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Today's Daf Yomi

December 29, 2016 | 讻状讟 讘讻住诇讜 转砖注状讝

  • This month's learning is sponsored by Joanna Rom and Steven Goldberg in loving memory of Steve's mother Shirley "Nana" Goldberg (Sura Tema bat Chaim v'Hanka)

Bava Metzia 94

Study Guide Bava Metzia 94. What is considered unanticipated circumstances beyond one’s control that a shomer would be exempt from? 聽One animal attcking? 聽or 2 animals? 聽Does it depend what type of animal? 聽One can stipulate that he will be a shomer but will not be obligated to pay according to the Torah laws. 聽How is this different from a condition that goes against Torah law that generally we say is not a valid condition? 聽Other laws of conditions are discussed. 聽The mishna discusses in which circumstances one is exempt as a borrower because the owner was “with him” she’eila b’baali. 聽The gemara then discusses the derivation of the laws of shomri from the verses in the Torah.

讻讱 讜讻讱 讙讘专讬 讗讬讻讗 讘讛讚谉 讻讱 讜讻讱 讻诇讘讬 讗讬讻讗 讘讛讚谉 讻讱 讜讻讱 讝讜拽转讗 驻住讬拽讗 诇谉 讜讗讝诇 讜砖拽诇 诪讬谞讬讛 诪讗讬 讗诪专 诇讬讛 讛专讬 讛讜诇讬讻谉 诇诪拽讜诐 讙讚讜讚讬 讞讬讛 讜诇住讟讬诐

we have such and such men with us; such and such dogs with us, and such and such slings [zukata] with us. In other words, we are fully protected and you should not dare to take anything from us. If the thief subsequently went and took an animal from him, what is the halakha? Rava said to Abaye: It is as though he has taken them to a place of groups of beasts and bandits, as his taunting of the thief motivated the theft.

诪转谞讬壮 诪转谞讛 砖讜诪专 讞谞诐 诇讛讬讜转 驻讟讜专 诪砖讘讜注讛 讜讛砖讜讗诇 诇讛讬讜转 驻讟讜专 诪诇砖诇诐 谞讜砖讗 砖讻专 讜讛砖讜讻专 诇讛讬讜转 驻讟讜专讬谉 诪砖讘讜注讛 讜诪诇砖诇诐 讻诇 讛诪转谞讛 注诇 诪讛 砖讻转讜讘 讘转讜专讛 转谞讗讜 讘讟诇

MISHNA: The halakhot of bailees stated in the previous mishna apply to standard cases. The halakha is that in any case involving monetary matters the parties may agree to special terms. Therefore, an unpaid bailee may stipulate with the owner that he will be exempt from taking an oath if the item is lost, and similarly, a borrower may stipulate that he will be exempt from having to pay, and a paid bailee or a renter can stipulate that he will be exempt from taking an oath and from having to pay, as one can relinquish his monetary rights. With regard to matters that do not involve monetary claims, anyone who stipulates counter to that which is written in the Torah, his stipulation is void.

讜讻诇 转谞讗讬 砖讬砖 诪注砖讛 讘转讞讬诇转讜 转谞讗讜 讘讟诇 讜讻诇 砖讗驻砖专 诇讜 诇拽讬讬诪讜 讘住讜驻讜 讜讛转谞讛 注诪讜 诪转讞讬诇转讜 转谞讗讜 拽讬讬诐

And any condition that is preceded by an action, i.e., the agreement is formulated with the promise of an action followed by a statement that this action will be carried out only under certain terms, the condition is void and the promise remains intact. The condition must be stated before the action. And with regard to any condition that one can ultimately fulfill, but he stipulated with him initially, i.e., in practice the action is performed first, followed by the fulfillment of the condition, nevertheless, because it was formulated in the proper manner, with the condition first, his condition is valid. If the condition cannot be fulfilled at all, once the action has been carried out the condition is void.

讙诪壮 讗诪讗讬 诪转谞讛 注诇 诪讛 砖讻转讜讘 讘转讜专讛 讛讜讗 讜讻诇 讛诪转谞讛 注诇 诪讛 砖讻转讜讘 讘转讜专讛 转谞讗讜 讘讟诇

GEMARA: The Gemara asks a question with regard to the mishna鈥檚 statement that bailees can issue conditions and change the liabilities imposed on them by Torah law: Why are they able to do so? This is a case of one who stipulates counter to that which is written in the Torah, as the Torah determines who takes an oath and who must pay, and with regard to anyone who stipulates counter to that which is written in the Torah, his condition is void.

讛讗 诪谞讬 专讘讬 讬讛讜讚讛 讛讬讗 讚讗诪专 讘讚讘专 砖讘诪诪讜谉 转谞讗讜 拽讬讬诐 讚转谞讬讗 讛讗讜诪专 诇讗砖讛 讛专讬 讗转 诪拽讜讚砖转 诇讬 注诇 诪谞转 砖讗讬谉 诇讬讱 注诇讬 砖讗专 讻住讜转 讜注讜谞讛 讛专讬 讝讜 诪拽讜讚砖转 讜转谞讗讜 讘讟诇 讚讘专讬 专讘讬 诪讗讬专 专讘讬 讬讛讜讚讛 讗讜诪专 讘讚讘专 砖讘诪诪讜谉 转谞讗讜 拽讬讬诐

The Gemara explains: In accordance with whose opinion is this mishna? It is that of Rabbi Yehuda, who says that if the condition that runs counter to that which is written in the Torah is referring to monetary matters, his condition is valid. As it is taught in a baraita: With regard to one who says to a woman: You are hereby betrothed to me on the condition that you have no claim against me to give you food, clothing, and conjugal rights, she is betrothed but his condition is void; this is the statement of Rabbi Meir. And Rabbi Yehuda said: With regard to monetary matters, i.e., her food and clothing, his condition is valid.

讜诪讬 诪爪讬转 诪讜拽诪转 诇讛 讻专讘讬 讬讛讜讚讛 讗讬诪讗 住讬驻讗 讻诇 讛诪转谞讛 注诇 诪讛 砖讻转讜讘 讘转讜专讛 转谞讗讜 讘讟诇 讗转讗谉 诇专讘讬 诪讗讬专 讛讗 诇讗 拽砖讬讗 诇注讜诇诐 专讘讬 讬讛讜讚讛 讛讬讗 讜住讬驻讗 讘讚讘专 砖讗讬谞讜 砖诇 诪诪讜谉

The Gemara raises a difficulty: But can you establish the mishna in accordance with the opinion of Rabbi Yehuda? Say the latter clause of the mishna: Anyone who stipulates counter to that which is written in the Torah, his condition is void. In this clause we arrive at the opinion of Rabbi Meir. The Gemara answers: This is not difficult, as actually you can explain that the mishna is in accordance with the opinion of Rabbi Yehuda, and the latter clause is referring to non-monetary matters.

讗讬诪讗 住讬驻讗 讻诇 转谞讗讬 砖讬砖 讘讜 诪注砖讛 讘转讞讬诇转讜 转谞讗讜 讘讟诇 诪讗谉 砖诪注转 诇讬讛 讚讗讬转 诇讬讛 讛讗 住讘专讗 专讘讬 诪讗讬专 讚转谞讬讗 讗讘讗 讞诇驻转讗 讗讬砖 讻驻专 讞谞谞讬讗 讗诪专 诪砖讜诐 专讘讬 诪讗讬专 转谞讗讬 拽讜讚诐 诇诪注砖讛 讛专讬 讝讛 转谞讗讬 诪注砖讛 拽讜讚诐 诇转谞讗讬 讗讬谞讜 转谞讗讬

The Gemara continues to question this explanation: But say the latter clause from near the end of the mishna: And any condition that is preceded by an action, the condition is void. Who have you heard who accepts this reasoning? It is Rabbi Meir, as it is taught in a baraita: Abba 岣lafta, from the village of 岣nanya, said in the name of Rabbi Meir: If a condition was stated before the action, this is a valid condition, but if the action came before the condition, it is not a valid condition.

讗诇讗 讻讜诇讛 专讘讬 诪讗讬专 讛讬讗 讜砖讗谞讬 讛讻讗 讚诪注讬拽专讗 诇讗 砖注讘讚 谞驻砖讬讛

Rather, the Gemara retracts the previous explanation and states that the entire mishna is in accordance with the opinion of Rabbi Meir. Why, then, is the bailee exempt from payment or an oath? Because here it is different, as at the outset he did not obligate himself in the halakhot of a bailee as stated in the Torah. Before he entered into the agreement, he clearly stated that he is unwilling to accept upon himself the liabilities of a paid or an unpaid bailee by Torah law.

转谞讗 讜诪转谞讛 砖讜诪专 砖讻专 诇讛讬讜转 讻砖讜讗诇 讘诪讗讬 讘讚讘专讬诐 讗诪专 砖诪讜讗诇 讘砖拽谞讜 诪讬讚讜

A Sage taught in a baraita: Just as a bailee can issue a condition that he should be exempt, the converse is also possible: A paid bailee can stipulate to be like a borrower, i.e., he can accept upon himself all the responsibilities of a borrower. The Gemara asks: By what means is this commitment binding? Is it merely by speech alone? Mere speech is not sufficient to demonstrate a commitment of this kind. Shmuel said: No; it is referring to a case where the owner performed an act of acquisition with the bailee affirming this arrangement. The obligation goes into effect only if there was an act of acquisition.

讜专讘讬 讬讜讞谞谉 讗诪专 讗驻讬诇讜 转讬诪讗 讘砖诇讗 拽谞讜 诪讬讚讜 讘讛讛讬讗 讛谞讗讛 讚拽讗 谞驻讬拽 诇讬讛 拽诇讗 讚讗讬谞讬砖 诪讛讬诪谞讗 讛讜讗 讙诪讬专 讜诪砖注讘讚 谞驻砖讬讛

And Rabbi Yo岣nan said: You may even say that it is referring to a situation where the owner did not perform an act of acquisition with the bailee, and even so he is liable as a borrower. The reason is that by means of that benefit he receives from the fact that a rumor goes out about him that he is a trustworthy person, he commits wholeheartedly to obligate himself, even by means of a verbal promise alone. Therefore, there is no need for a formal act of acquisition.

讜讻诇 砖讗驻砖专 诇讜 诇拽讬讬诪讜 讘住讜驻讜 讜讻讜壮 讗诪专 专讘 讟讘诇讗 讗诪专 专讘 讝讜 讚讘专讬 专讘讬 讬讛讜讚讛 讘谉 转讬诪讗 讗讘诇 讞讻诪讬诐 讗讜诪专讬诐 讗祝 注诇 驻讬 砖讗讬 讗驻砖专 诇讜 诇拽讬讬诪讜 讘住讜驻讜 讜讛转谞讛 注诇讬讜 诪转讞讬诇转讜 转谞讗讜 拽讬讬诐

搂 The mishna teaches: With regard to any condition that ultimately can be fulfilled, if he stipulated it initially, his condition is valid. Rav Tavla says that Rav says: This is the statement of Rabbi Yehuda ben Teima, but the Rabbis say: Even though one cannot ultimately fulfill the condition, and he stipulated with regard to it initially, his condition is valid.

讚转谞讬讗 讛专讬 讝讛 讙讬讟讱 注诇 诪谞转 砖转注诇讬 诇专拽讬注 注诇 诪谞转 砖转专讚讬 诇转讛讜诐 注诇 诪谞转 砖转讘诇注讬 拽谞讛 砖诇 诪讗讛 讗诪讛 注诇 诪谞转 砖转注讘专讬 讗转 讛讬诐 讛讙讚讜诇 讘专讙诇讬讱 谞转拽讬讬诐 讛转谞讗讬 讛专讬 讝讛 讙讟 诇讗 谞转拽讬讬诐 讛转谞讗讬 讗讬谞讜 讙讟

As it is taught in a baraita: If a man said to his wife: This is your bill of divorce on the condition that you ascend to the skies, or on the condition that you descend to the depths; or on the condition that you swallow a reed of one hundred cubits in size; or on the condition that you cross the Great Sea by foot, only if the condition was fulfilled and she did as he demanded is this a valid bill of divorce, but if the condition was not fulfilled it is not a valid bill of divorce. According to this tanna, the condition is binding despite the fact that it cannot be fulfilled in practice.

专讘讬 讬讛讜讚讛 讘谉 转讬诪讗 讗讜诪专 讻讝讛 讙讟 讻诇诇 讗诪专 专讘讬 讬讛讜讚讛 讘谉 转讬诪讗 讻诇 砖讗讬 讗驻砖专 诇讜 诇拽讬讬诪讜 讘住讜驻讜 讜讛转谞讛 注诇讬讜 诪转讞讬诇转讜 讗讬谞讜 讗诇讗 讻诪驻诇讬讙讛 讜讻砖专

Rabbi Yehuda ben Teima says: A document such as this is a valid bill of divorce. The condition is negated, and therefore the bill of divorce is valid even though the condition was not fulfilled. As Rabbi Yehuda ben Teima stated a principle: With regard to any condition that one cannot ultimately fulfill, i.e., a condition that cannot be fulfilled at all, and yet he stipulated to this effect, even if he did so initially, he is considered as only exaggerating, and the document is valid. The supposed condition is not taken seriously and is not binding.

讗诪专 专讘 谞讞诪谉 讗诪专 专讘 讛诇讻讛 讻专讘讬 讬讛讜讚讛 讘谉 转讬诪讗 讗诪专 专讘 谞讞诪谉 讘专 讬爪讞拽 诪转谞讬转讬谉 谞诪讬 讚讬拽讗 讚拽转谞讬 讻诇 砖讗驻砖专 诇讜 诇拽讬讬诪讜 讘住讜驻讜 讜讛转谞讛 注诇讬讜 诪转讞讬诇转讜 转谞讗讜 拽讬讬诐 讛讗 讗讬 讗驻砖专 诇讜 诇拽讬讬诪讜 转谞讗讜 讘讟诇 砖诪注 诪讬谞讛

Rav Na岣an says that Rav says: The halakha is in accordance with the opinion of Rabbi Yehuda ben Teima. Rav Na岣an bar Yitz岣k said: The mishna is also precisely formulated in accordance with this opinion, as it teaches: With regard to any condition that ultimately he can fulfill, and he stipulated with regard to it initially, his condition is valid. This indicates that if he cannot fulfill it, his condition is void. The Gemara affirms: One can learn from this formulation that the unattributed mishna does in fact represent the opinion of Rabbi Yehuda ben Teima.

讛讚专谉 注诇讱 讛砖讜讻专 讗转 讛驻讜注诇讬诐

 

诪转谞讬壮 讛砖讜讗诇 讗转 讛驻专讛 讜砖讗诇 讘注诇讬讛 注诪讛 讗讜 砖讻专 讘注诇讬讛 注诪讛 砖讗诇 讛讘注诇讬诐 讗讜 砖讻专谉 讜讗讞专 讻讱 砖讗诇 讗转 讛驻专讛 讜诪转讛 驻讟讜专 砖谞讗诪专 讗诐 讘注诇讬讜 注诪讜 诇讗 讬砖诇诐

MISHNA: In the case of one who borrowed a cow and borrowed the services of its owner with it, or he borrowed a cow and hired its owner with it, or he borrowed the services of the owner or hired him and afterward borrowed the cow; in all such cases, if the cow died, the borrower is exempt from liability. Although a borrower is generally liable to pay if a cow he borrowed dies, here he is exempt, as it is stated: 鈥淚f its owner is with him, he does not pay鈥 (Exodus 22:14).

讗讘诇 砖讗诇 讗转 讛驻专讛 讜讗讞专 讻讱 砖讗诇 讗转 讛讘注诇讬诐 讗讜 砖讻专谉 讜诪转讛 讞讬讬讘 砖谞讗诪专 讘注诇讬讜 讗讬谉 注诪讜 砖诇诐 讬砖诇诐

But if one first borrowed the cow and only afterward borrowed the services of the owner or hired him, and the cow died, he is liable to pay the owner for the cow. This is the halakha even if the owner was working for the borrower at the time, as it is stated: 鈥淚f its owner is not with him, he shall pay鈥 (Exodus 22:13).

讙诪壮 诪讚拽转谞讬 住讬驻讗 讜讗讞专 讻讱 砖讗诇 讗转 讛驻专讛 诪讻诇诇 讚专讬砖讗 讚拽转谞讬 注诪讛 注诪讛 诪诪砖 注诪讛 诪诪砖 诪讬 诪砖讻讞转 诇讛 驻专讛 讘诪砖讬讻讛 讜讘注诇讬诐 讘讗诪讬专讛

GEMARA: From the fact that the latter clause teaches: And afterward borrowed the cow, it may be inferred that when the first clause teaches: Borrowed its owner with it, the intention is: Literally with it, i.e., at the same moment. The Gemara asks: Can you find such a case where the owner obligates himself to serve the borrower literally with it? Given that one borrows the cow through pulling the cow and contracts the services of the owner through their verbal agreement, it emerges that if they agree to both matters at the same time, one borrows the services of the owner before he borrows the cow, which is the case mentioned in the latter clause of the mishna. What, then, is the case mentioned in the first clause?

讗讬讘注讬转 讗讬诪讗 讻讙讜谉 讚拽讬讬诪讗 驻专讛 讘讞爪专讜 讚砖讜讗诇 讚诇讗 诪讞住专讗 诪砖讬讻讛 讗讬讘注讬转 讗讬诪讗 讚讗诪专 诇讬讛 讗转 讙讜驻讱 诇讗 转砖讗诇 注讚 砖注转 诪砖讬讻转 驻专转讱

The Gemara answers: If you wish, say that the mishna is referring to a case such as where the cow is standing in the borrower鈥檚 courtyard, which can effect acquisition of the rights to use the cow for him, so that it does not lack, i.e., there is no need for, pulling. Accordingly, both the borrowing of the owner鈥檚 services and the borrowing of his cow will take effect simultaneously upon their agreement. Alternatively, if you wish, say that the case is where the borrower says to him: You, yourself, will not be lent to me until the moment of the pulling of your cow.

转谞谉 讛转诐 讗专讘注讛 砖讜诪专讬诐 讛诐 砖讜诪专 讞谞诐 讜讛砖讜讗诇 谞讜砖讗 砖讻专 讜讛砖讜讻专

搂 The Gemara analyses the halakhot of the four types of bailees that were delineated in the previous chapter: We learned in a mishna there (93a): There are four types of bailees: An unpaid bailee, and the borrower, a paid bailee, and the renter.

砖讜诪专 讞谞诐 谞砖讘注 注诇 讛讻诇 讜讛砖讜讗诇 诪砖诇诐 讗转 讛讻诇 谞讜砖讗 砖讻专 讜讛砖讜讻专 谞砖讘注讬谉 注诇 讛砖讘讜专讛 讜注诇 讛砖讘讜讬讛 讜注诇 讛诪转讛 讜诪砖诇诪讬诐 讗转 讛讗讘讬讚讛 讜讗转 讛讙谞讬讘讛

The mishna there continues: If the item was stolen, lost, or broken, or if the animal died in any manner, the halakhot with regard to them are as follows: An unpaid bailee takes an oath over every outcome; whether the item was lost, stolen, or broken, or if the animal died, the unpaid bailee must take an oath that it happened as he described, and he is then exempt from payment. And the borrower does not take an oath, but pays for every outcome, whether it was stolen or lost, even in a circumstance beyond his control. The halakhot of a paid bailee and a renter are the same: They take an oath over an injured animal, over a captured animal, and over a dead animal, attesting that the mishaps were caused by circumstances beyond their control, and they are exempt; but they must pay for loss or theft.

诪谞讗 讛谞讬 诪讬诇讬 讚转谞讜 专讘谞谉 驻专砖讛 专讗砖讜谞讛 谞讗诪专讛 讘砖讜诪专 讞谞诐 砖谞讬讛 讘砖讜诪专 砖讻专 砖诇讬砖讬转 讘砖讜讗诇

The Gemara asks: From where are these matters derived? As the Sages taught in a baraita: The verses in the Torah about bailees can be divided into three passages. The first passage (Exodus 22:6鈥8) is stated about an unpaid bailee; the second (Exodus 22:9鈥12) is about a paid bailee; and the third (Exodus 22:13鈥14) is about a borrower.

讘砖诇诪讗 砖诇讬砖讬转 讘砖讜讗诇 诪驻讜专砖 讜讻讬 讬砖讗诇 讗讬砖 诪注诐 专注讛讜 讜谞砖讘专 讗讜 诪转 讘注诇讬讜 讗讬谉 注诪讜 砖诇诐 讬砖诇诐 讗诇讗 专讗砖讜谞讛 讘砖讜诪专 讞谞诐 砖谞讬讛 讘砖讜诪专 砖讻专 讗讬驻讜讱 讗谞讗

The Gemara asks: Granted, it is clear that the third passage is about a borrower, as the verse explicitly states: 鈥淎nd when a man borrows from another, and it is injured or dies, if its owner is not with him, he shall pay鈥 (Exodus 22:13). But with regard to the claim of the baraita that the first passage is about an unpaid bailee and the second is about a paid bailee, I could also say the reverse, as the verses do not state which type of bailee they are referring to.

诪住转讘专讗 砖谞讬讛 讘砖讜诪专 砖讻专 砖讻谉 讞讬讬讘 讘讙谞讬讘讛 讜讗讘讬讚讛 讗讚专讘讛 专讗砖讜谞讛 讘砖讜诪专 砖讻专 砖讻谉 诪砖诇诐 转砖诇讜诪讬 讻驻诇 讘讟讜注谉 讟注谞转 讙谞讘

The Gemara justifies the claim of the baraita: Clearly a paid bailee carries a more severe level of liability that an unpaid bailee. Accordingly, it stands to reason that the second passage is about a paid bailee, as it states a stringency, that the bailee is liable even in cases of theft or loss (see Exodus 22:11). The Gemara challenges this claim: On the contrary, it stands to reason that the first passage is about a paid bailee, as it states a stringency, that the bailee pays the double payment in a case where he takes a false oath stating the claim that a thief stole the item he was safeguarding (see Exodus 22:6).

讗驻讬诇讜 讛讻讬 拽专谞讗 讘诇讗 砖讘讜注讛 注讚讬驻讗 诪讻驻讬诇讗 讘砖讘讜注讛

The Gemara explains: Even so, being liable to pay the principal whenever one claims the deposit was stolen, without the ability to exempt oneself by taking an oath, is a greater stringency than being liable for the double payment, as that liability is only when one takes a false oath to that effect. Otherwise, he is exempt.

转讚注 讚讛讗 砖讜讗诇 讻诇 讛谞讗讛 砖诇讜 讜讗讬谞讜 诪砖诇诐 讗诇讗 拽专谉

The Gemara adds: Know that this is so, as a borrower bears the most severe level of liability, because he is privileged. All benefit from the transaction is his, without incurring any cost to himself. And in cases of theft he pays only the principal but is never required to pay the double payment.

讜讛砖讜讗诇 讻诇 讛谞讗讛 砖诇讜 讜讛讗 讘注讬讗 诪讝讜谞讬 讚拽讬讬诪讗 讘讗讙诐 讜讛讗 讘注讬讗 谞讟讬专讛 讘谞讟专 诪转讗 讜讗讬讘注讬转 讗讬诪讗 诇讗 转讬诪讗 讻诇 讛谞讗讛 砖诇讜 讗诇讗 讗讬诪讗 专讜讘 讛谞讗讛 砖诇讜 讜讗讬讘注讬转 讗讬诪讗 讘砖讗讬诇转 讻诇讬诐

The Gemara questions the proof just cited: But is it true that with regard to the borrower all benefit from the transaction is his? But doesn鈥檛 the animal require food, which the borrower must provide? The Gemara answers: The halakhot of a borrower also apply when the animal is standing in a marsh, where food is freely available. The Gemara persists: But doesn鈥檛 the animal require safeguarding? The Gemara answers: The halakhot of a borrower also apply when the borrower is a city guard and does not need to do anything additional to safeguard the animal. And if you wish, say: Do not say that all benefit is his, rather say: Most of the benefit is his, and that is sufficient reason to render him liable in all circumstances. And if you wish, say that the halakhot of a borrower apply also with regard to borrowing vessels, which do not require constant care. In any event, it is clear that a borrower is uniquely privileged and accordingly bears the most severe level of liability.

谞讜砖讗 砖讻专 讜讛砖讜讻专 谞砖讘注讬谉 注诇 讛砖讘讜专讛 讜注诇 讛砖讘讜讬讛 讜注诇 讛诪转讛 讜诪砖诇诪讬谉 讗转 讛讗讘讬讚讛 讜讗转 讛讙谞讬讘讛

搂 The mishna cited previously states: The halakhot of a paid bailee and a renter are the same: They take an oath over an injured animal, over a captured animal, and over a dead animal, attesting that the mishaps were caused by circumstances beyond their control, and they are exempt; but they must pay for loss or theft.

讘砖诇诪讗 讙谞讬讘讛 讚讻转讬讘 讗诐 讙谞讜讘 讬讙谞讘 诪注诪讜 讬砖诇诐 诇讘注诇讬讜 讗诇讗 讗讘讬讚讛 诪谞讗 诇谉 讚转谞讬讗 讗诐 讙谞讘 讬讙谞讘 讗讬谉 诇讬 讗诇讗 讙谞讬讘讛 讗讘讬讚讛 诪谞讬谉 转诇诪讜讚 诇讜诪专 讗诐 讙谞讜讘 讬讙谞讘 诪讻诇 诪拽讜诐

The Gemara asks: Granted, a paid bailee is liable in the case of theft, as it is written: 鈥淚f it is stolen from him, he must pay its owner鈥 (Exodus 22:11). But in a case of loss, from where do we derive that a paid bailee is liable? The Gemara answers: As it is taught in a baraita: From the verse: 鈥淚f it is stolen [ganov yigganev],鈥 I have derived only that a paid bailee is liable if the item he is safeguarding is stolen; from where do I derive he is liable also if it is lost? The verse states: 鈥ganov yigganev,鈥 repeating the verb for emphasis. This teaches that he is liable in any case, i.e., for loss as well as theft.

讛谞讬讞讗 诇诪讗谉 讚讗诪专 诇讗 讗诪专讬谞谉 讚讘专讛 转讜专讛 讻诇砖讜谉 讘谞讬 讗讚诐 讗诇讗 诇诪讗谉 讚讗诪专 讗诪专讬谞谉 讚讘专讛 转讜专讛 讻诇砖讜谉 讘谞讬 讗讚诐 诪讗讬 讗讬讻讗 诇诪讬诪专

The Gemara asks: This works out well according to the one who says: We do not say that the Torah spoke in the language of people, and so any repeated verb must serve to teach additional halakhot. But according to the one who says: We do say that the Torah spoke in the language of people, and so the use of a repeated verb is only for stylistic reasons, what can be said? From where is it derived that the bailee is liable for losing the item?

讗诪专讬 讘诪注专讘讗 拽诇 讜讞讜诪专 讜诪讛 讙谞讬讘讛 砖拽专讜讘讛 诇讗讜谞住 诪砖诇诐 讗讘讬讚讛 砖拽专讜讘讛 诇驻砖讬注讛 诇讗 讻诇 砖讻谉

They say in the West, Eretz Yisrael: It is derived through an a fortiori inference: If in a case of theft, which is near to being a case of circumstances beyond his control, the halakha is that the bailee pays the owner the item鈥檚 value, then in a case of loss, which is near to being a case of negligence, is it not all the more so logical that he should pay?

讜讗讬讚讱 诪讬诇转讗 讚讗转讬讗 讘拽诇 讜讞讜诪专 讟专讞 讜讻转讘 诇讛 拽专讗

The Gemara asks: And according to the other opinion, why is there a need for a verse to teach this halakha if it can be derived from an a fortiori inference? The Gemara answers: At times, there is a matter that can be derived through an a fortiori inference, and the verse nevertheless takes the trouble and writes it explicitly.

讜讛砖讜讗诇 诪砖诇诐 讗转 讛讻诇 讘砖诇诪讗 砖讘讜专讛 讜诪转讛 讚讻转讬讘 讜讻讬 讬砖讗诇 讗讬砖 诪注诐 专注讛讜 讜谞砖讘专 讗讜 诪转 讗诇讗 砖讘讜讬讛 讘砖讜讗诇 诪谞讗 诇谉

搂 The mishna cited above states: And the borrower does not take an oath, but pays for every outcome, whether it was stolen or lost, even in a circumstance beyond his control. The Gemara asks: Granted, the bailee is liable if the animal is injured or dies, as it is written: 鈥淎nd if a man borrows from another and it is injured or dies鈥he shall pay鈥 (Exodus 22:13). But from where do we derive the liability of a borrower when the animal is captured?

讜讻讬 转讬诪讗 谞讬诇祝 诪砖讘讜专讛 讜诪转讛 诪讛 诇砖讘讜专讛 讜诪转讛 砖讻谉 讗讜谞住讗 讚住诇讬拽 讗讚注转讗 讛讜讗 转讗诪专 讘砖讘讜讬讛 砖讻谉 讗讜谞住讗 讚诇讗 住诇讬拽 讗讚注转讗 讛讜讗

And if you would say: Let us derive it from the fact the borrower is liable if the animal was injured or dies because they are all similarly cases of circumstances beyond his control, then one could counter as follows: What is notable about a case where the animal is injured or died? It is notable in that it is the type of unavoidable accident whose possibility of occurring entered one鈥檚 mind, so it is reasonable that the borrower accepted responsibility for such mishaps. Can you say the same about being captured, which is an unavoidable accident whose possibility of occurring does not enter one鈥檚 mind?

讗诇讗 谞讗诪专讛 砖讘讜专讛 讜诪转讛 讘砖讜讗诇 讜谞讗诪专讛 砖讘讜专讛 讜诪转讛 讘砖讜诪专 砖讻专 诪讛 诇讛诇谉 砖讘讜讬讛 注诪讜 讗祝 讻讗谉 砖讘讜讬讛 注诪讜

Rather, the liability of a borrower in a case where the animal is captured is derived as follows: The cases where the animal is injured or dies are stated in the passage about a borrower, and similarly the cases where it is injured or dies are stated in the passage about a paid bailee. Just as below, i.e., in the passage in the Torah concerning a paid bailee, the case in which it is captured is included with it, as the verse there states: 鈥淚f a man deliver to his neighbor a donkey, or an ox, or a sheep, or any beast, to safeguard, and it die, or be hurt, or is captured鈥 (Exodus 22:9); so too here, with regard to a borrower, the case where it is captured is included with it.

讗讬讻讗 诇诪讬驻专讱 诪讛 诇砖讜诪专 砖讻专 砖讻谉 诇驻讟讜专 转讗诪专 讘砖讜讗诇 砖讻谉 诇讞讬讜讘

The Gemara explains that this derivation can be refuted as follows: What is notable about a paid bailee? He is notable in that the cases in which the animal is injured or dies are mentioned in order to exempt him from liability. Can you say this is also true with regard to a borrower, where the cases are mentioned in order to teach that he is liable?

讗诇讗 讻专讘讬 谞转谉 讚转谞讬讗 专讘讬 谞转谉 讗讜诪专 讗讜 诇专讘讜转 砖讘讜讬讛

Rather, the liability of a borrower in a case where the animal is captured is derived in accordance with the statement of Rabbi Natan, as it is taught in a baraita: Rabbi Natan says: The word 鈥渙r鈥 in the phrase 鈥渋njured or dies鈥 (Exodus 22:13) serves to include the case in which the animal was captured.

讛讗讬 讗讜 诪讬讘注讬讗 诇讬讛 诇讞诇拽 讚住诇拽讗 讚注转讱 讗诪讬谞讗 注讚 讚诪讬转讘专讗 讜诪转讛 诇讗 诪讞讬讬讘 拽讗 诪砖诪注 诇谉

The Gemara asks: But this word 鈥渙r鈥 is required in order to divide the cases, as otherwise it could enter your mind to say that the bailee is not liable unless the animal is first injured and then also dies. Therefore, the term 鈥渙r鈥 is necessary to teach us that these are two separate cases.

讛谞讬讞讗 诇专讘讬 讬讜谞转谉 讗诇讗 诇专讘讬 讬讗砖讬讛 诪讗讬 讗讬讻讗 诇诪讬诪专

The Gemara comments: This works out well according to the opinion of Rabbi Yonatan, that it is obvious that the borrower is liable even if the animal died without being injured first. Consequently, 鈥渙r鈥 is unnecessary, and so it can be used for Rabbi Natan鈥檚 derivation. But according to the opinion of Rabbi Yoshiya, what is there to say? According to his opinion, it is necessary for the Torah to state 鈥渙r鈥 in this case, to teach that the borrower is liable even if the animal dies without being injured first, and so it cannot be used for a derivation.

讚转谞讬讗 讗讬砖 讗砖专 讬拽诇诇 讗转 讗讘讬讜 讜讗转 讗诪讜 讗讬谉 诇讬 讗诇讗 讗讘讬讜 讜讗诪讜 讗讘讬讜 讘诇讗 讗诪讜 讗诪讜 讘诇讗 讗讘讬讜 诪谞讬谉 转诇诪讜讚 诇讜诪专 讗讘讬讜 讜讗诪讜 拽诇诇 讗讘讬讜 拽诇诇 讗诪讜 拽诇诇 讚讘专讬 专讘讬 讬讗砖讬讛

The Gemara explains: As it is taught in a baraita: From the verse: 鈥淎 man who curses his father and his mother shall die鈥 (Leviticus 20:9), I have derived only that one is liable if he curses both his father and his mother. From where do I derive that if one curses his father but not his mother, or his mother but not his father, that he is liable? The continuation of the verse states: 鈥淗is father and his mother he has cursed, his blood is upon him.鈥 In the first part of the verse, the word 鈥渃urses鈥 is in proximity to 鈥渉is father,鈥 and in the last part of the verse, it is in proximity to 鈥渉is mother.鈥 This teaches that the verse is referring to both a case where he cursed only his father and a case where he cursed only his mother; this is the statement of Rabbi Yoshiya.

专讘讬 讬讜谞转谉 讗讜诪专 诪砖诪注 砖谞讬讛诐 讻讗讞讚 讜诪砖诪注 讗讞讚 讘驻谞讬 注爪诪讜

Rabbi Yonatan says: There is no need for this derivation, because the phrase 鈥渉is father and his mother鈥 indicates that one is liable if he curses both of them together, and it also indicates that he is liable if he curses either one of them on their own,

  • This month's learning is sponsored by Joanna Rom and Steven Goldberg in loving memory of Steve's mother Shirley "Nana" Goldberg (Sura Tema bat Chaim v'Hanka)

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Bava Metzia 94

The William Davidson Talmud | Powered by Sefaria

Bava Metzia 94

讻讱 讜讻讱 讙讘专讬 讗讬讻讗 讘讛讚谉 讻讱 讜讻讱 讻诇讘讬 讗讬讻讗 讘讛讚谉 讻讱 讜讻讱 讝讜拽转讗 驻住讬拽讗 诇谉 讜讗讝诇 讜砖拽诇 诪讬谞讬讛 诪讗讬 讗诪专 诇讬讛 讛专讬 讛讜诇讬讻谉 诇诪拽讜诐 讙讚讜讚讬 讞讬讛 讜诇住讟讬诐

we have such and such men with us; such and such dogs with us, and such and such slings [zukata] with us. In other words, we are fully protected and you should not dare to take anything from us. If the thief subsequently went and took an animal from him, what is the halakha? Rava said to Abaye: It is as though he has taken them to a place of groups of beasts and bandits, as his taunting of the thief motivated the theft.

诪转谞讬壮 诪转谞讛 砖讜诪专 讞谞诐 诇讛讬讜转 驻讟讜专 诪砖讘讜注讛 讜讛砖讜讗诇 诇讛讬讜转 驻讟讜专 诪诇砖诇诐 谞讜砖讗 砖讻专 讜讛砖讜讻专 诇讛讬讜转 驻讟讜专讬谉 诪砖讘讜注讛 讜诪诇砖诇诐 讻诇 讛诪转谞讛 注诇 诪讛 砖讻转讜讘 讘转讜专讛 转谞讗讜 讘讟诇

MISHNA: The halakhot of bailees stated in the previous mishna apply to standard cases. The halakha is that in any case involving monetary matters the parties may agree to special terms. Therefore, an unpaid bailee may stipulate with the owner that he will be exempt from taking an oath if the item is lost, and similarly, a borrower may stipulate that he will be exempt from having to pay, and a paid bailee or a renter can stipulate that he will be exempt from taking an oath and from having to pay, as one can relinquish his monetary rights. With regard to matters that do not involve monetary claims, anyone who stipulates counter to that which is written in the Torah, his stipulation is void.

讜讻诇 转谞讗讬 砖讬砖 诪注砖讛 讘转讞讬诇转讜 转谞讗讜 讘讟诇 讜讻诇 砖讗驻砖专 诇讜 诇拽讬讬诪讜 讘住讜驻讜 讜讛转谞讛 注诪讜 诪转讞讬诇转讜 转谞讗讜 拽讬讬诐

And any condition that is preceded by an action, i.e., the agreement is formulated with the promise of an action followed by a statement that this action will be carried out only under certain terms, the condition is void and the promise remains intact. The condition must be stated before the action. And with regard to any condition that one can ultimately fulfill, but he stipulated with him initially, i.e., in practice the action is performed first, followed by the fulfillment of the condition, nevertheless, because it was formulated in the proper manner, with the condition first, his condition is valid. If the condition cannot be fulfilled at all, once the action has been carried out the condition is void.

讙诪壮 讗诪讗讬 诪转谞讛 注诇 诪讛 砖讻转讜讘 讘转讜专讛 讛讜讗 讜讻诇 讛诪转谞讛 注诇 诪讛 砖讻转讜讘 讘转讜专讛 转谞讗讜 讘讟诇

GEMARA: The Gemara asks a question with regard to the mishna鈥檚 statement that bailees can issue conditions and change the liabilities imposed on them by Torah law: Why are they able to do so? This is a case of one who stipulates counter to that which is written in the Torah, as the Torah determines who takes an oath and who must pay, and with regard to anyone who stipulates counter to that which is written in the Torah, his condition is void.

讛讗 诪谞讬 专讘讬 讬讛讜讚讛 讛讬讗 讚讗诪专 讘讚讘专 砖讘诪诪讜谉 转谞讗讜 拽讬讬诐 讚转谞讬讗 讛讗讜诪专 诇讗砖讛 讛专讬 讗转 诪拽讜讚砖转 诇讬 注诇 诪谞转 砖讗讬谉 诇讬讱 注诇讬 砖讗专 讻住讜转 讜注讜谞讛 讛专讬 讝讜 诪拽讜讚砖转 讜转谞讗讜 讘讟诇 讚讘专讬 专讘讬 诪讗讬专 专讘讬 讬讛讜讚讛 讗讜诪专 讘讚讘专 砖讘诪诪讜谉 转谞讗讜 拽讬讬诐

The Gemara explains: In accordance with whose opinion is this mishna? It is that of Rabbi Yehuda, who says that if the condition that runs counter to that which is written in the Torah is referring to monetary matters, his condition is valid. As it is taught in a baraita: With regard to one who says to a woman: You are hereby betrothed to me on the condition that you have no claim against me to give you food, clothing, and conjugal rights, she is betrothed but his condition is void; this is the statement of Rabbi Meir. And Rabbi Yehuda said: With regard to monetary matters, i.e., her food and clothing, his condition is valid.

讜诪讬 诪爪讬转 诪讜拽诪转 诇讛 讻专讘讬 讬讛讜讚讛 讗讬诪讗 住讬驻讗 讻诇 讛诪转谞讛 注诇 诪讛 砖讻转讜讘 讘转讜专讛 转谞讗讜 讘讟诇 讗转讗谉 诇专讘讬 诪讗讬专 讛讗 诇讗 拽砖讬讗 诇注讜诇诐 专讘讬 讬讛讜讚讛 讛讬讗 讜住讬驻讗 讘讚讘专 砖讗讬谞讜 砖诇 诪诪讜谉

The Gemara raises a difficulty: But can you establish the mishna in accordance with the opinion of Rabbi Yehuda? Say the latter clause of the mishna: Anyone who stipulates counter to that which is written in the Torah, his condition is void. In this clause we arrive at the opinion of Rabbi Meir. The Gemara answers: This is not difficult, as actually you can explain that the mishna is in accordance with the opinion of Rabbi Yehuda, and the latter clause is referring to non-monetary matters.

讗讬诪讗 住讬驻讗 讻诇 转谞讗讬 砖讬砖 讘讜 诪注砖讛 讘转讞讬诇转讜 转谞讗讜 讘讟诇 诪讗谉 砖诪注转 诇讬讛 讚讗讬转 诇讬讛 讛讗 住讘专讗 专讘讬 诪讗讬专 讚转谞讬讗 讗讘讗 讞诇驻转讗 讗讬砖 讻驻专 讞谞谞讬讗 讗诪专 诪砖讜诐 专讘讬 诪讗讬专 转谞讗讬 拽讜讚诐 诇诪注砖讛 讛专讬 讝讛 转谞讗讬 诪注砖讛 拽讜讚诐 诇转谞讗讬 讗讬谞讜 转谞讗讬

The Gemara continues to question this explanation: But say the latter clause from near the end of the mishna: And any condition that is preceded by an action, the condition is void. Who have you heard who accepts this reasoning? It is Rabbi Meir, as it is taught in a baraita: Abba 岣lafta, from the village of 岣nanya, said in the name of Rabbi Meir: If a condition was stated before the action, this is a valid condition, but if the action came before the condition, it is not a valid condition.

讗诇讗 讻讜诇讛 专讘讬 诪讗讬专 讛讬讗 讜砖讗谞讬 讛讻讗 讚诪注讬拽专讗 诇讗 砖注讘讚 谞驻砖讬讛

Rather, the Gemara retracts the previous explanation and states that the entire mishna is in accordance with the opinion of Rabbi Meir. Why, then, is the bailee exempt from payment or an oath? Because here it is different, as at the outset he did not obligate himself in the halakhot of a bailee as stated in the Torah. Before he entered into the agreement, he clearly stated that he is unwilling to accept upon himself the liabilities of a paid or an unpaid bailee by Torah law.

转谞讗 讜诪转谞讛 砖讜诪专 砖讻专 诇讛讬讜转 讻砖讜讗诇 讘诪讗讬 讘讚讘专讬诐 讗诪专 砖诪讜讗诇 讘砖拽谞讜 诪讬讚讜

A Sage taught in a baraita: Just as a bailee can issue a condition that he should be exempt, the converse is also possible: A paid bailee can stipulate to be like a borrower, i.e., he can accept upon himself all the responsibilities of a borrower. The Gemara asks: By what means is this commitment binding? Is it merely by speech alone? Mere speech is not sufficient to demonstrate a commitment of this kind. Shmuel said: No; it is referring to a case where the owner performed an act of acquisition with the bailee affirming this arrangement. The obligation goes into effect only if there was an act of acquisition.

讜专讘讬 讬讜讞谞谉 讗诪专 讗驻讬诇讜 转讬诪讗 讘砖诇讗 拽谞讜 诪讬讚讜 讘讛讛讬讗 讛谞讗讛 讚拽讗 谞驻讬拽 诇讬讛 拽诇讗 讚讗讬谞讬砖 诪讛讬诪谞讗 讛讜讗 讙诪讬专 讜诪砖注讘讚 谞驻砖讬讛

And Rabbi Yo岣nan said: You may even say that it is referring to a situation where the owner did not perform an act of acquisition with the bailee, and even so he is liable as a borrower. The reason is that by means of that benefit he receives from the fact that a rumor goes out about him that he is a trustworthy person, he commits wholeheartedly to obligate himself, even by means of a verbal promise alone. Therefore, there is no need for a formal act of acquisition.

讜讻诇 砖讗驻砖专 诇讜 诇拽讬讬诪讜 讘住讜驻讜 讜讻讜壮 讗诪专 专讘 讟讘诇讗 讗诪专 专讘 讝讜 讚讘专讬 专讘讬 讬讛讜讚讛 讘谉 转讬诪讗 讗讘诇 讞讻诪讬诐 讗讜诪专讬诐 讗祝 注诇 驻讬 砖讗讬 讗驻砖专 诇讜 诇拽讬讬诪讜 讘住讜驻讜 讜讛转谞讛 注诇讬讜 诪转讞讬诇转讜 转谞讗讜 拽讬讬诐

搂 The mishna teaches: With regard to any condition that ultimately can be fulfilled, if he stipulated it initially, his condition is valid. Rav Tavla says that Rav says: This is the statement of Rabbi Yehuda ben Teima, but the Rabbis say: Even though one cannot ultimately fulfill the condition, and he stipulated with regard to it initially, his condition is valid.

讚转谞讬讗 讛专讬 讝讛 讙讬讟讱 注诇 诪谞转 砖转注诇讬 诇专拽讬注 注诇 诪谞转 砖转专讚讬 诇转讛讜诐 注诇 诪谞转 砖转讘诇注讬 拽谞讛 砖诇 诪讗讛 讗诪讛 注诇 诪谞转 砖转注讘专讬 讗转 讛讬诐 讛讙讚讜诇 讘专讙诇讬讱 谞转拽讬讬诐 讛转谞讗讬 讛专讬 讝讛 讙讟 诇讗 谞转拽讬讬诐 讛转谞讗讬 讗讬谞讜 讙讟

As it is taught in a baraita: If a man said to his wife: This is your bill of divorce on the condition that you ascend to the skies, or on the condition that you descend to the depths; or on the condition that you swallow a reed of one hundred cubits in size; or on the condition that you cross the Great Sea by foot, only if the condition was fulfilled and she did as he demanded is this a valid bill of divorce, but if the condition was not fulfilled it is not a valid bill of divorce. According to this tanna, the condition is binding despite the fact that it cannot be fulfilled in practice.

专讘讬 讬讛讜讚讛 讘谉 转讬诪讗 讗讜诪专 讻讝讛 讙讟 讻诇诇 讗诪专 专讘讬 讬讛讜讚讛 讘谉 转讬诪讗 讻诇 砖讗讬 讗驻砖专 诇讜 诇拽讬讬诪讜 讘住讜驻讜 讜讛转谞讛 注诇讬讜 诪转讞讬诇转讜 讗讬谞讜 讗诇讗 讻诪驻诇讬讙讛 讜讻砖专

Rabbi Yehuda ben Teima says: A document such as this is a valid bill of divorce. The condition is negated, and therefore the bill of divorce is valid even though the condition was not fulfilled. As Rabbi Yehuda ben Teima stated a principle: With regard to any condition that one cannot ultimately fulfill, i.e., a condition that cannot be fulfilled at all, and yet he stipulated to this effect, even if he did so initially, he is considered as only exaggerating, and the document is valid. The supposed condition is not taken seriously and is not binding.

讗诪专 专讘 谞讞诪谉 讗诪专 专讘 讛诇讻讛 讻专讘讬 讬讛讜讚讛 讘谉 转讬诪讗 讗诪专 专讘 谞讞诪谉 讘专 讬爪讞拽 诪转谞讬转讬谉 谞诪讬 讚讬拽讗 讚拽转谞讬 讻诇 砖讗驻砖专 诇讜 诇拽讬讬诪讜 讘住讜驻讜 讜讛转谞讛 注诇讬讜 诪转讞讬诇转讜 转谞讗讜 拽讬讬诐 讛讗 讗讬 讗驻砖专 诇讜 诇拽讬讬诪讜 转谞讗讜 讘讟诇 砖诪注 诪讬谞讛

Rav Na岣an says that Rav says: The halakha is in accordance with the opinion of Rabbi Yehuda ben Teima. Rav Na岣an bar Yitz岣k said: The mishna is also precisely formulated in accordance with this opinion, as it teaches: With regard to any condition that ultimately he can fulfill, and he stipulated with regard to it initially, his condition is valid. This indicates that if he cannot fulfill it, his condition is void. The Gemara affirms: One can learn from this formulation that the unattributed mishna does in fact represent the opinion of Rabbi Yehuda ben Teima.

讛讚专谉 注诇讱 讛砖讜讻专 讗转 讛驻讜注诇讬诐

 

诪转谞讬壮 讛砖讜讗诇 讗转 讛驻专讛 讜砖讗诇 讘注诇讬讛 注诪讛 讗讜 砖讻专 讘注诇讬讛 注诪讛 砖讗诇 讛讘注诇讬诐 讗讜 砖讻专谉 讜讗讞专 讻讱 砖讗诇 讗转 讛驻专讛 讜诪转讛 驻讟讜专 砖谞讗诪专 讗诐 讘注诇讬讜 注诪讜 诇讗 讬砖诇诐

MISHNA: In the case of one who borrowed a cow and borrowed the services of its owner with it, or he borrowed a cow and hired its owner with it, or he borrowed the services of the owner or hired him and afterward borrowed the cow; in all such cases, if the cow died, the borrower is exempt from liability. Although a borrower is generally liable to pay if a cow he borrowed dies, here he is exempt, as it is stated: 鈥淚f its owner is with him, he does not pay鈥 (Exodus 22:14).

讗讘诇 砖讗诇 讗转 讛驻专讛 讜讗讞专 讻讱 砖讗诇 讗转 讛讘注诇讬诐 讗讜 砖讻专谉 讜诪转讛 讞讬讬讘 砖谞讗诪专 讘注诇讬讜 讗讬谉 注诪讜 砖诇诐 讬砖诇诐

But if one first borrowed the cow and only afterward borrowed the services of the owner or hired him, and the cow died, he is liable to pay the owner for the cow. This is the halakha even if the owner was working for the borrower at the time, as it is stated: 鈥淚f its owner is not with him, he shall pay鈥 (Exodus 22:13).

讙诪壮 诪讚拽转谞讬 住讬驻讗 讜讗讞专 讻讱 砖讗诇 讗转 讛驻专讛 诪讻诇诇 讚专讬砖讗 讚拽转谞讬 注诪讛 注诪讛 诪诪砖 注诪讛 诪诪砖 诪讬 诪砖讻讞转 诇讛 驻专讛 讘诪砖讬讻讛 讜讘注诇讬诐 讘讗诪讬专讛

GEMARA: From the fact that the latter clause teaches: And afterward borrowed the cow, it may be inferred that when the first clause teaches: Borrowed its owner with it, the intention is: Literally with it, i.e., at the same moment. The Gemara asks: Can you find such a case where the owner obligates himself to serve the borrower literally with it? Given that one borrows the cow through pulling the cow and contracts the services of the owner through their verbal agreement, it emerges that if they agree to both matters at the same time, one borrows the services of the owner before he borrows the cow, which is the case mentioned in the latter clause of the mishna. What, then, is the case mentioned in the first clause?

讗讬讘注讬转 讗讬诪讗 讻讙讜谉 讚拽讬讬诪讗 驻专讛 讘讞爪专讜 讚砖讜讗诇 讚诇讗 诪讞住专讗 诪砖讬讻讛 讗讬讘注讬转 讗讬诪讗 讚讗诪专 诇讬讛 讗转 讙讜驻讱 诇讗 转砖讗诇 注讚 砖注转 诪砖讬讻转 驻专转讱

The Gemara answers: If you wish, say that the mishna is referring to a case such as where the cow is standing in the borrower鈥檚 courtyard, which can effect acquisition of the rights to use the cow for him, so that it does not lack, i.e., there is no need for, pulling. Accordingly, both the borrowing of the owner鈥檚 services and the borrowing of his cow will take effect simultaneously upon their agreement. Alternatively, if you wish, say that the case is where the borrower says to him: You, yourself, will not be lent to me until the moment of the pulling of your cow.

转谞谉 讛转诐 讗专讘注讛 砖讜诪专讬诐 讛诐 砖讜诪专 讞谞诐 讜讛砖讜讗诇 谞讜砖讗 砖讻专 讜讛砖讜讻专

搂 The Gemara analyses the halakhot of the four types of bailees that were delineated in the previous chapter: We learned in a mishna there (93a): There are four types of bailees: An unpaid bailee, and the borrower, a paid bailee, and the renter.

砖讜诪专 讞谞诐 谞砖讘注 注诇 讛讻诇 讜讛砖讜讗诇 诪砖诇诐 讗转 讛讻诇 谞讜砖讗 砖讻专 讜讛砖讜讻专 谞砖讘注讬谉 注诇 讛砖讘讜专讛 讜注诇 讛砖讘讜讬讛 讜注诇 讛诪转讛 讜诪砖诇诪讬诐 讗转 讛讗讘讬讚讛 讜讗转 讛讙谞讬讘讛

The mishna there continues: If the item was stolen, lost, or broken, or if the animal died in any manner, the halakhot with regard to them are as follows: An unpaid bailee takes an oath over every outcome; whether the item was lost, stolen, or broken, or if the animal died, the unpaid bailee must take an oath that it happened as he described, and he is then exempt from payment. And the borrower does not take an oath, but pays for every outcome, whether it was stolen or lost, even in a circumstance beyond his control. The halakhot of a paid bailee and a renter are the same: They take an oath over an injured animal, over a captured animal, and over a dead animal, attesting that the mishaps were caused by circumstances beyond their control, and they are exempt; but they must pay for loss or theft.

诪谞讗 讛谞讬 诪讬诇讬 讚转谞讜 专讘谞谉 驻专砖讛 专讗砖讜谞讛 谞讗诪专讛 讘砖讜诪专 讞谞诐 砖谞讬讛 讘砖讜诪专 砖讻专 砖诇讬砖讬转 讘砖讜讗诇

The Gemara asks: From where are these matters derived? As the Sages taught in a baraita: The verses in the Torah about bailees can be divided into three passages. The first passage (Exodus 22:6鈥8) is stated about an unpaid bailee; the second (Exodus 22:9鈥12) is about a paid bailee; and the third (Exodus 22:13鈥14) is about a borrower.

讘砖诇诪讗 砖诇讬砖讬转 讘砖讜讗诇 诪驻讜专砖 讜讻讬 讬砖讗诇 讗讬砖 诪注诐 专注讛讜 讜谞砖讘专 讗讜 诪转 讘注诇讬讜 讗讬谉 注诪讜 砖诇诐 讬砖诇诐 讗诇讗 专讗砖讜谞讛 讘砖讜诪专 讞谞诐 砖谞讬讛 讘砖讜诪专 砖讻专 讗讬驻讜讱 讗谞讗

The Gemara asks: Granted, it is clear that the third passage is about a borrower, as the verse explicitly states: 鈥淎nd when a man borrows from another, and it is injured or dies, if its owner is not with him, he shall pay鈥 (Exodus 22:13). But with regard to the claim of the baraita that the first passage is about an unpaid bailee and the second is about a paid bailee, I could also say the reverse, as the verses do not state which type of bailee they are referring to.

诪住转讘专讗 砖谞讬讛 讘砖讜诪专 砖讻专 砖讻谉 讞讬讬讘 讘讙谞讬讘讛 讜讗讘讬讚讛 讗讚专讘讛 专讗砖讜谞讛 讘砖讜诪专 砖讻专 砖讻谉 诪砖诇诐 转砖诇讜诪讬 讻驻诇 讘讟讜注谉 讟注谞转 讙谞讘

The Gemara justifies the claim of the baraita: Clearly a paid bailee carries a more severe level of liability that an unpaid bailee. Accordingly, it stands to reason that the second passage is about a paid bailee, as it states a stringency, that the bailee is liable even in cases of theft or loss (see Exodus 22:11). The Gemara challenges this claim: On the contrary, it stands to reason that the first passage is about a paid bailee, as it states a stringency, that the bailee pays the double payment in a case where he takes a false oath stating the claim that a thief stole the item he was safeguarding (see Exodus 22:6).

讗驻讬诇讜 讛讻讬 拽专谞讗 讘诇讗 砖讘讜注讛 注讚讬驻讗 诪讻驻讬诇讗 讘砖讘讜注讛

The Gemara explains: Even so, being liable to pay the principal whenever one claims the deposit was stolen, without the ability to exempt oneself by taking an oath, is a greater stringency than being liable for the double payment, as that liability is only when one takes a false oath to that effect. Otherwise, he is exempt.

转讚注 讚讛讗 砖讜讗诇 讻诇 讛谞讗讛 砖诇讜 讜讗讬谞讜 诪砖诇诐 讗诇讗 拽专谉

The Gemara adds: Know that this is so, as a borrower bears the most severe level of liability, because he is privileged. All benefit from the transaction is his, without incurring any cost to himself. And in cases of theft he pays only the principal but is never required to pay the double payment.

讜讛砖讜讗诇 讻诇 讛谞讗讛 砖诇讜 讜讛讗 讘注讬讗 诪讝讜谞讬 讚拽讬讬诪讗 讘讗讙诐 讜讛讗 讘注讬讗 谞讟讬专讛 讘谞讟专 诪转讗 讜讗讬讘注讬转 讗讬诪讗 诇讗 转讬诪讗 讻诇 讛谞讗讛 砖诇讜 讗诇讗 讗讬诪讗 专讜讘 讛谞讗讛 砖诇讜 讜讗讬讘注讬转 讗讬诪讗 讘砖讗讬诇转 讻诇讬诐

The Gemara questions the proof just cited: But is it true that with regard to the borrower all benefit from the transaction is his? But doesn鈥檛 the animal require food, which the borrower must provide? The Gemara answers: The halakhot of a borrower also apply when the animal is standing in a marsh, where food is freely available. The Gemara persists: But doesn鈥檛 the animal require safeguarding? The Gemara answers: The halakhot of a borrower also apply when the borrower is a city guard and does not need to do anything additional to safeguard the animal. And if you wish, say: Do not say that all benefit is his, rather say: Most of the benefit is his, and that is sufficient reason to render him liable in all circumstances. And if you wish, say that the halakhot of a borrower apply also with regard to borrowing vessels, which do not require constant care. In any event, it is clear that a borrower is uniquely privileged and accordingly bears the most severe level of liability.

谞讜砖讗 砖讻专 讜讛砖讜讻专 谞砖讘注讬谉 注诇 讛砖讘讜专讛 讜注诇 讛砖讘讜讬讛 讜注诇 讛诪转讛 讜诪砖诇诪讬谉 讗转 讛讗讘讬讚讛 讜讗转 讛讙谞讬讘讛

搂 The mishna cited previously states: The halakhot of a paid bailee and a renter are the same: They take an oath over an injured animal, over a captured animal, and over a dead animal, attesting that the mishaps were caused by circumstances beyond their control, and they are exempt; but they must pay for loss or theft.

讘砖诇诪讗 讙谞讬讘讛 讚讻转讬讘 讗诐 讙谞讜讘 讬讙谞讘 诪注诪讜 讬砖诇诐 诇讘注诇讬讜 讗诇讗 讗讘讬讚讛 诪谞讗 诇谉 讚转谞讬讗 讗诐 讙谞讘 讬讙谞讘 讗讬谉 诇讬 讗诇讗 讙谞讬讘讛 讗讘讬讚讛 诪谞讬谉 转诇诪讜讚 诇讜诪专 讗诐 讙谞讜讘 讬讙谞讘 诪讻诇 诪拽讜诐

The Gemara asks: Granted, a paid bailee is liable in the case of theft, as it is written: 鈥淚f it is stolen from him, he must pay its owner鈥 (Exodus 22:11). But in a case of loss, from where do we derive that a paid bailee is liable? The Gemara answers: As it is taught in a baraita: From the verse: 鈥淚f it is stolen [ganov yigganev],鈥 I have derived only that a paid bailee is liable if the item he is safeguarding is stolen; from where do I derive he is liable also if it is lost? The verse states: 鈥ganov yigganev,鈥 repeating the verb for emphasis. This teaches that he is liable in any case, i.e., for loss as well as theft.

讛谞讬讞讗 诇诪讗谉 讚讗诪专 诇讗 讗诪专讬谞谉 讚讘专讛 转讜专讛 讻诇砖讜谉 讘谞讬 讗讚诐 讗诇讗 诇诪讗谉 讚讗诪专 讗诪专讬谞谉 讚讘专讛 转讜专讛 讻诇砖讜谉 讘谞讬 讗讚诐 诪讗讬 讗讬讻讗 诇诪讬诪专

The Gemara asks: This works out well according to the one who says: We do not say that the Torah spoke in the language of people, and so any repeated verb must serve to teach additional halakhot. But according to the one who says: We do say that the Torah spoke in the language of people, and so the use of a repeated verb is only for stylistic reasons, what can be said? From where is it derived that the bailee is liable for losing the item?

讗诪专讬 讘诪注专讘讗 拽诇 讜讞讜诪专 讜诪讛 讙谞讬讘讛 砖拽专讜讘讛 诇讗讜谞住 诪砖诇诐 讗讘讬讚讛 砖拽专讜讘讛 诇驻砖讬注讛 诇讗 讻诇 砖讻谉

They say in the West, Eretz Yisrael: It is derived through an a fortiori inference: If in a case of theft, which is near to being a case of circumstances beyond his control, the halakha is that the bailee pays the owner the item鈥檚 value, then in a case of loss, which is near to being a case of negligence, is it not all the more so logical that he should pay?

讜讗讬讚讱 诪讬诇转讗 讚讗转讬讗 讘拽诇 讜讞讜诪专 讟专讞 讜讻转讘 诇讛 拽专讗

The Gemara asks: And according to the other opinion, why is there a need for a verse to teach this halakha if it can be derived from an a fortiori inference? The Gemara answers: At times, there is a matter that can be derived through an a fortiori inference, and the verse nevertheless takes the trouble and writes it explicitly.

讜讛砖讜讗诇 诪砖诇诐 讗转 讛讻诇 讘砖诇诪讗 砖讘讜专讛 讜诪转讛 讚讻转讬讘 讜讻讬 讬砖讗诇 讗讬砖 诪注诐 专注讛讜 讜谞砖讘专 讗讜 诪转 讗诇讗 砖讘讜讬讛 讘砖讜讗诇 诪谞讗 诇谉

搂 The mishna cited above states: And the borrower does not take an oath, but pays for every outcome, whether it was stolen or lost, even in a circumstance beyond his control. The Gemara asks: Granted, the bailee is liable if the animal is injured or dies, as it is written: 鈥淎nd if a man borrows from another and it is injured or dies鈥he shall pay鈥 (Exodus 22:13). But from where do we derive the liability of a borrower when the animal is captured?

讜讻讬 转讬诪讗 谞讬诇祝 诪砖讘讜专讛 讜诪转讛 诪讛 诇砖讘讜专讛 讜诪转讛 砖讻谉 讗讜谞住讗 讚住诇讬拽 讗讚注转讗 讛讜讗 转讗诪专 讘砖讘讜讬讛 砖讻谉 讗讜谞住讗 讚诇讗 住诇讬拽 讗讚注转讗 讛讜讗

And if you would say: Let us derive it from the fact the borrower is liable if the animal was injured or dies because they are all similarly cases of circumstances beyond his control, then one could counter as follows: What is notable about a case where the animal is injured or died? It is notable in that it is the type of unavoidable accident whose possibility of occurring entered one鈥檚 mind, so it is reasonable that the borrower accepted responsibility for such mishaps. Can you say the same about being captured, which is an unavoidable accident whose possibility of occurring does not enter one鈥檚 mind?

讗诇讗 谞讗诪专讛 砖讘讜专讛 讜诪转讛 讘砖讜讗诇 讜谞讗诪专讛 砖讘讜专讛 讜诪转讛 讘砖讜诪专 砖讻专 诪讛 诇讛诇谉 砖讘讜讬讛 注诪讜 讗祝 讻讗谉 砖讘讜讬讛 注诪讜

Rather, the liability of a borrower in a case where the animal is captured is derived as follows: The cases where the animal is injured or dies are stated in the passage about a borrower, and similarly the cases where it is injured or dies are stated in the passage about a paid bailee. Just as below, i.e., in the passage in the Torah concerning a paid bailee, the case in which it is captured is included with it, as the verse there states: 鈥淚f a man deliver to his neighbor a donkey, or an ox, or a sheep, or any beast, to safeguard, and it die, or be hurt, or is captured鈥 (Exodus 22:9); so too here, with regard to a borrower, the case where it is captured is included with it.

讗讬讻讗 诇诪讬驻专讱 诪讛 诇砖讜诪专 砖讻专 砖讻谉 诇驻讟讜专 转讗诪专 讘砖讜讗诇 砖讻谉 诇讞讬讜讘

The Gemara explains that this derivation can be refuted as follows: What is notable about a paid bailee? He is notable in that the cases in which the animal is injured or dies are mentioned in order to exempt him from liability. Can you say this is also true with regard to a borrower, where the cases are mentioned in order to teach that he is liable?

讗诇讗 讻专讘讬 谞转谉 讚转谞讬讗 专讘讬 谞转谉 讗讜诪专 讗讜 诇专讘讜转 砖讘讜讬讛

Rather, the liability of a borrower in a case where the animal is captured is derived in accordance with the statement of Rabbi Natan, as it is taught in a baraita: Rabbi Natan says: The word 鈥渙r鈥 in the phrase 鈥渋njured or dies鈥 (Exodus 22:13) serves to include the case in which the animal was captured.

讛讗讬 讗讜 诪讬讘注讬讗 诇讬讛 诇讞诇拽 讚住诇拽讗 讚注转讱 讗诪讬谞讗 注讚 讚诪讬转讘专讗 讜诪转讛 诇讗 诪讞讬讬讘 拽讗 诪砖诪注 诇谉

The Gemara asks: But this word 鈥渙r鈥 is required in order to divide the cases, as otherwise it could enter your mind to say that the bailee is not liable unless the animal is first injured and then also dies. Therefore, the term 鈥渙r鈥 is necessary to teach us that these are two separate cases.

讛谞讬讞讗 诇专讘讬 讬讜谞转谉 讗诇讗 诇专讘讬 讬讗砖讬讛 诪讗讬 讗讬讻讗 诇诪讬诪专

The Gemara comments: This works out well according to the opinion of Rabbi Yonatan, that it is obvious that the borrower is liable even if the animal died without being injured first. Consequently, 鈥渙r鈥 is unnecessary, and so it can be used for Rabbi Natan鈥檚 derivation. But according to the opinion of Rabbi Yoshiya, what is there to say? According to his opinion, it is necessary for the Torah to state 鈥渙r鈥 in this case, to teach that the borrower is liable even if the animal dies without being injured first, and so it cannot be used for a derivation.

讚转谞讬讗 讗讬砖 讗砖专 讬拽诇诇 讗转 讗讘讬讜 讜讗转 讗诪讜 讗讬谉 诇讬 讗诇讗 讗讘讬讜 讜讗诪讜 讗讘讬讜 讘诇讗 讗诪讜 讗诪讜 讘诇讗 讗讘讬讜 诪谞讬谉 转诇诪讜讚 诇讜诪专 讗讘讬讜 讜讗诪讜 拽诇诇 讗讘讬讜 拽诇诇 讗诪讜 拽诇诇 讚讘专讬 专讘讬 讬讗砖讬讛

The Gemara explains: As it is taught in a baraita: From the verse: 鈥淎 man who curses his father and his mother shall die鈥 (Leviticus 20:9), I have derived only that one is liable if he curses both his father and his mother. From where do I derive that if one curses his father but not his mother, or his mother but not his father, that he is liable? The continuation of the verse states: 鈥淗is father and his mother he has cursed, his blood is upon him.鈥 In the first part of the verse, the word 鈥渃urses鈥 is in proximity to 鈥渉is father,鈥 and in the last part of the verse, it is in proximity to 鈥渉is mother.鈥 This teaches that the verse is referring to both a case where he cursed only his father and a case where he cursed only his mother; this is the statement of Rabbi Yoshiya.

专讘讬 讬讜谞转谉 讗讜诪专 诪砖诪注 砖谞讬讛诐 讻讗讞讚 讜诪砖诪注 讗讞讚 讘驻谞讬 注爪诪讜

Rabbi Yonatan says: There is no need for this derivation, because the phrase 鈥渉is father and his mother鈥 indicates that one is liable if he curses both of them together, and it also indicates that he is liable if he curses either one of them on their own,

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