Bava Metzia 93b (צג:) — the Talmud in English

Because

this is guarding in the manner in which people ordinarily guard!

He guarded it in the manner of guardians, and he had no reason to anticipate that it might slip, since this is how people ordinarily act: they do not take precautions against this.

Abaye said

to Rabba:

But if that is so,

if a guardian guarded in the manner in which owners of animals ordinarily guard, and the animal was injured, in which case, according to your statement, he is exempt, what would the law be if he

entered the city at the time when people enter

[entered the city at the time when it is customary for people to leave their animals alone in the field and enter the city, without worrying that something might happen while they are entering the city], would you say

that here too he is exempt,

because he guarded in the manner in which people ordinarily guard?

He said to him: Yes.

Indeed, that is the law.

Abaye continued and asked Rabba: If the guardian

slept a little,

the guardian slept briefly and did not guard, and this occurred

at the time

[at the time]

when people sleep,

as people ordinarily sleep and do not worry that something will happen, would you say

that here too he is exempt,

since he guarded in the manner in which people ordinarily guard and is an ones?

He said to him: Yes.

He challenged him

Abaye challenged Rabba from a beraita, in which we learned:

These are

the

circumstances for which a paid guardian is exempt: For example,

in the case of an attack by bandits, as described in the Book of Job [chapter 1]:

“Sheba fell and took them, and the young men they struck down by the edge of the sword,”

as the guardian has no ability to resist them.

It may be inferred from this that if he had been able to guard against it but did not take precautions, this is not an exemption due to ones.

He said to him: There,

the reason the beraita specifically requires an ones against which he would not have succeeded even had he attempted to guard is that it is speaking

of the watchmen of the city,

the night watchmen of the city, upon whom all the city’s residents rely at night. They must guard more than guardians ordinarily do and take precautions against everything, and they cannot claim exemption by saying that they guarded in the ordinary manner.

He challenged him

Abaye challenged Rabba from a beraita in which we learned:

Until when is a paid guardian obligated to guard?

That is, how much guarding is he obligated to provide, such that only if he guards to that extent and the deposit is nevertheless damaged is he exempt on account of ones?

To the extent of

what is stated concerning Jacob our forefather, when he guarded Laban’s flocks: [Genesis 31]

“By day the heat consumed me, and frost by night.”

This is the measure of everything that he was capable of doing. It may be inferred that if he was able to guard and prevent the damage but did not take precautions against it, he is liable and is not exempt merely because he guarded in the ordinary manner.

He said to him: There too, it is referring to the watchmen of the city.

The city’s night watchmen, who are obligated to guard more than guardians ordinarily do and must take precautions against everything.

He said to him: Is it the case that

Jacob

our forefather,

who said to Laban, “By day the heat consumed me, and frost by night,”

was he a watchman of the city!?

He was merely Laban’s guardian, and was not obligated to guard more than the ordinary manner of guarding.

The Gemara answers:

For Jacob said

to Laban:

“I guarded for you,

I guarded for you

with enhanced guarding,

with guarding beyond what is required of a paid guardian; I added to my guarding and guarded

like the watchmen of the city,

who are obligated to guard with all their strength and may not suffice with the ordinary manner of guarding.

He challenged him

Abaye challenged Rabba from a beraita in which we learned:

A shepherd who was shepherding

the animals of the townspeople for payment

left his flock and came to the city. A wolf came and preyed upon them, and a lion came and mauled them

while he was in the city.

We do not say

that, since he was negligent by leaving, perhaps

had he been there he would have saved them.

We do not attribute all damage to his negligence on the claim that perhaps, had he not left, the damage would not have occurred.

Rather, we assess

we estimate

him: If

he

could have saved them

had he not gone to the city but remained to guard them, in which case he would have had enough time to move them elsewhere, he is

liable. And if not, he is exempt.

Abaye infers:

Is it not that he entered at the time when people enter,

in the manner in which guardians ordinarily enter, and nevertheless, if it were assessed that he could have saved them, he would be liable, despite having guarded in the ordinary manner?

This is difficult for Rabba, who exempts one who guarded in the ordinary manner.

Rabba said to him:

No,

the beraita is not speaking in that circumstance. Rather, it is speaking

of one who entered at a time when people do not enter,

when he did not guard in the ordinary manner. The Gemara asks:

If so,

he is negligent! He left the animals in a manner in which it is not customary to leave them and entered the city, so

why is he exempt

if it is estimated that he could not have saved them? The law is that if it was

negligence at the outset,

as here, when he left the animals and came to the city at a time when it is not customary for people to leave them without supervision, leaving them exposed to every kind of damage,

and circumstances beyond his control occurred ultimately,

when a wolf and a lion came, from which he could not save them,

he is liable!

The Gemara answers: Here, it is speaking of a case in which

he heard the faint sound of

the voice of a

lion, and entered the city.

Therefore, even his entering the city was due to circumstances beyond his control, because he was afraid of the lion.

But the Gemara asks:

If so,

if he entered because he feared the lion, how can the beraita say that

we assess him

to determine whether he could have saved them had he not entered the city?

What could he have done!?

He waited until the last moment, was unable to do anything, and fled.

The Gemara answers: We assess whether

he had

the possibility and the time

to confront

the lion

with shepherds and staffs

in order to drive it away.

But the Gemara asks:

If so,

if we assess whether he might have been able to drive away the lion,

why specifically

why is it specifically

a paid guardian

whose case is assessed to determine whether he could have driven it away with shepherds and staffs?

After all,

even a gratuitous guardian as well

is obligated to attempt to drive away the lion with shepherds and staffs!

For this master,

Rabba,

said: A gratuitous guardian who should have confronted it with shepherds and staffs but did not confront it is liable!?

The Gemara answers:

A gratuitous guardian

must attempt to drive away the lion if shepherds and staffs are available to assist him

for free.

Whereas

a paid guardian

must trouble himself to hire shepherds to assist him even

for payment.

The beraita, which speaks specifically of a paid guardian, is referring to a case in which it is known that he had no possibility of obtaining assistance for free. Since he is a paid guardian, we also assess whether he had the possibility and time to hire people.

And to what extent

is a paid guardian required to spend money on assistance?

Up to

the value of

their value

the animals in the flock.

The Gemara asks:

And where do we find that a paid guardian is liable for circumstances beyond his control?

He was overcome by the lion; why should he be required to incur expenses to hire people to drive away the ones?

The Gemara answers: He is obligated to spend the money because

he subsequently takes their value,

as he returns and collects the wages of those who assisted in driving away the lion

from the owner.

It follows that he does not ultimately spend the money from his own pocket. Rather, his obligation as a guardian is to spend the money temporarily from his own pocket for the purpose of guarding.

Rav Pappa said to Abaye: If so,

if the owners pay the cost of those who assisted in driving away the lion,

what benefit is there for him,

what does the owner gain from saving his animals when the guardian hires assistants to save them up to the value of the animals? He has gained nothing from the rescue, since with that same money he could have purchased animals anew.

Abaye answered:

There is a practical difference:

the rescue benefits him

with regard to the fitness of the animals

[the animals’ fitness], since they are accustomed to serving his needs.

Alternatively, it is relevant to the additional effort,

as he will not have to trouble himself to purchase other animals in their place.

Rav Hisda and Rabba bar Rav Huna did not accept this statement of Rabba,

who exempts a paid guardian when he guarded in the ordinary manner. This is because

they said: This is why they gave you payment,

payment for guarding,

to provide enhanced guarding for me,

so that you would guard beyond the ordinary manner. This is not an ones; rather, it falls within the category of wrongdoing.

Bar Adda of Savola,

was guarding animals for payment.

He was transferring the animals

he transferred the animals

over the bridge

over the bridge spanning the river

of Narash.

One pushed the other, and threw it

[and cast it]

into the water.

He came before Rav Pappa, who obligated him

to pay.

He

said to him,

Bar Adda, the guardian, said to Rav Pappa:

What could I have done?

He said to him: You should have

taken greater precautions,

by transferring them one at a time,

transferring each one by itself, so that one could not push the other.

He said to him:

Do you

know of a guardian of your own people

who is capable of transferring

them one at a time?

Is anyone capable of transferring a herd of animals, one at a time, over such a bridge? I guarded in the manner in which guardians ordinarily guard, and no one takes precautions to transfer animals across a river one at a time lest one push the other.

He said to him: Those who came before you have already cried out

to exempt guardians in such a case because they guarded in the ordinary manner,

but no one paid attention to them.

A man named

“Aivu” deposited flax with

in the house of

Runya.

“Shavu” came,

he was an armed robber,

and snatched it from him,

he seized from Runya the deposit that had been entrusted to him.

Ultimately, the thief was identified,

and they apprehended him.

He came before Rav Naḥman, who obligated him

Rav Naḥman obligated Runya, the depositary, to pay. This was so even though he had been overcome by circumstances beyond his control, because the thief had been identified and Runya would suffer no loss by paying: he would recover his money from the robber. Therefore, he was required to pay, and he would trouble himself to recover the money from the thief.

Let us say that Rav Naḥman disagrees

who obligated him to pay, with the ruling

of Rav Huna bar Avin:

For Rav Huna bar Avin sent a message: If an item was stolen under circumstances beyond the guardian’s control and afterward the thief was identified, if he is a gratuitous guardian,

he has the choice:

If he wishes,

the guardian may

swear

that he was not negligent and that it was stolen under circumstances beyond his control, and he is exempt. And if

he wishes

the guardian to pay, he pays the owners, and the guardian

deals with him in court,

and recovers the money from the thief.

But

if he is a paid guardian,

he pays the owners, and the guardian

deals with him in court and does not swear

to exempt himself by claiming that the theft occurred under circumstances beyond his control. Since there is no monetary loss here, as he can recover the stolen item from the thief, he pays the owners and must trouble himself to recover it from the thief.

Yet Runya was a gratuitous guardian, and nevertheless Rav Naḥman obligated him to pay for the theft, contrary to Rav Huna, who said that a gratuitous guardian may choose to swear and be exempt.

Rava said: There,

Runya was negligent, because

the men of the government

government officials

were standing

there at the time of the theft.

For had he raised his voice,

had he shouted loudly,

they would have come and saved it for him.

Since he was negligent by failing to call out, he is liable to pay.

Mishna:

This Mishna comes to define what constitutes duress with regard to the liability of bailees:

One wolf

that attacked the flock,

is not a case of duress,

since the bailee could drive it away.

Two wolves,

this is

a case of duress.

Rabbi Yehuda says: During an attack of wolves

—a plague of wolves, when it is evident that this is a blow sent from Heaven—

even one wolf is a case of duress.

For during a plague, even one wolf attacks, and it is impossible to withstand it.

Two dogs are not a case of duress,

as he could drive them away.

[unclear: wording] The Babylonian says in the name of Rabbi Meir:

If the wolves came

from one direction, it is not a case of duress; from two directions, it is a case of duress.

Bandits: this is a case of duress.

And the Gemara explains which bandits are meant.

The lion, the bear, the leopard, the bardelas, and the snake—these are cases of duress.

When

are all the circumstances we have learned considered cases of duress?

When they came on their own. But

if

he led them

the shepherd

to a place frequented by bands of wild animals and bandits, it is not a case of duress.

If it died a natural death, this is a case of duress.

If he tormented it

—depriving it of food, or keeping it outside in the sun during the summer or in the cold during the winter—

and it died, it is not a case of duress.

Even if it is not clear that it died as a result of what he did to it, he is liable, for we attribute its death to the torment he inflicted upon it.

If it climbed to the tops of cliffs,

against his will, as he was unable to prevent it from climbing,

and fell

against his will,

this is a case of duress.

If he led it to the tops of cliffs and it fell,

even against his will,

and died, it is not a case of duress,

as he should not have led it to the cliff.

Gemara:

We learned in our Mishna: One wolf is not a case of duress.

And the Gemara raises an objection:

But it was taught

in a baraita to the contrary:

One wolf is a case of duress!

Rav Naḥman bar Yitzḥak said: That

—the baraita that considers one wolf a case of duress—

refers to a time of an attack of wolves

[a plague of wolves],

and it is the opinion of Rabbi Yehuda,

who says in our Mishna that during an attack of wolves even one wolf is a case of duress.

We learned in the Mishna:

Bandits: this is a case of duress.

And the Gemara raises an objection:

Why? Let him set

[place]

one man opposite

[facing]

another man,

and the shepherd should have struggled with him rather than allow him to steal.

Rav said: [It refers to] an armed bandit.

The dilemma was raised before them: If the bandit is armed and the shepherd is armed, what is the law?

Does the shepherd have to fight him?

Do we say: Set one man opposite another man,

and since the shepherd is also armed, he should have fought with him?

Or perhaps, this one

[the bandit]

endangers himself

by undertaking the risk of stealing, for he came with that intention.

But this one

[the shepherd]

does not endanger himself,

and he is not obligated to endanger himself for the animals.

And the Gemara resolves the dilemma:

It is reasonable that this one endangers himself, while this one does not endanger himself.

And he is exempt from payment if he allowed him to steal, as he is not obligated to endanger himself by fighting with him.

He said

asked

Abaye of Rabba:

If an incident occurred in which

he found

[found]

a shepherd

with a thief,

and he said to him

the shepherd said to the thief:

Stinking thief

[a despicable thief],

we are staying in such-and-such a place,

where we are pasturing our animals,