Bava Metzia 96b — the Talmud in English

Rami bar Hama raised the following question: A husband

who eats the produce of his wife's usufruct property

of his wife—

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is he considered a borrower,

so that if the property is lost through circumstances beyond his control, he must pay the woman for it?

Or is he considered a renter,

and is not liable for accidents?

The two sides of the question are:

Is the husband's eating of the produce considered rental, because the husband is obligated to redeem her in return for eating the produce?

Or is her redemption not payment for eating the produce? After all, even if the woman has no property, the husband is obligated to redeem her. The connection between eating the produce and redeeming her exists only as the basis of the enactment that the Sages instituted; but now, redemption is not payment for the produce.

Rava said: In proportion to one's sharpness is one's error:

Because of Rami bar Hama's sharpness, he made a mistake and failed to notice that there was no room for the question.

In either case, if he is a borrower, it is borrowing with the owner in his service,

since the borrowing began at the time of the marriage, and at that time the woman began engaging in her husband's work.

If he is a renter, it is rental with the owner in his service

for the same reason, and in either case he is exempt!

The Gemara attempts to establish the question in a particular case, in order to answer Rava's objection. According to this explanation, specifically if a husband with regard to his wife's usufruct property is a borrower, he is exempt even in a case of theft or loss, because it is borrowing with the owner in his service. But if he is a renter, he is not exempt, because this is not rental with the owner in his service.

Rather, Rami bar Hama's question was in a case where he rented a cow from her and then married her.

Проблема Рами бар Хамы состоит в случае, когда он нанял у женщины корову, а затем женился на ней,

Rami bar Hama's question concerns a case in which he rented a cow from the woman and then married her; she was not engaged in his work when he rented it from her.

What is the law?

Is a husband, with regard to his wife's usufruct property, considered a

borrower, or is he considered a renter?

The Gemara explains the question:

Is a husband, with regard to his wife's usufruct property, considered a

borrower,

and

does “borrowing with the owner in his service” therefore apply,

and

override

«

“rental without the owner in his service”

because from the time of the marriage he uses the cow as usufruct property, and he does not need to rent it from his wife? Therefore, his use under the rental arrangement ends, and his use as a borrower begins. The borrowing that begins at the time of the marriage is borrowing with the owner in his service, as explained above. Accordingly, the husband is exempt from theft and loss.

Or perhaps,

every husband with regard to his wife's usufruct property

—

because the enactment granting him the produce of usufruct property was made so that he would become obligated to redeem his wife with money if she were taken captive; thus, she receives payment from her husband in exchange for the right to eat the produce.

And

according to this side of the question, the

rental

under which he rented the cow from her before the marriage, when it was rental without the owner in his service,

remains as it was

because no new legal status governing his use of the cow came into effect at the time of the marriage. Since the original rental continues, this is rental without the owner in his service, even though the woman is now engaged in his work. For our Mishna establishes that the status of “owner in his service” depends on the time of the borrowing or rental. Therefore, the husband is liable for theft and loss.

But the Gemara rejects this explanation, arguing that there is still no practical difference between defining the husband as a borrower or as a renter.

And we object:

What is the difference

between the following cases:

If

the husband

is a borrower, so that borrowing with the owner in his service takes effect

after the marriage

and overrides

the previous

rental,

which was

without the owner in his service?

But

if he is also a renter,

let

rental with the owner in his service come and let rental without the owner in his service leave

—that is, let the later rental with the owner in his service override the earlier rental without the owner in his service—because the first rental was limited to a specific period, whereas there is now another rental, that of a husband with regard to his wife's usufruct property, which is not limited to a period.

[let renting while the owner is in his service come and nullify the renting that was not while the owner was in his service], since the first rental was limited in time, whereas now there is another rental—that of a husband with regard to his wife's property—which is not limited in time !

Rather,

necessarily,

Rami bar Hama's question was in a case such as one where she rented the cow from someone else and then married him.

Reuven rented a cow to a woman, and afterward, during the rental period, the woman married Shimon. Therefore, Shimon received from the woman the right to use Reuven's cow, just as he received the right to use the woman's other usufruct property. That cow then died through circumstances beyond Shimon's control while it was in his possession, and Reuven demanded payment for it from him.

If Shimon, the husband, is defined as a renter, he is not liable for accidents. But if he is defined as a borrower, he is liable for accidents. There is no exemption of borrowing with the owner in his service, because Reuven is the claimant, and Reuven was not engaged in Shimon's work.

The Gemara says that this question applies only according to the opinion of Rabbi Yosei.

For in the chapter HaMafkid, Ravnan and Rabbi Yosei disputed the case of one who rented a cow from another, and the renter lent it to someone else, and the cow died through circumstances beyond his control:

The opinion of Ravnan is that the borrower, who is liable for accidents, pays the renter who lent it to him, whereas the renter is exempt from paying the owner, because a renter is exempt from accidents.

Rabbi Yosei says that the borrower pays the value of the cow to its owners, because it is not possible for the renter to profit from the owner's cow.

Therefore, the Gemara says:

According to Ravnan, who say that the borrower pays

the renter,

and in our case as well, if the husband is liable, he is liable to the woman who rented it to him,

there is no need to ask,

there is no room for the question,

because it is certainly borrowing with the owner in his service,

since the woman is engaged in her husband's work.

The question is necessary according to Rabbi Yosei, who says that the cow returns

to the original owners,

and according to him, Reuven can claim the cow from Shimon.

What is the law?

Is Shimon

considered a borrower, or is he considered a renter?

Rava said

as an answer to this question:

A husband

with regard to his wife's usufruct property

is not a borrower,

and he is not liable for accidents;

nor is he a renter,

and he is not liable for theft or loss;

rather, he is a purchaser,

he is considered like one who purchased his wife's property. A purchaser does not become liable for the safekeeping of the item he purchased, even if he purchased only its produce and not the property itself.

Rava derives that the husband is defined as a purchaser

from Rabbi Yosei bar Ḥanina.

As Rabbi Yosei bar Ḥanina said: In Usha they instituted: If a woman sold usufruct property during her husband's lifetime and then died, the husband may remove it from the purchasers.

It has already been explained that the property itself of usufruct property belongs to the woman. Therefore, she can sell the property itself. But the purchaser cannot use the property as long as the woman is married, because the husband has the right to consume its produce.

Indeed, if the woman died, before the enactment of Usha the law was that the purchaser would acquire the property and from then on consume its produce. The husband's right to the produce had ended with his wife's death, and although the husband inherits from his wife, he does not inherit property that she sold.

In Usha they instituted that this would not be the law. Rather, if the woman died, her husband could invalidate the purchaser's sale, and the sale would have validity only if the woman became widowed or divorced.

The nature of the enactment is that they made the husband as though he were the “first purchaser” of his wife's property, with the property itself acquired by him from the time of the marriage, contingent on the possibility that she would die during his lifetime.

In connection with the discussion of usufruct property, the Gemara cites another question concerning misuse of usufruct property. This question, too, was raised by Rami bar Hama, and Rava answered it. "

Misuse" means deriving benefit from consecrated property or removing it from the control of the consecrated property. The Torah states (Leviticus 5:14–16) that one who misuses consecrated property unintentionally must pay the consecrated property the principal and an additional fifth, and must bring a guilt-offering.

Any item that has monetary sanctity—for example, property consecrated for Temple maintenance, or an offering designated for the altar that developed a disqualifying defect—leaves the status of consecrated property when a person misuses it unintentionally.

Removing an item from the control of consecrated property is also considered misuse, even if the person did not benefit from the consecrated object. Therefore, one who takes a consecrated object for himself or gives it to another has misused it.

A person who consecrated money and died, and his heirs did not know that this money was consecrated, the heirs did not commit meila through the inheritance itself, because their inheritance of the money is not considered removal from the domain of the consecration to another domain, until they give the money to others.

However, a married woman who inherited the money from her father: since the money passes into her husband’s domain for him to use by virtue of the enactment of the Sages, it was obvious to Rami bar Hama that this constitutes removal from the domain of the consecration, even though no hand touched it, and the money becomes non-sacred.

Rami bar Hama posed a question: The husband who controls his wife’s property

that she inherited from her father, and there were consecrated items there of which they were unaware,

who committed meila

and became liable for an offering? The husband or the wife?

Or perhaps, the court, as a result of whose enactment the money entered the husband’s domain, is the one that committed meila?

Rava said

an answer:

Who could commit meila?

Who could commit meila?] After all, regarding everyone involved in the matter, there is a reason that they should not commit meila!

Let the husband commit meila,

who acquired the consecrated property? This is impossible, because only something

permitted is pleasing to him to acquire,

but something

forbidden is not pleasing to him to acquire!

After all, the husband does not wish to acquire the consecrated property, since it is forbidden, and presumably withdraws from his right to the consecrated property.

Let her commit meila,

the woman who brought the consecrated property into her husband’s possession?

This cannot be said, for even property

that is permitted is likewise not pleasing to her that her husband acquire it,

but she would prefer that all the property remain with her!

Let the court commit meila

of that generation, in whose hands all the enactments enacted throughout the generations depend, and who can annul them or maintain them, and it is considered as though they enacted the enactment, and they transferred ownership of the consecrated property to the husband?

This cannot be said, for

when the Sages enacted an enactment, and said that the husband is deemed an acquirer—

for permitted matters, the Sages enacted the enactment; for forbidden matters, the Sages did not enact the enactment! [

The Sages enacted their enactment and said that the husband is an acquirer specifically with regard to permitted things; however, with regard to forbidden things they did not make the enactment!]

Rather,

because of these arguments

Rava said:

While they are tied up and lying [in their place], the husband did not acquire the money, and it did not become non-sacred, and there is no meila here; and

the husband commits meila when he removes it

and gives the money to another person.

It is just as one who removes consecrated money into non-sacred property [

like anyone who removes consecrated money into non-sacred property] and commits meila.

The following discussion deals with the law of “it died on account of work.”

They raised a question before them [

a question was raised in the beit-midrash]: If one borrows a cow and

its flesh grows thin

из-за работы,

on account of work, what is

—is the borrower liable to pay for this depreciation?

One of the Sages said to him—

and his name was Rav Helkiya son of Rav Avya—

to the one who asked the question:

By implication

your words teach that it is obvious to you

that when it

dies on account of work—

he is liable.

For logically there is more reason to make him liable when it dies on account of work than when it merely loses flesh on account of work, since loss of flesh is more common, and the lender lent him the animal with this in mind, whereas death on account of work is not common. And one who is uncertain about the law of loss of flesh on account of work evidently considers it obvious to him that when it dies on account of work, he is liable.

But this is not so, for

let the borrower say

to the lender:

Was it not to set it up [

not to set it up]

in a small tent [

a small tent that they would place over the bed]

that you borrowed it,

but rather in order to make it work; and since it died on account of work, I am not liable for it. [ See an additional explanation in the note.]

And we conclude:

Rather, Rava said: It is not necessary [

there is no need to be uncertain if]

it loses flesh on account of work, for he is exempt; rather, even if it dies on account of work as well, he is exempt

, for he says to him: It was not to set it up in a small tent

that you borrowed it.

And the Gemara brings an incident:

A certain man borrowed an ax from his fellow, and it broke [

a man borrowed an ax from his fellow and it broke.]

He came before Rava. He said to him: Go, bring witnesses that you did not alter its use, and be exempt [

go, bring witnesses that you did not do something that is not ordinarily done with it, and you will be exempt]. For he used the ax in a place where witnesses are commonly present, and in such a place a custodian is liable to bring witnesses concerning his claim, and he is not exempt through the custodians’ oath. And the same is the law with every claim that a custodian makes, if the event occurred in a place where witnesses are commonly present.

And if there are no witnesses,

and he then must pay for the ax,

what is

—must he return to him an intact ax , or return the broken pieces to him and pay the depreciation?

And the Gemara brings another incident from which to resolve the question.

Come and hear, for a certain man borrowed an ax from his fellow, and it broke

through negligence.

He came before Rav. He said to him: Go, pay him an excellent ax [

pay him an intact ax].