Bava Metzia 35b — the Talmud in English

The Gemara further explains: all this that we said, that “the appraisal returns,” is when the court transferred the borrower’s property to the lender, but:

if

he transferred it to him for his debt

[the borrower voluntarily transferred his property to his lender],

Rav Aḥa and Ravina

disagreed

about it

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

; or perhaps “and did not trouble him to go to court” is primary, but if they compelled him, it is no longer called “he transferred it to him for his debt,” and according to everyone “the appraisal returns”. One

of them

said:

even so,

it returns,

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 willingly,

it does not return.

The Gemara explains the reasoning of each one:

The one who says: It does not return,

because

he reasons: This is a valid sale,

[the payment of these properties is like a sale],

for he transferred it willingly

[for he gave it to him willingly], and just as one who sold does not retract, so this one does not retract.

And the one who says: It returns,

because

he reasons: It is not a valid sale,

[this is not a complete sale],

and the reason that he transferred it willingly, and did not come to litigation, was embarrassment that caused him to transfer it

[for the fact that he transferred it to him willingly and did not trouble him to come with him to court was because of shame].

The Gemara adds to discuss further the law of the borrower’s property that the court transfers to the lender:

And from when does he eat

the lender

the produce

of the land that the court ultimately transferred to him—meaning: after the court transferred the land to him, from when 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 him to seek land suitable for his debt, in order to take it, reaches the lender’s hand.

Abaye said: By virtue of his signatures he acquires it,

meaning: he eats the produce from the time the court signed the document, and even before the document reached his hand.

But

Rava said:

even once this document reaches his hand he does not eat the produce, but

only when the days of the proclamation have ended

[the days of the proclamation], for this is the law of collection: after land is found, it is proclaimed for a fixed period, so that anyone who wishes to buy may come and buy it in order to pay the debt with money; and if the lender accepts the land for more than others appraised it, it is delivered into his hand. Until the days of the proclamation have ended, the lender does not eat the produce.

Mishna:

One who rents a cow from another and lends it to another, and it dies its normal death

for 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 its normal death,

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

; and the borrower—

who borrowed from the renter—

shall pay the renter

for a complete cow.

Rabbi Yosei said:

How does this one

the renter

make merchandise with the cow of his fellow

the owner,

but the cow should return

which the borrower pays

to the owners

who are the owner, and the explanation of their reasoning will be explained in the Gemara.

Gemara:

We learned in the Mishna: One who rents a cow from another and lends it to another, and it dies its normal death, the renter shall swear that it died its normal death, and the borrower shall pay the renter:

The explanation of the give-and-take in the Gemara is according to the “Kehillot Yaakov,” following the method of Tosafot.

He said

in astonishment

to him, Rav Idi bar Avin, to Abaye:

But it is obvious that regarding everything for which the renter became liable toward the owner [such as negligence, or theft and loss, according to the one who holds that a renter is equivalent to a paid bailee], the same law is that the borrower became liable toward the owner, because the renter transfers to the borrower the guarding obligations imposed upon him because of the owner, and the borrower is considered the owner’s bailee in this regard. And the reason of the Sages—that the borrower pays the renter and not the owner—is only because the renter is exempt when the animal dies its normal death, whereas the borrower is liable; for regarding this obligation, the borrower is not the owner’s bailee but only the renter’s—

and if so, this is difficult:

Since

[but surely]

by what does the renter acquire this cow,

is it not

through an oath

that he acquires it!?

That is, the renter himself is also liable if it dies its normal death if he does not swear that it died its normal death, even if it is revealed before Heaven that the animal suffered an accident. It follows that if the renter had not sworn, by law the borrower would have to pay the owner his payment for the animal’s normal death, since until the renter swears, he is liable for a normal death just as he is liable for negligence; but through the oath he becomes exempt from the owner, and consequently he “acquires” the borrower’s obligation, so that he pays him and not the owner—

and if so, this is difficult:

And let the owner say to the renter: “

Remove yourself and remove your oath, and I shall conduct litigation with the borrower,”

[the owner should say to the renter: I waive your oath, and I shall sue the borrower in court to pay me]!?

That is, why should the owner make the renter swear, and thereby the renter becomes exempt from him, and consequently he becomes entitled to claim payment from the borrower!? Let him say to him: I do not make you swear; you are liable for the death, and consequently the borrower will be considered, with regard to the death, my bailee, and he will pay me.

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

He said to him

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

Do you think that it is through an oath that the renter acquires it

[do you think that it is through an 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 acquires it,

and the oath

was needed 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 if it is revealed before Heaven that the animal died its normal death, and you infer from this that all the renter’s right to the borrower’s payment is because of the oath, for until he swears he himself is liable. It is not so. If the animal died its normal death, even before the renter swore, he is exempt from paying, and the obligation of an oath exists only to appease the mind of the owner. If so, the borrower pays the owner, and the renter swears to the owner in order to appease his mind.

Rabbi Zeira said:

According to what is explained in our Mishna:

Sometimes the owners—

who rented out their cow to someone, and then returned and lent the cow that had been rented, and in accordance with the law of our Mishna—

pay several cows to the renter,

some of them the owners pay and they belong to the renter, and some of them the owners pay to the renter so that he can complete with them the days of his rental!

And we explain:

What are the circumstances?

For example,

he rented

[rented] Reuven the renter

from him

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 returned and borrowed his cow from Reuven for a period of ninety days] out of the one hundred days for which Reuven had rented it from him.

And if it had died during the days of the borrowing, this would be the law of our Mishna: Reuven the renter would be discharged from Shimon the owner by 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 another person borrowed it or whether the owner borrowed it; and, furthermore, Shimon the owner must give Reuven the renter another cow of his, so that the renter can complete with it the ten days of his rental that exceed the ninety days for which the renter had returned and lent the cow to them.

Then

Reuven, the first 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] out of 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 [a second time] for

seventy days

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

And it died within

seventy

days of its borrowing.

For each borrowing and borrowing,

that is: for each of the two borrowings by which Shimon the owner borrowed from Reuven the renter,

he is liable

Shimon to pay Reuven, who lent it to him,

one cow;

and, furthermore, Shimon the owner must give Reuven the renter two cows: one, in order to complete for the renter the ten days exceeding the rental in the second rental, and another cow, in order to complete the ten days exceeding the rental in the first rental.

It therefore emerges that the owners pay four cows to the renter: two become his absolutely, and two additional ones, in order to complete with each of them ten rental days, and he returns them to the owners.

Said

Tamah

to Rav Aha of Difti, to Ravina:

Why should he pay him four cows!?

After all, it is one cow

[there was only one cow], אלא that he

brought it in

[brought it in from rental into borrowing] and

took it out

[and took it out], for

he took it out

the owners at the beginning

from rental and brought it into borrowing,

and again

took it out of borrowing and brought it into rental!

And since at the outset there was only one cow that was borrowed twice, the owners too should pay—because of their borrowings—only one cow, and it should stand in place of the first one for the two borrowings together; and, furthermore, the owners should pay the renter one additional cow, which he will use for twenty days!?

He said to him

Ravina to Rav Aha of Difti:

But is the cow present

[is the cow present]

that he should say this to him

[that he should be able to say this to him]!?

Mar bar Rav Ashi said:

Indeed,

he has no

the renter

against them

the owners

except two cows:

One

cow

of borrowing,

they pay only one cow on account of the double borrowing,

and one

cow

of rental,

because of the rental for which they are liable to the renter!

For

one borrowing is one, and one rental

is one.

And these two cows are divided in their law: one cow

of borrowing, he acquires

the renter

entirely, whereas one cow

of rental

he uses it

the renter for twenty

days of his rental, 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 Jeremiah said:

Сказал рабби Ирмия:

a.

Sometimes both

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

for a

sacrifice

sin-offering that rises and falls [the offering of “the oath of utterance”] for the false oath that they swore.