Bava Metzia 95a — the Talmud in English

And it implies

also each

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until the verse specifies them together,

as it is written concerning kilayim: “You shall not plow with an ox and a donkey together” [Deuteronomy 22:10]. For had it been written, “You shall not plow with an ox and a donkey,” it would have implied that it is forbidden to plow with an ox or with a donkey. The Torah wrote “together” to make known to us that only kilayim is prohibited.

It follows that according to Rabbi Yonatan, the word “or” is superfluous for exposition everywhere. And concerning a borrower, about whom it is written, “and it is broken or dies,” one can expound “or” to include a captive animal, as Rabbi Natan expounded. But according to Rabbi Yoshiyah, it is impossible to expound the word “or,” since it is needed for division. The question nevertheless remains: From where is it known that a borrower is liable for a captive animal?

The Gemara answers:

Even if you say it is Rabbi Yoshiyah,

even according to Rabbi Yoshiyah it is possible to expound “or” to include a captive animal. For

division is not needed here,

in this place “or” is not needed in order to divide and say that he is liable for a broken animal alone.

And we explain it:

What is the reason?

It is a logical argument: What difference is there to me whether he killed it all, and what difference is there to me whether he killed half of it?

What difference is there between its dying entirely and its dying partially, its limbs having been broken? If he is liable when it dies, he should also be liable when it is broken! And since logic indicates that he should be liable either for the broken animal or for the dead animal, we must interpret the Torah in this manner, even if it had been written, “and it is broken and dies”; the word “or” is superfluous even according to Rabbi Yoshiyah.

Now the Gemara returns to the Mishna in the chapter “The hired laborers,” where we learned there: A borrower is liable for everything. This includes theft and loss. And the Gemara discusses what the source of this is:

Theft and loss in the case of a borrower

for which he is liable,

from where do we know it?

And if you would say

and if you say,

let us derive it from a broken animal

and from a dead animal,

for the Torah explicitly writes that the borrower is liable for them. And if he is liable for accidents, all the more so is he liable for theft and loss.

And we reject this:

What is there concerning a broken animal and a dead animal

that provides a reason to impose liability for them more, from this aspect:

it is impossible

for the owner

to trouble himself and bring it,

to trouble himself and bring it.

Can you say this concerning theft and loss, where it is possible

for him

to trouble himself and bring it!

And he can search for the theft or the lost item, perhaps he will find it.

Rather

we derive it

as in that which was taught:

It is stated concerning a borrower, “and it is broken or dies.”

I have only

I do not know

a broken animal and a dead animal

for which he is liable;

theft and loss,

from where?

You have said

it may be said:

It is a kal va-chomer

:

And just as a paid guardian, who is exempt for a broken animal and a dead animal,

nevertheless

is liable for theft and loss,

is it not logical that a borrower, who is liable for a broken animal and a dead animal, is liable for theft and loss?

And this is a kal va-chomer against which there is no answer

a refutation.

And the Gemara discusses:

What is meant by “against which there is no answer”?

What could have been answered, such that it was necessary to say that there is no answer against it?

And if you would say, there is a possible refutation: What is there concerning a paid guardian

that is more stringent than a borrower in this respect,

for he pays double payment when he claims the claim of an armed robber!

The Torah writes in the section of an unpaid guardian that when the guardian claims that the item was stolen, he must swear concerning this; and if witnesses came and testified that he swore falsely, and in truth the guardian stole the item, the guardian must pay double payment to the depositor.

The Mishna in the chapter “One who robs wood” [Bava Kamma 108b] says that this law applies only when he claims the claim of a thief concerning a deposit, but if he made another claim, such as a claim of loss, and it was found that he swore falsely, he is not liable for double payment.

And the Gemara in the chapter “The many” [Bava Kamma 63b] expounds this law from the verses.

Accordingly, if the guardian claimed that the deposit had been robbed from him, and it became clear that he had sworn falsely concerning this, he is exempt from double payment.

The amoraim disagreed [Bava Kamma 57a] concerning the law of an armed robber: Is he considered like a thief, who is liable for double payment for his theft, and likewise a guardian who claims the claim of an armed robber is liable for double payment like one who claims the claim of a thief; or is he considered like a robber, and there is no double payment in his case?

An armed robber is an intermediate matter between a thief and a robber. A thief steals when the owner of the item does not see him. A robber robs in a manner in which he is not afraid that people will see him. Whereas an armed robber takes from the owners by force, but he fears people and does not rob publicly.

As a result of this disagreement, there is a disagreement as to whether we find that a paid guardian pays double payment. For if a paid guardian claims that the animal was stolen, he must pay the principal and does not swear, and there is no double payment in his case. However, if he claims that it was stolen under duress by an armed robber, he is exempt from payment and must swear; then, if the law of an armed robber is like that of a thief, it follows that the paid guardian swore falsely concerning a claim of theft, and he is therefore liable to pay double payment.

However, a borrower will never become liable for double payment according to all opinions, for even if he claims the claim of an armed robber, he must pay, since a borrower is liable for accidents.

And from now we find a stringency in a paid guardian that is not found in a borrower: a paid guardian pays double payment when he claims the claim of an armed robber, whereas this is not so with a borrower.

If so, it is possible to refute the kal va-chomer of the beraita and say that one cannot learn that a borrower is liable for theft and loss from a paid guardian, for we find some stringency in a paid guardian that is not found in a borrower. For this reason, the beraita said that the kal va-chomer cannot be refuted on this basis.

Now we must understand why in truth the kal va-chomer of the beraita cannot be refuted on this basis.

And the Gemara has two approaches:

a.

Even so, the principal of a borrower is superior,

the fact that a paid guardian pays double payment is not to be considered a stringency, because the obligation of double payment arises from the leniency that he is exempt from the principal, whereas the law of a borrower is more stringent, since he is liable for the principal in the case of an accident, and consequently he does not come to the category of double payment.

b.

Alternatively, if you wish, he holds

the tanna of the beraita:

an armed robber is a robber,

and there is no double payment for a paid guardian who claims the claim of an armed robber, as was explained.

Now the Gemara comes to discuss the exemption of “his owner is with him” mentioned in our Mishna. It is known to the Gemara that this law applies not only when the animal dies, but also to theft and loss, and not only to a borrower but also to a paid guardian. And the Gemara discusses the source of these matters.

The Gemara asks:

We have found liability

we have learned by a kal va-chomer that a borrower is liable for theft and loss.

For exemption

of “his owner is with him” in theft and loss,

from where do we know it?

And if you would say, let us derive it from a broken animal and a dead animal,

for the Torah exempted him in their case when “his owner is with him.”

What is there concerning a broken animal and a dead animal, since it is an accident,

and one should be more lenient in the case of an accident and exempt him; perhaps in the more stringent cases of theft and loss he is liable even when “his owner is with him.”

Rather, derive

the matter

from a paid guardian,

just as a paid guardian is exempt from theft and loss if his owner is with him, so a borrower is exempt from theft and loss if his owner is with him.

And the paid guardian himself

himself, who is exempt from theft and loss when his owner is with him,

from where do we know it?

We derive the liability of a paid guardian from the liability of a borrower,

we learn the liability of a paid guardian—which is for theft and loss, and with “his owner is with him” he is exempt—from the liability of a borrower—which is even for accidents, and nevertheless the Torah exempted him there when “his owner is with him.”

And the Gemara discusses:

By what [method] did he derive it?

By which of the methods through which the Torah is expounded do we learn a paid guardian from a borrower?

If by a matter that we have found,

if he learns it through a binyan av, comparing the law of a paid guardian to the law of a borrower by reasoning alone,

there is a possible refutation, as we refuted.

There is a basis to refute it as we refuted previously: We wanted to learn concerning the borrower himself that he is exempt for theft and loss when his owner is with him, just as he is exempt for accidents, and we said that this cannot be learned

since it is an accident!

And one should be more lenient in its case than in theft and loss. And likewise, for the same reason, one cannot learn that a paid guardian is exempt from theft and loss when his owner is with him from a borrower who is exempt for accidents, since one should be more stringent in the case of theft and loss.

Rather, the verse says,

at the beginning of the section of a borrower,

“And if he borrows,”

with a vav of conjunction,

the vav adds to the preceding matter, and it teaches the upper one—

the paid guardian written earlier—

from the lower one—

the borrower.

The Gemara’s conclusion is that we learn that a paid guardian is exempt from theft and loss when the owners are present by an analogy from a borrower, who is exempt from accidents when the owners are present.

Now the Gemara returns to the borrower’s exemption for theft and loss, and the Gemara raises an objection:

And still

nevertheless,

a borrower

who is exempt from theft and loss

from a paid guardian

who is exempt from theft and loss when his owner is with him,

has not been derived

it cannot be learned, because

there is a basis to refute it: What is there concerning a paid guardian,

who is exempt for a broken animal and a dead animal

even when his owner is not with him,

can you say this concerning a borrower, who is liable for a broken animal and a dead animal!

And since the law of a borrower is more stringent than that of a paid guardian, one cannot learn a leniency for a borrower from a paid guardian.

And we answer:

Rather, from where do we know the liability for theft and loss in the case of a borrower?

For he derived it from a paid guardian

for all the liability of a borrower for theft and loss is learned by a kal va-chomer from a paid guardian. And since this is so,

it is sufficient for that which comes by inference to be like the subject from which it is derived.

Just as the theft and loss of a paid guardian, when the owners are present, is exempt, so too the theft and loss of a borrower, when the owners are present, is exempt.

We have a general principle among the methods through which the Torah is expounded: If we learned a certain stringency in one place by a kal va-chomer from another place, we may not impose that stringency in the place derived more than in the place from which it is learned. And although the place derived is more stringent than the place from which it is learned in other matters, in this matter it is sufficient for the place derived to be as stringent as the place from which it is learned, and not more.

And so it is in our case: We learned that a borrower is liable for theft and loss by a kal va-chomer from a paid guardian; therefore, a borrower may not be made liable for theft and loss even when his owner is with him more than a paid guardian.

And we challenge this:

This works well according to the one who holds that there is the principle of “it is sufficient”

it is possible to answer this according to the one who holds that we say “it is sufficient”; and this is the halakha.

But according to the one who does not hold that there is the principle of “it is sufficient,”

according to Rabbi Tarfon [Bava Kamma, page 25], who disagrees and does not hold this principle at all,

what can be said?

And we answer:

Rather, the verse says,

“And if he borrows,”

the vav adds to the preceding matter, and it teaches the upper one from the lower one,

just as we learned above that a paid guardian is exempt from theft when the owners are present,

and the lower one from the upper one,

and likewise one learns a borrower from a paid guardian.

According to the conclusion of the Gemara, the borrower is learned from the paid bailee by juxtaposition with regard to two matters:

a. The borrower is liable for theft and loss by juxtaposition, and there is no need for a kal va-chomer from the paid bailee.

b. The borrower is exempt from theft and loss when the owners are with him, by juxtaposition with the paid bailee. And one cannot refute and say that a borrower is more stringent than a paid bailee and that an exemption cannot be learned from it, since one does not refute a juxtaposition.

It was stated [

a dispute was stated in the beit-midrash concerning

negligence when the owners are with him, [

a bailee who was negligent in his safeguarding, while the owners of the deposit were engaged in work for the bailee].

Rav Aḥa and Ravina disagree concerning it.

One said: He is liable, since we have not found an exemption of owners in a case of negligence.

because we do not find that the exemption when the owner is working for the guardian applies to negligence.

And one said: He is exempt , since it can be learned from the verses that even one who is negligent is exempt when the owners are with him , as will be explained.

because the verses indicate that even one who was negligent is exempt when the owner is working for him, as will be explained.

And the Gemara explains the dispute. At first the Gemara explains why an unpaid bailee is liable for negligence according to the one who obligates; afterward the Gemara explains why a paid bailee and a borrower are liable according to his opinion; and afterward the Gemara explains the opinion of the one who exempts.

The one who says that he is liable holds: A verse is expounded with regard to what precedes it, [

the law of “his owner is with him,” which is written concerning a borrower, is learned for the paid bailee written before it, by means of the conjunctive letter vav, which juxtaposes them].

But not with regard to what precedes what precedes it, [

and an unpaid bailee—the one written before the section of the paid bailee, which is adjacent to the borrower—is not learned by juxtaposition, since there is no letter vav connecting the sections of the unpaid bailee and the paid bailee].

Therefore, “If his owner is with him” is not written concerning an unpaid bailee [

with regard to liability for negligence, and from where do we know to exempt him? And an unpaid bailee is liable for negligence, as it is stated in his section: “The master of the house shall approach [for the oath] ... if he did not send his hand ... concerning every matter of negligence.” From the fact that the unpaid bailee must swear that he was not negligent, it follows that he is liable for negligence].

And negligence, too, is not written concerning a paid bailee and a borrower, [

it is not written concerning a paid bailee and a hirer that they are liable for negligence].

Therefore, concerning a paid bailee and a borrower, for liability

for negligence,

it comes by a kal va-chomer from an unpaid bailee: [

And just as an unpaid bailee, who is exempt from theft, is liable for negligence, is it not the case that a paid bailee and a borrower, who are liable for theft, should be liable for negligence!?]

But with regard to the owners, for exemption

from negligence,

even concerning a bailee

a paid bailee and a borrower, [

in whom the law of the exemption of owners is stated, this was not said concerning negligence].

What is the reason?

When “If his owner is with him, he shall not pay” is written, it is concerning a borrower and a paid bailee, [

only]

it is written only concerning those liabilities that are written explicitly in them [

when “If his owner is with him, he shall not pay” is written concerning a borrower and a paid bailee, this is said only concerning the liabilities that are written in them explicitly], namely theft and loss and unavoidable circumstances, but not concerning negligence, for which they are liable by a kal va-chomer from an unpaid bailee.

And whereas

the one who says that he is exempt holds: A verse is expounded with regard to what precedes it and with regard to what precedes what precedes it, [

and although there is no vav that juxtaposes the sections of the unpaid bailee and the paid bailee, we have to expound the adjacency of the sections in order to learn one from the other],

and when “If his owner is with him” is written, it is also written concerning an unpaid bailee

and concerning the negligence stated in its case. And the paid bailee and the borrower are learned from it.

And the Gemara raises an objection against the one who exempts, from our Mishna:

We learned: If one borrows the cow and borrows its owners with it,

or

if one borrows the cow and hires its owners with it, [or] borrows its owners or hires them, and afterward borrows the cow, and it dies, he is exempt.

And the Gemara infers: In the Mishna, only a borrower is mentioned with regard to the exemption of owners,

whereas an unpaid bailee is not taught, [

who would be exempt when he was negligent while the owners were with him; and it follows that he is liable for negligence even when the owners are with him]!

And the Gemara rejects this:

And according to your reasoning [

according to your method, that if he were exempt also for negligence when the owners are with him, the Mishna should have said this also concerning an unpaid bailee, raise an objection],

Is a paid bailee taught!?

For a paid bailee is exempt when the owners are with him according to all opinions!