Bava Metzia 93
הָנִיחָא לְמַאן דְּאָמַר אֵין הָרַב יָכוֹל לוֹמַר לָעֶבֶד עֲשֵׂה עִמִּי וְאֵינִי זָנָךְ – שַׁפִּיר. אֶלָּא לְמַאן דְּאָמַר יָכוֹל הָרַב לוֹמַר לָעֶבֶד עֲשֵׂה עִמִּי וְאֵינִי זָנָךְ, מַאי אִיכָּא לְמֵימַר?
This works out well according to the one who says that a master cannot say to a slave: Work for me and I will not feed you, i.e., he is obligated to provide the slave with a livelihood. For the purposes of the case at hand, this means that the master cannot stipulate that he is relinquishing his slaves’ right to eat while performing labor, and therefore it works out well. But according to the one who says that a master can say to a slave: Work for me and I will not feed you, what can be said? He should be able to stipulate to that effect with regard to his minor slave, as he is entitled to all profits that result from the slaves’ labor.
אֶלָּא אִידֵּי וְאִידֵּי בְּשֶׁאֵין מַעֲלֶה לָהֶן מְזוֹנוֹת, וּבְהָא פְּלִיגִי: דְּמָר סָבַר יָכוֹל, וּמַר סָבַר אֵין יָכוֹל. וְרַבִּי יוֹחָנָן, דְּאָמַר: יָכוֹל הָרַב, שָׁבֵיק מַתְנִיתִין וְעָבֵיד כְּבָרַיְיתָא?!
Rather, according to this opinion one must accept a different explanation: Both this mishna and that baraita are referring to a case when he does not provide the slaves with food, and the two tannaitic sources disagree with regard to that very issue. As one Sage, the tanna of the baraita, holds that a master can say to a slave: Work for me and I will not feed you, and one Sage, the tanna of the mishna, holds that he cannot do so. The Gemara is puzzled by this response: If so, Rabbi Yoḥanan, who says that a master can say to his slave that he will not feed him, has left aside the mishna and acted and ruled in accordance with the baraita.
אֶלָּא דְּכוּלֵּי עָלְמָא מִשֶּׁל שָׁמַיִם הוּא אוֹכֵל, וְלָא מָצֵי קָצֵיץ. וּמַאי ״קוֹצֵץ״ דְּאָמַר רַבִּי הוֹשַׁעְיָא – מְזוֹנוֹת.
Rather, the Gemara retracts the previous explanation in favor of another: Everyone agrees that a laborer eats from the property of Heaven, and even if a father or master provides his child or slave with food he cannot stipulate that the child or slave should not eat when performing labor, as the father or master has no rights over that which they consume. And what is the meaning of: Stipulates, that Rabbi Hoshaya says in the baraita? That does not mean, as in the mishna, that the master relinquishes the slaves’ right to food; rather, he stipulates that they should eat food before they work, so that they will be too full to eat at a later stage.
דִּכְווֹתֵיהּ גַּבֵּי בְּהֶמְתּוֹ תֶּבֶן נִקּוֹץ לַהּ! אֶלָּא בְּהָא קָמִיפַּלְגִי: דְּמָר סָבַר – מִשֶּׁלּוֹ הוּא אוֹכֵל, וּמָר סָבַר – מִשֶּׁל שָׁמַיִם הוּא אוֹכֵל.
The Gemara raises a difficulty: If so, in the corresponding situation, with regard to his animal, there should likewise be no discussion at all because he can stipulate in this manner and distribute straw for it before it starts work, as everyone agrees that this is permitted. Rather, the Gemara retracts this interpretation and says that in fact they disagree with regard to this: That one Sage, the tanna of the mishna, holds that a laborer eats from his own property, and one Sage, the tanna of the baraita, holds that a laborer eats from the property of Heaven. This proves that this issue is in fact a dispute between tanna’im.
מַתְנִי׳ קוֹצֵץ אָדָם עַל יְדֵי עַצְמוֹ, עַל יְדֵי בְּנוֹ וּבִתּוֹ הַגְּדוֹלִים, עַל יְדֵי עַבְדּוֹ וְשִׁפְחָתוֹ הַגְּדוֹלִים, עַל יְדֵי אִשְׁתּוֹ, מִפְּנֵי שֶׁיֵּשׁ בָּהֶן דַּעַת. אֲבָל אֵינוֹ קוֹצֵץ עַל יְדֵי בְּנוֹ וּבִתּוֹ הַקְּטַנִּים, וְלֹא עַל יְדֵי עַבְדּוֹ וְשִׁפְחָתוֹ הַקְּטַנִּים, וְלֹא עַל יְדֵי בְּהֶמְתּוֹ, מִפְּנֵי שֶׁאֵין בָּהֶן דַּעַת.
MISHNA: A man can stipulate on his own behalf that he receive a certain increase in his wages instead of eating the produce with which he works, and similarly, he can stipulate this on behalf of his adult son or daughter, on behalf of his adult Canaanite slave or Canaanite maidservant, or on behalf of his wife, with their agreement, because they have the basic level of mental competence, i.e., they are legally competent and can therefore waive their rights. But he cannot stipulate this on behalf of his minor son or daughter, nor on behalf of his minor Canaanite slave or Canaanite maidservant, nor on behalf of his animal, as they do not have the basic level of mental competence.
הַשּׂוֹכֵר אֶת הַפּוֹעֲלִים לַעֲשׂוֹת בְּנֶטַע רְבָעִי שֶׁלּוֹ – הֲרֵי אֵלּוּ לֹא יֹאכְלוּ. אִם לֹא הוֹדִיעָן – פּוֹדֶה וּמַאֲכִילָן. נִתְפָּרְסוּ עִגּוּלָיו, נִתְפַּתְּחוּ חָבִיּוֹתָיו – הֲרֵי אֵלּוּ לֹא יֹאכְלוּ. אִם לֹא הוֹדִיעָן – מְעַשֵּׂר וּמַאֲכִילָן.
In the case of one who hires a laborer to perform labor with his fourth-year fruit, such laborers may not eat the fruit. And if he did not inform them beforehand that they were working with fourth-year fruit, he must redeem the fruit and feed them. If his fig cakes broke apart and crumbled, so that they must be preserved again, or if his barrels of wine opened and he hired workers to reseal them, these laborers may not eat, as the work of the figs or wine had already been completed with regard to tithes, from which point a laborer may not eat them. And if he did not inform them, he must tithe the food and feed them.
שׁוֹמְרֵי פֵירוֹת אוֹכְלִין מֵהִלְכוֹת מְדִינָה, אֲבָל לֹא מִן הַתּוֹרָה.
The mishna adds: Watchmen of produce may eat the produce of the field or vineyard by local regulations, i.e., in accordance with the ordinances accepted by the residents of that place, but not by Torah law.
גְּמָ׳ שׁוֹמְרֵי פֵירוֹת. אָמַר רַב: לֹא שָׁנוּ אֶלָּא שׁוֹמְרֵי גַנּוֹת וּפַרְדֵּסִין. אֲבָל שׁוֹמְרֵי גִיתּוֹת וַעֲרֵימוֹת – אוֹכְלִין מִן הַתּוֹרָה. קָסָבַר: מְשַׁמֵּר כְּעוֹשֶׂה מַעֲשֶׂה דָּמֵי.
GEMARA: The mishna mentions watchmen of produce. Rav says: They taught this halakha only with regard to watchmen of gardens and orchards, in which the produce is still attached to the ground, and therefore the watchman would have no legal right to it were it not for the local custom. But watchmen of winepresses and piles of detached produce may eat from them by Torah law, as the decisive factor is whether or not the produce is attached to the ground. Evidently, Rav maintains that one who safeguards is considered like one who performs labor, and therefore he has the status of a laborer.
וּשְׁמוּאֵל אָמַר: לֹא שָׁנוּ אֶלָּא שׁוֹמְרֵי גִיתּוֹת וַעֲרֵימוֹת. אֲבָל שׁוֹמְרֵי גַנּוֹת וּפַרְדֵּסִים – אֵינָן אוֹכְלִים לֹא מִן הַתּוֹרָה וְלֹא מֵהִלְכוֹת מְדִינָה. קָא סָבַר מְשַׁמֵּר לָאו כְּעוֹשֶׂה מַעֲשֶׂה דָּמֵי.
And conversely, Shmuel says that the Sages taught the halakha of the mishna, that they may eat by local regulations, only with regard to watchmen of winepresses and piles of detached produce. But watchmen of gardens and orchards may not eat, neither by Torah law nor by local regulations. This shows that Shmuel holds that one who safeguards is not considered like one who performs labor, and therefore no watchman is entitled to eat by Torah law. In the particular case of detached produce, there is a local custom to allow a watchman of detached produce to eat from it.
מֵתִיב רַב אַחָא בַּר רַב הוּנָא: הַמְשַׁמֵּר אֶת הַפָּרָה – מְטַמֵּא בְּגָדִים. וְאִי אָמְרַתְּ מְשַׁמֵּר לָאו כְּעוֹשֶׂה מַעֲשֶׂה דָּמֵי – אַמַּאי מְטַמֵּא בְּגָדִים? אָמַר רַבָּה בַּר עוּלָּא: גְּזֵירָה שֶׁמָּא יָזִיז בָּהּ אֵבֶר.
Rav Aḥa bar Rav Huna raises an objection to this reasoning from a baraita: One who safeguards the red heifer after it has been burned renders his garments impure, in accordance with halakha concerning all those who take part in the ritual of the red heifer. The Torah decrees that all those who take part in the ritual of the red heifer contract impurity (Numbers, chapter 19). It is therefore necessary to establish which people are considered to have taken part in this ritual. And if you say that one who safeguards is not considered like one who performs labor, why does he render his garments impure? He has not performed any labor. Rabba bar Ulla said: He does not render them impure due to his work as a watchman; rather, this is a rabbinic decree, lest he move a limb of the heifer.
מֵתִיב רַב כָּהֲנָא: הַמְשַׁמֵּר אַרְבַּע וְחָמֵשׁ מִקְשָׁאוֹת – הֲרֵי זֶה לֹא יְמַלֵּא כְּרֵסוֹ מֵאֶחָד מֵהֶן, אֶלָּא מִכׇּל אֶחָד וְאֶחָד אוֹכֵל לְפִי חֶשְׁבּוֹן. וְאִי אָמְרַתְּ מְשַׁמֵּר לָאו כְּעוֹשֶׂה מַעֲשֶׂה דָּמֵי – אַמַּאי אוֹכֵל?
Rav Kahana raises an objection: With regard to one who safeguards four or five cucumber fields, which contain various types of cucumbers and gourds belonging to different people, this one may not fill his stomach from any single one of them. Rather, he must eat from each and every one by a proportionate amount. But if you say that one who safeguards is not considered like one who performs labor, why is he allowed to eat at all?
אָמַר רַב שִׁימִי בַּר אָשֵׁי: בַּעֲקוּרִין שָׁנוּ. עֲקוּרִין – וַהֲלֹא נִגְמְרָה מְלַאכְתָּן לְמַעֲשֵׂר? שֶׁלֹּא נִיטַּל פֵּיקֶס שֶׁלָּהֶם.
Rav Shimi bar Ashi said: They taught this halakha with regard to uprooted cucumbers, concerning which even Shmuel agrees that a watchman may eat them by local regulations. The Gemara raises a difficulty: Uprooted? But at that stage hasn’t their work already been completed with regard to tithes, and therefore no laborer should be permitted to eat them? The Gemara answers: This is referring to a case when their blossom had not yet been removed. Since the cucumbers still require work, they are not yet subject to tithes.
אָמַר רַב אָשֵׁי: כְּווֹתֵיהּ דִּשְׁמוּאֵל מִסְתַּבְּרָא, דִּתְנַן, וְאֵלּוּ אוֹכְלִין מִן הַתּוֹרָה: הָעוֹשֶׂה בִּמְחוּבָּר לַקַּרְקַע בִּשְׁעַת גְּמַר מְלָאכָה, וּבְתָלוּשׁ כּוּ׳. מִכְּלָל דְּאִיכָּא דְּלָא קָא אָכֵיל מִן הַתּוֹרָה אֶלָּא מֵהִלְכוֹת מְדִינָה.
Rav Ashi said: It stands to reason that the halakha is in accordance with the opinion of Shmuel, as we learned in a mishna (87a): And these laborers may eat by Torah law: A laborer who performs labor with produce attached to the ground at the time of the completion of its work, e.g., harvesting produce; and a laborer who performs labor with produce detached from the ground before the completion of its work. The mishna’s phrase: By Torah law, proves by inference that with regard to detached produce there is one who does not eat by Torah law but by local regulations.
אֵימָא סֵיפָא: וְאֵלּוּ שֶׁאֵינָן אוֹכְלִין. מַאי אֵינָן אוֹכְלִין? אִילֵּימָא שֶׁאֵין אוֹכְלִין מִן הַתּוֹרָה אֶלָּא מֵהִלְכוֹת מְדִינָה – הַיְינוּ רֵישָׁא, אֶלָּא לָאו שֶׁאֵין אוֹכְלִין לֹא מִן הַתּוֹרָה וְלֹא מֵהִלְכוֹת מְדִינָה. וּמַאי נִיהוּ – עוֹשֶׂה בִּמְחוּבָּר לַקַּרְקַע בְּשָׁעָה שֶׁאֵין גְּמַר מְלָאכָה, וְכׇל שֶׁכֵּן שׁוֹמְרֵי גַנּוֹת וּפַרְדֵּסוֹת.
The Gemara continues its proof: Now, say the latter clause of that mishna: And these may not eat. What is the meaning of: May not eat? If we say this means that they may not eat by Torah law but by local regulations, this is the same as the first clause. Rather, is it not correct to say that it means they may not eat at all, neither by Torah law nor by local regulations? And who are the people included in this list? They are one who performs labor with produce attached to the ground at a time when it has not reached the completion of its work, and all the more so watchmen of gardens and orchards, who do not perform any significant action.
מַתְנִי׳ אַרְבָּעָה שׁוֹמְרִים הֵן: שׁוֹמֵר חִנָּם וְהַשּׁוֹאֵל, נוֹשֵׂא שָׂכָר וְהַשּׂוֹכֵר. שׁוֹמֵר חִנָּם נִשְׁבָּע עַל הַכֹּל, וְהַשּׁוֹאֵל מְשַׁלֵּם אֶת הַכֹּל.
MISHNA: There are four types of bailees, to whom different halakhot apply. They are as follows: An unpaid bailee, who receives no compensation for safeguarding the item; and the borrower of an item for his own use; a paid bailee, who is provided with a salary for watching over an item; and a renter, i.e., a bailee who pays a fee for the use of a vessel or animal. If the item was stolen, lost, or broken, or if the animal died in any manner, their halakhot 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. The borrower does not take an oath, but pays for every outcome, even in a circumstance beyond his control.
וְנוֹשֵׂא שָׂכָר וְהַשּׂוֹכֵר נִשְׁבָּעִים עַל הַשְּׁבוּרָה וְעַל הַשְּׁבוּיָה וְעַל הַמֵּתָה, וּמְשַׁלְּמִין אֶת הָאֲבֵידָה וְאֶת הַגְּנֵיבָה.
And 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.
גְּמָ׳ מַאן תְּנָא אַרְבָּעָה שׁוֹמְרִים? אָמַר רַב נַחְמָן אָמַר רַבָּה בַּר אֲבוּהּ: רַבִּי מֵאִיר הִיא. אֲמַר לֵיהּ רָבָא לְרַב נַחְמָן: מִי אִיכָּא דְּלֵית לֵיהּ אַרְבָּעָה שׁוֹמְרִין? אֲמַר לֵיהּ: הָכִי קָאָמֵינָא לָךְ, מַאן תָּנָא שׂוֹכֵר כְּנוֹשֵׂא שָׂכָר – רַבִּי מֵאִיר הִיא.
GEMARA: The Gemara asks: Who is the tanna who taught this mishna about four types of bailees? Rav Naḥman said that Rabba bar Avuh said: It is Rabbi Meir. Rava said to Rav Naḥman: Is there any Sage who does not accept the halakha concerning four types of bailees? All of the Sages agree that the Torah spoke of these four types of bailees. Rav Naḥman said to him: This is what I am saying to you, i.e., I mean as follows: Who is the tanna who maintains that the halakha of a renter is like that of a paid bailee? It is Rabbi Meir.
וְהָא רַבִּי מֵאִיר אִיפְּכָא שָׁמְעִינַן לֵיהּ, דְּתַנְיָא: שׂוֹכֵר כֵּיצַד מְשַׁלֵּם? רַבִּי מֵאִיר אוֹמֵר: כְּשׁוֹמֵר חִנָּם, רַבִּי יְהוּדָה אוֹמֵר: כְּשׁוֹמֵר שָׂכָר! רַבָּה בַּר אֲבוּהּ אִיפְּכָא קָתָנֵי.
The Gemara raises a difficulty: But didn’t we hear that Rabbi Meir said the opposite, as it is taught in a baraita: With regard to a renter, whose halakha is not stated in the Torah, how does he pay, i.e., in which cases is he liable to pay? Rabbi Meir says: He pays in the same cases as an unpaid bailee; Rabbi Yehuda says he pays in the same cases as a paid bailee. The Gemara explains: Rabba bar Avuh teaches this baraita in the opposite manner to the version here.
אִי הָכִי, אַרְבָּעָה? שְׁלֹשָׁה נִינְהוּ! אָמַר רַב נַחְמָן בַּר יִצְחָק: אַרְבָּעָה שׁוֹמְרִין, וְדִינֵיהֶם שְׁלֹשָׁה.
The Gemara asks a question with regard to the accepted number of bailees: If so, that the same halakha applies to a renter and a paid bailee, why does the tanna say that there are four bailees? They are only three. Rav Naḥman bar Yitzḥak said that the mishna should be understood as follows: There are four types of bailees, whose halakhot are three.
הָהוּא רָעֲיָא דַּהֲוָה קָא רָעֵי חֵיוָתָא אַגּוּדָּא דִּנְהַר פָּפָּא. שְׂרִיג חֲדָא מִינַּיְיהוּ וּנְפַלַת לְמַיָּא. אֲתָא לְקַמֵּיהּ דְּרַבָּה וּפַטְרֵיהּ. אָמַר: מַאי הֲוָה לֵיהּ לְמֶעְבַּד?
§ The Gemara relates: There was a certain shepherd who was herding animals on the bank of the Pappa River, when one of them slipped and fell into the water and drowned. He came before Rabba, and Rabba exempted him from payment. Rabba stated the following reasoning in support of his ruling: What could he have done? A drowning of this kind is a circumstance beyond his control, and although a shepherd is a paid bailee he is exempt from liability in circumstances beyond his control.
הָא נְטַר כִּדְנָטְרִי אִינָשֵׁי. אֲמַר לֵיהּ אַבָּיֵי: אֶלָּא מֵעַתָּה, עָל לְמָתָא בְּעִידָּנָא דְּעָיְילִי אִינָשֵׁי – הָכִי נָמֵי דְּפָטוּר?! אֲמַר לֵיהּ: אִין. גְּנָא פּוּרְתָּא בְּעִידָּנָא דְּגָנוּ אִינָשֵׁי – הָכִי נָמֵי דְּפָטוּר?! אֲמַר לֵיהּ: אִין.
He safeguarded them in the manner that people safeguard, and he is not required to do anything more. Abaye said to him: If that is so, in a case where he entered the city at a time when other people enter, as shepherds normally do, when their animals are grazing in a quiet and safe place, and a theft occurred at that hour, so too will you say that he is exempt? Rabba said to him: Yes. Abaye raised a further difficulty: If he slept a little at a time when people generally sleep, so too is he exempt? Rabba said to him: Yes.
אֵיתִיבֵיהּ: אֵלּוּ הֵם אוֹנָסִין שֶׁשּׁוֹמֵר שָׂכָר פָּטוּר עֲלֵיהֶן – כְּגוֹן: ״וַתִּפֹּל שְׁבָא וַתִּקָּחֵם וְאֶת הַנְּעָרִים הִכּוּ לְפִי חָרֶב״. אֲמַר לֵיהּ: הָתָם בְּחַזָּנֵי מָתָא.
Abaye raised an objection to him from a baraita: These are the circumstances beyond one’s control for which a paid bailee is exempt: For example, as it is stated in the verse: “The oxen were plowing, and the donkeys feeding beside them. And the Sabeans made a raid and took them away, and they have slain the servants with the edge of the sword” (Job 1:15). This teaches that only a robbery by an army is considered a circumstance beyond his control, but nothing less. Rabba said to him: There it is referring to city watchmen, i.e., professionals hired to watch over city property, who are exempt due to an occurrence on that scale, i.e., a military incursion.
אֵיתִיבֵיהּ: עַד מָתַי שׁוֹמֵר שָׂכָר חַיָּיב לִשְׁמוֹר – עַד כְּדֵי ״הָיִיתִי בַיּוֹם אֲכָלַנִי חֹרֶב וְקֶרַח בַּלַּיְלָה״. אֲמַר לֵיהּ: הָתָם נָמֵי בְּחַזָּנֵי מָתָא. אֲמַר לֵיהּ: אַטּוּ יַעֲקֹב אָבִינוּ חַזַּן מָתָא הֲוָה! דַּאֲמַר לֵיהּ לְלָבָן: נְטַרִי לָךְ נְטִירוּתָא יַתִּירְתָּא כְּחַזָּנֵי מָתָא.
Abaye raised an objection to Rabba from another baraita: To what extent is a paid bailee obligated to safeguard? He is obligated to the extent that Jacob said to Laban: “Thus I was: In the day the drought consumed me, and the frost by night” (Genesis 31:40). Rava said to him: There too, the baraita is speaking of city watchmen, whose responsibility extends further. Abaye said to him: Is that to say that Jacob, our forefather, whose statement is the source of this halakha, was a city watchman? Rava replied: It means that Jacob said to Laban: I safeguarded for you an extra level of safeguarding, like that of city watchmen.
אֵיתִיבֵיהּ: רוֹעֶה שֶׁהָיָה רוֹעֶה וְהִנִּיחַ עֶדְרוֹ וּבָא לָעִיר, בָּא זְאֵב וְטָרַף, וּבָא אֲרִי וְדָרַס – אֵין אוֹמְרִים: אִילּוּ הָיָה שָׁם הָיָה מַצִּיל. אֶלָּא אוֹמְדִין אוֹתוֹ: אִם יָכוֹל לְהַצִּיל – חַיָּיב, אִם לָאו – פָּטוּר.
Abaye raised an objection to Rabba from another baraita: With regard to a shepherd who was herding the animals of others, and he left his flock and came to the town, if in the meantime a wolf came and tore an animal to pieces, or a lion came and trampled one of his flock, we do not say definitively that had he been there he would have rescued them and therefore he is liable due to his absence. Rather, the court estimates with regard to him: If he could have rescued his animal by chasing a beast of this kind away, he is liable, as his departure from the scene was certainly a contributing factor to the damage. If not, he is exempt from liability.
מַאי לָאו דְּעָל בְּעִידָּנָא דְּעָיְילִי אִינָשֵׁי? לָא, דְּעָל בְּעִידָּנָא דְּלָא עָיְילִי אִינָשֵׁי. אִי הָכִי, אַמַּאי פָּטוּר? תְּחִילָּתוֹ בִּפְשִׁיעָה וְסוֹפוֹ בְּאוֹנֶס, חַיָּיב!
Abaye continues: What, is this baraita not referring to a case when the shepherd enters the town at a time when other people usually enter? If so, it presents a difficulty to the opinion of Rabba. Rabba responds: No, it is speaking of one who enters at a time when other people do not usually enter. Abaye retorts: If so, why is he exempt even if he could not have rescued the animal? This is a mishap that came about initially through negligence and ultimately by accident, and in a case of this kind he is liable due to his negligence.
דִּשְׁמַע קָל אַרְיָה וְעָל. אִי הָכִי, אוֹמְדִין אוֹתוֹ? מַאי הֲוָה לֵיהּ לְמֶעְבַּד?! הָיָה לוֹ לְקַדֵּם בְּרוֹעִים וּבְמַקְלוֹת.
Rabba explains: It is referring to one who heard the sound of a lion roaring and entered the city to save himself. In such a case, his actions were not initially negligent, but rather, it was a circumstance beyond his control. Abaye questions this response: If so, what is the relevance of the statement: The court estimates with regard to him? What could he have done to prevent an attack by a lion? Rabba replies: He should have faced the lion with other shepherds and with sticks to chase it away.
אִי הָכִי, מַאי אִירְיָא שׁוֹמֵר שָׂכָר? אֲפִילּוּ שׁוֹמֵר חִנָּם נָמֵי, דְּהָא מָר הוּא דְּאָמַר: שׁוֹמֵר חִנָּם שֶׁהָיָה לוֹ לְקַדֵּם בְּרוֹעִים וּבְמַקְלוֹת וְלֹא קִידֵּם – חַיָּיב. שׁוֹמֵר חִנָּם בְּחִנָּם, שׁוֹמֵר שָׂכָר בְּשָׂכָר.
Abaye asks: If so, why specifically state this halakha with regard to a paid bailee? The same would hold true even for an unpaid bailee, as wasn’t it you, Master, who said that an unpaid bailee who had the option of facing an animal with other shepherds and with sticks and did not face it in this manner is liable, as he is considered negligent in his duty? Rabba answers: An unpaid bailee is liable only if he could have gathered together other shepherds to help him defend his animals free of charge, whereas a paid bailee is obligated to do so even for payment.
וְעַד כַּמָּה? עַד כְּדֵי דְמֵיהֶן. וְהֵיכָן מָצִינוּ בְּשׁוֹמֵר שָׂכָר שֶׁחַיָּיב בָּאוֹנָסִין? דַּהֲדַר שָׁקֵיל דְּמֵיהֶן מִבַּעַל הַבַּיִת.
The Gemara asks: And up to how much must a paid bailee pay for this extra protection? The Gemara answers: Up to the sum of the value of the animals he is responsible to safeguard. The Gemara further asks: But in that case, it seems that a paid bailee must pay from his own pocket to protect the animals from marauding beasts; where have we found with regard to a paid bailee that he is liable for circumstances beyond his control? Everyone agrees that this loss was caused by circumstances beyond the bailee’s control, and yet he must bear the expenses indirectly. The Gemara responds: The halakha is that he may return and take the money that he paid for these additional guards from the owner.
אֲמַר לֵיהּ רַב פָּפָּא לְאַבָּיֵי: אִי הָכִי, מַאי אַהֲנִי לֵיהּ מִינַּהּ? נָפְקָא מִינַּהּ לְכוּשְׁרָא דְחֵיוָתָא. אִי נָמֵי לְטִרְחָא יַתִּירְתָּא.
Rav Pappa said to Abaye: If so, what benefit does the owner of the animals receive from this? Any potential loss he avoided from the lion must be paid to the extra guards. Abaye replied: The practical difference concerns the fitness of and his familiarity with the animals. Although it makes no difference to him financially, if he had to purchase other animals he would lose those animals that he knows, and he would rather keep his own livestock. Alternatively, it matters with respect to the additional effort involved in the acquisition of new animals.
רַב חִסְדָּא וְרַבָּה בַּר רַב הוּנָא לָא סְבִירָא לְהוּ הָא דְּרַבָּה, דְּאָמְרִי: לְהָכִי יְהַבִי לָךְ אַגְרָא, לְנַטּוֹרֵי לִי נְטִירוּתָא יַתִּירְתָּא.
As demonstrated in the above discussion, Rabba maintains that even a paid bailee is required to safeguard and take care of the animals only in the normal fashion. By contrast, Rav Ḥisda and Rabba bar Rav Huna do not hold in accordance with this opinion of Rabba, as they say that the owner can tell the bailee: It was for this reason that I gave you a wage, so that you should safeguard for me with an additional level of safeguarding, not for you to go and eat and sleep like other people.
בַּר אַדָּא סָבוֹלָאָה (הָוֵי) [הֲוָה] קָא מְעַבַּר חֵיוָתָא אַגַּמְלָא דְנַרֶשׁ. דְּחַפָה חֲדָא לַחֲבֶרְתַּהּ וּשְׁדָיתַהּ בְּמַיָּא. אֲתָא לְקַמֵּיהּ דְּרַב פָּפָּא, חַיְּיבֵיהּ. אֲמַר לֵיהּ: מַאי הֲוָה לִי לְמֶעְבַּד? אֲמַר לֵיהּ: אִבְּעִי לָךְ לְעַבּוֹרֵי חֲדָא חֲדָא. אֲמַר לֵיהּ: יָדְעַתְּ בֵּיהּ בְּבַר אֲחָתָיךְ דְּמָצֵי (ל)מְעַבַּר חֲדָא חֲדָא? אֲמַר לֵיהּ: כְּבָר צְוַוחוּ קַמָּאֵי דְקַמָּךְ וְלָא אִיכָּא דְּאַשְׁגַּח בְּהוּ.
The Gemara relates: Bar Adda the porter was transporting animals across the narrow bridge of Neresh when one animal pushed another and cast it into the water, and it drowned. The case came before Rav Pappa, who deemed him liable. Bar Adda said to him: What should I have done? Rav Pappa said to him: You should have transported them one by one. The porter said to him: Do you know of the son of your sister who can transport them one by one? In other words, are you aware of anyone who can do such a thing? It is virtually impossible. Rav Pappa said to him: The very earliest scholars before you already shouted and complained about this, but none paid attention to them. Since you are an expert and were hired for this purpose, the responsibility is yours.
אַיְבוּ אַפְקֵיד כִּיתָּנָא בֵּי רוּנְיָא. אֲזַל שַׁבּוּ שַׁמְטֵיהּ מִינֵּיהּ. לְסוֹף הוּכַּר הַגַּנָּב. אֲתָא לְקַמֵּיהּ דְּרַב נַחְמָן, חַיְּיבֵיהּ. לֵימָא פְּלִיגָא דְּרַב הוּנָא בַּר אָבִין?
The Gemara relates another incident: Aivu deposited flax with a bailee in the house of Ronya. A robber called Shabbu went and forcibly snatched the flax from him. Eventually the thief was identified and caught. The matter came before Rav Naḥman, who rendered the bailee liable. The Gemara asks: Shall we say that Rav Naḥman disagrees with the opinion of Rav Huna bar Avin?
דִּשְׁלַח רַב הוּנָא בַּר אָבִין: נִגְנְבָה בְּאוֹנֶס וְאַחַר כָּךְ הוּכַּר הַגַּנָּב, אִם שׁוֹמֵר חִנָּם הוּא – רָצָה נִשְׁבָּע, רָצָה עוֹשֶׂה עִמּוֹ דִּין. אִם שׁוֹמֵר שָׂכָר הוּא – עוֹשֶׂה עִמּוֹ דִּין וְאֵינוֹ נִשְׁבָּע.
The Gemara explains: As Rav Huna bar Avin sent this ruling: In a case where an animal was stolen in a circumstance beyond his control, and the thief was subsequently identified and captured, if the bailee is an unpaid bailee, the following distinction applies: If he wishes, he takes an oath that he did not misappropriate the animal before it was stolen, and the owners must claim its value from the thief; if he wishes, he enters into judgment with the thief, by claiming the money directly from him. If he is a paid bailee, he enters into judgment with the thief and does not take an oath. Since the ruling of Rav Naḥman was in the case of an unpaid bailee, why did he have to deal with the thief?
אָמַר רָבָא: הָתָם גַּבְרֵי דְּפַרְמוּסְקָא הֲווֹ קָיְימִי, דְּאִי רְמָא קָלָא הֲווֹ אָתוּ וּמַצְּלִין לֵיהּ.
Rava said: The cases are not the same, as there, in the ruling of Rav Naḥman, men from the government were standing there, which means that if he had raised his voice they would have come and rescued him. Since it was his own negligence that caused the robbery, he must find a way to collect the money from the robber.
מַתְנִי׳ זְאֵב אֶחָד – אֵינוֹ אוֹנֶס. שְׁנֵי זְאֵבִים – אוֹנֶס. רַבִּי יְהוּדָה אוֹמֵר: בִּשְׁעַת מִשְׁלַחַת זְאֵבִים, אַף זְאֵב אֶחָד אוֹנֶס.
MISHNA: One wolf that approaches a flock and attacks is not considered a circumstance beyond one’s control, as the shepherd can drive it away, but an attack by two wolves is considered a circumstance beyond one’s control. Rabbi Yehuda says: At a time of wolf attacks, when many wolves come out of hiding and pounce on animals at every corner, even an attack by one wolf is considered a circumstance beyond one’s control.
שְׁנֵי כְלָבִים – אֵינוֹ אוֹנֶס. יָדוּעַ הַבַּבְלִי אוֹמֵר מִשּׁוּם רַבִּי מֵאִיר: מֵרוּחַ אַחַת – אֵינוֹ אוֹנֶס, מִשְׁתֵּי רוּחוֹת – אוֹנֶס. הַלִּסְטִים – הֲרֵי זֶה אוֹנֶס. הָאֲרִי הַדּוֹב וְהַנָּמֵר וְהַבַּרְדְּלָס וְהַנָּחָשׁ – הֲרֵי אֵלּוּ אוֹנֶס.
An attack by two dogs is not considered a circumstance beyond one’s control. Yadua the Babylonian says in the name of Rabbi Meir: If the two dogs came and attacked from one direction it is not considered a circumstance beyond one’s control, but if they attacked from two directions, this is considered a circumstance beyond one’s control, as the shepherd cannot protect his flock from both of them at once. If bandits came, this is considered a circumstance beyond one’s control. Likewise, with regard to an attack by a lion, a bear, a leopard, a cheetah, and a snake, these are each considered a circumstance beyond one’s control.
אֵימָתַי – בִּזְמַן שֶׁבָּאוּ מֵאֲלֵיהֶן. אֲבָל הוֹלִיכָן לִמְקוֹם גְּדוּדֵי חַיָּה וְלִסְטִים – אֵינוֹ אוֹנֶס.
When is an attack by one of the above considered beyond his control, which means that a paid bailee is exempt? It is when the dangerous beasts or bandits came of their own accord to the usual grazing spot. But if the shepherd led his flock to a place of groups of beasts or bandits, this is not considered a circumstance beyond one’s control, as he is at fault.
מֵתָה כְּדַרְכָּהּ – הֲרֵי זֶה אוֹנֶס. סִגְּפָהּ וָמֵתָה – אֵינוֹ אוֹנֶס. עָלְתָה לְרָאשֵׁי צוּקִין וְנָפְלָה – הֲרֵי זֶה אוֹנֶס. הֶעֱלָהּ לְרָאשֵׁי צוּקִין וְנָפְלָה וָמֵתָה – אֵינוֹ אוֹנֶס.
If the animal died in its normal manner, this is considered a circumstance beyond one’s control; if he afflicted it by overworking it or by negligent treatment and it died, this is not considered a circumstance beyond one’s control. If the animal ascended to the top of a cliff and fell down and died, this is considered a circumstance beyond one’s control. If the shepherd himself brought it up to the top of a cliff and it fell down and died, this is not considered a circumstance beyond one’s control.
גְּמָ׳ וְהָתַנְיָא: זְאֵב אֶחָד – אוֹנֶס! אָמַר רַב נַחְמָן בַּר יִצְחָק: הָהִיא בִּשְׁעַת מִשְׁלַחַת זְאֵבִים, וְרַבִּי יְהוּדָה הִיא.
GEMARA: The Gemara asks: But isn’t it taught in a baraita that an attack by one wolf is considered a circumstance beyond one’s control? Rav Naḥman bar Yitzḥak said: That baraita is speaking of a time of wolf attacks, and it is the opinion of Rabbi Yehuda in the mishna.
הַלִּסְטִים – הֲרֵי זֶה אוֹנֶס. אַמַּאי? לוֹקֵי גַּבְרָא לַהֲדֵי גַּבְרָא! אָמַר רַב: בְּלִסְטִים מְזוּיָּין.
The mishna teaches that if bandits came, this is considered a circumstance beyond one’s control. The Gemara asks: Why? Let one man stand against another man. The shepherd should defend his flock and fight the bandit, as that is what he was hired to do. Rav said: The mishna is referring to armed bandits, against whom the shepherd cannot reasonably defend the flock.
אִיבַּעְיָא לְהוּ: לִסְטִים מְזוּיָּין וְרוֹעֶה מְזוּיָּין, מַהוּ? מִי אָמְרִינַן אוֹקֵי גַּבְרָא לַהֲדֵי גַּבְרָא, אוֹ דִלְמָא: הַאי מָסַר נַפְשֵׁיהּ, וְהַאי לָא מָסַר נַפְשֵׁיהּ? מִסְתַּבְּרָא דְּהַאי מָסַר נַפְשֵׁיהּ, וְהַאי לָא מָסַר נַפְשֵׁיהּ. אֲמַר לֵיהּ אַבָּיֵי לְרָבָא: אַשְׁכְּחֵיהּ רוֹעֶה, וַאֲמַר לֵיהּ: גַּנָּבָא סַרְיָא! בְּדוּכְתָּא פְּלָנְיָא יְתִיבִינַן,
A dilemma was raised before the Sages: If the case involved an armed bandit and an armed shepherd, what is the halakha? Do we say, let one man stand and fight against another man, or perhaps this bandit is willing to risk his life and that shepherd is not prepared to risk his life? The Gemara answers: It stands to reason that this one will risk his life and that one would not risk his life. Consequently, the shepherd is not held responsible if he refuses to fight the bandit. Abaye said to Rava: What is the halakha if the shepherd found a known thief and said to him: You dirty thief! In such and such a place we shepherds sit;
