Bava Metzia 36b (לו:) — the Talmud in English

He said:

Rava

answered:

Therefore, the bailee is exempt when he entrusted it to his adult sons or daughters, because

everyone who deposits

does so on the understanding

that the bailee will entrust it to

his wife and

to

his sons.

The Sages of Neharde’a said:

This is also precise

from that Mishna, which indicates that the exemption is only because “everyone who deposits does so on the understanding that the bailee will entrust it to his wife and sons”; but had he entrusted the deposit to others, he would indeed be liable even if the deposit was stolen or otherwise lost through circumstances beyond their control—

For

the Mishna

teaches

in that Mishna: “

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

and it follows:

But if he entrusted them to his adult son or daughter, he is exempt—

By inference, for

if he entrusted them

to others

who are not members of his family,

it makes no difference

whether he entrusted them to

adults, and it makes no difference

whether he entrusted them to

minors;

he is

liable

even if the money was lost through circumstances beyond their control while in their possession—

And the proof is:

For if

[it were]

not so,

and he would also be exempt if he entrusted it to other adults,

let it teach

in the Mishna: “Or if he entrusted them to

minors”

without qualification. Why did it mention: “to his minor son or daughter”? Necessarily, it was to teach us that only with regard to his son or daughter is he liable only if he entrusted the deposit to minors and not to adults; but if he entrusted it to others, it makes no difference whether they were minors or adults—he is liable.

why did it mention “his minor son or daughter”? It must be to teach us that only with regard to his son or daughter is he liable only when he entrusts the deposit to minors and not to adults; but if he entrusts it to others, it makes no difference whether they are minors or adults: he is liable.

And we conclude: Indeed,

infer from this!

Rava said: The halakha

is in accordance with Rabbi Yohanan, who said:

A bailee who entrusts an item to another bailee is liable,

even for accidents that occurred while it was in the possession of the second bailee; and

it is not necessary to state that a paid bailee who entrusted an item to an unpaid bailee is liable, since he weakened the level of its safeguarding; rather, even an unpaid bailee who entrusted an item to a paid bailee is liable.

However, the reason for Rabbi Yohanan’s ruling

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

what is the reason

for Rabbi Yohanan’s ruling? It is because

he says to him—

the depositor says to the bailee: “

You are trustworthy to me under oath

when you say that the item was lost through circumstances beyond your control; but

how

[is] the second bailee

not trustworthy to me under oath

when he says that it was lost through circumstances beyond his control? I say that perhaps he retained it, consumed it, or was negligent with it.”

a. In the Gemara below, on 42a, the Gemara relates an incident involving a person who deposited his money with a bailee. The bailee placed the money in a house made of willow branches [tzrifa de’urbanei]. This was a place protected from thieves, but not from fire. Ultimately, a theft occurred there, with regard to which the bailee was considered to have been prevented by circumstances beyond his control. Two versions of Rav Yosef’s position are presented there. According to one version: “If its beginning was through negligence and its end through circumstances beyond one’s control,” he is liable. Since placing the money in that house constituted negligence with regard to fire, although ultimately an accident occurred there, the bailee is liable. According to the other version: “If its beginning was through negligence and its end through circumstances beyond one’s control,” he is exempt. The Tosafot explained that even the one who holds that “if its beginning was through negligence and its end through circumstances beyond one’s control, he is liable” says so only when it can be said that the accident resulted from the negligence. That is, if he had not been negligent, the accident would not have occurred, as in this case: Had he not been negligent by placing it in that house, perhaps the thieves would not have stolen the money, since the thieves came to that house, whereas in another place they might not have stolen it. But when the accident did not result from the negligence, and even had he not been negligent the accident would have occurred, the negligence itself does not make him liable for the accident that occurred to the deposit. b. The Gemara’s discussion here is explained in accordance with the words of the Tosafot. It was stated:

Two versions of Rav Yosef’s position are recorded there. According to one version: “If its beginning was through negligence and its end through circumstances beyond one’s control,” he is liable. Since placing the money in that house was negligence with regard to fire, although in the end an accident occurred, the bailee is liable. According to the other version: “If its beginning was through negligence and its end through circumstances beyond one’s control,” he is exempt.

Tosafot explained that even the one who says, “If its beginning was through negligence and its end through circumstances beyond one’s control, he is liable,” says this only when it can be said that the accident resulted from the negligence—that is, if he had not been negligent, the accident would not have occurred. This is similar to the case under discussion: Had he not been negligent by placing the money in that house, perhaps the thieves would not have stolen it, because the thieves came to that house, whereas they might not have stolen it elsewhere. But when the accident did not result from the negligence, and the accident would have occurred even had he not been negligent, the negligence itself does not make him liable for the accident that happened to the deposit.

b. The Gemara’s discussion here is explained in accordance with the words of Tosafot.

He was negligent with it

the bailee was negligent with an animal entrusted to him for safekeeping,

and it went out

the animal

to the meadow,

a place that is not protected from wolves or thieves,

but

nevertheless

it died

the animal there

in its ordinary manner,

and not because of wolves or thieves. Two amoraim disputed the bailee’s law in accordance with Rabba’s position:

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

as he proceeds to explain the reason.

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

as he proceeds to explain the reason.

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

and

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

[any judge who does not rule this way is not a judge],

and it is not necessary to state—

that the bailee is liable—

according to the one who says: “If its beginning was through negligence and its end through circumstances beyond one’s control

he is

liable,”

for

he certainly is

liable

in this case.

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

Rather, even according to the one who says: “

If its beginning was through negligence and its end through circumstances beyond one’s control, he is exempt,”

here,

in this case,

the bailee is liable!

And

what is the reason?

Because

we say:

Perhaps

the vapor of the meadow killed it

the animal [the vapor present 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 said in the name of Rabba: He is exempt, and

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

necessary to state—

that the bailee is exempt—

according to the one who says: “

If its beginning was through negligence and its end through circumstances beyond one’s control, he is exempt,”

for certainly he is

exempt

in this case.

Rather, even according to the one who says: “

If its beginning was through negligence and its end through circumstances beyond one’s control, he is

liable,”

here,

in this case,

the bailee is exempt

!

And

what is the reason?

Because

we say: What difference is it to the Angel of Death whether it was here or there

[what difference does it make to the Angel of Death where the animal was? In either event, it would have killed it]. That is, the accident did not result from the negligence, since 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 Rava concedes —

who holds that he is liable —

that if it returned to its owner’s or custodian’s house

[if the animal returned to the house of the owner or the custodian]

and

afterward

died, he is exempt

the custodian.

And what is the reason?

Because

it had indeed returned

[it had returned from the meadow],

and

once again

there is no basis for saying: The air of the meadow killed it.

And Rava concedes —

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

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

[if a thief stole it in the meadow, in which regard it constitutes negligence],

and it died in its usual manner in the thief’s possession

[and it died while in the thief’s possession],

he is liable

the custodian. And we do not say: In any event, it would have died in its usual manner!

And

what is the reason

that we do not say so? Because

for

even

if the Angel of Death had spared it, it would have remained in the thief’s house,

[even had the Angel of Death left it alive, it would still have been in the thief’s possession]. In other words: From the moment of the theft, it is considered lost to the owners; therefore, the liability takes effect at the time of the theft.

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

if so, this is difficult:

This objection that

[the challenge that]

Rabbi Abba bar Memel raised to Rabbi Ami

[above, on the previous side] — according to the one who holds that a custodian who entrusted an 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 another and lends it to someone else, and it dies in its usual manner, the renter takes an oath that it died in its usual manner,” for evidently we do not say: “I do not want my deposit to be in the hands of another” —

And he answered him

[and Rabbi Ami had to resolve the matter for him] that our Mishna is dealing

with a case where the owners gave

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

Rabbi Ami say another answer to Rav Abba bar Memel:

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

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

Since Rabbi Ami did not give this answer, he must necessarily hold: “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 your view

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

that you interpret

the reason of Rabbi Yoḥanan, who holds that a custodian who entrusted an item to another custodian is liable, as being that the depositor says to the custodian:

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

indeed,

there is room to raise that objection from that

[there is room to challenge Rabbi Yoḥanan’s view from our Mishna].

But

according to my view

[my method stated above],

that I say

that Rabbi Yoḥanan’s reason for holding him liable is that the depositor says to the custodian:

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

there is no room to raise that objection at all,

for in any event there is no basis for the objection from the Mishna, since it is the renter who takes an oath that it died in its usual manner, as the Mishna explicitly states.

Rami bar Ḥama raises an objection

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

If

the custodian brought the animal

to the tops of steep cliffs

[the tops of sharp and steep mountains],

and it fell

the animal from them,

this is not

an unavoidable circumstance

but negligence, because it is liable to fall from them,

and he is liable

the custodian. And we can infer:

If

the animal did not fall, but

died in its usual manner

at the top of the cliff —

this is an unavoidable circumstance, and he is exempt

the custodian.

According to Abaye, this is difficult:

And why

is the custodian exempt? Since it could fall, it follows that he was negligent in bringing it up to the tops of the cliffs. If so,

let

the owners say to the custodian: Since you were negligent in bringing it up to the mountain, I may say: Perhaps

the mountain air killed it

[the mountain’s cold killed it],

or alternatively, the exertion of the mountain killed it

[or he could say to him: The fatigue caused by the exertion of climbing the mountain 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 —

what are we dealing with?

With a case in which

he brought it

the custodian

to rich and good pasture

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

And we challenge this:

If so —

that he brought it to rich and good pasture —

it should also be the case when it fell

that he is exempt, since he was not at all negligent in bringing it to the tops of the cliffs!?

And we answer: The custodian’s liability is not due to negligence in bringing it up, but because

he should have restrained it

so that it would not fall,

but he did not restrain it.

If so —

that the Mishna is dealing with a case where he could have restrained it but did not —

say the first clause

of that Mishna:

If it went up

the animal on its own

to the tops of the cliffs, and it fell

from them,

this is an unavoidable circumstance,

and the custodian is exempt.

But according to your explanation, this is difficult: Why should the custodian be exempt? Since he was able to restrain it so that it would not fall,

he should have restrained it

[he should have restrained it]!? 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 restrain it, but he is liable because he brought it up; and 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 cannot be held liable. But according to your interpretation of the latter clause, that it deals with a case where it fell when he could have restrained it, then presumably the “fell” in the first clause also refers to such a case, where he could have restrained it at the moment of the fall so that it would not fall. 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 in which

it overpowered him

the animal

and went up

to the tops of the cliffs, and it also

overpowered him

the animal

and came down. That is, the first clause of the Mishna does not deal with a case where it fell when he could have restrained it. Rather, just as “it overpowered him and went up” means that it went up against his will, and he could not withstand it because it was stronger than he was, so too with its fall. Indeed, the “fell” in the latter clause is not comparable to the “fell” in the first clause.

We learned in the Mishna:

Rabbi Yosei said: How can this other person conduct business with his fellow’s cow

of his fellow?

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