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BAVA METZIA: CHAPTER 8: MISHNAH 1

If one borrowed a cow and borrowed its owner with it, or hired its owner with it, borrowed the owner or hired him and afterwards borrowed the cow, and it died, he is exempt, as it is said, "If its owner be with him, he shall not make it good" (Ex. 22:14). But if he borrowed the cow and later borrowed the owner or hired him, and it died, he is liable, as it is said, "Its owner not being with him, he shall surely make restitution" (Ex. 22:13).

Kehati

This mishnah deals with the borrower. As we have already mentioned, the borrower is liable even for damages caused by circumstances beyond his control. The Torah, however, states concerning the borrower that "Its owner not being with him, he shall surely make restitution. If its owner be with him, he shall not make it good" (Ex. 22:13-14). The Oral Law teaches that the intent of the Torah is that if the owner was with him at the time of the borrowing, even if the owner was not with him at the time of the accident, then the custodian is exempt from paying damages. If the owner was not with him at the time of the borrowing, even if he was with him at the time of the accident, the custodian is liable for damages. This mishnah explains these laws.

If one borrowed a cow and borrowed its owner with it - e.g., at the time that he borrowed the cow he asked the owner of the cow to help him to plow with it, or even asked him to do another type of work with him, such as to hoe with him, or hired its owner with it - i.e., he hired the owner of the cow to work for him at the time that he borrowed the cow, whether for the same work, such as plowing with the cow, or for another type of work; or - borrowed the owner or hired him - first - and afterwards borrowed the cow - from the owner, while he was still borrowed or hired by him, and it - the cow - died, he - the borrower - is exempt - from paying - as it is said, "If its owner be with him, he shall not make it good" - which means: If the owner of the cow is with him, i.e., if the owner of the cow is himself borrowed or hired by the borrower at the time that the owner lent him his cow, the borrower does not have to pay. The Gemara explains that this law also applies to the other types of custodian: if the owners were borrowed or hired by them, for any type of work at all, at the time that they became custodians, then they are exempt from paying damages, even for negligence.

But if he borrowed the cow - first - and later borrowed the owner or hired him - to do his work - and it - the cow - died, he - the borrower - is liable - to pay, even though the owner of the cow was with him doing his work at the time that the cow died - as it is said, "Its owner not being with him, he shall surely make restitution" - which means: If the owner of the cow was not with him at the time that he borrowed the cow, even though the owner was with him at the time that it died or was injured, the borrower is liable to pay.

The author of Torah Temimah writes:

If the owner was with him in his work, the reason for his exemption is indeed simple. Since the owner also performed work with the cow, he should have guarded it, so that an accident in which it would be hurt or died would not occur. But the reason for the exemption when the owner was lent to the borrower for another work, and even in another place, is not clear at all - what connection is there between the two matters?

Similarly, his having to be with him at the time of the borrowing, while his being with him at the time of the injury or death is not considered safeguarding by the owner, would seem to be inverted logic.

Sefer HaHinukh writes on this issue that if the owner was engaged in the same work, logic would dictate that the custodian would be exempt; the Sages therefore did not distinguish in the formulation of this law between the owner's being borrowed for this work or for another work.

This reason, however, is insufficient: for the Sages did distinguish between the many details and minutiae in the laws of custodians, and in the laws on monetary matters in general. Furthermore, according to this reasoning, the law would have to be the same, whether the owner was with him at the time of the borrowing, or whether he was with him only at the time it was injured or died.

It is possible to explain the logic behind this law as follows: a person cannot be both subject to and have subjection over the same person at one time; in such a case, his subjection to another is not complete subjection. Therefore, if the owner was lent to the borrower, the borrower could not be subject to the owner then, and it is immaterial whether the owner was borrowed for this work or for another kind of work. This also explains why the legal responsibility is dependent upon whether the owner was with him at the time of the borrowing, since the subjected status of the borrower takes effect at that moment. The Gemara also mentions another reason, since then he becomes responsible for the maintenance of the cow.

The reasoning of the law may also be explained in another way: the entire obligation of the borrower for damages caused by circumstances beyond his control is grounded in the fact that all the benefit is the borrower's, who does not give anything to the owner for the borrowed object. Accordingly, if the owner is with him (specifically at the time of the borrowing) for money or material benefit, he is no longer considered to be a "borrower," but rather has the legal status of "hirer," since the rental which the owner of the cow receives for himself is considered to be payment for the cow, as well.

BAVA METZIA: CHAPTER 8: MISHNAH 2

If one borrowed a cow: he borrowed for half a day and hired it for half a day, borrowed it today and hired it tomorrow, hired one and borrowed one and it died - if the lender says, "The borrowed one died," "It died on the day when it was borrowed," "It died during the hour it was borrowed," and the other one says, "I do not know," he is liable. If the hirer says, "The hired one died," "It died on the day it was hired," "It died during the hour it was hired," and the other one says, "I do not know," he is exempt. If one says, "The borrowed one," and the other says, "The hired one," the hirer takes an oath that the hired one died. If one says, "I do not know," and the other says, "I do not know," they must divide.

Kehati

If one borrowed a cow: he borrowed for half a day and hired it for half a day - E.g., A received a cow from B for one day, for half the day as a loan, without any payment, and for half the day as a rental, with a payment; or - borrowed it today and hired it tomorrow - A received the cow for two days, for one day as a loan, and for the following day as a rental; or - hired one and borrowed one - A received two cows from B, one as a rental, and one as a loan, and it died - one of the two cows died, or the one cow (in the first two cases) died.

If the lender says - if B claims - "The borrowed one - the cow which was borrowed - died" - with the borrower then being liable for damages caused by circumstances beyond his control. Or in the case of borrowed it today and hired it tomorrow, the lender claims, "It - the cow - died on the day when it was borrowed" - and you are therefore liable for damages caused by circumstances beyond one's control; or, in the case where - he borrowed for half a day and hired it for half a day, the lender says - "It - the cow - died during the hour it was borrowed," and the other one says - and A claims, "I do not know" - whether it was the hired one which died, or whether the cow died during the day or the hour when it was hired, with me being exempt from damages caused by circumstances beyond control, he - A - is liable - to pay, since in a case where one party makes a definite claim, and the other party is in doubt, the party claiming with certainty has the advantage.

The Gemara explains that according to the law, this mishnah cannot be interpreted literally. For, if one says to his fellow, "You have a maneh of mine," and the other one says, "I do not know," the law is that he is exempt. From which it follows that in our mishnah also, the borrower should be exempt from damages caused by circumstances beyond his control. The mishnah is, however, interpreted in a different manner: as when, for example, the issue between A and B requires an oath, i.e., A is obligated to take an oath before B. The cases mentioned in the mishnah ("he borrowed for half a day and hired it for half a day, borrowed it today and hired it tomorrow") are to be interpreted in the following manner: A received two cows from B for one day, for half a day as a loan, and for half a day as a rental, or he received two cows for two days, for one day as a loan, and for the following day as a rental, and both cows died. B says, "They both died during the time that they were lent," and A says, "One cow did indeed die during the time they were borrowed, but I do not know concerning the second cow, whether it died during the time they were borrowed." In this case A is making a partial admission, and is obligated by the Torah to take an oath. Since he cannot take an oath, for he says, "I do not know," he must therefore pay. Similarly, the case in the mishnah in which he "hired one and borrowed one is to be explained as for example when: A received three cows from B, and two of them died. B claims that he lent A two cows, and hired out one cow, and the two borrowed cows were the ones which died. A says, "Two cows were indeed borrowed, and one of the cows which died was undoubtedly borrowed; concerning the second one which died, I do not know whether it was borrowed or hired." A is obligated to take an oath for his partial admission; since he cannot take an oath, he must pay for the two cows which died.

But if - The hirer says - i.e., A claims - "The hired one - the hired cow - died" - with the hirer being exempt from damages caused by circumstances beyond one's control (the mishnah calls him "the hirer" because of this claim), or - "It died on the day it was hired" - or "It died during the hour it was hired" - i.e., during the time it was rented out to me - and the other one says - and B claims - "I do not know" - whether the borrowed one died, or whether it died during the time it was borrowed - he - A - is exempt - even from taking an oath, since B's claim is an uncertain assertion (see Tosefot Yom Tov concerning the subject of a superimposed oath, concerning which Rabbeinu Asher and Rambam disagree).

If one says - B claims that - "The borrowed one" - died, and A is responsible for damages caused by circumstances beyond one's control - and the other says - and A claims - "The hired one" - died, and he is therefore exempt from such damages - the hirer takes an oath that the hired one died - The Gemara explains that this oath is not due to his partial admission, for he did not admit to what was claimed, and that to which he did admit had not been claimed. This is rather a superimposed oath: since he has to take an oath that the animal died a natural death, which is a circumstance beyond his control, the oath that it was the hired cow which died is also imposed upon him. As the mishnah is interpreted in the Gemara, however, i.e., A received two or three cows from B, A indeed makes a partial admission, and this obligates him to take an oath (Rashi, Hameiri). Other commentators state that he in any event takes this oath only as one imposed on the other oath (Hil. She'ilah u-Pikadon 3:3; Kesef Mishneh, loc. cit.; see also Tosefot Yom Tov).

If one says, "I do not know," and the other says, "I do not know" - i.e., neither one of them knows whether it was the hired or borrowed cow which died - they must divide - The Gemara explains that this ruling is in accordance with the opinion of Symmachus, who maintains that money the legal status of which is in doubt must be divided. The law is not in accordance with him, however, but rather in accordance with the Sages, who are of the opinion that whoever wishes to take something from his fellow must bring a proof, i.e., if each one of them says, "I do not know," the borrower is exempt, but he must take an oath that he is being honest when he says that he does not know (Rambam; Bartenura; see Tosefot Yom Tov).

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