Bava Metzia 99a (צט.) — the Talmud in English

Gemara:

We learned in our Mishna: The borrower said to him: “Send it to me ... by your slave ...,” and he sent it, and it died—the borrower is liable.

And we wonder:

By his slave

—the lender’s—

is he liable?

But

the hand of a slave is like the hand of his master, and this is therefore like a case in which the lender brought it, even if he did so at the borrower’s instruction, and it died on the way—the borrower is exempt, since it never left the lender’s possession!

And we answer:

Shmuel said:

The Mishna is speaking

of a Hebrew slave, who does not own his person,

since his person is not acquired

, and he can serve as the borrower’s agent. Rav said

another answer:

You may even say that it is referring to a Canaanite slave,

and when the borrower says to send the animal by a Canaanite slave, who is not fit to be relied upon

,

it is treated as though he said to him

—the borrower said to the lender:

“Prod it with a stick, and it will come

to me on its own.” And when he says this, he obligates himself to assume liability from the moment the cow leaves the lender’s possession.

Meitivei

[they raise an objection in the study hall] against Rav from a beraita:

If one borrows a cow, and the lender sends it to him

by

his son

or

by his agent,

with the borrower’s consent—the borrower is liable, as it is written in the Mishna.

But if he sends it

by his slave—

he is exempt,

even though the matter was done with the borrower’s consent.

Granted, according to Shmuel,

there is no contradiction between the Mishna and the beraita, because

the Mishna is referring to a Hebrew slave,

whose hand is not like his master’s hand, whereas

the beraita is referring to a Canaanite slave,

whose hand is like his master’s hand.

But according to Rav, it is difficult,

for according to him, even one who says to send it by a Canaanite slave is like one who says, “Prod it with a stick,” and the borrower is liable.

And we answer:

Rav could say to you: Do not say

that one who says, “Send it by a Canaanite slave,”

is treated as though he said to him

“Prod it with a stick”;

rather, say

that the answer is as follows: The Mishna is speaking

of a case in which he said:

“Prod it with a stick, and it will come.”

The Gemara cites support for this from

that which was stated:

Reuven said to Shimon:

“Lend me your cow,”

and Shimon said to him:

“By whose hand

shall I send it to you?”

And he said to him,

Reuven said:

“Prod it with a stick, and it will come.”

Rav Naḥman said that Rabba bar Avuha said that Rav said: Once it has left the lender’s possession and has died—

he is liable.

It follows from Rav’s words that only when he answered the question, “By whose hand?” by saying, “Prod it with a stick,” does the borrower become liable from the moment the animal itself leaves the lender’s possession.

Shall we say that this supports him

[that there is proof] for Rav from this beraita:

As it was taught: Reuven said to Shimon:

“Lend me your cow,” and he said to him: “By whose hand shall I send it?”

And he said to him: “Prod it with a stick, and it will come,”

the law is:

Once it has left the lender’s possession and has died—

he is liable.

The beraita explicitly states precisely in accordance with Rav’s words.

And we reject this:

Rav Ashi said: With what are we dealing here?

[The beraita is dealing] only with

a case where the borrower’s courtyard was situated inside the lender’s courtyard, and the courtyard

of the lender had an entrance to the public domain and an entrance to the borrower’s inner courtyard.

For when he sends it

the lender, by prodding it with a stick to lead it to the borrower’s courtyard,

it will certainly go there

[it will certainly go there]. And when the borrower said, “Prod it with a stick,” he truly intended that the lender should do so, and he undertook liability for it from the moment it entered his possession.

But in Rav’s case, where the public domain separates the borrower’s courtyard from the lender’s courtyard, when the borrower said, “Prod it with a stick, and it will come,” he did not truly intend that the lender should relinquish control of it and lead it without supervision, and he did not undertake liability for it.

And we challenge Rav Ashi’s interpretation:

If so, what is the beraita teaching us?

In such a case, the borrower is certainly liable!

And we answer:

No, it is necessary

to teach the law in a case where there are recesses in the lender’s courtyard, into which the animal can turn aside and hide.

Lest you say, the borrower’s mind is not settled

[one might have thought that the borrower is not confident] in this case, and he is concerned

that perhaps it will remain there and not go directly

[perhaps it will go into the recesses instead of going straight] to him, and perhaps he did not truly intend what he said.

It teaches us

the beraita

that his mind is nevertheless settled

[and he is considered to have intended it].

The Gemara now presents a dispute among the amoraim concerning the point from which borrowing begins with regard to a particular matter.

Rav Huna said: One who borrows an ax from another,

if he

chopped with it—

he acquired it

for the period of the loan;

if he did not chop with it,

even though he pulled it toward himself—

he did not acquire it.

And we clarify:

For what purpose

does the borrowing depend on using the ax?

If you say, with regard to liability for accidents,

that the borrower is not liable for accidents so long as he has not chopped with the ax,

what is different

[what is the difference] between an ax and

a cow, for which from the moment of borrowing

the borrower is liable for accidents involving it? For it is explicit in the Mishna that if the lender sent the cow to him with his consent, he is liable for accidents, even though he had not used the cow.

And we conclude:

Rather,

Rav Huna’s statement was made

with regard to

the matter of

retraction,

when the lender wishes to retract the loan and take back the ax. In that case, if

he chopped with it,

the borrower,

he cannot retract

[he is unable to retract],

the lender; but if he did not chop with it, the lender can retract,

because the borrower acquires the right to use it through the use itself, and not through pulling.

And

Rav Huna’s statement

disagrees with Rabbi Ami.

[Rav Huna disagrees with Rabbi Ami.]

For Rabbi Ami said: One who lends

to another

a consecrated ax

unwittingly

commits sacrilege,

the lender, and must pay the consecrated property

according to the benefit it contains,

and not pay the value of the ax. For he did not remove it entirely from the domain of the consecrated property; rather, one assesses how much the lender values the gratitude he receives from the borrower, and he pays that amount.

And his fellow,

who borrowed the ax,

is permitted to chop with it ab initio,

even after he learned that the ax was consecrated property. For the law is that sacrilege renders consecrated property non-sacred. Although the ax itself was not rendered non-sacred, since he did not remove it from the domain of the consecrated property, nevertheless the right to benefit from the ax was rendered non-sacred.

And

we learn from Rabbi Ami that one who lends an unconsecrated ax to another acquires it through pulling, since

if he did not acquire it

through pulling,

why did he commit sacrilege,

the lender? He could retract, and it would still not have been removed from the domain of the consecrated property.

And

if Rabbi Ami held that the borrower acquires the ax by chopping with it,

why is his fellow permitted to chop with it ab initio?

Let him return it, not acquire it, and not commit sacrilege.

[He should return it, rather than acquire it, and there would be no sacrilege.]

It follows from Rabbi Ami’s words that the borrower acquires the borrowed object through pulling by Torah law. The Gemara now brings another view that disagrees with Rav Huna and holds that the borrower acquires through pulling by rabbinic ordinance.

And it disagrees with Rabbi Elazar

[Rav Huna disagrees with Rabbi Elazar.]

For Rabbi Elazar said:

By Torah law, one who purchases an object from another acquires it through money, and the Sages instituted that only pulling effects acquisition of movable property.

And just as they instituted pulling for purchasers, so they instituted pulling for custodians.

And the Gemara brings a beraita in accordance with Rabbi Elazar: It was likewise taught: Just as they instituted pulling for purchasers, so they instituted pulling for custodians.