Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 81a

surely this implies, [if they inform him.] 'I have completed it,' they rank as paid bailees.¹  — No. [Deduce thus:] But if they say. 'Bring money and then take your property,' they are paid bailees.²  But what if they declare, 'I have completed it.'³  [do] they rank as unpaid bailees? If so, instead of teaching. BUT IF THEY DECLARE, 'TAKE YOUR PROPERTY AND THEN BRING US MONEY,' THEY RANK AS UNPAID BAILEES; let it teach the case of 'I have completed it',⁴  from which 'take your property follows a fortiori!⁵  — It is particularly necessary to state the case of 'Take your property,' for I might think that he is not even an unpaid bailee;⁶  hence we are told [that he is].

Others say, R. Nahman b. Papa said: We too have learnt likewise: BUT IF THEY DECLARE, 'TAKE YOUR PROPERTY AND THEN BRING US MONEY'. THEY RANK AS UNPAID BAILEES. Surely the same holds good if he says. 'I have completed it'!⁷  — No. The case of 'Take your property' is different.

Huna Mar, the son of Meremar, [sitting] before Rabina, opposed two Mishnahs to each other and reconciled them. We learnt, BUT IF THEY DECLARE, 'TAKE YOUR PROPERTY AND THEN BRING US MONEY,' THEY RANK AS UNPAID BAILEES, and [presumably], the same holds good if he informs him, 'I have finished it.' But the following contradicts it: If the borrower instructs him [Sc. the lender] to send [the animal], and he does so, and it dies [on the road before reaching him], he is responsible for it. The same holds good when he returns it! — And he reconciled them by the dictum of Rafram b. Papa in R. Hisda's name: This was stated only if he returned it within the period of the loan; but if after, he is not liable.

The scholars propounded: [Does it mean,] He is not liable as a borrower, yet liable as a paid bailee; or perhaps, he is not even a paid bailee? — Said Amemar: Logically it means that he is exempt from the liabilities of a borrower, but is responsible as a paid bailee; for since he has benefited, he must give benefit in return.⁸

It has been taught in accordance with Amemar: If one takes goods from a tradesman [on approval] to send them [as a gift] to his father-in-law, and stipulates. 'If they are accepted, I will pay you their value, but if not, I will pay you its goodwill benefit;'⁹  if they are accidentally damaged on the outward journey, he is liable;¹⁰  but exempt if on the return journey, because he is regarded as a paid bailee.¹¹

A man once sold an ass to his neighbour. Said the latter, 'I will take it to that place, if it is sold, it is well; if not, I will return it to you.' He went, but it was not sold, and on his way back it was accidentally injured. On his going before R. Nahman, he held him liable. Thereupon Raba raised an objection to R. Nahman: If they are damaged on the outward journey, he is liable; but exempt if on the return journey, because he is regarded as a paid bailee! — He answered: The return journey of this person is an outward journey. Why so? — It is common-sense. For if he found a purchaser on his return, would he not sell it?

'KEEP [THIS ARTICLE] FOR ME, AND I WILL KEEP [ANOTHER] FOR YOU.' HE RANKS AS A PAID BAILEE. But why so? Is it not a trusteeship wherein the owner [is pledged to the service of the bailee]?¹²  — R. Papa said: It means that he proposed to him, 'KEEP [THIS ARTICLE] FOR ME to-day, AND I WILL KEEP [ANOTHER] FOR YOU to-morrow.'¹³

Our Rabbis taught: [If A proposes to B,] 'Keep [this article] for me and I will keep [an article] for you'; 'lend me, and I will lend you'; 'keep [this article] for me, and I will lend you [another]'; 'lend me, and I will keep [an article] for you' — in all these cases they rank as paid trustees. But why so? Is it not a trusteeship wherein the owner [is pledged to the service of the bailee]? — Said R. Papa: it means that he proposed to him, 'Keep [this article] for me to-day, and I will keep [an article] for you to-morrow.'

There was a company of perfume sellers¹⁴  of whom each day a [different] one baked for all. One day they said to one of them, 'Go and bake for us.' 'Then guard my robe,' he rejoined. Before his return it was stolen through their negligence; so they went before R. Papa, who held them responsible. Said the Rabbis to R. Papa: But why? Is it not a trusteeship wherein the owner [is pledged to the service of the bailee]? Thereupon he was ashamed. Subsequently it was discovered that just then he [the owner] had been drinking beer.¹⁵  Now, on the view that he [sc. the bailee] is not liable for negligence when the owner [is pledged to the service of the bailee], it is well: on that account he was ashamed. But on the view that he is,¹⁶  why was he ashamed? — But [it happened thus:] That day was not his [for baking], yet they requested him 'Go bake for us,' to which he rejoined, 'In return for my baking for you guard my robe.'¹⁷

1. Though the owner knows that it is ready for removal, the artisan remains as responsible as before. Then by analogy, in the case of a borrower, even when the period of the loan expires he remains just as responsible as within the period.
2. Because they benefit by holding the article until the money is paid.
3. Without stating that they hold it against payment.
4. Viz., that even then he ranks as an unpaid bailee.
5. If he ranks as an unpaid bailee even when he merely informs him that he has completed it. without stating that he relinquishes his hold upon it, surely the same holds good when he explicitly informs the owner that he can take it!
6. For 'Take your property' may imply that he refuses all further responsibility — an unpaid bailee is liable for negligence.
7. V. supra p. 464 and notes.
8. And hold himself responsible until it reaches the owner.
9. I.e., for the benefit I derive from my father-in-law's knowledge that I desired to make him a present.
10. Having undertaken to pay for them in case they are accepted, they are accounted in the meantime his property.
11. [Since he has no longer any intention of buying them, the goods cannot be accounted any more his property, and his liability can arise only in consequence of the goodwill he enjoyed, which makes him rank as a paid bailee, even though the tradesman had actually received payment for this benefit. How much more should this be the case with a gratuitous borrower.]
12. V. infra 94a; so here too: whilst the bailee has the article in his care, the owner is, under the conditions of trusteeship agreed upon, in the service of the bailee.
13. So that the trusteeship and the owner's reciprocal service are not contemporaneous.
14. Lit., 'dealers in aloe'.
15. I.e., he had not yet commenced baking, so was not in their service. Thus R. Papa's verdict was just, after all.
16. V. infra 95a.
17. Hence they became paid trustees.

Before he returned, it was stolen,¹  and they went before R. Papa, who held them responsible.²  The Rabbis protested to R. Papa: Why so? Is it not a trusteeship wherein the owners [are pledged to the service of the bailee]? So he was ashamed. But subsequently it was discovered that just then he had been drinking beer.

Two men were travelling together on a road, one [of whom] was tall, and the other short. The tall one was riding an ass, and had a [linen] sheet, whilst the short one was wearing a [woollen] cloak, and walked on foot. On coming to a river, he took his cloak, placed it upon the ass, and took the other man's linen and covered himself therewith.³  Then the water swept the sheet away: so they came before Raba, who ruled him [the short man] liable. But the Rabbis protested to Raba: Why so? Is it not a case of borrowing wherein the owner [is pledged to service]?⁴  So he was ashamed, subsequently it was learnt that he had taken it [the linen sheet] and put [his own on the ass] without his knowledge.⁵

A man hired an ass to his neighbour and said to him, 'See that you do not go by way of Nehar Pekod,⁶  where there is water,⁷  but by the way of Naresh,⁸  where there is none.' But he did go by way of Nehar Pekod, and the ass died. When he returned, he pleaded. 'True, I took the route of the Nehar Pekod, but there was no water.'⁹  Said Rabbah to him [the owner]: Why should he have lied? Had he wished, he could have said, 'I went by way of Naresh.' But Abaye observed: We do not reason, 'What is the purpose of lying,' if there are witnesses [to the contrary].¹⁰

[IF HE REQUESTS,] 'KEEP [THIS] FOR ME,' AND HE REPLIES, 'PUT IT DOWN BEFORE ME.' HE IS AN UNPAID BAILEE. R. Huna said: If he replies. 'Put it down before you,' he is neither an unpaid nor a paid bailee.¹¹

The scholars propounded: What if he simply said, 'Put it down'? — Come and hear: [IF HE REQUESTS,] 'KEEP [THIS] FOR ME' AND HE REPLIES, 'PUT IT DOWN BEFORE ME,' HE IS AN UNPAID BAILEE. From which it follows that if he does not particularise at all there is no obligation at all. On the contrary, since R. Huna said: If he replied. 'Put it down before you' — it is [only] then that he is neither an unpaid nor a paid bailee; it follows that if he does not particularise he is a paid bailee. But no conclusions are to be drawn from this.

Shall we say that this is disputed by Tannaim? [For we learnt:] If he brought them in with [the owner's] permission, the courtyard owner is liable. Rabbi said: In all these cases he is not liable unless he explicitly undertook to guard.¹²  But how does this follow? Perhaps the Rabbis rule [that he becomes a bailee] only there, in the case of a courtyard, which is a guarded place. so that when he [the owner] said to him, 'Bring it in', he meant, 'Bring it in, and I will take care of it for you'; but here, in a market place, which is unguarded, he may have meant, 'Put it down, take a seat, and guard it. Contrariwise, perhaps Rabbi rules [that he does not become a bailee] only there, in the case of a [private] courtyard, to enter wherein permission is necessary, so that when he gave him permission to enter, he meant, '[Come in,] sit down, and guard it.' But here, he must have meant, 'Put it down and I will guard it;' for should you think, he meant, 'Put it down, take a seat, and guard it' — does he require his permission to put it down?

IF A MAN LENDS ANOTHER ON A PLEDGE, HE RANKS AS A PAID TRUSTEE. Shall we say that our Mishnah does not agree with R. Eliezer? For it has been taught: If one lends his neighbour [money] against a pledge and the pledge is lost, he must swear [that it was not due to his negligence], and then be repaid:¹³  this is R. Eliezer's opinion. R. Akiba ruled: He [the debtor] can say to him: 'Did you lend me against aught but the pledge? the pledge being lost, your money [too] is lost.' But if he lends him a thousand zuz against a note and a pledge is deposited for it, all agree that if the pledge is lost, the money is lost!¹⁴  — You may say that it agrees even with R. Eliezer, yet there is no difficulty: in the latter case he took the pledge when the loan was made;¹⁵  in the former, he did not take the pledge at the time of the loan.¹⁶  But in both cases,

1. Not through their negligence.
2. Because a paid trustee is responsible for theft even if not due to negligence.
3. Because wool is more absorbent than linen, therefore much heavier when saturated.
4. For whilst the short man had the sheet, the tall man was pledged to guard his cloak.
5. In which case he is certainly liable.
6. [West of Mahuza, identical with Nehar Malka, situated on the canal of the same name on the west bank of the Tigris. Obermeyer. op cit., pp. 273. 275.]
7. [The canal might overflow its banks, with dangerous consequences for the ass; Obermeyer. p. 275.]
8. Identical with Nahras or Nahr-sar, on the canal of the same name, on the East bank of the Euphrates. Obermeyer. p. 307.
9. It was summer, and the river bed was dried up.
10. For it is well known that that road is never free of water.
11. Because that is simply a refusal to take care of it.
12. V. B.K. 47b. If a potter brought his pots into a stranger's courtyard, and the latter's ox trampled upon and broke them, or if a man brought his ox or provisions into another's court, and an ox belonging to the latter killed it or consumed them, — the Rabbis rule, if the courtyard owner had given him permission to enter, it is regarded as though he had undertaken to guard them, and therefore he is responsible. Rabbi, however, maintained that he must explicitly undertake to guard it; otherwise he bears no liability. Hence, by analogy, in the case under discussion, in the view of the Rabbis, when he says 'Put it down', he becomes an unpaid bailee, but not in the view of Rabbi.
13. Lit., 'take his money'.
14. Shebu. 43b. A paid bailee is responsible for loss, but not an unpaid bailee, who is liable only for negligence. Now, R. Eliezer maintains that when money is lent on a pledge without a written bond, it is not meant as a security for the money in case the debtor defaults, but merely as a proof of loan; but should the debtor fail, some other property might be seized by the creditor. Consequently the creditor is merely a bailee, and since R. Eliezer does not hold him responsible for loss, he obviously regards him as an unpaid bailee, and thus disagrees with the Mishnah. R. Akiba, on the other hand, holds that the pledge is a security for the money; hence, if that is lost, the money is lost too. If, however, a bond is indited, it cannot be asserted that the pledge was intended merely as proof, therefore all agree that if lost, the money is lost too.
15. Then R. Eliezer regards it as merely a proof of loan.
16. But afterwards, payment falling due and the debtor being unable to repay, the creditor obtained a court order to take a pledge. That pledge is certainly a security for the money, and the benefit of being thereby certain of repayment renders the creditor a paid bailee.