Bava Metzia 95

עד שיפרוט לך הכתוב יחדו

unless the verse specifies that one is liable only where he curses both together, which it does not do in this case.

אפילו תימא רבי יאשיה לחלק הכא לא צריך מאי טעמא סברא הוא מה לי קטלה כולה מה לי קטלה פלגא

The Gemara answers: You can even say that Rabbi Natan’s derivation from the word “or” is in accordance with the opinion of Rabbi Yoshiya, as here, in the verse concerning a borrower’s liability, there is no need for the word “or” to divide the cases. What is the reason? The fact that injury and death are alone sufficient to engender liability is based on logical reasoning, as follows: What difference does it make to me if it is entirely killed, and what difference does it make to me if it is partially killed, i.e., injured? Either way, the animal is not in the state in which it was borrowed, so the borrower is liable to compensate the owner.

גניבה ואבידה בשואל מנא לן

§ The Gemara asks: From where do we derive the liability of a borrower in a case of theft or loss?

וכי תימא נילף משבורה ומתה מה לשבורה ומתה דלא אפשר למיטרח ואתויי תאמר בגניבה ואבידה דאפשר למיטרח ואתויי

And if you would say: Let us derive it from the fact that a borrower is liable if the animal entrusted to him was injured or died, because theft and loss are similar to injury and death in that they are cases of accidents, this derivation can be refuted. What is notable about a case where the animal was injured or died? It is notable in that it is no longer possible to make an effort and bring the animal back to its undamaged state, and so it is reasonable that the borrower is liable for such occurrences. Shall you also say this ruling about a case of theft or loss, where it is still possible to make an effort to locate and bring back the animal? Since the animal is still extant, perhaps the borrower should not be liable.

אלא כי הא דתניא ונשבר או מת אין לי אלא שבורה ומתה גניבה ואבידה מנין אמרת קל וחומר ומה שומר שכר שפטור משבורה ומתה חייב בגניבה ואבידה שואל שחייב בשבורה ומתה אינו דין שחייב בגניבה ואבידה וזה הוא קל וחומר שאין עליו תשובה

Rather, a borrower’s liability for theft and loss is derived like that which is taught in a baraita: From the verse: “And it is injured or dies” (Exodus 22:13), I have derived only that a borrower is liable if the animal is injured or dies. From where do I derive that he is liable in a case of theft or loss? You can say it is an a fortiori inference: If a paid bailee, who is exempt from liability in a case in which the animal is injured or dies, is nevertheless liable in a case of theft or loss, then with regard to a borrower, who is liable in a case in which the animal is injured or dies, isn’t it logical that he should also be liable in a case of theft or loss? And this is an a fortiori inference that has no refutation.

מאי אין עליו תשובה וכי תימא איכא למיפרך מה לשומר שכר שכן משלם תשלומי כפל בטוען טענת לסטים מזויין

The Gemara asks: What is added by the conclusion of the baraita that this is an a fortiori inference that has no refutation? The Gemara explains that the baraita anticipated the following rebuttal: And if you would say that the a fortiori inference can be refuted as follows: What is notable about the case of a paid bailee? It is notable in that he pays the double payment when he takes a false oath stating the claim that the deposit was taken by an armed bandit. If so, can you derive a halakha from the case of a paid bailee to that of a borrower, who pays only the principal in such a case? It would appear that a borrower does not always bear a more severe level of liability, and the a fortiori inference is thereby undermined.

אפילו הכי קרנא דשואל עדיפא

Anticipating this refutation, the baraita states that it is invalid because even so, the fact that a borrower is liable to pay the principal when he claims the deposit was taken by an armed bandit, without the ability to exempt himself by taking an oath, is a greater stringency than the fact that a paid bailee is liable for the double payment, but only if he takes a false oath to that effect. Consequently, a borrower has a more severe level of liability, and the a fortiori inference is valid.

איבעית אימא קסבר לסטים מזויין גזלן הוא

Alternatively, if you wish, say that the baraita holds that an armed bandit is classified as a robber. The paid bailee is not liable for the double payment if he claims that the deposit was taken by an armed bandit, as the double payment is paid only for a false claim of theft, not robbery. Consequently, the basis of the refutation is flawed.

אשכחן לחיוב לפטור מנא לן

The Gemara asks: We have found sources for the liability of a borrower in a case of theft or loss; from where do we derive a source for the halakha that in a case of theft or loss he is exempt if he had also borrowed the services of the owner at the same time as borrowing the animal? The verse describing his exemption from liability is stated only with regard to a case in which the animal entrusted to him is injured or dies (see Exodus 22:13).

וכי תימא נילף משבורה ומתה מה לשבורה ומתה שכן אונס

And if you would say: Let us derive it from the fact that a borrower who also borrowed the services of the owner is exempt if the animal is injured or dies, as the type of occurrence should not make any difference, then one can counter: What is notable about a case in which it is injured or dies? It is notable in that it is an unavoidable accident, and so it is reasonable that one’s liability be limited. Can you say the same in a case of theft or loss, which theoretically he could have prevented?

אלא גמר משומר שכר ושומר שכר גופיה מנלן גמרי חיובא דשומר שכר מחיובא דשואל מה להלן בבעלים פטור אף כאן בבעלים פטור

Rather, derive the halakha that a borrower who also borrowed the services of the owner is exempt if the animal is injured or dies from the halakha of a paid bailee, who is exempt for theft and loss if he had borrowed the services of the owner at the same time as the animal. The Gemara asks: But from where do we derive that the exemption from liability also applies to a paid bailee himself? We derive the limitation of liability of a paid bailee from the limitation of liability of a borrower: Just as below, with regard to a borrower, for those cases in which the verse states that he is liable, it states that if he borrowed the animal together with the services of the owner that he is exempt, so too, here, with regard to a paid bailee, for those cases in which he is liable, if he undertook to safeguard the animal together with borrowing the services of the owner, then he is exempt.

במאי גמר אי במה מצינו איכא למיפרך כדפרכינן שכן אונס

The Gemara asks: Through what method is this derived? If it is derived through an interpretive principle known as: What do we find, i.e., a comparison between cases with similar details, this can be refuted, just as we refuted the possibility of deriving a limitation on one’s liability in a case of theft or loss from a case in which the animal was injured or died. Because a case in which it is injured or dies is an unavoidable accident, it is reasonable that one’s liability be limited specifically to such circumstances.

אלא אמר קרא וכי ישאל ויו מוסיף על ענין ראשון וילמד עליון מתחתון

Rather, the halakha that a bailee who also borrowed the services of the owner is exempt if the animal is stolen or lost is derived as follows: The verse states: “And if he borrows” (Exodus 22:13). The conjunctive “and” indicates that the passage detailing the liability of a borrower is adding to the first matter, i.e., it should be seen as a continuation of the previous passage detailing the liability of a paid bailee. And therefore, let the case of a paid bailee above be derived from the case below of the borrower, including the exemption from liability in a case in which the services of the owner were borrowed at the same time as the animal.

ואכתי שואל משומר שכר לא גמר דאיכא למיפרך מה לשומר שכר שכן פטור בשבורה ומתה תאמר בשואל שחייב בשבורה ומתה

The Gemara raises a difficulty: But still, the halakhot of a borrower cannot be derived from those of a paid bailee though an a fortiori inference, as an attempt to do so can be refuted as follows: What is notable about the case of a paid bailee? It is notable in that he is exempt in a case in which the animal is injured or died. Shall you also say the same for a borrower, who is liable in a case in which the animal is injured or dies? Since a borrower has a more severe level of liability, perhaps the exemption from liability that exists in a case of theft or loss for a paid bailee is not in effect with regard to a borrower.

אלא גניבה ואבידה בשואל לחיובא מנלן דגמר משומר שכר דיו לבא מן הדין להיות כנדון מה גניבה ואבידה דשומר שכר בבעלים פטור אף גניבה ואבידה דשואל נמי בבעלים פטור

Rather, the halakha that a borrower who also borrowed the services of the owner is exempt if the animal is injured or dies is derived as follows: From where did we originally derive the liability of a borrower in a case of theft or loss? It was derived though an a fortiori inference from the fact that a paid bailee is liable. One of the principles of an a fortiori inference is that it is sufficient for the conclusion that emerges from an a fortiori inference to be like its source. In other words, a halakha derived by means of an a fortiori inference is no more stringent than the source from which it is derived. Accordingly, just as in a case of theft or loss of a deposit entrusted with a paid bailee who undertook to look after it together with borrowing the services of its owner, the bailee is exempt, so too, in a case of theft or loss of a deposit entrusted with a borrower who had borrowed it together with the services of its owner, the borrower is exempt.

הניחא למאן דאית ליה דיו אלא למאן דלית ליה דיו מאי איכא למימר

The Gemara asks: This works out well according to the one who accepts the principle of: It is sufficient. But according to the one who does not accept the principle of: It is sufficient, what can be said; how does he derive a borrower’s exemption from liability in a case in which he borrowed an item together with its owner’s services and the item was lost or stolen?

אלא אמר קרא וכי ישאל ויו מוסיף על ענין ראשון וילמד עליון מתחתון ותחתון מעליון

Rather, it is derived as follows: The verse states: “And if he borrows” (Exodus 22:13). The conjunctive “and” indicates that the passage detailing the liability of a borrower is adding to the first matter, i.e., the halakhot of a paid bailee. And therefore let the case of a paid bailee above be derived from the case below of the borrower, and halakhot applying to the case below, of a borrower, can be derived from the case above, of a paid bailee.

איתמר פשיעה בבעלים פליגי בה רב אחא ורבינא חד אמר חייב וחד אמר פטור

§ An amoraic dispute was stated: With regard to a mishap that occurred due to a borrower’s negligence in safeguarding the deposit he borrowed together with the services of its owner, Rav Aḥa and Ravina disagree. One Sage says he is liable, and one Sage says he is exempt.

מאן דאמר חייב קסבר מקרא נדרש לפניו ולא לפני פניו

The one who says he is liable holds that the verse beginning: “And if he borrows,” which details the exemption from liability when one borrows an item together with its owner, is expounded in connection with the passage preceding it, i.e., that of a paid bailee, but not in connection with the passage preceding the one preceding it, i.e., that of a unpaid bailee.

הלכך אם בעליו עמו אשומר חנם לא כתיב ופשיעה נמי בשומר שכר ובשואל לא כתיב הלכך בשומר שכר ובשואל לחיוב אתיא בקל וחומר

Accordingly, the verse: “If its owner is with him, he does not pay” (Exodus 22:14), which appears in the passage of a borrower, is not written in reference to an unpaid bailee, and so that exemption from liability does not apply to him. And in addition, the liability for negligence, which appears in the passage of an unpaid bailee, is not written in reference to a paid bailee or a borrower. Accordingly, the liability of a paid bailee and of a borrower in a case of negligence is derived only via an a fortiori inference from the liability of an unpaid bailee, not from an explicit verse.

אבל בבעלים לפטור אף בשומר שכר ובשואל לא מאי טעמא כי כתיב אם בעליו עמו לא ישלם אשואל ואשומר שכר אהנך חיובי דכתיב בהו בהדיא הוא דמיכתב

But it is not possible to derive that even a paid bailee and a borrower are exempt in cases where they took hold of an item together with borrowing the services of its owner and a mishap occurred due to their negligence. What is the reason for this? When it is written: “If its owner is with him, he does not pay,” that is in reference only to a borrower and to a paid bailee. Even then, it is written in reference to only those liabilities that are written explicitly with regard to them. It is not written with regard to their liability for negligence, which is derived only through an a fortiori inference. Consequently, the borrower and the paid bailee are liable for negligence even in a case where they also borrowed the services of its owner.

מאן דאמר פטור קסבר מקרא נדרש לפניו ולפני פניו וכי כתיב אם בעליו עמו אשומר חנם נמי כתיב

Conversely, the one who says that a borrower is exempt holds that the verse: “And if he borrows,” which details the exemption from liability in a case where one borrows an item together with the services of its owner, is expounded in connection with the passage preceding it, i.e., that of a paid bailee, and also in connection with the passage preceding the one preceding it, i.e., that of a unpaid bailee. And accordingly, when it is written: “If its owner is with him, he does not pay,” this exemption is written also in reference to an unpaid bailee, limiting his liability even in a case of negligence.

תנן השואל הפרה ושאל בעליה עמה השואל הפרה ושכר בעליה עמה שאל בעליה או שכרן ואחר כך שאל הפרה ומתה פטור ואילו שומר חנם לא קתני

The Gemara suggests proofs for each opinion: We learned in the mishna that in the case of one who borrowed a cow and he borrowed the services of its owner together with it; or one who borrowed a cow and he hired its owner with it; or if one 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. The Gemara explains the proof: The mishna mentions the exemption from liability with regard to a borrower, whereas it does not teach it with regard to an unpaid bailee, who is liable only for a mishap that was the result of his negligence. Presumably, this is because exemption from liability does not apply to a mishap that is the result of the bailee’s negligence.

ולטעמיך שומר שכר מי קתני

The Gemara rejects the proof: But even according to your reasoning, does it teach exemption from liability with regard to a paid bailee? It does not, although it certainly applies to at least cases of theft and loss.

אלא תנא מילתא

Rather, with regard to the tanna of the mishna, the matter

דכתיבא בהדיא קתני דאתיא מדרשא לא קתני

that is explicitly written in the Torah he teaches, and those matters that are derived through interpretation he does not teach. Consequently, no proof can be brought from the mishna.

תא שמע שאלה ושאל בעליה עמה שכרה ושכר בעליה עמה שאלה ושכר בעליה עמה שכרה ושאל בעליה עמה אף על פי שהבעלים עושין מלאכה במקום אחר ומתה פטור

The Gemara suggests: Come and hear a proof from a baraita: If one borrowed an animal and borrowed the services of its owner with it, or rented it and hired its owner with it, or borrowed it and hired its owner with it, or rented it and borrowed the services of its owner with it; in all of these cases, although the owner performed the work for him in another place, i.e., not near the animal, and it dies, the borrower or renter is exempt.

סברוה הא מני רבי יהודה היא דאמר שוכר כשומר שכר דמי והא האי תנא קתני מילתא דאתיא מדרשא ואילו שומר חנם לא קתני

The Gemara notes: The scholars in the study hall assumed that this baraita is in accordance with whose opinion? It is in accordance with the opinion of Rabbi Yehuda, who says that one who rents an item is responsible for it like a paid bailee. According to his understanding, the baraita teaches that the exemption from liability applies to both a borrower and a paid bailee. Consequently, the baraita can serve as a proof: Doesn’t this tanna teach even a matter that is derived through interpretation, i.e., the fact that exemption from liability applies to a paid bailee, while he still does not teach that it applies to an unpaid bailee? It would appear that this is a proof that exemption from liability does not apply to an unpaid bailee, since it does not apply to a mishap that is the result of the bailee’s negligence.

הא מני רבי מאיר היא דאמר שוכר כשומר חנם דמי ותנא שומר חנם והוא הדין לשומר שכר

The Gemara refutes this proof, as one could counter: In accordance with whose opinion is this baraita? It is in accordance with the opinion of Rabbi Meir, who says that the liability of one who rents an item is like that of an unpaid bailee. And, according to his understanding, the baraita teaches that the exemption from liability applies to an unpaid bailee, and it is understood that the same is true for a paid bailee. Understood like this, the baraita explicitly applies the exemption from liability to a case of negligence. Since, ultimately, it is unclear according to whose opinion the baraita is taught, no proof can be drawn from it.

איבעית אימא כדמחליף רבה בר אבוה ותני שוכר כיצד משלם רבי מאיר אומר כשומר שכר רבי יהודה אומר כשומר חנם

If you wish, say that the baraita can be understood as referring to an unpaid bailee, even if it is assumed to be in accordance with the opinion of Rabbi Yehuda. As Rabba bar Avuh reversed their opinions and taught: How does one who rents an item pay in the case of a mishap? Rabbi Meir says: Like a paid bailee. Rabbi Yehuda says: Like an unpaid bailee.

אמר רב המנונא לעולם הוא חייב עד שתהא פרה וחורש בה חמור ומחמר אחריה ועד שיהו בעלים משעת שאילה עד שעת שבורה ומתה אלמא קסבר בעליו עמו אכולה מילתא משמע

§ Rav Hamnuna says that the exemption from liability when one borrows an item together with the services of its owner exists only in very specific circumstances: A borrower is always liable, unless the item entrusted to him is a cow and its owner plows with it in the service of the borrower, or it is a donkey and its owner drives it by walking behind it in the service of the borrower, i.e., the owner and his animal are engaged in the same work. And even so, the borrower will not be exempt unless the owner is working for him from the time of the borrowing of the animal until the time when it is injured or dies. The Gemara notes: Evidently, Rav Hamnuna holds that the phrase: “Its owner is with him” (Exodus 22:14), teaches that the exemption from liability applies only when the owner is working for the borrower for the entire matter.

מתיב רבא שאלה ושאל בעליה עמה שכרה ושכר בעליה עמה שכרה ושאל בעליה עמה שאלה ושכר בעליה עמה אף על פי שהבעלים עושין מלאכה במקום אחר ומתה פטור מאי לאו במלאכה אחרת

Rava raises an objection from the baraita cited previously: If one borrowed an animal and borrowed the services of its owner with it, or rented it and hired its owner with it, or rented it and borrowed the services of its owner with it, or borrowed it and hired its owner with it; in all these cases, although the owner performed the work for him in another place, i.e., not near the animal, and it died, the borrower or renter is exempt. Rava explains how the baraita poses a challenge: What, is it not referring to a case where the owner was engaged with different work than his animal? The baraita proves that the exemption from liability applies even in such a case.

לא באותה מלאכה אלא מאי מקום אחר דקא מרפי ואזיל קמה

The Gemara rejects this: No, the baraita is referring to a case where the owner was engaged with the same work as the animal. The Gemara asks: But, if so, what does the baraita mean by saying: He performed the work in another place? The Gemara explains: For example, it is a case where the owner loosens the hard soil with a hoe while walking ahead of the animal. He is engaged in the same work, but not in the same place.

והא מדסיפא על גבה הוי רישא במלאכה אחרת דקתני סיפא שאלה ואחר כך שאל בעליה שכרה ואחר כך שכר בעליה עמה אף על פי שהבעלים חורשין על גבה ומתה חייב

The Gemara raises a difficulty: But from the fact that the latter clause of the baraita is referring to a case where the owner was working alongside it, it may be inferred that the first clause, i.e., the passage of the baraita cited above, is referring to a case where the owner was engaged with different work. As the latter clause teaches: If he borrowed it and afterward borrowed the services of its owner, or rented it and afterward hired its owner with it, in both these cases, although the owner was plowing alongside it and at that time it died, the borrower or renter is liable.

אמרי רישא וסיפא באותה מלאכה ורישא רבותא קא משמע לן וסיפא רבותא קא משמע לן רישא רבותא קא משמע לן דאף על גב דלאו על גבה אלא באותה מלאכה כיון דהוו בעלים בשעת שאילה פטור וסיפא רבותא קא משמע לן דאף על גב דעל גבה כיון דלא הוו בעלים בשעת שאילה חייב

In resolution of this difficulty, the Sages say: Both the first clause and the latter clause pertain to a case where the owner was engaged with the same work as the animal. And the difference in formulation of the two clauses is because the first clause teaches us a novelty and the latter clause teaches us a novelty. The first clause teaches us the novelty that although the owner was not actually working alongside his animal but was merely engaged with the same work, since the owner was working for the borrower at the time of the borrowing, the borrower is exempt. The latter clause teaches us the novelty that although the owner was actually working alongside his animal, since the owner was not working for the borrower at the time of the borrowing, the borrower is liable.

האי מאי אי אמרת בשלמא רישא במלאכה אחרת וסיפא באותה מלאכה היינו רבותא

The Gemara is puzzled: What is this? Granted, if you say that the first clause is referring to a case where the owner is engaged in different work than his animal, and the latter clause is referring to a case where he is engaged in the same work as his animal, then this is the novelty of mentioning what type of work he did: It teaches that it is irrelevant whether the owner did or did not work together with his animal. Rather, the liability of the borrower depends on whether or not the owner was working for the borrower when he entrusted the borrower with his animal.

אלא אי אמרת רישא וסיפא באותה מלאכה מאי רבותא אידי ואידי באותה מלאכה הוי

But if you say that the first clause and the latter clause both pertain to a case where the owner is engaged in the same work as his animal, what is the novelty of mentioning what type of work he did? Both this clause and that clause concern similar cases, in which the owner is engaged in the same work as his animal. It is therefore apparent that the clauses concern different cases. The first clause teaches that the borrower is exempt even in a case where the owner was engaged in different work than his animal. The first part of Rav Hamnuna’s ruling, that the owner needs to be engaged in the same work as his animal, is thereby refuted.

ועוד תניא ממשמע שנאמר אם בעליו עמו לא ישלם איני יודע שאם בעליו אין עמו שלם ישלם אלא מה תלמוד לומר בעליו אין עמו לומר לך היה עמו בשעת שאילה אין צריך להיות עמו בשעת שבורה ומתה היה עמו בשעת שבורה ומתה צריך להיות עמו בשעת שאילה

And furthermore, even the second part of Rav Hamnuna’s ruling, that the exemption applies only when the owner was working for the borrower from the time of the borrowing of the animal until the time of the mishap, can be refuted, as it is taught in a baraita: From the implication of that which is stated: “If its owner is with him, he does not pay” (Exodus 22:14), do I not already know what is stated in the next verse, that “if its owner is not with him, he shall pay” (Exodus 22:13)? Rather, what is the meaning when the verse states: “Its owner is not with him”? It serves to tell you: If he was with him, i.e., working for him, at the time of borrowing, he does not need to be with him at the time when the animal is injured or dies for the exemption from liability to apply; but if he was with him at the time when the animal is injured or dies, he does need to have been with him at the time of borrowing for the exemption from liability to apply.

ותניא אידך ממשמע שנאמר בעליו אין עמו שלם ישלם איני יודע שאם בעליו עמו לא ישלם אלא מה תלמוד לומר אם בעליו עמו לומר לך כיון שיצאה מרשות משאיל שעה אחת בבעלים ומתה פטור תיובתא דרב המנונא תיובתא

And it is taught in another baraita: From the implication of that which is stated: “If its owner is not with him, he shall pay,” do I not already know what is stated in the preceding verse, that “if its owner is with him, he does not pay”? Rather, what is the meaning when the verse states: “If its owner is with him”? It serves to tell you: Once the animal has left the domain of the lender, i.e., its owner, and has been entrusted to the borrower, with its owner working for the borrower at that time, even for only one moment, and then it dies, the borrower is exempt. The Gemara concludes: The refutation of the opinion of Rav Hamnuna provided by these baraitot is indeed a conclusive refutation.

אביי סבר לה כרבי יאשיה ומתרץ לקראי כרבי יאשיה רבא סבר לה כרבי יונתן ומתרץ לקראי כרבי יונתן

§ The Gemara explains how the first of these baraitot arrives at its conclusion: Abaye holds in accordance with the opinion of Rabbi Yoshiya, that when the Torah mentions two details together in reference to a halakha, it is presumed that the halakha applies only when both details are in effect (see 94b), and he likewise explains the two verses in accordance with Rabbi Yoshiya. Rava holds in accordance with the opinion of Rabbi Yonatan, that it is presumed that the halakha applies even when only one of the details is in effect, and he explains the verses in accordance with the opinion of Rabbi Yonatan.

אביי סבר לה כרבי יאשיה ומתרץ לקראי כרבי יאשיה בעליו אין עמו שלם ישלם טעמא דליתיה בתרוייהו הא איתיה בחדא וליתיה בחדא פטור

The Gemara clarifies: When the Torah refers to an owner working for the borrower, it should be understood as referring to the time of the borrowing and the time of the mishap. According to Rabbi Yoshiya’s opinion, this indicates that the owner worked for him at both times, whereas according to Rabbi Yonatan’s opinion, this implies that he worked for him at either time. Based on this, Abaye and Rava explain the verses: Abaye holds in accordance with the opinion of Rabbi Yoshiya, and he likewise explains the two verses in accordance with the opinion of Rabbi Yoshiya, thereby arriving at the conclusion of the baraita, as follows: From the verse: “If its owner is not with him, he shall pay,” it appears that the reason the borrower is liable is that the owner was not working for him at either point in time. By inference, if he worked for him at one of those times but not at the other one, the borrower is exempt.

והא כתיב אם בעליו עמו לא ישלם טעמא דאיתיה בתרוייהו הא אי איתיה בחדא וליתיה בחדא מחייב

The Gemara raises an objection: But isn’t it written: “If its owner is with him, he does not pay”? From this verse it appears that the reason the borrower is exempt is that the owner was working for him at both points in time. By inference, if he was working for him at one of those times but not at the other one, the borrower is liable. The two verses appear to contradict each another.

לומר לך היה עמו בשעת שאילה אינו צריך להיות עמו בשעת שבורה ומתה היה עמו בשעת שבורה ומתה צריך להיות עמו בשעת שאילה

To reconcile the verses, one must say that the phrase “if its owner is with him” serves to tell you: If he was with him, i.e., working for him, at the time of borrowing, he does not need to be with him at the time when the animal is injured or dies for the exemption from liability to apply; but if he was with him at the time when the animal is injured or dies, he does need to have been with him at the time of borrowing for the exemption to apply.