Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 36a

Sometimes both are liable to a guilt-offering, sometimes the hirer is liable to a sin-offering and the borrower to a guilt-offering, and sometimes the hirer is liable to a guilt-offering and the borrower to a sin-offering.¹  How so? For denying monetary liability [on oath] a guilt-offering is incurred; for a false statement,²  a sin-offering.³  'Sometimes both are liable to a sin-offering.' E.g., if it died a natural death, and they maintained that an accident had befallen it. Thus, the hirer, who is free [from responsibility] in both cases,⁴  is liable to a sin-offering, and the borrower, who is responsible in both cases, is [likewise] liable to a sin-offering. 'Sometimes both are liable to a guilt-offering.' E.g., if it was stolen, and they maintained that it had died of its work. Thus both deny monetary liability, since in fact they are responsible [for theft], whilst they free themselves. 'The hirer is liable to a sin-offering and the borrower to a guilt-offering.' E.g., if it died a natural death, and they maintained that it had died of its work. The hirer, who is free [from responsibility] in both cases, is liable to a sin-offering; the borrower, who is liable if it dies a natural death but frees himself with [the plea that] it died of its work, to a guilt-offering. 'The hirer is liable to a guilt-offering, and the borrower to a sin-offering.' E.g., if it was Stolen, and they maintained that it had died naturally. The hirer, who is liable for theft and loss but frees himself with [the plea,] it died naturally, incurs a guilt-offering; the borrower, who is responsible in both cases, a sin-offering.

Now, what does he [R. Jeremiah] thereby inform us?⁵  — [His purpose is] to oppose R. Ammi's dictum, viz., For every oath which the judges impose no liability is incurred on account of an 'oath of utterance' because it is said, Or if a soul swear, uttering with his lips [etc.],⁶  which implies a voluntary oath.⁷  Therefore he informs us that it is not as R. Ammi.

It has been stated: If one bailee entrusted [his bailment] to another bailee — Rab said: He is not liable;⁸  R. Johanan maintained: He is liable.⁹  Abaye said: According to Rab's ruling, not only if a gratuitous bailee entrusted [the bailment] to a paid bailee, thereby enhancing its care; but even if a paid bailee entrusted [it] to an unpaid one, thus weakening its care, he is still not responsible. Why? Because he entrusted it to an understanding being.¹⁰  Whilst according to R. Johanan's view: not only if a paid bailee entrusted [it] to an unpaid one, thus weakening its care; but even if an unpaid bailee entrusted it to a paid one, thereby enhancing its care, he is still responsible. Why? Because he [the bailor] can say to him, 'It is not my desire that my bailment should be in charge of another person.'

R. Hisda said: This ruling of Rab was not stated explicitly, but by implication. For there were certain gardeners who used to deposit their spades every day with a particular old woman. But one day they deposited them with one of themselves. Hearing the sounds of a wedding, he went out and entrusted them to that old woman. Between his going and returning, their spades were stolen, and when he came before Rab, he declared him not liable. Now, those who saw this thought that it was because if a bailee entrusts [the bailment] to another bailee he is free [from liability]; but that is not so: there it was different, Seeing that every day they themselves used to deposit [their spades] with that old woman.

Now, R. Ammi was sitting and recounting this discussion, whereupon R. Abba b. Memel raised an objection before him: IF A MAN HIRES A COW FROM HIS NEIGHBOUR, LENDS IT TO ANOTHER, AND IT DIES A NATURAL DEATH, THE HIRER MUST SWEAR THAT IT DIED NATURALLY, AND THE BORROWER MUST PAY THE HIRER. But if this [sc. R. Johanan's ruling] be correct, let him [the owner] say to him, 'It is not my desire that my bailment should be in the hands of another person'! — He replied: The circumstances here are that the owner authorised him to lend it. If so, he ought to pay the owner!¹¹  — It means that he said to him, 'At your discretion'.¹²

Rami b. Hama objected [from the following Mishnah]: If one deposited money with his neighbour, who bound it up and slung it over his shoulder¹³  [or] entrusted it to his minor son or daughter and locked [the door] before them, but not properly,¹⁴  he is responsible, because he did not guard [it] in the manner of bailees.¹⁵  Hence, it is only because they were minors; but if they were adults, he would be free [from liability]. Yet why so? Let him say to him, 'It is not my desire that my bailment should be in the hands of another person'! — Said Raba: He who makes a deposit

1. The reference is to the Mishnah, where the hirer of an animal then lends it to another.
2. Lit., 'utterance of lips.' V. Shebu. 32b.
3. If one swears falsely, profiting thereby, he is liable to a guilt-offering; if he does not profit thereby, thus taking an 'oath of utterance', to a sin-offering] This is deduced from Lev. V, 4 f, 21, 25.
4. Whether it dies a natural death or is the victim of a mishap.
5. All these follow from well established principles in the last Mishnah, in Shebu. 49b, and R. Jeremiah adds nothing new.
6. Lev. V, 4.
7. I.e., in his opinion an 'oath of utterance' is only one taken quite voluntarily; but if imposed by a court, even if nothing is gained thereby, it is not an 'oath of utterance'.
8. For whatever he would not have been liable had he kept it himself.
9. Even for unpreventable accidents, for which he would not have been liable had he kept it himself.
10. I.e., who is capable of giving due care.
11. The assumption is that he permitted him to lend it to that particular person; but in that case, it is as though he himself had lent it, and therefore he ought to receive the compensation.
12. I.e., he gave him a general authorisation; hence the hirer is regarded as the lender and payment is made to him.
13. Lit., 'behind him.'
14. I.e., he shut them in the house, so that they could not go out with the money, but did not close the door properly.
15. V. infra 42a.

does so with the understanding that his [the bailee's] wife and children [may be put in charge thereof]. The Nehardeans said: This may be deduced too [from the Mishnah quoted], for it states, 'or entrusted it to his minor son or daughter … he is responsible'; hence, [if] to his adult son or daughter, he is not responsible, whence it follows that if [he entrusts it] to strangers, whether adults or minors, he is liable. For if otherwise, he [the Tanna] should have simply taught 'minors': this proves it.

Raba said: The law is, If one bailee entrusts [the bailment] to another, he is responsible. Not only if a paid bailee entrusts [it] to an unpaid one, so weakening its care; but even if an unpaid bailee entrusts to a paid one, he is [still] responsible. Why? Because he [the bailor] can say to him, 'You I believe on oath: the other I do not.'¹

It has been stated: If he [the bailee] was negligent thereof,²  and it went out into a meadow³  and died naturally:⁴  Abaye in Rabbah's name ruled that he is liable; Raba in Rabbah's name ruled that he is not liable. 'Abaye in Rabbah's name ruled that he is liable.' Any judge who does not give such a verdict is not a judge: not only is he liable on the view that, if the beginning is through negligence, and the end through an accident, one is liable;⁵  but even on the view that one is not liable, in this case he is. Why? Because we say, The air⁶  of the meadow land killed it.⁷  'Raba in Rabbah's name ruled that he is not liable.' Any judge who does not give such a verdict is not a judge: not only is he not liable on the view that, if the beginning is through negligence, and the end through an accident, one is not liable; but even on the view that he is liable, in this case he is not. Why? Because we Say, What difference does one place or another⁸  make to the Angel of Death?⁹  Now, Abaye admits that if it returned to its owner [sc. the bailee] and then died, he is free. Why? Because it had returned, and it could not be said that the air of the meadow killed it. Whilst Raba admits that if it was stolen from the meadow and died naturally in the thief's house, he [the bailee] is responsible. Why? Had the Angel of Death left it alone, it still would have been in the thief's house.¹⁰

Abaye said to Raba: According to you, who maintain, what difference does this place or that make to the Angel of Death: when R. Abba b. Memel raised an objection before R. Ammi, and he answered him, It means that the owner authorised the hirer to lend it,¹¹  — he should rather have answered him, What difference does this place or another make to the Angel of Death?¹²  — He replied, According to you, who teach [the reason of R. Johanan's ruling¹³  as being that the bailor can say,] 'I do not wish my bailment to be in the hands of another', that objection [of R. Abba b. Memel] can be raised.¹⁴  But according to myself, who [maintain that it is because he can say,] 'You I believe on oath, whilst the other I do not believe on oath,' the objection cannot be raised at all.¹⁵

Rami b. Hama objected: If he [the bailee] took it up to the top of steep rocks and it fell and died, it is no accident.¹⁶  Hence, if it died naturally, it is accounted an accident and he is not liable. Yet why so? Let him [the bailor] say to him, The [cold] mountain air killed it, or the exhaustion of [climbing] the mountain killed it! — The meaning there is that he took it up to a fertile and goodly pasture ground.¹⁷  If so, it is the same even if it fell?¹⁸  — He should have supported it [to prevent it from falling], but did not. If so, consider the first clause: If it ascended to the top of steep rocks and then fell down, it is an accident. Yet there too he should have supported it! — That holds good only if he supported it in its ascent, and supported it when it fell.¹⁹

SAID R. JOSE: HOW SHALL ONE DO BUSINESS WITH HIS NEIGHBOUR'S COW etc. Rab Judah said in Samuel's name: The halachah is as R. Jose. R. Samuel b. Judah asked Rab Judah: You have told us in Samuel's name that R. Jose disputed

1. And it is not within the bailee's power to put the bailor in such a position that he shall be forced to believe the other person on oath; hence he is responsible.
2. Sc. the animal entrusted to his care, placing it in a stable improperly closed.
3. Where it might have been stolen or killed by wild beasts.
4. Thus the bailee was negligent, but the actual death per se was one for which a bailee is not responsible.
5. V. infra 42a.
6. Lit., 'heat'.
7. Hence his death is directly the result of his negligence.
8. Lit., 'here or there.'
9. Therefore the initial negligence had absolutely nothing to do with the animal's death. But in the case discussed supra 42a (q.v.) it did have some slight bearing upon it.
10. And lost, as far as the owner was concerned. Since this is directly the result of the bailee's negligence, he is responsible
11. V. supra 36a.
12. This answer is preferable, for then the Mishnah on 35a is not limited to a particular instance.
13. Supra 36a.
14. And having raised it, R. Ammi replied as he thought fit.
15. Since in the Mishnah the hirer himself swears.
16. Infra 93b.
17. Which is a natural thing for shepherds: hence he is not liable on the score of cold air or exhaustion.
18. Since, on the present hypothesis, he merely did his duty in taking it up.
19. The animal's weight, however, being too much for him.