Bava Metzia 94a — the Talmud in English

There are such-and-such men with us,

there are such-and-such people with us, and if you come to rob, you will die.

There are such-and-such dogs with us, such-and-such stone-throwers,

stone slings

fixed for us,

stationed there for us.

And the thief went

there,

and took from him

and stole from him,

what [is the law]?

Is the shepherd liable to pay or not? For the shepherd had protection against the thief, and nevertheless he succeeded in stealing; what could he do?

He said to him:

the shepherd is liable to pay, for

it is

considered as though

he led them to a place of bands of wild animals and bandits.

For he should not have told the thief all this, and because he told him, he came there.

Mishna:

A.

a gratuitous bailee may stipulate that he is exempt from an oath,

and if damage occurs to the deposit, he will be believed to say that he was not negligent in guarding it and will not have to swear.

And a borrower,

who is liable for accidents, may stipulate

to be exempt from paying

for the accidents.

A paid bailee and a hirer

may stipulate

to be exempt from an oath.

And if damage occurs, they will be believed to say that it was due to an accident, without swearing,

and from paying,

to be exempt from paying for theft and loss,

B.

anyone who stipulates contrary to what is written in the Torah,

to uproot a Torah law,

his stipulation is void.

And the Gemara explains in what manner this is speaking.

C.

and any condition that has an act at its beginning,

where he preceded the statement of the condition with the statement of the act, such as where he said, “This object is acquired by you” [which is the act, that he gives him the object], and afterward stipulated, “If you do such-and-such for me

”his stipulation is void.

And even if the condition is not fulfilled, the act takes effect.

D.

And any

condition

that it is possible for him to fulfill at its end, and he stipulated it with him at its beginning, his stipulation is valid.

But one who stipulates on condition that she ascend to the firmament, which is impossible to fulfill such a condition, is merely exaggerating in his words; therefore, the act takes effect even though it is impossible to fulfill the condition.

Gemara:

The Gemara discusses:

why

can the bailees stipulate that they be exempt from the oath and from payments? But this is

a stipulation contrary to what is written in the Torah,

for the liability of every bailee is explicit in the Torah, some by an oath and some by payments, and by stipulating that they will not be liable for them, they uproot a Torah law,

and anyone who stipulates contrary to what is written in the Torah

to uproot it and to be exempt from it,

his stipulation is void.

And even regarding the bailees who stipulated thus, their stipulation should not have been effective!?

And the Gemara answers:

whose [opinion] is this,

our Mishna, which holds that the stipulation of the bailees is effective to exempt them from a Torah law; according to whose method is it stated? It is according to the method of

Rabbi Yehuda, who said: with regard to a monetary matter

[in monetary laws stated in the Torah],

his stipulation is valid,

the stipulation is effective to uproot the law from the Torah, since all monetary laws are entrusted to people to undertake according to their will, and the Torah’s liabilities were stated only where people did not explicitly specify the undertaking.

For it was taught:

thus we learned in a beraita, that according to Rabbi Yehuda a stipulation is effective with regard to monetary liabilities:

One who says to a woman, “Behold, you are betrothed to me on condition that you have no claim against me for

the liability of

sustenance,

food,

clothing and conjugal relations,”

which are the matters that the Torah obligated the husband to give his wife,

she is betrothed, and his stipulation is void,

and he is liable to provide her sustenance, clothing and conjugal relations, since his stipulation came to uproot a Torah law,

the words of Rabbi Meir.

Rabbi Yehuda says:

sustenance and clothing are monetary liabilities, and therefore,

with regard to a monetary matter, his stipulation is valid.

And she is betrothed, and the stipulation is effective to exempt him from the liabilities of sustenance and clothing.

But the Gemara objects:

and can you establish it

[how can you establish] our Mishna

according to Rabbi Yehuda?

But

say the latter clause: Anyone who stipulates contrary to what is written in the Torah

to uproot a Torah law,

his stipulation is void.

And necessarily,

we have arrived

at a law that follows

the

the words of

Rabbi Meir,

who holds that it is impossible to uproot a Torah law by means of a condition, and our Mishna is stated according to the method of Rabbi Meir, and not according to the method of Rabbi Yehuda!

The Gemara rejects this:

This is not difficult.

Actually,

our Mishna

is according to Rabbi Yehuda,

who holds that a condition is effective to uproot a law from the Torah.

And the latter clause,

in which we learned that it is impossible to uproot a Torah law by means of a condition, speaks

of a matter that is not monetary,

whereas Rabbi Yehuda’s law was stated only regarding a condition involving a monetary liability, which may be uprooted even contrary to a Torah law.

But the Gemara still continues to object from the continuation of the Mishna:

say the latter clause: Any condition in which there is an act at its beginning,

where he preceded the statement of the act, such as where he said, “I hereby transfer this object to you,” and only afterward continued and made the giving conditional,

his stipulation is void,

and even without fulfillment of the condition, the act takes effect.

Whom do you hear holding this reasoning? Rabbi

Meir.

For it was taught: Abba Ḥalafta of Kefar Ḥanania said in the name of Rabbi Meir: A condition preceding the act is a condition,

and the act takes effect only if the condition is fulfilled.

An act preceding a condition is not a condition,

and the act takes effect even if the condition is not fulfilled.

And learn from this that our Mishna is according to the method of Rabbi Meir.

Rather,

the entire

our Mishna, according to the method of

Rabbi Meir.

And here it is different,

the reason a condition is effective for a bailee to exempt himself from liabilities imposed upon him by the Torah is

that from the outset,

from the beginning, before he took the deposit and became liable for guarding it,

he did not obligate himself.

And all the liabilities of bailees are only because they took the deposit with the understanding of the liabilities stated in the Torah. But this one, who stipulated in advance, did not accept upon himself the undertaking to guard it in this manner, and this does not uproot anything from the Torah.

It was taught: And a paid bailee may stipulate

that all his liability by Torah law is only for theft and loss,

to be like a borrower,

to become liable to pay even if an accident occurs to the deposit.

The Gemara objects:

by what

does he become liable? Can one become liable

merely by words?

But one must perform an act of acquisition in order to become liable!

Shmuel said: [it is] when they acquired from him

by means of a kinyan sudar concerning this undertaking.

And Rabbi Yoḥanan said: Even if you say that they did not acquire from him,

nevertheless his undertaking is effective, because

through that benefit

that the owner of the deposit bestows upon him,

for a reputation goes out for him that he is a trustworthy person,

by the fact that he deposits it with him and relies upon him, a good name goes out about him that he is a trustworthy person; in exchange for this benefit,

the bailee resolves

the bailee makes up his mind

and obligates himself

to become liable even for accidents.

We learned in our Mishna:

And anything that it is possible for him to fulfill at its end, and he stipulated it at its beginning, this is a condition.

Rav Tavla said in the name of Rav: This is the statement of Rabbi Yehuda ben Tema,

who holds that only a condition that it is possible to fulfill is a condition.

But the Sages say: Even though it is impossible for him to fulfill it at its end, and he stipulated

it at its beginning, his stipulation is valid,

and the act does not take effect, since it is conditional upon a condition and it is impossible to fulfill it.

For it was taught:

one who says to a woman

“This is your bill of divorce on condition that you ascend to the firmament,”

or

“on condition that you descend to the abyss,”

or

“on condition that you swallow a reed one hundred cubits long,”

or

“on condition that you cross the Great Sea on your feet,”

all of these being conditions that it is impossible to fulfill, if

the condition is fulfilled, this is a bill of divorce. If the condition is not fulfilled, it is not a bill of divorce.

That is, since it is impossible to fulfill the condition, the bill of divorce is void.

Rabbi Yehuda ben Tema says:

a bill of divorce

such as this

is

a bill of divorce,

even though it is impossible to fulfill the condition.

Rabbi Yehuda ben Tema stated a principle: Any

condition

that it is impossible for him to fulfill at its end,

after the stipulation,

and he stipulated it at its beginning,

at the time of the act,

is only one who exaggerates to her

and vexes her, so that she will think that this bill of divorce will not be effective to divorce her.

And it is valid

the bill of divorce, and she is divorced by it.

Rav Naḥman said in the name of Rav: The halakha is according to Rabbi Yehuda ben Tema,

that a condition that it is impossible to fulfill is not a condition.

Rav Naḥman bar Yitzḥak said: Our Mishna also indicates

that the halakha is according to Rabbi Yehuda ben Tema, from the fact that it stated the matter anonymously according to his opinion.

For it teaches: Anything that it is possible for him to fulfill at its end, and he stipulated it at its beginning, his stipulation is valid.

But if it is impossible for him to fulfill it, his stipulation is void.

And we conclude: Indeed,

learn from this.

We shall return to you, chapter “The Hirer of the Laborers.”

The Torah innovated a special exemption for the guardians when the guarding is performed in the manner of “guarding with the owners.” That is, if the owners of the object were hired or borrowed together with it, the guardian is exempt from paying for the damages that occurred to the object, since the owners too were together with him, in his possession.

This exemption is stated explicitly in the passage concerning one who borrows [Exodus 22:13–14], and from there it is derived for a paid guardian and for a renter: “

And if a man borrows from his fellow, and it is broken or dies, [if] its owner is not with him, he shall surely pay. [ [A0008]]But

But

if its owner is with him, he shall not pay.”

The exemption of “its owner is with him” applies even when the lender is not engaged in the same work in which his borrowed animal is engaged, and even if he cannot guard it during his work.

Mishna:

One who borrows the cow, and

at that time

borrows its owner with it,

meaning that the borrower asked the lender to engage with him in his work without payment.

Or

at that time

hires its owner with it,

meaning that he took him to work for him for payment.

And likewise, if the borrower acted first, and initially

borrowed

the

owner

of the cow,

or hired him, and afterward borrowed the cow

from the owner, and

it died,

the cow—

he is exempt,

the borrower, from paying the lender the value of the cow in all these circumstances, because

it is stated: “

If its owner is with him, he shall not pay.”

And the same law applies to one who rents a cow,

and borrowed its owner with it or hired him, and the cow was stolen: the renter is exempt from paying. Rather, the Mishna spoke of a borrower because the Torah wrote this law with regard to a borrower.