Torah Community Connections

Week 101 - Friday - 2 November 2001

BAVA METZIA: CHAPTER 6: MISHNAH 6

All artisans are paid custodians. And any who said, "Take what is yours and bring money," is an unpaid custodian, "Guard for me, and I will guard for you" - is a paid custodian. "Guard for me," and he said to him, "Set it down before me" - is an unpaid custodian.

Kehati

All artisans - who perform their work in their own premises, such as a dyer or a tailor - are paid custodians - i.e., they have the legal status of paid custodians for all the items of the owner which are in their physical possession, since they earn money through them, or benefit by holding the item as a guaranty for their payment (Gemara; Bartenura; see Tosefot Rabbi Akiva Eiger). The artisans are liable for damages if the items are stolen or lost.

And any - artisan - who said - to the owner - "Take what is yours - the item, the work on which has already been completed - and bring money" - i.e., he revealed that he does not intend to delay returning the item, keeping it until he receives his payment, but rather that the owner can take it and later pay him his money - is - has the status of - an unpaid custodian - and is exempt from damages for theft or loss. It is stated in the Gemara that this also is the law if the artisan said to the owner of the item, "I have finished it," even though he did not say, “Take what is yours." The Gemara assumes that the intent of anyone who announces that his work is finished, and does not demand his money, is that the owner may take it even without paying the money; his legal status from this point on is therefore that of an unpaid custodian. If, however, the artisan had said to the owner, "Bring the money and take what is yours," his legal status remains that of paid guardian.

If one said to his fellow, "Guard for me - today - and I will guard for you" - tomorrow, both of them have the status of - a paid custodian - since each one guards for the payment consisting of his fellow's guarding. If, however, he had said to him, "Guard my item for me, and I will guard your item for you at the same time," then he is exempt from damages caused by theft or loss. This is learned from the verse in the Torah, "If its owner be with him, he shall not make it good" (Ex. 22:14), which refers to a borrower. "With him" was interpreted to mean "with him in his work," teaching that all custodians are exempt from damages if the owners were together with them in their work. In this case as well, since each one guards his fellow's item at the same time, both are occupied in guarding (see Tosefot Yom Tov), and this is considered as guarding together with the owners. The custodian is accordingly exempt.

A said to B - "Guard - this item - for me," and he said to him - B said to A - "Set it - the item - down before me" - B is - an unpaid custodian - since he revealed that he agreed to guard it. If, however, B had said, "Set it down before you," or just "Set it down," he did not accept upon himself to guard it at all, and he is not even an unpaid custodian.

BAVA METZIA: CHAPTER 6: MISHNAH 7

If one loaned him against a pledge, he is a paid custodian. Rabbi Yehudah says, If he lent him money, he is an unpaid custodian; if he lent him produce, a paid custodian. Abba Shaul says, One may hire out the pledged article of a poor person, fixing a price for it continually, since he is as one who returns a lost article.

Kehati

If one loaned him against a pledge - if A lent B money or produce and received a pledge from B, A thereby becomes - a paid custodian - for the pledge, since he has the payment of the reward for fulfilling a mitzvah for his loan. If the pledge was lost or stolen, A is liable for its monetary value. The topic of the reward for fulfilling a mitzvah is explained in the Gemara: at the time of the loan, the lender is exempt from giving anything to the poor person (for one who is busy with the performance of one mitzvah is exempt from performing another at the same time). The benefit which he enjoyed at that moment bestowed upon him the status of paid custodian for the pledge, for the entire period that the pledge is with him (Gemara, B. K. 56b).

Rabbi Yehudah says, If he lent him money, he is an unpaid custodian - in Rabbi Yehudah's opinion, the reward for fulfilling a mitzvah is not considered as payment for the determination of law.

If he lent him produce, a paid custodian - Since produce is liable to rot, A benefits by his lending the produce to B, for B returns fresh produce to him. A therefore acquires the status of paid custodian for the pledge, due to this benefit. The law is in accordance with the first opinion in the mishnah, which rules that he becomes a paid custodian, whether he lent produce or money.

Abba Shaul says, One - who lent money to a poor person and received from him a pledge - may hire out the pledged article of a poor person - to others - fixing a price for it - and - continually - reducing the debt, by deducting the rental money which he receives from the amount of the debt - since he is as one who returns a lost article - to the poor person, for in this manner he is able to return the poor person's pledge to him. The law is in accordance with this opinion. The Gemara explains that this is the case only concerning a pledge which has a high rental value and which depreciates only slightly as a result of its being rented out, such as a hoe or axe. He is not permitted, however, to rent out items which depreciate greatly.

We have explained Abba Shaul's statement to mean that one is permitted to rent out the poor person's pledge to others (in accordance with Rashi's commentary). The lender himself, however, may not use the pledge in order to deduct its rental from the debt. Tur explains that this is due to suspicion, i.e., others will suspect that he is using the pledge, but not deducting the rental from the debt (Tosefot Yom Tov).

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