Bava Metzia 41: Misappropriation and Loss

After beginning to discuss our last Mishna, the rabbis continue their conversation about a bailee who moves the barrel he is holding for the owner.  The rabbis question the motives of the bailee.  Was he truly moving the barrel for his own interest - perhaps to perform a mitzvah - or was moving the barrel a form of robbery?

What was agreed upon by the owner of the barrel and the bailee?  The Gemara considers the rights of the owner in such an arrangement.  Was the barrel to be sitting in one agreed-upon spot?  If the bailee takes an oath regarding his intentions, is that enough to prove that he should be exempt from any punishment if the barrel was broken in some way after being moved while in his care?  

The rabbis argue about whether liability requires a depreciation in the value of an item when that item has been misappropriated.  What if the bailee intended to misappropriate the item in his care, but the item did not lose any value?  Is he still liable for the fact that he broke his contract - or is that even a breach of contract?  

To help us clarify this question, the rabbis offer the example taken from a different baraita of a shepherd whose sheep is killed by a lion. As that is out of his control, he is exempt.  But what if he placed his staff and satchel on the animal and it was later attacked?  He misappropriated the animal and that action may have resulted in the animal's death.  In this case, using the animal at all is a misappropriation, and he is found liable.

The Gemara notes that if such a bailee is found to have taken a false oath as witnesses attest to his true actions, he is liable to pay double the cost of the principle.  If what he misappropriated was a certain type of animal, then he is liable to pay the four or five-fold penalty.  However, the rabbis also question whether or not there is a difference in liability if the bailee is paid or unpaid. 

Interestingly the rabbis note that in cases where the paid or unpaid bailee and/or borrower are in a partnership with the owner, there is no liability.  This is an important point when we consider the cases that might have been brought to the court.  The rabbis did not want to spend their time adjudicating cases where a previous arrangement allowed for discretion.  In a partnership, each party would easily argue that agreements were understood regarding touching an item in the care of his partner.  The rabbis were looking to help with cases that were less straightforward.