Bava Metzia 94b — the Talmud in English

However,

if

he borrowed the cow, and afterward borrowed its owners or hired them, and

afterward

it died,

the cow—the borrower is obligated to pay, because at the time of borrowing the cow the lender was not hired or borrowed by the borrower,

as it is stated: “

Its owner is not with him; he shall surely pay.”

Gemara:

We learned in the Mishna the exemption of “its owner is with him” in two ways: one, “one who borrows the cow and borrows its owner with it” [the first clause]; and the other, “he borrowed the owner and afterward borrowed the cow” [the latter clause].

And the Gemara discusses it:

Since it teaches in the latter clause

“and afterward he borrowed the cow,” it follows

that you learn from this

that the first clause, which teaches

in it, “one who borrows the cow and borrows its owner

with it,”

is speaking of a case in which he borrowed it and its owner

literally with it,

at the same time.

And if so, this is difficult:

“with it,”

which means at the

very same time—how can you find this?!

How can such a possibility exist? For

the cow

becomes borrowed by the borrower only

through pulling

it to himself, and before he pulls it and performs an act of acquisition with it, he has no right of borrowing in it.

And

if the

owners of the cow become borrowed or hired by him, only

through a statement,

by which they said and agreed to be borrowed or hired, since there is no place for an act of acquisition with free persons!

when they say and agree to be borrowed or hired, since no act of acquisition can apply to free people—how can both borrowings take place at precisely the same time?

And we answer:

If you wish, say:

if you wish, say that it is possible for the owners to become borrowed or hired through a statement, and for the cow also to become borrowed at the time of the statement,

for example, when the cow is standing

[meaning, the cow is located]

in the courtyard of the borrower,

before he borrowed it,

so that pulling is not required,

for then pulling is unnecessary; rather, it is acquired through “acquisition through the courtyard” to be borrowed by him at the moment when the lender agreed to lend it and to be borrowed by him. And it follows that the borrowing of the owners and the borrowing of the cow were at the very same time, since in that same statement he said: “I and my cow are borrowed to you.”

If you wish, say,

it is possible that he borrowed the cow through the acquisition of pulling, and the owners too became borrowed at that same time, and this is a case where

he said to him—the borrower to the lender:

the borrower said to the lender:

“You yourself,”

you personally,

“shall not be borrowed

by me

until the time of pulling your cow

by me. And it follows that the borrowing of the cow and the borrowing of the owners were at the very same time.”

The Gemara now brings a Mishna from the preceding chapter, which deals with the distinctions among the laws of the guardians, because our Mishna, which continues that Mishna, brings a source from the verses of the Torah for the law stated in it.

And now the Gemara comes to complete the exposition of the passages concerning the guardians in the Torah, of the laws stated in the Mishna in the chapter “One Who Hires the Artisans.”

We learned there

[above, 93a]:

There are four guardians:

[a]

a gratuitous guardian,

[b]

and a borrower,

[c]

a paid guardian

[a paid guardian] [d]

and a renter.

And three differing laws were stated concerning them:

a.

A gratuitous guardian,

if he does not return the deposit,

takes an oath

concerning everything ,

whether he claims that the deposit was stolen, or lost, or destroyed by an accident—he is obligated to take an oath concerning it, and then he is exempt from paying the value of the deposit.

b.

And a borrower pays for everything ,

even if the object was destroyed by an accident.

c.

The paid guardian and the renter

have one law:

they take oaths concerning the broken, the captured, and the dead,

if they claim that the animal was broken, or captured, or died—that is, a claim of an accident—they take an oath concerning it and are exempt.

And they pay for loss and theft.

And the Gemara discusses it:

From where are these matters,

from where do we know these laws from the Torah?

For the Sages taught:

Three adjacent passages were stated in the Torah concerning the laws of the guardians, in the portion of Mishpatim. [Exodus 22:6–14]:

The first passage was stated concerning a gratuitous guardian,

and it is written in it that if the deposit was stolen, the guardian takes an oath and is exempt from paying .

The

second

passage was stated

concerning a paid guardian,

and it is written in it that if the deposited ox died, or was broken, or was captured, the guardian is obligated to take an oath. And if the ox was stolen, he is obligated to pay.

The

third

passage was stated

concerning a borrower,

and it is written in it that if the borrowed ox was broken or died, the borrower is obligated to pay, and if he also borrowed the owners, he is exempt from paying.

And now the words of the beraita must be examined:

Granted, it is clear that the

Granted, it is clear that the

third

passage speaks

of a borrower, since it is stated in it

explicitly: “

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

If a person borrows an animal from his fellow, and it is injured or dies, if its owner is not with him, he must certainly pay.”

But

as for what the beraita said, that the

first passage concerns a gratuitous guardian, and the

passage

second concerns a paid guardian,

from where does it derive this?

Perhaps I should reverse it!

Perhaps it is the opposite?!

And we answer:

It stands to reason that the

second

second

passage deals

with a paid guardian, since it is written in it that the guardian

since it says that the guardian

is liable for theft and loss,

in payments, whereas in the first passage it is written that the guardian is exempt through an oath when he claims that it was stolen. And it stands to reason that the stricter passage deals with a paid guardian, with whom it is more fitting to be stringent.

But this can be challenged:

On the contrary,

one can say that the

first

passage is stated

concerning a paid guardian, since it contains a stringency as well: although the guardian is exempt from paying if it was stolen, on the other hand, a new stringency is stated in it, that if the guardian swore falsely and witnesses came that he himself stole it,

it also contains a stringency: although the guardian is exempt from paying if the item was stolen, an additional stringency is stated there—that if the guardian took a false oath and witnesses came and testified that he himself stole it,

the guardian pays

the guardian

double payment for “one who makes a thief’s claim,”

whereas in the second passage it is written that he pays the principal, and he does not come to a double payment!

And we answer:

Even so,

the stringency stated in the second passage is greater than that stated in the first passage, since

the principal without an oath is preferable to double payment with an oath!

The principal that the guardian is obligated to pay, and from which he cannot exempt himself through an oath, is more stringent for the guardian than double payment, which is only a consequence of the oath that he swore falsely. Therefore the second passage should be established as concerning a paid guardian.

And there is proof for this:

Know that payment of the principal without the possibility of an oath is more stringent than double payment when he swears falsely,

for a borrower receives all the benefit,

for behold, a borrower has all the benefit,

since he performs his work with the object for free, and the lender has no benefit from this, and therefore it is fitting to be more stringent in his law than in that of a paid guardian,

and

even so, he

never pays anything but the principal,

and he does not come to double payment, nor did the Torah exempt him from paying the principal when he makes a claim of theft, so that he would pay double if he swore falsely.

And we challenge:

And

because

the borrower has all the benefit,

and therefore it is fitting to be more stringent with him than with a paid guardian,

but it requires food—

behold, the animal needs food, and the borrower is obligated to feed it, so it follows that the lender too benefits from the borrowing, since he is relieved of feeding it!

And we answer: There is a circumstance in which he has all the benefit, such as

when it stands,

[when the animal is located]

in the meadow and is nourished there, and he does not need to provide it with food. And the law of a borrower was stated even in this circumstance.

and eats there, so that he does not need to provide it with food. The law concerning a borrower applies even in such a case.

But it can still be challenged:

But it requires guarding—

behold, the animal needs guarding, and the borrower guards it, so it follows that the lender too benefits from the borrowing!

And we answer: There is a circumstance in which the borrower does not need to guard the animal, such as

in

a place where there is

a city watchman

[who guards the city], who guards all the animals. And since there is a borrower who has all the benefit, and there is no borrower who pays double payment, we can learn that double payment is not considered a stringency.

And if you wish, say:

we can prove even from one who borrows an animal, feeds it, and guards it, and

do not say

[you need not say]

“he has all the benefit”

in order to say that it is fitting to be more stringent with him than with a paid guardian,

but rather say, “he has most of the benefit” ,

since he does not pay a wage as is customary, and this is sufficient to say that it is fitting to be more stringent with him than with a paid guardian, for the guardian does not have most of the benefit, but the benefit of the guardian is equal to the benefit of the depositor.

And alternatively,

it may be said that all the benefit is the borrower's, and not merely most of the benefit, and there is no need to establish this as referring to one who borrows an animal in a marsh when there is a city watchman, but rather

to the borrowing of utensils,

which do not need to be fed and are guarded in his house for free.

We learned in the Mishna in the chapter “The hired worker”:

A paid bailee and a renter swear concerning the broken animal, the captured animal, and the dead animal, and they pay for the lost item and the stolen item.

And the Gemara discusses:

It is well that

what a paid bailee is liable to pay for theft is explicit in the Torah,

as it is written

in the second section, which is the section of a paid bailee: “

If the stolen item is indeed stolen from him, he shall pay its owner.”

But

what is the source that he is liable to pay for a

lost item?

And the Gemara brings a beraita:

as it was taught:

It is stated in the Torah, in the section of a paid bailee: “If

the stolen item is indeed stolen

from him, he shall pay its owner.”

I have only

that he is liable to pay for theft; for

a lost item, from where

is he liable?

The verse says: “

If the stolen item is indeed stolen from him, he shall pay its owner.” It is inferred from the repetition of the expression “is stolen,”

from him, he shall pay its owner.” The repetition of the wording “it shall be stolen,”

in any event,

to include a lost item.

And we challenge this:

This works for the one who says

that it may be said this way according to the tannai who holds:

we do not say that the Torah spoke in the language of human beings,

and wherever there is a repetition of language, such as “You shall surely grant him a gift” or “You shall surely lend to him” , we expound it to derive a halakha; here too, we have to expound “the stolen item is indeed stolen” to include liability for a lost item,

But for the one who says: We say that the Torah spoke in the language of human beings,

and the Torah did not write a doubled expression for the sake of an exposition,

what is there

to say? [What is there to say?] What is the source that according to this view a paid bailee is liable for a lost item?

And we answer: this view learns the liability for a lost item in the case of a paid bailee by reasoning, as

they say in the West

that one should learn a

kal va-chomer: Just as theft, which is close to an unavoidable accident,

for it is done by others , nevertheless a paid bailee

pays,

a lost item, which is close to negligence,

for it occurs on its own,

is it not all the more so?

And we challenge:

And the other one!

That tannai who expounded from the verse that a paid bailee is liable for a lost item—what does he need this for? In truth, it can be learned by a kal va-chomer!

And we answer: we have a principle:

a matter that comes by a kal va-chomer, the verse nevertheless took the trouble and wrote it,

a matter that can be learned by a kal va-chomer is sometimes written in the Torah.

We learned in the Mishna in the chapter “The hired worker”:

And the borrower pays for everything.

And the Gemara discusses:

It is well that

the fact that the borrower is liable for

the broken animal and the dead animal,

is explicit in the Torah,

as it is written: “

And when a man borrows from his fellow, and it is broken or dies

—its owner not being with it—he shall surely pay.”

But

what is the source that he is liable to pay for

a captured animal in the case of a borrower?

And if you say, let us learn it,

let us learn this

from the broken animal and the dead animal,

for the borrower is liable for these unavoidable accidents, and likewise he should be liable for the unavoidable accident of the captured animal.

There is room to reject this:

What is there in the broken animal and the dead animal,

for which the borrower is liable,

that it is an unavoidable accident that enters the mind,

it is an unavoidable accident that one anticipates, and he borrowed the cow on condition that he would be liable for this unavoidable accident, for otherwise, he would have had to stipulate that he would not be liable for the broken animal and the dead animal.

Can you say

the same

about a captured animal—

that it is an unavoidable accident that does not enter the mind!

It may be said that he did not stipulate concerning a captured animal because he did not consider this possibility, since it is uncommon.

But

we learn it as follows:

“Broken” and “dead” are stated with regard to a borrower,

as it is stated: “And when he borrows ... and it is broken or dies ... he shall surely pay.”

And “broken” and “dead” are stated with regard to a paid bailee,

as it is stated: “When a man gives to his fellow an animal,” and it is written there: “and it dies or is broken or captured ... he shall not pay.”

Just as there,

with regard to a paid bailee, the captured animal is written together

with it,

with the broken animal and the dead animal, and they have one law,

so too here,

with regard to a borrower—

the captured animal is with it,

with the broken animal and the dead animal, and they have one law.

And we reject this:

There is room to refute: What is there in a paid bailee,

that the Torah did not distinguish in his case between a dead animal and a captured animal,

that

his law

is exemption,

and the Torah exempted him in every unavoidable accident .

Can you say in the case of a borrower,

where they seek to equate the law of a captured animal with the law of a dead animal,

that

they judge him

to liability!

It may be said that the Torah made a borrower liable only for the unavoidable accident of death that enters his mind, but not for the unavoidable accident of a captured animal that does not enter his mind.

But

we learn it

according to Rabbi Natan.

As it was taught: Rabbi Natan says:

It is written concerning a borrower: “and it is broken or dies,” instead of “and it is broken and dies.” “

Or”

comes

to include a captured animal,

for which he is liable.

And we are astonished:

This “

or”

is needed to divide,

for this “or” is needed to separate “broken” from “dead”

! For it might enter your mind to say: until it is broken and dies, he is not liable,

and if the animal is broken, he is not liable to pay unless it dies.

It teaches us

the word “or,” that for a broken animal alone he is liable.

This works [there is no difficulty]

there is no difficulty]

for Rabbi Yonatan,

who holds that everywhere there is no need for the word “or” in order to divide, and even if it is written “and it is broken and dies,” the meaning is: either it is broken or it dies. According to his view, one can expound from “or” to include a captured animal.

But for Rabbi Yashya,

who disputes him,

what is there

to say!

And the Gemara brings their dispute, Rabbi Yashya and Rabbi Yonatan:

As it was taught:

It is written in the Torah [Leviticus 20:9]: “

A man who curses his father and his mother

shall surely be put to death.”

I have only

the liability of death

but

for one who curses

his father and his mother

at one time . If he cursed

his father without his mother,

or

his mother without his father, from where

is it learned that he is liable for death?

The verse says,

for this reason it is stated later in the verse: “

His father and his mother he cursed.”

The curse is attached to his father at the beginning of the verse, and the curse is attached to his mother at the end of the verse, as though the verse were saying: “

His father he cursed”

separately, “

His mother he cursed”

separately—

the words of Rabbi Yashya.

Rabbi Yonatan says:

Everywhere that the Torah mentions two things, and there is between them the conjunction letter vav, such as “his father and his mother” ,

it implies both together,