Bava Metzia 95b:16בבא מציעא צ״ה ב:טז
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95bצ״ה ב

דכתיבא בהדיא קתני דאתיא מדרשא לא קתני

that is explicitly written in the Torah he teaches, and those matters that are derived through interpretation he does not teach. Consequently, no proof can be brought from the mishna.

ת"ש שאלה ושאל בעליה עמה שכרה ושכר בעליה עמה שאלה ושכר בעליה עמה שכרה ושאל בעליה עמה אף על פי שהבעלים עושין מלאכה במקום אחר ומתה פטור

The Gemara suggests: Come and hear a proof from a baraita: If one borrowed an animal and borrowed the services of its owner with it, or rented it and hired its owner with it, or borrowed it and hired its owner with it, or rented it and borrowed the services of its owner with it; in all of these cases, although the owner performed the work for him in another place, i.e., not near the animal, and it dies, the borrower or renter is exempt.

סברוה הא מני ר' יהודה היא דאמר שוכר כשומר שכר דמי והא האי תנא קתני מילתא דאתיא מדרשא ואילו שומר חנם לא קתני

The Gemara notes: The scholars in the study hall assumed that this baraita is in accordance with whose opinion? It is in accordance with the opinion of Rabbi Yehuda, who says that one who rents an item is responsible for it like a paid bailee. According to his understanding, the baraita teaches that the exemption from liability applies to both a borrower and a paid bailee. Consequently, the baraita can serve as a proof: Doesn’t this tanna teach even a matter that is derived through interpretation, i.e., the fact that exemption from liability applies to a paid bailee, while he still does not teach that it applies to an unpaid bailee? It would appear that this is a proof that exemption from liability does not apply to an unpaid bailee, since it does not apply to a mishap that is the result of the bailee’s negligence.

הא מני ר"מ היא דאמר שוכר כשומר חנם דמי ותנא שומר חנם והוא הדין לשומר שכר

The Gemara refutes this proof, as one could counter: In accordance with whose opinion is this baraita? It is in accordance with the opinion of Rabbi Meir, who says that the liability of one who rents an item is like that of an unpaid bailee. And, according to his understanding, the baraita teaches that the exemption from liability applies to an unpaid bailee, and it is understood that the same is true for a paid bailee. Understood like this, the baraita explicitly applies the exemption from liability to a case of negligence. Since, ultimately, it is unclear according to whose opinion the baraita is taught, no proof can be drawn from it.

איבעית אימא כדמחליף רבה בר אבוה ותני שוכר כיצד משלם ר' מאיר אומר כשומר שכר ר' יהודה אומר כשומר חנם

If you wish, say that the baraita can be understood as referring to an unpaid bailee, even if it is assumed to be in accordance with the opinion of Rabbi Yehuda. As Rabba bar Avuh reversed their opinions and taught: How does one who rents an item pay in the case of a mishap? Rabbi Meir says: Like a paid bailee. Rabbi Yehuda says: Like an unpaid bailee.

אמר רב המנונא לעולם הוא חייב עד שתהא פרה וחורש בה חמור ומחמר אחריה ועד שיהו בעלים משעת שאילה עד שעת שבורה ומתה אלמא קסבר בעליו עמו אכולה מילתא משמע

§ Rav Hamnuna says that the exemption from liability when one borrows an item together with the services of its owner exists only in very specific circumstances: A borrower is always liable, unless the item entrusted to him is a cow and its owner plows with it in the service of the borrower, or it is a donkey and its owner drives it by walking behind it in the service of the borrower, i.e., the owner and his animal are engaged in the same work. And even so, the borrower will not be exempt unless the owner is working for him from the time of the borrowing of the animal until the time when it is injured or dies. The Gemara notes: Evidently, Rav Hamnuna holds that the phrase: “Its owner is with him” (Exodus 22:14), teaches that the exemption from liability applies only when the owner is working for the borrower for the entire matter.

מתיב רבא שאלה ושאל בעליה עמה שכרה ושכר בעליה עמה שכרה ושאל בעליה עמה שאלה ושכר בעליה עמה אע"פ שהבעלים עושין מלאכה במקום אחר ומתה פטור מאי לאו במלאכה אחרת

Rava raises an objection from the baraita cited previously: If one borrowed an animal and borrowed the services of its owner with it, or rented it and hired its owner with it, or rented it and borrowed the services of its owner with it, or borrowed it and hired its owner with it; in all these cases, although the owner performed the work for him in another place, i.e., not near the animal, and it died, the borrower or renter is exempt. Rava explains how the baraita poses a challenge: What, is it not referring to a case where the owner was engaged with different work than his animal? The baraita proves that the exemption from liability applies even in such a case.

לא באותה מלאכה אלא מאי מקום אחר דקא מרפי ואזיל קמה

The Gemara rejects this: No, the baraita is referring to a case where the owner was engaged with the same work as the animal. The Gemara asks: But, if so, what does the baraita mean by saying: He performed the work in another place? The Gemara explains: For example, it is a case where the owner loosens the hard soil with a hoe while walking ahead of the animal. He is engaged in the same work, but not in the same place.

והא מדסיפא על גבה הוי רישא במלאכה אחרת דקתני סיפא שאלה ואח"כ שאל בעליה שכרה ואח"כ שכר בעליה עמה אע"פ שהבעלים חורשין ע"ג ומתה חייב

The Gemara raises a difficulty: But from the fact that the latter clause of the baraita is referring to a case where the owner was working alongside it, it may be inferred that the first clause, i.e., the passage of the baraita cited above, is referring to a case where the owner was engaged with different work. As the latter clause teaches: If he borrowed it and afterward borrowed the services of its owner, or rented it and afterward hired its owner with it, in both these cases, although the owner was plowing alongside it and at that time it died, the borrower or renter is liable.

אמרי רישא וסיפא באותה מלאכה ורישא רבותא קמ"ל וסיפא רבותא קמ"ל רישא רבותא קמ"ל דאע"ג דלאו על גבה אלא באותה מלאכה כיון דהוו בעלים בשעת שאילה פטור וסיפא רבותא קמ"ל דאע"ג דעל גבה כיון דלא היו בעלים בשעת שאילה חייב

In resolution of this difficulty, the Sages say: Both the first clause and the latter clause pertain to a case where the owner was engaged with the same work as the animal. And the difference in formulation of the two clauses is because the first clause teaches us a novelty and the latter clause teaches us a novelty. The first clause teaches us the novelty that although the owner was not actually working alongside his animal but was merely engaged with the same work, since the owner was working for the borrower at the time of the borrowing, the borrower is exempt. The latter clause teaches us the novelty that although the owner was actually working alongside his animal, since the owner was not working for the borrower at the time of the borrowing, the borrower is liable.

האי מאי אי אמרת בשלמא רישא במלאכה אחרת וסיפא באותה מלאכה היינו רבותא

The Gemara is puzzled: What is this? Granted, if you say that the first clause is referring to a case where the owner is engaged in different work than his animal, and the latter clause is referring to a case where he is engaged in the same work as his animal, then this is the novelty of mentioning what type of work he did: It teaches that it is irrelevant whether the owner did or did not work together with his animal. Rather, the liability of the borrower depends on whether or not the owner was working for the borrower when he entrusted the borrower with his animal.

אלא אי אמרת רישא וסיפא באותה מלאכה מאי רבותא אידי ואידי באותה מלאכה הוי

But if you say that the first clause and the latter clause both pertain to a case where the owner is engaged in the same work as his animal, what is the novelty of mentioning what type of work he did? Both this clause and that clause concern similar cases, in which the owner is engaged in the same work as his animal. It is therefore apparent that the clauses concern different cases. The first clause teaches that the borrower is exempt even in a case where the owner was engaged in different work than his animal. The first part of Rav Hamnuna’s ruling, that the owner needs to be engaged in the same work as his animal, is thereby refuted.

ועוד תניא ממשמע שנאמר (שמות כב, יד) אם בעליו עמו לא ישלם איני יודע שאם בעליו אין עמו שלם ישלם אלא מה ת"ל (שמות כב, יג) בעליו אין עמו לומר לך היה עמו בשעת שאילה אין צריך להיות עמו בשעת שבורה ומתה היה עמו בשעת שבורה ומתה צריך להיות עמו בשעת שאילה

And furthermore, even the second part of Rav Hamnuna’s ruling, that the exemption applies only when the owner was working for the borrower from the time of the borrowing of the animal until the time of the mishap, can be refuted, as it is taught in a baraita: From the implication of that which is stated: “If its owner is with him, he does not pay” (Exodus 22:14), do I not already know what is stated in the next verse, that “if its owner is not with him, he shall pay” (Exodus 22:13)? Rather, what is the meaning when the verse states: “Its owner is not with him”? It serves to tell you: If he was with him, i.e., working for him, at the time of borrowing, he does not need to be with him at the time when the animal is injured or dies for the exemption from liability to apply; but if he was with him at the time when the animal is injured or dies, he does need to have been with him at the time of borrowing for the exemption from liability to apply.

ותניא אידך ממשמע שנאמר בעליו אין עמו שלם ישלם איני יודע שאם בעליו עמו לא ישלם אלא מה ת"ל אם בעליו עמו לומר לך כיון שיצאה מרשות משאיל שעה אחת בבעלים ומתה פטור תיובתא דרב המנונא תיובתא

And it is taught in another baraita: From the implication of that which is stated: “If its owner is not with him, he shall pay,” do I not already know what is stated in the preceding verse, that “if its owner is with him, he does not pay”? Rather, what is the meaning when the verse states: “If its owner is with him”? It serves to tell you: Once the animal has left the domain of the lender, i.e., its owner, and has been entrusted to the borrower, with its owner working for the borrower at that time, even for only one moment, and then it dies, the borrower is exempt. The Gemara concludes: The refutation of the opinion of Rav Hamnuna provided by these baraitot is indeed a conclusive refutation.

אביי סבר לה כר' יאשיה ומתרץ לקראי כר' יאשיה רבא סבר לה כר' יונתן ומתרץ לקראי כר' יונתן

§ The Gemara explains how the first of these baraitot arrives at its conclusion: Abaye holds in accordance with the opinion of Rabbi Yoshiya, that when the Torah mentions two details together in reference to a halakha, it is presumed that the halakha applies only when both details are in effect (see 94b), and he likewise explains the two verses in accordance with Rabbi Yoshiya. Rava holds in accordance with the opinion of Rabbi Yonatan, that it is presumed that the halakha applies even when only one of the details is in effect, and he explains the verses in accordance with the opinion of Rabbi Yonatan.

אביי סבר לה כר' יאשיה ומתרץ לקראי כר' יאשיה בעליו אין עמו שלם ישלם טעמא דליתיה בתרוייהו הא איתיה בחדא וליתיה בחדא פטור

The Gemara clarifies: When the Torah refers to an owner working for the borrower, it should be understood as referring to the time of the borrowing and the time of the mishap. According to Rabbi Yoshiya’s opinion, this indicates that the owner worked for him at both times, whereas according to Rabbi Yonatan’s opinion, this implies that he worked for him at either time. Based on this, Abaye and Rava explain the verses: Abaye holds in accordance with the opinion of Rabbi Yoshiya, and he likewise explains the two verses in accordance with the opinion of Rabbi Yoshiya, thereby arriving at the conclusion of the baraita, as follows: From the verse: “If its owner is not with him, he shall pay,” it appears that the reason the borrower is liable is that the owner was not working for him at either point in time. By inference, if he worked for him at one of those times but not at the other one, the borrower is exempt.

והא כתיב אם בעליו עמו לא ישלם טעמא דאיתיה בתרוייהו הא אי איתיה בחדא וליתיה בחדא מחייב

The Gemara raises an objection: But isn’t it written: “If its owner is with him, he does not pay”? From this verse it appears that the reason the borrower is exempt is that the owner was working for him at both points in time. By inference, if he was working for him at one of those times but not at the other one, the borrower is liable. The two verses appear to contradict each another.

לומר לך היה עמו בשעת שאילה אינו צריך להיות עמו בשעת שבורה ומתה היה עמו בשעת שבורה ומתה צריך להיות עמו בשעת שאילה

To reconcile the verses, one must say that the phrase “if its owner is with him” serves to tell you: If he was with him, i.e., working for him, at the time of borrowing, he does not need to be with him at the time when the animal is injured or dies for the exemption from liability to apply; but if he was with him at the time when the animal is injured or dies, he does need to have been with him at the time of borrowing for the exemption to apply.