׁנִּגְנְבָה בִפְשִׁיעָה הֲרֵי הוּא בִכְלָל יְשַׁלֵּם. וְאַחַר כָּךְ נִמְצֵאת הַגְּנֵיבָה לְמִי מְשַׁלֵּם. לָרִאשׁוֹן אוֹ לַשֵּׁנִי אוֹ לִשְׁנֵיהֶן. If he said, I am paying, one may suspect that possibly he took it for himself¹⁷One forces him to swear a rabbinic oath that the article is not in his possession.. If he said, I am swearing, but then he saw that other oaths were added¹⁸Since once a person is required to swear by biblical standards, the opposing party can make him swear on any other claims even if those claims alone would not be sufficient to force an oath: Soṭah 2:6, Notes 166–169. and he said, I am paying, one is suspicious¹⁹The oath required from every non-payor. For rabbinic oaths one cannot force additions; cf. Rosh Šebuot7, end of Section 18 (Alfasi Šebuot 7, # 1186.). Rebbi Yose said, the Torah did not impose an oath on him to restrict him but to ease for him; for if he wants to pay, he shall pay, and if he wants to swear, he shall swear²⁰Ex. 22:7–8. R. Yose denies the possibility of the imposition of a rabbinic oath if there is no case for a biblical oath.. If he had witnesses that it was forcibly stolen²¹Then he does not pay without swearing an oath., to that case refers what Rebbi Eleazar said: If somebody sells his claims of fines to someone else, he did not do anything²²If the trustee pays even though he is not required to swear in order to be freed from payment, he did not acquire the right to claim double restitution from the thief. If the thief is caught, he has to pay double to the owner of the object who then will return to the trustee what the latter had paid and retain the amount of the fine for himself.. If he had witnesses that it was stolen because of negligence, he comes under the category of “he shall pay”²³Ex. 22:8 explicitly obligates the trustee for damages caused by his negligence. In this case, the Mishnah does not apply and there is no statement that the claims were transmitted to the trustee.. If afterwards the stolen object was found, to whom does [the thief] pay? To the first, or to the second, or to both of them?