Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 96a

'Raba, agreeing with R. Jonathan, interprets them on the basis of his views': 'The owner thereof being not with it, he shall surely make it good': this may imply that he is in his service either on both occasions or on one; in both cases he is free from responsibility. On the other hand, it is also written, 'But if the owner thereof be with it, he shall not make it good'; this too implies whether he is not with him on both occasions or only on one, he is liable. [Hence this contradiction is] to teach you: If he was with him at the time of the loan, he need not have been with him at the time of the injury or death; but though he were with him at the time of the injury or death he must also have been with him when the loan was made.

But may I not reverse it? — It is logical that the time of the loan is stronger [in remitting liability], in that it brings it [the animal] into his possession. On the contrary, are not injury and death more likely [to cancel responsibility], since he then becomes [actually] liable for accidents? — Were there no loan, what would injury and death effect?¹  But if not for injury and death, what liability is imposed by borrowing?²  — Even so, [the responsibility imposed by] borrowing is greater, since he thereby becomes responsible for his food.³

R. Ashi said: Scripture saith, 'And if a man borrow aught of his neighbour,' [implying, aught of his neighbour,] but not his neighbour with it [sc. the animal], then, 'he shall surely make it good:' hence, if his neighbour is with him [when he borrows], he is free from liability.⁴  If so, what is the need of, 'the owner thereof being not with … But if the owner thereof be with it'?⁵  — But for these, I should have thought that this [sc. aught of his neighbour] is the ordinary Scriptural idiom.⁶

Rami b. Hama propounded: What [is the law] if he borrows it in order to commit bestiality therewith? Must the loan be as people generally borrow, whereas people do not borrow for such a purpose?⁷  Or perhaps the reason is because of the pleasure [he derives from the loan]: in which case here too he has pleasure?⁸  What [again, is the law] if he borrows it for appearance's sake?⁹  Is it necessary that something of monetary value shall be lent,¹⁰  which [condition is fulfilled] here? Or perhaps, something of monetary value, by which he [the borrower] directly benefits, is required — which is not [the case here]? What if he borrows it for work worth less than a perutah: must there be monetary value, and there is some? Or perhaps less than a perutah is of no account? What if he borrows two cows for a perutah's value of work? Do we say, consider¹¹  the borrower and lender, and there is [monetary value]? Or perhaps, the criterion is [the work of] the cows, and in [that of] each there is none?¹²  What if he borrows from partners, one of whom lends himself to him? Must all its owners [be in the bailee's service], which condition is absent here? Or perhaps, he after all bears no liability for his half?¹³  What if partners borrow, and he [the animal's owner] lends himself to one of them? Must there be [a pledge of service] to all the borrowers, which, however, is absent here? Or perhaps, for that half [of the partnership] to which he is pledged there is no responsibility? What if he borrows from a woman, and her husband pledges his service? Or what if a woman borrows, and he [the owner] lends himself to her husband?¹⁴  Is a title to usufruct as a title in the principal itself,¹⁵  or is it not?

Rabina asked R. Ashi: What if one says to his agent, 'Go and loan yourself [for service] on my account, together with my cow;' must there actually be its [sc. the bailment's] owner, which is absent here? Or perhaps, 'a man's agent is as himself;' hence the condition is fulfilled? — Said R. Aha, the son of R. Awia, to R. Ashi: As for the husband,¹⁶  that is disputed by R. Johanan and Resh Lakish; with reference to an agent, that is disputed by R. Jonathan and R. Joshia.

'As for the husband, that is disputed by R. Johanan and Resh Lakish.' For it has been stated: If one sells his field to his neighbour for its usufruct, R. Johanan said: He must bring [the first fruits] and recite [the confession];¹⁷  Resh Lakish maintained: He brings [the first fruits], but does not recite [the confession]. 'R. Johanan said: He must bring [the first fruits] and recite [the confession]' because he holds that a title to usufruct is equal to a title to the principal itself. 'Resh Lakish maintained: He brings [the first fruits] but does not recite,' — a title to usufruct is not as a title to the principal itself.¹⁸

'With reference to an agent, that is disputed by R. Jonathan and R. Joshia.' For it has been taught: If one says to his epitropos,¹⁹  'All vows which my wife may vow from now until I return from such a place, annul for her,' and he does so, I might think that they are annulled, therefore Scripture writes, Her husband may establish it, or her husband may make it void:²⁰  this is R. Joshia's view. R. Jonathan said: We find in the whole Torah that a man's agent is [legally] as himself.²¹

R. 'Ilish asked Raba: What [is the law] if one says to his slave, 'Go and loan yourself together with my cow'? The problem arises whether it be maintained that a man's agent is as himself or not. [Thus:] The problem arises on the view that a man's agent is as himself, for that may apply only to an agent who is subject to [Scriptural] commands, but not to a slave, who is not subject thereto.²²  Or, on the other hand, even on the view that a man's agent is not as himself, that may hold good of an [independent] agent, but as for a slave, 'the hand of a slave is as the hand of his master'?²³  — He replied: It is logical that 'the hand of a slave is as the hand of his master.'²⁴

Rami b. Hama propounded: Does the husband rank as a borrower in his wife's property,

1. I.e., though the actual payment must be made on account of these, it is the fact of loan which conditions it.
2. Surely, none at all!
3. The point of the discussion is this. It is evident that Scripture remits liability when the owner is in the bailee's service. Hence the question is, what actually imposes that liability which is to be remitted? And the Talmud answers that it is the act borrowing, rather than injury or death, which imposes it, since borrowing certainly imposes another liability, viz., that of food.
4. Thus, the verse itself intimates that the owner must not be with him, i.e., in his service, at the time of borrowing.
5. Since, according to R. Ashi, it is intimated in the words he quotes.
6. So that no deduction could be made from the 'of' with respect to of non-liability when owner is in the service of the bailee. Now, however, that such is explicitly stated, and, moreover, the apparent contradiction intimates that the owner must be in his service at a particular time, the beginning of the verse, cited by R. Ashi, shews that the time of borrowing is meant.
7. Hence he is not liable for accidents.
8. That the borrower is usually responsible for accidents.
9. I.e., that he should be thought wealthy, and so obtain credit.
10. In order to impose liability.
11. Lit., 'go' according to'.
12. This problem, of course, arises only on the supposition that a cow must do a perutah's worth of work.
13. Sc. of the partner who pledged his service.
14. The reference is to the class of property designated [H] 'goods of plucking' — of which the husband enjoys the usufruct, whilst the principal belongs to the wife.
15. In which case the husband and wife are partners, and so this will depend on the previous problem.
16. I.e., the problem concerning him.
17. V. supra, p. 518, n. 9. Though the usufruct only belongs to him, he can nevertheless say, And now, behold, I have brought the first fruits of the land, which thou, O Lord, hast given me (Deut. XXVI, 10).
18. V. B.B. 136b.
19. His general steward, appointed in loco domini.
20. Num. XXX, 14.
21. Hence the vows are annulled. The same reasoning applies to the problem under discussion.
22. V. supra, 71b and 72a.
23. I.e., having no independent existence, his actions are certainly like those of his master.
24. Hence it is accounted as though the owner is in the borrowers service.

or as a hirer?¹  — Said Raba: His very subtlety has led him into error; what will you? If he ranks as a borrower, it is a loan when the owner is in his service; if a hirer, it is a hiring in similar circumstances?²  — But when does Rami b. Hama's problem arise? If he hired a cow from her and then married her³  — what [is the law] then? Does he rank as a borrower or as a hirer? Does he rank as a borrower, and so the [present] loan, when the owner is in his service,⁴  abrogates hiring effected when the owner was not in his service? Or, perhaps, he ranks as a hirer, and the status of a hirer remains unchanged? But wherefore this differentiation? [If it is maintained that] should he rank as borrower, the borrowing effected when the owner is in his service cancels the hiring effected without the owner being engaged in his service, why not apply the same principle even if he is considered a hirer, and say that the [new] hiring effected with the owner in his service abrogates the [old] hiring effected without the owner's being in his service? — But when does Rami b. Hama's problem arise? E.g., if she hired a cow from a stranger⁵  and then was married [not to the owner]. Now, on the view of the Rabbis, who maintain that the borrower must pay the hirer, there is no problem, for it is certainly a case of a loan plus the owner's service. Where the problem arises is on the view of R. Jose, who ruled, the cow must be returned to its first owner. [Hence the question,] what [is the law] then? Does he rank as a borrower or as a hirer?⁶  — Said Raba: The husband ranks neither as a borrower nor as a hirer, but as a purchaser.⁷  This follows from the dictum of R. Jose son of R. Hanina. For R. Jose son of R. Hanina said: In Usha it was enacted:⁸  If a woman sells of her 'property of plucking' in her husband's lifetime, and then dies, her husband [as her heir] can claim it from the purchaser.⁹

Rami b. Hama propounded: When the husband [obtains the privilege of usufruct] in his wife's property [which belonged to hekdesh], who is liable to a trespass offering?¹⁰  Raba [thereupon] observed: Who then should be liable to a trespass offering? The husband? He is willing to acquire a right in what is permitted, but not in what is forbidden! The wife?¹¹  But she [herself] does not [particularly] wish him [the husband] to acquire even what is permitted!¹²  The Beth din?¹³  When did the Rabbis enact that the husband ranks as a purchaser, only in respect of what is permitted, not in respect of what is forbidden! — But, said Raba, the husband is liable to a trespass offering when he actually expends it, just as in general, when one withdraws money of hekdesh [and converts it] into hullin.

The scholars propounded: What if it [the borrowed animal] became emaciated through its work?¹⁴  Said one of the Rabbis, R. Helkiah the son of R. Awia by name:¹⁵  Then it follows that if it died through the work, he is certainly responsible. But let him say to him [the lender], 'I did not borrow for exhibition in a show case!'¹⁶  — But, said Raba, not only is it unnecessary to state that if it became emaciated through work he is not responsible, but even if it died through work, he is still not liable, because he can say, 'I did not borrow it that it should stand in a showcase.'

A man once borrowed an axe from his neighbour, and it broke. When he came before Raba, he said to him, 'Go and bring witnesses that you did not put it to foreign use, and you are free from liability.' But what if there are no witnesses? — Come and hear: For a man once borrowed an axe from his neighbour, and it broke. When he came before Rab, he said to him, 'Go and return him a good axe.' Said R. Kahana and R. Assi to Rab:

1. It is assumed that the question is whether he is responsible for accidents when working with his wife's, 'property of plucking,' (q.v., p. 555, n. 4) or not, as a borrower or as a hirer respectively.
2. Since the wife is pledged to her husband's service from the time of marriage.
3. Or if he borrowed, etc., hiring being mentioned as the more usual (Tosaf.).
4. As explained in n. 2.
5. Lit., 'from the world.'
6. For this dispute of the Rabbis and R. Jose v. supra 35b Now, since the Rabbis maintain that the borrower is concerned only with the lender, not with the first owner, then in this case we consider only the husband's relationship to his wife, and therefore he is not responsible for accidents. But on R. Jose's view that the borrower is referred direct to the first owner, who, of course, is not in his service, the question is whether he ranks as a borrower, and is responsible for accidents, or as a hirer, who is not. In return for the usufruct the husband is bound to ransom his wife if captured, and that liability may give him the rank of a hirer in relation to his wife.
7. Hence he is not liable
8. Usha was a city of Galilee, near Shefar'am, Tiberias and Sepphoris, where an important Rabbinical synod was held on the cessation of the Hadrianic religious persecution, about the middle of the second century; v. B.B. (Sonc. ed.) p. 207, n. 3.
9. Which proves that the husband is accounted a previous purchaser.
10. E.g., if she inherited property after marriage, which included, unknown to her husband, money belonging to hekdesh (v. Glos.). By a Rabbinical enactment, the husband becomes a beneficiary in respect of the usufruct of anything inherited by his wife after marriage. Now, it was assumed that the very fact that the husband is empowered to spend this money for its usufruct is as though it were already removed from the possession of hekdesh, even if it has not been actually expended. Since such removal, if done unintentionally, imposes a liability to a trespass offering, Rami b. Hama asked upon whom it falls.
11. For conferring the right upon her husband.
12. The privilege was conferred upon him by a Rabbinical enactment, not by her desire.
13. For conferring that privilege.
14. Is the borrower liable for the loss in value or not?
15. [This is the only instance where his name occurs.]
16. Lit., to 'be placed under a bridal canopy.'