Bava Metzia 95a (צה.) — the Talmud in English

And it indicates

each

one separately,

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]. Had it been written, “You shall not plow with an ox and a donkey,” it would have indicated that it is forbidden to plow with either an ox or a donkey. The Torah therefore wrote “together,” to teach us that only kilayim is prohibited.

It follows that according to Rabbi Yonatan, the word “or” is superfluous for exposition everywhere. And with regard to a borrower, concerning whom it is written, “and it is broken or dies,” one may expound the word “or” to include an animal taken captive, as Rabbi Natan expounded it. But according to Rabbi Yoshiyya, the word “or” cannot be expounded, since it is needed to indicate division. The question nevertheless remains: From where do we know that a borrower is liable for an animal taken captive?

The Gemara answers:

Even if you say that it is the opinion of Rabbi Yoshiyya,

even according to Rabbi Yoshiyya, one can expound “or” to include an animal taken captive. For

division is not needed here,

in this case “or” is not needed to indicate division and to say that he is liable for a broken animal alone.

And we explain it:

What is the reason?

It is a logical inference: What difference is there to me whether he killed all of it or whether he killed half of it? [

what difference is there between its dying entirely and its dying partially, when some of its limbs were broken? If he is liable when it dies, he should also be liable when it is broken] Therefore, 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 interpret the Torah accordingly, even if it had been written, “and it is broken and dies”; the word “or” is superfluous even according to Rabbi Yoshiyya.

The Gemara now returns to the Mishna in the chapter concerning hired laborers, where we learned: A borrower is liable for everything. This includes theft and loss. The Gemara discusses the source of this law:

The liability of a borrower for theft and loss,

for which he is liable,

from where do we derive it?

And if you would say, [

and if you were to say]

let us derive it from a broken animal

and a dead animal,

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

The Gemara rejects this:

What is notable about a broken animal and a dead animal

that provides a rationale for imposing greater liability for them?

It is impossible

for the owner

to take the trouble and bring them, [

to take the trouble to find and bring them].

Can you say the same with regard to theft and loss, for which it is possible

for him

to take the trouble and bring them!

He can search for the stolen or lost item; perhaps he will find it.

Rather,

we derive it

as in the following teaching:

It is stated with regard to a borrower: “And it is broken or dies.”

I have derived [

I do not know]

only a broken animal and a dead animal,

for which he is liable;

theft and loss,

from where do I derive them?

You can say [

it may be said]

it is a kal va-chomer:

it is so.

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

nevertheless

is liable for theft and loss,

is it not all the more so 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 that cannot be refuted [

by a pirka].

The Gemara analyzes this:

What do you mean, “that cannot be refuted”?

What could have been said in response, that it was necessary to say that it cannot be refuted?

And if you would say that there is a basis to refute it: What is notable about a paid bailee

that he is more stringently treated than a borrower in this respect?

He pays double payment when he claims that an armed robber took the item!

The Torah states in the section concerning an unpaid bailee that when the bailee claims that the item was stolen, he must take an oath to that effect. If witnesses then testify that he swore falsely and that in fact the bailee himself stole the item, the bailee must pay double payment to the one who deposited it.

The Mishna in the chapter “One Who Robs Wood” [Bava Kamma 108b] states that this law applies only when he claims that the deposit was stolen. But if he makes another claim, such as a claim that it was lost, and it turns out that he swore falsely, he is not liable for double payment.

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

Therefore, if the bailee claims that the deposit was taken from him by robbery, and it becomes clear that he swore falsely concerning this, he is exempt from double payment.

The amoraim disagree [Bava Kamma 57a] with regard to the law of an armed robber. Is he considered a thief, who is liable to pay double payment for his theft, and likewise a bailee who claims that an armed robber took the item is liable to pay double payment, like one who makes a claim of theft? Or is he considered a robber, in which case there is no double payment?

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

As a result of this disagreement, there is a dispute as to whether we find that a paid bailee pays double payment. For if a paid bailee claims that the animal was stolen, he must pay the principal and does not take an oath, and there is no double payment. However, if he claims that it was taken under duress by an armed robber, he is exempt from payment and must take an oath. Then, if the law of an armed robber is that he is considered a thief, it follows that the paid bailee swore falsely concerning a claim of theft, and he is therefore liable to pay double payment.

However, a borrower will never be liable for double payment according to any opinion, since even if he makes a claim that an armed robber took the item, he must pay, as a borrower is liable for accidents.

Thus, we find a stringency with regard to a paid bailee that does not apply to a borrower: A paid bailee pays double payment when he claims that an armed robber took the item, whereas this is not so with regard to a borrower.

Accordingly, one could refute the kal va-chomer of the beraita and say that we cannot derive that a borrower is liable for theft and loss from a paid bailee, since we find a certain stringency with regard to a paid bailee that does not apply to a borrower. Therefore, the beraita states that the kal va-chomer cannot be refuted on this basis.

We must now understand why, in fact, the kal va-chomer of the beraita cannot be refuted on this basis.

The Gemara offers two approaches:

a.

Even so, the principal liability of a borrower is superior:

The fact that a paid bailee pays double payment should not be considered a stringency, because the liability for double payment arises from the leniency that he is exempt from paying the principal. The law of a borrower is more stringent, as he must pay the principal even for an accident, and consequently he never reaches the point of double payment.

b.

Alternatively, you may say that he holds

the tanna of the beraita

that an armed robber is a robber,

and there is no double payment when a paid bailee claims that an armed robber took the item, as explained.

The Gemara now discusses the exemption of “when his owner is with him,” mentioned in our Mishna. The Gemara knows that this law applies not only when the animal dies, but also in cases of theft and loss, and not only to a borrower but also to a paid bailee. The Gemara discusses the source of these laws.

The Gemara asks:

We have found the source for liability

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

For exemption of “when his owner is with him” in a case of

theft and loss,

from where do we derive it?

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

for in those cases the Torah exempts him when “his owner is with him.”

What is notable about a broken animal and a dead animal? They are accidents,

and there is greater reason to be lenient and exempt in the case of an accident; perhaps in the more serious cases of theft and loss he is liable even when “his owner is with him.”

Rather, derive it

let us learn this law

from a paid bailee,

just as a paid bailee is exempt from theft and loss when his owner is with him, so too a borrower is exempt from theft and loss when his owner is with him.

And as for the paid bailee himself [

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

from where do we derive it?

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

we learn the liability of a paid bailee—which applies to theft and loss, while he is exempt when his owner is with him—from the liability of a borrower—which applies even to accidents, and nevertheless the Torah exempts him there when his owner is with him.

The Gemara analyzes this:

By what method did he derive it?

By which of the hermeneutical principles through which the Torah is expounded do we learn the law of a paid bailee from that of a borrower?

If it is by means of a binyan av,

if the law of a paid bailee is compared to that of a borrower on the basis of logical reasoning alone,

there is a basis to refute it, as we refuted it earlier.

It can be refuted as we previously refuted the attempt to derive that a borrower himself 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 derived

because it is an accident!

There is greater reason to be lenient with regard to an accident than with regard to theft and loss. For the same reason, one cannot derive that a paid bailee is exempt for theft and loss when his owner is with him from the fact that a borrower is exempt for accidents, since theft and loss should be treated more stringently.

Rather, the verse says,

at the beginning of the section concerning a borrower:

“And if he borrows,”

with the conjunctive letter vav.

The vav adds to the preceding matter, and the upper passage is learned from

the paid bailee, which is written earlier,

from the lower passage

the borrower.

The conclusion of the Gemara is that we learn that a paid bailee is exempt from theft and loss when the owners are with him by means of a juxtaposition with a borrower, who is exempt from accidents when the owners are with him.

The Gemara now returns to the exemption of a borrower for theft and loss, and challenges this:

But still [

and nevertheless]

a borrower,

who is exempt from theft and loss,

from a paid bailee,

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

cannot be learned [

cannot be derived], because

there is a basis to refute it: What is notable about a paid bailee,

who is exempt from a broken animal and a dead animal

even when his owner is not with him?

Can you say the same with regard to a borrower, who is liable for a broken animal and a dead animal?

Since the law of a borrower is more stringent than that of a paid bailee, one cannot derive a leniency for a borrower from a paid bailee.

The Gemara answers:

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

For he derives it from a paid bailee.

All of the borrower’s liability for theft and loss is derived by means of a kal va-chomer from a paid bailee. And since this is so,

it is sufficient for that which is derived from the inference to be like the source from which it is derived.

Just as the theft and loss of a paid bailee, when the owners are with him, are exempt, so too the theft and loss of a borrower, when the owners are with him, are exempt.

We have an established rule among the hermeneutical principles through which the Torah is expounded: If we derive a particular stringency in one place by means of a kal va-chomer from another place, we may not apply that stringency in the derived case more severely than in the source case. Even though the derived case is more stringent than the source case in other respects, with regard to this matter it is sufficient for the derived case to be as stringent as the source case, and no more.

So too here: We learned that a borrower is liable for theft and loss by means of a kal va-chomer from a paid bailee. Therefore, a borrower cannot be made liable for theft and loss when his owner is with him more than a paid bailee is.

The Gemara challenges this:

This works well according to the one who holds that there is the principle of “it is sufficient for that which is derived from the inference to be like the source” [

it is possible to answer this according to the one who maintains that we apply the principle of dayyo], and this is indeed 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 25a], who disagrees and does not accept this principle at all ,

what can be said?

The Gemara answers:

Rather, the verse says,

“And if he borrows,”

the vav adds to the preceding matter, and the upper passage is learned from the lower passage,

just as we learned above that a paid bailee is exempt from theft when the owners are with him,

and the lower passage from the upper passage,

and likewise we learn the law of a borrower from that of a paid bailee.

According to the Gemara’s conclusion, the borrower is derived from the paid bailee by a hekesh with regard to two matters:

a. The borrower is liable for theft and loss by means of the hekesh, and there is no need for a kal va-homer from the paid bailee .

b. The borrower is exempt for theft and loss when the owner is with him, by means of the hekesh to the paid bailee. One cannot refute this by saying that the borrower is more stringent than the paid bailee and that an exemption cannot be derived from him, since one does not raise objections against a hekesh.

It was stated

[A dispute was stated] in the beit-midrash concerning

negligence when the owner is with him,

where a bailee was negligent in guarding the deposit, while the owners of the deposit were engaged in work for the bailee.

Rav Aḥa and Ravina disagree about it.

One says: He is liable,

because we have not found an exemption for the owner being with him in a case of negligence.

And one says: He is exempt ,

because it can be derived from the verses that even one who is negligent is exempt when the owner is with him , as will be explained.

The Gemara explains the dispute. First, the Gemara explains why, according to the one who holds him liable, an unpaid bailee is liable for negligence; then the Gemara explains why a paid bailee and a borrower are liable according to his view; and afterward the Gemara explains the view of the one who exempts.

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

and the law of the owner being with him, which is written with regard to the borrower, is applied to the paid bailee written immediately before it, through the connecting letter vav, which juxtaposes them.

But not with regard to what precedes what precedes it,

and the unpaid bailee, whose section appears before the section of the paid bailee that is juxtaposed to the borrower, is not derived by means of a hekesh, since there is no letter vav joining the sections of the unpaid bailee and the paid bailee.

Therefore, “If his owner is with him,” is not written with regard to the unpaid bailee

in connection with liability for negligence; and from where would we know to exempt him? An unpaid bailee is liable for negligence, as it is stated in his section: “The owner of the house shall approach [the court] for the oath … if he did not send his hand … concerning every matter of negligence.” Since the unpaid bailee must swear that he was not negligent, it follows that he is liable for negligence.

And negligence, too, is not written with regard to the paid bailee and the borrower,

as it is not written concerning the paid bailee and the borrower that they are liable for negligence.

Therefore, for the paid bailee and the borrower to be liable

for negligence,

it is derived by a kal va-homer from the unpaid bailee:

If an unpaid bailee, who is exempt for theft, is liable for negligence, then with regard to a paid bailee and a borrower, who are liable for theft, is it not logical that they should be liable for negligence?

But with regard to the owner being with him, to exempt him

from liability for negligence,

even in the case of a bailee

who is a paid bailee or a borrower,

where the law of the exemption for the owner being with him is stated, this was not stated with regard to negligence.

What is the reason?

When “If his owner is with him, he shall not pay” is written, it is written with regard to the borrower and the paid bailee,

only

with regard to those liabilities that are explicitly written concerning them is it written

[When “If his owner is with him, he shall not pay” is written concerning the borrower and the paid bailee, it applies only to the liabilities explicitly written concerning them], namely, theft and loss and unavoidable accidents, but not to negligence, for which they are liable by a kal va-homer from the unpaid bailee.

But

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

and although there is no vav juxtaposing the sections of the unpaid bailee and the paid bailee, we expound the juxtaposition of the sections in order to derive one from the other,

and when “If his owner is with him” is written, it is also written with regard to the unpaid bailee

and the negligence stated concerning him. The paid bailee and the borrower are derived from him.

The Gemara raises an objection to the one who exempts from our Mishna:

We learned: If one borrowed a cow and borrowed its owner with it,

or

if one borrowed a cow and hired its owner with it; if he borrowed its owner or hired him, and afterward borrowed the cow, and it died, he is exempt.

The Gemara infers: The Mishna mentions only a borrower with regard to the exemption when the owner is with him,

but it does not teach the case of an unpaid bailee,

who would be exempt when he was negligent while the owner was with him; and this implies that he is liable for negligence even when the owner is with him!

The Gemara rejects this:

By your reasoning

[according to your approach], that if he were exempt even for negligence when the owner is with him, the Mishna should also have stated this with regard to an unpaid bailee, you can object:

Is a paid bailee taught [in the Mishna]!?

After all, a paid bailee is exempt when the owner is with him according to all views!