Bava Metzia 36a — the Talmud in English

b.

Sometimes both of them

become liable

for

a sacrifice,

a guilt-offering

of “guilt-offerings for theft” [the sacrifice of “the oath of the deposit,”] for their oaths.

c. Sometimes the hirer

becomes liable

for a sin-offering, and

the borrower

for a

guilt-offering.

d.

Sometimes the hirer

becomes liable

for a guilt-offering, and the borrower

becomes liable

for a sin-offering.

How so:

It is a law of Torah that

denial of money

through an oath makes the one who swore liable for a

guilt-offering

for theft, when he later admits that he swore falsely; whereas an oath of

the utterance of the lips

[an oath taken falsely that does not come for denial of money] makes the one who swore liable for a

sin-offering

of graduated value. And since this is so, you find all four cases that were mentioned:

a.

Sometimes both of them are liable for a sin-offering,

as follows:

For example, when it died its natural death

[and the hirer is exempt for it, while the borrower is liable],

and both of them said

under oath:

It was forcibly taken

by robbers [for which the hirer is exempt and the borrower is liable]—

The hirer, in either event [both according to the truth and according to what he swore] is certainly exempt,

he is

liable for a sin-offering

for an oath of utterance that does not come for denial of money.

Whereas

the borrower, who in either event is certainly liable,

is

liable for a sin-offering

for the false oath that does not come for denial of money.

b.

Sometimes both of them are liable for a guilt-offering,

as follows:

For example, when it was stolen

[and both of them are liable for it],

and both of them said

under oath:

It died because of the work

[for which both of them are exempt], and both are liable for a guilt-offering, since:

It died as a result of the work

both of them are denying money

[both of them are denying money through their oaths], for they are liable and are making themselves exempt

[for they are liable, yet claim and swear that they are exempt].

c. Sometimes the hirer is liable for a sin-offering, and the borrower for a guilt-offering: for example, when it died its natural death [the hirer is exempt and the borrower is liable], and they said both under oath: It died because of the work [for which both are exempt]. In this case the hirer is liable for a sin-offering and the borrower for a guilt-offering, since: the hirer, who in either event is certainly exempt, is liable for a sin-offering. Whereas the borrower, who is liable when it dies its natural death, and makes himself exempt by saying that it died because of the work, is liable for a guilt-offering.

[as they are liable but claim and swear that they are exempt].

d.

The hirer is liable for a guilt-offering and the borrower for a sin-offering:

For example, when it was stolen

[for which both are liable],

and they said

both under oath:

It died its natural death,

and in this case the hirer is liable for a guilt-offering and the borrower for a sin-offering, since:

The hirer is liable for theft and loss

alone,

and makes himself exempt by saying that it died its natural death,

he is

liable for a guilt-offering.

Whereas

the borrower, who in either event is certainly liable,

is liable

for a sin-offering.

And we raise an objection against Rabbi Yirmeya:

What does this come to teach us

in this statement? Its legal basis is surely complete Mishnayot in Tractate Shevuot!?

And we answer: Rabbi Yirmeya comes

to exclude the view of Rabbi Ami

[to exclude Rabbi Ami’s position],

who said:

Every oath that the judges administer

such as the oaths of custodians, which they swear in order to become exempt from payment,

one is not liable for it on account of an oath of utterance,

and this is because it is

said

in the passage of the oath of utterance: “

Or a person, when he swears, expressing with his lips

to do harm or to do good … and it is concealed from him, and he knows, and he is liable … and he shall bring his guilt-offering to the Lord”; and Scripture says: “

When he swears,”

which implies:

of his own accord

he swears, and not that the court administered the oath to him.

Therefore:

This comes to teach us

Rabbi Yirmeya’s position,

not like Rabbi Ami,

for the oaths for which Rabbi Yirmeya makes one liable for a sin-offering were administered by judges, since he swore in order to become exempt from payment; and even when in either event he is liable for payment, they obligated him to swear that it was not in his possession, in accordance with Rav Huna above, 35b.

It was stated:

A custodian who delivered

his deposit

to another custodian

to guard it—without the owners’ knowledge:

Rav said: He is exempt

the first custodian, from everything for which he would have been exempt had he guarded it himself; that is, if the first was an unpaid custodian and the second custodian was not negligent with the deposit, and the deposit was stolen or forcibly taken, the first custodian is not liable to pay the owners; and if the first was a paid custodian and the deposit was forcibly taken while in the second’s possession, the first is exempt.

And Rabbi Yohanan said: He is liable,

the first custodian—whether he was an unpaid custodian or a paid custodian—even if the deposit was forcibly taken while in the second custodian’s possession.

He said

Abaye explained

according to Rav’s position,

who holds “he is exempt”:

It is not necessary

in the case of

an unpaid custodian who delivered [the deposit] to a paid custodian—

for he improved his safeguarding

[by delivering it to the second he strengthened the safeguarding of the deposit, because a paid custodian devotes himself to guarding more than an unpaid custodian, since he is liable for theft and loss]—

that the first is exempt from everything from which he was initially exempt.

his deposit

to another bailee

to guard it—without the owners’ knowledge:

Rav said: He is exempt

—the first bailee is exempt from every liability from which he would have been exempt had he guarded the item himself. That is, if the first bailee was an unpaid bailee, and the second bailee was not negligent with the deposit, and the deposit was stolen or taken by force, the first bailee is not liable to pay the owners. And if the first bailee was a paid bailee and the deposit was taken by force while in the second bailee’s possession, the first is exempt.

And Rabbi Yoḥanan said: He is liable

—the first bailee is liable, whether he was an unpaid bailee or a paid bailee, even if the deposit was taken by force while in the second bailee’s possession.

He said—

explained

Abaye: According to Rav’s view

, who holds “He is exempt”:

It is not necessary

in the case of

an unpaid bailee who entrusted the item to a paid bailee—

for he improved the level of its guardianship

[by entrusting it to the second bailee, he strengthened the protection of the deposit, since a paid bailee gives himself more fully to guarding than an unpaid bailee, as he is liable for theft and loss]—that the first is exempt from everything from which he was initially exempt.

Rather, even if a paid bailee entrusted the deposit to an unpaid bailee, thereby weakening its safekeeping,

[the value of the safekeeping was reduced, because an unpaid bailee is less devoted to guarding the item than a paid bailee, as he is liable only for negligence], nevertheless the first bailee

is exempt,

provided that the deposit was not damaged as a result of the weakened safekeeping, but was subject to an unavoidable accident while in the hands of the second bailee.

What is the reason

that the first bailee is exempt when he weakened its safekeeping, and we do not regard such entrusting as negligence?

For he entrusted it

the first bailee

to a competent person,

and it is the way of a competent person to provide excellent safekeeping.

And according to the reasoning of Rabbi Yohanan,

who holds that he is liable,

it is unnecessary to say that if a paid bailee entrusted it to an unpaid bailee, thereby weakening its safekeeping,

and certainly one can say, “I do not want my deposit to be in the hands of another” -

Rather, even if an unpaid bailee entrusted it to a paid bailee, thereby improving its safekeeping,

nevertheless the bailee

is liable

even for unavoidable accidents.

And because

he said

«

I do not want my deposit to be in the hands of another,”

it is as though he stipulated with him that if he entrusted it to another, this would be considered as though he had been negligent with it by entrusting it to another. Abaye holds that if a person was negligent with an animal and brought it into the house of another person whose house was not properly guarded, then even if the animal ultimately died its natural death, he is liable. This is because we say: Perhaps, had it remained in the house of the first bailee, where it was supposed to be, the animal would not have died, since one house may be healthier than another.

Rav Hisda said: That which

we say in the name of

Rav: “

A bailee who entrusted an item to another bailee is exempt,”

was not stated explicitly

!

; rather, it was inferred

from an incident that the students learned that Rav holds: “A bailee who entrusted an item to another bailee is exempt.”

For

there was an incident involving

certain gardeners

[gardeners],

who every day would entrust their hoes to a certain old woman

[they customarily entrusted their digging tools each day to one old woman].

One day they entrusted them

,

[on one particular day, the gardeners entrusted their hoes to one of their companions] without payment.

He heard

the bailee

the sound of a wedding celebration

[the sound of the rejoicing of bridegrooms],

he went out and entrusted them to that old woman

[the bailee went out to attend the celebration, and entrusted his companions’ hoes to that same old woman],

and while he went and returned, their hoes were stolen

[before he went and returned, the hoes were stolen].

That bailee came

before

Rav

[the gardener came before Rav to ask about his case],

and he exempted him

Rav [Rav exempted him] from payment.

And Rav Hisda adds and says:

One who saw it thought

[the one who witnessed this incident thought]:

because

Rav holds: “

A bailee who entrusted an item to another bailee is exempt,”

and since the old woman was not negligent in her safekeeping, the first bailee is likewise not liable, since he had been an unpaid bailee.

But

however,

that is not so

the matter is not so, and one should always say that Rav holds: “A bailee who entrusted an item to another bailee is liable,” because “I do not want my deposit to be in the hands of another.”

It is different there,

in that incident in which Rav exempted him, because

every day they themselves, too, would entrust them to that same old woman

[for every day they themselves would also entrust their tools to that old woman], and therefore they cannot say: “We do not want our deposit to be in the hands of that old woman.”

Rabbi Ami sat and recited this teaching

[Rabbi Ami sat and stated this teaching of his teacher Rabbi Yohanan], who would say: A bailee who entrusted an item to another bailee is liable, because “I do not want my deposit to be in the hands of another”!

Rabbi Abba bar Memel raised an objection to Rabbi Ami

according to Rabbi Yohanan’s view, from what we learned in our Mishna:

One who rents a cow from another and lends it to another, and it dies its natural death: The renter takes an oath that it died its natural death, and the borrower pays the renter.

And if it is so

according to Rabbi Yohanan’s statement, who says that the depositor may say, “I do not want my deposit to be in the hands of another,” and for this reason the bailee is liable even for unavoidable accidents that occur, then:

Let the owners say to him

[let the owners say to the renter]: “

I do not want my deposit to be in the hands of another,”

and since you violated my wishes, you should be liable even for the unavoidable accident of its natural death!?

He said

in answer

to him,

Rabbi Ami to Rabbi Abba bar Memel:

Here -

in our Mishna -

with what are we dealing? With

a case where, for example,

the owners gave him

the renter

permission to lend it

to another, and therefore they can no longer render him liable by saying, “I do not want my deposit to be in the hands of another.”

And we challenge this:

If so -

that the renter lent his cow to another with the owners’ consent -

the borrower should have to

the owners

pay

[the borrower should have had to pay the owners for the cow’s death], whereas in our Mishna we learned: “And the borrower pays the renter”!?

And we answer: Our Mishna is dealing with a case where

they said to him

the owners said to the renter: Although we permit you to lend it to another during your rental period, nevertheless

according to your discretion

[as you see fit] you are to lend it. Therefore the renter is considered the lender, whereas the owners cannot say, “We do not want our deposit to be in the hands of another.”

Rami bar Hama raises an objection

to Rabbi Yohanan from what we learned in the Mishna below, 42a:

One who deposits money with another, and the latter bundles it

in his garment,

and slings it behind him,

or

entrusts it

the bailee

to his minor son or daughter, and their father locks

the father

in front of them

the minors [so that they would not go outside and lose the money]

improperly,

he

is liable,

even if the minors guarded the money properly and it was subject to an unavoidable accident while in their possession, because

he did not guard it in the manner of bailees.

This implies:

The reason is that

he entrusted it to

minors; but

if he entrusted it to

adults,

and they guarded it properly and it was subject to an unavoidable accident while in their possession, he

is exempt -

but according to Rabbi Yohanan, this is difficult:

Why

is the bailee exempt?

Let

the depositor say to the bailee: “

I do not want my deposit to be in the hands of another,”

and since you entrusted it to your sons, you should be liable!?