בבא מציעא צח

בבא מציעא צח

דְּאָמַר רָבָא: ״מָנֶה לִי בְּיָדְךָ״, וְהַלָּה אוֹמֵר: אֵין לְךָ בְּיָדִי אֶלָּא חֲמִשִּׁים, וְהַשְּׁאָר אֵינִי יוֹדֵעַ. מִתּוֹךְ שֶׁאֵינוֹ יָכוֹל לִישָּׁבַע – מְשַׁלֵּם.

as Rava says: One who approaches another and says: I have one hundred dinars in your possession, and the other says: You have in my possession only fifty dinars that I am sure about, and as for the rest, I do not know. As one who admitted to part of a claim, he is liable, by Torah law, to take an oath that he does not owe the other fifty dinars. Since he cannot take an oath to that effect, as he is unsure if he owes it, he must pay.

מַשְׁכַּחַתְּ לַהּ רֵישָׁא בִּשְׁתַּיִם וְסֵיפָא בְּשָׁלֹשׁ.

The Gemara explains how the mishna can be interpreted as referring to a case in which the defendant makes a partial admission, thereby requiring him to take an oath: You find it in the first clause, i.e., in the first two cases of the mishna, in a situation where he took hold of two cows, and in the latter clause, i.e., in the third case, in a situation where he took hold of three cows.

רֵישָׁא בִּשְׁתַּיִם – דַּאֲמַר לֵיהּ: שְׁתֵּי פָרוֹת מָסַרְתִּי לָךְ, פַּלְגֵיהּ דְּיוֹמָא בִּשְׁאֵילָה, וּפַלְגֵיהּ דְּיוֹמָא בִּשְׂכִירוּת. אִי נָמֵי: חַד יוֹמָא בִּשְׁאֵילָה, וְחַד יוֹמָא בִּשְׂכִירוּת, וּמֵתוּ תַּרְוַיְיהוּ בְּעִידָּן שְׁאֵילָה.

The Gemara explains: One can interpret the first clause to be referring to a case where one took hold of two cows, as follows: The case is that the owner said to the bailee: I delivered two cows to you under the agreement that one half of the day you would have them through borrowing and the other half of the day through renting, or, alternatively, one day through borrowing and one day through renting. And I claim that both died during a period of borrowing, so you are liable to pay for both of them.

וַאֲמַר לֵיהּ שׁוֹאֵל: חֲדָא – אִין, בְּעִידָּן שְׁאֵילָה מֵתָה, וְאִידַּךְ – לָא יָדַעְנָא אִי בְּעִידָּן שְׁאֵילָה מֵתָה וְאִי בְּעִידָּן שְׂכִירוּת מֵתָה, דְּמִתּוֹךְ שֶׁאֵינוֹ יָכוֹל לִישָּׁבַע – מְשַׁלֵּם.

And the borrower said to him: With regard to one of them, yes, I admit that it died during a period of borrowing. But with regard to the other one, I do not know whether it died during a period of borrowing or if it died during a period of renting. Because he admits to part of the claim, he is required to take an oath in order to be exempt from the rest of the claim. As he concedes that he does not know what happened, he is unable to take such an oath. The halakha is that since he is unable to take an oath, he must pay for both cows.

וְסֵיפָא בְּשָׁלֹשׁ – דַּאֲמַר לֵיהּ: שָׁלֹשׁ פָּרוֹת נָתַתִּי לָךְ, שְׁתַּיִם בִּשְׁאֵילָה וְאַחַת בִּשְׂכִירוּת, וָמֵתוּ הָנֵי תַּרְתֵּי דִּשְׁאֵילָה, וַאֲמַר לֵיהּ שׁוֹאֵל: אִין, חֲדָא דִּשְׁאֵילָה מֵתָה, אִידַּךְ – לָא יָדַעְנָא אִי דִּשְׁאֵילָה מֵתָה וּדְקָיְימָא דִּשְׂכִירוּת הִיא, אִי דִּשְׂכִירוּת מֵתָה וְהָא דְּקָיְימָא דִּשְׁאֵילָה הִיא, וּמִתּוֹךְ שֶׁאֵינוֹ יָכוֹל לִישָּׁבַע – מְשַׁלֵּם.

And one can interpret the latter clause to be referring to a case where he took hold of three cows, as follows: The case is that the owner said to the bailee: I gave three cows to you; two through borrowing and one through renting. And I claim that those two that were being borrowed were the ones that died. And the borrower said to him: Yes, I admit that one of the cows that was borrowed died. But with regard to the other one that died, I do not know if it was the other cow that was being borrowed that died, and so the cow that is still alive is the one that was being rented, or if the one that was being rented died, and this one that is still alive is the one that was being borrowed. Because he admits to part of the claim, in order to be exempt from the rest of the claim he is required to take an oath. As he concedes that he does not know what happened, he is unable to take such an oath. And the halakha is that since he is unable to take an oath, he must pay for both cows.

וּלְרָמֵי בַּר חָמָא, דְּאָמַר: אַרְבָּעָה שׁוֹמְרִים צְרִיכִין כְּפִירָה בְּמִקְצָת וְהוֹדָאָה בְּמִקְצָת, מַשְׁכַּחַתְּ לַהּ רֵישָׁא בְּשָׁלֹשׁ וְסֵיפָא בְּאַרְבַּע.

The Gemara explains how the mishna can be interpreted even according to the unique opinion of Rami bar Ḥama: And the mishna can be interpreted in accordance with the opinion of Rami bar Ḥama, who says: In order for any of the four types of bailees to be required to take an oath, they need to make both a denial of part of the owner’s claim and an admission of another part of his claim. According to his opinion, you find the bailee is liable to take an oath in the first clause, i.e., in the first two cases of the mishna, in a situation where he took hold of three cows, and in the latter clause, i.e., in the third case, in a situation where he took hold of four cows.

רֵישָׁא בְּשָׁלֹשׁ – דַּאֲמַר לֵיהּ: שָׁלֹשׁ פָּרוֹת נָתַתִּי לְךָ, פַּלְגֵיהּ דְּיוֹמָא בִּשְׁאֵלָה וּפַלְגֵיהּ דְּיוֹמָא בִּשְׂכִירוּת, אִי נָמֵי חַד יוֹמָא בִּשְׁאֵלָה וְחַד יוֹמָא בִּשְׂכִירוּת, וּמֵתוּ תְּלָת כּוּלְּהוּ בְּעִידָּן שְׁאֵילָה,

The Gemara elaborates: One can interpret the first clause to be referring to a case where he took hold of three cows, as follows: The case is that the owner said to the bailee: I gave three cows to you under the agreement that one half of the day you would have them through borrowing and the other half of the day through renting, or, alternatively, one day through borrowing and one day through renting. And I claim that all three of them died during a period of borrowing, and so you are liable to pay for all of them.

וַאֲמַר לֵיהּ שׁוֹאֵל: חֲדָא – לֹא הָיוּ דְבָרִים מֵעוֹלָם. וַחֲדָא – אִין, בְּעִידָּן שְׁאֵילָה מֵתָה, וְאִידַּךְ – לָא יָדַעְנָא אִי בְּעִידָּן שְׁאֵילָה מֵתָה וְאִי בְּעִידָּן שְׂכִירוּת מֵתָה, דְּמִתּוֹךְ שֶׁאֵינוֹ יָכוֹל לִישָּׁבַע – מְשַׁלֵּם.

And the borrower said to him: With regard to one of them, this matter never occurred, as I took only two cows from you. And, as for the two cows I did take, with regard to one of them, yes, I admit that it died during a period of borrowing. But with regard to the other one, I do not know whether it died during a period of borrowing or if it died during a period of renting. Because the bailee admits to part of the claim and denies another part of the claim, he is required to take an oath in order to be exempt from the rest of the claim. As he concedes that he does not know what happened, he is unable to take such an oath. The halakha is that since he is unable to take an oath, he must pay for all three cows.

סֵיפָא בְּאַרְבַּע – דַּאֲמַר לֵיהּ: אַרְבַּע פָּרוֹת נָתַתִּי לְךָ, שָׁלֹשׁ בִּשְׁאֵלָה, חֲדָא בִּשְׂכִירוּת, וּמֵתוּ הָנָךְ שָׁלֹשׁ דִּשְׁאֵלָה. וַאֲמַר לֵיהּ

One can interpret the latter clause to be referring to a case where he took hold of four cows, as follows: The case is that the owner said to the bailee: I gave four cows to you, three through borrowing and one through renting. And I claim that those three that were being borrowed were the ones that died. And he said to him,

שׁוֹאֵל: חֲדָא – לֹא הָיוּ דְבָרִים מֵעוֹלָם. וַחֲדָא – אִין, דִּשְׁאֵלָה מֵתָה, וְאִידַּךְ – לָא יָדַעְנָא אִי דִּשְׂכִירוּת מֵתָה וּדְקָיְימָא דִּשְׁאֵלָה, אוֹ דִּשְׁאֵלָה מֵתָה וּדְקָיְימָא דִּשְׂכִירוּת, דְּמִתּוֹךְ שֶׁאֵינוֹ יָכוֹל לִישָּׁבַע – מְשַׁלֵּם.

i.e., the borrower said to the owner: With regard to one of the cows that you claim, this matter never occurred, as I never took that cow from you. And as for the cows that I did take that died, with regard to one of them, yes, I admit that it was a cow that was being borrowed that died; but the other cow that died, I do not know whether it was the cow that was being rented that died, and so the cow that is still alive is the one that was being borrowed, or whether the cow that was being borrowed died, and so the cow that is still alive is the one that was being rented. Because the bailee admits to part of the claim and denies another part of the claim, he is required to take an oath in order to be exempt from the rest of the claim. As he concedes that he does not know what happened, he is unable to take such an oath. The halakha is that since he is unable to take an oath, he must pay for all three cows.

זֶה אוֹמֵר שְׁאוּלָה, וְזֶה אוֹמֵר שְׂכוּרָה – יִשָּׁבַע הַשּׂוֹכֵר שֶׁשְּׂכוּרָה מֵתָה.

§ The mishna teaches: The bailee rented one cow and borrowed another one. This owner says with certitude: The borrowed cow is the one that died. And that renter says with certitude: The rented cow is the one that died. In this case, the renter takes an oath that the rented cow is the one that died and then he is exempt.

וְאַמַּאי? מַה שֶּׁטְּעָנוֹ – לֹא הוֹדָה לוֹ, וּמַה שֶּׁהוֹדָה לוֹ – לֹא טְעָנוֹ! אָמַר עוּלָּא: עַל יְדֵי גִּלְגּוּל.

The Gemara asks: But why should he take an oath? That which the owner claimed from him, he did not admit to at all, and that which the bailee admitted to, the owner had not claimed from him. In order to be required to take an oath, the bailee must admit to part of the owner’s actual claim. Ulla said: The mishna is referring to a case where the owner required the bailee to take another oath by extending the oath that he had already required him to take.

דַּאֲמַר לֵיהּ: אִישְׁתְּבַע לִי אֵיזוֹ מִיהַת דִּכְדַרְכָּהּ מֵתָה, וּמִיגּוֹ דְּמִישְׁתְּבַע דִּכְדַרְכָּהּ מֵתָה, מִישְׁתְּבַע נָמֵי דִּשְׂכוּרָה מֵתָה.

The Gemara elaborates: For example, this is a case where the owner said to him: Take an oath to me, in any event, that the cow died naturally, and not as a result of your negligence. The owner has a right to demand such an oath. And since the bailee is made to take an oath that the cow died naturally, that oath can be extended such that he can also be made to take an oath that it was the cow that was rented that died.

זֶה אוֹמֵר אֵינִי יוֹדֵעַ וְזֶה אוֹמֵר כּוּ׳. הָא מַנִּי – סוֹמְכוֹס הִיא, דְּאָמַר: מָמוֹן הַמּוּטָּל בְּסָפֵק – חוֹלְקִין.

The mishna concludes: If this one says: I do not know what happened, and that one says: I do not know what happened, then they divide the disputed amount. The bailee is liable to pay for only half the value of the cow. The Gemara asks: In accordance with whose opinion is this? It is in accordance with the opinion of Sumakhos, who says: When there is property of uncertain ownership, the parties divide it equally between them.

בָּעֵי רַבִּי אַבָּא בַּר מֶמֶל: שְׁאָלָהּ בִּבְעָלִים, שְׂכָרָהּ שֶׁלֹּא בִּבְעָלִים, מַהוּ?

§ Rabbi Abba bar Memel raises a dilemma: If one borrowed a cow together with borrowing the services of its owner, and then, before returning the cow, he rented the cow from the owner without borrowing the services of its owner, what is the halakha?

מִי אָמְרִינַן שְׁאֵילָה לְחוֹדַהּ קָיְימָא וּשְׂכִירוּת לְחוֹדַהּ קָיְימָא, אוֹ דִלְמָא שְׂכִירוּת בִּשְׁאֵלָה מֵישָׁךְ שָׁיְיכִי, דְּהָא מִיחַיַּיב בִּגְנֵיבָה וַאֲבֵידָה?

Do we say: The borrowing stands by itself and the renting stands by itself, i.e., they are two independent transactions, and so the bailee is liable for any mishap that occurs during the renting period, as the owner’s services were not borrowed by him during that time? Or, perhaps the subsequent renting is related to the prior borrowing and is an extension of it. It could be said that the renting is related to the borrowing because a renter is liable for theft and loss, as is a borrower. Perhaps the liability resulting from renting that immediately follows a period of borrowing is a downgraded form of the liability undertaken at the start of the period of borrowing. If so, then in this case, since the bailee bore no liability during the borrowing period, as the cow was borrowed while the owner was providing his services to the borrower, the bailee will not bear liability during the rental period.

אִם תִּמְצָא לוֹמַר שְׂכִירָה בִּשְׁאֵלָה מֵישָׁךְ שָׁיְיכִי, שְׂכָרָהּ בִּבְעָלִים שְׁאָלָהּ שֶׁלֹּא בִּבְעָלִים, מַהוּ?

If you say that in such a case, the subsequent renting is related to the prior borrowing and is an extension of it, then in the reverse case, where one rented a cow together with borrowing the services of its owner, and then, before returning the cow, he borrowed it from the owner without borrowing the services of its owner, what is the halakha?

שְׁאֵלָה בִּשְׂכִירוּת וַדַּאי לָא שָׁיְיכָא, אוֹ דִלְמָא כֵּיוָן דְּשָׁיְיכָא בְּמִקְצָת, כְּמַאן דְּשָׁיְיכָא בְּכוּלַּהּ דָּמֵי?

Do we say that the subsequent borrowing is certainly not related to or an extension of the prior renting, as a borrower undertakes a higher level of liability than a renter? Or perhaps, since the subsequent borrowing is partially related to the prior renting, as the borrower is liable for theft and loss just as a renter is, it is considered as though it were related entirely to it and is an extension of it. Consequently, the exemption of using an item together with its owner’s services also applies to the subsequent borrowing.

אִם תִּמְצָא לוֹמַר לָא אָמְרִינַן כֵּיוָן דְּשָׁיְיכָא בְּמִקְצָת כְּמַאן דְּשָׁיְיכָא בְּכוּלַּהּ דָּמֵי: שְׁאָלָהּ בִּבְעָלִים וּשְׂכָרָהּ שֶׁלֹּא בִּבְעָלִים, וְחָזַר וּשְׁאָלָהּ, מַהוּ?

If you say: In such a case, we do not say that since the subsequent borrowing is partially related to the prior renting, it is considered as though it were entirely related to it and is an extension of it, then in a case where one borrowed a cow together with borrowing the services of its owner, and then, before returning the cow, he rented it from the owner without borrowing the services of its owner, and then at the end of the renting period, he again borrowed it without the owner’s services, what is the halakha?

הֲדַר אָתְיָא לַהּ שְׁאֵלָה לְדוּכְתַּהּ, אוֹ דִלְמָא אִפְּסִיקָא לַהּ שְׂכִירוּת בֵּינֵי וּבֵינֵי?

Do we say that the second period of borrowing returns to its original place, i.e., is the third period, in which one borrowed the cow, essentially a continuation of the first period? Or, perhaps, the period of renting serves as an interruption in the middle of the two periods of borrowing, such that the third period cannot be seen as a continuation of the first period?

שְׂכָרָהּ בִּבְעָלִים וּשְׁאָלָהּ וְחָזַר וּשְׂכָרָהּ, מַהוּ? מִי אָמְרִינַן אָתְיָא לַהּ שְׂכִירוּת לְדוּכְתַּהּ, אוֹ דִלְמָא אִפְּסִיקָא לַהּ שְׁאֵלָה בֵּינֵי וּבֵינֵי?

Similarly, in another case, one rented a cow together with borrowing the services of its owner. And then, before returning the cow, he borrowed it from the owner without borrowing the services of its owner. And then, at the end of the borrowing period, he again rented it, without borrowing the services of the owner. What is the halakha? Do we say that the second period of renting returns it to its original place, i.e., is the second period essentially a continuation of the first period? Or, perhaps the period of borrowing serves as an interruption in the middle of the two periods of renting, such that the third period cannot be seen as a continuation of the first period.

תֵּיקוּ.

The Gemara concludes: These dilemmas shall stand unresolved.

מַתְנִי׳ הַשּׁוֹאֵל אֶת הַפָּרָה וְשִׁלְּחָהּ לוֹ בְּיַד בְּנוֹ בְּיַד עַבְדּוֹ בְּיַד שְׁלוּחוֹ, אוֹ בְּיַד בְּנוֹ בְּיַד עַבְדּוֹ בְּיַד שְׁלוּחוֹ שֶׁל שׁוֹאֵל וּמֵתָה – פָּטוּר.

MISHNA: In the case of one who borrowed a cow, and the lender sent it to the borrower by the hand of his son, or by the hand of his slave, or by the hand of his agent, or by the hand of the borrower’s son, or by the hand of his slave, or by the hand of the agent of the borrower; and it died on the way, the borrower is exempt, because the period of borrowing begins only once the cow reaches his domain.

אָמַר לוֹ הַשּׁוֹאֵל: שַׁלְּחָהּ לִי בְּיַד בְּנִי, בְּיַד עַבְדִּי, בְּיַד שְׁלוּחִי, אוֹ בְּיַד בִּנְךָ, בְּיַד עַבְדְּךָ, בְּיַד שְׁלוּחֶךָ, אוֹ שֶׁאָמַר לוֹ הַמַּשְׁאִיל: הֲרֵינִי מְשַׁלְּחָהּ לְךָ בְּיַד בְּנִי, בְּיַד עַבְדִּי, בְּיַד שְׁלוּחִי, אוֹ בְּיַד בִּנְךָ, בְּיַד עַבְדְּךָ, בְּיַד שְׁלוּחֶךָ, וְאָמַר לוֹ הַשּׁוֹאֵל: שַׁלַּח, וְשִׁלְּחָהּ וּמֵתָה – חַיָּיב.

The borrower said to the lender: Send it to me by the hand of my son, or by the hand of my slave, or by the hand of my agent, or by the hand of your son, or by the hand of your slave, or by the hand of your agent. Or, in a case where the lender said explicitly to the borrower: I am sending it to you by the hand of my son, or by the hand of my slave, or by the hand of my agent, or by the hand of your son, or by the hand of your slave, or by the hand of your agent; and the borrower said to him: Send it as you have said, and he then sent it, and it died on the way, then the borrower is liable to pay the lender the value of his cow. Since the borrower agreed to the cow’s being brought to him by the hand of another, he bears liability from the moment the cow was transferred into that person’s possession.

וְכֵן בְּשָׁעָה שֶׁמַּחְזִירָהּ.

And, so too, this is the halakha at the time when the borrower returns it to the lender. The borrower is absolved of liability only once the cow is transferred to the lender himself or to someone who the lender agreed will bring it to him.