Bava Metzia 35b (לה:) — the Talmud in English

The Gemara further explains: All this that we have said—that an appraisal is returned—applies when the court collected the borrower’s property for the lender. But:

if

he collected it for his debt

that is, the borrower voluntarily transferred his property to his lender,

Rav Aḥa and Ravina

disagree

about it

whether he may ask to return the property and pay money in its place:

One

of them

said:

Even so,

it is returned;

the lender must return it to the borrower if the borrower asks to give him money.

And one

of them

said:

If he transferred it knowingly,

it is not returned.

The Gemara explains the reasoning of each:

The one who says: It is not returned

says this because

he holds: This is a proper sale

the transfer of these properties as payment is equivalent to a sale,

for he collected it of his own accord

since he gave it to him willingly; and just as one does not retract a sale, so too he cannot retract this transfer.

And the one who says: It is returned

says this because

he holds: It is not a proper sale

it is not a complete sale,

and the reason he collected it willingly and did not come to litigation was embarrassment

for he transferred it to him willingly and did not trouble him to come with him to court because he did so out of shame.

The Gemara continues to discuss the law governing the borrower’s property that the court collects for the lender:

And from when does he eat

the lender

the produce

of the land that the court ultimately gave him—that is, after the court gave him the land, from what point may he retroactively claim the produce of the land?

Rabba said: From when the authorization document reaches his hand

when a document from the court authorizing the lender to search for land suitable for his debt so that he may collect it reaches his hand.

Abaye said: Its witnesses acquire it for him through their signatures

That is, he eats the produce from the time the court signed the document, even before the document reached his hand.

But

Rava said:

Even after this document reaches his hand, he does not eat the produce; rather,

from when the days of the proclamation are completed

the days during which the property is announced for sale. This is the procedure for collection: after land is found, it is announced for a specified period, so that anyone who wishes to purchase it may come and purchase it with money to pay the debt. If the lender accepts the land for more than the amount at which others appraised it, it is delivered to him; but until the days of the proclamation have ended, the lender does not eat the produce.

Mishna:

If one rents a cow from another and lends it to someone else, and it dies a natural death

the borrower is liable for its payment, while the renter is exempt, since he is exempt from accidents:

The renter shall swear

to the owner

that it died a natural death

and he is exempt, like all other bailees who swear and are thereby exempt;

and the borrower

who borrowed it from the renter—

shall pay the renter

the full value of a cow.

Rabbi Yosei said:

How can the other

the renter

make a business transaction with his fellow’s cow

the owner’s,

rather, the cow should return

that which the borrower pays

to the owners

that is, to the renter; the explanation of their rationales will be presented in the Gemara.

Gemara:

We learned in the Mishna: If one rents a cow from another and lends it to someone else, and it dies a natural death, the renter shall swear that it died a natural death, and the borrower shall pay the renter:

The give-and-take in the Gemara is explained according to the Kehillot Yaakov’s approach to the Tosafot.

He said

to him in astonishment,

Rav Idi bar Avin to Abaye:

Is it not obvious that with regard to everything for which the renter became liable to the owner—for example, negligence, or theft and loss, according to the one who holds that a renter has the status of a paid bailee—the borrower likewise became liable to the owner? For the renter transfers to the borrower the guarding obligations incumbent upon him toward the owner, and with regard to this the borrower is considered the owner’s bailee. The rationale of the Sages—that the borrower pays the renter and not the owner—is only because the renter is exempt when the animal dies a natural death, whereas the borrower is liable; with regard to this liability, the borrower is not the owner’s bailee, but only the renter’s.

If so, this is difficult:

Since

the renter

acquires this cow through what

after all,

through an oath

he acquires it when he swears!?

That is: Even the renter himself is liable if it dies a natural death, unless he swears that it died a natural death, even if it is known to Heaven that it died accidentally. It follows that if the renter did not swear, the borrower would, by law, have to pay the owner for the animal’s natural death, since before the renter swore he was liable for a natural death just as he was liable for negligence. Through the oath, however, he becomes exempt from the owner, and consequently “acquires” the borrower’s liability, so that the borrower pays him and not the owner—

If so, this is difficult:

And let the owner say to the renter: “

Remove yourself and remove your oath, and I will litigate directly with the borrower”

The owner should say to the renter: I waive your oath, and I will bring the borrower to court to pay me!?

That is: Why should the owner make the renter swear, thereby exempting the renter from liability to him and consequently entitling himself to claim payment from the borrower? Let him say to him: I do not make you swear; you remain liable for the animal’s death, and consequently the borrower will be considered my bailee with regard to the death and will pay me.

Rabbi Yosei indeed intended this rationale, but what is the rationale of the Sages who disagree with him!?

He said to him

Abaye said to Rav Idi bar Avin: The rationale of the Sages who disagree with Rabbi Yosei is as follows:

Do you think that the renter acquires it through the oath

Do you think that it is through the oath that the renter acquired the cow!? That is not so. Rather,

it is from the time of death that he acquires

it, the renter,

and the oath

was required only

in order to appease

the

mind of the owner

so that he would not say: You were negligent with it.

That is: The matter is not as you think—that if the renter does not swear, he is liable even when it is known to Heaven that the animal died a natural death—and therefore you think that the renter’s entire right to the borrower’s payment derives from the oath, since until he swears he himself remains liable. It is not so. If the animal died a natural death, the renter is exempt from payment even before he swears; the obligation to swear exists only to appease the owner. Accordingly, the borrower pays the owner, while the renter swears to the owner in order to appease him.

Rabbi Zeira said:

According to what is explained in our Mishna:

there are times when the owners—

who rented their cow to someone, and then returned and lent the rented cow to the renter, as in the law of our Mishna—

pay the renter several cows,

some of them the owners pay and they become the renter’s, while some the owners pay the renter so that he can complete his rental period with them!

And we explain:

What are the circumstances?

For example,

he rented

the renter Reuven rented]

from

Shimon, the owner of the cow, for

one hundred days

for a period of one hundred days].

And then

Shimon, the owner,

borrowed it from him,

from Reuven the renter, for

ninety days

Shimon then borrowed his cow from Reuven for a period of ninety days, from among the one hundred days for which Reuven had rented it from him].

Had it died during the period of the borrowing, this would conform to the law of our Mishna: Reuven the renter would be exempt from liability to Shimon the owner upon taking an oath that it died in its ordinary manner, whereas Shimon the borrower—that is, the owner—would pay Reuven, for what difference is there whether someone else borrowed it or whether the owner borrowed it? In addition, Shimon the owner would have to give Reuven the renter another cow of his, so that the renter could complete with it the ten additional days of his rental period beyond the ninety days for which the renter had returned and lent the cow to him.

Then

Reuven, the original renter,

rented it from him

from Shimon the borrower—who was also the owner—for

eighty days, [

and Reuven again rented that same cow from Shimon for eighty days, from among the ninety days for which Shimon had borrowed his cow from him].

And then

Shimon the owner

borrowed

the cow

from him,

from Reuven the renter [the second time], for

seventy days [

and Shimon again returned and borrowed his cow from Reuven for seventy days].

And it died during

the seventy

days of its borrowing.

For each borrowing and borrowing,

that is, for each of the two times that Shimon the owner borrowed it from Reuven the renter,

he is liable—

Shimon is liable to pay Reuven, who lent it to him—

one cow;

and in addition, Shimon the owner must give Reuven the renter two cows: one to provide the renter with the ten additional days of the second rental, and another cow to provide him with the ten additional days of the first rental.

It follows that the owners pay the renter four cows: two become his permanently, and two additional cows, with each used to complete ten rental days, after which they are returned to the owners.

He said

in astonishment

to Ravina, Rav Aḥa of Difti:

Why should he pay him four cows!?

After all, it is one cow [

there was only one cow], except that he

brought it in [

he transferred it from the rental arrangement to the borrowing arrangement] and

took it out [

and transferred it out], for

he took it out

the owners initially

from the rental arrangement and brought it into the borrowing arrangement,

and again

took it out of the borrowing arrangement and brought it into the rental arrangement!

And since initially there was only one cow, which was borrowed twice, the owners should also pay—on account of the two borrowings—only one cow, and it should stand in place of the first cow for both borrowings together; and in addition, the owners should pay the renter another cow, which he will use for twenty days!?

He said to him

Ravina said to Rav Aḥa of Difti:

Is the cow extant [

is the cow actually present]

that he could say this to him [

so that he could say this to him]!?

Mar bar Rav Ashi said:

Indeed,

he has no

renter

claim against them,

the owners,

other than two cows:

One

cow

for the borrowing,

only one cow do they pay on account of the two borrowings,

and one

cow

for the rental,

on account of the rental for which they are liable to the renter!

For

the sum of the borrowings is one borrowing, and the sum of the rentals

is one rental.

These two cows differ in their legal status: One cow,

the cow for the borrowing, he acquires

the renter

entirely, whereas the one cow

for the rental,

he uses it for

twenty

of his rental days, and returns it to its owner [

he completes with it the remaining twenty days that he rented and did not lend to the owners, and once he completes them, he returns it to the owners].

Rabbi Yirmeya said:

a.

There are times when both of them—

the ones mentioned in our Mishna, namely, the renter who lent the item to his fellow and his fellow who borrowed it from him—become liable

for

a

sin-offering of variable value [the offering for a false oath] on account of the false oath that they took.