Whether Misappropriation by a Bailee Requires Actual Loss

"If he has not laid his hand" (Exodus 22:7) — it was stated regarding misappropriation [a bailee taking the deposit for his own use]. Rav said: it requires a diminishment [of the object before liability attaches]. Levi said: it does not require a diminishment. What is the reasoning of Levi? Rabbi Yochanan said in the name of Rabbi Yose bar Nehorai: The misappropriation stated regarding a paid bailee differs from the misappropriation stated regarding an unpaid bailee — and I say it does not differ. What is the supposed difference? You might have argued: do not state misappropriation regarding a paid bailee at all, and derive it instead from the unpaid bailee. For if the unpaid bailee, who is exempt for theft and loss, is nonetheless liable when he misappropriates, then the paid bailee, who is liable for theft and loss, all the more so should be liable for misappropriation. For what law, then, did the Merciful One write it explicitly? To tell you that misappropriation does not require a diminishment. And I say it does not differ, in accordance with Rabbi Elazar who said "this and that are one and the same," because there is a refutation: what of the unpaid bailee, who pays the double payment when he falsely pleads that a thief took it? And the one who does not refute holds that principal without an oath is preferable to double payment with an oath. Rava said: do not state misappropriation regarding either the paid or the unpaid bailee, and derive it from a borrower — for if a borrower, who acts with the owner's knowledge, is liable when he misappropriates, then the unpaid and paid bailees all the more so. Why then was it stated? One instance to tell you that misappropriation does not require a diminishment, and the other so that you should not say "it is enough for the law derived by inference to be like its source" [meaning: just as a borrower is exempt when the owner is in his service, so too the bailees are exempt in that case]. And for the one who holds that misappropriation does require a diminishment, why are these two instances of misappropriation needed? One so that you should not say "it is enough," and the other for what was taught: "And the master of the house shall come near to the judges (the Elohim)" (Exodus 22:7) — for an oath. You say for an oath, or perhaps only for judgment? Misappropriation is stated below and misappropriation is stated above [a verbal analogy, gezeira shava]: just as there it is for an oath, so here it is for an oath. Rabbi Yishmael says: by thirteen principles the Torah is expounded — from a fortiori inference, and from verbal analogy. It is stated of a paid bailee "if he has not laid his hand," and it is stated of an unpaid bailee "if he has not laid his hand": just as the paid bailee of whom "if he has not laid his hand" is stated is exempt from a claim brought by the heirs, so too the unpaid bailee of whom "if he has not laid his hand" is stated is exempt from a claim brought by the heirs.