Bava Metzia 98b (צח:) — the Talmud in English

And he said to him:

The borrower: “One matter: It never happened”,

which is a denial.

And one matter: The borrowed cow did not die,

which is an admission.

And the other:

two cows;

“I do not know whether the rented one died and the borrowed one remains, or whether the borrowed one died and the rented one remains,”

and I am uncertain whether I am liable.

The law is

that since he cannot take an oath—

he must pay.

We learned in our Mishna:

“One says: The borrowed one

died,”

and the other

says: “The rented one

died”—

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

According to the view of Rav Huna and Rav Yehuda in the preceding sugya, who say that when one party makes a definite claim and the other makes an uncertain claim, the definite claim prevails, even when it serves to extract money, the Mishna is understood according to its plain meaning: It is speaking of the first case in the Mishna, in which one cow was borrowed and the other was rented, and their dispute concerns which of them died. There was no partial admission; therefore, the one making the uncertain claim is liable, even when no oath is incumbent upon him.

And we raise an objection:

Why

must the borrower take an oath at all when both are making definite claims?

But according to this interpretation,

“What he claimed, he did not admit” ;

there is no partial admission here!

And we answer:

Ulla said: Through the rolling over of an oath

an oath.

The Gemara explains:

For the lender says to him,

the borrower:

“At least take an oath for me that it died in the ordinary manner”

[“Take an oath for me, my opponent, at least concerning your claim that this is the rented one that died, and that indeed it died through unavoidable circumstances,”] as is the law with regard to all bailees, who are obligated to take an oath that the item died in the ordinary manner.

And since he takes an oath that it died in the ordinary manner, he also takes an oath that the rented one died

[and since he takes an oath that it died in the ordinary manner, he takes an oath that the rented one died] or that it died while it was rented.

We learned in our Mishna:

“One says: ‘I do not know,’ and the other says

‘I do not know’”—they divide the money.

The Gemara explains:

Who is the author of this?

It is Sumakhos, who says: “Property subject to uncertainty”—

they divide it,

when both say: “I do not know.” But the Sages say: “The one who seeks to extract from another bears the burden of proof.”

The preceding Mishna stated that the law of “the owners are with him” applies when the owners were working for the borrower at the time of the borrowing.

Our Mishna deals with cases in which there was a borrowing and afterward a rental.

The Gemara now discusses a case in which there was a borrowing followed by a rental, and the owners were with him at the time of the borrowing, as well as similar cases.

Rabbi Abba bar Memel raised

four problems.

A. A cow that he

borrowed when the owners were with him,

before he returned it, he

rented

it from its owners. He did not perform a second act of acquisition by pulling it, since it was in his courtyard; rather, he spoke with him about renting it from him. The rental was

without the owners being with him,

and the cow was stolen during the rental period.

What is the law?

The sides of the uncertainty are:

Perhaps we say that the borrowing stands independently and the rental stands independently

[Do we say that the borrowing is one matter and the rental another?] Although he did not pull it when he rented it, the rental acquisition took place through the courtyard, since a person’s courtyard acquires property for him. Since the rental was not with the owners, the renter is liable for theft.

Or perhaps, the rental is integrally connected with the borrowing

[or shall we say that the rental is a continuation of the borrowing], since no new liability was added through the rental,

for he was already liable for theft and loss

through the pulling that took place for the borrowing, while the rental merely exempts him from unavoidable accidents. It follows that the act of acquisition that now makes him liable was the pulling performed for the borrowing; that borrowing was with the owners, and therefore he is exempt.

B.

If you find it necessary to say

[if you resolve] the first problem and say:

The rental is integrally connected with the borrowing

and belongs to it,

and one who borrowed when the owners were with him and then rented without the owners is exempt, there is room for the following problem.

He rented it with the owners

and afterward

borrowed it without the owners,

and the cow died through unavoidable circumstances during the borrowing period.

What is the law?

The sides of the uncertainty are: Shall we say

that borrowing is certainly not connected with renting

[certainly borrowing is not a continuation of renting], since the borrowing added liability for unavoidable circumstances that did not exist during the rental?

Or perhaps, since it is connected in part,

since some of the borrower’s liabilities, such as theft and loss, also apply to a renter and were not newly created by the borrowing,

it is considered as though it were connected in its entirety;

therefore, it is possible to view all the liabilities as a continuation of the rental, and since the rental was with the owners, the borrowing too was with the owners, and he is exempt from liability for unavoidable circumstances.

C.

If you find it necessary to say: No

we do not say that since it is connected in part, it is considered as though it were connected in its entirety,

and if he rented it with the owners and afterward borrowed it, we do not regard the borrowing as borrowing with the owners, there is room for the following problems.

He borrowed it with the owners, rented it without the owners, and then

borrowed it again

without the owners, and the cow died through unavoidable circumstances.

What is the law?

Shall we say that since the cow was originally borrowed and is now borrowed, although in the interim it was rented,

the borrowing returns to its place

[the borrowing returns to its place], and the latter borrowing is borrowing with the owners, like the first?

Or perhaps, the rental interrupted it in the interim

[the rental interrupted it in the meantime]. Although the rental is considered a rental with the owners, because renting is a continuation of borrowing, the latter borrowing cannot be a continuation of the rental, and it is not borrowing with the owners.

D.

He rented it with the owners and borrowed it

without the owners,

and then rented it again

without the owners, and the cow was stolen.

What is the law?

Perhaps we say

that since the cow was originally rented and is now rented, although it was borrowed in the interim,

the rental returns to its place,

and although the borrowing was not considered borrowing with the owners, the rental that followed it can be considered rental with the owners by virtue of the first rental.

Or perhaps, the borrowing interrupted it in the interim,

and the latter rental does not join with the first.

And we conclude:

Teyku .

Mishna:

This Mishna discusses from when the borrower’s liability for unavoidable circumstances begins and when it ends.

One who borrows the cow

from another,

and he sent it to him—

the lender—

by the hand of his son,

or

by the hand of his slave,

or

by the hand of his agent, or,

even if he sent it

by the hand of his son,

or

by the hand of his slave,

or

by the hand of the borrower’s agent

, and it died

before the cow entered the borrower’s possession , he is

exempt,

because the borrowing had not yet begun.

And if

the borrower said to him,

the lender:

“Send it to me by the hand of my son”

or

by the hand of my slave,

or

by the hand of my agent, or,

even

by the hand of your son or by the hand of your slave,

or

by the hand of your agent,

and the lender sent it by their hand.

Or if the lender said to him,

the borrower:

“I am sending it to you by the hand of my son, by the hand of my slave, by the hand of my agent, or by the hand of your [unclear: the source reads an apparently corrupt word], by the hand of your slave, by the hand of your agent”,

and he agreed with him

and the borrower said to him: “Send it,” and he sent it

the lender by their hand.

And it died

on the way—

he is liable,

because they are the borrower’s agents, and this is considered as though the borrower himself had received the cow.

And likewise when he returns it

the borrower to the owners: If he sent it by the hand of another and it died before reaching the lender’s possession, he is liable, since it is still the borrower’s responsibility. But if he sent it with the lender’s consent by the hand of another and it died, he is exempt.