- Using a פקדון of money, and if the שומר is responsible for אונסין
The next Mishnah states that if one leaves money as a פקדון with a moneychanger, if it is bundled, he may not use it, as the Gemara explains, and is therefore not responsible for their loss. If it is loose, he may use it, and is therefore liable for its loss (even if he never uses it). A private homeowner may not use a פקדון of money regardless of its packaging and is therefore not responsible for it. Tannaim argue if a storekeeper is like a moneychanger or homeowner. Rav Huna says: ואפילו נאנסו – he is liable even if they were lost through an unavoidable mishap, because he is like a שואל – borrower, who has full benefit of the פקדון. Rav Nachman says he is not liable for אונסין. Rava asked him, if he is not a שואל (because his ability to use the money is only potential), he should not be a שומר שכר either (since he is not paid to guard the money) and should be exempt from any normal loss!? Rav Nachman responded that he is partially liable, דהואיל ונהנה מהנה – since he receives some benefit, he provides some benefit to the owner. The potential right to use the money for an opportunity is like payment for his watching.
- If שליחות יד is liable בחסר וביתר, or כשעת הוצאה
The next Mishnah states: השולח יד בפקדון – Regarding one who misappropriates a deposit, Beis Shammai says: ילקה בחסר וביתר – he is stricken both with its decrease and increase in value. Beis Hillel says: כשעת הוצאה – he pays like its value at the time of its removal. Rabbah explains that they argue about a פקדון which decreased in value after שליחות יד of the שומר and argue if שליחות יד requires a חסרון. Beis Shammai holds it does not, and so it enters the שומר’s possession immediately, and he must pay for its initial (higher) value. Beis Hillel says שליחות יד requires a חסרון, and it did not enter the שומר’s possession until its decrease, so he pays its lower value. Rava holds שליחוד יד does not require a חסרון, so he ultimately explains the machlokes differently: בשבח של גזילה קמיפלגי – they argue about improvements in stolen goods. Beis Shammai holds they belong to the owner (“decrease” referring to a sheep with wool which was shorn, and “increase” referring to an animal conceiving), and Beis Hillel holds they belong to the thief (who acquires them with שינוי – physical change). This reading is supported by the Mishnah’s language.
- Rebbe Akiva: כשעת התביעה
In the Mishnah, Rebbe Akiva gave a third opinion regarding the liability of a שולח יד: כשעת התביעה – he pays according to the פקדון’s value at the time of the claim in Beis Din. Rav Yehudah quoted Shmuel saying the halachah follows Rebbe Akiva, and that Rebbe Akiva agrees במקום שיש עדים – in a case where there are witnesses who saw the שליחות יד, and know the item’s value at that time, that he pays according to that earlier value. He explains that Rebbe Akiva’s position is based on the passuk: לאשר הוא לו יתננו ביום אשמתו – he shall give it to whom it belongs on the day of his guilt, teaching that the payment is determined by its value at the time he is found guilty. When witnesses are available, he is already considered guilty then. Rebbe Assi quoted Rebbe Yochanan saying that Rebbe Akiva argued even where there are witnesses, and says he always pays based on its value when he is found guilty in Beis Din. Rava says the halachah follows Beis Hillel.