Bava Metzia 94b (צד:) — the Talmud in English

However,

if

he borrowed the cow, and afterward borrowed its owner or hired him, and

afterward

it died,

the cow—the borrower is liable to pay, because at the time he borrowed the cow, the lender had not yet been hired or borrowed by the borrower,

as it is stated: “

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

Gemara:

The Mishna teaches the exemption of “its owner is with it” in two ways: first, one who borrows the cow and borrows its owner together with it [the first clause]; and second, one who borrows the owner and afterward borrows the cow [the final clause].

And the Gemara discusses this:

From the fact that it teaches in the final clause “

and afterward he borrowed the cow,” it follows

that you learn

that the first clause, which teaches

“one who borrows the cow and borrows its owner

together with it,”

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

literally together,

at the same time.

If so, this is difficult: “

together with it”—

at precisely the same time—

how can you find such a case?!

How is such a possibility conceivable? After all,

the cow

becomes borrowed by the borrower only

through pulling

it to himself; before he pulls it and performs an act of acquisition, he has no right to borrow it.

And

if the

owners

of the cow become borrowed or hired by him only

through a statement,

when they state and agree to be borrowed or hired, since there is no place for an act of acquisition with regard to free people?!

And we answer:

Alternatively,

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

where the cow is located

in the borrower’s courtyard,

before he borrows it,

so that pulling is not required,

since pulling is then unnecessary; rather, it is acquired through kinyan hatzer, acquisition through one’s domain, to be borrowed by him at the moment the lender agrees to lend it and to be borrowed by him. It follows that the borrowing of the owners and the borrowing of the cow occurred at precisely the same time, since in the same statement he said: “I and my cow are borrowed to you.”

Alternatively,

it is possible that he borrowed the cow through the acquisition of pulling, and the owners likewise became borrowed at that same moment, and this is the case

where he said to him

the borrower said to the lender:

“You yourself,”

that is, you personally,

shall not be borrowed

by me

until the time I pull your cow, by me. It follows that the borrowing of the cow and the borrowing of the owners occurred at precisely the same time.

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 cites 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 Torah’s verses for the law stated in it.

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

We learned there

above, 93a]:

There are four guardians:

(a)

an unpaid guardian;

(b)

a borrower;

(c)

a wage-bearer

[a paid guardian]; (d)

a renter.

And three distinct laws were stated with regard to them:

a.

An unpaid guardian,

if he does not return the deposit,

takes an oath

concerning everything ,

whether he claims that the deposit was stolen, lost, or destroyed by an unavoidable accident—he must swear that this is what happened, and then he is exempt from paying the value of the deposit.

b.

A borrower pays for everything ,

even if the object was destroyed by an unavoidable accident.

c.

A wage-bearer and a renter,

their law is the same:

they take an oath concerning an animal that was broken, captured, or that died,

if they claim that the animal was broken, captured, or died—that is, if they claim an unavoidable accident—they swear concerning it and are exempt.

And they pay for loss and theft.

And the Gemara asks:

From where are these matters

derived? From where do we know these laws from the Torah?

For the Sages taught:

Three consecutive passages are stated in the Torah concerning the laws of guardians, in the section of Mishpatim [Exodus 22:6–14]:

The first passage was stated with regard to an unpaid guardian,

and it is written in it that if the deposit is stolen, the guardian swears and is exempt from paying.

The

second

passage was stated

with regard to a paid guardian,

and it is written in it that if the deposited ox dies, or is broken or captured, the guardian must swear. But if the ox is stolen, he must pay.

The

third

passage was stated

with regard to a borrower,

and it is written in it that if the borrowed ox is broken or dies, the borrower must pay, but if he also borrowed the owner, he is exempt from paying.

The matter of the beraita can now be analyzed:

Granted, it is clear that the

Granted, it is clear that the

third

passage speaks

of a borrower, since it states

explicitly: “

And if a man borrows from his fellow, and it is broken or dies, its owner is not with it; 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 says—that the

first passage concerns an unpaid guardian, and the

second passage

concerns a paid guardian—from where does it derive this?

from where does it derive this?

Perhaps I should reverse them!

Perhaps it is the opposite?!

And we answer:

It stands to reason that the

second

second

passage deals

with a paid guardian, since it states that the guardian

since it says that the guardian

is liable for theft and loss,

paying for them, whereas in the first passage it is written that the guardian is exempt upon taking an oath when he claims that the item was stolen. It is logical that the more stringent passage concerns a paid guardian, with regard to whom it is appropriate to be more stringent.

But this can be challenged:

On the contrary,

one could say that the

first

passage is stated

with regard to a paid guardian, since

it contains an additional stringency: although the guardian is exempt from paying if the item was stolen, on the other hand, it states that if the guardian swore falsely, and witnesses testified that he himself stole it,

the guardian pays

the

double payment for “one who pleads the claim of a thief,”

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

And we answer:

Even so,

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

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

The principal that the guardian is liable to pay, with no possibility of exempting himself through an oath, is a greater burden for the guardian than double payment, which results only from the oath that he swore falsely. Therefore, the second passage should be established as referring to a paid guardian.

There is a proof for this:

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

for a borrower receives all the benefit,

For, a borrower enjoys all the benefit,

since he uses the object for his work without payment, while the lender derives no benefit from this; therefore, it is appropriate to be more stringent with regard to his law than with regard to a paid guardian.

And

nevertheless, he

always pays only the principal,

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

And we challenge this:

But

since

a borrower enjoys all the benefit,

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

but does it not require food? The animal requires food, and the borrower is responsible for feeding it, so it follows that the lender also derives benefit from the borrowing, since he is spared the expense of feeding it!

And we answer: There is a case in which all the benefit is his, for example,

And we answer: There is a case in which the borrower receives all the benefit, for example,

where

the animal is standing

in a meadow and feeds there, so that it does not require food to be provided. The law of a borrower is stated even in such a case.

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 this can still be challenged:

But does it not require guarding? The animal requires guarding, and the borrower guards it, so it follows that the lender also benefits from the borrowing!

And we answer: There is a case in which the borrower need not guard the animal, for example,

And we answer: There is a case in which the borrower does not need to guard the animal, for example,

in

a place where there is

a city watchman,

[a communal guard] who guards all the animals. Since there is a borrower who enjoys all the benefit, and there is no borrower who pays double, we can learn that double payment is not considered a greater stringency.

And alternatively,

we can prove the matter even from a borrower of an animal who feeds it and guards it, and

do not say

[you need not say]

“all the benefit is his”

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

rather, say that most of the benefit is his,

since he does not pay the usual fee. That is sufficient to establish that it is appropriate to be more stringent with him than with a paid guardian, for the guardian does not receive most of the benefit; rather, the benefit of the guardian is equal to the benefit of the depositor.

Alternatively,

it may be said that the borrower enjoys all the benefit, 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 meadow, when there is a watchman in the city. Rather, it refers to

borrowing utensils,

which do not need to be fed and are kept in his house free of charge.

We learned in the Mishna in the chapter “The Craftsmen”:

A paid bailee and a renter swear concerning an animal that was broken, captured, or that died, and they pay for loss and theft.

The Gemara discusses this:

Granted,

the fact that a paid bailee is obligated to pay for theft is explicit in the Torah,

as it is written

in the second passage, which is the passage concerning a paid bailee: “

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

But

the fact that he is obligated to pay for

loss—from where do we derive it?

The Gemara brings a beraita:

as it was taught:

It is written in the Torah, in the passage concerning a paid bailee: “

If it is indeed stolen

from him, he shall pay its owner.”

I have derived only theft,

for which he is obligated to pay; for

loss, from where

do I derive that he is obligated?

The verse states: “

If it is indeed stolen

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

in any event,

serves to include loss.

And we raise an objection:

This works well according to the one who says

that this can be said according to the tanna who holds:

We do not say that the Torah speaks in the language of human beings,

and wherever there is a repetition of wording, such as “You shall surely furnish him” or “You shall surely lend him” , we expound it to derive a halakha; here, too, we can expound “it is stolen indeed” to include liability for loss,

But according to the one who says that the Torah does speak in the language of human beings,

and the Torah did not write a repeated expression for the purpose of an exposition,

what is there

to say? [What can be said?] From where does this view derive that a paid bailee is liable for loss?

And we answer: This view derives the liability for loss of a paid bailee by reasoning, as

they say in the West

that one can derive it by

a kal va-chomer: If theft, which is close to an unavoidable accident,

since it is carried out by others , nevertheless a paid bailee

pays,

then loss, which is close to negligence,

since it occurs on its own,

all the more so?

And we object:

But what of the other view!

That same tanna who derived from the verse that a paid bailee is liable for loss—why does he need this derivation? It can in fact be learned by means of a kal va-chomer!

And we answer: We have a principle:

When a matter can be derived by means of a kal va-chomer, the verse nevertheless takes the trouble to write it,

meaning that something that can be learned by means of a kal va-chomer is sometimes nevertheless written explicitly in the Torah.

We learned in the Mishna in the chapter “The Craftsmen”:

And a borrower pays for everything.

The Gemara discusses this:

Granted,

the fact that a borrower is liable for

an animal that was broken or died

is explicit in the Torah,

as it is written: “

If a man borrows an animal from his fellow, and it is broken or dies,”

its owner not being with him, he shall surely pay.

But

the fact that he is obligated to pay for

an animal that was captured while in the borrower’s possession—from where do we derive it?

And if you say, let us derive it,

let us learn it

from an animal that was broken or died,

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

This can be rejected:

What is distinctive about an animal that was broken or died,

for which a borrower is liable?

It is an accident that one takes into account,

an accident that is foreseeable; he borrowed the cow on the condition that he would be liable for this accident, for otherwise he should have stipulated that he would not be liable for an animal that was broken or died.

Can you say

the same

with regard to an animal that was captured—

for it is an accident that one does not take into account!

It can be said that he did not stipulate concerning an animal being captured because he did not consider this possibility, as it is uncommon.

Rather,

we derive it as follows:

“An animal that was broken or died” is stated with regard to a borrower,

as it is stated: “If a man borrows ... and it is broken or dies ... he shall surely pay.”

And “an animal that was broken or died” is stated with regard to a paid bailee,

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

Just as there,

with regard to a paid bailee, an animal that was captured is written together

with

an animal that was broken or died, and the same law applies to them,

so too here,

with regard to a borrower—

an animal that was captured is with it,

together with an animal that was broken or died, and the same law applies to them.

And we reject this:

There is room to refute this: What is distinctive about a paid bailee,

for whom the Torah did not distinguish between an animal that died and one that was captured?

It is that

his law

is to be exempt,

and the Torah exempted him in every case of an unavoidable accident .

Can you say the same with regard to a borrower,

where they seek to equate the law of an animal that was captured with the law of one that died?

It is that

he is judged

liable!

It can be said that the Torah made a borrower liable only for the accident of death, which he takes into account, but not for the accident of an animal being captured, which he does not take into account.

Rather,

we derive it

in accordance with Rabbi Natan.

As it was taught: Rabbi Natan says:

It is written with regard to a borrower, “and it is broken or dies,” rather than “and it is broken and dies.” “

Or”

comes

to include an animal that was captured,

for which he is liable.

And we ask:

This “

or”

is needed to distinguish,

as this “or” is needed to separate “broken” from “dies”

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

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

It teaches us

the word “or”: for an animal that was broken alone, he is liable.

This works well [there is no difficulty]

there is no difficulty]

according to Rabbi Yonatan,

who holds that everywhere there is no need for the word “or” to distinguish; even if it is written “and it is broken and dies,” the meaning is “or it is broken or dies.” According to his view, one can expound “or” to include an animal that was captured.

But according to Rabbi Yashya,

who disagrees with him,

what is there

to say!

The Gemara brings the dispute between 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 derived

the liability for death

only

for one who curses

his father and his mother

at one time . If he cursed

his father but not his mother,

or

his mother but not his father, from where

do we derive that he is liable to death?

The verse states,

as it is said later in the verse: “

He cursed his father and his mother.”

The curse is juxtaposed to his father at the beginning of the verse, and the curse is juxtaposed to his mother at the end of the verse, as though the verse says: “

He cursed his father”

separately, “

He cursed his mother”

separately.

These are the words of Rabbi Yashya.

Rabbi Yonatan says:

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

it indicates both together,