Bava Metzia 96a (צו.) — the Talmud in English

And whereas

Rava follows the opinion of Rabbi Yonatan

who disputes Rabbi Yoshiya and maintains that when the Torah writes two things with the conjunction vav between them, it is not necessary for both to be present together.

And he interprets these verses

in accordance

with Rabbi Yonatan.

The Gemara explains:

Abaye follows the opinion of Rabbi Yoshiya, and interprets the verses in accordance with Rabbi Yoshiya.

The Torah states: “And if a man borrows from his fellow, and it is broken or dies.” Thus, the borrowing and the accident are joined by the conjunction vav in the word “and it is broken.” According to Rabbi Yoshiya, what is stated concerning them applies to both of them together.

And it is written afterward, “

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

and this should be understood as follows:

The reason is that he is absent in both circumstances;

the Torah obligates him specifically when its owner is not with him, neither at the time of the borrowing nor at the time of the accident.

But if he is present

in one and absent in the other,

but was with him during one of them and was not with him during the second—

he is exempt.

And

on the other hand, afterward

it is written, “

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

and this verse, too, refers to the borrowing and the accident together, and should be understood as follows:

The reason is that he is present in both circumstances;

the Torah exempts him specifically if he was with him during both of them.

But if he is present in one and absent in the other,

if he was present during one of them,

he is liable.

And this is how they resolve the contradiction:

To tell you

that sometimes, when he was present during one of them, he is liable, and sometimes he is exempt.

If he was with him at the time of the borrowing, he need not be with him at the time it was broken or died,

and he is exempt;

if he was with him at the time it was broken or died,

he is liable, and

he must have been with him at the time of the borrowing

in order to be exempt.

The Gemara will explain below why the time of the borrowing is established as the time determining the exemption.

Rava follows the opinion of Rabbi Yonatan, and interprets the verses in accordance with Rabbi Yonatan.

The Torah states: “And if a man borrows … and it is broken or dies.” According to Rabbi Yonatan, what is stated afterward concerning this can be interpreted as referring either to the borrowing or to the accident.

And it is written , “

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

this indicates that he is present in both circumstances

—meaning that he was present during both—and the Torah exempts him,

and it also indicates that when he is present in one and absent in the other—

he is exempt,

for the implication of the verse is that even if he was present during only one of them, he is exempt.

And

on the other hand,

it is written, “

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

this indicates that he is absent in both circumstances, and it also indicates that when he is present in one and absent in the other—

he is liable,

for the implication of the verse is that even if he was absent during only one of them, he is liable.

And this is how they resolve the contradiction:

To tell you: If he was with him at the time of the borrowing, he need not be with him at the time it was broken or died.

If he was with him at the time it was broken or died, he must have been with him at the time of the borrowing.

It follows that both according to Abaye and according to Rava there is the same contradiction, and they resolve it in the same manner. According to Abaye, however, the verse that states liability implies exemption when he was present during one of the circumstances, while the verse that states exemption implies liability when he was present during one of them. According to Rava, the verse that states liability imposes liability when he was present during one of them, while the verse that states exemption exempts him when he was present during one of them.

The Gemara asks according to both of them:

Could I reverse it?

From where do we know that the time of the borrowing determines the exemption, rather than the time of the accident?

The Gemara answers:

It is reasonable that the borrowing is the more significant

as the time that determines the law,

because he brings it into his domain—

because he brings it into his possession and assumes responsibility for it. It is appropriate to follow the time that creates his liability.

And we challenge this:

On the contrary, the time it is broken or dies is more significant, since he is liable for accidents!

After all, this is the time that actually creates his liability.

And we answer:

If not for the borrowing,

and his becoming responsible for it,

what could the breaking or death accomplish—

what would it do? After all, he becomes liable for accidents only because he borrowed it and assumed responsibility for it.

But this can still be challenged:

And if not for its being broken or dying,

which causes him to become liable in practice,

what could the borrowing accomplish?

After all, the borrowing itself does not cause him to become liable in practice, and without the accident, his assumption of responsibility has no practical significance.

And we answer:

Even so, the borrowing is more significant, since

from the time of the borrowing

the borrower is liable

for the animal’s

sustenance .

Since at that point he becomes practically liable for its sustenance, in addition to becoming responsible for it, we must determine that the time of the borrowing is the decisive time.

The Gemara offers another answer to the question of how we know that the time of the borrowing is decisive. According to this answer, the matter is established by an exposition of the verse, rather than by reasoning.

Rav Ashi said:

The verse states, “

And if a man borrows from his fellow”;

it does not state, “And if a man borrows from his fellow.” The Torah emphasized the phrase “from his fellow,” teaching that because he borrowed what belongs to his fellow,

and his fellow was not with him,

therefore,

he shall surely pay.

But if his fellow was with him, he is exempt.

We see that the time of the borrowing is what determines the exemption.

And we challenge this:

If so, the phrases

“Its owner is not with him” and

“And if its owner is with him”,

which the Torah stated,

why do I need them?

After all, the law of an owner being with him can be derived from the phrase “from his fellow.”

And we answer:

Were it not for these

verses, in which the law of the owner is stated explicitly, we would not have been able to derive this innovation from the phrase “from his fellow,” because

I would have said: This is simply the normal expression of the verse—

I would have said that this is merely the Torah’s customary manner of expression.

The Gemara now presents uncertainties raised by the amoraim concerning the laws of borrowing. Some remain unresolved, while others are resolved.

Rami bar Hama raised

six issues. The first four do not concern borrowing with the owner employed by the borrower .

1.

What is the law when one borrows an animal in order to mate with it?

One who borrows an animal in order to mate with it himself , and the animal dies: What is the law? The aspects of the uncertainty are as follows:

Do

we require it to be a borrowing of the type people ordinarily undertake—

the borrowing must be in accordance with ordinary human practice—

and therefore people do not ordinarily borrow it,

and the Torah did not say in a case such as this, “And if a man borrows,” so he is exempt for accidents?

Or perhaps, what is the reason—

for what reason did the Torah make a borrower liable for accidents?

It is because of the benefit

that he derives.

And this one, too, derives benefit—

this one also derives benefit, and he should therefore be liable.

2.

What is the law when one borrows an animal in order to display it?

One who borrows a cow in order to appear wealthy, so that people will not refrain from selling to him on credit: What is the law?

The aspects of the uncertainty are as follows: In order for the borrower to be liable for accidents,

do we require monetary benefit,

meaning that the borrower must receive property from the lender,

and there is

property here, so he is liable?

Or perhaps,

it is not enough that he receives property from him; rather,

we require property from which

the borrower

derives benefit

on its own

in order

to make him liable for accidents,

and there is none,

since he does not benefit from the cow itself; he benefits from it only indirectly, and such benefit is not significant enough to make him liable for accidents.

3.

What is the law when one borrows

in order

to perform with it

work worth

less than a peruta?

The aspects of the uncertainty are as follows:

Do we require monetary benefit—

is all that is required that he borrow property from him—

and there is

property here, since the cow is worth a peruta? Therefore, he is liable for accidents.

Or perhaps

we follow the benefit that he derives from it, and that benefit is not monetary, since

anything worth less than a peruta is nothing,

and he is exempt .

4. This issue is raised according to the possibility that in the preceding issue the borrower is exempt because he did not receive benefit worth a peruta.

If he borrowed two cows in order to perform work worth a peruta with them,

and with each one he will perform work worth less than a peruta, and one of them dies ,

what is the law?

The aspects of the uncertainty are as follows:

Do we say: Follow the borrower and the lender, and there is—

should we follow the borrower and lender, in which case the borrower receives benefit worth a peruta, and is therefore liable?

Or perhaps: Follow the cows, and with regard to each one individually there is no monetary value—

we follow the cows, and each one individually does not provide work worth a peruta, and therefore he is exempt for accidents .

5.

If he borrowed from partners, and one of them became employed by him, what is the law?

He borrowed their jointly owned animal from the partners, and one of the partners was employed by him in his work, and the animal died. Is he exempt because of borrowing with the owner in this case?

The aspects of the uncertainty are as follows: Shall we say that in order to receive the owner’s exemption,

we require all of the owners, and that is not the case,

since one of the partners was not with him? Therefore, the borrower must pay the value of the cow to both partners.

Or perhaps,

it is not necessary for all the owners to be employed by him, and therefore

at least with regard to that partner’s half, he is exempt—

he is exempt with regard to the portion belonging to the partner who was with him, and must pay only the portion of the partner who was not with him .

And likewise

Partners who borrowed, and one of them became employed by him—what is the law?

Partners in a field who borrowed a cow in order to plow with it, and the lender is working in the private field of one of the partners: What is the law?

The aspects of the uncertainty are as follows:

Shall we say that in order to receive the owner’s exemption,

we require the entire

borrower to be employed by him, and that is not the case,

since here the lender is not performing the work of every party who borrowed; there are two borrowers, and he is performing the work of only one of them. Therefore, even the one whose work he is performing is not exempt.

Or perhaps,

it is not necessary that he be employed in the work of every party who borrowed, and in this case

with regard to the half that they borrowed, at least, he is exempt—

with regard to the half borrowed with the owner, he is exempt—and the second partner, who does not have the owner’s exemption, must pay half to the lender .

6. This issue concerns the borrowing of nichsei melog. When a married woman inherits property, that property is nichsei melog: The property itself belongs to her, while the husband has the right to its produce.

For example, if a married woman inherited a cow from her father, her husband has the right to receive its milk and to plow his fields with it. But he may not slaughter the cow without the woman’s consent, because the animal itself belongs to her.

Although the husband may use the cow by rabbinic enactment, he may not lend it to others without her permission, because the Sages granted him the right to consume its produce specifically when this creates a benefit for the household.

Rami bar Hama raised an uncertainty:

If he borrowed from the woman

a cow belonging to nichsei melog, the borrower requires her permission and the husband’s permission.

And her husband became employed by him

in his work, and the cow died: Is the borrower exempt because the husband was employed by him, or is he not exempt because the woman was not employed by him?

And likewise,

a woman who borrowed

a cow in order to plow her usufruct property,

and

the owner of the cow

was borrowed

by her husband to perform work for her husband's field, and the cow died,

what is the halakha?

Is the woman obligated to make payment, and is there no exemption of “the owners with him,” since the lender did not perform work for her; or is she exempt, because she borrowed it for the purpose of working land from which her husband has the right to consume the produce, and the lender performed work for the husband?

The sides of the uncertainty are:

Does

the acquisition of produce have the status of acquisition of the substance itself—that right which the husband has in his wife's property renders him a complete owner of the property? Therefore, one who borrows a cow belonging to usufruct property is like one who borrows the husband's cow ,

and if the husband performs his work, this is borrowing with the owners with him. Likewise, when a woman borrows a cow in order to plow usufruct land, the matter is considered as though she borrowed the cow to plow her husband's field, and if the lender performs work for the husband, this is borrowing with the owners with him.

Or not:

is the husband not considered a complete owner of usufruct property? Therefore, one who borrows a cow belonging to usufruct property is like one who borrows the wife's cow, and if the husband performs his work, this is not borrowing with the owners with him. Likewise, when a woman borrows a cow in order to plow usufruct land, the matter is considered as though she borrowed a cow to plow her own field, and if the lender performs work for the husband, this is not borrowing with the owners with him.

Ravina said to Rav Ashi another uncertainty:

If one says to his agent, “Go and be borrowed together with my cow,” what is the halakha?

Reuven sent Shimon to lend Reuven's cow to Levi, and said to Shimon: “You, too, perform work for Levi on my behalf,” and the cow died while in Levi's possession. Is Levi liable?

The sides of the uncertainty are: Is

the owner himself required

to perform work for the borrower,

and there is not

here anything but an agent?

Or perhaps,

as throughout the Torah,

“a person's agent is like himself,” and

here

there is

an agent, and this is borrowing with the owners with him?

Rav Aha, son of Rav Avya, said to Rav Ashi:

The two last uncertainties are dependent upon a dispute between tannaim or amoraim, who disagreed concerning other matters.

The husband

about whom Rami bar Hama was uncertain—this is

the dispute between Rabbi Yohanan and Reish Lakish.

The agent

about whom Ravina was uncertain—this is

the dispute between Rabbi Yonatan and Rabbi Yashya.

The husband—

the dispute between Rabbi Yohanan and Reish Lakish:

As it was stated: One who sells his field for its produce,

one who sells his field for a number of years, during which the purchaser will consume the produce of the field.

Rabbi Yohanan says: He brings

first fruits from the field,

and recites

the passage of the first fruits, from “An Aramean sought to destroy my father” until “Now, behold, I have brought the first fruit of the soil that You, Lord, have given me.”

Reish Lakish says: He brings

first fruits

but does not recite

the passage.

The reason for their dispute is:

Rabbi Yohanan says: He brings and recites,

because in his view

the acquisition of produce has the status of acquisition of the substance itself,

and since the land is considered the purchaser's, the purchaser may recite and declare: “The first fruit of the soil that You have given me.”

Reish Lakish says: He brings but does not recite,

because in his view

the acquisition of produce does not have the status of acquisition of the substance itself,

and he cannot recite and say: “The soil that You have given me.”

It follows that the basis of Rami bar Hama's uncertainty—whether the acquisition of produce has the status of acquisition of the substance itself or not—is the subject of the dispute between Rabbi Yohanan and Reish Lakish .

Now the Gemara continues and explains what Rav Aha said:

“The agent—the dispute between Rabbi Yonatan and Rabbi Yashya.”

As it is taught in a beraita: One who says to a guardian,

whom he appoints to attend to his household needs before departing for an overseas country:

“Any vows that my wife will take from now

[from this time]

until I return from such-and-such a place, annul them for her”

on my behalf! And the woman took vows,

and he annulled them—

the guardian.

Can

[they]

be annulled?

The verse states

[therefore it is written] in the Torah [Numbers 30:14] the term “her husband” twice, “

Her husband may ratify it, and her husband may annul it,”

to teach that another person may not annul in his place, not even a guardian,

the words of Rabbi Yashya.

Rabbi Yonatan says: We find everywhere that a person's agent is like himself,

and even with regard to the annulment of vows, the agent may annul them.

Thus, the tannaim disagree, in a case where “her husband” is written twice, whether the agent is to be excluded. And with regard to the law of borrowing with the owners with him, “its owners” is written twice in the Torah, and therefore here too there is a dispute: Did the verse come to exclude an agent, or not?

Rav Ilish said to Rava:

There is an uncertainty similar to the previous uncertainty concerning an agent, namely:

If one says to his slave,

the Canaanite slave,

“Go and be borrowed together with my cow,” what is the halakha?

Is a person's slave considered like him with regard to borrowing with the owners with him?

The Gemara explains why Rav Ilish's uncertainty is not the same as Ravina's uncertainty concerning an agent, and why it does not depend upon the dispute between Rabbi Yashya and Rabbi Yonatan.

Let it be asked

[there is an uncertainty] in this matter

according to the one who says

“a person's agent is like himself”

also with regard to borrowing with the owners with him, so that the lender's agent is considered like him. The problem is that there is reason to say that a slave is inferior to an agent, as will be explained immediately.

And likewise,

let it be asked according to the one who says

“a person's agent

is not like himself”

with regard to borrowing with the owners with him, because there is reason to say that his slave is superior to his agent.

The Gemara explains:

Let it be asked according to the one who says: “A person's agent is like himself”—that statement applies to an agent

who is free,

who is subject to mitzvot

concerning monetary matters,

but a slave, who is not subject to mitzvot,

as whatever a slave acquires belongs to his master, and he has no property and is not included in the legal framework of lender and borrower,

is not

considered like him. The Torah introduced the law of agency only for an agent who belongs to the legal framework of the matter in question and is therefore similar to the one who appointed him. A slave cannot serve as an agent for a bill of divorce or for betrothal, because he is not included in that legal framework; and the same applies here, that he cannot serve as an agent in our matter .

Or perhaps, even according to the one who says: “A person's agent is not like himself”—that statement applies to an agent,

since there is no agency in this law,

but a slave,

since he is his master's property, it is possible to say of him:

“The hand of a slave is like the hand of his master,”

as though the master's hand itself had performed work for the borrower.

He said to him,

Rava,

“It is reasonable that the hand of a slave is like the hand of his master,”

and it is considered as though his master performed work for the borrower .

The following discussion concerns usufruct property. It was explained above that the husband consumes the produce of his wife's property.

The Sages instituted the husband's right to consume the produce in exchange for the obligation they instituted that the husband must redeem his wife if she is taken captive. On this basis, the following question is raised.