Bava Metzia 81b (פא:) — the Talmud in English

until it was stolen,

without complete negligence!

They came before Rav Pappa, and he obligated them

to pay the value of the cloak.

The Sages said to Rav Pappa:

Why did you obligate them?

Is this not safeguarding while the owner is with him,

in which case there is no dispute that the bailee is exempt, and only with complete negligence is there an opinion that he is liable even when the owner is with him?

He was embarrassed. Ultimately, it became clear that at that time he had been drinking beer,

and it was not safeguarding while the owner was with him.

There were these two men who were walking along the road,

they traveled together,

one

of them

was tall,

high,

and one was short,

low.

The tall one,

the taller man,

was riding on a donkey, and he had a linen sheet,

a thin linen garment.

And

the short one was covered with a woolen cloak,

he was wearing a thick woolen garment,

and he was walking on his feet,

he traveled by foot.

When they reached the river,

when they arrived at the river,

he took it

the short man, who was walking on foot, took it,

his cloak, and placed it

and placed it

on the donkey,

so that the thick woolen garment would not absorb a great deal of water.

He took the sheet of that other man,

the short man took the sheet of the tall man, who was riding on the donkey,

and covered himself with it,

and covered himself with it in place of his cloak when he crossed through the water, since it was a thin garment and would not absorb a great deal of water.

The water swept away his sheet,

and it was lost.

He came before Rava, and he obligated him

to pay the tall man, the owner of the donkey, for his sheet.

The Sages said to Rava: Why

did you obligate him to pay the value of the sheet? Is it not

a loan while the owner is with him,

as at the time he borrowed his sheet, the lender was engaged in work for him, since he was then carrying the short man’s cloak on his donkey?

Rava was embarrassed.

Ultimately, it became clear that without the knowledge

of the donkey’s owner,

he took it,

the short man took the sheet,

and without the knowledge

of the donkey’s owner,

he placed it,

the short man placed his cloak on him, and the donkey’s owner did not intend to lend him the donkey, nor to safeguard his cloak for him. Rava therefore obligated him lawfully.

An incident involving

a certain man who rented

who rented

a donkey to his fellow. He said to him

the lessor said to the renter,

See,

look, I warned you that

you must not go along the road of the Pekuḍ River,

do not travel along the road that runs beside the Pekuḍ River,

as there is water,

because there is water along the road that runs beside this river, and I want you to be careful so that my donkey will not be harmed by the water. Rather,

go along the road of Narash, where there is no water,

and the road there is paved and convenient.

But the renter deviated from the owner’s instructions,

and he went along the road of the Pekuḍ River, and the donkey died.

It was not known what caused its death.

When he came,

when the renter returned,

he said: Yes,

indeed,

I went along the road of the Pekuḍ River,

I traveled there.

However, there was no water there!

And if so, I am not liable for the donkey’s death, as I was compelled by circumstances. For just as it died in that place, it could have died on the road of Narash as well.

Rava said to him:

The renter is believed that the donkey did not die because of the water but because of something else, because

why

why

would he lie

and say that he went there and that there was no water?

After all,

if he wished

to lie,

he could have said to him: I went along the road of Narash,

as you instructed me! In that case, the lessor could not have denied his statement, and he would have been exempt. Therefore, he is certainly telling the truth.

Abaye said to him:

You maintain that

“What reason would I have to lie?” is effective in a place where there are witnesses

who testify against him;

we do not say that!

Therefore, here, since we know that abundant water is always found in this place, the matter is considered as though witnesses testify that there was indeed water there at that time, and he is not believed to claim the contrary, that there was no water there.

We learned in the Mishna: A person who says to his fellow,

“Safeguard for me”

my movable property,

and he said to him, “Place it”

them

“before me,”

he becomes

an unpaid bailee:

Rav Huna said:

If

he said to him, “Place it before you,”

and not before me,

he is neither an unpaid bailee nor a paid bailee,

as his entire intention was to say: Sit and safeguard your movable property yourself.

They raised a dilemma:

If he said to him

“Place it,” without specification,

and he did not say either “before me” or “before you,”

what

did he mean? Did he intend to undertake to safeguard it, or not?

Come and hear,

from what we learned in the Mishna: If he said to him,

“Safeguard for me,” and he said to him, “Place it before me,”

he becomes

an unpaid bailee.

And it follows that

this

if he said

without specification,

he is not a bailee

at all.

And we reject this:

On the contrary, from the fact that Rav Huna said

above that if he said to him

“Place it before you,” he is neither an unpaid bailee nor a paid bailee,

as explained, it follows

that when he says it without specification, he becomes an unpaid bailee.

And we conclude:

Rather, from this,

from our Mishna,

nothing can be inferred

as to whether, when he says it without specification, he is an unpaid bailee or not.

We inquire into the matter:

Shall we say

that this law

is subject to a dispute between tanna’im,

as we learned [Bava Kamma 47a]: “A potter who brought his pots into another’s courtyard, and the homeowner’s ox broke them,”

if he brought them with permission, the owner of the courtyard is liable

for damage to his pots. For when he permitted him to bring them into his courtyard, he intended to say that he undertook to safeguard them.

Apparently, even if he did not explicitly tell him that he would safeguard them, he is liable to pay. Similarly here, when he said to him, “Place it,” he undertook to safeguard it.

Rabbi says: In all of these cases

[all those cases explained in the Gemara there],

he is not liable until the homeowner accepts upon himself

explicitly

to safeguard them.

The Gemara understood that their dispute concerns a case where he said to him, “Place it,” without specification: Did he intend to obligate himself to safeguard them or not?

And we challenge this:

From where

is it established that this is the subject of their dispute?

Perhaps, the Sages stated this only there

“the owner of the courtyard is liable,”

but

when he brought them

into a courtyard that is fit for safeguarding,

as it is enclosed and locked,

and

therefore,

when

the owner of the courtyard

says: “Enter

your pots,” his intention is to say:

“Enter; I will safeguard them for you,” is what he said to him.

Since safeguarding in a courtyard is a simple matter, he agreed thereby to safeguard them.

But here,

when they requested that he safeguard them in the marketplace and he said to him, “Place it,” since

a marketplace is not fit for safeguarding,

as many people pass through it and safeguarding them entails considerable effort, his intention in saying “Place it”

was: “I will place it, and you sit and safeguard it

yourself

,” is what he said to him.

That is, in this case even the Sages would agree that he did not undertake to safeguard them.

Alternatively,

it is possible to explain the matter in the opposite manner:

Rabbi stated this only there,

that he is not liable until the homeowner accepts upon himself to safeguard them,

but

when they requested that he safeguard them

in his courtyard,

since

in order to bring them in,

into his courtyard,

he needs to obtain permission from him,

he intended, by asking the owner of the courtyard, to request permission to bring them in there.

And when he gives him

the owner of the courtyard

permission,

by saying “Place it,” he intended to give him permission

to bring them in

alone, responding to his request, but not to undertake the safeguarding itself. Regarding that, the meaning of the courtyard owner’s words “Place it” is:

“Sit and safeguard it for yourself,” is what he said to him.

But here,

in the public domain, he does not need to request permission to place them there, as it is the public domain. When they asked to place them before him and he answered him,

“Place it,”

he certainly intended to say: Place it,

“and I will safeguard it,” is what he said to him.

For if it enters your mind

that his intention was to say,

“I will place it, and you sit

and you

safeguard it,” is what he said to him,

then

if he did not need to place it,

if it was to be placed in the public domain, would he

need to obtain permission from him!?

Rather, the words certainly mean that he will safeguard them.

We learned in the Mishna:

If he lent him money against collateral,

the lender becomes

a paid bailee:

That is, when a person lends money to his fellow and the borrower gives him collateral as security for the money, the lender becomes a paid bailee with regard to the collateral.

The Gemara understood that he becomes a paid bailee because the collateral was given to him for the purpose of collection, in case the borrower would not repay his debt on time. Therefore, the lender benefits from having the collateral in his possession, so that when the time comes he will be able to collect his debt from it.

We inquire into the matter:

Shall we say that our Mishna,

which states that if he lent him money against collateral, the lender becomes a paid bailee,

is not in accordance with Rabbi Eliezer!?

As it is taught in a beraita,

with regard to a person

who lends money to his fellow against collateral, and the collateral is lost

from the lender’s possession,

he must take an oath

that he was not negligent in safeguarding it, [as is the law of an unpaid bailee who claims, “Your deposit was lost,”]

and he takes his money,

the repayment of his debt from the borrower immediately,

the statement of Rabbi Eliezer.

Rabbi Akiva says: The borrower can

the borrower

say to him,

to the lender: Is it not true that

you lent me money only against the collateral,

and therefore, since

the collateral was lost, your money is lost!

That is, your intention in taking this collateral was that if I did not repay your money, you would retain this collateral as repayment of your debt.

Therefore, as long as this collateral is in your possession and you have not returned it to me, you hold an item in place of your money. I owe you nothing unless you return my collateral to me.

But Rabbi Eliezer maintains that from the outset he did not intend to collect his debt from this collateral; rather, he held it merely as a record of the matter, so that if the borrower denied having borrowed money from him, the lender could produce the collateral as proof of his claim. According to Rabbi Eliezer, he is an unpaid bailee, since he does not benefit from safeguarding it, as he cannot collect his debt from it.

But

if

he lent him one thousand dinars by means of a document, and he left collateral with him for them, everyone agrees

that if

the collateral was lost, his money is lost.

Since he lent him the money by means of a document, he certainly does not need the collateral as a record of the matter, as the document is in his possession. Rather, he certainly took it as security, in order to collect his debt from it.

And we resolve the difficulty:

Even if you say,

it is possible to say that our Mishna

is the opinion of Rabbi Eliezer,

and

there is no difficulty.

Here,

in the beraita, Rabbi Eliezer says that he is an unpaid bailee because the case is one in which

he took the collateral

at the time of the loan,

when we interpret his intention as having been to take it as a record of the matter.

But

here,

in the Mishna, Rabbi Eliezer says that he is a paid bailee because the case is one in which

he took the collateral not at the time of the loan,

when he certainly did not do so as a record of the matter, since if that had been his intention, he would have taken collateral from him already at the time of the loan. Rather, he did so after he had once summoned him to court, and the borrower did not have money to pay. He set a later time for payment, and only then took collateral, so that if the borrower did not repay him by that time, he would collect his debt from the collateral.

Accordingly, if he took the collateral not at the time of the loan, Rabbi Eliezer agrees that his intention was for collection, and he is a paid bailee.