Torah Community Connections

Week 102 - Thursday - 8 November 2001

BAVA METZIA: CHAPTER 7: MISHNAH 10

If it died a natural death, this is considered to be a circumstance beyond one's control. If he afflicted it and it died this is not a circumstance beyond one's control. If it went up to the top of a crag and fell, this is considered to be a circumstance beyond one's control. If he led it up to the top of a crag and it fell down and died, this is not a circumstance beyond one's control. An unpaid custodian may stipulate that he is to be exempt from taking an oath, and the borrower to be exempt from paying; the one paid and the hirer to be exempt from taking an oath and from paying.

Kehati

This mishnah is a continuation of the previous mishnah, and further explains the subject of circumstances beyond one's control.

If it - an animal - died a natural death, this is considered to be a circumstance beyond one's control - and the shepherd is exempt from paying for damages.

If he afflicted it - by starving it, or by putting it in the heat or in the cold - and it died - even if it did not die immediately, but only later (Rabbeinu Asher, Rabbeinu Yehonatan) - this is not a circumstance beyond one's control - Since he afflicted it, we assume that the sickness had its beginnings then, and the animal died of this. This is a case of negligence, and the custodian must pay. Some authorities write that even an unpaid custodian must pay in these circumstances (Maggid Mishneh; Hil. Sekhirut 3:9).

If it went up to the top of a crag - i.e., the animal burst out and went up to a steep mountaintop - and fell - the Gemara explains that the reference here is to a case in which the animal overcame the shepherd, and went up and down, i.e., the shepherd was unable to prevent it from going up or down, and could not prevent it from falling (B. M. 36b) - this is considered to be a circumstance beyond one's control - and the shepherd is exempt from paying. If, however, he could have prevented it from falling, even if it had burst away from him and gone up, this is not considered to be a circumstance beyond his control.

If he - the shepherd - led it up to the top of a crag and it fell down and died - even if it ascended by itself, but the shepherd could have prevented it from ascending, but did not, then, even if the animal overcame him and fell (Hil. Sekhirut 3:9), this is not a circumstance beyond one's control - and he is obligated to pay, since the custodian is liable in any case which begins with negligence and ends with circumstances beyond his control (see Tosefot Yom Tov, concerning the mishnah's use of the word "and it died").

An unpaid custodian may stipulate - before agreeing to become a custodian - that - if anything happens - he is to be exempt from taking an oath - that he was negligent in guarding, i.e., that he will be believed if he merely states that he was not negligent; and the borrower - may stipulate that he is - to be exempt from paying - and also that he is to be exempt from taking an oath if the animal dies as a result of working; the paid one and the hirer - are permitted to stipulate that they - be exempt from taking an oath - for circumstances beyond their control - and from paying - for damages due to theft and loss.

The Gemara explains that though this is a case of making a stipulation which is contrary to what is written in the Torah, and any such stipulation is invalid (as we will learn in mishnah 11). This mishnah is nevertheless in accordance with the opinion of Rabbi Yehudah, who maintains that such a stipulation is valid, if it concerns monetary matters. There are commentators who interpret this mishnah as being even in accordance with the opinion of Rabbi Meir, who maintains that such a stipulation is invalid, even if it concerns monetary matters. They state that the case here, at any rate, is different. At the outset, he did not commit himself to all the rules of a complete custodian, but rather designated himself as a partial custodian. The Torah laws concerning custodians therefore do not apply to him, and he is permitted to make any stipulations which he wants. Such a stipulation requires neither a formal act to make it binding nor the presence of witnesses (Gemara; Hil. Sekhirut 2:9).

BAVA METZIA: CHAPTER 7: MISHNAH 11

Whoever makes a condition contrary to what is written in the Torah, his condition is void. And any condition which commences with the deed, his condition is void. And whatever can be fulfilled eventually and he made a condition thereon at the beginning, his condition is valid.

Kehati

Whoever makes a condition contrary to what is written in the Torah, his condition is void - The Gemara quotes the following baraita: "If one says to a woman, You are betrothed to me, on condition that you have no claims against me for food, clothing, and marital due, she is betrothed, and the condition is void" - for if anyone makes a condition contrary to what is written in the Torah, the condition is invalid. "This is the opinion of Rabbi Meir. Rabbi Yehudah says, his condition is valid for that which concerns monetary matters" - i.e., his condition is valid with respect to the food and clothing, and is invalid only concerning the marital due. The law is in accordance with the opinion of Rabbi Yehudah. Based on this, some commentators interpret this mishnah in accordance with Rabbi Yehudah, stating that the mishnah refers specifically to non-monetary matters (Rambam, in his commentary on the mishnah; Hameiri). Other commentators interpret this mishnah in accordance with Rabbi Meir: "If anyone makes a condition against what is written in the Torah" - even for something concerning monetary matters "his condition is void." Their reason is that in the Gemara the other laws mentioned in this mishnah are taught in a baraita in the name of Rabbi Meir. In any event, the law is not in accordance with Rabbi Meir.

And any condition which commences with the deed - i.e., he mentioned the deed before he mentioned the condition - his condition is void and even though the condition is not fulfilled, the deed remains valid. E.g., if one said to a woman, "You are betrothed to me with this perutah if you will give me one hundred zuz": even if he did not give her the perutah for the sake of the betrothal until after his condition had been fulfilled, since in his statement the deed ("You are betrothed to me") preceded the condition, the condition is invalid, and she is betrothed immediately, even if she does not give him the one hundred zuz. This is so since this condition is not similar to the "condition of the children of Gad and the children of Reuben." The Torah states concerning this latter condition, "If the children of Gad and the children of Reuben will pass with you over the Jordan ... then you shall give them the land of Gilead for a possession" (Num. 32:29), i.e., the condition preceded the action (Rashi; Tosafot; the majority of the commentators).

Rambam interprets this in a different manner. If he performed the action prior to completing his condition, then the condition is invalid, since the action came first, and was followed by the condition. E.g., if he said to the woman, "You are betrothed to me with this perutah," and gave her the perutah, and immediately completed his statement and said, "If you will give me one hundred zuz, then you are betrothed to me, and if you will not give me, then you will not be betrothed" (Rambam, commentary on the mishnah; Hil. Ishut 6:4). It follows from Rambam's words that if he had completed his entire condition before giving the perutah of betrothal into her hand, even though he had stated the action before the condition, then the condition is valid. Most of the commentators and decisors, however, raise objections to Rambam's explanation (see Hasagat Ravad; Maggid Mishneh; Tur, Even haEzer, Hil. Kiddushin 38; Hameiri).

And whatever - condition - can be fulfilled eventually and he made a condition thereon at the beginning - and the condition also preceded the deed - his condition is valid - but so long as the condition is not fulfilled, the action is invalid. If, however, he stipulated something which cannot be fulfilled, the condition is invalid and the action is valid. E.g., if one said to the woman, "If you will ascend to heaven, or if you will cross over the sea on foot, then you are betrothed to me, and if not you will not be betrothed," and later gave the perutah of betrothal into her hand, then the condition is invalid, and she is betrothed immediately. It is clear that she cannot fulfill this condition, and that this is only in exaggerated statement which he did not seriously intend to stipulate as a condition, but rather wanted to annoy her, and so he pushed her away with his words (Rashi).

Return to Mishna Yomit Index

Visit the Mishna Yomit Archives