Bava Metzia 36b — the Talmud in English

He said

he answered

Rava:

Therefore, the bailee is exempt when he handed them over to his adult son or daughter, because

everyone who deposits ![](pamud.bmp "

Precise page location")

with the understanding

that the bailee will hand it over to

his wife and

to

his sons does he deposit it.

The Nehardeans said:

It is also precise

from that same Mishna, that the exemption is only because “everyone who deposits, with the understanding that it will be in the hands of his wife and sons does he deposit,” whereas if he handed over the deposit to others, he would indeed be liable even if they were overcome by circumstances beyond their control—

For

this

it teaches

in that same Mishna: “

Or if he handed them over to his minor son or daughter, he is liable,”

and it implies:

but if [he handed them over] to his adult son or daughter, he is exempt—

It follows that

if he handed them over

to others

who are not members of his family,

it makes no difference

whether he handed them over to

adults, and it makes no difference

whether he handed them over to

minors;

he is

liable

even if the money was overcome by circumstances beyond their control while in their hands—

And the proof is:

if

[it were] not

so,

and even if he handed them over to other adults he would be exempt,

let it teach

in the Mishna: “Or if he handed them over to

minors”

without specification;

and why did it mention: “to his minor son or daughter”? Necessarily, it is to teach us: only with regard to his son or daughter is he liable only if he handed them over to minors and not to adults; but if he handed them over to others, it makes no difference whether they were minors or adults—he is liable.

And we conclude: Indeed,

learn from it!

Rava said: The halakha

is in accordance with Rabbi Yohanan, who said:

a bailee who hands [the deposit] over to another bailee is liable,

even for accidents that occurred with the second bailee;

and it is not necessary [to say this] of a paid bailee who handed [the deposit] over to an unpaid bailee, since he worsened its safeguarding, but even an unpaid bailee who handed [the deposit] over to a paid bailee is liable.

However, the reason of Rabbi Yohanan

is not because the depositor says to the bailee: “I do not want my deposit to be in the hands of another,” but rather,

what is the reason

of Rabbi Yohanan? Because

he says to him

the depositor says to the bailee: “

You are trustworthy to me under an oath

when you say that it was overcome by circumstances beyond your control, but

how

[is] the second bailee

not trustworthy to me under an oath

when he says that it was overcome by circumstances beyond his control? And I say: perhaps he changed it, consumed it, or was negligent with it.”

A. In the Gemara below, 42a, the Gemara relates an incident involving a person who deposited his money with a bailee, and that bailee placed the money in a house made of willow branches [tzrifa de-orbanei]. It was a place protected from thieves, but not protected from fire, and in the end a theft occurred there, with regard to which the bailee was overcome by circumstances beyond his control.

There they disputed, in two formulations, the position of Rav Yosef: according to one formulation: “Its beginning was through negligence and its end through circumstances beyond his control”—he is liable; and since placing the money in that house was negligence with regard to fire, although ultimately an accident occurred there, the bailee is liable. According to the other formulation: “Its beginning was through negligence and its end through circumstances beyond his control”—he is exempt.

And the Tosafot explained, that even the one who holds: “Its beginning was through negligence and its end through circumstances beyond his control—he is liable,” holds this only where it can be said that the accident resulted from the negligence; that is, if he had not been negligent, the accident too would not have occurred, as in this case: if he had not been negligent by placing it in that house, perhaps the thieves would not have stolen the money, because the thieves came to that house, whereas elsewhere perhaps they would not have stolen; but when the accident did not result from the negligence, and even had he not been negligent the accident would have occurred, then the negligence itself does not make him liable for the accident that happened to the deposit.

B. The Gemara’s discussion here is explained according to the words of the Tosafot.

It was stated: He was negligent with it

the bailee was negligent with the animal that had been entrusted to him for safeguarding,

and it went out

the animal

to the meadow,

which is a place not protected from wolves or thieves,

and

nevertheless

it died

the animal there

in its ordinary manner,

and not because of wolves or thieves; two amoraim disputed the law of the bailee, according to Rabba:

Abaye in the name of Rabba said: He is liable,

as he proceeds to explain the reason.

Rava in the name of Rabba said: He is exempt,

as he proceeds to explain the reason.

Abaye in the name of Rabba said: He is liable,

and

any judge who does not judge in accordance with this law is not a judge

[any judge who does not judge thus is not a judge],

and it is not necessary—

that the bailee is liable—

according to the one who says: “Its beginning was through negligence and its end through circumstances beyond his control

he is

liable,”

for

he certainly is

liable

in this case.

Rather, even according to the one who says: “Its beginning was through negligence and its end through circumstances beyond his control,”

he is

he is exempt,

here,

in this case,

the bailee is liable! And

And

what is the reason?

Because

we say:

perhaps

the atmosphere of the meadow killed it

the animal [the atmosphere found in the meadow is what killed the animal], and it follows that the animal died because he brought it to the meadow; therefore he is liable.

Rava in the name of Rabba said: He is exempt,

and

any judge who does not judge in accordance with this law is not a judge; and it is not

necessary—

that the bailee is exempt—

according to the one who says: “

Its beginning was through negligence and its end through circumstances beyond his control—he is exempt,”

for certainly he is

exempt

in this case.

Rather, even according to the one who says: “Its beginning was through negligence and its end through circumstances beyond his control,”

liable,”

he is liable,

here

in this case

the bailee is exempt! And

what is the reason?

what is the reason?

Because

we say: What is the Angel of Death’s concern whether here or there

[what difference does it make to the Angel of Death where the animal is? In either case he would have killed it], meaning: the accident did not result from the negligence, for even had he not brought it to the meadow it would have died; and whenever the accident does not result from the negligence, he is not liable.

And Abaye concedes -

who holds that he is liable -

that if it returns to its owner’s house

if the animal returned to the house of the owners or the custodian

and

afterward

dies, he is exempt

the custodian! And

what is the reason?

Because

it has indeed returned to him

it has returned from the meadow,

and

again

there is no possibility of saying: the air of the meadow killed it.

And Rava concedes -

who holds: “What difference is there to the Angel of Death whether here or there” -

that wherever it was stolen, the thief stole it in the meadow

if the thief stole it in the meadow, so that with regard to this it is negligence,

and it died its natural death in the thief’s possession

and it died in the possession of the thief,

he is liable

the custodian! And we do not say: after all, in either case it would have died its natural death!

And

what is the reason

we do not say this? Because

even

even so,

had the Angel of Death left it alone, it would have remained in the thief’s house

even had the Angel of Death left it to itself, it would nevertheless have been with a thief; that is to say: from the time of the theft it is considered lost from the owners, therefore the liability comes upon him on account of the time of the theft.

Abaye said to Rava: According to you, who said: “What difference is there to the Angel of Death whether here or there,”

if so, this is difficult:

this objection that

that which he raised

Rabbi Abba bar Memel to Rabbi Ami

above on the first side - according to the view that holds that a custodian who transferred [the item] to another custodian is liable, because “I do not want my deposit to be in the hands of another” - from our Mishna, where we learned: “One who rents a cow from his fellow and lends it to another, and it dies its natural death, the renter shall swear that it died its natural death,” for it follows that we do not say: “I do not want my deposit to be in the hands of another” -

and he answered him

and Rabbi Ami was compelled to reconcile it for him: our Mishna is dealing

with a case where the owners gave him

to the renter

permission to lend it

and he can no longer say: “I do not want my deposit to be in the hands of another.”

And

according to your words:

let him say to him

Rabbi Ami to Rabbi Abba bar Memel another answer:

“What difference is there to the Angel of Death whether here or there!”

That is to say: the entire basis of the reason that, because of the argument “I do not want my deposit to be in the hands of another,” the first custodian is liable even in a case of unavoidable accident, is only because it is as though the depositor stipulated with the custodian that transferring the deposit to another’s hands would be considered negligence, and then we say: “The air of that house killed it.” But according to you, who say: “What difference is there to the Angel of Death whether here or there,” why should the renter be liable for the death!?

And since Rabbi Ami did not answer with this response, it necessarily follows that he holds: “The air of that house killed it”; and this is difficult for Rava, who does not hold so.

He said

he answered

to him

Rava to Abaye:

according to you

according to your method [you, Abaye, and Rav Abba and Rabbi Ami]

who interpret

that you interpret as the reason of Rabbi Yohanan, who holds that a custodian who transferred [the item] to another custodian is liable, namely, that the depositor says to the depositary:

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

indeed,

there is room to raise an objection from that

there is room to raise an objection from our Mishna according to Rabbi Yohanan.

But

according to me

according to my method, above at the beginning of the page,

for I said

that Rabbi Yohanan’s reason for holding him liable is that the depositor says to the depositary:

“You are trusted by me under an oath, but he is not trusted by me under an oath,”

there is no room to raise an objection at all

for in any event there is no room for an objection from the Mishna, since it is the renter who swears that it died its natural death, as explicitly stated in the Mishna.

Rami bar Hama raised an objection

against Abaye in the name of Rabba, who holds: if he was negligent with it and it went out to the meadow, he is liable, and because we say: “The air of the meadow killed it,” from the Mishna that we learned below, 93b:

He brought up

the custodian brought up the animal

to the summit of a steep cliff

the summits of sharp and sloping mountains,

and it fell

the animal fell from them,

this is not

an unavoidable accident

but rather negligence, for it is accustomed to fall from them,

and he is liable

the custodian. And we can learn:

this

if the animal did not fall, but

died its natural death

at the summit of the cliff -

this is an unavoidable accident, and he is exempt

the custodian.

And according to Abaye this is difficult:

and why

is the custodian exempt? Since it could fall, it is found that he was negligent in bringing it up to the summit of the cliffs; and if so,

let the owner say to him

the custodian: Since you were negligent in bringing it up to the mountain, I can say: perhaps

the mountain air killed it

the cold of the mountain killed it,

alternatively, the exertion of the mountain killed it

or he could say to him: the weariness from the effort of climbing the mountain is what killed the animal; and just as according to Abaye we say, when he was negligent and it went out to the meadow: “Perhaps the air of the meadow killed it.”

And we answer:

here

in the Mishna below

with what are we dealing?

With a case such as

he brought up

the custodian

to a rich and good pasture

at the summit of the cliff, and it is the way of shepherds to bring their animals there to graze, and he was not negligent in bringing it up to the summit of the cliff; and Rava held him liable only when “he was negligent with it and it went out to the meadow.”

And we object concerning this:

if so

that he brought it to a rich and good pasture -

falling as well

he should be exempt, since he was not at all negligent in bringing it up to the summits of the cliffs!?

And we answer: the custodian’s liability is not because of negligence in bringing it up, but because

he should have held it firmly

so that it would not fall,

but he did not hold it firmly.

If so

that the Mishna is dealing with a case where he could have held it firmly but did not hold it firmly -

say the first clause

of that Mishna:

it went up

the animal went up by itself

to the summits of the cliffs, and it fell

from them,

this is an unavoidable accident

and the custodian is exempt.

And according to your words, this is difficult: why should the custodian be exempt? Since it was within his power to hold it firmly so that it would not fall, if so,

he should have held it firmly

he should have held it firmly!? That is to say: it is understandable if we interpret the Mishna as we initially thought, that his liability is for bringing it up; in that case one can say that he was unable to hold it firmly, but he is liable because of bringing it up, while the first clause deals with a case where he did not bring it up intentionally, but it overpowered him and went up, and therefore he is not to be held liable. But according to what you interpret concerning the latter clause—that it deals with a case where it fell when he could have held it firmly—then presumably the “fell” in the first clause is likewise dealing with such a case, where he could have held it firmly at the time of the fall so that it would not fall; and if so, why should he be exempt!?

And we answer:

it is necessary

that is to say: the first clause of the Mishna deals with a case such as

it overpowered him

the animal

and went up

to the summits of the cliffs, and also

it overpowered him

the animal

and descended; that is, the first clause of the Mishna does not deal with a case where it fell when he could have held it firmly, but just as “it overpowered him and went up” without his intention, because he could not stand against it, for it was stronger than he, so too in its falling; and indeed, the “fell” in the latter clause is not comparable to the “fell” in the first clause.

We learned in the Mishna:

Rabbi Yose said: How can this one conduct commerce with his fellow’s cow

of his fellow:

Rav Yehuda said in the name of Shmuel: The halakha is in accordance with Rabbi Yose!