Bava Metzia 99

גמ׳ ביד עבדו חייב יד עבד כיד רבו

GEMARA: The mishna states that if the borrower agrees to have the lender send the cow by the hand of the lender’s slave, and it died on the way, then the borrower is liable. The Gemara asks: But isn’t the hand of a slave legally like the hand of his master; as long as the cow is in the possession of the lender’s slave, it is not considered to have left the lender’s possession. Why, then, is the borrower liable?

אמר שמואל בעבד עברי דלא קני ליה גופיה רב אמר אפילו תימא בעבד כנעני נעשה כאומר ליה הכישה במקל והיא תבא

The Gemara presents two resolutions: Shmuel said: The mishna is referring to a Hebrew slave, whose master does not acquire his person. Therefore, property in the slave’s possession is not considered to be in his master’s possession. Rav said: You may even say that the mishna is referring to a Canaanite slave, as this case may be considered like one in which the borrower said to the lender: Hit the cow with a stick and then it will come on its own to me. Just as in that case the borrower is liable once the cow leaves the lender’s domain, so too in this case he is liable once the cow leaves the lender’s domain, irrespective of the fact it was brought by the lender’s slave.

מיתיבי השואל הפרה ושלחה לו ביד בנו ביד שלוחו חייב ביד עבדו פטור

The Gemara raises an objection from a baraita: If one borrows a cow; and, with the agreement of the borrower, the lender sends it to him by the hand of his son or by the hand of his agent; and it dies on the way, then the borrower is liable. If the lender sent it by the hand of his slave, then the borrower is exempt. The final clause appears to contradict the mishna’s ruling.

בשלמא לשמואל מתניתין בעבד עברי ברייתא בעבד כנעני אלא לרב קשיא

The Gemara elaborates: Granted, according to the resolution of Shmuel, one can explain that the mishna is referring to a Hebrew slave, whereas the baraita is referring to a Canaanite slave. But according to the resolution of Rav, who maintained that the mishna is referring to a Canaanite slave, the contradiction is difficult.

אמר לך רב לא תימא נעשה כאמר ליה אלא אימא באמר ליה הכישה במקל והיא תבא

The Gemara presents a modified version of Rav’s resolution: Rav could say to you: Do not say in explanation of the mishna that the case may be considered like one in which the borrower said to the lender: Hit the cow with a stick and then it will come on its own. Rather, say that it is referring to a case where the borrower actually said to the lender: Hit the cow with a stick and then it will come to me on its own. Accordingly, one can explain that the baraita is referring to a case where he did not say this, and therefore, as long as the cow is still in the procession of the slave, the borrower is not liable.

דאיתמר השאילני פרתך ואמר לו ביד מי ואמר לו הכישה במקל ותבא אמר רב נחמן אמר רבה בר אבוה אמר רב כיון שיצאת מרשות משאיל ומתה חייב

As it was stated: One said to another: Lend me your cow. And the lender said to the borrower: By whose hand shall I send it? And the borrower said to him: Hit the cow with a stick and then it will come on its own to me. Rav Naḥman says that Rabba bar Avuh says that Rav says: In this case, the halakha is that once the cow left the domain of the lender and then it died, the borrower is liable.

נימא מסייע ליה השאילני פרתך ואמר ליה ביד מי ואמר ליה הכישה במקל והיא תבא כיון שיצאת מרשות משאיל ומתה חייב

The Gemara suggests: Let us say that the following baraita supports this opinion of Rav: One said to another: Lend me your cow. And the lender said to the borrower: By whose hand shall I send it? And the borrower said to him: Hit the cow with a stick and then it will come on its own to me. The halakha is that once the cow left the domain of the lender and then it died, the borrower is liable.

אמר רב אשי הכא במאי עסקינן כגון שהיתה חצרו של שואל לפנים מחצרו של משאיל דכי משלחה לה ודאי להתם אזלא

Rav Ashi said that the baraita is not a conclusive proof of Rav’s opinion. It is possible to say: With what are we dealing here; with a case where the courtyard of the borrower is situated further in from the public domain than the courtyard of the lender, such that when the lender sends the cow to him, it will certainly go to there. Consequently, the borrower is willing to accept liability from the moment the lender sends it.

אי הכי מאי למימרא לא צריכא דאיכא גזייתא מהו דתימא לא סמכא דעתיה דלמא קיימא התם ולא אתיא אזלא להדיא קא משמע לן דסמכא דעתיה

The Gemara asks: If so, if that is the case addressed in the baraita, what is the purpose of stating this halakha? It is obvious. The Gemara explains: No, it is necessary for the case of a courtyard in which there are corners. Lest you say: The borrower does not rely on the possibility that the animal will come to him, as perhaps the animal will go and stand there in one of the corners and not come straight to the borrower’s courtyard, the baraita therefore teaches us that even in such a case he relies on the assumption that the cow will nevertheless come to him, and so he accepts liability.

אמר רב הונא השואל קרדום מחבירו בקע בו קנאו לא בקע בו לא קנאו

§ Rav Huna says: In the case of one who borrows an ax from another, once he has chopped wood with it, he has acquired it, but as long as he has not chopped wood with it, he has not acquired it.

למאי אילימא לאונסין מאי שנא פרה דמשעת שאילה אלא לחזרה בקע בו לא מצי הדר ביה משאיל לא בקע בו מצי משאיל הדר ביה

The Gemara clarifies: With regard to what matter does one acquire the ax? If we say he has acquired it for the purpose of being liable for unavoidable mishaps, i.e., his liability as a borrower begins once he uses the ax, then one could ask: What is different when one borrows a cow, that one is liable as a borrower from the moment of borrowing, even before one makes use of it? Rather, Rav Huna refers to one’s right of retraction, as follows: Once the borrower has chopped wood with it, the lender cannot renege on his commitment to lend the item, but as long as the borrower has not chopped wood with it, the lender can renege on his commitment to lend the item and prevent the borrower from borrowing the item.

ופליגא דרבי אמי דאמר רבי אמי המשאיל קרדום של הקדש מעל לפי טובת הנאה שבו וחבירו מותר לבקע בו לכתחילה

And with this opinion, Rav Huna disagrees with the opinion of Rabbi Ami, as Rabbi Ami says: One who lends another an ax that is of property consecrated to the Temple treasury has there-by misused consecrated property. He is liable to pay the Temple treasury according to the financial advantage he received from lending the ax. And despite this, that other person, i.e., the borrower, is permitted to chop wood with it ab initio.

ואי לא קנאו אמאי מעל ואמאי חבירו מותר לבקע בו לכתחילה ניהדריה ולא ליקנייה ולא לימעול

The Gemara explains how it is apparent that Rabbi Ami disagrees with Rav Huna: And if one holds that the borrower does not acquire the ax from the moment of borrowing, why has the lender misused consecrated property? To be liable for misuse of consecrated property, one must acquire the item, thereby removing it from the Temple treasury. And furthermore, why is that other person permitted to chop wood with it ab initio? If the borrower does not acquire the ax from the moment of borrowing, let the borrower return the ax and not acquire it, and consequently the lender will not have misused consecrated property, as it will have turned out that nothing significant occurred. Rather, it is evident that Rabbi Ami holds that the act of lending is fully completed as soon as the borrower takes the ax, even before he has used it.

ופליגא דרבי אלעזר דאמר רבי אלעזר כדרך שתקנו משיכה בלקוחות כך תקנו משיכה בשומרים

And furthermore, with this opinion, Rav Huna disagrees with the opinion of Rabbi Elazar, as Rabbi Elazar says: In the same way in which the Sages instituted for buyers that they can acquire an item by pulling it, and from that point the transaction is completed, so too they instituted for bailees that their rights and responsibilities are initiated by their pulling the item they agreed to safeguard, and from that point the transfer of the item to the bailee is completed.

תניא נמי הכי כשם שתקנו משיכה בלקוחות כך תקנו משיכה בשומרים וכשם

This opinion of Rabbi Elazar is also taught in a baraita: Just as the Sages instituted for buyers that they can acquire an item by pulling it, so too they instituted for bailees that that their rights and responsibilities are initiated by them pulling the item they agreed to safeguard. And just as

שקרקע נקנית בכסף ובשטר ובחזקה כך שכירות נקנה בכסף ובשטר ובחזקה שכירות מאי עבידתיה אמר רב חסדא שכירות קרקע

land is acquired either through the buyer giving money to the seller, or by the seller giving the buyer a bill of sale, or by the buyer performing an act of taking possession, so too, a rental is acquired either through the renter giving money to the owner, or by the owner giving the renter a rental document, or by the renter performing an act of taking possession. Based on the assumption that the baraita is referring to rental of movable property, the Gemara asks: With regard to the case of renting in the baraita, what is its purpose, i.e., why is it mentioned in connection with acts of acquisition that are effective with regard to land? Rav Ḥisda said: The baraita is referring to the rental of land.

אמר שמואל האי מאן דגזיל חביצא דתמרי מחבירו ואית בה חמשים תמרי אגב הדדי מזדבנן בחמשים נכי חדא חדא חדא מזדבנן בחמשים

§ Apropos the mention in the previous discussion of one who misuses consecrated property, the Gemara cites a related matter. Shmuel says: In the case of one who robs another of a cake [ḥavitza] of pressed dates, and in the cake there are fifty dates, which, when sold together, sell for fifty-less-one perutot and when they are sold one by one, they sell for fifty perutot, the sum that the robber is liable to pay as compensation to the robbery victim depends on who the robbery victim is.

להדיוט משלם חמשים נכי חדא להקדש משלם חמשים וחומשייהו מה שאין כן במזיק דלא משלם חומשא דאמר מר ואיש כי יאכל קדש פרט למזיק

If one robbed, and is paying compensation to, a common person [hedyot], he pays fifty-less-one perutot. If one robbed another of a cake that was consecrated to the Temple treasury and he is paying compensation to the Temple treasury, he pays fifty perutot and an additional one-fifth of the value as a fine for having misused consecrated property for each one of the cakes. This is not so with regard to one liable for causing damage to consecrated property, who does not pay the additional one-fifth payment, as the Master says: The verse states: “And a man, if he eats sacrificial food in error, he should add its fifth on it” (Leviticus 22:14). By specifying that one who eats consecrated property is liable to pay the one-fifth payment, the verse excludes one who is liable for causing damage from that requirement.

מתקיף לה רב ביבי בר אביי להדיוט אמאי משלם חמשים נכי חדא נימא ליה אנא חדא חדא הוה מזבנינא להו

Rav Beivai bar Abaye objects to this: Why, when he pays compensation to a common person, does he pay fifty-less-one? Let the victim say to the robber: I would have sold them one by one and received fifty perutot for them; you should therefore compensate me for that entire amount.

אמר רב הונא בריה דרב יהושע שמין בית סאה באותה שדה תנן

Rav Huna, son of Rav Yehoshua, said: We learned in a mishna (Bava Kamma 55b): If an animal causes damage to another’s field, the court appraises a large piece of land with an area required for sowing one se’a of seed [beit se’a] in that field, including the garden bed in which the damage took place. The court appraises how much it was worth before the animal damaged it and how much is it worth now, and the owner must pay the difference. The court appraises not only the garden bed that was eaten or trampled, but rather the depreciation in value of the bed as part of the surrounding area. This results in a smaller payment, as the damage appears less significant in the context of a larger area. In this case as well, the value of the entire cake is evaluated, not what it would be worth were one to divide it into smaller units.

למימרא דסבר שמואל דין הדיוט לאו כדין גבוה דמי והתנן נטל אבן או קורה מהקדש לא מעל נתנה לחבירו הוא מעל וחבירו לא מעל בנאה בתוך ביתו לא מעל עד שידור תחתיה בשוה פרוטה

The Gemara asks: Is this to say that Shmuel holds that the halakha of compensation paid to a common person is not like the halakha of compensation paid to the Most High, i.e., to the Temple treasury? But didn’t we learn in a mishna (Me’ila 19b): One who physically took a stone or a cross beam from among items consecrated to the Temple treasury is not considered to have misused consecrated property. If he gave it to another, he is considered to have misused consecrated property, but that other person is not considered to have misused consecrated property. If, after taking a stone or cross beam that was consecrated property one built it into the structure of his house, he is not considered to have misused consecrated property until he resides underneath it, thereby deriving benefit of the value of one peruta.

ויתיב רבי אבהו קמיה דרבי יוחנן ויתיב וקאמר משמיה דשמואל זאת אומרת הדר בחצר חבירו שלא מדעתו צריך להעלות לו שכר אמר ליה רבי יוחנן הדר ביה שמואל מההיא

And Rabbi Abbahu was sitting before Rabbi Yoḥanan, and he was sitting and saying in the name of Shmuel, in reference to that mishna: That is to say: One who resides in another’s courtyard without his knowledge must pay him rent. Just as one is considered to derive benefit from a cross beam by residing underneath it and must pay for that benefit, so too, one is considered to derive benefit from the courtyard by residing in it, and he must pay for that benefit. It is apparent from this statement of Shmuel that the halakhot of compensating a common person are similar to and can be derived from those of the Temple treasury. This contradicts Shmuel’s previous statement in the Gemara. Rabbi Yoḥanan said to him in resolution of this difficulty: Shmuel retracted that statement of his.

וממאי דמההיא הדר ביה דלמא מהא הדר לא מההיא הדר ביה כדרבא דאמר רבא הקדש שלא מדעת כהדיוט מדעת דמי

The Gemara asks: But from where is it apparent that he retracted that statement concerning residing in another’s courtyard; perhaps he retracted this ruling, concerning one who stole a cake of pressed dates? The Gemara answers: No, it must be that statement, concerning residing in another’s courtyard, that he retracted, in accordance with the statement of Rava. As Rava says: Using consecrated property without the Temple treasurer’s knowledge is like using property belonging to a common person with his knowledge. Since, ultimately, the true owner of consecrated property is God, benefit from it is always considered to be have been derived with the owner’s knowledge. Consequently, one cannot derive an inference from the halakha of deriving benefit from consecrated property to a case of deriving benefit from a common person’s property without his knowledge. Accordingly, it is more reasonable that Shmuel retracted his ruling about residing in another’s courtyard.

אמר רבא הני שקולאי דתברו חביתא דחמרא לחנוואה ביומא דשוקא מיזדבנא בחמש בשאר יומי מיזדבנא בארבע אהדרו ליה ביומא דשוקא מהדרו ליה חביתא דחמרא בשאר יומי מהדרו ליה חמש

The Gemara cites another ruling concerning differing rates of compensation: Rava says: With regard to these porters who broke a shopkeeper’s barrel of wine, which on market day sells for five dinars and on other days sells for four dinars, if they restore its value to him on market day, then it is sufficient if they compensate him with a barrel of wine, which he could then sell for five dinars. If they wish to repay him on other days, i.e., on a non-market day, they must compensate him with five dinars. They cannot discharge their debt by giving him a barrel of wine, as on those days it is worth only four dinars.

ולא אמרן אלא דלא הוה ליה חמרא לזבוני אבל הוה ליה חמרא לזבוני הא איבעי ליה לזבוני

The Gemara qualifies Rava’s ruling: And we said that the porters must pay five dinars on a non-market day only in a case in which the shopkeeper did not have other barrels of wine to sell on that market day and consequently lost out on a potential sale worth five dinars. But if he had another barrel of wine to sell, then he should have sold it. The fact he did not sell the wine he had demonstrates that the porters did not cause him to lose out on a sale worth five dinars.

ומנכי ליה אגר טירחיה ודמי ברזנייתא

The Gemara further qualifies Rava’s ruling: And when the porters pay the five dinars, they deduct from it the usual value of the shopkeeper’s effort in selling a barrel and the usual cost of tapping a barrel, as the shopkeeper was spared these costs.