Bava Metzia 95
עַד שֶׁיִּפְרוֹט לְךָ הַכָּתוּב ״יַחְדָּו״.
unless the verse specifies that one is liable only where he curses both together, which it does not do in this case.
אֲפִילּוּ תֵּימָא רַבִּי יֹאשִׁיָּה, לְחַלֵּק הָכָא לָא צָרִיךְ. מַאי טַעְמָא – סְבָרָא הוּא: מָה לִי קַטְלַהּ כּוּלָּהּ, מָה לִי קַטְלַהּ פַּלְגָא.
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.
גְּנֵיבָה וַאֲבֵידָה בְּשׁוֹאֵל מְנָא לַן?
§ The Gemara asks: From where do we derive the liability of a borrower in a case of theft or loss?
וְכִי תֵּימָא: נֵילַף מִשְּׁבוּרָה וּמֵתָה, מָה לִשְׁבוּרָה וּמֵתָה – דְּלָא אֶפְשָׁר לְמִיטְרַח וְאֵתוֹיֵי, תֹּאמַר בִּגְנֵיבָה וַאֲבֵידָה דְּאֶפְשָׁר לְמִיטְרַח וְאֵתוֹיֵי!
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.
אֶלָּא כִּי הָא דְּתַנְיָא: ״וְנִשְׁבַּר אוֹ מֵת״, אֵין לִי אֶלָּא שְׁבוּרָה וּמֵתָה. גְּנֵיבָה וַאֲבֵידָה מִנַּיִן? אָמַרְתָּ קַל וָחוֹמֶר: וּמָה שׁוֹמֵר שָׂכָר שֶׁפָּטוּר מִשְּׁבוּרָה וּמֵתָה, חַיָּיב בִּגְנֵיבָה וַאֲבֵידָה. שׁוֹאֵל שֶׁחַיָּיב בִּשְׁבוּרָה וּמֵתָה – אֵינוֹ דִּין שֶׁחַיָּיב בִּגְנֵיבָה וַאֲבֵידָה? וְזֶה הוּא קַל וָחוֹמֶר שֶׁאֵין עָלָיו תְּשׁוּבָה.
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.
מַאי ״אֵין עָלָיו תְּשׁוּבָה״? וְכִי תֵּימָא: אִיכָּא לְמִיפְרַךְ, מָה לְשׁוֹמֵר שָׂכָר – שֶׁכֵּן מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל בְּטוֹעֵן טַעֲנַת לִסְטִים מְזוּיָּין,
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.
אֲפִילּוּ הָכִי קַרְנָא דְּשׁוֹאֵל עֲדִיפָא.
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.
אִיבָּעֵית אֵימָא: קָסָבַר לִסְטִים מְזוּיָּין גַּזְלָן הוּא.
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.
אַשְׁכְּחַן לְחִיּוּב, לִפְטוּר מְנָא לַן?
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).
וְכִי תֵּימָא נֵילַף מִשְּׁבוּרָה וּמֵתָה, מָה לִשְׁבוּרָה וּמֵתָה – שֶׁכֵּן אוֹנֶס!
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?
אֶלָּא גָּמַר מִשּׁוֹמֵר שָׂכָר. וְשׁוֹמֵר שָׂכָר גּוּפֵיהּ מְנָלַן? גָּמְרִי חִיּוּבָא דְּשׁוֹמֵר שָׂכָר מֵחִיּוּבָא דְּשׁוֹאֵל: מָה לְהַלָּן בִּבְעָלִים – פָּטוּר, אַף כָּאן בִּבְעָלִים – פָּטוּר.
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.
בְּמַאי גָּמַר? אִי בַּמָּה מָצִינוּ, אִיכָּא לְמִיפְרַךְ כִּדְפָרְכִינַן: שֶׁכֵּן אוֹנֶס!
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.
אֶלָּא, אָמַר קְרָא ״וְכִי יִשְׁאַל״ – וָיו מוֹסִיף עַל עִנְיָן רִאשׁוֹן, וְיִלְמַד עֶלְיוֹן מִתַּחְתּוֹן.
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.
וְאַכַּתִּי שׁוֹאֵל מִשּׁוֹמֵר שָׂכָר לָא גָּמַר, דְּאִיכָּא לְמִיפְרַךְ: מָה לְשׁוֹמֵר שָׂכָר – שֶׁכֵּן פָּטוּר בִּשְׁבוּרָה וּמֵתָה, תֹּאמַר בְּשׁוֹאֵל שֶׁחַיָּיב בִּשְׁבוּרָה וּמֵתָה!
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.
אֶלָּא גְּנֵיבָה וַאֲבֵידָה בְּשׁוֹאֵל לְחִיּוּבָא מְנָלַן – דְּגָמַר מִשּׁוֹמֵר שָׂכָר: דַּיּוֹ לַבָּא מִן הַדִּין לִהְיוֹת כַּנִּדּוֹן, מָה גְּנֵיבָה וַאֲבֵידָה דְּשׁוֹמֵר שָׂכָר בִּבְעָלִים – פָּטוּר, אַף גְּנֵיבָה וַאֲבֵידָה דְּשׁוֹאֵל נָמֵי בִּבְעָלִים – פָּטוּר.
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.
הָנִיחָא לְמַאן דְּאִית לֵיהּ דַּיּוֹ, אֶלָּא לְמַאן דְּלֵית לֵיהּ דַּיּוֹ מַאי אִיכָּא לְמֵימַר?
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?
אֶלָּא אָמַר קְרָא ״וְכִי יִשְׁאַל״, וָיו מוֹסִיף עַל עִנְיָן רִאשׁוֹן, וְיִלְמַד עֶלְיוֹן מִתַּחְתּוֹן וְתַחְתּוֹן מֵעֶלְיוֹן.
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.
אִיתְּמַר: פְּשִׁיעָה בִּבְעָלִים, פְּלִיגִי בַּהּ רַב אַחָא וְרָבִינָא. חַד אָמַר: חַיָּיב, וְחַד אָמַר: פָּטוּר.
§ 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.
מַאן דְּאָמַר חַיָּיב, קָסָבַר: מִקְרָא נִדְרָשׁ לְפָנָיו, וְלֹא לִפְנֵי פָנָיו,
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.
הִלְכָּךְ ״אִם בְּעָלָיו עִמּוֹ״ אַשּׁוֹמֵר חִנָּם לָא כְּתִיב, וּפְשִׁיעָה נָמֵי בְּשׁוֹמֵר שָׂכָר וּבְשׁוֹאֵל לָא כְּתִיב. הִלְכָּךְ, בְּשׁוֹמֵר שָׂכָר וּבְשׁוֹאֵל לְחִיּוּב אָתְיָא בְּקַל וָחוֹמֶר מִשּׁוֹמֵר חִנָּם.
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.
אֲבָל בִּבְעָלִים לִפְטוּר אַף בְּשׁוֹמֵר שָׂכָר וּבְשׁוֹאֵל – לָא. מַאי טַעְמָא: כִּי כְּתִיב ״אִם בְּעָלָיו עִמּוֹ לֹא יְשַׁלֵּם״ אַשּׁוֹאֵל וְאַשּׁוֹמֵר שָׂכָר – אַהָנָךְ חִיּוּבֵי דִּכְתִיב בְּהוּ בְּהֶדְיָא הוּא דְּמִיכְּתִב.
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.
מַאן דְּאָמַר פָּטוּר, קָסָבַר: מִקְרָא נִדְרָשׁ לְפָנָיו וְלִפְנֵי פָנָיו, וְכִי כְּתִיב ״אִם בְּעָלָיו עִמּוֹ״ – אַשּׁוֹמֵר חִנָּם נָמֵי כְּתִיב.
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.
תְּנַן: הַשּׁוֹאֵל הַפָּרָה וְשָׁאַל בְּעָלֶיהָ עִמָּהּ, הַשּׁוֹאֵל הַפָּרָה וְשָׂכַר בְּעָלֶיהָ עִמָּהּ, שָׁאַל בְּעָלֶיהָ אוֹ שְׂכָרָן וְאַחַר כָּךְ שָׁאַל הַפָּרָה וּמֵתָה – פָּטוּר. וְאִילּוּ שׁוֹמֵר חִנָּם לָא קָתָנֵי!
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.
וּלְטַעְמָיךְ: שׁוֹמֵר שָׂכָר מִי קָתָנֵי?
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.
אֶלָּא תַּנָּא, מִילְּתָא
Rather, with regard to the tanna of the mishna, the matter
דִּכְתִיבָא בְּהֶדְיָא – קָתָנֵי, דְּאָתְיָא מִדְּרָשָׁא – לָא קָתָנֵי.
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.
תָּא שְׁמַע: שְׁאָלָהּ וְשָׁאַל בְּעָלֶיהָ עִמָּהּ, שְׂכָרָהּ וְשָׂכַר בְּעָלֶיהָ עִמָּהּ, שְׁאָלָהּ וְשָׂכַר בְּעָלֶיהָ עִמָּהּ, שְׂכָרָהּ וְשָׁאַל בְּעָלֶיהָ עִמָּהּ, אַף עַל פִּי שֶׁהַבְּעָלִים עוֹשִׂין מְלָאכָה בְּמָקוֹם אַחֵר, וָמֵתָה – פָּטוּר.
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.
סַבְרוּהָ הָא מַנִּי – רַבִּי יְהוּדָה הִיא, דְּאָמַר: שׂוֹכֵר כְּשׁוֹמֵר שָׂכָר דָּמֵי! וְהָא הַאי תַּנָּא קָתָנֵי מִילְּתָא דְּאָתְיָא מִדְּרָשָׁא, וְאִילּוּ שׁוֹמֵר חִנָּם לָא קָתָנֵי!
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.
הָא מַנִּי – רַבִּי מֵאִיר הִיא, דְּאָמַר: שׂוֹכֵר כְּשׁוֹמֵר חִנָּם דָּמֵי, וְתַנָּא שׁוֹמֵר חִנָּם, וְהוּא הַדִּין לְשׁוֹמֵר שָׂכָר.
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.
אִיבָּעֵית אֵימָא כִּדְמַחְלֵיף רַבָּה בַּר אֲבוּהּ וְתָנֵי: שׂוֹכֵר כֵּיצַד מְשַׁלֵּם? רַבִּי מֵאִיר אוֹמֵר: כְּשׁוֹמֵר שָׂכָר, רַבִּי יְהוּדָה אוֹמֵר: כְּשׁוֹמֵר חִנָּם.
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.
אָמַר רַב הַמְנוּנָא: לְעוֹלָם הוּא חַיָּיב עַד שֶׁתְּהֵא פָּרָה וְחוֹרֵשׁ בָּהּ, חֲמוֹר וּמְחַמֵּר אַחֲרֶיהָ, וְעַד שֶׁיְּהוּ בְּעָלִים מִשְּׁעַת שְׁאֵילָה עַד שְׁעַת שְׁבוּרָה וּמֵתָה. אַלְמָא קָסָבַר ״בְּעָלָיו עִמּוֹ״ – אַכּוּלַּהּ מִילְּתָא מַשְׁמַע.
§ 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.
מֵתִיב רָבָא: שְׁאָלָהּ וְשָׁאַל בְּעָלֶיהָ עִמָּהּ, שְׂכָרָהּ וְשָׂכַר בְּעָלֶיהָ עִמָּהּ, שְׂכָרָהּ וְשָׁאַל בְּעָלֶיהָ עִמָּהּ, שְׁאָלָהּ וְשָׂכַר בְּעָלֶיהָ עִמָּהּ, אַף עַל פִּי שֶׁהַבְּעָלִים עוֹשִׂין מְלָאכָה בְּמָקוֹם אַחֵר וָמֵתָה – פָּטוּר. מַאי לָאו ״בִּמְלָאכָה אַחֶרֶת״?
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.
לָא, בְּאוֹתָהּ מְלָאכָה. אֶלָּא, מַאי ״מָקוֹם אַחֵר״? דְּקָא מְרַפֵּי וְאָזֵיל קַמַּהּ.
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.
וְהָא מִדְּסֵיפָא ״עַל גַּבָּהּ״ הָוֵי, רֵישָׁא בִּמְלָאכָה אַחֶרֶת, דְּקָתָנֵי סֵיפָא: שְׁאָלָהּ וְאַחַר כָּךְ שָׁאַל בְּעָלֶיהָ, שְׂכָרָהּ וְאַחַר כָּךְ שָׂכַר בְּעָלֶיהָ עִמָּהּ, אַף עַל פִּי שֶׁהַבְּעָלִים חוֹרְשִׁין עַל גַּבָּהּ וָמֵתָה – חַיָּיב!
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.
אָמְרִי: רֵישָׁא וְסֵיפָא בְּאוֹתָהּ מְלָאכָה, וְרֵישָׁא רְבוּתָא קָא מַשְׁמַע לַן, וְסֵיפָא רְבוּתָא קָא מַשְׁמַע לַן. רֵישָׁא רְבוּתָא קָא מַשְׁמַע לַן, דְּאַף עַל גַּב דְּלָאו עַל גַּבָּהּ אֶלָּא בְּאוֹתָהּ מְלָאכָה, כֵּיוָן דַּהֲווֹ בְּעָלִים בִּשְׁעַת שְׁאֵילָה – פָּטוּר. וְסֵיפָא רְבוּתָא קָא מַשְׁמַע לַן, דְּאַף עַל גַּב דְּעַל גַּבָּהּ, כֵּיוָן דְּלָא הֲווֹ בְּעָלִים בִּשְׁעַת שְׁאֵילָה – חַיָּיב.
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.
הַאי מַאי?! אִי אָמְרַתְּ בִּשְׁלָמָא רֵישָׁא בִּמְלָאכָה אַחֶרֶת, וְסֵיפָא בְּאוֹתָהּ מְלָאכָה – הַיְינוּ רְבוּתָא.
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.
אֶלָּא אִי אָמְרַתְּ רֵישָׁא וְסֵיפָא בְּאוֹתָהּ מְלָאכָה, מַאי רְבוּתָא? אִידֵּי וְאִידֵּי בְּאוֹתָהּ מְלָאכָה הָוֵי!
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.
וְעוֹד, תַּנְיָא: מִמַּשְׁמַע שֶׁנֶּאֱמַר ״אִם בְּעָלָיו עִמּוֹ לֹא יְשַׁלֵּם״ אֵינִי יוֹדֵעַ שֶׁאִם בְּעָלָיו אֵין עִמּוֹ שַׁלֵּם יְשַׁלֵּם? אֶלָּא מָה תַּלְמוּד לוֹמַר ״בְּעָלָיו אֵין עִמּוֹ״ – לוֹמַר לָךְ: הָיָה עִמּוֹ בִּשְׁעַת שְׁאֵילָה – אֵין צָרִיךְ לִהְיוֹת עִמּוֹ בִּשְׁעַת שְׁבוּרָה וּמֵתָה, הָיָה עִמּוֹ בִּשְׁעַת שְׁבוּרָה וּמֵתָה – צָרִיךְ לִהְיוֹת עִמּוֹ בִּשְׁעַת שְׁאֵילָה.
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.
וְתַנְיָא אִידַּךְ: מִמַּשְׁמַע שֶׁנֶּאֱמַר ״בְּעָלָיו אֵין עִמּוֹ שַׁלֵּם יְשַׁלֵּם״ אֵינִי יוֹדֵעַ שֶׁאִם בְּעָלָיו עִמּוֹ לֹא יְשַׁלֵּם? אֶלָּא מָה תַּלְמוּד לוֹמַר ״אִם בְּעָלָיו עִמּוֹ״? לוֹמַר לְךָ: כֵּיוָן שֶׁיָּצְאָה מֵרְשׁוּת מַשְׁאִיל שָׁעָה אַחַת בִּבְעָלִים וָמֵתָה – פָּטוּר. תְּיוּבְתָּא דְּרַב הַמְנוּנָא. תְּיוּבְתָּא.
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.
אַבָּיֵי סָבַר לַהּ כְּרַבִּי יֹאשִׁיָּה, וּמְתָרֵץ לִקְרָאֵי כְּרַבִּי יֹאשִׁיָּה. רָבָא סָבַר לַהּ כְּרַבִּי יוֹנָתָן, וּמְתָרֵץ לִקְרָאֵי כְּרַבִּי יוֹנָתָן.
§ 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.
אַבָּיֵי סָבַר לַהּ כְּרַבִּי יֹאשִׁיָּה וּמְתָרֵץ לִקְרָאֵי כְּרַבִּי יֹאשִׁיָּה: ״בְּעָלָיו אֵין עִמּוֹ שַׁלֵּם יְשַׁלֵּם״, טַעְמָא דְּלֵיתֵיהּ בְּתַרְוַיְיהוּ, הָא אִיתֵיהּ בַּחֲדָא וְלֵיתֵיהּ בַּחֲדָא – פָּטוּר.
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.
וְהָא כְּתִיב: ״אִם בְּעָלָיו עִמּוֹ לֹא יְשַׁלֵּם״, טַעְמָא דְּאִיתֵיהּ בְּתַרְוַיְיהוּ, הָא אִי אִיתֵיהּ בַּחֲדָא וְלֵיתֵיהּ בַּחֲדָא – מִחַיַּיב.
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.
לוֹמַר לָךְ: הָיָה עִמּוֹ בִּשְׁעַת שְׁאֵילָה – אֵינוֹ צָרִיךְ לִהְיוֹת עִמּוֹ בִּשְׁעַת שְׁבוּרָה וּמֵתָה, הָיָה עִמּוֹ בִּשְׁעַת שְׁבוּרָה וּמֵתָה – צָרִיךְ לִהְיוֹת עִמּוֹ בִּשְׁעַת שְׁאֵילָה.
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.
