Bava Metzia 98b — the Talmud in English

And he said to him ![](pamud.bmp "

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The borrower: One thing: Such events never occurred,

which is a denial.

And one thing: The borrowed one did not die

which is an admission.

And the other

[said]: Two cows,

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

and it is uncertain whether I am liable.

The law is

that since he cannot swear—

he pays.

We learned in our Mishna:

This one says: Borrowed

[one] died,

and this one

says: Rented

[one] died—

the renter shall swear that the rented one died.

According to the view of Rav Huna and Rav Yehuda in the preceding discussion, who say that in a case of “certain [claim] and uncertain [claim],” the certain claim is preferable, even to extract money, the Mishna is understood literally: it is speaking of the first clause of the Mishna, in which one of the cows 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 obligation to swear rests upon him.

And we challenge this:

But why

should the borrower swear at all when both are making certain claims?

For according to this interpretation,

what he claimed, he did not admit to him ,

there is no partial admission here!

And we answer:

Ulla said: Through the rolling over

of an oath.

The Gemara explains:

For the owner says to him,

the lender:

“Swear to me, my litigant, in any event, that it died in its ordinary manner” as is the law concerning all bailees, who are obligated to swear that it died in its 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 swears that it died in its ordinary manner, he also swears that the rented one died

[and since he swears that it died in its ordinary manner, he swears that the rented one died] or that it died during the time it was rented.

We learned in our Mishna:

This one says: I do not know, and this one says:

I do not know—they divide.

The Gemara explains:

Who is this?

It is Sumakhos, who says: “Money placed in doubt”—

they divide”

when both say: “I do not know”; but the Sages say: “The one who extracts from his fellow bears the proof.”

The Mishna preceding our Mishna said that the law of “the owner is with him” applies when the owners were engaged in the borrower’s work at the time of the borrowing.

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

Now the Gemara discusses a case in which there was borrowing and afterward renting, and the owners were with him at the time of the borrowing, and similar cases.

Rabbi Abba bar Memel raised

four questions.

a. A cow that he

borrowed with the owners

and before he returned it

rented it

from its owners, and he did not pull it a second time because it was in his courtyard, but spoke with him that he would rent it from him; and the renting was

without the owners,

and the cow was stolen during the rental,

what is the law?

The sides of the doubt are:

Do we say that the borrowing stands by itself and the renting stands by itself

[do we say that the borrowing is separate and the renting is separate]? And although he did not pull it when he rented it, the acquisition of the rental was effected through the courtyard, for a person’s courtyard acquires for him. Since the rental was without the owners, the renter is liable for theft.

Or perhaps renting is attached to borrowing

[or perhaps the renting is a continuation of the borrowing], since no new liability was added through the renting,

for he was already liable for theft and loss

through the pulling of the borrowing, and the renting merely exempts him from accidents. It follows that the pulling that obligates him now is the pulling of the borrowing, and it was with the owners; therefore, he is exempt .

b.

If you should find it said

[if you resolve] the first question and say:

renting in borrowing is attached

and connected, and one who borrowed with the owners and rented without the owners is exempt, there is room for the following question.

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 an accident during the borrowing,

what is the law?

The sides of the doubt are: shall we say

that borrowing is certainly not connected to renting,

[certainly borrowing is not a continuation of renting], since through the borrowing a liability for accidents was added that did not exist in 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 is connected in its entirety;

therefore, it is possible to regard 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 accidents.

c.

If you should find it said: No

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

and if he rented it with the owners and afterward borrowed it, we do not consider the borrowing a borrowing with the owners. There is room for the following questions.

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

borrowed it

without the owners, and the cow died through an accident,

what is the law?

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

the borrowing returns to its place

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

Or perhaps, the renting was interrupted in between

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

d.

He rented it with the owners and borrowed it

without the owners,

and again rented it

without the owners, and the cow was stolen,

what is the law?

Do we say,

since at the beginning the cow was rented, and now it is rented, although it was borrowed in the interim,

the renting returns to its place,

and although the borrowing was not considered borrowing with the owners , the rental that follows it can be considered renting with the owners by virtue of the first rental?

Or perhaps, the borrowing was interrupted in between,

and the final rental does not join with the first.

And we conclude:

teyku .

Mishna:

This Mishna deals with borrowing: from when the borrower’s liability for accidents begins and when it ends?

One who borrows the cow

from his fellow,

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

the cow before it entered the borrower’s domain , he is

exempt,

because the borrowing has 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 son, by the hand of your slave, by the hand of your agent”,

and he agreed with him

and the borrower said to him: “Send,” 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 the matter is considered as though the borrower himself had received the cow .

And likewise when he returns it

the borrower to the owners: if he sends it by the hand of another and it dies before it reaches the lender’s domain, he is liable, for it is still under the borrower’s responsibility ; but if he sent it with the lender’s consent through another and it died, he is exempt.