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Week 102 - Shabbat - 10 November 2001

BAVA METZIA: CHAPTER 8: MISHNAH 3

If one borrowed a cow, and he sent it to him by the hand of his son, by the hand of his bondman, by the hand of his agent, or by the hand of the son, by the hand of the bondman, by the hand of the agent of the borrower, and it died, he is exempt. If the borrower said to him, "Send it to me by the hand of my son, by the hand of my bondman, by the hand of my agent, or by the hand of your son, by the hand of your bondman, by the hand of your agent"; or if the lender said to him, "I am sending it to you by the hand of my son, by the hand of my bondman, by the hand of my agent, or by the hand of your son, by the hand of your bondman, by the hand of your agent" and the borrower said to him, "Send," and he sent it, and it died, he is liable. And likewise when he returns it.

Kehati

If one borrowed a cow, and he - the lender - sent it to him - the borrower - by the hand of his son - or- by the hand of his bondman - or - by the hand of his agent, or - he sent it - by the hand of the son - or - by the hand of the bondman - or - by the hand of the agent of the borrower, and it - the cow – died - on the way, he - the borrower - is exempt - since he did not become the custodian of the animal until it entered his domain. Concerning the borrower's agent, some authorities explain that the ruling in the mishnah applies if the lender had not appointed him as his agent in the presence of witnesses; if, however, he had appointed him as his agent in the presence of witnesses, then the borrower would be liable for damages due to circumstances beyond his control from the time that the lender handed over the cow to this agent (Gemara, B. K. 104a). Some authorities disagree with this explanation (see Bartenura).

If the borrower said to him - to the lender - "Send it - the cow - to me by the hand of my son - or - by the hand of my bondman - or - by the hand of my agent, or - he said to him, 'Send me the cow' - by the hand of your son – or - by the hand of your bondman - or - by the hand of your agent"; or if the lender said to him - to the borrower- "I am sending it to you by the hand of my son – or - by the hand of my bondman - or - by the hand of my agent, or - he said to him, 'I am sending you the cow' - by the hand of your son - or - by the hand of your bondman - or - by the hand of your agent" and the borrower said to him - to the lender - "Send," and he sent it, and it died - on the way - he - the borrower - is liable - to pay, since it entered the domain of the borrower from the moment that it came to the hand of one of these.

The Gemara explains that the ruling in the mishnah (if the borrower said to the lender, "Send it to me by the hand of your bondman," and he sent it, and it died, the borrower is liable) applies specifically to a Hebrew bondman. If, however, he had sent it by the hand of his Canaanite bondman, even if the borrower had told him to send it by his hand, the borrower is not liable for damages caused by circumstances beyond one's control until it comes into the borrower's hand, since anything in the possession of a Canaanite bondman is considered to be in the possession of his master; in this case, it is as if the cow had not left the lender's domain.

And likewise when he returns it - If the borrower returns the cow to the lender by one of those listed above, the cow does not leave his domain until it comes to the hand of the lender; if it dies on the way, the borrower is liable to pay. But if the lender said to him that he should return it by their hand, or if the borrower said to the lender, "I am returning it to you by their hand," and the lender said to him, "Return it," and he returned it, and it died on the way, the borrower is exempt. This refers to an instance in which he returned it within the period for which he had borrowed it. If, however, he returned it after the period for which he had borrowed it, he no longer has the status of a borrower, but rather acquires the status of a paid custodian concerning the cow. I.e., he is no longer liable for damages caused by circumstances beyond his control, but only for damages caused by theft or loss.

BAVA METZIA: CHAPTER 8: MISHNAH 4

If one exchanged a cow for an ass, and it gave birth, and similarly, if one sold his bondwoman and she gave birth, this one says, "Before I sold," and this one says, "After I bought," they divide. If he had two bondmen, one big and the other small, and similarly, two fields, one big and the other small, the purchaser says, "I purchased the big one," and the other one says, "I do not know," he is entitled to the big one. If the seller says, "I sold the small one," and the other one says, "I do not know," he only has the small one. This one says, "The big one," and this one says, "The small one," the seller must take an oath that he sold the small one. If this one says, "I do not know," and this one says, "I do not know," they divide.

Kehati

Incidental to the law which was taught in mishnah 2, this and the following mishnah teach similar laws dealing with claims between purchaser and seller.

If one exchanged a cow for an ass - and the owner of the cow drew the ass, by the law of exchange (Mishnah, Kidd. 1:6); with this act of drawing the owner of the ass also acquired the cow, even though the cow is still in the domain of its original owner - and it - the cow - gave birth - and it is not known whether it gave birth before the owner of the cow drew the ass, or after he drew it; and similarly, if one sold his - Canaanite - bondwoman - and received the monetary payment for her, but she is still in his domain. The purchaser acquired her, however, from the time that he gave him the money, since a Canaanite bondman is acquired by money (Mishnah, Kidd. 1:3) - and she - the bondwoman - gave birth - and it is not known whether the purchaser gave the money before she gave birth (in which case the child is his), or whether he gave the money after she gave birth (in which case the child belongs to the former owner), this one says - the seller claims - "Before I sold" - the bondwoman she gave birth (and similarly, about the cow, "it gave birth before I drew the ass), and the offspring is mine - and this one says - the purchaser claims, "She gave birth - After I bought," they divide -

The Gemara explains that this ruling is according to Symmachus, who maintains that money the legal status of which is in doubt must be divided. The law, however, does not follow this opinion, but is in accordance with the opinion of the Sages. They maintain that if the cow or bondwoman is in the domain of the seller, then the purchaser is attempting to take it from his fellow, and whoever seeks to take something from his fellow must bring a proof. There are commentators who explain that, even according to Symmachus, this mishnah refers to a case in which the cow is standing in a meadow or the bondwoman in an alley (a place where slaves were sold), and no one actually holds them in possession. If, however, the cow and the bondwoman were in the domain of the seller, then even Symmachus would admit that the burden of proof is on the purchaser (Tosafot). According to the Sages, however, even if the cow were in a meadow and the bondwoman in the alley, they are nevertheless in the personal possession of the seller, and the purchaser, who seeks to remove them from his possession, must bring proof (see Gemara B. M. 100b).

If he had two bondmen, one big and the other small - and he sold one of them - and similarly - if he had - two fields, one big and the other small - and he sold one of them - the purchaser says, "I took the big one" - i.e., I purchased the big bondman or the big field - and the other one - i.e., the seller - says, "I do not know" - I do not remember which one of them I sold, the big one or the small one - he is entitled to the big one - 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. We have already mentioned above (in the commentary on mishnah 2) that this is not the law. The commentators consequently interpret this mishnah as referring to a case in which the purchaser claims from the seller the monetary value of the large bondman or of the large field (as will be explained in the last part of the mishnah), while the seller claims that he does not remember if he owes him the monetary value of the small bondman or of the large bondman. In other words he admits that he owes him the monetary value of the small bondman, and does not know about the rest. He therefore is obligated to take a Torah oath because of his partial admission. Since he cannot take such an oath, he is obligated to pay the purchaser in accordance with the latter's claim.

If the seller says, "I sold the small one" - i.e., the small bondman, to you - and the other one - the purchaser - says, "I do not know," he only has the small one - since his claim is not a definite claim.

This one - the purchaser - says - "I purchased - The big one," and this one - the seller - says - "I sold - The small one," the seller must take an oath that he sold the small one - The Gemara queries this. It asks why is he obligated to take an oath, since he did not admit to what the other party claimed, and what he admitted was not claimed from him? Furthermore, why is he obligated to take an oath, when oaths are not taken for bondmen or lands? (See the Gemara, where an additional question is also raised). The Gemara explains that the purchaser claims the monetary value of the large bondman or of the big field (in a case where he gave him money, and they agreed among themselves that they could retract from the transaction until the giving of the bill of sale - Tosafot), while the seller claims that he only received from him the money for the small bondman or for the small field. Hence the seller makes a partial admission, and therefore is obligated to take an oath.

If this one says, "I do not know," and this one says, "I do not know" - i.e., neither one of them remembers for which bondman or field the purchaser paid - they divide - in accordance with the opinion of Symmachus, who maintains that money the legal status of which is in doubt must be divided. We have already mentioned above that the law is not in accordance with Symmachus, but is rather in accordance with the opinion of the Sages, who maintain that whoever wishes to take something from his fellow must bring a proof.

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