Bava Metzia 93b — the Talmud in English

For

this is how people customarily guard!

He guarded it in the manner of guardians, and he did not have to consider that perhaps it would slip, since this is the customary practice of people, not to be concerned about this!

Abaye said to him

to Rabba:

But if so,

if a guardian guarded in the manner in which owners of animals customarily guard, and the animal was injured—which according to your words means that he is exempt—what would the law be if

he entered the city at the time when people enter

[the guardian entered the city at the time when it is customary for people to leave the animals alone in the field and enter the city], and they are not concerned that something might happen while they enter; would you say

this too, he is exempt,

because he guarded in the customary manner?

He said to him: Yes.

Indeed, this is the law.

And Abaye further asked Rabba: If

he slept a little,

the guardian slept somewhat and did not guard, and this was

at the time

[the time]

when people sleep,

as they are accustomed to sleep and are not concerned that something might happen, would

this too, he is exempt,

since he guarded in the customary manner and is under duress?

He said to him: Yes.

Abaye raised an objection

to Rabba from a beraita, in which we learned:

These are

the

instances of duress for which a paid bailee 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 with the edge of the sword,”

for the guardian has no ability to resist them.

It follows from there that if he was able to guard but did not take care to guard, this is not an exemption on account of duress.

He said to him: There,

the fact that the beraita specifically required duress from which he would not succeed in saving the animals even if he attempted to guard against it refers

to the night watchmen of the city,

the guardians of the city at night, upon whom all the inhabitants of the city rely at night, and who must guard more and be concerned about everything; they cannot claim exemption by saying that they guarded in the manner of guardians.

Abaye raised an objection

to Rabba from a beraita in which we learned:

Until when is a paid bailee obligated to guard?

That is, how much is he obligated to guard, so that only when he guards in this manner and nevertheless the deposit is damaged is he then exempt on account of duress?

To the extent of

what is stated regarding Jacob our forefather when he guarded Laban’s flock: [Genesis 31]

“In the day drought consumed me, and frost in the night.”

This is the measure of everything that he was able to do. It follows that if he was able to guard and prevent the damage but did not take care regarding it, he is liable and is not exempt because he guarded in the manner of guardians.

He said to him: There too, it refers to the night watchmen of the city.

The guardians of the city at night, who are obligated to guard more than the manner of guardians and must be concerned about everything.

He said to him: Is it the case that

Jacob

our forefather,

who said to Laban, “In the day drought consumed me, and frost in the night,”

was a city watchman!?

He was merely Laban’s guardian, and he was not obligated to guard beyond the manner of guardians.

And the Gemara answers:

For Jacob said

to

Laban: “I guarded for you,

I guarded for you

with additional guarding,

additional guarding, beyond the obligation imposed upon a paid bailee; rather, I added to the guarding, guarding

like the night watchmen of the city,

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

Abaye raised an objection

to Rabba from a beraita in which we learned:

A shepherd who was shepherding

the animals of the townspeople for payment

and abandoned his flock and came to the city. A wolf came and preyed, and a lion came and trampled

while he was inside the city,

we do not say

that since he was negligent by going away, perhaps

had he been there, he would have saved them.

We do not attribute every damage to his negligence, arguing that perhaps had he not gone away, the damage would not have occurred.

Rather, we assess

him;

if

he was

able to save

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

liable. And if not, he is exempt.

And Abaye infers:

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

in the manner in which guardians customarily enter, and nevertheless, if they assessed him as being able to save them, he would be liable, despite the fact that he guarded in the manner of guardians?

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

Rabba said to him:

No,

the beraita is not speaking in this manner. Rather, it is speaking in the manner

that he entered at a time when people do not enter,

when he did not guard in the manner of guardians. And the Gemara asks:

If so,

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

why is he exempt

if they assess that he was unable to save them? For the law is that if its

beginning was negligence

as here, when he left the animals and came to the city at a time when people are not accustomed to leave them without guarding, leaving them exposed to every kind of damage,

and its end was under duress,

when a wolf and a lion came, from which he was unable to save them,

he is liable!

And the Gemara answers: Here it is speaking of a case in which

he heard the sound of

the

lion and left.

Therefore even his entering the city was under duress, because he was afraid of the lion.

But the Gemara asks:

If so,

that he entered out of fear of the lion, how does the beraita say that they

assess him

as to whether he could have saved them had he not entered the city? After all,

what could he have done!?

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

And the Gemara answers: They assess whether

he had

the possibility and time

to confront

the lion

with shepherds and staffs

to drive it away.

But the Gemara asks:

If so,

that they assess whether he could have driven away the lion,

why specifically

does this apply to

a paid bailee

whom they assess as to whether he could have driven it away with shepherds and staffs?

After all,

even an unpaid bailee, too,

is required to attempt to drive away the lion by means of shepherds and staffs!

For it was indeed master,

Rabba,

who said: An unpaid bailee who had to confront it with shepherds and staffs, but did not confront it, is liable!?

And the Gemara answers:

An unpaid bailee

must attempt to drive away the lion if shepherds and staffs who come to his assistance are available

free of charge.

But

a paid bailee

must trouble himself to recruit shepherds to assist him even

for payment. And the beraita, which spoke specifically of a paid bailee, is referring to a case in which it was known that he had no possibility of obtaining assistance free of charge. Since he is a paid bailee, they also assess whether he had the possibility and time to hire people,

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

must a paid bailee spend money on assistance?

To the extent of

the value of

their value,

the value of the animals in the flock.

And the Gemara asks:

Where do we find that a paid bailee is liable for cases of duress?

After all, he is under duress because of the lion; why should he have to incur expenses to hire people to drive away the duress?

The Gemara answers: He is obligated to spend, because

he subsequently takes their value,

he returns and takes the payment of those who assisted in driving away the lion

from the owner.

It follows that he does not spend from his own pocket. Rather, as part of his obligation of guarding, he must initially spend from his own pocket for the purpose of guarding.

Rav Pappa said to Abaye:

If so,

that the owners pay the cost of those who assist in driving away the lion,

what benefit is there for the owner from it? What does the owner gain by saving his animals when the guardian hires assistance for their rescue up to the value of the animals? After all, he gained nothing from the rescue, since with that same money he could have purchased animals again.

And Abaye answers:

There is a practical difference:

the rescue benefits him

with regard to the animals’ fitness

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

Alternatively, it is for the sake of avoiding additional trouble,

so that 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 position of Rabba,

who exempts a paid bailee when he guarded in the manner of guardians. This is because

they said: For this they give you payment,

payment for guarding,

to guard for me with additional guarding,

so that you will guard beyond the manner of guardians; and this is not duress, but is in the category of transgression.

Bar Adda of Savolaya

was guarding animals for payment.

He was transferring the animals

and moved the animals

over the bridge

over the bridge spanning the river

of Narsh.

One pushed another, and it 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, to Rav Pappa:

What could I have done?

He said to him: You should have

taken greater care,

to transfer them one by one,

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

He said to him:

Do you

know of a guardian among your people

who is your countryman,

who is able to transfer them one by one?

Is anyone capable of transferring a herd of animals one by one across such a bridge!? I guarded in the manner of guardians; there is no one who takes care to transfer animals across a river one by one lest one push the other.

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

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

but there is no one who paid attention to them.

A man called

Aivu deposited flax, in

the house of

Runya.

“Shavu” went

—he was an armed robber—

and snatched it from him,

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

In the end the thief was identified,

and they seized him.

He came before Rav Naḥman, who obligated him

Rav Naḥman obligated Runya, the depositary, to pay; and this was so even though he was under duress, since the thief had been identified and he would suffer no loss if he paid, for he would recover his money from the robber. Therefore he had 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

Rav Huna bar Avin:

For Rav Huna bar Avin sent: If it was stolen under duress and afterward the thief was identified, if he is an unpaid bailee,

he has the choice:

if he wishes,

the guardian

swears

that he was not negligent and that it was stolen under duress, and he is exempt. And if

he wishes

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

takes the thief to court,

and recovers the money from the thief.

But

if he is a paid bailee,

he pays the owners, and the guardian

takes the thief to court and does not swear

to exempt himself on the grounds that he was under duress, since there is no monetary loss here, as he can recover the stolen item from the thief. Therefore he pays the owners and must trouble himself to recover it from the thief.

Yet Runya was an unpaid bailee, and nevertheless Rav Naḥman obligated him to pay for the theft, contrary to Rav Huna, who said that an unpaid bailee, if he wishes, swears and is exempt.

Rava said: There,

Runya was negligent, because

the men of the government

the government officials

were standing

there at the time of the theft.

For if he had raised his voice,

if he had raised his voice in a shout,

they would have come and saved it for him.

And since he was negligent in failing to shout, he is liable to pay.

Mishna:

This Mishna comes to define what constitutes duress with regard to the obligation of guardians:

One wolf

that attacked the flock,

is not duress,

since the guardian could drive it away.

Two wolves,

this is

duress.

Rabbi Judah says: At a time of a wolf outbreak

a plague of wolves, which is recognizable as a plague sent from Heaven,

even one wolf is duress.

For at a time of a plague, even one wolf attacks, and it is impossible to stand against it.

Two dogs are not duress,

for he can drive them away.

The Babylonian says in the name of Rabbi Meir:

if the wolves came

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

Robbers—this is duress.

And the Gemara explains which robbers.

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

When

are all the cases that we have learned duress?

When they came on their own. But

if

he led them

the shepherd

to a place of bands of wild animals and robbers, it is not duress.

If it died in its usual manner, this is duress.

If he afflicted it,

he caused it to suffer hunger, or stood it in the sun in the summer or in the cold in the winter,

and it died, it is not duress.

And even if it is not clear whether it died because of what he did to afflict it, he is liable, for we attribute its death to what he did to afflict it.

It went up to the tops of cliffs,

against his will, for he did not succeed in preventing it from going up,

and it fell

against his will,

this is duress.

He led it up to the tops of cliffs and it fell,

even against his will,

and it died, it is not duress,

for he should not have led it up to the cliff.

Gemara:

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

And the Gemara raises an objection:

But it was taught

in a beraita to the contrary:

One wolf is duress!

Rav Naḥman bar Yitzḥak said: That one,

the beraita that considers one wolf duress,

is at a time of a wolf outbreak

a plague of wolves,

and it is Rabbi Judah’s,

who says in our Mishna that at a time of a wolf outbreak even one wolf is duress.

We learned in the Mishna:

Robbers—this is duress.

And the Gemara raises an objection:

Why? Let him set

[place]

a man opposite

[opposite]

a man,

and the shepherd should have struggled with him and not allowed him to steal.

Rav said: With an armed robber.

They raised a dilemma before them: An armed robber and an armed shepherd—what is the law?

Must the shepherd struggle with him?

Do we say, set a man opposite a man,

and since the shepherd too is armed, he should have struggled with him?

Or perhaps, this one

the robber

committed himself

to the danger and to stealing, for he came with this intention.

And this one

the shepherd

did not commit himself,

and he is not liable to endanger himself for the sake of the animals.

And the Gemara resolves the doubt:

It is reasonable that this one committed himself, and this one did not commit himself.

And he is exempt from paying if he allowed him to steal, for he is not liable to endanger himself to struggle with him.

He said

he asked

to him, Abaye, to Rabbah:

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:

You rotten thief

[rotten thief],

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

we are grazing our animals in such-and-such a place,