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Week 102 - Wednesday - 7 November 2001

BAVA METZIA: CHAPTER 7: MISHNAH 8

The guardians of produce may eat by custom of the country, but not by Torah law. There are four custodians: an unpaid custodian, and the borrower, the bearer of wages, and the hirer. An unpaid custodian takes an oath for all; the borrower pays for all; the one paid and the hirer take an oath for the broken, the seized, or the dead, and pay for a lost object and a stolen object.

Kehati

This mishnah concludes the laws concerning a worker eating while he works, and passes to the laws governing the four types of custodian.

The guardians of - picked - produce - whose preparation for ma'aser has not been completed, such as the watchmen of winepresses and stacks of produce - may eat by custom of the country - which are already in practice - but not by Torah law - since guarding does not have the legal status of an "action." The watchmen of gardens and orchards, whose produce is attached, are not permitted to eat, however, either by Torah law or by custom of the country. Likewise the workers listed above (in mishnah 2) as not being entitled to eat while working, are not permitted to eat even if this is the custom of the country (Gemara, 93a).

There are four - types of - custodian mentioned in the Torah: an unpaid custodian - who does not receive payment for guarding, and the borrower - of an article from his fellow, without paying a rental fee, the one paid - a custodian who receives payment for guarding, and the hirer - of an article from his fellow for a rental fee.

An unpaid custodian takes an oath for all - if the article in his safekeeping was stolen or lost (certainly if it was lost due to circumstances beyond his control, e.g., if he was entrusted with an animal and it died or broke a leg). He takes an oath that he safeguarded it in the manner of custodians and was not negligent, and is exempt from paying, as it is said in the passage in the Torah dealing with an unpaid custodian: "If a man deliver to his neighbor money or utensils to guard, and it be stolen out of the man's house... then the master of the house shall come near to the judges" (Ex. 22:6-7). We learn from these verses that the unpaid custodian is exempt from damage due to theft or loss, and certainly for damage caused by circumstances beyond his control;

The borrower pays for all - even for loss caused by circumstances beyond his control, as it is said, "And if a man borrow anything from his neighbor, and it be hurt, or die, its owner not being with it, he shall surely make restitution" (Ex. 22:13), and he certainly makes restitution for damages caused by theft or loss. If, however, the animal died as a result of its working, he is exempt;

The one paid and the hirer - have the same law, namely, that they - take an oath for the broken, the seized, or the dead - If the animal broke a leg, was seized, or died, then these custodians take an oath that the damage was caused by circumstances beyond their control, and they are exempt from payment. This is learned from the passage in the Torah dealing with a paid custodian: "If a man deliver to his neighbor an ass, or an ox, or a sheep, or any beast, to guard, and it die, or be hurt, or driven away, no man seeing it; the oath of the Lord shall be between them both" (Ex. 22:9-10) - and pay for a lost object and a stolen object - as it is said, "But if it be stolen from him, he shall make restitution to its owner" (Ex. 22:11). The passage mentions only theft. What is the source for the inclusion of loss in this law? This is learned in two ways: firstly, the Torah says "If it be stolen" using a double verb to imply, lost in any manner; secondly, this is learned by inference from minor to major: if he is liable for damage caused by theft, which is close to being a circumstance beyond his control, then he is certainly liable for damage caused by loss, which is close to negligence. The law of the hirer is the same as that of the paid custodian.

BAVA METZIA: CHAPTER 7: MISHNAH 9

One wolf is not a circumstance beyond one's control, two wolves are a circumstance beyond one's control. Rabbi Yehudah says, When there is a pack of wolves, even one wolf is a circumstance beyond one's control. Two dogs are not a circumstance beyond one's control. Yaddua the Babylonian says in the name of Rabbi Meir, From one direction this is not a circumstance beyond one's control; from two directions, it is a circumstance beyond one's control. A bandit is a circumstance beyond one's control. The lion, the bear, the leopard, the hyena, and the snake are a circumstance beyond one's control. When is this so? When they come of their own accord; but if he led them to a place of hordes of wild beasts and bandits, this is not a circumstance beyond one's control.

ha-terefah "that which was torn" instead of terefah "which was torn") teaches that the paid custodian is liable in some instances in which the animal was torn to pieces, but exempt in others.

One wolf - which attacked the flock and killed an animal - is not a circumstance beyond one's control - since the shepherd could have caused him to flee, and if he was a paid custodian or hirer, he must pay.

But if - two wolves - attacked the flock, then they - are a circumstance beyond one's control - since the shepherd could not have withstood them.

Rabbi Yehudah says, when there is a pack of wolves - attacking a settlement (see Tiferet Yisrael) - even one wolf is a circumstance beyond one's control - since even one wolf will attack a human when there is a pack of wolves present, and the shepherd is not capable of forcing the wolf to flee. The law is not in accordance with Rabbi Yehudah.

Two dogs - who attacked the flock and killed - are not a circumstance beyond one's control - since the shepherd could have withstood them. If, however, there are more than two dogs, then this is considered to be a circumstance beyond one's control (Hil. Sekhirut 3:4).

Yaddua the Babylonian says in the name of Rabbi Meir - If two dogs came - From one direction this is not a circumstance beyond one's control - since the shepherd could have withstood them; but if the dogs came - from two different - directions it is a circumstance beyond one's control - The law is not in accordance with Yaddua the Babylonian.

A bandit - an armed robber who attacks the shepherd - is a circumstance beyond one's control - The Gemara explains that this is the law even if the shepherd is also armed. The robber willingly endangers his own life, coming either to kill, or to be killed, or to rob, but the shepherd is not obligated to put his life in danger for this (Gemara, 93b, and Rashi loc. cit.).

The lion, the bear, the leopard, the hyena, and the snake are a circumstance beyond one's control - since the shepherd cannot withstand these wild animals. When is this so? when they come of their own accord - to the place where the flock was, and killed; but if he - the shepherd - led them - the flock - to a place of hordes of wild beasts and bandits - to a place where there were wild animals and robbers - this is not a circumstance beyond one's control - but rather negligence, since he took the flock to a dangerous place, and he is liable to pay damages.

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