Dear Rav Kornfeld and Rav Weiner and all:

{By the way my chavrusa and I have been using the Artscroll edition which stops at this point in our volume, which we started at Eilu Metzios, we have no move to the beginning for daf 2. We are each so appreciative of all of your help in getting through these 2 chapters.}

The Mishnah on 43b in its second half discusses a custodian who tilted a keg and misappropriated a small amount, and then the entire keg was lost to an unavoidable accident.

I wish to describe a somewhat analagous situation and ask what is the responsibility of the custodian who forgot to mention the initial loss, as well as different ordering of the events that would seem to likely give a different result.

Suppose there is a custodian who is watching 3 kegs of wine in his store front. And suppose he accidentally even misappropriated one of the kegs by sitting on it, with no loss. And further suppose that he is an extremely honest custodian that knows he needs to inform the owner of this misappropriation, but after the following forgot to do so.

Some time later a car drove through the store front and destroyed the 3 kegs and other items.

Somehow it turns out that the car owner wishes to take full responsibility and wishes to pay the keg owner for the full value of the 3 kegs of wine, and wishes to pay the custodian for the repair cost of the store front.

After the car owner pays both bills and the store is rebuilt the custodian remembers that actually he might have needed to pay the keg owner for the one keg, but in return owned the keg, and had the right to collect from the car owner for his 1 keg.

Must the custodian come forward when he remembers?

Or do we say that the keg owner was made whole anyway, and the matter is no longer relevant?

That's the first question, and assuming that there is a basis to say that since it makes no difference in the payout it doesn't matter and need not be brought up....

Does anyone say that if the custodian who "borrowed" the reviis sample of the wine really knows with certainty that the keg was a total loss to the keg owner over which he is not responsible, that he need not bring up the matter of the reviis? Particularly if it was a payout from the car owner? And perhaps if the pay out for a full keg less 1 reviis is the same as the pay out of a full keg?

And finally with a different order of events, once the unavoidable accident destroyed the full keg, and it has no value to the keg owner, but before the owner knows or otherwise despairs of the loss, if the custodian samples a reviis of wine from the floor, before it seeps into the ground or the wood, or perhaps using his hankercheif to sop it up and squeeze it out into a glass, and the keg owner would surely not want such residue...

Do we permit the custodian to take advantage of the total loss to the keg owner in this fashion (ignoring the antifreeze and broken glass shards risk, and the mitzvah of giving first aid to the car driver) that the wine residue from the wasted keg is ownerless and the fleeting opportunity to taste it is before him?

Or do we say that if he were to try to tell anyone that he tasted it only after it was a total loss he would not be believed, and it would raise suspicion that really he had tilted the keg like in the mishna beforehand, that we don't even want to consider this result?

--Robert

I'll rephrase the second question in light of your first answer...

By the view that it is more borrowing than stealing, although he retains some responsibility for the improper borrowing, he need not come forward, perhaps we might say that total loss payout made the keg owner whole and it made no difference whether the borrowed reviis was subtracted or not by the one paying... after the fact since the loss was covered, has his responsibility to pay back the reviis been fully met?

Perhaps civilly his debt to the keg owner is cleared, and the car owner or insurance company recognizes that in order to give the keg owner a reviis less than a full keg would be more cost and risk (due to having to open the sealed keg to remove a reviis) and based on this he need not come forward? However he still has a guilty conscience or similarly Shamayim holds the matter against him still?

Or perhaps we say that since he coming forward would muddy things and cause pain, and no money need change hands, that his record is cleared?

Robert