What’s the difference between stealing and misappropriation TB Baba Metzia 41

The Mishnah on daf TB Baba Metzia 40b presents a challenge to understand. The first clause of the Mishnah seems to be following Rabbi Yishmael understanding the underlying halakhic principle and the second clause of the Mishna seems to be following Rabbi Akiva’s understanding. Although the Gemara prefers a single unifying approach to both clauses of a Mishnah, Rabbi Yoḥanan sees no other solution but to treat the two clauses of the separately. “The Gemara asks: The result of that explanation is that the first clause of the mishna is in accordance with the opinion of Rabbi Yishmael and the latter clause is in accordance with the opinion of Rabbi Akiva. The Gemara answers: Indeed, it is as Rabbi Yoḥanan says: Anyone who explains to me both clauses of the mishna with regard to a barrel according to the opinion of one tanna I will honor, and carry his garments after him to the bathhouse, and treat him as a servant treats his master.” (Sefaria.org translation)

Challenged accepted.

“The Gemara relates that Rabbi Ya’akov bar Abba interpreted the mishna before Rav: The mishna is referring to a case where the bailee took the barrel in order to rob the owner of it, and that is the meaning of the term: For his purposes. Since he intended to rob the owner of the barrel, he must return it to its place. In the first clause of the mishna, where the owner of the barrel did not designate a place for it, anywhere that he places it constitutes a return to its place. In the latter clause of the mishna, where the owner designated a place for the barrel, since the bailee did not return the barrel to that place, it is not considered to have been returned.

“Rabbi Natan bar Abba interpreted the mishna before Rav: The mishna is referring to a case where the bailee took the barrel in order to misappropriate it, as one who misappropriates the property of another is responsible for any subsequent damage to it.” (Sefaria.org translation)

What’s the difference between theft (gezaylah- גְזֵלָה) and misappropriation (shelikhut yad- שְׁלִיחוּת יָד)? Many commentators like Ra-avad the hold that the person who misappropriates an object always has the intent to return the object to its appropriate place. A thief has the intent to keep the stolen object.  Ramban and Rebeinu Nissin hold that the guardian becomes obligated for all damages incurred even when he misappropriates only a part of the object. It is as if he has stolen all of it which is not the case of theft. According to the Rosh the law of misappropriation is based on an interpretation of the Torah and doesn’t require a loss. “Misappropriation that is stated with regard to a paid bailee is different from misappropriation that is stated with regard to an unpaid bailee? As one could claim: Let misappropriation not be stated with regard to a paid bailee, and derive it from misappropriation with regard to an unpaid bailee by means of an a fortiori inference: And if an unpaid bailee, who is exempt in cases where he claims theft and loss, misappropriated the deposit, he is liable to pay, then a paid bailee, who is liable in cases where he claims theft and loss, all the more so is it not clear that he is liable if he misappropriated the deposit? With regard to what halakha did the Merciful One write misappropriation in the case of a paid bailee? It is to say to you: Misappropriation does not require loss; intent to misappropriate is enough to render him liable to pay.” (Our daf, Sefaria.org translation)