Bava Metzia 97b (צז:) — the Talmud in English

1.

The lender says:

The cow

was borrowed

and died in the third case;

on the day that it was borrowed, it died

in the second case;

while it was borrowed, it died

in the first case. Therefore, the borrower must pay me its value.

But the other [the borrower]

says:

I do not know

what happened. Perhaps the rented cow died in the third case, or it died during the rental period, in the first cases, and I am exempt.

The law is that the borrower

is liable

to pay, because the lender makes a definite claim, while the borrower makes an uncertain claim, and when one party makes a definite claim and the other an uncertain one, the definite claim prevails.

2.

The renter

says: The rented cow died

in the third case;

on the day that it was rented, it died

in the second case;

while it was rented, it died

in the first case. Therefore, I am exempt from liability for accidents.

But the other [the lessor]

says: I do not know

what happened. Perhaps the borrowed cow died in the third case, or it died during the borrowing period, in the first cases, and the borrower must pay me.

The law is that the renter

is exempt,

because a definite claim prevails over an uncertain claim.

3.

This one [the lender]

says: It was borrowed

and died in the third case, or it died during the borrowing period, in the first cases; and the borrower is liable.

And this one [the borrower]

says: It was rented

and I am exempt.

The law is that he is exempt from paying, because the burden of proof rests upon the one who seeks to extract payment from the other. However,

the renter must take an oath that the rented cow died.

The Gemara clarifies that it is not the claim that the rented cow died that obligates him to take an oath. Rather, since the renter must take an oath that the cow died in an accident, in accordance with the law of the oath imposed on bailees, the owner of the cow can impose upon him an additional oath, requiring him to swear that the rented cow died. For this is the law of the Torah: one who has become obligated to take an oath may be required by his opponent]

to take an oath also concerning other claims that he makes against him, even though those claims themselves would not independently obligate him to take an oath. According to Rav Naḥman, one may ask: Since the Mishna deals with one who admits to part of the claim, why is the borrower not liable to take an oath in all the other laws of the Mishna? This question divides into two parts. A. In the second law of the Mishna, when the lender makes an uncertain claim and the borrower makes a definite claim, why does the borrower not take an oath concerning his claim, as he does in the third law? B. In the fourth law of the Mishna, when both make uncertain claims, why does the borrower not pay because he cannot take an oath, as in the first law? The answer is that in every case the Torah does not impose an oath when the claimant makes an uncertain claim. (Tosafot, 97b, s.v. “Here too.”) Ramban adds that the Torah obligated bailees alone to take an oath concerning their claim that the deposit was taken by force or stolen, even though the depositor does not make the definite claim, “I know that this is not so.” The reason is that a person often acts negligently in guarding an item but considers the matter an accident; therefore, the Torah imposed an oath upon him so that he would scrutinize his statements. Another question arises—according to both Rav Huna and Rav Yehuda and Rav Naḥman: Why does the borrower not take an oath by means of rolling an oath onto another matter in all the laws of the Mishna? This question of Tosafot divides into three parts, concerning three laws in the Mishna; some of the answers address all the parts, while others address only some, with the remainder requiring other answers. A. Regarding the first law, the opening clause, the question is: Why is the borrower required to pay only when he admits to part of the claim, whereas if he denies the entire claim he is exempt according to Rav Naḥman? After all, he is obligated to take the oath imposed on bailees, and through rolling an oath onto another matter he should have to swear that the rented cow died; and since he cannot take that oath, he should pay! According to Rav Huna and Rav Yehuda, there is no question, because in their view the borrower pays in every case, since a definite claim prevails over an uncertain claim. B. Regarding the second law, the middle clause, the Mishna implies that the borrower is entirely exempt, even from an oath. Why, then, does he not have to take an oath by means of rolling an oath onto another matter? One cannot say that the lender cannot roll an oath onto another matter because he makes an uncertain claim, and that an uncertain claim is not capable of imposing an oath even through rolling an oath. This is not so. The source of rolling an oath onto another matter is the sota, where the husband can make the woman swear that she did not commit adultery with another man whom he did not warn her about; and there the husband has no definite claim. C. Regarding the fourth law, the concluding clause, the question is: Why should he not be required to take an oath, and, since he cannot take it, be required to pay? Tosafot and the early commentators offer several answers to this question. Some answer all the parts of the Mishna, some answer only certain parts, and the rest require other answers. A. The Mishna speaks of a case in which witnesses testify that the cow was taken by force, or the lender believes the borrower’s claim that it was taken by force, and therefore the borrower does not have to take the oath imposed on bailees. Consequently, the lender cannot roll onto him an oath that the borrowed cow died. This answer is straightforward according to Rav Naḥman, since according to him the obligation to take an oath in the third law is due to a partial admission, and the Mishna can be established in a manner in which there is no obligation to take the oath imposed on bailees. But according to Rav Huna and Rav Yehuda, the third law of the Mishna is that the borrower must take the oath imposed on bailees, and an oath that the rented cow died is rolled onto him. It is difficult to say that the other parts of the Mishna deal with a different situation in which there is no obligation to take the oath imposed on bailees. Tosafot therefore answered that in the three parts of the Mishna in which one of the parties makes an uncertain claim, or both do so, it is normal for the lender to believe the borrower when he says that the cow was taken by force. But in the third part, where both parties make definite claims and the lender sees that the borrower is lying, it is normal for him not to believe the borrower that it was taken by force. (Tosafot, 97a, s.v. “On the day.”) This answer addresses all the parts of the Mishna. B. A claimant cannot roll an oath onto another matter when he makes an uncertain claim. Although the source of rolling an oath onto another matter is the sota, one can learn from there only a case in which the claimant’s allegation has apparent basis, as in the case of the sota, where there are grounds for suspicion, since he warned her and she secluded herself, and it is reasonable to suspect that she committed adultery on other occasions as well. (Tosafot, s.v. “On the day.”) This answer addresses the middle clause and the concluding clause, but not the opening clause, in which the claimant makes a definite claim. Some early commentators disagree with this answer and maintain that an oath can be rolled onto another matter even when the claimant makes an uncertain claim. (Ramban, 98a, s.v. “The explanation of our Mishna.”) C. When the defendant cannot take an oath that he became obligated to take through rolling an oath onto another matter, we do not say that since he cannot take the oath he must pay. (Rosh, section 10, and Ran in the name of Raavad and Raah.) The explanation is as follows: When there is a Torah-level obligation to take an oath, there is in essence a monetary obligation, but the Torah eased the defendant’s position by requiring him to take an oath instead of paying. Therefore, if he cannot take the oath, he must return to the primary law governing him and pay. But when he is obligated to take an oath through rolling an oath onto another matter, the claim concerning which he must take an oath is not strong enough to impose an oath upon him, and certainly is not strong enough to impose a monetary obligation upon him. Therefore, if he cannot take the oath, he is exempt. (An explanation stated in the yeshivot.) This answer addresses the opening and concluding clauses, but not the middle clause, in which the defendant can take the oath. Some of the early commentators rejected this answer and cited a proof from the Gemara that the principle that one who cannot take an oath must pay applies even to an oath imposed through rolling an oath onto another matter. Other early commentators distinguished in this law between a claim made with certainty and a claim made with uncertainty. D. An oath is not rolled onto a defendant who makes an uncertain claim, since the law of rolling an oath onto another matter is derived from the sota, and the sota makes a definite claim that she did not commit adultery. (Tosafot, s.v. “On the day.”) This answer addresses the opening and concluding clauses, but not the middle clause, in which the defendant makes a definite claim. E. In our case, it is impossible to roll onto the borrower an oath that the rented cow died and then say that since he cannot take the oath he must pay. For if he pays, he pays because of the claim that the borrowed cow died and the borrower is liable for accidents. If so, he was not obligated to take an oath that the cow was taken by force; the borrower is liable to pay and does not take an oath. It follows that if an oath were rolled onto another matter, the reason for the initial obligation to take an oath would be nullified. Therefore, it is impossible to roll an oath onto another matter. (Attributed to Ritva.) This answer addresses the opening and concluding clauses, but not the middle clause.

4.

This one says: I do not know,

and perhaps the borrower is liable.

And this one says: I do not know,

and perhaps I am exempt.

The law is that

they divide

and he pays him half the value of the cow, since our Mishna follows Sumakhos, who says: In a case of money whose ownership is in doubt, they divide it. Sumakhos stated this specifically when both parties make uncertain claims, but not when both make definite claims. Tosafot wrote concerning our Mishna that the Mishna presented several cases of doubt to teach that division is required not only when the claims concern a single cow that was certainly borrowed, but even when there are two cows and it is possible that the cow that died was never borrowed at all; this too is considered derara demamona, and Sumakhos holds that they divide. (Tosafot, s.v. “Borrowed”; see note 98.) However, Tosafot later wrote that the law of division applies only when there are two cows. In the case of a cow that was both borrowed and rented, where there is a doubt as to when it died, even according to Sumakhos the borrower is exempt, because in addition to the presumption of possession in the borrower’s favor, there is also a presumption of life, which indicates that the cow died at the later time, during the rental period. When these two presumptions combine in favor of the borrower, Sumakhos agrees that he is exempt. (Tosafot below, 100a, s.v. “This.”) Maharsha wrote that Tosafot later retracted this position. (Maharsha there.)

Gemara:

We learned in the Mishna: The lender says, “The borrowed cow died,” and the other says, “I do not know”—he is liable.

Can you infer from this:

If one says to another,

“I have one hundred dinars in your possession”

that I lent you,

and the other [the defendant]

says: I do not know

whether I borrowed from you—

the defendant is liable,

because a definite claim prevails over an uncertain claim. Ramban wrote that the Mishna is speaking of a case in which the cow died on the first day, and the doubt is whether the first day was the day of the borrowing or the day of the rental. It follows that the doubt is whether any liability took effect at all, since perhaps there was no borrowing period whatsoever. (See note 99.) Ramban further wrote that even if we interpret the Mishna simply, as referring to a doubt as to when the cow died, it is possible that the passage equated the case with “I do not know whether I borrowed” because it follows the view of Rav Pappa, who holds that a borrower becomes liable for accidents from the time of the accident, and not from the time of the borrowing. This is the explanation of Rav Pappa’s words: In the chapter “The Robber’s Last,” Rava said that if a person borrowed a cow from another, the borrower died, and afterward the cow died while in the heirs’ possession, the heirs are exempt from liability for the accident. Two versions of the Gemara disagree concerning Rava’s view. Some say that the exemption applies only to the heirs themselves, meaning that they do not have to pay from their own assets, since they do not have the status of borrowers and therefore do not become liable for accidents; but the inherited property remains encumbered for payment of the accident, because from the time of the borrowing the borrower became liable to pay the value of the cow if an accident occurred. Therefore, if the borrower bequeathed land, the lender may collect the value of his cow from that land. Others say that even if their father left them land, the lender cannot collect from it, because the borrower does not incur a monetary obligation until the time of the accident, by which point he had already died, and his property did not become encumbered. Rav Pappa’s view there is that the obligation takes effect at the time of the accident. (Bava Kamma 112a.) Ramban wrote that according to Rav Pappa, even when the cow was borrowed on the first day and the doubt is whether it died on that day, this is like “I do not know whether I became liable,” since the obligation did not take effect at the time of the borrowing but only at the time of the accident, and we do not know whether an accident occurred at the time that generates liability for accidents. Ritva’s view is that even those who disagree with Rav Pappa agree that the obligation takes effect only at the time of the accident; they maintain merely that when the accident occurs, the obligation takes effect retroactively from the time of the borrowing. Therefore, when the cow dies in the heirs’ possession, the assets become encumbered retroactively from the time of the borrowing. But when there is a doubt whether an accident creating liability occurred at all, the case is considered like “I do not know whether I became liable.” The later authorities disputed how to understand Tosafot’s words (s.v. “And the other,” second explanation) concerning this matter. Some say that Tosafot followed the approach of the early commentators cited above. (Ketzot HaḤoshen, section 340, subsection 4.) Others say that according to Tosafot, even if the obligation to pay the money takes effect at the time of the accident, this is not a reason for the cases of the Mishna to resemble “I do not know whether I repaid you,” since the borrower received a cow as a loan, and an obligation to return the cow itself took effect upon the cow. (Shakh, section 291, subsection 44.)

And we raise an objection:

Can it be said that this constitutes a refutation of Rav Naḥman?

[Does this constitute a refutation of the opinion of Rav Naḥman, who exempts the defendant in this case] !

The Gemara cites a dispute concerning this matter:

As it was stated: If one says, “I have a maneh in your possession,” and the other says, “I do not”

know,

Rav Huna and Rav Yehuda say: He is liable,

because the claimant is making a definite claim, and this is effective even to extract property from one in possession who makes an uncertain claim .

And Rav Naḥman and Rabbi Yoḥanan say: He is exempt ,

because a definite claim does not have the force to extract property from one in possession, even when he makes an uncertain claim .

And we answer:

As Rav Naḥman said

to answer another difficulty that had been raised against him , and he answered:

For example, there is an oath obligation between them; here too [

here as well, the Mishna can be explained and established]

as a case in which there is an oath obligation between them.

The Gemara asks:

What is the case of an oath obligation? [

What is the situation that is called “an oath obligation”]?