Bava Metzia 81b — the Talmud in English

Until it came and was stolen,

not through 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?

This is guarding with the owner present,

and in guarding with the owner present there is no dispute that the bailee is exempt; only in a case of complete negligence is there one who holds that even if its owner is with him, he is liable?

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

and it was not guarding with the owner present.

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

they were walking together,

one

of them

was tall,

high,

and one was short,

low.

The tall one,

the high one,

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

a thin linen garment.

And

the short one was covered with a sarbel,

he was wearing a thick woolen garment,

and was walking on his feet,

he was walking.

When he reached the river,

when they reached the river,

he took it

the short one, who was walking on his feet, took

for his sarbel, and placed it

and placed it

upon the donkey,

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

He took the sheet of that one,

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

and covered himself with it,

and covered himself with it instead of his sarbel when he passed 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 one, the owner of the donkey, for his sheet.

The Sages said to Rava: Why

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

borrowing with the owner present,

for at the time that he borrowed his sheet, the lender was working with him, since he was then carrying the short one’s sarbel on his donkey?

Rava was embarrassed.

In the end, it became clear that without the knowledge

of the owner of the donkey,

he took it,

the short one took the sheet,

and without his knowledge

of the owner of the donkey,

he placed it,

the short one placed his sarbel upon him, and the owner of the donkey did not intend to lend it to him, nor to guard his sarbel for him. And Rava obligated him lawfully.

An incident involving

a certain man who rented to him

who rented out

a donkey to his fellow. He said to him

the renter,

“See,”

see, I warned you, that

you should not go on the road of the Pakuḍ River,

do not go on the road that runs along the river “Pakuḍ,”

for there is water,

because there is water on the road that runs along this river, and I want you to beware of this so that my donkey will not be harmed by the water, but

go on 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 instruction,

and went on the road of the Pakuḍ River, and the donkey died.

And it was not known from what cause it died.

When he came,

when the renter returned,

he said: Yes,

indeed,

I went on the road of the Pakuḍ River,

I went.

However, there was no water there!

And if so, I am compelled with regard to the death of the donkey. For just as it died in this place, it could also have died at the Narash River.

Rava said to him:

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

what

reason

would he have to lie

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

And moreover,

if he wished

to lie,

he could have said to him: “I went on the road of Narash,”

as you instructed me! And then the renter could not have denied his words, and he would have been exempt; therefore, certainly he is speaking the truth.

Abaye said to him:

You hold that

“What would I have to lie?” in a place of witnesses

who testify against him,

we do not say!

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 opposite, that there was no water there.

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

“Guard for me”

movable property,

and he said to him, “Place it”

place it

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,

because all his intention is to say: Sit and guard your movable property yourself.

They raised a dilemma:

if he said to him

“Place it,” without qualification,

and he did not say neither “before me” nor “before you,”

what

did he intend? Did he intend to undertake to guard it, or not?

Come and hear,

from what we learned in the Mishna: He said to him

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

he becomes

an unpaid bailee.

And it follows:

here,

if he said

without qualification,

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 was explained, it follows

that, without qualification, he is an unpaid bailee.

And we conclude:

Rather, from this,

from our Mishna,

there is nothing to infer

whether without qualification he is an unpaid bailee or not.

And we examine it:

Shall we say

that this law

is subject to a dispute between tannaim,

for we learned [Bava Kamma 47a]: “A potter who brought his pots into his fellow’s courtyard, and the owner’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 guard them.

And apparently, even if he did not explicitly say to him that he would guard them, he is liable to pay. Likewise here, when he said to him, “Place it,” he undertook to guard it.

Rabbi says: In all of them

[all those cases explained in the Gemara there],

he is not liable until the owner of the house undertakes

explicitly

to guard.

And the Gemara understood that their dispute is when he said to him “Place it” without qualification: whether he intended to obligate himself to guard them or not.

And we challenge this:

From where

is it possible to say that this is what they dispute?

Perhaps, the Sages said only there “the owner of the courtyard is liable”

“he is liable,”

but

when he brought them

into a courtyard that is fit for guarding,

which is fenced and locked,

and

therefore

when

the owner of the courtyard

said, “Enter”

your pots, his intention is to say,

“Enter, for I will guard for you,” he said to him.

Since guarding in the courtyard is an easy matter, he agreed thereby to guard them.

But here,

when they asked him to guard them in the marketplace and he said to him, “Place it,” since

the marketplace is not fit for guarding,

because many passersby are there and guarding them is a great exertion, his intention in saying “Place it”

is: “I will place it, and you sit and guard it”

you

he said to him.

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

Alternatively,

it is possible to explain the opposite:

Rabbi said only there

that he is not liable until the owner of the house undertakes to guard,

but

when they asked him to guard them

in his courtyard,

since

with regard to entering,

bringing them into his courtyard,

he needs to obtain permission from him,

he must request permission, his request from the owner of the courtyard being intended to ask him to permit him to bring them there,

and when he gives him

the owner of the courtyard

permission,

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

to enter

alone, to comply with his request, but not regarding the guarding itself; concerning that, the meaning of the owner of the courtyard’s words “Place it” is

“Sit and guard it for yourself,” he said to him.

But here,

in the public domain, there is no need to request his permission to place them there, since it is the public domain, and when he asked to place them before him and he answered him

“Place it,”

he certainly intended to say: Place it,

“and I will guard it,” 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 sit

and guard it,” he said to him,

then

if he is to place it,

if it is to be placed in the public domain, does he need

to obtain permission from him!?

Rather, certainly the meaning of the matter is to say that he will guard them.

We learned in the Mishna:

“He lent him money against collateral,”

the lender becomes

a paid bailee:

That is, a person who lends money to his fellow and he gives him collateral, a pledge, for his money—the lender becomes a paid bailee over the collateral.

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

And we examine it:

Shall we say that our Mishna,

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

not in accordance with Rabbi Eliezer!?

For it was taught:

A person

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

from the lender’s possession,

he shall swear

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

and he shall take his money,

payment of his debt immediately from the borrower,

the words of Rabbi Eliezer.

Rabbi Akiva says: The borrower can

the borrower

say to him

to the lender: Is it not

only against the collateral that you lent me,

and if so, since

the collateral was lost, your money was lost!

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

And if so, as long as this collateral is in your possession and you have not returned it to me, you are holding an object in place of your money. I owe you nothing unless you return my collateral to me.

But Rabbi Eliezer held that from the outset his intention was not to collect his debt from this collateral. Rather, he holds it merely as a record of the matter, so that if the borrower denies and says, “I did not borrow from you,” the lender will bring out the collateral as proof of his words. And according to Rabbi Eliezer, he is an unpaid bailee, for he does not benefit from guarding it, since he cannot collect from it.

But

if

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

if

the collateral was lost, his money was lost.

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

And we answer:

Even if you say

it is possible to say that our Mishna is

Rabbi Eliezer’s

view

, and there is no difficulty.

Here,

in the beraita, Rabbi Eliezer said that he is an unpaid bailee, because it is speaking of a case

in which he took collateral

at the time of the loan,

for then we interpret his intention as being that he gave it to him as a record of the matter.

But

here,

in the Mishna, Rabbi Eliezer said that he is a paid bailee, because it is speaking of a case

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

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

And according to this, if he took collateral not at the time of the loan, Rabbi Eliezer will agree that his intention was for collection, and he is a paid bailee.